Case o' The Week: Silence is Golden (Opportunity for AUSA) -- Garcia-Morales and Doyle Comments on Post-Miranda Silence

  “The prosecution's reference to Garcia's silence as evidence of his guilt in this context was a Doyle violation, plain and simple.” 

 

The Hon. Judge Carlos Bea

 United States v. Garcia-Morales, 2019 WL 5608832, at *5. (9th Cir. Oct. 31, 2019) (Bea, J., dissenting), decision available here.

Players: Decision by DJ Settle, joined by Judge Rawlinson.

  Compelling dissent by Judge Carlos Bea.

  Hard fought appeal by AFD Sara Weinman, Federal Defenders of San Diego, Inc.   

Facts: Garcia was charged with attempted transport of aliens, after he was arrested near the border where three undocumented aliens had been found. Id. at *2. He was Mirandized, waived, and answered videotaped questions. Id.

  Garcia admitted a prior attempt to transport aliens, and that he had been offered a job transporting aliens by a smuggler on the morning of his arrest. Id. He contended, however, that on the day of arrest, he was just scoping out the area. When asked the names of his smuggling contacts, Garcia said he wasn’t feeling “cool with that camera.” Id. The agent offered to turn off the camera later: Garcia nodded his head “yes” twice. Id. The interrogation continued.

  Later, at trial, in the closing argument the AUSA argued that Garcia’s “evasiveness” about other people involved contradicted other statements Garcia had made. Id. The defense did not object.

  Garcia was convicted, and appealed.  

Issue(s): “Garcia alleges that the prosecution committed misconduct by introducing evidence of, and commenting on, his post-arrest silence at trial.” Id. at *1.

  “Because Garcia argues that he selectively invoked the right to silence on the topic of his co-conspirators, he contends that the prosecution's eliciting of testimony and argument about this topic was improper and asks us to remand for a new trial.” Id. at *2.  

Held: “Upon review of the record, we conclude that Garcia was not silent in response to Agent Kahl's questioning on the topic of his co-conspirators. This conclusion is driven by the fact that the exchange between Agent Kahl and Garcia began with Garcia voicing discomfort with video recording and concluded with Garcia agreeing to speak about his coconspirators. At most, the exchange demonstrated that Garcia did not want to discuss his co-conspirators on video tape but was willing to continue talking about the subject later. On the fact-specific record before us, that brief exchange does not amount to the invocation of silence under either standard articulated above.” Id. at *3.

  “Because the prosecution tied its arguments characterizing Garcia as evasive to the evidence and given our holding that Garcia was not silent, the prosecution did not commit misconduct by characterizing him as being evasive about the other people involved in alien smuggling. Rather, the prosecution properly relied on admissible evidence to rebut the theory that Garcia had always intended to turn aliens he picked up over to border patrol.” Id.

Of Note: In a compelling dissent, Judge Bea explains “the prosecution argued in its closing statement that Garcia must be guilty because he was ‘evasive about other people who are involved,’ asking ‘Why does he want the recording turned off? . . . . It wasn't because he had a plan the entire time to turn these people over.’ This is exactly the type of penalty for exercising one's Fifth Amendment rights that Doyle prohibits.” Id. at *4 (Bea, J., dissenting) (emphasis in original).

  “The prosecution's reference to Garcia's silence as evidence of his guilt in this context was a Doyle violation, plain and simple.” Id.

  Judge Bea correctly, and forcefully, argues that the prosecutor’s reliance on post-Miranda silence rose to the level of plain error, meriting reversal. Garcia-Morales is a troubling break from Ninth authority prohibiting comments on silence. Id. 

  This great Judge Bea dissent is, hopefully, the seed of a future en banc flower.

How to Use: The majority decision oddly relies upon an agent’s reference to further interrogation discussions as a reason to find that Garcia did not remain silent (further discussions that never happened, by the way). Id. at *3. Use that quirky fact to limit this unfortunate holding in future Doyle cases.

                                               

For Further Reading: Task-Force Feds flaunt local and state cop rules. So reports this fascinating Marshall Project article, available here. 

Image of Judge Bea from https://www.law.com/therecorder/2019/06/12/with-ninth-circuit-judge-planning-to-go-senior-trump-gets-another-potential-vacancy-to-fill/

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

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Case o' The Week: Seeing Double? Indictment Trouble - Chilaca and Multiplicity in Child Porn Cases

 Four bites at the apple are three too many.

