EvidenceProf Blog

Rescue 911: Court Of Appeals Of Mississippi Stretches To Finds Statements Triggered Crime-Fraud Exception To Attorney-Client Privilege

Mississippi Rule of Professional Coduct 1.6(a) provides that:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).  

Meanwhile, Mississippi Rule of Professional Coduct 1.6(b)(1) provides that "[a] lawyer may reveal such information to the extent the lawyer reasonably believes necessary...to prevent reasonably certain death or substantial bodily harm."  Additionally, Mississippi Rule of Evidence 502(b), Mississippi's attorney-client privilege provides that:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.  

So, what happens when a client's behavior triggers Mississippi Rule of Professional Coduct 1.6(b)(1) but is still covered by Mississippi Rule of Evidence 502(b)? It is an interesting question, but one which the Court of Appeals of Mississippi found that it did not have to address in its recent opinion in Shorter v. State, 2009 WL 4043361 (Miss.App. 2009). I agree with the court's conclusion but disagree with its reasoning.

In Shorter, Johnny Charles Shorter was found guilty of murder after allegedly killing Kenneth Boutwell, whom Shorter suspected was sleeping with his wife. Two important pieces of evidence used to convict Shorter were two 911 calls made by Gill Baker, an attorney whom Shorter had hired to represent him in divorce proceedings against his wife, and who thought that Shorter was planning to shoot Jim Beckman, another man whom Shorter suspected was sleeping with his wife. 

Baker first called 911 at approximately 1:00 a.m...., shortly before Shorter's wife, Angelique, called 911 about Boutwell being shot. Baker told the 911 dispatcher that he "just got a call from a client who said he was fixin' to drive about two miles down the road, stick a gun to a man's head, and kill him." Later in the conversation, the police dispatcher asked Baker, "You know what it's about?" Baker responded, "He [Shorter] was coming to see me about a divorce." Baker provided law enforcement with Beckman's name, whom Baker suspected Shorter intended to kill. Baker said he would call back with Beckman's contact information.

Shortly thereafter, Baker again called 911, and the following exchange took place:

Baker: I was just speaking with someone out there about a possible murder about to happen....

Baker: Johnny was drunk; he had found out about his wife and Mr. Beckman ... over the last couple days. He was supposed to come see me in the morning about a divorce, and that's all I know about it.... He said he had nothing to lose.

911 dispatcher: Oh yeah he does.

Baker: Yeah, that's what I'm trying to convince him.

After Shorter was convicted, he appealed, claiming, inter alia, that the trial court admitted these calls by finding that Mississippi Rule of Professional Coduct 1.6(b)(1) applied and without reference to Mississippi Rule of Evidence 502(b). According to Shorter, this was problematic because "the attorney-client privilege cannot be waived by virtue of a rule of ethics." 

The court, however, found that the trial court did make reference to the attorney-client privilege and found that it was satisfied in Shorter's case because the crime-fraud exception applied. That exception, contained in Mississippi Rule of Evidence 502(d)(1), provides that:

There is no privilege under this rule...[i]f the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

The Court of Appeals of Mississippi agreed, finding that Baker's 911 calls revealed

that Shorter, whom Baker refers to as his "client," did not merely tell Baker what he intended to do and then immediately hang up the phone. Rather, the recording depicts that the two had a conversation about Shorter's proposed actions. While, according to Baker, Shorter contended he had nothing to lose, Baker attempted, albeit unsuccessfully, to persuade Shorter otherwise and to point out the potential consequences of Shorter's actions.

Our supreme court has instructed that when a client seeks the attorney's services to engage in a future crime or fraud, there must be "proof that the crime or fraud actually occurred."...This burden was undoubtedly met, given the abundant proof that Shorter called his attorney, revealed his intention to commit a murder, and shortly thereafter went through with it.

I agree that there was proof that the crime - the murder -- actually occurred, but I don't see the proof that Shorter called Baker to use his services to aid him to plan or commit that crime. Shorter was not calling his attorney and asking him how to dispose of the victim's body or make the death look like a suicide. Instead, it seems to me that Shorter merely felt close to his attorney -- a divorce attorney -- and felt that he was someone he could tell what he was going to do. Indeed, the fact that Shorter told Baker that he had nothing to lose makes it seem clear that he was not seeking assistance in completing or covering up the crime.

