EvidenceProf Blog

Later On We'll Conspire: D.C. Case Raises Questions About Intersection Between Conspiracy Theory & Forfeiture Doctrine

Under the doctrine of forfeiture by wrongdoing, "a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying." Roberson v. United States, 961 A.2d 1092, 1095 (D.C.2008). In Ward v. United States, 2012 WL 5512579 (D.C. 2012), the defendant claimed that this doctrine applies "only where the murdered witness was to testify against her killer." The District of Columbia Court of Appeals of course rejected this argument, but the facts of the case raise an interesting question.

In Ward, Marquette Ward and Franklin Thompson were convicted of several offenses relating to the shooting deaths of Mario Evans and Jakhema "Princess" Hansen in the Sursum Corda neighborhood of N.W. Washington. At trial, the prosecution introduced statements made by Hansen pursuant to the doctrine of forfeiture by wrongdoing.

After he was convicted, Ward appealed, claiming, inter alia, that Hansen's statements should have been deemed inadmissible against her. According to Ward, these statements were inadmissible under the doctrine of forfeiture by wrongdoing for at lease three reasons:

(1) the only evidence that the government offered to establish his role in a conspiracy to kill Hansen was the hearsay statement of his alleged co-conspirator Thompson;

(2) Thompson made the independent choice to kill Hansen; and 

(3) the doctrine applies "only where the murdered witness was to testify against her killer."

The court initially turned aside these first two arguments, finding that "Devin Evans testified to Ward's own admission...that he sent Thompson and Ward's cousin 'to kill the little girl' and that he 'was supposed to pay...Thompson 8,000 dollars,' but “never paid him because he got locked up.'"

Then, with regard to Ward's third argument, the court

discern[d] no reason why the doctrine should not apply where, by a preponderance of the evidence, the trial court finds that a defendant procured a witness's death to benefit some other person. Cf. United States v. Johnson, 495 F.3d 951, 971 (8th Cir .2007) (concluding that the forfeiture-by-wrongdoing doctrine applied "even though [the defendant] had worked to procure the unavailability of potential witnesses against [her boyfriend] rather than against herself").

All of this is pretty standard black letter law with regard to the doctrine of forfeiture by wrongdoing. But what if the facts of Ward were a bit different. What if Thompson did kill Hansen without any input from Ward? And what if this killing were deemed to be in furtherance of the conspiracy? Even if Ward did not call for the killing, would the doctrine of forfeiture by wrongdoing apply to him pursuant to conspiracy theory, under which the acts of one co-conspirator are attributable to other co-conspirators?

-CM

Not Without My Glock: Middle District Of Florida Finds Husband-Wife Privilege Applies In Glock Case

Section 90.504 of the Florida Statutes sets forth Florida's husband-wife privilege

(1)  A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

(2)  The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.

(3)  There is no privilege under this section:

(a)  In a proceeding brought by or on behalf of one spouse against the other spouse.

(b)  In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.

(c)  In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.

If you're looking for a pretty good explanation of the ins and outs of this privilege, you need look no further than the recent opinion of the United States District Court for the Middle District of Florida in Tropical Marketing & Consulting, LLC. v. Glock, Inc., 2012 WL 5431002 (M.D.Fla. 2012).

In Glock, 

Glock allege[d] that from 2008 through 2010, OMB Guns was a distributor of firearms manufactured by Glock....Those firearms were intended for resale to the Law Enforcement market ("LE Market") and the Commercial Market....Glock sells firearms to the LE Market at lower prices than it sells firearms for the Commercial Market....To keep the LE Market sales channel distinct from the Commercial Market sales channel, Glock utilizes different distributor agreements which expressly prohibit its distributors from diverting firearms sold at lower LE Market prices to the higher priced Commercial Market....Glock allege[d]that OMB Guns breached its distributor agreements by diverting sales of firearms intended for the LE Market to the Commercial Market.

The husband-wife privilege issue arose in Glock because

Welcome "Bo" Wood...served as Glock's Eastern Regional Manager from approximately February, 1996 until January 3, 2011....Bo worked closely with OMB Guns. Before filing the Primary Case, Glock's attorney questioned Bo regarding whether he was accepting payments from OMB Guns for special treatment, whether directly to him or funneled through his wife, Paula Wood...Bo denied accepting payments from OMB Guns and denied any knowledge about whether Paula was receiving payments from OMB Guns. Glock's attorneys wrote to Paula, asking her to speak with them concerning these issues but she never responded. Glock terminated Bo's employment on January 3, 2011.