United States v. Chilaca, 2018 WL 6165235 (9th Cir. Nov. 26, 2018), decision available here.

Players: Great decision of first impression by visiting SD Texas Chief DJ Rosenthal, joined by Judges Judges Hurwitz and Hawkins.

Facts: Chilaca was charged with four counts of possessing child porn. Id. at *1. A search warrant at Chilaca’s home had revealed a PC (that had an internal hard drive) and two separate hard drives – all linked to a Dropbox account that had child porn. Id. 

  He was charged in four counts, that alleged possession of images in the three hard drives and Dropbox. Id. Chilaca’s motion to dismiss multiplicitous counts was denied, he was convicted after a jury trial of all four counts, and received four 66 month (concurrent) prison terms. Id.

Issue(s): “In this appeal, Chilaca contends that his four counts of conviction were multiplicitous and constituted double jeopardy.” Id. 

  “Section 2252(a)(4)(B) makes it a crime for ‘[a]ny person who either knowingly possesses, or knowingly accesses with intent to view, or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction’ of child pornography. 18 U.S.C. § 2252(a)(4)(B). The indictment charged four § 2252(a)(4)(B) violations. The question is whether, under this statute, simultaneous possession of child-pornography images, stored in different media and found in the same location, creates separate ‘allowable units of prosecution.’ Id. at *2 (footnote omitted).

Held: “We, like all other circuits that have considered the issue, interpret § 2252(a)(4)(B)’s use of the phrase '1 or more' to mean that the simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation of the statute. This interpretation is consistent with the provision’s plain language and the structure of the statute as a whole.” Id. at *5. 

  “The government does not dispute that Chilaca’s possession of child-pornography images on the separate media was simultaneous and in the same location . . . . The four counts under § 2252(a)(4)(B) charged in the indictment against Chilaca are therefore multiplicitous.” Id. at *5-*6 (citation omitted).

Of Note: Chilaca’s holding of first impression in the Ninth is a great outcome, and one that follows the outcomes of the four circuits that have tackled this question. 

  Of additional interest, however, is Chief District Judge Rosenthal’s harmless error analysis. In retreat, the government threw a “harmless error” Hail Mary. More specifically, the government argued that the multiplicitous convictions should not be touched because Chilaca had received concurrent sentences. Id. at *6. 

  In a thoughtful analysis the Ninth rejects that harmless error argument, distinguishing its ‘06 Kuchinski decision and focusing on Chilaca’s challenge to the convictions. Id. The defense doesn’t get its hoped-for retrial, id. at *7, but the case is remanded for the district court to knock three of the multiplicitious counts and resentence. Id. Chilaca is a valuable “harmless error” decision, with impact outside of this narrow multiplicity context.

How to Use: Can child porn stored on Dropbox be a “unit of prosecution” under Section 2252(a)(4)(B)? The Court in Chilaca carefully notes that neither party contested whether a Dropbox account qualifies as an “allowable unit of prosecution” under this statute. Id. at *2 & n.2. 

  An interesting footnote to mull.

                                               

For Further Reading: President Trump and Senator Ben Sasse (Republican, Nebraska) have opined much of late on the Ninth’s reversal rate at SCOTUS. The Ninth, we are told, is “overturned more than any Circuit in the Country, 79%.”

Hon. Sen. Ben Sasse and President Trump

  True?

  Meh – as Mark Twain (and others) have observed, there are “lies, damn lies, and statistics.” 

   For a thoughtful discussion of the real figures behind the Ninth's record at the Supremes, see Does the Ninth Circuit Have the Highest Reversal Rate in the Country? available here.

Image of movie poster, “Multiplicity” from http://d.ratingmovies.com/servlet/Main/FilmDisplay?film_rn=4917

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

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Case o' The Week: Low Marks for Gov't Semantic Gymnastics - Lidia Rodriguez and "Reckless Disregard" Jury Instruction

  Huzzah for the Heartland.

United States v. Lidia Rodriguez (9th Cir. Jan. 30, 2018), decision available here.

Players: Notable decision by the Hon. D.J. Mark Bennett, N.D. Iowa, joined by Judges Kozinski and Friedland. 

