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Univ. of South Carolina School of Law

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Sunday, April 20, 2008

Another State Of Mind, Take 3: Jean Pierre Orlewicz Found Guilty Of First Degree Murder (And Another "Scarface" case)

I've written twice before (here and here) about the murder trial of Jean Pierre Orlewicz and Alexander Letkemann, who were accused of murdering and beheading Daniel Sorensen.  Well, that trial ended this week, with Letkemann pleading guilty to second degree murder and them testifying against Letkemann, who was found guilty of first degree murder.  There weren't any more interesting legal rulings in the case, but as I noted in my last post, the judge in the case made a pretrial ruling to exclude evidence such as images from "Scarface" that Sorensen posted on his MySpace page.  I noted that I thought that the ruling was correct because any probative value that the images had was substantially outweighed by their prejudicial effect, making them inadmissible under Michigan Rule of Evidence 403 (depending on how defense counsel planned to use the images, they could also have constituted impermissible character evidence).

Well, the First Circuit Court of Appeals recently affirmed a ruling of the United States District Court for the District of Massachusetts that came to the opposite conclusion.  In United States v. Marin, 2008 WL 1069800 (1st Cir. 2008), Antonio Marin was convicted by a jury of possessing a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. Section 924(c).  This conviction came after the DEA used a cooperating witness known as “Gijo” to make a series of cocaine purchases from Marin in the birthplace of basketball (and me), Springfield, Massachusetts.  Simultaneous with the arrest, other DEA agents executed a search warrant at Marin's apartment, where they found 770-775 grams of cocaine, a digital scale, packaging materials, and a loaded .38 caliber semiautomatic handgun with a defaced serial number and a spare clip loaded with .38 caliber ammunition.

The issue at trial, then, was whether Marin possessed the firearm "in furtherance of" his drug trafficking or whether his firearm possession was unrelated to his drug trafficking.  During his opening statement, defense counsel set forth the defense theory that Marin was simply "interested in guns" and that he had a "casual interest" in guns.  The prosecution sought to rebut this argument at trial by introducing something else found in Marin's apartment:  a "Scarface" shadowbox containing a picture of actor Al Pacino portraying a violent drug dealer, with a replica gun, cigar and money under the photo; and a poster of Pacino aiming a machine gun (I would guess it was this shadowbox).  Defense counsel did not object to this evidence at trial, but he claimed on appeal that the evidence was inadmissible, either as irrelevant under Federal Rule of Evidence 401 or because its probative value was substantially outweighed by its prejudicial effect under Federal Rule of Evidence 403

The First Circuit, however, found that there was no plain error by the district court in admitting the evidence.  Instead, it found that the government properly "used the evidence solely to rebut the 'casual interest' argument because of the reference made by the defense."  The First Circuit "agree[d] with the defendant to the extent that, in some circumstances, the government's reliance on the 'Scarface' evidence might be improper."  In Marin, however, the court found that "there was some probative value to the evidence, that of rebutting a defense theory which had been previewed to the jury in the opening statement, that relied on similar evidence."  The court finally found that "[i]n view of the evidence's legitimate use and in light of the other evidence in the case, [it could] not say that the danger of unfair prejudice substantially outweighed the probative value of the evidence."

Really?  If I were a judge and presented with a "Scarface" shadowbox found in a defendant's apartment, here's what I might think:  (1) the defendant is a fan of the movie (many are); (2) the defendant is a fan of director Brian De Palma (maybe, unlike me, he could have even sat through all of "Redacted"; (3) the defendant is a fan of actor Al Pacino (maybe if he weren't incarcerated, he would have been one of the brave few to check out the critically reviled "88 Minutes" this weekend); (4) the defendant is a fan of actress MIchelle Pfeiffer (maybe he would have even Netflixed the direct-to-DVD "I Could Never Be Your Woman"); (5) the defendant is a fan of screenwriter Oliver Stone (maybe he could have even tolerated "Alexander"); and/or (6) the defendant is a fan of gangsters/gangster movies in general (so, he would likely have checked out Michael Mann's forthcoming "Public Enemies," and he almost certainly would have caught De Palma's proposed "The Untouchables: Capone Rising"

And that's pretty much it.  Okay, if you twisted my arm, I might say that the shadowbox reveals that the defendant had a casual interest in guns, which was Marin's defense.  But does it reveal a more than a casual interest in guns, as the First Circuit concluded?  In the immortal words of John McEnroe, "You cannot be serious!"  And if you are, then the NRA should be recruiting much more actively on college campuses because there are thousands of students across the country with Tony Montana posters on their dorm walls just waiting to become the next Charlton Heston.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/04/scarface-us-v-m.html

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