Of course, if this were he case, it wouldn't change the outcome because Shorter's statements to Baker simply wouldn't be covered by the attorney-client privilege. As noted, that privilege only applies to "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client." While I don't think that Shorter sought assistance from Baker in completing or covering up the crime, I also don't think that he made the statements to facilitate the rendition of professional legal services. Again, I think that Shorter just wanted someone whom he could tell what he was going to do.

-CM

Black Friday Felony: Court Precludes Defendant From Withdrawing Guilty Plea To Charges In Connection To Black Friday Robbery Of Wal-Mart

Black Friday, the day after Thanksgiving, is the biggest shopping day of the year, with merchants and the media now referring to it as the start of the period in which retailers go from being in the red to being in the black (for more on the origins of the term, click here). It thus seems like a day that criminals, like consumers, could mark on their calendars because retailers coffers will be clogged with customers' cash. That certainly seemed to be the case in United States v. Young, 2008 WL 163045 (E.D. Pa. 2008). In Young, Christopher Young pleaded guilty to crimes in connection with the robbery of a Wal-Mart in Philadelphia (where the phrase Black Friday was coined) in the early morning hours after Black Friday. He then tried to withdraw that plea but was faced with a problem faced by many Black Friday customers: a "no return" policy.

In Young, Christopher Young was charged with Hobbs Act robbery, conspiracy, using a firearm during or in relation to a crime of violence, and aiding and abetting in connection with the robbery of $334,763 from a Wal-Mart in Philadelphia in the early morning hours following Black Friday in 2006. Young first pleaded not guilty but eventually pleaded guilty on all counts pursuant to a plea agreement with the government. Young thereafter sought to withdraw his guilty plea.

The United States District Court for the Eastern District of Pennsylvania found that the issue was governed by Federal Rule of Criminal Procedure 11(d)(2)(B), which provides that

[a] defendant may withdraw a plea of guilty or nolo contendere:...

(2) after the court accepts the plea, but before it imposes sentence if:...

(B) the defendant can show a fair and just reason for requesting the withdrawal.

The court then noted that courts in the Third Circuit apply a three part test for determining whether a defendant can withdraw a guilty plea under these circumstances, under which

The Court must consider: “(1) whether the defendant asserts [his] innocence; (2) whether the government would be prejudiced by the withdrawal; and (3) the strength of the defendant's reason to withdraw the plea."

Young's argument under the first factor was that "two witnesses to the robbery did not identify him as the person who robbed them." The problem for Young was that this evidence was disclosed to Young before he pleaded guilty, leading the court to conclude that

Young's bald claim of innocence [wa]s insufficient. First, although Young generally direct[ed] the Court to discovery that was provided to him, he d[id] not point to the specific evidence justifying his defense. Moreover, Young offer[ed] no reason to explain why he took a contradictory position before the Court, despite having possessed the evidence allegedly supporting his innocence before changing his plea to guilty.

Under the second factor, the court first noted generally that if Young were allowed to withdraw his guilty plea "'the government would be prejudiced by having to reschedule the trial, to provide once again protection for the endangered witnesses, and to expose these witnesses to further risk.'" More specifically, the court then found that

Young [wa]s one of four co-defendants who were to be tried together. One co-defendant pled not guilty, and, after a trial, was convicted on all counts. The other two co-defendants pled guilty and have been sentenced. Therefore,...Young...improperly previewed the Government's case against him, and the Government may [have] face[d] significant difficulty in obtaining the cooperation of the co-defendants who ha[d] been sentenced. Moreover, at the earlier trial of a co-defendant, one key witness was visibly apprehensive about testifying in this case, and another witness was threatened. Under these circumstances,...the Government would [have] be[en] prejudiced by having to once again protect these potential witnesses from danger.

Finally, under the third factor, the court indicated that Young's argument was that 

his attorney erroneously advised him that he was a Career Offender under the Guidelines and thus subject to a sentencing enhancement. Young contend[ed] that, had he known that he was not a Career Offender, and thus of his reduced sentence exposure, he would not have pled guilty, but rather would have gone to trial.

The court found, though, that Young's argument was meritless because he was, in fact a Career Offender. Thus, the court precluded Young from withdrawing his guilty plea.

