Case o' The Week: Protection sans Objection - Haines and FRE 412 Evidence

  The Federal Rules of Evidence cannot be used as both a sword and a shield.

  (By the defense).

United States v. Haines, 918 F.3d 694 (9th Cir. Mar. 14, 2019), decision available here.

Players: Decision by visiting District Judge Adelman, joined by Judges Wallace and Friedland.  

Left to right, the Honorable Judges Wallace and Friedland, and the Honorable District Judge Adelman

Facts: Haines and his friend King were charged with transporting two minor females from Nevada to California to work as prostitutes. Id. at 696. Over time, the girl alleged to have worked for Haines changed her story to the Feds. By trial, she testified that she did not prostitute for Haines and that her grand jury testimony was false. Id. Instead, she testified that she worked independently. Id.

   At trial, Haines attempted to question the girl about her prior prostitution activities (that did not involve a pimp), arguing that this was relevant to the question of whether he recruited her or encouraged her to engage in prostitution. Id. The district court excluded this testimony under Federal Rule of Evidence 412, the “rape shield” rule. Id.

  Haines was convicted, and appealed.

Issue(s): “Haines argues that evidence of J.C.’s prior prostitution activities should have been admitted under the exception to Rule 412 for 'evidence whose exclusion would violate the defendant's constitutional rights'—here, his due process right to present a complete defense and his Sixth Amendment right to confront witnesses.” Id. at 697.

Held: “[I]n cases involving adult victims forced or coerced into prostitution, courts have rejected such arguments, concluding that evidence of other prostitution activity has little or no relevance. Courts have reasoned that just because a victim agreed to engage in sex for money on other occasions does not mean she consented to, e.g., being beaten or having her earnings confiscated by the defendant.” Id. at 697-89 (citations omitted).

  “Haines cites no case holding that a defense such as the one he sought to present here triggers the exception in Rule 412. And we see no reason to depart from the persuasive authorities set forth above that held to the contrary.” Id. at 698-99.

Of Note: The unusual fact in Haines was that the female victim-witness for this Fed. R. Evid. 412 brouhaha was putatively a defense witness. She had recanted her grand jury testimony by the time of trial (after a jailhouse call from Haines, unfortunately). Atypically, the witness wasn’t objecting to the admission of this prior-prostitution evidence by Haines. The government was therefore using Rule 412 not as a shield, to protect a witness’s privacy, but as a sword, to prevent a defendant from eliciting favorable testimony “from a recalcitrant witness.” Id. at 699.

  No matter, concluded the Ninth, in a disappointing limitation on a defendant’s constitutional right to present a defense. “[A]llowing the victim’s wishes to control opens the door to mischief.” Id.      

How to Use: The narrow window left open on this type of “prior prostitution” evidence is when the government “opens the door” by suggesting that an alleged pimp introduced a minor to prostitution (that she was “an innocent lamb led to the slaughter).” Id. at 700. The Ninth holds this door wasn’t opened in the Haines case, in part because the district court warned the government against this line of evidence and argument.  The Court seems to recognize, however, that this type of evidence could be admissible if made relevant by the government’s approach.

                                               

For Further Reading: On March 26, the Senate confirmed President Trump’s nomination of the Honorable Magistrate Judge Bridget Bade, of Phoenix, to the Ninth Circuit Court of Appeals. See press release here. 

  Judge Bade will be joining two confirmed Ninth Circuit Trump nominees: the Honorable Judge Mark Bennett of Hawai’i, and the Honorable Judge Ryan Nelson of Idaho. See Ninth Circuit chart here. 

 Two additional Ninth nominees cleared the Senate Judiciary Committee on April 4, 2019: Mr. Daniel Collins, of L.A.’s Munger, Tolles & Olson, and Mr. Daniel Lee, of L.A.’s Jenner & Block. See article here. 

Image of sword and shield from https://www.worthpoint.com/worthopedia/kingdom-heaven-ibelin-sword-scabbard-712278260

Image of (skeptical) United States v. Sha-Ron Haines panel from https://www.youtube.com/watch?v=akIGK_oYmIw

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

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Case o' The Week: No "But For" in Store - Backman and Causation

America's Day starts (and some appellate arguments end) in Saipan.