  Admirable win for AFPD M. Edith (“Edie”) Cunningham and FPD Jon Sands, Office of the Federal Public Defender, District of Arizona. 

Facts: Lidia Rodriguez, a citizen, was stopped at the border coming into the States: she and her passenger were questioned. Id. at *1. The passenger had a border crossing card, but was allegedly “ill at ease,” wore a new shirt (a purported sign of aliens who changed out of clothes after crossing the desert), and had an empty wallet despite his story that he was coming to the States to shop. Id. at *1-*2. The passenger later admitted in a depo (admitted at trial) that he was an undocumented alien with a false border-crossing card. Id. 

  Rodriguez was tried on a charge of transporting an illegal alien for financial gain. The government sought a “reckless disregard” instruction. Id. at *3. The reckless disregard instruction ultimately given to the jury did not require proof that Rodriguez was aware of the risk (a subjective component). Id. at *4. 

  After an Allen charge, and an alternate juror subbing in, Rodriguez was convicted. Id. at *3.

Issue(s): “Rodriguez seeks reversal of her conviction and remand for a new trial . . . . She contends a jury instruction incorrectly defined ‘reckless disregard.’” Id. at *1.

Held: “We reverse.” Id. 

  “[A] correct definition of ‘reckless disregard,’ consistent with Supreme Court and Ninth Circuit law, would include the defendant’s disregard of a risk of harm of which the defendant is aware.” Id. at *7 (quotations and citations omitted) (emphasis added).

Of Note: Lidia Rodriguez is a terrific decision – both for its legal analysis, and for its holdings. In a careful deconstruction, Judge Bennet surveys the evolution of the “recklessness” mens rea requirement. He parses (and rejects) cases that relied upon in the commentary to the Ninth’s model instruction, and explains why the Eighth, Tenth, and Eleventh have it wrong in light of the Supreme’s 1994 Farmer opinion. Id. at *3-*8. 

  Along the way, the Ninth grumbles that it is “unable to follow or accept the government’s semantic gymnastics” arising from a recklessness definition that didn’t require a subjective awareness of risk. Id. at *6. 

  Rodriguez is now a lead opinion on the “reckless” mens rea standard – it is your starting point in any case where this instruction may loom. (Along these lines, dust off your Rolodex and start calling shrinks. We’ll need mental health experts to address our clients’ (subjective) capacity to appreciate the “risk of harm.” With “subjective” in play for this instruction, our clients’ various impairments become very real and relevant issues).

How to Use: Appellate advocates –read Rodriguez. The Court gives us a very favorable read on the preservation of objections for instructional error, id. at *4, sternly enforces the government’s waiver of its “harmless error” argument, id. at *8, and rejects that damnable “exceptional circumstances” trope that gifts the government a Mulligan on its harmless error whiffs, id. at *9-*11. 

  Our AOB’s will glitter with Rodriguez nuggets.

                                               

Hon. Judge Mark Bennett

For Further Reading: Who is this Hawkeye, this outspoken visiting D.J.? 

  The Honorable District Judge Mark Bennett is a jurist with views. He’s a brave critic of the grave injustices of mandatory minimum sentences. See NPR interview here. 

  He’s a brave visiting judge in the Ninth, cheerfully challenging incorrect majority opinions with dissenting dissertations. See United States v. Leal-Felix, 625 F.3d 1148, 1151 (9th Cir. 2010) (Bennett, D.J., dissenting), rev’d by 665 F.3d 1037 (9th Cir. 2011) (en banc). 

  And perhaps most notably, Judge Bennett is at the forefront of efforts to recognize the reality of implicit bias, and its pervasive impact on our criminal justice system. See, e.g., Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes, available here. 

  Love those heartland values.

Image of “gymnastic fail” from http://www.failepicfail.com/gymnast-fail-gymnast-parallel-bars-epic-fail-229.html

Image of the Honorable Judge Mark W. Bennett from https://herculesandtheumpire.com/tag/judge-mark-bennett/

Steven Kalar, Federal Public Defender Northern District of California

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Case o' The Week: Ninth Digs "Other Dude" Dirt - Urias Espinoza, FRE 404(b), and Third Party Culpability Evidence

 As you SODDI, so shall you reap.

