HEARSAY - CRAWFORD - EVIDENCE CODE SECTION 356 SURVIVES
People v. Parrish (Second Dist., 6/19/07, B1888975) 07 C.D.O.S. 7095
When defendant introduced part of the co-defendant's statement to police, DA could introduce rest of statement under Evidence Code section 356 ("Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party;... and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.") Crawford does not abrogate Evidence Code section 356, the court holds, analogizing to the rule of forfeiture by wrongdoing, and citing to U. S. v. Moussaoui (2004) 382 F.3d 453 (Fed. Rule of Evid. 106).
INDICTMENT - DISMISSAL - INVESTIGATION OF FIRST AMENDMENT-PROTECTED ORGANIZATION
United States v. Mayer (9th Cir. 6/6/07, 06-50481) 07 C.D.O.S. 7068
In amended opinion, panel holds that trial court did not err in refusing to dismiss indictment on grounds that investigation that led to defendant's arrest on charges of travel with intent to engage in illicit sexual conduct under 18 U.S.C. section 2423(b) violated First, Fourth, and Fifth Amendments on grounds that government lacked reasonable suspicion when it sent an undercover agent to meetings of the North American Man/Boy Love Association (NAMBLA) and that agent improperly instigated criminal conduct among its members.
Dismissal of indictment may be appropriate when the government has engaged in outrageous misconduct (United States v. Russell, 411 U.S. 423, 432 (1973)), selective prosecution (United States v. Wilson, 639 F.2d 500, 503 (9th Cir. 1981)), or when the statute is unconstitutional on its face or as applied. (See United States v. Lopez, 514 U.S. 549 (1995)), or when evidence was seized in violation of Fourth Amendment, or speedy trial is violated, or indictment is defective. First Amendment violations in investigation are analyzed under Fourth Amendment because court must "examine what is 'unreasonable' in the light of the values of freedom of expression." (Roaden v. Kentucky, 413 U.S. 496, 504 (1973).) However, "even if dismissal of the indictment were available on purely First Amendment grounds and our precedent suggests otherwise Mayer has not alleged facts sufficient to suggest that the investigation actually violated any protected associational or expressive rights. See United States v. Gering, 716 F.2d 615, 620 (9th Cir. 1983)." Even though FBI discovered some members' names, it did not seek to compel disclosure of membership lists and its actions were less intrusive than in N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) and Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963).
Court declines to create an "agent provocateur" rule saying that the government may not infiltrate a First Amendment-protected organization and provoke criminal conduct, because existing law protects adequately against harm from agent's clandestine activity, noting the existence of civil rights lawsuits. Any disruption of association's activities through undercover officer's actions can also be addressed by 1983 action.
Court also declines to impose a reasonable suspicion standard for investigations that pose risk of interfering with First Amendment rights. Such violations can also be addressed under existing law. Court discusses limitations on undercover investigations, which basically require good faith: that the investigation not be for the purpose of abridging first amendment freedoms and that undercover informers adhere scrupulously to the scope of a defendant's invitation to participate in the organization. Court does clarify that good faith requires that the investigation be justified by a legitimate law enforcement purpose. This investigation met that standard, because its purpose was to investigate sex tourism.
No outrageous government misconduct justifying dismissal present here. C.f., Greene v. United States, 454 F.2d 783 (9th Cir. 1971), where the government supplied the equipment and raw material for a bootlegging operation and was the defendant's sole customer. Court acknowledges that the FBI constructed a fake travel agency web site, and lied about making travel arrangements, but it did not pay for the trip, coerce defendant into buying a ticket, or plant the idea into his mind. "Mayer was certainly a willing and experienced participant in similar activities."
PRIORS - UNCHARGED OFFENSES - EVIDENCE FROM UNRELIABLE WITNESS
United States v. Hollis (9th Cir. 6/20/07, 05-30611) 07 C.D.O.S. 7062
Argument that evidence of uncharged acts came from drug dealer cooperating with the government and was therefore unreliable went to weight, not admissibility, and jury was instructed to view it with "greater caution." That was sufficient. Testimony not unduly prejudicial, and jury instructed to consider it only to show intent and knowledge.
SENTENCING (APPRENDI) - COCAINE BASE AND CRACK
United States v. Hollis (9th Cir. 6/20/07, 05-30611) 07 C.D.O.S. 7062
Because Congress intended to distinguish between powder cocaine and smokeable cocaine base known as "crack" or "rock" cocaine, indictment must charge and jury must find "crack" in order to trigger enhanced penalties associated with cocaine base. While Apprendi error occurred here, because indictment did not charge nor did the jury find "crack," error harmless beyond reasonable doubt. There was overwhelming and uncontradicted evidence at trial that the substance Hollis distributed was crack.
