United States v. Briana Waters ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30222
Plaintiff-Appellee,
v.  DC No.
CR 05-5828 FDB
BRIANA WATERS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
March 5, 2010—Seattle, Washington
Filed September 15, 2010
Before: A. Wallace Tashima, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Tashima
14097
14102 UNITED STATES v. WATERS
COUNSEL
Dennis P. Riordan and Donald M. Horgan, Riordan & Hor-
gan, San Francisco, California, for the defendant-appellant.
Michael S. Morgan, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
OPINION
TASHIMA, Circuit Judge:
In May 2001, several radical environmentalists decided to
take a stand against genetic engineering. They did not protest;
they distributed no literature. Instead, they opted for a more
direct approach: they selected two targets that they (errone-
ously) believed were engaged in genetic engineering, and
burnt them to the ground.
One of the targets was the office of Dr. Toby Bradshaw, a
professor at the Center for Urban Horticulture at the Univer-
sity of Washington (“UW”). The fire, started with a home-
made, timed incendiary device, spread from Professor
Bradshaw’s office to the rest of the building, damaging sev-
eral rare books in the library and ultimately causing more than
$6 million in damage.
UNITED STATES v. WATERS 14103
An investigation into the fires led the government to
believe that Briana Waters, the defendant before us, was
involved. She was eventually indicted on two counts of arson,
one count of conspiracy to commit arson, possession of an
unregistered firearm, and use of a destructive device during a
crime of violence. A jury convicted Waters of both counts of
arson, but acquitted her of the remaining charges. She was
sentenced to six years’ imprisonment.
Waters now appeals her conviction. Having reviewed the
record of the proceedings below, we conclude that Waters’
trial suffered from a number of errors. Because the govern-
ment has not convinced us that Waters’ verdict was unaf-
fected by those errors, we reverse her conviction and remand
for a new trial.
I.
A.
At the center of this case is a radical environmental organi-
zation known as the Earth Liberation Front (“ELF”). Both
ELF and its companion organization, the Animal Liberation
Front, are considered “domestic terrorist” groups by the FBI.
The groups advocate using “economic sabotage” to under-
mine the “capitalist state,” which they blame for the destruc-
tion and subordination of the environment. Although a central
tenet of both groups is to “take all necessary precautions
against harming any animal — human and nonhuman,” the
groups strive to inflict as much damage on economic targets
as possible. In particular, the groups target those enterprises
that they perceive to be “profiting off the destruction of the
natural environment.”
Fire has been ELF’s weapon of choice, and the group has
committed a number of high-profile arsons over the past 15
years. In 1998, for example, ELF claimed responsibility for an
arson at Vail Ski Resort in Colorado. The fire damaged sev-
14104 UNITED STATES v. WATERS
eral chairlifts and destroyed a new mountaintop lodge, ulti-
mately causing more than $12 million in damage. See
Deborah Frazier, et al., Arson Confirmed at Vail: Investiga-
tors Discover Plastic Jugs that Had Contained Gasoline,
Take Casts of Shoe Prints, Denver Rocky Mountain News,
Oct. 23, 1998, at 7A, available at 1998 WLNR 828998.
ELF’s costliest arson to date, which caused more than $50
million in damages, burned a new, 206-unit apartment build-
ing in San Diego to the ground. See Pauline Repard, Militants
Say they Set $50 Million Condo Blaze: Earth Liberation
Front Posts Claim on Web Site, San Diego Union-Tribune,
Sept. 9, 2003, at B1, available at 2003 WLNR 16778636. On
a smaller scale, ELF members have repeatedly attacked “Mc-
Mansions” and SUV dealerships. See, e.g., Steve Miletich,
Hunt is on: Who Torched the Street of Dreams?, Seattle
Times, Mar. 4, 2008, at A1, available at 2008 WLNR
4342378; State v. Luers, 153 P.3d 688 (Or. Ct. App.), modi-
fied, 160 P.3d 1013 (Or. Ct. App. 2007); United States v. Cot-
trell, 333 F. App’x 213 (9th Cir. 2009). As the Seventh
Circuit recently described when cataloging the breadth of
ELF’s destruction:
[S]ince ELF’s inception in 1987, its members have
been responsible for bombings, arson, vandalism,
and a host of other crimes. In fact, between 2000 and
2005, 43 of the 57 reported terrorist attacks commit-
ted on American soil were done by ELF members or
their sister organization, the Animal Liberation
Front. ELF’s terror attacks have caused over fifty
million dollars in damage to public and private prop-
erty, including the arson of condominium com-
plexes, multiple university research facilities, a ski
resort, logging facilities, a high-voltage energy
tower, and almost a score of other pieces of private
property. A perfunctory survey of some of the cases
involving ELF shows the breadth of its destructive
force, including a conspiracy stretching over five
states and involving nineteen separate acts of arson.
UNITED STATES v. WATERS 14105
United States v. Christianson, 586 F.3d 532, 538 (7th Cir.
2009).
Like many similar organizations, ELF operates without a
structured, central hierarchy; it has no formal leadership,
membership, or official spokesperson. Instead, the organiza-
tion uses an “anonymous cell structure.” Individuals or cells
independently plan their own actions, and use the name ELF
to convey their common purpose.
B.
The arson at issue in this case started in the early morning
hours of May 21, 2001. The same morning, another fire
destroyed the Jefferson Poplar Farm, hundreds of miles away
in Clatskanie, Oregon. At the site of the Oregon fire, the
words “You cannot control what is wild” and “ELF” were
spray painted on one of the surviving buildings. A communi-
que from ELF later claimed responsibility for both fires.
The investigation into these fires saw little progress until
2004, when a man suspected of participating in the Oregon
arson agreed to cooperate. With the help of this witness, the
case broke wide open. The government came to believe that
the UW arson had been the work of five individuals, although
which five was a matter of some debate. Authorities were cer-
tain of the identities of three participants. Lacey Phillabaum
and Jennifer Kolar, both seasoned ELF members, admitted to
participating in the arson. William Rodgers, the man the gov-
ernment described as the head of the ELF cell that committed
many of the arsons across the West, was identified by both
Phillabaum and Kolar as a third member. Rodgers committed
suicide while in jail shortly after he was arrested.
The identities of the final two participants were less clear.
Kolar was the first to give a statement to the FBI, but her
memory was hazy. She named the participants as herself,
Rodgers, and three individuals whom she described as “Capi-
14106 UNITED STATES v. WATERS
tol Hill Girl,” Capitol Hill Girl’s “punk boyfriend,” and
“Crazy Dan.” The agents ultimately learned the identities of
these individuals and determined that none of them had been
involved in the UW arson. A few weeks after making her ini-
tial statement, Kolar returned to the FBI and told them that
she had remembered Waters’ involvement in the crime. Kolar
claimed that she had remembered Waters’ involvement after
coming across Waters’ name in her telephone’s contact list.
