United States v. Tony

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 27, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2182
BRIAN TONY,
Defendant - Appellant.
_________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
( D.C. No. 1:16-CR-02904-MV-1 )
_________________________________
Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant-
Appellant.
Joseph M. Spindle, Assistant United States Attorney (John C. Anderson,
United States Attorney, and Dustin C. Segovia, Assistant United States
Attorney, Las Cruces, New Mexico, on the brief), Albuquerque, New
Mexico, for Plaintiff-Appellee.
_________________________________
Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This appeal is brought by Mr. Brian Tony, who was convicted of
first-degree murder for fatally stabbing Mr. Pat Garcia during a fight.
Before trial, Mr. Tony sought to introduce evidence that Mr. Garcia had
used methamphetamine before the fight. The district court excluded the
evidence, and Mr. Tony argues that the evidence should have been allowed
into evidence. In our view, the district court excluded the evidence for a
reason unsupported by the record. We thus reverse and remand for a new
trial. 1
I. The district court excluded the methamphetamine evidence on the
ground that Mr. Tony failed to identify a proper purpose.
Mr. Tony admitted that he had killed Mr. Garcia. But Mr. Tony
denied premeditation and asserted self-defense, arguing that he was
protecting himself from Mr. Garcia. Given the assertion of self-defense,
the district court allowed Mr. Tony to present evidence of Mr. Garcia’s
erratic and violent behavior. But Mr. Tony wanted to go further: he wanted
to elicit evidence that Mr. Garcia had reacted erratically and violently
because he was under the influence of methamphetamine. The district court
excluded this evidence under Federal Rule of Evidence 404(b) on the
ground that Mr. Tony had failed to identif y a proper purpose.
1
Mr. Tony also argues that the judge erred by informing the venire
(upon inquiry) that the case was not a death-penalty case. Given our
reversal based on exclusion of the methamphetamine evidence, we need not
reach Mr. Tony’s argument involving the statement to the venire.
2
II. Under the abuse-of-discretion standard, reversal is necessary
when the district court relies on a clearly erroneous
understanding of the record.
We review the exclusion of evidence under the abuse-of-discretion
standard. United States v. Ramone, 218 F.3d 1229, 1234 (10th Cir. 2000).
A court abuses its discretion when relying on a clearly erroneous
understanding of the record. See Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 405 (1990) (“A district court would necessarily abuse its
discretion if it based its ruling on . . . a clearly erroneous assessment of the
evidence.”).
III. The district court abused its discretion by excluding the
methamphetamine evidence based on Mr. Tony’s alleged failure
to identify a proper purpose.
Rule 404(b) prohibits using evidence of other acts “to prove a
person’s character in order to show that on a particular occasion the person
acted in accordance with the character.” Fed. R. Evid. 404(b)(1). But the
rule provides an exception: evidence of other acts may be admitted for
non-propensity purposes. Fed. R. Evid. 404(b)(2).
To invoke this exception, the proponent of the evidence bears a
threshold obligation to tell the court what the purpose is. United States v.
Birch, 39 F.3d 1089, 1093 (10th Cir. 1994). But even if the proponent
identifies a permissible purpose, the evidence may still be inadmissible on
grounds of relevance, unfair prejudice, or necessity of expert testimony.
See Fed. R. Evid. 104(b), 402, 403.
3
The district court excluded the methamphetamine evidence at the
threshold stage, ruling that Mr. Tony had identified no proper purpose for
the evidence. 2 But this ruling is clearly erroneous based on the record. In
responding to the motion in limine, Mr. Tony stated in writing and in court
that he was offering the methamphetamine evidence to show why Mr.
Garcia was acting erratically and violently. This purpose would have been
permissible under Rule 404(b).
