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New Ninth Circuit Case Smartly Rules that Expert Profiling is Insufficient to Prove Conspiracy

Posted By admin 2018-05-14 22:15:20

As a drug crimes specialist at both the state and federal levels, I have taken issue with a trend in recent years where trial courts have permitted prosecutors to offer a police officer to provide “expert” evidence on drug courier profiles. Drug courier profile testimony is an unverified list of general behavior patterns ostensibly engaged in by typical drug traffickers. Courts have continuously held that this type of expert opinion is helpful to the jury because it is based on the observation of seemingly innocent conduct, which only a trained individual would be able to distinguish as being indicative of criminal activity. However, I view such profiling evidence as prone to discrimination and racism, and certainly incapable on its own of proving the ultimate issue of guilt. Thankfully, the Ninth Circuit agreed with this position in a new landmark ruling in the Espinoza-Valdez decision.

In my view, drug courier profile testimony is inherently prejudicial because of the potential it has for including innocent citizens as profiled drug couriers and because simply matching a defendant to a drug profile may unfairly suggest to the jury that otherwise innocuous conduct or events demonstrate criminal activity. A drug expert’s testimony cannot substitute for witnesses who actually observed or participated in the illegal activity. Accordingly, I have argued in my cases that the unfair prejudicial effect of this kind of evidence substantially outweighs any probative value it might have, and must not be admitted at trial.

The Ninth Circuit’s new ruling in Espinoza-Valdez will help to stem the ability of prosecutors to rely exclusively on “expert” profiling evidence to prove the ultimate issue in drug cases. Espinoza-Valdez is scout case where the Ninth Circuit reversed convictions of conspiracy to import and conspiracy to distribute marijuana for insufficiency of evidence. In that case, the government raided a mountaintop, and caught the defendant. He had a radio, batteries, provisions, and other evidence of drug trafficking. The defendant had been apprehended months previously backpacking. What the government lacked was evidence of with whom he conspired, the object of the conspiracy, any agreement, or evidence of what had occurred with others. The government used solely expert testimony to explain the structure of the trafficking, role, and possible amounts.

The Ninth Circuit reasoned that while it was probable that the defendant was a scout, more was needed than an “expert profiling” to find him guilty of conspiracy beyond a reasonable doubt. Accordingly, the government may no longer rely on expert testimony of drug courier profiles alone to establish guilt.

The Ninth Circuit’s reversal for insufficiency of evidence was based on reasoning that the risk of profiles are too great, especially when the actual evidence of an agreement for a conspiracy was nonexistent. The ruling in Espinoza-Valdez acknowledges that jury members are too often presented with the testimony of a case agent whose opinion entails conclusions on ultimate issues, thereby leaving them with no real fact to find due to the expert’s credibility. See United States v. Dukagjini, 326 F.3d 45, 53 (2d Cir. 2002) (noting that a case agent acting as expert has “unmerited credibility” in the eyes of jurors).

This ruling will give defense counsel a powerful tool to object when officers are introduced as experts simply to repeat the testimony of a fact witness and place the government’s seal on that fact witness’s testimony. Federal lawyers, as well as state lawyers who focus on drug crimes, should keep this valuable new case in their pockets when trying to exclude expert evidence from police officers.

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The Ninth Circuit Fails to Remedy Serious Brady and Giglio violations

Posted By admin 2018-05-02 17:22:22

The Ninth Circuit in the recent Garrison decision handed down derisory curative instructions for serious and repeated Brady and Giglio violations. There was no outrage expressed or even demand for training or reform. The panel affirmed a conviction for conspiracy to distribute controlled substances. As a lawyer who specializes in federal drug cases, I have fought hard to remedy Brady and Giglio violations, and I am troubled that the Garrison decision could drain the defense bar of litigation tools to protect important due process rights for our clients in the future.

The appellant Garrison was a physician’s assistant. His clinic used patient recruiters to bring in homeless people to prescribe OxyContin, and the clinic then relieved patients of the pills and sold the OxyContin illegally. Much of the Garrison decision decried the dangers of opioids and lectured on the responsibilities of medical professionals rather than narrowing in on the responsibilities of our government to follow due process standards, which was the subject of this appeal.

