First, in United States v. Bundy, --- F.3d ---, No. 18-10287 (9th Cir. 2020), the Court affirmed the district court’s judgment
dismissing the indictment with prejudice, due to Brady violations.
The case arose out of the armed standoff between Bundy and his supporters, and federal agents supporting the BLM's efforts to impound Bundy's cattle for his failure to pay grazing fees.
The very short version of the facts: During trial the government turned over significant Brady information that it clearly should have turned over prior to trial. The district court became more and more troubled. Eventually, it dismissed the case with prejudice.
The Ninth Circuit affirmed. The opinion is full of great quotes about Brady. It really is a must read. Here are some highlights:
- Whether a jury would ultimately find the evidence convincing and lead to an acquittal is not the measuring rod here. Because no verdict was rendered, the usual “retrospective test, evaluating the strength of the evidence after trial has concluded” is not applicable here. “[T]he retrospective definition of materiality is appropriate only in the context of appellate review”; thus, “trial prosecutors must disclose favorable information without attempting to predict whether its disclosure might affect the outcome of the trial.”
- Since the new evidence emerged mid-trial, neither the district court (in the first instance) nor we (as a reviewing court) can measure prejudice against all the evidence produced during the trial. Rather, the district court had to assess the relative value of the Egbert 302 and the Law Enforcement Operations Order on the basis of the indictment, the pretrial proceedings, the opening statements, and the evidence introduced up to that point.
- Substantial prejudice alone does not entitle defendants to have their indictments dismissed with prejudice. Nor is it sufficient that the government committed multiple Brady violations. To warrant dismissal of an indictment with prejudice, the government must have engaged in flagrant misconduct in withholding the evidence.
- As a matter of law, the prosecution is “deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant.”
- To the extent that any government agencies or actors, through their own flagrant misconduct, failed to make known exculpatory information, the flagrant nature of such conduct will be imputed to the prosecution— just as the agencies’ or actors’ Brady violations are imputed to the prosecution.
- Further, the government is wrong to suggest that flagrant misconduct must be intentional or malicious. Although flagrant misconduct cannot be an “accidental or merely negligent” failure to disclose, the misconduct need not be intentional. “[R]eckless disregard for the prosecution’s constitutional obligations” is sufficient to give rise to flagrant misconduct. Id.
- The prosecution has an affirmative obligation to learn of potentially favorable evidence and provide it to the defense.
- A court does not have the same degree of familiarity or access to the evidence that a prosecutor has. Hence, it is prosecutors, not courts, that are “presumed to recognize [the] significance” of evidence. In short, prosecutors cannot hide behind a court’s discovery order to suppress exculpatory evidence.
- At best, the government failed to appreciate the relevance of the evidence. At worst, it sought to handicap the defendants by withholding evidence directly relevant to mens rea. In either circumstance, the government fell well short of its obligations to work toward fairly and faithfully dispensing justice rather than simply notching another win.
- We do not have to find that dismissal with prejudice is the only remedy the district court could have chosen, because to conclude so would mean that it would have been an abuse of discretion for the district court to have made any other decision.
- What the phrase “no lesser remedial action is available” means is that any lesser sanction will put the defense at a greater disadvantage than it would have faced had the government produced the Brady material in the first place—thereby perpetuating the harm from a violation of a federal constitutional right.
- Accordingly, not only would the Brady documents affect the defendants’ strategy, it might well have altered the prosecution’s strategy. Having “tr[ied] out its case” and “identif[ied] . . . problem area[s],” the government could have “correct[ed] those problems in a retrial.”
- We note the government’s failure to acknowledge and confess any wrongdoing during the course of this case—especially as to material misrepresentations to the district court about the presence of snipers. Rather than accepting responsibility, the government blamed the defense for not requesting more specific information. Even in its motion for reconsideration, the government continued to maintain that it never had an obligation to turn these documents over and that any omission on the government’s part was the fault of the defendants for not doing a better job of showing why this information was relevant. Only on appeal has the government admitted that it should have turned these documents over.
- The district court can dismiss an indictment under its supervisory powers “(1) to implement a remedy for the violation of a recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and (3) to deter future illegal conduct.” These prerequisites are met here.
Next, in United States v. Engel, --- F.3d ---, No. 18-10293 (9th Cir. 2020), the Court vacated the defendant's convictions, finding structural error in the district court's termination of his right to represent himself during trial.
This case also arose from the Bundy standoff. Engel was one of Bundy's supporters. He was convicted of obstructing justice and interstate travel in aid of extortion.
The district court initially granted Engel's request to represent himself. But on the twenty-first day of trial, the court terminated his self-representation based on what it viewed as improper questioning of a witness about irrelevant evidence. The court directed standby counsel to conduct questioning for the rest of the trial day. It then allowed Engel to represent himself again for closing argument.
In vacating his convictions, the Ninth Circuit explained, "the right to self-representation may not be
terminated even though a defendant “file[s] numerous
nonsensical pleadings, [is] uncooperative at times,” insists
“on wearing [] prison garb in front of the jury,” and
confusingly tells the jury that “he want[s] the jury to ‘enter a
guilty plea’” during opening statements. Similarly, a defendant’s self-representation
cannot be revoked merely because the defendant lacks
familiarity “with the rules of evidence or the specifics of
criminal procedure.”"
The Court continued: "the facts here
do not support the district court’s termination of Engel’s right
to represent himself. . . . Engel was not defiant and did not engage in blatantly
outrageous conduct, such as threatening a juror or taunting
the district judge. To the contrary, Engel merely asked a
question prejudicial to the government. When the
government objected, Engel remained calm and ultimately
acquiesced in the court’s decision to revoke his right to self-representation. He was never removed from the courtroom,
nor did he need to be removed."
"[E]even though the
district court reinstated Engel’s right to represent himself
before closing arguments, Engel was precluded from cross-examining government witnesses, violating the Sixth
Amendment."
"We conclude that the district court’s termination of
Engel’s right to represent himself violated the Sixth
Amendment. A violation of a defendant’s Sixth Amendment
right to self-representation is structural error. Thus, we must vacate
Engel’s criminal conviction and remand for a new trial."
