Prejudice Flashcards
Even accepting Mark Owens’s translations, the texts were still super inculpatory. I mean, the jury was supposed to assume that it was just a coincidence that your client was sending these extremely suspicious-sounding texts on the very day he was found with drugs in his car?
That was the government’s argument, your honor. But at trial, Mr. Luna offered a “plausible” alternative explanation at trial, which is all that is required to prevent the government from meeting the demanding harmless beyond a reasonable doubt standard. We know that from Caruto, which says that the evidence supporting an acquittal the evidence supporting acquittal need not be “particularly compelling,” as long as it is “plausible.” Caruto, 532 F.3d at 832. And here, the defense theory would be that the activity discussed in the texts and the drug runners’ decision to hide drugs wasn’t coincidental. The defense theory was that in the texts, Mr. Luna was talking about working in the United States. And people who have to regularly enter the United States for work are better targets for drug runners, because they individual is likely to cross frequently and go to a predictable location, namely, their place of work.
Length of deliberations = only stuck on the knowledge of drug type and quantity issue.
The timeline suggests that knowledge of drug type and quantity was the final sticking point among the jurors, but not that it was the only sticking point. The jury did not even asked for clarification about knowledge of drug type and quantity only after several hours of deliberation, suggesting that they did not reach a point of needing clarification until then. And they deliberated for another hour after receiving the answer to their question, suggesting that that last hour was devoted to parsing knowledge of drug type and quantity.
Didn’t stress an inference of guilt:.
I disagree, your honor. This Court has found this prong met when the prosecutor’s comments go to a “key issue” or in the case, as the Court put it in Caruto. And here, the key question was whether the phone messages proved knowledge, or whether they were ambiguous enough to support reasonable doubt. So the suggestion that Mr. Luna could easily clear up the ambiguity at the heart of his reasonable doubt defense, if he would only testify. By drawing attention to Mr. Luna’s silence on that key issue, the prosecutor risked having the jurors wonder: Why wouldn’t Mr. Luna clear up
This Court’s focus on whether the comments go to key issue or central question makes sense. Comments on silence are dangerous because they “risk[] speculation by a juror that the defendant must be guilty or else he would have testified.” United States v. Castillo, 866 F.2d 1071, 1083–84 (9th Cir. 1988). By pointing out that Mr. Luna didn’t provide clarifying testimony on the key issue of what the text messages meant, the prosecutor’s remarks risked speculation by a juror that the text messages must be about drugs or else Mr. Luna would have testified about their meaning.
But all the evidence you’re citing was properly admitted, right? What does any of it have to do with whether the prosecutor stressed an inference of guilt to the jury?
This Court has found this prong met when the prosecutor’s comments go to a “key issue” or “central question in the case.” United States v. Caruto, 532 F.3d 822, 832 (9th Cir. 2008). And here, as the government stated in closing, knowledge was the “one thing in dispute” in this case, and the number one battle ground when it came to knowledge was the meaning of those text messages. To create reasonable doubt, Mr. Luna had to show that those text messages were ambiguous enough to support an acquittal. So the suggestion that Mr. Luna could easily clear up that ambiguity and tell us exactly what he meant, if he would only testify, went to this key part of Mr. Luna’s defense.
Not extensive.
The comments here were at least as extensive as comments in Newman. Like the comments here, the comments in Newman involved four questions and answers posed to one witness in one part of the witness examination. But here, the comments were even more extensive in that the trial was shorter (2.5 days versus 5 days in Newman). And the prosecutor used those comments to develop a theme that he returned to three separate times. The very first questions the prosecutor asked after qualifying Ms. Monroy were about the benefits of in-court interpretation, and then returned to the theme a second time to ask about spoken statements, then returned to the theme a third time in asking about written statements. By reiterating the theme three separate times in three separate places, the prosecutor extensively commented on silence.
But wasn’t the testimony you’re complaining about just a few questions in a multi-day, 12-witness trial? And weren’t they all just concentrated in one part of the examination?
Yes, your honor, but this court recognized in Newman that comparable remarks still prejudice defendants. The comments in Newman involved four questions and answers posed to one witness during a five-day trial. This Court deemed those comments both “extensive” and prejudicial.
Here, the prosecutor’s comments were even more prominent, because the prosecutor wove the comments into an overall theme that the prosecutor returned to multiple times over the course of several transcript pages. The very first questions the prosecutor asked after qualifying Ms. Monroy were about the benefits of in-court interpretation. The prosecutor returned to that theme a second time when asking about recorded statements. And then the prosecutor returned a third time to that theme when asking about written statements. By reiterating the theme three separate times in three separate places, the prosecutor extensively commented on silence.
Are your direct-comment-on-silence cases like Newton really on point here? Shouldn’t we assume that direct comments on silence are inherently more prejudicial and require a heightened showing for indirect comments?
No, your honor, because an indirect Griffin error “naturally and necessarily” communicates the same information as a direct Griffin error, and this Court’s precedents apply the same prejudice test to both without distinction. Let me break that down. To establish an indirect Griffin error, the defendant must show that the jury would “naturally and necessarily” understand the comment as a comment on silence. Thus, while direct and indirect Griffin errors take different forms, they definitionally communicate the same information and are therefore equally prejudicial. Additionally, the government hasn’t cited any case support for drawing this distinction; rather, this court applies the same prejudice test to both.
