United States v. Denise Robertson
895 F.3d 1206
| 9th Cir. | 2018Background
- Denise Robertson, a USPS letter carrier in Phoenix, was investigated after missing mailed gift cards were used by her adult daughter and routed through her station on duty days.
- OIG surveillance recorded Robertson removing greeting-card–type letters (including OIG “test letters”) from a collection hamper, placing them in her purse, and later agents found bundles and executed a search warrant on her car recovering mail tied to her route.
- Robertson was indicted on seven counts of theft/embezzlement by a postal employee (18 U.S.C. § 1709) and seven counts of possession of stolen mail (18 U.S.C. § 1708); she was convicted on all counts and sentenced to concurrent nine-month terms plus supervised release and restitution.
- Pretrial and trial disputes included: destruction of parking‑lot security video (automatic 30‑day overwrite), alleged Rule 615 witness‑sequestration violations (agents reviewing transcripts), and a Jencks Act request for Agent Longton’s rough notes.
- Robertson sought dismissal for failure to preserve exculpatory video, a lost‑evidence jury instruction, sanctions for Rule 615 violations, production of agent notes under the Jencks Act, and challenged the embezzlement jury instruction; the district court denied relief and convictions were affirmed.
Issues
| Issue | Robertson's Argument | Government's Argument | Held |
|---|---|---|---|
| Dismiss indictment for failure to preserve parking‑lot video (due process) | Longton acted in bad faith by not preserving video that would exonerate Robertson | Video’s exculpatory value was speculative; no bad faith by agents | No due process violation; no clear error in finding no bad faith |
| Lost/destroyed‑evidence jury instruction (sanction) | Court should give adverse‑inference instruction for destroyed video | Video not evidently exculpatory; prejudice to defendant minimal | No abuse of discretion in denying instruction under Loud Hawk balancing |
| Rule 615 sequestration violations and sanctions | Prosecutor/agents violated sequestration; harsher sanction needed | Any violations were unintentional; cross‑examination cures prejudice | Court may treat transcript review as a violation but cross‑examination was adequate; no abuse of discretion |
| Jencks Act production of Agent Longton’s notes | Notes of initial witness interview are Jencks “statements” and require in camera review/production | Notes were fragmentary, not adopted statements; defendant didn’t make prima facie showing | No abuse of discretion: defendant failed to show notes likely constituted Jencks statements; no in camera review required |
| Embezzlement jury instruction (statutory elements) | Instruction misstated law by allowing conviction on mere possession without entrustment | Instruction tracked statutory disjunctive language; government may charge conjunctively and prove disjunctively | No plain error: instruction correctly followed statute and established practice |
Key Cases Cited
- Flyer v. United States, 633 F.3d 911 (9th Cir.) (standard of review for failure to preserve evidence due process claims)
- Arizona v. Youngblood, 488 U.S. 51 (U.S. 1988) (bad‑faith requirement for lost evidence due process claim)
- United States v. Zaragoza‑Moreira, 780 F.3d 971 (9th Cir.) (agent’s awareness of exculpatory value can establish bad faith)
- United States v. Sivilla, 714 F.3d 1168 (9th Cir.) (review of adverse‑inference instruction denial; speculative exculpatory value undermines bad faith claim)
- United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. en banc) (balancing test for lost/destroyed‑evidence instruction)
- United States v. Henke, 222 F.3d 633 (9th Cir.) (defendant must make threshold showing to trigger in camera Jencks review)
- United States v. Johnson, 521 F.2d 1318 (9th Cir.) (agent notes may be Jencks statements; court must determine producibility)
- United States v. Mincoff, 574 F.3d 1186 (9th Cir.) (rough, fragmented agent notes typically not Jencks statements)
- United States v. McMahon, 104 F.3d 638 (4th Cir.) (reading prior testimony from transcripts can violate Rule 615)
- United States v. McGriff, 408 F.2d 333 (9th Cir.) (charging in conjunctive and proving in disjunctive is permissible)
- United States v. Bonanno, 852 F.2d 434 (9th Cir.) (statute listing alternative means may be alleged conjunctively and proven disjunctively)