The Brady and Giglio violations in this case were serious. Garrison presented the perfect factual matrix for the panel to reprimand government due process violations. Before and during trial, the government repeatedly failed to timely disclose information to the defense, as was required by law. For example, two government cooperators helped a third witness fabricate a false medical report and submit it to a probation officer and a judge. Though the government knew, it did not disclose notes of this conduct to the defense.

In addition, a cooperating co-defendant who was given a special deal that allowed her to continue to work in the medical field was not disclosed to the defense (or court) even after the cooperator testified in direct. It is rare that Brady and Giglio violations are so clear-cut because often the secret nature of such violations prevents the defense from discovering them and litigating.

The panel agreed with Garrison that there is no dispute that the government failed to comply with Brady and Giglio requirements. However, the panel found that the trial court’s jury instruction that the government had disclosed evidence late and that the jury could draw adverse inferences from that late disclosure remedied these violations.

This ruling is disturbingly toothless, and the panel failed to take a nuanced view on whether such jury instructions were sufficient. The district court did not provide a fulsome explanation of the due process rights at stake. Merely telling a jury that it can find a defendant–who it just heard overwhelming inculpatory evidence about, and for a serious crime that is notorious in the news–not guilty due to late disclosure misses the point. Framed this way, late disclosure appears trivial, like bad housekeeping rather than bad faith law enforcement. When fundamental due process rights are at stake, juries should be shown the big picture–the importance due process rights play in protecting the integrity of our criminal justice system. The panel’s decision in Garrison similarly lacked this critical perspective.

The Garrison decision seems to tacitly condone wholesale government Brady and Giglio violations so long as the evidence gathered supports a conviction. This, of course, will only strengthen a culture of impunity felt by some prosecutors, which the Ninth Circuit warned against only five years ago in the Olsen decision, where it concluded that the “epidemic of Brady violations” was something that “only judges can put a stop to.”

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Field Drug Test Results Found to be Inadmissible in California

Posted By admin 2018-04-29 00:50:27

In California drug cases, the prosecution will often offer chemical reagent test results as ultimate proof of the existence of a controlled substance for the purpose of obtaining an indictment in a Grand Jury proceeding. Until this week, there has been no published California case that has addressed a scientific challenge to the validity of color drug tests. As a criminal defense attorney who specializes in state and federal drug crimes, I understand that police officers often overstate the reliability of color drug test results in Grand Jury proceedings to obtain an indictment. This type of prejudice to a defendant’s due process rights to a fair Grand Jury probable cause determination is difficult to remedy. As a result, indictments are commonly filed in California drug cases where the scientific evidence showing that a substance is an illegal drug is shaky, and certainly insufficient to prove guilt beyond a reasonable doubt.

This week, the Supreme Court of California ruled in People v. Chacon that a Brady violation occurred when the government did not present known information about the unreliability of the Narcotics Identification Kit (NIK), a commonly used color drug test, to the Grand Jury. Specifically, the government failed to present information that NIK kits have in many instances produced false positive results for drugs to the Grand Jury. One officer in that proceeding testified, wrongly, that the NIK test is “100% accurate.” Broadly speaking, the Chacon case discusses the unreliability of the NIK, which police routinely use in field tests to determine if substances are drugs. Although Chacon is a state court decision, federal defense lawyers should apply the findings in this decision to their federal drug cases when a color drug test is used.

A scientifically reliable analytical testing technique should ideally have a high probability of a “true” result, and minimize the probability of a false positive. The Court in Chacon found that the NIK field color tests are not specific because they fail to discriminate between controlled substances and other compounds. As with all color testing that are used for drug identification, it is not uncommon for there to be a false positive. Limitations with color tests include: (1) they are not specific; (2) the possibility of using too much sample, thereby overwhelming the chemical reagent; and (3) contribution to the color change from other components within he sample. For instance, opium, black tar heroin, and samples containing dyes can produce problematic color test results.

