Case o' The Week: Ninth Shuts District Court Gate(keeping) - Evans, FRE 104 and FRE 403

  “[T]he prosecution has independent evidence that the defense evidence is as phony as a $3 bill.” United States v. Evans, 2013 WL 4516754, *11 (9th Cir. Aug. 27, 2013) (Gould, J., dissenting).

   Maybe so. Fortunately, the Constitution provides for juries, who – as Judge Paez reminds us – are tasked with the job of weighing such evidence.

  United States v. Evans, 2013 WL 4516754 (9th Cir. Aug. 27, 2013), decision available here.

Players: Decision by Judge Paez, joined by Judge Fisher. Dissent by Judge Gould.

Facts: Evans was charged with being an alien unlawfully in the U.S., and misrepresenting his identity to apply for benefits and a passport. Id. at *1. The defense was that he was actually a citizen, based on a “delayed birth certificate” issued by the State of Idaho. Id. The district court ordered a pre-trial evidentiary hearing on the certificate’s admissibility under Federal Rule of Evidence (FRE) 104. Id. at *2. At the evidentiary hearing the government introduced (a rather substantial amount) of evidence of fraud in the application for the birth certificate. Id. at *2-*3. The district court held that it was “the gatekeeper,” and under FRE 104 and 403 it excluded evidence of the certificate from trial. Id. at *3. Evans was convicted of all charges. Id.

Issue(s): “In these consolidated appeals, we clarify the limits of a trial court’s authority under Federal Rules of Evidence 104 and 403 to exclude relevant evidence when the court questions the credibility of such evidence.” Id. at *1. “On appeal, Evans argues that the exclusion of the birth certificate deprived him of his Fifth Amendment due process right to present a defense and his Sixth Amendment right for a jury to determine every element of the charges brought against him.” Id. at *4.

Held: “We hold that the district court erred in excluding the birth certificate, and that the exclusion of such significant evidence resulted in a violation of Evan’s Fifth Amendment due process right to present a defense. [T]he error was not harmless, and . . . vacate Evan’s convictions and remand for new trials.” Id. at *1.

Of Note: Evans is an important and thoughtful opinion that tackles a question of first impression in the Ninth: does FRE 104’s gatekeeping function to only permit admissible evidence mean “credible” evidence, or admissible under other Rules of Evidence? Id. at *4. 

  Evans holds that it is the latter: “We conclude that the trial court’s authority to determine if evidence is admissible pursuant to Rule 104(a) is necessarily limited by other rules of evidence – most importantly, Rule 402, which provides that evidence is admissible so long as (1) it is relevant, and (2) it is not other inadmissible under, inter alia, the Federal Ruled of Evidence . . . Thus, Rule 104(a) provides the trial court with the authority to decide questions that make evidence inadmissible under some other rule of evidence (or under the Constitution, a federal statute, or other Supreme Court rules), but it does not itself provide a substantive basis for excluding the evidence.” Id. at *4. “We have not previously considered whether a trial court can exclude evidence pursuant to Rule 104(a) without relying on some substantive basis outside of Rule 104(a), such as another rule of evidence, a federal statute, or the United States constitution. We now hold that it cannot.” Id. at *5. 

  Here, a fact finder could not determine the legitimacy of the birth certificate without making credibility findings. Credibility findings, reminds Judge Paez, are a jury’s job – not the district courts. Id. at *6. 

  Hard on the heels of this great FRE 104 analysis is an equally good FRE 403 discussion, emphasizing that probative weight must be weighed with respect to a material fact making the assumption that “the evidence is believed.” Id. at *6-*7. Evans is strong evidentiary bulwark protecting our right to present a defense – a worthy addition to the trial toolkit.

How to Use: Evans’ evidentiary insights are academic without relief. The path to reversal required a constitutional violation – triggering the “high burden” on the government to prove that the error was harmless ‘beyond a reasonable doubt.” Id. at *9. Here, the Ninth delivers again. Id. That key finding gives sharp teeth to these evidentiary holdings: emphasize constitutional error when fending off FRE 104 and 403 attacks.

                                               

For Further Reading: If you’re confused by the new Holder position on mand-mins and how it works in the trenches, you’re in good company. For a useful guide with good links, see a thorough blog entry here.

Image of (real!) Civil War era three dollar bill from http://quigon1.tripod.com/civil_war.html

Image of Attorney General Holder from http://www.slate.com/content/dam/slate/articles/news_and_politics/jurisprudence/2013/08/130812_JURIS_EricHolderABA.jpg.CROP.rectangle3-large.jpg

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

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Case o' The Week: Sentencing Big Mac Attack - McGowan, Due Process, and Reliability of Evidence at Sentencing

Due process at sentencing -- like other beasts in cryptozoology -- is rumored to roam the Ninth Circuit, but is rarely seen and is almost never documented. 

