Tuesday, February 19, 2008
The Ninth Circuit's recent opinion in United States v. Nunez-Villegas, 2008 WL 399191 (9th Cir. 2008), left open an issue which the court hadn't previously resolved, but which seems to have an answer that is as clear as day. In Nunez-Villegas, Celso Nunez-Villegas was convicted of one count of being a felon in possession of a firearm under 18 U.S.C. Section 922(g) and one count of being in possession of an unregistered firearm. Id. at *1. The court allowed Nunez-Villegas to stipulate to the fact that he had a qualifying felony conviction under 18 U.S.C. Section 922(g), but the court nonethless gave the jury a copy of his indictment, which "alleged that his prior felony conviction was for possession of narcotics for sale." Id. Nunez-Villegas contended that the submission of this indictment violated his Sixth Amendment right to confrontation. Id.
The Ninth Circuit noted that "[t]he Sixth Amendment is violated by '[a] jury's exposure to extrinsic evidence' not presented at trial." Id. (quoting Raley v. Yist, 470 F.3d 792, 803 (9th Cir. 2006). The court then noted, however, that "[o]ur circuit has not yet decided whether unsupported allegations in an indictment constitute improper 'extrinsic evidence.'" Id. The Ninth Circuit nonethless found that it did not need to answer this question because "under any standard of review, any error did not contribute to the verdict." Id. The court came to this conclusion because Nunez-Villegas' stipulation established that he was a prior felon, and his claim that he was not in possession of an unregistered firearm because he merely held the firearm as collateral for a loan was unavailing. id.
This opinion was no doubt correct based upon the facts of the case, but it leaves me wondering why the Ninth Circuit has failed to answer the question of whether unsupported allegations in an indictment constitute improper "extrinsic evidence." The Ninth Circuit has defined "extrinsic evidence" under this Sixth Amendment test as evidence not presented at trial, acquired through out-of-cort statements, or otherwise. See Yist, 470 F.3d at 803. Clearly, Nunez-Villegas' indictment, at least in unredacted form, was not presented at trial and could not have been presented based upon his stipulation, making it extrinsic. Furthermore, an indictment and the allegations contained therein are clearly "evidence." See, e.g., Haas v. Henkel, 216 U.S. 462, 482 (1910). Therefore, unsupported allegations in an indictment clearly constitute "extrinsic evidence," triggering a Sixth Amendment violation if they improperly contributed to the verdict.