Sunday, February 01, 2015

Case o' The Week: The Ninth Gets "Definitive" - McElmurry, FRE 103(b) / 403, and In Limine Rulings

  “[T]he record, briefs and argument establish the district court admitted the evidence without reading it or listening to it.” United States v. McElmurry, 2015 WL 305274, id. at *6 (9th Cir. Jan. 26, 2015), decision available here.
   So, question presented: must a district court review the evidence before determining its admissibility under FRE 403?
   Read on.
Players: Decision by Judge Kleinfeld, joined by Judge Reinhardt and (partially by) Judge Christen. Nice victory for (former) ED Cal AFPD John Balazs.

Facts: McElmurry was convicted in a jury trial of possession and distribution of child pornography. Id. at *1. The government introduced statements that McElmurry had made four years earlier, in a separate state case. Id. at *3. Those (old) recorded statements admitted an child porn “addiction” and detailed McElmurry’s possession of child porn. Id. The government also introduced a letter McElmurry had written years before, lambasting police, bragging that he had inaccessible encrypted files, and complaining about laws prohibiting sex with minors. Id. “McElmurry strenuously objected to this material.” Id. The government argued the material was admissible to counter a potential defense argument [Ed. note - not making this up] that McElmurry’s “68-year old mother or 104-year-old grandmother, still living in the house, were responsible for the child pornography, not him.” Id. The district judge let the evidence in, although the “record, briefs and oral argument appear to establish” that he had not read the material. Id. at *5.

Issue(s): Does a district court have to examine the evidence, before it rules on the FRE 403 balancing test?

Held: “A district court cannot properly exercise its discretion to decide whether the probative value of the evidence objected to under Rule 403 outweighs the risk of unfair prejudice without examining the evidence.” Id. at *7.

Of Note: The Double Jeopardy Clause prohibits separate convictions for possession and receipt of the same image of child pornography. Id. at *1. Does the same hold true for possession and distribution? In a decision of first impression, Judge Kleinfeld holds, “no.” Id. at *2. Using a “Tom, Dick, and Harry” hypo, Judge Kleinfeld concludes that the distribution element can be fulfilled even by someone who does not possess the image, so the Blockburger “same elements” test is not implicated. Id. The Ninth joins the First and Fifth in this holding – no Double Jeopardy bar to convictions for both possession and distribution of the same image. Id. at *1 & n.8.

How to Use: The real issue is not the one described above. The heart of the case is whether the district court made a “definitive” 403 ruling on McElmurry’s in limine objection. Id. at *4-*7. (A FRE 103(b) issue).   That core issue requires pages of analysis, and sparks a disagreement with Judge Christen. See id. at *9 (Christen, J., concurring in part and dissenting in part).  
   McElmurry is an important decision for this familiar issue: what level of specificity is required of the government for evidence before trial, and what depth of review is required by the district court, for in limine rulings? McElmurry is a valuable decision, because the reversed conviction puts the government (and district courts) on notice: ignore detailed and careful FRE 403 review of specific trial evidence, and the conviction is in peril. Use McElmurry to compel earlier and more-specific government disclosures before trial.

For Further Reading: What is going on, with the S.F. Police Department? On Jan. 27, veteran SF Public Defender Jami Tillotson was unjustly arrested in the Hall of Justice for refusing to let her young African American client be questioned outside of the presence of counsel. See summary here Inspector Brian Standbury threatened Tillotson with “resisting arrest” –and then promptly followed through. See article here
   The whole outrageous affair is on video - watch it yourself. As Ms. Tillotson is being lead away in cuffs, she protests, "I am still representing my client, here." Makes one proud to be a fellow public defender, to watch this display of professionalism, commitment, and courage.
   Notably, Inspector Standbury was named in a federal civil rights suit in the Northern District of California for racial profiling – and the Plaintiff is a San Francisco cop! (Like Public Defender Tillotson, this cop-plaintiff was charged with "resisting arrest" . . . ) See article here.
   This all comes just one week after another SF Police Officer, Arshad Razzak, was convicted of federal charges in the Northern District for conspiring to violate civil rights See article here 

Federal Rules of Evidence (FRE) image from

Image of the arrest of San Francisco City and County Deputy Public Defender Jami Tillotson from

Steven Kalar, Federal Public Defender ND Cal. Website at


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