-CM

Turkey Of An Opinion: Court Precludes Jury Impeachment Despite Foreperson Blocking Door To Prevent Juror From Reporting "Not Guilty" Vote In Thanksgiving Related Case

Federal Rule of Evidence 606(b) provides in relevant part 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 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. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

As the language of this Rule makes clear, jurors cannot impeach verdicts based upon allegations that jurors engaged in threats of violence or actual violent acts against other jurors. But, as I noted in a previous post, Minnesota courts do permit jury impeachment based upon such allegations, and, as I argued in that post, I think that other courts should permit such jury impeachment as well as impeachment based upon psychological intimidation or coercion between jurors. If you disagree with me, I ask you to consider the facts of Panella v. Marshall, 2009 WL 2475007 (E.D. Cal. 2009).

In Marshall, Michael Panella was convicted of first-degree murder based upon the death of his 22 month-old child. There were several facts in Marshall, but the basics are as follows: Panella allegedly shoved the child's head into a truck window and later refused to allow his girlfriend -- the child's mother -- to use his truck to take the child to a doctor when he appeared to be sick on Thanksgiving, November 25th. The girlfriend eventually got her sister to take her son and her to the hospital, but, after waiting three hours, she left the hospital before her son was seen by a doctor, and she later lied about her son seeing a doctor. The child eventually died on November 27th. The jury subsequently convicted Panella after they rejected his defense that his girlfriend was responsible for the child's death.

Okay, so we have a defendant who certainly does not appear to be very sympathetic, but he still deserved a fair trial. And, to me, he didn't receive one based upon several forms of jury misconduct, only one of which I will highlight here. According to one juror's declaration:

Throughout the deliberations I was subjected to harassment and verbal abuse by the other jurors. Specifically, the inferences I derived from the evidence were called “stupid.” I was yelled at and intimated by other jurors and repeatedly told I should vote guilty. I was scolded for being “close-minded.” I told them that I was considering the evidence objectively. I was accused of voting “not guilty” because I had a bias against the district attorney's office.

On the third day of deliberation, I told the Foreperson I had taken enough abuse and to inform the judge that the jury could not reach a unanimous verdict. I stated I wanted to leave the jury room, "now" and that I could no longer tolerate being everyone's target. Juror No. 12 agreed we could not reach unanimous agreement. Upon telling the Foreperson I wanted to leave the room and that he should inform the judge of the impasse, the Foreperson stood between the exit door and where I was seated. I was intimidated and felt I was not free to leave the room. I began sobbing. I could not understand why the Foreperson would not inform the judge that we could not reach a unanimous verdict. One of the jurors asked for a break. After the break, I felt I could no longer endure any further mental abuse and that continued insistence that the Foreperson advise the judge of the impasse was futile. Regrettably, I decided to change my vote to “guilty”.

I believe the defendant is “not guilty” of the crimes charged. I changed my verdict only because of the Foreperson's refusal to declare a deadlocked jury and because of continuous badgering and harassment by the other jurors. I felt that if I continued to insist upon my opinion based on the evidence, that the defendant was not guilty, it would have been futile and would only subject me to further abuse by other jurors.

At the time the judge polled the jury, I did not know it was appropriate to inform the court that the verdict of “guilty” I had rendered was not freely and voluntarily rendered or that it was appropriate to inform the court of the behavior of the other jurors during the trial and during the deliberation process.

After Panella was convicted and exhausted his appeals in the California state court system, he brought a petition for writ of habeas corpus with the United States District Court for the Eastern District of California, claiming, inter alia, that he was entitled to relief based upon this juror misconduct. That court denied him relief, finding that

Petitioner's allegations of juror harassment insufficient for habeas relief. Of course, intimidation of jurors is certainly not to be condoned. Yet again, the state court carefully considered this claim and decided that Petitioner did not suffer prejudice as a result of the jurors' conduct. After the heated exchange between the jurors, the jury took a break from deliberations and came to a unanimous decision. When polled, the allegedly intimidated juror confirmed that her verdict was “guilty.” The Court sees no reason to disturb the state court's finding. Moreover, Federal Rule of Evidence 606(b) "clearly bars consideration of [a] declaration's allegation that [a] juror said that she was subjected to pressure by other jurors for being a ‘holdout for acquittal.'"...Accordingly, the Court may not even be able to consider the juror's declaration on the allegation of intimidation.

