U.S. v. Hernandez

Decision Date31 March 1997
Docket NumberNo. 95-50181,95-50181
Citation109 F.3d 1450
Parties46 Fed. R. Evid. Serv. 1051, 97 Cal. Daily Op. Serv. 2369, 97 Daily Journal D.A.R. 4257 UNITED STATES of America, Plaintiff-Appellee, v. James Robert HERNANDEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

David J. Cohen, Law Office of David J. Cohen, San Francisco, CA, for defendant-appellant.

Michael G. Wheat, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Judith N. Keep, Chief Judge, Presiding. D.C. No. CR-92-00380-JNK.

Before: FLETCHER, TASHIMA, Circuit Judges, and JANE A. RESTANI, * Judge of the United States Court of International Trade.

PER CURIAM.

Petitioner James Robert Hernandez appeals from a conviction and sentence for violation of 18 U.S.C. § 922(g)(1) which prohibits possession of a firearm by anyone with a prior felony conviction. In the proceedings below, Hernandez offered to stipulate to his status as a felon. However, the government rejected Hernandez' offer to stipulate. At trial, over Hernandez' objection, the district court permitted the government to introduce into evidence an unredacted certified copy of the felony judgment and commitment which recited that Hernandez had been convicted of burglary. The government also elicited testimony from Hernandez' parole officer, Randall Stewart, that Hernandez had been convicted of a felony. Because the risk of unfair prejudice to the defendant by this evidence substantially outweighed its probative value, the district court abused its discretion in admitting it despite the offer to stipulate to a felony conviction. Old Chief v. United States, --- U.S. ----, ----, 117 S.Ct. 644, 655, 136 L.Ed.2d 574 (1997). 1

I.

On February 23, 1992, San Diego police officers Gregory Sadar and Lee Timmerman observed a man dressed in dark clothing jump over a fence into an alley and run to the gate of an apartment building. Suspecting illegal activity, Officer Sadar approached the man, shined a flashlight in his face, announced he was a police officer, and told him he needed to speak to him. As Officer Sadar drew near, the man attempted to climb over a locked gate. Sadar and the man struggled. The gate burst open and the man began to run. Sadar took cover and drew his weapon. He saw the man draw a revolver from his waistband, and told him to drop his weapon. The man continued to run, throwing his gun away, and jumping a fence. The gun landed in the grass from whence it was recovered.

Officer Sadar lost sight of the man as he ran north. When Office Timmerman arrived to watch over the gun, Officer Sadar went looking for the man. Officer Timmerman put out a description of the man over his radio, and Officers Kyle and Hall responded several minutes later. An uninvolved citizen pointed out a man crouched behind a wall, sweating and looking panic-stricken. The man began to run. Officer Kyle briefly lost sight of the man, but Officer Hall had seen the direction the man was running and cut him off as he reentered the alley. Officer Hall arrested the man, who was identified as Hernandez. Officer Sadar arrived and identified Hernandez as the man with whom he had fought and seen with the gun several minutes earlier.

II.

To prove a violation of § 922(g), the United States must prove (1) that the defendant knowingly possessed a firearm that had been shipped or transported interstate and (2) at the time the defendant possessed the firearm, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. 18 U.S.C. § 922(g).

At trial, Hernandez objected to the government's introduction of evidence regarding the facts surrounding the prior felony because those facts are superfluous and prejudicial. He requested that the documents be redacted to remove reference to the nature of the felony or that the parole officer testify that Hernandez was convicted of a crime punishable by more than one year without addressing the nature of facts underlying the felony. According to Hernandez, the fact that his prior conviction was for burglary would prejudice the jury because the police testified that they thought the individual who they saw jumping over the fence was a potential burglar.

