Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.


To Sandbag, or Not to Sandbag . . .?
‘Tis Nobler To Suffer the Slings and Arrows of Trial

Though “sandbagging” was used long ago to describe a fighting strategy that employed narrow, sand-filled bags as weapons, the term evolved to describe a number of sports strategies, including “slow play” at the poker table. Legally speaking, “sandbagging” specifically refers to trial counsel’s intentional silence in the face of potential error with the hope of preserving the issue on appeal. (Black’s Law Dictionary, Ninth Edition.) More generally, however, it describes trial counsel’s failure to play fair.

For instance, Penal Code section 1093 subdivision (e) permits a state prosecutor to open the argument and to close the argument. But it does not permit a prosecutor to stray from the proper bounds of rebuttal argument by raising a new issue beyond the scope of defense counsel’s argument—doing so would be prosecutorial error á la “sandbagging” and it is not the ethical or fair thing to do unless defense counsel “opens the door.” (People v. Robinson (1995) 31 Cal.App.4th 494. 505.) Also, prosecutors, as all attorneys, must only argue reasonable inferences supported by the evidence in argument. At the same time, counsel may properly argue about the absence of evidence. (People v. Smith (2003) 30 Cal.4th 581, 617; see also California Rule of Professional Conduct 5-200(B).) Federal prosecutors are bound by similar rules and, unfortunately, “sandbagging” in rebuttal became the subject of lively discussion by the Court of Appeals for the Ninth Circuit when the Court reheard en banc oral argument in U.S. v. Maloney 2014 WL 801450, a case prosecuted by the U.S. Attorney for the Southern District.

In 2011, John Maloney, was convicted of possessing a large quantity of marijuana in a tractor trailer near the 78 highway in Imperial County.  Maloney testified at trial that he had no knowledge of the marijuana, was just getting back into the trucking business, and was making a trip for a friend who let him use the truck. The case whittled down to Maloney’s credibility and his attorney argued in closing why his client should be believed. In rebuttal, the AUSA argued why Maloney should not be believed, making reference to a scene from the movie A Few Good Men, in which Tom Cruise asked the jury to think about “evidence that was not presented.” The prosecutor argued Maloney’s luggage was “missing,” thereby casting doubt on Maloney’s claim that he was on a trip. But there had been no evidence about whether any luggage was found in the trailer truck and the AUSA had not made the argument in opening argument. The prosecutor asked the jury several times, “where is his (Maloney’s) stuff?” Maloney asked for and was denied surrebuttal and a mistrial.

On appeal, Maloney argued, in part, that the denial was an abuse of discretion since the prosecutor’s rebuttal argument went beyond the scope of Maloney’s argument and was based on impermissible inferences. At oral argument, the prosecutor defended himself stating that he did not think he needed to make the luggage argument in his opening closing and when asked by the panel whether he was “sandbagging a bit,” he frankly responded, “Yes, I was.” Nonetheless, the majority of the panel affirmed the decision. (U.S. v. Maloney (2012) 699 F.3d 1130.) Maloney requested the Court rehear his appeal.

The Court en banc reheard oral argument, which mostly consisted of eleven incredulous judges peppering a well-seasoned appellate litigator for the U.S. Attorney with questions about what the U.S. Attorney is teaching its young attorneys. The Court rejected the idea that the luggage argument was fair commentary about the absence of evidence and went so far as to suggest that the U.S. Attorney view the video from the en banc oral argument. Before the Court could issue its decision, the U.S. Attorney apparently watched the recording and filed a motion to summarily reverse Maloney’s conviction, which the Court granted.

Without the benefit of the entire record, it is difficult to conclude whether the prosecutorial error in Maloney was a reckless or intentional breach of the rules, or whether orchestrated out of sheer ignorance. In any case, Maloney reminds prosecutors about the basic premise of rebuttal. On a more subtle level, it also illustrates the fine line between arguing facts outside of the record and making a proper argument about the absence of evidence. Arguing the absence of evidence takes preparation. In Maloney, the prosecutor could have established through Maloney or the investigating officer that there was no luggage found in the trailer in order make a proper argument based on the absence of evidence. Just because the luggage was not mentioned by any witness does not establish it as a fact that it did not exist.

The concept of sandbagging is not complicated or nuanced—it is ethically and professionally wrong. On the other hand, when arguing reasonable inferences, counsel must be careful when arguing the absence of evidence and be certain that it has actually been established on the record lest risk overstepping boundaries of fair argument and “bear the Whips and Scorns of time.”

–Bryn Kirvin, District Attorney's Office

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**