UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
LAURENCE JOHN LAYTON,
Defendant-Appellee.
Nos. 84-1252; 82-1072
(N.D. Cal. No. Cr. 80-1046-RFP
APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF OF APPELLANT
JOSEPH P. RUSSONIELLO
United States Attorney
DENNIS MICHAEL NERNEY
Assistant United States Attorney
SANFORD SVETCOV
Assistant United States Attorney Chief, Appellate Section
ANDREW M. SCOBLE
Boalt Hall, Law Clerk
450 Golden Gate Avenue-Box 36055
San Francisco, California 94102
Telephone: (415) 556-5135
Attorneys for Appellant
UNITED STATES OF AMERICA
—–
[Editor’s note: The entries on the Table of contents page have been converted to links as they appear in the document below.]
TABLE OF CONTENTS
QUESTION PRESENTED
STATEMENT OF THE CASE
- Congressman Ryan Arrives at Jonestown
- Some Jonestown Residents and Members of Ryan Delegation Prepare to Leave Jonestown
- The Shooting at the Airstrip
- The Defendant is Taken into Custody and Admits His Involvement in the Conspiracy
- The Initial District Court’s Order Excluding Evidence
DISTRICT COURT MISCONCEIVED THE LAW AND EXCEEDED ITS DISCRETION UNDER RULE 403 IN EXCLUDING THE LAST HOUR TAPE
APPLICABLE LAW; STANDARD OF REVIEW
DISCUSSION
The Last Hour Tape Has High Probative Value And is Essential to Government’s Case
——
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
LAURENCE JOHN LAYTON,
Defendant-Appellee.
BRIEF OF APPELLANT
Whether the district court abused its discretion under Rule 403 in excluding the Last Hour Tape from evidence?
On October 9, 1980, Layton was charged by indictment with conspiring with Jim Jones, Joseph Wilson, Thomas Kice, Robert Kice, Wesley Breidenbach and Edward Crenshaw to murder Congressman Leo J. Ryan, in the Republic of Guyana, in violation of 18 U.S.C. § 351(d). Count Two charged that Layton aided and abetted the murder of Ryan, in violation of 18 U.S.C. §§ 351(a) and 2. Count Three charged that Layton conspired to murder Richard C. Dwyer, Deputy Chief of Mission (DCM) for the United States in Guyana, an internationally protected person within the meaning of 18 U.S.C. § 1116(b)(4)(B), in violation of 18 U.S.C. §1116(a). Count Four charged that Layton aided and abetted the attempted murder of Dwyer, was in violation of 18 U.S.C. §§ 1116(a) and 2. (ER 1-9)
Layton’s trial resulted in a mistrial because the jury was unable to reach a verdict. The government then moved pursuant to Rule 12(d), Fed.R.Crim.P., for an order to present certain statements on retrial that the court had ruled inadmissible during the trial. On January 11, 1982, the district court denied this motion and the government appealed. This Court reversed, holding that three of the challenged statements made by Jim Jones were admissible and did not violate either the hearsay rule or the Confrontation Clause. United States v. Layton, 720 F.2d 548 (9th Cir. 1983). However, a remand was ordered to allow the district court to consider whether the statements were admissible under Rule 403, Fed.R.Evid. (Id.)
After briefing and argument, (ER 10, 30, 49, 61), the district court, by order dated April 18, 1984, excluded the Last Hour Tape under Rule 403. (ER 105, 120). The government’s motion for reconsideration (ER 124, 136) was denied on August 28, 1984. (ER 185, 251). 1/ On August 30, 1984, the government filed a timely notice of appeal from that order. (ER 227). Rule 4(b), Fed.R.App.P.
This court has jurisdiction under 18 U.S.C. §3731. The defendant is not incarcerated.
1/The district court ruled that the statement to Charles Garry and the pre-arrival statements were admissible. (ER 115-120, 185-216)
-2-
——
STATEMENTS OF FACTS
The indictment charged that Layton conspired with Jim Jones, the leader of the Peoples Temple at Jonestown, Guyana, and others to murder Congressman Leo J. Ryan, those in his party, and the departing Jonestown residents, in order to prevent disclosure of conditions in Jonestown. The evidence at the first trial established that on November 18, 1978, Layton shot and wounded two departing Jonestown residents and attempted to shoot a third resident while other conspirators murdered Congressman Ryan and killed and wounded 14 others who were also attempting to leave Guyana.
In November 1978, Jim Jones was the leader of the Peoples Temple, a religious organization composed primarily of American citizens. The Peoples Temple had a settlement of approximately 1,200 members, known as Jonestown, located in the Republic of Guyana. In response to allegations that living conditions at Jonestown were bad and that residents were being detained there against their will, Congressman Leo J. Ryan 3/ undertook a trip to
2/Pursuant to Rule 7(d), Fed.R.Crim.P., the district court struck as surplusage the indictment’s allegation that the purpose of the conspiracy was “to prevent disclosure of conditions in Jonestown” (order entered February 25, 1981). However, the court permitted the government to prove at trial that the conspiracy embraced such a purpose. (February 20, 1981, Tr. at 10-11, 26; Tr. 5059-5060).
3/Congressman Ryan represented the 11th Congressional District in California, which included San Mateo County. (Tr. 3408, 3410).
