# United States Court of Appeals

For the First Circuit

_____________________ No. 15-1716 UNITED STATES OF AMERICA,

Appellee,

v.

ROBEL KIDANE PHILLIPOS,

Defendant, Appellant.

__________________

Before Howard, Chief Judge, Torruella, Lynch, Thompson, Kayatt a, and Barron. Circuit Judges

.

ORDER OF COURT Entered: August 3, 2017

Pursuant to First Circuit Internal Operati ng Procedure X(C), the pe tition for rehearing en banc has also been treated as a petition for rehear ing before the original panel. The petition for rehearing having been denied by the panel of j udges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordere d that the petitio n for rehearing

en banc be denied.

THOMPSON

, Circuit Judge, dissenting from th e denial of rehearing en banc. In my view, the district court abused its discretion in refu sing to hold an evidentiary hearing on Phillipos's motion to suppress his confession. As a condition of holding an evidentiary hearing in the first place, the district court sought to extract a pre-hearing commitment fr om Phillipos that he'd testify at the hearing, and the court furthe r ordered that Phillipos would be the first witness to testify at the hearing if one were held. When Phillipos refu sed to accept these cond itions, the district court

declined to hold an eviden tiary hearing. As I see it, this deci sion is inconsistent with the ironclad rule that the government bears the burden of pr oof on the voluntariness issue. In affirming the district court on this point, the majority stretches a prior decision of this court much too far, and I cannot find — and the panel opinion has not identif ied — any other conceivable support for what the district court did. Because I fear that the pane l's approval of the district court's improper denial of an evidentiary hearing will have a far-reachi ng impact on the manner in which motions to suppress are considered and decided within this ci rcuit, I respectfully dissent from the denial of rehearing en banc.- 2 - I. Background

Before trial, Phillipos moved to suppress hi s confession. In suppor t of his motion, he submitted his affidavit, which was signed under the pains and penalties of perjury. He also requested that the district cour t hold an evidentiary hearing on the suppression motion. And he requested that the court "place the burden of production and persuasion as to the voluntariness of the defendant's statements on the [g]overnment be fore requiring the defendant to testify at the hearing." Requiring Phillipos to testify first at the evidentiary hearing, he argued, would place "the burden of production on the defendant rather than the government, and requir[e] him to be

offensive with evidence rather than defensive. Th is is unfair because it is the defendant who should be confronting the [g]overnment[']s evidence, not the other way around."

The district court decl ined to hold an evidentiary hear ing on Phillipos's motion. Because of the court's "lingering concern" that, "over th e years," the defense bar has employed motions to suppress to "obtain[] discovery that the parties are not properly enti tled to," it indicated that it would hold an evidentiary hearing only if Phillipos agreed to the court's unique order of proof. Although the court concluded that the allegations in Phillipos's affidavit were sufficient to create the necessary genuine factual disput e to trigger the need for an evidentiary hearing, it nevertheless

concluded that the affida vit alone was not enough. Based on "w hat appear[ed] to be ambivalence, perhaps, on the part of [Phillipos], the suggestion that, while [his] affidav it[] [is] sufficient, [he has] not decided whether to tes tify," the court reasoned that, if Phillipos did not testify at the evidentiary hearing, then his affidavit is "a bsolutely illusory" a nd "a bait and switch."

To combat this perceived danger, the district court ordered that the evidentiary hearing would proceed as follows: (1) Phillipos would firs t testify on direct examination; (2) then, if his testimony "raise[d] the question [of voluntariness] sufficiently," the government would produce its evidence of voluntariness; and (3) finally, if the government's ev idence was sufficient to ground a finding of voluntariness, the government would be permitted to cross-examine Phillipos. After proposing this unique procedure, the court then sought to extract a commitment from Phillipos to testify at the hearing.

Phillipos objected to the procedure proposed by the district court, arguing that, because the government bears the burden of pr oof on the issue of whether Phill ipos's confession was voluntary, the government should be forced to first go forwar d with its evidence at the evidentiary hearing and only then, after the government rested, should Phillipos need to decide whether to take the

stand. The district court remain ed steadfast in its position, a nd, when Phillipos was unwilling to make a pre-hearing commitment to testify, the distri ct court refused to hold an evidentiary hearing.