United States v. Espinoza, 2018 WL 493194 (9th Cir. Jan. 22, 2018), decision available here.

Players: Decision by Judge Paez, joined by Judges Berzon and Christen. Admirable win for AFD Michael Marks, Fed. Defenders of San Diego, Inc.  

Facts: Urias Espinoza, a Mexican national, was stopped as she tried to legally cross the border. Id. A search of her car revealed that the rear seats had been hollowed-out and filled with twelve kilos of meth. Id. 

  At the trial for importation charges, the government introduced messages on her cell about delivery of a “product.” Id. at *2. Urias Espinoza’s “blind mule” theory was that her neighbor in Mexico packed her car with meth without her knowledge. Id. She tried to introduce evidence that her neighbor was an admitted drug dealer, with a prior conviction for drug distribution, and a prior deportation (showing why he couldn’t reenter). Id. 

  Most of this proffered evidence of third-party liability was excluded by the district court. Urias Espinoza was convicted and sentenced to ninety months. Id. at *3.

Issue(s): “We consider whether the district court abused its discretion in excluding evidence of third-party culpability.” Id. at *1. “The case centers on the threshold requirement for the admissibility of third-party culpability evidence under the Federal Rules of Evidence.” Id. at *3 (emphasis added).

Held: “We conclude that the district court necessarily abused its discretion by applying an incorrect legal standard to determine whether third-party culpability evidence should be admitted.” Id. at *3.

Of Note: The broad FRE 404(b) sweep in this case is great – for this defendant, trying to introduce bad acts committed by her neighbor. Judge Paez explains that the neighbor’s conviction should have come in, despite the fact that the neighbor’s prior was a decade old, was for pot (not meth), and was for distribution, not importation. Id. at *7. 

  Should we worry a “sauce for the goose, sauce for the gander” flip of this broad FRE 404(b) net against a defendant in future cases? Nope. Judge Paez carefully distinguishes this expansive FRE 404(b) analysis for third-party liability evidence, from the government’s limited use of 404(b) evidence against a defendant. The government faces a higher 404(b) hurdle – defendants deserve more protection than other potential witnesses from “bad acts” evidence. Id. at *7 (“We caution, however, that our ruling that the conviction documents were admissible here is not transferable to a situation in which the government seeks to introduce similar evidence with respect to a defendant's prior crimes under Rule 404(b). . . . This is because the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword.”)

How to Use: The Court here relies on its 1980 Armstrong decision, which had held that evidence of third-party culpability is relevant and admissible unless barred by another evidentiary rule. Id. Notably, the Court works through – and rejects -- the district court’s interpretation of latter Ninth authority reportedly constraining that broad Armstrong reading. Id. at *4. 

  A great outcome in this case, but beware that Urias Espinoza is deeply grounded in the Federal Rules of Evidence. For habeas folks eyeing state convictions, note that the Court carefully avoids the constitutional “right to present a defense” challenge in this case. Id. at *1 & n.1. (The Ninth also distinguishes – but does not reject – previous Ninth authority finding no constitutional bar to state limits on third-party culpability evidence). Id. at *4.   

                                               

For Further Reading: SODDI – “Some Other Dude Did It:” a time-honored defense. See Imwinkelried article here.

  When the “other dude” is dirty, shouldn’t a defendant be permitted to share that dirt with the jury? The Ninth in Urias Espinoza thinks so, and reverses this conviction despite the high "harmless error" bar. Id. at *10.

  The Ninth is spot on: old-school limitations on third-party liability evidence are outdated and unfair. For an interesting piece discussing this area of law, see Professor David Schwartz and Chelsey Metcalf, Disfavored Treatment of Third-Party Guilt Evidence, available here. 

Judge Judy SODDI image from http://excellentquotations.com/Images-EQ/quotesImages/39354-ExcellentQuotations.com-Judge-Judy.jpg

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

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Case o' The Week: Many are the afflictions of the righteous: but the [Ninth] delivereth him out of [some] of them - Job and King Searches

 Illegal searches, denied suppression motions, an unsuccessful trial, a thirty-year custodial term, and an appeal.

 The Ninth rewards the patience of Job.

United States v. Job, 2017 WL 971803 (9th Cir. Mar. 14, 2017), decision available here.

