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9th Circuit: Armed Career Criminal Act sentencing enhancement reversed; alien-smuggling conviction reversed for erroneous instruction on reckless disregard; drug conviction reversed for erroneous exclusion of third-party culpability evidence; sex-abuse conviction reversed for cumulative trial errors

United States v. Walton, — F.3d —, 2018 WL 650979 (9th Cir. Feb. 1, 2018): Armed Career Criminal Act sentence enhancement reversed where prior state convictions were not predicate offenses under the Act

The Ninth Circuit held that Donnie Lee Walton was improperly subjected to a sentencing enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e)(1), on his plea of guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. 922(g). The enhancement applies to defendants who have at least three prior convictions for “serious drug offenses” and/or “violent felonies.” Mr. Walton had four priors, including one for Alabama first-degree robbery and one for California second-degree robbery. Applying the “categorical approach” set forth in Supreme Court caselaw, the court looked only to the fact of conviction and the statutory definitions of the offenses, rather than the underlying facts of the cases, to determine whether these offenses triggered ACCA. Alabama first-degree robbery did not qualify, because it did not categorically require the use of violent physical force. California second-degree robbery did not qualify either, because it covers incidents in which force is used only negligently. The Ninth Circuit accordingly vacated the sentence and remanded the case for resentencing.

(Congratulations to Deputy Federal Public Defender Jonathan D. Libby and Federal Public Defender Hilary L. Potashner, of Los Angeles, California.)

 

United States v. Rodriguez, — F.3d —, 2018 WL 614899 (9th Cir. Jan. 30, 2018): Alien-smuggling charge reversed for improper recklessness jury instruction

In December of 2013, southern Arizona resident Lidia Rodriguez picked up a young man at a parking lot in Nogales, Arizona, asked to see his border crossing card, and started driving him toward Tucson. She was stopped a Border Patrol checkpoint, where agents became suspicious that her passenger was in the United States illegally. According to one of the agents, she claimed that she and the young man were going shopping. But the young man later testified in a videotaped deposition that they had made no plans to go shopping. Eventually the young man admitted that he was not the person pictured on the border crossing card he had presented, and the agents arrested him and Ms. Rodriguez. Ms. Rodriguez was charged with and convicted of transporting an illegal alien for financial gain. On appeal, the Ninth Circuit identified two errors requiring reversal. First, the district court gave the jurors an erroneous definition of “reckless disregard.” The statute under which Ms. Rodriguez was charged permitted the jury to convict on a finding that she transported an illegal alien “knowing or in reckless disregard” of the fact that he was in the country illegally. Pursuant to Farmer v. Brennan, 511 U.S. 825 (1994), criminal recklessness requires an actual awareness of a risk, not merely an awareness of facts from which an inference could be drawn that the risk exists. But the district court instructed the jury that it could find reckless disregard if it concluded that Ms. Rodriguez was aware of facts from which she could reasonably have inferred that her passenger was an illegal alien. This was serious legal error, and it was part of the instruction relating to the key disputed issue in the case. The court declined to conduct a harmless error analysis, noting that the government had failed to argue that it should, and concluded that Ms. Rodriguez’s conviction must be reversed. The court went on to hold (in anticipation of a possible retrial) that the district court also erred in permitting the government to introduce Ms. Rodriguez’s passenger’s videotaped deposition, because the government had failed to pursue reasonable and available measures to secure his presence at trial.

(Congratulations to Assistant Federal Public Defender M. Edith Cunningham and Federal Public Defender Jon M. Sands of Tucson, Arizona.)

 

United States v. Espinoza, — F.3d —, 2018 WL 493194 (9th Cir. Jan. 22, 2018): Drug-importation conviction reversed for erroneous exclusion of third-party culpability evidence

It has been said that good fences make good neighbors. Angelica Urias Espinoza probably wishes the fence had been a little higher.

