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.
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,
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:
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.
At the Rule 104 hearing, the government called three witnesses.
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.
(citation omitted).
The two cases proceeded to trial, with the court beginning with the trial of the § 1326 charge. During jury deliberations on that charge, the jury sent the district court a note asking, "if you are deported are you legally considered an alien?" The court responded that the answer was contained within the jury instructions. When the jury could not reach a unanimous verdict, the court declared a mistrial. At the re-trial of the § 1326 charge, Evans's primary defense was that he was a United States citizen, and his primary evidence in support of that defense was his own testimony. Both of the special agents from the Rule 104(a) hearing testified again at the re-trial. This time, the jury returned a verdict of guilty.
At the trial on the fraud and false statements charges, Evans again argued that he was a United States citizen. All three of the government's witnesses from the Rule 104(a) hearing testified at this trial, and the jury convicted Evans.
Evans timely appealed the judgments of convictions in both cases. On appeal, Evans argues that the exclusion of the birth certificate deprived him of his Fifth Amendment due process right to present a defense and his Sixth Amendment right for a jury to determine every element of the charges brought against him.
We review de novo the district court's interpretation of the Federal Rules of Evidence, United States v. W.R. Grace, 504 F.3d 745, 758-59 (9th Cir.2007), but we review the district court's exclusion of evidence for abuse of discretion, United States v. Lynch, 437 F.3d 902, 913 (9th Cir.2006) (en banc). "We review de novo whether an evidentiary error rises to the level of a constitutional violation." United States v. Pineda-Doval, 614 F.3d 1019, 1032 (9th Cir.2010). A constitutional error is harmless if "it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." United States v. Walters, 309 F.3d 589, 593 (9th Cir.2002) (internal quotation marks omitted).
The Constitution "guarantees criminal defendants a meaningful opportunity to present a complete defense." United States v. Stever, 603 F.3d 747, 755 (9th Cir.2010) (internal quotation marks omitted). This right includes "the right to present the defendant's version of the facts," Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and to "put before a jury evidence that might influence the determination of guilt," Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); see also Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ("The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations."). We have acknowledged that this right is not "absolute," Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir.2003), since the "adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments," Taylor v. Illinois, 484 U.S. 400, 410-11, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). However, "`when evidence is excluded on the basis of an improper application of the evidentiary rules,'" the danger of a due process violation is particularly great, since "`the exclusion [of the evidence] is unsupported by any legitimate ... justification.'" Stever,
The district court invoked Rule 104(a) as the source of its "gate-keeping" authority. Rule 104(a) states that the court "must decide any preliminary question" of fact or law about three types of issues: whether (1) "a witness is qualified," (2) "a privilege exists," or (3) "evidence is admissible." Fed.R.Evid. 104(a); see also Fed.R.Evid. 104(a) advisory committee notes.
Thus, Rule 104(a) provides the trial court with the authority to decide questions that might make evidence inadmissible under some other rule of evidence (or under the Constitution, a federal statute, or other Supreme Court rules), but it does not itself provide a substantive basis for excluding the evidence. See United States v. Brewer, 947 F.2d 404, 409 (9th Cir.1991) ("Rule 104 ... is limited to the preliminary requirements or conditions that must be proved before a particular rule of evidence may be applied."). For example, trial courts can exercise their authority under Rule 104(a) to determine that a statement was made for the purposes of medical diagnosis, making it admissible under Rule 803(4), see United States v. Lukashov, 694 F.3d 1107, 1115 (9th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 1744, 185 L.Ed.2d 801 (2013); that a conspiracy
In each of the above scenarios, the trial court uses its Rule 104(a) authority to determine "the existence of a condition," which in turn determines "[t]he applicability of a particular rule of evidence." Fed. R.Evid. 104(a) advisory committee notes. We have not previously considered whether a trial court can exclude evidence pursuant to Rule 104(a) without relying on some substantive basis outside of Rule 104(a), such as another rule of evidence, a federal statute, or the United States Constitution. We now hold that it cannot.