After Glock thereafter served a subpoena on Paula, she invoked Florida's husband-wife privilege, which the Middle District of Florida found applicable pursuant to Federal Rule of Evidence 501 because it was hearing the case based upon diversity jurisdiction. According to the court,

The Florida Supreme Court has explained that: "communications between husband and wife made in the course of their marriage relationship and while they are married and living together are privileged and may not be disclosed by one without the consent of the other party."...Strong public policy supports the privilege and "marital communications are presumed confidential absent evidence to the contrary."...For the privilege to apply, spouses must have a "reasonable expectation of privacy" in the communication in question....Among the factors the Court considers in determining whether spouses have a reasonable expectation of privacy are "the nature of the message and the circumstances under which it was delivered."...There is no exception to the husband-wife privilege in Florida for communications made in furtherance of a crime.

Interesting. So, there's no crime-fraud exception to Florida's husband-wife privilege. What Glock also makes clear is that even non-parties (and the spouses of non-parties) can invoke this privilege. This fact had relevance in Glock because Glock claimed that the husband-wife privilege was waived because Paula did not produce a privilege log. In response, the court concluded that

This argument fails because the obligation to supply a privilege log only applies to parties to the lawsuit.... Glock's argument also fails because the privilege belongs to both Paula and Bo and Paula cannot waive it without Bo's consent....The Court finds that the husband-wife privilege has not been waived and Paula may properly assert it when and where it is applicable.

-CM

Land Of Confusion?: 11th Circuit Finds Statements Against Interest Inadmissible Because They Were Later Recanted

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

In United States v. Berry, 2012 WL 5476922 (11th Cir. 2012), the Eleventh Circuit rejected the defendant's Rule 804(b)(3) appeal, finding that the statements proferred by the defendant did not satisfy subsection (B) of the Rule. But was this ruling correct?

In Berry, Lawrence Berry, Jr. was convicted of various drug and firearms offenses. These offenses arose after the police searched a residence on Diehl Drive and uncovered drugs, money, and a rifle. According to the Eleventh Circuit's opinion, while Berry's co-conspirator, Carlos Lofton,

leased the Diehl Drive residence, Berry had control and dominion over the premises because he had keys to the house (while Lofton did not) and Berry was staying in the residence and kept personal items, including clothes, there. 

After he was convicted, Berry appealed, claiming, inter alia, that the district court erred in precluding him from admitting Lofton's statements made during the search in which he admitted "that the drugs and rifle found at the Diehl Drive residence belonged to him." In response, the Eleventh Circuit found that

To be admissible under Rule 804(b)(3), a hearsay statement must satisfy three elements: (1) the declarant must be unavailable; (2) the statement tends to subject the declarant to criminal liability such that a reasonable person in his position would not have made the statement unless he believed it to be true; and (3) the statement is corroborated by circumstances clearly indicating its trustowrthiness. 

The court then found that Berry presented sufficient evidence to establish the first and second elements but ultimately concluded that

Corroborating circumstances...did not clearly indicate the statements' trustworthiness....At Lofton's own trial, he made inconsistent statements, denying a connection to the drug evidence retrieved at the Diehl Drive residence. He also recanted his post-arrest statements—about his ownership of the cocaine found at the house—in a follow-up interview at the police department. To the extent that the district court ruled that the statements should be excluded under Fed.R.Evid. 403, the court did not abuse its discretion: allowing multiple, inconsistent statements by an unavailable witness could mislead the jury and confuse the issues. 

Hmmm...I'm not sure that I agree with this on two levels. Lofton leased the Diehl Drive residence and was, according to the prosecution, Berry's co-conspirator. Those circumstances certainly seem to corroborate Lofton's statements to the officers to the search. Moreover, the fact that Lofton later recanted merely underscores that his prior statements were truly against penal interest. I would be surprised if most declarants who make statements against penal interest don't recant, especially if they are later charged.

