*1 motion for 11, 2003. files reconsid- Government April dis- eration of district court’s order missing the information motion requesting 15, trial 2003. April requesting 2003. files motion dismiss- A.F.S. April pending al of all prosecutions immediate order release based violation of trial FJDA’s speedy provision. Magistrate judge magistrate 2003. issues May judge’s and recommendation report recommending dismissal on speedy grounds. trial objections 14, 2003. files Government May magistrate judge’s and rec- report ommendation. 19,2003. A.F.S. May opposes objections. Following arguments, 27, 2003. oral district May pending all court dismisses motions. Government declines seek transfer of A.F.S. to adult status. judgment 27, 2003. District court enters May discharge. America,
UNITED STATES
Appellant, AMAYA-MANZANARES,
Luis A.
Defendant, Appellee.
No. 03-1307. Appeals, Court
United States
First Circuit.
Heard Feb. July
Decided
Timothy Q. Feeley, Assistant United Attorney, with Michael States whom J. Sullivan, Attorney, was on United States appellant. for brief Byrne, K. Federal Defender Catherine Office,for appellee. BOUDIN, Judge,
Before Chief HOWARD, TORRUELLA and Circuit Judges.
BOUDIN, Judge. Chief (“Amaya”), Luis Amaya Manzanares Salvador, native of El entered apparently authorization; the United States without Immigration and Naturalization Ser- (“INS”), called, says vice as it was then that it has no record a lawful 1990, Amaya Amaya. applied asy- granted “employment lum and was au- INS, by the renewed an- thorization card” nually asylum being claim was while his 264.1(b) court refused dismiss but ordered that See 8 C.F.R. considered. (2004). alien any by Amaya agent card differs from the statements “green so-called registration suppressed.1 card—the legal who are to aliens *3 card”—available 2, 2003, January On the also See id.
permanent residents. exhibits, a trial filed brief and list of trial Amaya According government, to the including provided Amaya’s to two exhibits early in late 2001 and sought employment 31, counsel on December 2002. One exhib- companies 2002 with two different service it, entitled “certificate of nonexistence of Logan in secure areas at doing business record,” by prepared was the chief of the regula- Airport Boston. Under federal INS Records Services Branch on Decem- tions, requires an access employment such 30, 2002, part ber and stated in that the applica- after review of an badge granted maintained and that INS records a criminal airport operator tion to the and diligent search no showed “lawful admis- ap- In of his background support check. Amaya. A sion” into the United States says that Ama- plications, the exhibit, titled, similarly second said that genuine employment his ya submitted both there was no record of issuance of the green card and a card bear- authorization green by Amaya. card used name, ing photo, signature his and actual 2003, January 6, On the date scheduled asy- to his “alien number” issued incident trial, Amaya moved to exclude both application. lum ground they on the had been exhibits Thereafter, says that it late, unduly allegedly disclosed in violation card was a for- green determined that the applicable Amaya disclosure rules. also records, according gov- to the gery. INS argued indicating that the certificate Ama- ernment, was show that no and, ya’s irrelevant if was -2002, Amaya. April ever issued to relevant, unduly should be excluded as grand jury Amaya indicted for use or at- 401, Amaya prejudicial. Fed.R.Evid. counterfeited, forged, tempted use of a suppress, moved in limine to as irrel- also falsely made card. 18 altered or unduly prejudicial, any and testimo- evant 1546(a) (2000). Thereafter, U.S.C. Amaya country had entered the ny district court scheduled October unlawfully. January trial for bench, judge the district took the When prosecutor On December granting announced that he was both he prosecution that the told defense counsel said, referring main- perhaps motions. He just agent learned that an INS logi- ly to first of the two certificates but Amaya spoken involved in the case had both, cally encompassing that the evidence 24, 2002, January on or and that about timely fashion. had not been turned over inculpatory had made statements And, referring testimony apparently concerning acquisition his of the entry, that he 2, 2003, as to unlawful said January card. On moved , “I think exclude it too because don’t of the would to dismiss the indictment because at all to the issue in this evidentiary it is relevant “late disclosure.” After an hearing day, next the district case.” held the disclosed; promptly any dispute prose- then but in event
1. The district court did not
sup-
sought
cutor’s claim that his office was unaware
government has not
review
agent’s
until De-
encounter with
pression order.