Because the trial court must admit evidence that is (1) relevant, and (2) not inadmissible under, inter alia, some other rule, Fed.R.Evid. 402, we next consider whether these conditions are met here. The government argues that the birth certificate is irrelevant because even if it was "genuine in form," it was "not [genuine] in substance." We disagree. The fact that the birth certificate was properly issued by the State of Idaho establishes that it is "of consequence" to an issue in both cases — Evans's claim of United States citizenship — and that it has some "tendency to make [his alleged citizenship] more ... probable than it would be without the evidence." Fed.R.Evid. 401.
Furthermore, to the extent the district court conditioned the relevance of the birth certificate upon its "substantive genuineness," it erred in its application of Rule 104(b). This rule provides that where "the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist." Fed.R.Evid. 104(b).
Here, although the district court did not specifically cite to Rule 104(b), its conclusion that no "reasonable person" could "determine that the Defendant's Idaho birth certificate is substantively genuine" draws its language and reasoning from Rule 104(b). But in reaching the conclusion that no reasonable person could find that Evans's birth certificate was substantively genuine, the district court erroneously weighed the credibility of the government's witnesses against the credibility of the official state document. Indeed, it expressly found that "all three of the Government's witnesses were credible." This was error. The fact that the birth certificate was an official document, issued by the Idaho Bureau of Vital Records and Health Statistics, provided a sufficient basis upon which a juror could conclude that the birth certificate was "substantively genuine." And to the extent the Government's evidence suggests otherwise, the issue boils down to the credibility of the parties' conflicting evidence, which is a question for the jury to decide.
We next turn to the district court's application of Rule 403. As part of
We find three cases from our sister circuits to be instructive. First, in Blake v. Pellegrino, the district court granted the defendant's motion to strike the cause of death from the plaintiff's death certificate, explaining that it did not believe the plaintiff had died in the manner so described. 329 F.3d 43, 45 (1st Cir. 2003). The First Circuit held that this was error. Id. at 49. The court concluded that "a judge, presiding over a jury trial, may [not] rule on the admissibility of evidence based upon his view of the persuasiveness of that evidence," since the jury, not the judge, was "the ultimate arbiter of the persuasiveness of the proof." Id. at 47 (internal quotation marks omitted). The court considered and rejected the possibility that the trial court had acted pursuant to its authority under Rule 104(a):
Id. at 48 (emphasis added) (citations omitted). We are persuaded by the court's reasoning. The district court here, as in Blake, did not dispute that Evans's birth certificate was properly issued by the State of Idaho, making it facially valid. Rather, the court questioned whether the event that the certificate allegedly documented — in Blake, the decedent's alleged death by asphyxia; here, Evans's alleged birth in Idaho — had actually occurred in
We find further support for adopting the First Circuit's rule in Ballou v. Henri Studios, Inc., 656 F.2d 1147 (5th Cir.1981). In Ballou, the plaintiffs filed a motion to exclude a blood alcohol test indicating that the decedent was intoxicated at the time of his car accident with the defendant. Id. at 1149. The trial court held a pre-trial hearing at which several witnesses testified; it then granted the motion, explaining that the test lacked "credibility" in light of certain witness testimony. Id. at 1151-52. The Fifth Circuit reversed, concluding that "the court's decision to believe Mrs. Eisenhower's testimony rather than the results of the blood alcohol test constituted a credibility choice which should properly have been reserved for the jury." Id. at 1154. The court went on to explain that the district court had mis-applied the Rule 403 balancing test by assigning "little or no probative value" to the test results when it excluded them:
Id.; see also id. ("Rule 403 does not permit exclusion of evidence because the judge does not find it credible." (internal quotation marks omitted)). The district court here, like the trial court in Ballou, erred by assigning no probative weight to the birth certificate. It should have determined the probative value of the birth certificate if taken as a true record of Evans's birth, and then weighed it against the other Rule 403 factors.
Finally, we find additional guidance in the Fourth Circuit's decision in Rainey v. Conerly, 973 F.2d 321 (4th Cir.1992). In Rainey, the trial court sua sponte excluded a prisoner's contemporaneous written account of an altercation with a prison guard "because it was dated December 3, 1988, yet purported to describe events that occurred on December 3 through December 5, 1988," and therefore was "not reliable." Id. at 326. The Fourth Circuit held that this was error. The court concluded:
Id. (citation and footnote omitted). Here, as in Rainey, the trial court relied in part on an improper ground for excluding the birth certificate under Rule 403, i.e. the danger of a "miscarriage of justice." This was error. It should have instead trusted the jury to consider discrepancies between the information contained in the birth certificate and the government's evidence and accord the proper weight to each.
