Sunday, November 29, 2009

Case o' The Week: From Bad to Worse - Mohsen and Mid-Deliberation Contact with Jury (Without Counsel)

To have the federal judge presiding over your civil case refer you to the USAO for perjury prosecution is bad news. To get caught planning your escape to the Caymans on the eve of your trial is worse. And then, when a jailhouse snitch accuses of you plotting to kill the judge: well, it is all downhill from there. United States v. Amr Mohsen, __ F.3d __, 2009 WL 4067632 (9th Cir. Nov. 25, 2009), decision available here.

Per curiam decision by Judges B. Fletcher, Kleinfeld and DJ Duffy. Hard-fought appeal by SF appellate guru Dennis Riordan.

Facts: (Ed. Note: There are remarkably few facts recited in this unfortunately brief per curiam decision, so the facts below are gleaned from news articles, briefs, and docket entries). Amr Mohsen was a successful Silicon Valley inventor who was charged with perjury in relation to a civil patent dispute. Days before that perjury trial was scheduled to begin, Mohsen (who was on bail) was arrested as he prepared to flee to the Caymans. See article here.

While in jail awaiting trial on perjury (and now, contempt) charges, Mohsen allegedly tried to hire a fellow inmate to threaten witnesses and to kill N.D. Cal. District Judge William Alsup. Id. This gambit sparked a superseding indictment with attempted witness tampering, solicitation to commit arson, and solicitation to commit murder charges.

Because of the threat against Judge Alsup, ED Cal Senior District Judge Shubb (above right) took and tried the case. Mohsen, 2009 WL 4067632, *1. During the bifurcated trial the jury sent a note requesting the indictment: the district judge responded to the note without first informing the parties. Id. at *2. Mohsen was convicted of some of the counts but beat the solicitation to murder charges; he was sentenced to 204 months. J&C Ord.

Issue(s): (Among many) “Mohsen contends that the judge should have consulted the parties or counsel before responding to the jury’s request to see the indictment with the ‘specific charges.’” Id. at *2.

Held: “He is correct. The judge erred. However, the error was harmless beyond a reasonable doubt.” Id.

Of Note: The new law in this case is not that it is error for a judge to respond to a jury note without getting the input of counsel. The (arguably) new law is instead that this mistake (in this setting) is not structural error that requires reversal and new trial, but is instead a problem subject to harmless error analysis on appeal. Id. at *2.

The panel cursorily distinguishes Judge Berzon’s long discussion of this line of law in the Ninth’s infamous “button” case: “Unlike the communication in
Musladin, the jury note here was not a question about the law governing the jury’s deliberations.” Id. at *2.

The decision's terse analysis shines little light on important issue: when is a mid-deliberation communication with the jury, where defense counsel is not informed or involved, a “critical stage” that requires automatic reversal? Impossible to glean a rule from the few paragraphs in the case.

How to Use: Counsel-less conversations between the judge and jury used to be a reversal bullet. Now there’s a regrettably high chance that such a problem will be sidestepped by the Ninth’s redemptive “harmless error” review. Thus, if confronted with mid-deliberation communications between a judge and jury (where you haven’t been invited to the party) develop the prejudice record while in trial. That prejudice showing, unfortunately, may be necessary when battling harmless error review on appeal.

For Further Reading: For an interesting article summarizing the devolution of this case from civil litigation to attempted murder charges, see here. For a compelling summary of the defense attack on this conviction, see Dennis Riordan’s letter summarizing the appeal here. For a recap of this appeal, including Riordan’s plans to seek rehearing en banc, see the San Jose Mercury News article here.

Image of the Hon. Judge William B. Shubb from

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


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