31, 2002,
that the evidence was
cember
documents, data,
books, papers,
photo-
prosecutor then asked
address
The
objects, buildings or
court,
graphs,
tangible
defended
disclosure of
gov-
...
if the item is within the
places
timely
urged
that evi-
certificates
custody, or control
being
possession,
ernment’s
was
dence of
...
intends to use
crime
he
“simply
offered
at
the item in its case-in-chief
trial.
reit-
charged
with.”
district court
noting
ruling,
erated its
16(a)(1)(E).
rule,
By
Fed.R.Crim.P.
local
government.
bad faith
suggesting
requires
production
the district court
argument by supervising prose-
Further
Mass.
days
arraignment.
within
D.
unavailing
govern-
cutor
also
and the
116.1(C)(1)(a).3
R.
Whether
*4
interlocutory appeal
ment then
this
16(a)(1)(E)
filed
apply
is intended to
to substi-
January
ruling.
the
18 U.S.C.
from
deposition
testimony,
tutes for
such as a
(2000).2
§ 3731
what
records
government
certificate as to
contain,
to
may
open
do or do not
be
controlling issue
whether evi-
The
arguendo
we will
question; but
assume
country un-
dence that
entered the
apply.
that the rules do
lawfully is
to
an element
admissible
show
Nevertheless,
by
the
its
rule
terms
Although
charged.
of the crime
the dis-
government
to materials
the
directed
documentary
proposed
trict court excluded
contrast,
actually possesses. By
the docu-
in-
to that effect—the certificate
question,
a
to
ment
which was
short-cut
dicating
entry
proce-
lack of lawful
—on
record-keeper testify,
having
avoid
any
ruled
ground,
dural
the court also
purposes
created
trial
well after the
Amaya’s
to
testimonial reference
(and
turned
arraignment
promptly
then
entry
barred as
If the
irrelevant.
defense); indeed,
the
over to
was creat-
sound,
ruling
the certificate inso-
latter
perhaps
precautionary
on
basis—
far
to unlawful
be
as
relates
would
ed—
ruled,
just
shortly
before the district court
procedural
the
inadmissible even without
trial,
the
in advance of the scheduled
bar.
could not offer
ad-
Nevertheless,
procedural ruling
the
has
the
card.
bought
mission that he
for the
implications
govern-
substantial
matter,
face
prosecutions
ment’s conduct of future
On the
16(a)(1)(E)
begin
apply
so it
best to
did not
to the document
addressing
created. See United States
ruling. The Federal Rules of Criminal
until it was
Kahl,
(5th Cir.1978)
that,
1351,
provide
request,
Procedure
583 F.2d
government in a
to
(upholding
criminal case must dis-
a district court’s refusal
grant discovery
close
defense
statistical
Rainey,
preserved.
Corp.
Beech
The
excluded both the certificate and
Cf.
Aircraft
439,
testimony
hearing
related
before
from
488 U.S.
174-75 & n.
109 S.Ct.
then,
prosecutor
requested, gave
when
(1988).
the it from forged argument is an There alternative obviously govern- someone who was not a Conceivably, jury might a be relevance. agent ment. authorized to it. This issue independent proof able infer without might conceived of as motive evidence that who an unlawful in someone entrant (one an has a who is unlawful entrant quite likely the United States is to know card) buy green motive a forged he a get green that or she cannot valid (someone mechanically with sta: Amaya, card and therefore that since he if he tus would have been rebuffed had card, green quite a forged was found with sought green from INS the likely that to be A forged. knew it had market). had resort the black jury knowledge think might that such widespread among en- way, Amaya bought if would be
Either the who, market, Amaya, at least practically card on the black trants —or those like Amaya country that he for a assures knew the card ac- been substantial had - quired forged period previously sought rather than It and had work. valid. might possibility Amaya 4. The that the remains certificate excluded trial court also unlawfully adjusted have entered but his sta- Amaya's indicated that status had not been permanent tus to that of a lawful resident upgraded. According government, thereafter. communi all relevant evidence knowledge of The state Ama- it introduces a fac- adjudicative fact about does that —but because not an ty is be sub knowledge, might encourage which would tor into case that ya’s own proof. Compare of standards ject jury disapprove to strict to dislike or defen- Rather, likely state independent Fed.R.Evid. dant of the merits. See Unit- community is a “back Varoudakis, in the knowledge ed 233 F.3d States works, (evidence world (1st Cir.2000) fact about how the ground” “invit[ing] if can be inferred plausible such facts improper on an emo- to render verdict This is issue proof. basis”). without direct tional and not sub in the cases much discussed likely prejudice should not The extent standards,
