UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
March 9, 2010
MARCOS TREJO, PETITIONER,
KELLY HARRINTON, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Stephen V. Wilson United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the Petition, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge and all objections thereto. No objections to the Report and Recommendation have been filed herein. The Court adopts the Report and Recommendation, but writes separately to further address Petitioner's claim that evidence of witness intimidation violated his due process rights.
The Ninth Circuit has indicated that testimony regarding a witness's fear, if the threats are not linked to the defendant, is not prejudicial enough to render a trial fundamentally unfair. In United States v. Pierson, 121 F.3d 560 (9th Cir. 1997), the court held that anonymous threats of harm against a witness's family were "relevant to [the witness's] credibility by explaining his motive for testifying against his former co-conspirator." Id. at 563. The court did not agree that the "only reasonable inference" of the testimony was that the defendant had sponsored the threats, because the threats could have come from the drug cartel with which the defendant was involved. Id. The court found it significant that the government never argued in trial that the defendant was connected with the threats. Id.
Here, the government did not imply that Petitioner had anything to do with witness Rosales' fear. As pointed out in the Report and Recommendation, Rosales' fear was relevant to his credibility, and the jury could have permissibly inferred that he was in fear because of other members of Petitioner's gang or some other legitimate reason. See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). Therefore, Petitioner's trial was not fundamentally unfair.
IT IS ORDERED that Judgment be entered (1) approving and adopting this report and recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.
IT IS SO ORDERED.
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