United States v. Joseph Evans, Sr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-30367 Plaintiff-Appellee, D.C. No v. 2:10-cr-02121-

WFN-1

JOSEPH ANDERSON EVANS, SR.,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 11-30369 Plaintiff-Appellee, D.C. No. v. 2:11-cr-02039-

WFN-1

JOSEPH ANDERSON EVANS, SR.,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, Senior District Judge, Presiding

Argued and Submitted February 8, 2013—Seattle, Washington

Filed August 27, 2013

Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges. Opinion by Judge Paez; Dissent by Judge Gould

SUMMARY*

Criminal Law

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…

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…

dissenting:

I take a different view and would affirm the district court for three reasons.

First, Federal Rule of Evidence 104(a) literally permits a district court to perform a threshold review of the admissibility of *968 evidence. Even if Rule 104(a) is limited to the “preliminary requirements or conditions that must be proved before a particular rule of evidence may be applied,” United States v. Brewer, 947 F.2d 404, 409 (9th Cir.1991), that does not prevent the court from excluding illegitimate evidence when excluding such evidence is the very reason rules of evidence exist. I have no problem reaching the firm conclusion that illegitimate evidence may permissibly be held to be inadmissible due to its inaccurate nature. We should make that our prece-dential point, rather than the approach favored by the majority.

I illustrate with a thought experiment or hypothetical. Let’s say that an organized-crime czar is charged in a serious case and wants to present “exculpatory” evidence. But the prosecution has independent evidence that the defense evidence is as phony as a $3 bill. It might be fraudulently obtained (such as the legitimate document here that was procured by…