10/26/2004

Abuse of trust enhancement under §3B1.3.

Under U.S.S.G. § 3B1.3 the defendant faces a two-level enhancement “[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.” The Eleventh Circuit has read a third element into this: “For the enhancement to apply, [the] defendant must have been in a position of trust with respect to the victim of the crime.” United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998).

Today, in United States v. Britt, The Eleventh Circuit Court of Appeals provided us further guidance. In United States v. Britt , No. 04-10151, the Eleventh Circuit took this one step further, holding that the United States can be a victim of the defendant’s offense. Id. at *7 (“[T]he United States government, or more specifically [a federal agency can be the] victim of Britt’s offense.”) Moreover, facts that the court will rely upon in determining whether a person held a position of trust the amount of discretion in performing one’s official duties, and the power “to accept, reject, or report for further investigation the” suspicious activity relating to her duties. Id. at *6-7. The appellate wonks can take note of the standard of review.

In assessing a district court's application of the abuse-of-trust enhancement under U.S.S.G. § 3B1.3, we review the district court's findings of fact for clear error, but review de novo the district court's determination that the facts justify an abuse-of-trust enhancement.

Id. at *4 (citation omitted).

10/26/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

10/13/2004

Interlocutory criminal appeals

An appellate court does not have jurisdiction to hear a juvenile's challenging a violation of his rights under the Juvenile Delinquency Act’s speedy trial provision. United States v. Branden, No. 03-10646 (9th Cir., Oct. 13, 2004).

The Supreme Court has established a three-part test to determine whether an interlocutory appeal should be allowed. An order before final judgment may be appealed if: (1) it completely disposes of the issue in question; (2) it is totally unrelated to the merits of the case; and (3) the right asserted would be irreparably lost if the appeal were delayed until after final judgment.

In United States v. MacDonald, the Supreme Court decided that an order denying a motion to dismiss because of an alleged violation of the sixth amendment right to a speedy trial is not a proper subject of an interlocutory appeal [because] the right being asserted by the defendant would not be irreparably lost if review was not ermitted until a final judgment had been entered.

10/13/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

Big sentencing win for defendants

Applying de novo review (ala Feeney), the Ninth Circuit today affirmed a district court's departing downard based on the disparity between co-defendants' sentences. United States v. Tzoc-Sierra, No. 03-10490, at *14524 (9th Cir., Oct. 13, 2004) ("A downward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances, so long as the codefendant used as a barometer for judging the disparity was convicted of the same offense as the defendant.")

10/13/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

10/08/2004

Enhancement under U.S.S.G. § 2D1.1(b)

If a gun is "found in the car [the defendant] was driving, the car was used to commit the drug crime, and drugs were found in the car" then there exists a "temporal and spatial relationship" between the defendant, the drugs, and the gun. United States v. Mendoza-Mesa, No. 02-4039, (8th Cir., Oct. 8, 2004) (applying U.S.S.G. § 2D1.1(b)).

This case definately satifies my, "Well, it seems like an easy issue that never should have even been argued, but if a CTA publishes an opinion on it, then it's important enough for me to read and blog about" test.

10/08/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

Refund of fines after collateral attack

H. Wayne Hays was convicted of fraud in connection with a Ponzi scheme, sentenced to 20 years imprisonment, and ordered to pay $425,705 restitution. Hays represented himself at trial, although the trial court did not give him Faretta warnings, namely Hays was not told the dangers and disadvantages of self-representation. Faretta v. California, 422 U.S. 806 (1975). Hays lost on direct appeal, but won after a collateral attack for the Faretta violation. Since the government lost the exhibits from Hays' case, it dismissed the charges. Hays had paid about 75K of the required restitution, and he wants reimbursed. What result?

The government must pay back any money it retains. However, if the government has already dispursed the cash to crime victims, the defendant has no remedy since the government was allowed to dispurse the money upon entry of a final judgment. United States v. Hays, No. 02-10203, (9th Cir., Oct. 8, 2004) (Thomas, J., for Reinhardt and Clifton, J.J.)

10/08/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

10/07/2004

Two-level firearm enhancement in drug conspiracy

Ulises Ariel Lopez, Israel Gonzales-Lara, Felix Baccam were in methamphetamine conspiracy. Lopez was the supplier, Lara was the middleman, and Baccam was the street pusher. At one point Pusher was pushing 3 pounds of meth a week. One of Pusher's cutomers, Joe Hernadez, was busted for simple possession of meth.

Hernadez flipped on Pusher, told the police where the drug buys went down, and set up a fake buy so that the police could arrest him.

The police went to the drug buy location. Supplier and Middleman went to deliver drugs to Pusher. Pusher and Supplier took the drugs and left to meet Hernandez. Pusher was driving his own car.

The police stopped Pusher's car, arrested Pusher and Supplier, and searched the car. They found drugs and a .380 under Pusher's seat. Pusher, Middleman, and Supplier were all convicted or pled guilty to drug and conspiracy offenses.

At sentencing, Middleman was given a two-level sentencing enhancement under § 2D1.1(b)(1), which covers guns used in drug-related offenses. A unanimous three-judge panel (Loken, C.J., Bright, Smith, J.J.) reversed this enhancement. In a per curiam opinion, the panel wrote:

In United States v. Atkins, we upheld a § 2D1.1(b)(1) sentencing enhancement when the defendant knew his co-conspirator possessed a gun and knew, based on past experience, that his co-conspirator brought the gun along when delivering drugs. In contrast, when police arrested [Pusher] and [Supplier], [Middleman] was across town in a hotel room. Police found the gun below the driver’s seat in [Pusher's] vehicle. The Government did not present any evidence that showed [Middleman] knew [Pusher] owned a gun. Nor did the Government present evidence that showed [Middleman] knew [Pusher] carried a gun when he delivered drugs to Hernandez. To support [Middleman's] sentence, the Government argues that we can infer a defendant’s knowledge based solely on the nature of drug dealing. Cf. United States v. Claxton. We disagree. Under the Guidelines, a two-level firearm enhancement can only be applied if the Government shows that the defendant knew or should have known based on specific past experiences with the coconspirator that the co-conspirator possessed a gun and used it during drug deals. See United States v. Highsmith. To hold otherwise would unfairly penalize defendants for conduct over which they have no control. Here the Government failed to present any evidence showing that Lara knew or should have known that Baccam possessed a firearm. Thus, we unequivocally vacate the two-level firearm enhancement for Lara and remand for resentencing.
United States v. Lopez, No. 03-3434, at *10 (8th Cir., Oct. 7, 2004) (citations and quotation marks omitted).

