July 16, 2010
Commentary on Snipes Decision
As noted here, the 11th Circuit affirmed the lower court's decision in the Snipes case. The unanimous decision authored by Circuit Judge Marcus did not find error in the sentencing, jury instructions, or venue issues raised by Snipes. Snipes had been found guilty after a trial by jury of three misdemeanor offenses and had been acquitted of conspiracy and false claim charges. He also was acquitted on failure to file charges premised on the years 2002, 2003, and 2004. The district court sentenced Snipes to 36 months, which was "comprised of three one-year terms for the failure-to-file convictions, to be served consecutively," followed by additional terms.
Noteworthy in this decision is the court's discussion on the change of venue issue. Snipes's attorneys challenged venue "alleging that the government had chosen Ocala County, Florida, for trial for racially discriminatory reasons." Of particular interest is that the district court granted Snipe's request for a jury instruction on venue and "instructed the jury that the government must prove venue -- the district of Snipe's legal residence -- by a preponderance of the evidence, and that the jury must acquit Snipes if the government had not met its burden." But Snipes was not given the pretrial hearing he wanted on the venue issue and he argued on appeal that "a pretrial hearing was necessary because a defendant cannot be forced to cede his Fifth Amendment right against self-incrimination in order to enforce his right to testify about venue at trial." This argument has worked for some defendants with respect to the Fourth Amendment. The Eleventh Circuit held that Snipe's "Sixth Amendment rights were not impaired in this case." The court stated:
"Snipes had a constitutional right to have venue decided by the jury. It did just that. Both parties presented evidence on venue at trial in great detail. Moreover, the district court fully instructed the jury that venue is an element of the offense and that Snipes must be acquitted if the government failed to establish venue by a preponderance of the evidence."
This could well be an issue that progresses to a higher court. If one is arguing improper venue and saying that the venue was selected for "racially discriminatory reasons," should the jury in that locale decide the issue of venue? Can the accused be placed in the situation of choosing between presenting evidence contrary to the venue and having to forgo rights against self-incrimination? (see background here) Venue motion timing issues may cloud this being the case for determination of these questions. But it is interesting to note that the decision includes no mention of the makeup of the venire or jury.
In addition to all the questions raised by this decision, the case may well be examined because of new evidence. (see here) Stay tuned.
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