OPENING BRIEF OF DEFENDANT-APPELLANT

No. 14-30062United States District Court No. CR 13-37-M-DWM

IN THEUNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT_________________________________________________________________

UNITED STATES OF AMERICA,Plaintiff-Appellee,

-vs-

JORDAN LINN GRAHAM,Defendant-Appellant.

_________________________________________________________________

OPENING BRIEF OF DEFENDANT-APPELLANT_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

HONORABLE DONALD W. MOLLOYUNITED STATES DISTRICT JUDGE, PRESIDING

ANTHONY R. GALLAGHERFederal Defender**MICHAEL DONAHOESenior LitigatorFederal Defenders of Montana50 West 14th Street, Suite 300Helena, Montana 59601Telephone: (406) 449-8381

SUBMITTED: October 17, 2014 **Counsel for Defendant-Appellant

Case: 14-30062 10/17/2014 ID: 9281330 DktEntry: 4-2 Page: 1 of 122

TABLE OF CONTENTS

Page No.

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

I. JURISDICTION AND TIMELINESS OF THIS APPEAL. . . . . . . . . . . . . . 1

(A) Jurisdiction in the District Court Below.. . . . . . . . . . . . . . . . . . . . . . . 1(B) Jurisdiction in This Court and Timeliness of the Appeal.. . . . . . . . . . 2

II. STATEMENT OF BAIL STATUS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . 3

IV. STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

(A) Relevant Events Between Saturday, June 29 and Tuesday, July 16, 2013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

(B) Procedural Summary.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

(C) Background Narrative Relevant To The Issues Presented.. . . . . . . . 21

V. STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

(A) WHETHER THE DISTRICT COURT ERRED IN FAILING TO INSPECT THE GRAND JURY MINUTES AND WHETHER THIS COURT SHOULD ORDER AND CONDUCT THAT INSPECTION NOW.. . . . . . . . . 45

i


(B) WHETHER THE GOVERNMENT SHOULD HAVE BEEN REQUIRED TO PROVE A NON-VINDICTIVE MOTIVE FOR INCREASING THE CHARGE TO FIRST DEGREE MURDER AFTER APPELLANT SUCCESSFULLY ARGUED FOR BAIL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

(C) WHETHER APPELLANT SHOULD BE ENTITLED TO WITHDRAW HER GUILTY PLEA... . . . . . . . . . . . . . . . . . . . . 45

(D) WHETHER THE GOVERNMENT’S INTRODUCTIONOF APPELLANT’S JULY 16TH STATEMENT ON ITS CASE IN CHIEF AS SUBSTANTIVE EVIDENCE WARRANTED A RULE 29 DISMISSAL OF THE MURDER CHARGES BECAUSE THE GOVERNMENT AFFIRMATIVELY SHOWED PROVOCATION/HEAT OF PASSION. OR PUT DIFFERENTLY: WHETHER THE GOVERNMENT COMPROMISED ITS OWN CASE ON MURDER BY PROVING CIRCUMSTANCES IT WAS RESPONSIBLE FOR DISPROVING BEYOND A REASONABLE DOUBT... . . . . . . . . . . . . . . . . . . . . . 45

(E) WHETHER APPELLANT’S BASE OFFENSE LEVEL WAS PROPERLY ENHANCED FOR OBSTRUCTION OF JUSTICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

(F) WHETHER APPELLANT OUGHT TO HAVE BEEN AWARDED A DOWNWARD ADJUSTMENT FOR ACCEPTANCE OF RESPONSIBILITY.. . . . . . . . . . . . . . . . . . . . . 46

VI. SUMMARY OF THE ARGUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

ii


VII. ARGUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

(A) THE GRAND JURY MINUTES NEED TO BE INSPECTED TO DETERMINE THE GOVERNMENT’S ACTUAL THEORY FOR PREMEDITATION BECAUSE THE COURT CANNOT PROPERLY EVALUATE APPELLANT’S PROSECUTOR MISCONDUCT CLAIMS OF EVIDENCE MANIPULATION, VINDICTIVENESS, AND AMBUSH UNTIL THE GOVERNMENT’S ORIGINAL GRAND JURY PROBABLE CAUSE FOR THE FIRST DEGREE MURDER CHARGE IS ESTABLISHED... . . . . . . . . . . . . . . . . . . . 49

(1) Reviewability-Exhaustion. . . . . . . . . . . . . . . . . . . . . . . . . . . . 49(2) Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50(3) Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

(B) APPELLANT MADE A SUFFICIENT SHOWING THAT THE FIRST DEGREE MURDER CHARGE WAS BROUGHT VINDICTIVELY BECAUSE THE GOVERNMENT INCREASED HER CHARGES TO INCLUDE FIRST DEGREE MURDER AFTER SHE SUCCESSFULLY ARGUED FOR PRETRIAL RELEASE OVER THE GOVERNMENT’S OBJECTION. THEREFORE THE DISTRICT COURT SHOULD HAVE REQUIRED THE UNITED STATES TO PROVE A NON-VINDICTIVE MOTIVE FOR BRINGING THE FIRST DEGREE MURDER CHARGE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55


iii


(C) APPELLANT SHOULD HAVE BEEN ALLOWED TO WITHDRAW HER GUILTY PLEA FOR ANY ONE, OR A COMBINATION OF, THREE REASONS: (1) THE GOVERNMENT BREACHED THE ORAL PLEA AGREEMENT; (2) THERE WAS NO MEETING OF THE MINDS ON AN ESSENTIAL TERM OF THE AGREEMENT; (3) IN ANY CASE IT WAS ONLY “FAIR AND JUST” TO ALLOW APPELLANT TO WITHDRAW HER PLEA WHETHER THERE WAS A PLEA AGREEMENT OR NOT.. . . . . . . . . . . . . . 64


(D) THE GOVERNMENT’S POSITIVE PROOF ON ITS CASE IN CHIEF THAT APPELLANT ACTED ON ADEQUATE PROVOCATION AND IN A HEAT OF PASSION SHOULD HAVE RESULTED IN THE RULE 29 DISMISSAL OF THE MURDER COUNTS AND THIS COURT SHOULD ORDER THAT NOW.. . . . . . . . . . 77


(E) APPELLANT’S GUIDELINE LEVEL SHOULD NOT HAVE BEEN ENHANCED TWO POINTS FOR OBSTRUCTION OF JUSTICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83


iv


(F) APPELLANT SHOULD HAVE BEEN AWARDED A TWO POINT DOWNWARD ADJUSTMENT FOR ACCEPTANCE OF RESPONSIBILITY AND WITHOUT IT APPELLANT’S SENTENCE IS PROCEDURALLY DEFECTIVE AND UNREASONABLE.. . . . . 87


VIII. REQUESTED RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

IX. STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

X. CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

XI. CERTIFICATE OF MAILING.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

v


TABLE OF AUTHORITIESPage No.

TABLE OF CASES

Allen v. Hadden, 57 F.3d 1529 (10th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Blackledge v Perry, 417 U.S. 21 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 57, 59

Bordenkircher v. Hayes 434 U.S. 357 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Bridges v. Wixon, 326 U.S. 135, 149 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Brooks v. United States, 450 U.S. 927 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Burks v. United States, 437 U.S. 1 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 82

Curley v. United States, 160 F.2d 229 (D.C. Cir. 1947), cert. denied, 331 U.S. 837 (1947).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Diaz v. United States, 223 U.S. 442 (1912). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80-82

Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

In re Ellis, 356 F.3d 1198 (9th Cir. 2004) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 78, 81

vi


Lafler v. Cooper, 132 S.Ct. 1376 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 77

McCarthy v. United States, 394 U.S. 459 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Miranda v. Arizona, 384 U.S. 436 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 36

Missouri v. Frye, 132 S.Ct. 1399 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 77

Oregon v. Kennedy, 456 U.S. 667 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Padilla v. Kentucky, 559 U.S. 356 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 55

Russell v. Rolfs, 893 F.2d 1033 (9th Cir. 1990) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Russell v. United States, 369 U.S. 749 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Salas v. United States, 529 F.2d 1276 (9th Cir. 1975) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . 68

Santobello v. New York, 404 U.S. 257 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 71, 72

Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54

vii


United States v. Andrews, 633 F.2d 449 (6th Cir. 1980) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

United States v. Begay, 673 F.3d 1038 (9th Cir. 2011) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . 36, 51

United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

United States v. Clark, 218 F.3d 1092 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

United States v. Cooper, 70 F.3d 563 (10th Cir. 1995) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

United States v. Davis, CR 13-28-GF-DLC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

United States v. DeMarco, 550 F.2d 1224 (9th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 59

United States v. Deputee, CR 07-64-BLG-RFC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

United States v. Fisch, 863 F.2d 690 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

United States v. Foster, 711 F.2d 871 (9th Cir. 1983) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

United States v. Franco-Lopez, 312 F.3d 984 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

viii


United States v. Garcia-Valenzuela, 232 F.3d 1003 (9th Cir. 2000) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

United States v. Gonzalez, 16 F.3d 985 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 87, 88

United States v. Goodwin, 457 U.S. 368 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 60

United States v. Hanson, 264 F.3d 988 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 69

United States v. Hawley, 93 F.3d 682 (10th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

United States v. Ingram, 979 F.2d 1179 (7th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

United States v. Jenkins, 275 F.3d 283 (3rd Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

United States v. Jenkins, 504 F.3d 694 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 59, 63

United States v. Johnson, 187 F.3d 1129 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

United States v. LaFleur, 971 F.2d 200 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

ix


United States v. Luca, 183 F.3d 1018 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

United States v. Nukida, 8 F.3d 665 (9th Cir. 1993) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

United States v. Ortega, 203 F.3d 675 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

United States v. Partida-Parra, 859 F.2d 629 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

United States v. Paul, 37 F.3d 496, 499 (9th Cir. 1994) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

United States v. Peterson, 121 F.Supp.2d 1309 (D.Mont. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Plummer, 941 F.2d 799 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

United States v. Quintero, 21 F.3d 885 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 82

United States v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 57, 58

United States v. Showalter, 569 F.3d 1150 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 73

United States v. Solano-Godines, 120 F.3d 957 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 85, 86

United States v. State of Washington, 98 F.3d 1159 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

x


United States v. Wolfe, 71 F.3d 611 (6th Cir. 1995) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Zinermon v. Burch, 494 U.S. 113 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

STATUTES AND RULES

Federal Rules of Appellate Procedure

Circuit Rule 30-1.8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii

Ninth Circuit Rule 32-1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Rule 25.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Rule 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Rule 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Rule 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Rule 32(a)(7)(B)(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Rule 32(a)(7)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Rule 4(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Rules of Criminal Procedure

Rule 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 74

Rule 11(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Rule 11(d)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Rule 11(d)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 64, 75

xi


Rule 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-45, 48, 77, 78, 81, 89, 90

United States Code

16 U.S.C. §163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 3145(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

18 U.S.C. §1001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. §1111(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. §1111(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. §3145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

18 U.S.C. §3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. §3742. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. §7(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

28 U.S.C. §1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Montana State Statutes

§46-4-408.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Sentencing Guidelines

USSG §3C1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

USSG §3E1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

USSG §6B1.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

xii


UNITED STATES CONSTITUTION

Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

OTHER SOURCES

Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

ABBREVIATIONS USED THROUGHOUT THIS BRIEF

ER Excerpts of Record

PSR Presentence Report. PSR refers to the presentence reportprepared in the district court below, four copies of whichhave been furnished for the Court under seal in satisfactionof Circuit Rule Circuit Rule 30-1.8.

GNP Glacier National Park

KPD Kalispell Police Department

xiii


No. 14-30062

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

-vs-

JORDAN LINN GRAHAM,

Defendant-Appellant.

OPENING BRIEF OF DEFENDANT-APPELLANT

I. JURISDICTION AND TIMELINESS OF THIS APPEAL

(A) Jurisdiction in the District Court Below.

The district court below had jurisdiction because JORDAN LINN GRAHAM,

referred to throughout this brief as appellant, was charged with the following offenses

in a three count indictment handed up by the grand jury on October 3, 2013:

Count I: First degree murder (a violation of 18 U.S.C. §7(3) and§1111(a));

Count II: Second degree murder (a violation of 18 U.S.C. §7(3) and§1111(a) and (b));

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Count III: False statements (a violation of 18 U.S.C. §1001);

(ER Vol. XI at 2709-2712)

Since these allegations qualified as “offenses against the law of the United

States” federal district court jurisdiction was proper under 18 U.S.C. §3231.

Moreover, inasmuch as the indictment states that the alleged crimes occurred in

Glacier National Park, a park created by Congress on May 11, 1910, federal

jurisdiction was and is appropriate. See e.g. United States v. Peterson, 121 F.Supp.2d

1309 (D.Mont. 2000); 16 U.S.C. §163 and 18 U.S.C. §7(3).

(B) Jurisdiction in This Court and Timeliness of the Appeal.

This Court’s jurisdiction arises under 28 U.S.C. §1291 and 18 U.S.C. §3742

because Ms. Graham has timely appealed the final judgment and sentence entered in

the district court below. (See ER Vol. I at 1-7, showing entry of judgment date of

March 27, 2014). Also see Ms. Graham’s notice of appeal. (ER Vol. II at 274-276,

showing filing date of April 10, 2014). This appeal is timely under Fed. R. App. P.,

Rule 4(b)(2) because it was filed on the fourteenth day following entry of judgment

on March 27, 2014.

II. STATEMENT OF BAIL STATUS

Graham is currently serving her federal prison sentence of 365 months at FCI

Aliceville, Aliceville, Alabama.

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III. STATEMENT REGARDING ORAL ARGUMENT

Appellant’s undersigned counsel submits that oral argument on the issues

presented would aid the decision making process in this case.

IV. STATEMENT OF THE CASE

Following are the relevant events and the procedural circumstances of this case

listed in order by date necessary for an understanding of this case:

(A) Relevant Events Between Saturday, June 29 and Tuesday, July 16,2013

Appellant, aged 21 at the time of her marriage to her now deceased husband,

Mr. Johnson, has been variously described by acquaintances as naive, immature,

socially inept, and insecure. (ER Vol. IV at page 820). She lived with her parents

until the date of her marriage. (ER Vol. IV at page 860). She is deeply religious,

attending church three times a week. She does not drink, and does not believe in

premarital sex. (ER Vol. IV at page 820). Her only employment has been work as

a nanny. (PSR page 20, ¶¶78-80). Mr. Johnson’s friends did not like her and told him

not to marry her. (ER Vol. III at pages 803, 1455, 1480, 1491, 1533). Mr. Johnson

however professed love for appellant (ER Vol. IV at page 850) and actively pursued

her. (ER Vol. III at page 803).

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(1) June 29, 2013

• Appellant and Cody Johnson are married at a city park in Kalispell,Montana after an 18 month courtship. (ER Vol. III at page 803). Atypical wedding attended by about 90 people with a simple receptionfollowing. (ER Vol. IV at page 819). Photos and video of the weddingand reception are in evidence. (ER Vol. VII at page 1797-1801; 1803-1806). After the wedding, appellant texts K.M. her friend, mentor, andMatron of Honor, that she was thankful she could have her best friendwith her while she married her other best friend. She adds that she islooking forward to an awesome night. (ER Vol. IV at page 865). Theirhoneymoon consists of one night in a local hotel. (ER Vol. IV at page861).

(2) June 30, 2013

• Appellant texts K.M. stating that she “totally had a meltdown” and washaving second thoughts regarding her marriage to Mr. Johnson. (ERVol. III at page 568). She tells K.M. things happened that night, “afterthe wedding” that she didn’t want to text about. (ER Vol. IV at pages866-867).

(3) July 1, 2013

• K.M. and appellant exchange text messages throughout the day. Appellant confesses that she is crying all the time and worries that sheis a terrible person. K.M. counsels that appellant is just confused andstressed. (ER Vol. IV at page 869-870). Appellant tells K.M. she doesnot want to discuss her feeling of unhappiness with her new husband forfear of disappointing him, adding that it’d be “all just downhill fromthere.” She expresses her fears she will disappoint K.M. and Mr.Johnson. (ER Vol. IV, at page 874).

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(4) July 2, 2013

• K.M. and appellant exchange text messages throughout the day. Appellant indicates distress because her new husband wants to do“stuff” of a sexual nature that she does not want to do. (ER Vol. IV, atpage 876). K.M. counsels her to stand her ground and say no. Appellant replies that having Mr. Johnson mad at her is the “worst thingever.” She expresses concern over his temper and doesn’t want to go totheir home for a few days until he calms down. (ER Vol. IV at page878). She also discusses a recent argument they had where they yelledat each other for 30 minutes. All appellant ends up doing is crying. (ERVol. IV, page 879).

(5) July 3, 2013

• Appellant texts K.M. saying she’d hoped the previous evening wouldhave turned out good, but “everything just blew up.” (ER Vol. IV atpage 880-881). K.M. continues to advise that appellant discuss herfeelings with her husband. Appellant texts that she is afraid to becauseit will break his heart, adding that it’s her problem and not his. (ER Vol.IV, at page 880). Appellant decides to wait another week and see howit goes. She adds that she knows it could get bad and is afraid of whatcould happen to her. (ER Vol. IV, at page 881).

(6) July 4, 2013

• Appellant, Mr. Johnson, appellant’s parents and brother go kayaking atTally Lake. Later that evening they return to appellant’s parents’ housefor dinner and 4th of July festivities. (ER Vol. VI at pages 1370 - 1372). Appellant’s father describes the evening as normal. (ER Vol. VI at page1372).

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(7) July 5, 2013

• Appellant texts K.M. and explains she is planning to talk with Mr.Johnson about her feelings on Sunday, July 7, 2013 if things don’timprove, but she continues to worry about his temper. She describes ina text to K.M. another argument they had where Mr. Johnson held herdown, and she was afraid he’d hit her. (ER Vol. IV at page 882).