The final question, with respect to the district court's evidentiary rulings, is whether the probative value of the birth certificate — if found credible by the jury — is substantially outweighed by the potential for undue delay, or any other factor in the Rule 403 balancing test. We conclude that it is not. The birth certificate's probative value, if found to be a credible record of Evans's birth, is very high: every charge in the two indictments required the government to prove that Evans was either an alien or not a citizen of the United States, his main defense at both trials was that he was a United States citizen, and the birth certificate was his primary evidence of citizenship. See United States v. Wiggan, 700 F.3d 1204, 1213 (9th Cir.2012) ("[A] decision regarding probative value must be influenced by the availability of other sources of evidence on the point in question."). Furthermore, the danger of "undue delay" — the only proper Rule 403 factor that the district court cited — was low, especially since the government's witnesses from the Rule 104(a) pre-trial hearing testified again at both of the trials. Although the government argues that it would have had to "conduct a separate presentation during rebuttal, following the Defendant's offering [the birth certificate] in his case-in-chief," such a burden does not rise to the level of an "undue delay" in this case, nor does it outweigh the probative value of the birth certificate to the central issue in both cases.
The government also argues that three additional Rule 403 factors — unfair prejudice to the government, confusion of the issues, and misleading the jury — substantially outweigh the probative value of the birth certificate. We disagree.
Admission of the birth certificate also would have posed a low risk of confusing or misleading the jury. Although the birth certificate would have increased the chances that the jury would acquit Evans, such a result could not be attributed to the jury being confused or misled; to find otherwise would be to prejudge the "correct" outcome of the trial before it occurs. See, e.g., United States v. Crosby, 75 F.3d 1343, 1349 (9th Cir.1996) ("`[I]f the evidence [that someone else committed the crime] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt.'" (quoting 1A John Henry Wigmore, Evidence in Trials at Common Law § 139 (Tillers rev. ed.1983)) (alterations in original)). It is the jury, not the trial judge, that must decide how much weight to give to Evans's delayed birth certificate in light of the government's evidence suggesting that the birth certificate is fraudulent and that Evans is not a United States citizen. We therefore conclude that it was an abuse of discretion for the district court to exclude Evans's delayed birth certificate under Rule 403.
We next consider whether the exclusion of the birth certificate rose to the level of a constitutional violation. We hold that it did.
Likewise, in Stever, we held that it was constitutional error to exclude "the sole evidence" tending to show that a drug trafficking organization may have trespassed on the defendant's land, where "a major part of the attempted defense" was that the defendant was not involved in growing the marijuana discovered on his land. 603 F.3d at 757 (internal quotations marks omitted).
Having found a violation of the right to present a defense, "we must reverse the guilty verdict unless the government convinces us the error was harmless beyond a reasonable doubt." United States v. Leal-Del Carmen, 697 F.3d 964, 975 (9th Cir.2012). The government has not met this high burden. Its sole argument is that any error was harmless "given the overwhelming volume and substance of the government's evidence in support of the Defendant's alienage." But we are not persuaded beyond a reasonable doubt that the jury would have believed this evidence rather than believing that Evans was a United States citizen, as suggested by his state-issued birth certificate. The question of Evans's alienage or citizenship was "at the very heart" of the two cases, and his birth certificate was "the most important evidence that the defense could present on that topic." Wiggan, 700 F.3d at 1215 (holding that it was an abuse of discretion, and not harmless, to admit grand juror testimony). We do not know the effect that the birth certificate would have had on the outcome of the trial, including whether it would have affected the jurors' assessment of Evans's own testimony or the testimony of any other witnesses. Indeed, the first jury to hear Evans's § 1326 case could not reach a verdict, resulting in a mistrial. We also find it significant that Evans exercised his right not to testify in the case that resulted in a mistrial; we decline to speculate on whether he would have exercised this right in the subsequent two trials — or otherwise changed his trial strategy — had the birth certificate been admitted. We are therefore not convinced beyond a reasonable doubt that the exclusion of the birth certificate was harmless.
