In United States v. Barragan, --- F.3d ---, No. 13-50516 (9th Cir. 2017), the Court issued a wide-ranging opinion affirming the defendants' convictions and most of their sentences in this RICO conspiracy case.
Given the number of issues, the Court treats most of them in summary fashion. There are, however, a few things worth noting.
On the issue of agents providing testimony about coded language, the Court determined: "the line between lay and expert opinion depends on the
basis of the opinion, not its subject matter." This sets up the troubling possibility that the same testimony would be expert testimony in one case, but lay in another.
As to prosecutorial misconduct in closing, the Court determined, "[t]he prosecutor’s remarks crossed the line." "[T]he prosecutor emphasized the
violent nature of the defendants’ crimes and repeatedly
urged the jury to say 'no more.'" But the Court found harmless error.
It did, however, include the following: "We recognize—and lament—that in the absence of a
reversal, some prosecutors may infer from today’s opinion
that whatever works is permissible. That would be the
wrong conclusion; we today only conclude that the
prosecutor’s improper argument was limited in nature,
addressed by the district court, and did not have a probable
effect on the jury’s verdict in light of the entire record. But
forewarned is forearmed. On a different record, we will not
hesitate to reverse or even suggest sanctions."
The Court also found that a
conviction under Calif. Penal Code § 211—which involves either generic robbery or generic
extortion—was categorically a “crime of violence” for
purpose of the career offender guideline.
There are myriad other issues discussed, including about wire taps. I suggest at least skimming the Ninth Circuit summary.
