Friday, August 21, 2020

1.  US v. Rodriguez, No. 16-50213 (8-20-20)(Nguyen w/Thomas & Wardlaw). The 9th affirms RICO and VICAR convictions for a defendant who acted as a “secretary” to a high-ranking member of a Mexican Mafia gang. Many issues raised, and this opinion provides a good overview of the instructions required for RICO and VICAR. One significant jury instruction issue is the membership purpose element under VICAR. Did a defendant join the organization or stay in it, as the but-for reason for her violent conduct; or was it a lesser “substantial purpose.” The argument looked to SCOTUS cases where mandatory minimums were triggered in drug cases for a “but for” purpose. See Burrage. The 9th rejected this argument, distinguishing Burrage, and following circuit precedent.  The 9th found that the dual-purpose testimony of agents (fact and expert) was not plain error. The 9th cautioned courts, though, to clarify to the jury what is lay witness testimony and what is expert, and the difference. The trial court erred in allowing expert testimony about the meaning of phone calls, but the error was harmless. Again, the 9th stressed the need for courts to take the gatekeeper function of Daubert and FRE 702 seriously.

Another spirited appellate case argued by Davina Chen, now a SRC.

The decision is here:

2.  US v. Berckmann, No. 18-10446 (8-20-20)(Owens w/Friedland & Nelson). The 9th affirms assault convictions arising from a national park in Hawaii. The defendant assaulted his wife with a dangerous weapon, and by strangulation during a camping trip. The 9th found no error in admission of prior domestic assaults under FRE 404(b) and 403. The prior assaults, in different states and times, provided evidence of a pattern and refuted the defense that the defense was joking around or simply trying to frighten the victim.

The decision is here:

3. US v. Lague, No. 18-10500 (8-20-20)(Wallace w/Nelson & Gwin).The 9th affirmed a conviction distributing drugs outside the normal course of medical treatment. The defendant was a physician’s assistant. He was charged with improper prescriptions for patients. The government introduced testimony from two of the five patients, medical records and files, lab results, and expert testimony. The government also introduced evidence of practice-wide over prescription of narcotic medications. The 9th found no error, as the admission under FRE 404(b) refuted the defense that the defendant had made” a few bad judgments.” The 9th also rejected the 403 argument. There was error in the court not examining all the prescription data before admission for prejudice, but the error was harmless.

The decision is here:


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