United States v. Douglas Paul Breitkreutz

88, 1790, 91 S.Ct. Breckenridge, 403 U.S. (1971) America, Carpenters v. and UNITED STATES of 29 L.Ed.2d Plaintiff-Appellee, Scott, 103 S.Ct. 463 U.S. (1983). has that Justice Souter L.Ed.2d Thus, per- I I do not. am prerogative, but BREITKREUTZ, Douglas Paul (1) protection” “equal that the words suaded Defendant-Appellant. have the same of the statute

in both clauses interpreted meaning, that these words as and No. 91-30285. currently require proof of a by the Court Appeals, Court of discriminatory invidiously animus class-based Ninth Circuit. of action under either a viable cause to create (2) clause, that it must also be demon- Argued 1992. and Submitted June conspiracy at was “aimed strated 29, 1993. Decided Oct. rights” “protected that are interfering with encroach- private, as well as official against at Carpenters, 463 U.S.

ment.” further, not elaborate at I will S.Ct. already well-informed because an surely will decide this issue Supreme Court in short order. worthy Kennedy makes some

Justice inability to the dissenters’ points. points He single rationale” as a reason to agree “to on a conclusions, Bray, 506 U.S. at their distrust correctly —, and he notes 113 S.Ct. 1985(3) interpreting § step in false that “a category ordinary making a whole risks single violation of a crimes a concurrent state passed more than a congressional statute century ago.” Id.

Thus, Judge Hug’s opinion I concur plaintiffs’ Bray forecloses the holding that of section the first clause claims under 1985(3), respectfully dissent with re- I but gard holding that have stated to his under the second clause of cause of action that statute. Siebe, Siebe, Landeck, Westberg

James E. Moscow, ID, Judge, defendant-appel- & for Douglas Paul lant Breitkreutz. Boise, Atty., Lindquist, R. Asst. Kim U.S. ID, plaintiff-appellee for U.S. FARRIS, Before: NORRIS and KOZINSKI, Judges. Circuit KOZINSKI, Judge: Circuit may go how the We consider proving about a defendant’s crimes charged when are an element of offense.

Background being a

juryA Breitkreutz of in possession in of a firearm violation felon 922(g), § court sentenced and the U.S.C. prison a career criminal years him 15 as 922(e). When he pursuant to 18 U.S.C. arrested, driving pick- Breitkreutz was Be- reported stolen. up truck that had been a rifle. He of the truck was hind the seat police knowledge weapon denied it, arresting officer he told the found and he Du- one the truck from David had borrowed with val. Breitkreutz wasn’t truck, possessing the but with theft of the rifle, for some- more serious matter a much one like Breitkreutz with convictions. proceeded under con- theory: Breit- Because

structive rifle behind driving a truck with a kreutz was seat, possessed be inferred it could testified he of the truck rifle. The owner woman, it; who was rifle in put did pre-indictment delay claim fails. delay,” his Breitkreutz at the time truck Horowitz, 756 F.2d knowledge arrest, had no of See United testified she Cir.1985); he didn’t see also United rifle; maintained hoped Aguirre, He said he it either. know about Cir.1993). But presence. rifle’s explain the Duval could Duval, mostly so he relied located he never testimony that he neither owned on his own II it there. gun nor knew was

the argues the district court Breitkreutz next admitting of its discretion evidence abused