I'm going to have to get out my Guidlines to figure out how Lopez squares with this one.

10/07/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

The Fourth Amendment in a stolen hotel room

Does a person who obtained a hotel room under false pretenses have authority over, or an expectation of privacy in, that hotel room? Although the panel says, "Yes, until..." in dicta it suggests, "No way."

The Ninth Circuit has added to our understanding of the Fourth Amendment in United States v. Cunag, No. 03-50067, (9th Cir., Oct. 7, 2004). Cunag distinguished Stogner v. California, 376 U.S. 483, 84 S.Ct. 889 (1964) [Ed's note: in my mind, though I realize that Stogner is not cited in the decision and the panel pretends that the hotel manager did not consent to a search]. In Stogner, the Court found a hotel clerk's consenting to a search of a hotel guest's room unconstitutional because nothing "in the record to indicate[d] that the police had [a good faith basis] to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner's room." 376 U.S. at 489.

Judge Trott wrote the decision, which Judges Hal and Callahan joined:

Peter Cunag entered a conditional guilty plea to the charge of possessing stolen mail, reserving the right to appeal the denial of his pre-trial motion to suppress evidence. In that motion, Cunag sought to suppress stolen mail seized by police officers from a hotel room which Cunag had procured by registering under a false name, using a dead woman’s credit card, and providing admittedly forged authorization and identification documents. The record, which conclusively demonstrates that the hotel manager had taken affirmative steps to repossess the room and to reassert control over it before calling the police and confronting the appellant, fully supports the district court’s findings and conclusions that (1) Cunag was not lawfully present in the hotel room because he procured it through fraud, and (2) that he had no reasonable expectation of privacy in it, either objective or subjective, at the time of the disputed search. Thus, we affirm the district court’s denial of his motion to suppress the incriminating evidence of his crime.

Slip opinion at 2-3.

The rule in the Ninth Circuit is that a patron who obtains a hotel room by trick or device still has an expectation of privacy in the hotel room.

Nevertheless, in the Ninth Circuit, the rule is that even if the occupant of a hotel room has procured that room by fraud, the occupant’s protected Fourth Amendment expectation of privacy is not finally extinguished until the hotel justifiably takes affirmative steps to repossess the room.

Bautista held that whether a hotel patron retains a reasonable expectation of privacy in his hotel room depends on whether or not management had justifiably terminated [the patron’s] control of the room through private acts of dominion. This general rule had been previously applied in our Circuit in United States v. Huffines; United States v. Haddad, and United State v. Poulsen. As summed up in Dorais, a justifiable affirmative act of repossession by the lessor is the factor that finally obliterates any cognizable expectation of privacy a lessee might have.

Here, hotel management took several steps to exclude Cunag from his hotel room, including invalidating his hotel key and calling the police. Id. at 15 ("Locking out Cunag and the room’s occupants in conjunction with registering a crime report with the police certainly satisfies the Dorais test.") Thus, whatever privacy interest Cunag had in the room was extinguished, and the entry was lawful.

However, the panel obviously does not like Dorais rule, since it buries the rule on page 15 of the slip opinion. Pages 12-14 imply that a hotel patron who unlawfully obtains possession of a hotel room has no expectation of privacy in the room.

In Rakas, the Supreme Court elucidated the principle that when an individual is not legitimately on the premises, he does not enjoy the protection afforded by the Fourth Amendment. The Court noted, [w]e would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one’s expectation of privacy, but it cannot be deemed controlling.

To illustrate this principle, the Court used the example of a burglar plying his trade in a summer cabin during the off season. The Court noted that while the burglar might not expect to be discovered, he does not enjoy a Fourth Amendment privacy interest in the summer cabin. Though Cunag argues to the contrary, that example resonates with this case.

However, the panel did not analyze Cunag under the Rakas rule. Instead, it applied Dorias. Thus, the Rakas discussion is clearly dicta, though it's core holding is something that the Ninth Circuit would be wise to adopt.

I can't think of any good reason why someone who obtains a hotel room through fraud (re: steals the hotel room) has an expectation of privacy in that room. Can you?

10/07/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

10/06/2004

Due process in illegal re-entry cases

Adrian Ortiz-Lopez was a Mexican national who illegally entered the United States in 1994. In 2000, he was convicted of possession of cocaine, in violation of California law. The then-INS [INS is now part of Homeland Security] ordered him to appear before an Immigration Judge.

The IJ ordered Ortiz-Lopez removed from the U.S. However, the IJ did not tell Ortiz-Lopez that might be eligibile for "voluntary departure" from the United States.

We don't know when, but Ortiz-Lopez illegally reentered the country and in 2002, was convicted of unlawful reentry under 8 U.S.C. § 1326; see also Ninth Circuit Model Jury Instruction 9.5.

The issue is whether the IJ's failing to tell Ortiz-Lopez that he might be eligible for voluntary removal deprived him of due process, and as such, negates his conviction under section 1326. In a per curiam opinion, Judges Fletcher, Trott, and Fischer said, "Yes."

The panel first reminded us that "A defendant charged with illegal reentry after removal under 8 U.S.C. § 1326 may collaterally attack the removal order." Slip opinion at 4.

In order to sustain a collateral attack, a defendant must show (1) that he exhausted all administrative remedies available to him to appeal his removal order, (2) that the underlying removal proceedings at which the order was issued “improperly deprived [him] of the opportunity for judicial review” and (3) that “the entry of the order was fundamentally unfair. An underlying removal order is fundamentally unfair if: (1) [an alien’s] due process rights were violated by defects in the underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.
Id. (citations and quotaiton marks omitted).

