December 27, 2008
Something To Confess: First Circuit Seemingly Misapplies Bruton Doctrine In Dicta
The recent opinion of the First Circuit in United States v. Cruz-Diaz, 2008 WL 5250979 (1st Cir. 2008), contains what seems to me to be a pretty blatant misstatement of the interplay between a rule of evidence and the Confrontation Clause. Luckily for the court, however, that statement was in dicta.
In Cruz-Diaz, a jury convicted Angel Zamora Cruz-Díaz (Cruz) and José Alfredo Ayala-Colón (Ayala) of conspiring to rob a federally insured bank, aiding and abetting a bank robbery by use of a dangerous weapon, and aiding and abetting the use of a firearm during and in relation to a crime of violence.
Both defendants subsequently appealed, with Ayala's sole claim on appeal being that the trial court erred when it allowed an FBI agent to testify regarding an out-of-court statement made to authorities by Cruz, his codefendant. The court allowed the agent to testify about Cruz's statement after Ayala's counsel, via cross-examination, questioned a Puerto Rico police officer about the failure of the police to pursue various investigatory options after it detained Cruz and Ayala.
The agent thereafter explained that the FBI and Puerto Rico police failed to pursue certain investigatory options because they believed they had captured the right suspects. And, in doing so, the agent referred to Cruz's out-of-court statement while testifying that:
"I became aware at the time of the detention of the two defendants that [Cruz] had stated to [the officer] who gained custody of him, that ... 'the money is over there in a black bag, we already threw away the weapons,' and something to the effect of, 'we're screwed, less than five minutes and they caught us.'"
The First Circuit correctly found that this testimony did not violate Ayala's rights under the Confrontation Clause because Cruz's confession was not admitted to prove the truth of the matter asserted. Indeed, the court noted that before the agent rendered the above testimony, the judge gave the following limiting instruction:
"[The FBI agent] is going to testify as to actions he took in his investigation of this case, based upon information he received. And what I'm going to instruct you is that his testimony concerning what he did, the actions he took, because of information [he] had, is not being presented to you to consider the truthfulness of the defendant's statement in any way whatsoever. You're instructed not to consider the statement he's going to testify about as evidence on any of the counts or against the defendants of any of the counts charged in the indictment."
So, where did the court go wrong? Well, the court noted that Cruz's confession was thus not hearsay and could not violate the Confrontation Clause and specifically the Bruton doctrine, which holds that a confession by a non-testifying codefendant cannot be admitted against another defendant being prosecuted in the same (joint) trial.
In addressing this hypothetical Bruton issue in dicta, the court noted:
"It is well established that a codefendant's out-of-court statement is admissible against that codefendant as a 'party admission.' Fed.R.Evid. 801(d)(2)....But that same statement is inadmissible hearsay and raises Confrontation Clause concerns with respect to another defendant being prosecuted in a joint trial."
Now, I'm not quite sure what the First Circuit was saying. On the one hand, if it were implying that Cruz's confession would have qualified as a co-conspirator admission if it were offered for the truth of the matter asserted, the First Circuit would have been wrong. That's because Federal Rule of Evidence 801(d)(2)(E) defines a co-conspirator admission as "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Clearly, Cruz's confession to the agent after he was already apprehended was neither during the course of nor in furtherance of his alleged conspiracy with Ayala.
On the other hand, maybe the First Circuit was not saying that Cruz's confession could have been construed as a co-conspirator admission and was merely saying that if it had a co-conspirator admission before it, it would have had a Bruton issue. But this conclusion would have been just as wrong. That is because statements that qualify as co-conspirator admissions are deemed non-testimonial (and the admissions of both co-conspirators), meaning that they raise no Bruton problem. See, e.g., United States v. SIngh. 494 F.3d 653, 658 (8th Cir. 2007).
December 26, 2008
Majority Rule: Mississippi Court Finds Juror Can't Impeach Verdict Through Claim Of Majority Vote
Despite the defendant's protestations to the contrary, the type of jury misconduct that allegedly occurred in Edwards v. State, 2008 WL 522608 (Miss.App. 2008), is exactly the type of misconduct that does not form the proper predicate for jury impeachment under Federal Rule of Evidence 606(b) and state counterparts.
In Edwards, Kanethia Edwards, an eleventh grade student, was convicted of aggravated assault based upon a fight with Angelique Lewis, another eleventh grade student, whom Edwards stabbed with a knife. After she was convicted, Edwards appealed, claiming, inter alia, that the circuit judge should have granted an evidentiary hearing for her to set forth proof that the jury based its guilty verdict on a majority vote instead of reaching a unanimous decision.