I govern- The three convictions. contends the district Breitkreutz convictions to offered evidence of the ment denying to dismiss erred in his motion court ... of prove had “been convicted Breitkreutz delay: The pre-indictment for the indictment punishable by imprisonment for a a crime months after he was indictment was filed 31 year,” element of 18 exceeding one an term delay violates first arrested. Preindictment separate ar- 922(g). He builds two U.S.C. preju process if it “caused substantial due Evidence 403.1 guments on Federal Rule of rights a fair trial and dice to to [defendant’s] First, govern- contends that the Breitkreutz delay ... the was an intentional device to allowed to intro- ment shouldn’t have been advantage gain tactical over the accused.” proof any prior because he duce' of felonies Marion, 324, 307, 404 U.S. United States stipulate offered to that he was a con- had (1971). 465, 455, 468 92 S.Ct. 30 L.Ed.2d Second, government if was victed felon. the (1) argued Breitkreutz the all, prove up any felonies at it entitled to brought charges pressure to him the federal prove have allowed to shouldn’t been plea in an unrelated case in a to enter a fully one would have satisfied its bur- (2) district; prejudiced different and was 922(g). den under section he could not find Duval. The dis because trict court denied the motion without an evi Supreme A. As the Court has not dentiary hearing. Breitkreutz asks us to ed, every prosecution’s to “the burden alternative, or, in dismiss the indictment by a element of the crime is not relieved evidentiary hearing. remand for an tactical decision not to contest an defendant’s Estelle v. Breitkreutz’s failure to demon essential element of the offense.” Given — all, McGuire, U.S.—,—, 112 any prejudice at can’t S.Ct. strate we conclude (1991). Thus, gov argu 116 L.Ed.2d 385 the district court erred. Breitkreutz’s entirely unavailability precluded charging from and ment turns on the of ernment is not Duval; yet, proving prior by offense a defendant’s offer evidence Duval ever testimony “Regardless to it: of the [defen existed is Breitkreutz’s own and to testimony willingness stipulate, govern dant’s] of other witnesses that Breit by [crime] kreutz mentioned Duval’s name to them. ment entitled to [is] Equally important, probative of evidence.” Breitkreutz offered no introduction (9th Gilman, 616, 622 testimony evidence that Duval’s would have States v. Cir.1982) (citation omitted); exculpatory. been Breitkreutz see also United Because has (9th Kalama, discharge proving failed 596 his burden of Cir.1977).2 unwillingness of prejudice he “suffered actual of the The courts because relevant, “Although im- Rule lation and introduced evidence that items 1. 403 states: evidence by ported be excluded if its value is substan- from Canada had been obtained there tially outweighed by danger preju- Durcan, unfair the fact that theft. In dice, issues, misleading confusion of the or goods were stolen was not relevant to the jury, delay, offense, or considerations of undue waste charged smuggling; came from time, presentation or needless of cumulative all that mattered: Canada was evidence.” burglaries introduced in The evidence of objectionable largely distinguished because the 2. Durcan Gilman and Kalama an earlier case, Durcan, integral burglary part was not an 539 F.2d 29 crime Cir.1976), charged, smuggling. prose- stipu- All the refused a the offense where the argues the dis- criminal Breitkreutz nevertheless prosecutor force judge taken the trict should have long on the stipulation is based defendant’s deciding whether to admit into account can criminal accused standing rule that “the under Fed.R.Evid. proof of his felonies an element ‘plead out’ proffered stipulation, offering stipulate to that ele offense contends, fully gov- would have satisfied the Imwinkelried, Right J. ment.” Edward proving burden of that he was a ernment’s Block the Admis Issues and “Plead Out” Thus, any mileage gov- Evidence, Emory L.J. Prejudicial sion of got ernment from the of conviction (1991)3; Alan Charles see would, beyond above and Graham, Federal Wright and Kenneth W. necessity, unduly prejudicial. have been See Procedure, § 5194 at 198-99 Practice Hitt, (1978). and nn. 37-38 Cir.1992). Indeed, recently proof that if of we noted underlying in a section conviction

