May 15, 2010
Inconclusive: Southern District Of New York Allows Expert Testimony Regarding Hawala
A hawala is
an alternative or parallel remittance system. It exists and operates outside of, or parallel to 'traditional' banking or financial channels. It was developed in India, before the introduction of western banking practices, and is currently a major remittance system used around the world. It is but one of several such systems; another well known example is the 'chop', 'chit' or 'flying money' system indigenous to China, and also, used around the world. These systems are often referred to as 'underground banking'; this term is not always correct, as they often operate in the open with complete legitimacy, and these services are often heavily and effectively advertised.
The components of hawala that distinguish it from other remittance systems are trust and the extensive use of connections such as family relationships or regional affiliations. Unlike traditional banking or even the 'chop' system, hawala makes minimal (often no) use of any sort of negotiable instrument. Transfers of money take place based on communications between members of a network of hawaladars, or hawala dealers.
If a defendant were charged with various crimes, with the allegation being that the defendant used a hawala to commit these crimes, expert testimony that the defendant did not use a hawala could run afoul of Federal Rule of Evidence 704. That was not, however, what happened in United States v. Banki, 2010 WL 1875690.
In Banki, Mahmoud Reza Banki was charged with (1) conspiracy to violate and the violation of various Executive Orders and regulations issued under the International Emergency Economic Powers Act; (2) operating an unlicensed money transmitting business; and (3) making materially false statements in response to inquiries by the Office of Foreign Assets Control.
As the conduct underlying the...charges, the Government allege[d] that Banki and unnamed co-conspirators "operated an informal value transfer system known as a 'hawala' [in which] funds are transferred by customers to a hawala operator, or 'hawaladar,' in one country (here, the United States), and then corresponding funds, less any fees, are disbursed to recipients in another country (here, Iran) by foreign hawaladars associated with the U.S.-based hawaladar."...Banki claim[ed] that the transfers which are the subject of the Superseding Indictment were family remittances that, according to him, were lawful under the relevant regulations.
To prove his claim, Banki sought to have Daniel Gill, a former Special Agent with the FBI,
testify that the conduct charged in the Superseding Indictment [wa]s not consistent with a hawala because: (1) Defendant purportedly did not have a ready pool of cash in the United States for disbursements as one would expect of a hawaladar; (2) there [wa]s no evidence of disbursements from his account or settlement payments; and (3) the amount of money at issue in this case [wa]s too small to make the operation of a hawala profitable.
The government moved to preclude this testimony, claiming, inter alia, that it would run afoul of Federal Rule of Evidence 704, which indicates that
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) 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 United States District Court for the Southern District of New York disagreed, concluding
As I understand it, Mr. Gill will explain how a hawala functions, describe some classic characteristics of a hawala, and then compare the conduct alleged in this case to his definition of hawala to demonstrate what, in his opinion, is an inconsistency between the charges and the facts. There is no suggestion that he will opine on Defendant's mental state, and thus the testimony does not run afoul of Rule 704. Moreover, Mr. Gill's testimony may have little bearing on the ultimate factual issue to be decided, as it is conceivable that the jury could find that Defendant's alleged conduct does not share the hallmarks of a traditional hawala, but that Defendant nonetheless provided money transferring services in violation of the IEEPA/ITR.
May 14, 2010
Judge, Jury & Investigator: Court Of Appeals Of Arkansas Finds Trial Judge Improperly Took Field Trip To Appellant's House
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
Normally, this Rule applies when a judge makes comments at trial that are the equivalent of testimony, but as the recent opinion of the Court of Appeals of Arkansas in Kinard v. Arkansas Dept. of Human Services, 2010 WL 1904515 (Ark.App. 2010), makes clear, the Rule also applies when a judge engages in off-the-record fact gathering.
produced a series of photographs taken on April 15, 2009, which was the last time before the termination hearing that CASA was able to obtain access to [Kinard]'s home. Evans testified that the photographs showed that [Kinard]'s bed was very dirty with feces on it; that there were feces all over the commode; and that there were other unkempt and cluttered areas. [Kinard] objected that the pictures were "five or six months old," at which point DHS's attorney suggested that the court take a recess and visit [Kinard]'s home. The court did so with all counsel, [Kinard], and the bailiff present. [Kinard] voiced no objection.
