Case o' The Week: Evidentiary Errors Just the Tip of the Berg - Preston, Lay Witness Testimony, FRE 404(b), and Prosecutorial Misconduct

 "Preston raises over fifteen individual trial errors, across seven different categories."

 (But three suffice).

United States v. Preston, 2017 WL 4638022 (9th Cir. Oct. 17, 2017), decision available here.

The Honorable Judges Alex Kozinski and Stephen Reinhardt

Players: Decision by visiting District Judge Berg, ED Mich., joined by Judge Reinhardt. Concurrence by Judge Kozinski.

  Big win for appellate counsel AFPD M. Edith (“Edie”) Cunningham, for trial counsel AFPD Jay Sagar, and Jon Sands, Federal Public Defender, District of Arizona.

Facts: As an adult, Mitchell Rosenberg alleged that he had been molested by the defendant, Preston, 14 years before while on a reservation in Arizona. Id. at *2. Preston was charged with aggravated sexual abuse of a child in federal court. Id. 

  During the jury trial, Rosenberg’s testimony was the only direct evidence for the government. Id. A therapist, Bussert, who had worked with Rosenberg testified: over defense objection, she opined on whether Rosenberg was telling the truth about the allegations of sexual abuse. 

  Preston was convicted and sentenced to 162 months. Id.

Issue(s): “On appeal, Preston argues that the district court and the prosecutor committed a variety of errors and that these errors – either independently or cumulatively – deprived him of his right to a fair trial.” Id. at *2.  

Held: “Preston raises over fifteen individual trial errors, across seven different categories. We reverse based on the cumulative effect of the following: (1) improper witness testimony that bolstered Rosenberg's credibility and offered opinion on the credibility of sex abuse allegations in general; (2) prejudicial propensity evidence in the form of Preston's ex-wife's testimony regarding a child incest fantasy Preston allegedly had in 2003; and (3) prosecutorial misconduct, namely: commenting on Preston's decision not to testify, witness vouching, and misstating the evidence in summation.” Id. at *3.

  “In addition to improper opinion testimony indicating that she believed Rosenberg individually, Bussart gave improper opinion testimony as a lay witness about whether sex abuse victims generally tell the truth.” Id. at *5.

  “In sum, the district court abused its discretion in (1) allowing the government's line of questioning that led to Bussart's three improper statements indicating that she believed Rosenberg's allegations, and (2) permitting a juror's question to be asked regarding whether Rosenberg demonstrated his emotions in a manner consistent with sex abuse victims generally. In addition, it was plainly erroneous for the district court to allow Bussart to state that allegations of sexual abuse in her patients had normally been true.” Id.

   “The cumulative effect of these [and additional] errors rendered Preston’s trial fundamentally unfair, and his conviction must therefore be reversed and the case remanded for a new trial.” Id. at *12.

Of Note: This debacle of a trial spawned enough error holdings on appeal for a dozen Case o’ The Week memos. It is a must-read.

  In addition to the above “lay witness” holding, the Court also delivers an important FRE 404(b) holding. Id. at *7. Preston’s ex-wife testified – over defense objection – that she had caught Preston masturbating to an image of his eight-year old stepson, years after the alleged crime. Id. The Ninth holds the district court abused its discretion in admitting this testimony under both FRE 404(b) and 403.

  Preston offers a thoughtful and valuable FRE 404(b) / FRE 403 discussion, that recognizes the extraordinarily prejudicial impact of “collateral” sexual evidence in these cases. Add it to your trial arsenal for in limine battles.  

How to Use: Lay witness errors, evidentiary errors - but wait, there’s more. Prosecutorial misconduct also infests this cornucopia of trial problems. The AUSA improperly commented on the lack of defense testimony, and vouched for the government witness, Rosenberg. Id. at *10-*11. Other holdings aside, Preston would still be a very important decision solely for its discussion of prosecutorial misconduct during closing argument. Id. at *10.

                                               

For Further Reading: Two particularly well-known jurists (and famed friends) were on Preston: Judges Reinhardt and Kozinski. 

  For a thoughtful piece mentioning both judges, and discussing some core facts in the morass of myth surrounding the Circuit split brouhaha, see Has the 9th Circuit gone ‘bananas?’ And can Trump break it up?, available here.

Image of Judge Kozinski and Judge Reinhardt from https://www.flickr.com/photos/aclu_socal/5927007238/in/photostream/ .

