February 3, 2008
Will the Wesley Snipes Convictions Hold Up on Appeal?
Previously blogged was the acquittal of Wesley Snipes on the conspiracy and fraud counts, and also on three of the six tax filings counts. (see here). Peter Goldberger sent in an important comment on the Wesley Snipes three misdemeanor convictions. He stated:
"Also worth noting is that Snipes was convicted only on counts where venue was much contested, both legally and factually. Was he really a legal resident, for tax-filing purposes, of the Florida town where he went to high school, while living for years in NYC and LA as a movie star? If not, the counts of conviction are precisely those most vulnerable on appeal."
This is an important point because conspiracy cases allow the prosecutor to bring charges in a host of different venues. It can be the place of agreement or the place of any of the overt acts. With the acquittal of the conspiracy charge, is venue is lacking? Also lacking perhaps is the venue that might have been present if Snipes had been convicted on the fraud count (a count that included an aiding and abetting aspect). So how does one get this case to Florida? Couple these questions with a strong objection raised by defense counsel pre-trial to the venue, and the fact that the venire failed to include the race of the accused. But does the fact that the issue gains viability after trial, because of the acquittal of several counts, make a difference?
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First, for full disclosure: I was co-counsel for Snipes in an attempted interlocutory appeal of the denial of the pretrial venue motions. The Eleventh Circuit told us to save it for direct appeal, if we got there. See 2008 WL 73631 (1/8/08). On the merits, I think you're wrong as a matter of law to suggest that the venue issue on the failure-to-file ("FTF") counts arises only in light of the acquittal on the conspiracy and false refund claim counts. Just because the conspiracy and false claim counts could be properly brought in Florida, and Snipes as a co-defendant thus forced to stand trial there on those charges, it does not follow (as you seem to be implying) that because the FTF counts could properly be joined under FRCrP 8 with the conspiracy because of the close relationship, then the FTF can be prosecuted in Florida notwithstanding a lack of Sixth Amendment venue. Venue has to be present for each separate count, regardless of joinder theory. See US v Rodriguez-Moreno, 526 US 275 (1999); US v Cabrales, 524 US 1 (1998).
Posted by: Peter G | Feb 3, 2008 11:19:51 AM
I was not suggesting an answer, just raising the issue that some others raised.
Posted by: esp | Feb 3, 2008 6:52:55 PM