Case o' The Week: Sixth Amendment Decision Sticks in Defense Craw-ford: Fryberg and the Right to Confrontation

 Feeling non-Confrontational?

 Admirable in personal relationships.

 Less so, in criminal trials.

United States v. Fryberg, 2017 WL 1416516 (9th Cir. April 21, 2017), decision available here.

Players: Decision by Judge Graber, joined by Judges Ikuta and Hurwitz.

Facts: Ms. Gobin sought a domestic violence restraining order against Fryberg. Id. at *1. A Tribal Police Officer (and brother-in-law of Gobin) filed a completed service of return of notice of a hearing on the restraining order. Id. Fryberg didn’t show at the hearing, and a restraining order was entered against him. Id.

  Fryberg got guns while subject to that restraining order. He was charged with 18 USC § 922(g)(8), possessing firearms while under a D.V. protection order. Id. at *2.

  An essential sub-element of this federal charge was that Fryberg had actually been served with notice of the hearing that produced the protective order. Id. Before the case went to trial, the Tribal Police officer that had allegedly served the notice of the hearing, died. Id.

  Over defense objection, the district court admitted the (deceased) officer’s certificate of service: Fryberg was convicted. Id.  

Issue(s): “Defendant argues that the district court erroneously admitted the key piece of evidence that the Government introduced to show that Defendant received actual notice of the hearing on the protection order—the return of service of the hearing notice . . . Defendant argues that (1) the district court erred in admitting the return of service as a ‘public record’ under Federal Rule of Evidence 803(8) and (2) the admission of the return of service violated the Confrontation Clause of the Sixth Amendment.” Id. at *2 (footnotes omitted).

Held: “We conclude that the admission of the return of service did not violate either the rule against hearsay or the Confrontation Clause of the Sixth Amendment, and we affirm Defendant’s conviction.” Id. at *1.

Of Note: Crawford “‘rescued’ the right of confrontation ‘from the grave.’” Id. at *5 (quoting Clark, 135 S. Ct. at 2184 (Scalia, J., concurring in judgment)). 

  Fryberg (we would argue) re-entombs it.

   As it confronts Confrontation, the Ninth admits that Fryberg “lies somewhere between” two post-Crawford Ninth decisions. Id. at *6. This “return of service” document, the Court concedes, “had more of a criminal prosecutorial function than the immigration document at issue in Orozca-Acosta.” Id. Ultimately, however, the Ninth deems this “notice” document as something that’s primary purpose was not for use at a future criminal trial – and therefore not subject to Crawford. Id. at *6.

   Way back in ’05, it was clear that the core Crawford question would be: “what is testimonial evidence?” See blog entry here. Fryberg is one disappointing answer.

How to Use: Judge Graber delivers a number of evidentiary sub-holdings that ultimately lead to the decision’s outcome. The Court concludes that the officer was “under a legal duty to report when he completed the return of service,” satisfying FRE 803(8)(A)(ii). Id. at *3.

  Even though the Tribal Officer was a cop, and even though Fryberg faced a criminal case, the Court holds that the "notice of service" was not “a matter observed by law-enforcement personnel” (an express FRE limitation on the “public record” hearsay exception in a criminal case.) Judge Graber deems the notice of service a “largely ministerial act” to avoid this FRE limitation. Id. at *4.

  Finally, the Court rejects Fryberg’s arguments that a “lack of trustworthiness” undermined the admission of this hearsay evidence – the defense contended that the alleged place of service did not, in fact, exist, and observed that the deceased officer was also the D.V.-complainant’s brother-in-law. Id. at *5.

  Fryberg is, unfortunately, a must-read when the witness stand is empty, and the government’s case relies on paper instead of testimony. The "testimonial" legal landscape is not yet fully defined, but this case is another Ninth landmark.

                                               

For Further Reading: Three Ninth jurisdictions – San Francisco, Los Angeles, and an island in the Pacific – were called out by A.G. Sessions during his first Sunday morning interview. See “This Week” interview of 4/23/17 here.       Mulling tea leaves? Watch this interview.

Image of the Sixth Amendment from http://www.shestokas.com/constitution-educational-series/the-sixth-amendment-one-amendment-six-constitutional-rights/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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