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

.

Case o' The Week: "Must Be Lying" Must Be Error (But Harmless!) - Ruiz and Closing Arguments

Not content to merely allude to improper arguments, an AUSA emphasizes them in a Powerpoint presentation during closing.  The result? “Sadly condoned by the incantation: “harmless error review.”  United States v. Ruiz, 2013 WL 1197945 (9th Cir. Mar. 26, 2013) (Pregerson, J., concurring), decision available here.

Players: Decision by Judge Paez. Reluctant concurrence by Judge Pregerson. Hard-fought appeal by CD Cal AFPD Brianna Fuller.

Facts: Sisters Diana and Daisy called the police about a man they later identified as Raymond Ruiz: he was holding a shotgun, mumbling, and walking down a street. Id. at *1. Five minutes after their call, cops in a helicopter saw a man run behind a house and throw a shoe box-sized item over a fence into a vacant lot. Id. Another cop arrived and found a box in the lot with 12-gauge shotgun shells. Id. Yet another officer found Ruiz, trying to get into the house. Id. A 12-gauge shotgun was discovered an arm’s length from Ruiz. Id. At trial the prosecutor used Powerpoint slides – over defense objection – that insisted the jury could only find Ruiz not guilty if the jury found that the officers “lied to you.” Id. at *3.

                                                            

Issue(s): “At the heart of Ruiz’s argument is his contention that the prosecutor’s statement presented the jury with a false choice between his and the officers’ accounts, since the officers could have testified honestly, but nonetheless mistakenly perceived the events on the night in question. This false choice, he asserts, improperly shifted the burden of proof to the defense.” Id. at *3.

Held: “[P]rosecutors have been admonished time and again to avoid statements to the effect that, if the defendant is innocent, government agents must be lying.” Id. at *3 (quotations and citation omitted). “Here, the prosecutor’s argument came very close to altering the burden of proof . . . [T]he prsoecutor’s argument that either the [officer] or Ruiz must be lying could well be construed as arguing an inference unsupported by the evidence, and thereby altering the burden of proof.” Id. at *4. “We need not decide the issue . . . because we conclude that, even if the prosecutor committed error, the error was harmless . . . “In light of the strength of the evidence, the prosecutor’s evidence did not materially affect the fairness of Ruiz’s trial.” Id. at *5.

Of Note: Judge Pregerson “reluctantly” joins the majority opinion, but write separately to specifically question the slides used by the prosecutor in closing argument. Id. at *7 (Pregerson, J., concurring). As explained by Judge Pregerson, the prosecutor’s argument “distorts the burden of proof and misstates the law, but sadly is condoned by the incantation: ‘harmless error review.’” Id. at *7. 

  Interestingly, two years ago Judge Paez penned one of the best harmless error cases in the Ninth. See United States v. Hunt, 656 F.3d 906 (9th Cir. 2011); see also blog here. Frustrating to here see harmless error shield plainly improper argument by the prosecutor.

How to Use: Little to celebrate in Ruiz, but there’s an informative (albeit disappointing)

discussion on jury unanimity in a gun case. Id. at *2. Ruiz was charged with one 922(g) count that encompassed three theories: possessing the gun as seen by the sisters, possessing the ammo in the box, and constructive possession of the shotgun found by the cop. Id. at *1. Not a problem, assures the Ninth: Ruiz was charged with possession of the gun and ammo during one ten-minute period on one night in one location. Id. at *2. The jurors could convict on whatever evidence that they felt supported Ruiz’s guilt, even if they failed to agree on which evidence was persuasive. Id. at *2. (Appropriate that a shotgun was at issue here: this is prosecution by spray shot, where the jury could have split 4/4/4 on the three theories and still convicted!)

                                               

For Further Reading: Did you know that federal agents have tracked people here in

NorCal, using “stingray” cell phone interception technology, and have done so without a warrant? News to us too. Read the fascinating ACLU account, including an intriguing AUSA e-mail exchange on the subject, here. 

  If you have a wiretap, it’s a safe bet your clients were electronically tracked under the guise of a vanilla pen register (a register obtained with an application that didn’t reveal it was authorizing a tracking device). The ACLU’s great work will make for some lively Title III litigation.   

