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: Gov't Adores our Opened Doors - Kootswatewa and Hearsay on Rebuttal

  Opened doors can be scary.

United States v. Kootswatewa, 2018 WL 1439610 (9th Cir. Mar. 23, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judge Wallace and visiting DJ Sands. Hard fought appeal by D. Az. AFPD Michael Burke.

Facts: Kootswatewa was charged with sexual abuse of a child. Id. at 2. The child, K.C., was a developmentally disabled 11 year old girl that lived on the same reservation as the defendant. Id. After the assault, K.C. made statements to a police officer. Id.

  At trial, the defense questioned K.C.’s reliability, describing her motives to fabricate the story and exploring coaching by K.C.’s mother. Id. at *4. In the government’s rebuttal case, the court allowed testimony from the officer about statements K.C. had made to him shortly after the abuse. Id. at *4.

  Kootswatewa was convicted and sentenced to forty years. Id. at *2.

Issue(s): “We turn . . . to Kootswatewa’s objection to the admission of the officer’s testimony concerning the statements K.C. made to him shortly after the abuse occurred. . . . The district court admitted K.C.’s statements under Rule 801(d)(1)(B)(i), which renders admissible a prior statement that is consistent with the declarant’s in-court testimony and is offered ‘to rebut an express or implied charge that the declarant recently fabricated [her testimony] or acted from a recent improper influence or motive in so testifying.’” Id. at *4, quoting Fed.R. Evid. 801(d)(1)(B)(i).

Held: “The district court properly exercised its discretion in admitting K.C.’s statements to the officer.” Id. at *4. “K.C.’s prior statements to the officer were admissible to rebut defense counsel’s suggestion that K.C.’s in-court testimony had been tainted by a ‘recent improper influence or motive’ – namely, K.C.’s mother alleged coaching.” Id. at *4.

Of Note: Kootswatewa is a disappointing, but important, decision on the admission of hearsay testimony under Federal Rule of Evidence 801(d)(1)(B)(i). Appellate counsel admirably slugged away at each requirement of this “rebuttal” hearsay evidence, and the Ninth addresses the rule in depth.

  First, to be admissible, this evidence has to have occurred before the alleged motive to fabricate arose. Id. at *4. Judge Watford finds that requirement met here, because the statements to the officer happened before K.C. spoke to her mother.

  Kootswatewa also argued that the defense had a different theory on K.C.’s motive to lie: that she had gone where she was told not to go by her mother, and fabricated the assault to cover for herself and avoid discipline. Id. at *4. That motive to lie pre-dated the statements to the officer, so why were the cop-statements admissible? Judge Watford concludes that prior statements for rebuttal don’t have to address all of the defense theories: it is enough that the statements properly went to one of them (here, the theory that K.C. was coached). Id. at *5.

  “Opening the door” is often a dangerous possibility for the defense – and here, the Ninth allowed a barn door to be opened with these statements to the officer. Study Kootswatewa when weighing the risks and dangers of attacking the credibility of government witnesses, and mulling the government’s rebuttal case.

How to Use: Maybe there was error, here: facts in K.C.’s statements to the cop, and her testimony at trial, were not consistent. Id. at *5. The Ninth looks at the evidence in this case, and concludes that “any error in admitting the statement was harmless.” Id.

  This passage of Kootswatewa is worth a close read – inconsistent facts in the pretrial statement and the trial testimony may help keep 801(d)(1)(B)(i) evidence out of your trial.

                                        

For Further Reading: In 2016, Professor Kilkpatrick forcefully warned that amendments to FRE 801 would improperly expand the use of prior statements as substantive evidence in rebuttal. See Kirkpatrick, Laird C., Prior Consistent Statements: The Dangers of Misinterpreting Recently Amended Fre 801(D)(1)(B)* (2016). 24 Trial Evidence 12 2016; GWU Law School Public Law Research Paper No. 2016-40; GWU Legal Studies Research Paper No. 2016-40. Available at SSRN: http://ssrn.com/abstract=2836114

  Read this short piece, and read Kootswatewa: the Prof was, sadly, spot on.

Image of doors from https://www.gizmodo.com.au/2017/08/i-survived-a-trip-through-the-neibolt-street-house-from-stephen-kings-it/

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Weight, weight - don't tell me. Navarrette-Aguilar & Apprendi Proof for Mand-Min Drug Quantities

   The Ninth’s New Year’s Resolution: watch the weight.