(8) July 6, 2013

• K.M. continues to advise appellant via text messages to talk to her newhusband because “I want Jordan back! The happy one!” (ER Vol. IVat page 885). Again, appellant tells K.M. she is going to talk to Mr.Johnson on July 7, 2013. Appellant texts “I have to. If I don’t, then I’lllet you sit down with us and talk. Either after church in the morning orevening, I’ll do it! Probably better after morning church.” (ER Vol. IVat page 886).

• Appellant later texts K.M. “I’ll do it tomorrow! I promise! If I makeyou a promise, I won’t break it!” (ER Vol. IV at page 886).

(9) July 7, 2013

• After morning church, appellant and Mr. Johnson go to his mother’shouse for lunch. (ER Vol. IV at page 1030). Later, appellant sendsK.M. a text stating that she is going to talk to her husband thatafternoon. (ER Vol. IV at page 888). She again expresses concernbecause he is in a bad mood and she’s afraid he’s going to do something. (ER Vol. IV at page 889).

• At 5:30 p.m., the couple return to church for choir practice and eveningservices. They leave church at about 7:45 p.m. and return home so MrJohnson can change clothes before meeting other church members atDairy Queen. (ER Vol. IV at page 1031).

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• After Dairy Queen appellant and Mr. Johnson return home to their newresidence. (ER Vol. IV at page 1034). A discussion ensues between thecouple concerning feelings that appellant expressed to K.M. They argueand Mr. Johnson, a season pass holder at Glacier National Park (GNP)and an avid hiker, suggests a drive to the Park. (ER Vol. IV at 820, VIIat page 1852).

• Appellant sends text messages to K.M. prior to their entering GNPstating she is going to talk to Mr. Johnson about their marriage. At 9:05p.m. she texts K.M. that she was dead serious “if you don’t hear from meat all again tonight, something happened!” (ER Vol. IV at page 890).

• The next text K.M. receives from Appellant is at 10:51 p.m. which saysshe is freaking out and thinking of jumping off a bridge. K.M.interpreted the text to mean appellant was thinking of suicide. (ER Vol.IV at page 892-893).

• Between approximately 11:00 p.m until 1:17 a.m. on July 8th, appellantexchanges several text messages with N.B., a 17 year old female friendfrom church. The text messages discuss an upcoming dance at thechurch and which of them has better dance moves. (ER Vol. IV at page1012). Appellant explains to the Judge at the change of plea hearingthat this texting “was my way of just trying to calm myself down and notshow anybody that I was nervous or scared or anything.” (ER Vol. VIIat pages 1836-1837).

(10) July 8, 2013

• Just after midnight appellant texts K.M. and tells her that she had beentalking to Mr. Johnson when he scratched her with a key and then left. Appellant tells K.M. that her husband did not take his phone with himand there was no way to get in touch with him. (ER Vol. IV at page 940-941, 944, 947, 948). Appellant adds that she’d “told you he had atemper. It gets really bad when he’s mad.” (ER Vol. IV at page 941). She adds she is “confused, pissed, hurt, scared! And the list goes on.” (ER Vol. IV at page 943).

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• Appellant arrives alone at K.M.’s house at about 1:20 a.m. She staysapproximately 2 ½ hours. Appellant tells K.M. that she and Mr.Johnson argued. (ER Vol. IV at page 947-948).

• K.M. states that appellant mentioned something about following the carthat Mr. Johnson had left in, but then losing them. Appellant states shedid not know who was in the car with Mr. Johnson. (ER Vol. IV at page949).

• Later that morning, Mr. Johnson’s close friend and supervisor, C.F.becomes concerned when Mr. Johnson doesn’t show up for work. Hetries contacting Mr. Johnson by cell phone and text message withoutsuccess. He contacts numerous common friends seeking information. (ER Vol. VI at page 1457).

• C.F. receives a text from appellant asking if her husband has shown upat work. (ER Vol. VI at page 1458-1459). C.F. calls appellant, and sherepeats the story she told K.M. that Mr. Johnson went for a ride withsome out of town friends who had picked him up. Appellant reaches outto others regarding Mr. Johnson’s whereabouts. This includes Mr.Johnson’s mother. PSR ¶16.

• Mr. Johnson is reported missing to the Kalispell Police Department(KPD) by a friend. (ER Vol. IV at pages 1018, 1040).

(11) July 9, 2013

• C.F. becomes concerned because he is hearing from various commonfriends that appellant is telling conflicting stories. (ER Vol. VI, at page1461). He surmises appellant may have had something to do with Mr.Johnson’s disappearance and decides to break into the couple’s home tolook for “any type of struggle or body or anything.” He searches theentire home including crawl space and closets finding nothingsuspicious. (ER Vol. VI at pages 1463-1464). C.F. decides to contactthe KPD and meets with Detective Zimmerman to report his concerns. (ER Vol. IV at page 1019). Detective Zimmerman calls appellant andasks her to come to the police station.

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• Appellant participates in her first interview with the KPD about thedisappearance of her husband. (ER Vol. IV at page 1019). Appellanttells Officer Zimmerman that she received a text message from Mr.Johnson on July 7th at approximately 10:00 p.m. telling her that he wasgoing for a ride with friends from out of town. (ER Vol. IV at pages1024-1025). Appellant tells Officer Zimmerman that she was arrivingback at her residence just as a dark colored vehicle was leaving theirresidence. (ER Vol. IV at page 1026-1027).

• Officer Zimmerman does not believe appellant’s story and tells appellantthat there are inconsistencies between her statement and the statementshe has received from others. He tells her it is important to be truthful. Appellant tells him “I’m telling you what I know.” (ER Vol. IV at page1044). Appellant later states, “I don’t know anything more, anywhereabouts or anything.” (ER Vol. IV at page 1045). OfficerZimmerman notes appellant appears nervous and untruthful. (ER Vol.IV at pages 1055).

• Officer Zimmerman speaks with Mr. Johnson’s mother by telephone. He also interviews a friend of appellant and Mr. Johnson who came tothe KPD to discuss Mr. Johnson’s disappearance. (ER Vol. IV at page1050).

• Appellant, her mother and brother, along with friend A.H. drive to theHungry Horse Dam area to look for Mr. Johnson. (ER Vol. V at page1187).

(12) July 10, 2013

• Appellant and her mother go to the KPD. Appellant talks to DetectiveClarke regarding an email she has received from a “Tony” saying Mr.Johnson went for a ride with three other guys. When the three otherguys returned Mr. Johnson was not with them. They indicate Mr.Johnson went for a hike and fell and he is dead. (ER Vol. V at page1262). The email also tells appellant to have the missing persons report

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called off because Mr. Johnson is for sure gone. (ER Vol. V at page1265).

• Appellant tells Detective Clarke the same story she told OfficerZimmerman the previous day, but adds more details. This time thoughshe tells the detective she had an argument with her husband prior to hisleaving the residence. PSR ¶19. Detective Clarke does not believeappellant is telling the truth. (ER Vol. V at page 1297).

• After almost two hours, Detective Clarke and appellant are joined in theinterview room by Detective Melissa Smith, who had reviewedDetective Zimmerman’s report and knew of the inconsistences inappellant’s story. (ER Vol. IV at page 1060; Vol. V at page 1263). Detective Smith provides Appellant with her Miranda warnings becauseof her prior false statements. (ER Vol. IV at page 1063).

• Appellant tells the detectives that she and Mr. Johnson had an argumentwhen they arrived home from Dairy Queen, and he was in a bad moodand talking “at her” with a mad voice. (ER Vol. V at page 1134). Appellant believes he had some “built-up anger” and that she didn’tmean to start anything. She just didn’t want to be yelled at. (ER Vol.V at page 1137). And that Mr. Johnson had instructed appellantpreviously to never tell anyone if they had a fight. (ER Vol. V at page1138). She also tells the detectives it’s possible Mr. Johnson went toGNP and had an accident while driving too fast or hiking in a dangerousarea. She adds that there are places that if you fall, no one is going tosee you, and that is her biggest fear. (ER Vol. V at pages 1146-1148). Appellant agrees to allow the detectives to take and search both herphone and Mr. Johnson’s phone.

• Detective Clarke interviews T.S., the “Tony” referred to in the emailmessage appellant provided officers. T.S. proves he did not send theemail, and signs a consent to search form for the detective to search hiscomputer and/or phone. Detective Clarke clears “Tony” of all suspicion. (ER Vol. V at pages 1266-1267). Detective Clarke later learns the emailwas sent from an IP address registered to appellant’s father. (ER Vol.V at page 1294).

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• Following the evening church service, which focused on Mr. Johnson’sdisappearance, appellant organizes a search at GNP with her brother,and friends, H.S. and A.H. Appellant drives the group to the “Loop”area, a rock and boulder studded area with very steep cliffs. Appellantwants to climb over the retaining wall but is dissuaded by the othersbecause it is too dangerous. (PSR ¶20, ER Vol. III at page 812). By thetime the group arrives it is dark and the search is abandoned. (PSR ¶20).

(13) July 11, 2013

• K.M. goes to the KPD to discuss her concerns that appellant hassomething to do with Mr. Johnson’s disappearance. (ER Vol. IV atpage 969). She is interviewed by Detective Wilson and tells himappellant’s account of her husband’s disappearance doesn’t seem right. (ER Vol. IV at page 970). She also says appellant was havingdifficulties adjusting to her marriage. K.M. was afraid if appellant toldthis to Mr. Johnson he would be crushed and could not be certain howhe would react. (ER. Vol. IV at page 972).

• Appellant returns to the “Loop” at GNP with her mother, her brother,and friends H.S. and C.L. After a few attempts, appellant climbs downsome rocks and starts yelling that she sees Mr. Johnson at the bottom ofa ravine. Appellant’s brother then climbs down to where appellant isand confirms it looks like Mr. Johnson. PSR ¶21.

• Appellant and C.L. drive to Lake McDonald Lodge and appellant speaksto Park Rangers Powers and Alley. (ER Vol. V at pages 1249, 1254). She tells them she has located the body of her husband. Ranger Powersthought it odd she’d know exactly where to look for him. (ER Vol. Vat page 1250). Appellant replies that her husband liked the park and tohike and wanted to see that area before he died. (ER Vol. V at page1251). Appellant started crying and shaking as she discussed findingthe body, and may have been in shock. (ER Vol. V at page 1257). Officers determine it is too dark to attempt to recover the body thatnight. (ER Vol. V at page 1270).

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• In the meantime, Detective Clarke continues to have concerns about thestory appellant has provided detectives, as well as information gatheredfrom Mr. Johnson’s friends. Detective Clarke decides to seize the trashput out for collection from the front of the couples home. Clarke takesit to his house to sort through. (ER Vol. V at pages 1269). As he isreturning the trash container to appellant’s home he receives notificationthat Mr. Johnson’s body has been located in GNP. (ER Vol. V at page1270).

• Appellant prepares a written statement for Ranger Powers stating “LeftSunday night with buddies to go for joy ride. Always said he liked to goon off-trails and wanted to make his own off the beaten path. Whensomeone visited, he would want to take them on crazy roads or crazyhikes. Would often try and find trails of his own, be it in an off-road caror on foot. I saw (something) and what looked like a black jacket rolledup, some bare skin, and darker greenish shorts.” (ER Vol. V at page1246).

(14) July 12, 2013

• Mr. Johnson’s body is recovered from GNP in a joint effort by state andfederal law enforcement agencies. The remains are located in a veryremote area at the bottom of a steep ravine, floating in a small pool ofwater near a waterfall. (ER Vol. V at page 1284). The area is extremelydifficult to get to. (ER. Vol. V at pages 1274, 1290). Detective Clarkeobserves at trial the last people that had been to that location “wereprobably dinosaurs.” (ER Vol. V at pages 1284). Photographs are takenand admitted as exhibits.

• In the ravine, as officers walk along a narrow river bed toward’s Mr.Johnson’s body they discover a wet piece of black cloth approximately1000 to 1200 feet downstream from the body and waterfall. (ER Vol.V at page 1279). One of the officers spreads the cloth out on the rocksto take a look at it and may have also turned it over and spread it out onthe opposite side. (ER Vol. V at page 1282). Eventually the cloth wasplaced in a plastic bag of unknown origin, not an evidence bag. Officersdid not know if the plastic bag had previously contained trace materials

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or contaminates. (ER Vol. V at page 1281). The bag containing thecloth is eventually transported to the KPD. (ER Vol. V at page 1283). At trial this cloth will be received as evidence. (ER Vol. VII at page1690). Ultimately the government will characterize this cloth for thedistrict court as the “perfect blindfold.” (ER Vol. VI at page 1340).

(15) July 15, 2013

• C.B. who had previously gone to the KPD to offer opinions about Mr.Johnson’s disappearance and the appellant’s involvement is interviewedby two FBI agents. She tells the agents she learned from her husbandthat supposedly appellant told Mr. Johnson on the day of hisdisappearance that she had a surprise for him. She again offered heropinion that appellant killed Mr. Johnson.

(16) July 16, 2013

• From the GNP entrance video system, law enforcement officers obtaina digital picture of Mr. Johnson driving into GNP on July 7, 2013sometime after 9:00 p.m. with appellant the passenger. A copy isprovided to the FBI. (ER Vol. VI at page 1569).

• Detective Smith calls appellant and asks her to come down to KPD. Once there, appellant is introduced to FBI Agent Stacey Smiedala, whohas come to interview her. The interview is conducted in the departmentconference room rather than the interview room which is outfitted withboth video and audio recording equipment. Detective Smith leaves thetwo alone. (ER Vol. V at pages 1168-1169). Agent Smiedala has beengiven a copy of the park entrance digital photo. (ER Vol. VI at page1569). Appellant is interviewed by Agent Smiedala and confesses topushing Mr. Johnson off a small ledge during a heated argument. Shesays it was an accident that happened when Mr. Johnson tried to grabher. Agent Smiedala, who was set up to administer a polygraph, decidesno polygraph is necessary. Furthermore, although appellant is in theroom with Agent Smiedala for about 2 hours only 20-30 minutes of theinterrogation session is (audio) recorded in two separate sessions (ERVol. VIII at page 2105) despite both the availability of video equipment

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down the hall and a state law obligation to record all suspect interviews(ER Vol. VIII at page 2118).

• At the end of this interrogation session after appellant is released byAgent Smiedala, the agent prepares a summary report which says duringthe heated discussion on the ledge appellant “turned and walked away”from the argument only to return to the spot she “walked away” from todeliberately push Mr. Johnson off the ledge. (ER Vol. IX at page 2217;Vol. XI at page 2846).

• At the suppression hearing and at trial Agent Smiedala will admit thissummary is in error and false. (ER Vol. VII at pages 1636-1637; Vol.IX at pages 2220-2221). However Agent Smiedala’s partner, FBI AgentLiss, previously used this false statement and includes it in the affidavitsupporting the complaint issued for appellant’s arrest on second degreemurder.

(B) Procedural Summary

September 9, 2013

• Complaint sworn out for 2nd Degree Murder erroneously stating thatappellant “turned and began to walk away” during an intense argumentbetween her and Mr. Johnson while on a cliff at the “Loop” trail givingthe false impression that appellant walked away but returned todeliberately push Mr. Johnson off the cliff. (ER Vol. XI at pages 2842-2847).

• Appellant is arrested on the Complaint at the KPD.

• The government brands defendant a sociopath in open court on herinitial appearance before the magistrate judge. (ER Vol. XI at page2837).

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September 11, 2013

• Appellant successfully argues for bail before the magistrate judge andis released on house arrest to her parents. (ER Vol. XI at pages 2775-2783).

September 12, 2013

• The government files a Motion for Stay of Release Order (ER Vol. XIat pages 2771-2774) which the Article III Judge denies in a text order(CR 12).

• The Article III Judge sets a hearing for the following day on an 18U.S.C. §3145 motion.

September 13, 2013

• The government files a motion to revoke the release order with asupporting brief. (ER Vol. XI at pages 2739-2756).

• The Article III Judge holds a hearing on the motion to revoke the releaseorder during which appellant’s counsel raises concerns over theaccuracy of what is contained in the complaint’s affidavit vis-a-vis whatappellant actually said. (ER Vol. XI at pages 2713-2736). The courtdenies the motion and appellant’s release on bail is continued. (ER Vol.XI at pages 2737-2738).

October 3, 2013

• Indictment is handed up by the Grand Jury. Not only is appellantcharged with second degree murder the government increases the chargeby adding a count for first degree murder. (ER Vol. XI at pages 2709-2712).

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October 4, 2013

• Appellant is arraigned on the indictment and released on the sameconditions. The government renews its request for detention. (ER Vol.XI at pages 2702-2708).

October 11, 2013

• The government files a Notice of Disclosure in Advance of the October15, 2013 Pre-trial Conference. (ER Vol. XI at pages 2693-2701). Thegovernment asks for a February, 2014 trial date as it anticipates calling60 witnesses over a two week period. (ER Vol. XI at page 2695).

October 15, 2013

• The court issues a scheduling order setting a discovery date of October31, 2013 and a trial date of December 9, 2013. (CR 39).

October 25, 2013

• In a telephone call 21 days after indictment the government tells thedefense for the first time that premeditation exists because thegovernment now believes appellant placed a blindfold on Mr. Johnsonbefore pushing him off the ledge. In support of this theory thegovernment states DNA testing is being conducted on the piece of blackcloth found on a shoal in the river approximately 1,000 feet downstreamof where Mr. Johnson’s body was found. The government furtherindicates that the cloth had been sent to the DNA lab in Quantico,Virginia on October 2, 2013. (ER Vol. X at page 2648). Pictures of thecloth were included in discovery.

November 8, 2013

• The following papers were filed in the record:

Appellant’s Motion to Dismiss the Indictment and Alternative Motionto Strike Count I or for Other Appropriate Relief Based on Prosecutorial

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Misconduct including failure to record the entire interrogation sessionand vindictiveness for increasing appellant’s changes to include firstdegree murder. (ER Vol. X at pages 2483-2659).

Appellant’s Motion to Exclude Witnesses and Evidence Disclosed Afterthe Discovery Deadline and to Exclude Undisclosed Witnesses andEvidence. (ER Vol. X at pages 2474-2482).

