United States Court of Appeals
For the First Circuit
No. 03-1307
UNITED STATES OF AMERICA,
Appellant,
v.
LUIS A. AMAYA-MANZANARES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Timothy Q. Feeley, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellant.
Catherine K. Byrne, Federal Defender Office, for appellee.
July 27, 2004
BOUDIN, Chief Judge. Luis Amaya Manzanares ("Amaya"), a
native of El Salvador, apparently entered the United States without
authorization; the Immigration and Naturalization Service ("INS"),
as it was then called, says that it has no record of a lawful entry
by Amaya. In 1990, Amaya applied for asylum and was granted an
"employment authorization card" by the INS, renewed annually while
his asylum claim was being considered. See 8 C.F.R. § 264.1(b)
(2004). The card differs from the alien registration card--the so-
called "green card"--available to aliens who are legal permanent
residents. See id.
According to the government, Amaya sought employment in
late 2001 and early 2002 with two different service companies doing
business in secure areas at Logan Airport in Boston. Under federal
regulations, such employment requires an access badge granted after
review of an application to the airport operator and a criminal
background check. In support of his applications, the government
says that Amaya submitted both his genuine employment authorization
card and a green card bearing his name, photo, signature and actual
"alien number" issued incident to his asylum application.
Thereafter, the government says that it determined that
the green card was a forgery. INS records, according to the
government, show that no green card was ever issued to Amaya. In
April 2002, a grand jury indicted Amaya for use or attempted use of
a forged, counterfeited, altered or falsely made green card. 18
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U.S.C. § 1546(a) (2000). Thereafter, in October 2002, the district
court scheduled trial for January 6, 2003.
On December 31, 2002, the prosecutor told defense counsel
that the prosecution had just learned that an INS agent not
involved in the case had spoken to Amaya on or about January 24,
2002, and that Amaya had made inculpatory statements concerning his
acquisition of the green card. On January 2, 2003, Amaya moved to
dismiss the indictment because of the "late disclosure." After an
evidentiary hearing held the next day, the district court refused
to dismiss but ordered that any statements by Amaya to the agent be
suppressed.1
On January 2, 2003, the government also filed a trial
brief and list of trial exhibits, including two exhibits provided
to Amaya's counsel on December 31, 2002. One exhibit, entitled
"certificate of nonexistence of record," was prepared by the chief
of the INS Records Services Branch on December 30, 2002, and stated
in part that the INS maintained records of entry and that a
diligent search showed no "lawful admission" into the United States
by Amaya. A second exhibit, similarly titled, said that there was
no record of issuance of the green card used by Amaya.
1
The district court did not dispute the prosecutor's claim
that his office was unaware of the agent's encounter with Amaya
until December 31, 2002, and that the evidence was then promptly
disclosed; but in any event the government has not sought review of
the suppression order.
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On January 6, 2003, the date scheduled for trial, Amaya
moved to exclude both exhibits on the ground that they had been
disclosed unduly late, allegedly in violation of applicable
disclosure rules. Amaya also argued that the certificate
indicating Amaya's unlawful entry was irrelevant and, if relevant,
should be excluded as unduly prejudicial. Fed. R. Evid. 401, 403.
Amaya also moved in limine to suppress, as irrelevant and unduly
prejudicial, any testimony that Amaya had entered the country
unlawfully.
When the district judge took the bench, he announced that
he was granting both motions. He said, perhaps referring mainly to
first of the two certificates but logically encompassing both, that
the evidence had not been turned over in timely fashion. And,
apparently referring to the testimony as to unlawful entry, the
judge said that he would exclude it too because "I don't think it
is relevant at all to the issue in this case."