Generally, the district court's admission of evidence is reviewed for an abuse of discretion. United States v. Manning, 56 F.3d 1188, 1196 (9th Cir.1995). The Supreme Court recently held that "a district court abuses its discretion if it spurns [a defendant's] offer and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction." Old Chief, --- U.S. at ----, 117 S.Ct. at 647. This case is on all fours with Old Chief. The evidence of the underlying facts of the defendant's prior conviction was highly prejudicial to the defendant. Because the defendant offered to stipulate to the existence of the second element of § 922(g), the district court abused its discretion when it rejected the stipulation and admitted evidence of the nature of Hernandez' prior felony conviction.

III.

Because this case is on direct appeal and Hernandez properly objected below, the government has the burden of establishing harmlessness in order for the conviction to be upheld. Whether under a "fair assurance" or a "more probably than not" standard, See United States v. Hitt, 981 F.2d 422, 425 (9th Cir.1992) (describing apparent conflict in this circuit as to appropriate standard of review for evidentiary error), the government has not demonstrated that the error was harmless. The evidence against Hernandez, while strong, was not overwhelming. Hernandez' fingerprints were not found on the gun. Although Officer Sadar identified Hernandez as the man with the gun, he saw Hernandez only briefly late at night. Tellingly, the jury was at first unable to reach a unanimous verdict. 2 The key issue at trial was identity: was Hernandez the man with whom Officer Sadar fought? The fact that Hernandez had been previously convicted of burglary could understandably (but impermissibly) lead the jury to conclude that Hernandez was in fact the man in dark clothes whom the police had accosted and who had escaped from them.

Hernandez' burglary conviction was mentioned during voir dire, during trial, and in the court's instructions to the jury. Although the court gave a limiting instruction that the jury should not consider the burglary conviction or any issue other than whether Hernandez had been convicted of a felony, we have previously expressed "skepticism of the efficacy of such instructions no matter when they are given. 'To tell a jury to ignore the defendant's prior convictions in determining whether he or she committed the offense being tried is to ask human beings to act with a measure of dispassion and exactitude well beyond mortal capabilities.' " United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir.) (quoting United States v. Daniels, 770 F.2d 1111, 1118 (D.C.Cir.1985)), amended, 798 F.2d 1250 (9th Cir.1986). In light of the closeness of this case and the highly prejudicial nature of the evidence, we conclude that the government has not established that the error was harmless.

IV.
A. Recusal Motion

Hernandez contends that the district judge erred in failing to recuse herself under 28 U.S.C. § 144 3 and 28 U.S.C. § 455. 4 He asserts that the district judge demonstrated bias by writing to the Ninth Circuit panel that had reversed her after the first trial. On appeal, Hernandez also contends for the first time that the judge exhibited bias in her exchange with venire person Karen Taylor, and in its impatience with defense counsel. The denial of a motion to recuse is reviewed for abuse of discretion. United States v. Gordon, 974 F.2d 1110, 1114 (9th Cir.1992). If a party fails to bring specific facts allegedly presenting grounds for recusal to the attention of the district court, the party will bear a greater burden on appeal. United States v. Sibla, 624 F.2d 864, 868 (9th Cir.1980).

The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same: "[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986) (quotation omitted). Ordinarily, the alleged bias must stem from an "extrajudicial source." Liteky v. United States, 510 U.S. 540, 554-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). "[J]udicial rulings alone almost never constitute valid basis for a bias or partiality motion." Id. "[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id.

Hernandez does not allege any "extrajudicial source" for Judge Keep's alleged bias. Nor does he demonstrate such a deep-seated favoritism on the part of Judge Keep as to make fair judgment impossible. The original panel opinion, decided June 24, 1994, reversed Hernandez' conviction on two grounds: that the district court permitted undue emphasis on the transcript and that it abused its discretion in refusing defense counsel's request to review the transcript for accuracy. On July 5, 1994, Judge Keep sent a letter to the appellate panel regarding what she believed to be a factual error in the opinion. The panel ultimately amended its opinion by deleting the relevant section and replacing it with a footnote. United States v. Hernandez, 27 F.3d 1403, 1409 n. 5 (9th...

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