10/31/19: Split decision - commenting on silence

In United States v. Garcia-Morales, --- F.3d ---, No. 17-50323 (9th Cir. 2019), a split panel affirmed the defendant's conviction for attempted transport of aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).

The appeal turned on whether the prosecution introduced evidence of, and commented on, the defendant's post-arrest silence at trial.  Here's what happened:

the prosecution played a video clip of Garcia’s post-arrest interrogation. In the video, Border Patrol Agent Kahl asked Garcia to identify his alien smuggling co-conspirators. Although Garcia had already answered a number of questions up to this point in the videorecorded interrogation, he refused to discuss his coconspirators, stating “I ain’t feeling cool with that camera.” Agent Kahl pressed harder, asking “why don’t you just give me a name?” Garcia shook his head nervously, sighed heavily, and started to say “I don’t . . . .” Agent Kahl interrupted Garcia to remind him that if he did not name his co-conspirators, he alone would take the fall for the crime of alien smuggling. Garcia shook his head timidly, bit his nails, and once again stated: “I don’t feel cool with the camera . . . .” Agent Kahl again cut him off, this time stating: “Okay, if you want, alright, well, later on we’ll turn off the camera and you can tell me.” Garcia sheepishly nodded his head in agreement.  

Despite suggesting that he might talk about his coconspirators off camera, Garcia later refused to name his coconspirators during subsequent off-camera discussions with Border Patrol agents. 

During trial, the prosecution elicited direct testimony from Agent Kahl in its case-in-chief about Garcia’s refusal to identify his co-conspirators. Later, the prosecution argued in its closing statement that Garcia must be guilty because he was “evasive about other people who are involved,” asking “Why does he want the recording turned off? . . . It wasn’t because he had a plan the entire time to turn these people over.”  

The majority concluded:  "Garcia was not silent in response to Agent Kahl’s questioning on the topic of his co-conspirators. This conclusion is driven by the fact that the exchange between Agent Kahl and Garcia began with Garcia voicing discomfort with video recording and concluded with Garcia agreeing to speak about his coconspirators. At most, the exchange demonstrated that Garcia did not want to discuss his co-conspirators on video tape but was willing to continue talking about the subject later."

The dissent, however, explained: "It makes no difference that Garcia intimated that he might be willing to answer questions about his coconspirators at another time (which ultimately never happened), because such an 'explanatory refusal' to answer is treated the same as silence for Fifth Amendment purposes."  The dissent continued:  "The prosecution’s reference to Garcia’s silence as evidence of his guilt in this context was a Doyle violation, plain and simple."

10/15/19: Rule 414 case

In United States v. Thornhill, --- F.3d ---, No. 18-30046 (9th Cir. 2019), the Court affirmed the defendant's conviction for receipt of child pornography, holding that the district court did not abuse its discretion when it admitted, under Rule 414, evidence of the defendant’s prior state conviction for sexual abuse of a minor.

Rule 414(a) provides: “[i]n a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.”

Rule 414, however, is subject to Rule 403 balancing.  Previously, in Lemay, the Court set forth a multi-factor test guiding the application of Rule 403 in the Rule 414 context.

The decision in this case focused on the fifth factor:  "the necessity of the evidence beyond the testimonies already offered at trial."

The majority determined that, despite this language, a district court need not wait until the introduction of the other trial evidence before ruling on the proposed Rule 414 evidence.

Concurring in the decision, but not the reasoning, Judge N.R. Smith explained, "LeMay requires trial judges to reserve judgment on this issue until after the other testimony has been offered."  However, in this case, he found the timing error harmless.

10/9/19: Great sentencing win

In United States v. Valle, --- F.3d ---, No. 18-50199 (9th Cir. 2019), the Court vacated the defendant's illegal reentry sentence, denied the government a second bite at the apple, and remanded for immediate resentencing under a lower Guidelines range.

At issue was whether the defendant was subject to an increased Guidelines range based on his prior state drug convictions.  The answer under 2L1.2 and 4A1.1 turned on whether those convictions were within 10 and/or 15 years of his current offense.  (If not, they would not count for sentencing purposes).

Thus, the salient question was when did the defendant's current illegal reentry “commence”?

The government and PSR said it was in 2004 when the defendant was arrested but not removed.  The defense said it was in 2017 when he was arrested (found in) for the current offense. 

The district court sided with the government.  The Ninth Circuit reversed.

"[W]e consider whether the Government can establish by clear and convincing evidence a non-citizen’s continuous presence in the United States since the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade. We hold that it cannot. We give some weight to the inference that a non-citizen who had previously returned after being removed and who had family in the United States would have made efforts to stay in the country. But that inference is not enough to carry the Government’s burden here to prove the thirteen years of continuous presence in the United States necessary to support the enhancements applied to Petitioner Miguel Valle’s sentence."

In other words, because the government had no evidence of where he was between the 2004 and 2017 arrests, it could not prove the defendant was in the U.S. the whole time. "Ultimately, because it was the Government’s significant burden to prove that Valle was continuously present, and it produced no evidence whatsoever about where he was for over a decade, the district court clearly erred in concluding that the Government had sufficiently proven that he remained in the United States."


 There is also a good discussion of why the clear and convincing standard applies. 

Additionally, the Court explained:

"It is the Government’s burden to prove continuous presence, not Valle’s burden to prove lack thereof."

"Here, because the Government failed to carry its burden despite an extensive factual inquiry below, it is not entitled to 'a second bite at the apple.' Id. We therefore hold that on remand it may not submit new evidence of Valle’s whereabouts."

"For the foregoing reasons, we vacate Valle’s sentence and remand for resentencing based on the Guidelines range of 1 to 7 months. Because Valle has already been in custody for the illegal reentry offense for about 20 months, we order the mandate to be issued forthwith and to be transmitted without delay to the district court for immediate resentencing."