United States v. Theresa Fisher

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 14 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 15-50306

Plaintiff-Appellee, D.C. No. 8:14-cr-00110-JLS-2 v.

THERESA FISHER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding

Argued and Submitted August 29, 2016 Pasadena, California

Before: TASHIMA, SILVERMAN, and WATFORD, Circuit Judges.

Defendant-appellant Theresa Fisher contends that the district court

committed several errors that individually and cumulatively created sufficient

prejudice to warrant a new trial. We disagree and therefore affirm her conviction.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 4 1. We agree with Fisher that the district court should not have admitted the

portion of Lindsay Hardgraves’ confession that inculpated Fisher. Because

Hardgraves did not testify at trial, admission of that portion of her…

MEMORANDUM *

Defendant-appellant Theresa Fisher contends that the district court committed several errors that individually and cumulatively created sufficient prejudice to warrant a new trial. We disagree and therefore affirm her conviction.

1. We agree with Fisher that the district court should not have admitted the portion of Lindsay Hardgraves’ confession that inculpated Fisher. Because Hard-graves did not testify at trial, admission of that portion of her confession violated Fisher’s Confrontation Clause rights. See *494 Bruton v. United States, 391 U.S. 123, 126 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968). However, Fisher did not object to admission of this evidence at trial, so we may review only for plain error. Even assuming that the error was clear and obvious, Fisher cannot show that admission of this evidence affected her substantial rights. See United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). The government’s case against Fisher was strong, predicated in part on the following evidence: testimony by five witnesses who claimed to have been coached by Fisher; testimony by a co-conspirator that both she and Fisher were pressured to bring…

concurring:

I concur in the result. It would have been error for the district court to have *495 admitted Hardgraves’s statement over a Bruton objection. But there wasn’t any Bruton objection or any other objection. A party may have perfectly valid reasons for declining to object to evidence that is technically objectionable, but that causes no harm in the context of the facts and the theory of the defense. Just .as an appellate lawyer chooses which rulings to challenge on appeal and which ones to let go, the same is true of trial lawyers and objections. Not every witness has to be cross-examined; not every evidentiary objection has to be made. Good lawyers pick their fights.

Why didn’t defense counsel raise a Bru-ton objection here? The answer is: We don’t know. Counsel may have had a strategic reason for his decision, or he may have been asleep at the switch. If it’s the latter, that’s what a § 2255 motion premised on ineffective assistance counsel is for. However, I don’t agree that it was error per se for the judge to have admitted testimony that wasn’t objected to, even if it could have been.