Kolar never identified the remaining two arsonists, and never
named Phillabaum as a participant, despite the fact that the
two had a long acquaintanceship, including attending various
small meetings together where they discussed environmental
sabotage.
Two months after Kolar’s proffer, Phillabaum met with the
FBI. She confessed to her participation in the UW arson and
told investigators that the remaining four participants were
Rodgers, Kolar, Waters, and Waters’ boyfriend, Justin
Solondz. A search of Solondz’s residence soon thereafter
uncovered evidence that he had been involved in the arson.
He fled the country before police could find him.1
Based on this information, a grand jury indicted Waters and
Solondz, along with three individuals who had been involved
in the Jefferson Poplar arson. Phillabaum and Kolar pled
guilty to separate charges, and were sentenced to three and
five years’ imprisonment, respectively.
C.
Phillabaum and Kolar were key witnesses in Waters’ trial,
both giving detailed accounts of Waters’ role in the arson.
1
Solondz was discovered in China in November 2009. He is currently
serving a three-year term of imprisonment and will be extradited to the
United States when that sentence is completed. See Dan Levin, China
Jails American Environmentalist Wanted by F.B.I. in Attacks, N.Y. Times,
Nov. 28, 2009, at A4, available at 2009 WLNR 24060348.
UNITED STATES v. WATERS 14107
Both agreed that Waters was not significantly involved with
ELF and did not attend the initial meetings in which the UW
and Jefferson Poplar arsons were planned. In May 2001, how-
ever, close to two weeks before the UW arson was to take
place, Waters joined the plot to destroy the UW Center for
Urban Horticulture. She attended a meeting at a Denny’s res-
taurant in Olympia with Phillabaum, Solondz, Kolar, and
Rodgers. The five held two other meetings shortly thereafter.
Kolar and Phillabaum also gave similar descriptions of the
night the arson occurred. They both testified that the five
arsonists met at the Greenlake Bar & Grill in Seattle on the
night of May 20, 2001. After midnight, the group drove to the
Center for Urban Horticulture on the UW campus. Waters
acted as a lookout, hiding in nearby bushes with a police scan-
ner and walkie-talkie. The remaining four arsonists carried the
incendiary devices to the Center for Urban Horticulture. Kolar
cut into a window, after which Rodgers and Solondz climbed
in and set the devices. The arsonists then returned to Waters,
and they all drove away. Some time after 3 a.m., the incendi-
ary devices ignited, starting a fire that would destroy the
building.
The government was able to corroborate some of this testi-
mony through another witness, Robert Corrina. For example,
both Phillabaum and Kolar testified that Waters was in charge
of obtaining a car that they would use for the arson. Waters
told them that she would have a “distant, untraceable” relative
rent a car for her. Corrina was that relative. He and Waters
were cousins and, at the time of the UW arson, Waters was
living in Corrina’s basement in Olympia.
Corrina testified that on May 19, 2001, his wife rented a car
at Waters’ request. The next evening, Waters complained of
abdominal pains. She and Solondz left in the rental car, pur-
portedly to go to the hospital. Waters did not return until
Monday, May 21. She told Corrina that they had been unable
to find an emergency room in Olympia and had driven to
14108 UNITED STATES v. WATERS
Seattle. Records obtained from the car rental company indi-
cated that the car was returned sometime before 6:30 a.m. on
May 21. The records also indicated that the car had been
driven 237 miles, a distance sufficient to cover a roundtrip
between Olympia and Seattle.
Waters’ defense was that she was being set up by Philla-
baum and Kolar, both of whom she claimed held grudges
against her. She offered little in the way of an alibi and was
unable directly to contradict much of the testimony against
her. Instead, she focused on highlighting discrepancies in the
government’s case and attacking the FBI’s investigation.
Much of Waters’ defense was spent trying to convince the
jury that she did not agree with ELF’s tactics. She testified
that she was “absolutely not” involved in the UW arson
because it was “very dangerous to human lives,” and she felt
“very strongly about not hurting people in any way.” Waters
also called a number of character witnesses in her defense.
These witnesses generally agreed that Waters was kind,
peaceful, and responsible. They included an Assistant Attor-
ney General for the State of Washington, Waters’ former col-
lege professors, a mother whose children Waters had babysat,
and some who had worked with Waters during the making of
a documentary film. They testified that Waters was not vio-
lent and never advocated violence, that she was full of “integ-
rity” and “peacefulness,” and that she was “extremely
ethical.”
After hearing the above testimony, the jury returned a ver-
dict finding Waters guilty of two counts of arson and dead-
locked on five other charges. She was later sentenced to six
years in prison. She filed a timely appeal, and now raises a
number of challenges to the conduct of her trial.
II.
We begin by reviewing Waters’ challenges to the district
court’s evidentiary rulings. We review a district court’s evi-
UNITED STATES v. WATERS 14109
dentiary rulings for an abuse of discretion and its interpreta-
tion of the Federal Rules of Evidence de novo. United States
v. Yida, 498 F.3d 945, 949 (9th Cir. 2007). We also review de
novo whether a district court’s evidentiary rulings violated a
defendant’s constitutional rights. United States v. Bahamonde,
445 F.3d 1225, 1228 n.2 (9th Cir. 2006).
A.
Waters first contends that the district court erred when it
barred her from introducing evidence of government miscon-
duct. She argues that government agents conspired to conceal
exculpatory evidence from her, and she asserts that her due
process rights were violated when the district court prohibited
her from presenting this theory of the case to the jury.
Waters’ theory of government misconduct stems from
Kolar’s misidentification of Waters at her initial interview
with the government. At that interview, as memorialized by
the FBI agents’ notes, Kolar definitively identified Rodgers as
a participant in the robbery, and tentatively identified the
other participants as “Capitol Hill girl,” her “punk boyfriend,”
and “Crazy Dan.” It is undisputed that none of these nick-
names referred to Waters.
The FBI agents’ official report of Kolar’s interview took
more than a month to prepare. In the interim, Kolar came for-
ward with Waters’ name. When the FBI agents finalized their
report, they did not disclose the nicknames that Kolar had
originally provided to them, nicknames that conflicted with
Kolar’s subsequent statement that Waters was involved.
Instead, their report stated only that Kolar had originally iden-
tified the arsonists as herself, Rodgers, and “a few other indi-
viduals.”