Since mere possession of cocaine is not an "aggravated felony" under 1229c(a), the IJ was obligated to tell Ortiz-Lopez that he might be eligible to leave voluntarily.

Ortiz-Lopez correctly argues that his due process rights were violated in the underlying deportation proceeding because the IJ failed to inform him that he was eligible for a fast-track voluntary departure in lieu of removal, under U.S.C. § 1229c(a).The requirement that the IJ inform an alien of his or her ability to apply for relief from removal is mandatory, and failure to so inform the alien of his or her eligibility for relief from removal is a denial of due process that invalidates the underlying deportation proceeding.

We have recently held that a state drug offense is not an aggravated felony for immigration purposes unless it would be punishable as a felony under the . . . federal drug laws . . . or is a crime involving a trafficking element. Under Cazarez-Gutierrez, it is clear that Ortiz-Lopez’s prior conviction was not an aggravated felony in the relevant sense.


Id. at 4-7.

10/06/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

Consent search

The defendant lives at home with his mother, but he has his own room. Police go to the defendant's home, place him in handcuffs, and put him in the back seat of a police car. The police then ask the defendant's mother for permission to search his room. The mother consents and police find inculpatory evidence. Is the search constitutional?

A unanimous three-judge panel said, "Yes." In United States v. Jones, No. 01-1215 (2d Cir., Oct. 5, 2004), Judge Cardamone, joined by Judges Newman and Katzmann, wrote:

The defendant concedes that his mother had permission to access his room, and had actually entered it a number of times to clean it. Further, it is uncontested that there was no lock on his bedroom door, which was a room located within his mother's bedroom. That proof demonstrates that she had access and permission to enter, and could indeed enter at any time. Under the law of this Circuit, this evidence is sufficient to show that the mother had actual authority to consent to the search of her son's bedroom. See Koch v. Town of Brattleboro, 287 F.3d 162, 167 (2d Cir. 2002).

Once a person gives authority, to be shared in common, with another over certain premises, any hope that a search of those premises based on that other person's consent will be found a Fourth Amendment violation is slim at best. The reason for this conclusion is because the Supreme Court made clear that common authority rests on the notion that any co-inhabitant can permit inspection in his/her own right and others, including defendant, have assumed the risk that such permission to search might occur. Matlock, 415 U.S. at 171 n.7. Accordingly, the defendant's decision to permit his mother joint access to his bedroom limits his reasonable expectation of privacy in that room, and to that extent also limits his Fourth Amendment protection in the effects seized there. See id.

Moreover, the case law does not support Lewis' claim that the officers should have asked his permission to search since he was outside of the apartment in handcuffs in a police car at the time of the search. Supreme Court and Second Circuit law establishes that in situations where the defendant is present -- and even in situations where the defendant has already refused consent -- the officers may nevertheless rely on consent from a third party who has the requisite authority to give it. See, e.g., Matlock, 415 U.S. at 166, 171 (warrantless search may be justified based on the consent of a third party with proper authority even when the arrested defendant was on the scene and available to give consent); United States v. Davis, 967 F.2d 84, 86-88 (2d Cir. 1992) (third-party consent justified a search and seizure despite fact that defendant was in the custody of police in squad car outside and was never asked to consent); see also United States v. Sumlin, 567 F.2d 684, 687-88 (6th Cir. 1977) (holding that since Matlock did not rely on the defendant's absence in order to justify third-party consent, but instead relied on an assumption of risk analysis, it was not constitutionally significant that defendant refused to consent to the search before the officers requested and were given third-party consent). In consequence, the search of Lewis' bedroom while he was present outside does not violate his Fourth Amendment rights.

Slip opinion at 11-13 (emphasis added).

10/06/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

Does a quasi-Pinkerton rule apply at sentencing?

Under U.S.S.G. § 3B1.4 , a "defendant [who] used or attempted to use a person less than eighteen years of age to commit the offense" shall receive a base-level offense of two. Moreover, under § 1B1.3(a)(1)(B), "in the case of a jointly undertaken criminal activity . . . , [a co-conspirator is liable for] all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." In other words, § 1B1.3(a)(1)(B) is to sentencing what Pinkerton is to liability.

In United States v. Jones, No. 01-1215 (2d Cir., Oct. 5, 2004), the court asks an issue of first impression in the Second Circuit, namely:

[W]hether § 3B1.4 can be applied to increase the offense level of the leader of a conspiracy who was not directly involved with recruiting a minor, and did not have actual knowledge that such individual was a minor, but who nonetheless had general authority over the activities in furtherance of the conspiracy.

In a decision written by Judge Cardamone, joined by Judges Newman and Katzmann, the panel said, "Yes."

Section 1B1.3(a)(1)(B) provides that where the offense is a jointly undertaken criminal activity, chapter 3 sentencing adjustments are to be made on the basis of "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." The offense of conspiracy is a jointly undertaken criminal activity, § 3B1.4 is a chapter 3 sentencing adjustment, and we agree with the district court's finding that the use of a minor by one of defendant Harris' co-conspirators was a reasonably foreseeable act in furtherance of the conspiracy. It follows that these two guideline provisions permit the two-level enhancement.

10/06/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

10/01/2004

United States v. Maxwell

[Editor's note: I will continually update this post].

Eleventh Circuit Tells Congress it can't Outlaw In-State Child Pornography
United States v. Maxwell, No. 03-14326, (11th Cir., Oct. 1, 2004)

On October 1, 2004, the Eleventh Circuit Court of Appeals held that Congress could not make it a federal crime to possess child pornography that never traveled across state lines.

After Alberta Wallace became suspicious that he roommate, James Maxwell, was using her computer to look at child pornography, she called the police. She then allowed FBI agents to search her Florida apartment.

During the search, the FBI made a copy of Wallace's hard drive and seized several disks. One of those disks contained hundreds of pornographic images of children. After the search, Wallace found another disk in her apartment: It contained 15 images of child pornography.

