Opinion
No. 05-10713.
Argued and Submitted June 14, 2006.
Decided July 5, 2006.
Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. CR-04-00125-VRW.
Barbara J. Valliere, Esq., Office of the U.S. Attorney, San Francisco, CA, for Plaintiff-Appellant.
William H. Goodman, Esq., Topel Goodman, George J. Cotsirilos, Jr., Esq., Cotsirilos Campisano, Mary G. McNamara, Esq., Swanson McNamara, LLP, Nancy Clarence, Clarence Snell, LLP, San Francisco, CA, John L. Williams, Esq., Manchester, Williams Seibert, San Jose, CA, for Defendants-Appellees.
Background: Energy corporation and employees were charged with commodities price manipulation and related crimes, stemming from alleged creation of false electricity supply shortage. Defendants moved to dismiss original and third superseding indictments. The United States District Court for the Northern District of California, Vaughn R. Walker, J., 420 F.Supp.2d 1043, denied motions. Corporation and employees appealed.
Holdings: The Court of Appeals held that:
(1) Market Monitoring Information Protocol (MMIP) was not admissible for purposes of supplying definition of illegitimate conduct, and
(2) remand was required, as it was unclear from record whether district court considered admitting MMIP to prove intent and motive.
Affirmed in part and remanded in part.
1. Commodity Futures Trading Regulation 102
Market Monitoring Information Protocol (MMIP) was not admissible in prosecution of corporation and its employees for commodities price manipulation and related crimes for purposes of supplying definition of illegitimate conduct, which was necessary to establish two elements of charged crime, i.e., artificial price and creation of artificial price, as admission of protocol risked overwhelming jury's ability to define the illegitimate conduct itself.
2. Criminal Law 1181.5(7)
Remand was required in prosecution of energy corporation and its employees, who were charged with commodities price manipulation and related crimes, as it was unclear from record whether district court considered admitting Market Monitoring Information Protocol (MMIP) to prove intent and motive; if district court did consider MMIP for those purposes, court had to include its reasoning in the record, and if it did not, remand would afford district court an opportunity to assess government's argument that MMIP provided evidence regarding intent that its expert's testimony could not.
MEMORANDUM
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
The Government appeals interlocutorily the district court's pre-trial exclusion of the Market Monitoring Information Protocol ("MMIP"). We have jurisdiction pursuant to 18 U.S.C. § 3731. We affirm in part and remand in part.
We affirm the district court's exclusion of the MMIP for purposes of supplying the definition of "illegitimate" conduct, which is necessary to establish two elements of the charged crime: artificial price and creation of an artificial price. Admission of the MMIP risked overwhelming the jury's ability to define "illegitimate" conduct itself.
See United States v. Wolf, 820 F.2d 1499, 1505 (9th Cir. 1987) (excluding evidence of a civil regulation to define an element of a criminal statute).
We remand because it is unclear from the record whether the district court considered admitting the MMIP to prove intent and motive. If it did consider the MMIP for those purposes, then the court should include its reasoning in the record. However, if it did not, remand will afford the district court an opportunity to assess the Government's argument that the MMIP provides evidence regarding intent that its expert's testimony cannot.
Id. (upholding the admission of civil violations as background information necessary to the jury's understanding of the case); United States v. Smith, 891 F.2d 703, 710 (9th Cir. 1989) (upholding admission to show intent); see also United States v. Brown, 912 F.2d 1040, 1042 (9th Cir. 1990).
See Fed.R.Evid. 403 (providing courts with discretion to exclude cumulative evidence).
AFFIRMED IN PART, REMANDED IN PART.