Appellant’s Opposed Motion to Compel. (ER Vol. X at pages 2448-2473).

Appellant’s Opposed Motion In Limine. (ER Vol. IX at pages 2427-2429 and Vol. X at pages 2430-2437).

Appellant’s Motion to Produce. (ER Vol. IX at pages 2420-2426).

Government’s Motion to Continue Trial Date with Attachment Abecause the government needs more time for DNA testing on the blackcloth. (ER Vol. X at pages 2438-2447).

November 13, 2013

• Appellant’s Response to Government’s Motion to Continue. (ER Vol.IX at pages 2400-2408).

November 14, 2013

• The following papers were filed in the record:

Government’s Response to Appellant’s Motion in Limine. (ER Vol. IXat pages 2389-2399).

Government’s Response to Appellant’s Motion to Exclude Witnessesand Evidence Disclosed After Discovery Deadline and to ExcludeUndisclosed Witnesses and Evidence. (ER Vol. IX at pages 2373-2388).

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Government’s Response to Appellant’s Motion to Dismiss theIndictment and Alternative Motion to Strike Count I or for OtherAppropriate Relief Based on Prosecutorial Misconduct. (ER Vol. IX atpages 2348-2372).

Government’s Response to Appellant’s Motion to Compel Governmentto Identify All Evidence it Intends to Introduce at Trial. (ER Vol. IX atpages 2342-2347).

Government’s Response in Opposition to Motion to Produce. (ER Vol.IX at pages 2338-2341).

Government’s Reply to Appellant’s Response to Government’s Motionto Continue Trial. (ER Vol. IX at pages 2331-2337).

November 15, 2013

• Hearing held on juror preselection and pending pretrial motions. (ERVol. IX at pages 2161-2328).

• The court hears testimony regarding pending pretrial motions. Testimony is heard regarding the black cloth evidence.

• Court issues an Order on the appellant’s request for Agent Smiedala’spersonnel file, training manuals and Curriculum Vitae. (ER Vol. IX atpages 2329-2330).

November 19, 2013

• The Court issues an Order on the pending motions as follows: Motionto Exclude Witnesses and Evidence - Granted in Part and Denied inPart; Motion to Compel the Government to Identify Witnesses andDisclose Evidence Prior to Trial - Granted in part and denied in part anddeclined to rule in part; Motion in limine - Granted in part and deniedin part and declined to rule in part; Government’s Motion to Continuetrial - denied. (ER Vol. IX at pages 2155-2160).

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November 25, 2013

• The government files four notices of expert witnesses, including one fora forensic examiner who has examined the black cloth. (ER Vol. VIII2146-2150 and Vol. IX at pages 2151-2154).

December 2, 2013

• The court issues an Order denying defense motion to dismiss theindictment and to strike Count I and ruling on other appropriate relief. (ER Vol. VIII at pages 2102-2123).

December 3, 2013

• The government files an Expert Witness Disclosure for a witness whoperformed DNA testing on the black cloth. (ER Vol. VIII at pages 2077-2078).

December 5, 2013

• The court issues an Order on the 404(b) materials, Rule 1006 Summary,autopsy photos and the black cloth. (ER Vol. VII at pages1859-1867).

December 9, 2013

• Trial Day One (ER Vol. III at pages 618-817 and ER Vol. IV at pages818-900).

December 10, 2013

• Trial Day Two (ER Vol. IV at pages 925-1064; Vol. V at pages 1065-1307).

• The government files a brief regarding cautionary instructions pertainingto testimony about unrecorded statements. (ER Vol. IV at pages 914-924).

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December 11, 2013

• Trial Day Three (ER Vol. VI at pages 1324-1603; Vol. VII at pages1604-1701).

• Appellant files brief in opposition to the Government’s Offer of Exhibit67 (the black cloth). (ER Vol. V at pages 1308-1315).

• Appellant files response brief regarding the cautionary instructionpertaining to testimony about unrecorded statements. (ER Vol. V atpages 1316-1323).

December 12, 2013

• Trial Day Four. At the conclusion of defense case government offersplea to Count II (2nd Degree Murder) in exchange for dismissal ofCounts I and III. Court holds change of plea hearing while jury waits indeliberation room. Factual basis for plea is appellant acted with extremerecklessness and in disregard for human life by pushing Mr. Johnsonfrom the cliff. (ER Vol. VII at pages 1702-1846).

March 18, 2014

• Government’s sentencing memorandum filed arguing that appellantshould be sentenced as 1st Degree Murder offender to life in prison. (ERVol. III at pages 566-604).

• Appellant’s sentencing memorandum filed. (ER Vol. II at pages 499-542).

March 21, 2014

• Government’s response to appellant’s sentencing memorandum filed. (ER Vol. II at pages 476-498).

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• Appellant’s Opposed Motion to Strike Exhibits to Government’sSentencing Memorandum and supporting brief filed. (ER Vol. II atpages 467-475).

• Appellant’s response to the government’s sentencing memorandumfiled. (ER Vol. II at pages 434-466).

March 25, 2014

• The court files an Order regarding sentencing disparity. (ER Vol. II atpages 431-433).

• Appellant files a Motion to Withdraw her Guilty Plea and a supportingbrief. (ER Vol. II at pages 417-430).

March 26, 2014

• The government files Response in Opposition to appellant’s Motion toWithdraw her Guilty plea. (ER Vol. II at pages 411-416).

March 27, 2014

• Sentencing hearing. (ER Vol. I at pages 8-129).

• Judgment entered. (ER Vol. I at pages 1-7).

April 10, 2014

• Appellant files timely notice of appeal. (ER Vol. II at pages 274-276).

(C) Background Narrative Relevant To The Issues Presented.

On July 16, 2013 appellant went to the Kalispell, Montana Police Department

for a scheduled appointment with Detective Melissa Smith. Smith had been

investigating the whereabouts of Cody Johnson, aged 25, who had not been seen

21


since Sunday, July 7th, 2013. Appellant (who married Mr. Johnson the previous week

on June 29th) figured heavily in the investigation because between July 8th and July

15th appellant maintained that her new husband had left the area in an unfamiliar car

with people she didn’t know. Furthermore, during this time appellant told Kalispell

Police that she had received an email from an individual identified as “Tony” stating

that the search for Mr. Johnson should be called off because Mr. Johnson went

hiking, had fallen and was dead. Quick investigation into the source of this email

showed that appellant had contrived it and sent it to herself. (ER Vol. V at pages

1264-1267, 1294). Moreover, on the evening of July 10th, and then again on July 11th,

appellant took family members and friends to the exact location in Glacier National

Park where Mr. Johnson’s remains were discovered face down in a stream at the

bottom of a cliff.1 To reconcile these contradictions Detective Smith and her fellow

officers partnered with the FBI.

1At appellant’s behest the group first went to the area in Glacier National Parkcommonly known as “the Loop” to look for Mr. Johnson on the evening of July 10th. But once it became dark that effort was abandoned. On July 11th the group consistingof appellant, her mother, her brother and two friends returned to the scene whereappellant led them to the exact location of Mr. Johnson’s remains. (ER Vol. III atpages 812-813).

22


Although she had an appointment with Detective Smith (who appellant had

spoken to previously in a recorded interview) on July 16th appellant was introduced

to Agent Stacey Smiedala, a Special Agent and Polygraph Examiner with the FBI.

Considering the obvious inconsistency between appellant’s knowing the exact

location of Mr. Johnson’s remains, over and against her claims that Mr. Johnson had

left the area in an unfamiliar car and died in a hiking accident, law enforcement was

motivated to check the surveillance camera fixed at the park’s entrance. This

revealed a fairly clear time-stamped image of appellant and her husband driving into

Glacier National Park on the evening of July 7th at 9:17 p.m. o’clock. (Government’s

Exhibit 88, ER Vol. III at page 816). In fact, in addition to the surveillance video and

the contradictions in her story, law enforcement had other reasons to suspect that

appellant might know more than she was telling.

First, witnesses interviewed before appellant’s scheduled meeting with

Detective Smith on July 16th opined that it would be highly improbable that Mr.

Johnson would just disappear without telling someone. (ER Vol. VI at page 1456).

And another said that it was much more likely that appellant and her husband had

been together when something happened and appellant panicked. (ER Vol. II at page

459-460). And as stated previously, before she was subjected to questioning by

Agent Smiedala law enforcement had vetted appellant’s additional claim that she had

23


received the email from “Tony” stating that the investigation should be called off

because Mr. Johnson was dead, concluding that in reality appellant had sent the email

to herself.

Armed with all this information Detective Smith led appellant to a staging area

in the police station where Agent Smiedala had previously set up his polygraph

equipment. Three points are important here: (1) Detective Smith had questioned

appellant previously in a video recorded interview and appellant returned on July 16th

at Smith’s request to wrap up loose ends; thus by design Agent Smiedala was a

surprise addition to the investigation. (2) As a matter of Kalispell Police Department

policy, and under Montana law, Detective Smith had an obligation to record by

audio/video any interview she conducted on a witness or suspect associated with her

investigation (see Mont. Code Ann. §46-4-408, Addendum at page 1). And (3) Agent

Smiedala’s polygraph equipment was set up in a room other than the one Detective

Smith used to interview appellant previously; in other words the room Smith used

before contained all the equipment necessary to record the session by audio and/or

video.2

2Despite having set up his equipment Agent Smiedala would never administera polygraph to appellant on July 16th or at any other time.

24


Once at the staging area Detective Smith made a quick exit and Agent

Smiedala commenced his questioning. At first appellant tried to stick with her story

that Mr. Johnson had departed late on July 7th in an unfamiliar car. However because

he had seen the park entrance video-cam image Agent Smiedala interrupted and told

appellant that he “knew [she] was in the park” that night. (ER Vol. VII at page 1644-

1645). Confronted with this fact appellant immediately broke down and confessed

to pushing Mr. Johnson off what would be described at trial as a dangerous cliff

leading to a deep ravine, inaccessible to human traffic. Unfortunately none of this

crucial, spontaneous exchange was recorded by Agent Smiedala or Detective Smith.

Appellant was released by Agent Smiedala at the conclusion of her July 16th

interrogation session and about two months later (on September 9, 2013) she was

charged by complaint with second degree murder in violation of federal law.

Predictably, the complaint’s supporting affidavit rests on all the evidence gathered

during the investigation: appellant’s July 16th confession; the contradictions inherent

in appellant’s unfamiliar car narrative; the fake email, and her inconsistent conduct

in disclosing the location of Mr. Johnson’s remains. Important for purposes of this

appeal both the accuracy of the complaint’s supporting affidavit and the manner in

which appellant’s confession was taken were subjects for hearing and argument

before the district court. As set forth in her pretrial papers, appellant contends that

25


the government violated her rights by not recording the entire interview/interrogation

session conducted by Detective Smith and Agent Smiedala on July 16th, even though

Detective Smith was obliged to do so under state (Montana) law. (ER Vol. VIII at

page 2118; Vol. X at page 2487).

On the basis of the complaint’s supporting affidavit appellant was arrested

September 9th, almost two months after her July 16th confession. In conjunction with

her arrest the government published (but quickly revoked) a press release indicating

that appellant might be accountable for voluntary manslaughter.3 At her initial

appearance before the magistrate judge the government stated its position on the issue

of release or detention:

THE COURT: Good afternoon, Mr. McLean. The government'sposition with respect to detention?

MR. McLEAN: Your Honor, it's the government's position that thereare no conditions that preserve the defendant'sappearance at trial; but more importantly, the safetyof the community. The conduct in this case is veryserious; indicates this person is a dangerous personto the community. The agents and I have discussedher demeanor throughout the investigation in thecase. And it is a very strange affect when she isspeaking with persons; very unemotional, detached.

3This revoked press release is mentioned in the record but the release itself isnot. (ER Vol. X at page 2554). We have included a copy of the press release in ourmotion filed under separate cover to supplement the record. See, Fed. R. App. P.Rule 10(e).

26


She appears to be, in some respects, sociopathic inher relations to law enforcement, anyway. We don'tknow a whole lot about her. And we urge the courtto detain this defendant pending trial.

(ER Vol. XI at page 2836, lns. 17-25 through page 2837, lns. 1-3)

In opposing the government’s demand for pretrial detention appellant

submitted a proposed plan for release on conditions involving house arrest, excepting

medical appointments, church and other pre-approved travels outside the home.

Appellant’s plan was approved over the government’s objection and she was released

from custody to her parents on September 12, 2013. The next day the government

filed a motion for revocation of appellant’s release before the Article III Judge in

jurisdiction, the Honorable Donald W. Molloy:

Pursuant to 18 U.S.C. § 3145(a)(1), the United States of America herebymoves to revoke the order dated September 12, 2013, of the HonorableJeremiah C. Lynch, United States Magistrate Judge for the District ofMontana, releasing Jordan Graham pending trial on conditions ofrelease. The Magistrate Court denied the Government’s request to detainMs. Graham pending trial. Doc. No. 9. The United States seeksrevocation of the Conditions of Release Order because of the risk thatshe presents to the community, the seriousness of the charged offense,her repeated false statements, and her mental health. Counsel for thedefendant was contacted, and he opposes this motion.

(ER Vol. XI at page 2740)

The brief supporting the motion to revoke appellant’s release (ER Vol. XI at

pages 2741-2756) deserves careful study because it details the government’s

27


understanding of its evidence and likewise the reasons why it charged appellant with

second degree murder.

After the appeal of appellant’s release was denied by the district court the

government went to grand jury to secure its indictment. However, instead of charging

second degree murder as did the complaint the government added a count for first

degree murder, which under this Court’s interpretation of the federal murder statute

in United States v. LaFleur, 971 F.2d 200 (9th Cir. 1991) carries a statutory,

mandatory sentence of life in prison. Thus, as she did below appellant argues here

that the government unlawfully overcharged its case and should have been prohibited

from pursuing first degree murder absent a showing of non-vindictive motive for

adding Count I to the indictment. Cf. United States v. Ruesga-Martinez, 534 F.2d

1367 (9th Cir. 1976) (increasing charges after accused has exercised a

statutory/constitutional right enough to warrant burden on prosecution to prove lack

of vindictive motive).4

4As a preview and as an aside it warrants emphasis here that the government’sbrief in support of its motion to revoke appellant’s release makes no mentionwhatsoever of the infamous “black cloth” that the government will introduce into thecase in a telephone call some six weeks later on October 25, 2013 even though thecloth and pictures of the cloth were in the government’s possession. (ER Vol. X at2648). See discussion below at pages 33 and 59-63.

28


As the trial neared the government moved to continue on the grounds that more

time was needed to conduct DNA testing on a black cloth discovered and collected

downstream from Mr. Johnson’s remains. In the motion and its supporting

Attachment A the government claimed that although collected by law enforcement

on July 12th the significance of this black cloth did not surface until grand jury

preparations in early October, 2013 when the government connected the existence of

the cloth to a portion of appellant’s statement to Agent Smiedala where she stated that

while together on a steep area of the cliff Mr. Johnson purportedly said “I could do

this with a blindfold on.” (ER Vol. VI at page 1580, lns. 23-25).

Because issues surrounding the significance, disclosure and scientific testing

of the black cloth are central to this appeal we think it vital for the Court to grasp

from the outset the nature of this evidence, as well as the government’s and the

district court’s treatment of it. The black cloth is addressed extensively in the trial

record, including government counsel’s description of it as “the perfect blindfold.”

(ER Vol. I at page 148, ln. 2). It was admitted as Government’s Exhibit 67 over

defense objection. (ER Vol. III at page 615).

29


Considered together these references reveal that in the context of the entire

record it is unlikely that the government charged this case on the theory that appellant

blindfolded Mr. Johnson with the black cloth before pushing him off the cliff. First,

as a factual matter, the government’s original disclosure to the district court regarding

the black cloth/blindfold issue came in the form of an attachment to the government’s

motion to continue trial, which although sealed in the record at the time, has since

been unsealed:

On the evening of July 11, 2013, the Defendant located the body of Mr.Johnson in Glacier National Park. Mr. Johnson’s body was discoveredface down in a stream at the bottom of a cliff. The crime scene wasprocessed the next day, which included the recovery of Mr. Johnson’sbody and the collection of any evidence at the scene. Among theevidence collected was a black cloth, measuring approximately twenty-seven inches in length. It was discovered approximately one thousandfeet downstream from Mr. Johnson’s body and was found against a rockand was wet, indicating it may have floated downstream.

. . . .

Then, in preparation for the grand jury indictment of the defendant, lawenforcement recognized the potential significance of the cloth. Inaddition to being a conspicuous piece of evidence at an otherwise cleancrime scene in Glacier National Park, the Defendant had madestatements to law enforcement during her July 16, 2013, interview thatpotentially implicated the cloth that was recovered. During thatinterview, in which she confirmed that she had pushed Mr. Johnson offof the cliff on July 7, 2013, the Defendant made representations thatwhen she and Mr. Johnson were on the steep area of the cliff Mr.Johnson purportedly said that “I could do this with a blind fold on.” Thesignificance of that statement and its connection to the recovery of the

30


cloth was not made until grand jury preparations in early October, atwhich point the cloth was sent to the Federal Bureau of Investigation’sLaboratory Division in Quantico, Virginia.

ER Vol. X at pages 2444-2445 (emphasis added)

Despite this artful phrasing there is no indication in the above quote that the

blindfold theory was included as the probable cause for Count I in the government’s

one and only presentation to the grand jury. For purposes of this appeal this matters

for several reasons, chief among them being that it raises the question whether this

Court need even care what the grand jury was told. To appreciate the gravity of this

question and to answer it affirmatively (that yes the Court should care) is central to

resolution of this appeal.

