Case o' The Week: A Snitch in Time? "No," Says Nine - Obagi and Brady / Giglio Remedies

  Gov’t snitch lies? 

The Hon. Judge John Owens

  Case retries.

United States v. Obagi, 2020 WL 4033849 (9th Cir. July 17, 2020), decision available here.

 Players: Decision by Judge Owens, joined by D.J. Molloy. Dissent by Judge Bumatay. Big win for former CD Cal AFPDs Craig Wilke and Davina Chen.  

 Facts: Obagi and his co-D were tried on charges related to mortgage fraud. Id. at *1. The government relied heavily on cooperators. Id. at *2. To bolster its case, the government called witness “Saad,” who testified against the defendants. Saad assured the jury that she had received no consideration from the government. Id. The AUSA “relied heavily” on Saad’s confirming testimony in closing, as a non-compromised and corroborating government witness. Id.

   A different AUSA was watching the closing arguments. He informed the Obagi prosecutor that Saad was actually cooperating, and had received immunity in a separate mortgage investigation. Id. at *3.

   The court discussed options: a mistrial, recalling Saad to be crossed, or an instruction. Id.

   The court decided on a curative jury instruction, and both co-D’s were convicted. Id.  

 Issue(s): Because the details of Saad’s cooperation was Brady evidence, was a curative instruction given after the government’s closing argument a sufficient remedy?

 Held: “Had the information impeaching Saad been disclosed prior to the close of evidence, this presumption and the normal rules concerning curative instructions likely would govern here.” Id. at *4.

  “Given the difficulty the jury faced in reaching a verdict, we cannot say with confidence that the undisclosed impeachment did not affect the jury’s judgment. Nor can we conclude that the district court’s instruction fully cured the prejudice that resulted from the government’s Brady violation.” Id. at *5.

  “Because there is a reasonable likelihood that the undisclosed evidence impeaching Saad could have affected the judgment of the jury, we are compelled to reverse the convictions and remand the case to the district court for further proceedings.” Id.

Of Note: It is unfathomable: how did CD Cal AUSAs not figure out that were calling a (lying) cooperator, and affirmatively assure the jury that she was not a cooperator, when the snitch had in fact been given a no-pros deal in a mortgage fraud case (apparently in the same U.S. Attorney’s office?) This is particularly outrageous in California, where ethical rules require prosecutors to affirmatively hunt down and disclose such information. See Cal. R. Prof. Conduct 3.8, available here. 

   In N.D. Cal, the vast majority of D.J.’s have granted Brady / 3.8 disclosure orders, setting deadlines for disclosure before trial. If such a pretrial order had been in place in Obagi, the government would have been more careful when checking on its own witnesses – and toothier remedies would have been available when this violation came to light. Obagi illustrates yet again why no case should go to trial in California, without a stout Brady / Rule 3.8 disclosure cut-off order in place.

 How to Use: Judge Bumatay’s dissent ably highlights the value of this decision for the defense. See id. at *5 (Bumatay, J. dissenting). He complains that the opinion essentially means de facto reversal anytime there is a Brady disclosure after closing arguments. Id. Judge Bumatay is also irked by the fact that the trial defense counsel declined the district court’s offers to recall the cooperator, Saad, to the witness stand, or to revisit closing arguments – yet the defendants still prevail on appeal. Id. at *6.

  Arguing for the broad scope of Obagi’s Brady holding? Start with the dissent’s helpful outline supporting that proposition.                                               

For Further Reading: In a grim milestone, last week the first COVID-19 death was reported out of Santa Rita Jail, when Deputy Oscar Rocha succumbed to the disease. See article here. 

  Over 100 inmates have now tested positive for COVID-19 at the jail. Though ninety-three of the inmates are deemed “asymptomatic,” in a deeply troubling interview, one allegedly “asymptomatic” inmate in the jail reports what that designation really means (or rather, what it doesn’t mean). See Infected Santa Rita inmate describes jail life amid COVID-19 outbreak, available here. 

 

 

Image of the Honorable Judge John Owens from https://www.law.com/therecorder/almID/1202638438346/Obamas+Judge+Picks+Advance+in+PostFilibuster+Senate%3Fmcode=1202617072607&curindex=4/?germane=1202638438346&id=1202625862932

 

Graph of comparative infection rates by Chief Assistant Candis Mitchell, available at: https://www.ndcalfpd.org/

 

 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

 

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Case o' The Week: Government's Pleas Fall on Skeptical Ninth Ears - Armando Vera and Use of Co-D Plea Agreements at Sentencing

 If at first you don’t succeed,

 Find a co-d, make him plead,

 Use co-D’s plea to prove your fact,

 Then up to the Ninth, who sends you back.