After the order terminating Kinard's parental right was subsequently entered, she appealed, claiming "that the court 'erred by making a home visit to [her] apartment to view the conditions of her home and by failing to ensure that a record was made of what occurred during that visit.'" The Court of Appeals of Arkansas acknowledged that there might be merit to Kinard's argument, noting that
Arkansas law has long permitted a fact-finder to leave the courtroom and view a site that is material to the matter being tried.....However, in more recent cases, particularly those involving bench trials, the supreme court has retreated from its position that a fact-finder's view may serve as evidence and has restricted such views to their usefulness as an aid for better understanding testimony that is already on record....As a result, our courts now recognize that, when a judge's view exceeds that limited purpose, the judge commits error.
The question that the court thus had to answer was "whether the circuit judge's visit to [Kinard]'s home was undertaken for the purpose of understanding the proof that was already on record, which would be permissible, or whether, as characterized by [Kinard], the judge's inspection was an 'evidence gathering foray,' which would not be permissible." According to the court, it was the latter:
We conclude that the judge's view exceeded the scope allowed by our supreme court. The purpose of the court's visit was to acquire new evidence regarding the current state of [Kinard]'s home rather than to afford clarification or understanding of previously received testimony. While we understand the court's desire to bridge the gap in the photographic evidence by making a quick visit to [Kinard]'s home, we think that the better practice would have been for the court to dispatch the attorneys, parties, and a witness to observe [Kinard]'s apartment, then have the witness report back to the court on the record with a description of what was seen. Instead, by undertaking a personal view of the premises, the court added to the quantum of proof, which was contrary to law.
(The court, however, affirmed, finding this error to be harmless).
May 13, 2010
Sign Here: Court Of Appeals Of Iowa Finds Rule 410 Doesn't Cover Defendant's Falsely Signed Statement of Understanding
Except as otherwise provided in this rule or R.Cr.P. 9(5), evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Most courts require a defendant claiming that he made statements during plea discussions to prove two elements: (1) that he exhibited an actual subjective expectation to negotiate a plea at the time of the discussion; and (2) that this expectation was reasonable given the totality of the circumstances. And as the recent opinion of the Court of Appeals of Iowa in State v. Daniels, 2010 WL 1875707 (Iowa App. 2010), makes clear, if a defendant claims that a document commenced plea negotiations and yet he signed a false name on that document, he did not have an actual subjective expectation to negotiate a plea.
officer Chad Ruroden of the Des Moines Police Department observed two men getting into a vehicle that matched the description of a stolen vehicle. Officer Ruroden approached the men, and saw the man on the passenger side drop a white bag on the ground. The officer conducted a pat down search of the man on the driver's side, Jonathon Green, and discovered thirty-nine rocks of crack cocaine in his jacket pocket. The man on the passenger side stated his name was Tyrone Daniels. The officer discovered 34.10 grams of marijuana in twelve separate baggies in the white bag Daniels had dropped on the ground.
Green and Daniels stated Daniels was accompanying Green that day while Green went to purchase crack cocaine from a man they knew only as "Black." They also stated that on other occasions Green would accompany Daniels while Daniels purchased marijuana from a man known as "Kool-Aid." Daniels gave a signed statement....
Green and Daniels cooperated with police officers to conduct a controlled buy of crack cocaine from "Black"....They also conducted a controlled buy of marijuana from "Kool-Aid"....Daniels signed a Memorandum of Understanding, as Tyrone Daniels, stating he would fully cooperate with law enforcement officials....The agreement provided that if Daniels did not cooperate, the agreement would be null and void. The agreement also provided, "it is agreed and understood by the Defendant that in the event the Defendant breaches this agreement, his admission of criminal activity is and shall be admissible against him in any criminal case or investigation."
After the controlled buy, however, the police department lost contact with Daniels, prompting the police to file arrest warrants for "Tyrone Daniels." The police soon learned, though, that the person they had dealt with was actually "Anthony Daniels," with Tyrone being his brother. The police thereafter arrested Anthony, and he was later convicted of conspiracy to deliver a controlled substance, conspiracy to deliver a controlled substance, and possession of a controlled substance with intent to deliver.
