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Thursday, June 24, 2021


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Ninth Circuit:

Argument Trivializing Doubt Standard Requires Reversal


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday reversed the conviction of a man for importation of controlled substances into the United States, declaring that he was prejudiced by the prosecutor, in remarks to the jury, trivializing the reasonable doubt standard.

Awarded a new trial is Alfred Velazquez, who testified that he had no idea that his vehicle contained drugs. The drugs, worth nearly $150,000, were found by a customs and border protection officer stationed at the Mexican border.

According to the Nov. 8, 2017 indictment:

“On or about July 18, 2017, within the Southern District of California, defendant Alfred Velazquez did knowingly and intentionally import 400 grains and more of a mixture and substance containing a detectable amount of…fentanyl…, a Schedule II Controlled Substance, and 1 kilogram and more of a mixture and substance containing a detectable amount of heroin, a Schedule I Controlled Substance, into the United States from a place outside thereof….”

District Court Judge Cynthia A. Bashant of the Southern District of California sentenced Velazquez to 12½ years in prison, followed by five years of supervised release.

Reversal came in an opinion by Circuit Judge Richard A. Paez, joined in by District Court Judge Eric F. Melgren of the District of Kansas, sitting by designation. Circuit Judge Bridget S. Bade dissented.

Prosecutor’s Remarks

In closing argument, Assistant U.S. Attorney Christopher Michael Alexander of the Southern District of California told jurors:

“Reasonable doubt is something that you make decisions about every single day.”

Velaquez’s lawyer, Brian J. White, objected. Bashant neither sustained nor overruled the objection, instead telling jurors to follow her instruction on reasonable doubt rather than going by what the attorneys tell them.

Alexander continued defining “reasonable” doubt by saying:

“It is something that you do every single day. So things like getting up, having a meal. You’re firmly convinced that the meal you’re going to have is not going to make you sick. But it is possible that it might not—that it might actually make you sick.

“You got in your car or you travel to the court today. It is possible that you may have gotten in an accident, but you are firmly convinced that—the likelihood that you’ll be able to get to court safely.”

During rebuttal, Alexander advised that reasonable doubt “is something that you use every single day in your life.” That, White protested, “diminishes the burden of proof.”

The judge overruled the objection and did not again admonish the jury.

Paez wrote:

“The prosecutor’s comments here regarding the government’s burden of proof diverged significantly from what we require in a criminal trial. The prosecutor compared the reasonable doubt standard to making decisions like going for a drive or eating a meal—with the confidence that things will not go awry. Such decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for ‘near certitude’ of guilt before attaching criminal culpability….These decisions do not typically even involve an objective calculation of risk, but rather rest on the fallacious comfort that because these activities did not result in chaos yesterday, they will not today. Such examples are highly inappropriate and misleading….”

He added:

“We are also troubled by the suggestion that reasonable doubt can be compared to an “everyday” experience. The process of adjudicating guilt is a major and meticulous undertaking. People do not, ‘every single day,’ bear the solemn task of examining evidence and determining an accused’s guilt. The comparison—to reflexive, quotidian decisions like ‘getting up,’ ‘having a meal,’ and ‘travel[ing] to...court’—is flagrant and seriously distorts the standard.”

Evidence of guilt, he said, was not so great as to render the error harmless.

Bade said in her dissent that she agrees “that the prosecutor’s comments were, at best, ‘unhelpful,’…and potentially misleading,” but maintained:

“Nothing in the record suggests that the jurors ignored the district court’s repeated admonitions to follow its instructions on reasonable doubt, and in the absence of evidence to the contrary, we must presume that they followed the court’s instructions. And nothing in the record suggests that the prosecutor’s statements affected the verdict.”

The verdict stemmed not from what Alexander said, but from Velaquez’s testimony, she argued, explaining:

“[F]rom the guilty verdict, we must conclude that the jury did not find Velazquez credible, and it rejected his testimony. There is nothing in the record that suggests that the jury did not understand its task in evaluating the credibility of testimony or the court’s instructions. Thus, it is very unlikely that the attorneys conflicting arguments on the reasonable doubt standard, including the prosecutor’s comments, had any effect on whether the jury believed Velazquez. Therefore, the record supports only one conclusion—it is not likely that the prosecutor’s comments affected the verdict.”

The case is U.S. v. Velazquez, 19-50099.


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