Powerpoint image from http://www.wasupremecourtblog.com/2011/05/articles/oral-argument/how-not-to-use-powerpoint-in-criminal-trials-and-other-oral-arguments-may-10-2011/

 Stingray illustration from http://ispyck.com/law-enforcement-using-cell-phone-tracking-devices/stingray-cell-phone-tracking-how-it-works/

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

.

Case o' The Week: Ninth Not Sweet on "Anthrax" Sugar - Keyser, Hoaxes and Threats

It is imprudent to threaten the members of three powerful institutions: Congress, McDonald's, and Starbucks.

Marc McMain Keyser is three for three. 

See United States v. Keyser, 2012 WL 6052248 (9th Cir. Dec. 6, 2012), decision available here.

Players: Decision by Judge Clifton, joined by Judges Reinhardt and N.R. Smith. Hard-fought appeal by former ED Cal AFPD John Balazs.

Facts: Keyser, an aspiring author, wanted to publicize his self-published book on the dangers of anthrax. Id. at *2. To do so, he sent a CD of his book with a spray can labeled “anthrax” to a media company in 2007. Id. 911 was called, the building was evacuated, emergency agencies responded. Id. FBI agents visited Keyser and chewed him out: Keyser promised not to do it again. Id. 

In 2008, Keyser mailed out the CD again, this time with a white sugar packet with the label, “Anthrax,” “Sample” in smaller letters, and a biohazard symbol. Id. He sent 120 of these packages out, including one to a Congressman, one to the “Manager” of Starbucks, and another to the “Manager” of McDonalds. Id. at *2-*3. Evacuations and law enforcement response followed at each. Id. Keyser testified at trial, and was convicted of five of the thirteen threat and hoax counts charged. Id. at *3.

Issue(s): “Keyser contends that his convictions under 18 U.S.C. § 876(c) cannot stand because his mailing to Starbucks and McDonald’s were not addressed to specific persons, as he argues is required by the statute. The relevant statutory language criminalizes the mailing of a threat ‘addressed to any other person.’ 18 U.SC. § 876(c).” Id. at *7.

Held: “Earlier this year, an en banc panel of this court interpreted the ‘addressed to any other person’ clause of the statute to require that the relevant mailing be addressed to a natural person or persons rather than non-natural entities, such as corporations. United States v. Havelock, 664 F.3d 1284, 1293 (9th Cir. 2012) (en banc). The addresses in question satisfy this statutory requirement. The envelopes had the business name (Starbucks or McDonald’s) on the first line of the address, the word ‘Manager’ on the second line, and no further indication of an address within the contents of the mailing. The use of ‘Manager’ in the address sufficiently transforms the addressee from the corporation to a natural person – a Starbucks or McDonald’s manager is a natural person.” Id. at *7.

Marc McMain Keyser

Of Note: Exactly eleven months before the Keyser opinion, a divided en banc Court gave us the great Havelock decision on the meaning of “person” in the threat statute. See blog here.  Interestingly, both Judges N.R. Smith and Reinhardt were on the Havelock en banc court, both jurists wrote separate opinions parting ways with the reasoning of the en banc plurality, and both were also on this Keyser panel. See Havelock, 664 F.3d 1284, 1297 (9th Cir. 2012) (en banc) (Judge N.R. Smith concurring); id. at 1303 (J. Reinhardt concurring and dissenting).  Unfortunately, their various concerns in Havelock didn’t trouble them here: both join in the holding that a “manager” is enough of a “natural person” to create criminal liability under the threat statute.

How to Use: Keyser is not a great case for those who defend the troubled folks who face federal threat and hoax charges. In addition to the threat holding discussed above, Judge Clifton finds no First Amendment bar to the hoax convictions, 2012 WL 6052248, *6, rejects a “theory of the defense” instruction challenge, id. at *8, and tolerates a sketchy “reasonable person” instruction with some prosecutorial vouching thrown in. Id. at *9-*10. For better or worse, Keyser joins Bagdasarian, 652 F.3d 1113 (9th Cir. 2011), and Havelock as required reading for the evolving law of threat and hoax prosecutions.  

                                               

For Further Reading: Quoting Protestant reform leader Martin Luther, Keyser refused to recant: “I neither can nor will make any retraction, since it is neither safe nor honorable to act against conscience.” For an interesting article reporting interviews with Mr. Keyser, see article here.