Really? Do readers agree that the Panella suffered no prejudice? Here's the way I see it. The juror submitting the declaration decided that Panella was not guilty. The only thing that prevented her from having her decision reported, and Panella getting a mistrial, was a combination of physical and psychological coercion by other jurors, including the foreperson. Sure, as the court noted, the jury reached a verdict after this heated exchange and a break. As the juror submitting a declaration noted, (s)he now felt like resistance was futile and that (s)he could no longer deal with mental abuse. And even if (s)he could, what would stop the foreperson from again blocking the juror's exit, and what would stop jurors from possibly retaliating if the juror ere allowed to leave?  

One of the main goals behind Federal Rule of Evidence 606(b) is to ensure that jurors are not subjected to harassment after trial by the losing party. It seems to me, though, that until courts allow jury impeachment based upon physical and psychological coercion, they are turning a blind eye to the harassment of jurors by other jurors.

-CM

Article of Interest: The Danger to Confidential Communications in the Mismatch between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges By Professors Mosteller And Broun

In Rob Reiner's classic movie "The Princess Bride" (based upon William Goldman's equally classic book), the following exchange occurs:

Vizzini:  HE DIDN'T FALL? INCONCEIVABLE.

Inigo Montoya:  You keep using that word. I do not think it means what you think it means.

In their forthcoming article, The Danger to Confidential Communications in the Mismatch between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges, University of North Carolina School of Law Professors Robert P. Mosteller and Kenneth S. Broun argue that the Supreme Court of North Carolina played the role of Vizzini in a recent opinion. In that opinion, State v. Rollins, 675 S.E.2d 334 (N.C. 2009), the North Carolina Supremes found that statements which Mickey Rollins made to his wife when she visited him in prison, and which she surreptitiously recorded for authorities, were not privileged under N.C.G.S. Section 57(c), North Carolina's privilege for confidential marital communications.

The authors problem with the court's opinion was not so much the result. As they note in the introduction to their article, 

Had the majority simply ruled under these facts, that Mr. Rollins‘ attempts to ensure confidentiality were insufficient, its narrow holding would not have threatened the policies behind the marital communications privilege.  However, the majority did not rule narrowly.  

Instead, their problem is that court made the unprecedented move of importing Fourth Amendment analysis into privilege analysis and requiring Rollins to prove that he had a reasonable expectation of privacy while in prison. Of course, Rollins could not make this showing because, for Fourth Amendment purposes, individuals cannot have a reasonable expectation of privacy in prisons, open fields, public building hallways, and any other spaces which they do not own or control. 

Before Rollins, however,

privilege law ha[d] permitted individuals to create privileges outside of space they own or control.  Privilege permits pockets of temporarily constructed confidentiality to follow the communicators as long as reasonably effective precautions are taken to provide physical privacy.  It does so because it depends on the similar, but distinct, concept of reasonable expectation of confidentiality. 

So, what supported the Supreme Court of North Carolina's gambit? Well, according to the court, it was in part relying upon the authors' writings. In Rollins, the court cited, among other sources,

the treatise of Robert Mosteller and his co-authors, North Carolina Evidentiary Foundations, for the proposition that ―a confidential communication requires (1) physical privacy, and (2) an intent on the holder‘s part to maintain secrecy; and

Kenneth S. Broun and his co-authors in McCormick on Evidence [for the proposition that] [t]he rationale that the spouses may ordinarily take effective measures to communicate confidentially tends to break down where one or both are incarcerated.  However, communications in the jailhouse are frequently held not privileged, often on the theory that no confidentiality was or could have been expected.

According to the authors, allegedly relying upon this authority,

[t]he Court then took a momentous and unfortunate step.  The State had argued that the defendant had no reasonable expectation of privacy under the Fourth Amendment in any area in the prison facility, citing numerous authorities that clearly establish the accuracy of that well recognized initial proposition under the federal Constitution.65  The momentous step was the Court‘s agreement with the State‘s conclusion from this authority: because there was no Fourth Amendment protection, there was also no evidentiary privilege.

