United States of America v. Heidi Haischer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HEIDI HAISCHER,
Defendant-Appellant.
No. 13-10392
D.C. No.
2:11-cr-00267-
MMD-CWH-2
OPINION
Appeal from the United States District Court
for the District of Nevada
Miranda Du, District Judge, Presiding
Argued and Submitted
August 14, 2014—San Francisco, California
Filed March 25, 2015
Before: A. Wallace Tashima, M. Margaret McKeown,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton

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UNITED STATES V. HAISCHER 2
SUMMARY*
Criminal Law
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
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. HAISCHER 3
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.
COUNSEL
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.
OPINION
CLIFTON, Circuit Judge:
Heidi Haischer appeals her jury trial conviction and
sentence for committing and conspiring to commit wire fraud
in violation of 18 U.S.C. § 1343 and 18 U.S.C. § 1349. We
conclude that, under the circumstances of this case, the
district court’s decision to exclude all evidence of Haischer’s
alleged abuse at the hands of her then-boyfriend (and alleged
co-conspirator), and to instruct the jury to disregard this

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UNITED STATES V. HAISCHER 4
evidence in its entirety, was error. Because this erroneous
evidentiary ruling violated Haischer’s due process right to
present a complete defense, and because the constitutional
error was not harmless, we vacate the judgment of conviction
and remand for further proceedings.
I. Background
Haischer was indicted in 2011 on two counts: wire fraud,
in violation of 18 U.S.C. § 1343; and conspiracy to commit
wire fraud, in violation of 18 U.S.C. § 1349. The indictment
alleged that Haischer participated in a scheme to secure
mortgages on two properties in Nevada in 2006 and 2007 by
using false information in loan applications and supporting
documents. She pled not guilty and went to trial.
The evidence presented at trial included the following. In
2006, Haischer was working in Las Vegas as a loan officer at
a mortgage brokerage firm. Haischer’s boyfriend at the time,
Kelly Nunes, was a senior loan officer at the same firm. In
late 2006, Nunes approached Haischer about purchasing some
properties as investments. Applications were submitted under
Haischer’s name to obtain loans of $540,000 and $135,000
for the purchase of a house located on Kantele Circle in
Henderson, Nevada. These applications falsely stated that
Haischer had a monthly income of $15,000, that she had a
bank account balance of $15,000 at the time, and that the
Kantele Circle property would be Haischer’s primary
residence. Shortly thereafter, additional applications were
submitted under Haischer’s name to obtain loans of $428,800
and $102,200 for the purchase of a second house, located on
Elche Court in Las Vegas. This set of applications falsely
stated that Haischer made $18,000 a month and that she had
a bank account balance of $38,000. It also failed to disclose

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UNITED STATES V. HAISCHER 5
that she owned the Kantele Circle property, despite the fact
that the Kantele Circle transaction had closed a few days prior
to the filing of the Elche Court applications. Lenders funded
loans for both properties in January 2007. Haischer managed
only a few payments on her loans before going into default,
and the properties were eventually sold via foreclosure
proceedings. The lenders incurred substantial losses.
In support of the applications, Nunes paid a third party
$300 to supply false verifications regarding Haischer’s
employment. False bank account statements were also
submitted along with the loan applications. Haischer testified
that she did not submit these supporting documents, and that
Nunes had access to her bank account statements. She further
testified that Nunes filled out the loan applications for both
properties, and that she deferred to his judgment because he
was her boyfriend and her senior loan officer.
Haischer also alleged that Nunes had abused her. Prior to
trial, the government moved in limine to exclude the evidence
of abuse and to preclude the defense from asserting a duress
defense. The district court denied the motion and concluded
that Haischer had made a facial showing of duress after
hearing testimony from Haischer’s sister. She testified that
she had witnessed Nunes yell at Haischer to sign some
papers, which Haischer testified were for the Kantele Circle
loan application. Haischer’s sister further testified that Nunes
did not allow Haischer to be taken to the doctor to treat a
badly swollen leg until after Haischer signed the papers. X-
rays taken later that day showed that Haischer’s leg was
broken in multiple places.
The jury was not permitted to consider any evidence of
abuse, however. Haischer’s trial counsel abandoned the