Image of Starbucks and McDonalds from http://www.famousbloggers.net/wp-content/uploads/2011/11/mcdonalds-starbucks.jpg. Image of Mr. Keyser by Michael A. Jones / Sacramento Bee, via AP, from http://www.cleveland.com/nation/index.ssf/2008/10/feds_suspect_in_hoax_anthrax_s.html  Image of relabeled sugar packet from http://www.nti.org/gsn/article/anthrax-hoax-suspect-indicted-on-13-counts/

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

.

Case o' The Week: The Rain in Spain Falls Mainly On the Plain (Error Review): Rex Harrison, Prosecutorial Misconduct, and Assault

Rex Harrison (right), a charming gentlemen, a master of etiquette, infallibly polite in every respect, "the milk of human kindness by the quart in every vein." United States v. Rex Harrison, Slip. Op. 14403, 14407 (9th Cir. Oct. 9, 2009), decision available here.

Well, maybe the defendant Rex Harrison in this case isn't quite Henry Higgins -- but he still didn't deserve the trial he got in Hawaii. A slow week in the Ninth and an order amending an August opinion let's us stretch back a bit and take a closer look at this interesting case.

Players: Decision by Chief Judge Kozinski joined by Judge Callahan, partial dissent by Judge Bybee. Hard-fought case by Hawaii Federal Defender Peter Wolff (who was not, by the way, trial counsel).

Facts: “Because the majority neglects to set forth the facts, [Judge Bybee presents] them briefly.” Id. at 14414 (Bybee, J., dissenting). Military police encountered defendant Rex Harrison parked on restricted“Army Beach” in Oahu. Id. Accounts conflict on what happened next, but the officers said a drunk Harrison gave his ID then attempted to run away. Id. The officers testified that Harrison punched one of them and made frightening movements towards another, yelling profanities. Id. Harrison testified at trial and recounted harassment by the officers, with the officers starting the brawl. Id. at 14415. He was charged with two counts of assault.

While crossing Harrison the Special AUSA repeatedly asked the defendant to comment on the testimony of the government’s witnesses. Id. at 14417. The prosecutor also repeatedly vouched for the government witnesses. Id. at14408 (majority decision). The defense did not object to any of these errors at trial. Harrison was convicted of both counts of assault.

Issue(s): “Improper questioning was an organizational theme for the prosecutor’s entire cross-examination. The vouching was similarly patent.” Id. at 14408. Because, however, there was no trial objection, the question for the Ninth was whether the “prosecutors’ misconduct ‘affected the outcome of the district court proceedings.’” Id. at 14409 (quoting United States v. Olano, 507 U.S. 725. 734 (1993)).

Held: “Harrison must also show prejudice, and he hasn’t.” Id. at 14409. “Any prejudice from the vouching was also ameliorated by the judge’s belated curative instruction.” Id.

Of Note: In a persuasive dissent, Judge Bybee compares Harrison with two previous Ninth cases on prosecutorial misconduct, Geston and Combs. He correctly (we think) argues that the vouching and “second-order questions” were at least as extreme here. When one reads Judge Bybee’s more thorough account of the facts and his recounting of the outrageous prosecutorial misconduct at trial, it is shocking that both counts of conviction weren’t reversed.

How to Use: Though victory in Harrison was ultimately stolen by Olano plain error review, both the majority decision and the dissent are useful primers for the twin sins of “second-order” questions (asking a witness on cross to comment on the veracity of another witness, like a cop), and prosecutorial vouching. Mine the decision for good language on both errors. (Aside: both convictions would have almost certainly been reversed had there been objections at trial, and if the Ninth were not engaged in Olano plain error review on appeal. A useful reminder on the importance of objecting and preserving the appellate record).

The case also confirms an earlier Ninth Circuit holding on federal assault: physical intimidation alone will not always constitute assault – there needs to be proof of force or threat of force. Id. at 14411 (quoting United States v. Chapman, 528 F.3d 1215, 1222 (9th Cir. 2008)). Harrison and Chapman are two key, recent cases that merit a close read in any federal assault case.

For Further Reading: Harrison was sentenced to two years in prison for a drunken fistfight with a cop, was remanded when the verdict was returned, and this beach brawl conviction earned a press release from the Hawaii United States Attorney’s office (though there was no USAO press release when Chief Judge Kozinski lambasted the office for prosecutorial misconduct). For more on this case, including the SAUSA who tried it, visit an interesting article here.


Image of Rex Harrison, from My Fair Lady, from http://www.altfg.com/blog/awards/george-cukor-oscar-nominated-actors/

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

.