EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, February 7, 2008

Survivor: Rhode Island -- First Circuit Upholds Richard Hatch's Convictions Based In Part On Expert Testimony Ruling

The First Circuit Court of Appeals has upheld the tax and fraud convictions of Richard Hatch, the first winner of CBS' "Survivor," finding, inter alia, that the trial court properly allowed an IRS agent to provide expert testimony about the proper tax consequences of a transaction. See United States v. Hatch, 2008 WL 274037 (1st Cir. 2008).  In 2005, Hatch was indicted in Rhode Island for related tax and fraud crimes such as tax evasion based upon, inter alia, filing a "tax return for the year 2000 in which he falsely stated that he had negative income and was owed a $4,483 refund, and that he willfully failed to declare three sources of income: (a) the over one million dollars he won on “Survivor;” (b) $18,708 in rental income from property he owned in Newport, Rhode Island; and (c) $25,000 in charitable donations diverted to his own use." at *1.

During a pre-trial hearing, the prosecution indicated that it wanted to call IRS agent Michael Pleshaw to testify that if the above listed sums "omitted from the tax returns had been included, substantial tax would be owed," an element needed to prove tax evasion. Id. at *18.  There apparently was some dispute as to whether Pleshaw would be testifying as a fact witness or an expert witness, and the prosecution did not qualify Pleshaw as an expert witness. Id.  The record revealed, however, that while the trial judge invited defense counsel to file a motion for a Daubert hearing to determine whether Pleshaw needed to be qualified as an expert witness, defense counsel failed to file such a motion. Id. at *19.  Pleshaw  subsequently testified at trial, leading to Hatch's convictions. 

On appeal, Hatch claimed, inter alia, that the trial court improperly allowed Pleshaw to provide expert testimony. Id.  The First Circuit rejected this argument, noting that defense counsel failed to file a motion for a Daubert hearing, despite the trial judge's invitation. Id.  The court further found that if defense counsel would have asked for such a hearing, the trial judge would have qualified Pleshaw as an expert witness in conformity with precedent allowing IRS agents to provide expert testimony as to the proper tax consequences of transactions. Id.   

This conclusion seems correct to me because IRS agents have specialized knowledge about taxes that would be helpful to the trier of fact.  Indeed, my review of case law across the country reveals that several courts have all came to the same conclusion as the First Circuit. See, e.g., United States v. Pree, 48 F.3d 855, 869-70 (7th Cir. 2005); United States v. Mohney, 949 F.2d 1397, 1406-07 (6th Cir. 1999). 



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