Adam RICHARDS; Second Amendment Foundation; Calguns Foundation, Inc.; Brett Stewart, Plaintiffs-Appellants v. Ed PRIETO; County of Yolo, Defendants-Appellees
No. 11-16255
United States Court of Appeals, Ninth Circuit
March 26, 2015
THOMAS, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to
Troas V. BARNETT, Plaintiff-Appellant v. David NORMAN; A. Castro; Tracy Jackson; A. Fouch; J. Prudhomme; D. Fulks; Jason Barba; K. Curtiss; Michael Pallares; K. Lennon; Martin Gamboa; Angel Duran; Dimas Manuel Torres Barraza; Manuel Torres, Defendants-Appellees
No. 13-15234
United States Court of Appeals, Ninth Circuit
Argued and Submitted March 9, 2015. Filed March 31, 2015.
Alan Gura, Gura & Possessky, PLLC, Alexandria, VA, Donald Kilmer, Jr., The Law Offices of Donald Kilmer, San Jose, CA, for Plaintiffs-Appellants.
Bruce A. Kilday, Serena M. Warner, Esquire, John A. Whitesides, Esquire, Angelo, Kilday & Kilduff, Sacramento, CA, for Defendants-Appellees.
Ian Samuel (argued) Jones Day, New York, New York, for Plaintiff-Appellant.
Janine K. Jeffery (argued) Reily & Jeffery, Inc. Northridge, CA, for Defendants-Appellees.
Before: MARSHA S. BERZON, JAY S. BYBEE, and JOHN B. OWENS, Circuit Judges.
OWENS, Circuit Judge:
Prisoner Troas Barnett appeals a jury verdict that rejected his pro se
While there are exceptions to the maxim “the public has a right to every man‘s evidence,” witness abstention is not one of them. The district court abused its discretion by disclaiming any authority to compel the prisoner-witnesses to answer Barnett‘s questions. We reverse the judgment and remand for a new trial.
I. FACTS
A. The Fight and Pretrial Litigation
On November 4, 2003, Barnett and two prison guards fought violently in his cell. Barnett says that the guards attacked him with a flashlight and a baton without provocation and followed up with pepper spray and more baton strikes after his submission. The guards say that Barnett initiated the attack on one guard and the other came to his colleague‘s aid, and that both guards were injured. The parties agree that Barnett suffered physical injuries.
Barnett sued the two guards under
A key issue was whether Barnett could secure the attendance of witnesses for trial. Barnett filed motions for the production of prisoners Phillip Conti, Darrell King, and Sven Johnson to testify on his behalf. He stated that while the three would not testify voluntarily, they would provide evidence supporting his version of events if compelled. The guards opposed these efforts and suggested the witnesses testify by video or telephone, as transporting the dangerous prisoners, all serving lengthy sentences for violent crimes, required significant law enforcement supervision and resources. The magistrate judge granted Barnett‘s motions.1 In writs of habeas corpus ad testificandum, the judge identified each inmate as a “necessary and material witness” and ordered their production for trial. Shortly after the judge‘s order, King filed a request to quash the writ and a supporting declaration stating that he did not see the officers “apply any force to Barnett,” he could not “provide any relevant information,” and he did not “wish to attend trial.”
In his opening statement, Barnett promised the jury that it would hear from the three prisoners who witnessed the incident. Barnett first called his former cellmate Johnson to the stand. As his opening question and in front of the jury, Barnett asked Johnson if he recalled being Barnett‘s cellmate. The following exchange ensued:
Johnson: Your Honor, I asked not to be brought here. I have nothing to add to this matter.
Court: All right. If you don‘t recall, then you can just say that.
Barnett: On November 4, 2003, were you incarcerated at the California Substance Abuse Treatment Facility?
Johnson: I have nothing to add to this matter.
Barnett: Your honor, I can scarcely see how I‘m going to ask him with regard to relevant testimony, Your Honor, to what transpired, Your Honor, if he refuses to answer any questions.
Court: I can‘t compel him to answer if he‘s not going to answer.
Barnett: Are you not going to answer any questions that I ask you? Was that—
Johnson: None.
Barnett: your statement for the record?
Johnson: None.
Court: All right.
Barnett: I‘d like to thank and excuse the witness then, Your Honor, because, I mean, I can‘t force him to answer questions here.