The prosecutor then asked to address the court, defended
the disclosure of the certificates as timely and urged that
evidence of Amaya's unlawful entry was being offered "simply to
prove the crime that he is charged with." The district court
reiterated its ruling, noting that it was not suggesting bad faith
by the government. Further argument by a supervising prosecutor
was also unavailing and the government then filed this
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interlocutory appeal from the January 6 ruling. 18 U.S.C. § 3731
(2000).2
The controlling issue is whether evidence that Amaya
entered the country unlawfully is admissible to show an element of
the crime charged. Although the district court excluded proposed
documentary evidence to that effect--the certificate indicating
lack of lawful entry--on a procedural ground, the court also ruled
that any testimonial reference to Amaya’s unlawful entry was barred
as irrelevant. If the latter ruling is sound, the certificate
insofar as it relates to unlawful entry would be inadmissible even
without the procedural bar.
Nevertheless, the procedural ruling has substantial
implications for the government’s conduct of future prosecutions
and so it is best to begin by addressing that ruling. The Federal
Rules of Criminal Procedure provide that, on request, the
government in a criminal case must disclose to the defense
books, papers, documents, data, photographs,
tangible objects, buildings or places . . . if
the item is within the government’s
possession, custody, or control and . . . the
2
The judge excluded both the certificate and related testimony
before hearing from the prosecutor and then, when requested, gave
the prosecutor an opportunity to change the court's mind. Although
the prosecutor may not have explicitly stated that he wanted the
court to reconsider its ruling as to the testimony as well as the
certificate, the relevance issue is common to both and the
prosecutor did more than enough to make plain the government's view
that the unlawful entry evidence was relevant to an element of the
crime. Thus, we treat the objection as fully preserved. Cf. Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 174-75 & n.22 (1988).
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government intends to use the item in its
case-in-chief at trial.
Fed. R. Crim. P. 16(a)(1)(E). By local rule, the district court
requires such production within 28 days of arraignment. D. Mass.
R. 116.1(C)(1)(a).3 Whether Rule 16(a)(1)(E) is intended to apply
to substitutes for testimony, such as a deposition or certificate
as to what government records do or do not contain, may be open to
question; but we will assume arguendo that the rules do apply.
Nevertheless, the rule by its terms is directed to
materials that the government actually possesses. By contrast, the
document in question, which was a short-cut to avoid having a
record-keeper testify, was created for trial purposes well after
the arraignment (and then promptly turned over to the defense);
indeed, it was created--perhaps on a precautionary basis--just
before the district court ruled, shortly in advance of the
scheduled trial, that the government could not offer Amaya's
admission that he had bought the green card.
On the face of the matter, Rule 16(a)(1)(E) did not apply
to the document until it was created. See United States v. Kahl,
583 F.2d 1351, 1354 (5th Cir. 1978) (upholding a district court's
refusal to grant discovery of government statistical compilations,
3
On its face, the local rule applies only to materials listed
in Fed. R. Crim. P. 16(a)(1)(A)-(D); but subsection (E)'s
provisions were located in (C) at the time of the local rule's last
amendment in 1998. The parties have ignored the relocation and, as
it does not alter the outcome in this case, so do we.
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when such compilations did not exist); United States v. Schmebari,
484 F.2d 931, 935 (4th Cir. 1973) ("[T]he government cannot
disclose what it does not have. . . ."); cf. United States v.
Harper, 432 F.2d 100, 102 (5th Cir. 1970) (holding that "the
failure to produce non-required records when they do not exist" is
not a violation of the Jencks Act).
Conceivably a remedy could be found if the government
were manipulating the timing for its creation of evidence to
prejudice the defense; but nothing of the kind is evident in this
case. Nor is there any reason to think that the defense was
prejudiced by the timing of the disclosure. Whatever objections
the defense might have as to admissibility, it had good reason to
fear that the government would offer testimony to show that Amaya
was an unlawful entrant who knowingly used a forged green card
because he could not get a valid one.
This brings us to the broader question of the relevance
of any showing of unlawful entry. In order to show that Amaya was
guilty of the crime charged--use of a false green card--the
government had to show (1) that Amaya used the card or attempted to
do so (which is probably not in dispute), (2) that the card was
false and (3) that he knew it was false. 18 U.S.C. §1546(a). The
question is whether the proof that the government wants to offer--
that Amaya entered the country as an illegal alien--is relevant to
either of these last two elements.
