Ninth Circuit On Evaluating "Defendant's Choice Of Reading Material" Under FRE 403

Admission against defendant of a folder with "anarchist articles" that the defendant allegedly gave to a cooperating co-conspirator "must be viewed and reviewed with a careful and skeptical eye" because a "defendant's choice of reading material will rarely have a particularly significant probative value," reversing and remanding conviction in an arson conspiracy case when the trial court failed to "read every page of the articles in order properly to understand their contents before ruling on their admissibility ... under [Federal Rule of Evidence] Rule 403," in United States v. Waters, F.3d (9th Cir. Sept. 15, 2010) (No. 08-30222)

FRE 403 requires a court to carefully balance the probative value of proffered evidence against its potential to create an unfairly prejudicial proceeding. Perhaps no area of FRE 403 jurisprudence is more indicative of the need for this balance than considering the admission against a criminal defendant of material that the defendant allegedly read. In a recent case, the Ninth Circuit instructively assessed the approach to proffering a defendant's reading materials in United States v. Waters, __ F.3d __ (9th Cir. Sept. 15, 2010) (No. 08-30222).

In the case, defendant Waters was charged with conspiring with "several radical environmentalists" in torching (hereinafter, the "UW arson") the office of a professor of horticulture as part of a protest against genetic engineering. In her federal arson trial, the prosecution presented through the testimony of a cooperating co-conspirator (Kolar) a file that contained “anarchist literature.” The defendant "admitted to giving Kolar a folder of articles, but claimed that the articles she gave Kolar were about 'women and activism and vegetarianism,' not anarchist political theory." The government had tested the file for fingerprints and found that while the file had the defendant's prints, the articles in the file "did not have Waters' fingerprints, although some bore fingerprints from [co-conspirators] Solondz and Kolar." The government's theory for admission of the articles was that: "First ... the articles established an 'association' between Waters and Kolar. Second ... the articles were relevant because one of the [letters] mentioned the [charged] UW arson. Finally ... the articles were relevant to rebut the character evidence that Waters introduced in her defense."

The defendant was convicted and appealed, contending in part that the admission of the articles was prejudicial error. The circuit agreed, reversed, and remanded the case for a retrial. The circuit rejected the first two theories for admission of the articles as not "particularly probative" because "[t]he folder, which was found in Kolar's possession and bore Waters' handwritten note and fingerprints, established that Kolar and Waters were friends [but as this was an issue not in contention] ... the articles were unnecessary for that purpose. And, while one article mentioned the [charged] UW arson, it did so in a brief blurb that occupied less than one-tenth of one page, out of a total of 212 pages of articles." Waters, __ F.3d at __.

The circuit then focused on the remaining reason for admitting the articles: "that Waters' choice of reading material is probative of her participation in the [charged] UW arson." The circuit rejected this ground as well. "[W]e have repeatedly expressed our discomfort with such inferences," the circuit noted. Waters, __ F.3d at __ (citing United States v. Giese, 597 F.2d 1170, 1174, 1184-93 (9th Cir. 1979) (prosecution offer of a book entitled "From the Movement Toward Revolution" against a defendant who had been accused of bombing two Navy recruiting centers in opposition to the Vietnam War was affirmed, although the circuit warned: “[W]e wish to emphasize that we are not establishing a general rule that the government may use a person's reading habits, literary tastes, or political views as evidence against him in a criminal prosecution.”).

The circuit concluded that the admission of the articles in defendant Water's case was an error. The circuit opinion included a cogent discussion of why:

"Here, the government did not differentiate between the folder as a physical object and the content of the articles it contained. The government introduced the articles as part of its case in chief, having Kolar read select passages for the jury. Although the jury heard of the fingerprints, the content of the articles received far more attention.

"Although we do not hold that the articles were necessarily inadmissible for any purpose, we observe that a defendant's choice of reading material will rarely have a particularly significant probative value. Thus, attempts to use such evidence against a defendant must be viewed and reviewed with a careful and skeptical eye. United States v. Curtin, 489 F.3d 935, 956 (9th Cir. 2007) (en banc) (noting difficulty with admitting literature against a criminal defendant, and concluding that, while literature may be relevant to intent, its relevancy depends upon the particular facts of the case).

"We believe that an appropriately skeptical eye would have excluded the articles from Waters' trial, or at least limited the articles that were provided to the jury. In contrast to the article's slight probative value, their content was problematic on many levels. To begin with, the foundation for their admission was weak. Kolar could not positively state that the articles in the folder were the articles that Waters had provided her; instead, she testified that, after glancing at the folder, she placed it in a box and never looked at it again before producing it to her lawyer. Waters testified that the articles introduced into evidence were not the articles she gave Kolar. In addition, there was no evidence that Waters ever read the articles. In fact, the lack of her fingerprints on the articles suggests that she did not.

