United States v. Phillipos
866 F.3d 62
1st Cir.2017Background
- Phillipos moved to suppress his confession, supporting the motion with a sworn affidavit and requesting an evidentiary hearing.
- The district court found the affidavit sufficient to create a factual dispute but conditioned an evidentiary hearing on Phillipos’ pre-hearing commitment to testify and to be the first witness.
- Phillipos refused to promise to testify first; the district court therefore declined to hold an evidentiary hearing.
- The court justified the condition by expressing concern that defense affidavits can be “illusory” discovery devices if the defendant then declines to testify.
- The panel affirmed; Judge Thompson dissented from the denial of rehearing en banc, arguing the district court abused its discretion and improperly shifted burdens.
Issues
| Issue | Phillipos’ Argument | Government/District Court Argument | Held (Thompson dissent view) |
|---|---|---|---|
| Whether an evidentiary hearing was required after a sworn affidavit created a genuine factual dispute | Affidavit alone met the threshold; hearing should proceed without forcing pre-hearing waiver/commitment to testify | Court may require defendant to testify first to avoid illusory affidavits and discovery abuse | District court erred in refusing the hearing because the affidavit met the threshold and should not be discarded absent a hearing |
| Proper allocation of burden of production at suppression hearing on voluntariness | Government bears burden of production and persuasion on voluntariness; defendant should not be forced to go forward first | Court may control order of proof to prevent gamesmanship | Conditioning the hearing on defendant going first impermissibly shifted the government’s burden of production |
| Whether courts may strike affidavits when a defendant refuses to testify | Affidavit should be considered to decide whether a hearing is warranted; if defendant later refuses to testify, court can decide whether to credit affidavit at hearing | If defendant declines to commit to testify, court may treat affidavit as illusory and deny hearing | Striking or refusing to consider an affidavit is an option after a hearing if the defendant refuses to testify; but denying a hearing upfront is improper |
| Need for en banc review given potential circuit-wide impact | Panel’s approval enables district courts to demand pre-hearing commitments in confession cases | Panel majority denied rehearing en banc | Rehearing en banc warranted because the panel’s rule would broadly undermine defendants’ ability to obtain suppression hearings on voluntariness |
Key Cases Cited
- United States v. Baskin, 424 F.3d 1 (1st Cir. 2005) (striking testimony/affidavit where defendant refused cross-examination after direct testimony)
- United States v. Cintron, 724 F.3d 32 (1st Cir. 2013) (threshold for obtaining an evidentiary hearing on suppression)
- United States v. Jiménez, 419 F.3d 34 (1st Cir. 2005) (standards for evidentiary hearings on suppression motions)
- United States v. Feliz, 794 F.3d 123 (1st Cir. 2015) (prosecution bears burden to prove confession voluntariness by preponderance)
- United States v. D’Andrea, 648 F.3d 1 (1st Cir. 2011) (refusal to hold evidentiary hearing where defendants’ sworn affidavits created dispute was reversible error)
- Morales Feliciano v. Rullán, 378 F.3d 42 (1st Cir. 2004) (trial court discretion to set order of proof but cannot shift burden of proof)
- Jackson v. Denno, 378 U.S. 368 (1964) (admission of involuntary confession violates due process)