-3-
——
Guyana. On November 1, 1978, Congressman Ryan sent Jim Jones a telegram indicating his intention to visit Jonestown in order to conduct an official congressional investigation of these allegations. A group of relatives of Jonestown residents known the “Concerned Relatives Group” also planned to accompany Ryan. (Tr. 3410-3415, 3459, 3509-3510, 3572-3573, 4081-4082).
Jim Jones discussed Ryan’s impending visit in nightly broadcasts over the public address system at Jonestown. Loudspeakers throughout Jonestown enabled anyone there to hear these broadcasts. 4/ Layton was specifically observed listening to Jones. Jim Jones expressed hostility and concern about Ryan’s expected inquiry, telling Jonestown members that if Ryan came, “maybe [Ryan’s] plane will just fall out of the sky.” Jones also told the residents not to talk to any visitors. (Tr. 3610-3615, 3699-3700, 3772-3774, 4476-4481, 4529-4533, 4682-4683, 4732).
On November 14, 1978, the Ryan delegation arrived in Georgetown, Guyana, and commenced negotiations with Jonestown representatives – Sharon Amos and attorneys Mark Lane and Charles Garry – concerning the visit to Jonestown, D.C.M. Richard C. Dwyer assisted Congressman Ryan in his efforts to investigate Jonestown. After several days of discussions, during which Sharon Amos tried to obstruct the Ryan party’s efforts (Tr. 4083), Jones
4/ Layton was a trusted resident of Jonestown and was close to the hierarchy of the Peoples Temple. He was formerly a member of the Peoples Temple Security Force in the United States. (TR. 3603-3608, 3746-3748, 4040).
-4-
——
allowed the Ryan delegation to visit Jonestown. On Friday, November 17, 1978, the Ryan party flew in a chartered twin engine Otter from Georgetown to an airstrip at Port Kaituma, Guyana, which was about six miles from Jonestown. 5/ Sharon Amos repeatedly tried to board the plane with the Ryan party at Georgetown, but there was no room for her. (Tr. 3423). Further efforts to delay the group were encountered, both in flight and at Port Kaituma. (Tr. 3425, 4095) The Ryan delegation then travelled in two separate groups by truck from the Port Kaituma airstrip to Jonestown, arriving there later that same day. (Tr. 3416-3424, 3512-3521, 3900-3902, 4083-4101)
After arriving in Jonestown, Congressman Ryan and members of his party interviewed residents on Friday and Saturday, November 17 and 18, 1978. A number of residents. including Monica Bagby, Harold Cordell, Vern Gosney, and the families of Gerald Parks and Tom Bogue, decided to leave Jonestown and asked Congressman Ryan
5/ Congressman Ryan was accompanied by 17 people. These included D.C.M. Dwyer; Neville Annibourne, an Information Officer; Jackie Speier, Congressman Ryan’s legislative counsel; and Peoples Temple attorneys Mark Lane and Charles Garry. Also travelling with Ryan were four concerned relatives–Beverly Oliver, Anthony Katsaris, Jim Cobb, Jr., and Carolyn Boyd – and eight members of the news media–Robert Flick, NBC producer; Don Harris, NBC correspondent; Steven Sung, NBC soundman; Tim Reiterman, San Francisco Examiner photographer; Ron Jarvis, journalist ; Gordon Lindsey, free lance writer; and Charles Krause, Washington Post journalist. All except Gordon Lindsey were permitted to visit Jonestown. Jones denied Lindsey permission because he had written allegedly unfavorable articles about the Peoples Temple. (Tr. 3495, 4257)
-5-
——
for his assistance. Jim Jones and members of the Temple’s hierarchy became angry when they learned of the intended departures. Jones attempted to dissuade them from leaving, and offered Gerald Parks $5,000 not to leave. Jones also expressed concern that people would lie about conditions at Jonestown. (Tr. 3431-3438, 3479-3480, 3491-3493, 3524-3526, 3613-3618, 3737-3738, 3817-3818, 3864-3868, 4017-4019, 4103-4115, 4269-4277, 4487-4493, 4614-4618, 4682, 4689, 4738-4740) 6/
On Saturday afternoon, November 18, the departing residents and members of the Ryan party assembled at a truck, driven by Stanley Geig, which was to take them to the Port Kaituma airstrip. At about that time, Jim Jones was observed in conversation with Layton, Joe Wilson and Tom Kice. Layton then indicated that he too wished to leave Jonestown, and he boarded the truck with the others. Layton’s announcement surprised and concerned some of those leaving, because they did not trust him and believed he was feigning defection. (Tr. 3441-3444, 3526-3533, 3543, 3563-3565, 3663-3664, 3792, 3870-3873, 3971-3974, 4004-4006, 4019-4021, 4032-4033, 4038-4040, 4495-4497, 4741-4745).