II. No Support for Refusal to Hold an Evidentiary Hearing

Everyone agrees that Phillipos was entitled to a hearing on his motion to suppress only if he made "a sufficient threshold showing that materi al facts are in doubt or dispute, . . . that such facts cannot reliably be resolved on a paper recor d," and "that there are factual disputes, which, if resolved in his favor, would entitle him to the re quested relief." United States v. Cintron, 724 F.3d 32, 36 (1st Cir. 2013) (quoting United States v. Fran cois, 715 F.3d 21, 32 (1st Cir. 2013)); see also United States v. Jiménez, 419 F.3d 34, 42 (1st Ci r. 2005); United States v. Staula, 80 F.3d 596,- 3 - 603 (1st Cir. 1996). The district court in this case concluded that, if the allegations in Phillipos's affidavit were credited, this st andard would have been met, s ee United States v. Phillipos, 849 F.3d 464, 468 (1st Cir. 2017), and the panel opinion does not purport to disagree with the district court's assessment on this score, so neither will I. Theref ore, all agree that Phill ipos was entitled to an evidentiary hearing if the district cour t improperly disregarded his affidavit.

The panel opinion relies on our decision in Un ited States v. Baskin, 424 F.3d 1 (1st Cir. 2005), to support its conclusion that the district court did not a buse its discretion in removing Phillipos's affidavit from the equation. See Philli pos, 849 F.3d at 469. In my view, Baskin is cut from entirely different cloth than our case.

For starters, in Baskin, unlike in this case, the district court held an evidentiary hearing. 424 F.3d at 3. To be sure, the panel opinion acknowledges this difference between Baskin and this case, but it nonetheless concl udes that Baskin supports the distri ct court's refusal to consider Phillipos's affidavit. See Phillipos, 849 F.3d at 469. I cannot subscribe to this conclusion.

In Baskin, the defendant testified at the evid entiary hearing on direct examination. It was only when the defendant invoked his Fifth Amendmen t right against self-incrimination and refused to answer the government's cross-examination questions that the district court struck his affidavit.

424 F.3d at 3. The decision to strike the affida vit was viewed by this court as a matter of "discretionary selection of remedy" for a witness's gamesmanship. Id. As we explained, "[a] trial judge may strike a witness's direct testimony if he flatly refuses to answer cross-examination questions related to the detail s of his direct testimony, ther eby undermining the prosecution's ability to test the truth of his direct testim ony." Id. (internal quotation marks omitted) (quoting United States v. Bartelho, 129 F.3d 663, 673 (1st Cir. 1997)).

Phillipos's case, by contrast, is very different. He was not attempting to testify only on direct examination without subjecting himself to cross-examination; he was not even attempting to testify at all. Instead, he was simply tryi ng to meet his initial burden under our case law to demonstrate the existence of a factual dispute n ecessitating an evidentiary hearing, leaving the decision of whether to testify at the hearing until after the government attempted to meet its burden of proof on the issue of voluntariness.

It is one thing to say that, when a hearing is held and a defendant take s the stand but refuses to be subject to cross-examination after comp letion of his testimony on direct examination, the

court can strike from the record the evidence that has been improperly shielded from crossexamination. It seems to me something complete ly different to say that , when assessing whether

a defendant has met his initial burden to show a factual dispute entitling him to an evidentiary hearing, the district court can refuse to consid er an affidavit — signed under the penalties of perjury — and decline to hold any evidentiary hear ing in the first place simply because the defendant is not prepared, then and there, to commit to taking the st and. At the very least, nothing in Baskin — which has nothing to do with the st andard for obtaining an ev identiary hearing — or any of the other cases cited by the government or in the panel opinion sugges ts that a defendant's affidavit suffices to meet our evidentiary-hearin g standard only when the defendant makes a prehearing commitment to testify at the hearing. Cf. United States v. Schaefer, 87 F.3d 562, 570 (1st Cir. 1996) (explaining that "a judg e presiding at a suppression h earing may receive and consider- 4 - any relevant evidence, in cluding affidavits and unsworn documents that bear indicia of reliability" and concluding that "the governme nt effected a prima facie showing of consent by placing a copy of the police report before the court").