When appellant was arrested the government relied heavily on the statement

she gave to an FBI Agent (Agent Smiedala) but paraphrased by another FBI Agent

(Agent Liss). That statement was attacked pretrial because it was unreliable and self

serving in the interest of the government, since it was shaped, selectively recorded

and obtained by collusion in order to dispense with a state law obligation to record

the interrogation session in its entirety. (ER Vol. X at page 2606-2607). Furthermore

appellant alleged pretrial that the government acted vindictively when it indicted her

for first degree murder because she successfully argued for her constitutional right

to bail. (Id.). In combination the government’s failure to record appellant’s

31


interrogation in its entirety, its willingness to distort her July 16th statement, and/or

punish her for obtaining bail – together with the government’s eleventh hour reliance

on the “blindfold” theory – each and all raise very serious concerns.

Consider for example appellant’s pretrial claim that the government willfully

failed to preserve evidence by selectively recording only parts of her July 16th

confession. The black cloth/blindfold issue impacts this claim because the July 16th

narrative contains substantial evidence of provocation and heat of passion elicited by

the FBI Agent. Moreover, the government relied on that statement at trial by putting

the entire recorded statement in the record as substantive evidence as part of its case-

in-chief. (ER Vol. VI at pages 1578-1603 and Vol. VII at 1604-1616). However of

even greater concern is that in addition to shaping appellant’s July 16th statement by

selective recording and using it as substantive evidence, the government attempted

to impeach that very statement by ardently pressing its contradictory blindfold theory

of the case. A theory that works at cross purposes with the government’s original

false narrative that appellant “walked away” from a heated discussion only to return

to push Mr. Johnson off the cliff deliberately.

Likewise the blindfold theory impacts this Court’s resolution of appellant’s

claim that the government acted vindictively by upping her charges to include first

degree murder because she successfully argued for bail over vigorous government

32


objections. Think of it this way: even under the government’s rendition of the facts

it is certain that when the bail question was being resolved the government had not

realized any potential connection between appellant’s statement that her husband said

he could hike near the cliff blindfolded and the black cloth discovered at the bottom

of the ravine. We know this because Attachment A contends that any such potential

connection “was not made until grand jury preparations in early October,” at which

point the cloth was sent “to the Federal Bureau of Investigation’s Laboratory Division

in Quantico, Virginia.” (ER Vol. X at page 2445). Obviously if the government had

known about the blindfold theory during the release/detention phase of the case it

would have brought it up in the brief supporting the government’s motion to revoke

appellant’s release on bail where it discussed in considerable detail most all of its

other evidence. (Cf. ER Vol. XI at pages 2741-2756).

Therefore it is very unlikely that the blindfold theory served as the reason why

the government chose to increase appellant’s charges to include first degree murder.

Which of course makes it correspondingly more plausible that appellant was charged

vindictively because she successfully vindicated her right to bail. But of equal

concern is the fact that the government never pleaded alternative theories of

premeditation and/or malice in the indictment generating the serious question whether

33


the government constructively amended the grand jury charges since it never put the

contradictory blindfold theory before the grand jury.

But even apart from appellant’s vindictiveness claim and/or what the

government contends was its evolutionary understanding of the significance of the

black cloth, what the grand jury was told or not told should be important to this Court

for two other important reasons. First, because Agent Smiedala recorded only parts

of appellant’s interrogation; and more substantially, what was recorded was

ultimately summarized inaccurately in the affidavit supporting the complaint. As to

the selective recording issue the district court’s summary of the facts is important:

In July 2013, local and federal law enforcement officers wereinvestigating the circumstances surrounding the disappearance and deathof Cody Lee Johnson, whose body was found in Glacier National Park.As part of this investigation, the Kalispell Police Department hadspoken with Graham, the decedent's wife, on more than one occasion.On July 16, 2013, Detective Melissa Smith of the Kalispell PoliceDepartment called Graham and asked her to come to the police stationto wrap up a few things. A fair inference is that this request was part ofa coordinated interview plan with FBI Agent Stacy Smiedala. Grahamarrived at the station around 3:30 p.m. Upon her arrival, she spokebriefly with Detective Smith who then led her to a conference roomwhere she was introduced to FBI Agent Stacey Smiedala. AgentSmiedala had arrived at the Kalispell Police Station earlier and pre-positioned various machines and computers used when a polygraph isadministered in the conference room. After some small talk Grahamagreed to take a polygraph examination. Then, prior to any substantiveconversation taking place, Detective Smith left the room.1

34


When the unrecorded conversation began, Graham told Agent Smiedalathe story she had previously told other law enforcement – that Cody hadleft with friends – a story that has since been shown to be untrue. WhenAgent Smiedala confronted Graham with a photograph of her and Codyentering Glacier Park on that evening on July 7, she became emotionaland told of events that cannot be verified because what she said was notrecorded. Whether by policy or for some other reason, this pattern ortechnique in interviewing a witness has repeatedly been the subject ofjudicial inquiry. After the unrecorded discussion between Graham andAgent Smiedala took place, Detective Smith was brought back into theroom and no polygraph examination was administered. AlthoughGraham was perfectly willing to follow through with the polygraph,Agent Smiedala is the one who chose not to administer the test insteadchoosing to follow through with his well known practice in obtainingstatements. At this point, two "summary" recordings were made ofGraham's statements. The first recording lasted from 10-20 minutes andthe second recording lasted 10 minutes. Agent Smiedala left theinterview room after the first recorded interview to consult with otheragents before recording the second interview. Graham's entire interviewwith the FBI lasted approximately two hours. One and one half hours ofdiscussion is not recorded and it is this putative evidence that gives riseto a myriad of problems that stem from the inability to recreate what wassaid and by whom. . . ____________1 There is a definite pattern and plan used by Agent Smiedala when heconducts one of his interviews. See United States v. Deputee, CR 07-64-BLG-RFC; United States v. Davis, CR 13-28-GF-DLC.

(ER Vol. I at pages 241-243)

As for the second point (misleading the grand jury) the affidavit offered in

support of the complaint is both presumptively and logically the narrative that the

government relied on in its grand jury presentation. It consists of two arabic

numbered paragraphs with the second paragraph containing subparagraphs a. through

35


f. Subparagraph f. (supposedly based on what appellant told Agent Smiedala) is of

crucial significance to the issues raised in this appeal:

f. On July 16, 2013, Graham was interviewed by law enforcement.During the meeting, Graham was advised of her Miranda Rightsand agreed to cooperate with the investigating agent and detectiveand provided the following information: Graham admitted shehad lied about the death of her husband and had providedmultiple false statements to law enforcement and others regardingJohnson's death. Graham stated on the evening of July 7, 2013,she and Johnson had an argument, were upset and both haddecided to travel to Glacier National Park to the Trail Loop area.Once there, they walked on The Loop hiking trail for a while andwere arguing. They then walked to the other side of the trail to anarea that was very steep and proceed down the rocks near astump. Graham stated their argument intensified. At one point intime during their arguing, Graham turned and began to walkaway. She stated Johnson grabbed her by the arm. Graham turnedand removed Johnson's hand from her arm. After removingJohnson's hand from her arm, Graham stated she could have justwalked away, but due to her anger, she pushed Johnson with bothhands in the back and as a result, he fell face first off the cliff.

ER Vol. X at page 2600 (emphasis added)

Bearing in mind that appellant not once, but twice, actually demonstrated for

Agent Smiedala what happened on the cliff (which was never video recorded) the

important fact here is that subparagraph f. states that appellant “turned and began to

walk away” in the heat of an argument. Under the Court’s decision in United States

v. Begay, 673 F.3d 1038 (9th Cir. 2011) (en banc) the alleged act of “walking away”

could arguably serve as an opportunity for reflection to support the element of

36


premeditation, the sine qua non of first degree murder. However in one of the parts

of the interrogation that Agent Smiedala did record appellant expressly denied that

she was walking away:

SA Smiedala: Okay. Were you walking away from him, was thatwhat this, was going on? Kinda like he had done inthe past?

Jordan Graham: No. I wasn’t going to walk away. I mean maybe hethought I was going to. And the other time I wasn’tgoing to walk away either. He just, that thoughtprocess, to him, maybe that I was going . . .

SA Smiedala: Was that kinda a bluff that you would play, at leastto some extent, like, hey I’m going to walk away oract like you are going to walk away?

Jordan Graham: Yes. And in the past I had done that.

SA Smiedala: Okay. Alright. So it was fair for him to probablyassume you were probably going to walk away?

Jordan Graham: Uh huh

SA Smiedala: Possibly?

Jordan Graham: Possibly, yes.

(ER Vol. X at pages 2592-2593)

Despite this explicit, recorded denial that she neither walked away nor intended

to walk away Agent Smiedala kept insisting by hypothesis that Mr. Johnson may have

assumed that appellant was walking away. But worse, when he summarized the July

37


16th interrogation in his Polygraph Examination Report Agent Smiedala wrote: “The

couple continued to argue and Jordan began to walk away.” (ER Vol. X at page

2603). Thus subparagraph f. of the Complaint affidavit (authored by Agent Liss, not

Agent Smiedala) appears to have been based, not on what appellant actually said, but

on the erroneous summary authored by Agent Smiedala in his polygraph report,

which he eventually conceded was wrong and inaccurate. (ER Vol. IX at page 2220,

lns. 14-17: “She actually never walked away, but there actually was some, I think,

intent, or she felt as if Cody thought she was going to walk away, but she did not

move from the area she was in.”) (Also see ER Vol. VII at pages 1635-1638).

About two weeks after appellant was released on bail the government went to

grand jury. But instead of charging second degree murder as did the complaint the

indictment alleged that appellant committed first degree murder because she acted

with premeditation. (ER Vol. XI at page 2709-2712). Neither the indictment nor any

of the government’s discovery indicated how the basic narrative set forth in the

complaint’s affidavit had changed. Thus appellant and her defense team continued

to rely on the core facts alleged in the complaint’s affidavit; including appellant’s

July 16th statement that in the midst of a heated discussion on the ledge she reacted

abruptly to a grabbing motion by her husband and instinctively pushed to get him off.

38


On October 25th, 2013 without explanation the government announced during

a Friday afternoon telephone call with defense counsel that it had revised its theory

for guilt. No longer had appellant pushed during an argument with her husband as

previously alleged. Now the narrative centered on a different theory driven by a

black cloth that had been collected by law enforcement on July 12th down in the

ravine approximately 1,000 feet from Mr. Johnson’s remains. Under this new theory

the government would take the position that the black cloth served as a blindfold that

appellant somehow applied to Mr. Johnson before pushing him to his death:

THE COURT: You have her [July 16th] statement.

MR. BAUCUS: Your Honor, we have her statement. We also haveother evidence, and we believe the cloth may be thatother piece of evidence.

THE COURT: Well, I don't get how do you get from a cloth to thatproving something? You know they were both there.You know one of them is deceased. You know theother one says, "I pushed him off the cliff." What isthere that that proves? How does it prove sheintended to push him off? Are you saying that thisyoung woman tied him up, put a blindfold aroundhim, and pushed him off the cliff?

MR. BAUCUS: That is a possibility, Your Honor.

. . . .

39


MR. BAUCUS: And I think if it's his, Your Honor, I think that's thestrongest case that this argument would make inregard to the blindfold theory, as the defense counselhas characterized it. If the DNA came back from himon this piece of cloth, that would show, we wouldcontend, that Mr. Johnson was wearing or had or itwas on his person when he was pushed, pushed offthe cliff. We would probably match that up, YourHonor, with a statement that the Court hasidentified; that during her confession on July 16, Mr.Johnson purportedly said, "I could do this with myblindfold on." We would contend that there is aconnection there.

. . . .

THE COURT: How did you get an indictment for first-degreemurder if you don't know? I mean, what's the proofyou gave to the grand jury if it had anything to dowith this? Did you tell them there was DNA on it?Did you tell them it was -- this was found 1,000 feetfrom where the decedent's body was? I mean, youdon't have to answer the question. It's a rhetoricalquestion. But it's not connecting for me.

. . . .

THE COURT: So in order to accept this theory, it's necessary tototally reject the recorded statement that she gave.

MR. BAUCUS: She admitted to pushing Mr. Johnson with bothhands, in the back, off a cliff. We do not believeevery part of her statement was truthful –

THE COURT: Yeah.

40


MR. BAUCUS: -- obviously. We were not on the cliff. No one wason the cliff except for her and the victim.

THE COURT: Right.

MR. BAUCUS: If there is DNA evidence connecting to a piece ofcloth that is found 1,000 feet downstream from thebody in the water, and there's DNA evidence of thevictim on that cloth, and she also made a statementduring her July 16 interview about how Mr. Johnsonallegedly said, "I could do this with a blindfold on"--

THE COURT: Um-hmm.

MR. BAUCUS: -- I would argue that's more than a coincidence,Your Honor, respectfully.

(ER Vol. X at page 2309, ln. 16 through page 2316, ln. 6) (emphasis added)

This new organizing narrative amounted to a complete renunciation of the

government’s initial allegations in the complaint. No longer were appellant and Mr.

Johnson involved in a heated discussion trying to resolve marital problems. Now

appellant was engaged in some elaborate deception to entice Mr. Johnson to the ledge

in order to cast him to his death after application of a blindfold. In support of this

new theory the government likewise relied on two aspects of the statement appellant

gave to Agent Smiedala on July 16th. First, that while near the ledge Mr. Johnson

claimed he could walk the area “with a blindfold on.” And, second, that others had

41


claimed Mr. Johnson had told them appellant had a “surprise” for him at or near July

7th. (ER Vol. VI at page 1344).

Undeterred by the district court’s criticism of its tactics the government

persisted in trying to put its black cloth/blindfold contention before the petite jury

during trial. First, the government had pictures of the black cloth admitted over

defense objection (ER Vol. V at pages 1276-1279). However, when it came to

admission of the black cloth itself initial defense objections to its admission were

sustained on foundation grounds. (ER Vol. V at pages 1279-1284). Nonetheless the

issue came up again when the district court revised its stance on the foundation

question stating that faulty handling and/or chain of custody problems went, not to

the black cloth’s admissibility, but rather to its weight as evidence. (ER Vol. VI at

page 1337).

Even though the district court ultimately admitted the black cloth itself (ER

Vol. VII at page 1690); it also admonished the government that it would not be

permitted to argue its blindfold theory on the basis of Mr. Johnson’s hearsay

statement that he could walk near the cliff with a blindfold on (ER Vol. VII at pages

1720-1721). Nevertheless the district court’s rulings vis-a-vis the black cloth neither

prohibited the jury from inferring that appellant used a blindfold; nor did those

rulings bar general argument by the government that in combination the pictures of

42


the black cloth, the black cloth itself, and other evidence in the case supported a first

degree verdict on the blindfold theory.

Once the district court entered its final order regarding admissibility of the

black cloth, which again, did not place a total embargo on the government’s ability

to argue its blindfold theory to the jury, the government elected to rest its case. (ER

Vol. VI at pages 1727, 1733). Appellant then made her motion for dismissal of Count

I of the indictment under Rule 29 and Jackson v. Virginia, 443 U.S. 307 (1979) the

first degree murder charge (ER Vol. VII at pages 1727-1732). Part of that argument

centered on the conflicting substantive evidence that the government put on during

its case-in-chief by sponsoring evidence supporting a finding of voluntary

manslaughter:

I'd like to make clear that the government sponsored evidence of -- I'lljust say it generally -- voluntary manslaughter. They've sponsored thatevidence into this record. They put Agent Smiedala up there. He dwelledon the factors that are clearly relevant to the instruction for voluntarymanslaughter, and now the government must disprove, under theinstructions, adequate provocation and heat of passion. So they're in thisevidentiary bind, which, I don't know how we're going to get out of that.But there's nothing likewise showing that the defendant acted with acool mind.

(ER Vol. II at page 1728)

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After appellant’s Rule 29 motion was denied the defense put on its case. (ER

Vol. VII at pages 1733-1807). At the conclusion of the defense case the government

offered to dismiss Count I (first degree murder) in exchange for a guilty plea to Count

II (second degree murder). Next a plea change hearing was conducted with the jury

waiting in the deliberation room (ER Vol. VII at pages 1814-1842). At that hearing

appellant only admitted that she acted with extreme reckless indifference by pushing

her husband from the cliff while angry during a heated conversation. The

government did not object. (ER Vol. VII at page 1836).

In preparation for sentencing however the government disputed this plea

colloquy and argued that appellant acted with premeditation and should be sentenced

as a first degree murder offender (ER Vol. III at pages 593). Appellant both opposed

that argument on its merits and by separate motion moved to withdraw her guilty plea

in the context of which she renewed her prosecutorial misconduct motion and brief

(ER Vol. II at page 418). After entertaining oral argument on the motion it was

denied. (ER Vol. II at 417-430).

At sentencing appellant was sacked with a two point adjustment for obstruction

of justice for her deceptive statements and conduct despite the fact that the deceptions

only served to advance, not retard, the progress of the investigation. Furthermore

because her guidelines range base offense level was increased for obstruction she was

44


also denied any adjustment for acceptance of responsibility. That resulted in a

Guidelines Range of 292-365 instead of 188-235; with appellant being sentenced to

the high end of the former (a prison term of 365 months) to be followed by 5 years

of supervised release. (ER Vol. I at pages 1-7).

V. STATEMENT OF THE ISSUES

(A) WHETHER THE DISTRICT COURT ERRED IN FAILING TOINSPECT THE GRAND JURY MINUTES AND WHETHERTHIS COURT SHOULD ORDER AND CONDUCT THATINSPECTION NOW.

(B) WHETHER THE GOVERNMENT SHOULD HAVE BEENREQUIRED TO PROVE A NON-VINDICTIVE MOTIVE FORINCREASING THE CHARGE TO FIRST DEGREE MURDERAFTER APPELLANT SUCCESSFULLY ARGUED FOR BAIL.

(C) WHETHER APPELLANT SHOULD BE ENTITLED TOWITHDRAW HER GUILTY PLEA.

(D) WHETHER THE GOVERNMENT’S INTRODUCTION OFAPPELLANT’S JULY 16TH STATEMENT ON ITS CASE INCHIEF AS SUBSTANTIVE EVIDENCE WARRANTED ARULE 29 DISMISSAL OF THE MURDER CHARGESBECAUSE THE GOVERNMENT AFFIRMATIVELYSHOWED PROVOCATION/HEAT OF PASSION. OR PUTDIFFERENTLY: WHETHER THE GOVERNMENTCOMPROMISED ITS OWN CASE ON MURDER BYPROVING CIRCUMSTANCES IT WAS RESPONSIBLE FORDISPROVING BEYOND A REASONABLE DOUBT.