A grand jury indicted James Maxwell on two counts of possessing child pornography, in violation of 18 U.S.C. §2251A(a)(5)(B).

Although special agents knew that one young boy featured in a picture was from Texas, the agents could not determine where the picture was taken. Indeed, there was no evidence that any of the pictures were taken outside of Florida.

However, the trial court agreed with the prosecution that since the disks traveled to Florida from another state, Maxwell could stand trial.

Maxwell was convicted on both counts. A unanimous three-judge panel (Edmondson, C.J., Tjoflat and Cox, J.J.) of the Eleventh Circuit Court of Appeals reversed.

As an initial matter, Judge Tjoflat noted that the prosecutor's evidence merely established that "Apart from the origin of the disks (before they had been committed to nefarious purposes), Maxwell’s case involved no apparent connection to activity beyond Florida." Id. at 24. In other words, the prosecution never established what connection the pornographic pictures had with interstate commerce.

The panel found that Maxwell's conduct did not fall within any of the three areas the Supreme Court has found that Congress has jurisdiction.

In United States v. Lopez, 514 U.S. 549, 558-559 (1995) the Court found that the Commerce Clause confers upon Congress power to regulate “three broad categories of activity," namely:
• “the use of the channels of interstate commerce”;
• “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and
• “those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”

The court quickly found the first two categories inapplicable to Maxwell's conduct:

In this case, the challenged statute does not govern the channels of interstate commerce, and the Government did not establish that the proscribed images were things in interstate commerce. Rather the Government has prosecuted Maxwell for intrastate possession of child pornography and relies entirely for its convictions on the fact that the disks on which the pornography was copied traveled in interstate commerce before they contained the images.
Maxwell, at *27.

Thus, Congress could have the power to criminalize Maxwell's conduct only through the third category of interstate commerce authority.

In United States v. Morrison, 529 U.S. 598, 610-12 (2000), the Court clarified the substantial relationship element, finding that to determine whether wholly intrastate activity substantially affects interstate commerce, four factors are relevant:
• whether the statute in question regulates commerce “or any sort of economic enterprise”;
• whether the statute contains any “express jurisdictional element which might limit its reach to a discrete set” of cases;
• whether the statute or its legislative history contains “express congressional findings” that the regulated activity affects interstate commerce;
• whether the link between the regulated activity and a substantial effect on interstate commerce is “attenuated.”

The panel wrote that, "Stated bluntly, wholly intrastate activities that have a only minimal or insubstantial effect on interstate commerce are not proper subjects for federal regulation, at least not through the power bestowed by the Commerce Clause." Maxwell, at *26-27. However, the panel would only apply a rational basis level of review to the challenged law. Id. at 29. ("The statute is is constitutional in its application to Maxwell if a rational basis existed for concluding that the intrastate possession of child pornography produced with materials that traveled in interstate ommerce sufficiently affect[s] interstate commerce.”)(citing Lopez, 514 U.S. at 557)(quotation marks omitted).

The panel found that "The act of possession alone—the only act for which Maxwell was charged—entails no transactions, no consumption of goods or services, and no necessary resort to the marketplace." Distinguishing Maxwell's conduct from the farmer in Wickard v. Filburn, 317 US 111 (1942), the Judge Tjoflat wrote:

The regulation at issue in Maxwell’s case, by contrast, has no clear economic purpose. It makes no effort to control national trade by regulating intrastate activity. Instead, it attempts to regulate primary conduct directly, even within state borders. Unlike wheat, pornography is a nonrival good. In any event, Congress is clearly not concerned with the supply of child pornography for the purpose of avoiding surpluses and shortages or for the purpose of stimulating its trade at increased prices.

Maxwell, at 31.
As such, the "aggregate approach cannot be applied to intrastate criminal activity of a noneconomic nature." Id at 36.

The panel also disposed of the Morrison's other means by which Congress may regulate conduct having a substantial affect on interestate commerce:

In sum, our analysis of Morrison’s four considerations reveals no rational basis for concluding that the conduct for which Maxwell was convicted substantially affects or affected interstate commerce. Maxwell’s activity was noneconomic and noncommercial in nature; its connection to interstate commerce was tenuous at best. Section 2252A’s jurisdictional element requiring the government to establish that the illegal images were produced by materials that were transported in interstate commerce by no means ensures that the statute will be enforced only with regard to activity that has a substantial impact on interstate commerce. Lastly, the statute’s legislative history provides no meaningful evidence that the intrastate possession of child pornography at issue in this case, although produced with two disks that traveled in interstate commerce, substantially affects interstate commerce. Consequently, § 2252A’s application to Maxwell’s conduct cannot be sustained as a valid exercise of Commerce Clause authority. Id. at 54-55.

10/01/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

09/22/2004

Rape shield law in Connecticut

Does it violate the Confrontation Clause to exclude evidence that the complaining witness was a prostitute when the defendant's theory of his case is that the prostitute falsely accused him of rape for not paying her full asking price? The Connecticut Supreme Court said "Yes," in State v. DeJesus. (Note: All citations below refer to the page of the .pdf file. Also, all internal quotation marks and citations have been omitted).

Tina C. was acquainted with Luis DeJesus. Ms. C. would often perform odd-jobs for him. She would come over to his house for social visits. And they had sex at least once.

One early morning Ms. C. asked DeJesus if he had any work for her. DeJesus invited Ms. C. up so that he could call some friends to solicit work for Ms. C. What happened next is in dispute.

She said: DeJesus asked me to have sex with him. I told him no and tried to leave. He grabbed my arms, pinned me to the ground, and raped me. Once he was finished, he threw $30 down at my feet, as if I were a whore. I took the money but only because I did not want to fight with DeJesus anymore.

He said: Ms. C. is a prostitute. She came over my house that morning to offer me her services for her usual rate of $50. I agreed to pay her. After we had sex, I only paid her $30. She was unhappy but left with the money.