The group’s departure was delayed because the truck became stuck in the mud. During the delay, Donald Sly, a member of
6/ It was widely known by Temple members that Jim Jones considered defectors as traitors and had previously threatened to kill defectors. Jones had also told Temple members that he did not want anyone to return to the United States because the “bad press ” and others wanted to destroy his movement. (Tr. 3576 3577, 3583, 3745, 3762, 4322-4323, 4545-4550, 4818-4819)
-6-
——
the Peoples Temple, attacked Congressman Ryan with a knife. Charles Garry, Mark Lane and Tim Carter disarmed Sly. Jones was standing nearby, but offered no assistance. Ryan had initially intended to stay another night to help others who wanted to leave Jonestown. After the attack, however, Richard Dwyer persuaded Ryan to leave with the others. Ryan told Jones that the attack would not change his report to Congress. Ryan and Dwyer then boarded the truck with the concerned relatives, the news people and the ” defectors”. (Tr. 3445-3447, 3533-3534, 3591, 3666-3668, 3780 3782, 3875-3876, 4117-4123, 4278-4279, 4288-4290, 4958-4960, 5077 5091)
The truckload of people left for the Port Kaituma airstrip. A concerned relative on board the truck bumped against Layton to determine whether he had a gun, but felt no weapon. As the truck approached the gate to Jonestown, Joe Wilson boarded. Wilson, a member of the Jonestown Security Force, was armed with revolver. 7/ En route to the airstrip Layton talked with Wesley Breidenbach, another Security Force member, who was standing next to him. Ed Crenshaw, who replaced Stanley Geig, drove the truck to the airstrip. (Tr. 3447, 3532, 3539-3541, 3561-3562, 3668-3671, 3782, 3876-3877, 3975, 4021-4023, 4501-4502, 4559-4562, 4567, 4694 4695, 4746-4747).
7/ No one in Jonestown was permitted to have a firearm without Jim Jones’ permission. (Tr. 4709, 4896)
-7-
——
Congressman Ryan had arranged for two planes–a 19-seat Otter and a six-seat Cessna – to transport the group from the airstrip to Georgetown. The Cessna arrived at the airstrip about twenty minutes before the Otter arrived. In the meantime, Ryan’s aide Jackie Speier assigned seats on the two planes. Layton insisted on being given a seat on the small plane, and Ms. Speier acquiesced in his request after Ryan indicated his approval. Layton had a conversation with Joe Wilson before he boarded the Cessna. Wilson hugged Layton and put his hands underneath the poncho that Layton was wearing. Wilson appeared to be shaking hands, but their actions were hidden by the poncho. ((Tr. 3448- 3451, 3543-3545, 3555, 3673-3676, 3924-3925, 4023-4024, 4502-4505, 4571-4573, 4621, 4750-4751) 8/
Thereafter, Ryan and several others searched those planning to depart before they boarded the planes. However, Layton left the line of people being searched and boarded the Cessna without being searched. Layton was then told to leave the plane and submit to a search. At first, he falsely stated that he had been frisked. Then he “reluctantly” complied. A frisk of Layton did not reveal any weapons, and he was permitted to reboard the Cessna. (Tr. 3450-3451, 3556, 3879, 3931-3932, 3982-3987, 3992)
8/ The government contended at trial that Wilson gave Layton a revolver at that point. (Tr. 5739-5741)
-8-
——
When the Cessna was fully boarded, 9/ others were still in the process of boarding the larger Otter. The two planes were approximately 20 to 50 yards apart. (Tr. 3545, 3880-388, 3992, 4024, 4625). The Cessna taxied down the runway, preparing to take off. At this point a tractor trailer driven by Stanley Geig cut in front of the Cessna and moved toward the larger plane. A group of armed Peoples Temple members–Joe Wilson, Tom Kice, Bob Kice, Wesley Breidenbach, Ernest Jones, Ron James and Anthony Simon – began shooting from the tractor trailer at the larger plane, hitting people inside as well as outside the plane. 10/
Congressman Ryan, who was standing outside near the Otter, was shot and killed as were four others. 11/ Richard C. Dwyer, Ms. Speier and eight others were wounded. Others ran into the nearby jungle to escape their attackers. (Tr. 3451-3456, 3546-3551, 3680-3687, 3881-3886, 3993-3997, 4025-4029, 4135-4143, 4315, 4400-4404, 4506-4509, 4626-4630, 4706-4708, 4753, 4973-4975, 5130-5133)
9/The pilot of the Cessna was seated in the left front seat, to his right was Monica Bagby. Layton was seated behind the pilot and to his right was Vern Gosney. Tracy Parks was seated in the third row left seat, and Dale Parks was seated to his right. (Tr. 4624-4625, 4706, 4752)
10/News media members who accompanied Congressman Ryan took video tapes and pictures of their trip and the events at Jonestown from November 17 and 18, including the shooting at the airstrip. The video tape of the shooting stopped when the cameraman was shot and killed. The video tapes were shown to the jury. A synopsis of the tapes is contained in Gov’t Exhibit 8G. (Tr. 4354-4368).
11/Congressman Ryan sustained 30 gunshot wounds. (Tr. 5132 5133)
-9.-
——
When the shooting started, Dale Parks asked the Cessna pilot to stop the plane. Monica Bagby urged everyone to get out. However, Layton insisted that the plane take off. He took a revolver from his crotch area and shot Monica Bagby twice in the back and shoulder. He also shot Vernon Gosney twice and fired at Dale Parks, but his gun misfired. Parks and Gosney wrestled with Layton and disarmed him. Everyone from the Cessna ran into the jungle. (Tr. 4627-4629, 4653-4656, 4706-4709, 4752-4757)
After the shooting stopped, the survivors began to regroup at the airstrip. Dale Parks told them that Layton had shot Bagby and Gosney and tried to shoot him. He showed them the revolver that he had taken from Layton. Layton denied shooting anyone and instead accused Dale Parks. He also stated that any accusations against him should be made only before Guyanese officials. Guyanese civilians then took Layton into custody. (Tr. 3687-3693, 3888-3889, 3946-3947, 3996-3999, 4007, 4009, 4147-4152, 5013) 12/
Layton was taken to the Guyanese Constable at Port Kaituma. He told the Constable: “I’m glad I shot the fuckers.” (Tr. 5010-5014) On November 22, 1978, Layton voluntarily gave a signed, written confession to Guyanese authorities. (Tr. 5179-
12/ Ballistics evidence also established that the revolver recovered from Layton fired the two bullets that were removed from Monica Bagby and that the revolver had misfired. (Tr. 5231 5244)
-10-
——
5186) In his confession Layton stated, inter alia (Tr. 5185):
“I, Larry Layton, take full responsibility for all the deaths and injuries that took place at the Port Kaituma Airstrip.