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UNITED STATES V. HAISCHER 6
duress defense midway through the trial and instead asserted
a mens rea defense—specifically, that Haischer lacked the
necessary knowledge and intent to commit wire fraud.
Following this change, the government sought to have
evidence of Haischer’s abuse excluded. The district court
agreed and instructed defense counsel that he could not
present evidence of abuse. Applying Federal Rule of
Evidence 403, the district court reasoned that the evidence of
abuse possessed no probative value and was “highly
prejudicial.” The court did permit Haischer to present
evidence of “the dynamics of the relationship.” As part of the
instructions given to the jury prior to deliberation, though, the
court told the jury “to disregard any testimony of alleged
abuse” of Haischer by Nunes.
The jury was also given a “deliberate ignorance”
instruction, over Haischer’s objection. This is sometimes
referred to as a Jewell instruction, after United States v.
Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc). Pursuant to
the Jewell instruction, the jury was instructed that it may find
that Haischer acted knowingly if she: “[1] was aware of a
high probability that the information that she included in
mortgage applications was false; and [2] deliberately avoided
learning the truth.” It was further instructed that it may not
find such knowledge if she “actually believed that the
information she included in the loan applications was
truthful” or “was simply careless.”
The jury convicted Haischer on both the conspiracy and
wire fraud counts. Haischer filed a motion for a new trial on
several grounds, including that the district court’s exclusion
of evidence of domestic violence had deprived her of a fair
trial because the evidence was relevant to show her good faith

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UNITED STATES V. HAISCHER 7
and lack of knowledge and intent to defraud. The district
court denied the motion. This appeal followed.
II. Discussion
Federal Rule of Evidence 403 provides that a district
court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” “Unfair prejudice is an undue
tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one. The
Rule requires that the probative value of the evidence be
compared to the articulated reasons for exclusion and permits
exclusion only if one or more of those reasons substantially
outweigh the probative value.” United States v. Anderson,
741 F.3d 938, 950 (9th Cir. 2013) (citations and internal
quotation marks omitted).
We review the exclusion of evidence under Rule 403 for
an abuse of discretion. United States v. Garcia, 729 F.3d
1171, 1175 (9th Cir. 2013). Where an evidentiary error has
occurred in a criminal prosecution, we then review de novo
whether the error “rises to the level of a constitutional
violation.” United States v. Pineda–Doval, 614 F.3d 1019,
1032 (9th Cir. 2010). If it does, we must reverse the
conviction unless we conclude that the error was harmless
beyond a reasonable doubt. Id. at 1033–34. Because Rule
403 “requires an on-the-spot balancing of probative value and
[unfair] prejudice,” Sprint/United Mgmt. Co. v. Mendelsohn,
552 U.S. 379, 384 (2008) (internal quotation marks omitted),
the “district court’s Rule 403 determination is subject to great

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UNITED STATES V. HAISCHER 8
deference,” United States v. Hinkson, 585 F.3d 1247, 1267
(9th Cir. 2009) (en banc).
We are also mindful, however, that the exclusion of
evidence offered by the defendant in a criminal prosecution
under Rule 403 is “an extraordinary remedy to be used
sparingly.” United States v. Mende, 43 F.3d 1298, 1302 (9th
Cir. 1995) (citation and internal quotation marks omitted).
“[T]he danger of [unfair] prejudice must not merely outweigh
the probative value of the evidence, but substantially
outweigh it.” Id. (emphasis in original). “[A]pplication of
Rule 403 must be cautious and sparing” because the Rule’s
“major function is limited to excluding matter of scant or
cumulative probative force, dragged in by the heels for the
sake of its prejudicial effect.” United States v. Hankey,
203 F.3d 1160, 1172 (9th Cir. 2000) (quoting United States
v. Mills, 704 F.2d 1553, 1559 (11th Cir. 1983)).
The evidence that Haischer’s leg was broken and that
Nunes required Haischer to sign the loan papers before she
could be taken to the doctor to have it treated suggested that
Haischer was, at a minimum, under pressure to sign the
documents. Had this evidence been before the jury, a
reasonable juror might have doubted whether Haischer had
the requisite knowledge and intent to commit fraud.
Although the evidence of abuse was less probative of
Haischer’s lack of knowledge or intent than it was of
Haischer’s potential duress defense, the evidence was not so
minimally probative that it was proper to exclude it entirely.
The broken leg incident strongly supported one of Haischer’s
primary defenses, that she signed the documents without
knowing what they said because of pressure from Nunes,
such that she lacked the required knowledge and intent.

