In United States v. Rusnak, --- F.3d ---, No. 17-10137 (9th Cir. 2020), the Court affirmed a conviction for accessing, possessing, and distributing child pornography, vacated some of the supervised release, and remanded for further proceedings.
A few points worth noting"
First, the Fourth Circuit has held that a criminal defendant may be entitled to a Franks hearing when the affiant who secured a search warrant makes statements at trial that contradict the warrant affidavit. See United States v. White, 850 F.3d 667, 673 (4th Cir. 2017). Because the Court here found that the defendant waived his Franks argument, it did not decide whether the Ninth would join the Fourth. So this is still an open issue of first impression.
Second, on the issue of questioning outside the scope of direct examination, the Court reminds us: "'[a]n opening statement . . . cannot operate to place an issue in controversy.' And statements made outside the presence of the finder of fact are no different."
Third, the Court held, "[d]enying defendants the opportunity to redirect a witness regarding an improper testimonial statement introduced during cross-examination offends the Confrontation Clause."
Fourth, the Court rejected "the Government’s argument that because Rusnak called [his wife] as a witness, her testimony necessarily could not offend the Confrontation Clause. The Government does not point to any case barring the application of Crawford and its progeny to witnesses called by defendants. Crawford repeatedly discusses '[t]estimonial statements of witnesses,' without drawing the distinction the Government seeks."
There is lots more in the opinion. It is worth a read.
