In short, after closing arguments, the government disclosed important impeachment evidence:
Unfortunately, one of prosecution’s key tenets during closing—that the jurors could trust the culpable cooperators because they could trust Saad as an independent corroborating witness—was false. During a break between Obagi’s and Salah’s defense closings, a different prosecutor from the U.S. Attorney’s Office who just happened to watch the closing arguments recognized that Saad had in fact received immunity in a separate mortgage fraud investigation and alerted the trial prosecutors to the enormous oversight. The prosecution then notified the court and defense counsel about Saad’s June 2014 immunity agreement, immediately disclosing both the agreement and two investigative reports.The trial court directed the jury to disregard the subject witness's testimony. But it did not grant a new trial.
The majority reversed, explaining:
The government violates its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963), if it suppresses material evidence that is favorable to the accused. Strickler v. Green, 527 U.S. 263, 281–82 (1999). Evidence favorable to the accused “includes evidence that would help the defendant impeach a witness.” Sanders v. Cullen, 873 F.3d 778, 802 (9th Cir. 2017) (citing Giglio v. United States, 405 U.S. 150, 154–55 (1972)); see also U.S. Dep’t of Justice, Justice Manual § 9-5.001 (2020) (imposing disclosure obligations on the government beyond that provided for by either the Federal Rules or the Constitution). Suppression occurs whenever the government fails to disclose evidence, regardless of the government’s good or bad faith. Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016). Evidence is material—and therefore requires reversal— when there is “any reasonable likelihood that it could have affected the judgment of the jury.” Id. (internal quotation marks and citation omitted). Thus, a defendant can prevail under Brady even if “the undisclosed information may not have affected the jury’s verdict.” Id. at 1006 n.6; see also Browning v. Baker, 875 F.3d 444, 470 (9th Cir. 2017) (“Even if the jury—armed with all of this new evidence— could have voted to convict [Browning], we have no confidence that it would have done so.” (alteration in original) (quoting Wearry, 136 S. Ct. at 1007)).It further held the curative instruction "was too late—the genie was out of the bottle. Not only had the government’s closing argument theme been cast—the jury could trust Burchell and the other cooperators because Saad was an “independent witness” who reliably corroborated Burchell—but Obagi’s own counsel had completed closing argument without the benefit of being able to attack Saad’s credibility. Asking defense counsel to reframe his theory of the case—both in terms of examining witnesses and arguing to the jury—after he had spoken to the jury for the last time was simply too much."
The dissent "fear[ed] we are unnecessarily curtailing the discretion afforded district courts in responding to Brady violations"
Next, in United States v. Luong, --- F.3d ---, No. 16-10213 (9th Cir. 2020), the Court affirmed the defendant's convictions for Hobbs Act Robbery and other crimes, but vacated the sentence.
The defendant used Craigslist to advertise the sale of a car, but then robbed a potential buyer.
The opinion covers a lot of issues, but I'm going to focus on a couple.
First, as to the Hobbs Act’s interstate-commerce element, the Court held it was "satisfied in cases like this one, where the government demonstrates that a person used a commercial website to advertise a commercial transaction in order to facilitate a robbery."
Also, here's an interesting comment. The Ninth Circuit's "Pattern jury instructions are not authoritative legal pronouncements."
The Court found government misconduct during closing, but held it was harmless: "The government’s statements plainly were improper: the government impermissibly attacked the credibility of defense counsel and told the jury that it could only carry out its duty by siding with the government."
Finally, the Court vacated the sentence based on the district court's denial of a reduction for acceptance.
"Challenging the federal government’s jurisdiction to prosecute the alleged offense conduct is not inconsistent with contrition. Nor is a defendant foreclosed from receiving credit for acceptance of responsibility because his attorney made good-faith challenges at trial to evidence going to that question. Insofar as the district court declined to give the adjustment based on such challenges by Luong’s counsel, it erred as a matter of law."
