In United States v. Robertson, --- F.3d ---, No. 16-10385 (9th Cir. 2018), the Court affirmed the defendant's convictions for theft of mail by a postal employee in violation of 18 U.S.C. § 1709, and possession of stolen mail in violation of 18 U.S.C. § 1708.
Over what appear to be compelling defense arguments, the Court rules for the government on each.
The opinion deals with numerous issues, including failing to preserve video evidence.
But I'm going to address just two:
First, Rule 615 provides, in relevant part, that “[a]t a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony.” The Court "join[s] those circuits that have determined there is no difference between reading and hearing testimony for purposes of Rule 615." In other words, a party cannot get around Rule 615 by showing the witness a transcript.
But, in this case, the Court concluded, "cross-examination [wa]s a suitable remedy for a Rule 615 violation, at least where, as here, the violation of the rule was not deliberate."
Second, the Court considered under what circumstances the Jencks Act requires the government to disclose -- at least for an in camera review -- an agent's interview notes.
It held: "We now make it clear that unless a defendant makes a threshold showing that notes sought pursuant to the Jencks Act may qualify as a “statement” under the Act, the district court is not obligated to review the notes in camera before refusing to compel production. The defendant’s burden in this regard is not a heavy one. We agree with the Seventh Circuit that so long as a defendant seeking production under the Jencks Act specifies with reasonable particularity that a certain document exists, that there is reason to believe the document is a “statement” under the Act, and that the government failed to provide it in violation of the Act, the district court will ordinarily be required to conduct an in camera inquiry into whether the document in question constitutes a statement."
Under the Act, the term “statement” includes “a written statement made by [the] witness and signed or otherwise adopted or approved by him,” or a “substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement.” 18 U.S.C. § 3500(e).
Here, the defendant did not make a threshold showing that the rough notes constituted a statement under the Jencks Act.