At trial, the jury was never allowed to hear DeJesus’s side of the story. The trial court found that the rape shield law prevented the admission of any evidence concerning Ms. C’s sexual history. The defense was not allowed to confront Ms. C. about her job as a prostitute. In a 5-0 opinion, the Connecticut Supreme Court reversed.
Wrote the Court:


The primary interest secured by confrontation is the right to cross-examination . As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness’ reliability. [P]reclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. Further, the exclusion of defense evidence may deprive the defendant of his constitutional right to present a defense.
Slip opinion at 6-7 (quotations and citations omitted - here and in the citations below).

However, the Court wrote: "The defendant’s right to confront witnesses against him is not absolute, but must bow to other legitimate interests in the criminal trial process." Id. at 7. One such "legitimate interest" is to prevent complaining witnesses' in rape trials from having irrelevant aspects of their sex lives revealed in a public forum. However, the exclusion of evidence under rape shield laws is also not absolute.

Evidence of prior sexual conduct is admissible in a rape trial when "the proffered evidence so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights." Id. Here, whether Ms. C. was a prostitute was both relevant and material.

Evidence of Ms. C.’s prior prostitution is relevant because it would help the jury determine whether she had a bias or motive for falsely accusing DeJesus. For example, a jury could rationally conclude that Ms. C.’s reason for crying rape had nothing to do with his overpowering her will: Instead, she wanted to get even with him for shorting her $20. The evidence is material because, if true, it would provide DeJesus with a defense. Indeed, that Ms. C. was a prostitute would be his only defense. The Court wrote:

In the present case, as in Demers, the excluded evidence of the victim’s prior prostitution deprived the jury of the necessary contextual framework to evaluate properly the defendant’s version of events. Without such evidence, the jury was left to speculate as to why the defendant provided, and the victim accepted, the money that both agreed had been exchanged. Because the jury could have inferred, from the evidence presented,that the victim needed money from the fact that she had gone to the defendant’s residence looking for work, it reasonably could have concluded that she accepted the money when it was offered because she needed money. Had the jury been allowed to consider the excluded evidence, however, it reasonably could have concluded, contrary to this explanation for why she accepted the money, that the victim accepted the money because she had performed an act of prostitution for which she expected payment. The evidence, therefore, was relevant to establish the victim’s consent to the sexual intercourse, rather than her general unchaste character as prohibited by the rape shield statute.

Also, without evidence of the victim’s prior history of prostitution, the jury heard no evidence to explain why she would have had a reason to fabricate a sexual assault allegation against the defendant. [A]ny limitation on the impeachment of a key government witness is subject to the most rigorous appellate review. If the jury had been allowed to consider the excluded evidence, it reasonably could have found, contrary to the implication that she simply needed money, that the victim demanded a fee for her services as she had done in the past.

Id. at 9.

Moreover, the Court took umbrage at the proscutor’s misconduct. In his closing argument, the prosecutor said:
‘‘What reason is there for [the victim] to give false information about what happened that morning?’’ Id. at 10. Indeed, there was a very good reason for the complaining witness to lie. However, the prosecutor willfully kept this reason from the jury.

09/22/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

Attorney error not grounds for equitable tolling

Under 28 U.S.C. §2244(d)(1)(A), a prisoner petitioning for a writ of habeas corpus has a year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[ ]." Gregory Scott Johnson’s conviction became final on June 26, 1998. Under §2244, Johnson had one year to file his petition for collateral review. Since the end of a statutory year fell on a Saturday, Johnson had under June 28, 1999 to file. His attorney did not mail the petition until June 25, 1999. The district court did not receive the petition - which was promptly filed upon receipt - until June 29, 1999.

Does Johnson’s lawyers mistake entitle him to have the statutory deadline tolled?

The Seventh Circuit, in an opinion authored by Judge Easterbrook, answered: "No." Judge Easterbrook first recognized that Johnson’s lawyers blew it:


Counsel bungled the job in two ways. First, she waited until the final business day of the statutory year. Prudent lawyers act sooner, so that Murphy’s Law will not undermine a client’s interests. Second, counsel used first-class mail rather than Federal Express or another service that guarantees next-business-day delivery, or (better still) sending a messenger to the courthouse to file in person. Apparently counsel believed that use of the mails would add three days to the time available. Yet Fed. R. Civ. P. 6(e) applies only to documents "served" on opposing counsel, not to documents such as complaints or notices of appeal that must be filed in court. Nothing in the Rules Governing Section 2254 Cases in the United States District Courts treats any document as "filed" before actual receipt by the district court’s clerk.
Johnson v. McBride, 2004 WL 1858368 at *3 (7th Cir., Aug. 20, 2004).

However, "lawyers are agents. Their acts (good and bad alike) are attributed to the clients they represent." Id. at *4.

Although "[t]he sixth amendment creates an exception to this principle for criminal prosecutions. Once trial and direct appeals have run their course, however, neither the sixth amendment nor federal law guarantees effective assistance of counsel for collateral proceedings, not even in a capital case."


Id.

Judge Easterbrook reminded prisoners that the court will "hold the prisoner responsible for his attorney’s bungling." Id. at 5. (quoting Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003)).

Lest ye think that the Seventh Circuit has no heart, they reminded us that none of Johnson’s claims fell under the so-called "innocence" exception of 2244(b)(2)(B) (i)-(ii).

09/22/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

Consent to cell phone monitoring

Does a suspect implicity consent to having his conversations monitored when he uses an illegally obtained cellular telephone?

In United States v. Staves, the Ninth Circuit answered, "No." In an opinion joined by Judges Hansen and Fletcher, Judge Fletcher wrote:

Title III permits interception of a conversation if one of the parties to the communication has given prior consent to such interception. Generally, consent must be express, but consent may be implied where there are surrounding circumstances indicating that the defendant knowingly agreed to the surveillance. Staves argues that use of a cloned cellphone constitutes consent to its monitoring because monitoring is a foreseeable harm of using an illegal cellphone. Assuming arguendo that this is true, foreseeability of monitoring is insufficient to infer consent. Rather, the circumstances must indicate that a party to the communication knew that interception was likely and agreed to the monitoring. [In Van Poyck, the court inferred] knowing agreement to monitoring of prison telephone conversations where the defendant received several warnings of the monitoring.

