Case o' The Week: Tagging Sandbagging - Ninth, Maloney and Improper Rebuttal Argument

Sometimes a (video) is worth a thousand words . . . .

United States v. Maloney, No. 11-40311 (9th Cir. Feb. 28, 2014) (en banc) (Ord.) , decision available here.

Players: En banc order by Judge Wardlaw, joined by: CJ Kozinski, Judges Pregerson, Thomas, McKeown, Fletcher, Paez, Rawlinson, Clifton, N.R. Smith, and Hurwitz (with Judge Smith concurring in the result only).

Facts: In Nov. 2012, the Ninth issued an opinion upholding a refusal to allow a trial surrebuttal for the defense, when the government raised new factual arguments for the first time in rebuttal. Maloney, 699 F.3d 1130, 1143-45 (9th Cir. 2012); see also blog here. 

   Visiting Circuit Judge Gilman wrote a terrific dissent, where he quotes from the oral argument with AUSA admitting that he was sandbagging. Id. at 1149 

“Judge Gilman: Alright, then why didn't you raise this [lack-of-luggage] argument in your first argument on summation? 

Assistant U.S. Attorney, Steve Miller: Because I don't believe that I needed to. 

Judge Gilman: Aren't you sandbagging a bit—to wait for rebuttal? 

Miller: Yes I was.”

   Id.

   The Ninth voted to take the case en banc: it was argued in Sept. 2013. United States v. Maloney, No. 11-40311 (9th Cir. Feb. 28, 2014) (Ord.), at 4. 

   How did the argument go? Suffice it to say that Chief Judge Kozinski advised the AUSA to take the video of the oral argument back to the San Diego United States Attorney’s office, watch it with the United States Attorney, and “see whether this is something that you want to be teaching your line attorneys, your Assistant AUSAs, that this is proper conduct . . . . sometimes the right thing to do is to confess error.” See Maloney En Banc Argument here at 59:00.      

Issue(s): What happened after the San Diego United States Attorney watched the video of the oral argument?

Held: “On October 7, 2013, the United States Attorney for the Southern District of California, Laura Duffy, filed a Motion to Summarily Reverse the Conviction, Vacate the Sentence and Remand to the District Court. In that motion, the United States Attorney represented that she and several senior attorneys in her office had reviewed the video of the en banc oral argument and reconsidered the closing arguments made in the district court. They thereafter concluded that ‘no reference should have been made to luggage in rebuttal argument.’ The United States Attorney’s Office also stated that it planned to ‘use the video of the [en banc] argument as a training tool to reinforce the principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make every effort to stay well within these rules.’” Maloney, (Ord.), at 4-5.... “Accordingly, we GRANT the motion to reverse the conviction, vacate the sentence, and remand to the district court.” Id. at *5.

  

Of Note: As has been noted by many, the Maloney en banc argument is one of the remarkable arguments heard in the Ninth. It has too many bon mots to fully recount here. A staid account of the exchange can be found here. A less deferential summary can be found here. 

    The single best line? When AUSA Castetter complains to the Court that he didn’t know he’d be arguing prosecutorial misconduct, Judge McKeown dryly observes: “Not great to be sandbagged is what you’re saying.” See video here at 1:01:18     

  

How to Use: Buried among the barbs is law of import. Judge Gilman’s dissent in the original Maloney case beautifully describes out what is off-limits in a rebuttal argument. Maloney, 699 F.3d at 1151-52 (Gilman, J. dissenting). Combine his dissent, with Judge Wardlaw’s Maloney order, when sandbagged on rebuttal.

                                               

For Further Reading: A San Diego AUSA steps over the line during closing argument in a drug case, and Judge Pregerson – one of the panel’s members – calls the government out on the error. 

   Maloney? Yes – but it is also Sanchez, a case with the same facts – and decided just three years ago. 

    Déjà vu, all over again. See Sanchez blog entry here.