Edwards claimed that a hearing was warranted because she obtained an affidavit from a juror named Usry, which stated:
"During the course of deliberations the jurors, including myself, discussed the case and votes three (3) times on the verdict. The first vote was seven (7) for not guilty and five (5) for guilty. We continued to deliberate and after [the vote] was nine (9) for 'not guilty' and three (3) for 'guilty.' We continued to deliberate and took a third vote. Prior to the third vote, the foreman...and others began to discuss that on the next vote we should go by the majority and allow the majority vote to be the verdict of the jury. The foreman suggested that in order to reach a verdict the jury should agree to allow the majority to be the verdict. During the discussions about the majority vote, I, and at least two (2) other jurors voiced that no matter what the vote was, we were going to vote 'not guilty.' When the last vote turned out to be seven (7) for guilty and five (5) for 'not guilty' one of the ladies on the jury wrote the verdict on a sheet of paper and gave it to the foreman and he knocked on the door. We then went in to the courtroom and the foreman gave the verdict to the court."
The Court of Appeals of Mississippi, however, in addition to finding that Edwards' claim was procedurally barred, concluded that Usry's affidavit was inadmissible under Mississippi Rule of Evidence 606(b), which states that:
"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes."
According to Edwards, Usry's affidavit proved "that extraneous prejudicial information was introduced into the jury's deliberation." But it seems clear to me that the court was correct in finding that the decision to have a majority vote was properly characterized as an internal matter decided solely by the jurors and not as the product of any improper external evidence or influence.
And indeed, this conclusion finds support in the Advisory Committee's Note to Federal Rule of Evidence 606(b). According to that Note, Federal Rule of Evidence 606(b) was drawn from common law cases, which had held that testimony or affidavits of jurors were incompetent to show, inter alia, "a compromise verdict" or "a quotient verdict."
A "compromise verdict" is "a decision made by a jury in which the jurors split the difference between the high amount of damages which one group of jurors feel is justified and the low amount other jurors favor." And a "quotient verdict" is "an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be. Then the amounts are totalled and divided by the number of jurors to reach a figure for the award."
While I still question the efficacy of Federal Rule of Evidence 606(b) and state counterparts, I odn't see how they can be applied to quotient verdicts and compromise verdicts, but not majority verdicts.
December 25, 2008
Mayberry, R.F.D.: Sixth Circuit Allows For Introduction Of Prior Inconsistent Statements After Witness Claims Lack Of Memory In Christmas Case
The opinion of the Sixth Circuit in United States v. Mayberry, 540 F.3d 506 (6th Cir. 2008), reveals that the prosecution can introduce a prior inconsistent statement when a witness claims lack of memory at trial.
In Mayberry, James Peoples appealed his conviction for being a felon in possession of a firearm. And Peoples was convicted in large part based upon the testimony of informant John Bowman. According to Bowman, he contacted the Grand Rapids, Michigan police and informed them that Peoples and his codefendant, Shawn Mayberry, were involved in two grocery store robberies. According to Bowman, Peoples and Mayberry approached him around "Christmas time" 2005 and asked if he would like to participate in their next robbery.
Bowman, however, did not provide this testimony at trial. Instead, he rendered it before the grand jury. When he was called at trial, "Bowman claimed he did not remember having conversations with Peoples that implicated Peoples in the grocery store robberies."
At that point, the prosecution introduced his grand jury testimony as prior inconsistent statements pursuant to Federal Rule of Evidence 801(d)(1)(A), which indicates that
"[a] statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition."
Peoples subsequently appealed, claiming, inter alia, that Bowman's grand jury testimony was not inconsistent with his testimony at trial and that Bowman was not subject to cross-examination at trial because he claimed lack of memory.
The Sixth Circuit, however, disagreed, finding first that "[i]t is well established that a witness['] 'limited and vague recall of events, equivocation, and claims of memory loss' can constitute prior inconsistent statements under Fed.R.Evid. 801(d)(1), and thus such statements allow the witness' prior inconsistent grand jury testimony to be admitted as substantive evidence."
Then, with regard to Peoples' second argument, the court found that Bowman did indeed testify at trial and was subject to cross-examination, notwithstanding his claim of memory loss.
While I have trouble with both of these conclusions, and while the prosecution could not have called Bowman for the sole purpose of impeaching him, the Sixth Circuit's conclusions are both accurate applications of the current state of the law.
December 24, 2008
Robbery Wihout Motive: Missouri Court Of Appeals Finds That Drug Evidence Was Improperly Admitted In Christmas Eve Robbery Trial
The recent opinion of the Missouri Court of Appeals in State v. Allen, 2008 WL 5054693 (Mo.App. W. D. 2008), reveals that simply because character evidence is relevant to some permissible purpose does not mean that it is automatically admissible.