Ms. Espinoza’s neighbor in Mexico knew she traveled frequently to the United States. He knew she parked her car on the street. He had a conviction for importation of methamphetamine. He was unable to cross the border into the United States himself, because of a prior deportation. And when he learned that Ms. Espinoza had been arrested after methamphetamine was found in her car at a border crossing, he fled his home. At her trial, Ms. Espinoza sought to introduce evidence supporting her defense that this neighbor had put the drugs in her car without her knowledge. The evidence included the neighbor’s drug convictions and a Facebook page suggesting that he was a drug dealer. The district court excluded the evidence, relying on two Ninth Circuit opinions for the proposition that such third-party-culpability evidence required something more than ordinary relevance to be admissible. Ms. Espinoza was convicted. The Ninth Circuit, acknowledging that the opinions on which the district court had relied were “less than clear,” reversed. The court stressed that the governing rule provides that “all evidence of third-party culpability that is relevant is admissible, unless barred by another evidentiary rule.” Pursuant to this principle, all of the excluded evidence should have been admitted. The district court had also found the neighbor’s prior convictions inadmissible under Federal Rule of Evidence 404(b), but the Ninth Circuit held that this evidence tended to bolster non-propensity inferences supporting Ms. Espinoza’s defense. At the same time, the Ninth Circuit noted that the same reasoning would not be “transferable” to the use of such evidence against a criminal defendant, because the standard for admission is more restrictive when similar-acts evidence is used “as a sword.” The district court’s error in excluding this evidence was not harmless, because it went directly to the sole disputed issue in the trial: Ms. Espinoza’s awareness of the drugs in her car. The court remanded the case for a new trial.

(Congratulations to Michael Marks of Federal Public Defenders of San Diego, Inc.)

 

United States v. Preston, 873 F.3d 829 (9th Cir. 2017): Cumulation of trial errors requires reversal of sexual abuse conviction

Cumulative error: The Susan Lucci of criminal appellate claims. It provides that where there were multiple trial errors, reversal may be required even if none of them, considered individually, would require it – provided that the cumulative effect of the errors was to deny the defendant a fair trial. Pretty much every time we criminal appellate lawyers raise multiple trial errors, we add it to the mix. And we think: This is the one – such abundance of error, such mutual reciprocity of prejudice – this time it’s gonna work. And time after time, our cumulative error claim gets barely a passing glance, like Ms. Lucci clapping politely and preparing to go home Emmyless once more. Except not: Susan Lucci eventually won an Emmy, and cumulative error sometimes wins the day. Just ask Christopher Preston.

Mr. Preston coached little league baseball in Tucson, Arizona in the 1990s. His work colleague’s son Timothy joined the team at the age of ten, and sometimes stayed over at Mr. Preston’s home. Fourteen years later, Timothy told his mother that Mr. Preston had sexually abused him several times back in the 90s. Mr. Preston was charged with and convicted of aggravated sexual abuse of a child. His appellate lawyer raised – and the Ninth Circuit found – the following errors in the course of his trial. (1) A therapist who treated Timothy was permitted to testify that she believed he told her the truth about being sexually abused, that her clients who alleged sexual abuse normally told the truth, and that Timothy’s emotions were consistent with his having been sexually abused. This improper opinion testimony infringed upon the jury’s exclusive province of determining witness credibility, and breached Federal Rules of Evidence 701 and 702, which bar lay witnesses from expressing opinions based on specialized knowledge. (2) Timothy’s brother was permitted to testify that he believed Timothy’s allegations to be true. (3) An FBI agent was permitted to testify that he had told Mr. Preston that he did not believe Mr. Preston’s denials of sexual abuse. (4) Mr. Preston’s ex-wife was permitted to testify that, five years after he allegedly abused Timothy, she had seen him masturbating while looking at an image of his 8-year-old stepson clothed in socks and underwear. This testimony violated Federal Rule of Evidence 404(b), because the masturbation incident – a non-criminal act – was not similar to “the crime of real-life sexual abuse of a child.” In addition, this testimony should have been excluded under Federal Rule of Evidence 403, because it involved mere “fantasy,” and yet it invited the jury to convict Mr. Preston because of his apparent “propensity” to molest a child. (5) The prosecutor breached Mr. Preston’s Fifth Amendment guarantee against self-incrimination by telling the jury that there was “no testimony” that contradicted Timothy’s testimony – implicitly commenting on Mr. Preston’s failure to testify. (6) The prosecutor vouched for Timothy by repeatedly telling the jury that his allegations were “the truth.” (7) The prosecutor mischaracterized the evidence by claiming that the defense claimed that Timothy was a “vicious” or “evil” liar, when in fact the defense theory was that Timothy’s memory may have been clouded by his drug abuse.

The Ninth Circuit found that, considered cumulatively, these errors deprived Mr. Preston of a fair trial, particularly in light of the fact that almost all of the errors went to the key question in the case – the credibility of Timothy’s allegations of abuse. The court accordingly reversed Mr. Preston’s conviction and remanded the case for a new trial. In a brief concurrence, Judge Kozinski stated that the masturbation incident might be admissible on retrial if offered “to show that Preston was sexually aroused by young boys.”

(Congratulations to Assistant Federal Public Defender M. Edith Cunningham and Federal Public Defender Jon M. Sands of Tucson, Arizona.)

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