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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Case o' the Week: Ninth Not Confrontation-al, Over Hearsay Evidence - Liera-Morales, Testimonial, and Non-Testimonial Evidence

  A mother, sobbing, begs hostage-takers not to kill her son as they demand ransom money and threaten execution.

  A tough factual context for the defense, for a Confrontation Clause challenge to her statements.  United States v. Liera-Morales, 2014 WL 3563356 (9th Cir. July 21, 2014), decision available here.

Hon. Judge Margaret McKeown

Players: Decision by Judge McKeown, joined by Judges Wallace and Gould. Hard-fought appeal by D. Az. AFPD Keith Hilzendeger.  

Facts: Liera-Morales helped smuggle 18-year old Aguilar in to the US and secured him in a trailer home. Id. Liera-Morales and others blackmailed Aguilar’s mother, threatening her on the phone and demanding ransom money. Id. Aguilar’s mother (Avila) called 911, and an agent went to her house to try to arrange a recorded call with her son’s captors. Id. The agent was unable to record the next call, because Avila was “shaking, crying, and very nervous.” Id. She reported that the captors threatened to kill her son if they weren’t paid that afternoon. Id. at *2. After the agent left, Avila received another call where she was told to say good-bye to her son: she also reported this call. Id. at *2. Agents posed as the payment intermediaries, arrested Liera-Morales and recovered Aguilar. Id. When interrogated, Liera-Morales admitted he told Avila she owed money for bringing her son out of the desert. Id. at *2. Liera-Morales was charged with hostage taking, communicating a ransom demand, interstate threats, transporting, and harboring an alien for profit. Id. The government moved to admit the mother Avila’s statements to the agent, as present sense impressions or impromptu excited utterances. Id. The court granted that in limine motion: Liera-Morales was convicted. Id. at *3.

Issue(s): “The central issue in this appeal is whether the admission of statements made by Avila to [the agent] about the telephone conversations with her son’s captors violated the Confrontation Clause. Liera-Morales argues that the unidentified trafficker’s statements to Ms. Avbila were testimonial and complains that he had no opportunity to cross-examine that unidentified interlocutor.” Id. at *3 (footnote and quotations omitted).

Held: “We hold that the . . . admission of the agent’s testimony recounting Avila’s description of the call did not violate the Confrontation Clause of the Sixth Amendment because the call was made primarily to address an ongoing emergency and the challenged statements were nontestimonial.” Id. at *1.

Of Note: Was the agent’s purpose, when setting up the recorded call, to respond to a hostage situation, or to build a future case? Why try to record the call, if the agent’s primary purpose was to find and save the 18-year old son? That question makes a difference, when trying to gauge whether this evidence was “testimonial.” The Ninth doesn’t find this (attempted) recording dispositive of the agent’s intent, opining the agent “primarily sought to record the call to obtain information about Aguilar’s location and to facilitate the plan to rescue Aguilar.” Id. at *5. Citing a 2013 case, Judge McKeown explains that while the recording might have been used for a prosecution, that potential future use “does not automatically place the statements within the ambit of the testimonial.” Id. at *5 (citation and quotations omitted). 

How to Use: Judge McKeown goes to considerable lengths to explain why this “emergency” situation meant that Avila’s statements were nontestimonial and did not run afoul of Crawford. Id. at *3 – *5. There had been explicit death threats and this was an “ongoing emergency.” Id. at *4. The agent’s actions around the call supported the government’s arguments that his primary purpose was to respond to these threats. Id. at *4. The statements lacked any degree of formality and occurred in an informal, high-stress environment. Id. at *5. Judge McKeown describes an extraordinary situation supporting the “nontestimonial” finding:: demand equally extraordinary facts when the government tries to cram future hearsay into this narrow Crawford exception.

                                               

For Further Reading: What’s the deal with federal defenders and clemency work? Defenders are eager to tackle clemency petitions for their former clients (and others), DOJ very much wants our help for this righteous initiative -- what’s the problem?

   For an interesting piece on this unexpectedly complicated issue, see the Al Jazeera article here.

Image of the Honorable Judge Margaret McKeown from http://www.wired.com/2011/08/warrantless-wiretapping-argument/

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