Pubdate: Mon, 02 Jun 2014
Source: San Diego Union Tribune (CA)
Copyright: 2014 Union-Tribune Publishing Co.
Contact:  http://www.utsandiego.com/
Details: http://www.mapinc.org/media/386
Note: Seldom prints LTEs from outside it's circulation area.
Author: Kristina Davis

FEDERAL PROSECUTORS REPRIMANDED FOR ERRORS

SAN DIEGO - Twice in the past year, federal appeals court judges have
reprimanded federal prosecutors in San Diego for their conduct during
trial.

Both cases involved cross-border marijuana trafficking. On Wednesday,
the judges with the 9th U.S. Circuit Court of Appeals ruled that a
prosecutor unfairly questioned the accused smuggler on the stand, and
they ordered the defendant to be resentenced. And in the other case,
the judges said a prosecutor made statements in his closing arguments
that were improper, prompting the U.S. Attorney's Office to ask that
the conviction be reversed.

"The prosecutor's job isn't just to win, but to win fairly, staying
well within the rules," the judges wrote in their order in the latter
case.

The U.S. Attorney's Office in both cases acknowledged the errors and
promised to use the incidents to further train its lawyers - a
response that in turn earned praise from the 9th Circuit judges.

"We always strive to do justice above all, and to uphold the high
ethical and legal standards to which we subscribe," U.S. Attorney
Laura Duffy said in a statement to U-T San Diego. "While the court
recognized errors on our part, it also commended my office for our
response, which includes additional training for prosecutors."

Duffy did not elaborate on the changes to training.

The most recent case involves the prosecution of suspected trafficker
Kevin Rangel Guzman, who was arrested in 2011 at the Otay Mesa Port of
Entry with 200 pounds of marijuana in the car he was driving.

He claimed he didn't know the drugs were there.

In his trial, he told a "convoluted tale that differed substantially
from the story he had given border officers immediately after his
arrest," the opinion says.

When Assistant U.S. Attorney Joanna Curtis cross-examined him on the
stand, she repeatedly referred to contradictory statements Rangel had
made in an earlier interview with her and a U.S. Homeland Security
agent.

Although the district judge and the defense lawyer did not object to
it then, that kind of questioning isn't allowed in trial, because the
prosecutor was acting as a witness, the appeals court found.

The proper way to contradict the defendant's statements would have
been to put the Homeland Security agent on the stand to testify about
the earlier interview.

"There can be no doubt that the (prosecutor) was asking the jury to
choose whether to believe her or the defendant. This was highly
improper and unfair to the defendant," the opinion reads.

The 9th Circuit judges ruled that while the prosecutorial error didn't
affect Rangel's conviction, it may have affected the three-year
sentence he received. The judges ordered that he be
resentenced.

After the January oral arguments in front of the 9th Circuit, Duffy
told the court that she instituted a semi-monthly training update for
criminal attorneys because of the error.

The judges commended Duffy "for her forthrightness" and hoped "that
her example will be followed by prosecutors across the circuit," they
wrote.

Duffy's office had to acknowledge similar error just months earlier,
after blistering oral arguments in front of the 9th Circuit on a
trafficking case involving truck driver John Maloney.

At a Border Patrol checkpoint in Imperial County, agents found 321
pounds of marijuana in the sleeping area of Maloney's tractor-trailer.
He said he was delivering a load of Clorox and did not know about the
drugs.

During closing arguments, Assistant U.S. Attorney Stephen Miller told
the jury that Maloney must have lied about the intent of the trip
because he had no luggage with him at the time of his arrest.

The defense asked to rebut that argument, saying the issue of luggage
was never entered into evidence in the trial, but U.S. District Judge
Dana Sabraw denied the motion.

A divided three-judge panel of the 9th Circuit denied the appeal, but
a larger panel decided to hear the case in September. The 11-judge
panel laid into Miller's "sandbagging" tactic and questioned whether
it was prosecutorial misconduct.

"Why have (a prosecutor) pull a stunt like that? ... What do you teach
your young lawyers?" asked Chief Judge Alex Kozinski, who added that
Duffy's entire office should watch video of the arguments as a
learning tool.

Duffy and her senior attorneys did. After watching, she acknowledged
the error in a motion and asked that Maloney's conviction be reversed
and be sent back possibly for another trial. Duffy also said video of
the arguments would be used in training to make sure all attorneys
"stay well within these rules."

Maloney's lawyer, John Lemon, said this week that the cases appear to
be isolated incidents, that he doesn't see a pervasive problem at the
U.S. Attorney's Office.

"I don't think it was anything overtly malicious," Lemon said.
However, he said the prosecutor should have admitted the error much
earlier and not waited for the 9th Circuit's reprimand.

Maloney, who was originally sentenced to more than five years in
prison, is waiting for a new trial.
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