Sunday, September 27, 2015

Case o' The Week: Few Defense "Likes" For Facebook Decision - Citalli Flores, Prosecutorial Misconduct, and Facebook Evidence

Use Facebook. Go to Jail. 

(Although Ms. Flores may have admittedly had another misstep or two, along the way . . .  .)

United States v. Citalli Flores, 2015 WL 5569098 (9th Cir. Sept. 23, 2015), decision available here.

Players: Decision by Judge Wardlaw, joined by Judge Berzon. Dissent by Judge Pregerson. Hard-fought appeal by AFD Morgan Steward, Fed. Def. of San Diego, Inc.

Facts: In her trial for smuggling marijuana into the U.S., Citalli Flores’ defense was that she didn’t know the pot was in her car. Id. She explained contemporaneous Facebook messages about “carrying” marijuana were her references to bringing grass into Mexico on that trip, not smuggling the drug out of Mexico. Id. at *2. The AUSA crossed Flores on bringing pot “between” the U.S. and Mexico, “across” an international border, and argued in closing that Flores’ version was still “smuggling drugs” (although Flores was charged with importation, not exportation) Id. There was no defense objection. Id.

Issue(s): “Flores contends that the government committed misconduct by erroneously telling the jury that it could convict her based on her admission to carrying marijuana to Mexico on the date of her arrest.” Id.

Held: “We agree that the government misstated the law to the jury . . . The government also misstated Flores’s testimony, thereby making an unsupported factual claim . . . . Flores did not object to this misconduct below, however, so we review for plain error. We conclude that the misstatements did not substantially prejudice her, and so do not warrant reversal.” Id.

Of Note: While victory is stymied by plain error review, id. at *7, Judge Wardlaw is certainly not endorsing this misconduct. Id. at *15. (“Once again, an Assistant United States Attorney for the Southern District of California overstepped the boundaries of permissible questioning and argument.”) 

Judge Wardlaw explains it was “definitely improper” for the AUSA to suggest that Flores admitted to drug smuggling, when that term was used as a synonym for importation, because it misstated Flores’s testimony. Id. at *4. The same problem infected the AUSA’s cross, when Flores was pressed to admit that exportation was illegal and “still smuggling.” Id. at *5. The government should not have tried to “push the envelope” in this matter. Id. Judge Pregerson, in dissent, would go further: “[t]hese serious violations do not warrant invocation of the plain error rule.” Id. at *15. 

Although Flores didn’t surmount plain error, the case has good prosecutorial misconduct language – take a look for quotes when faced with a prosecutor that blurs conduct and facts in evidence in cross and closing argument.

How to Use: Buried behind the misconduct analysis is a long, interesting, and worrisome discussion of the search warrant for Flores’ Facebook data (producing 11,000 pages and five years of posts!), and the admission of some Facebook messages at trial. Id. at *10 - *14. If your client makes regrettable statements on Facebook (and what client doesn’t?), Flores merits close review for its discussion of warrant staleness and overbreadth in the context of Facebook evidence. Id. at *12. 

In a nutshell, the warrant for the Facebook evidence is upheld, but Judge Wardlaw emphasizes the limited evidence actually used at trial (a very small fraction of the evidence seized). Id. The opinion also carves out these Facebook messages from a FRE 404(b) analysis “because the evidence [used at trial] did not refer to other bad acts at all; it referred to the bad act at issue.” Id. at *13 (emphasis in original).  

Flores is not a blank check for the seizure and use of Facebook evidence – for example, Judge Wardlaw emphasizes that Facebook, not the Feds, “segregated Flores’s account to protect third parties’ rights.” Id. at *12 & n. 22 (but see, n. 25 tolerating agents’ segregation of data for responsive evidence at trial). Fair to predict very different reads of Flores by you and the AUSA in your next battle over Facebook evidence -- but a sure bet that Flores will be at the heart of that argument.
For Further Reading: Our clients aren’t the only ones to post -- complicated -- messages: cops use the internet too. See, e.g., blog of SFPD Officer Daniel Silver How does one get this stuff in (or keep it out?) For an interesting article on core concepts, see Josh Gilliland, iWitness: The Admissibility of Social Media Evidence, ABA Litigation, Vol 29. No. 1 available here.    

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


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Wednesday, September 23, 2015

United States V. Flores, No. 14-50027 (12-23-15)(Wardlaw with Berzon; dissent by Pregerson).  The 9th finds the prosecutor misstated the evidence, mischaracterized testimony, and engaged in misconduct; nonetheless, the 9th affirmed the importation conviction and sentence.  The misconduct was not egregious enough under a plain error standard, and in light of the overwhelming weight of the evidence. 

The defendant was charged with importation of marijuana.  She was found with 36 pounds in her car.  She argued that she was unaware of the marijuana--she had given her car to a car mechanic ("Juan") in Tijuana and it must have been hidden in the vehicle then.  Unfortunately, for her, there were jail calls where she apologized to her family and asked that Facebook postings be deleted.  The calls led the government to look closely at the postings, where there were references to "carrying" or "bringing" marijuana in.  At trial, she argued that she was exporting marijuana from the U.S. to Mexico.  This prompted the prosecutor to argue that she lied, that she was an admitted drug smuggler, and that she had brought drugs between countries and across borders.
The problem with that argument, and why it crossed the bounders of permissible, was that the testimony was for exportation.  The answer may have been technically "yes," but the defendant was not charged with exportation but importation.  The prosecutor played fast and loose with the testimony and was too clever.  Moreover, the law was misstated as the prosecutor said the defendant could be convicted for carrying drugs to Mexico.