United States v. Navarrette-Aguilar, 2015 WL 9463075 (9th Cir. Dec. 28, 2015), decision available here.

Players: Great decision by Judge Paez, joined by Judges Fisher and Ikuta.

Facts: Among other crimes, Navarette was charged with conspiracy to distribute a kilo or more of heroin, which triggered a twenty-year mand-min (Navarette had a prior). Id. 

To build the case the government used information from lower-level dealers to pursue higher-level distributors. Id. Specifically, cops developed snitches to work up the chain to Navarette. The government introduced 274 grams of heroin at trial. Id. at *2. The cooperators testified about the number of times they purchased heroin from Navarette, and the quantities involved. Id. at *3. The district court and Ninth agreed that this testimony was “vague.” Id. at *4.

The jury found Navarette conspired to distribute a kilo or more. Id. at *5. In denying the Rule 29, the court found the jury could have inferred, from a pattern of dealing, a “preexisting agreement to distribute at least a kilogram of heroin.” Id. at *6.

Issue(s): “Navarrette argues that substantial evidence did not support the jury's quantity finding. The evidence of historical transactions adduced did not amount to one kilogram. Navarrette maintains that when the district court denied his motions for judgment of acquittal, it erred in determining that the pattern of transactions permitted the jury to conclude that members of the conspiracy would have eventually distributed one kilogram of heroin.” Id. at *1.

Held: “Even if some hypothetical pattern of transactions were consistent and clear enough to infer a preexisting agreement to surpass a certain quantity, such is not the pattern before us. While the testimony of [the cooperators] could prove repeated transactions over a period of eight weeks, the testimony did not show any consistency in those transactions, either with respect to amount or to frequency, from which a jury could reasonably infer an agreement to distribute a kilogram of heroin. This conclusion is underscored by the vague and equivocal nature of the testimony itself. Both witnesses at points contradicted themselves, and Burns repeatedly indicated that his memory was unreliable. Even construing the evidence in the light most favorable to the prosecution, the purchases in this case appear to have been ad hoc, and dependent on the level of demand at any given moment. . . . . 

Moreover, the testimony given at trial revealed that the whole arrangement was temporary and unstable. . . . Speculation cannot constitute substantial evidence.” Id. at *9-*10 (citation omitted).

Of Note: The Ninth upheld questioning about Navarette’s drug prior, because his sister’s testimony had “opened the door” to that evidence. Id. at *11. “Opening the door” is a particularly dangerous little concept, grounded in no evidentiary rule. See generally United States v. Wales, 977F.2d 1323, 1328-29 (9th Cir. 1992) (Kozinski, J., concurring in part.) (“This ‘opening the door’ doctrine has a certain common-sense appeal, but where is it to be found in the Rules of Evidence? I'm aware of no authority for admitting inadmissible evidence just because we think turnabout is fair play.”) 

Give Navaratte to defense witnesses, to warn of the consequences of well-meaning assertions (here, the sister volunteered that “she knew her brother was not involved in drugs).  

How to Use: Maybe Navarette would have dealt a kilo, posits the government, had the conspiracy not been interrupted? Judge Paez explains that this theory doesn’t cut it. “[T]he argument that the co-conspirators would have distributed one kilogram if it had not been interrupted potentially allows a quantity finding to stand upon what Navarrette would have continued to do, which, to the extent these hypothesized future bad acts were not captured by an agreement within the charged period, is clearly improper . . . Such a theory impermissibly invites the jury to speculate as to the amount of heroin involved in the conspiracy.” Id. at *10 (internal quotations and citations omitted). This discussion in Navaratte is a useful rejection of speculative conspiracy theories, used to stretch for mand-min drug amounts.

                                               

For Further Reading: On January 8, 2016, the Sentencing Commission will be meeting. Topics include a possible vote on the crime of violence amendment. See agenda here. 

The C.O.V. amendment to Section 4B.2 seems certain, at some point – but the big question is whether the amendment will be retroactive. For public comment on the proposed amendment, see the Commission’s page here.