The necessity requirement exists in order to limit the use of wiretaps. Congress was concerned lest overzealous law enforcement officers rely excessively upon such techniques in lieu of less intrusive investigative procedures. Therefore, Title III was enacted to address the grave threat to the privacy of every American that is posed by modern techniques of electronic surveillance. Title III protects a privacy right to be free of intrusive monitoring by law enforcement officials, balancing that right with legitimate law enforcement needs. Permitting wiretapping of cloned cellphones without a court order would undermine Title III’s protections because law enforcement officials could supply informants with monitored, cloned cellphones rather than undertaking the preliminary investigation and providing
the detailed application required to receive a wiretap order.

Accordingly, we conclude that Title III prohibits monitoring cloned cellphones without a court order.


United States v. Staves (No. 03-50300) at *13177-8 (9th Cir., Sept. 9, 2004) (internal citations and quotation marks omitted, emphasis added).

09/22/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

Mens rea in pseudoephedrine cases

What is the mens rea requirement for the crime of possessing and distributing pseudoephedrine knowing or having "reasonable cause to believe" that it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2)?

Title 21 U.S.C. § 841(c)(2) makes it a crime to "possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance." Pseudoephedrine, which is found is many over-the-counter medications, can be used to manufacture methamphetamine.

Manjit Kaur owned a convenience store in Washington. One day a DEA informant purchased a large amount of over-the-counter products containing pseudoephedrine. Although the court doesn't state all of the facts, we assume that there were facts and circumstances surrounding the sale that would have tipped Ms. Kaur off that the purchaser was going to use the items to make drugs.

Thus, the DEA obtained a search warrant based on that sale. While searing Ms. Kaur's store, federal agents found several other products containing pseudoephedrine. (No shit. She ran a convenience store.) But since Ms. Kaur had already sold the pseudoephedrine that she (allegedly) knew would be used to make meth, they charged her with an additional count of violating Section 841. Do you get that?

The government now has her on two counts. Count 2 is based solely on Ms. Kaur's having inventory. Since she sold OTC medication, the government alleged that all the other OTC medication she "possessed" was in violation of Section 841.

At Ms. Kaur's trial, the trial court instructed the jury as follows:


"Reasonable cause to believe" means to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person knowing the
same facts, to reasonably conclude that the pseudoephedrine would be used to manufacture a controlled substance.

Kaur's objected to the Instruction since she thought that merel negligence would be all a jury would have to find in order to convict.

In an opinion joined by Judges Warren J. Ferguson, and Consuelo M. Callahan, Judge Harry Pregerson wrote:


We are not persuaded by Ms. Kaur’s contention that Instruction 17 improperly imposed a reasonable person standard rather than a subjective standard. The district court’s formulation does not replace a subjective standard with an objective reasonable person standard. Rather, consistent with the text of the statute, the instruction incorporates both subjective and objective considerations. The district court instructed the jury to evaluate whether Ms. Kaur knew or had reasonable cause to believe that the pseudoephedrine she possessed and distributed would be used to manufacture methamphetamine. That is a subjective inquiry. The district court then offered the jury guidance as to the meaning of reasonable cause to believe to explain how this alternative mens rea differed from (the more easily understood) actual knowledge. The district court explained that this standard incorporates both subjective and objective elements: Ms. Kaur had reasonable cause to believe if she actually knew facts that would alert a reasonable person that the pseudoephedrine would be used to make methamphetamine. The district court’s instruction simply elaborated upon the statutory language: the government had to prove that Ms. Kaur either knew, or knew facts that would have made a reasonable person aware, that the pseudoephedrine would be used to make methamphetamine. Thus, the district court did not abuse its discretion in formulating Instruction 17.6.

United States v. Kaur, at *13282 (9th Cir., Sept. 10, 2004).

As a matter of federal criminal common law, this case does not have much to offer. The jury instruction seemed reasonable to me. But if I had clients in the convenience store business, I would tell them to take heed.

Selling OTC-drugs to a shady looking fellow would only be one-count in a multiple-count indictment. This is because the DEA could use that sale as a predicate to showing all of the other OTC-drugs in your store are being "possessed" in violation of federal law. A store owner would find himself is a lot of trouble, very quickly.

Moreover, the government could also bring a civil forfeiture proceeding against the store owner. Thus, the corner-store owner could find himself being treated like a drug dealer. Scary, 'eh?

09/22/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

09/21/2004

Border searches in the Ninth

We'll file this case under, "You don't really need a spare tire when travelling cross-country, do you?"

A federal agent takes our his knife and slices open your spare tire. What result?

[T]he search [re: slicing and dicing] of a vehicle’s spare tire, which neither damages the vehicle nor decreases the safety or operation of the vehicle, is not so destructive as to be unreasonable.

***

Although cutting a spare tire is certainly damaging to that tire, the important factor is whether the procedure results in significant damage to, or destruction of, the vehicle.

***

In this context, a vehicle’s spare tire, which is not an operational component of the vehicle, is analogous to a closed suitcase or other container often found inside of a vehicle. The government’s longstanding authority to search containers and concealed areas of vehicles crossing the border reflects the practical reality that “[c]ontraband goods rarely are strewn across the trunk or floor of a car; since by their very nature such goods must be withheld from public view, they rarely can be placed in an automobile unless they are enclosed within some form of container.”

United States v. Cortez-Rocha, No. 03-50491 (9th Cir., Sept. 21, 2004).

09/21/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

09/20/2004

Preindictment delay

Is a preindictment delay grounds for a downard departure in the Eleventh Circuit? In United States v. Stuart, 2004 WL 2032318 (11th Cir., Sept. 14, 2004), a per curiam court said, "Maybe."