In responding to the government’s motion in limine to exclude the
methamphetamine evidence, Mr. Tony argued:
When viewed through a neutral lens, the very evidence
produced by the Government suggests the victim was the first
aggressor in this case. The evidence will support that the alleged
victim was intoxicated on methamphetamine and from the
electrolytes in his system, that he had been under the influence
of methamphetamine at the time of the incident. The Defense
will introduce evidence regarding the effects of
methamphetamine on human behavior. Such evidence will not be
offered for the purpose of proving the alleged victim acted in
conformity with his violent character; rather, pursuant to Rule
404(b), it will be offered for another purpose. There is no
question that the alleged victim was not only habitually armed
2
Mr. Tony also argues that the evidence should have been allowed as
intrinsic evidence. The government argues that Mr. Tony waived this
argument in district court by relying on Rule 404(b). We need not decide
whether Mr. Tony waived the argument. Even if he hadn’t, he would have
forfeited the argument by failing to raise it in district court. United States
v. Tapaha, 891 F.3d 900, 909 n.6 (10th Cir. 2018). When an argument is
forfeited, we ordinarily apply plain-error review. United States v. Battles,
745 F.3d 436, 445 n.9 (10th Cir. 2014). But Mr. Tony does not argue plain
error in this appeal, so we would decline to consider this issue even if it
had not otherwise been waived. United States v. Lamirand, 669 F.3d 1091,
1098–100 n.7 (10th Cir. 2012).
4
with a large sheath knife, he used that very knife to inflict a
potentially mortal wound on the Defendant.
R. vol. I, at 49–50. The government apparently understood this explanation
of the purpose, responding that “the probative value of [Mr. Garcia’s] drug
use to support his ‘violent behavior’ [was] tenuous at best and highly
prejudicial.” Id. at 54.
The district court then considered the issue at a pretrial hearing.
Moments before discussing the motion in limine, the parties addressed the
need for a jury instruction on self-defense. Urging an instruction on self-
defense, Mr. Tony argued that the jury could reasonably find self-defense
based on his efforts to ward off Mr. Garcia’s methamphetamine-fueled
attack:
Your Honor, the – I’d ask the Court to take judicial notice
that meth is one of those drugs that makes people do irrational
and sometimes highly violent things. Your Honor, we – there
will be testimony that the deceased kept – kept fighting with Mr.
Tony continually, and Mr. – the deceased was still alive when
Mr. Tony finally was able to haul himself out of the arroyo after
suffering some rather horrible wounds himself. Your Honor, the
fact that the deceased did have numerous wounds is simply an
indication how violent the fight itself was, how life-threatening
it was to Mr. Tony, also.
Suppl. R. vol. IV, at 15. The government again understood the purpose,
acknowledging that Mr. Tony was offering the methamphetamine evidence
to argue that the victim had acted violently: “What Defense is basically
trying to say is somebody who uses methamphetamine is inherently
violent.” Id. at 21.
5
The court didn’t immediately decide whether it would instruct on
self-defense. The court instead shifted the discussion to the admissibility
of the methamphetamine evidence. With this shift in the discussion, Mr.
Tony did not repeat the purpose offered in his written objection. There was
no need because Mr. Tony had identified this purpose only moments earlier
when arguing that the jury could reasonably find self-defense.
Given the clarity of Mr. Tony’s explanation and the government’s
understanding, the district court relied on a clearly erroneous view of the
record when ruling that Mr. Tony had failed to identif y a permissible
purpose for the methamphetamine evidence.
IV. We cannot affirm on alternative grounds.
This is not to say that the methamphetamine evidence was
admissible, for not all evidence of a witness’s prior drug use is admissible.
Though Mr. Tony identified a proper purpose for the methamphetamine
evidence, it might have been excludable as irrelevant or lacking a
foundation in expert testimony. 3 Fed. R. Evid. 104(b), 402.
If the evidence were inadmissible on any of these grounds, we might
be able to affirm on alternative grounds. But the district court had
3
The evidence might have also been excluded under Rule 403, which
requires balancing the evidence’s probative value against dangers such as
the risk of unfair prejudice. Fed. R. Evid. 403. But when a district court
excludes evidence for reasons other than Rule 403, we may not conduct the
balancing test for the first time on appeal. Sprint/United States Mgmt. Co.
v. Mendelsohn, 552 U.S. 379, 386–87 (2008).
