Sunday, March 7, 2010
Federal Rule of Evidence 901(b)(3) provides that authentication can be accomplished by "[c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated." As I always tell my Evidence students, this means that a party can always, as a last resort, submit a handwriting exemplar and the subject writing to the jury to compare even if the party has no other way to authenticate the subject writing. This could have been an important point in the recent opinion of the Eighth Circuit in Rodela-Aguilar v. United States, 2010 WL 724654 (8th Cir. 2010).
In Rodela-Aguilar, Armando Rodela-Aguilar and others, including Arturo Navarette-Silva, were convicted of conspiring to distribute, and aiding/abetting possession with intent to distribute, methamphetamine. The most important piece of evidence tying Rodela-Aguilar to the conspiracy was an Express Mail label identifying him as the sender of a temporary license tag used on a car used by his alleged co-conspirators. At trial, a postal inspector testified on direct examination that an Express Mail label "is usually but not always prepared by the subject who is mailing it, prompting the following exchange between defense counsel and him during cross-examination:
Q: Now, you said that the section that described the person sending the mail may or may not be the actual person, in fact?
A: That's correct.
Q: There's no identification required for that?
A: That's correct.
Q: So I could walk into the post office right now, fill out an Express Mail thing from Rich Britain to anybody in California and use a local address here and that would get sent?
Also, during her cross-examination of a detective, defense counsel highlighted Rodela-Aguilar's
handwriting to the jury, clarifying that, on a Miranda waiver form, Rodela's signature was in the middle of the page whereas the listing of his name on the top of the form was “not his handwriting.” Then, during closing argument, [defense counsel] sought to minimize the significance of the mailing label:
Anybody can go in and put anybody's name on [the mailing label]. I could take any one of your names ... go on a break to the downtown post office [and] mail something to Timbuktu with your name as sender. That doesn't make it so.... There is a Miranda Waiver that Mr. Rodela signed.... And you can see how he does a lot of those capital letters. Especially he likes that capital A on the end. He likes the capital N and R.... The postal receipt didn't [prove] Mr. Rodela was the sender.
After he was convicted, Rodela-Aguilar filed a pro se motion for relief under 28 U.S.C. Section 2255, alleging ineffective assistance of counsel. The district court granted that motion, finding, inter alia, that
After reviewing Rodela's handwriting on the Miranda waiver form and the pleadings he has signed in this action, the Court finds that the handwriting on the mailing label does not match Rodela's, but rather, matches Navarrete's. Even without expert testimony, a comparison could have been made by the jury, see Fed.R.Evid. 901(b)(3), and the jury would probably have drawn the same conclusion as the Court if Rodela's attorney had presented the handwriting of Rodela and Navarrete for comparison to the label.
The Eighth Circuit thereafter reversed. It noted initially that it could not find defense counsel's performance deficient based upon failure to call a handwriting expert without "'evidence of what a scientific expert would have stated' at trial." The court did, though, find that defense counsel could have had the signature on the mail label authenticated as the signature of Navarette-Silva and not the signature of Rodela-Aguilar under Federal Rule of Evidence 901(b)(3).
But, according to the court, the government's case hinged on linking Rodela-Aguilar to Navarrete-Silva, the primary conspirator, and it did so through several pieces of evidence. The court thus found that
Defending this case, a competent attorney could reasonably conclude that persuading the jury Navarrete mailed the temporary tag to Castro using Rodela's name and a prior common address would play into the government's attempt to link her client to Navarrete....Thus, the tactic Ms. Nouri in fact pursed-simply raising doubt whether Rodela filled out the mailing label-was more consistent with her overall defense strategy.
Huh? This is like almost like a court saying it is a reasonable strategy for a defense attorney merely to argue that somebody besides the defendant might have committed murder when that attorney has direct evidence of a specific other person committing the murder. Now, I do get the court's point that the government's case hinged on connecting Rodela-Aguilar to Navarrete-Silva and that proving that Navarrete-Silva filled out the mail label would have further linked Rodela-Aguilar to him. But the Eighth Circuit itself noted that the government had already linked the two through several other pieces of evidence. This being the case, I don't see much harm in linking them through one other piece of evidence, especially when the alleged "link" consists of Navarrete-Silva and not Rodela-Aguilar doing something, the very something that was the key to the government's case.