Sunday, February 03, 2013

Case o' The Week: Doe, a Discovery Dear - US v. John Doe, Affirmative Defenses, and Discovery

A visiting district judge on a three-judge panel rejects established Ninth precedent and shifts the burden of an affirmative defense onto the defendant.

(Albeit, with a little help from the Supremes . . . .) United States v. John Doe, 2013 WL 363016 (9th Cir. Jan. 31, 2013), decision available here.

Players: Decision by DJ William Smith, joined by Judges Fernandez and Berzon. Hard-fought case (and important discovery win) by ED Cal AFPD Carolyn Wiggin.

Facts: “John Doe,” a resident of Mexico, reached out to the FBI and tried to cooperate about drug cartels, to get his family to the States. Id. at *1. Meetings with an agent took place, though the agent disclaimed authorizing Doe to begin work. Id. at *2.

At the same time, a Fresno police detective investigated a case that – through Doe – netted twelve pounds of meth and five kg of cocaine. Id. at *2. When arrested, Doe immediately told the Fresno detective that he was working for the FBI. Id. The agent confirmed Doe was being “developed” as an informant but was not currently working for the FBI. Id.

Doe was charged federally. At trial he sought a “public authority” instruction that required the government to prove, beyond a reasonable doubt, that Doe did not believe he was acting as an informant. Id. at *3. Relying on the Supreme Court’s decision in Dixon v. United States, 548 U.S. 1 (2006), the district court denied the instruction. Doe was convicted. Id. at *3.

Issue(s): In Dixon, the Supreme Court held that “Congress intended the [defendant] to bear the burden of proving the defense of duress by a preponderance of the evidence.” Id. at *7 (citation omitted) (emphasis added). “The question of whether Dixon applied to affirmative defenses other than duress is a matter of first impression in the Ninth Circuit.” Id. at *7.  

Held:[L]ike Dixon's duress defense, Doe's common-law affirmative defense of public authority must be proven by a preponderance of the evidence . . . .The district court was therefore correct in applying Dixon to Doe's public authority defense and requiring Doe, and not the government, to bear the burden of proof.” Id. at *8 (internal quotations and citations omitted).

Of Note: Doe does not stand for a “per se rule that the public authority defense must always be proven by the defendant by a preponderance of the evidence.” Id. at *9. The Ninth emphasizes that the question is statute- and case-specific. 

Here, the drug statutes at issue had a “knowingly” mens rea element that the public authority defense could not negate. The outcome might well be different for a specific intent crime. (Though this might be small solace – precious few federal crimes still have specific intent mens rea requirements, and how would public authority work in, for example, a federal assault case that requires specific intent? Maybe “attempt” crimes, with their specific intent mens rea, still give some hope for a Doe distinction).

How to Use: Something’s fishy with this agent. Phone records reveal that Doe called him on the eve of this big drug transaction, and Doe testified that he was working on the sale to help the FBI, yet the agent “didn’t remember” the phone conversation at trial. Before trial, Doe pushed for discovery of all information provided by Doe to the FBI, and all records of communications between Doe and the agent. Id. at *3. The district court denied the request as overbroad. Id. In a terrific discovery decision, the Ninth flatly reverses this ruling. Id. at *12. The Court explains that the discovery requests weren’t overbroad, counters that Doe couldn’t be expected to be more specific than he was in his request, and emphasizes (a la Stever) that evidence is relevant if it has “any tendency to make the existence” of a material fact more or less probable.” Id. at *13. Though not the primary holding, Doe’s discovery discussion is a hidden jewel worthy of heavy citation in discovery litigation.
For Further Reading: “Prosecutorial practices have contributed to disparities in federal sentencing.” So says the Sentencing Commission in its new Booker report. For a useful summary of the sure-to-be controversial tome, see Prof. Berman’s interesting post here.

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


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