This Circuit has not decided whether preindictment delay is a valid basis for departing downward, and nothing in the guidelines expressly addresses this issue. Every other circuit that has considered this issue has determined that preindictment delay may support a downward departure. See United States v. Dote, 328 F.3d 919, 925-26 (7th Cir. 2003); United States v. Los Santos, 283 F.3d 422, 428 (2d Cir. 2002); United States v. Sanchez-Rodriguez, 161 F.3d 556, 564 (9th Cir. 1998) (en banc); United States v. Brye, 146 F.3d 1207, 1213-14 (10th Cir. 1998); United States v. Saldana, 109 F.3d 100, 104 (1st Cir. 1997). The standard for a departure for preindictment delay is uncertain, however.

***

We hold that, at a minimum, a downward departure for preindictment delay would have to be predicated on some prejudice to the defendant, and there is no evidence of prejudice to Stuart from any delay. The district court, therefore, erred in departing downward for preindictment delay.


Id. at *3.

09/20/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

09/17/2004

Statements of co-conspirators inadmissible in Second Circuit

Holy toledo! Crawford is being felt in the Circuits. The Second Circuit held on Tuesday that co-conspirator statements are inadmissible against a criminal defendant unless the defendant had a prior opportunity to cross-examine the speaker. United States v. Bruno, No. 03-1349 (2d Cir., Sept. 14, 2004). Judge Miner, for Judges Katzmann and Tsoucalas, wrote:

We turn first to whether the District Court’s admission of two hearsay statements — a plea allocution and [ ] grand jury testimony — violated the Confrontation Clause of the Sixth Amendment in light of the Supreme Court’s recent decision in Crawford v. Washington. There, the Court held that the Confrontation Clause was violated when the state trial court admitted a statement made by the defendant’s wife to the police, notwithstanding the wife’s unavailability to testify at trial due to the invocation of the marital privilege. Specifically, the Court held that testimonial statements of witnesses absent from trial are to be admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. In reaching this conclusion, the Court identified earlier lower federal court cases where testimonial statements had been admitted in contravention of its interpretation of the Confrontation Clause, including cases where a plea allocution showed the existence of a conspiracy, and cases involving the admission of grand jury testimony. *** [T]he District Court plainly erred in admitting into evidence testimonial hearsay statements that the Crawford Court expressly stated are not admissible under the Confrontation Clause. We hasten to observe that the able District Court made its rulings before the Supreme Court issued Crawford, and that only a soothsayer could have known with any certainty that the Court would change the legal landscape. That these statements were clearly admissible under our interpretation of the Confrontation Clause at the time they were admitted is of no moment, however, given that an error is plain if it is clear or obvious at the time of appellate consideration.

United States v. Bruno, 2004 WL 2039421, at *7-9 (citations and quotation marks omitted).

09/17/2004 in Case briefs - Criminal | Permalink | Comments (1) | TrackBack

09/16/2004

Marital privilege and confidential communications

Is inculpatory information that wife writes in a letter to husband covered under the marital privilege? If husband leaves the letter on a desk that his children have access to, has husband waived that privilege?

James and Louise Montgomery (husband and wife) formed a real estate managment company in Oregon. The company was created to rent out peoples' vacation homes. For a 25-30% commission, husband and wife would make their best efforts to rent out these homes and to keep them in good repair. They would periodically provide a full and detailed accounting to the property owners.

In 1992, Mary Lou O’Connor, husband's sister, came to work at the company. Wife and sister-in-law could not work together. Consequently, wife quit working for the company and sister-in-law took over the financial books and made capital contributions to the company.

When wife returns to the company two years later, she notices some shady dealings. Sister-in-law seems to be diverting money from corporate accounts receivable for her own use. Sister-in-law would also not report overnight rentals to the property owners.

Wife wrote husband a letter saying [I'm ad-libbing here since the court did append the full letter]:

Dear Jimmy, I will not "be part of a dishonest operation." Nor will I prepare any statements until your "sister stops cheating." I will also not bring further business to the company because they "will probably be cheated." “If you can’t stop [O’Connor] or if we can’t stop her together I am going to write to her or talk to her.” Love, Louise

After some property owners become hip to the scheme, the IRS agents searched the Mongomery's home, where they found the letter. Husband, wife, and sister were indicted on conspiracy and mail fraud charges.

Wife flipped on husband and sister-in-law, who were then convicted of mail fraud and conspiracy. All charges against wife were dismissed in exchange for her testifying.

At trial, the court admitted the letter from wife to husband into evidence. Judges William A. Fletcher and Richard C. Tallman joined Judge Alfred T. Goodwin's opinion, reversing husband's conviction.

Judge Goodwin first reminded us of the relevant privileges that apply to married couples:

Federal Rule of Evidence 501 provides that “the privilege of a witness [or] person . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” The Supreme Court has recognized two privileges that arise from the marital relationship. The first permits a witness to refuse to testify against his or her spouse. [This is the testimonial privilege]. The witness spouse alone holds the privilege and may choose to waive it. Id. [ ].

The second privilege, called the marital communications privilege, provides that “[c]ommunications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged . . . .” The privilege (1) extends to words and acts intended to be a communication; (2) requires a valid marriage; and (3) applies only to confidential communications, i.e., those not made in the presence of, or likely to be overheard by, third parties. Recognizing that the privilege obstructs the truthseeking process, we have construed it narrowly, particularly in criminal proceedings, because of society’s strong interest in the administration of justice. The government bears the burden of showing that the communication was not intended to be confidential.


Slip opinion at 6-7 (citations and quotation marks omitted - here and below) (emphasis added).

Since factors 1 & 2 were obviously met, the court asked whether the letter was a "confidential communication." The court wrote that "the nature of the communication — a handwritten letter from a wife to a husband that was left on the kitchen counter of the couple’s home — is of the kind likely to be confidential.” Id. at 8. The court also found that husband's leaving the letter on the kitchen counter did not waive the privilege. At least, the government - who has the burden of establishing waiver - did not prove that it did.

The court wrote that unlike the testimonial privilege, the marital privilege could be invoked by either party: Either spouse could prevent the other from disclosing the information. Wrote Judge Goodwin:

[W]e hold that either spouse may assert the privilege to prevent testimony regarding communications between spouses. Vesting the privilege in both spouses recognizes that allowing the communicating spouse to disclose one side of a conversation would eviscerate the privilege. As one treatise has observed, permitting each spouse to testify as to his or her own statements invites attempts to prove circumstantially the statements of one spouse by proof of what the other had said.
Id. at 11-12.