the astray in goes presuming excluded, it would were 922(g)(1) action proffered stipulation an that a is alternative charged.” crime “change the nature of the proof the district court means of which (9th Barker, 960 1 F.3d States v. balancing. in 403 See should consider its 1993). Barker, the district In we held Cir. Advisory Note to Fed.R.Evid. Committee’s of single the offense not bifurcate proof. court could we ex stipulation A is not As 403. separate into being possession above, felon in partial a a amendment to plained it’s possession felony precluding for status and proceedings plea, a means of the defendant’s felony particular conviction is “[pjroof any proof of the and all on a issue. See because City Id. at Simi proof of the offense.” Sinaloa Lake Owners Ass’n essential to the (9th 1 Valley, 1400 n. Cir. 882 n. 959 3.4 403-type balancing only by importing a Rule in Durcan was where cution had to goods case, however, the acquired, ap- In the instant were not how. under Rule 401—an determine relevance prior felony is an the fact of a explicitly rejected by advisoiy proach the com- integral part of a of the offense of will arise which mittee notes: "While situations hy firearm a convicted the of evidence offered to call for exclusion by opponent, ruling point the a conceded Kalama, original). (emphasis in 549 F.2d at 596 on the basis of such consider- should be made comprising that evidence an Kalama stressed (see prejudice ations as waste of time and undue "integral part" not be exclud- of the need offense 403), any general re- Rule than under rather stipu- merely defendant offers to ed because the only quirement admissible if that evidence is late. Id. Advisory' dispute.” in Com- directed to matters prac- not cite this Professor Imwinkelried does Note to Fed.R.Evid. 401. mittee's Indeed, argues particular approval. tice with Poore, F.2d 39 Cir. protection constitutionally suspect equal on it is Poore, 1979), equally inapposite. defen In grounds. Id. at 360. Breitkreutz did not raise dant had offered to to the earlier con we therefore have no occasion to this issue and accepted viction and the Imwinkelried's had consider the merits of Professor to, stipulation: thesis. offered and in fact "[Defendant] did, stipulate previously that he had been con concurring the fact makes much of 4. Our brother handgun.” felony carrying Id. victed of passing proof in that of the that Barker noted bearing no whether at 40-41. Thus has on Poore “through stipulation felony conviction could be stipulation; accept prosecutor or not the must underly- evidence” and that "[t]he or contested ing whether, parties stipu once the the issue was lated, completely are conviction facts failing by court erred to redact the district 922(g)(1); the existence of the irrelevant under to remove references to the na the indictment We not.” Id. at 959 n. 3. do conviction itself is it that it ture of the offense. Poore made clear today: from these statements not detract by comparing dealing not with our case its was may prove up felony choose to holding limited with that of United States Barker itself either or evidence: 1975), Smith, (8th Cir. where 520 F.2d recognizes stipulations differ from contested required [was] "the And, underlying Id. while the facts of evidence. general stipulation proffered of con relevant, defendant's may felony the conviction not be felony felony or that of a convic viction proof or other state —which offering upon in tion to the one relied lieu certainly is. The nature of the conviction—most Poore, proof F.2d at 41. opposite conclusion thereof.” reaches the concurrence 2, 3, -B 1989). THE Exhibits 3-A and place thus has no COURT: A will be admitted. balancing process. Rule RT 60-61. approach suggested would Breitkreutz’s the rule that seriously undermine 