ject very clear see United jurors might be overstated: some not care Amado-Nunez, States Amaya whether was an unlawful entrant — (1st denied, Cir.), U.S. 121-22 cert. might and others well assume—even with- L.Ed.2d 284 -, S.Ct. proof out the direct —that (2004), prob need not resolve we Amaya unlawfully, just entered be- here. lem card was not proof cause of that unlawful enough It for relevance Still, genuine. Amaya would be better off Amaya entry increases the likelihood proof entry, especially of unlawful without card on the acquire the false did jurors might think was a case that some knew it to be market and therefore black overcharged and should not have been True, might why ask forged. one all, brought; temporary after had a if green card he had forged needed a employment card. (but work card from the INS temporary Curiously, government suggests got forgery he before perhaps card). Anyway, “considerations is essential to its work case, value If arguably probative why. reduce the hard to see but [that] destroy do not the rele- [particular government proved acts] used Nation- altogether.” get of the acts it from forged green vance card and did *7 Distribs., Carp. INS, v. Forest Hills impute knowledge Wide Check could Cir.1982). (1st Inc., 692 F.2d Amaya proof least absent falsity to —at forged card was ac- Amaya from that the evidence, Ama- moving to exclude the unusual) (surely circumstances quired in but only not lack of relevance ya argued valid. leading him to believe that was evidence, although prejudice; also undue bill, forged illegal single Unlike a $20 relevant, its may still be excluded because name, photo and alien green cards with substantially outweighs impact prejudicial pocket by inup number do not show one’s 403; Fed.R.Evid. probative its value. chance. Balthazard, 360 F.3d United States (1st Cir.2004). In this case the
313-14 Thus, under a debatable case we have Rule an exclusion under argument such entry of unlawful proof Rule 403. The It not ex- far from frivolous. was 403 is case, which not crucial to the only by the district court pressly resolved proof and which adequate without on oth- because the evidence was excluded only to a limited is bolstered grounds. er Amaya could degree; theory, at least in unlawfully and still somehow Amaya’s entry is have entered Proof of that he a false up Rule ended with prejudicial in the sense intended the unlawful to be valid. And Amaya— it hurts believed 403. This is not because preserved. The proffer Yet the rule Here the was entry prejudicial. evidence is that its government judge told the district only prejudice if the for exclusion provides relevant to evidence of unlawful value. “substantially” outweighs probative not an element the offense and did Ordinarily judge district judge; it was not mislead the district 403 to applying entitled to latitude reasoning on the behind asked elaborate facts, particular partly the issue given because nor much argument relevance balancing con unquantifiable Further, gov- turns on a to do so. opportunity Pitrone, siderations, proving States concern knowl- United ernment’s about (1st Riddell, Cir.1997); Dente v. already been aired at the earlier edge (1st Cir.1981), Inc., excluding agent’s 664 F.2d hearing led enough testimony call is that a state- inculpatory this case the close way But judgment either is defensible. ments. affirm judge on a
we cannot the district circumstances, these the exclu- Under not unless ground adopt, he did the issue entry and sion of the certificate of unlawful way. only could be decided one Vin Cf. exclud- grant motion limine Co., Inc., cent v. Louis Marx & ing testimony be and the must reversed (1st Cir.1989). 36, 41 court matter remanded to district without to its consideration alter- present is entitled to objection. the Rule 403 ground native Rule 403 for exclusion to the nothing almost about the other has said judge; judge and if the district excludes so we it. certificate need address (as this ground appears the evidence on It is so ordered. likely), must stand whether his resolution then chooses TORRUELLA, Judge, Circuit goes If dismiss the case. the case forward dissenting. testify, the chooses to district Considering number of explicitly question has reserved successfully pros- violations that have been might whether unlawful year,5 might each one ask how ecuted impeachment. admissible for pro- was that the able ruling issue has ceed without of a in its One remains. the benefit suggested such as The fact is present failed favor one. not, now, explain adequately district court until up that such evidence has why evidence was rele admitted to 1546 violations. been *8 regard, pertinent emphasize vant. to In objecting One evidence must is to nor, that ground, state the unless is clear from that neither for context, 103(a)(1); matter, any majority Fed.R.Evid. have to United cited 33, Carrillo-Figueroa, reported allowing States v. 34 F.3d 39 case evidence of such (1st Cir.1994), say but the rules do not how extraneous conduct to be admitted for the admissibility much a viola- party arguing purpose establishing beyond equal must I say preserve proffer to tion. must confess to frustration making searching in in jurisprudence. clear substance the offer. vain for such (the available) 5. in 2002 last date there were dants in Criminal Cases U.S. District 2002, prosecutions Court, 380 nationwide of 18 U.S.C. http://frjc.ur- at Fiscal Year resulting 1546 violations in 375 convictions. ban.org/noframe/wqs/q —data—l.cfm# Program, See Fed. Justice Statistics Defen-
