New 9th Circuit Opinion: Prosecutorial Misconduct
In a notable recent decision on prosecutorial misconduct, United States v. Citali-Flores, 14-50027, 2015 WL 5569098 (9th Cir. Sept. 23, 2015), the Ninth Circuit held error, albeit harmless, where the prosecutor, in closing argument, misstated evidence.
There, Flores was indicted with importation of marijuana into the United States in violation of 21 U.S.C. §§952 and 960. See id. at 3. At trial, Flores testified that she was “carrying” and “bringing” marijuana into Mexico, not the United States, after being questioned about a Facebook message found that she wrote. Id. at 5. The prosecutor, however, argued, in closing arguments, that Flores testified she was “carrying and bringing marijuana from Mexico into the United States.” Id. at 8.
In holding that the prosecutor’s argument was improper, the Ninth Circuit emphasized that the misstated evidence invited the jury to improperly “convict the defendant based on her admission to carrying marijuana to Mexico” when exportation was not even the charge. Id. at 2.
Although the conviction was affirmed, on plain error review, Judge Wardlaw noted: “Once again, An Assistant United Sttes Attorney for the Southern District of California overstepped the boundaries of permissible questioning and argument.” Id. at 15. Moreover, Judge Pregerson, in dissent, would have likely reversed: “These serious violations do not warrant invocation of the plain error rule.”Id.at 15.
It is truly, at least in my rudimentary thinking, a remarkable, especially given our state’s political history, and monumental step forward.
So, we all know at this point that if you have a conviction for simple or felony marijuana simple possession in Arizona, you can now do something about it.
For those of us who live near or spend our some of our vacation time in these Western States, dominated by beautiful federally-controlled lands
Arizona courts don’t appoint public defenders or indigent defense attorneys on misdemeanors generally unless the prosecutor is looking for jail time.
The Sixth Amendment of the U.S Constitution provides each person investigated or arrested by the police, or charged with a crime, the right to an attorney.
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