News You Can Use: Tenth Circuit addresses the best evidence rule – and says a lot of other interesting stuff along the way

We read this recent 111-page opinion so you don’t have to. This post is long – though not 111-pages long – and we think it’s worth it.

In United States v. Chavez, a divided panel of the Tenth Circuit issued an epic opinion addressing what is popularly known as the best evidence rule – but which is more accurately called “the original document rule.” That rule, codified in Fed. R. Evid. 1002, provides that “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.”

Chavez holds that the prosecution may not introduce an English-language transcript purporting to translate a foreign-language audio recording without also introducing the audio recording itself. And while that is straightforward enough, Chavez goes on to call into question a lot of problematic things that prosecutors sometimes do with transcripts of our clients’ alleged calls and conversations. For appellate lawyers, it also has interesting things to say about harmless-error review. Read on for an explanation of Chavez’s holding, along with takeaways for both trial and appellate lawyers.

Background

Randolfo Chavez was indicted for distributing methamphetamine. The prosecution’s case included three conversations that Mr. Chavez allegedly had with government cooperators, including conversations during two (alleged) controlled buys. The three conversations – which were mostly, but not entirely, in Spanish –  were recorded.

At trial, the prosecution offered into evidence what purported to be transcripts of the recordings, with Spanish and English versions side-by-side. The prosecution did not offer the recordings themselves. Defense counsel objected to the transcripts based on the best evidence rule, insisting that the recordings themselves needed to be offered into evidence. The district court overruled the objection, leaving the jury to rely on the transcripts without the underlying recording.

Chavez appealed, arguing the transcripts were inadmissible under Fed. R. Evid. 1002.

The Tenth Circuit’s Holding

A divided panel agreed with Mr. Chavez and reversed his convictions.

Judge Holmes’s opinion for the Court, joined by Judge Seymour, is characteristically comprehensive. It canvasses the history, purpose, and scope of the best evidence rule, and the opinion could be a good resource for those who need to brush up on the rule and how it is applied in the Tenth Circuit.

Ultimately, the majority opinion reasons:

  1. Under Rule 1002, “evidence offered to prove the contents of an original writing, recording, or photograph is not admissible, unless the original itself is also admitted.” Maj. Op. at 30.
  2. The bar on “secondary evidence of an original’s contents unless the original is in evidence . . . is absolute,” save for certain explicitly stated exceptions. Id. at 32.
  3. The list of exceptions does not include any exception for foreign-language recordings.” Id. at 32-33.
  4. Consequently, “under the plain meaning of Rule 1002, the best-evidence rule does not permit courts to admit English-translation transcripts of foreign-language recordings when the recordings themselves are not also in evidence.” Id. at 33.
  5. The prosecution “sought to prove the contents of the recordings” when it “sought to prove the words purportedly spoken by Mr. Chavez and others,” but it failed to introduce the recordings themselves. Id. at 44.
  6. Therefore, “[t]he district court’s decision to admit the transcripts [of the recordings] . . . plainly flies in the face of the best-evidence rule and was an abuse of the court’s discretion.” Id. at 46.

Although the majority opinion’s reasoning is largely formalistic, it is informed by the concerns underlying Rule 1002. The best evidence rule requires an original to ensure reliability and to guard against the “human error or outright fraud” that secondary evidence of an available original’s contents may involve. Id. at 30-32. And in Mr. Chavez’s case, there were grave concerns about the accuracy of the Government’s transcripts. Id. at 10-18, 62-64.

For example, the side-by-side Spanish-and-English transcript lists the following as equivalent phrases:

Spanish – “Ponte las pinches pilas (unintelligible) . . . .”

English – “I’m like the boss. I’m your boss. I can get you anything you want. I got everything for the next load. It’s for us. Keep doing a good job and instead of Mckleen I’ll be hooking you up.”

“It is unclear,” the Court says, “how four Spanish words plus and ‘unintelligible’ word or phrase translate into thirty-eight intelligible words in English.” Id. at 15-16.

In another example, the transcript lists the following as Spanish-to-English equivalents:

Spanish – “Tenemos que pagarle al otro way . . .

English – “Fucking 19 grams, We have to pay the other guy. Is this your number?”

Id. at 63-64.

The Court cites numerous other inexplicable discrepancies.