47 in such conduct. approving that rect See claim INS Certif government’s Aguilar-Aranceta, States v. 58 as in crimi United regularly used icates are (1st Cir.1995). 796, 796-800 F.3d cases, to United States and its citation nal 612, 158 F.3d 616- Scantleberry-Frank, I disturbing What find most about the (1st Cir.1998), authority for this as 17 appeal majority’s outcome of this is the disingenuous. is at best Such proposition, over, say totally not to glossing bypassing, approved been relevant certificates have appellate well-established standards for re- prove illegal re-entry cases evidence in viewing evidentiary rulings of a trial Attorney granted has not that the General court. the United States. to re-enter
permission It is black letter law that review a we approving case reported There is no Id. evidentiary rulings for trial court’s abuse in a such a certificate situation use of such Gilbert, of discretion. See United States v. case. present as in the (1st Cir.1999); Aguilar- F.3d 160 circumstances, Aranceta, at “In totality deciding 58 F.3d Given relevance, confusion, dis- reliabili- presently that will be including those issues— ty, helpfulness district court has a cussed, it is fair to conclude that I believe —the Thus, comparative advantage.... long introducing insistence legal as there is no misstatement of the illegal entry into allegedly the accused’s reached standard and the result is not by him of an country prove use unreasonable, clearly judge’s the district by inappropri- card is fueled illegal green ruling usually respected.” is United me, it an To indicia ate considerations. Schneider, (1st 111 F.3d States v. an wants to bolster Cir.1997) (citing Shay, States v. (the United prosecution fact is unsympathetic (1st Cir.1995)). This stan- not need a defendant did 2,700 nearly that of the high dard is so country) by introducing un- work in this of this court in the last published opinions to so charged illegal activity,6 years, only five eleven cases have the its eyes accused in the of the district court evidentiary rulings charged illegal ac- findings regarding the Thus, majority’s been overturned. foregone tion will become a conclusion. only wrong, unusu- conclusions are not but Varoudakis, See United States Nevertheless, reaching ally so. Cir.2000). (1st Particularly if it result, majority’s ruling quite wrong that the accepted, arguendo, revealing. (as ma- strong case has otherwise out, records show no
jority points INS For the INS Certificate be relevant maj. Amaya, green card was ever issued proving an ele- evidence it must assist 40-41, that the can op. at charged. crime consid- “[W]e ment of the it has in sought that the card which relationship of the evidence er the false, 43), id. at it becomes possession to the elements of the to be admitted the introduction of the of- transparent [any] offense and to relevant defenses only is intended United States uncharged illegal fered the [defendant].” *9 (1st Cir.1991). Smith, influenc- 713 purpose inappropriately for the of 940 charged under ing jury regarding illegal green the The statute which the (1) use or at- three elements: the judge The district was cor- has charge. card Blakely totally context. See uncharged in criminal not unrelated 6. The use of conduct - -, Washington, 124 S.Ct. recently U.S. proceedings become the focus of has (2004). scrutiny Supreme in a 159 L.Ed.2d Court attention and (2) card; inconsistency use; tempted “illegal” green of an The next decisional (3) not genuine. that knew was majority con equally intriguing. The 1546(a). Contrary See 18 U.S.C. preju that “a who in judge cludes allow[s] conclusions, majority’s opinion I am of the [unfairly prejudicial] dicial evidence'— —8 in the makes nothing that INS Certificate something easily that and prove [is] probable that it or less defendant more definitively proved without such he used was not green knew the card [,] ... straightforward and more means argues The that authentic. points Id. It reversal.” then court[s] country illegally since entered the in the fact that false card was the the status, regularized and not his he possession government, of and that the card, thus, and it could not obtain independent “further of therefore evidence he the probable knew unnecessary for Amaya’s knowledge [is] genuine.