Case o' The Week: Ninth Digs "Other Dude" Dirt - Urias Espinoza, FRE 404(b), and Third Party Culpability Evidence

 As you SODDI, so shall you reap.

United States v. Espinoza, 2018 WL 493194 (9th Cir. Jan. 22, 2018), decision available here.

Players: Decision by Judge Paez, joined by Judges Berzon and Christen. Admirable win for AFD Michael Marks, Fed. Defenders of San Diego, Inc.  

Facts: Urias Espinoza, a Mexican national, was stopped as she tried to legally cross the border. Id. A search of her car revealed that the rear seats had been hollowed-out and filled with twelve kilos of meth. Id. 

  At the trial for importation charges, the government introduced messages on her cell about delivery of a “product.” Id. at *2. Urias Espinoza’s “blind mule” theory was that her neighbor in Mexico packed her car with meth without her knowledge. Id. She tried to introduce evidence that her neighbor was an admitted drug dealer, with a prior conviction for drug distribution, and a prior deportation (showing why he couldn’t reenter). Id. 

  Most of this proffered evidence of third-party liability was excluded by the district court. Urias Espinoza was convicted and sentenced to ninety months. Id. at *3.

Issue(s): “We consider whether the district court abused its discretion in excluding evidence of third-party culpability.” Id. at *1. “The case centers on the threshold requirement for the admissibility of third-party culpability evidence under the Federal Rules of Evidence.” Id. at *3 (emphasis added).

Held: “We conclude that the district court necessarily abused its discretion by applying an incorrect legal standard to determine whether third-party culpability evidence should be admitted.” Id. at *3.

Of Note: The broad FRE 404(b) sweep in this case is great – for this defendant, trying to introduce bad acts committed by her neighbor. Judge Paez explains that the neighbor’s conviction should have come in, despite the fact that the neighbor’s prior was a decade old, was for pot (not meth), and was for distribution, not importation. Id. at *7. 

  Should we worry a “sauce for the goose, sauce for the gander” flip of this broad FRE 404(b) net against a defendant in future cases? Nope. Judge Paez carefully distinguishes this expansive FRE 404(b) analysis for third-party liability evidence, from the government’s limited use of 404(b) evidence against a defendant. The government faces a higher 404(b) hurdle – defendants deserve more protection than other potential witnesses from “bad acts” evidence. Id. at *7 (“We caution, however, that our ruling that the conviction documents were admissible here is not transferable to a situation in which the government seeks to introduce similar evidence with respect to a defendant's prior crimes under Rule 404(b). . . . This is because the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword.”)

How to Use: The Court here relies on its 1980 Armstrong decision, which had held that evidence of third-party culpability is relevant and admissible unless barred by another evidentiary rule. Id. Notably, the Court works through – and rejects -- the district court’s interpretation of latter Ninth authority reportedly constraining that broad Armstrong reading. Id. at *4. 

  A great outcome in this case, but beware that Urias Espinoza is deeply grounded in the Federal Rules of Evidence. For habeas folks eyeing state convictions, note that the Court carefully avoids the constitutional “right to present a defense” challenge in this case. Id. at *1 & n.1. (The Ninth also distinguishes – but does not reject – previous Ninth authority finding no constitutional bar to state limits on third-party culpability evidence). Id. at *4.   

                                               

For Further Reading: SODDI – “Some Other Dude Did It:” a time-honored defense. See Imwinkelried article here.

  When the “other dude” is dirty, shouldn’t a defendant be permitted to share that dirt with the jury? The Ninth in Urias Espinoza thinks so, and reverses this conviction despite the high "harmless error" bar. Id. at *10.

  The Ninth is spot on: old-school limitations on third-party liability evidence are outdated and unfair. For an interesting piece discussing this area of law, see Professor David Schwartz and Chelsey Metcalf, Disfavored Treatment of Third-Party Guilt Evidence, available here. 

Judge Judy SODDI image from http://excellentquotations.com/Images-EQ/quotesImages/39354-ExcellentQuotations.com-Judge-Judy.jpg

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

.

