Whether the district court erred in excluding witness Tierra Lewis's out-of-court identification of codefendant Esau Ferdinand under FRE 403, thereby violating petitioner's constitutional right to present a complete defense

QUESTIONS PRESENTED 1. Shortly after the murder of Jelvon Helton, which petitioner was convicted of, witness Tierra Lewis went to the police, circled codefendant Esau Ferdinand’s picture on a lineup card, and wrote that she saw Ferdinand shoot Helton. When called as a defense witness by petitioner, she recanted on the stand. Under Federal Rules of Evidence, Rule 801(d)(1)(C), the out-of-court identification was admissible for its truth because Lewis testified and was available for cross-examination. Did the district court err as a matter of law, thereby violating petitioner’s constitutional right to present a complete defense, when, under Federal Rules of Evidence, Rule 403, it would not let the jury consider Lewis’s identification of Ferdinand for its truth because it believed the recantation? 2. Regarding the above issue, did the district court err as a matter of law, thereby violating petitioner’s constitutional right to present a complete defense, when it would not let the jury consider Lewis’s identification of Ferdinand for its truth under FRE 801(d)(1)(C) for the additional reason that it was not also admissible for its truth as a prior inconsistent statement under FRE 801(d)(1)(A), having not been made under oath? 3. Regarding the above issue, the district court said it was motivated to rule as it did to protect Ferdinand from prejudice. Nonetheless, it repeatedly refused to sever petitioner’s case from Ferdinand. Did the Ninth Circuit err in rejecting petitioner’s severance claim when it focused entirely on whether petitioner’s and Ferdinand’s defenses were mutually exclusive rather than on whether joinder 1 compromised petitioner’s constitutional right to present a complete defense? Relatedly, did the Ninth Circuit err when it held that petitioner’s constitutional right to present a complete defense to the charged murder was satisfied because his attorney got to cross-examine witnesses and argue to the jury he was not guilty? 4. May a Pinkerton instruction on coconspirator liability be given when the government has not introduced evidence that might prove beyond a reasonable doubt that one or more identified coconspirators, other than the named defendant, committed the charged crime? 5. In holding that no error occurred on the issues of the Tierra Lewis evidence and severance, the Ninth Circuit panel ignored both precedent of this Court and its own binding precedent. It did not distinguish this authority, and it did not ask the en banc Court to overrule it. Without saying so, it upheld a legal conclusion by the district court that finds no support in the law. It did not rule against petitioner on alternative grounds of prejudice. It ignored key arguments petitioner made. In denying rehearing and en banc review, the full Court countenanced these practices. Should the case be summarily remanded because the Ninth Circuit “so far departed from the accepted and usual course of judicial proceedings . . . as to call for an exercise of this Court’s supervisory power?” 6. For RICO conspiracy liability to attach under 18 U.S.C. § 1962(d), must the defendant agree to personally further the enterprise’s affairs rather than merely agreeing that someone else will associate with the enterprise and participate in the affairs? i 7. In his original briefing, citations of supplemental authority, and courtordered supplemental briefing, petitioner more than adequately preserved his argument that implied malice murder under California law is not a crime of violence for purposes of 18 U.S.C. § 924(j). The government never argued waiver or forfeiture. It never claimed that it was prejudiced in its ability to address this issue, nor was it. Should this Court set aside the panel’s finding of waiver due to prejudice to the government and order it to address the merits of petitioner’s claim? ili