Image of one Kilo from http://fof.se/tidning/2011/8/vi-vet-inte-langre-hur-tungt-ett-kilo-ska-vara

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

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Case o' The Week: "Opened Door" Closes Door on Defense Challenge - Sepulveda-Barraza and Drug Courier Experts

What happens when the defense "opens the door" to the relevance of drug courier testimony?

A federal drug courier "expert" strolls on through . . . United States v. Sepulveda-Barraza, 2011 WL 723108 (9th Cir. Mar. 3, 2011), decision available here.


Players: Hard-fought appeal by D. Az. AFPD Dan Kaplan. Decision by Judge Ikuta.

Facts: Sepulveda-Barraza was stopped at the border and referred to secondary inspection. Id. at *1. Eleven packages of cocaine were found in his car. Id. Sepulveda-Barraza hung his first jury trial; at the retrial the defense noticed its intent to call a retired FBI Special Agent as an expert. Id. This expert would testify that drug trafficking organizations sometimes use unknowing couriers (“blind mules) to smuggle drugs across the border.

The government then noticed its intent to call an ICE expert, to testify about the control of drug couriers by drug trafficking organizations, the street value of the cocaine found, and the “implausibility that drug traffickers would entrust valuable drug loads to an unknowing individual.” Id.

The defense moved in limine to exclude the testimony of the government expert; that motion was denied. Id. Sepulveda-Barraza was convicted at trial and received a sentence of 120 months. Id. at *2.

Issue(s): “According to Sepulveda-Barraza, United States v. Vallejo established the per se rule that the government may not introduce expert testimony describing the ‘general structure and operations of drug trafficking organizations’ because the introduction of such testimony inevitably creates the implication that the defendant ‘had knowledge of how the entire organization operated, and thus knew he was carrying the drugs.’ 237 F.3d 1008, 1012, 1017 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001). Moreover, Sepulveda-Barraza urges us to extend the rationale of Vallejo, and hold that an expert’s testimony that a drug trafficking operation is unlikely to use an unknowing drug courier is always inadmissible in a non-complex case such as this one.” Id. at *3.

Held: “We disagree. First, neither Vallejo nor its progeny supports the establishment of a per se rule that expert testimony regarding the operation and structure of drug trafficking organizations or the modus operandi of couriers involved in drug trafficking organizations is inadmissible.” Id.

“[ ] Sepulveda-Barraza makes the further argument that we should extend our existing case law to create a rule that testimony about the use of unknowing couriers is per se inadmissible in a non-complex drug trafficking case. We decline this invitation. Testimony regarding the use of unknowing couriers by drug trafficking organizations is not different in kind than testimony about drug trafficking operations generally. Accordingly, for the reasons explained above, such evidence is likewise admissible under the broad, case-by-case standard of Rule 403.” Id. at *4.

“In sum, expert testimony on drug trafficking organizations and the behavior of unknowing couriers is admissible when relevant, probative of a defendant's knowledge, and not unfairly prejudicial under the standard set forth in the Federal Rules of Evidence.” Id.

Of Note: The defendant in this case didn’t object to the testimony of the government’s expert at trial. On appeal, does the Ninth review the defense challenge under the abuse-of-discretion standard, or under the (nearly impossible) “plain error” standard triggered when there is a failure to object? The defense argued the former, because Sepulveda-Barraza had litigated this motion in limine and had no obligation to renew his motion at trial.

“We agree,” writes Judge Ikuta. Id. at *2. “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Id.

How to Use: When you read that the defense called an expert on retrial, the immediate fear is that dreaded “open the door” rationale. Sure enough, Judge Ikuta explains that “Sepulveda-Barraza opened the door to [the government expert’s] testimony by noticing his intent to call [a defense expert] to testify that ‘drug cartels’ sometimes use ‘blind mule’ couriers to smuggle drugs across the border and then eliciting such testimony at trial.” Id. at *5.

Note this key fact – Sepulveda-Barraza may not control when government’s expert isn’t simply rebutting a defense expert.

For Further Reading: That “open door” concept (otherwise known as “conditional relevance”) is tricky and dangerous stuff, found nowhere in the actual rules of evidence. For a discussion of open doors in the context of FRE 608 – and Chief Judge Kozinski’s critique of the concept – see the May 2009 blog on United States v. Osazuwa, available here.


"Open Door" image from http://jantiff-stocks.deviantart.com/art/The-Open-Door-124136267


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


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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


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