Thursday, April 16, 2009
The Conclusory Conclusion: Fourth Circuit Makes Seemingly Incorrect Evidentiary Ruling Regarding Admissibility Of Instant Messages
I hate conclusory conclusions, i.e., when a court rejects a litigant's argument in one sentence without even telling you the basis for its conclusion. The problem with these conclusory conclusions is that the court possibly has a valid reason for rejecting the argument. But based upon the paucity of analysis in the court's opinion, the reader is forced to assume that the court got it wrong. The recent opinion of the Fourth Circuit in United States v.Minder, 2009 WL 981102 (4th Cir. 2009), contains just such a cursory conclusion.
In Minder, Joseph Miner appealed from his conviction on twelve counts of mail fraud, one count of securities fraud, and one count of possessing and uttering a forged endorsement on a check. Specifically, the facts adduced at trial indicated that, in 1998, William McNulty introduced Minder to a financial investment scheme promising unusually high rates of return, which purportedly involved overseas accounts managed by "Donald," a multi-millionaire European trader of financial investments. The problem, however, was that "Donald" was a fictitious character, and the investment scheme was classically fraudulent in that it used money received from later victims to pay earlier victims.
McNulty admitted to his guilt by pleading guilty to charges brought against him in connection with the scheme, and when Miner's trial rolled around, he exercised his Fifth Amendment privilege against self-incrimination. But this did not stop Miner from trying to get McNulty's words before the court. Instead, Miner tried to introduce into evidence instant messages from McNulty to him which indicated that "Donald" was a fictitious character.
According to Miner, these instant messages proved that he previously thought that the investment program was legitimate, rendering the instant messages admissible under Federal Rule of Evidence 803(3), which provides an exception to the rule against hearsay for
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
The clear problem with this argument was that McNulty's instant messages were in no way relevant on the issue of Miner's state of mind, so the court properly deemed them inadmissible. On appeal, however, Miner claimed that the instant messages were admissible under Federal Rule of Evidence 804(b)(3), which provides an exception to the rule against hearsay for
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
In finding this exception inapplicable, the Fourth Circuit concluded:
A statement is admissible under this exception if: (1) the speaker is unavailable; (2) the statement is actually adverse to the speaker's penal interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement....The party seeking to introduce the statement has a formidable burden of establishing these prerequisites....We find Minder fails to establish the requisite elements to this hearsay exception.
The problem with this conclusory conclusion is that it doesn't tell the reader which element the instant messages failed to satisfy, and my reading is that it failed none. First, McNulty was "unavailable" pursuant to Federal Rule of Evidence 804(a)(1) because he was "exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." Second, the instant messages identifying "Donald" as fictitious was clearly adverse to McNulty's penal interest because they admitted the very fact that led to the charges against him and his incarceration after his guilty plea. Third, it seems clear that McNulty's guilty plea and all of the evidence presented at Miner's trial that "Donald" was in fact fictitious (i.e., the very evidence used to convict Minor) clearly indicated the trustworthiness of McNulty's instant messages.