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The government asserts that Amaya's unlawful entry is
relevant to both falsity and knowledge, but the first of the two
elements--falsity--is something of a red herring. Strictly
speaking, Amaya's unlawful entry (if proved) makes it more likely
that the card is false than it would be without evidence of such
entry; after all, an unlawful entrant would have use for a false
green card, while a lawful entrant would have a far better chance
of qualifying for a valid card.
But proof that the card was false could be furnished
straightforwardly by a certification or other testimony that no
such card had been issued to Amaya. Indeed, in this case the
government apparently has the false card in hand and could prove
its falsity directly. By contrast, a certificate showing Amaya's
unlawful entry (and perhaps his continued lack of eligibility for
a green card) has only circumstantial bearing on the question
whether the card is a fake.
No sensible judge would be likely to let in the unlawful
entry evidence to show falsity. Rule 403 does not give judges a
free hand to refashion the government's proof to make cases less
dramatic or more even-handed. Yet a judge who allowed in
prejudicial evidence--and here we mean unfairly prejudicial--to
prove something that was so easily and definitively proved without
such prejudice and by more straightforward means would be courting
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reversal. This argument for relevance thus tends more to taint
than to assist the government's position.
The other reason given for the evidence--to show that
Amaya knew that the card was false--has much more substance. At
first blush one might think, after proof that the card was false,
that further independent evidence of Amaya’s knowledge would be
unnecessary for conviction. After all, if the card were false,
then Amaya could not have obtained it from the INS. The most
natural alternative explanation would be that he purchased it from
someone who deals in green card forgeries, knowing that he was
purchasing a fake.
Yet conceivably some juror might think that there are
means by which Amaya might have acquired a false green card without
necessarily knowing that it was false. Perhaps a lawyer or other
intermediary had, for a price, offered to procure a valid green
card and then delivered it to Amaya representing that it was valid.
True, a judge might limit argument by defense counsel about such
possibilities in the absence of some proof, but the government was
not obliged to gamble and could reasonably look for relevant
evidence of knowledge. So relevant evidence to show knowledge was
hardly a waste of time.
Arguing for relevance, the government says that because
illegal aliens cannot get green cards until their status is
adjusted, Amaya must therefore have known that his own card was
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necessarily false.4 The government does not fully explain its
reasoning and certainly did not do so to the district judge; but
the government's conclusion is correct for at least one reason and
possibly for two, although the second poses a trickier issue that
need not be resolved.
The most straightforward reason for relevance is that
Amaya's status as an unlawful entrant who has not upgraded his
status makes it more likely that he acquired the forged green card
by buying it from someone who was obviously not a government agent
authorized to issue it. This might be conceived of as motive
evidence (one who is an unlawful entrant has a motive to buy a
forged green card) or mechanically (someone with Amaya's status
would have been rebuffed if he had sought a green card from the INS
and so had to resort to the black market).
Either way, if Amaya bought the green card on the black
market, this practically assures that Amaya knew the card he
acquired was forged rather than valid. It is not simply the
possession of a forged document that creates a strong inference of
knowledge that it is false; someone with a single forged $20 bill
in his wallet may as easily be a victim rather than a perpetrator.
Rather, it is the added proof (that Amaya's status prevented him
4
The possibility remains that Amaya might have entered
unlawfully but adjusted his status to that of a lawful permanent
resident thereafter. According to the government, the certificate
excluded by the trial court also indicated that Amaya's status had
not been upgraded.
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from getting a valid green card from the INS) which greatly
increases the chances that he engaged in a transaction that by its
nature would also have led him to believe that the document he had
obtained was not valid.