The Court’s opinion goes on to reject the Government’s argument that introducing the recordings was not required. The Government had posited that the fact that the recordings were in Spanish altered the analysis because “recordings in a language that jurors do not understand is not the best evidence” of what was said. Id. at 46-47 (quotation marks omitted). Rather, said the Government “the ‘best evidence’ was the translated transcripts.” Id. at 47. The Court explained that this “evince[d] a fundamental misunderstanding of the legal import of the best-evidence rule.” Id. “Despite its somewhat misleading name, the best-evidence rule’s concern is not with the admission of the best evidence in a qualitative sense.” Id. at 48.

Accordingly, the majority opinion squarely holds that courts must admit the original audio of a recording in a foreign language if it is to admit a translated transcript of such a recording.

Or does it…?

Judge Hartz’s Dissent

Judge Hartz dissented, maintaining that “[t]he sin of the trial judge was to use his common sense.” Dissenting Op. at 1. The dissent maintains that (for reasons explored below) trial courts can still admit translated transcripts without also admitting the foreign-language recording itself, based on the dissent’s theory, notwithstanding the majority opinion. Id. at 6.

Judge Hartz’s merits analysis proceeds as follows:

  1. Rule 1002 requires that the original of a writing, recording, or photograph be admitted “‘unless these rules or a federal statute provides otherwise.” Id. at 9.
  2. Rule 703 allows for the admission of expert opinion testimony without the information underlying the expert opinion testimony also being admitted. Id. at 7.
  3. Consequently, expert testimony opinion addressing the contents of a writing, recording, or photograph need not be accompanied by the original of the writing, recording, or photograph, because “Rule 703 provides otherwise.” Id. at 9.
  4. A translation of a foreign-language recording is tantamount to expert opinion testimony. Id. at 6-7.
  5. Therefore, a transcript translating a foreign-language recording may be admitted even if the recording itself is not admitted. Id. at 9-10.

Although Judge Hartz acknowledges that there may be good reasons for admitting the recording itself in a particular case, id. at 18, he maintains that trial courts should have the discretion to exclude a foreign-language recording under Rule 402 or Rule 403 on the ground that it is irrelevant; would waste time; or would confuse or mislead the jury, id. at 10.

Why does Judge Hartz think that trial courts can follow this path despite the majority’s holding? The reason is that the majority opinion, in a footnote spanning three pages, explicitly declines to “engage with the merits of the Dissent’s arguments” on the ground that the Government never argued for anything like the dissent’s theory for admitting the transcripts without the recordings. Maj. Op. at 50-52 n.17. Therefore, Judge Hartz maintains, “trial courts in this circuit . . . are free to adopt [his rationale] if they find it persuasive.” Dissenting Op. at 6. Based on the majority opinion’s holding that exceptions to Rule 1002 are strictly limited, it is questionable whether a future panel of the Tenth Circuit would agree with Judge Hartz that his approach remains viable.

TAKEAWAYS

For Trial Lawyers: Challenging Problematic Transcripts and Other Nuggets

More than the Chavez’s holding regarding the best evidence rule, it’s criticisms of the transcripts the prosecution used in this case are likely to have broad applicability for trial lawyers dealing with such transcripts – even when the prosecution introduces the original.

The majority opinion deems the following aspects of the prosecution’s transcripts “problematic and potentially misleading.” Maj. Op. at 56-59, 61-64 (emphasis added).

  • That the transcripts purported to identify Mr. Chavez as a participant in the conversations, improperly treating Mr. Chavez’s participation “as an established (even stipulated) fact.”
  • That the transcripts identified themselves as transcripts of “controlled buys” of methamphetamine, which was improper “editorial commentary . . . not subject to cross-examination.”
  • That the transcripts purported to attribute incriminating statements to Mr. Chavez.
  • That the transcripts “offer[ed] no indication of who created them, when or how the respective transcribers did so, how much time elapsed between the making of each successive statement within the three transcripts, and whether these exhibits reflect a complete transcription of the underlying recordings,” all of which “make their integrity and soundness questionable.”

The Court was sharply critical of these features of the transcripts, and this section of the opinion provides strong grounds for precluding prosecutors from introducing transcripts with such features under Rule 403, under the hearsay rule, under the Confrontation Clause, or for lack of foundation.

Judge Hartz’s dissent suggests another trial-practice tactic. In a point not addressed by the majority opinion, and for reasons we won’t go into here, Judge Hartz argues at length that it is improper for trial judges to declare in front of a jury that a witness is qualified to give expert testimony. Dissenting Op. at 31-35. He provides extensive persuasive authority for the point. And he states that, although the Tenth Circuit “has not prohibited trial judges from declaring in open court that a witness is an expert,” “perhaps we should.” Id. at 35.