What bothers me more is the court's conclusion that "allowing multiple, inconsistent statements by an unavailable witness could mislead the jury and confuse the issues." I'm bothered by this because courts do this all the time. Prior inconsistent statements are admissible under Federal Rule of Evidence 613 and Federal Rule of Evidence 801(d)(1)(A). Furthermore, once a witness is impeached via a prior inconsistent statement, the other party can then often introduce a prior consistent statement under Federal Rule of Evidence 801(d)(1)(B). This happens all the time without incident, so what was the problem in Berry? What issue(s) would be confused?

I don't see any. I think tyhat all of Lofton's statements should have been admitted. Rather than being confusing, the statements would have left jurors with two clear alternatives: (1) In the heat of the moment, Lofton made a true confession and then recanted when realizing the consequences; or (2) Lofton initially lied for whatever reason (maybe to protect Berry?) and then later told the truth. What's so confusing about that?

-CM

PC Confidential: Judge Seals Documents Detailing Source Code, Negotiations & Product Specs In Microsoft v. Motorola Case

Microsoft and Google's Motorola Mobility unit squared off on Tuesday at a trial with strategic implications for the smartphone patent wars and which could reveal financial information the two companies usually keep under wraps.  The proceeding in a Seattle federal court will determine how much of a royalty Microsoft Corp should pay Google Inc for a license to some of Motorola's patents. Google bought Motorola for $12.5 billion, partly for its library of communications patents.  If U.S. District Judge James Robart decides Google deserves only a small royalty, then its Motorola patents would be a weaker bargaining chip for Google to negotiate licensing deals with rivals.

Based upon the recent opinion of the United States District Court for the Western District of Washington in Microsoft Corp. v. Motorola, Inc., 2012 WL 5476846 (W.D.Wash. 2012), three things that will not be revealed during trial are documents containing (1) confidential source code, (2) settlement negotiations, and (3) product specifications. 

In Motorola, Microsoft sought to seal documents that it submitted contain confidential source code, settlement negotiations, and product specifications. The district judge agreed on all three counts. First, with regard to source code, the court concluded that

"[S]ource code is undoubtably[sic] a trade secret."...Moreover, the impending trial has little to do with the contents of Microsoft's source code, but instead is solely about determining a reasonable and non-discriminatory ("RAND") royalty rate and range for Motorola's 802.11 and H.264 standard essential patent portfolios. Thus, for purposes of understanding the court's final adjudication of the issue-at-hand, the public need not understand Microsoft's proprietary source code.

Second, the court

view[ed] settlement negotiations between Microsoft and Motorola related to Motorola's standard essential patent portfolios in a similar light. As the court explained in its order on the parties' motions in limine, the purpose of Federal Rule of Evidence 408 is to encourage the compromise and settlement of existing disputes...."By preventing settlement negotiations from being admitted as evidence, full and open disclosure is encouraged, thereby furthering the policy toward settlement." 

Third,

Microsoft assert[ed] that at trial the parties may introduce technical information related to the design and operation of the chips included in Microsoft's Xbox product....Such chips are supplied to Microsoft by a non-party company that considers the design and operation of these chips confidential and proprietary. Indeed, this non-party company only provides access to its technical information through non-disclosure agreements. Moreover, similar to source code and settlement negotiations, the design and operation of such chips play little role in the court's determination of the value of Motorola's patent portfolio because such a determination will be focused on Motorola's patent relevant portfolios and their importance to Microsoft. Thus, the court will seal documents related to such technical information.

-CM

Failure To Register: Court Of Appeals Of Texas Finds Failure To Register Conviction Has High Impeachment Value

Texas Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

In determining whether a conviction is admissible to impeach a witness under Rule 609(a), Texas courts generally consider five factors:

(1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness's subsequent history, (3) the similarity between past crimes and the charged offense, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Id. We accord the trial court wide discretion in its decision. 

So, what is the impeachment value for the crime of failure to register as a sex offender? Let's take a look at the recent opinion of the Court of Appeals of Texas, Houston, in Tristan v. State, 2012 WL 5285673 (Tex.App.-Houston [1 Dist.] 2012).