(E) WHETHER APPELLANT’S BASE OFFENSE LEVEL WASPROPERLY ENHANCED FOR OBSTRUCTION OF JUSTICE.

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(F) WHETHER APPELLANT OUGHT TO HAVE BEENAWARDED A DOWNWARD ADJUSTMENT FORACCEPTANCE OF RESPONSIBILITY.

VI. SUMMARY OF THE ARGUMENTS

“An act innocent on its face may be done with an evilpurpose. But where the fate of a human being is atstake the presence of an evil purpose may not be left toconjecture.” Bridges v. Wixon, 326 U.S. 135, 149(1945).

The government’s effort from beginning to end was nothing but a

kaleidoscopic set of theories in search of evidence. Evidence the government was

willing to distort and shape to suit its purposes. After taking appellant’s confession,

only parts of which it selectively recorded, the government even misreported a key

recorded portion of appellant’s description of what happened on the ledge. Appellant

clearly said in her recorded rendering to FBI Agent Smiedala that she neither walked

away nor intended to walk away from her husband during a heated discussion. In its

original complaint however the government falsely alleged before the magistrate

judge that appellant “walked away” from the argument only to return to push her

husband of eight days off the cliff. This feckless effort to contrive adequate time for

reflection to support malice/premeditation was brought to the district court’s attention

46


as early as the bail hearing where appellant was released over the government’s

vigorous objection.

Dissatisfied that appellant had been released on bail and concerned that its

distortion of the evidence had been so easily exposed the government upped

appellant’s charge to first degree murder. In place of the erroneous “she walked

away” hypothesis the government substituted its new surprise and “blindfold”

version. Using evidence it undoubtedly had in its possession before indictment, the

government next imagined that appellant tempted her husband to the ledge and

blindfolded him before pushing him off. Thus, since the government’s new and

contradictory blindfold theory did not surface until October 25th during a telephone

call between defense and government counsel (seven weeks after appellant was

arrested and three weeks after she was indicted) appellant moved for disclosure of the

grand jury minutes to determine both whether the government had vindictively upped

appellant’s charges and/or whether the blindfold theory had been posed to the grand

jury.

Unfortunately the district court deemed neither of these concerns worthy of

serious consideration. This was error that this Court needs to correct because there

is good reason to believe that the government never put its “blindfold” version before

the grand jury; which would mean that during trial the government consistently tried

47


to amend its indictment constructively with a contradictory theory it never pleaded,

thereby robbing appellant of her constitutional right to grand jury process.

The government’s persistence and the district court’s failures relative to the late

(and perhaps unindicted) blindfold postulate resulted in that theory surviving

appellant’s Rule 29 motion at the close of the government’s direct case. A case where

the government also proved inconsistently that appellant acted in a heat of passion

during an argument, by introduction of appellant’s July 16th statement without defense

objection. For this reason alone appellant’s conviction ought to be reversed and she

should be deemed eligible for retrial on manslaughter theories only, assuming without

conceding that appellant is subject to retrial at all.

Considering that the record emerged in a condition where the government was

at liberty to argue its contradictory blindfold theory appellant accepted the

government’s last minute offer to plead guilty to second degree murder in exchange

for dismissal of first degree murder. After appellant pled guilty as agreed on the basis

of her admission that she acted recklessly “with no regards to location or anything”

the government reneged and argued in its sentencing papers that appellant was guilty

of and should be sentenced for first degree murder. Appellant argues that this

flimflam was i) a continuation of the government’s pervasive prosecutorial

misconduct, ii) an outright repudiation of the plea agreement and iii) in the very least

48


a “fair and just reason” to warrant withdrawal of her guilty plea under Rule

11(d)(2)(B) Fed. R. Crim. P.

At sentencing the district court levied an unwarranted two point enhancement

for obstruction of justice on insubstantial grounds, giving no effect to the undisputed

fact that appellant’s conflicting and often incoherent words and actions in reality led

to both the discovery of her husband’s remains within 96 hours and her full

confession just a few days later. A confession the truth of which the government

opted not to test by administration of a polygraph, despite the opportunity to do so.

All leading to an erroneous denial of an acceptance of responsibility reduction in

appellant’s guidelines range which at a minimum justifies a resentencing hearing.

VII. ARGUMENTS

(A) THE GRAND JURY MINUTES NEED TO BE INSPECTED TODETERMINE THE GOVERNMENT’S ACTUAL THEORY FORPREMEDITATION BECAUSE THE COURT CANNOT PROPERLYEVALUATE APPELLANT’S PROSECUTOR MISCONDUCT CLAIMS OFEVIDENCE MANIPULATION, VINDICTIVENESS, AND AMBUSH UNTILTHE GOVERNMENT’S ORIGINAL GRAND JURY PROBABLE CAUSEFOR THE FIRST DEGREE MURDER CHARGE IS ESTABLISHED.

(1) Reviewability-Exhaustion

Appellant raised this claim by including it in her pretrial motion to dismiss (ER

Vol. X at pages 2483-2603). Specifically appellant argued, in part, that “the Court

should, at a minimum, inspect the grand jury minutes to determine whether the

49


government is constructively amending the indictment by adding a new theory for

guilt on which the grand jury did not pass” (ER Vol. X at page 2488). Moreover, this

claim was further clarified by the argument and case citations set forth in appellant’s

supporting brief. (ER Vol. X at pages 2604-2659). The district court denied the

motion (ER Vol. I at page 241).

(2) Standard of Review

Whether grand jury transcripts should be released is reviewed for abuse of

discretion. United States v. Plummer, 941 F.2d 799, 806 (9th Cir. 1991), citing,

Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979),

alternative cites omitted. The factors to be considered are: (1) will disclosure avoid

a possible injustice; (2) is the need for disclosure greater than the need for continued

secrecy; and (3) can the court ordering disclosure confine itself to ordering only those

parts of the grand jury record that need to be disclosed.

(3) Argument

Premeditation is the element central to distinguishing between degrees of

homicide in a federal murder prosecution. United States v. Hanson, 264 F.3d 988,

996 (10th Cir. 2001) (premeditation distinguishes first and second degree murder).

This legal rule figures heavily in this argument because the government offered

different narratives at different times explaining why appellant was guilty of killing

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Mr. Johnson. At first, based on a narrative that was false, appellant was arrested for

second degree murder. As explained previously the original allegations the

government relied on to arrest and charge appellant with second degree murder were

taken from the July 16th statement that she gave to Agent Smiedala. There are three

important points about that first narrative: It involved a heated argument between

appellant and Mr. Johnson; it also involved Mr. Johnson’s grabbing appellant’s arm

while on the ledge and appellant’s pushing instinctively, resulting in Mr. Johnson

going over the cliff. And, third, the government’s initial allegations falsely stated that

during the course of the argument appellant “turned and walked away.” (ER Vol. XI

at page 2846).

What matters here is that under that first narrative the only plausible contention

for premeditation/malice was that appellant “turned and walked away” but

nevertheless “due to her anger” went back to the area where Mr. Johnson was

standing to deliberately push him off the cliff to his death. In fact, the government

recognized this in its trial brief. (ER Vol. VIII at pages 1958-1963). In United States

v. Begay, 673 F.3d 1038 (9th Cir. 2011) (en banc) the defendant walked from the

victim’s vehicle back to his own to get his gun, hence the government’s original

theory for premeditation must have included the idea that appellant killed Mr.

Johnson by walking away and returning to push him to his death. Thus bearing in

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mind that appellant began criticizing the government’s original allegations for their

falsity as early as the bail hearing (ER Vol. XI at pages 2784-2829), it is reasonable

to infer that the government recognized at some point a need to reconfigure its theory

of the case. In a phrase: the government desperately needed a new organizing

narrative.

To this end government counsel called appellant’s counsel late in the day on

Friday, October 25th to explain that the government’s new theory of the case was that

appellant blindfolded Mr. Johnson. (ER Vol. X at page 2648). And not too long after

that the government officially expanded on this telephone notice by moving to

continue the trial and including in that motion a completely new narrative for

premeditation. (ER Vol. X at pages 2444-2445). Moreover, at the motions hearing

on November 15, 2013 the new blindfold theory was discussed pretty extensively

between government counsel and the district court. (ER Vol. IX at pages 2309-2316).

On September 9, 2013 appellant was charged by complaint with second degree

murder under a factual narrative that involved a heated argument. Under that original

narrative appellant allegedly “walked away” from the argument, which allegation was

proved to be false. Then when appellant was released on bail over the government’s

objection the United States vindictively increased her charge to first degree murder

for still undisclosed reasons. Thus appellant argues that the “particularized need”

52


necessary for the Court to order disclosure of the grand jury minutes is present here.

See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959) (where

ends of justice require it and defendant shows particularized need outweighs need for

secrecy inspection of minutes should be conducted).

An accused can be adequately notified of the nature and cause against her by

means other than the indictment. Sheppard v. Rees, 909 F.2d 1234, 1236 n. 2 (9th Cir.

1989) (defendant can obtain notice of factual allegations from complaint). As

relevant here the indictment in this case contains no factual recital outlining the

government’s theory for premeditation, the distinguishing element for first degree

murder. Therefore appellant understandably relied on the core factual narrative that

the government set out in the complaint’s supporting affidavit.

Since the government contends that it did not recognize any connection

between the black cloth and appellant’s July 16th statement until somewhere around

the time it was getting ready to go to grand jury in early October of 2013,

examination of the grand jury minutes can shed light on three important issues: (1)

whether the new blindfold theory was the reason appellant’s charges were increased

to include first degree murder, or whether the government acted vindictively because

appellant successfully argued for bail; (2) whether the blindfold theory was actually

presented to the grand jury to support premeditation; or (3) if the blindfold theory was

53


not presented to the grand jury whether pressing the blindfold theory amounted to a

constructive amendment of the indictment, and therefore a continuation of the

prosecutorial misconduct appellant alleged in her motion to dismiss.

The government’s relentless effort to impeach its initial complaint affidavit

through the course of the trial with the blindfold theory, in effect, constructively

amended the indictment. And as a result appellant was denied “[the] basic protection

which the guaranty of the intervention of a grand jury was designed to secure.”

Russell v. United States, 369 U.S. 749, 770 (1962). But if the government used the

“she walked away” theory before the grand jury reliance on that narrative results in

similar consequences. See, United States v. Basurto, 497 F.2d 781, 785 (9th Cir.

1974) (due process is violated “when a defendant has to stand trial on an indictment

which the government knows is partially based on perjured testimony, when the

perjured testimony is material, and when jeopardy has not attached”).

If the government used the “she walked away” theory at grand jury that was

false. On the other hand if the government simply decided to substitute the

“blindfold” theory for the “she walked away” theory without putting it before the

grand jury that was a constructive amendment of the indictment, which introduced an

evidentiary theory that appellant’s counsel had insufficient opportunity to defend

against. Sheppard v. Rees, 909 F.2d 1234, 1237 (9th Cir. 1989).

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Inspection of the grand jury minutes will aid in resolving these important

contentions.5

(B) APPELLANT MADE A SUFFICIENT SHOWING THAT THE FIRSTDEGREE MURDER CHARGE WAS BROUGHT VINDICTIVELYBECAUSE THE GOVERNMENT INCREASED HER CHARGES TOINCLUDE FIRST DEGREE MURDER AFTER SHE SUCCESSFULLYARGUED FOR PRETRIAL RELEASE OVER THE GOVERNMENT’SOBJECTION. THEREFORE THE DISTRICT COURT SHOULD HAVEREQUIRED THE UNITED STATES TO PROVE A NON-VINDICTIVEMOTIVE FOR BRINGING THE FIRST DEGREE MURDER CHARGE.


Appellant raised and argued this claim in her pretrial papers. (ER Vol. X at

pages 2489 and 2653-2654). The motion was denied without explanation or analysis.

(ER Vol. I at pages 240-261). Moreover, under this Court’s decision in United States

v. Garcia-Valenzuela, 232 F.3d 1003 (9th Cir. 2000) this claim survives for review

even though appellant pleaded guilty to Count II of the indictment.


Claims of prosecutorial vindictiveness are reviewed de novo. United States v.

Jenkins, 504 F.3d 694, 699 (9th Cir. 2007).

5 In this connection we point out for emphasis that in making her request forinspection of the grand jury minutes appellant was content to have the district courtconduct an in camera inspection. (ER Vol. X at page 2652). Cf. Pittsburgh PlateGlass, supra, 360 U.S. at 401 (noting that the defendants in that case never made arequest for in camera review and observing that the question would be reserved forresolution in a suitable future case).

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(3) Argument

Prosecutorial vindictiveness involves the situation where the government

punishes a defendant for her previous exercise of a constitutional or statutory right.

United States v. Goodwin, 457 U.S. 368, 372 (1982). Moreover, under a decision that

prefigured the Goodwin rule the Supreme Court held that “[t]o punish a person

because he has done what the law plainly allows him to do is a due process violation

of the most basic sort . . . and for an agent of the State to pursue a course of action

whose objective is to penalize a person’s reliance on his legal rights is ‘patently

unconstitutional.’” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (citation

omitted).

There are two ways a defendant can show prosecutorial vindictiveness. By

proving objectively that the prosecutor acted to punish him for standing on her legal

rights. Goodwin, 457 U.S. at 384 and n. 19. Or by showing a “realistic likelihood”

that vindictiveness played a role in “upping the ante” sufficient to cause the defendant

to fear that the government “will retaliate by substituting a more serious charge for

the original one . . .” Blackledge v Perry, 417 U.S. 21, 27-29 (1974). Thus where the

record suggests an objective intent on the part of the prosecutor to retaliate by the

bringing of an increased charge; or where there is proof that the prosecutor’s conduct

could cause apprehension that the government will retaliate by bringing a more

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serious charge, any increased charge is considered a due process violation and subject

to dismissal. On the other hand it is important to stress that in considering a claim of

vindictiveness the Court need not be convinced that the prosecutor intended to act in

bad faith or maliciously by increasing the charges or that “actual retaliatory

motivation must inevitably exist” Id. at 417 U.S. at 28.

This Court applied the reasoning of Blackledge in United States v. Ruesga-

Martinez, 534 F.2d 1367 (9th Cir. 1976). There, after his arraignment on a

misdemeanor illegal re-entry charge the defendant refused to waive his right to be

tried by a district judge, so the magistrate judged ordered the prosecutor to file an

Information. Instead the government sought and filed a two count indictment

charging felony crimes. After his motion to dismiss for vindictiveness was denied the

defendant was convicted on stipulated facts and he appealed. Relying on Blackledge

this Court held that the defendant’s due process rights are violated “when the

circumstances ‘pose a realistic likelihood of vindictiveness’ . . . even though there

was absolutely no evidence of vindictiveness in the record.” Ruesga-Martinez, supra,

534 F.2d at 1369, citing Blackledge, 417 U.S. at 27. The Court went on to hold that

in this type of a situation “the prosecution bears a heavy burden of proving that any

increase in the severity of the alleged charges was not motivated by a vindictive

motive.” Id. at 534 F.2d at 1369.

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Once the burden shifts what the government knew about its case when the

original charge(s) were filed is very important. For example, in Ruesga-Martinez, 534

F.2d at 1369-1370 the government tried to rebut the appearance of vindictiveness by

claiming that the defendant had an extensive criminal record:

On the record before us there is absolutely no evidence that justifies theincrease in the charges brought against appellant. The prosecutionattempts to justify its conduct by emphasizing that there was more thanample evidence that appellant was a multiple offender. This does not initself justify an increase in the severity of the charges in the secondproceeding because that evidence was known to the prosecution beforeit brought the original lesser charge. United States v. Gerard, 491 F.2d1300, 1304-07 (9th Cir. 1974). In the present case the only new factsalleged in the felony indictment were appellant's previous arrest,conviction, and deportation. There can be no doubt that such facts wereknown to the prosecution before it instituted the original complaint.

Ruesga-Martinez, 534 F.2d at 1369-1370

In a similar situation involving a defendant’s bid to transfer his case on venue

grounds the government made it clear that it would consider additional charges if the

case was transferred. After defendant’s venue motion was granted the government

added a new charge based on statements the defendant made to a United States

revenue agent. Defendant moved to dismiss this second indictment and the district

court granted that relief. United States v. DeMarco, 550 F.2d 1224 (9th Cir. 1977).

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On appeal this Court’s affirmance centered on two principle points: that the

facts on which the second indictment was brought were known before the first

indictment was returned; and that apprehension and/or the appearance of

vindictiveness are sufficient to bring a case within the Supreme Court’s ruling in

Blackledge. See Demarco, 550 F.2d at 1227-1228. Also see United States v. Jenkins,

504 F.3d 694 (9th Cir. 2007) (government failed to rebut presumption of

vindictiveness where defendant charged with new crimes after she assumed witness

stand in her own defense in a separate and previous case).

Here appellant successfully argued for release on bail which is both a statutory

and constitutional right. At the hearing before the Article III Judge on the

government’s motion to revoke appellant’s release appellant was critical of the

government’s decision to charge her with second degree murder, since even at that

early stage it was reasonably evident that the government had distorted the statement

appellant had given FBI Agent Smiedala on July 16th. (ER Vol. XI at pages 2720-

2729). In any case, the important point here is that once appellant successfully

argued for bail after being charged with second degree murder, the government

reconsidered its initial conclusion that second degree murder was the most serious

and readily provable charge.

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This is evident because two weeks later appellant was indicted for first degree

murder. See e.g. United States v. Andrews, 633 F.2d 449 (6th Cir. 1980) (en banc),

cert denied, 450 U.S. 927 (1981) (increasing charges following defendant’s

successful bail application that government vigorously opposed was vindictively

motivated but matter would be remanded to give prosecution an opportunity to

explain its conduct); also see United States v. Goodwin, 457 U.S. 368, 384 (1982)

(even where presumption of vindictiveness may not apply defendant not foreclosed

from proving objectively that prosecutor’s charging decision was motivated to

punish). Here appellant is claiming both presumptive and actual vindictiveness under

the following argument.