As discovery proceeded in Waters’ case, the government
first produced the FBI’s report of Kolar’s interview. It took
another four months for the government to produce the
14110 UNITED STATES v. WATERS
agents’ notes from the interview. Only after this belated pro-
duction of the agents’ notes did Waters learn for the first time
that in her initial interview with the FBI Kolar had given a list
of participants that did not include Waters, rather than merely
failing to identify her as among other, unnamed participants.
The government claimed that the agents had not included
the nicknames in their report because Kolar had only been
certain of Rodgers’ participation at the interview, and had
been “thinking out loud” when she provided the nicknames.
Waters, however, believed that the FBI had intentionally
omitted the nicknames to conceal the discrepancy in Kolar’s
statements. She therefore moved to dismiss the indictment for
government misconduct. Because the Assistant United States
Attorney (“AUSA”) who handled her prosecution had partici-
pated in Kolar’s initial interview, Waters also sought to have
him disqualified from the case.
The district court denied both Waters’ motion to dismiss
the indictment and her motion to disqualify the AUSA. At the
same time, it granted an in limine motion brought by the gov-
ernment, restricting Waters from arguing that she was the vic-
tim of government misconduct or a conspiracy to conceal
exculpatory evidence. Waters was allowed to, and did, ques-
tion the testifying agents about the quality of their work, and
about the discrepancy between their notes and the report of
Kolar’s interview.
On appeal, Waters argues that she should have been
allowed to present her evidence of government misconduct to
the jury. She also argues that she should have been allowed
to implicate the prosecutor, who was present at Kolar’s initial
interview, in the government misconduct. She asserts that the
district court’s refusal to let her present this evidence violated
her due process rights.
[1] We see no error in the district court’s evidentiary rul-
ing. A district court has discretion under Federal Rule of Evi-
UNITED STATES v. WATERS 14111
dence 403 to exclude evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by consider-
ations of undue delay, waste of time, or needless presentation
of cumulative evidence.” Fed. R. Evid. 403. We cannot say
that the balance reached by the trial court in this case was an
abuse of discretion.
[2] To begin with, the probative value of Waters’ evidence
of a government conspiracy was quite low. While “attack[ing]
the reliability of [an] investigation” is an important defense
tactic, see Kyles v. Whitley, 514 U.S. 419, 446 (1995),
Waters’ evidence of a larger government conspiracy was
highly speculative. At the time of trial, it consisted entirely of
the discrepancy between the FBI report and Kolar’s statement.2
There would be little to gain in encouraging the jury to specu-
late based upon such a small omission.
[3] In contrast, the downside of encouraging such specula-
tion would be substantial. Allowing Waters to argue that she
was the victim of a government conspiracy ran the risk of cre-
ating a mini-trial about Kolar’s initial interview, the creation
of the FBI’s interview report, the government’s discovery
responses, and the prosecution’s preparation of its case. Fur-
ther, allowing Waters to implicate the prosecutor in her theory
would have significantly prejudiced the government’s ability
to present its case — fomenting in the jury a distrust of the
government’s representative — with no corresponding benefit
to the probative value of Waters’ theory.
2
Waters attempts to buttress her misconduct claim by arguing that Kolar
lied about the chain of custody of a folder of anarchist documents that she
provided to the FBI after her initial interview. She contends that Kolar’s
misstatement is additional evidence that the government countenanced the
fabrication of evidence in an attempt to convict Waters. The evidence that
Kolar was not entirely forthcoming about the folder, however, was never
presented to the district court. As discussed below, we are unable to con-
sider this new evidence on direct appeal. See infra, n.3.
14112 UNITED STATES v. WATERS
The district court’s ruling allowed Waters to argue the sub-
stance of her case without risking the prejudice that her specu-
lative theory would have created. Waters questioned the FBI
agents at length about the discrepancies between Kolar’s
interview and the FBI’s report. Waters even suggested to the
jury in closing argument that the FBI might have “falsif[ied]”
the report. This was an acceptable balance. Cf. United States
v. Hankey, 203 F.3d 1160, 1174-75 (9th Cir. 2000) (affirming
exclusion of testimony that police had committed misconduct
because “the defense was able to present the bulk of the . . .
argument to the jury” (emphasis in original)).
Given that the district court’s evidentiary ruling was well
within its discretion, we reject Waters’ attempts to “constitu-
tionalize” her claims. While the Constitution certainly affords
a criminal defendant “a meaningful opportunity to present a
complete defense,” Holmes v. South Carolina, 547 U.S. 319,
324 (2006), that right is not without limits. Rather, “the Con-
stitution permits judges to exclude evidence that is repetitive
. . . , only marginally relevant or poses an undue risk of
harassment, prejudice, [or] confusion of the issues.” Id. at
326-27 (internal quotation marks omitted); see also id. at 326(“[W]ell-established rules of evidence permit trial judges to
exclude evidence if its probative value is outweighed by cer-
tain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury.”).
[4] Simply put, Waters “cannot transform the exclusion of
this evidence into constitutional error by arguing that [s]he
was deprived of [her] right to present a defense. The right to
present a defense is clearly fundamental, but . . . ‘the accused
. . . must comply with established rules of procedure and evi-
dence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.’ ” United States v. Per-
kins, 937 F.2d 1397, 1401 (9th Cir. 1991) (quoting Chambers
v. Mississippi, 410 U.S. 284, 302 (1973)). Given that Waters
was able to present the substance of her factual innocence the-
ory, we conclude that the district court’s evidentiary ruling
UNITED STATES v. WATERS 14113
achieved the proper balance. Accordingly, we find no consti-
tutional error.
B.
Waters next objects to the district court’s decision to admit
a folder of “anarchist literature” at her trial. She contends that
the literature was far more prejudicial than probative of any
material fact, and that it should have been excluded under
Federal Rule of Evidence 403.
The government obtained the folder of documents from
Kolar, who claimed that Waters gave it to her sometime after
the UW arson. Consistent with this testimony, the folder (but
none of its contents) bore Waters’ fingerprints and a note in
her hand that said, “Hey, WOMAN! Here’s some stuff to read
that I was telling you about. We’ll hang out soon. [Heart] —
B.”
Waters admitted to giving Kolar a folder of articles, but
claimed that the articles she gave Kolar were about “women
and activism and vegetarianism,” not anarchist political the-
ory. The articles themselves did not have Waters’ fingerprints,
although some bore fingerprints from Solondz and Kolar.
The government contends that the articles were properly
admitted under a number of different theories of relevancy.
First, it contends that the articles established an “association”
between Waters and Kolar. Second, it contends that the arti-
cles were relevant because one of them mentioned the UW
arson. Finally, it asserts that the articles were relevant to rebut
the character evidence that Waters introduced in her defense.