Moreover, the existence of a hearing is not th e only critical difference between Baskin and this case. The only issue with which this court was concerned in Baskin was whether the defendant had standing to challenge the officers' warrantless entry into a motel room. 1 See 424 F.3d at 3. A

defendant bears the burden of esta blishing his or her standing to challenge an unlawful search. United States v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016) ("Under what is known as the 'standing' doctrine, the defendant carries th e burden of making a threshold s howing that he has 'a reasonable expectation of privacy in the area searched and in relation to the items seized.' . . . 'This burden must be carried at the time of the pretrial hear ing and on the record comp iled at that hearing.'" (quoting United States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988))). And, in Baskin, the only evidence the defendant offered to support his stan ding to mount the Fourth Amendment challenge

was contained in his affidavit. 424 F.3d at 3. When the defe ndant, after testifying on direct, refused to answer the government's questions on cross-examination, the district court struck his affidavit. Id. And, because the defendant had "offered no other evidence " to shoulder his burden to establish standing, he "failed to establish a ny ground for asserting a Fourth Amendment right."

Id.

In this case, by contrast, Phillipos moved to suppress his confession on the ground that it was not voluntary. Unlike on the question of Four th Amendment standing, "[t]he burden of proof is on the prosecution to show by a preponderance of the evidence to the judge that the confession was voluntary." 2 United States v. Feliz, 794 F.3d 123, 130 (1st Cir. 2015). Therefore, although Baskin might support a requirement that the defe ndant agree to testify consistently with his

affidavit when the affidavit concerns a matter on which the defendant bears the burden of proof, 3
it offers no support for the district court's require ment in this case that a defendant who did not bear the burden of proof make a pre-hearing commitment to testify (and testify first).

Taken together, the two critical differences between this case and Baskin convince me that that case provides no support for what the distri ct court did here: conditio ning the decision whether to hold an evidentiary hearing concerning an is sue for which the government bears the burden of proof on a defendant's pre-hearing commitment to testify. The panel opinion does not identify any other authority to support the district court's deci sion to disregard Phillipos's affidavit, and I too

1 I use the term "standing" here in the interest of brevity. See United States v. Sowers, 136 F.3d 24, 26 n.2 (1st Cir. 1998) ("Although use of the term standing in this context may offend a legal purist, we have employed that word as a shorthand method of re ferring to the issue of whether

the defendant's own Fourth Amendment interests were implicated by the challenged governmental action." (internal quotation marks omitted)).

2 Although the panel opinion acknowledged that th e constitutional basis for suppression in Baskin (the Fourth Amendment) differed from that invoked by Phillipos (the Fifth Amendment), see Phillipos, 849 F.3d at 469, it failed to acknowle dge the difference in the party bearing the burden of proof on the issue to which the affidavit was directed.

3 I emphasize "might" here because — it bear s repeating — Baskin did not address our standard for the showing necessary to obtain an evidentiary hearing in the first place.- 5 - have found none. None of our cases on the need to show an entitle ment to an evidentiary hearing suggests the defendant also needs to commit to testifying — let al one to agreeing to be the first witness to testify at th e hearing. See, e.g., Jiménez, 419 F.3d at 43 (holding that district court did

not abuse its discre tion in refusing to hold seco nd evidentiary hearing wher e "[t]he district court had already heard evidence at the previous evidentiary hearing about the [relevant] circumstances"

and could "therefore reach a determination abou t voluntariness without the need for additional evidence"); Staula, 80 F.3d at 603-04 (affirming re fusal to hold evidentiary hearing because, even if defendant's affidavit was accepted as true, it did not create factual disp ute concerning key issue of when officer first smelled marijuana).

Indeed, we've even found a district court's refu sal to hold an evidentiary hearing to be an abuse of discretion where, as here, a defendant's a ffidavit created the requisite dispute of material

fact. See United States v. D'Andr ea, 648 F.3d 1, 3, 8 (1st Cir. 2011). In that case, the government sought to justify a warr antless viewing of photographs in a password-protected website on the basis of the private-search doctrin e, among other grounds. Id. at 6. The critical issue posed by the application of that doctr ine to the facts of D'Andrea was how the anonymous tipster obtained the

account access information that she later disclosed to law enforcement. See id. at 8. We held that an evidentiary hearing was re quired because, among other reasons , there was a dispute as to

whether the defendants shared the access informati on with the tipster. Id. We noted that "both defendants affirmed in sworn affidavits that they did not share the passwor d with anyone." Id. The need for an evidentiary hearing was based on the affidavits themselves; nothing in that decision suggested that the need for the heari ng depended on defendants' pre-hearing commitment to testify consistently with their affidavits.

