United States v. Phillipos

• Decision Date: 03 August 2017
• Docket Number: No. 15-1716,15-1716
• Citation: 866 F.3d 62 (Mem)
• Parties: UNITED STATES of America, Appellee, v. Robel Kidane PHILLIPOS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

866 F.3d 62 (Mem)

UNITED STATES of America, Appellee,

v.Robel Kidane PHILLIPOS, Defendant, Appellant.

No. 15-1716

United States Court of Appeals, First Circuit.

Entered: August 3, 2017

ORDER OF COURT

Pursuant to First Circuit Internal Operating Procedure X(C), the petition for rehearing en banc has also been treated as a petition for rehearing before the original panel. The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing en banc be denied.

THOMPSON, Circuit Judge, dissenting from the denial of rehearing en banc.

In my view, the district court abused its discretion in refusing to hold an evidentiary hearing on Phillipos's motion to suppress his confession. As a condition of holding an evidentiary hearing in the first place, the district court sought to extract a pre-hearing commitment from Phillipos that he'd testify at the hearing, and the court further ordered that Phillipos would be the first witness to testify at the hearing if one were held. When Phillipos refused to accept these conditions, the district court declined to hold an evidentiary hearing. As I see it, this decision is inconsistent with the ironclad rule that the government bears the burden of proof on the voluntariness issue. In affirming the district court on this point, the majority stretches a prior decision of this court much too far, and I cannot find—and the panel opinion has not identified—any other conceivable support for what the district court did. Because I fear that the panel's approval of the district court's improper denial of an evidentiary hearing will have a far-reaching impact on the manner in which motions to suppress are considered and decided within this circuit, I respectfully dissent from the denial of rehearing en banc.

I. Background

Before trial, Phillipos moved to suppress his confession. In support of his motion, he submitted his affidavit, which was signed under the pains and penalties of perjury. He also requested that the district court hold an evidentiary hearing on the suppression motion. And he requested that the court "place the burden of production and persuasion as to the voluntariness of the defendant's statements on the [g]overnment before requiring the defendant to testify at the hearing." Requiring Phillipos to testify first at the evidentiary hearing, he argued, would place "the burden of production on the defendant rather than the government, and requir[e] him to be offensive with evidence rather than defensive. This is unfair because it is the defendant who should be confronting the [g]overnment[']s evidence, not the other way around."

The district court declined to hold an evidentiary hearing on Phillipos's motion. Because of the court's "lingering concern" that, "over the years," the defense bar has employed motions to suppress to "obtain[ ] discovery that the parties are not properly entitled to," it indicated that it would hold an evidentiary hearing only if Phillipos agreed to the court's unique order of proof. Although the court concluded that the allegations in Phillipos's affidavit were sufficient to create the necessary genuine factual dispute to trigger the need for an evidentiary hearing, it nevertheless concluded that the affidavit alone was not enough. Based on "what appear[ed] to be ambivalence, perhaps, on the part of [Phillipos], the suggestion that, while [his] affidavit [ ] [is] sufficient, [he has] not decided whether to testify," the court reasoned that, if Phillipos did not testify at the evidentiary hearing, then his affidavit is "absolutely illusory" and "a bait and switch."

To combat this perceived danger, the district court ordered that the evidentiary hearing would proceed as follows: (1) Phillipos would first testify on direct examination; (2) then, if his testimony "raise[d] the question [of voluntariness] sufficiently," the government would produce its evidence of voluntariness; and (3) finally, if the government's evidence was sufficient to ground a finding of voluntariness, the government would be permitted to cross-examine Phillipos. After proposing this unique procedure, the court then sought to extract a commitment from Phillipos to testify at the hearing.

Phillipos objected to the procedure proposed by the district court, arguing that, because the government bears the burden of proof on the issue of whether Phillipos's confession was voluntary, the government should be forced to first go forward with its evidence at the evidentiary hearing and only then, after the government rested, should Phillipos need to decide whether to take the stand. The district court remained steadfast in its position, and, when Phillipos was unwilling to make a pre-hearing commitment to testify, the district court refused to hold an evidentiary hearing.