“I had begged the Bishop Jim Jones that I be allowed to bring down the plane, but he disapproved. My reason for suggesting that was because I felt that these people were working in conjunction with CIA to smear the Peoples Temple and to smear Guyana. I got a gun from a friend of mine, one Poncho, and I went to the airport intending to bring down the plane. But when the shooting started, I also started shooting as I thought it was all too late. I don’ t know why I did it.”
At the first trial, the jury was unable to reach a verdict and a mistrial was declared. Prior to retrial, the court again excluded a number of statements by Jones which the government intended to introduce. The government appealed.
(a) The first item of evidence involved tape recorded statements by Jim Jones to members of the Peoples Temple prior to the arrival of the Ryan party. Jones had threatened to kill Congressman Ryan if he came to Jonestown. 13/ As a result of this
13/ Jones stated, inter alia:
“and if they enter this property illegally they will not leave it alive.”… “I can assure you that if he (Rep. Ryan) stays long enough for tea he’s gonna regret it. … “I want to shoot someone in the ass like him, so bad, so long, I’m, I’m not passing this opportunity up. Now if they come in, they come in, they come in on their own risk.”
(ER 23, 27, 61 in United States v. Layton. No. 82-1072).
-11-
——
Court’s opinion on the government’s first appeal (United States v. Layton, supra, 720 F.2d at 555-558) and the ensuing district court ruling (ER 185) on our motion for reconsideration, these statements by Jones will be admitted.
(b) The government will also be able to introduce Jim statement made to his attorney Charles Garry shortly after the Ryan party left Jonestown en route to the airstrip. In substance, Jones had said that the defendant was not a defector and that he and Gerald Parks had taken all the weapons from Jonestown and were going to the airstrip to engage in violent acts. (ER 128) Although excluded at the first trial, after the reversal and remand by this Court, (720 F.2d at 558-561) the district court found this statement admissible under Rule 403. (ER 115-120)
(c) The third piece of excluded evidence was Jim Jones’ Last Hour Tape. Although this Court ruled that the district Court had incorrectly excluded the tape from evidence under the Confrontation Clause (United States v. Layton, 720 F.2d at 561- 563), a remand was ordered for a ruling under Rule 403. Id. at 563. The district court concluded that the tape should be excluded under Rule 403 (ER 120-123) and reconsideration was denied (ER 217- 226 ). Review of this Rule 403 ruling is the sole issue on appeal.
-12-
——
THE DISTRICT COURT MISCONCEIVED THE LAW AND EXCEEDED ITS DISCRETION UNDER RULE 403 IN EXCLUDING THE LAST HOUR TAPE
The government’s sole argument on appeal is that the district court erred in excluding the Last Hour taped statements of Jim Jones as evidence in the retrial of defendant Layton.
In this tape recorded speech on November 18, 1978, Jim Jones explained to the residents of Jonestown why flight to Soviet Russia was no longer possible; he urged instead that mass suicide was necessary because some of his followers had gone to the Kaituma airstrip with guns to kill the Ryan party (ER 73-75). Soon after the Ryan party left Jonestown for the airstrip, Jones stated:
What’s going to happen here in a matter of a few minutes, is that one of those people on that. plane is gonna, gonna shoot the pilot. I know… and down comes that plane into the jungle… that’s what he intends to do and he will do it.
There’s one man there, who blames, and rightfully so, Debbie Blakey, for the murder, for the murder of his mother and… he’ll stop that pilot by any means necessary. He’ll do it. That plane will come out of the air. There’s no way you fly a plane without a pilot.
(ER 73, 78) After learning of the shooting at the airstrip, Jones stated, inter alia, as follows:
It’s just too late, it’s too late. The Congressman is dead, the Congressman lays dead, many of our traitors are dead, they’re all laying out there dead… I didn’t but, but my people did. My people did… They’ve been provoked too much.
I don’t know who fired the shot, I don’t know who killed the Congressman. But as far as I’m concerned, I killed him. You understand what
-13-
——
I’m saying, I killed him. He had no business coming. I told him not to come.
(ER 91, 98-99, 104)
In the first statement quoted, Jones was clearly referring to defendant Layton, Debbie Blakey’s brother, as the person who would shoot the pilot. This Court recognized that this inference was correct in its earlier opinion. United States v. Layton, 720 F.2d at 562 n.11.
Nevertheless, the district court on remand excluded the statement under Rule 403. The court ruled that (1) while the Last Hour Tape “obliquely refer to some of the issues”, it has only slight probative value, (2) the government fails to show how this probative value outweighs the danger of unfair prejudice”, and (3) “the unfairly prejudicial value of these tapes outweighs its probative value” because of “the sounds of innocent infants crying (and presumably dying) in the background.” (ER 221:23-222:13, 223:5-6).
