Federal Evidence Review

In trial for transportation of illegal aliens resulting in death, misconstruction of the charged crime 8 U.S.C. § 1324(a)(1)(B)(iv) as not requiring proof of proximate cause between the defendant's act of transporting illegal aliens and killing them, led to the erroneous exclusion on relevance grounds of FRE 401 and FRE 403 of defense evidence of proximate cause (that pursuing agents violated agency policy regarding deploying a spike strip across the road on which the defendant fled, breaking the chain of causation between the defendant's transport of the aliens and the accident that killed the aliens when the defendant ran over the spike strip), in United States v. Pineda-Doval, __ F.3d __ (9th Cir. August 10, 2010) (No. 08-10240)

FRE 401 defines relevant evidence as that which has "any tendency to make the existence" of a fact "more probable or less probable than it would be without the evidence." However, the rule also requires that the fact to be shown by relevant evidence as one that is "of consequence to the determination of the action." FRE 401. These "two distinct requirements" - probativeness and consequence - serve as the foundation for showing relevance. See, e.g., United States v. Hall, 653 F.2d 1002, 1005–06 (5th Cir. 1981) (nothing these “two distinct requirements” necessary for a showing of relevance under FRE 401 - proffered evidence must be 1) “probative of the proposition it is offered to prove” and 2) the proposition must be “one that is of consequence” to the case). In a recent case, the Ninth Circuit examined a situation in which its findings of the requirements of the law had the effect of changing the evidence that had been excluded at trial as irrelevant into relevant evidence for the defense.

In the case, defendant Pineda-Doval "loaded twenty men, women, and children into a Chevrolet Suburban. The car was not equipped with rear seats or safety belts. All of his passengers were illegal aliens. Eighteen of them crowded into the back of the Suburban, and two pregnant women sat in the front seat next to Pineda-Doval, the driver." After immigration agents pursued the defendant's vehicle they finally brought it to a stop by employing a CTDD (controlled tire deflation device) or "spike strip." But in "trying to drive around the CTDD," the defendant's vehicle "caught his right rear tire. He immediately swerved [and] .... [t]he weight of his unsecured passengers suddenly shifted, and the front edge of the Suburban 'tripped' into the asphalt. Passengers were thrown from the Suburban as it rolled once on its side and then once more end-to-end, finally coming to rest right side up but facing the wrong direction. Five passengers died at the scene, and five more died at hospitals as a result of injuries sustained in the crash." Pineda-Doval, __ F.3d __.

Pineda-Doval was charged with ten counts of transportation of illegal aliens resulting in death, 8 U.S.C. § 1324(a)(1)(B)(iv). In his defense, he sought to submit evidence of the agent's agency - Customs and Border Patrol (“CBP”) - and that the agents did not comply with the "CBP policies for deploying spike strips." The trial judge rejected this evidence. He "concluded that the 'resulting in death' element of 8 U.S.C. § 1324(a)(1)(B)(iv) does not require that the defendant's conduct be the proximate or 'immediate' cause of the charged deaths, only the but-for cause of those deaths. Accordingly, evidence of the intervening negligence of the Border Patrol agents was irrelevant and thus inadmissible under Rule 401." As a result, the defense "rested, explaining that he had no evidence because of the court's ruling. The jury deliberated for about an hour and a half before finding the defendant guilty on all counts." The defendant appealed contending that conviction of the crime required the government to show beyond a reasonable doubt that the defendant's actions were the "proximate" cause of the charged killings. The defendant also urged as error that as the trial judge did not require the jury to find proximate cause, it also did not allow evidence the defendant to present any evidence relative to proximate cause. Pineda-Doval, __ F.3d __.

The circuit agreed with the defendant that one element of the charged offense of transporting illegal aliens resulting in death involved proof that the defendant's conduct was the proximate cause of an alien's death. However, even though the trial judge failed to instruct the jury on the proximate cause element of the “resulting in death” requirement, this error was harmless. The circuit concluded that it was clear beyond a reasonable doubt that the jury would have found the defendant guilty even had the error not occurred. While the defendant's unsuccessful attempt to swerve around spike strip roadblock was the proximate cause of the deaths of ten aliens, the circuit concluded that this result was entirely foreseeable. It was clear, contended the circuit, that the that agents would set up a spike strip to stop the defendant's vehicle if the defendant was found. In this context, it was apparent that the defendant's dangerous driving could end in an accident. Therefore, the agent's set up of a spike strip in the road on which the defendant fled was not a superseding cause of the accident.

But deciding that the crime required a showing of proximate cause also meant that evidence excluded by the court because it was related to proximate cause was also erroneously excluded. As explained the the circuit, the evidence of the policies of the agent's employing agency was relevant under FRE 401:

"Contrary to the district court's conclusion, evidence of CBP policies on spike strips was relevant to the issue of causation. As we have already explained, 8 U.S.C. § 1324(a)(1)(B)(iv) does contain a proximate cause requirement. For a defendant to be found guilty of transportation of illegal aliens resulting in death, the Government must prove that the defendant's criminal conduct was the but-for cause and the proximate cause of the charged deaths. Evidence of CBP policies governing spike strips, and Agent Lindsay's and Agent Russell's compliance with those policies, is relevant because it goes to the question of whether their actions were extraordinary enough to break the chain of causation between Pineda-Doval's conduct and the deaths of ten of his passengers."

Nor was this evidence excludable as unduly prejudicial. The circuit explained that excluding the evidence as unduly prejudicial under FRE 403 was unwarranted:

"The probative value of evidence of the CBP policies was not 'substantially outweighed' by the risk of unfair prejudice, confusion, or waste of time. The only real factual dispute at Pineda-Doval's trial was whether his driving caused the ten charged deaths. Evidence of the CBP policies had significant probative value because it went to the question of whether Agent Russell's conduct constituted a superseding cause of the accident. The excluded evidence posed no risk of unfair prejudice, unnecessary delay, or jury confusion. The district court abused its discretion by excluding the evidence under Rule 403."

As demonstrated by Pineda-Doval, a focus on probative value under FRE 401 is incomplete without an exacting understanding of the requirements of the law. In this way, sometimes an evidence issue devolves into a question of what the law means and how it is applied. One needs to identify the facts necessary to prove one's case, but what these facts are depend upon a correct interpretation of the law.