The authors' response: We do not think what we mean what you think we mean. For them, the problem is that the court confused the Fourth Amendment's requirement of a reasonable expectation or privacy with the confidentiality requirement for privileges. This is problematic because

subjective expectation of privacy and objectively reasonable efforts to maintain that privacy are necessary components of the Fourth Amendment‘s ―reasonable expectation of privacy, but they are not sufficient.  This is where the Fourth Amendment and privilege concepts diverge.  For courts other than the North Carolina Supreme Court in Rollins, satisfying the subjective expectation of confidential and taking reasonably effective (objective) efforts to maintain that confidentiality are not only necessary, but they are also sufficient.  Policy and values also limit the application of privileges, such as the loss of privilege for many statements when the confidential communications are made to facilitate commission of a future crime, but these concepts do not rest on privacy limitation.

The authors end by concluding that

There are a number of reasons for concern about the impact of a holding that the confidential nature of privileged communications is lost if a party to the communication lacks Fourth Amendment protection because he or she lacks a reasonable expectation of privacy. Important process issues, albeit not the most serious problems with the Rollins holding, afflict this decision.  Rollins confuses the law160 and potentially cedes aspects of what has previously been a matter of state law and careful nuance to the single voice of the United States Supreme Court, which often decides Fourth Amendment issues in the shadow of important police practices to control crime and security efforts to thwart terrorism.  A second and more important reason for concern can be found in the handling of eavesdroppers, whether private snoops under privilege law or public investigations under the Fourth Amendment.  The lenient treatment of the latter in part flows from the stunning inability of the Fourth Amendment to deal comprehensively and effectively with the technological changes that are part of the communications revolution in the digital age and the types of third party interactions we depend upon to live our modern lives and communicate messages and information.

I agree with the reasoning of the article and strongly recommend it to readers of this blog, either in its current form on SSRN or in the Campbell Law Review when it is published in December. I asked Professor Mosteller what led Professor Broun and he to write the article, and he responded:

I guess the primary reason we wrote about it was it seemed so misguided to me, particularly as to its potential larger implications.

I am teaching a seminar in advanced criminal procedure and one of the topics we covered in the spring of 2009 was the impact of technology on the Fourth Amendment rights of modern communication.  The mismatch between established Fourth Amendment precedent and a sense of privacy is rather dramatic.  Although statutes may give us some protection, the Fourth Amendment tends to lose its protective power when we communicate in the ways we do now.

Privilege law has its quirks, but no one suggests it cannot operate reasonably effectively in the modern world of communication.  I was struck when I read the case that it was wrongly decided.  However, I was most struck by its very unfortunate effect if the North Carolina Supreme Court really meant that the Fourth Amendment concept of "reasonable expectation of privacy," with its limitations, were to be incorporated into the confidentiality concept of privilege law.

The article should be published in December 2009.       

-CM

Trust Me: Supreme Court Of Appeals Of West Virginia Reverses Murder Conviction Based Upon Expert Opinion Testimony On Credibility

A man is on trial for first degree murder and felony conspiracy, and the primary witnesses against him are a police corporal and another corporal's girlfriend. Defense counsel cross-examines these witnesses for the prosecution about factual discrepancies in their testimony but does not engage in a broad based attack on the credibility of either witness. In response, the prosecution has the chief investigator for the State testify that, in his opinion, these two witnesses were telling the truth. As the recent opinion of the Supreme Court of Appeals of West Virginia in State v. Martin makes clear, there are two fundamental problems with this line of questioning by the prosecution.

The facts in Martin were as described above, with Michael Martin being the defendant and Corporal William Reynolds and Jasminda Gonzales being the witnesses for the prosecution. Here are some excerpts of the interrogation of the chief investiagtor:

Q. From your  — well, first of all, in your 24 years of experience as a West Virginia State Policeman have you had experience throughout those 22 years in conducting witness interviews and particularly eyewitness interviews? 

A. That’s correct. 

Q.  Have you, in those 22 years, had substantial experience in conducting such interviews in cases of violent crimes being homicide or sexual assaults, for example. 

A.   That’s correct. 

Q.   And in your experience in those 22 years, is it rare – is it usual or unusual that your eyewitnesses will have discrepancies in some of the details? 

A. Usual....

Q. Now, as to your investigation of this case and coupled with your 22 years of experience as a law enforcement officer and captain of the State Police, from your entire investigation of this case, have you 

determined Officer Will Reynolds to be credible? 

 

A.  Yes. 

Mr. Daniell: Objection, Your Honor.  That’s  – that I think is where we are out of bounds. 

The Court: I am going to overrule the objection, but I’ll preserve your exception. 