Case o' The Week: Shutting the Door on "Opening the Door," Osazuwa and FRE 608 and 609

Judge Graber (left) explains a new Ninth Circuit rule on the use of specific acts of conduct to impeach, in a great case untangling the interplay of Federal Rules of Evidence 608 and 609. United States v. Osazuwa,__ F.3d __, No. 08-50244, 2009 WL 1232107 (9th Cir. May 7, 2009), decision available here.

Players: Decision by Judge Graber, joined by Judges Pregerson and Wardlaw. Admirable win by CD Cal. AFPD Elizabeth Newman.

Facts: Osazuwa was tried on charges of assaulting a prison guard while serving a sentence for failing to pay restitution for bank fraud (his original bank fraud sentence had been one day custody). Id. at *1. Osazuwa’s testimony conflicted with that of the guard at trial. Id. at *1-*2.

Over defense objection the government crossed the defendant on the specific details of the previous bank fraud conviction, seeking concessions of various lies made during that crime. Id. at *2-*3. The district court permitted this cross, holding that Osazuwa had “opened the door” to this inquiry by (truthfully) stating he had served only one day for this bank fraud crime. Id. at *3. Under this “open door” theory, the court held, specific acts of untruthfulness otherwise barred under FRE 609 were admissible. Id.

Moreover, the court also held that the specific acts of untruthfulness were admissible under FRE 608. Id. The court gave a limiting instruction; the line of inquiry was not mentioned in the government’s closing. Id.

Issue(s): 1. FRE 608: “Defendant first argues that the district court erred in holding that the admission of the facts underlying his bank fraud conviction was warranted under Rule 608 . . . The crux of Defendant’s argument is that Rule 608 applies only to specific instances of conduct that were not the basis of a criminal conviction. Evidence relating to a conviction, he argues, his treated solely under Rule 609.” Id. at *4.

2. FRE 609: “The next question is whether the impeachment evidence was properly admitted under Rule 609 . . ." Id. at *6. “The government does not argue in this case that its cross-examination of Defendant stayed within the established bounds of inquiry under Rule 609. It instead asserts that Defendant ‘opened the door’ to questions about his specific dishonest acts because his testimony about serving only one day in prison minimized the seriousness of his bank fraud conviction.” Id. at *6.

Held: 1. FRE 608: “[W]e hold that Rule 608(b) permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by way of criminal conviction is treated exclusively under Rule 609 . . . .” Id. at *5.

2. FRE 609: “Defendant did not testify about the underlying facts of, or create a false impression about, his conviction; he truthfully answered the question asked . . . [T]hat answer was insufficient to open the door to questions about the details of the offense.” Id. at *7. “[W]e hold that the district court abused its discretion in admitting evidence of the acts underlying Defendant’s conviction for bank fraud and that the error was not harmless.” Id. at *8.

Of Note: This important evidence case clarifies the use of specific conduct to impeach and the inter-relationships of FRE 608 (limiting impeachment by specific acts) and 609 (impeachment by prior convictions.) Judge Graber’s new rule – consistent with other circuits – is that if a specific act of untruthfulness lead to a conviction, that impeachment falls within FRE 609 (with all of its limitations). The government can’t back-door the use of a specific act otherwise barred by FRE 609, by trying to sneak the impeachment under FRE 608. Good stuff.

How to Use: Osazuwa is a must-read to prep a client who is going to testify, to warn of the dangers of the “open door.” Id. at *6-*7. Judge Graber explains the “open door” theory in detail, and distinguishes between a defendant’s statements to do – and don’t – “open the door” to impeachment by specific acts of untruthful conduct. Id. at *7.

For Further Reading: Quick: which Rule permits admitting otherwise improper evidence after a witness has “opened the door?” This is a trick question – even our Chief Judge is “aware of no authority for admitting inadmissible evidence just because we think turnabout is fair play.” United States v. Wales, 977 F.2d 1323, 1328-29 (9th Cir. 1992) (Kozinski, J., concurring in part.) Wales is Judge Kozinski’s fascinating and compelling attack on the “open the door” theory of evidence. He’s right: it’s a fuzzy theory, not in the rules, that is hard to apply in practice.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


.

Case o' The Week: Good Case on Bad Acts, Rendon-Duarte & FRE 404(b)

The Ninth delivered an interesting opinion with mixed results on FRE 404(b) {bad acts evidence}, and on using "reckless" conduct to establish a USSG § 4B1.2 "crime of violence" predicate. United States v. Rendon-Duarte, __ F.3d __, No. 06-30200, Slip. Op. 3314 (9th Cir. Mar. 21, 2007) , decision available here.