- argument was not This is tenu- Id It conviction.” at 43. would seem ous at At the time of the events at best. conclusion, with, agree I would this which here, Amaya longer illegal no issue inevitably application the lead to sense, not alien that he was immedi- al previously principle regarding stated ately and thus the link deportable alleged unnecessarily preju lowance in evidence of illegal entry and the fraudu- between his However, majority dicial to evidence. is not apparent. lent Given conclusions, tally negates correct these temporal the two distance between events contradictory reaches a result intervening asylum, instead petition did speculations district court not abuse discre- of and sur based on series excluding tion in Certificate as the INS possible mises about behavior and irrelevant. lawyer arguments, passing with but a men applicable tion of the standard of review
The “[n]o indicates that sensi- majority Maj. at this “logic.” op. “Upon favor of 44. likely to let judge ble would falsity.” point to show of page history evidence is worth a volume Maj. op. respect, Eisner, 43. But in at fact logic.” New Trust Co. v. York is that the trial prosecutor told 345, 349, 41 S.Ct. 65 L.Ed. U.S. being this evidence was offered “to J.).9 (1921)(Holmes, prove charged,” the crime i.e. use of a false concedes, must, majority as The appropriate card.7 thus It would seem argument illegal “the for exclusion [of judge’s conclude that trial exclusion far from evidence] under 403 is such evidence was not an abuse discre- Maj. op. frivolous.” at 45. it to Were tion, unreasonable, clearly and was apply the standard of review to settled upheld. majority thus But the should be conclusion, rules the trial otherwise. affirmance of prior 7.This also close to as a defen- treads the line the use crimes evidence of 404(b), propensity present dant's to commit crime. set forth in Federal Rule of Evidence though question by the was not briefed parties. government acknowledged "[p]roof As majority of Ama- The admits that court, may ya's surely before the district there also be prejudicial in the 404(b). unexplored Maj. op. Rule 403.” at 45. issues related to Rule The sense intended deny. prosecutor suggest This would be difficult to "I stated would that —I am sully offering this evidence to his charac- Holmes, Jr., purpose ter or for some other that. I See also Oliver Wendell simply (1881)("The offering am crime that law Common Law life of the 404(b) logic: charged prohibits experience.”). he is with.” Rule not been it has been has *10 why In I see ruling give would be mandated. no reason we should judge’s stead, again relying on flawed theories of government by bite at apple second by jurors, conduct it down predictive remanding the case for what amounts to stating that by the concession “the grades I balancing, second one which likely prejudice of here should not extent already effectively believe has place taken course, Id at 45. Of be overstated”. this when district court exercised its dis- truth, on is not the ease. effect proffered cretion exclude the evidence jury pri- the introduction in evidence of of by government. criminal conduct cannot defendant Because I of believe the decision juries treat prior
be understated. That the district court was correct when viewed highly probative evidence as of bad acts review, against recognized standard of charged crime has been confirmed and because it well within was its discre- investigations. See United empirical rule, tionary I power to so would affirm. Daniels, States (D.C.Cir.1985); Kalven, Harry Jr. & Hans I respectfully dissent.
Zeisel, (1966); Jury The American see Ordover, Balancing P.
also Abraham Presumptions Guilt and Innocence: 404(b), 608(b) 609(a), Emory
Rules and (1989); Mi
L.J. 135 Roselle L. Wissler & Saks, Inefficacy
chael On the Limit J.
ing Prior Instructions: When Jurors Use Guilt,
Conviction Evidence To Decide (1985). America, 9 L. Hum. Behav. 37 No one & UNITED STATES who has tried a criminal case before a Appellee, slight the impact would of such evidence influencing that proceed the outcome of experienced
ing. GRAVENHORST, trial that de A. Charles Jus a/k/a case, cided to exclude it this himself a Foxe, Graf, tin Andrew a/k/a a/k/a prosecutor, surely fully former federal agraf603, justinnh, jus a/k/a a/k/a cognizant of the unfair defen tinnh2001, Defendant, Appellant. evidence, lurking properly dant No. 03-2057. his excluding exercised discretion in An unnecessary. appellate irrelevant Appeals, United States Court of ruling, court should not at a disturb First Circuit. minimum, clearly because it un 9, 2004. reasonable. Heard June respect, although majority With cor- July 27, Decided rectly states the elements the crime maj. I charged, op. at believe it legality,
stretches bounds of reason beyond logic breaking point in its
attempt illegal to connect the charged. again
the crime Id. at 44r-45. It speculative predictions,
resorts which I
regretfully, inappropriate find and un-
convincing.