At the conclusion of the bail process the government knew that the defense had

a crude sense that the complaint’s subparagraph f. was a distorted version of what was

actually said during the interrogation session of July 16th. In other words once the

government recognized that appellant never actually said that she “walked away”

during the argument with Mr. Johnson on the ledge the government’s theory for

premeditation/malice aforethought evaporated. Hence it is more than reasonable for

this Court to infer that after appellant vindicated her right to bail the government was

motivated to distance itself from the false version of appellant’s July 16th statement

that it put before the magistrate judge. Therefore the government had to find a new

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theory for prosecution to both cover up its initial, erroneous claim that appellant had

actually “walked away”; and likewise to maintain a leveraged position in the

litigation.

In this connection government counsel’s closing remarks at the final bail

hearing are important:

MR. McLEAN: Your Honor, I think it is evident the governmenttakes a different view of the evidence in this casethan Mr. Donahoe does.

And, in fact, Mr. Donahoe has not seen much of thegovernment's evidence, and we won't be makingthose disclosures -- in the normal course ofprocedure.

. . . .

The government won't take the bait and argue ourcase today, but if this was an accident, why didn'tshe report it right away?

Your Honor, we respectfully request the Court takea fresh look at this detention issue and detain thedefendant pending trial.

Thank you, sir.

(ER Vol. XI at page 2729, ln. 15 through page 2730, ln. 22)

This brief colloquy with the district court at the bail hearing is revealing

because the government alludes to evidence that it did not include in filing the

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complaint. However, under the vindictiveness cases discussed above the analysis

does not center on what evidence the government may have held back in filing the

complaint, but rather on what it knew and when.

At the time of the bail proceeding, and before either the filing of the complaint

or the indictment, the government had all of the evidence that it would use later to

support its contention of killing with premeditation, including both the black cloth

and those portions of appellant’s July 16th statement claiming that Mr. Johnson had

said he could hike the cliff with a blindfold and that appellant had a surprise for him.

Scrutinizing this question even more closely forces the other substantial concern

whether the blindfold theory disclosed by the government for the first time in a

telephone call on October 25th was a serious theory for premeditation put before the

grand jury three weeks before that; or some last minute invention intended to cover

up the government’s initial pleading mistakes in the complaint and provide unfair

leverage to force a plea bargain.

In deciding this issue the Court ought to be mindful of the connection between

this vindictiveness argument and the first argument set forth above requesting

inspection of the grand jury minutes. Whether or not the government actually put the

blindfold theory before the grand jury could be significant for resolution of this

vindictiveness claim because if the grand jury minutes show that the government

62


centered its argument for premeditation on the theory that appellant blindfolded Mr.

Johnson that would tend to reinforce the conclusion that appellant’s charges were

increased based on evidence the government already had in its possession (i.e. the

black cloth collected during the recovery of Mr. Johnson’s remains on July 12th and

appellant’s July 16th statement to Agent Smiedala). Which under this Court’s

decisions would not be sufficient to rebut the presumption of vindictiveness

developed in this discussion. See United States v. Jenkins 504 F.3d 694 (9th Cir.

2007).

On the other hand if the government did not feature the blindfold theory during

its grand jury presentation actual vindictiveness would be the more sensible

conclusion to draw. Considering that the government knew or should have known

when it went to grand jury that appellant had not “walked away” from the argument

on the ledge; it also had to know, or should have known, that the most serious and

readily provable offense as set forth in the complaint was likely voluntary

manslaughter, based on appellant’s July 16th statement to Agent Smiedala. Thus to

defeat such an unacceptable outcome, and to provide leverage for plea bargaining, the

government invented a new organizing narrative based on evidence it had all along

but never put before the grand jury. Clearly vindictiveness under any relevant metric.

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(C) APPELLANT SHOULD HAVE BEEN ALLOWED TO WITHDRAW HERGUILTY PLEA FOR ANY ONE, OR A COMBINATION OF, THREEREASONS: (1) THE GOVERNMENT BREACHED THE ORAL PLEAAGREEMENT; (2) THERE WAS NO MEETING OF THE MINDS ON ANESSENTIAL TERM OF THE AGREEMENT; (3) IN ANY CASE IT WASONLY “FAIR AND JUST” TO ALLOW APPELLANT TO WITHDRAWHER PLEA WHETHER THERE WAS A PLEA AGREEMENT OR NOT.


Appellant filed a written motion and brief to perfect this claim (ER Vol. II at

pages 417-430). She also argued the point in writing in her response to the

government’s sentencing memorandum. (ER Vol. II at pages 451-454). Likewise

appellant, through her counsel, argued the motion to withdraw the plea orally just

before commencement of the sentencing. (ER Vol. II at pages 287-295). The motion

was denied. (ER Vol. II at page 303, lns. 12-13).

In denying the motion however it is important to point out that the district court

did not distinguish between the two standards appellant argued were applicable for

determining the motion: i) the breach of the plea agreement standard and ii) the “fair

and just reason” standard under Rule 11(d)(2)(B). (Cf. ER Vol. I at pages 22-28).

Furthermore although the district court recognized that the “fair and just reason” test

needs to be applied liberally, considering the facts of the case before it, the district

court nevertheless fashioned its own test by examining a list of factors drawn from

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decisions of this Court which we argue were irrelevant to the question before the

court. (ER Vol. I at pages 22-27).


Whether a defendant should have been allowed to withdraw her plea is

reviewed for abuse of discretion with underlying factual findings being reviewed for

clear error. United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009). A

district court can abuse its discretion by not applying the correct law or if it rests its

decision on clearly erroneous findings of material fact. United States v. State of

Washington, 98 F.3d 1159, 1163 (9th Cir. 1996). Whether the government breached

a plea agreement is reviewed de novo. United States v. Fisch, 863 F.2d 690 (9th Cir.

1988); also see, United States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000), citing,

Fisch, supra.

(3) Argument

On the final day of the trial as the defense was closing its case and the parties

were preparing to settle jury instructions, Mr. Cotter (the United States Attorney for

Montana) contacted defense counsel’s superior at the Federal Defenders Office and

said “Get a message to Michael (the undersigned) that the plea to second [Count II]

might still be open.” (ER Vol. I at page 19). To confirm that an offer for a plea to

Count II was available the undersigned went to “check with Mr. McLean” one of the

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counsel conducting the trial for the United States. Id. Once confirmed the parties

advised the district court that there was a possibility that appellant would be pleading

to Count II (ER Vol. VII at pages 1810-1813). Then in open court the following

ensued:

THE COURT: Please be seated.

Mr. McLean, it's my understanding that there havebeen some developments in this case.

MR. McLEAN: That is true, Your Honor.

THE COURT: For the record, would you state what thedevelopment is?

MR. McLEAN: Your Honor, defense counsel has informed theUnited States that the defendant intends to pleadguilty to Count II, second-degree murder. She willalso waive her double jeopardy rights with respect toCounts I and III. If the defendant pleads guilty toCount II, the United States will dismiss Counts I andIII at the time of sentencing.

THE COURT: Is that an agreement that has been discussed withMrs. Johnson?

MR. McLEAN: Yes, Your Honor.

(ER Vol. VII at page 1814)

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After this announcement the district court proceeded to take appellant’s guilty

plea wherein she admitted that she unlawfully killed Mr. Johnson by pushing him

from the ledge with malice aforethought by acting recklessly and in extreme disregard

for human life. (ER Vol. VII at pages 1814-1842). However in its sentencing papers

the government argued that appellant should be sentenced to life in prison as a first

degree murder offender because her “mental calculations . . . reveal[ed] a defendant

planning and considering murder.” (ER Vol. III at pages 584-585). Appellant

opposed this argument both on its merits and by moving to withdraw her guilty plea

before sentencing. (ER Vol. II at pages 434-466 and Vol. II 417-430).

As grounds for her plea withdrawal motion appellant argued prosecutor

misconduct; breach of the plea agreement and that the government’s promise to

dismiss Count I was an empty one, only intended to avoid the possibility of a

manslaughter verdict (ER Vol. II at pages 417-419). In response the government said

that appellant pleaded guilty “without the benefit of a plea agreement” (ER Vol. II at

page 413). However the district court assumed this was a scrivener’s error on the

government’s part (ER Vol. I at page 17, lns. 1-10 and page 27, lns. 14-20); and

eventually the government said that the word “written” should have been included in

its briefing phrase “without the benefit of a plea agreement” so that it would read

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“without the benefit of a [written] plea agreement” (Cf. ER Vol. II at page 413). In

finding the existence of a plea agreement the district court determined:

In that vein, I think it is important to note that I think there was an editing error or a misstatement, an inadvertent misstatement. One of thebriefs that the government filed said there is no plea agreement. Read inits entire context, I think the word "written" was omitted inadvertentlyand that the government is not taking the position that there is no pleaagreement.

The plea agreement in this case is that the defendant would plead guiltyto Count II, second-degree murder. She will waive her double jeopardyrights with respect to Counts I and III. If the defendant pleads guilty toCount II, the United States will dismiss Counts I and III at the time ofsentencing. There is no written plea agreement.

That is the plea agreement, and for purposes of the record, I am goingto accept the plea agreement in the case.

(ER Vol. I at page 27, ln. 14 through page 28, ln. 4)

A district court cannot accept a guilty plea unless it is satisfied that the plea has

a factual basis. McCarthy v. United States, 394 U.S. 459, 465-466 (1969). Having

a factual basis for the plea means determining “the conduct which the defendant

admits constitutes the offense charged in the indictment . . . to which the defendant

has pleaded guilty.” United States v. Partida-Parra, 859 F.2d 629, 631 (9th Cir.

1988), citing, Advisory Committee Notes, Santobello v. New York, 404 U.S. 257, 261

(1971) and Salas v. United States, 529 F.2d 1276, 1277 (9th Cir. 1975) (per curiam).

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When called upon the government accurately stated the elements for second

degree murder (ER Vol. VII at page 1831-1832). Two points are important here.

First, that second degree murder does not include the element of premeditation. See

e.g. United States v. Hanson, 264 F.3d 988 (10th Cir. 2001) (absence of premeditation

is distinguishing feature between first and second degree murder); and second, that

“malice aforethought” can be satisfied by evidence that the defendant killed either

deliberately and intentionally or recklessly with extreme disregard for human life.

See, United States v. Paul, 37 F.3d 496, 499 (9th Cir. 1994) (setting out federal law

regarding murder and manslaughter including different permutations of circumstances

and mental states).

Just prior to clarification of these elements (ER Vol. VII at pages 1831-1832)

appellant was asked to express her understanding of the plea agreement and she

replied: “[t]hat I plead to second degree, and the first charge [Count I] and the third

charge [Count III] will be dropped” (ER Vol. VII at page 1820). Next appellant

described and admitted facts to support her guilty plea to second degree murder (ER

Vol. VII at pages 1833-1839). Essentially appellant confirmed what she had told

Agent Smiedala on July 16th that during a heated discussion on the ledge Mr. Johnson

grabbed her and without walking away she reacted recklessly by pushing with “no

regards to location or anything” (ER Vol. VII at page 1833). Likewise when the

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question was specifically put to her by the district court appellant said that she had

not acted deliberately or intentionally but rather recklessly with extreme disregard for

Mr. Johnson’s life. (ER Vol. VII at page 1836, lns. 10-12). Furthermore, answering

additional questions appellant addressed other issues such as why she had Mr.

Johnson’s cell phone and the car keys, offering plausible explanations, which the

government did not dispute. (ER Vol. VII at page 1836). Appellant’s guilty plea was

then accepted by the district court (ER Vol. VII at page 1838).

The government promised that in exchange for appellant’s guilty plea to Count

II it would dismiss Counts I and III. Under any fair interpretation the purpose of this

agreement was to remove the element of premeditation from the menu of factors that

would be considered in deciding what degree of homicide appellant was to be held

accountable for. In other words, that the parties were in agreement that appellant had

committed a less serious crime as opposed to a more serious crime. This proved to

be an empty promise however because through its written sentencing arguments the

government for the first time, disputed appellant’s plea colloquy that she acted

recklessly by arguing that in fact she acted with calculation, planning and

premeditation and should be sentenced for committing first degree murder.

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For emphasis it is important to stress that there are two mutually exclusive

standards or legal tests involved here and that although appellant relies on both one

should not be confused with the other. First, is the plea agreement breach test which

we just argued generally above. It requires the Court to determine what the

agreement was; whether it was breached; and what remedy should apply. The rules

applicable to that analysis are set forth in numerous decisions of this Court, including

United States v. Franco-Lopez, 312 F.3d 984, 988 (9th Cir. 2002); also see, Allen v.

Hadden, 57 F.3d 1529, 1534 (10th Cir. 1995) and United States v. Ingram, 979 F.2d

1179, 1184 (7th Cir. 1992), citing, Santobello v. New York, 404 U.S. 257, 261 (1971)

(government must meet meticulous standards of both promise and performance of any

promise it expressly or implicitly makes in exchange for the defendant’s guilty plea).

If it is determined that the government breached the plea agreement the case

should be remanded for specific performance or withdrawal of the guilty plea,

although the choice of remedy under this paradigm rests with the court not the

defendant. Santobello v. New York, 404 U.S. 257, 263 (1971). The core argument

here is that having agreed to dismiss Count I the government stood silent at the plea

change hearing while appellant explained what happened on the ledge, at no time

disputing appellant’s articulated factual basis. However in its sentencing papers the

government argued that appellant actually committed and was accountable for first

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degree murder. United States v. Hawley, 93 F.3d 682, 693 (10th Cir. 1996), citing and

quoting United States v. Cooper, 70 F.3d 563, 567 (10th Cir. 1995) (“If at a later date

the government discovers facts [undercutting the basis for the plea agreement], it has

the ethical obligation to withdraw from the plea agreement and advise the defendant

so that he or she may prepare for trial or renegotiate. It is certainly not proper for the

government to wait until the sentencing hearing [and] then breach the terms of the

plea agreement....”).

Considering the Hawley/Cooper holdings what the government did here was

worse because the alleged premeditation factors that the government argued in its

sentencing papers were not newly discovered. In fact the government waived them

by standing silent when appellant said she acted recklessly. Put differently: the

government entered the plea agreement knowing full well it was going to argue guilt

for first degree murder anyway thereby rendering its promise to “dismiss” Count I a

hollow, formalistic gesture drained of any real meaning. This is, at a minimum,

sufficient to warrant a new sentencing hearing before a new district judge. United

States v. Johnson, 187 F.3d 1129, 1136 and n. 7 (9th Cir. 1999); and absent the

Court’s election of that remedy appellant must be allowed to withdraw her guilty plea

on account of the government’s conduct. Santobello, supra.

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On the other hand under the more liberal “fair and just reason” standard

applicable to plea withdrawal motions appellant should be authorized to withdraw her

guilty plea and start anew. See United States v. Showalter, supra, 569 F.3d 1150 (9th

Cir. 2009). Even assuming without conceding that the government was not expressly

precluded under the oral plea agreement from arguing premeditation (a point we

vigorously dispute) it was not fair and just for the government to lull appellant into

thinking that she was pleading guilty to a less serious crime knowing it intended to

argue that appellant was guilty of the greater crime scheduled for dismissal.

Rule 11 of the Federal Rules of Criminal Procedure (Addendum at pages 2-7)

and the sentencing guidelines provide strong support for the proposition that any

agreement for a guilty plea to a less serious crime in exchange for dismissal of a

greater crime ought to preclude argument that the defendant was in reality guilty of

the latter in order to increase the sentence on the former, unless the defendant is given

the option of withdrawing her plea. Under Rule 11(d) a defendant may withdraw a

plea after the plea is accepted, but before sentence, if the Court rejects the plea

agreement. See Rule 11(d)(2)(A).

Thus, in a situation where the court rejects a plea agreement which

contemplates dismissal of charges, an obligation arises in the court to inform the

parties that the plea is rejected; that permission to withdraw the plea will be granted

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for that reason; and that if the guilty plea is not withdrawn the court might dispose of

the case less favorably than may have been anticipated under the plea agreement.

In the usual case this situation arises where the court believes the plea

agreement is too generous and/or does not reflect the seriousness of the offense. Cf.

In re Ellis, 356 F.3d 1198 (9th Cir. 2004) (en banc) (district court’s remedy where

court determines plea agreement does not reflect seriousness of the offense is to

advise that plea agreement is rejected and give defendant opportunity to withdraw the

plea, not sua sponte vacate the guilty plea). Likewise the guidelines policy

statements in Chapter 6 outline a similar protocol. See USSG §6B1.3. (Addendum

at page 8). If the court is going to reject a plea agreement under which charges are

to be dismissed the defendant must first be given the option of withdrawing her plea.

Granted, these provisions address the duty of the court where it conceives that

the plea agreement does not reflect the actual seriousness of the offense. While here

the contention is that by its sentencing argument the government, a party in the case,

was signaling its view that appellant had not honestly pleaded guilty to a lesser crime.

But this is a distinction without a difference. If the district court is obliged under

Rule 11, and encouraged under USSG §6B1.3, to afford a defendant the opportunity

to withdraw her plea because it intends to reject the plea agreement the result should

be the same where, as is the situation here, the government takes inconsistent

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positions on whether appellant’s plea colloquy and her plea agreement reflected an

honest account of her conduct.

To obtain its conviction the government was content to allow the district court

to rely on appellant’s plea allocution without objection. But for sentencing the

government argued that appellant’s plea colloquy was a complete fabrication. In

essence the government argued in its sentencing papers the merits of the most serious

count in the indictment that it had clearly promised to dismiss. It is not “fair and just”

for the government to flimflam in this manner and it should be judicially estopped

from taking such inconsistent positions: one to exact a guilty plea, and another to

obtain the maximum sentence allowed under the statute. See e.g. Russell v. Rolfs, 893

F.2d 1033, 1037 (9th Cir. 1990) (Judicial estoppel protects against a litigant playing

fast and loose with rules and is commonly applied to bar a party from making

contradictory factual assertions in the same legal proceeding or a prior one).