The trial court later denied Anthony's motion for a new trial, prompting him to appeal, claiming, inter alia, that the trial judge improperly allowed for the admission of the Memorandum of Understanding under Iowa Rule of Evidence 5.410(4). The Court of Appeals of Iowa disagreed, finding that Anthony presented no evidence that he subjectively expected that he negotiated a plea when he signed the Memorandum of Understanding. I would add that even if Daniels thought that he was negotiating a plea, he was merely talking to police officers and could not have thought that he was negotiating a plea with an attorney for the prosecuting authority, rendering Iowa Rule of Evidence 5.410(4) inapplicable.
Moreover, the court found
that although the memorandum require[d] defendant to be "truthful, honest, and candid as to all matters within his knowledge as they relate to the pending investigations," defendant signed the document under the name Tyrone Daniels, which was not his real name. We determine that because Daniels was using a false name, he did not have an expectation that he was negotiating a legitimate plea agreement. Such an expectation would not be reasonable under the circumstances.
May 12, 2010
No Foundation: Seventh Circuit Opinion Reveals Lack Of Need To "Lay A Foundation" In American Evidence Law
When I reach the authentication portion of my Evidence classes, students usually ask whether authenticating a piece of evidence is the same thing as laying a proper foundation for its admission. My response is that there is no such thing as laying a foundation in American evidence law (despite what we are told by legal movies and TV shows). This point was recently recognized by the Seventh Circuit in its recent opinion in United States v. Collins, 2010 WL 1838361 (7th Cir. 2010).
In Collins, a jury convicted appellant Keith Collins of possessing crack cocaine with intent to distribute it and of conspiring to do the same. At trial, Collins' ex-girlfriend, Rokesha Johnson, testified that, during the course of their relationship, she observed him sell crack cocaine on numerous occasions.
After he was convicted, Collins appealed, claiming, inter alia, that this testimony constituted inadmissible character evidence of "other crimes, wrongs, or acts" under Federal Rule of Evidence 404(b). The Seventh Circuit disagreed, finding that
the bulk of the cocaine sales that Johnson described-those that took place between August 2002 and the time of Collins' arrest-occurred during the time frame of the charged conspiracy and are not “prior bad acts” as that term is understood.
The court then bypassed any serious analysis of cocaine sales described by Johnson which fell outside the time frame of the charged conspiracy, concluding that even if this testimony was improperly admitted, its admission was harmless error.
Collins also (implicitly) claimed that the prosecution failed to lay a proper foundation for the admission of Johnson's testimony, but the Seventh Circuit quickly dispensed with this argument as well, finding that
"no rule of evidence requires a 'foundation'" and that the rules of evidence generally make all relevant evidence admissible....This evidence of Collins' active crack cocaine distribution during and just before the time of the alleged conspiracy was relevant to show his involvement in the conspiracy. It is theoretically possible that Collins' sales observed by Johnson were entirely separate from his admitted conspiracy with McNeal, but that theoretical possibility did not prohibit admission of this evidence.
May 11, 2010
Empty Threats?: Court Of Appeals of Minnesota Finds No Error In Admission Of Threats By Defendant Against Informant
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
So, if a defendant threatens a prospective witness against him but does not actually attack the witness, are his threats against the prospective witness sufficiently probative to pass this Rule 403 balancing test? According to the recent opinion of the Court of Appeals of Minnesota in State v. Anderson, 2010 WL 1850206 (Minn.App. 2010), the answer is "yes" because it is evidence of consciousness of guilt.
testified that, earlier during Anderson's trial, the two encountered each other in a jail hallway and Anderson said to him: “You dead. The police can get touched, you don't think you can get touched?” The informant understood this to mean that if a policeman can get shot, the informant can get shot too. According to the informant Anderson also stated: “Yeah, and I know your baby mama. That b*tch dead too.” Also, two sheriff's deputies testified that they heard Anderson referring to the informant as a "snitch."
