Monday, July 23, 2018

1. United States v. Robertson, No. 16-10385 (Wallace with Rawlinson and Watford) --- The Ninth Circuit affirmed a conviction on numerous counts of theft of mail by a postal employee and possession of stolen mail. The court held that the district court properly declined to dismiss the indictment and properly instructed the jury in light of the government's destruction of a surevillance video that the defendant said was exculpatory. The court also held that the prosecutor did not violate the rule of exclusion during the trial, that the district judge properly declined to require the government to produce investigatory notes under the Jencks Act, and that the instructions on the element of theft by embezzlement was not reversible plain error. 

Postal inspectors began to believe the defendant, a postal employee, was stealing mail on the job when customers complained they were not receiving gift cards in the mail and then it turned out that the defendant's adult daughter was using the gift cards, which were routed for delivery on days when the defendant was working. The inspectors videotaped her removing test letters from the delivery hamper and place them in a purse that she concealed within another purse. She was arrested and brought to the station manager's office, where she declined to be interviewed but consented to a search of her purse. The search revealed no mail. They let her go but continued to monitor her car. They later returned to the station and found some of the test letters in a hamper near where the defendant had placed her purse earlier in the day. Before trial, the defendant moved to dismiss the indictment on the ground that the surveillance video was not preserved and would have exonerated her. The district court found no bad faith on the part of the postal inspectors in terms of their handling of the video, and denied the motion. After a 13-day trial, the defendant was convicted on 14 counts and sentenced to nine months in prison followed by three years of supervised release and a restitution order. 

The district court correctly denied the motion to dismiss, because the inspector's testimony on which it based its finding of no bad faith was not clearly erroneous. The videotape was deleted as part of an automatic procedure that took place every 30 days. By the time the agent contacted the company responsible for monitoring the security cameras, it was too late. And the video's exculpatory value was speculative, because it offered only a partial view of the defendant's car and would not have conclusively identified any particular person near the car. The defendant's failure to apprise the inspector sooner about the potential exculpatory value of the video also bolstered the finding of no bad faith. And because the inspector's conduct fell within a "general range of reasonableness," the district court did not abuse its discretion in failing to give a lost-evidence instruction to the jury. 

A conversation outside the courtroom between the prosecutor, the inspector, and a fingerprint examiner on day 3 of the trial did not violate the rule of exclusion of witnesses (FRE 615). But the prosecutor's decision to allow two testifying agents to review transcripts of testimony of earlier witnesses was more problematic. The court first interpreted Rule 615 to apply equally to observing witnesses on the stand and reviewing the testimony of a witness in preparation for testimony later in the trial. But here the trial judge assumed that the prosecutor violated the rule by allowing the witness to review the transcript and then fashioned an appropriate sanction by allowing defense counsel to cross-examine the witness about the nature of his preparation to testify. The defendant did not argue why this remedy was insufficient under the circumstances. 

The Jencks Act did not require disclosure of "fragmentary" notes taken by the postal inspector after he testified at trial. Nor did it require an in camera inspection of the notes to determine whether disclosure was required.  

Finally, the jury instructions tracked the language of the statute, and were not a constructive amendment to the indictment. 

The decision is here:


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