924(e), however, not de Section does right stipula- to refuse a prosecution has separate proven offense to be before fine a every case where the defendant In tion. jury, to be but a sentence enhancement prior felony stipulate to a offers —or applied by the court. See United prosecution’s for in the case anything else West, Cir.1987); 911-12 tip would Rule balance that matter —the Dunn, 619-20 it prosecution’s evidence because against the (9th Cir.1991). had to find one any probative if inevitably have little would satisfy 922(g). Because the section beyond stipulation. Allow- value apparently swayed court district weighed the Rule 403 ing stipulations be argument that the second and third mistaken rule balancing process would thus defeat the being satisfy were introduced to convictions pleas in against guilty most cases. partial 924(e), prop can’t it section we be confident erly balancing Rule conducted sensitive B. Breitkreutz fares better with for. 403 calls challenges the intro argument, which second gov- judgments possible the district court let the of conviction to It’s duction of felony. priors single prior The district ernment introduce all three on the prove up a explain precisely theory to meet of required to how that it is entitled its burden court is not See, felony balancing. e.g., proof single to a three different its Rule 403 as it conducts Anderson, ways. probative But the balance between Johnson, Cir.1988); dramatically prejudice 820 value and unfair shifts (9th Cir.1987). against subsequent 2n. But the introduction of the F.2d 1069 & government proves up in once one. enough the record for us to felonies there must be government placed evidence of one figure out whether the court understood Once burglary and considered of Breitkreutz’s convictions into limits of its discretion Soulard, record, proof of the other two was cumulative relevant factors. United States v. (9th Cir.1984). Here, likely and therefore to fail the Rule 403 test. might unclear. The balance have been struck some- the record is differently felony proof what if the of each above, explain For the reasons we shaky genuine was and there was a doubt in- government would have been entitled to government could convince the whether judgment of conviction troduce at least one jury beyond a even reasonable doubt about satisfy its burden under U.S.C. however, Normally, prior felonies are one. § also invoked sec- 922(g). The by documentary proof established that’s hard statute, 924(e), career which tion prior dispute; proof of more felonies adds statutory if provides minimum sentence very little of value and amounts prior has committed three felonies. defendant piling unfair on. misled court seems to have been The district required it clear from the record that thinking to Were into jury: felonies to the district court had these considerations prove those three' concluded all three mind but nonetheless (defense counsel): Your Mr. WATSON. admitted, might convictions should be we Honor, ... that we would of have deferred to its exercise discretion. guilty prior has been found of a defendant can’t on the record before us. But we do so felony exceeding year. one (AUSA): Well, consider whether this error he’s also C. We next Mr. GRISHAM previously noted the was harmless. We’ve been with the career criminal stat- ute, Honor, in our circuit over the standard of felonies con- conflict Your number error, Hitt, effect, 981 F.2d at review for harmless victed of have an and that is where unnecessary in indictment, resolution is this but its we named three in the wasn’t harmless under case. The error here seek three here. to introduce meaning the “more were violent felonies within the “fair assurance” or either govern- the statute. not” standard. probable than constructive proceeded on a case of