[5] We do not find the articles to be particularly probative
of any of these theories. The folder, which was found in
Kolar’s possession and bore Waters’ handwritten note and
fingerprints, established that Kolar and Waters were friends;
the articles were unnecessary for that purpose. And, while one
14114 UNITED STATES v. WATERS
article mentioned the UW arson, it did so in a brief blurb that
occupied less than one-tenth of one page, out of a total of 212
pages of articles.
As for the government’s contention that Waters’ choice of
reading material is probative of her participation in the UW
arson, we have repeatedly expressed our discomfort with such
inferences. In United States v. Giese, 597 F.2d 1170 (9th Cir.
1979), for example, the government offered a book entitled
From the Movement Toward Revolution against a defendant
who had been accused of bombing two Navy recruiting cen-
ters in opposition to the Vietnam War. Id. at 1174, 1184-93.
Although we affirmed the district court’s decision to admit
the book into evidence, we emphasized the narrow reach of
our holding. Id. at 1185 (“[W]e wish to emphasize that we are
not establishing a general rule that the government may use
a person’s reading habits, literary tastes, or political views as
evidence against him in a criminal prosecution.”).
Our opinion distinguished “between the book as a physical
object which bore certain fingerprints and the book as a work
of literature which contained a particular message.” Id. at
1185. We emphasized that the book was initially offered only
for the fingerprints it contained, and that “[d]uring the govern-
ment’s case-in-chief not a single word was said by the prose-
cutors or by any government witness regarding the book’s
contents.” Id. Only after the defendant discussed 18 books
that he claimed “reflected his left-wing but non-revolutionary
political views” did the government gain the right to impeach
him with the book’s contents. Id. at 1189.
Here, the government did not differentiate between the
folder as a physical object and the content of the articles it
contained. The government introduced the articles as part of
its case in chief, having Kolar read select passages for the
jury. Although the jury heard of the fingerprints, the content
of the articles received far more attention.
UNITED STATES v. WATERS 14115
[6] Although we do not hold that the articles were neces-
sarily inadmissible for any purpose, we observe that a defen-
dant’s choice of reading material will rarely have a
particularly significant probative value. Thus, attempts to use
such evidence against a defendant must be viewed and
reviewed with a careful and skeptical eye. See United States
v. Curtin, 489 F.3d 935, 956 (9th Cir. 2007) (en banc) (noting
difficulty with admitting literature against a criminal defen-
dant, and concluding that, while literature may be relevant to
intent, its relevancy depends upon the particular facts of the
case).
[7] We believe that an appropriately skeptical eye would
have excluded the articles from Waters’ trial, or at least lim-
ited the articles that were provided to the jury. In contrast to
the article’s slight probative value, their content was problem-
atic on many levels. To begin with, the foundation for their
admission was weak. Kolar could not positively state that the
articles in the folder were the articles that Waters had pro-
vided her; instead, she testified that, after glancing at the
folder, she placed it in a box and never looked at it again
before producing it to her lawyer.3 Waters testified that the
articles introduced into evidence were not the articles she
3
After the district court entered its judgment, Kolar’s lawyer came for-
ward and told the government that Kolar’s statements about the chain of
custody of the folder were not entirely accurate. Initially, Kolar told the
FBI that she had put the folder in a plastic tub, where it sat undisturbed
until she produced it to her lawyer. It was later disclosed, however, that
a friend of Kolar’s removed the tub from Kolar’s house after the FBI made
its first arrests in this case. Kolar’s lawyer subsequently obtained the tub
from this friend, and returned it to Kolar for a brief period, before he ulti-
mately produced it to the government.
Waters contends that this admission destroys the chain of custody of the
documents and is further evidence of a conspiracy to frame her for the
arson. We are unable, however, to consider this new evidence on appeal.
See Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1511
n.5 (9th Cir. 1994) (“Facts not presented to the district court are not part
of the record on appeal.”); Fed. R. App. P. 10. Waters must first present
this evidence to the district court before we may consider it.
14116 UNITED STATES v. WATERS
gave Kolar. In addition, there was no evidence that Waters
ever read the articles. In fact, the lack of her fingerprints on
the articles suggests that she did not.
[8] More importantly, however, the articles were highly
prejudicial. While most espoused anarchist political theory, a
number advocated violence in no uncertain terms. Many of
the articles referred to deriving a disturbing joyfulness from
acts of destruction, glorifying actions such as rioting and loot-
ing. They included phrases like “[i]n the heart of a riot one
can catch a glimpse of the spirit of the revolt without a price,”
and references to the “glee of the looter” and the “festive
atmosphere in the midst of the battle with the forces of the
looter.” One article described “bashing in the skull of society”
as “an intense pleasure . . . to be savored.”
Other articles explicitly advocated the destruction of soci-
ety, encouraging readers to “com[e] together to destroy all
domination,” and advocating for a “strong-willed revolt aimed
at developing a revolutionary project that can destroy this
society and its institutions.” Perhaps the most problematic
article was entitled “Beyond the E.L.F.” It condemned the
“westernized way of life,” and emphasized the need for “guer-
rilla tactics in the form of economic sabotage and beyond.” It
suggested that anarchists “choos[e] targets that have the most
impact,” such as “symbolic targets that if destroyed would
place a major blow to the false reality [of U.S. society].” It
concluded: “Think big. Wall Street, the stock market, Statue
of Liberty, U.S. Capitol, . . . Disneyland, . . . government
agencies . . . . Realize the difference between pulling up an
acre of [genetically engineered] crops and destroying Mon-
santo. . . . The difference between spray paint and fire.”
[9] These passages are highly prejudicial, and even if the
record demonstrated an adequate analysis by the district court
we would be inclined to hold that admitting them was an
abuse of discretion. Their repugnant and self-absorbed
embrace of destruction is likely to have swayed jurors’ emo-
UNITED STATES v. WATERS 14117
tions, leading them to convict Waters not because of the facts
before them but because she represented a threat to their own
values. We need not reach this question, however, because the
district court did not properly exercise its discretion. The dis-
trict court admitted the articles without ever reviewing them.4
Our case law establishes that this was error.
The district court’s admission of the documents is con-
trolled by our en banc decision in Curtin, which involved the
prosecution of a man for traveling across state lines with the
intent to engage in a sexual act with a minor. When the defen-
dant was arrested, his “personal digital assistant” was found
to contain “in the form of text over 140 stories about adults
having sex with children.” 489 F.3d at 938. The government
sought to introduce the stories into evidence in order to estab-
lish Curtin’s intent to engage in sexual acts with what he
believed was a 14-year old girl. Id. at 939-40.
The district court allowed the government to introduce five
of the stories into evidence, but it appears that no one — nei-
ther the district judge nor the attorneys — had read the stories
in their entirety. See id. at 957, 958 n.9. Only during en banc
proceedings did this court discover that, “[l]urking in unread
paragraph 9 of . . . Exhibit 7C,” was a “graphic description”
of a young girl performing acts of bestiality. Id. at 957. As the
4
The record does not definitively establish that the district court never
reviewed the articles. It does strongly suggest, however, that the court did
not. When considering Waters’ motion to exclude the articles, Waters’
counsel noted that the court had not reviewed the documents. He pointed
out that “the government hasn’t brought them into court so the court can
see them all, and for the court to go through and make its own determina-
tion as to what’s relevant and what’s not.” This statement was not chal-
lenged. At trial, when the defense renewed its objection to the materials,
the court gave no indication that it had read the articles.
Although the record does not expressly indicate whether the district
court read the articles, at oral argument before this court, the government
confirmed what the record suggests — that the district judge had not
reviewed them.
14118 UNITED STATES v. WATERS
en banc court observed, “[t]he acts described are enough to
sour the stomach. Under no circumstances was this part of
Exhibit 7C admissible with respect to any issue in this case.
Had the district court read Exhibit 7C, the court would no
doubt have spotted this excrescence and required that it be
edited out of the exhibit as both irrelevant and dangerously
prejudicial.” Id.In light of this discovery, the en banc court held that the
district court was “required to have read every word of these
stories when exercising its balancing discretion pursuant to
Rule 403 to determine whether their potential for undue preju-
dice substantially outweighed their probative value.” Id. at
957. It made this a requirement for all district courts when
performing the 403 balancing test. See id. at 958 (“[W]e hold
as a matter of law that a court does not properly exercise its
balancing discretion under Rule 403 when it fails to place on
the scales and personally examine and evaluate all that it must
weigh.”).
[10] Our decision in Curtin controls this case. The district
court had the responsibility to read every page of the articles
in order properly to understand their contents before ruling on
their admissibility. Its failure to do so means that it could not
have properly weighed the impact of the articles under Rule
403. Accordingly, we hold that the district court’s admitting
the folder of anarchist literature constituted an abuse of dis-
cretion.
C.
Waters next contends that the district court erred when it
denied her request to show the jury a documentary film that
Waters produced before and during the time period of the UW
arson. The film, entitled Watch, documented a peaceful pro-
test against a clear-cutting project in Randle, Washington.
Waters produced and filmed the video herself, beginning in
1999 and continuing for a number of years. She offered it into
UNITED STATES v. WATERS 14119
evidence to establish that she was devoted to peaceful means
of protest, and to rebut the prosecution’s evidence suggesting
that she identified with ELF’s tactics.
[11] Assessed independently, whether the district court’s
decision to exclude the video was an abuse of discretion pres-
ents a close question. Many of the video’s facts came out dur-
ing the course of trial, and a number of Waters’ character
witnesses testified about her role in the documentary. Thus,
although she was unable to show the jury the video, she was
able to present the substance of her defense.
[12] In light of the district court’s decision to allow the
anarchist literature into evidence, however, excluding the
video was certainly an abuse of discretion. The district court’s
rulings allowed the government to rely on “other acts” evi-
dence to establish that Waters identified with ELF’s goals and
tactics, while prohibiting Waters from rebutting that evidence
with evidence that demonstrated her commitment to the val-
ues she claimed to hold. These rulings, in combination,
assured that the jury would be provided with a one-sided pic-
ture of Waters. The jury saw her connected to violent anar-
chist propaganda that it may have had a visceral reaction to,
while it was prevented from viewing evidence that would
paint a contrasting picture of Waters as a person. Given the
imbalance in the evidence that resulted from the district
court’s rulings, we hold that the district court abused its dis-
cretion when it excluded the video in these circumstances.
D.
[13] The final evidentiary error Waters raises is the district
court’s decision to exclude Waters’ out-of-court statements to
her cousin, Robert Corrina. After she was contacted by the
FBI, Waters called Corrina to inform him that the FBI might
interview him. During this conversation, Waters told Corrina
that she was innocent and that he should tell the FBI the truth.
At her trial, Waters attempted to introduce these statements
14120 UNITED STATES v. WATERS
into evidence to show her lack of a guilty mindset, but the dis-
trict court excluded the statements on hearsay grounds. See
Fed. R. Evid. 801.
[14] The district court’s application of Rule 801(a) was
only half correct. The first part of Waters’ statement — that
she was innocent — is clearly hearsay, and was therefore
properly excluded under Rule 801(a). The second part, how-
ever — Waters’ admonition to Corrina that he should “tell the
truth” — does not fall within the definition of hearsay. “Tell
the truth” is an imperative and not an assertion of fact. It
therefore does not fall within the meaning of “statement” in
Rule 801(a) and cannot be hearsay, because a nonassertion
cannot have been offered to prove the truth of the matter
asserted. See United States v. Hayes, 369 F.3d 564, 568 (D.C.
Cir. 2004) (“The imperative ‘tell the truth’ does not expressly
assert anything.”). Accordingly, we hold that the district court
erred when it prevented Corrina from testifying to the fact that
Waters told him to tell the truth.
E.
[15] Given that the district court made a number of errone-
ous evidentiary rulings, we must determine whether the errors
were harmless. See United States v. Liera, 585 F.3d 1237,
1244 (9th Cir. 2009). The government bears the burden of
proving harmlessness, and must demonstrate that “it is more
probable than not that the error[s] did not materially affect the
verdict.” Id. While we doubt that the erroneous exclusion of
Waters’ statement to her cousin had a substantial impact on
her trial, the remaining two errors were sufficiently prejudi-
cial to require reversal.5
5
Although Corrina did not testify about the precise statements that the
district court excluded, he did testify that Waters never asked him to lie.
Moreover, Waters described the conversation in her own testimony and
said, without objection from the government, that she told Corrina, “I am
innocent and just tell the truth.” Thus, even though the exact statements
were excluded, their substance was presented to the jury.
UNITED STATES v. WATERS 14121
The government has not carried its burden of convincing us
that the admission of the anarchist literature was harmless. As
we have already described, the anarchist literature was highly
prejudicial. It contained a number of inflammatory statements
glorifying violence, advocating destruction, and calling for an
end to society. It endorsed attacks on symbols of American
culture — symbols that many jurors likely held dear — such
as the Capitol Building, the Statue of Liberty, and Disneyland.
Rather than contributing to any issue in the case, it played to
the jury’s emotions, encouraging it to convict because it
believed Waters held loathsome views that threatened the
jurors’ way of life.