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UNITED STATES V. HAISCHER 9
“Evidence is unfairly prejudicial if it makes a conviction
more likely because it provokes an emotional response in the
jury or otherwise tends to affect adversely the jury’s attitude
toward the defendant wholly apart from its judgment as to his
guilt or innocence of the crime charged.” United States v.
Yazzie, 59 F.3d 807, 811 (9th Cir. 1995) (emphasis in
original) (internal quotation mark omitted). Probative
evidence that incidentally happens to make a criminal
defendant more sympathetic is not properly subject to
exclusion under Rule 403.
The exclusion of the evidence of abuse in this case was
particularly problematic in light of the “deliberate ignorance”
instruction. Pursuant to this instruction, the jurors were told
that they could find that Haischer knowingly committed fraud
without actual subjective awareness if she: (1) was aware of
a high probability that the information she included in
mortgage loan applications was false; and (2) deliberately
avoided learning the truth. The second prong of the Jewell
instruction thus requires deliberate action, which we have
defined as action that is “intentional,” “premeditated,” and
“fully considered.” United States v. Heredia, 483 F.3d 913,
920 (9th Cir. 2007) (en banc) (quoting BLACK’S LAW
DICTIONARY 459 (8th ed. 2004)). “A decision influenced by
coercion, exigent circumstances or lack of meaningful choice
is, perforce, not deliberate,” we have held, and thus “[a]
defendant who fails to investigate for these reasons has not
deliberately chosen to avoid learning the truth.” Id. (footnote
omitted).
“[D]omestic violence is not an isolated, individual event,
but rather a pattern of perpetrator behaviors used against the
victim.” Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir.
2003) (quoting Anne L. Ganley, Understanding Domestic

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UNITED STATES V. HAISCHER 10
Violence, in IMPROVING THE HEALTH CARE RESPONSE TO
DOMESTIC VIOLENCE 18 (Carole Warshaw & Anne L. Ganley
eds., 1996)). The abusive relationship is defined by a
“pattern of coercion and control,” Evan Stark, Re-Presenting
Woman Battering: From Battered Woman Syndrome to
Coercive Control, 58 ALB. L. REV. 973, 975 (1995), such that
it may even be said that “the unique profile of [the victim of
domestic abuse] arises as much from the deprivation of
liberty implied by coercion and control as it does from
violence-induced trauma,” id. at 986. Mindful of the
phenomena of “psychological abuse, coercive behavior, and
the ensuing dynamics of power and control,” Hernandez,
345 F.3d at 837, that inhere in the abusive relationship, we
conclude that the evidence of abuse that Haischer sought to
present at trial was sufficiently probative as to her knowledge
and intent, or lack thereof.
That evidence was, in particular, probative of whether
Haischer’s supposed “deliberate ignorance” was in fact
“influenced by coercion,” and thus, under our case law, not
deliberate at all. Heredia, 483 F.3d at 920. It was also
probative of whether Haischer “lacked meaningful choice”
with regard to reviewing the documents, when she would
only be taken to treat a broken leg once she signed them. Id.
Had the evidence of abuse been admitted, a jury might have
been more likely to determine that the second prong of the
Jewell test was not satisfied.
Our concern is exacerbated by the broad language used by
the district court in instructing the jury on what evidence it
was to disregard. The government argues that the probative
value of the excluded evidence was slight in light of the
testimony that was allowed concerning Haischer’s
relationship with Nunes and instances of verbal badgering

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UNITED STATES V. HAISCHER 11
and intimidation by Nunes. In denying a post-trial motion the
district court similarly noted that Haischer had been permitted
to introduce evidence of the “coercive and manipulative
relationship” she had with Nunes, including “specific
instances of . . . Nunes’ verbal abuse of Haischer.” But after
Haischer abandoned the duress defense, the district court
ruled that evidence that previously had been admitted should
be excluded, and it instructed the jury “to disregard any
testimony of alleged abuse” of Haischer by Nunes. In light
of the broad meaning of the term “abuse,” this instruction
could reasonably have led the jury to disregard the very
evidence later cited by the government and the district court.
Defense counsel at trial might have abandoned the duress
defense because he was under the mistaken impression that
admitting to knowingly and intentionally committing the
fraud was a precondition for raising the defense. We take this
opportunity to make clear that under federal law, in contrast
to the law of certain states, a defendant is not obligated to
admit her guilt to a crime as a precondition for raising an
affirmative defense such as duress. “It is well established that
a defendant in a criminal prosecution may assert inconsistent
defenses.” United States v. Demma, 523 F.2d 981, 985 (9th
Cir. 1975) (en banc) (footnote omitted). We see no reason
why this widely accepted principle, see Mathews v. United
States, 485 U.S. 58, 63–65 (1988), should not 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 by contending that
she did not commit the unlawful act with the required level of
knowledge or intent.
Duress and the absence of the required mens rea are not
the same thing. See United States v. Meraz–Solomon, 3 F.3d