ment AND REMANDED REVERSED linking Breit- possession. The evidence firearm was limited to the kreutz to the NORRIS, Judge, A. WILLIAM Circuit presence the seat of the stolen rifle’s behind concurring: fingerprints or other driving. No car he was ownership were introduced. To indicia of I concur in the and in all but convict, an inference had to draw majority’s part opinion. agree IIA of the I evidence; this delicate circumstantial from majority with the that the admission of Breit- by thrown off judgment might well have been kreutz’s three felonies was error and knowledge of Breitkreutz’s extensive its the error was not harmless. I write history.5 criminal express my disagree- separately, majority’s gov- ment with the view that the

Ill put into evidence the ernment is entitled appeals his sen Breitkreutz complete of a conviction to record may again Because the district court tence. that the defendant was a convicted felon at sentencing challenges, to confront his have possession the time he was firearm. exercise our discretion to consider two we See, e.g., Gregorian v. arguments now. I (9th Cir.1989).

Izvestia, majority assumes without discussion argues the district court should past a firearm a the nature of the conviction is possession have treated the crime of of a within the mean relevant to felon as a crime of violence 922(g). under § 4B1.1. Breitkreutz is firearm a convicted felon ing of U.S.S.G. Sahakian, doing, majority a conflict 965 In so the creates right. See Cir.1992). Barker, 957, 1 F.3d 959 agree with with United States F.2d 740 We also (“The (9th Cir.1993) underlying have let n. 3 facts him that district court should the completely constitutionality prior the conviction are imlevant of the convic him attack the enhancing 922(g)(1); under the existence of con the basis for tions that were added)). (emphasis viction itself is not” as a career offender. See United sentence Vea-Gonzales, 1326, prosecution for the of Barker held that 1332- States v. Clawson, (9th Cir.1993); being felon in fense of a convicted 33 United (9th Cir.1987).6 may into two 909, of a firearm not be bifurcated The 914-15 separate proceedings, one for each element Taylor v. court relied on United district offense, government must States, 2143, because the 109 of the 495 110 S.Ct. U.S. jury. (1990), element to a permitted to each States v. be L.Ed.2d 607 and United however, case, (9th Cir.1991), majority Sweeten, in this in re Unlike the F.2d 765 933 govern makes clear that while arguments the con Barker fusing to consider about may “proving an essen put ment on evidence stitutionality predicate offenses. offense,” Id. at of the they do tial element inapposite are because These cases Campbell, (citing States challenges, but United constitutional not deal with (9th Cir.1985)), may it not F.2d prior of whether offenses question with felonies; then, prob- change analysis. the court admitted this 609 doesn't 5. Fed.R.Evid. testimony impeach- that the ably figured own introduction for The force of Breitkreutz's that their he didn’t know it was under damage. rifle wasn't his and would do no further ment jury's probably undercut the seat was This, knowledge prior convictions. of his argues to is limited Clawson 6. The however, help the error was harm- doesn't show regarding claim a defendant's cases in which probably would have the convictions ful because without prior can be determined convictions anyway Breit- under Rule 609 when come in Appellee’s investigations.” Brief "elaborate But neither does Rule took the stand. kreutz to create such the invitation 32. We decline introducing prior support that the conclusion meaningless distinction. to decision made after was harmless. Breitkreutz’s felonies might well have been take the stand engage in a There is no need underlying the ulation. the facts jury of inform majori- conviction, Rule as the balancing test under because prior defendant’s does, probative evi- ty there is no defendant is because of whether the are not weighed against prejudicial its to be dence a convicted my analysis in the next I continue effect. a conflict not majority creates The taking purpose of issue for the sole section Barker, Fourth Cir- also with the but broad, unsupported statements with several cuit, once a defendant held that which has majority’s analysis. appear in the that also a convicted his status as stipulate offers felon, put not on evi- prosecution II felony. See nature of the of the dence amounts to a majority proposes what Poore, 41-43 prosecution need never per se rule that the Cir.1979) prosecution to (requiring proffered stipulation. It accept a defendant’s in indictment to nature reference strike premise from the reaches this conclusion felony after de- conviction defendant’s proof’ not and “thus has no “is status as to his fendant offered balancing process,” place in the Rule 403 felon). from the notion Majority at as well as compel- Poore is logic of Barker and “right has a to refuse a prosecution that the conviction ling. An unredacted stipulation.” Id. something no need to jury it has tells the question, The relevant felony for which know: the nature proffered stipulation constitutes whether a The elements of stands convicted. defendant circumstances proof, but rather under what (1) charged are the defendant’s the crime accept one in lieu of prosecution must (2) felon, and his know- as a convicted status choosing. The putting on evidence of its own nature of of a firearm. The ing possession majority’s question blanket answer to this —a wholly to his prior felony is immaterial unquali- has a assertion that the felon; Congress has as a convicted status hardly “right” to refuse a fied —is felony suffice. Thus the any will said that compelling.1 “tendency no has nature of any fact that is of existence of stipulations make the need not It is true defense of the ac- consequence understandably the determination always accepted. A be probable than it probable or less tion more expects presented to be with direct evidence F.R.E. the evidence.” question actually would be without that the crime in occurred. jurors errs, however, to convict might be more inclined majority That it fails to committed violent or stipulations who have defendants between as to the differentiate to ac- gun-related crimes—and more inclined relating to his defendant’s status and those may crimes be re- quit those whose committing of mind in actions or state jury pre- serious —is garded by the as less crime. cisely why jury not be informed of should held, so, rightly prose- that a have We prior conviction. underlying facts of the story” latitude to “tell the cutor should have offense, charged and that a defendant pri-