No doubt recognizing the impact these articles would have
on the jury, the prosecutor emphasized this prejudicial inter-
pretation of the articles during his closing argument. Impor-
tantly, the prosecutor did not emphasize the government’s
theory that the articles showed a connection between Waters
and Kolar, nor did he argue that the articles demonstrated a
shared conspiratorial objective. Rather, the prosecutor argued
that the articles represented Waters’ values: “[c]learly she
thinks these [articles] are important.” He highlighted the fact
that she had selected the specific articles that were in the
folder, inviting the jury to convict not because of the articles’
existence, but because of their content: “I didn’t choose these
articles to put in here. She did. [¶ ] What are these articles
about? They are anarchist articles. The only way to really
save the earth is to destroy capitalism. The Defendant chooses
to select these articles and send them to her co-conspirator
and say let’s talk about them . . . .”
[16] We have previously found the admission of violent
texts, such as the anarchist material at issue here, prejudicial
enough to warrant reversal. In United States v. Ellis, 147 F.3d
1131 (9th Cir. 1998), for example, we reversed a conviction
after the government introduced a copy of “The Anarchist’s
Cookbook” into evidence. Id. at 1136 (“The government’s
reliance on this evidence created a grave danger that the
14122 UNITED STATES v. WATERS
defendant’s guilt was established not by evidence relevant to
the particular offense being tried, but rather by evidence that
was wholly unrelated to these offenses.” (internal quotation
marks omitted)). In this case, as in Ellis, materials advocating
violence, not to mention the overthrow of government, were
“likely to elicit a response from jurors that cause[d] them to
reach a conclusion based on emotion rather than the evidence
presented.” Id.[17] The erroneous exclusion of the Watch video com-
pounded this error, depriving Waters of her opportunity to
demonstrate that her purported belief in non-violence was
genuine and to rebut the government’s contrary showing. We
are convinced that, “[t]aken together, the wrongful admission
of [the government’s evidence] and the erroneous exclusion
of [the defense evidence] left the jury with only half the pic-
ture.” Parle v. Runnels, 505 F.3d 922, 932 (9th Cir. 2007).
[18] We find it probable that the district court’s evidentiary
errors had a material effect on Waters’ verdict. Accordingly,
her conviction must be reversed. See Liera, 585 F.3d at 1244.
III.
Waters also raises two challenges to her conviction based
upon her assertion that the district court inappropriately
closed her pretrial proceedings to the public. First, Waters
claims that the district court committed structural error by
closing an “omnibus” pretrial hearing to the public. Second,
she argues that the district court erred by effectively closing
jury selection. We review these public-trial claims claim de
novo. United States v. Shryock, 342 F.3d 948, 974 (9th Cir.
2003).
A.
The omnibus pretrial hearing took place on January 29,
2008. At the closed hearing, Waters was arraigned on the
UNITED STATES v. WATERS 14123
Fourth Superseding Indictment.6 The district court also
addressed a number of administrative matters at the hearing,
including motions in limine. The district court closed the hear-
ing to the public, although Waters’ life partner was allowed
to attend.
Waters objected to the closure, noting that there were mem-
bers of the public and of the press who wanted to observe the
hearing, but the district court refused to open it. The only
explanation the court offered was the statement that the hear-
ing was “closed because that’s the type of hearing that it is.”
The court also mentioned its desire “to get the matter ready
to go to trial without any interruptions.”
[19] Waters contends that the closed hearing violated her
Sixth Amendment right to a public trial. She asserts that the
error is structural and must result in automatic reversal. We
agree with Waters that the pretrial hearing should have been
conducted in open court, although we do not agree that the
error was structural.
As a preliminary matter, we must determine if Waters’
public-trial right attached to the hearing at issue. Although the
Sixth Amendment refers to a “public trial,” the right encom-
passes more than the trial itself. “The right to a public trial is
not limited to issues that arise after a jury is sworn or times
when the jury is present.” Rovinsky v. McKaskle, 722 F.2d
197, 201 (5th Cir. 1984) (en banc). Rather, it “extends at least
to those pretrial hearings that are an integral part of the trial,
such as jury selection and motions to suppress evidence.” Id.We have previously stated that the public-trial right
attaches to those hearings whose subject matter “involve[s]
6
Before the district court, Waters argued that her arraignment should
have been in open court. In her opening brief, however, she did not renew
this argument, and has therefore waived it. See Harger v. Dep’t of Labor,
569 F.3d 898, 904 n.9 (9th Cir. 2009).
14124 UNITED STATES v. WATERS
the values that the right to a public trial serves.” United States
v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003). Those values
are:
(1) to ensure a fair trial, (2) to remind the prosecutor
and judge of their responsibility to the accused and
the importance of their functions, (3) to encourage
witnesses to come forward, and (4) to discourage
perjury.
Id. (quoting Peterson v. Williams, 85 F.3d 39, 43 (2d Cir.
1996)).
[20] It is well established that the Sixth Amendment right
to a public trial attaches to suppression hearings. The
Supreme Court has held as much: “The[ ] aims and interests
[of the right to a public trial] are no less pressing in a hearing
to suppress wrongfully seized evidence. . . . [S]uppression
hearings often are as important as the trial itself.” Waller v.
Georgia, 467 U.S. 39, 46 (1984). Not only is a motion to sup-
press a fundamentally important stage of the trial, but the pub-
lic also has an interest in having allegations of government
misconduct heard in an open forum.
The need for an open proceeding may be particularly
strong with respect to suppression hearings. A chal-
lenge to the seizure of evidence frequently attacks
the conduct of police and prosecutor. As the Court
of Appeals for the Third Circuit has noted, “[s]trong
pressures are naturally at work on the prosecution’s
witnesses to justify the propriety of their conduct in
obtaining” the evidence. The public in general also
has a strong interest in exposing substantial allega-
tions of police misconduct to the salutary effects of
public scrutiny.
Id. at 47 (internal citation omitted).
UNITED STATES v. WATERS 14125
[21] The hearing in this case was not technically a suppres-
sion hearing. Nevertheless, we believe that the hearing impli-
cated the values outlined above, and we therefore conclude
that Waters’ hearing should have been open to the public.
[22] One major issue the district court heard at the omni-
bus hearing was Waters’ motion to dismiss the indictment for
government misconduct. In many respects, this motion resem-
bled a motion to suppress evidence. Waters’ motion directly
challenged the tactics the government used in investigating
her case. Cf. Ivester, 316 F.3d at 960 (affirming closure of
pretrial hearing based in part on fact that the defendant “did
not attack the government”). The hearing would therefore
have benefitted from the “salutary effects of public scrutiny.”