In Allen, Johnny L. Allen appealed his conviction following a jury trial for robbery in the first degree based upon his alleged robbery of a Movie Gallery in Sedalia, Missouri on Christmas Eve. And some of the evidence used to convict Allen was evidence that when the police arrested him four days after the robbery and performed a search incident to an arrest, they discovered a crack cocaine pipe in his pocket and a bag containing 0.31 grams of crack cocaine in his hat. Later, during closing arguments, the prosecutor stressed the importance of this drug evidence, informing the jurors that:
"The defendant has a motive to commit robbery. A crack pipe with residue in his pocket when arrested, more crack in his ball cap. This evidence of motive is uncontradicted by any defense evidence. And I understand that many people have a desire to have more money. Most people who have student loans don't go out and commit robberies. Unfortunately, many people who have a crack habit do....This case is about whether this man walked in on Christmas Eve desperate enough to threaten the use of a gun just to get money to feed a crack cocaine habit. (emphasis added)."
After he was convicted, Allen appealed, claiming, inter alia, that the trial court erred in admitting the evidence of the drugs and drug paraphernalia because the evidence was inadmissible evidence of other crimes." And he had a point. Missouri does not have codified rules of evidence, but its courts generally deem evidence of other crimes inadmissible as propensity character evidence.
On the other hand, Missouri courts do deem such evidence admissible for permissible purposes, such as establishing (1) identity, (2) motive, (3) intent, (4) the absence of mistake or accident, or (5) a common scheme or plan. And the prosecution claimed on appeal that evidence of the drugs and drug paraphernalia found on Allen was evidence that he had a drug habit, providing him with a motive for robbing the Movie Gallery.
But while the prosecution could thus point to a permissible purpose, its problem was that the appellate court noted that even when a court finds that such a permissible purpose exists, it "should require that the admission of evidence of other crimes be subjected to rigid scrutiny because the evidence may raise a false presumption of guilt in the jurors' minds." And the problem for the prosecution was that its drug evidence could not withstand this scrutiny.
The court noted that:
"[c]ourts have upheld admission of drug evidence to establish motive where the record explicitly included some explanation of motive. For example, where the defendant testified that he was an addict, it would arguably show he had a motive to traffic in drugs....Or, where the defendant told the detective he had been stealing to support a cocaine habit, the testimony was admissible to show defendant's motive for the burglary....Or, where the evidence of the defendant's prior drug use and the fact that he was pawning items to obtain money for drugs helped show a motive to commit the crimes."
The problem for the prosecution, though, was that:
"In this case, mere possession of drugs and drug paraphernalia by the accused, four days after the crime occurred, cannot by itself establish motive. The record contains no evidence or testimony attributing any previous drug use or financial trouble to Mr. Allen. In fact, no evidence in the record exists to link the drug evidence with the crime charged. The State's unsubstantiated assertion that Mr. Allen committed the robbery 'to feed a crack cocaine habit' is not evidence. If the State sought to prove motive for the robbery, then the burden was upon the State to present evidence connecting the drug evidence to the robbery that had occurred four days earlier."
The appellate court thus found that the drug evidence was improperly admitted. It then rejected the prosecution's argument that its admission was harmless error because "there was very little evidence" about the drugs adduced at trial, and references to the drugs were "very low key." Instead, the court pointed to the prosecutor's aforementioned statements during closing arguments and held that a new trial was warranted. And based upon those closing statements, I agree.
December 23, 2008
It's No Fun Being An Illegal Alien: Eighth Circuit Finds No Plan Error In Magistrate's Questions About Witnesses' Immigration Status
The recent opinion of the Eighth Circuit in United States v. Almeida-Perez, 2008 WL 5214949 (8th Cir. 2008), raises an issue that has left me very conflicted. In fact, I don't even think at this point that I can hazard a guess about how courts should address it in the future.
In Almeida-Perez, José and Porfirio Almeida-Perez, brothers who pled guilty to being illegal aliens in possession of firearms that had been transported in interstate commerce, appealed from the district court's denial of their suppression motion and from the twenty-four month sentences it imposed on each of them. And one of the arguments in Porfirio's brief was that the Magistrate Judge exceeded the bounds of Federal Rule of Evidence 614(b) in examining defense witnesses by, inter alia, asking them about whether they entered this country legally or illegally.
"The authority [of the judge to question witnesses] is, of course, abused when the judge abandons his proper role and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule. The omission in no sense precludes courts of review from continuing to reverse for abuse."
So, what does this Note mean, and is it violated when a judge inquires into the circumstances under which a witness entered the U.S.? And would it be violated if an attorney, as opposed to a judge, asked these same questions? Unfortunately, the Eighth Circuit didn't have to address these issues in much detail because Porfiro's attorney failed to object to this line of questioning by the judge, meaning that the issue was not preserved for appeal and that there could only be reversal for plain error.
