Tuesday, November 10, 2009

9th Circuit Revisits the "Abuse of Discretion" Standard

Abuse of discretion. Remember it? It was that hazy standard of review you toiled over in civil procedure. Happily, Judge Bea on the 9th Circuit has attempted to make it a bit clearer. On November 5, an en banc court decided United States v. Hinkson, No. 05-30303 (9th Cir. Nov. 5, 2009), clarifying the circuit's standard. The question in Hinkson was principally whether the district court in that case abused its discretion in denying the defendant's motion for a new trial based on newly discovered evidence. The facts and implications of the opinion follow below.

David Hinkson owned a water bottling company called WaterOz. See United States v. Hinkson, No. 05-30303, slip op. at 14956 (9th Cir. Nov. 5, 2009). In 2000, while he was facing tax evasion charges, he hired Elvin Swisher to test the water for WaterOz on a recurrent basis. Id. at 14957. When the employment relationship was initially formed, Swisher told Hinkson that he was a decorated military veteran who served in the U.S. Marine Corps and had "killed a number of people in the Korean War." Id. at 14956-60.

In 2002, Hinkson asked Swisher to torture and kill a local attorney and his family because they had been causing him legal trouble. Id. Over the next few years, Hinkson made similar solicitations with regard to two other individuals. Id. at 14958-59. On September 21, 2004, a federal grand jury in Idaho indicted David Hinkson under 18 U.S.C. § 373 for soliciting the murders of these three people. Id. at 14959-60.

At trial, as part of the its case-in-chief, the prosecution called Swisher to testify against Hinkson. Id. at 14961. The prosecution alleged that Hinkson thought that Swisher was a "battle-hardened Marine veteran" who would be up for the task of murder. Id. Briefly, Hinkson unsuccessfully sought to impeach Swisher's credibility on the grounds that he was not actually a decorated veteran. Id. Hinkson, however, was ultimately convicted on the counts of soliciting murder. Id. at 14961-67.

Hinkson timely moved for a new trial under Federal Rule of Criminal Procedure 33 based on "newly discovered evidence" that Swisher's relevant military records produced at trial were actually forged, but the district court denied the motion on the ground that Hinkson failed to meet his burden of demonstrating a right to a new trial. While it is uncontroversial that the 9th Circuit reviews this decision for abuse of discretion, see id. at 14971 (citing United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992)), the en banc court used the occasion to "re-do" the standard itself.

The court first noted that the issue on appeal inherently centered around whether the district court improperly applied the facts to the law in denying the motion for a new trial based on newly discovered evidence. Generally, as the court suggested, a factual question is one that is "founded on the application of the fact-finding tribunal's experience with the mainsprings of human conduct," and one that should be subject to the clearly erroneous standard. Id. at 14972. This is where things get a little choppy.

According to the court, "when reviewing factual findings, the Supreme Court has held that 'a finding is clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. at 14973 (citing United States v. Gypsum Co., 333 U.S. 364, 395 (1948)). However, this definition arguably trims the wide veil of discretion traditionally given to the district court in making factual determinations. In support of the latter proposition, the court discusses United States v. Yellow Cab. Co., 338 U.S. 338, 342 (1949), which held that, where the evidence below supports alternative conclusions, a trial judge's decision either way is not clearly erroneous. Id. Thus, the court further reasons:
Because the Supreme Court has maintained both the Yellow Cab Co. and U.S. Gypsum Co. definitions of "clearly erroneous" review, our court currently holds that "[a] district court abuses its discretion when it makes an error of law, rests its decision on clearly erroneous findings of fact, or when we are left with 'a definite and firm conviction that the district court committed a clear error of judgment.'" Id. (quoting United States v. 4.85 Acres of Land, More or Less, Situated in Lincoln County, Mont., 546 F.3d 613, 617 (9th Cir. 2008)). . . . This definition is so broad as to provide us with little effective direction as to when we can exercise our power to reverse a district court’s factual finding.
In other words, the court (correctly) observed that, under existing precedent, a reviewing court could simply reverse the trial court's findings of fact where it has a "definite and firm conviction" that the trial court was wrong. And, unsurprisingly, the nebulous wording of this test had rendered some confusion on the extent of factual review. See id. at 14973-76 (illustrating this proposition with cases where federal courts of appeal have reversed district court findings of fact even where the findings were plausible in light of competing inferences).

Thus, to reconcile this inconsistency, the court adopts a two-pronged test delineating the contours of the abuse of discretion standard. First, the court must determine de novo whether the trial court applied the correct legal rule to the relief requested. Id. at 14976. If not, then it abused its discretion. It is important to note that this prong appears to leave untouched the traditional rule that it is for the reviewing court to decide "legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles." Id. at 14971.

The second step of the test attempts to deal with the "tension between the Supreme Court's holding that we may reverse . . . discretionary trial court factual findings if we are 'left with the definite and firm conviction that a mistake has been made," id. at 14876 (quoting Gypsum, 333 U.S. at 395), and the fundamental principle that the Court of Appeals cannot simply substitute its judgment for that of the district court. Id. Under the second step, the reviewing court must determine whether the trial court’s application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in the inferences that may be drawn from the facts in the record. Id. at 14971-72. Only if it is any of the latter three can the court reach a "definite and firm conviction" that a mistake was made such that the district court abused its discretion. Id.

Applying this standard to the facts of the case, the court determined that the district court did not abuse its discretion in denying Hinkson's motion for a new trial based on newly discovered evidence because (1) it correctly determined the appropriate legal standard and (2) its resolution of the facts as applied to the standard were neither illogical, implausible or without support. Id. at 14980-85.

If you are interested in more details on the facts of this case, click here for the full opinion.

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  2. part of the problem is COA's unwillingness to knowingly allow the wrong decision to be made below. So many dist. court judges fumble when the stakes are high, and abuse of discretion is the tool to remedy these problems. I think it is a necessary one.

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