Thus, we cannot agree that the unlawful entry evidence
was not "relevant" to an element of the crime charged. Yes, the
standard of review on appeal of evidentiary rulings is often said
to be for "abuse of discretion" (although the phrase is somewhat
misleading, see Invessys, Inc. v. McGraw-Hill Cos., 369 F.3d 16, 19
(1st Cir. 2004)). But whether a fact tends to make another fact
more or less likely depends heavily on the logic of the connection,
and there is no "discretion" to ignore a logical relationship. Cf.
Tiller v. Baghdady, 244 F.3d 9, 14 (1st Cir. 2001).
There is an alternative argument for relevance.
Conceivably, a jury might be able to infer without independent
proof that someone who is an unlawful entrant in the United States
is quite likely to know that he or she cannot get a valid green
card and therefore that Amaya, since he was found with a forged
green card, quite likely knew that it had to be forged. A jury
might think that such knowledge would be widespread among unlawful
entrants--or at least those who, like Amaya, had been in this
country for a substantial period and had previously sought work.
The state of knowledge in the community is not an
adjudicative fact about Amaya's own knowledge, which would be
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subject to strict standards of proof. Compare Fed. R. Evid. 201.
Rather, the likely state of knowledge in the community is a
"background" fact about how the world works, and such facts if
plausible can be inferred without direct proof. This is an issue
not much discussed in the cases and not subject to very clear
standards, see United States v. Amado-Nunez, 357 F.3d 119, 121-22
(1st Cir. 2004), and we need not resolve the problem here.
It is enough for relevance that unlawful entry increases
the likelihood that Amaya did acquire the false green card on the
black market and therefore knew it to be forged. True, one might
ask why Amaya needed a forged green card if he had a temporary work
card from the INS (but perhaps he got the forgery before the work
card). Anyway, "considerations [that] arguably reduce the
probative value of [particular acts] do not destroy the relevance
of the acts altogether." Nation-Wide Check Corp. v. Forest Hills
Distribs., Inc., 692 F.2d 214, 219 (1st Cir. 1982).
In moving to exclude the evidence, Amaya argued not only
lack of relevance but also undue prejudice; evidence, although
relevant, may still be excluded because its prejudicial impact
substantially outweighs its probative value. Fed. R. Evid. 403;
United States v. Balthazard, 360 F.3d 309, 313-14 (1st Cir. 2004).
In this case the argument for such an exclusion under Rule 403 is
far from frivolous. It was not expressly resolved by the district
court only because the evidence was excluded on other grounds.
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Proof of Amaya’s unlawful entry is prejudicial in the
sense intended by Rule 403. This is not because it hurts Amaya--
all relevant evidence by the government does that--but because it
introduces a factor into the case that might encourage the jury to
dislike or disapprove of the defendant independent of the merits.
See United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000)
(evidence "invit[ing] the jury to render a verdict on an improper
emotional basis").
The extent of likely prejudice should not be overstated:
some jurors might not care whether Amaya was an unlawful entrant
and others might well assume--even without the government’s direct
proof--that Amaya had entered unlawfully, just because of proof
that the green card was not genuine. Still, Amaya would be better
off without proof of unlawful entry, especially in a case that some
jurors might think was overcharged and should not have been
brought; after all, Amaya had a temporary employment card.
Curiously, the government suggests that proof of unlawful
entry is essential to its case, but it is hard to see why. If the
government proved that Amaya used a forged green card and did not
get it from the INS, a jury could impute knowledge of falsity to
Amaya--at least absent proof from Amaya that the forged card was
acquired in (surely unusual) circumstances leading him to believe
that it was valid. Unlike a single forged $20 bill, illegal green
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cards with name, photo and alien number do not show up in one's
pocket by chance.
Thus, we have a debatable case under Rule 403. The proof
of unlawful entry is not crucial to the government’s case, which is
adequate without such proof and which is bolstered by the proof
only to a limited degree; at least in theory, Amaya could have
entered unlawfully and still somehow ended up with a false green
card that he believed to be valid. And the unlawful entry evidence
is prejudicial. Yet the rule provides for exclusion only if the
prejudice “substantially” outweighs probative value.
