CALIFORNIA FEDERAL DEFENSE ATTORNEY: IF YOU SEE, SMELL OR SUSPECT MISCONDUCT, YOU MUST RAISE IT IN A PRE-TRIAL MOTION. USE IT, OR LOSE IT.
If there is a claim of outrageous government misconduct in your federal criminal case, and you are aware of the conduct, you must raise it in a pretrial motion. Essentially, use it, or lose it.
This is already the position of the 2nd, 3rd, and 8th circuits, and it is now the position of the 9th Circuit Court of Appeal.
In this case, an undercover agent of the ATF used a confidential informant to infiltrate a crew doing alleged home invasions. The agent supposedly masterminded the plan for a home invasion that was thwarted on the day of the planned acts. The defendant knew about the agent's involvement, but failed to raise the motion pretrial, at trial, or even after trial.
The 9th Circuit reasoned that such claims go to the tainting of the prosecutorial function, and must be presented in time to fully air out the allegations. This, of course, depends on the defendant's awareness.
If facts come out after trial has begun, or there is some excuse for not raising it pretrial, then the 9th Circuit can consider it. That is not the case here.
The 9th Circuit also finds no error in the actions of the district court in dismissing a juror who said he was to be impartial, and could not decide the facts on the evidence. The defendant was given a chance to possibly ask the juror "why" or delve deeper into the reasons, but he declined. The 9th found the challenge to the mandatory minimum of life to be foreclosed by precedent.
U.S. v. Mausali, No. 08-50062 (1-11-10).
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