Adoptive Admission Flashcards
What is the standard of review here? Don’t you have to show that the adoptive admission finding was illogical, implausible, and without support in the record?
Not at the first step of abuse-of-discretion review. “[T]he first step . . . is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested.” United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009). “If the trial court failed to do so, [the Court] must conclude it abused its discretion.” Id. And here, the court did not employ either the hear/accede/understand standard or the possession-plus standard. It never cited either standard explicitly. And more importantly, both parties here agree that both standards turn on whether Mr. Singh understood the “pointing at the pocket” gesture as a request for ID. The MJ never made any finding about that. She found only that the agent was trying to get immigration information and that Mr. Singh ultimately turned over his document. She said nothing about Mr. Singh’s understanding and never mentioned the pointing.
But the standard of review is just so deferential. And it seems to me that the MJ could find possession-plus here.
But this Court employs that deferential standard only if the judge applied the correct legal rule. And here, she never did.
• But even under a deferential standard, there is simply no evidence to support adoptive admission, even under possession-plus. We know from Transbay that possession alone doesn’t cut it. There has to be an actual plus. The government says that the “plus” occurred when Mr. Singh understood, based on another detainee pointing to his pocket, that he was being asked for ID–at which point he pulled out the docket. But there just isn’t any evidence to support the notion that Mr. Singh would have understood the gesture as a request for ID. it is undisputed that he does not speak English or Spanish, so he couldn’t’ have understood any of the agent’s commands. And pointing to a pocket is not a request for identification. There is no evidence that he would have thought of as such. It is just as natural to assume that he’s being asked to empty his pockets, and in fact, that’s how the prosecutor interpreted it at one point. So to say that he somehow drew the proper inference is sheer speculation.
Well, as the government says, it is notable that Mr. Singh pulled out a passport–not some nonresponsive document or item. Doesn’t that suggest understanding?
The problem with that argument is that there simply isn’t any evidence that Mr. Singh had anything else in his pocket at the time. So there is no evidence that he was discriminating between the items in his possession and only picking the responsive one. As far as the record shows, he was just giving over whatever he had.
Does it even matter whether your client understood the agent’s request? Isn’t just carrying around the passport enough?
No, your honor. Transbay holds that possession-plus requires “evidence of adoption beyond mere possession.” a defendant can manifest adoption through his “possession plus his additional act.” Transbay Auto Serv., Inc. v. Chevron USA Inc., 807 F.3d 1113, 1119 (9th Cir. 2015).
Why can’t the “plus” be the location? Carrying a passport at the border sure seems like a plus to me.
• I think that inference would make more sense at a port of entry. Btu obviously, Mr. Singh wasn’t using this passport to get into the country. In fact, the government alleged that he was trying to avoid having to present it for purposes of admission. So in these circumstances, I don’t think the border raises any inferences.
But why would you carry a passport if not to identify yourself? United States v. Cuesta, No. 6CR40-AWI, 2007 WL 2729853, at *17 (E.D. Cal. Sept. 19, 2007) (unpublished), aff’d 286 F. App’x 358 (9th Cir. 2008) (unpublished) (not “passively carried” but carried “for identification purposes”).
• The record doesn’t reveal the answer to that, which is a problem for the government, since they bear the burden here. But at the end of the day, the “why” isn’t really the question. Transbay requires a “additional act” in order to adopt an admission. Regardless of his subjective reasons, he didn’t commit any such “act” here.
I get your argument that he didn’t understand the agent at the beginning. But you agree, he must have understood the other arrestee pointing to his pocket, right? I mean he did respond to that in an appropriate manner.
Surely he understood that he was being asked to pull something out of his pocket. But there is no evidence that he knew he was being asked for ID. Pointing to a pocket is not, itself, a request for ID. He didn’t understand any of the agent’s English or Spanish commands, so that couldn’t have helped. And in context, it was just as reasonable to think that he was being asked to empty his pockets. The prosecutor herself pointed out that ents often “ask[] suspects to empty the contents of their pockets,” for fear of dangerous items like “small blades.” ER-47. Agent Fulton therefore asked the arrestees “whether they had anything in their pockets, and people started pulling things out, and then somebody pointed to the defendant’s pockets . . . , and that’s when the defendant pulled out the passport[.]” ER-47.
Can’t we also look at his behavior in handing over the passport? I mean, he can tell the agent is copying down information from the passport. If it were me, and the passport didn’t adequately reflect who I was, I would at least make some gesture to indicate that this isn’t me. I get he couldn’t talk but couldn’t he pantomime? (Monks - matters whether you “denied” or “made some other appropriate response”)
Mr. Singh doesn’t speak English or Spanish.
• [Read Monks and think more about this. Maybe something about how in monks, this was just one fact among several. The guideline requires the person to actually “manifest” adoption. Likewise, Transbay says “additional act.” Just an omission doesn’t seem to fit the bill.]
• [Maybe something about how the government bears the burden to affirmatively show that he adopted it. This almost assumes that he did adopt it and places the burden on us to disprove it or something.]
Didn’t we say in Transbay that “possession-plus” is met if a defendant “relies on a third-party statement” by “submitting the document to another”? That seems directly on point to me.
Read Transbay.]
• It was in the context of that case. But even there, the defendant must rely on the statement in submitting it to another. For example, in Transbay itself, the declarant receiving an appraisal, then knowingly and intentionally submitted it to a lender as part of his loan application. Transbay, 807 F.3d at 1121. So that was an obvious instance where he was relying on that information to further his application goal. Here, there is no evidence that Mr. Singh was trying to rely on this document as a reflection of his identity.
• I also think this is starting to get into questionable territory, because it begins to look like compelled self-incrimination. It cannot be that if a police officer demands that you give him a document, and you capitulate to that command, then you’ve suddenly made damaging admissions that can be used against you at trial. I think we can agree that the rules committee did not intend for compelled adoptions to be incorporated into adoptive admissions. So if that’s what the government’s claim is getting at, this Court should certainly reject it.
Didn’t your briefing rely on the wrong standard, “hear, accede, and understand”? We said in Transbay that “possession-plus” was appropriate for documents
Read Transbay.]
• In my view, hear/accede/understand is the appropriate standard, but ultimately, it doesn’t really matter. Even on the government’s “plus” theory, the “plus” in question is understanding the request for ID and handing over the document in response to that request. So, either way, the case will come down to Mr. Singh’s understanding.
But in Benedict, didn’t we say that there was no showing of prejudice because there was no evidence that the document actually would have yielded exculpatory evidence?
[this is an element of destruction of evidence too, I think?]