Waller, 467 U.S. at 47. Opening the hearing to the public
might have encouraged other witnesses to come forward and
discouraged perjury. Further, as with any allegation of mis-
conduct, government agents must be reminded of their “re-
sponsibility to the accused and the importance of their
function.” Id. Last but not least, the public has an interest in
learning of all allegations of government misconduct, includ-
ing prosecutorial misconduct.
Having concluded that Waters’ Sixth Amendment public-
trial rights attached to her pretrial hearing, we hold that the
district court erred by closing the hearing to the public. The
Supreme Court recently articulated the standard that governs
whether a hearing should be closed:
The party seeking to close the hearing must advance
an overriding interest that is likely to be prejudiced,
the closure must be no broader than necessary to
protect that interest, the trial court must consider rea-
sonable alternatives to closing the proceeding, and it
must make findings adequate to support the closure.
Presley v. Georgia, 130 S. Ct. 721, 724 (2010) (per curiam).
14126 UNITED STATES v. WATERS
Here, the government did not seek to close the hearing and
advanced no interest that would be prejudiced by closure.
Likewise, the district court provided only conclusory state-
ments in support of its decision to close the hearing, stating
that the hearing would be closed “because that’s the type of
hearing it is,” and expressing the need to “get the matter ready
to go to trial without any interruptions.” While “[t]he right to
a public trial has always been interpreted as being subject to
the trial judge’s power to keep order in the courtroom,”
United States v. Hernandez, 608 F.2d 741, 747 (9th Cir.
1979), there is no indication that the public’s presence would
have had any disruptive effect on the hearing. Further, the dis-
trict court failed to consider any alternatives to closing the
courtroom.
[23] Waters argues that the closure of the hearing should
be considered structural error, resulting in automatic reversal
of her conviction. We disagree. In the context of suppression
hearings, the Supreme Court has stated that while “the defen-
dant should not be required to prove specific prejudice in
order to obtain relief,” automatic reversal is not required.
Waller, 467 U.S. at 49. Rather, “the remedy should be appro-
priate to the violation.” Id. at 50. In Waller, for example, the
Supreme Court did not reverse the defendant’s conviction, but
remanded for “a new, public suppression hearing.” Id.[24] Were we otherwise affirming Waters’ conviction,
deciding what relief Waters is entitled to would be a difficult
question. Her public-trial right in the omnibus pretrial hearing
is doubtless important, but it may have been vindicated by the
public availability of a transcript. See id. (concluding that a
new, public suppression hearing would vindicate the defen-
dant’s Sixth Amendment rights). We need not, however,
decide how to resolve this question at this time. On remand,
the district court should ensure that Waters’ Sixth Amend-
ment rights are protected by conducting any pretrial hearing
on Waters’ allegations of government misconduct, or similar
issues, in public.
UNITED STATES v. WATERS 14127
B.
Waters’ second public-trial claim concerns jury selection in
her case. When jury selection began, the court noted that it
was aware of a concern “about the courtroom being open to
the public,” and assured the parties that the courtroom would
remain open. The procedure the judge used, however, pre-
vented most of the public from observing the jury selection
proceedings. The judge explained that there were many peo-
ple in the venire and that he planned to seat all of them first
and then allow members of the public to fill the remaining
seats. Waters objected, arguing that “if there are too many
jurors and not enough seats for the public, then we need to get
a larger courtroom.” The court rejected Waters suggestion
that they transfer courtrooms, stating that Waters’ request
would “be accommodated the best we can, but we are going
to ask you to let the jury be seated first.”
At a break in voir dire proceedings, Waters’ counsel stated
for the record that “the court had two chairs brought in, and
at the beginning of jury selection three spectators were
allowed in, but . . . there were a large number of people
denied entrance.” Her counsel estimated that between 15 and
25 would-be spectators were not allowed to watch the pro-
ceeding.
Waters raised this claim for the first time after briefing
before this court had been completed. She attributes her tardi-
ness to the Supreme Court’s decision in Presley v. Georgia,
130 S. Ct. 721 (2010) (per curiam), which was decided after
briefing was completed. In Presley, the Supreme Court
reversed a conviction after a single individual was excluded
from the courtroom during voir dire, holding that “trial courts
are obligated to take every reasonable measure to accommo-
date public attendance at criminal trials.” Id. at 725.
Given our disposition of Waters’ other claims, we need not
decide whether the district court’s actions were “reasonable,”
14128 UNITED STATES v. WATERS
or whether Waters waived this claim by failing to raise it in
her opening brief. We emphasize, however, that the right to
a public trial is an important right not only to a criminal
defendant, but also to the public at large. See id. at 724-25. In
cases where public interest is high, reasonableness may
require the court to depart from its normal procedures to
accommodate that interest. Should the issue arise again on
remand, we are confident that, in light of Presley, the district
court will take such measures as are necessary in order to
accommodate the right to a public trial.
IV.
Waters next argues that the district court conducted an
inadequate inquiry into adverse publicity that occurred during
jury deliberations. We review a district court’s actions regard-
ing alleged improper influences on the jurors’ deliberation for
abuse of discretion. United States v. Smith, 790 F.2d 789, 795
(9th Cir. 1986).
The jury began its deliberations on Friday, February 29,
2008. On the morning of Monday, March 3, before the jury
was to resume deliberations following its weekend break, the
local media reported that an arson had just occurred in
Woodinville, Washington. The fire, which targeted houses on
the “Street of Dreams” outside of Seattle, destroyed three
homes and caused approximately $7 million in damages.
Materials left at the fire indicated that ELF was responsible.
Before the jury began deliberating for the day, defense
counsel informed the court that the Woodinville fire had been
a prominent news story and that many news outlets were
reporting that ELF was responsible. Some of the news cover-
age expressly mentioned Waters. Counsel therefore asked the
court to question the jurors individually to determine if any of
them had seen or heard the reports.
UNITED STATES v. WATERS 14129
The court declined to question the jurors individually.
Instead, it assembled the entire jury and asked the following
question:
There’s been a news story this morning on the news
that could possibly influence or affect your delibera-
tions. The Court has instructed you on your duties
and responsibilities as jurors, and admonishing you
as you go home from day to day and all of that.
Any of you now heard anything about this that you
cannot set aside, or it would influence your delibera-
tions here; anybody heard anything that would be
different than the instructions I have given you as to
what evidence you are to take to decide this case?
Anybody that can’t do that?
No juror indicated that the news story would affect her delib-
erations. The court then sent the jury to continue deliberating,
instructing it “to follow the law as I have given it to you and
carry that out and perform that function in that fashion.”
The defense moved for a mistrial because of the news cov-
erage, but the court denied the motion. Defense counsel later
renewed his motion, filing an exhibit with examples of the
news coverage, but the court adhered to its denial.