     Until McGowan. United States v. McGowan, 2012 WL 233257 (9th Cir. Jan. 26, 2012), decision available here.

Players: Win by SF appellate gurus Dennis Riordan and Donald Horgan. Decision by Judge Reinhardt.

Facts: Robert "Big Mac" McGowan (above left), a prison guard, was charged with abusing prisoners and with conspiring to obstruct justice. Id. at *1. After the jury found him guilty, he moved for judgment of acquittal under Rule 29(c) – but did not move for a new trial under Rule 33. Id. The court granted the Rule 29 motion; the Ninth reversed after the government appealed. Id. On remand, McGowan filed a motion for new trial which (Rule 33), which was dismissed as untimely. Id.

At sentencing, the district court relied on allegations from a prison inmate and imposed a guideline sentence of 51 months. Id. at *2. The inmate, Seevers, alleged that McGowan had snorted meth with him and had smuggled meth into prison. Id. at *5. Some of those allegations were made under oath, in a different prosecution. Id. at *5.

Issue(s): “McGowan . . .  contends that he was deprived of due process when the district judge relied on a prisoner inmate’s unreliable allegations at sentencing.” Id. at *1.

Held: “Here, the district judge abused his discretion in finding that Seevers’ claims were reliable.” Id. at *5. “Seever’s allegations were made under oath but absent any other procedural mechanism that would ensure that a witness with the incentive to lie was telling the truth. They were not only inconsistent with McGowan’s denials, but were unsupported by any other evidence. They therefore lacked the requisite minimal indicium of reliability to serve as a basis for McGowan’s sentence.” Id. at *6 (internal quotations and citations omitted).

Of Note: McGowan is startlingly good. It rejects the sentencing testimony of a government witness, who made allegations under oath. It speculates that the snitch received benefits for the testimony – but there’s no evidence of that in the case. Id. at *6. The government's evidence in McGowan wasn’t second or third-hand hearsay repeated to some DEA agent; some of the allegations were direct observations made by the witness on the stand during the trial of another guard. Id. at *5. And the snitch’s story was substantiated by his ability to describe McGowan’s personal residence, where the pair had allegedly snorted meth together. Id. at *5.  

  Contrast McGowan to the lousy evidence from drug snitches routinely offered and relied upon at federal sentencing: double-hearsay, not under oath, well-documented benefits and incentives to lie, with no corroborating facts. From the trenches, the government’s evidence rejected in McGowan looks far better than the unreliable dross often tolerated at sentencing hearings in district court – making McGowan a potent defense tool for sentencing litigation.

How to Use: McGowan gives an important trial-practice tip. “We hold that a judge granting a motion for acquittal may conditionally rule on a motion for a new trial only if the defendant has made such a motion. The district judge did not err in failing to conditionally grant McGowan a new trial, as McGowan did not make a motion requesting one.” Id. at *3.

 Put differently, when the guilty verdict comes in make both a Rule 29 motion for judgment of acquittal, and a Rule 33 motion for new trial. If you win the former, you’ll want to still have the latter in your pocket when the Ninth gets the government’s appeal of your Rule 29 victory. Note, however, that there may be times when a defendant does not want to simultaneously make a Rule 33 motion. Judge Reinhardt lays those strategic considerations out for us in depth. Id. at *4-*5 (describing a better-prepared prosecutor on the second prosecution, a fear that a judge will compromise away from Rule 29 towards a Rule 33 if given the chance, or worries about shifting to another judge). Those considerations are worth a close read, before the trial gets underway.
                     
For Further Reading: Thoughtful district judges have wondered why there aren’t more evidentiary hearings at sentencing, given these known reliability issues. The answer is powerful guideline disincentives for the defendant. If a defendant is found to have falsely contested a sentencing fact, he or she could lose three offense levels of acceptance and risk an additional two levels for obstruction.  See USSG § 3E1.1 (acceptance); USSG 3C1.1 (obstruction), comment. n.4(H) ("providing materially false information to a probation officer in respect to a presentence or other investigation for the court").

  This makes contesting facts in the PSR a high-risk proposition for the defense. Is fighting a level or two specific offense characteristic worth risking losing up to five offense levels, when it will be the defendant's word against a cop's? When the fact-finder is also the sentencing judge? When the government's burden of proof is (usually) only by a preponderance of the evidence?

   By contrast, if a snitch or “victim” lies at a sentencing hearing, the government just shrugs and foregoes its sentencing enhancement. There is no disincentive for the government: no corresponding reduction in the defendant's base guideline range if the government's witness is found to have falsely contested a sentencing fact.

