Argued and Submitted February 8, 2013 —Seattle, Washington
Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, Senior District Judge, Presiding D.C. Nos. 2:10-cr-02121-WFN-1, 2:11-cr-02039-WFN-1
Stephen R. Hormel (argued), Hormel Law Office, L.L.C., Spokane Valley, Washington, for Defendant-Appellant.
Shawn N. Anderson (argued), Assistant United States Attorney, and Michael C. Ormsby, United States Attorney, Yakima, Washington, for Plaintiff-Appellee.
Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges.
The panel vacated convictions in two cases in which the defendant's primary defense was that he was a citizen of the United States and his primary evidence in support of his defense was a delayed birth certificate issued by the State of Idaho.
The panel held that the district court erred in invoking an inherent "gate-keeping" authority to exclude the birth certificate pursuant to Fed.R.Evid. 104(a) without relying on some substantive basis outside of Rule 104(a). The panel held that the district court erred by concluding that no reasonable juror could determine that the birth certificate was "substantively genuine" (Fed. R. Evid. 104(b)), and by excluding the birth certificate without first assessing under Fed.R.Evid. 403 its probative value when taken as a true record of the defendant's birth. The panel concluded that the district court's exclusion of the central piece of the defendant's main defense to a critical element of all the charges in the two cases was a violation of his Fifth Amendment right to present a defense, and the error was not harmless.
Dissenting, Judge Gould would affirm because (1) Rule 104(a) lets the court preliminarily review whether a state document in the form of a belated birth certificate was procured by fraud, and illegitimate evidence may be held to be inadmissible due to its inaccurate nature; (2) the district court did not abuse its discretion by excluding the birth certificate under Rule 403; and (3) even if the district court abused its discretion on evidence rulings, he would not elevate this to the level of constitutional error and would conclude that any error was harmless.
PAEZ, Circuit Judge:
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. In two separate cases, the government charged defendant Joseph Anderson Evans, Sr., with being an alien in the United States after deportation, as well as misrepresenting his identity and citizenship to fraudulently obtain supplemental social security benefits, acquire food stamps, make a claim of citizenship, and apply for a passport. Evans's primary defense to all of the charges was that he was a citizen of the United States, and his primary evidence in support of his defense was a delayed birth certificate issued by the State of Idaho. In a pre-trial ruling, the district court excluded the birth certificate on the ground that it was "substantively fraudulent." The court made this finding following an evidentiary hearing at which the government presented evidence that Evans had obtained the birth certificate by fraudulent misrepresentations and was not a United States citizen. Evans was subsequently convicted of all charges in both cases. 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 Evans's Fifth Amendment due process right to present a defense. We further hold that the error was not harmless, and we therefore vacate Evans's convictions and remand for new trials.
I. FACTS AND PROCEDURAL HISTORY
In April 2010, Evans filed a petition for a delayed birth certificate in Idaho state district court. See Idaho Code Ann. §§ 39-267, 39-278. In support of the petition, Evans filed an affidavit on his own behalf and several affidavits from witnesses who offered evidence of his place of birth. Evans also appeared at a non-adversarial hearing where he answered questions posed by the court. At the close of the hearing, the judge granted Evans's petition and ordered the Idaho Bureau of Vital Records and Health Statistics to issue a delayed birth certificate to Evans. In May 2010, the Bureau issued a birth certificate stating that Evans was born in Lapwai, Idaho, on the Nez Perce Indian Reservation. Later that month, Evans applied for a United States passport.
As a result of discrepancies in Evans's passport application, the United States Passport Agency in Seattle referred Evans's case to the State Department's Diplomatic Security Service, which began an investigation into Evans's identity. Later that year, in November 2010, Evans was indicted on one count of being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326. A few months later, in February 2011, he was again indicted, this time on 42 counts of fraudulently obtaining supplemental social security benefits, unlawfully acquiring food stamps, making a false claim of citizenship, and making a false statement in an application for a passport, in violation of 42 U.S.C. § 1383a(a)(3), 7 U.S.C. § 2024(b), and 18 U.S.C. §§ 911, 1542. The basis for the fraud and false statements alleged in the latter indictment were Evans's alleged misrepresentations of his identity and citizenship.
The two cases were assigned to the same district court judge. Before trial commenced on the § 1326 charge, Evans notified the court that he intended to introduce his delayed birth certificate issued by the State of Idaho as proof of his United States citizenship. The birth certificate was a key piece of evidence in both cases, because to convict Evans on any of the counts, the government had to prove beyond a reasonable doubt that he was not a United States citizen. At a pre-trial conference, the court questioned the admissibility of the birth certificate. The court expressed concern about inconsistencies in the evidence, including inconsistent information about Evans's real name and place of birth. The district judge explained to the parties:
I received a lot of documents on [sic] this case. There are a lot of motions filed. And all the documents that I've reviewed in the last half a day or so cause me some real concern about going forward with this case at this time. Without discussing at all the admissibility of any of these documents, on their face, just reading them, there is so much inconsistent information about this person, whether his name is Evans or whether it's Shippentower or whether it's Ceniceros-Mora. .
What really concerns the court is that, without making a finding on this, there's enough evidence to indicate that going forward could possibly result in fraudulent evidence coming into this case in front of the jury.
The court reasoned that if the Idaho court had relied on inaccurate or false information to find that Evans was born in Idaho and grant the petition for a delayed birth certificate, the birth certificate itself would be inaccurate, and it would therefore be error to admit it. The court concluded that it should hold an evidentiary hearing under Federal Rule of Evidence 104 to determine if the birth certificate was admissible. Prior to the hearing, the government filed a pre-trial Motion to Preclude Admission of Evidence of Birth in Idaho ("Motion to Preclude Evidence").
At the Rule 104 hearing, the government called three witnesses. First, a special agent from Immigration and Customs Enforcement testified about his investigation of Evans's immigration and criminal history. He testified that the State Department's Diplomatic Security Service, which investigates visa fraud, asked him to review the A-file (i.e. the immigration file, or "alien registration file") of a person named "Ramon Ceniceros-Mora." The A-file included, inter alia, two documents titled "record of deportable alien, " a copy of a sworn statement made to a Border Patrol officer, a 1984 federal judgment of conviction for possession of a false birth certificate, and a 1990 federal judgment of conviction for a violation of 8 U.S.C. § 1326. The agent testified that he matched Evans to the file of "Ramon Ceniceros-Mora" through fingerprint analysis, photographs, witness interviews, investigation into Evans's application for a delayed birth certificate, and review of Evans's correspondence with the Idaho Bureau of Vital Statistics. On the basis of the records in the A-file, the agent testified that he believed Evans was a native and citizen of Mexico.
The government's second witness was a special agent from the State Department's Diplomatic Security Service. He testified that Evans had submitted an application for a United States passport that contained "fraudulent indicators." He and several other agents subsequently visited Evans at his home to investigate possible visa fraud. During the visit, Evans identified photos of himself that the special agent had taken from the A-file. When the agent told Evans that the photographs were from the file of a person who had been previously deported to Mexico, however, Evans denied being a citizen of Mexico or having ever been deported. The agent also took Evans's fingerprints and matched them to other documents in the A-file.
Finally, the government's third witness was a historian for the United States Marine Corps. She testified that she could find no record of Evans's alleged military service, did not recognize the type of certificate allegedly showing Evans's graduation from training, and thought his military style of dress in photographs was very unusual.
On the basis of the testimony and other evidence presented at the evidentiary hearing, the district court granted the government's Motion to Preclude Evidence. The court cited Federal Rules of Evidence ...