Monday, August 08, 2011

U.S. v. Stinson, No. 07-50408 (8-5-11) (Rymer with Callahan and Ikuta).

This appeal is from another Aryan Brotherhood RICO prosecution (a series of appeals have issued this week). This appeal also affirms the convictions, and has some interesting issues. Venue was proper in a violent crime in aid of racketeering charge, 18 U.S.C. 1959, because although the murders took place in Pelican Bay prison in the Northern District of California, the continuing enterprise, and orders, came from the Central District. Venue was proper. The 9th also found that there was no Batson problem when the government strikes a juror (a female) who asked twice to get off the jury; the other Batson challenge to a woman was also denied as that juror had a nephew who served time and was familiar with gangs. This was originally a death penalty case, and the jury was death-qualified, but then the government withdrew the death notice. The defendant did not have a right to a non-death qualified jury. A defendant here (Griffin) also argued that he should be able to introduce a habeas petition granting him relief from solitary confinement because his length in segregation undercut any AB ties. He had an expert testify to that. However, the judgment could not come in, as it was hearsay going to the truth of the matter. Turning to witnesses, the payment of a witness does not make it government misconduct. The witness had been a CI. The government possibly did err in eliciting vouching from some witnesses as to the veracity of other witnesses, but any error was harmless. The government also committed error, and error of prosecutorial misconduct magnitude, in posing hypotheticals to the defense expert about AB activities gleaned from debriefings. The facts from the debriefings were hearsay. The government, therefore, stepped over the line. Yet, the error was harmless given the limiting instruction, and the magnitude of evidence. The 9th also found error in the district court's read back of witness testimony without precautionary instructions. It was, again, harmless. Lastly, the 9th affirmed the jury instructions, and found no error in juror contact with a witness.


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