Ordinarily the district judge is entitled to latitude in
applying Rule 403 to particular facts, partly because the issue
turns on a balancing of unquantifiable considerations, United
States v. Pitrone, 115 F.3d 1, 8 (1st Cir. 1997); Dente v. Riddell,
Inc., 664 F.2d 1, 5 (1st Cir. 1981), and in this case the call is
close enough that a judgment either way is defensible. But we
cannot affirm the district judge on a ground he did not adopt,
unless the issue could be decided only one way. Cf. Vincent v.
Louis Marx & Co., Inc., 874 F.2d 36, 41 (1st Cir. 1989).
Amaya is entitled to present this alternative Rule 403
ground for exclusion to the district judge; and if the judge
excludes the evidence on this ground (as appears likely), his
resolution must stand whether or not the government then chooses to
dismiss the case. If the case goes forward and Amaya chooses to
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testify, the district judge has explicitly reserved the question
whether unlawful entry evidence might be admissible for
impeachment.
One issue remains. Amaya has suggested that the
government failed to explain adequately to the district court why
the unlawful-entry evidence was relevant. One objecting to
evidence must state the ground, unless it is clear from context,
Fed. R. Evid. 103(a)(1); United States v. Carrillo-Figueroa, 34
F.3d 33, 39 (1st Cir. 1994), but the rules do not say how much a
party arguing for admissibility must say to preserve a proffer
beyond making clear the substance of the offer.
Here the proffer was preserved. The government told the
district judge that its evidence of unlawful entry was relevant to
an element of the offense and did not mislead the district judge;
it was not asked to elaborate on the reasoning behind its relevance
argument nor given much opportunity to do so. Further, the
government’s concern about proving knowledge had already been aired
at the earlier hearing that led to excluding the agent’s testimony
on Amaya’s inculpatory statements.
Under these circumstances, the exclusion of the
certificate of unlawful entry and the grant of the motion in limine
excluding testimony must be reversed and the matter remanded to the
district court without prejudice to its consideration of the Rule
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403 objection. The government has said almost nothing about the
other certificate so we need not address it.
It is so ordered.
Dissent follows.
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TORRUELLA, Circuit Judge, dissenting. Considering the
number of green card violations that have been successfully
prosecuted each year,5 one might ask how it was that the government
was able to proceed without the benefit of a ruling in its favor
such as the present one. The fact is that such evidence has not,
up until now, been admitted to prove § 1546 violations. In this
regard, it is pertinent to emphasize that neither the government
nor, for that matter, the majority have cited to any reported case
allowing evidence of such extraneous conduct to be admitted for the
purpose of establishing a green card violation. I must confess to
equal frustration in searching in vain for such jurisprudence.
The government's claim that INS Certificates are
regularly used as proof in criminal cases, and its citation to
United States v. Scantleberry-Frank, 158 F.3d 612, 616-17 (1st Cir.
1998), as authority for this proposition, is at best disingenuous.
Such certificates have been approved as relevant evidence in
illegal re-entry cases to prove that the Attorney General has not
granted permission to re-enter the United States. Id. There is no
reported case approving use of such a certificate in a situation
such as in the present case.
5
In 2002 (the last date available) there were 380 prosecutions
nationwide of 18 U.S.C. § 1546 violations resulting in 375
convictions. See Fed. Justice Statistics Program, Defendants in
Criminal Cases in U.S. District Court, Fiscal Year 2002, at
http://frjc.urban.org/noframe/wqs/q_data_1.cfm#2002.
