Monday, February 27, 2006

Case o' The Week: Ninth Can't Bear Plain Error on Failure to Instruct

In a great decision the Ninth strongly backs the "public authority" instruction and defense, in a case involving a questionable DEA handler . See United States v. Bobbie Bear, __ F.3d __, Slip Op. 1995 (9th Cir. Cir. Feb. 24, 2006), available here. The opinion is particularly notable, since the conviction was reversed on plain error review.

A great win by Ben Coleman, formerly of the San Diego Community Defender. Ben and his Defender buddy Steve Hubachek were the creative devils behind the infamous Buckland challenge. (NB: Ben was not trial counsel in Bear).

Facts: Bobbie Bear was a DEA informant. Id. at 1998. She was taped on an allegedly unauthorized sale for 12 - 15 pounds of meth. Id. at 1999. At trial, she testified and explained the sale was authorized by a cross-designated LA Sheriff’s Deputy. Id. The deputy (who had been fired for misconduct) took the stand and denied it. Id. At closing, both parties argued the sole real issue: was she authorized? Id. at 2001. There was no public authority instruction. Bear was convicted and got nearly 20 years. Id. at 2000.

Issue(s): 1. Public Authority Instruction: “Bear argues that although she did not request a public authority instruction, this was the crux of her defense reflected in her testimony and in closing arguments of both counsel. She argues the district court erred by not giving the jury a public authority instruction, sua sponte.” Id. at 1998.

2. Plain Error: “Because defense counsel neither requested a public authority instruction, nor objected to the instructions the court did give the jury, we review for plain error.” Id. at 2000.

Held: 1. Instruction: “First, the district court erred by not instructing the jury on a public authority defense.” Id. at 2001.

2. Plain Error: “We conclude that the district court committed plain error by not giving the jury, sua sponte, a public authority defense instruction, and we reverse Bear’s instruction.”

Of Note: Many have foundered on the shoals of Olano plain error – and particularly on the third prong (error that is “plain” and that “affects substantial rights.”) Id. at 2000. Bear is notable for its strong endorsement of the “public authority” defense.” It is remarkable, however, for its straightforward conclusion that failure to give this instruction – sua sponte – affected the defendant’s substantial rights. Id. at 2003.

How to Use: Bear is obviously now the lead case on “public authority” instructions. More importantly, Bear is a warning to district courts not to muck about with jury instructions. The defense bar can argue that, after Bear, it is plain error for a district court not to give a critical defense instruction sua sponte. Recall that plain error is a tremendously difficult standard of review. If the Bear premise is true, reversal is much more likely when the defense actually preserves objections, requests instructions, and the instructions are nonetheless denied. Thus, the broader lesson of Bear is for the district courts to give the defense more latitude on jury instructions.

For Further Reading: What is with the DEA? In Bear, the key cross-designated agent was the subject of a nine-volume investigation . . . and the AUSA disclosed none of these impeachment materials, despite calling the agent as a rebuttal witness. In a similar “public authority” case recently in the Northern District of California, the DEA intentionally used an unbelievably dirty snitch – and the DEA agent-handler took the Fifth when the judge questioned him about it in trial! See Tarlow, Barry, Rico Report: Pre-Plea Brady/Giglio Disclosures: Beware of Prosecutors Bearing Gifts, The Champion, Jan.-Feb. 2006, 30-FEB Champion 60. In the San Francisco case, the DEA was so corrupt (and the USAO arguably so complicit in allowing the case to proceed) that Judge Charles Breyer has authorized depositions of US Attorney Kevin Ryan in a Hyde Amendment malicious prosecution action! See article here. The DEA is like FEMA’s evil twin: as competent as Emergency Management, with a dishonest streak to boot. More DEA cases need to go to trial.

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


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