"More importantly, however, the articles were highly prejudicial. While most espoused anarchist political theory, a number advocated violence in no uncertain terms. Many of the articles referred to deriving a disturbing joyfulness from acts of destruction, glorifying actions such as rioting and looting. They included phrases like '[i]n the heart of a riot one can catch a glimpse of the spirit of the revolt without a price,' and references to the 'glee of the looter' and the 'festive atmosphere in the midst of the battle with the forces of the looter.' One article described 'bashing in the skull of society' as 'an intense pleasure ... to be savored.'

"Other articles explicitly advocated the destruction of society, encouraging readers to 'com[e] together to destroy all domination,' and advocating for a 'strong-willed revolt aimed at developing a revolutionary project that can destroy this society and its institutions.' Perhaps the most problematic article was entitled 'Beyond the E.L.F.' It condemned the 'westernized way of life,' and emphasized the need for 'guerrilla tactics in the form of economic sabotage and beyond.' It suggested that anarchists 'choos[e] targets that have the most impact,' such as 'symbolic targets that if destroyed would place a major blow to the false reality [of U.S. society].' It concluded: 'Think big. Wall Street, the stock market, Statue of Liberty, U.S. Capitol, ... Disneyland, ... government agencies.... Realize the difference between pulling up an acre of [genetically engineered] crops and destroying Monsanto.... The difference between spray paint and fire.'

"These passages are highly prejudicial, and even if the record demonstrated an adequate analysis by the district court we would be inclined to hold that admitting them was an abuse of discretion. Their repugnant and self-absorbed embrace of destruction is likely to have swayed jurors' emotions, leading them to convict Waters not because of the facts before them but because she represented a threat to their own values. We need not reach this question, however, because the district court did not properly exercise its discretion. The district court admitted the articles without ever reviewing them. Our case law establishes that this was error.

"The district court's admission of the documents is controlled by our en banc decision in Curtin, which involved the prosecution of a man for traveling across state lines with the intent to engage in a sexual act with a minor. When the defendant was arrested, his 'personal digital assistant' was found to contain 'in the form of text over 140 stories about adults having sex with children.' 489 F.3d at 938. The government sought to introduce the stories into evidence in order to establish Curtin's intent to engage in sexual acts with what he believed was a 14-year old girl. Id. at 939-40.

"The district court allowed the government to introduce five of the stories into evidence, but it appears that no one-neither the district judge nor the attorneys-had read the stories in their entirety. See id. at 957, 958 n. 9. Only during en banc proceedings did this court discover that, '[l]urking in unread paragraph 9 of ... Exhibit 7C,' was a 'graphic description' of a young girl performing acts of bestiality. Id. at 957. As the en banc court observed, '[t]he acts described are enough to sour the stomach. Under no circumstances was this part of Exhibit 7C admissible with respect to any issue in this case. Had the district court read Exhibit 7C, the court would no doubt have spotted this excrescence and required that it be edited out of the exhibit as both irrelevant and dangerously prejudicial.' Id.

"In light of this discovery, the en banc court held that the district court was 'required to have read every word of these stories when exercising its balancing discretion pursuant to Rule 403 to determine whether their potential for undue prejudice substantially outweighed their probative value.' Id. at 957. It made this a requirement for all district courts when performing the 403 balancing test. See id. at 958 ('[W]e hold as a matter of law that a court does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh.').

"Our decision in Curtin controls this case. The district court had the responsibility to read every page of the articles in order properly to understand their contents before ruling on their admissibility. Its failure to do so means that it could not have properly weighed the impact of the articles under Rule 403. Accordingly, we hold that the district court's admitting the folder of anarchist literature constituted an abuse of discretion."

Waters, __ F.3d at __ (footnotes omitted).

For a different assessment by another circuit, consider United States v. Kime, 99 F.3d 870, 877-78 (8th Cir. 1996) (Finding no error in admission of books defendant allegedly owned that set out ways to make illegal drugs and burglarize buildings, including “The Complete Guide to Lock Picking” by “Eddie the Wire,” and “Construction and Operation for Clandestine Drug Laboratories,” because their probative value in defendant's drug conspiracy trial outweighed the danger of unfair prejudice; suggesting that evidence that the defendant did not read the books was more a matter of credibility for the jury).

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