We must decide if the procedures the court followed were
adequate to address and resolve the risk of prejudice, and
must reverse if we conclude that “the probability of prejudice
arose and was not eliminated.”7 Smith, 790 F.2d at 795 (quot-
7
We have not previously addressed the procedures that a district court
should follow when adverse publicity occurs during deliberations. The
Second Circuit requires district courts to conduct a three-step analysis to
gauge the effect of adverse publicity on a jury:
[F]irst, to determine whether the coverage has a potential for
unfair prejudice, second, to canvass the jury to find out if they
14130 UNITED STATES v. WATERS
ing Silverthorne v. United States, 400 F.2d 627, 644 (9th Cir.
1968)). In doing so, we are cognizant of the fact that a district
court is in a far better position to gauge the impact of adverse
publicity on a jury than we are. In analogous circumstances,
we have cautioned that “[u]nless a trial judge clearly has erred
in his estimation of the action needed to uncover and prevent
prejudice from pretrial publicity, an appellate court should not
intervene and impose its estimate.” United States v. Polizzi,
500 F.2d 856, 880 (9th Cir. 1974).
[25] Nevertheless, we agree with Waters that the district
court’s statements to the jury were inadequate in light of the
highly prejudicial nature of the publicity. Indeed, although
district courts have discretion on these matters “discretion is
not a substitute for duty.” Silverthorne, 400 F.2d at 637. Thus,
when “publicity is great, the trial judge must exercise corre-
spondingly great care in all aspects of the case relating to pub-
licity which might tend to defeat or impair the rights of an
accused.” Id. at 637-38.
The news stories covered an arson committed by the ELF,
the same group of which Waters was accused of being a
member. The stories not only may have caused a juror to
ignore the evidence at trial and convict as an emotional reac-
tion to this latest crime, they may also have suggested to the
jury that there was a link between the arson and Waters.
Indeed, a number of news outlets commented on the connec-
tion between the arson and jury deliberations in Waters’ trial.
have learned of the potentially prejudicial publicity and, third, to
examine individually exposed jurors — outside the presence of
the other jurors — to ascertain how much they know of the dis-
tracting publicity and what effect, if any, it has had on that juror’s
ability to decide the case fairly.
United States v. McDonough, 56 F.3d 381, 386 (2d Cir. 1995). Although
we do not disagree with the Second Circuit’s approach, we do not find it
necessary to adopt a specific protocol at this time.
UNITED STATES v. WATERS 14131
[26] The district court’s statement only minimally
addressed this potential prejudice. It did nothing to determine
whether any juror had read or heard about the news stories,
let alone to determine how, if at all, any juror who knew of
the publicity was affected by it. Instead, the court posed a
general, compound question to the jurors en masse, vaguely
asking whether any juror could not set aside in deliberations
anything learned. In light of the high risk of prejudice caused
by the publicity, we conclude that the “probability of preju-
dice arose” and that the district court’s single, general ques-
tion to the group was insufficient to eliminate it. See Smith,
790 F.2d at 795; see also Polizzi, 500 F.2d at 879 (explaining
in the pretrial publicity context that when there is “substan-
tial” publicity the inquiry “must not simply call for the jurors’
subjective assessment of their own impartiality, and it must
not be so general that it does not adequately probe the possi-
bility of prejudice”).
As a result of the district court’s failure to make adequate
inquiries regarding the news stories, we do not know whether
any juror heard any of the information. If any juror was
exposed to the publicity, we do not know the impact of that
publicity on the juror. Given the high risk of prejudice that
could have been caused by the publicity and our lack of reli-
able information as to the actual impact, we have no choice
but to reverse.
[27] Accordingly, we conclude that the district court’s
inadequate inquiry into this incident constitutes an indepen-
dent ground for reversal.8
8
The district court’s inadequate inquiry was exacerbated by the court’s
later order prohibiting all contact between counsel and the jurors. With
this no-contact order in place, Waters’ counsel was unable to determine
whether any juror was affected by the adverse publicity. In light of our
disposition of this case, we need not decide if the district court erred in
issuing its no-contact order. Because we reverse Waters’ conviction, how-
ever, we also vacate the order.
14132 UNITED STATES v. WATERS
V.
Finally, Waters claims that the district court erred when it
denied her motion for the production of surveillance materi-
als. We review this claim for abuse of discretion. United
States v. Bissell, 634 F.2d 1228, 1233 (9th Cir. 1980).
Waters bases her request for the production of surveillance
materials exclusively on 18 U.S.C. § 3504. That section
requires the government to disclose whether or not a party
was the victim of illegal surveillance. See 18 U.S.C. § 3504(“[U]pon a claim by a party aggrieved that evidence is inad-
missible because it is the primary product of an unlawful act
. . . the opponent of the claim shall affirm or deny the occur-
rence of the alleged unlawful act.”).
[28] A party’s right to learn of illegal surveillance is not
absolute. “[B]ecause responding to ill-founded claims of elec-
tronic surveillance would place an awesome burden on the
government, a claim of government electronic surveillance of
a party must be sufficiently concrete and specific” before the
government must respond. United States v. Tobias, 836 F.2d
449, 452-53 (9th Cir. 1988). And when the government does
respond, “the specificity . . . of the government’s response is
measured by the specificity and strength of the witness’s alle-
gations.” In re Grand Jury Investigation, 437 F.3d 855, 857
(9th Cir. 2006) (per curiam). A “general or unsupportable
claim requires only a general response.” Id. (internal quota-
tion marks and citation omitted).
Waters’ request for disclosure of surveillance materials was
neither concrete nor specific. Her motion relied only on gen-
eralized statements about government surveillance programs
and included no direct evidence that suggested that she was
subjected to warrantless wiretapping or other forms of illegal
surveillance.
In light of the general nature of Waters’ showing, we can-
not say that the district court abused its discretion in denying
UNITED STATES v. WATERS 14133
Waters’ motion. The government’s responsive pleadings
asserted that it had or would soon produce “all of the surveil-
lance materials obtained, or received, by the various agencies
involved in this investigation during the course of the investi-
gation.” The government also represented that “[n]o other
electronic surveillance was conducted or assembled by any-
one connected with this investigation.”
[29] The government’s response was commensurate with
Waters’ showing. Accordingly, we find no error in the district
court’s ruling.
VI.
While the evidence against Waters may have been suffi-
cient to sustain her conviction, our review of the record does
not leave us convinced that her conviction was fairly
obtained. The judgment of the district court is therefore
reversed and the case remanded for further proceedings con-
sistent with this opinion. The district court’s no-contact order
is vacated.
REVERSED and REMANDED.