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UNITED STATES V. HAISCHER 12
298, 300 (9th Cir. 1993) (per curiam) (“[T]he prosecution
must still establish beyond a reasonable doubt that
[defendant] knew he was importing cocaine, even if his
behavior might be excused by duress.”). Similarly, the
Supreme Court has stated that “the defense of duress does not
negate a defendant’s criminal state of mind when the
applicable offense requires a defendant to have acted
knowingly or willfully; instead, it allows the defendant to
‘avoid liability . . . because coercive conditions or necessity
negates a conclusion of guilt even though the necessary mens
rea was present.’” Dixon v. United States, 548 U.S. 1, 7
(2006) (quoting United States v. Bailey, 444 U.S. 394, 402
(1980)) (alteration in original). This language stands for the
proposition that knowledge is not categorically inconsistent
with duress. It does not engraft a knowledge or other mens
rea requirement onto the well-settled elements of the defense
of duress. See, e.g., United States v. Vasquez–Landaver,
527 F.3d 798, 802 (9th Cir. 2008) (stating elements of
duress).1
Having concluded that an error occurred, we must
conduct a de novo review to determine whether that error
1 We recognize that a misreading of certain authorities might have
encouraged a contrary conclusion. For example, a comment to the Ninth
Circuit Model Instruction 6.5 (“Duress, Coercion or Compulsion (Legal
Excuse)”) provides that the instruction is to be used “when the defendant
alleges that by virtue of duress, coercion or compulsion, the defendant
knowingly or intentionally committed the criminal act.” That might be
read as implying that a defendant must admit knowledge or intent as a
precondition to asserting a duress defense, but such an inference would
not be consistent with our case law. See McDowell v. Calderon, 130 F.3d
833, 840 (9th Cir. 1997) (en banc), overruled in part on other grounds by
Weeks v. Angelone, 528 U.S. 225 (2000) (wording of model instructions,
“although extremely useful, is not blessed with any special precedential
or binding authority”).

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UNITED STATES V. HAISCHER 13
“rises to the level of a constitutional violation.”
Pineda–Doval, 614 F.3d at 1032. “[T]he Constitution
guarantees criminal defendants a meaningful opportunity to
present a complete defense. This right includes, at a
minimum, . . . the right to put before a jury evidence that
might influence the determination of guilt.” United States v.
Stever, 603 F.3d 747, 755 (9th Cir. 2010) (citations and
internal quotation marks omitted). Thus, while it is axiomatic
that “not every evidentiary error amounts to a constitutional
violation,” it nevertheless is “clear that the erroneous
exclusion of important evidence will often rise to the level of
a constitutional violation.” Id. (citations omitted).
An evidentiary error violates a defendant’s due process
rights when it excludes: “(1) the main piece of evidence,
(2) for the defendant’s main defense, to (3) a critical element
of the government’s case.” United States v. Evans, 728 F.3d
953, 967 (9th Cir. 2013). The evidence of abuse would have
been central evidence in support of Haischer’s mens rea
defense, particularly in light of the deliberate ignorance
theory as reflected in the Jewell instruction. Because
Haischer’s knowledge and intent were necessary elements of
wire fraud, the evidence related to a critical element of the
government’s case. We conclude that the exclusion of the
evidence violated Haischer’s due process rights.
When a constitutional error has been committed, “we
must reverse the guilty verdict unless the government
convinces us the error was harmless beyond a reasonable
doubt.” United States v. Leal–Del Carmen, 697 F.3d 964,
975 (9th Cir. 2012). The government has not met this high
burden.

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UNITED STATES V. HAISCHER 14
III. Conclusion
We vacate Haischer’s conviction for wire fraud under
18 U.S.C. § 1343 and conspiracy under 18 U.S.C. § 1349, and
remand for further proceedings, which may include a new
trial. Because we set aside the judgment of conviction, we do
not reach the other issues that Haischer raised in this appeal.
VACATED and REMANDED.

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