United States v. Backman, 2016 WL 1237505 (9th Cir. Mar. 30, 2016), decision available here.

Players:  Decision by Judge Graber, joined by Judges Bybee and Christen.

Facts: Backman tricked a victim into flying to Saipan, with promises of a work visa and a legal job. Id. at *1. Instead, the victim was taken to Backman’s brothel, travel documents were taken from her, and the victim was coerced into prostitution. Id. Backman was convicted after a jury trial of a count of sex trafficking by force, fraud, or coercion in violation of 18 USC § 1951(a). Id. The defense didn’t object to the jury instructions. Id.

Issue(s): Defendant argues that the jury instructions were erroneous because . . . the instructions did not require ‘but-for causation’ pursuant to Burrage v. United States, . . . 134 S.Ct. 881, 187 . . . (2014) . . . .” Id. at *2.

Held: “We conclude at step one of the plain-error inquiry that there was no error  . . . . In Burrage, 134 S.Ct. at 885, 892, the Supreme Court held that a statute criminalizing drug distribution when ‘death or serious bodily injury results from the use of such substance’ required proof of but-for causation. Here, the statute requires that the defendant harbor a person (or take another specified action) ‘knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act.’ 18 U.S.C. § 1591(a) (emphasis added). Defendant asserts that, under the reasoning of Burrage, the district court erred by not giving an instruction requiring the jury to find that the alleged coercion was the but for cause of the victim's commercial sex acts. The district court did not err by declining to apply Burrage here. Causation is not an element in a § 1591(a) prosecution, because a commercial sex act need not even occur: ‘Case law makes clear that ‘commission of a sex act or sexual contact’ is not an element of a conviction under 18 U.S.C. § 1591.’ . . . Hornbuckle, 784 F.3d 549, 553 (9th Cir.2015). ‘What the statute requires is that the defendant know in the sense of being aware of an established modus operandi that will in the future coerce a prostitute to engage in prostitution.’ . . . Brooks, 610 F.3d 1186, 1197 n. 4 (9th Cir.2010) (internal quotation marks omitted). Because the statute does not require commission of a sex act, the court correctly refused to require the jury to find that Defendant caused a sex act to occur.’” Id. at *2.

Of Note: The “but for” holding is the first defense loss; the second is a frustrating statutory interpretation holding. Id. at *5. Backman argued that in Flores-Figueroa, the Supreme Court had looked at another statute and held that the mens rea “knowingly” applies “all subsequently listed elements of the crime.” Id. at *3. By the same logic, Backman argued that she had to know her actions affected interstate or foreign commerce – a listed element of this sex crime. Id. The Ninth doesn’t buy it (and had rejected a similar argument regarding the commerce clause in a gun statute in Stone). Id. Jurisdictional elements, sadly, get a mens rea pass. Id. at *4.

How to Use: Much of Backman discusses (then upholds) the exclusion of FRE 412 evidence that the defense tried to admit at trial. FRE 412 controls the admissibility of the alleged sexual misconduct of a victim – it is one of the comparatively few rules imposing very detailed discovery requirements on the defense. FRE 412 requires any party to first move to admit the evidence, specifically describe the evidence and its purpose, and to do so “at least 14 days before trial unless the court, for good cause, sets a different time.” Id. at *4 (quoting FRE 412). The evidence in Backman was doubly problematic: the motion was four days too late, and it had no details about the proffered evidence and was thus of questionable relevance. Id. If you’re contemplating FRE 412 evidence, Backman is a worthwhile read on the minefields to avoid. Id. at *5.

                                               

For Further Reading: Evidence in sex crimes cases is tricky stuff. For a fairly thorough (though not defense-leaning) overview, see Evidentiary Matters in Sexual Offense Cases, 4 Geo. J. Gender & L. 525 (2002).

Image of Saipan from http://www.pokernews.com/news/2014/08/imperial-pacific-plans-to-build-a-3-billion-casino-resort-19021.htm

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

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