(Of course, this raises the separate issue of the problems presented in requiring a party to object to questioning by a judge. The Eighth Circuit addressed this problem in passing, noting, "While we recognize the difficulty for a litigant in objecting to actions of the judge presiding over their proceedings, it is nevertheless true that without a trial level objection, there was no opportunity for the Magistrate Judge to address the issue or correct any error into which he may have fallen.")
Instead, the Eighth Circuit merely noted that the issue was a close call, which meant that there was no plain error. On the one hand, the court "found two cases in which unlawful entry into the country or other violation of immigration laws was considered admissible because relevant to truthfulness." On the other hand, the court cautioned "that the use of such evidence is fraught with the danger of prejudice to a defendant by introducing the possibility of invidious discrimination on the basis of alienage."
I agree with the Eighth Circuit that there was no plain error in this case, but, as I indicated above, I am really torn on the issue of whether courts should generally allow this line of questioning and whether a judge's decision to allow such questioning despite a timely objection should form the basis for reversal. Do readers have any thoughts on the issue?
December 22, 2008
A Jury Of His Priors: Court Of Appeals Of Iowa Reverses Murder Conviction Based Upon Extraneous Prejudicial Information Reaching The Jury
The recent opinion of the Court of Appeals of Iowa in State v. Allen, 2008 WL 5234319 (Iowa.App. 2008), represents the rare example of a court reversing a conviction based upon post-verdict jury impeachment.
In Allen, Jarmaine Allen appealed his judgment and sentence for first degree murder on several grounds. And one of those grounds was "that jurors were exposed to several types of extraneous information during deliberations." The Court of Appeals of Iowa found that it could hear this argument notwithstanding Iowa Rule of Evidence 5.606(b), which states in relevant part that:
"[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror."
Because Allen was claiming that the jury was exposed to extraneous prejudicial information during deliberations, Iowa Rule of Evidence 5.606(b) did not provide a bar to jury impeachment. And what was this extraneous prejudicial information? Well,
"[t]wo jurors testified that one of their peers told them Allen was incarcerated for another offense at the time of this trial. One juror said, 'Somebody mentioned that [Allen] had already been convicted of one crime so not to worry about convicting him of this one since he was already doing jail time.' Another stated he heard a juror say that Allen 'was incarcerated currently for something else.'"
Now, the trial court previously heard this testimony but decided not to reverse Allen's conviction because "the fact that the defendant had previously been incarcerated was already made part of the record." The Court of Appeals of Iowa, however, found that the trial court missed the point. According to that court, while there was evidence produced at trial which indicated that Allen had previously been incarcerated, "[t]here was no indication that Allen was in prison at the time of this trial."
The Court of Appeals thus reversed and remanded because it concluded that the extraneous prejudicial information concerning Allen's incarceration was sufficiently prejudicial to deny him a fair trial. And based upon the aforementioned facts, this decision seems correct to me.
December 21, 2008
Gather Round The Table, We'll Give You A Treat: Court Finds Stock Shares To Be Community Property Despite Title Evidence Argument In Hanukkah Case
In In re Marriage of Rosner, 2003 WL 22853006 (Cal.App. 2 Dist. 2003), Leland Rosner and Linda Sherman Rosner were married for approximately eight years before they got divorced after divorce proceedings. As a result of those proceedings, inter alia, the trial judge determined that 250 shares of Royal Dutch Petroleum stock (1,000 by the time of trial due to stock splits) was community property, prompting Leland's appeal.
And the basis for Leland's argument was that "his name and his name alone was on the gift certificate prepared by his father" which allegedly transferred the stock shares. According to Leland, this meant that the stock shares should have been considered his separate property pursuant to California Evidence Code Section 662, which states that "[t]he owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be
rebutted only by clear and convincing proof."
So, why did the trial judge rule against Leland? Well, the court noted a few reasons. First of all, while Leland's father claimed that he solely gave the gift certificate to Leland, Linda and her father both claimed that he gave it to Linda at a Hanukkah party and said, "Happy Hanukkah." The problem for Leland was that Linda presented to the court a photograph of her holding the envelope with the gift certificate.
Moreover, because Leland did not produce the copy of the gift certificate with only his name "until several weeks after his deposition, and had no explanation for where the document had been, the court discounted his evidence. Instead, the court credited the testimony of Linda and her father, bolstered by the photograph showing her holding the envelope."
Most importantly, however, the gift certificate merely symbolized the gift of the stock share transfer, and the transfer itself was "put directly into the couple's joint account." Therefore, California Evidence Code Section 662 actually supported the proposition that the stock shares were community property, not the proposition that the stock shares were Leland's separate property.