(By Ms. Keller): 

Q.   And based upon your investigation in this case and years of experience and your present position with the West Virginia State Police, have you also determined Jasminda Gonzales to be credible and believable in this 

case? 

Mr. Daniell: Same objection, Your Honor. 

The Court: All right. And the same ruling. 

The Witness: Yeah.  

After Martin was convicted, he appealed, claiming that, inter alia, this testimony was improperly received. That appeal eventually reached the Supreme Court of Appeals of West Virginia, which first found a problem with the testimony under West Virginia Rule of Evidence 608(a), which provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness; and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.  

In other words, credibility must be attacked before it can be bolstered, and, according to the court, "[w]hile both witnesses were subjected to cross-examination regarding various factual discrepancies, the questioning never crossed the bounds into any type of attack on the character of either witness." The court, however, found that even if there had been such attack, the credibility of the witnesses could not have been bolstered by expert opinion testimony. The court noted that

Even more significantly, the law in West Virginia does not allow an expert to give an opinion regarding the credibility of a witness. It is a well-established legal principle in this State that “[t]he jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.”...Under West Virginia case law, because the credibility of witnesses falls within the province of the jury and not an expert witness, the circuit court erred in allowing the Appellee to engage in this line of questioning regarding credibility.  

The West Virginia Supremes thus reversed, and, based upon my review of precedent from across the country, I think that (almost) any other court would have reached the same conclusion.

-CM

A Taxing Matter: Fifth Circuit Finds Exception To Confidential Marital Communications Privilege Applied In Tax Fraud Appeal

Federal courts recognize a confidential marital communications privilege, under which (according to most courts) a spouse can prevent a testifying spouse from testifying about confidential marital communications and/or a testifying spouse can refuse to testify about confidential marital communications. Some federal courts, however, have an exception to this privilege for confidential marital communications about crimes in which the spouses are jointly participating. But what happens when a spouse proposes criminal activity that would implicate both spouses and the other spouse advises against that criminal activity, but the proposing spouse nonetheless engages in the criminal activity? Should the exception apply? That was the issue faced by the Fifth Circuit in its recent opinion in United States v. Miller, 2009 WL 3924052 (5th Cir. 2009). I think that the court got it wrong.

In Miller, Dr. Garland Miller was a general practitioner who employed six staff members, including his then-wife, Rhonda Miller, a registered nurse who worked with him to manage the practice. Dr. Miller was indicted on two counts of tax evasion. Specifically, Dr. Miller allegedly earned taxable income in 2000 and 2001 for which taxes were due, but attempted to evade the tax by: (1) failing to timely file tax returns; (2) failing to pay tax on the income; (3) "converting...payments to him or his wife to cash and money orders"; and (4) "embezzling payments due to DeSoto [Regional Medical System]...which he then converted...to cash and money orders."

At trial, Dr. Miller's now ex-wife testified, Inter alia, about discussions she had with Dr. Miller during their marriage wherein they disagreed about his decision not to file taxes. After he was convicted, Dr. Miller appealed, claiming, among other things, that his ex-wife's testimony should have been excluded under the confidential marital communications privilege.

The Fifth Circuit disagreed. First, it noted that the confidential marital communications privilege potentially applied despite the facts that the Millers were no longer married because "[t]he confidential communications privilege survives the [end of a] marriage and may be asserted by either spouse with respect to communications that occurred during the marriage even after the marriage has terminated." But the problem for Dr. Miller, according to the court, was that

We have recognized an exception to the confidential marital communications privilege for those "conversations between husband and wife about crimes in which they are jointly participating...."....The testifying spouse need not be charged with a crime, so long as the testimony conveys joint criminal activity.

According to the court, the testimony of Dr. Miller's ex-wife "involved conversations about a joint criminal activity and thus [wa]s not protected by the confidential marital privilege." Really? I'm not convinced that this was joint criminal activity. If Dr. Miller had proposed the criminal activity and his wife agreed, there would have been communication regarding crimes in which the spouses were jointly participating. But Dr. Miller's ex-wife testified that she disagreed with Dr. Miller about his decision not to file taxes. Now, Dr. Miller ostensibly ignored that advice and committed tax fraud, which presumably subjected his wife to liability as well. That, however, came later. I don't see how, at the time of the subject communication, Dr. Miller and his wife were engaged in joint criminal activity when his wife told him to file taxes.