Even if telling the jury that a witness is an expert would not be reversible error, Judge Hartz’s opinion is a good resource for arguments that a trial court should refrain from doing so as a matter of discretion.

For Appellate Lawyers: Rebutting Harmless-error Arguments  

Several aspects of the majority’s harmless-error analysis (it finds the error not harmless) should be useful in other appeals:

  • The majority emphatically distinguishes harmless-error analysis from sufficiency-of-the-evidence analysis and emphasizes that the credibility of witnesses is up for grabs when harmless error, rather than sufficiency, is at issue. Maj. Op. at 69-71.
  • It analyzes prejudice by assuming that neither the transcripts nor the underlying recordings would have been admitted, rather than assuming that both the transcripts and the underlying recordings would have been admitted. Id. at 65.
  • It posits that, in assessing harmless error, it is appropriate to think about “the evidence that [the prosecution] did not produce” – in this case, evidence like photographs of Mr. Chavez participating in the controlled buys. Id. at 66-69.
  • It says that a prosecution case is “not strong” when it rests primarily on the testimony of government cooperators who expected benefits. Id. at 66, 69-70.

News You Can Use: Tenth Circuit reverses imposition of terrorism sentencing enhancement-U.S.S.G. § 3A1.4

In United States v. Ansberry, the Tenth Circuit, in a case of first impression, reversed the imposition of the terrorism sentencing enhancement—U.S.S.G. § 3A1.4—that added a whopping 12 levels to the defendant’s offense level and boosted his criminal history category from I to VI.

The background facts

              In 1971, David Ansberry, then 19 years old, moved to Nederland, Colorado and fell in with a group of “hippies.”  One of the group members, Guy Goughnor, got rowdy in a bar one night and was escorted out by Town Marshal Renner Forbes.  Mr. Goughnor was never again seen alive and his body was later found in a remote canyon.  He had been shot in the head.  The Boulder County Sherriff’s Department suspected Forbes but was unable to build a case and never brought charges.  But 25 years later, Forbes confessed and was convicted of manslaughter.  He was sentenced to probation.

              By then, Mr. Ansberry had long since moved on from Nederland. But in 2016 he returned to avenge his friend’s death.  At around 5 am one morning, Mr. Ansberry placed a would-be homemade bomb – consisting of (among other things) a light bulb, a cell phone, and an explosive powder called HMTD – outside the police department.  The bomb was supposed to go off when Mr. Ansberry called the phone, but it didn’t work.  After trying unsuccessfully to detonate the device, Mr. Ansberry skipped town, leaving the defective bomb in front of the police department.  Officers found it hours later.  Using a robot, they swung it around and dropped it on the pavement, but the bomb wouldn’t go off.  They finally got it to detonate by firing a steel slug at it.   

The federal prosecution and the sentencing objections

              The government charged Mr. Ansberry with one count of using or attempting to use a weapon of mass destruction against a person or property.  Mr. Ansberry pleaded guilty without a plea agreement.  He admitted only to attempting to use a destructive device against property, not a person, when he attempted to set off the bomb early in the morning.

              Mr. Ansberry raised numerous objections at sentencing. Among other things, counsel objected to a three-level, official-victim enhancement (U.S.S.G. § 3A1.2) and also to a terrorism enhancement (U.S.S.G. § 3A1.4).  Together, these two enhancements dramatically increased his guidelines range from 41-51 months, to 324-405 months. The district court overruled the objections and sentenced Mr. Ansberry to 324 months—or 27 years—imprisonment.

The appeal

Mr. Ansberry appealed, and the Tenth Circuit vacated the sentence.  Judge McHugh, writing for a panel that included Circuit Judges Lucero and Eid, found the district court made two reversible mistakes.

              First, the Tenth Circuit held the official-victim enhancement should not have been applied. The district court had applied the enhancement on the theory that Mr. Ansberry had victimized the officers who discovered the defective bomb hours after he had tried to detonate it. But although leaving the bomb for others to find may have constituted relevant conduct within the meaning of the guidelines, the official-victim enhancement – unlike nearly all others – requires that an official be victimized by the conduct comprising the “offense of conviction,” that is, the conduct that satisfies the elements of the offense.  And here, Mr. Ansberry had pleaded guilty only to attempting to damage property, which occurred only during the several minutes he tried unsuccessfully to set off the bomb.