To be sure, if, as was the case here, a defendant 's affidavit establishes the need to hold an evidentiary hearing and if, after the government pr esents sufficient eviden ce of voluntariness, the defendant refuses to testify or pr esent any evidence besides his or her affidavit, the district court is not required to accept the affidavit into evidence. 4 To the contrary, at this point, the district

4 A criminal defendant's decisi on to take the stand at a suppr ession hearing is not one that should be undertaken lightly. Although the government cannot use a defendant's suppressionhearing testimony as evidence of the defendant's gu ilt at trial, see Unit ed States v. Simmons, 390 U.S. 377, 390, 394 (1968); United States v. Symone vich, 688 F.3d 12, 21 n.6 (1st Cir. 2012), such pretrial testimony can be used to impeach a defe ndant's testimony at trial, United States v. Smith, 940 F.2d 710, 713 (1st Cir. 1991). See United Stat es v. Jaswal, 47 F.3d 539, 543-44 (2d Cir. 1995) (holding that defendant's suppression-hearing te stimony can be used to impeach defendant's testimony at trial); United States v. Beltr an-Gutierrez, 19 F.3d 1287, 1289-91 (9th Cir. 1994) (same); United States v. Quesada-Rosadal, 685 F.2d 1281, 1283 (11th Cir. 1982) (same); see also United States v. Geraldo, 271 F .3d 1112, 1116 (D.C. Cir. 2001) (s uggesting same); cf. United States v. Salvucci, 448 U.S. 83, 93-94 & nn.8-9 (1980) (explaining that C ourt "has not decided whether Simmons precludes the use of a defendant 's testimony [at a suppression hearing] to impeach his testimony at trial," while simultaneously noting that "[a] number of courts considering the question have held that such testimony is ad missible as evidence of impeachment" and that "[t]h[e] Court has held th at 'the protective shield of Simmons is not to be converted into a license for false representations'" (quoting United States v. Kahan, 415 U.S. 239, 243 (1974))).- 6 - court has discretion to strike or re fuse to consider the affidavit. See, e.g., United States v. Riney, 742 F.3d 785, 787 (7th Cir. 2014) (def endant supported his motion to suppress with his affidavit,

which contradicted officers' version of events ; evidentiary hearing was held; when defendant refused to testify, court refused to admit affidavit into evidence, such that "[n]one of the evidence offered at the hearing supported the version of events presented in [defendant's] affidavit"); United States v. Maldonado-Rivera, 922 F.2d 934, 972 (2d Cir. 1990) ("in support of his contention that he had been coerced into making the statements," defendant relied upon affi davit of his attorney and "unsworn and unsigned 'declara tion[s]' by his wife and himself" ; evidentiary hearing was held; when defendant refused to testify, di strict court "properly declined to credit the attorney's affidavit because it was not based on the attorney's pe rsonal knowledge and declined to credit the 'declaration[s]' because they were not sworn to or even signed"). 5

In my view, the district court' s discretion to strike or refuse to consider the defendant's affidavit if he ultimately elects not to take the stand during the evidentiary hearing is more than enough to combat the problem of "ill usory" defense affidavits perceive d by the district court. The more drastic step of securing a pre-hearing commitm ent from the defendant that he will testify and ordering him to do so at the outset of the hearing is over kill that, as far as I can tell, has no basis

in our law.

So there we have it: Neither the only cas e cited by the panel opinion nor any other case unearthed by the government or the panel supports what the district court did. As I see it, that

alone warrants reconsideration of this aspect of the panel opinion. But there's more cause for

concern.

