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9th Circuit: Convictions reversed and cases remanded for faulty trade-secret charges, Brady issues, and failure to recognize discretion in connection with firearms sentencing

United States v. Liew, — F.3d —, 2017 WL 1753269 (9th Cir. May 5, 2017): Trade-secret theft counts reversed and case remanded for in camera examination of potential Brady material

Being prosecuted in federal court is bad enough – but imagine being sandwiched between a civil lawsuit and a criminal prosecution, both addressing the same conduct. One might well fear that the two cases in combination would add up to more than the sum of their parts. One might well wish that they could be twisted apart, and kept separate.

Which brings us to Oreo cookies, and Walter Liew. E.I. du Pont de Nemours and Company obtained information suggesting that Mr. Liew, who had hired two former DuPont employees, was using the company’s proprietary technique for making titanium dioxide, a white pigment used in (among other things) the filling in Oreo cookies. DuPont filed a civil complaint alleging trade secret misappropriation. Mr. Liew filed an answer in which he denied having wrongfully obtained or possessed DuPont’s trade secrets. Meanwhile, the FBI began investigating whether Mr. Liew had stolen DuPont’s trade secrets and sold them to China. Eventually the feds indicted Mr. Liew on numerous counts, and the jury convicted him on all of them. But when the Ninth Circuit broke open the trial record, it discovered that all was not lily-white inside.

Two of the counts charged that Mr. Liew’s denial of wrongdoing in his answer to DuPont’s civil complaint amounted to conspiracy to obstruct justice. The Ninth Circuit rejected the notion that such a “general denial of liability” in a civil answer can constitute this crime. Another count charged that Mr. Liew committed witness tampering when, in connection with the civil lawsuit, he advised another involved person to refrain from mentioning former DuPont employees working for their company. The Ninth Circuit found that this was nothing more remarkable than the standard advice “not to talk to anyone about anything” that may be “the best advice for a potential criminal defendant.” The Ninth Circuit reversed Mr. Liew’s convictions on these counts.

There was also a Brady issue. One of the former DuPont employees who had worked with Mr. Liew gave interviews to the FBI, then committed suicide before the trial. Mr. Liew’s attorneys submitted a declaration of that person’s attorney, who stated that the person made statements to the agents that tended to exculpate Mr. Liew, but were not included in the interview reports that the government turned over to the defense. Mr. Liew’s attorneys sought the FBI agents’ rough notes of the interviews. The district court denied the request. This was error, because the attorney’s declaration satisfied Mr. Liew’s “low” burden to justify production of this potential Brady material. The Ninth Circuit remanded with instructions to the district court to review the agent’s notes in camera to determine whether their disclosure might have affected the outcome of the trial.

So yes, a civil suit and an overlapping criminal prosecution can amount to more than the sum of their parts, and it would be better to twist them apart and keep them separate. In the end, though, one is likely to get licked.

(Congratulations to Dennis P. Riordan, Donald M. Horgan, Gary K. Dubkoff, and Matthew C. Dirkes, of Riordan & Horgan, San Francisco, California.)

United States v. Thomas, — F.3d —, 2017 WL 1826622 (9th Cir. May 8, 2017): Case remanded for resentencing in light of Dean v. United States

Joel Leon Thomas was convicted of multiple counts of conspiracy and armed bank robbery. Pursuant to 18 U.S.C. § 924(c), the district court had no choice but to sentence Mr. Thomas to 7 years for his use of a firearm in a robbery, followed by a consecutive 25 years for his use of a firearm in a later robbery. To this mandatory 32 years, the district court added additional incarceration at the low end of the Sentencing Guidelines range for the remaining counts, bringing the total sentence up to 49.5 years. The Ninth Circuit initially rejected Mr. Thomas’ argument that this aggregate sentence was unreasonably harsh, citing prior precedent stating that a district court must impose a mandatory minimum sentence even if doing so makes it impossible for the judge to impose a total sentence that the court considers reasonable.

And that was that, until the Supreme Court issued its decision in Dean v. United States, 137 S. Ct. 1170 (2017). In Dean, the Supreme Court held that district courts have discretion to offset the sentence on another count when imposing a mandatory sentence on a § 924(c) count. The Ninth Circuit granted Mr. Thomas’ petition for rehearing and remanded the case for reconsideration in light of Dean. Judge Wallace dissented, positing that the district judge understood that he had the form of discretion recognized in Dean when he initially sentenced Mr. Thomas.

(Congratulations to Florence M. Bruemmer and Anders V. Rosenquist of Anthem, Arizona.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)