II. No Support for Refusal to Hold an Evidentiary Hearing

Everyone agrees that Phillipos was entitled to a hearing on his motion to suppress only if he made "a sufficient threshold showing that material facts are in doubt or dispute, ... that such facts cannot reliably be resolved on a paper record," and "that there are factual disputes, which, if resolved in his favor, would entitle him to the requested relief." United States v. Cintron , 724 F.3d 32, 36 (1st Cir. 2013) (quoting United States v. Francois , 715 F.3d 21, 32 (1st Cir. 2013) ); see also United States v. Jiménez , 419 F.3d 34, 42 (1st Cir. 2005) ; United States v. Staula , 80 F.3d 596, 603 (1st Cir. 1996). The district court in this case concluded that, if the allegations in Phillipos's affidavit were credited, this standard would have been met, see United States v. Phillipos , 849 F.3d 464, 468 (1st Cir. 2017), and the panel opinion does not purport to disagree with the district court's assessment on this score, so neither will I. Therefore, all agree that Phillipos was entitled to an evidentiary hearing if the district court improperly disregarded his affidavit.

The panel opinion relies on our decision in United States v. Baskin , 424 F.3d 1 (1st Cir. 2005), to support its conclusion that the district court did not abuse its discretion in removing Phillipos's affidavit from the equation. See Phillipos , 849 F.3d at 469. In my view, Baskin is cut from entirely different cloth than our case.

For starters, in Baskin , unlike in this case, the district court held an evidentiary hearing. 424 F.3d at 3. To be sure, the panel opinion acknowledges this difference between Baskin and this case, but it nonetheless concludes that Baskin supports the district court's refusal to consider Phillipos's affidavit. See Phillipos , 849 F.3d at 469. I cannot subscribe to this conclusion.

In Baskin , the defendant testified at the evidentiary hearing on direct examination. It was only when the defendant invoked his Fifth Amendment right against self-incrimination and refused to answer the government's cross-examination questions that the district court struck his affidavit. 424 F.3d at 3. The decision to strike the affidavit was viewed by this court as a matter of "discretionary selection of remedy" for a witness's gamesmanship. Id. As we explained, "[a] trial judge may strike a witness's direct testimony if he flatly refuses to answer cross-examination questions related to the details of his direct testimony, thereby undermining the prosecution's ability to test the truth of his direct testimony." Id. (internal quotation marks omitted) (quoting United States v. Bartelho , 129 F.3d 663, 673 (1st Cir. 1997) ).

Phillipos's case, by contrast, is very different. He was not attempting to testify only on direct examination without subjecting himself to cross-examination; he was not even attempting to testify at all. Instead, he was simply trying to meet his initial burden under our case law to demonstrate the existence of a factual dispute necessitating an evidentiary hearing, leaving the decision of whether to testify at the hearing until after the government attempted to meet its burden of proof on the issue of voluntariness.

It is one thing to say that, when a hearing is held and a defendant takes the stand but refuses to be subject to cross-examination after completion of his testimony on direct examination, the court can strike from the record the evidence that has been improperly shielded from cross-examination. It seems to me something completely different to say that, when assessing whether a defendant has met his initial burden to show a factual dispute entitling him to an evidentiary hearing, the district court can refuse to consider an affidavit—signed under the penalties of perjury—and decline to hold any evidentiary hearing in the first place simply because the defendant is not prepared, then and there, to commit to taking the stand. At the very least, nothing in Baskin —which has nothing to do with the standard for obtaining an evidentiary hearing—or any of the other cases cited by the government or in the panel opinion suggests that a defendant's affidavit suffices to meet our evidentiary-hearing standard only when the defendant makes a pre-hearing commitment to testify at the hearing. Cf. United States v. Schaefer , 87 F.3d 562, 570 (1st Cir. 1996) (explaining that "a judge presiding at a suppression hearing may receive and consider any relevant evidence, including affidavits and unsworn documents that bear indicia of reliability" and concluding that "the government effected a prima facie showing of consent by placing a copy of the police report before the court").

Moreover, the existence of a hearing is not the only critical difference between Baskin and this case. The only issue with which this court was concerned in Baskin was whether the defendant had standing to challenge the officers' warrantless entry into a motel room.¹ See 424 F.3d at...