6
discretion to decide whether the evidence was relevant or required expert
testimony, and the court never exercised that discretion. So we can affirm
on alternative grounds only if it would have been an abuse of discretion to
permit introduction of the evidence. See Ashby v. McKenna, 331 F.3d 1148,
1151 (10th Cir. 2003) (“[W]ith respect to a matter committed to the district
court’s discretion, we cannot invoke an alternative basis to affirm unless
we can say as a matter of law that ‘it would have been an abuse of
discretion for the trial court to rule otherwise.’” (quoting Orner v. Shalala,
30 F.3d 1307, 1310 (10th Cir. 1994))).
Under this standard, we consider whether the district court had
discretion to consider the methamphetamine evidence relevant without a
foundation of expert testimony. The government argues that expert witness
testimony was necessary to show that
• Mr. Garcia had been under the influence of methamphetamine
during the fight and
• methamphetamine had caused his aggressive behavior.
The district court had discretion to credit these arguments, but the court
also had discretion to reject them.
The necessity of expert testimony involves the principle of
conditional relevance. Under this principle, a district court may exclude
evidence if the jury could not reasonably find the existence of a
preliminary fact essential to make the evidence relevant. United States v.
7
Platero, 72 F.3d 806, 814 (10th Cir. 1995). Though Mr. Tony had agreed
not to present expert testimony, he might not have needed an expert
witness for a reasonable jury to find that Mr. Garcia had been under the
influence of methamphetamine. Methamphetamine had been found on Mr.
Garcia’s body and in his bloodstream. Together, this evidence supported an
inference that Mr. Garcia was on methamphetamine, and lay witnesses may
have been able to testif y that he was high. So Mr. Tony might not have
needed expert testimony to show that methamphetamine causes erratic,
violent behavior. See United States v. Foote, 898 F.2d 659, 665 (8th Cir.
1990) (“[T]he effects of cocaine addiction on an individual’s mental
prowess were within the jury’s common understanding.”).
The district court ultimately had discretion to either (1) decline to
exclude the evidence before hearing whether a lay witness would have
testified that Mr. Garcia was under the influence of methamphetamine or
(2) allow a lay witness to testif y about the effect of methamphetamine on
Mr. Garcia’s behavior. Given this discretion, we cannot affirm on the
government’s alternative grounds. We thus conclude that the district court
abused its discretion in excluding the evidence based on a clearly
erroneous understanding that Mr. Tony had failed to identif y a permissible
purpose.
8
V. The district court’s error was not harmless.
Like other errors, abuses of discretion may be harmless. See United
States v. Vaughn, 370 F.3d 1049, 1051 (10th Cir. 2004) (“[W]e review [the
defendant’s] evidentiary claims for an abuse of discretion, and if we find
an abuse of discretion, we must determine whether the error was
harmless.”). But premature exclusion of the methamphetamine evidence
was not harmless.
The government bears the burden of showing by a preponderance of
the evidence that the error was harmless. Id. 4 The error would be harmless
only if it did not substantially affect Mr. Tony’s rights. See United States
v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005) (“In non-constitutional
harmless error cases, the government bears the burden of demonstrating, by
4
In some published cases, we have said that criminal defendants
asserting error bear the burden of proving an effect on their substantial
rights. United States v. Anaya, 117 F.3d 447, 448–49 (10th Cir. 1997);
United States v. Mitchell, 113 F.3d 1528, 1532 (10th Cir. 1997); United
States v. Messner, 107 F.3d 1448, 1453 (10th Cir. 1997); United States v.