United States v. Armando Vera, 2018 WL 3097956 (9th Cir. June 25, 2018), decision available here.

Players: Decision by Judge Owens, joined by Judges Wardlaw and Nguyen.  

Facts: Brothers Salvador and Armando Vera were convicted of a drug-trafficking conspiracy after trial. Id. at *1. In a welcome holding rejecting cop “interpretations” of recorded calls, the Ninth’s first opinion vacated the drug quantity findings and the defendant’s sentences. See United States v. Salvador Vera, 770 F.3d 1232 (9th Cir. 2014), see also blog entry here. 

  On round two of sentencing, the government decided not to try to fix the cops’ methodology, or actually call the co-conspirators to establish drug amounts. Armando Vera, 2018 WL 3097956, at *2. Instead, the government “relied heavily” on the co-conspirators’ plea agreements to pin drug amounts on the Vera brothers. Id.

   Over objection, the district court found these agreements reliable, declarations against interest, and – primarily relying on the facts from the plea agreements – re-sentenced one brother to 27 years, and the second to 14 years. Id.

Issue(s): “At sentencing, the Confrontation Clause does not apply, . . . and district courts have wide latitude when deciding upon which information to rely, . . . But that information must still have “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a).” Id. at *3.

Held: “Here, the district court relied heavily upon the co-conspirator plea agreements to determine the drug quantities attributable to the Veras, concluding that the plea agreements were reliable statements against interest under Federal Rule of Evidence 804(b)(3). This was reversible error.” Id.

  “Of course, “hearsay is admissible at sentencing, so long as it is accompanied by some minimal indicia of reliability.” Littlesun, 444 F.3d at 1200 (internal quotation marks omitted). But here, the district court’s primary rationale for relying upon the plea agreements —Rule 804(b)(3)—was incorrect. At sentencing, district courts may not rely solely on Rule 804(b)(3) to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug-quantity liability.” Id. at *4.

  “Vacated and remanded.” Id. at *6.

Of Note: Can a complaint affidavit be used to support the government’s facts at sentencing? Weird, but the government stretched for that argument here, urging in a 28(j) letter that complaint affidavits supported the drug amount findings in Vera. Id. at *5 & n.4.

  The panel “assumes without deciding” that a complaint affidavit can be used at sentencing, but holds the reliability of the government’s showing still falls short. Id.

  A good ultimate holding by the panel, but this complaint-tactic remains a government scheme that merits close watching – it seems terrifically unreliable, litigation-driven, hearsay evidence.

How to Use: AUSAs inexplicably lard-up plea agreements with facts inculpating co-defendants – even when the pleading defendant isn’t snitching. Of course, a pleading defendant trying to “curry favor” with the government, id. at *3, doesn’t really care if facts inculpating co-Ds are actually true.

  Judge Owns understands this reality: his pragmatic analysis works through the dubious reliability of the government’s rambling factual bases. As he explains, in Vera “Neither the district court nor the government cited any authority suggesting that a factual basis in a plea agreement pointing the finger at someone else qualifies as Rule 804(b)(3) material, and there is ample case law . . .  suggesting otherwise.” Id. at *3.

  Use Armando Vera to brush back on the novels AUSAs jam into Paragraph 2 (the factual bases) of our plea agreements. As the Vera opinion illustrates, those lengthy statements nailing co-Ds aren't particularly reliable, have little value in litigation, earn our clients unwarranted snitch jackets, and seriously complicate efforts to resolve cases. 

                                               

For Further Reading: The conduct in this case was in 2008. Two sentencing remands and a decade later, Vera I and II don’t say much for the reliability of our current federal sentencing system. 

  What say we use the Federal Rules of Evidence at sentencing, to increase reliability? For an interesting piece making that pitch, see Deborah Young, Fact-Finding at Federal Sentencing: Why the Guidelines Should Meet the Rules, available here.  

Image of plea agreement from http://www.mynbc5.com/article/lawyer-jacques-plea-agreement-good-for-prosecution-bennett-family/3311131

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: One is the Loneliest Number - Brown, Taylor Sentencing, and Washington "Solo" Conspiracies

Q: What do you call a “conspiracy of one?”

A: Weird. (And not a federal predicate).