In Tristan, Michael Tristan was convicted of misdemeanor indecent exposure after the prosecution impeached him through evidence of his prior conviction for failure to register as a sex offender. After he was convicted, Tristan appealed, claiming, inter alia, that the trial court should have deemed this conviction inadmissible under Texas Rule of Evidence 609(a). 

The Court of Appeals of Texas, Houston, disagreed, finding under the first factor mentioned above that

To register as a sex offender, a defendant must disclose statutorily required information and tender it to law enforcement....A person required to register may not fail to provide the information required for an accurate registration....The goal of registration and notification provisions is to facilitate law enforcement's monitoring of sex offenders and to alert the public, so that those who may be vulnerable to crime may take appropriate precautions that could deter further crimes....The information gathered from the registry process is public information....A convicted sex offender may desire to conceal the required information for a number of reasons, including evading tracking by law enforcement and detection by the public. We hold that failure to register as a sex offender can be a crime of deception that bears on the witness's character for truthfulness.

As support for this conclusion, the court cited Theragood v. State, 2011 WL 3848840 (Tex.App.-El Paso 2011), in which the Court of Appeals of Texas, El Paso, "agree[d] with the State that the prior crime [of failure to register as a sex offender] involves deception since Appellant, by failing to register, concealed the address at which he resided or intended to reside." 

-CM

Believe It Or Not?: 10th Circuit Finds Judicial Credibility Determination Admissible Under Rule 608(b)

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

So, is a judicial credibility determination admissible under Rule 608(b), in the sense that it can be inquired into on cross-examination? As a matter of first impression in United States v. Woodard, the Tenth Circuit answered this question in the affirmative.

In Woodard, Rommie Woodard was convicted of possessing more than 100 kilograms of marijuana with the intent to distribute. At trial, Woodard had tried to impeach a New Mexico Motor Transportation Division (MTD) inspector, who claimed that he smelled marijuana in Woodard's trailer, which is what led to the search of Woodard's trailer and his eventual arrest. Specifically,

Before Defendant's trial began, the government filed a motion in limine to prohibit Defendant from offering evidence concerning a prior determination made by a different federal district court judge that the MTD inspector was not credible. In United States v. Variste, No. CR 06–1349 BB (D.N.M.), the district court issued a suppression order containing a finding that the court did not believe the inspector's testimony. Specifically, the Variste court found:  

This Court does not believe [the inspector] detected the odor of raw marijuana emanating from the back of the trailer because he did not follow up and that information was not communicated to any other law enforcement personnel involved or given as a basis for any subsequent stop....

The district court precluded Woodard from impeaching the inspector through evidence of this judicial credibility determination, and this ruling formed part of the basis for Woodard's appeal. In response, the government claimed that a finding of perjury would be admissible but that a mere credibility determination would not. 

The Tenth Circuit disagreed, finding that

We do not find this distinction persuasive. As the Second Circuit adeptly noted, "A finding that a witness is not credible is not fundamentally different from a finding that the witness lied. It often just reflects a fact finder's desire to use more gentle language." United States v. White, 692 F.3d 235, 249 (2d Cir.2012).

The Tenth Circuit then noted that

Although we have not addressed the issue of whether past judicial credibility determinations are admissible under Rule 608(b), several of our sister circuits have done so and held that they are. United States v. Cedeño, 644 F.3d 79, 82–83 (2d Cir.), cert denied, 132 S.Ct. 325 (2011); United States v. Dawson, 434 F.3d 956, 957–59 (7th Cir.2006) ("[T]he decision whether to allow a witness to be cross-examined about a judicial determination finding him not to be credible is confided to the discretion of the trial judge; it is not barred by Rule 608(b), which, to repeat, is a rule about presenting extrinsic evidence, not about asking questions."); United States v. Whitmore, 359 F.3d 609, 619–22 (D.C.Cir.2004) (holding district court erred in refusing to allow the defendant to cross-examine an officer about a judge's conclusion that "I think [the officer] lied").

The court then found

the test set forth by the Second Circuit to be particularly helpful in determining the relevancy and probative value of a prior court's finding that a witness had lied. In Cedeño, the Second Circuit set forth a list of factors a district court should consider when making this determination: "(1) whether the prior judicial finding addressed the witness's veracity in that specific case or generally;...(2) whether the two sets of testimony involved similar subject matter"; (3) "whether the lie was under oath in a judicial proceeding or was made in a less formal context"; (4) "whether the lie was about a matter that was significant"; (5) "how much time had elapsed since the lie was told and whether there had been any intervening credibility determination regarding the witness"; (6) "the apparent motive for the lie and whether a similar motive existed in the current proceeding"; and (7) "whether the witness offered an explanation for the lie and, if so, whether the explanation was plausible."