Players: Opinion by ND Cal. District Judge Schwarzer.

Facts: Anchorage cops saw Rendon-Duarte buy what they thought was a handgun. Slip op. at 3345. They then saw him get into the passenger seat of his car, lean over, and appear to move something on the floor. Id. Rendon-Duarte’s girlfriend drove the car away; she was stopped by the cops. Id. The cops searched the car and found two loaded handguns under the car’s floor carpet in front of the passenger seat. Id. At trial, the girlfriend denied ownership of the guns. Id. Over defense objection the district court admitted FRE 404(b) [bad acts] evidence of two incidents where Rendon-Duarte had been in cars that had contained guns. Id.

Issue(s): “On appeal, [Rendon-Duarte] challenges the district court’s admission of evidence under Federal Rule of Evidence 404(b) of two prior incidents of gun possession to prove intent, knowledge and lack of mistake.” Id. at 3344.

Held: “The material fact at issue here was whether Rendon-Duarte had knowledge of and intent to possess the weapons found in his vehicle. The evidence of the prior acts established only that weapons were found in the cars he drove or rode in . . . . Because there was no evidence that Rendon-Duarte had knowing possession of the weapons at issue here, the admission of the prior-act testimony was an abuse of discretion.” Id. at 3347. [But, the panel continues to explain, the error was harmless given other evidence in the case]. Id. at 3348.

Of Note: As Jon Sands astutely notes in his earlier blog, Rendon-Duarte is interesting in its refusal to sanction the use of prior gun incidents as 404(b) evidence in a Section 922(g) trial. The case is troubling, however, for its finding that Alaskan “Assault in the Third Degree” is a categorical crime of violence under Section 4B1.2(a) of the guidelines. Id. at 3348. There was no objection to this prior at sentencing, so the panel undertakes plain error review. The panel held that the sentencing court plainly erred in relying solely on the factual description in the PSR to find the prior was a crime of violence. Id. at 3349. The Court salvages the sentence, however, with the cursed “affects substantial rights” prong of the Olano plain error analysis. Id. at 3349-50.

The Court in Rendon-Duarte (too) briefly dismisses the defense argument that reckless conduct should not qualify as a Section 4B1.2(a) “violent” offense. Id. For Rendon-Duarte, this meant a bump in the gun guideline. For another defendant, however, this casual embrace of “reckless” conduct as a § 4B1.2(a) “crime of violence” conviction could trigger the draconian Career Offender guidelines. A more thorough (though ultimately disappointing) discussion of reckless conduct and Section 4B1.2 can be found in United States v. Rutherford, 54 F.3d 370, 373-77 (7th Cir. 1995).

NB: Be sure to distinguish 18 USC § 16 “crimes of violence” (the definition used for aggravated felonies in immigration cases). That’s a different definition altogether from the guideline definition as issue here, and “reckless” conduct doesn’t cut it in the Section 16 context. See United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001).

How to Use: When faced with 404(b) evidence, flaunt the holding of Rendon-Duarte: if the present “material fact at issue” is the defendant’s knowledge, the prior bad acts have to show knowledge to be admissible. In this case, that meant the prior bad acts had to involve knowing possession of a gun – and they didn’t. This reasoning should apply to a drug case: a prior incident where a mule was caught around drugs shouldn’t be admissible in a later smuggling trial to show knowledge (at least, those bad acts wouldn’t be admissible under the logic of Rendon-Duarte).

For Further Reading: FRE 404(b) – “Bad acts” – is a bad rule. Few jurors can resist convicting someone who has had previous brushes with the law (whether the defendant’s been convicted or not), and in the real world everyone knows that FRE 404(b) limiting instructions are useless.

Maybe appellate courts are becoming more sensitive to the government’s routine abuse of this rule? AFPD Bill Theis posts a very thoughtful entry on the Seventh Circuit blog that describes an encouraging decision from his Circuit: United States v. Keefer Jones. Blog available here. As Bill speculates, maybe there’s a (welcome) new direction for 404(b)?

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.