The 9th though held that the misconduct was harmless under plain error review.  The evidence was overwhelming against the defendant; her defense was not credible, nor corroborated; and the court's jury instruction, read after argument, correctly stated the law.

The 9th also affirmed the denial of the motion to suppress, found no vouching, and upheld the obstruction enhancement.

Pregerson dissented, arguing that the misconduct was serious and warranted a reversal.

The decision is here:

Sunday, September 20, 2015

Case o' The Week: Myers Lemon of an Opinion, thanks to Supremes and Davila - Criminal Settlement Conferences and Rule 11(c)(1)

  In an appeal from (Judge) Davila controlled by (opinion) Davila, Ninth finds no appellate waiver when client didn’t waive (waiveable) Rule 11 limitations (which cannot, however, be waived to get a criminal settlement conference, under the Northern District of California's local rule).
  Got it?
United States v. Myers, 2015 WL 5315376 (9th Cir. Mar. 11, 2015), decision available here.

Players: Decision by Judge Murguia, joined by Judges McKeown and Friedland. Hard-fought appeal by NorCal CJA Counsel Michael Hinckley.

Facts: On June 13, 2013, the Supreme Court held in Davila that Fed. R. Crim. Proc. 11 precluded judicial involvement in criminal settlement conferences. Id. at *7. Before Davila was decided, Myers was charged with fraud. Id. at *1. He requested a criminal settlement conference, in accordance with N.D. Cal’s Crim. L. Rule 11-1. Id. The AUSA agreed, and a Magistrate Judge moderated a settlement conference that produced a written plea agreement and guilty plea. Id. Davila was then decided. Four months later, id. at *8, Myers was sentenced to 18 months (below the two years recommended by Probation). Id. at *3.

Issue(s): “Myers does not dispute that he voluntarily participated in the settlement conference. Rather, he argues the procedure violated Federal Rule of Criminal Procedure 11, which prohibits ‘[t]he court’ from ‘participat[ing] in [plea] discussions.” Fed.R.Crim.P. 11(c)(1). Specifically, Myers argues that the Supreme Court's decision in Davila. . . 133 S.Ct. 2139 . . . (2013), sets forth a categorical rule prohibiting any judicial involvement in plea negotiation, even, as is at issue here, when the judicial participation is both requested by the defendant and sanctioned by the district court's local rules.” Id.

Held:We agree that Davila makes clear that Rule 11(c)(1) imposes a categorical bar on judicial participation in plea negotiations. Because Myers failed to object at the time to judicial participation, however, we review his unpreserved Rule 11 claim for plain error, and we affirm. Myers has failed to establish the alleged error affected his substantial rights because the record is bereft of evidence indicating that he suffered any prejudice due to the magistrate judge’s participation in the settlement conference. Rather, the settlement conference helped Myers reach a plea deal with the government—something Myers vigorously pursued during the nearly three years of pretrial proceedings—which resulted in Myers receiving a below-Guidelines sentence.” Id. 

 “[W]e conclude that Rule 11(c)(1) extends to the magistrate judge's participation in the settlement conference at issue here.” Id. at *4. 

“We note that this means Northern District of California Local Criminal Rule 11–1(a) was and is in conflict with Rule 11(c)(1).” Id. at *5.

Of Note: Consider these Myers holdings. Rule 11 “imposes a categorical bar” on judges leading criminal settlement negotiations. Id. at *4. However, “[w]e . . . hold that Rule 11(c)(1) can be waived by the defendant.” Id. at *6. “[T]he Northern District’s settlement conference procedure is not categorically impermissible: while the procedure violates the plain letter of Rule 11(c) (1), the rule is waivable at the defendant's election.” Id. at *8. 

Is this a window of opportunity? Can we get a written waiver from the client or judicial confirmation of the Rule 11 waiver, id. at *6, and get crim settlement conferences back in business? 

Probably not. 

The Court seems to be distinguishing “this makes it all OK” waiver, from “you gave up your appeal waiver.” Id. at *5 (“While these facts bear on whether Myers voluntarily waived Rule 11(c)(1) . . . these procedural protections do not ameliorate the conflict between the local rule and Rule 11(c)(1)’s categorical bar on judges participating in plea negotiations.”) Id. at *5. Nonetheless, by all means give crim settlement conferences a shot after Myers (if you can find a willing AUSA and federal settlement judge).

How to Use: This plea agreement had an appellate waiver -- why didn’t the appeal stop there? Because these waivers don’t cover Rule 11 errors. See id. at *5. Handy exception to remember, when there are plea quirks.
For Further Reading: The lousy facts of Davila cost us an important settlement tool. For an interesting article discussing the pros and cons of criminal settlement conferences – and suggesting a middle course -- see Rishi Raj Batra, Judicial Participation in Plea Bargaining: a Dispute Resolution Perspective, at 76 Ohio St. L.J. 575 (2015), available here.

Image of Meyer lemon from

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


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