After he was convicted, Anderson appealed, claiming, inter alia, that the district court erred in admitting this testimony because it was either irrelevant or failed to pass the Rule 403 balancing test. The Court of Appeals of Minnesota disagreed, finding that
The district court admitted the evidence, ruling that it was relevant to consciousness of guilt and that its probative value was not outweighed by any rule 403 factor. “[E]vidence of threats to witnesses may be relevant in showing consciousness of guilt.” State v. Harris, 521 N.W.2d 348, 353 (Minn.1994). In Harris, the supreme court upheld the admission of the testimony of a witness that on two occasions while in jail the defendant “threatened him with physical harm for testifying in this case.”...As here, the testimony in Harris was corroborated by a sheriff's deputy....Anderson argues that the term “snitch” is so vague as to have little probative value and that the statement “the police can get touched, you don't think you can get touched?” does not reveal consciousness of guilt. But the district court acted within its discretion in admitting the evidence because the informant's testimony can reasonably be understood to go to Anderson's admission and consciousness of guilt as articulated in Harris, and the deputies' references to Anderson calling the informant a “snitch” can reasonably be considered to support the credibility of the informant's testimony .
I agree. While an innocent defendant could threaten a prospective witness, a threat certainly has some probative value on the issue of consciousness of guilt, and the admission of such a threat is certainly neither excessively (unfairly prejudicial or confusing. Moreover, I don't see how a defendant's reference to an informant as a "snitch" is unfairly prejudicial or confusing in a way that is harmful to the defendant's case. If anything, I would think that the use of such a term could be harmful to the prosecution.
May 10, 2010
Broken Record: Supreme Court Of Tennessee Finds Statement Improperly Admitted As Exhibit Under Recorded Recollection Rule
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
In its recent opinion in State v. Hatcher, 2010 WL 1780049 (Tenn. 2010), the Supreme Court of Tennessee found that the trial court erred in allowing the prosecution to admit an alleged recorded recollection as an exhibit under Tennessee Rule of Evidence 803(5). It should have simply found that the statement did not qualify as a recorded recollection.
In Hatcher, Shawn Hatcher was convicted of the first degree premeditated murder of Marcel Mackey, the alternative count of first degree felony murder, and the attempted first degree premeditated murders of Anitra Flowers and Randall White/Moore. Hatcher's sister, Sabrina,
who was eighteen years old at the time of trial, also testified. She stated that she spoke with Shawn over the phone on the night of the shooting. He called her, she said, because she "had asked him for some money that day and he told [her] after he got through taking care of some business he was going to give it to [her]." When the prosecution asked her about the kind of business he was going to take care of, she stated that she did not know.
The prosecution then referred her to [a] statement she had given to the police several hours after the shootings. She acknowledged the statement, that she was fifteen years old at the time she gave it, and stated that she told the truth when she gave the statement. She also acknowledged that her memory of the events was better at the time she spoke with the police than it was at trial. The prosecutor gave her the statement to read, directing her to a particular segment in which she reported that Shawn had told her over the phone that he and Chris were going to kill Red. She read to herself the portion to which she was directed and then stated, "I don't remember saying this." She added, "I didn't tell them this” and “this statement right here is not right." The trial court subsequently allowed the prosecution to admit Sabrina's statement as an exhibit to her testimony.
After Hatcher was convicted, he appealed, claiming, inter alia, that this statement should have been excluded as inadmissible hearsay. The government countered that the statement qualified for admission as a recorded recollection under Tennessee Rule of Evidence 803(5). The Supreme Court of Tennessee disagreed, finding that even if the statement qualified as a recorded recollection it could not have been introduced as an exhibit by the prosecution.
While I agree with the court, I also think that it simply could have found that the statement did not qualify as a recorded recollection. As noted, above, for a statement to qualify as a recorded recollection, it must be shown "to reflect [the declarant's] knowledge correctly." This can be shown "either through the witness's testimony that the witness recalls making an accurate statement or through the witness's testimony that the witness would not have made the statement unless correct." Mark D. Robins, Evidence at the Electronic Frontier: Introducing E-Mail at Trial in Commercial Litigation, 29 Rutgers Computer & Tech. L.J. 219, 297 (2003).
Clearly, this was not done in Hatcher. Instead, Sabrina clearly indicated that the statement was "not right" and that she "didn't tell this" to the officer who prepared the statement. Therefore, the court just as easily could have found that the statement did not qualify as a recorded recollection.