All three prongs of the district court’s ruling are flawed. First, the district court’s grudging finding of slight probative value is at odds with this Court’s prior holding that the tape was highly probative and reliable. 720 F.2d at 562-563. Second, the shifting of the burden of proof to show that probativeness outweighs undue prejudice is wrong as a matter of law. Finally, in refusing to even attempt to reduce the asserted unfair prejudice by means of rigorous voir dire and forceful limiting instructions, which it characterized as “mere
-14-
——
Palliatives”, the district court misconceived and exceeded its limited discretion under Rule 403.
It is well established that under Rules 401-403 the district court has very broad discretion to permit introduction of probative evidence. United States v. Larios, 640 F.2d 938, 941 (9th Cir.1981); United States v. Bernal, 719 F.2d 1475, 1478 (9th Ci r. 1983). The rules and practice favor admission of evidence if it has any tendency to prove or disprove a fact in issue. United States V. Federico, 658 F.2d 1337, 1342 (9th Cir. 1981). Under Rule 403, the “balance should be struck in favor of admission.” United States v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980); accord United States v. Moore, 732 F.2d 983, 988-989 (D.C. Cir. 1984). The courts “must look at the evidence in a light most favorable to its proponent; maximizing its probative value and minimizing its prejudicial effect.” United States v. Jamil, 707 F.2d 638, 642 (2d Cir. 1983), quoting United States v. Brady, 595 F.2d 359, 361 (6th Cir.) cert. denied 444 U.S. 862 (1979); accord United States v. Zipkin, 729 F.2d 384, 389-390 (6th Cir. 1984); 1Weinstein, Evidence, §403[03] p. 403-26 (1983).
However, the district court ‘s discretion to exclude evidence under Rule 403 is limited. Evidence may be excluded only when “its probative value is substantially outweighed by the danger of unfair prejudice…” Rule 403, F.R.Evid; United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982). In balancing these factors, the courts have identified several principles which
-15-
——
circumscribe the district court’s discretion.
First, “because it permits a trial court to exclude concededly probative evidence, Rule 403 is an extraordinary remedy which should be used sparingly.” United States v. Thevis, 665 F.2d 616, 633 (5th Ci r. 1982); United States v. Jamil, supra, 707 F.2d a t 642; United States v. King, 713 F.2d 627, 631 (11th Cir.1983); United States v. Plotke, 725 F.2d 1303, 1308 (11th Cir. 1984); United States v. Betancourt, 734 F.2d 750, 757 (11th Cir. 1984). Judge Weinstein has aptly noted that Rule 403 is to be applied “infrequently and cautiously by the trial judge.” 1 Weinstein Evidence, §403[02] at 403-17 (1983). Our Circuit likewise agrees that “Rule 403 sets a fairly stringent standard” for excluding evidence. United States v. Kenny, 645 F.2d 1323, 1342 (9th Cir.) cert. denied, 452 U.S. 920 (1981).
A second principle identified by the courts is that the government’s need for the evidence is part of the balancing equation:
“… while prosecutorial need alone does not mean probative value outweighs prejudice [citation], the more essential the evidence, the greater its probative value, and the less likely that a trial court should order the evidence excluded.”
United States v. King, 713 F.2d at 631; accord United States v. Bailleaux, 685 F.2d at 1112; United States v. Bowers, 660 F.2d 527, 529-530 (5th Cir. 1981). In Bailleaux, for example, this Court held that where there was high probative value, but also potential undue prejudice, the government’s need for the evidence tipped the
-16-
——
balance in favor of admission. As a corollary, to this principle, it has been held that where evidence is probative and essential, but also potentially emotional, the court should make efforts to defuse any unfair prejudice. A number of devices have been suggested, including rigorous voir dire of jurors and forceful cautionary instructions. United States v. Weisz, 718 F.2d 413, 432 (D.C. Cir. 1983); United States v. Bradshaw, 690 F.2d 704, 709-710 (9th Cir. 1982). 1 Weinstein Evidence at 403-08.
Third, under Rule 403, deference to the lower court’s sound discretion is usually based on the trial court ‘s superior ability to assess the impact of evidence on the jury during trial. However, an “appellate court is freer to perform the Rule 403 balancing ab initio when the issue arises in limine,” as is true here. United States v. King, 713 F.2d at 631; United States V. Day, 591 F.2d 861, 878 (D.C. Cir. 1979). Moreover, where the evidence in question is not live testimony, but demonstrative evidence, such as a photograph or a tape-recording, the district court enjoys no special advantage in making the Rule 403 balancing decision. Indeed, this Court has usually examined such evidence itself as part of the process of reviewing the district court’s exercise of discretion. People of Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1261 (9th Cir. 1980)[“Having ourselves viewed the photographs”]; United States v. Brady, 579 F.2d 1121, 1129 (9th Cir. 1978) [“We have examined the photographs”]; see also. United States V. Weisz, 718 F.2d at 430 – 432 [appellate court considered contents of Abscam video tape in reviewing Rule 403 ruling]; United
-17-
——
States V. Jamil, 707 F.2d at 640 n3, 642-643 [court refers to tape contents in reversing district court ruling that recorded statement had only slight probative value]. We therefore suggest that this Court should listen to the Last Hour Tape as part of its review of the district court’s ruling. Upon request, arrangements can be made for such a presentation. The original and voice enhanced copy of the tape are in FBI custody.