This is not the typical situation where the government offered to settle a case

pretrial. Here, after four days of jury selection and presenting evidence, the

government evaluated its case and decided to waive its right to argue for a jury

finding of premeditated murder. It is not “fair and just” within the meaning of Rule

11(d)(2)(B) to authorize the government to avoid any possibility of defeat on a

reasonable doubt standard, only to be followed by the government’s sentencing

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argument on a preponderance standard that an entirely different crime was in fact

committed. Moreover, it is unfair procedure for the government to solicit the

resolution of a complex criminal case by plea to a lesser count just before closing

argument to the jury, only to turn around and argue that the defendant was guilty of

the greater charge all along. See e.g. Zinermon v. Burch, 494 U.S. 113, 125 (1990)

(Due Process Clause encompasses a guarantee of fair procedure). Likewise, it violates

due process and denies the right to jury trial for the government to conduct such a bait

and switch in order to lessen its proof burden.

The Supreme Court has recognized the need for constitutional fairness during

the plea process in a series of recent decisions. See Padilla v. Kentucky, 559 U.S. 356

(2010); Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct. 1376

(2012). Collectively, these decisions represent a thoughtful explanation why courts

need to protect the constitutional integrity of the plea agreement process. As the

Court stated in Frye:

Because ours “is for the most part a system of pleas, not a system oftrials,” it is insufficient simply to point to the guarantee of a fair trial asa backstop that inoculates any errors in the pretrial process. “To a largeextent … horse trading [between the prosecutor and defense counsel]determines who goes to jail and for how long. That is what pleabargaining is. It is not some adjunct to the criminal justice system; it isthe criminal justice system.” . . . In today's criminal justice system,therefore, the negotiation of a plea bargain, rather than the unfolding ofa trial, is almost always the critical point for a defendant.

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Frye, supra, at 1407 (quoting Scott & Stuntz, Plea Bargaining as Contract, 101 Yale

L. J. 1909, 1912 (1992)); see also Lafler, 132 S. Ct. 1376, 1388 (noting that

ninety-seven percent of federal convictions and ninety-four percent of state

convictions are the result of guilty pleas).

Appellant gave up a valued constitutional right by agreeing to terminate the

case by her guilty plea to Count II, instead of completing it before the first jury

empaneled to try her. Oregon v. Kennedy, 456 U.S. 667, 673 (1982). And she was

goaded into doing so by an empty promise to dismiss Count I. Whether conceived

as a breach of the oral plea agreement or not these circumstances furnish a

sufficiently “fair and just reason” to allow appellant to withdraw her guilty plea with

no right of retrial by the government on the murder counts. Oregon v. Kennedy,

supra, (prosecutor misconduct intended to goad defendant into agreeing to a mistrial

can serve as bar to further prosecution under the double jeopardy clause).

(D) THE GOVERNMENT’S POSITIVE PROOF ON ITS CASE IN CHIEF THATAPPELLANT ACTED ON ADEQUATE PROVOCATION AND IN A HEATOF PASSION SHOULD HAVE RESULTED IN THE RULE 29 DISMISSALOF THE MURDER COUNTS AND THIS COURT SHOULD ORDER THATNOW.


Appellant’s constitutional sufficiency of the evidence claim is preserved for

review because at the close of the government’s case she argued that the evidence

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was insufficient to go to the jury on Count I. (ER Vol. VII at pages 1727-1729).

Appellant also urged at her sentencing hearing that Count I should have been

dismissed with prejudice but the court overruled the objection and dismissed it

without prejudice. (ER Vol. I at pages 125-126).

Furthermore appellant argues that given the government’s breach of the plea

agreement and withdrawal of her guilty plea (which appellant anticipates this Court

will authorize) the record is now in a condition where denial of the Rule 29 motion

on Count I is both exhausted and ripe for consideration in this appeal. Cf. United

States v. Gonzalez, 16 F.3d 985, 989 (9th Cir. 1990) (government’s breach of plea

agreement released defendant from promise not to appeal). So too here the

government’s breach and appellant’s withdrawal of her plea puts the record in a

condition where appellant’s Rule 29 motion is a live issue appropriate for

consideration and resolution in this appeal.


If reasonable jurors must necessarily have a reasonable doubt the judge must

require acquittal since no other result is permissible within the fixed bounds of jury

consideration. This has been, and remains, “the prevailing criterion for judging

motions for acquittal in federal criminal trials” Jackson v. Virginia, 443 U.S. 307, 319

n.11 (1979). Moreover, in making this determination the district court is “not to

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weigh the evidence or assess credibility of witnesses when it judges the merits of a

motion for acquittal.” Burks v. United States, 437 U.S. 1, 16 (1978).

(3) Argument

During its case-in-chief the government called FBI Agent Smiedala as its 29th

and penultimate witness. Once sworn Agent Smiedala laid the foundation for

government’s Exhibit 87, appellant’s audio recorded statement taken by himself and

Kalispell Detective Smith on July 16, 2013 at the Kalispell police station. This audio

recording was admitted in evidence without objection and played in its entirety for

the jury. (See ER Vol. VI at pages 1566-1603 and Vol. VII at pages 1604-1616).

Careful review of this audio recorded statement leaves no question that during

its case-in-chief the government — the party with the burden of proof — sponsored

evidence that appellant acted in a heat of passion brought on by an adequate

provocation, which under this Court’s decision in United States v. Quintero, 21 F.3d

885 (9th Cir. 1994) served to reduce appellant’s conduct from first degree murder to

voluntary manslaughter.

Granted, Quintero does hold that the government is required to prove sudden

quarrel or heat of passion. 21 F.3d at 890. But Quintero does not address the unusual

situation presented here where the government purposely, and without defense

objection, offered in evidence an organizing narrative of events that proved the lesser

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crime of voluntary manslaughter which under any analysis negates the element of

premeditation/malice required for finding of murder.

Before trial the government knew that not every statement made by a defendant

is considered to be non-hearsay and admissible in evidence. In fact it said so in its

trial brief. There, the government cites this Court’s decision in United States v.

Ortega, 203 F.3d 675, 682 (9th Cir. 2000) to explain its understanding of the

distinction between a defendant’s non-inculpatory and inculpatory statements

recognizing that, while the latter are not considered hearsay, the former are

excludable under the rule. (ER Vol. VIII at page 1967; cf. ER Vol. I at page 252 at

fn. 3 where district court explains the implications of Ortega). Hence by playing

Exhibit 87 without objection the government waived any hearsay objection to each

and every non-self inculpatory statement that appellant made during the July 16th

interrogation session. In other words, all of appellant’s statements on the audio

recording came in as substantive evidence.

This follows under the Supreme Court’s rule in Diaz v. United States, 223 U.S.

442, 450 (1912):

True, the testimony could not have been admitted without the consentof the accused, first, because it was within the rule against hearsay, and,second, because the accused was entitled to meet the witnesses face toface. But it was not admitted without his consent, but at his request, forit was he who offered it in evidence. So, of the fact that it was hearsay,

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it suffices to observe that when evidence of that character is admittedwithout objection, it is to be considered and given its natural probativeeffect as if it were in law admissible.

Diaz, 223 U.S. at 450 (citations omitted) (emphasis added)

Cf. United States v. Foster, 711 F.2d 871, 877 (9th Cir. 1983) (following the

rule and citing cases); and likewise see United States v. Johnson, 577 F.2d 1304, 1312

(5th Cir. 1978) (same).

Under these decisions appellant’s July 16th audio recorded interrogation was

in evidence and available for use as substantive evidence; or expressed in hearsay

jargon, the entire July 16th statement was available for use as the truth of the matters

asserted therein. Therefore, the argument runs, the murder counts should have been

dismissed on appellant’s Rule 29 motion because at the close of its case-in-chief the

substantive evidence presented by the government contained facts that would fairly

serve a reasonable mind to be in balance as between guilt and innocence. Curley v.

United States, 160 F.2d 229, 233 (D.C. Cir. 1947), cert. denied, 331 U.S. 837 (1947);

see also, Jackson v. Virginia, 443 U.S. 307, 319 n. 11 (1979) citing and adopting with

approval the Curley test as the prevailing standard for Rule 29 motions in federal

court. In addition this follows with equal force because in deciding a sufficiency of

the evidence motion under Rule 29 the district court is “not to weigh the evidence or

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assess the credibility of witnesses when it judges the merits of the motion . . .” Burks

v. United States, 437 U.S. 1, 16 (1978).

By offering without limitation appellant’s recorded confession of July 16th the

government affirmatively sponsored into evidence all of appellant’s statements going

to provocation/heat of passion. Once this evidence was in the record and available for

the truth of the matters asserted (which it clearly was under Diaz, supra) “the burden

[was] on the government to prove beyond a reasonable doubt the absence of sudden

quarrel or heat of passion before a conviction for murder [could] be sustained.”

United States v. Quintero, 21 F.3d at 890 (emphasis original). Thus the government

proved on its case-in-chief by compelling substantive evidence the presence of

circumstances which under the law it was in fact obliged to prove were absent beyond

a reasonable doubt.

Accordingly once this Court authorizes appellant to withdraw her guilty plea

the murder counts of the indictment should be dismissed for insufficiency of the

evidence because any argument for premeditation/malice was defeated in the

government’s case-in-chief proof that the killing occurred in a heat of passion,

brought on by an adequate provocation.

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(E) APPELLANT’S GUIDELINE LEVEL SHOULD NOT HAVE BEENENHANCED TWO POINTS FOR OBSTRUCTION OF JUSTICE.


Appellant argued this point in her sentencing memorandum (ER Vol. III at

pages 502-523) and orally at the sentencing hearing (ER Vol. I at pages 43-51). The

objection was overruled. (ER Vol. I at page 57).


Interpretation and application of the sentencing guidelines are reviewed de

novo. United States v. Luca, 183 F.3d 1018, 1021 (9th Cir. 1999). Findings of fact

to support application of the guidelines are reviewed for clear error. Id.

(3) Argument

All of the arguments that we advanced in writing and orally at the sentencing

hearing are reasserted here6 with emphasis on the following points.

The gist of the district court’s ruling is captured in the following oral

assessment by the district judge:

But I think it's distinct from the situation in Solano-Godines because herdeceptions lasted, as Mr. Baucus points out, for a number of days. Andunlike the situation there, she did cause law enforcement to follow up onnumerous false leads and false information, and she wasn't very adeptat lying. She was quite proficient at multiplicity of lying. But herconduct in this case, I think, under that argument, it is obstruction,

6See ER Vol. I at pages 8-129 and Vol. II at pages 417-430, 499-542.

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because it caused the investigation to take different turns and twists thanit would have had she been forthright and told the truth.

And I think there is authority cited, U.S. v. Manning, where the Courtsaid -- that's a First Circuit case, but nonetheless said it's clear that theinvestigation would have proceeded -- it's unclear that the investigationwould have proceeded any differently or any faster had the defendantsimply stated, in that case, his identity at the time of the arrest. But that'snot the case here.

When you consider Ms. Jordan's statements, the multiplicity ofstatements, the consistent effort to bolster her lies by telling other lies toother people, I think that her actions significantly obstructed theinvestigation.

But even if Mr. Donahoe's argument is meritorious, I think he loses onthe fabrication of the e-mail from that fictitious account, and that isindependent conduct that is obstructive. And she provided lawenforcement with an e-mail from an e-mail account under the name ofcarmantony607 that she had created. That's referenced in thepresentence report at paragraph 18. And the document reasserted thefalse story that Cody had left with friends and that he was, quote, gone,end quote.

This enhancement, as I indicated in my colloquy with Mr. Donahoe, Ibelieve, applies because it involved the producing or attempting toproduce a false or altered or counterfeit document or record during anofficial investigation. And Application Note 4(C) specifically does notreference the question of materially false, that significantly obstructed,but even if that language is incorporated, this was a materially falsestatement. And I think that it did significantly instruct or impede theinvestigation and caused, as I indicated, the officer to follow up with afellow named Tony and basically to conduct an investigation to seekout, as he indicated he was going to, to subpoena records from Google

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to confirm that the e-mail did not come from the gentleman's account.And I think that alone is sufficient to trigger the enhancement.

(ER Vol. I at page 56, lns. 3-25 through and including page 57, lns. 1-22)

Under this ruling the district court breaks the alleged obstruction into two parts,

treating the email as independent from appellant’s other deceptions. Bearing in mind

that the district court characterizes the first part of its two components as “a little bit

[of a] closer call” (ER Vol. I at page 55, ln. 3) we urge this Court to carefully examine

the list of factors the district court used to distinguish United States v. Solano-

Godines, 120 F.3d 957 (9th Cir. 1997):

(1) appellant’s decisions lasted for a number of days;

(2) she caused law enforcement to follow up on numerous false leadsand false information;

(3) although appellant wasn’t adept at lying she lied multiple times;

(4) the lies caused the investigation to take different twists and turnsthan it would have if she just told the truth.

(ER Vol. I at page 56)

Reasons (2) and (4) are duplicative of each other and are in any case incorrect.

Aside from the email, which we discuss next, the record in this case simply does not

show that law enforcement had to follow up on numerous false leads and false

information. As for reason (3), not only do the ideas articulated there work at cross-

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purposes with each other, they each represent a gross departure from the Solano-

Godines test and the standard employed by other circuits. It’s not the quantity of the

lies that matters. What matters is whether the false statements posed a significant

hindrance to the investigation or prosecution. That is not the case here.

As the record reflects, by July 11th law enforcement had located Mr. Johnson’s

remains due to appellant’s conduct in taking the search party to that location.

Moreover, appellant’s disclosure of the location of her husband’s remains only served

to intensify suspicion of her involvement. And since it was the government’s burden

to prove the opposite that appellant substantially impeded either the missing persons

or the homicide investigation the two point upward adjustment under §3C1.1 was

wrongly imposed. Without some connection between the alleged obstruction and the

federal offense USSG §3C1.1 is not applicable. United States v. Jenkins, 275 F.3d

283, 289 (3rd Cir. 2001).

As for the email it was nothing more content-wise than a reprise of the same

false story that appellant had been repeating from the beginning. Furthermore, the

email was not entirely false in that it accurately stated that Mr. Johnson had “got out

of the car and went for a little hike and they are positive he fell and he is dead.” (PSR

at page 7, ¶18). Detective Clarke was given the email on July 10th and he vetted it to

his satisfaction by the end of the day ultimately learning that appellant sent it to

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herself. Given that appellant took the search party to the Loop on July 10th and 11th

there was no material hindrance to the overall progress of the investigation. Instead

these random, transparent disclosures by appellant had the exact opposite effect. The

missing persons investigation rapidly progressed and ended because the federal

government came on the scene to investigate what it rightly considered a potential

homicide.

(F) APPELLANT SHOULD HAVE BEEN AWARDED A TWO POINTDOWNWARD ADJUSTMENT FOR ACCEPTANCE OF RESPONSIBILITYAND WITHOUT IT APPELLANT’S SENTENCE IS PROCEDURALLYDEFECTIVE AND UNREASONABLE.


Appellant argued for a downward adjustment under USSG §3E1.1 for

acceptance of responsibility in her sentencing memorandum. (ER Vol. II at page

529). Likewise she advocated orally for acceptance points at the sentencing hearing.

(ER Vol. I at pages 57-61). The request for this downward adjustment was denied.


Whether a person has accepted responsibility for a crime is a factual

determination that will not be disturbed unless without foundation. United States v.

Gonzales, 16 F.3d 985, 990 (9th Cir. 1993). The necessary contrition and remorse for

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an award of acceptance points should be inferred where the offender indicates she

feels bad for what she has done and the pain she has caused. Id.

(3) Argument

Even assuming without conceding that the obstruction points were correctly

imposed this was a case that warranted an acceptance of responsibility adjustment

nevertheless. Furthermore, the district court’s failure to award an acceptance of

responsibility adjustment resulted in an incorrect guidelines calculation. Hence on

the first level of analysis since the guidelines range is wrong the Court should remand

the case for resentencing. United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (en

banc). In support of these contentions appellant argues as follows.

Under the multiple theories that the government advanced for guilt there was

a corresponding uncertainty whether the case should be pled or tried:

Your Honor knows that we try and leave no stone unturned, and we didwhat we could pretrial with what we had to work with. And I've beenwrong plenty of times in my career, and I accept full responsibility formistakes I've made professionally, but I just thought it was a closer callbetween the first and the second degree. And if Your Honor could just --I hope this isn't out of line, but just see it through my eyes for thisminute: that I conceived a fair fight to be between second and themanslaughter instructions and that if we could get there, she'd have afighting chance.

And when I looked at it that way, the only way that I could get there --I couldn't come in pretrial and ask Your Honor to take a look at the factsand dismiss Count I. I couldn't do that. The only procedural posture that

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I had available to me to put before the Court to exact a ruling was theRule 29 motion at the close of the government's case. And I gave it mybest effort in chambers that day, and Your Honor fully considered it,listened to my argument, and said, "No, I'm sorry, I think that there issufficient evidence for a jury to make a reasonable decision one way orthe other whether it was first or not."

And I accepted that, but I needed to get there, and that was the reasonfor the trial. And that is, in fact, a constitutional claim in its own right.That sufficiency, that piece of this litigation is a claim that we couldhave preserved. I suppose if we had argued the thing to the jury andsecond degree came out, or first degree came out, I would have arguedthat as a constitutional claim, that, Your Honor, meaning no disrespect,but that there was an error there, that the proof should have beenconsidered otherwise and the first count should have been dismissed.

So given all those things, I mean, we could have handled this in adifferent way, I suppose, and pled it sooner and all of that, but therewere those fine, fine distinctions that we were trying to make and toprotect our rights. And I don't think that she should be punished for that.She was willing to come forward and expound on maybe what she hadtold to Agent Smiedala or whatever, but we just counseled herotherwise.