  United States v. Michael N. Brown, 2017 WL 414106 (9th Cir. Jan. 16, 2018), decision available here.

Players: Decision by Judge Clifton, joined by Judge Clifton. Concurrence by Judge Owens. 

  Another admirable win for former CD Cal AFPD Davina Chen.

Facts: Brown plead guilty to a § 922(g) count. Id. at *1. The district court held that a Washington “conspiracy to distribute methamphetamine” conviction was a “controlled substance offense” under USSG § 2K2.1(a)(4)(A). Id. 

  That prior put the Guideline range at 63-78 months -- Brown was sentenced to five years. Id.

Issue(s): “In calculating the appropriate range . . . the district court determined that a base offense level of twenty applied because Brown’s previous conviction for drug conspiracy under Washington state law qualified as a “controlled substance offense.” Id. at *1.

Held: “We conclude that the conviction does not so qualify because the Washington drug conspiracy statute is not a categorical match to conspiracy under federal law. We reverse and remand for resentencing.” Id. at *1.

Of Note: The problem with this prior? The Washington legislature stretched their conspiracy statute to encompass a “conspiracy” involving a defendant and a cop. Id. at *4. 

  By contrast, under federal law, a defendant cannot conspire with a federal agent or informant. Id. at *3. The Washington state statute thus encompassed more conduct than the federal – not a categorical match, id. at *3, and “explicitly more broad than the generic federal definition.” Id. at *5.

  Note the hard work of the ED and WD FPDs to lay the foundation for this Ninth win, with three district court decisions holding that this prior didn’t qualify. Id. at *3 & n.2.

How to Use: Brown is a valuable Taylor decision beyond the narrow holding on this Washington prior. For example, consider Judge Clifton’s welcome discussion of “harmless” error, for this below-guideline sentence. Id. at *6 (“The same sentence would have represented an upward departure of nineteen months from the upper end of the range if calculated without treating Brown’s prior conviction as a conviction for a controlled substance offense. The use of an incorrect starting point and the failure to keep the proper Sentencing Guidelines range in mind as the sentencing decision was made constituted “a significant procedural error,” and the case must be remanded for resentencing.”)

                                               

For Further Reading: Judge Owens again complains that federal sentencing is “Taylor Upside Down” – where federal defense counsel argue that state statutes have broad criminal liability, and AUSAs argue state criminal statutes are narrow. Id. at *6 (Owens, J., concurring). 

  However, the “Upside Down” analysis in this concurrence is, respectfully, backwards. In reality, federal defense counsel are merely pointing out what our county comrades know well: state prosecutors, courts and legislatures routinely stretch criminal liability well beyond a statute’s plain reading, to try to salvage and save state convictions. The results are mutated, deformed rules of criminal liability that make lousy "generic" matches. Viewed this way, the Taylor analysis is best described as the great karmic comeuppance for strained readings of state criminal codes (interpretations, incidentally, that are usually concocted by D.A.s).

  Frustrated with the complexity of the Taylor analysis (and the counter-intuitive positions the parties must take), Judge Owens argues that the feds should scrap the whole approach and switch to “length of previous sentences” to determine priors that qualify for federal sentencing. Id. at *6.

  As long as we’re asking “the Supreme Court or Congress” to “junk this entire system,” id. at *6, a better change would be get away altogether from smuggling criminal history into offense levels as a predictor of recidivism. Priors make really lousy recidivism-proxies for offense level calculations (like Section 2K2.1, or Career Offender).  Beyond the complex Taylor sentencing goo caused by this use of prior convictions, the Guidelines’ use of priors to determine offense levels exacerbates racial disparity in federal sentencing. 

  For a thoughtful piece on this unjust reality, see “Criminal Enhancements Sourcebook,” available here (“Besides reducing perceived unfairness, efforts to reduce disproportionality in prison populations caused by criminal history enhancements are likely to have other, more concrete beneficial effects. The fastest and least expensive way to achieve such reduction will be to reduce or eliminate criminal history rules that have a disparate impact on nonwhite offenders, causing fewer of them to be sent to prison and/or shortening their prison terms.”)

“Conspiracy of One” image from https://www.sentientproductions.com.au/wp-content/uploads/2017/05/Logo-CoO.png

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Strickland Effective Assistance of Counsel - Purse Snatching Does not a C.O.V. Make

  For Judge Owens, getting to a guideline answer is as complicated as the calculations based upon the Staff of Ra.