In sum, we submit that the district court enjoys only limited discretion to exclude evidence and no “immunity from accountability” on appeal. United States v. Jamil, 707 F.2d at 642. Moreover, where, as here, the court misperceived or misapplied the law in exercising its discretion, any claim of error in applying the law should be reviewed de novo. United States v. McConney, 728 F.2d 1195, 1200-1201 (9th Cir. 1984) [en banc]; lacono v. Humphrey, 722 F.2d 435, 438 (9th Cir. 1983).
1. The Last Hour Tape Has High Probative Value And is Essential To The Government’s Case
The district court has severely and incorrectly downgraded the probative value of the Last Hour statements. Characterizing Jones’ taped reference to Layton as “oblique” and “cryptic” (ER 221-222), the district court in denying our motion for reconsideration stated:
“First, the court is not convinced that these tapes carry a high probative value. Notwithstanding the passage relied upon by the government, it is difficult to discern what point, if any, the tapes prove. The statements contained on the Tapes are rambling and
-18-
——
confused. Based on this evidence, the court cannot conclude that these tapes actually inculpate the defendant in any of the crimes with which he has been charged.”
(ER 222:14-21)
The district court’s observation that the Last Hour Tape had only slight probative value is but an ill-disguised reprise of its 1982 ruling that Jones’ statements were the unreliable ravings of a madman. Indeed, in its initial order on remand the court labeled the taped statements “the cognitive meanderings of a crazed mind”, suggesting that they were neither credible nor probative (ER 122: 13-19). This gaffe was omitted from the Court’s order denying reconsideration (ER 222:22), after we pointed out in our motion that this Court ‘s previous opinion had unequivocally rejected this reasoning:
“The judge appears to have equated irrational behavior with an inability to have personal knowledge or a correct memory of events. Jones does appear to have had detailed personal knowledge of the events that were about to occur at the airstrip and his statements are fully corroborated by the events that took place.
Furthermore, the subsequent statements were made soon after the events. There is very little likelihood that Jones’ memory would be faulty at that point. Merely because a person is somewhat irrational, or highly agitated, does not mean that he cannot relate events that have occurred recently or have personal knowledge of events about to take place. Furthermore, because Jones’ statements are tape recorded, the jury will be in a better than usual position to judge Jones’ mental condition when he made the statements. Although this is not as effective as cross-examination, it does mitigate the dangers involved in admitting the statements. We conclude that the statements made as part of the “last hour” speech should be admitted into
-19-
——
evidence.”
United States v. Layton, 720 F.2d at 562-563 (emphasis added) 14/ Though omitted from its final order, the district court’s remarks do provide insight as to its grudging assessment of probative value.
This court has also previously rejected the district court’s conclusion that the reference to Layton in the Last Hour Tape was either “oblique” or “cryptic” or did not “inculpate” Layton, by recognizing that :
“Jones’ reference to Debbie Blakey in the passage quoted in the text indicates that he was referring to Layton as the person who would shoot the pilot. Blakey was Layton’s sister and apparently Layton blamed her for his mother’s death. Thus, Jones seems to have believed that Layton’s part in the events at the airstrip was to shoot the pilot, a belief that is corroborated by Layton’s insistence on being seated on the small plane, his smuggling a gun aboard the plane, and his seating himself directly behind the pilot.”
Id. 720 F. 2d at 562 n.11 (emphasis supplied).
The district court’s finding of slight probative value must therefore be deemed error for two reasons. Under the law of the case doctrine, this Court’s prior holding that the tape was highly reliable and probative is binding. United States v. Estrada-Lucas, 651 F.2d 1261, 1263-4 (9th Cir. 1980); United States
14/ Moreover, nothing in Rule 403 authorizes a trial judge to exclude evidence because he does not believe it; matters of credibility are for the jury, United States v. Thompson, 615 F.2d 329, 332-3 (5th Cir. 1980), United States v. Moore, supra, 732 F.2d at 989 n.45, 2 Louisell, Federal Evidence, 1984 Supp. pp. 16, 38.
-20-
——
v. Maybusher, 735 F.2d 366, 379 (9th Cir. 1984). Second, as noted earlier, in determining admissibility under Rule 403, the courts must look at the evidence in a light most favorable to its proponent; maximizing its probative value and minimizing its prejudicial effect.” United States v. Jamil, supra, 707 F.2d at 642, quoting United States v. Brady, supra595 F.2d at 361.
Viewed in light of these legal guidelines and the theory of Layton’s defense at the first trial, the quoted portions of the tape are not “oblique but highly probative and, as in King and Bailleaux, essential to our case. At trial, defense counsel repeatedly stated in opening statement and closing argument that Layton had no knowledge of the plan to kill Ryan, that he acted separately, intending only to shoot the defectors on the small plane (RT 3398, 4400, 5826-5827, 5860-5861, 5881-5882, 5885, 5935 5936, 5940-5944). The Last Hour statements are critically relevant to show that Layton’s shooting of defectors on the plane was not an independent action, but part of an overall plan to kill the entire departing party, including Rep. Ryan and the defectors. The statements thus establish Layton’s knowledge of and connection to that plan. The Jones statement, showing Jones’ knowledge of Layton’s role, contradicts the very heart of Layton’s defense and therefore is essential to the government’s case because it provides, in reliable taped form, the critical conspiratorial link between Jones and Layton. No other evidence provides so strong a link in such a reliable way. Jones statement to Charles Garry, for example, that Layton had feigned defection and was going to the
-21-
——
airstrip with guns to engage in violence was not recorded, and without the Last Hour Tape, is not corroborated. In light of the deadlock in the first trial, it is not unreasonable to conclude that the tape could assist the jury in reaching a verdict.