The district court recognized this concern, but it thought th at deferring cross-examination until after the government presented sufficient evidence of voluntariness was an adequate safeguard. I disagree. Because the decision whethe r to testify at a suppression hearing is a weighty one, it is imperative that a defendant not be forced to make that decision — in this context where the government bears the burden of proof — before hearing the government's evidence on the issue of voluntariness. The district court's approac h, by contrast, would force defendants to commit to testifying before hearing the gove rnment's evidence and even though that evidence might turn out to be insufficient to carry the government's bur den, in which case the defendant's testimony would be unnecessary.

5 Indeed, until the panel opinion in this case, that's precisely how district courts within this circuit have interpreted Baski n. See, e.g., United States v. Cabral, 965 F. Supp. 2d 161, 167-68 (D. Mass. 2013) (recognizing cour t's discretion under Baskin to strike affidavit if, during the suppression hearing, defendant elects not to testify, but declining to exercise that discretion in the circumstances); United States v. Ramos, 591 F. Supp. 2d 93, 113-14 (D. Mass. 2008) (same); United States v. Sanchez, 535 F. Supp. 2d 216, 218, 224 n.8 (D. Mass. 2008) (same); cf. United States v. Deleston, No. 15-cr-113(PKC), 2015 WL 4745252, at *5 (S.D.N.Y. July 24, 2015) (noting that, in that jurisdiction, "a defendant is required to subm it a sworn affidavit in order to obtain a suppression hearing. Having served this purpose, the affidavit effectively drops from sight, since it is rarely, if ever, considered by a judge in assessing the evid ence at the suppression hearing" and citing Baskin to support court's author ity to strike affidavit if, during the evidentiary hearing, the defendant refuses to testify (quo ting United States v. Pola nco, 37 F. Supp. 2d 262, 264 & n.4 (S.D.N.Y. 1999))).- 7 - III. Conflating Distinct Burdens

I'm persuaded by Phillipos's argument that the di strict court's take-it- or-leave-it proposition — that, if Phillipos wanted an ev identiary hearing, he'd need to be the first witnes s to take the stand — improperly shifted the burden of proof on the voluntariness inquir y. In my view, the district court impermissibly confla ted two distinct burdens: the initial burden to show the existence of a factual dispute warranting an evidentiary hearing, which rests with a defendant, and the burden of production at the evidentiary hearing, which re sts with the government in the voluntariness context. See 3 Wayne R. LaFave et al., Crimin al Procedure § 10.1(b) (4th ed. 2016) [hereinafter LaFave] (distinguishing the requirement that a defendant making a suppre ssion motion "set out facts in support of the motion" from the separate "questi on whether it is wise to impose upon the

defendant the initial burden of going forward with the evidence at the suppression hearing"). The government's burden of proof on the voluntariness of the confession

actually encompasses two separate burde ns. One burden is that of producing evidence, sometimes called the "burden of evidence" or the "burden of going

forward." . . . The other burden is the bur den of persuasion, which becomes crucial only if the parties have sustained thei r respective burdens of producing evidence and only when all eviden ce has been introduced.

Id. § 10.3(a); see also id. § 10.3(c) ("When the issue at a suppression hearing is whether a

confession obtained from the defe ndant was voluntary, most jurisd ictions place the burdens of production and persuasion upon the prosecution." (footnote omitted) (emphasis added)).

In this case, the district cour t ordered that Phillipos would te stify first at the suppression hearing. In doing so, it undeniably placed the bu rden of production — the burden of going forward — on Phillipos. It explained that it would "put the [g]overnment to its proof" if and only if Phillipos's testimony was "sufficient." Such an allocation of the burden of production may be appropriate where the defendant bears the burd en of proof on an issue. See id. § 10.3(a) ("[A]llocation of the burden of goi ng forward may be of greater sign ificance. . . . [I]f the defendant has the burden of going forward he mu st often take the stand first and tell 'his side of the story.'"). But it is, in my view, inappropriate where, as here, the government b ears the burden of proof.

I am of the opinion that the district court's assignment of the burde n of going forward to the wrong party is an error of law and, therefore, constituted an a buse of discretion. See Phillipos, 849 F.3d at 468 ("[A]n error of law is always tantamount to an a buse of discretion." (quoting Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008))).