 (Though for Indy -- and Judge Kozinski -- getting it right seems pretty easy).

United States v. Strickland, 2017 WL 2723926 (9th Cir. June 26, 2017), decision available here.

Players: Decision by Judge Kozinski, joined by Judges Fisher and Watford. Admirable win for R&W Attorney Elizabeth Daily and Chief Deputy FPD Steve Sady, District of Oregon FPD.  

Facts: Strickland pleaded guilty to being a felon in possession of a gun. Id. at *1. That § 922(g)(1) offense made him an Armed Career Criminal, in the view of the district court. Id. 

  Strickland objected to the ACCA-predicate characterization of one of the three priors – an Oregon third degree robbery – arguing that it did not qualify as a “Crime of Violence” for the ACCA. Id.

Issue(s): “He appeals, arguing that he should be resentenced.” Id. “The government argues that we should nevertheless affirm Strickland’s sentence because his third degree robbery conviction is a predicate offense under the force clause. We thus examine whether the state offense satisfies the force clause’s requirements.” Id. “Our question is whether the term ‘physical force’ as used in the Oregon statue is coextensive with the term’s use in the ACCA.” Id. at *2.

Held: “We hold that it is not, so a conviction for third degree robbery under Oregon law is not a predicate offense under the ACCA. State cases show that Oregon doesn’t require physically violent force . . . [Oregon] state cases demonstrate that state courts don’t interpret the Oregon statute as requiring the use or threatened use of violent force. Therefore, Oregon’s third degree robbery statute is not a categorical match to the force clause.” Id. at *2.

Of Note: Oregon purse snatching does not a violent offense make. So says Judge Kozinski in Strickland. Id. at *2. And, last year, so said Judge Watford in United States v. Parnell,818 F.3d 974, 979 (9th Cir. 2016). (Albeit a little reluctantly -- see id. at 982, Watford., J., concurring: “I join the court's opinion in full, although I confess I was initially inclined to affirm the sentence. The notion that robbery is not a “violent felony,” as that term is defined in the Armed Career Criminal Act (ACCA), strikes me as counterintuitive to say the least. Holding that armed robbery doesn't qualify as a violent felony seems even more absurd. But, as the court's opinion persuasively explains, that conclusion is compelled by two oddities of Massachusetts law.”)

  Interesting that Judge Watford was, at one time, a Ninth Circuit clerk, working for his colleague that is now the author of the Strickland decision.

  For a big Circuit, it is a small world.

How to Use: Johnson warrior Liz Daily has observed that the Oregon third degree robbery statute is similar to that of many other states. 

  The Strickland win certainly undermines the C.O.V. dangers of Oregon Robbery II (ORS 164.405(1)(b), and gives us a welcome boost attacking the robbery convictions of other states as well.

                                               

For Further Reading: Last week Judge Owens complained that guideline sentencing is “more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of Souls.” United States v. Perez-Silvan, 2017 WL 2784971, *7 (9th Cir. June 28, 2017). 

   An apt analogy, the Federal Sentencing Guidelines and the Well of Souls: dank places infested with dangers, threatening permanent entombment with the slightest misstep.

  Judge Owens continues to “urge the Commission to simplify the Guidelines.” Id. Simplification, however, can be dangerous business. At least one prominent Sentencing Commissioner seems keen on simplifying the guidelines to the point of becoming presumptive (read, “mandatory.”) See Remarks of Judge William Pryor, May 17, 2017 at Scalia Law School, George Mason University, available here.

Image of Indy with the Staff of Ra. identifying the Well of Souls from http://earnthis.net/wp-content/uploads/2013/12/raiders-of-the-lost-ark-staff-of-ra-egypt-tomb.jpg

Image of Indy in the Well of Souls from http://i53.tinypic.com/2yuavz5.jpg 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Of Non-Disclose and Oreos - Liew, Brady, and FBI 302 Rough Notes

  Remarkably, exculpatory statements were somehow omitted in an FBI 302 (and the agent’s rough notes were never disclosed).

  Happily, the government now gets a second bite at the Brady apple.

United States v. Liew, 2017 WL 1753269 (9th Cir. May 5, 2017), decision available here.

Players: Decision by Judge Owens, joined by Judges Schroeder and Wardlaw. Nice Brady win for ND Cal stalwart Dennis Riordan in this NorCal case.

Facts: DuPont perfected a lucrative and (it claimed) secret process to create a type of pigment used in everything from paint to the filling of Oreo cookies. Id. at *2.