Moreover, even if the court found that Dr. Miller and his wife were engaged in communications about crimes in which the spouses were jointly participating, I still don't think that the aforementioned exception applied. Why? The major case cited by the court on the exception issue was United States v. Ramirez, 145 F.3d 345, 355 (5th Cir. 1998), in which the Fifth Circuit noted that "[t]his circuit adopted the Seventh Circuit's approach to the joint participation exception when it announced that where both spouses are substantial participants in a patently illegal activity, even the most expansive marital privilege should not bar testimony."

Even if we credit the Fifth Circuit's conclusion that Dr. Miller's wife was a participant in the tax evasion, I don't see how it could find that she was a "substantial participant" in that tax evasion, especially at the time of the subject communications. She disagreed with her husband about his decision not to file taxes and then failed to report his failure. At most, this makes her a "tacit participant," not a "substantial participant."

-CM 

Summary Judgement: First Circuit Finds Summary Evidence Summarizing Testimony Admissible Under Rule 1006 In Tax Appeal

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

In its recent opinion in United States v. McElroy, 2009 WL 3932266 (1st Cir. 2009), the First Circuit had to decide whether and when this Rule applies to summary evidence that summarizes testimony as opposed to summary evidence that summarizes documents.

In McElroy, Daniel McElroy and Aimee King McElroy were indicted by a grand jury on one count of conspiring to defraud the United States of employment and income taxes and to commit insurance fraud by use of the mails, three counts of mail fraud, and fourteen counts of procuring false tax returns. At trial,

IRS Special Agent Joseph Guidoboni testified as a summary witness about the defendants' reporting obligations to the IRS. He testified that, based on his review of the companies' business records, the defendants paid taxes on the payroll they distributed in check form, but paid no taxes on the payroll they distributed in cash. He concluded that the total amount of unpaid federal taxes from 1997 to the first quarter of 2001 was $9,982,690.51. An insurance fraud investigator, Neil Johnson, also testified as a summary witness about employers' obligations to maintain workers' compensation insurance and how insurers calculate premiums based, in part, on reported payroll. He concluded that the total loss in insurance premiums to the workers' compensation companies was $6,457,500.  

Apparently, both of these witnesses provided testimony that summarized testimony as well as documents. After the defendants were convicted, they appealed, claiming that Federal Rule of Evidence 1006 "only allows the introduction of summary evidence that summarizes documents, as opposed to evidence that summarizes testimony." The First Circuit disagreed, noting that it has urged caution with regard to the admission of summary evidence that summarizes testimony but that it has generally allowed such testimony in the context of tax cases. According to the court,

With regard to summary witness testimony, we have urged caution, noting that such witnesses are allowed only in limited situations....We noted: "The reluctance of courts to allow the government an additional opportunity to present its case in a tidy package at the end of its presentation of evidence, even when the summary evidence is, by definition, completely consistent with the rest of the trial record, confirms that the imprimatur problem with such repetitive testimony is inescapable whether that testimony comes at the beginning or end of the government's case."...Nevertheless, we have found summary witnesses to be appropriate within the context of tax cases: "We have recognized as a general proposition that testimony by an IRS agent that allows the witness to apply the basic assumptions and principles of tax accounting to particular facts is appropriate in a tax evasion case."...We held that "in a tax evasion case, a summary witness may be permitted to summarize and analyze the facts of record as long as the witness does not directly address the ultimate question of whether the accused did in fact intend to evade federal income taxes.

Based upon my review of precedent, I think that this ruling is fairly consistent with the decisions reached by courts across the country. Indeed, the court noted in a footnote accompanying the above block quote that

Our cases are generally consistent with other circuits' treatment of summary witness evidence offered in complex cases. See, e.g., United States v. Harms, 442 F.3d 367, 375-76 (5th Cir. 2006); United States v. Pree, 408 F.3d 855, 869-72 (7th Cir. 2005); United States v. Sabino, 274 F.3d 1053, 1067 (6th Cir. 2001), modified on other grounds, 307 F.3d 446 (6th Cir. 2002); United States v. Pinto, 850 F.2d 927, 935 (2d Cir. 1988); see also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 611.02[2][a][vii] (2d ed.2009); 6 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 1006.08[4] (2d ed. 2009). 

-CM