(ER Vol. I at page 59, ln. 18 through page 61, ln. 12)

The shifts in the government’s contentions beginning with “she walked away”

which was false; and ending in “she blindfolded him and pushed him off the cliff”

had a profound effect on how this case was analyzed by defense counsel.

Considering that there is no pretrial summary judgment motion in a criminal case

where a defendant can argue for dismissal of a charge before trial, see United States

v. Nukida, 8 F.3d 665 (9th Cir. 1993); and given the contradiction between the “she

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walked away” theory and the “blindfold” theory, the defense had no choice but to try

this case.

Here it merits emphasis that had the government not charged first degree

(which charge we contend was brought vindictively) or had it stuck to a single theory

this matter would have gone to jury verdict. In other words, a contest whether

appellant’s conduct amounted to second degree murder or manslaughter would have

been fair. But once the government leveraged its case with a count for conviction

(first degree) that would have resulted in a mandatory life prison sentence the only

way appellant could level the playing field was to get the first degree charge off the

table; and the only way to accomplish that was to try the case and have the charge

dismissed under Rule 29.

Granted, the defense was unsuccessful in that endeavor; but that does not alter

the fact that the only way appellant could achieve that result, and perhaps secure a

manslaughter verdict, was to try the case at least to the point of the Rule 29 motion.

A false affidavit offered in support of the complaint, a shift in theories for conviction

with no real understanding whether that charge was actually considered by the grand

jury; and a presentation by the government of substantive evidence that is in inherit

conflict, proving only that appellant acted in a heat of passion. Add to this a

confession that was only partially recorded and a “plea agreement” where the

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government agreed to guilt for a lesser crime; only to pull a bait and switch at

sentencing to argue appellant’s guilt for a greater crime.

Finally, this Court should consider that the district court committed two other

errors regarding acceptance of responsibility. First, it hinted that appellant did not

in fact display remorse or feel sorry for what she did. (ER Vol. I at pages 66-67).

This is wrong. From July 16th, 2014 forward appellant owned her conduct. In

appellant’s acceptance letter, which the Judge indicated “was filed after the

presentence report” (ER Vol. I at page 67) appellant wrote:

STATEMENT OF ACCEPTANCE OF RESPONSIBILITY

I want everyone to know that I accept full responsibility for my recklessact that took Cody’s life. I think about Cody and Sherry everyday. Ithink about how sorry I feel. I wish I could tell Sherry how sorry I am. I know how close Cody and Sherry were. Cody was her only child. Ithink about how much I miss Cody and what we would be doingtogether today. We might have a baby on the way. I think abouteveryone who loved Cody. I pray for them. I think about why I did notdrive to get help right away. I can’t explain why I didn’t drive straightto the lodge to get help or why I lied to the police. I panicked. I knewwhat happened but I did not want to believe it happened. I don’t thinkI was thinking at all. I did want everyone to know and to find Cody andhave his funeral. I am so sorry.

DATED this 11th day of March, 2014.

s/ Jordan Linn Graham

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Appellant’s acceptance of responsibility was further reinforced during her

allocution when she turned to her mother-in-law, Sherry Johnson, and offered a

heartfelt apology for the extreme pain she caused. Appellant told the Judge that every

day she wonders why she didn’t make different decisions that night, and is still at a

loss to explain her failure to seek help right away. She ended with “things were not

supposed to be this way, and I once again am just truly and deeply sorry.” (ER Vol.

I at pages 88-89). Furthermore, it should be stressed that as a procedural matter the

district court denied acceptance points before appellant delivered her allocution. For

that procedural defect alone appellant ought to be resentenced. Cf. United States v.

Wolfe, 71 F.3d 611, 614-615 (6th Cir. 1995) (noting that “neither the right to

allocution . . . nor the procedures for dealing with controverted [sentencing] matters

. . . indicate that a judge may not state his ruling . . . before the defendant or his

counsel is given a chance to speak” but suggesting opposite sequence to advance the

appearance of fairness).

Jordan Graham, a sheltered, immature 21year old married Cody Johnson on

June 29, 2013. Attendees at the wedding testified she cried briefly as she walked

down the aisle to be married. Rather than tears of joy however, one witness described

them as “tears of scared.” (ER Vol. IV at page 847.) On July 16, 2013, FBI Special

Agent Smiedala recorded a portion of appellant’s confession where she admitted

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being in Glacier National Park with Mr. Johnson on the night of July 7, 2013. She

described arguing on a small ledge overlooking a steep narrow ravine, and

demonstrated for the agent the grab and push that led to the tragic death of Mr.

Johnson, her husband of eight days:

MS. GRAHAM: I didn't even want to go up to the park.

SA SMIEDALA: Okay.

MS. GRAHAM: No, I, I wanted to stay home and talk about things.

SA SMIEDALA: Okay. And just kind of the, the heat of the moment.Do you, and I guess this is an important question.Do you feel responsible for his death?

MS. GRAHAM: In a sense, I mean, being that I was the last one thatpushed, even though I, one hundred percent, did notdo that on purpose. I don't, I mean, I don't feel likeI killed him. I mean, I did push –

SA SMIEDALA: Um-hmm.

MS. GRAHAM: -- but it was kind of an act of self-defense, so.

SA SMIEDALA: Okay.

MS. GRAHAM: I mean, it never was planned, no. I would never,ever, ever plan or do that to anybody.

SA SMIEDALA: Right.

MS. GRAHAM: I couldn't.

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SA SMIEDALA: Do you think that you lost track of where you wereat on the, on the mountain, and –

MS. GRAHAM: Yeah, I think I didn't realize that one push wouldmean for sure you were over.

SA SMIEDALA: But you went up there earlier, and you told meearlier that you knew that was a very --

MS. GRAHAM: I knew that was a dangerous spot, but, I mean, therewere other little spots on the side that you couldwalk to or whatever, like if I were to push over, I --you know, he could kind of go down but notstraight.

SA SMIEDALA: Right. Okay. So an emotional situation that justturned very bad? Is that the best way to describe –

MS. GRAHAM: (Inaudible.) Emotions were higher than I've everexperienced.

SA SMIEDALA: Okay. And was there any consideration at yourpoint, and, and I need you to be a hundred percenthonest with me at this moment, because I know youwere scared, and I know that, you know, things weregetting pretty heated, okay, and you'd had that wholeweek of saying to yourself, "Ooh, do I really want tobe married?" okay, type of thing. Did it feel as ifmaybe some way of just to clear yourself of thissituation?

MS. GRAHAM: I don't really understand that question.

SA SMIEDALA: By, by pushing him, did you feel like it was maybeway of just like -- you know, this was a way to takecare of this and "to get me out of this situation"?

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MS. GRAHAM: No, no. I didn't want to not be with him. I stillwanted to be with him and have a life with him.

SA SMIEDALA: Okay.

MS. GRAHAM: I mean, I still, I still wanted to be married and justkind of see if it would get better in time. I didn'twant to get divorced, but, I mean, I didn't want tonot have him for the rest of my life.

SA SMIEDALA: Okay. So -- but as you and I talked about before,from an emotional perspective, it was an emotionalsituation, and so from that perspective, do you feelresponsible for his death?

MS. GRAHAM: From that perspective, I do, yes, because I was theone that --

SA SMIEDALA: You were the last one that, that pushed and --

MS. GRAHAM: Yes.

(ER Vol. VI at page 1589, ln. 12 through 1592, ln. 10)

VIII. REQUESTED RELIEF

WHEREFORE, appellant prays the Court will consider her appeal and grant

appropriate relief along the following suggested lines:

• vacate appellant’s guilty plea;

• determine the nature, extent and impact of the government’smisconduct;

• alternatively remand the case for the government to prove a non-vindictive motive;

95


• grant and order any other appropriate relief that the Court deemswarranted in the circumstances including prohibiting the governmentfrom retrying appellant for murder or any other offense.

Respectfully submitted October 17, 2014.

Jordan Linn GrahamDefendant-Appellant

BY: _s/Michael Donahoe____MICHAEL DONAHOEAttorney for Defendant-Appellant

96


IX. STATEMENT OF RELATED CASES

The undersigned is not aware of any related case pending in this court related

to this one.


BY: _s/ Michael Donahoe_______MICHAEL DONAHOEAttorney for Defendant-Appellant

97


X.

CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C) and CIRCUIT RULE 32-1

FOR CASE NO. 14-30062

I certify that pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-

1, this opening brief exceeds the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) because it contains 23,408 words, excluding parts of the brief exempted

by Fed. R. App. P. 32(a)(7)(B)(iii). (Opening briefs must not exceed 14,000 words,

excluding tables and certificates).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been

prepared in a proportionally spaced type face using Word Perfect, Version 9, in Times

New Roman 14.

DATED October 17, 2014.


BY: _s/Michael Donahoe_______MICHAEL DONAHOE

Attorney for Defendant-Appellant

98


XI. CERTIFICATE OF MAILINGFed.R.App.P. Rule 25

I hereby certify that on October 17, 2014, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of appeals for the Ninth

Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the

appellate CM/ECF system.

I further certify that some of the participants in the case are not registered

CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage

prepaid, or have dispatched it to a third party carrier for delivery within 3 calendar

days, to the following non-CM/ECF participants:

Jordan Linn GrahamNo. 12764-046FCI AlicevilleP.O. Box 4000Aliceville, AL 35442

s/Michael Donahoe MICHAEL DONAHOESenior LitigatorCounsel for Defendant-Appellant

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ADDENDUM


West's Montana Code Annotated CurrentnessTitle 46. Criminal Procedure

Chapter 4. Investigative Procedures (Refs & Annos)Part 4. Custodial Interrogations----Recording

46-4-408. Recordings required

Except as provided in 46-4-409, all custodial interrogations must beelectronically recorded. The recording must contain a peace officer advising theperson being interviewed of the person's Miranda rights, a recording of the interview,and a conclusion of the interview.

CREDIT(S)

Enacted by Laws 2009, ch. 214, § 3, eff. Oct. 1, 2009.

Statutes are current through the 2013 Session, and the 2012 general election.

ADDENDUM - Page 1


United States Code Annotated Currentness

Federal Rules of Criminal Procedure for the United States District Courts (Refs & Annos)

IV. Arraignment and Preparation for Trial

Rule 11. Pleas

(a) Entering a Plea.

(1) In General. A defendant may plead not guilty, guilty, or (with thecourt's consent) nolo contendere.

(2) Conditional Plea. With the consent of the court and the government,a defendant may enter a conditional plea of guilty or nolo contendere,reserving in writing the right to have an appellate court review anadverse determination of a specified pretrial motion. A defendant whoprevails on appeal may then withdraw the plea.

(3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, thecourt must consider the parties' views and the public interest in theeffective administration of justice.

(4) Failure to Enter a Plea. If a defendant refuses to enter a plea or if adefendant organization fails to appear, the court must enter a plea of notguilty.

(b) Considering and Accepting a Guilty or Nolo Contendere Plea.

(1) Advising and Questioning the Defendant. Before the court accepts aplea of guilty or nolo contendere, the defendant may be placed underoath, and the court must address the defendant personally in open court.During this address, the court must inform the defendant of, anddetermine that the defendant understands, the following:

ADDENDUM - Page 2


(A) the government's right, in a prosecution for perjury or falsestatement, to use against the defendant any statement thatthe defendant gives under oath;

(B) the right to plead not guilty, or having already so pleaded,to persist in that plea;

(C) the right to a jury trial;

(D) the right to be represented by counsel--and if necessaryhave the court appoint counsel--at trial and at every otherstage of the proceeding;

(E) the right at trial to confront and cross-examine adversewitnesses, to be protected from compelledself-incrimination, to testify and present evidence, and tocompel the attendance of witnesses;

(F) the defendant's waiver of these trial rights if the courtaccepts a plea of guilty or nolo contendere;

(G) the nature of each charge to which the defendant ispleading;

(H) any maximum possible penalty, including imprisonment,fine, and term of supervised release;

(I) any mandatory minimum penalty;

(J) any applicable forfeiture;

(K) the court's authority to order restitution;

(L) the court's obligation to impose a special assessment;

ADDENDUM - Page 3


(M) in determining a sentence, the court's obligation tocalculate the applicable sentencing-guideline range and toconsider that range, possible departures under theSentencing Guidelines, and other sentencing factors under18 U.S.C. § 3553(a);

(N) the terms of any plea-agreement provision waiving theright to appeal or to collaterally attack the sentence; and

(O) that, if convicted, a defendant who is not a United Statescitizen may be removed from the United States, deniedcitizenship, and denied admission to the United States inthe future.

(2) Ensuring That a Plea Is Voluntary. Before accepting a plea ofguilty or nolo contendere, the court must address the defendantpersonally in open court and determine that the plea is voluntaryand did not result from force, threats, or promises (other thanpromises in a plea agreement).

(3) Determining the Factual Basis for a Plea. Before enteringjudgment on a guilty plea, the court must determine that there isa factual basis for the plea.

(c) Plea Agreement Procedure.

(1) In General. An attorney for the government and the defendant'sattorney, or the defendant when proceeding pro se, may discussand reach a plea agreement. The court must not participate inthese discussions. If the defendant pleads guilty or nolocontendere to either a charged offense or a lesser or relatedoffense, the plea agreement may specify that an attorney for thegovernment will:

(A) not bring, or will move to dismiss, other charges;

ADDENDUM - Page 4


(B) recommend, or agree not to oppose the defendant's request,that a particular sentence or sentencing range is appropriateor that a particular provision of the Sentencing Guidelines,or policy statement, or sentencing factor does or does notapply (such a recommendation or request does not bind thecourt); or

(C) agree that a specific sentence or sentencing range is theappropriate disposition of the case, or that a particularprovision of the Sentencing Guidelines, or policystatement, or sentencing factor does or does not apply(such a recommendation or request binds the court once thecourt accepts the plea agreement).

(2) Disclosing a Plea Agreement. The parties must disclose the pleaagreement in open court when the plea is offered, unless the courtfor good cause allows the parties to disclose the plea agreementin camera.

(3) Judicial Consideration of a Plea Agreement.

(A) To the extent the plea agreement is of the type specified inRule 11(c)(1)(A) or (C), the court may accept theagreement, reject it, or defer a decision until the court hasreviewed the presentence report.

(B) To the extent the plea agreement is of the type specified inRule 11(c)(1)(B), the court must advise the defendant thatthe defendant has no right to withdraw the plea if the courtdoes not follow the recommendation or request.

(4) Accepting a Plea Agreement. If the court accepts the pleaagreement, it must inform the defendant that to the extent the pleaagreement is of the type specified in Rule 11(c)(1)(A) or (C), theagreed disposition will be included in the judgment.

ADDENDUM - Page 5


(5) Rejecting a Plea Agreement. If the court rejects a pleaagreement containing provisions of the type specified in Rule11(c)(1)(A) or (C), the court must do the following on the recordand in open court (or, for good cause, in camera):

(A) inform the parties that the court rejects the plea agreement;

(B) advise the defendant personally that the court is notrequired to follow the plea agreement and give thedefendant an opportunity to withdraw the plea; and

(C) advise the defendant personally that if the plea is notwithdrawn, the court may dispose of the case less favorablytoward the defendant than the plea agreementcontemplated.

(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdrawa plea of guilty or nolo contendere:

(1) before the court accepts the plea, for any reason or no reason; or

(2) after the court accepts the plea, but before it imposes sentence if:

(A) the court rejects a plea agreement under Rule 11(c)(5); or

(B) the defendant can show a fair and just reason for requestingthe withdrawal.

(e) Finality of a Guilty or Nolo Contendere Plea. After the court imposessentence, the defendant may not withdraw a plea of guilty or nolo contendere, and theplea may be set aside only on direct appeal or collateral attack.

(f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and RelatedStatements. The admissibility or inadmissibility of a plea, a plea discussion, and anyrelated statement is governed by Federal Rule of Evidence 410.

ADDENDUM - Page 6


(g) Recording the Proceedings. The proceedings during which the defendantenters a plea must be recorded by a court reporter or by a suitable recording device.If there is a guilty plea or a nolo contendere plea, the record must include theinquiries and advice to the defendant required under Rule 11(b) and (c).

(h) Harmless Error. A variance from the requirements of this rule is harmlesserror if it does not affect substantial rights.

CREDIT(S)

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec. 1, 1975; July31, 1975, Publ.L. 94-64, § 3(5)-(10), 89 Stat. 371, 372; Apr. 30, 1979, eff. Aug. 1,1979, and Dec. 1, 1980; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 28, 1983, eff. Aug. 1,1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Nov. 18,1988, Publ.L. 100-690, Title VII, § 7076, 102 Stat. 4406; Apr. 25, 1989, eff. Dec. 1,1989; Apr. 29, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30,2007, eff. Dec. 1, 2007; Apr. 16, 2013, eff. Dec. 1, 2013.)

ADDENDUM - Page 7


United States Code Annotated Currentness

Federal Sentencing Guidelines (Refs & Annos)Chapter Six. Sentencing Procedures, Plea Agreements, and

Crime Victims' Rights (Refs & Annos)Part B. Plea Agreements (Refs & Annos)

§ 6B1.3. Procedure Upon Rejection of a Plea Agreement (Policy Statement)

If the court rejects a plea agreement containing provisions of the type specifiedin Rule 11(c)(1)(A) or (C), the court must do the following on the record and in opencourt (or, for good cause, in camera)--

(a) inform the parties that the court rejects the plea agreement;

(b) advise the defendant personally that the court is not required to followthe plea agreement and give the defendant an opportunity to withdrawthe plea; and

(c) advise the defendant personally that if the plea is not withdrawn, thecourt may dispose of the case less favorably toward the defendant thanthe plea agreement contemplated.

Rule 11(c)(5), Fed. R. Crim. P.

[Commentary to Guideline is located in Historical Note field. The following creditreflects amendments to both Guideline and Commentary.]

CREDIT(S)

(Effective November 1, 1987; amended effective November 1, 2004.)

ADDENDUM - Page 8


Documents

OPENING BRIEF OF DEFENDANT-APPELLANT