Openly speculating that someone had threatened Johnson, Barnett asked his former cellmate if that were the case. Rather than answer that question, Johnson continued to state that he had “nothing to add to this matter.” The trial judge then asked the witness directly, “Do you want to answer that question?” When the witness said “No,” the court stated, “I don‘t know what to say,” and Johnson was excused.
Barnett next called King. Outside the presence of the jury (and not under oath), King refused to answer any of Barnett‘s questions. King explained that although he had not been threatened, he chose “not to be a party to this proceeding.” After Barnett said that he did not “know what to do,” the court responded that it could not “compel [King] to state anything.” Barnett then asked the court, “if all these witnesses are going to come in here and say the same thing, Your Honor, what was the purpose of bringing them here to the Court in the first place?” The trial judge stated that King:
didn‘t feel like he was being threatened, he just didn‘t want to have anything to do with this. So there‘s not much I can do. I can‘t compel him to testify as to facts that he won‘t testify to.
After King confirmed that he would not “answer a single question with regard to the incident,” he was excused.
Barnett‘s final witness was Conti. When Barnett asked if Conti was “willing to offer testimony” about the altercation, Conti replied “No.” Barnett then told the trial court, “Well, I can‘t do nothing but thank and excuse the witness, Your Honor, because they‘re all coming in here and saying the same thing.” The court did not disagree, and excused Conti. Without hearing any testimony about the fight from the three promised witnesses, the jury returned a verdict in favor of the guards.
II. STANDARD OF REVIEW
A district court abuses its discretion when it does not apply the correct law, Jeff D. v. Otter, 643 F.3d 278, 283 (9th Cir. 2011), or erroneously interprets the law, United States v. Beltran-Gutierrez, 19 F.3d 1287, 1289 (9th Cir. 1994).2 Evi-
III. DISCUSSION
Both sides in a trial have the right to call witnesses, and the power to compel witness testimony is essential to our system of justice. See Blair v. United States, 250 U.S. 273, 281-82 (1919) (“[T]he giving of testimony and the attendance upon court or grand jury in order to testify are public duties . . . necessary to the administration of justice . . . .“). No one, not even the President of the United States, can automatically avoid testifying in a deposition, before a grand jury, or in a courtroom. See Clinton v. Jones, 520 U.S. 681, 704–05 (1997); United States v. Fromme, 405 F. Supp. 578, 582-83 (E.D. Cal. 1975). And while there are important exceptions to this fundamental rule—including the
This is not to say that there is an absolute right to call any witness—within constitutional and statutory limits, trial judges have discretion on the presentation of witness testimony, including decisions regarding the competency of a person to testify, the number of witnesses a party may call, and the allowable purposes of the testimony. See Geders v. United States, 425 U.S. 80, 86-87 (1976) (trial judges have broad power to determine “the order in which parties will adduce proof; . . . [they] may control the scope of rebuttal testimony, may refuse to allow cumulative, repetitive, or irrelevant testimony, and may control the scope of examination of witnesses” (citations omitted)); see also
But what a judge cannot do is to allow a witness to refuse to testify because he would prefer not to answer a question. The public‘s interest in full disclosure and the fair administration of justice overrides concerns that testimony might be inconvenient, burdensome, or harmful to a witness‘s social or economic status. United States v. Calandra, 414 U.S. 338, 345 (1974). Moreover, a “subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase.” United States v. Bryan, 339 U.S. 323, 331 (1950). Witnesses cannot refuse to answer questions merely because they choose not to—there is no opt-out box on a subpoena. To hold otherwise would make “the great power of testimonial compulsion, so necessary to the effective functioning of courts and legisla-
There is plenty that a judge can do to encourage a witness‘s testimony. She can direct the witness to answer the question and tell him about the consequences of not doing so. See, e.g., United States v. Doe, 125 F.3d 1249, 1252 (9th Cir. 1997); United States v. Powers, 629 F.2d 619, 621-22 (9th Cir. 1980). She can ask the questions herself.