How did the comment undermine Mr. Luna’s defense?:
By suggesting that Mr. Luna’s testimony could clear up the ambiguities at the heart of his reasonable doubt defense. The defense contended that the statements’ meaning was too ambiguous to prove knowledge—Mr. Luna and his neighbor may instead have been coordinating unauthorized labor in the United States, expressing relief when Mr. Luna made it through the border with his visa intact. See 3-ER-546–52. The prosecutor’s comments on Mr. Luna’s silence undermined that defense by implying to the jury that there was an easy way to lay the messages’ ambiguity to rest: Mr. Luna could provide “in-court” testimony. See 3-ER-311–316. The interpreter could then simply “ask[ ] [Mr. Luna] what he . . . meant or seek[ ] clarification from [him].” 3-ER-315. That comment “risked speculation by a juror that the defendant must be guilty or else he would have testified.” United States v. Castillo, 866 F.2d 1071, 1083–84 (9th Cir. 1988)
But how could a jury find Mr. Luna innocent on this record? Think of all the bad evidence, which I will list for you now!
I hear your honor’s concerns, but Caruto explains that because the heightened “harmless-beyond-a-reasonable-doubt” standard applies here, the evidence supporting acquittal need not be “particularly compelling,” as long as it is “plausible.” Caruto, 532 F.3d at 832. And here, . Both cases involved comparable drug value, drug quantity, and control over the car, as well as potentially inculpatory statements whose meaning the parties contested. And as in those cases, Mr. Luna here had a plausible alternative theory for how drugs made it into his car. He presented four witnesses who independently testified to evidence tending to show that he was in the market for a car repair around the time he crossed, and he theorized that a mechanic working on his car could have hidden the drugs. He also showed that the drug smugglers implanted a GPS device in his car, explaining how they intended to find the drugs on the other side.
But the statements here were vastly different from the statements in Velarde-Gomez and Caruto, right? Those were just a few mildly suspicious statements post-arrest. These are dozens and dozens of text messages that appear to be about drug trafficking.:
I disagree, your honor. In Velarde-Gomez, for instance, this Court acknowledged that the inconsistencies in Mr. Velarde’s post-arrest statement were serious enough that “a jury could rely solely on Mr. Velarde’s inconsistent statements to reach a guilty verdict.” Yet, because he offered a plausible alternative explanation for those inconsistencies (the language barrier between him and the police officer), a jury could also plausibly acquit. The same is true here. Mr. Luna offered a plausible alternative explanation for the texts, which was that he was coordinating unauthorized work in the United States and expressing relief when he made it past immigration officials without having his visa taken away.
Wasn’t the evidence of guilt overwhelming?:
No, your honor. Caruto explains that because the heightened “harmless-beyond-a-reasonable-doubt” standard applies here, the evidence supporting acquittal need not be “particularly compelling,” as long as it is “plausible.” Caruto, 532 F.3d at 832. And here, Mr. Luna’s defense was at least as plausible as the defense in Caruto and Velarde-Gomez. Both cases involved comparable drug value, drug quantity, and control over the car, as well as potentially inculpatory statements whose meaning the parties contested. And as in those cases, Mr. Luna here had a plausible alternative theory for how drugs made it into his car. He presented four witnesses who independently testified to evidence tending to show that he was in the market for a car repair around the time he crossed, and he theorized that a mechanic working on his car could have hidden the drugs. He also showed that the drug smugglers implanted a GPS device in his car, explaining how they intended to find the drugs on the other side.
Didn’t the judge give two curative instructions by saying that the jury couldn’t draw an adverse inference from Mr. Luna’s failure to testify?
The court did give two general instructions several hours after the improper comments, but those instructions did not neutralize the harm here because they were given contemporaneously and didn’t reference the statement. On the other hand, the court’s contemporaneous reaction was to overrule Mr. Luna’s counsel’s objection. That strongly signaled to the jury that the questioning was proper, particularly because the court had earlier instructed the jury that “[i]f I overrule the objection, that means I disagree, I think that the rules do permit a question to be answered.” 2-ER-102.
This is precisely the distinction that this Court recognized in Foster. Foster noted that a comment on silence may be harmless when a court “promptly sustains a timely objection to a question concerning . . . silence, instructs the jury to disregard the question, and gives a curative jury instruction.” Foster, 985 F.2d at 468. But it found that the court did not neutralize the harm in that case because the court “overrule[d] a timely objection” and “admit[ed] [the] testimony acknowledging . . . silence.” Id. So too here.
Your client received a great sentence!
I can see why your honor would surmise that from the guidelines range, but in fact, every judge in our district agrees that the guidelines drastically overstate the appropriate sentence for the kind of drug importation offense charged here. And so a 100 month sentence for someone without prior convictions is actually quite high for our district. And even if Mr. Luna decides based on his safety-valve proffer that he does not want to go to trial again, even having that chance to submit post-sentencing Pepper evidence would be valuable to him.
You didn’t request a curative instruction:
Correct, your honor, because after the court overruled our objection, there was no grounds for requesting a remedy. The court had already said that no right had been violated.
But couldn’t you have asked the court to give an instruction out of an abundance of caution?
I don’t believe so, your honor. I don’t think there’s a legal basis for asking the court to tell the jury to disregard testimony when the court has held that that testimony is proper.
