EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, May 3, 2021

Court in Hawala Operation Case Allows Interrogation About Witness's Involvement in Murder-For-Hire Plot

Federal Rule of Evidence 608(b) states 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.

Some courts limit Rule 608(b) to crimen falsi acts, i.e., acts that involve dishonesty like fraud, embezzlement, and larceny by trick. Other courts also allow Rule 608(b) questioning concerning property crimes like larceny and burglary. But what about being involved in a murder-for-hire plot?

In its opinion today in United States v. Singh, 2021 WL 1728717 (9th Cir. 2021), Harinder Singh appealed his convictions

for conspiracy to launder money (18 U.S.C. § 1956(h)), conspiracy to operate an unlicensed money transmitting business (18 U.S.C. § 371), and operating such a business (18 U.S.C. § 1960), stemming from Singh's involvement in a hawala operation, a money transmitting network that he and his coconspirators used to move drug trafficking proceeds from Canada to the United States and eventually to Mexico.

At trial, Sanjiv “Bobby” Wadhwa testified as a witness for the prosecution, and the trial court

ruled that defense could inquire into whether Wadhwa was involved in pa[ murder-for-hire scheme but that, citing Fed. R. Evid. 608(b), if Wadhwa denied his involvement, the inquiry must end, and extrinsic evidence could not be admitted to impeach him. When questioned, Wadhwa disavowed any involvement in a murder-for-hire scheme. The court explained that it limited cross-examination in order to “prevent impeachment of [him] on a collateral matter and to avoid a mini-trial on the issue of the murder-for-hire plot[.]” The court also excluded the recordings. Singh contend[ed] that these limitations violated the Confrontation Clause.

The Ninth Circuit denied Singh's appeal, but I don't even know how the questioning was approved in the first place. If someone commits, say, fraud, I have reason to question his truthfulness. And, if someone commits, say, larceny, I might have reason to question his truthfulness. But if someone hires a hitman or is a hitman, I'd have concerns about that person, but I wouldn't have a specific reason to question his truthfulness. I've never heard of a court approving Rule 608(b) questioning based on an act that has such a tenuous connection to credibility.



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Well, for felonies, which a murder-for-hire would be, Rule 609(a)(1)(A) permits impeachment by convictions under 10 years old (subject only to the standard Rule 403 analysis) without expressly considering if the crime directly implicated dishonesty. And while Rule 609(a)(2) has specific criteria for any crimes that involve dishonesty, Rule 608 doesn't. So I'd argue that Rule 608 on its face doesn't exclude crimes without a direct connection to dishonesty and conversely contemplates that sometimes they can be the proper subject of inquiry. Moreover, just inquiring on cross would seem to be inherently less prejudicial than introducing an actual conviction or other extrinsic evidence. As to why a (potentially) violent felony might be probative of truthfulness, I think some would argue that such crimes just show an extreme disregard for the law. If someone has no compunctions about soliciting murder, I don't see why that person would ever hesitate to lie, cheat, or steal either.

Posted by: hardreaders | May 4, 2021 11:09:57 AM

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