Players: Decision by (the always-welcome) visiting District Judge Friedman, District of Columbia, joined by Judges Tashima and Paez.  

Facts: Cops, looking for some other dude, happened upon Travis Job: they patted him down. Id. at *2.

  They discovered a glass pipe in Job’s pocket, $1,450 in cash, and car keys. Id. When the cops pushed the key fob a car in the driveway beeped and unlocked. Id.

   Cops searched the car and found meth, a cig with Spice, another glass pipe, and a cell phone. Id.  At some unknown point, the officers discovered Jobs was on probation “with a 4^th amendment waiver.” Id.

  Job was charged in a meth conspiracy with Robert Rodriguez, and others. Id. at *2 (see also United States v. Rodriguez, 2017 WL 971809 (9th Cir. Mar. 14,2017)(discussing challenges to wiretap). Job’s challenges to the searches of his person and car were denied. He was convicted at trial and sentenced to 360 months [other offenses and searches were also involved in the case]. Id. at *3.   

Issue(s): “[Job] argues that the district court erred by denying his motions to suppress evidence found during searches of his person [and] car . . . .” Id. at *1.

Held: “In denying Job’s motions to suppress, the district court concluded — based on our decision in United States v. King — that Job’s Fourth Amendment search waiver provided a justification for all three searches. 736 F.3d 805, 810 (9th Cir. 2013). In King, we held that a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment. Id. The district court erred by applying King’s holding to this case . . .”  Id. at *3.

  “The district court erred in denying Job’s motions to suppress evidence . . . solely on the basis of Job’s Fourth Amendment search waiver.” Id. at *4 (internal quotations and citation omitted).

Of Note: There were two problems with the government’s use of King in the district court. First, “it is undisputed that the officers were unaware of Job’s Fourth Amendment search waiver when they stopped him and patted him down.” Id. at *3. However, the Ninth’s policy rationale behind permitting the suspicionless searches of parolees (and probationers) requires that cops know of the search condition before searching. Id. Without that key fact, King’s “suspicionless search” rule can’t salvage a bad search.

  Second, King only applies to folks on paper for violent felonies –here, Job was on probation for a narcotic offense (Cal. H&S § 11377(a)). Id. at *4. A probation search waiver for a drug offense (offenses that have been deemed “nonviolent” by the Ninth) won’t justify a King suspicionless search of person, car, or home. Id.

How to Use: It is all well and good that the district court erred -- for Mr. Job, however, the far more-pressing question is the actual impact of the holding on convictions underlying his 30 year sentence?

  The Ninth employs harmless error review to answer that question. Judge Friedman schools the government for misstating the standard for this harmless error review: the test is not “whether a rational jury could have found Job guilty.” Id. at *8 & n.6. Instead, this error is “harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at *8 (internal quotations and citation omitted).

  The Ninth ultimately reverses one count of conviction under the standard as correctly set forth by Judge Friedman. Take careful note of footnote six: the government’s (wrong) standard of review would have probably meant defeat for Mr. Job. Job is a useful summary of the correct S.O.R. for Fourth Amendment motions after trial (and a potent reminder not to trust the government’s asserted standards on appeal).

           

The Honorable Chief Judge Thomas, with the Honorable Judges Bea and Kozinski (left to right).

                                   

For Further Reading: Republican-appointed judges are testifying in Congress, and opposing a Ninth Circuit split. Judges Bea and Kozinski joined C.J. Thomas at the House Judiciary Subcommittee to oppose the proposed creation of a new 12th Circuit from current Ninth States. For a video of their testimony, see the C-SPAN link here. 

  On a related note, Republican-appointed jurists occasionally disagree with some of the decisions of their colleagues on the Ninth. They are not, however, big fans of the Executive’s ad hominem attacks on the Judiciary. For an interesting piece on a very interesting dissent along these lines, see Appeals Court Judges Rebuke Trump for Personal Attacks, available here.

 
 

Image of (the biblical) Job from http://www.college.columbia.edu/core/sites/core/files/Job.jpg

Image of the Honorable Chief Judge Thomas, the Honorable Judge Bea, and the Honorable Judge Kozinski, from https://www.c-span.org/video/?425486-1/ninth-circuit-court-appeals-judges-testify-court-restructuring

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

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