The court, in compliance with its gatekeeping role under Sargon, is required to exclude invalid and unreliable expert opinion. In short, the gatekeeper’s role is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. The Court in Chacon found that the NIK colorimetric test or any similar color test does not meet the admissibility requirements of Sargon.

Chacon is a very helpful tool for the defense. State and federal defense lawyers should be extra diligent to pursue discovery regarding the reliability of color drug tests used in the field. Those results can help form the basis of suppression motions, including to challenge warrant applications that rely on those field test results to establish probable cause.

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Federal Government Given Green Light to Prosecute Medical Marijuana Growers in California

Posted By admin 2018-04-23 01:19:47

As a criminal defense attorney who specializes in drug offences, I am fascinated by the conflicting state and federal laws on the use and cultivation of marijuana in California. My law firm is based on Los Angeles, a city that has long been at the forefront of efforts to reform cannabis laws. In addition, I am among a minority of defense lawyers in California who work on drug cases at both the state and federal levels. The nuances of state and federal law regarding marijuana are critical to my practice, but also the marijuana industry. A significant new decision from the Ninth Circuit provides important guidance on how courts in California will deal with federal prosecutions of marijuana cases in the Golden State.

The US Court of Appeals for the Ninth Circuit ruled in United States v. Gilmore that the federal government can prosecute cases where marijuana is grown on federal land in California. This may come as a surprise to some because marijuana is legal for both medical and recreational use in California. However, marijuana remains a Schedule I prohibited drug under federal law, and the U.S. Constitution provides that the federal government is free to enforce its laws on federal lands.

The Ninth Circuit’s decision was in the case of Russell Gilmore and Richard Hemsley, who were charged with conspiracy and growing marijuana illegally on land under control of a federal agency in El Dorado County, east of Sacramento. The Ninth Circuit in Gilmore affirmed the district court’s denial of a motion to enjoin the federal government’s prosecution.

The defendants in Gilmore tried to stop the prosecution of their case under the Consolidated Appropriations Act, which Congress passed to bar the Department of Justice from using government funds in ways that prevent states from implementing medical marijuana laws. In my view, Congress’ prohibition could reasonably be interpreted as banning or at least discouraging prosecutions of medical marijuana growers in states where marijuana is legally grown and consumed. This reading would allow states to implement local medical marijuana laws without federal interference.

However, the Ninth Circuit found in Gilmore that even if state law tolerated marijuana cultivation on public land, enforcing federal law that prohibits cultivation on federal land does not “prevent” California from otherwise implementing its medical marijuana regime. The result in Gilmore was that the defendants, who did not even know that their medical marijuana plants were on federal land, were subject to prosecution by the federal government.

The decision was an unexpected turn for the defendants, as well as some cannabis attorneys and the marijuana industry in general. The U.S. Justice Department had laid off prosecutions for medical marijuana cultivation in the Obama era, and California marijuana bloomed in the meantime.

However, the ruling was not surprising to me. In an earlier decision, United States v. McIntosh, the Ninth Circuit concluded that Congress’ prohibition applies narrowly to those specific rules of state law that authorize the use, distribution, possession or cultivation of medical marijuana. Accordingly, the Ninth Circuit’s interpretation of Congress’ prohibition is that it does not limit the U.S. government’s ability to enforce federal drug laws on federal land.

In addition, U.S. Attorney General Jeff Sessions recently rescinded Obama-era guidance that generally allowed states to implement their own marijuana laws without federal interference. The Justice Department issued a memo on marijuana enforcement in January 2018 which denounced the Obama administration’s guidance on marijuana laws as “undermining the rule of law”. The memo directed all U.S. Attorneys to use previously established prosecutorial principles to enforce federal drug laws, which, of course, reflected a tough on marijuana mentality.

The federal government’s decision to prosecute in Gilmore seems to reflect a revived interest in Washington to be tough on marijuana. The Ninth Circuit’s ruling shows that it is still important for California’s marijuana industry to closely follow federal law pertaining to cannabis, even though recreational use of cannabis is legal at the state level. Participants in California’s marijuana industry should seek advice from an attorney who specializes in both state and federal drug crimes to better understand the nuances of cannabis law.

