Saturday, November 29, 2014

Case o' The Week: Gov't Savors Ninth's Waiver Favor - Brooks and Confrontation Clause challenges

  Appellant Rafiq Brooks has a hundred reasons to be thankful for his Confrontation Clause victory.
  (One for each dollar of his special assessment, on the sole reversed count).
United States v. Brooks, 2014 WL 6610314 (9th Cir. Nov. 24, 2014), decision available here.

Players: Decision by Judge Friedland, joined by Judges Schroeder and Owens.
Hon. Judge Michelle Friedland

Facts: DEA agents investigated a conspiracy to mail pot. Id. At the request of DEA agents, a postal inspector searched identified boxes and discovered marijuana. Id. On November 9th, agents surveilled a suspect who mailed another box of pot. Id. Later searches of two apartments revealed marijuana, guns and drugs. Id. at *2. Brooks was charged with conspiracy and drug offenses, and with a count of possession with intent to distribute, for mailing marijuana on November 9. Id. At trial an agent identified Brooks as the man who mailed pot on November 9th. Id. Another agent testified about information related to a shipped box (tracking number and mailing information), that a postal supervisor told him on the phone. Id. The defense objection to this testimony was overruled and Brooks was convicted on all counts. Id. The government did not argue on appeal that any error was harmless beyond a reasonable doubt, and thus waived this argument. Id. at *7.

Issue(s): “At Brooks’s jury trial, the government introduced out-of-court statements by a nontestifying post office supervisor and photographs of a seized package that was the subject of those statements. Brooks argues that the admission of this evidence violated his rights under the Confrontation Clause of the Sixth Amendment.” Id. at *1.

Held:We conclude that admission of the photographs did not violate the Confrontation Clause, but that admission of the postal supervisor’s statements did, and we reverse the possession conviction that depended on those statements.” Id. “[T]he prosecution introduced statements by the postal supervisor that were testimonial and offered for their truth. Because the postal supervisor did not testify, and there is no contention of unavailability or that Brooks had a prior opportunity to cross-examine the supervisor, the admission of the statements violated the Confrontation Clause.” Id.

Of Note: Brooks was sentenced to over nine years of federal prison. Just how much will this big Confrontation Clause win save him? $100 -- the Special Assessment on the sole reversed possession count, for the November 9th trip to the post office. See id. at *8 & n.6. 
   “Wait!” you protest – “how is that possible – why not reversal on all counts? The government waived its harmless error argument!” 
  Despite this undisputed waiver, the Court nonetheless exercised its discretion in Brooks to “overlook the government’s waiver,” save the government’s bacon, and sua sponte find this constitutional error harmless. Id. at *7. An aggravating end to an otherwise admirable decision.

How to Use: Putting aside the harmless error finagle, Judge Friedland provides a very thoughtful Confrontation Clause deconstruction of the postal supervisor’s statements, working through the Supreme’s decisions in Davis and Hammon. Id. at *4. The analysis has a welcome practical tone – Judge Friedland asks if the agent’s call to the postal supervisor wasn’t to “build a case for prosecution, then what was its purpose?” Id. at *6. A good decision to cite for Confrontation Clause battles.
For Further Reading: For a feisty critique of the harmless error doctrine, see Steven H. Goldberg, Harmless Error: Constitutional Sneak Thief, 71 J. Crim. L. & Criminology 421 (1980), available here. 
  What could be worse than harmless error? Waiver of the government’s waiver of the doctrine. Tolerating appellate waiver, according to government attorney Melissa Devine, is “unpredictable, inconsistent, and sometimes, unfair.”
   (Unless, of course, the court overlooks defense waiver -- which is an admirable exercise of judicial discretion). 
  For a helpful discussion on the waiver of waiver, see, Melissa Devine, When the Courts Save Parties from Themselves: A Practitioner’s Guide to the Federal Circuit and the Court of International Trade, available here

Image of the Honorable Michelle Friedland from

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


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