Perhaps as a fallback, the government notes — without extended discussion — that "[f]ederal district judges enjoy br oad discretion in respect to the ordering and presen tation of proof and the handling of evidentiary questions." (Quoting United States v. Holmquist, 36 F.3d 154, 163 (1st Cir. 1994).) That's true as far as it goes, but it doesn't take the gove rnment very far in this case. While district courts undeniably possess discretion on order-of-proo f determinations, that discretion has limits: "a trial court's authority to regulate the order of pr oof does not include the power to shift the burden of proof." Morales Fe liciano v. Rullán, 378 F .3d 42, 57 (1st Cir. 2004). The district court's impermissible shift of the burden of production from the government onto the- 8 - defendant therefore cannot be uph eld as a permissible exercise of the discretion to regulate the order of proof. 6

CONCLUSION

The district court's refusal to hold an evid entiary hearing is suppor table only if the court properly declined to consider Phil lipos's affidavit. But the decisi on to cast aside the affidavit was improper, resting, as it did, on the co urt's mistaken view that the need to show a fact ual dispute to obtain a hearing also required Phillipos's pre-hear ing commitment to testify. This conclusion was not just entirely unsupported by our case law, but it also improperly conflated two distinct burdens.

This error of law amounts to an abuse of discretion. 7

But the damage done by the panel opinion is not limited to Phillipos's case. Instead, any time a defendant moves to suppress his or her conf ession, a district court within this circuit can insist that, if the only basis for a factual dispute is the defendant's affidavit disputing the officer's version of events (as it most always will be in the confession context), the defendant make a prehearing commitment to testify as a condition for hol ding the hearing. The re sult, I fear, will be that defendants will often be deprived of ev identiary hearings on the voluntariness of their confessions, even though the admission of an involunt ary confession is a clear-cut violation of due process, see Jackson v. Denno, 378 U.S. 368, 376 (1964) , and even though ther e's no basis in our law (other than the panel opinion in this case, th at is) for insisting that the defendant commit to testifying at an evidentia ry hearing on a motion to suppress a confession. Therefore, in my view, this case presents "a question of exceptional import ance" that calls for rehearing en banc. Fed. R. App. P. 35(a)(2). I respectfu lly dissent from my colleagues' decision to the contrary.

6 Our decision in Morales Feliciano is not to th e contrary. In that case, which arose in the very different context of an evidentiary heari ng on a motion to terminate prospective relief under the Prison Litigation Reform Act, we discerned no abuse of discretion in the district court's decision to order one party to present his proof firs t because the court already "had before it a full evidentiary record, developed over many years, together with a ca che of periodic reports as to progress under the consent decree," and "[t]his plethoric eviden ce was sufficient, if unrebutted, to support a finding that constitutional violations endure d." 378 F.3d at 57. "With this in mind," we reasoned, "it was sensible for the court to invite the Secretary to offer evidence to the contrary." Id. To cinch matters, "[i]n its subsequent revi ew of the evidence, the court said nothing that indicated any misunderstanding as to where the burden of proof rested." Id. In this case, by contrast, the government had not yet presented the dist rict court with any evidence to satisfy its burden of proving that Phillipos's confession wa s voluntary, and what the district court did — conditioning the decision to hold an evidentiary hearing on Phillipos's acceptance of the government's burden of production and his pre-hearing commitment to testify — improperly shifted the burden from the government to Phillipos.

7 An erroneous refusal to hold an evidentiary hearing on a suppression motion can warrant reversal of a defendant's conviction. See, e.g., D'Andrea, 648 F.3d at 3, 14-15 & n.18 (vacating

defendants' convictions for failure to hold an ev identiary hearing on the s uppression motions); cf. United States v. Burger, 739 F.2d 805, 808-09 (2d Cir. 1984) (vacating defendant's conviction where, although evidentiary hearing was held, di strict court "improperly placed the burden of proving involuntariness and the lack of a valid [Miranda] waiver on the defendant").- 9 - By the Court: /s/ Margaret Carter, Clerk

cc: Hon. Douglas P. Woodlock Robert Farrell, Clerk, United States District Court for the Distri ct of Massachusetts Derege B. Demissie

Susan Brooks Church Robel Kidane Phillipos John A. Capin

Dina Michael Chaitowitz B. Stephanie Siegmann

Randall Ernest Kromm

Jonathan M. Albano

John H. Cunha Jr.

Daniel Volchok

John Reinstein Nancy Gertner