Arutunoff, 1 F.3d 1112, 1118 (10th Cir. 1993). But both before and after
these cases, we have held that the government bears the burden of showing
harmlessness. See, e.g., United States v. Rivera, 900 F.2d 1462, 1469 n.4
(10th Cir. 1990) (“[T]he government ordinarily has the burden of proving
that a non-constitutional error was harmless.”); United States v. Harrison,
743 F.3d 760, 764 (10th Cir. 2014) (“In non-constitutional harmless error
cases, the government bears the burden of demonstrating . . . that the
substantial rights of the defendant were not affected.” (quoting United
States v. Keck, 643 F.3d 789, 798 (10th Cir. 2011))).
9
a preponderance of the evidence, that the substantial rights of the
defendant were not affected.”).
At trial, Mr. Tony denied premeditation and asserted self-defense.
The government focuses on the assertion of self-defense, arguing that the
error was harmless because Mr. Tony could still urge self-defense based on
Mr. Garcia’s erratic and violent behavior. But the government does not
address how the methamphetamine evidence might have affected Mr.
Tony’s denial of premeditation. Without any argument on premeditation,
the government failed to satisf y its burden on harmlessness. We thus must
reverse and remand for further proceedings.
VI. The appropriate remedy is vacatur of the conviction, not remand
for consideration of the government’s pretrial argument for
exclusion under Rule 403.
Given our need to reverse, we must decide the scope of the remand. 5
Before trial, the government argued in a motion in limine that the
methamphetamine evidence was inadmissible under both Rule 404(b) and
Rule 403. Given the exclusion under Rule 404(b), the court never decided
whether to grant the motion in limine under Rule 403.
5
In his opening brief, Mr. Tony asked twice for a new trial based on
the erroneous exclusion of methamphetamine evidence. Appellant’s
Opening Br. at 3, 39. In one place, Mr. Tony asked us to remand for the
district court to consider the government’s argument under Rule 403. In a
supplemental letter, Mr. Tony reiterated that he is seeking a new trial
(based on the evidentiary error) rather than a remand for consideration of
the issue under Rule 403.
10
The government timely objected under Rule 403 and ordinarily would
be entitled to a ruling on this objection. But the government prevailed on
its other objection, obtaining exclusion of the methamphetamine evidence
under Rule 404(b). Given this ruling, we must consider whether to
• remand for the district court to decide the admissibility of the
methamphetamine evidence under Rule 403 or
• vacate the conviction and remand for a new trial.
Remanding for the district court to consider the motion in limine would be
troublesome for two reasons.
First, the trial took place over two years ago. Deciding the Rule 403
issue now would require the district court to travel back in time and
speculate how it would have ruled over two years ago, before hearing the
trial evidence.
Second, remanding for consideration of the motion in limine would
create a dilemma for the district court, which would have an overwhelming
temptation to rationalize the exclusion of the methamphetamine evidence
under Rule 403. See Dodge v. Cotter Corp., 328 F.3d 1212, 1229 (10th Cir.
2003) (“We decline to entertain the possibility of a remand to the district
court to make specific findings relative to these experts, for we think no
district court would be well positioned to make valid findings given the
overwhelming temptation to engage in post hoc rationalization of admitting
the experts.”).
11
For both reasons, we conclude that the appropriate remedy is vacatur
of the murder conviction rather than remand to consider whether to grant
the motion in limine based on Rule 403. See Ruiz-Troche v. Pepsi Cola of
Puerto Rico Bottling Co., 161 F.3d 77, 88 (1st Cir. 1998) (deciding that
“the fairest course,” when evidence of the victim’s cocaine use was
improperly excluded, was to order a new trial rather than remand for
consideration of other evidentiary objections); see also Estate of Barabin
v. AstenJohnson, Inc., 740 F.3d 457, 465–66 (9th Cir. 2014) (en banc)
(stating that the Court of Appeals would remand for a new trial when the
district court erroneously excluded evidence even if the district court had
failed to address a threshold requirement of admissibility).
We thus reverse with instructions to vacate the conviction on first-
degree murder and to conduct a new trial on this charge.
12