We submit that the district court erred under Layton, King and Jamil, and exceeded its discretion under Rule 403 in failing to accord the Last Hour Tape the very high probative value it has in this case.
- The District Court Erred As A Matter of Law In Stating That the Government Had To Show That Probative Value Outweighed Undue Prejudice
In its order denying reconsideration, the district court makes the startling statement that “the government fails to show how this probative value outweighs the danger of unfair prejudice” (ER 222:3-6).
This is a clear misstatement of the law. In fact, the district court stands the burden of persuasion on its head. Under Rule 403, the government must persuade the court only that probative value is not substantially outweighed by the danger of unfair prejudice. United States v. Mehrmanesh, 689 F.2d at 822, 830 (9th Cir. 1982). In shifting the burden to require that probative value outweigh prejudice, the district court erred as a matter of law.
In any event, as discussed in the next section of this brief, we believe that the record does show that the tape’s very high probative value and reliability outweighs any undue prejudice.
-22-
——
- The Probative Value of the Tape is Not Substantially Outweighed by the Danger of Unfair Prejudice– Indeed, its Probativeness Exceeds Any Undue Prejudice
It is not surprising that after incorrectly finding that the Last Hour Tape had little probative value and then incorrectly shifting the burden to require that probative value overcome undue prejudice, the district court was able to conclude that the unfairly prejudicial value of these tapes outweighs its probative value (ER 222:12-13).
“Unfair prejudice as used in Rule 403 is not to be equated with testimony that is merely adverse to the defendant. The critical inquiry under Rule 403 is whether the evidence is unfairly prejudicial. In the Ninth Circuit, “relevant evidence is not rendered inadmissible merely because it is prejudicial,.., evidence should be suppressed under Rule 403 only when it presents a danger of “unfair prejudice.” United States v. Booth, 669 F.2d 1231,1240 (9th Cir. 1981). This Circuit has defined “unfair prejudice” as meaning:
That the evidence not only has a significant impact upon the defendant’s case (as opposed to evidence which is essentially harmless), but that its admission results in some unfairness to the defendant because of its non-probative aspect.
United States v. Bailleaux, 685 F.2d at 1111, n.2 (emphasis supplied). Where, as here, probative value is high, a greater showing of unfair prejudice is required. Id. at 1111. Further, in such cases the government’s “need” for the evidence and the
-23-
——
availability of cautionary instructions to defuse any undue prejudice militates in favor of admissibility. Bailleaux at 1112.
As discussed above and as this Circuit has recognized, the Last-Hour Tape is highly reliable and probative. Indeed, it is the heart of the government’s proof that Layton was a knowing participant in the conspiratorial plan to kill all departing persons, including Representative Ryan. Thus, it rebutted the defense claim that Layton was acting on his own.
Before excluding such highly probative and essential evidence, a court should carefully assess whether the alleged unfair prejudicial impact really does “substantially outweigh” the probativeness of the evidence and should explore all available alternatives as means of dissipating and “minimizing its prejudicial effect.” United States v. Jamil, supra, 707 F.2d at 642.
Concededly, the background sounds on the tape of crying children bear emotional impact, at least initially. 15/ However, that impact must be placed in context. The tragic events at Jonestown form the inextricable background of this case, with or without the tape. In the past decade, the bizarre and tragic consequences of cult activity are matters of widespread public knowledge. More specifically, the government’s proof on retrial will again include proof of the murders and assaults at the airstrip. including the dramatic video tape of the shooting, as
15/ These background sounds cannot be edited from the tape.
-24-
——
well as the 900 deaths by suicide. Whatever the tape’s impact in isolation, in the context of the entire trial, the increment of emotion added by the tape is not sufficiently prejudicial to Layton to “substantially” outweigh its probative value.
This is particularly so because the emotional scene does not point to Layton, but focuses on Jones as the person responsible for the cries and deaths and the person capable of wielding influence over his followers, including Layton.
The recent case of United States v. Brown, 720 F.2d 1059 (9th Cir. 1983), illustrates the intended application of the “unfair prejudice” principle. There, the evidence depicted the defendant as a “bad man,” had no probative value whatever and contained unfairly prejudicial “racial slurs”. Id. at 1069. Here, by contrast, as this Court has already found, the probative value and reliability of the statement are high. Thus, even if there is a potential for undue prejudice in our case, it is too large a jump to find that the probative value is substantially outweighed” by the danger of unfair prejudice. Uni ted States v. Bailleaux, supra. 685 F.2d at 1111.
The courts, for example, have recognized that gruesome photographs of homicide victims, including victims of child abuse, with attendant emotional impact, are nevertheless admissible under Rule 403 because of their high probative value. United States v. Brady, 579 F.2d 1121, 1129 (9th Cir. 1978) [battered murder victim photograph]; People of Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1261 (9th Cir. 1980) [photo of bloody murder victim]; United
-25-
——
States V. Bowers, 660 F.2d 527, 529-530 (5th Cir. 1981) [photo of murdered child’s lacerated heart]; United States v. Harris, 661 F.2 d 138 (10th Cir. 1981) [evidence of child abuse].