Image of Maloney family crest from http://www.irishgathering.ie/images/coa/2011/maloney_large.gif

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

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Case o' The Week: Owning Maloney - Sandbagging in Closing Arguments

Hon. Ronald Gilman

Sometimes we complain of the impact that Senior and visiting judges have on our body of Ninth Circuit criminal law.

And sometimes we don’t. United States v. Maloney, 2012 WL 5503664 (9th Cir. Nov. 14, 2012), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judge Tallman. Compelling dissent by visiting Sixth Circuit Judge Ronald Gilman.

Facts: Maloney was arrested at the border and indicted for smuggling marijuana hidden in the cab of a tractor-trailer. Id. at *1. Defense counsel argued in closing that Maloney was set up, explaining that “Hernandez” had hidden the pot in the truck without the defendant’s knowledge. Id. at *8. In rebuttal, the government argued that the defense theory was not credible because Hernandez had done things inconsistent with secretly planting drugs, contended that the timing of the defense version of events was not consistent, and argued that the lack of luggage recovered undercut Maloney’s testimony that he had planned to travel for three days on a legitimate trucking haul. Id. at *11. The defense moved for surrebuttal, arguing that these were new factual theories that were not first made in the government’s closing argument. Id. The district court denied the defense request for surrebuttal; Maloney was convicted. Id.

Issue(s): “Maloney appeals his conviction by arguing that . . . the prosecution raised new arguments in rebuttal and the district court committed reversible error by refusing his request for surrebuttal based on those new arguments.” Id. at *2.

Held: “The district court did not abuse its discretion in denying the defense surrebuttal summation, because the prosecution's statements in rebuttal summation addressed the arguments made in defense counsel's closing argument and were based on permissible inferences from the record. The prosecution only strays from the proper bounds of rebuttal summation when it impermissibly raises new arguments in rebuttal summation . . . The prosecution impermissibly raises new arguments beyond the proper scope of rebuttal summation when the door has not been opened by defense counsel's summation or when the prosecution's arguments are not based on reasonable inferences from the record.” Id. at *1 (internal citations and quotations omitted). “[D]efense counsel opened the door to that information being presented in the prosecutions rebuttal summation by basing its argument on the proposition that the Government had not cast doubt on Maloney’s credibility and had not shown him to be a liar.” Id. at *12.

Of Note: The holding in Maloney ends with this maxim imported (and expanded) from the Eighth Circuit: “The specific content of the prosecution’s arguments are red herrings. Defense counsel opens the door to topics or issues, not specific facts.” Id. This is troubling indeed, and permits prosecutors to sandbag the defense with arguments sprung for the first time on rebuttal. Case in point: in Maloney the AUSA admitted he had intentionally sandbagged by saving factual arguments for rebuttal. 

This concession is detailed in a terrific dissent by visiting Sixth Circuit Judge Ronald Gilman. Id. at *17. Judge Gilman carefully explains how the “luggage” arguments lacked an evidentiary foundation, were intentionally sprung on the defense in rebuttal, and how the Maloney holding would necessarily permit absurd and intolerable sandbagging. Maloney, observes Judge Gilman, breaks with Ninth law on permissible closing arguments. Id. at *18 (citing Gray, 876 F.2d 1411, 1417 (9th Cir. 1989)). 

“En banc petition” should be penned at the top of this compelling dissent.

How to Use: To stave off sharp dissent barbs, Judge N.R. Smith devotes a fair amount of effort of tying this holding to specific facts in the case. Id. at *15. If battling Maloney when sandbagged in closing, hit those limiting facts hard – some defense concessions in the opinion may make it distinguishable from your case.

                                               

For Further Reading: Sr. Judge Gilman is a Clinton appointee. See article here.  Maloney isn’t his first great dissent: he wrote a beautiful dissenting opinion in ACLU v. NSA, where he explained why the Bush administration’s warrantless wiretapping of American citizens was unlawful. See opinion here. 

Here’s hoping the Hon. Gilman visits the West again, and soon.

Image of the Honorable Ronald Gilman from http://www.ourcampaigns.com/CandidateDetail.html?CandidateID=119837

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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