              Second, the Tenth Circuit found that the district court erred in imposing the terrorism enhancement that so drastically increased Mr. Ansberry’s guideline range. The district court had found that the enhancement applied because Mr. Ansberry’s offense was, in the words of the guideline, “calculated to retaliate against government conduct.”  Counsel below had argued that, whatever Mr. Ansberry thought he was doing, he wasn’t retaliating against government conduct because Town Marshal Forbes had not been acting as a government official when he murdered Mr. Ansberry’s friend.  The district court refused to make a finding one way or another on this because, in her view, all that mattered was Mr. Ansberry’s subjective belief that he was retaliating against government conduct.  Mr. Ansberry argued that this was wrong – that the enhancement could only be applied if the conduct Mr. Ansberry was retaliating against was objectively governmental in nature.  Again, the circuit agreed.

Takeaways

  1. Preserve, preserve, preserve! Mr. Ansberry’s lawyers meticulously raised and preserved each of the challenges to his guidelines calculations.  Thanks to this careful lawyering, Mr. Ansberry didn’t face the hurdle of overcoming the plain-error standard on appeal.  Even if the district court isn’t persuaded by your arguments, the Tenth Circuit may be.
  2. Pay attention to the plain language of the guidelines.  Ultimately, both successful arguments came down to the plain language of the guidelines—what is the “offense of conviction,” and what does it mean to “retaliate against government conduct”? Especially when you are dealing with less-common guideline provisions, consider whether the plain language really applies to your client’s case.

News You Can Use: Tenth Circuit Limits Officers’ Authority to Search Incident to Arrest

In United States v. Knapp, the Tenth Circuit reversed the denial of a motion to suppress and held a warrantless search of an arrestee’s purse could not be sustained as a search incident to arrest.

Defendant Stacy Knapp was arrested on an outstanding warrant. Police officers seized the purse she was carrying and handcuffed her behind her back. The police walked Ms. Knapp to the police car while they carried her purse.  An officer then put Ms. Knapp’s purse on the hood of the car, about three to four feet away from Ms. Knapp (who was still handcuffed). One officer stood next to Ms. Knapp and two other officers were nearby. After Ms. Knapp admitted there was a gun inside her purse, an officer searched the purse and recovered a pistol.

The Government argued the warrantless search was permissible as a search incident to Ms. Knapp’s arrest. The Tenth Circuit disagreed and held that the search violated the Fourth Amendment.

First, the Court rejected the Government’s argument that the search of Ms. Knapp’s purse amounted to a “search of the person,” which is allowed automatically under United States v. Robinson. The Court held that Robinson should be limited to searches of an arrestee’s clothing — explicitly rejecting authority from other courts that had extended Robinson to apply to searches of handheld containers. The Court explained that searches incident to arrest are justified by the possibility that an arrestee might have a weapon and by the officers’ need to disarm her. In this light, automatic searches of an arrestee’s clothing make sense because separating an arrestee from her clothing to deny her access to any weapon “would be impractical (not to mention demeaning).” But that rationale doesn’t apply to handheld containers like purses, the Court held, because such items are “easily capable of separation from [the] person.”

Second, the Court rejected the district court’s holding that the search of Ms. Knapp’s purse was justified on the ground that she could have accessed it at the time of the search. The Court recognized that, under Chimel v. California, police can search not only an arrestee’s person but also anything else they reasonably believe the arrestee might access to get a weapon or destroy evidence. However, the Court held that, unlike Robinson searches, Chimel searches are not automatic and “must be justified on a case-by-case basis by the need to disarm or to preserve evidence.” Further, the Court held that Arizona v. Gant, which arose in the context of an automobile search, was not limited to that context and required the Court to evaluate “the arrestee’s ability to access weapons or destroy evidence at the time of the search, rather than the time of the arrest, regardless of whether the search involved a vehicle.” Applying Gant and Chimel, the Court held that “it was unreasonable to believe Ms. Knapp could have gained possession of a weapon or destructible evidence within her purse at the time of the search.” Ms. Knapp could not have accessed the contents of her purse, the Court explained, because “not only were Ms. Knapp’s hands cuffed behind her back, [an officer] was next to her, and two other officers were nearby. Moreover, the purse was closed and three to four feet behind her, and officers had maintained exclusive possession of it since placing her in handcuffs.”