In light of these authorities, our case is closer to Bailleaux (high probative value) and a far cry from Brown (no probative value). Thus, the district court exceeded its discretion in finding that unfair prejudice overcame probative value.
- The District Court Erred in Failing to Even Attempt Suggested Procedures for Reducing Unfair Prejudice
Even assuming arguendo that the danger of unfair discretion prejudice did outweigh probative value, blanket exclusion would still be improper under Rule 403. Under the policy favoring admission of evidence, the court was obliged to explore available alternatives to exclusion which could reduce or minimize any potential prejudice. We suggested these alternatives-rigorous jury selection and forceful cautionary instructions- which were dismissed by the district court in conclusory fashion as “mere palliatives”; no effort to implement them was even attempted (ER 223-224).
We submit that conscientious jurors carefully screened during voir dire and the selection process can be found and instructed to confine their deliberations to the evidence. The use of rigorous voir dire screening to minimize prejudice was implemented and approved in United States v. Weisz, 718 F.2d 413, 432 (D.C. Cir. 1983); see also. United States v. Chapin, 515 F.2d 1274, 1284-1285 (D.C. Ci r. 1978).
-26-
——
In Weisz, the defendants challenged the admissibility under Rule 403 of a videotape of Representative Kelly, an Abscam co-defendant, stuffing $25,000.00 in cash into his pockets, which the district court there characterized as a “disgusting, revolting sight.” Id. at 430-431. The appellate court held the video was admissible and noted that any potential for unfair prejudice was dissipated by the district court’s careful voir dire of prospective jurors including a description to each prospective juror of the “money-stuffing” evidence and inquiry whether it would so offend that the juror would find all defendants guilty by association. Id. at 432.
We submit that this procedure can and should be used here during jury selection, together with appropriate instructions, so as to permit the use of this critical evidence and yet minimize its potential emotional impact. Jurors could be asked, for example, whether evidence in the form of tapes bearing the sounds of crying children at Jonestown would so overwhelm them emotionally that they would vote to convict Layton even if the government’s proof failed to show he was guilty of the crimes charged. Jurors with any doubt about their ability to confine themselves to the evidence would be dismissed. The remaining jurors would be prepared to hear the tape and well conditioned to receive and follow the court’s later cautionary instructions.
With respect to cautionary instructions, the court’s conclusory ruling that no conceivable limiting instruction would be effective is unacceptable in a judicial system committed to the
-27-
——
search for truth. See, e.g. United States v. Goodlow, 597 F.2d 159, 163 (9th Cir. 1979). The unstated premise of the district court’s decision appears to be a fear that jurors, even if selected under
the most scrupulous voir dire procedures, would convict Layton of conspiracy to kill Representative Ryan because they were emotionally overwhelmed by the sounds of crying children at Jonestown. That premise is as erroneous here as this court found it to be in Brady, where the jury was called upon to view admittedly gruesome photos, 579 F.2d at 1129. Based upon the rules of law and the lessons of experience, it is our firm belief that such a fear seriously underestimates the conscientiousness of jurors and the district court’s keen ability to insure fairness through forceful voir dire inquiry and instruction.
The law is clear on this point, listen to and follow instructions. Jurors are presumed to United States v. Johnson, 618 F.2d 60, 62 (9th Cir. 1980), accord., United States v. Sanford, 673 F.2d 1070, 1072 (9th Cir. 1982). Whether the prejudice is too great to be dissipated by instruction must, however, be weighed against the “forcefulness of the instruction and the conviction with which it [is] given.” United States v. Johnson, 618 F.2d at 62. No one who has observed the district judge in this case can doubt his ability to command the respect of jurors, to instruct them forcefully and to insure their obedience to the law as given.
By augmenting the painstaking voir dire already planned forth is case with the screening inquiry suggested in Weisz,
-28-
——
together with forceful guiding instructions from the court, we have absolutely no doubt that conscientious jurors will be found who are able to confine themselves to the real issues in the case.
For the reasons stated above, we respectfully request that the order and judgment excluding the Last Hour Tape under Rule 403 be revised.
DATED: October 5, 1984
Respectfully Submitted,
JOSEPH P. RUSSONIELLO
United States Attorney
By: [signed] SANFORD SVETCOV
Chief, Appellate Section
Attorneys for the Plaintiff-Appellant
UNITED STATES OF AMERICA
-29-
——
STATEMENT OF RELATED CASE
This case is related to United States v. LAYTON, No. 84-1252. It raises issues related to and arising from the prior appeal.
——
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a conformed copy of: BRIEF OF APPELLANT, in UNITED STATES OF AMERICA v. LAURENCE JOHN LAYTON, NOS. 84-1251; 82-1072 (N.D.Cal. NO. CR. 80-416-RFP) was this date mailed to:
JAMES HEWITT
Federal Public Defender
450 Golden Gate Avenue, 17th Floor
San Francisco, California 94102
TONY TAMBURELLO
214 DuBoce Avenue
an Francisco, California 94103
DATED: October 5, 1984
[signed]
CORA L. WELLINGTON, Secretary
U.S. Attorney’s Office