While the court recognized that “the marital communications privilege does not apply to statements made in furtherance of joint criminal activity,” id. at 13, the government failed to establish that wife was involved in husband's criminal activity.

The letter should not have been admitted into evidence. Moreover, admitting it was reversible error:

In sum, the district court erred in admitting Mrs. Montgomery’s letter and her testimony recounting her conversations with Montgomery. Because the government conceded at oral argument that any error was prejudicial, we reverse Montgomery’s convictions.

Id. at 14.

Overall, the case is a great primer on marital privilege. It recognizes the sanctity of marriage. A spouse is also a counsellor. It is a good thing for men and women to have someone to whom they can bear their souls. Moreover, it shows why married men, on average, live seven years longer that single men - we don't have to keep secrets from our wives!

09/16/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack

09/14/2004

Hearsay in the Ninth Circuit

Is a state court judgment determing property ownership admissible hearsay in a tax evasion prosecution?

In United States v. Boulware, No. 02-10338 (9th Cir., Sept. 14, 2004) the court held that a state court judment adjudicating property rights was admissible FRE 803(15) (Statements in documents affecting an interest in property).

Michael H. Boulware was the sole shareholder of Hawaiian Isles Enterprises (HIE). In 1989 the company was reporting gross recipts of $55 million. Mr. Boulware was married to Mal Sun Boulware. He also kept a girlfriend on the side - Jin Sook Lee.

In 1987 Mr. Boulware asked Ms. Boulware for a divorce. Since Hawaii is a community property state, Mrs. Boulware was entitled to 1/2 of HIE. Mrs. Boulware said that she would force Mr. Boulware to liqudiate HIE unless he paid her several million dollars. Since he was not liquid enough to meet her demands, he said that it would take some time. Mrs. Boulware said she would wait.

Mr. Boulware then started transferring millions of dollars from HIW to Ms. Lee. Mr. Boulware's attorney told him that if he transferred the money from HIE to Lee, that it would not be taxable income to him.

By 1994, Lee held enough cash for Mr. Boulware to allow him to pay off his wife. However, Lee refused to give him the money. Finally, after litigation, a state court jury found that Lee was holding the money ulawfully: The money belonged to HIE.

Sometime in 1999 or 2000, the government filed criminal tax evasion charges against Mr. Boulware. The government alleged that he had been siphoning off money from HIE to Lee. Lee would then give the money to Mr. Boulware. In other words, Mr. Boulware would indirectly dividents from from HIE withoiut paying income tax.

At trial, Mr. Boulware tried to introduce the state court judgment into evidence. His theory was clear: The money belonged to HIE, and this verdict proves it. Or, at the very least, it shows that Lee was holding the money for the company in trust. In sum, I did not obtain dividends from HIE, and thus, I did not underreport my income tax liability.

Unsurprisingly, the government fought against admitting this evidence. The District Court agreed. Mr. Boulware was convicted.

Judge Thomas joined Judge Tashima's 2-1 decision:

[Is the state court judment relevant] The district court excluded the state court judgment pursuant to Federal Rules of Evidence 401 and 402, stating that whether the transfers to Lee were gifts “is not relevant to the ultimate issues of the case.” This ruling was erroneous. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Whether Boulware transferred the HIE funds to Lee for personal purposes or for her to hold in trust for HIE was a key issue in the case. That he pursued a successful litigation against Lee to force her to return the monies to HIE has some tendency to make it more likely that he gave the monies to her to hold in trust. Indeed, the government conceded at oral argument that the state court judgment is relevant.
(2) Hearsay Hearsay is “a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). A prior judgment is therefore hearsay to the extent that it is offered to prove the truth of the matters asserted in the judgment. A prior judgment is not hearsay, however, to the extent that it is offered as legally operative verbal conduct that determined the rights and duties of the parties. See United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004). Although Rule 803 contains exceptions for certain kinds of judgments, such as judgments of previous felony convictions and judgments as to personal, family, or general history or boundaries, see Fed. R. Evid. 803(22) & (23), civil judgments do not fit comfortably into any hearsay exception.
Under the plain meaning of Rule 803(15), hearsay statements are admissible if they are contained within a document that affects an interest in property, if the statements are relevant to the purport of the document, and if dealings with the property since the document was made have not been inconsistent with the truth of the statements. See Silverstein v. Chase, 260 F.3d 142, 149 (2d Cir. 2001). Here, the state court judgment meets each of these requirements. The judgment affected an interest in property by declaring HIE to be the legal owner of the funds and by requiring Lee to return them to HIE, and the statements are relevant to the purport of the document. In addition, there is no indication that the parties acted inconsistently with the judgment; it was undisputed that the judgment was valid and could be authenticated.

Slip opinon at 15-20.

Judge Silverman wrote a 1-page dissent.

In my view, the district court did not abuse its discretion in refusing to admit the state court judgment into evidence. The judgment does no more than establish that, as between Jin Sook Lee and Hawaiian Isles Enterprises, the money belonged to Hawaiian Isles Enterprises. This has no bearing on whether Boulware diverted corporate funds to his girlfriend for his own benefit without paying tax on the money. The judgment establishes only that she was not entitled to keep the cash. It does not prove, or even tend to prove, that he didn’t siphon off the money from the corporation, tax-free. Why would it? That was not at issue in the case.
District courts have wide latitude in ruling on the relevancy of evidence. United States v. Alvarez, 358 F.3d 1194, 1216 (9th Cir. 2004). Implicit in any such ruling is an evaluation of probative value. 1 McCormick on Evidence § 185, at 637 (5th ed. 1999) (“There are two components to relevant evidence: materiality and probative value.”). Because the state court judgment against Lee sheds little if any light on whether Boulware committed tax evasion, I would hold that the district court did not abuse its discretion in ruling the Hawaiian judgment inadmissible.

09/14/2004 in Case briefs - Criminal | Permalink | Comments (0) | TrackBack