Sunday, August 10, 2014

Case o' The Week: Pressure (but not enough . . .) - Carr and Suggestive Pretrial Identifications

  She was squeezed until she cracked.
   (But her pretrial IDs are still  admissible . . . .)
United States v. Carr, 2014 WL 3805588 (9th Cir. Aug. 4, 2014), decision available here.

Players: Decision by Judge Christen, joined by Judges Pregerson and Berzon.

Facts: Lanita Fields was a cooperating witness in a bank robbery trial. Id. at *1-*3. Fields testified that on the morning of the robbery, an old boyfriend called and asked her to meet him. Id. at *1. She did, and was introduced to a number of other men. Id. She drove with the group to a “Vons Credit Union”, which the men then robbed. Id. at *2. Guns were used, and fired. Id. at *11-*12. 
   Eighteen months later, a federal agent interviewed Fields and showed her pictures of suspected robbers. Id. at *7. The interview was audio recorded, but not videotaped. Id. at *4-*5. Conflicting evidence suggested the agent showed Fields twelve photos, or ten photos, or three photos (of three suspects). Id. at *4.
  Fields cried, there was pressure to cooperate, and she then identified three robbers out of the pictures. Id. The co-defendants jointly moved to exclude this pretrial identification at trial: the motion was denied. Id. at *4. The defendants were convicted after a jury trial. 

Issue(s): “All three defendants submit that [the district court’s denial of a motion to exclude Fields’s pretrial identification] was error, arguing that the pretrial identification procedure was impermissibly suggestive and unreliable.” Id. at *4.

Held:We conclude that the district court did not deny defendants due process by ruling that [the agent’s] interrogation technique was not impermissibly suggestive; the technique he used did not present a substantial likelihood of irreparable misidentification.” Id. at *7. “We agree that the eighteen-month delay gave the jury a powerful reason to discount Field’s testimony. But because we conclude that procedure used to interrogate Fields was not impermissibly suggestive, we find no error in the trial court’s decision to allow the jury to weigh this testimony.” Id.

Of Note: Is an agent’s pressure to cooperate, alone, enough to render an out-of-court identification inadmissible? Not here, concludes Judge Christen. Id. at *6. She compares the agent’s pressure to cooperate against other factors – like deprivation of food, friends, and counsel, extended interrogation, or subjecting a mentally disabled witness to misleading questioning. Id. Pressure to snitch doesn’t measure up, she concludes.
  It is a disappointing ruling – those in the trenches know that the pressure to snitch is often overwhelming, and can create huge incentives for (mis)identifications intended to appease a threatening agent.

How to Use: The good news (such as it is) comes for one of the co-Ds who wasn’t there during the robbery. There was no evidence he had a gun, or knew of his co-defendants’ use of guns. Id. at *11. The district court granted his motion for judgment of acquittal for a (heavy) Section 924(c) charge, and the Ninth affirmed against the government’s cross-appeal. Id. Not enough, Judge Christen explains, that this was a “takeover” type robbery – more evidence that guns will be in the mix is required. Id. at *11-*12.
For Further Reading: Three hundred and thirty-six ND Cal drug offenders may be eligible for relief, from the retroactive application of the -2 drug amendment. See USSG Commission analysis here , at pg 10 (Table 2). 
  Ninety-five or so of those inmates may be eligible for release at the earliest possible date: Nov. 1, 2015. Id. at Appendix, Table 8. The FPD is on it: lists are being created, motions drafted, proposed orders are underway. When the names of the first eligible inmates are known, we’ll offer training to CJA counsel who wish to represent their own clients.   
    Interestingly, NorCal has less than half the inmates eligible for relief than that of any other California federal district. Id. We must be particularly law-abiding folk, up here among the redwoods . . . . 

Image of the NorCal flag from 

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


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