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California’s Amended Firearm Use Enhancements Open a Door for Skillful Advocacy

Posted By admin 2018-03-29 20:08:21

Californians are no longer subject to a mandatory sentence enhancement for use of a firearm while committing or attempting to commit a felony under state law. Senate Bill 620, effective as of January 1, 2018, amended section 12022.53(h) of the Penal Code of California to make firearm use enhancement discretionary. A state court judge in California may strike or dismiss a firearm use enhancement if doing so would be in the interest of justice. This stands in contrast to federal law, which still requires a mandatory-minimum prison term for possessing a gun during commission of a drug offense or a violent crime.

In California, it is more important than ever for a person charged with a felony involving a firearm to retain an attorney who has specialized knowledge of firearm use enhancements. Defendants and their attorneys now have an opportunity to persuade state courts against imposing the firearm use enhancement. This even includes some cases where firearms enhancements have been ordered. The California Court of Appeal for the Second District just ruled this month in Almanza that the amendment applies retroactively to benefit defendants whose cases were on appeal when the law changed.

Before the amendment, Penal Code 12022.53 automatically added to a sentence for certain violent felonies 10 years’ jail for “using” a gun, 20 years’ jail for firing a gun, or 25 years’ jail to a life sentence for killing or seriously injuring another person with a gun. For remaining felonies, individuals who personally used a firearm or assault weapon in the commission of a crime were automatically subject to an additional and consecutive prison term of 3, 4, or 10 years for a firearm, or 5, 6 or 10 years for an assault weapon. It is laudable and sensible that firearms enhancements are no longer automatic.

In California, mandatory firearms enhancements resulted in countless unreasonably high sentences, especially in cases where the firearms were not operable or loaded. The social costs of mandatory firearms enhancements outweighed any purported public safety benefit. In debate about Senate Bill 620, Californians for Safety and Justice presented research to the Senate showing that firearms enhancements disproportionately increased racial disparities in California’s prison populations, and greatly increased the population of incarcerated persons, without deterring crime.

As a defense attorney in Los Angeles who specializes in violent crimes, I also saw firsthand how firearms enhancements affect people already serving their sentences. Enhanced sentences served for firearms use are sometimes the only obstacle to early parole for some persons under Proposition 57. For example, an individual convicted of assault with a firearm on a peace officer may be subject to an additional term under Penal Code section 12022.53. Any violation of PC 12022.53 is deemed a violent felony under PC 667.5(c), which makes that individual ineligible for early parole consideration under Proposition 57. However, without the additional term under PC 12022.53, that same offender would be eligible for early parole under Proposition 57 because assault with a firearm on a peace officer is not a violent felony under Penal Code section 667.5(c).

Discretionary firearm enhancements allow courts to tailor sentences to each case and offender. However, it is likely that firearm use enhancements will continue to be imposed in many-if not most-state felonies where firearms are used. One reason is that courts will carefully examine the aggravating features of cases involving firearms to decide what enhancements should apply. For instance, in Almanza, the Court decided not to remand the case to trial court to reconsider imposing a lower sentence without firearm enhancements in part because of the case’s egregious facts.

Defense lawyers must respond by taking a meticulous approach to trial advocacy, which includes putting on the record all mitigating factors in their cases that would weigh in favour of striking firearms enhancements. This includes thinking ahead to how firearms enhancements affect parole eligibility. Such submissions are crucial to persuade a trial judge to strike or dismiss a firearms use enhancement, as well as to protect the record for appeal.

The changes to section 12022.53 create room for defense attorneys to advocate for lower, more reasonable sentences for their clients. Individuals charged with felonies involving firearms should look for a lawyer who has a technical understanding of firearms enhancements, preferably under both state and federal law. Courts will be listening closely to defense attorneys’ submissions against firearms enhancements, and attorneys must be prepared at all stages of litigation to address how firearms enhancements affect several dimensions of a criminal case.

Karen L. Goldstein specializes in state and federal violent crimes as well as felonies where firearms are typically used, such as drug offenses. Please call (888) 445-6313 for more information.

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