These are not rarely used tools—they come into play daily in depositions, grand juries, and courts around the country. If a judge is unable to scale a witness‘s wall of silence with these tried-and-true methods, she has a sledgehammer at her disposal—the contempt statutes—to break through to answers. See
Understandably, defendants do not challenge the court‘s clear power to encourage truthful answers to fair questions. Rather, they insist that such judicial efforts would have been futile, as harsh questioning from the judge or threats of contempt would never have compelled these hardened criminals to answer Barnett‘s questions. We agree that efforts to compel testimony will sometimes prove fruitless. See In re Garmon, 572 F.2d 1373, 1374 (9th Cir. 1978) (where incarcerated witnesses continued to refuse to testify, court suspended their sentences and held them in civil contempt); United States v. Weinberg, 439 F.2d 743, 745 (9th Cir. 1971) (witnesses still refused to testify after court granted them immunity and ordered them to answer questions). But perhaps such
Whether to employ a particular incentive or sanction to encourage testimony rests within the district court‘s sound discretion. See SEC v. Elmas Trading Corp., 824 F.2d 732, 733 (9th Cir. 1987). We do not presume to prescribe specific procedures a district court must follow when faced with a recalcitrant witness. “There are no inflexible rules to guide the court‘s discretion.” United States v. Panza, 612 F.2d 432, 439 (9th Cir. 1979). “The propriety of a given sanction will vary with the circumstances,” and we leave it to the trial judge to exercise that discretion in light of the specific facts of a case. Id. Under certain circumstances—perhaps the witness‘s testimony is cumulative or on an ancillary issue, and sanctions are unlikely to overcome his or her reluctance to speak—the appropriate course of action may well be to do nothing.
But before we can validate that discretionary determination, the trial court must actually exercise its discretion. See Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). Where a “necessary and material” witness refuses to testify and no constitutional, statutory, or common-law rule bars the testimony, a judge must try to encourage the testimony or at least explain on the record why, in her discretion, she did nothing because, for instance, such efforts would have been futile. Here, the magistrate judge abused her discretion as a matter of law when she permitted the prisoners to opt out of testifying.
This error was not harmless. As Barnett contends, “[e]verything in this case turned on which version of events was believed.” Barnett‘s anticipated case-in-chief comprised only three eyewitness accounts and his own testimony. Allowing the witnesses to opt out denied Barnett the chance to corroborate his story. This was especially damaging, as Barnett had promised the jurors that the prisoners’ testimony would support his version of events—the jury would need not rely solely on his word. See United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (erroneous exclusion of evidence more probably than not affected the verdict when it “deprived Morales of the only corroborating evidence she had“). The fact-intensive nature of Barnett‘s claim made eyewitness testimony all the more critical. See United States v. Hobbs, 31 F.3d 918, 923 (9th Cir. 1994) (the right to have a witness is even more substantial where parties present “conflicting, mutually-exclusive stories“). And while it is possible that the prisoners would have steadfastly refused to say anything even after the judge nudged, cajoled, and/or threatened them, it is more likely that at least one of the three, facing a federal judge and additional sanctions, would have agreed to answer at least some of the questions.
Finally, we recognize that the witnesses might indeed have seen or heard nothing relevant, although were that the case it seems they would have simply said so. It is also possible that whatever testimony they might have offered would have corroborated the defendants’ version of events. We cannot know, because the magistrate judge did not try to encourage their testimony.
Given these facts, we cannot say it was “more probable than not” that the jury was unaffected by the error. See Obrey v. Johnson, 400 F.3d 691, 701-02 (9th Cir. 2005) (prejudice occurs when erroneously excluded evidence was “not merely tangential or cumulative” but “directly probative of the central issues in dispute“).
IV. CONCLUSION
Few witnesses want to testify, and if given the choice, almost none would. An-
When confronted with witnesses who refuse to testify simply because they choose not to, a judge has a wide array of tools—from the pillow of additional questions to the sledgehammer of contempt—to ensure that witnesses provide truthful testimony. Although use of these tools is within the judge‘s discretion, the magistrate judge here failed to exercise her discretion in any way, and instead stated that she was powerless. Because this error was not harmless, we reverse the judgment of the district court and remand this case for a new trial.3
REVERSED and REMANDED.
John DOE, Petitioner-Appellant v. Robert L. AYERS, Jr., Warden, of California State Prison at San Quentin, Respondent-Appellee
No. 15-99006
United States Court of Appeals, Ninth Circuit
Argued and Submitted [Redacted]. Filed March 31, 2015.