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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