Howard, Chief Judge, Torruella, Lynch, Thompson, Kayatta, and
Barron. Circuit Judges
to First Circuit Internal Operating Procedure X(C), the
petition for rehearing en banc has also been treated as a
petition for rehearing before the original panel. The
petition for rehearing having been denied by the panel of
judges 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 ordered that the petition for
rehearing en banc be denied.
THOMPSON, Circuit Judge, dissenting from the denial of
rehearing en banc.
view, the district court abused its discretion in refusing 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 from Phillipos
that he'd testify at the hearing, and the court further
ordered that Phillipos would be the first witness to testify
at the hearing if one were held. When Phillipos refused to
accept these conditions, the district court declined to hold
an evidentiary hearing. As I see it, this decision is
inconsistent with the ironclad rule that the government bears
the burden of proof 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 identified - any other
conceivable support for what the district court did. Because
I fear that the panel's approval of the district
court's improper denial of an evidentiary hearing will
have a far-reaching impact on the manner in which motions to
suppress are considered and decided within this circuit, I
respectfully dissent from the denial of rehearing en banc.
trial, Phillipos moved to suppress his confession. In support
of his motion, he submitted his affidavit, which was signed
under the pains and penalties of perjury. He also requested
that the district court 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 before 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. This is unfair because it is the defendant who
should be confronting the [g]overnment[']s evidence, not
the other way around."
district court declined to hold an evidentiary hearing on
Phillipos's motion. Because of the court's
"lingering concern" that, "over the years,
" the defense bar has employed motions to suppress to
"obtain discovery that the parties are not properly
entitled 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
dispute to trigger the need for an evidentiary hearing, it
nevertheless concluded that the affidavit alone was not
enough. Based on "what appear[ed] to be ambivalence,
perhaps, on the part of [Phillipos], the suggestion that,
while [his] affidavit [is] sufficient, [he has] not decided
whether to testify, " the court reasoned that, if
Phillipos did not testify at the evidentiary hearing, then
his affidavit is "absolutely illusory" and "a
bait and switch."
combat this perceived danger, the district court ordered that
the evidentiary hearing would proceed as follows: (1)
Phillipos would first 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 evidence 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.
objected to the procedure proposed by the district court,
arguing that, because the government bears the burden of
proof on the issue of whether Phillipos's confession was
voluntary, the government should be forced to first go
forward 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 remained
steadfast in its position, and, when Phillipos was unwilling
to make a pre-hearing commitment to testify, the district
court refused to hold an evidentiary hearing.
No Support for Refusal to Hold an Evidentiary Hearing
agrees that Phillipos was entitled to a hearing on his motion
to suppress only if he made "a sufficient threshold
showing that material facts are in doubt or dispute, . . .
that such facts cannot reliably be resolved on a paper
record, " and "that there are factual disputes,
which, if resolved in his favor, would entitle him to the
requested relief." United States v.
Cintron, 724 F.3d 32, 36 (1st Cir. 2013) (quoting
United States v. Francois, 715
F.3d 21, 32 (1st Cir. 2013)); see also United States
v. Jiménez, 419 F.3d 34, 42 (1st
Cir. 2005); United States v.
Staula, 80 F.3d 596, 603 (1st Cir. 1996). The
district court in this case concluded that, if the
allegations in Phillipos's affidavit were credited, this
standard would have been met, see 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. Therefore, all agree that Phillipos was
entitled to an evidentiary hearing if the district court
improperly disregarded his affidavit.
panel opinion relies on our decision in United
States v. Baskin, 424 F.3d 1 (1st Cir.
2005), to support its conclusion that the district court did
not abuse its discretion in removing Phillipos's
affidavit from the equation. See Phillipos, 849 F.3d
at 469. In my view, Baskin is cut from entirely different
cloth than our case.
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
concludes that Baskin supports the district
court's refusal to consider Phillipos's affidavit.
See Phillipos, 849 F.3d at 469. I cannot subscribe
to this conclusion.
Baskin, the defendant testified at the evidentiary
hearing on direct examination. It was only when the defendant
invoked his Fifth Amendment 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 affidavit 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 details of his
direct testimony, thereby undermining the prosecution's