Because the nature of defendant’s may the admission of unfavorable irrelevant to a not block or conviction is by “pleading out” an element of the of a full con- evidence 922(g), the admission under See, e.g., Hadley, necessarily crime. into evidence viction Cir.1990) (defen- 851-52 trial error. The constitutes charged aggravated sexual assault a version of dant with either introduce redacted must prevent conduct cannot judgment that omits all refer- and abusive sexual the conviction criminal of evidence of his of the defendant’s the admission ences to the nature issue); offering stip- not to contest the proffered a intent crimes or defendant’s latitude, "right” has a prosecutors in cer- notion that 1. We have allowed circumstances, evidence, 692, is, Majority tain stipulate. to refuse defense offers at as far introduce see prose- we have held that a know, But never original majority. with the Ias majority's "right” cutor has a to do so. The Campbell, 774 F.2d v. States United (defendant (9th Cir.1985) charged GREEN, Plaintiff-Appellee, Val John 356-57 may receipt stolen mail not knowing v. to block the admission a use stolen); HALL, Representative mail was that he knew the L. Personal evidence Gordon Gilman, Coffman; v. of Michael D. of the Estate Cir.1982) (defendant Coffman, with con- D. De The Estate of Michael materials cannot spiracy to mail obscene fendants-Appellants. by offering acts proof of certain overt

block truth). ROBERTSON; M. Richard Salvation stipulate to their Army, non-profit corporation, involved a defendant’s Each of these cases Defendants, regarding his attempt to exclude evidence the crime or of mind at the time actions state v. intend- the defendant ivas committed —what HALL, Representative L. Personal Gordon knew, ed, In each or what he did.2 what he Coffman; of Michael D. of the Estate cases, necessary direct evidence was of these Coffman, D. The Estate of Michael jury “full flavor” of defen- give the Third-party-plaintiffs-Appellants, jurors to draw crime and to enable dant’s actually permissible inferences about what v. happened. America, Third- UNITED STATES simply the defen- question is But when party-defendant-Appellee. time as a convicted felon dant’s status committed, same new crime was these GREEN, Plaintiff-Appellee, Val John apply.3 The facts of a defen- concerns do help deter- prior crime do not dant’s fact mine whether the defendant ROBERTSON; The M. Salvation Richard Barker, are those facts felon. As we said Army, non-profit corporation, n. 3. “completely irrelevant.” F.3d at 959 Defendants, prejudice. potential add is for unfair All HALL, Representative Personal

Gordon L. Coffman; Michael D. of the Estate of Coffman, Michael D. The Estate of lumping together all cases authority proposi without distinction majority for the 2. The cites no stipulations stipulate. prosecutor involving In cases that do not that a refuse offers to tion status, Although solely question tending to the of status. limited evidence turn on the defendant's Kalama, (9th Cir. 549 F.2d 594 the defendant satisfies an essential 1976), prior felony suggested “the fact of a necessarily has substantial element of a crime' integral part a the offense of an value, preju- probative little risk of unfair felon,” at our a convicted Id. firearm stated, is court "Evidence dice. As the Barker government may hold that court did not prejudicial it has an additional ad- Rather, prior felony. stipulation refuse a on the tending beyond to a defendant verse effect on court "even if the failure of the trial we held that justifies or issue that its admis- the fact accept pertinent compel to stipulation at 959 n. 3. That the defense sion.” 1 F.3d case, the instant such was error in proffers this balance. does not affect a light of the abundant evi error was harmless govern- 922(g) prosecution, aIn guilt.” (emphasis appellant's Id. add dence of ed). nothing than the more ment is entitled Regard- status as defendant's stipulate, the defendant offers less whether majority's overbroad statement that "in stipulate 3. The of his is the nature every the defendant offers to case where likely and is a convicted felon whether he is anything prior felony- in the else —or impact adverse on him before have an additional prosecution's Rule 403 case for that matter—the required jury. therefore tip against prosecution’s evi- balance would up evidence with more circumscribed to come inevitably would have little if dence because it or, unwilling to do if it is the defendant's status beyond stipula- any probative that of the value so, tion,” is offered. if one Majority pitfalls of illustrates the

Case Details

Case Name: United States v. Douglas Paul Breitkreutz

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 29, 1993

Citation: 8 F.3d 688

Docket Number: 91-30285

Court Abbreviation: 9th Cir.