US v. Evans, No. 11-30367 (8-27-13)(Paez with Fisher; dissent by Gould). 

FRE 104 concerns preliminary issues of witness qualifications, privilege existence, or admissibility.  The question here is whether 104 serves as a gatekeeper function, whereby a judge can determine whether evidence is fraudulent or genuine or whether 104 allows the determination subject to another substantive provision outside of 104.  The case here involved a delayed birth certificate issued by Idaho in a 1326 case and a separate fraudulent documents case.  In each case, the delayed birth certificate was key to the defense that he was indeed a US citizen.  The district court held a pretrial hearing, where three government witnesses cast doubt on the delayed birth certificate.  The court concluded it was procured by fraud.  The 9th, on appeal, vacated and remanded.  The district court could not use FRE 104 by itself to preclude; it had to use another substantive provision.  To allow a court to act as an "umbrella" gatekeeper in this fashion would mean the court weighs and judges the evidence as a gatekeeper independent of other provisions.  The evidence in this case revolved around the delayed birth certificate.  The 9th, mindful of the due process concerns too, said the evidence must be allowed, and that FRE 403 would not bar.  Gould, dissenting, argues that the court has to have the authority to assess the genuineness of evidence, independent of weighing.  He would also find that any error was harmless.