(And despite finding error, the court deemed the error harmless)
May 9, 2010
Forfeited Opportunity: Supreme Court Of Minnesota Fails To Rule On Sole Intent Theory Of Forfeiture By Wrongdoing
Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing doctrine, provides an exception to the rule against hearsay for
A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
This Rule, however, is merely a recent evidentiary creation, and there was a separate founding-era forfeiture by wrongdoing doctrine. In Giles v. California, the Supreme Court of California had held that this founding-era version of the doctrine applied when a party procured the unavailability of a witness, regardless of whether the party intended such a result, but the Supreme Court of United States reversed, finding that such a specific intent is required. Thus, both the federal rule (and states counterparts) and the founding-era exception now require specific intent to render a witness unavailable at trial.
But must that be the sole intent? For instance, assume that Defendant robs a bank, and Prospective Witness goes to the cops and turns Defendant in, resulting in Defendant being charged with robbery. Defendant then kills Prospective Witness. Obviously, it can be inferred that Defendant killed Prospective Witness in part to prevent him from testifying at trial, but it can also be inferred that Defendant killed Prospective Witness in part as revenge for his betrayal. It seems obvious to me that sole intent is not required for application of the forfeiture by wrongdoing doctrine, but the Supreme Court of Minnesota was not yet ready to take that leap in its recent opinion in State v. Her, 2010 WL 1791154 (Minn. 2010).
In Her, Moua Her was convicted of murdering his estranged wife, Sheng Vang. At the time of the murder, there were domestic assault charges pending against Her, based upon acts that he allegedly committed against Vang. After he was convicted, Her appealed, claiming that the trial court improperly allowed for the admission of an officer's testimony concerning statements that Vang had made to him after the alleged acts which led to the domestic assault charges being brought against Her. Reading the forfeiture by wrongdoing doctrine in a way that did not require intent to render a prospective witness unavailable at trial, the Supreme Court of Minnesota found that the trial court properly admitted Vang's statements because the prosecution presented sufficient evidence that Her killed Vang.
Soon after this decision was handed down, however, the United States Supreme Court decided Giles, forcing the Minnesota Supremes to reconsider their decision. According to the Supreme Court of Minnesota, Her implied in his argument that the forfeiture by wrongdoing doctrine only applies when a party kills a prospective witness with the sole intent of rendering her unavailable to testify at trial. Specifically, he claimed that
the record establishe[d] that he did not kill Vang because he wanted to keep her from being a witness against him. For example, Her note[d] that the State argued at trial that Her murdered Vang because "he didn't want to live his life without her." Her also argue[d] that the additional evidence the State s[ought] to offer on remand, including evidence relating to a domestic assault charge pending at the time of Vang's murder and Vang's order for protection, [wa]s insufficient as a matter of law to satisfy Giles.
The government countered that "intent-to-silence does not have to be the sole motive for the murder." And, indeed, the government was able to point to several cases
which have held that to show forfeiture under Rule 804(b)(6), the State must show that the defendant was motivated only in part to silence the victim. See, e.g., United States v. Gray, 405 F.3d 227, 242 (4th Cir. 2005) (“Although the Rule requires that the wrongdoing was intended to render the declarant unavailable as a witness, we have held that a defendant need only intend ‘in part’ to procure the declarant's unavailability.”); United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir.2001) (“The government need not, however, show that the defendant's sole motivation was to procure the declarant's absence; rather, it need only show that the defendant ‘was motivated in part by a desire to silence the witness.’ “ (internal citation omitted)); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir.1996) ( “Moreover, it is sufficient in this regard to show that the evildoer was motivated in part by a desire to silence the witness; the intent to deprive the prosecution of testimony need not be the actor's sole motivation.”).
The Minnesota Supremes, however, punted this issue, finding that the factual record was not yet developed enough for it to be able to rule on this issue. As I said above, though, the resolution of this issue seems as clear as day to me. For the forfeiture by wrongdoing doctrine to apply, a party must act with the intent of rendering a prospective witness unavailable to testify at trial. This means that the prospective witness plans to testify at trial against the party. This means that the party would almost certainly be angry at the prospective witness for planning to testify. Thus, it seems that any party killing a prospective witness in such a case would at least partially be acting based upon revenge. Therefore, if courts used a "sole intent" theory, it is hard to see how any statements would be admissible under the forfeiture by wrongdoing doctrine.