Finally, the Tenth Circuit applied these factors to the case at hand and found that they supported the conclusion taht Woodard should have been able to impeach the inspector:

First, the inspector's testimony in the two cases involved nearly identical subject matter. In each, he testified that upon opening the door to the defendant's tractor-trailer while performing an inspection at the Gallup port of entry, he smelled a strong odor of raw marijuana. Second, the inspector's testimony in Variste was given under oath during a suppression hearing. Third, his prior testimony was significant; it involved the central issue of the suppression hearing—whether the deputy had the requisite reasonable suspicion to perform the search of the defendant's tractor-trailer. Fourth, the testimony in Variste was relatively recent, given approximately three years before the inspector testified in the present case. And the government has not pointed to any intervening finding that the inspector was credible. Fifth, the motive to lie in both cases was the same. In each, the strong odor of marijuana was offered to support a critical determination necessary to obtain a conviction: in Variste, reasonable suspicion justifying the search, and here, whether Defendant knowingly possessed the marijuana. Sixth, and finally, the government has not offered any explanation for the inspector's implausible testimony, other than that offered to and rejected by the Variste court. Each of these factors convince us that cross-examination on the credibility determination would have been appropriate under Rule 608(b).

-CM

He's A Character Guy: 4th Circuit Finds No Ineffective Assistance Despite Failure To Object To Character Evidence

Pursuant to West Virginia Rule of Evidence 404(a), "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion, except" in limited circumstances that usually consist of a criminal defendant opening the door to the admission of propensity character evidence. In Estep v. Ballard, 2012 WL 5417556 (4th Cir. 2012), the defendant did not open the door to the admission of character evidence and yet the prosecution still admitted it. So, did the defendant received the ineffective assistance of counsel because his trial attorney did not object to the admission of this evidence?

In Estep, James N. Estep petitioned for a writ of habeas corpus in connection with his sentence of life without possibility of parole for first-degree felony murder. The character evidence at issue concerned the victim, Donovan Barringer, and in came in several forms. For instance, the prosecutor told the jury:

Donovan Barringer is going to be remembered in this courtroom during this trial as a kind and gentle man who sought out a very simple lifestyle, and a man who had a very large heart. The kind of fellow that always was willing to give anything he had to someone else he thought needed it. He was a man that you will find to have been loved by his family, and a man who is now being mourned by his family.

After you discover the facts about this kind and gentle man, you're going to find it especially painful to think that he lost his life while he was attempting to help a stranger....

Meanwhile, Barringer's nephew testified that Barringer

was like a brother, a father, all rolled up into one. He was my sounding board. He and I did all kinds of things together, and he was my encourager. He gave me advice. Taught me all kinds of things. Taught me how to throw a baseball, how to catch a football, how to fish and hunt, and how to drive a car. Just all kinds of things like that. We spent lots of times, a lot of time hunting and fishing. Camping. Just all kinds of things together.

The Fourth Circuit found that Estep easily satisfied the first prong of the ineffective assistance of counsel test, finding that trial counsel's failure to object even once to the substantial quantity of good character evidence elicited by the prosecution constituted deficient performance." 

The court then had to consider whether there was a reasonable probability that the outcome would have been different (i.e., that Estep would have received a lighter sentence) if defense counsel would have objected to this character evidence. The Fourth Circuit found that this second prong was not satisfied because, inter alia, 

the evidence demonstrates that Estep displayed an alarming absence of remorse in the hours following the gruesome attack by—among other actions—burglarizing Barringer's home (where his ailing, eighty-seven-year-old mother lay in bed); stealing his pickup truck; driving across state lines; checking into a hotel; and frittering away Barringer's money on a CD player, CDs, and posters. Damaging also was the fact that Estep and his girlfriend purchased two packages of hair dye the morning after the murder—from which the jury could have inferred that they were intent on evading capture.

-CM