Thursday, February 26, 2009
Jumping To Conclusions: Fifth Circuit References Erroneous Prior Rule 704(b) Ruling In False Tax Return Appeal
The recent opinion of the Fifth Circuit in United States v. Adams, 2009 WL 382126 (5th Cir. 2009), addressed a proper Rule 704(b) ruling but references a prior Fifth Circuit opinion which contains what I regard as a horribly misguided Rule 704(b) ruling.
In Adams, Jon Dale Adams appealed from his convictions on two counts of filing false income tax returns in violation of 26 U.S.C. § 7206(1). One of the grounds for Adams' appeal was that the district court failed to declare a mistrial after IRS Agent Jerry Porter testified as follows:
Q: And after you completed your investigation of the defendant, did you come to a conclusion?
A: Yes, sir.
Q: What was that conclusion?
A: After completing the investigation, I concluded that the defendant, under penalties of perjury, willfully filed a 1999 Form 1040X and a 2000 Form 1040, knowing that it was false in that the-it was false as to a material matter..
After Porter rendered this testimony, defense counsel immediately objected, claiming that this testimony was inadmissible under Federal Rule of Evidence 704(b), which states that:
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
The district court correctly sustained this objection, but it denied defense counsel's motion for a mistrial. Instead, the district court decided to give a curative instruction, which informed jurors that:
[Y]ou heard testimony from the witness generally stating that he had concluded that the defendant acted willfully in filing a false claim. The rules do not permit an expert witness to give an opinion about what ... a criminal's mental state is. So I'm going to strike that portion of his testimony from the record. I'm going to instruct you not to consider that opinion. Okay? I'm instructing you that you cannot consider the expert's opinion as to what he thinks Mr. Adams' mental state is.
This seems to me to be about as good as it gets with curative instructions, which is why I said above that I agreed with the Fifth Circuit's ruling. But in finding that Porter's testimony violated Rule 704(b), the Fifth Circuit contrasted its prior opinion in United State v. Dotson, 817 F.2d 1127 (5th Cir. 1987).
In Dotson, Frederick Leon Dotson was convicted of tax evasion after an IRS agent testified, inter alia, that:
In 1983, again, [Dotson's net worth] increased again forty thousand dollars, almost the same amount it did in 1981 through the period, so they are consecutive increases, which lead me to believe that Mr. Dotson's net worth and/or his equity was increasing through the period. This is indicative, and based on my experience shows to me, that he willfully and intentionally increased his income knowing full well that he had not reported the taxes due thereon.
In finding that the district court did not abuse its discretion in striking this testimony, the Fifth Circuit concluded:
The second sentence in the above excerpt can be interpreted in two ways. Interpreting the sentence more favorably to the government, the sentence simply ties the facts recited in the first sentence to the conclusion that the expert, based on his specialized experience, believes they indicate. Interpreting the sentence more favorably to the defendant, the sentence presents an instance in which the expert draws the forbidden conclusion that the defendant "willfully and intentionally" evaded income taxes.
Come again? The court is right, I suppose, that interpreting the second sentence more favorably to the government, that "sentence simply ties the facts recited in the first sentence to the conclusion that the expert, based on his specialized experience, believes they indicate." But that conclusion is that Dotson willfully and intentionally evade income taxes, which is precluded under Rule 704(b). Does the Fifth Circuit's parsing of words/meaning make sense to any readers?