Argued and Submitted, San Francisco, California:
August 14, 2014.
Appeal from the United States District Court for the District of Nevada. D.C. No. 2:11-cr-00267-MMD-CWH-2. Miranda Du, District Judge, Presiding.
The panel vacated a judgment of conviction for committing and conspiring to commit wire fraud in connection with a scheme to secure mortgages by using false information in loan applications and supporting documents.
The panel held that the district court's decision to exclude, as highly prejudicial and possessing no probative value, evidence of the defendant's alleged abuse at the hands of her then-boyfriend (and alleged conspirator) Kelly Nunes, and to instruct the jury to disregard this evidence in its entirety, was error.
The panel held that evidence that the defendant's leg was broken and that Nunes required the defendant to sign the loan papers before she could be taken to the doctor to have it treated suggested that the defendant was under pressure to sign the documents, and that had this evidence been before the jury, a reasonable juror might have doubted whether the defendant had the requisite knowledge and intent to commit fraud. The panel wrote that the exclusion of the evidence of abuse was particularly problematic in light of the district court's " deliberate ignorance" instruction.
The panel took the opportunity to make clear that under federal law, a defendant is not obligated to admit her guilt to a crime as a precondition for raising an affirmative defense such as duress. The panel wrote that the widely-accepted principle that a criminal defendant may assert inconsistent defenses should apply with equal force where a defendant seeks both to assert the defense that she acted under duress and to hold the government to its burden of proof on the issue of mens rea.
The panel concluded that the error was not harmless beyond a reasonable doubt, and remanded for further proceedings.
Franny Forsman, Las Vegas, Nevada, for Defendant-Appellant.
Mythili Raman, Denis J. McInerney, Thomas B.W. Hall, Brian R. Young, and John-Alex Romano (argued), United States Department of Justice, Washington, DC, for Plaintiff-Appellee.
Before: A. Wallace Tashima, M. Margaret McKeown, and Richard R. Clifton, Circuit Judges. Opinion by Judge Clifton.
CLIFTON, Circuit Judge: