August 7, 2010
A Question Of Your Honesty: Court Of Appeals Of Iowa Opinion Reveals Iowa Courts Treat Theft And Burglary As Crimes Involving Dishonesty Or False Statement
(1) Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and(2) Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
In most jurisdictions, convictions for crimes such as theft and burglary do not automatically qualify as convictions for crimes involving dishonesty or false statement. This is not, however, the case in Iowa, as was revealed by the recent opinion of the Court of Appeals of Iowa in State v. Harrington, 2010 WL 2925696 (Iowa.App. 2010).
In Harrington, Wendell Harrington was convicted of ongoing criminal conduct, eluding, theft in the first and second degrees, and three counts of burglary in the second degree as a habitual offender. After he was convicted, he appealed, claiming, inter alia, that the trial court by allowing the prosecution to impeach him through his prior convictions for theft and burglary. Specifically, according to Harrington, the trial court erred by failing to balance the probative value and the likely prejudicial effect of admitting evidence of his prior convictions.
The Court of Appeals of Iowa disagreed, finding that the crimes of theft and burglary underlying Harrington's prior convictions were both crimes or dishonesty or false statement under Iowa Rule of Evidence 5.609(a)(2), meaning that the trial court did not need to balance their probative value against their likely prejudicial effect.
Most courts would disagree. For instance, in United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982), the Ninth Circuit found that the defendant's grand theft and burglary convictions were not covered by Federal Rule of Evidence 609(a)(2) because
Generally, crimes of violence, theft crimes, and crimes of stealth do not involve “dishonesty or false statement” within the meaning of rule 609(a)(2). Although such crimes may indicate a lack of respect for the persons or property of others,...they do not "bear directly on the likelihood that the defendant will testify truthfully."
That said, "[a] conviction for burglary or theft may nevertheless be admissible under rule 609(a)(2) if the crime was actually committed by fraudulent or deceitful means." Id. The Court of Appeals of Iowa, however, did not make such a finding, and with good reason: The Supreme Court of Iowa has already found that convictions for theft and burglary automatically fall under Iowa Rule of Evidence 5.609(a)(2). See State v. Willard, 351 N.W.2d 516, 518 (Iowa 1984); State v. Conner, 241 N.W.2d 447, 455 (Iowa 1976).
I strongly disagree with the Iowa rule. Sure, if a defendant previously lied to the owner of a home ("I'm here to fix the gas line") to gain entry into the home with the intent of committing a crime inside (attacking the owner), his conviction for that act of burglary should be admissible under Iowa Rule of Evidence 5.609(a)(2). But if the defendant previously picked a lock on a home with the intent of entering and attacking the owner, I don't see how his conviction for that act of burglary would qualify under Iowa Rule of Evidence 5.609(a)(2) as a conviction for a crime of dishonesty or false statement.
August 6, 2010
Avoiding A Confrontation: Eleventh Circuit Finds Confrontation Clause Doesn't Apply To Supervised Release Revocation Hearings
The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...." As the recent opinion of the Eleventh Circuit in United States v. Garcia Hernandez, 2010 WL 2911104 (11th Cir. 2010), makes clear, however, a supervised release revocation hearing is not a criminal prosecution, rendering the Confrontation Clause inapplicable at such a hearing.
In Garcia Hernandez, Ernesto Garcia Hernandez pleaded guilty in 2000
to one count of conspiracy to possess with intent to distribute cocaine in excess of 500 grams....
The BOP released Garcia from prison in December 2003....Texas court officials transferred jurisdiction over him to the Southern District of Florida....
In December 2004, a probation officer petitioned the court to revoke Garcia's supervised release....The district court responded by revoking Garcia's supervised release and sentencing him to an additional six months of imprisonment, followed by three years of supervised release....
BOP officials released Garcia again in July 2005....In March 2008, a probation officer filed [a] petition to revoke his supervised release.....The petition alleged five violations.....Each of these included the mandatory condition to refrain from personally violating the law, and were based on committing the following state crimes, as reflected by his arrest by Miami police in February 2008: (1) conspiracy to commit armed cocaine trafficking; (2) conspiracy to deliver marijuana; (3) conspiracy to commit armed robbery; (4) possession of a firearm by a convicted felon; and (5) use of a firearm during the commission of a felony....
Garcia and a co-conspirator allegedly committed these crimes by conspiring to rob a confidential informant during a drug deal. At the supervised release revocation hearing, neither the alleged co-conspirator nor the CI testified, but the government did introduce into evidence recordings of controlled calls between the alleged co-conspirator and the CI.
After the court revoked his supervised release, Garcia Hernandez appealed, claiming, inter alia, that the admission of the recordings violated his rights under the Confrontation Clause. The Eleventh Circuit disagreed, finding that
The Sixth Amendment right to confront adverse witnesses is guaranteed only in "criminal prosecutions."...The Supreme Court has held that a parole revocation hearing does not constitute a "criminal prosecution."..., and our court has found "no significant conceptual difference between the revocation of probation or parole and the revocation of supervised release."
August 5, 2010
As I Lay Dying: Court Of Appeals Of Virginia Notes That Declarant Doesn't Have To Immediately Die For Dying Declaration Exception To Apply
Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay
In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
Virginia does not have codified rules of evidence, but Virginia precedent fully conforms to common law principles governing dying declarations, pursuant to which a statement qualifies as a dying declaration if it was made under a sense of impending death without any expectation or hope of recovery from his mortal wounds. And, as the recent opinion of the Court of Appeals of Virginia in Satterwhite v. Commonwealth, 2010 WL 2899044 (Va.App. 2010), makes clear, for a statement to qualify as a dying declaration, the declarant merely needs to believe that his death was imminent when he made the statement; he does not actually need to die soon after making the statement.
Tanisha Naar left work on a lunch break and returned to her apartment. She found her boyfriend, Joyner, lying on her bathroom floor. He was covered in blood. Naar called out to Joyner, but he did not answer. She went over to Joyner and knelt down beside him as he gasped for breath. Joyner faded in and out of consciousness. He appeared limp and unable to feel anything. Because Joyner was bleeding so profusely, Naar could not identify the entry wounds. When she asked him where he had been shot, Joyner replied, "everywhere."
Naar called 911. [Joyner] had been bleeding for about half an hour by this time. The 911 operator asked Naar what happened. While still on the phone, Naar asked Joyner "who did it?" Breathing heavily, Joyner replied, "Darin Satterwhite did it." He said it loudly enough for the 911 operator to overhear the statement. Joyner added that Satterwhite had shot him inside Naar's apartment at around 12:45 p.m.
Paramedics arrived within minutes and found Joyner conscious but in critical condition. He had three gunshot wounds to the chest and one to the head. Joyner had no feeling in his legs. Police detectives also arrived on the scene. They, too, asked Joyner what happened. He told them Satterwhite had shot him. The paramedics rushed Joyner to the hospital where he was admitted for emergency surgery. The gunshots had damaged his spine and led to renal failure, liver failure, sepsis, pneumonia, rhabdomyolysis, gastrointestinal bleeding, and coagulopathy. Joyner died in the hospital six weeks later.
At trial, the prosecution introduced Joyner's statements to Naar, and the introduction of these statements former the partial basis for his appeal. Among other things,
Satterwhite ma[de] much of the fact that Joyner did not die immediately. Emergency medical care kept him alive for several weeks following the shooting. Like the trial court, we find this observation misses the point. To be sure, "there seems to be no case in which the time of survival was deemed to exclude the declaration; and various periods have been passed upon as not too long."...It is an immaterial fortuity that modern medicine extended Joyner's life as long as it did, particularly given the extent of his injuries. The only issue is whether his in extremis condition at the time of his statements warranted the trial court's conclusion that they came within the scope of the dying declaration exception. Because "[m]uch weight ought always to be given to the opinion of the court below in determining this question,"...and sufficient evidence supports the trial court's conclusion, we find no basis for overturning the court's exercise of discretion in this case.
Indeed, it is important to note that the dying declaration exception can apply even if the declarant does not die . Assume that Victim is shot by Assailant. Victim is told by Paramedic that he is going to die, and Victim says, "Assailant shot me!" Miraculously, Victim lives but loses his memory based upon the shooting. Victim is now suing Assailant civilly for battery. Victim's statement would be admissible as a dying declaration.
(The court's opinion also noted that dying declarations do not present a problem under the Confrontation Clause)
August 4, 2010
Opinion Of Interest: First Circuit Notes That Statement Against Interest Exception Covers Statements Against The Declarant's Interest
Federal Rule of Evidence 804(b)(3) 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.
And, as the text of this Rule and the recent opinion of the First Circuit in United States v. Figueroa-Cartagena, 2010 WL 2794368 (1st Cir. 201), make clear, the key to this Rule is that the statement be againt the declarant's interest, not that it be against the defendant's interest.
In Figueroa-Cartagena, Neliza Figueroa-Cartagena was found guilty of aiding and abetting a carjacking that resulted in death, conspiring to commit that carjacking, and aiding and abetting the carriage or use of a firearm during the carjacking. Her alleged co-conspirators were Félix Gabriel Castro-Davis and Félix Alberto Castro-Davis.
At trial, the prosecution introduced into evidence the recording of a telephone conversation between Alberto Castro-Davis and his mother:
Alberto: I saw the sworn statement.
Mother: Yes, the police told me.
Alberto: Yeah? That bitch is going to fuck us over. We can't talk too much through here, either.
Mother: They told me that she talked really bad-that she was talking about ...
Alberto: I saw the sworn statement, that's all I have to say. I went to court yesterday.
After she was convicted, Neliza appealed, claiming, inter alia, that this recording contained inadmissible hearsay and that the district court erred in deeming the conversation admissible under Federal Rule of Evidence 804(b)(3) because "nothing in the phone conversation was against her (Neliza's) penal interest." The First Circuit easily and correctly turned this argument aside, finding that this was
not the relevant inquiry....Rule 804(b)(3) requires the district court to ask whether the statement at issue "so far tended to subject the declarant" -in this case, Alberto-"to...criminal liability...that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."
August 3, 2010
Explain Yourself: Seventh Circuit Reverses Conviction Based On District Court's Failure To Explain Rule 403 Ruling
Federal Rule of Evidence 404(b) provides that
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Of course, evidence offered under Rule 404(b) is still subject to the balancing test set forth in Federal Rule of Evidence 403, which provides that
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.
And, as the recent opinion of the Seventh Circuit in United States v. Ciesiolka, 2010 WL 2891087 (7th Cir. 2010), makes clear, a trial court's perfunctory consideration of this balancing test is inadequate and may in itself be grounds for reversal.
In Ciesiolka, Mark Ciesiolka was convicted of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity.
His prosecution emanated from a police sting operation, in which an officer, purporting to be a 13-year-old girl named "Ashley," engaged in series of sexually explicit, instant-messaging ("IM") conversations on an online Yahoo forum with the defendant. The sting, however, was marred by numerous oddities. The profile created by the officer displayed a photo of a woman in her late 20s and indicated that the user's interests included "beer" and "Purdue University." When asked by the defendant to send pictures during their IM conversations, the officer inexplicably sent a photo of a woman in her late 20s. Ciesiolka remarked that she looked 21. Ashley nevertheless maintained that she was just 13. Although Ciesiolka and the officer agreed to meet at a Pizza King, the defendant evidently got cold feet and, despite repeated encouragement from Ashley, declined to meet. The officer admitted: "I lie about my age."
The crime with which Ciesiolka was charged required the government to prove beyond a reasonable doubt that the defendant believed that "Ashley" was under 18....[G]iven the somewhat bizarre nature of the sting operation itself, replete as it was with suggestions that Ashley may have been an adult, it is perhaps unsurprising that the government sought to bolster its case. It did so by introducing voluminous evidence under Fed.R.Evid. 404(b) of the defendant's other IM conversations with unknown third parties, over 100 images of child pornography and/or erotica discovered on his computer and testimony from a woman, "SC," who claimed that Ciesiolka had had sex with her several times when she was 15. This evidence took up an entire day of a three-day trial and yet, at the time of its introduction, was subject only to a single, pro forma limiting instruction.
After he was convicted, Ciesiolka appealed, claiming, inter alia, that the district court erred in allowing the prosecution to admit the aforementioned evidence under Federal Rule of Evidence 404(b). The Seventh Circuit agreed, noting that evidence offered under Rule 404(b) is still subject to the balancing test set forth in Federal Rule of Evidence 403 and concluding that it "could find no portion within it where the court explained its bare-bones conclusion that 'the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.'"
According to the court, this was problematic because "a trial court's 'perfunctory' consideration of this critical question is inadequate and may in itself be grounds for reversal." And, based upon the extremely prejudicial nature of the evidence of the evidence presented by the prosecution, the Seventh Circuit found that it had to reverse because
the district court abused its discretion in failing to propound reasons for its conclusion that the probative value of SC's testimony, the many images of child pornography and the content of Ciesiolka's numerous, offensive IM conversations with third parties was not substantially outweighed by the risk of unfair prejudice.
August 2, 2010
Looking For Consistency: Second Circuit Notes That Prior Consistent Statements Are Admissible For All Purposes
Federal Rule of Evidence 801(d)(1)(B) provides 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...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....
And, as the text of the Rule and the recent opinion of the Second Circuit in United States v. Caracappa, 2010 WL 2884970 (2nd Cir. 2010), make clear, because a prior consistent statement under this Rule is "not hearsay," it is admissible generally and not solely to counter the suggestion that the declarant's testimony was motivated by an improper purpose.
In Caracappa, Stephen Caracappa and Louis Eppolito appealed from final judgments convicting both men of racketeering conspiracy and distribution of and conspiracy to distribute narcotics and convicting Eppolito of money laundering.
Caracappa and Eppolito are former police detectives who were employed by the New York City Police Department...until the early 1990s. In 1986-1993, while so employed, they were also a partnership employed by Anthony Casso, the underboss, i.e., second in command, of the Lucchese Crime Family-one of the five Organized Crime Families in the New York City area. The government's key witness at trial was Burton Kaplan, who was a former associate of the Lucchese Crime Family, a close friend of Casso, and the main intermediary between Casso and Caracappa/Eppolito....
After Kaplan had testified and described relaying information received from Caracappa and Eppolito to Casso and relaying to them instructions and payments from Casso, and after defendants had cross-examined Kaplan at length, challenging the veracity of that testimony, the government was allowed to call Burstein as a witness to testify that Kaplan told him in 1994 that Kaplan had been the conduit between Caracappa/Eppolito and Casso.
After he was convicted, Caracappa appealed, claiming, inter alia, that "the government in summation improperly used Burstein's testimony to bolster that of Kaplan, rather than using it solely to counter the suggestion that Kaplan's testimony was motivated by an improper purpose, we see no misuse by the government." The Second Circuit disagreed, finding that
Prior consistent statements that are admissible under Rule 801(d)(1)(B) "are substantive evidence. The prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally."
August 1, 2010
No Residual Value: Eighth Circuit Rejects Defendant's Argument That His Exculpatory Statement Was Admissible Under Residual Exception
Federal Rule of Evidence 801(d)(2)(A) indicates that
A statement is not hearsay if...[t]he statement is offered against a party and is...the party's own statement, in either an individual or a
Of course, as the text of the Rule makes clear, the Rule only covers statements offered against a party, such as a defendant's incriminatory statements admitted against him by the prosecution. Conversely, the Rule does not cover statements offered by a party, such as a defendant's exculpatory statements offered by him at his criminal trial. And, as the recent opinion of the Eighth Circuit in United States v. McCraney, 2010 WL 2852970 (8th Cir. 2010), makes clear, such statements are also unlikely to be admissible under the residual exception to the rule against hearsay.
In McCraney, Adrian McCraney and Kennie Williams were each convicted by a jury of possession of cocaine base with intent to distribute, robbery in violation of the Hobbs Act, and possession of a firearm in furtherance of a drug trafficking crime. The jury also found McCraney guilty of possession of a firearm as a convicted felon. At trial, the evidence presented by the prosecution established, inter alia, that
Kennie Williams made arrangements to buy four ounces of cocaine from a drug dealer named Larry Jones. The two agreed to meet in the parking lot of the Super Wal-Mart in Coralville, Iowa, late in the evening on August 29 to conduct the transaction. Jones entered Williams's vehicle and handed Williams a one-ounce package of cocaine to inspect. Jones testified that Williams "started kind of fidgeting with [the package] ... and discussing how he didn't think that it looked right."
As Jones tried to convince Williams to complete the deal, Adrian McCraney entered the vehicle on the passenger side and seated himself behind Jones. Jones was startled by McCraney's appearance, but Williams "said it was okay, that it was his cousin." McCraney began to question whether Jones was an undercover police officer, and while Jones was responding to McCraney, Williams kept fidgeting with the one package of cocaine. A Motorola phone box containing the rest of the cocaine remained in Jones's lap.
Suddenly, McCraney reached over the top of the seat in front of him and put a gun to Jones's chest. While Jones was held at gunpoint, Williams rifled through his belongings. Williams took the box with the remaining cocaine and emptied Jones's pockets, seizing Jones's ID, all of his money, a pack of cigarettes, a lighter, and a cell phone.
McCraney and Williams eventually permitted Jones to leave the vehicle, and then sped out of the parking lot with Williams driving. Jones followed on his motorcycle, but soon abandoned the pursuit and called 911 to report the robbery.
At trial, Williams sought to present evidence that, after he was arrested in connection with the crime, he made a declaration to police
that he did not know anything about the robbery of Jones prior to when it occurred, that he was taken by surprise when McCraney entered the car and pulled out a gun, that after the robbery McCraney instructed him to drive away from the parking lot, and that McCraney then put the gun to Williams's head and told him to keep driving while the police pursued them.
The district court, however, deemed this evidence inadmissible hearsay. After he was convicted, Williams appealed, claiming, inter alia, that this evidence was admissible under Federal Rule of Evidence 807, the residual exception, which provides an exception to the rule against hearsay for
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
According to Williams,
a statement given by an uncounseled arrestee who is under interrogation by law enforcement officers bears sufficient indicia of trustworthiness to warrant admission under Rule 807, because the very purpose of police interrogation is to obtain truthful statements that can be used to further an investigation.
The Eighth Circuit disagreed, finding that
The district court disagreed that the circumstances surrounding Williams's statement adequately guaranteed its reliability. The court ruled the statement identifying McCraney as the mastermind of the robbery was not admissible under Rule 807, because "[i]t does not bear indicia of trustworthiness for somebody to sit down and write out a statement that essentially implicates somebody else." We agree with this sensible conclusion. Williams was arrested after leading police on a highspeed chase. The police found a cell phone belonging to the robbery victim on his person and located cocaine and accessories to a handgun in his car. Williams could not plausibly deny altogether that he had participated in the robbery and subsequent flight, so he had clear motivation to present himself as an unwitting and unwilling participant. The district court did not abuse its discretion in ruling that a statement made under these circumstances is not sufficiently trustworthy to be admitted into evidence under Rule 807.