Admirable in personal relationships.
Less so, in criminal trials.
United States v. Fryberg, 2017 WL 1416516 (9th Cir. April 21, 2017), decision
Decision by Judge Graber, joined by Judges Ikuta and Hurwitz.
Facts: Ms. Gobin sought a domestic violence restraining
order against Fryberg. Id. at *1. A Tribal
Police Officer (and brother-in-law of Gobin) filed a completed service of return
of notice of a hearing on the restraining order. Id. Fryberg didn’t show at the hearing, and a restraining order was entered
against him. Id.
Fryberg got guns while subject to that restraining order.
He was charged with 18 USC § 922(g)(8), possessing firearms while under a D.V. protection
order. Id. at *2.
essential sub-element of this federal charge was that Fryberg had actually been
served with notice of the hearing
that produced the protective order. Id.
Before the case went to trial, the Tribal Police officer that had allegedly
served the notice of the hearing, died. Id.
Over defense objection, the district court
admitted the (deceased) officer’s certificate of service: Fryberg was
Issue(s): “Defendant argues that the district court erroneously
admitted the key piece of evidence that the Government introduced to show that
Defendant received actual notice of the hearing on the protection order—the return
of service of the hearing notice . . . Defendant argues that (1) the district
court erred in admitting the return of service as a ‘public record’ under Federal
Rule of Evidence 803(8) and (2) the admission of the return of service violated
the Confrontation Clause of the Sixth Amendment.” Id. at *2 (footnotes omitted).
Held: “We conclude
that the admission of the return of service did not violate either the rule
against hearsay or the Confrontation Clause of the Sixth Amendment, and we
affirm Defendant’s conviction.” Id.
Of Note: Crawford “‘rescued’
the right of confrontation ‘from the grave.’” Id. at *5 (quoting Clark,
135 S. Ct. at 2184 (Scalia, J., concurring in judgment)).
Fryberg (we would argue) re-entombs it.
As it confronts Confrontation, the
Ninth admits that Fryberg “lies
somewhere between” two post-Crawford Ninth
decisions. Id. at *6. This “return of
service” document, the Court concedes, “had more of a criminal prosecutorial
function than the immigration document at issue in Orozca-Acosta.” Id.
Ultimately, however, the Ninth deems this “notice” document as something that’s
primary purpose was not for use at a future criminal trial – and therefore not
subject to Crawford. Id. at *6.
Way back in ’05, it was clear
that the core Crawford question would
be: “what is testimonial evidence?” See blog entry here. Fryberg is one disappointing answer.
How to Use:
Judge Graber delivers a number of evidentiary
sub-holdings that ultimately lead to the decision’s outcome. The Court
concludes that the officer was “under a legal duty to report when he completed
the return of service,” satisfying FRE 803(8)(A)(ii). Id. at *3.
Even though the Tribal Officer
was a cop, and even though Fryberg faced a criminal case, the Court holds that
the "notice of service" was not “a matter observed by law-enforcement personnel” (an express
FRE limitation on the “public record” hearsay exception in a criminal case.)
Judge Graber deems the notice of service a “largely ministerial act” to avoid
this FRE limitation. Id. at *4.
Finally, the Court rejects Fryberg’s
arguments that a “lack of trustworthiness” undermined the admission of this
hearsay evidence – the defense contended that the alleged place of service did
not, in fact, exist, and observed that the deceased officer was also the D.V.-complainant’s
brother-in-law. Id. at *5.
Fryberg is, unfortunately, a must-read when the witness stand is empty, and the
government’s case relies on paper instead of testimony. The "testimonial" legal landscape is not yet fully defined, but this case is another Ninth landmark.
Reading: Three Ninth jurisdictions – San Francisco,
Los Angeles, and an island in the Pacific – were called out by A.G. Sessions during
his first Sunday morning interview. See “This
Week” interview of 4/23/17 here. Mulling
tea leaves? Watch this interview.
Labels: Confrontation Clause, Evidence FRE 803, Graber, Hearsay, Public Records exception, Sixth Amendment, Testimonial