Takeaways

  • Preservation matters. This awesome appellate win was born in the district court.  The trial lawyers made a great record, filing a motion to suppress on Fourth Amendment grounds (and later, a reply in support of the motion) and emphasizing the government’s burden to prove that the search and seizure was reasonable.  Because the issue was raised and ruled upon below, the Tenth Circuit applied de novo review on appeal. This favorable standard of review is the result of preservation; and it was the first step on the path to victory.
  • A purse is not a pocket! Searches “of the person” incident to an arrest are allowed automatically, but such searches are limited to searches of the arrestee’s clothing and cannot extend to a search of a handheld container, like a purse.
  • A search of the “grab area” must be justified.  A search of the area within the arrestee’s immediate control (the “grab area”) is not a search “of the person” and must be “justified on a case-by-case basis by the need to disarm or to preserve evidence.”
  • Justification depends on what’s happening at the time of the search, not the time of the arrest.  If, at the time of the search, it isn’t reasonable to believe that an arrestee could access a place or item to destroy evidence or get a weapon, the search of that place or item cannot be justified as a search incident to arrest.

 

 

News You Can Use: Tenth Circuit reaffirms constructive possession requires intent to exercise control over an object, in a published decision involving 18 U.S.C. § 924(c)

The Tenth Circuit just decided United States v. Giannukos, reaffirming that constructive possession requires intent to exercise control over an object, and not just knowledge and ability to exercise control over the object.

Recall, the Supreme Court recently held that “[c]onstructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object.” Henderson v. United States, 135 S. Ct. 1780, 1784 (2015). In United States v Little, the Tenth Circuit adopted this holding, and explained that both the power and intent to exercise dominion or control over the object are essential to establish constructive possession. In Giannukos, the Tenth Circuit held that the post-Little definition of constructive possession must apply to a 924(c) charge for possession in furtherance of a drug trafficking crime.

The defendant in Giannukos went to trial on drug and gun charges. The government alleged he was distributing drugs out of his residence, and that he possessed two firearms in furtherance of that crime. The two firearms were found in a house he shared with a friend and his girlfriend.  One gun was found in a hutch in a common area of the house, and the other was found next to a pink bag in the bedroom that the defendant and his girlfriend shared.  DNA testing of the first gun turned up DNA from three unspecified people, at least one of them male. The major DNA contributor to the second gun was female.  A holster fitting the second gun was found inside the pink bag.

The government’s theory of the case was the defendant possessed the guns in furtherance of a drug trafficking crime and charged him with a 924(c) offense. The judge instructed the jury that it could find constructive possession of the guns if it determined the defendant “knowingly had the power” to “exercise dominion and control over” them.  Op. at 6.  As the Tenth Circuit would later hold in Little, this instruction misstates the law.  The jury convicted on all counts, including the 924(c) count, which meant the jury found Mr. Giannukos possessed the firearms “in furtherance of” his drug trafficking crimes. Op. at 14.  The jury had been instructed that “in furtherance of” means “for the purpose of assisting in” the drug crimes.  The government argued that if the jury found (as it did) that Mr. Giannukos intended the guns to further his drug dealing, it necessarily – or at least quite likely – thought he also intended to exercise control over the guns, so the Little error was harmless.

The Tenth Circuit disagreed. It first held that the constructive possession instruction was erroneous and that the error was plain, satisfying the first and second prong of the plain error analysis. The Tenth Circuit also held that the error was prejudicial, even as to the 924(c) count. It reasoned the defendant could have known the guns were in the house and believed they would help fend off robberies to protect his stash (possession in furtherance) without intending to exercise control over the guns himself. In other words, the Tenth Circuit held that, under the third prong, there was a “reasonable probability” that a properly instructed jury (one that had been given the post-Little instruction) would not have convicted Mr. Giannukos of constructively possessing firearms. There is also some good fourth-prong plain error law in the opinion.  The Circuit holds that any prejudicial error in a jury instruction on the elements will meet the fourth prong in light of the “revered status of the beyond-a-reasonable-doubt standard in our criminal jurisprudence.”  Op. at 17.


TAKEAWAYS:

  1. There is a relatively new Tenth Circuit Pattern Jury Instruction that adopts the post-Little definition of constructive possession.
  2. The post-Little constructive possession instruction applies to any crime where possession is an element: constructive possession requires both the power and the intent to exercise dominion and control over an object
  3. Where there is prejudicial error in a jury instruction that affects one of the elements of the crime charged, the fourth prong of the plain error test will almost always be satisfied.