We conclude that the district court erred in invoking an inherent "gate-keeping" authority to exclude the birth certificate pursuant to Rule 104(a) without relying on some substantive basis outside of Rule 104(a). The court further erred by concluding that no reasonable juror could determine that the birth certificate was "substantively genuine," see Fed.R.Evid. 104(b), and by excluding the birth certificate pursuant to Rule 403 without first assessing its probative value when taken as a true record of Evans's birth. Furthermore, the district court's exclusion of the central piece of evidence for Evans's main defense to a critical element of all the charges in the two cases was a violation of Evans's Fifth Amendment right to present a defense, and the error was not harmless.
For all of the above reasons, we vacate the conviction in No. 11-30367 and all the convictions in No. 11-30369 and remand for a retrial of all charges in both cases.
GOULD, Circuit Judge, 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
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 fraudulent means). Or it might be the product of extortion (such as through a threat like "I will kill your children if you don't give me an alibi"). Or it might be the product of bribery (such as a promise to pay a large sum for favorable evidence). In each case, the majority's rule would appear to require the phony evidence to be admitted before the jury, while merely letting the prosecution present responsive evidence to the jury showing that it was procured by fraud, extortion, or bribery. That would require mini-trials within the trial, would be potentially confusing to a jury, and is not literally required by Rule 104.
The majority agrees that the court can condition relevance on validity. But it concludes that in making "a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition," Fed.R.Evid. 104(b) advisory committee's note, a court may not consider the underlying substance and process that led to the issuance of a document because doing so would amount to an improper credibility determination. Applying this rationale in the present case, the majority concludes that "the district court erroneously weighed the credibility of the government's witnesses against the credibility of the official state document." But the existence of the document does not at all bear on the question of whether it was procured by fraud. And the district court cannot be said to have made a credibility determination when Evans presented no evidence at the hearing to support the document's integrity. Adopting the rule of the majority permits a party's old lies to insulate new ones from challenge outside the jury's presence.
Here are the facts: To gain the delayed birth certificate, Evans offered an affidavit and testimony asserting that he was born in Idaho and was a former member of the U.S. Marine Corps. He said under oath that he was "active in the Vietnam [W]ar, from 1969 through 1975" and had twelve years of combat duty where he earned a purple heart. He said that when he came back to the United States, he "donated [his] next eight years of service [in the Marine Corps] for free" until he retired. On this evidence, the Idaho judge granted the delayed birth certificate in the non-adversarial state proceeding and thanked Evans for his military service.
In the federal criminal proceeding, the district court excluded the Idaho birth certificate. It reached this correct decision after hearing extensive evidence that Evans was not a U.S. citizen and never served in the military, let alone in a war zone.
The majority argues that the court impermissibly made a credibility determination, but as I have explained, this principle should not be applied when all the evidence was on the Government's side and Evans had no witnesses testify at the evidentiary hearing. The district court's rationale quoted above is equivalent to saying that no reasonable jury could determine that the birth certificate was not tainted by fraud. I conclude that the district court made a correct and discerning judgment. There is nothing on the side of nonfraud here, and the district court's decision excluding the evidence was correct.
"Fraud" is "an instance or act of trickery or deceit esp[ecially] when involving misrepresentation." Webster's Third New International Dictionary 904 (3d ed.1993). To tell a lie is to "make an untrue statement with an intent to deceive" or to "create a false or misleading impression." Id. at 1305. Lying is a form a fraud. And to determine whether fraud exists, substance and process must be examined. Under the majority rule, the district court could not perform such an examination and evidence procured by fraud would be admissible, leaving it to the jury to sort things out. To my thinking, there is no evidence error at all in excluding fraudulently obtained evidence. I would conclude that Federal Rule of Evidence 104(a) lets the court preliminarily review whether a state document in the form of a belated birth certificate was procured by fraud. That is one reason to affirm the district court.
Second, even if Rule 104(a) should be limited as stated by the majority, Federal Rule of Evidence 403, relied upon by the district court in its Rule 104 decision, gives the district court broad power to exclude evidence if its probative value is substantially outweighed by a danger of "unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
Third, even if the district court abused its broad discretion on evidence rulings despite the sound grounds for the fraudulent birth certificate's exclusion, I would not elevate this to the level of constitutional error and instead would conclude that any error was harmless.
Hence I respectfully dissent and would affirm the district court.