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Given the totality of the circumstances, including those
that will be presently discussed, I believe it is fair to conclude
that the government's insistence on introducing the accused's
allegedly illegal entry into this country to prove use by him of an
illegal green card is fueled by inappropriate considerations. To
me, it is an indicia that the government wants to bolster an
unsympathetic prosecution (the fact is that defendant did not need
a green card to work in this country) by introducing uncharged
illegal activity,6 to so prejudice the accused in the eyes of the
jury that its findings regarding the charged illegal action will
become a foregone conclusion. See United States v. Varoudakis, 233
F.3d 113, 122 (1st Cir. 2000). Particularly if it is accepted,
arguendo, that the government has an otherwise strong case (as the
majority points out, INS records show no green card was ever issued
to Amaya, maj. op. at 2, and that the government can prove that the
green card which it has in its possession is false, id. at 8), it
becomes transparent that the introduction of the uncharged illegal
entry is intended only for the purpose of inappropriately
influencing the jury regarding the illegal green card charge. The
district judge was correct in not approving such conduct. See
6
The use of uncharged conduct in criminal proceedings has
recently become the focus of Supreme Court attention and scrutiny
in a not totally unrelated context. See Blakely v. Washington,
2004 WL 1402697 (U.S.S.C. June 24, 2004).
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United States v. Aguilar-Aranceta, 58 F.3d 796, 796-800 (1st Cir.
1995).
What I find most disturbing about the outcome of this
appeal is the majority's glossing over, not to say totally
bypassing, well-established appellate standards for reviewing the
evidentiary rulings of a trial court.
It is black letter law that we review a trial court's
evidentiary rulings for abuse of discretion. See United States v.
Gilbert, 181 F.3d 152, 160 (1st Cir. 1999); Aguilar-Aranceta, 58
F.3d at 798. "In deciding such issues -- relevance, confusion,
reliability, helpfulness -- the district court has a comparative
advantage . . . . Thus, so long as there is no misstatement of the
legal standard and the result reached is not clearly unreasonable,
the district judge's ruling is usually respected." United States
v. Schneider, 111 F.3d 197, 201 (1st Cir. 1997) (citing United
States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995)). This standard
is so high that of the nearly 2,700 published opinions of this
court in the last five years, in only eleven cases have the
evidentiary rulings of the district court been overturned. Thus,
the majority's conclusions are not only wrong, but unusually so.
Nevertheless, in reaching the wrong result, the majority's ruling
is quite revealing.
For the INS Certificate to be relevant evidence it must
assist in proving an element of the crime charged. "[W]e consider
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the relationship of the evidence sought to be admitted to the
elements of the offense and to [any] relevant defenses offered by
the [defendant]." United States v. Smith, 940 F.2d 710, 713 (1st
Cir. 1991). The statute under which Amaya is charged has three
elements: (1) the use or attempted use; (2) of an "illegal" green
card; (3) that Amaya knew was not genuine. See 18 U.S.C.
§ 1546(a). Contrary to the majority's conclusions, I am of the
opinion that nothing in the INS Certificate makes it more or less
probable that defendant knew the green card he used was not
authentic. The government argues that since Amaya entered the
country illegally and had not regularized his status, he could not
obtain a green card, and thus, it is probable that he knew the
green card was not genuine. This argument is tenuous at best. At
the time of the events at issue here, Amaya was no longer an
illegal alien in the sense that he was not immediately deportable
and thus the alleged link between his illegal entry and the
fraudulent green card is not apparent. Given the temporal distance
between the two events and the intervening petition for asylum, the
district court did not abuse its discretion in excluding the INS
Certificate as irrelevant.
The majority indicates that "[n]o sensible judge would be
likely to let in the unlawful entry evidence to show falsity." Maj.
op. at 8. But in this respect, the fact is that the prosecutor
told the trial judge that this evidence was being offered "to prove
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the crime charged," i.e. use of a false card.7 It would thus seem
appropriate to conclude that the trial judge's exclusion of such
evidence was not an abuse of discretion, and was not clearly
unreasonable, and thus should be upheld. But the majority rules
otherwise.
The next decisional inconsistency is equally intriguing.