   For a thoughtful explanation of this unfair sentencing structure -- and the institutional costs of this imbalance -- see Margareth Etienne, Parity, Disparity, and Adversariality: First Principles of Sentencing, 58 Stan. L. Rev. 309, 319, available here.  


Image of Robert McGowan from http://www.pacovilla.com/?page_id=41496


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



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Case o' The Week: Detrimental, reliance - Schafer and Equitable Estoppel

What will repeated assurances by two California law enforcement officers that your grow is legal, get you? Federal charges and five years in a federal prison. United States v. Schafer, 2010 WL 4400052 (9th Cir. Nov. 8, 2010), opinion available here.

Players: Hard-fought case argued by our ND Cal CJA comrade Barry Morris. Decision by Judge Tallman.

Facts: Marion Fry was a medical doctor diagnosed with breast cancer in ‘97. Id. at *1. She and her husband, attorney Dale Schafer, grew marijuana to help alleviate the side effects of her chemotherapy. Id. The pair informed the local sheriff, and a detective and sergeant visited their residence and inspected their marijuana plants. Id. In ‘99, the marijuana grow, grew - and the two cops continued to visit and tolerate it. Id.

In 2000 DEA started investigating, in ‘01 the feds searched the business and home, and by ‘05 the couple were charged federally with a count of conspiracy to grow and manufacture marijuana, and a count of manufacturing at least 100 plants. Id. at *2.

The defense theory was entrapment by estoppel, alleging that the detective and sheriff were affiliated with the feds, and had blessed the grow as legal. Id. That theory was asserted as a pretrial motion to dismiss, was intended to be a defense at trial, and was argued in mitigation at sentencing. Id. at *2-*3. The district court rejected the theory at each turn. The court also refused to hold an evidentiary hearing on whether the two state law enforcement officers were acting as feds and had “said Appellants’ conduct was legal.” Id. at *2.

Each defendant got five years after conviction. Id. at *3.

Issue(s): (Among others): “Appellants’ first challenge focuses on the district court’s denial of their request for an evidentiary hearing on the motion to dismiss. They argue that they were entitled to an evidentiary hearing because the filings submitted in support of and in opposition to the motion to dismiss presented significant factual disputes.” Id. at *3.

Held: “[T]he questions raised by Appellants’ motion to dismiss establish the viability of Appellants’ defense; the factual disputes were not segregable from the issue that was to be decided at trial – Appellants’ guilt. Pursuant to [Federal Rule of Criminal Procedure] 12, the district court could not resolve these disputes before trial, and therefore it did not abuse its discretion when it denied Appellants’ request for an evidentiary hearing.” Id. at *4.

Of Note: In rejecting the motion to dismiss, Judge Tallman explains that “the district court was precluded from holding that Appellants were entitled to an entrapment by estoppel defense as a matter of law until the jury resolved the truth of the factual dispute.” Id. at *5 (emphasis added). He then immediately concludes that the jury shouldn’t hear this issue, and that the district court properly excluded the entrapment by estoppel defense as a matter of law. Id. at *5. (Tricky business, that: tough for a jury to resolve a factual question it never hears . . . .)

Schafer’s discussion on the right to an evidentiary hearing is a troubling limitation on a district court’s ability to hear pretrial motions, and relies heavily on United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452-53 (9th Cir. 1986). Shortt – and now Schafer – perpetuate a tough reality when defending drug cases: to assert a defense of entrapment, a defendant has to run the huge risks of taking a case to trial and can’t rely on a pretrial motion to dismiss. Because of the federal system’s steep mandatory-minimum sentences, in most cases this principal effectively insulates agents from judicial review of entrapment by estoppel or sentencing entrapment.

How to Use: There’s little that’s good in Schafer, but there are lessons on things to avoid. One such pitfall is briefing that doesn’t present facts in sworn declarations. Schafer at *4 & n.3. Although Eastern District of California rules require it, the defense moving papers in Schafer did not have supporting declarations. Id. Judge Tallman warns, “The district court would have been well within its rights to reject the request for an evidentiary hearing on this ground alone.” Id. Because the appellate challenge was denied anyway, the panel “overlook[ed] the procedural defect in the case . . . .” Id. “Trial counsel, however, would be well advised to follow the rules.” Id.

For Further Reading: However you felt about the merits of the measure California’s Prop 19 would have sharpened the divide evident in Schafer, between the state’s tolerance of marijuana and the feds’ prosecution of the drug. For an interesting article dissecting the proposition’s defeat, and discussing plans to it to the 2012 ballot, see SF Chronicle article here.


Cartoon from http://www.veiled-chameleon.com/weblog/httpdocs/images/blogcontent/doobius.jpg

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


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