 China wanted this tech.

  Walter Liew worked with Chinese representatives to start a pigment plant there. Id. at *3. Liew hired a former DuPoint employee, “Spitler,” as a consultant. Id. at *3.

  Liew and Spitler spoke, and in a note documenting their conversation they worried the plant might fail, “even with the best technology and stolen prints.” Id. at *4. Liew, however, later claimed Spitler told him that, as far as DuPont was concerned, “[a]fter 5 years, you are a free man.” Id.

  DuPoint disagreed.

  After learning of the planned Chinese pigment plant, DuPoint sued Liew in federal court. Id. In his civil answer, Liew stated he and his company never “’wrongfully obtained or possess[ed] any’ DuPoint trade secrets.” Id. at *5.

  Liew was later indicted, and charged with obstruction (for his answer in the civil suit), and with economic espionage charges. Id. at *5. Spitler struck an apparent cooperation deal with the government, then committed suicide. Id. at *6.

  Before trial, the government produced a FBI 302 of Spitler’s meetings with the prosecution team. [Ed. note: not in the opinion, but reported in district court briefing, is the fact that Spitler met with FBI Special Agent Kevin Phelan, and others on the prosecution team, six times.] The government did not produce the Special Agent’s rough notes of the Spitler interviews. Id.

  Liew was convicted at trial.

  The defense then produced a declaration from Spitler’s attorney. Id. at *7. Spitler’s attorney reported Spitler’s exculpatory statements omitted from the FBI 302, including his denial that he was involved in a criminal conspiracy. Spitler had also revealed to the government that, after his retirement, DuPont had shipped him a box of documents that Spitler sold to Liew. Because DuPont had voluntarily relinquished those documents, Spitler explained in interviews with the government that he considered them valueless. Id. at *7.

  The defense moved for disclosure of the rough notes of the Spitler interviews. That motion was summarily denied. Id.

Issue(s): “Liew argues that the district court erred by not requiring the prosecution to disclose the rough notes of the FBI’s interviews with deceased co-conspirator Tim Spitler.” Id. at *15.

Held: “While mere speculation about materials in the government’s files does not require a court to make the materials available for defense inspection . . . Liew had more than mere speculation -- he had the declaration of Spitler’s attorney . . . . In light of this declaration, defendants carried their initial burden of producing some evidence to support an inference that the government possessed or knew about material favorable to the defense and failed to disclose it. . . . 

  Although the errors and inconsistencies in the declaration provided by [Spitler’s attorney] cast some doubt on the declaration’s reliability, defendants’ burden was a low one, and the declaration sufficed to support an inference that the rough notes contained favorable material. Because the prosecution did not disclose the rough notes, it did not meet its burden of demonstrating that it satisfied its duty to disclose all favorable evidence known to it. Furthermore, if the rough notes referenced the statements that [Spitler’s attorney] averred Spitler made during the interviews, that material could be sufficient to undermine confidence in the verdict. . . . . 

  [W]e vacate the district court’s order denying defendants’ request for production of the rough notes and remand to the district court for in camera review of the material to determine whether disclosure of the notes might have affected the outcome of the trial.” Id. at *15 (internal citations and quotations omitted).

Of Note: Does your civil client deny wrongdoing when answering in federal court? Be careful: the ND Cal USAO may later indict them for obstruction of justice.

  Judge Owens, thankfully, comes out the right way on this troubling charging stretch, id. at *14, but Liew’s discussion on civil responses and obstruction of justice should be a required read for civil counsel.

How to Use: Is the standard of review for this claim the deferential “abuse of discretion” standard, or the less demanding de novo standard? 

  In an interesting note, Judge Owens explains that – here, in the context of a new trial motion - it is de novo. See id. at *8 n.6. A welcome footnote worth saving for appellate folks.

                                               

Former AUSA Kathryn Haun

For Further Reading: (Former) AUSA Kathryn Haun is one potential candidate for the next United States Attorney for the Northern District of California. See article here. 

  Ms. Haun just gave a candid and revealing interview, defending Attorney General Sessions’ new policy on mandatory minimums. See KQED link here. 

Image of former AUSA Haun from https://static.wixstatic.com/media/bcd40f_342196e499f143a3954b3687110c5860~mv2.gif_srz_200_200_85_22_0.50_1.20_0.00_gif_srz 

Image of Oreo from https://i.ytimg.com/vi/STwpxAWAbrw/0.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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