Judge Gilman: Alright, then why didn't you raise this [lack-of-luggage] argument in your
first argument on summation?
Assistant U.S. Attorney, Steve Miller: Because I don't believe that I needed to.
Judge Gilman: Aren't you sandbagging a bit -- to wait for rebuttal?
Miller: Yes I was.
Right there, during the last oral argument, the government admitted to sandbagging and making an argument on rebuttal that was based on evidence not presented at trial. The panel's dissent quoted a common-sense proposition (and a case that seems to have disappeared off of the Internet. Link rot is a common problem, it seems.): "[A] prosecutor cannot use rebuttal to put forth new arguments, but is restricted to responding to the points made by the defense counsel in closing argument."
Yet, the trial court held that no surrebuttal was required. The prosecutor tosses out new information, and new arguments, admittedly does so for the purpose of sandbagging, and yet the defense wasn't allowed to respond. That certainly sounds like an abuse of discretion.
It was a curious ruling that should have been overturned on appeal, yet the panel's opinion upheld the ruling, stating that the "luggage" argument was an inference based on existing evidence and a response to the defense's credibility arguments. Judge Gilman dissented, pointing out that the lack of luggage evidence was not to be found anywhere on the record, and that the error was not harmless.
More curious, however, was the government's stance during the en banc rehearing. Throughout the arguments, the government refused to concede error. Above the Law provides a full recounting of the oral arguments turned Def Comedy Jam, but to us, the weirdest part was at 58:20, when Chief Judge Kozinski asks the government to admit error.
The attorney arguing, AUSA Bruce Castetter, who earlier quipped that he was doing so because he "lost a bet," refuses, leading Kozinski to instruct him to take the tape of this oral argument back to San Diego, watch it with his office, and consider whether this case represents the right way to run a prosecutor's office.
Castetter then complains that he wasn't prepared to argue a misconduct case. Judge McKeown then puts the nail in the coffin by retorting, "Not great to be sandbagged is what you're saying."
The full, hour-long tape:
Based on the court's statements during oral arguments, and the disemboweling of the government's counsel during oral arguments, it seems certain that the panel's opinion will be tossed. And based on this tape, we really wish the Supreme Court would start recording oral arguments. We could start an entire meme/blog: S**t Scalia Says.
- United States v. Maloney (Ninth Circuit Court of Appeals)
- Littler Mendelson: Once, Twice, Six Times a Sanctioning? (FindLaw's Ninth Circuit Blog)
- After Post-Descamps Scolding, 9th Still Lost on Sentencing (FindLaw's Ninth Circuit Blog)