The majority concludes that "a judge who allow[s] in prejudicial
evidence --[unfairly prejudicial]--8 to prove something that [is]
so easily and definitively proved without such prejudice and by
more straightforward means [,] . . . court[s] reversal." Id. It
then points to the fact that the false card was in the possession
of the government, and that therefore "further independent evidence
of Amaya's knowledge [is] unnecessary for conviction." Id at 9.
It would seem that this conclusion, which I agree with, would
inevitably lead to the application of the previously stated
principle regarding allowance in evidence of unnecessarily
7
This evidence also treads close to the line set forth in
Federal Rule of Evidence 404(b), though the question was not
briefed by the parties. As the government acknowledged before the
district court, there may also be unexplored issues related to Rule
404(b). The prosecutor stated "I would suggest that - I am not
offering this evidence to sully his character or for some other
purpose such as that. I am offering it simply to prove the crime
that he is charged with." Rule 404(b) prohibits the use of prior
crimes as evidence of a defendant's propensity to commit a present
crime.
8
The majority admits that "[p]roof of Amaya's unlawful entry
is surely prejudicial in the sense intended by Rule 403." Maj. op.
at 13. This would be difficult to deny.
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prejudicial evidence. However, the majority totally negates these
correct conclusions, and instead reaches a contradictory result
based on a series of speculations and surmises about jury behavior
and possible lawyer arguments, with but a passing mention of the
applicable standard of review in favor of "logic." Maj. op. at 11.
"Upon this point a page of history is worth a volume of logic."
New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)(Holmes,
J.).9
The majority concedes, as it must, that "the argument for
exclusion [of the illegal entry evidence] under Rule 403 is far
from frivolous." Maj. op. at 12. Were it to apply the settled
standard of review to this conclusion, affirmance of the trial
judge's ruling would be mandated. Instead, again relying on flawed
theories of predictive conduct by jurors, it downgrades the
concession by stating that "the extent of likely prejudice here
should not be overstated". Id at 13. Of course, this is not the
case. In truth, the effect on a jury of the introduction in
evidence of prior criminal conduct by a defendant cannot be
understated. That juries treat prior bad acts evidence as highly
probative of the charged crime has been confirmed by empirical
investigations. See United States v. Daniels, 770 F.2d 1111, 1116
(D.C. Cir. 1985); Harry Kalven, Jr. & Hans Zeisel, The American
9
See also Oliver Wendell Holmes, Jr., The Common Law 5
(1881)("The life of the law has not been logic: it has been
experience.").
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Jury 160 (1966); see also Abraham P. Ordover, Balancing the
Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and
609(a), 38 Emory L.J. 135 (1989); Roselle L. Wissler & Michael J.
Saks, On the Inefficacy of Limiting Instructions: When Jurors Use
Prior Conviction Evidence To Decide on Guilt, 9 L. & Hum. Behav. 37
(1985). No one who has tried a criminal case before a jury would
slight the impact of such evidence in influencing the outcome of
that proceeding. The experienced trial judge that decided to
exclude it in this case, himself a former federal prosecutor, was
surely fully cognizant of the unfair prejudice to defendant lurking
in this evidence, and properly exercised his discretion in
excluding it as irrelevant and unnecessary. An appellate court
should not disturb this ruling, at a minimum, because it was not
clearly unreasonable.
With respect, although the majority correctly states the
elements of the crime charged, maj. op. at 7, I believe it
stretches the bounds of legality, reason and logic beyond the
breaking point in its attempt to connect the illegal evidence to
the crime charged. Id. at 10-11. It again resorts to speculative
predictions, which regretfully, I find inappropriate and
unconvincing.
I see no reason why we should give the government a
second bite at the apple by remanding the case for what amounts to
a second Rule 403 balancing, one which I believe has already
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effectively taken place when the district court exercised its
discretion to exclude the evidence proffered by the government.
Because I believe that the decision of the district court
was correct when viewed against the recognized standard of review,
and because it was well within its discretionary power to so rule,
I would affirm.
I respectfully dissent.
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