EvidenceProf Blog

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

Tuesday, July 20, 2021

Tenth Circuit Finds Trial Court Properly Denied Tiger King's Motion to Sequester Carole Baskin at his Trial

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

The most frequent statute that triggers Rule 615(d) is the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771. Subsection (a)(3) of that statute states that

A crime victim has the following rights:....

The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

So, can someone who suffered no physical harm be a "crime victim"? This was the question addressed by the Tenth Circuit in its recent opinion in United States v. Maldonado-Passage, 2021 WL 2944713 (10th Cir. 2021).

The Tenth Circuit described the facts in Maldonado-Passage as follows:

It was a rivalry made in heaven. Joseph Maldonado-Passage, the self-proclaimed “Tiger King,” owned what might have been the nation's largest population of big cats in captivity. Carole Baskin was an animal-rights activist who fought for legislation prohibiting the private possession of big cats. He bred lions and tigers to create big-cat hybrids-some the first of their kind. She saw the crossbreeding of big cats as evil. He built his business around using cubs for entertainment. She protested his events as animal abuse and urged boycotts.

The rivalry intensified after Baskin sued Maldonado-Passage for copyright and trademark infringement and won a million-dollar judgment. Maldonado-Passage responded by firing a barrage of violent threats at Baskin, mostly online. And he didn't stop there. Before long, he was plotting her murder. Twice, within weeks, he set about hiring men to kill Baskin-one, an employee at his park; the other, an undercover FBI agent.

Maldonado-Passage soon faced a federal indictment charging him with twenty-one counts, most for wildlife crimes, but two for using interstate facilities in the commission of his murder-for-hire plots. A jury convicted Maldonado-Passage on all counts, and the court sentenced him to 264 months’ imprisonment.

At trial, after the prosecution listed Baskin as a witness, Maldonado-Passage moved to sequester her under Rule 615, but the trial court denied the motion, finding that she was a "crime victim" under the CVRA. In rejecting Maldonado-Passage's appeal on the ground that Baskin was not a crime victim because she didn't suffer physical harm, the Tenth Circuit concluded that

Here, Maldonado-Passage's commission of the murder-for-hire crimes directly and proximately caused Baskin's harms. After learning of Maldonado-Passage's original plan to kill her, Baskin “stepped...up” her security precautions, which already included carrying a firearm, installing security cameras at her home and business, installing blinds, and hiring security for her events....For a time, she even avoided going out in public. Later, she started taking different routes to work, leaving at different times, to avoid being seen. She testified that she “s[aw] every bystander as a potential threat” and never felt safe....In short, because Maldonado-Passage's plan to have Baskin murdered was both the but-for and proximate cause of these emotional and pecuniary injuries, the district court acted within its discretion in allowing Baskin to stay in the courtroom as a crime victim under the CVRA.



| Permalink


I can’t find anything to criticize in the court’s reasoning, although it only takes up about 3 paragraphs, and spends most of that reciting the facts of Baskin’s emotional and financial harm, with little space remaining for actual legal analysis of the “crime victim” definition.

The one thing I wonder about is whether, at least in this kind of case, Baskin could still be considered a victim even if she had suffered no harm whatsoever. Here, the relevant counts involved an interstate murder-for-hire plot. By definition almost, murder-for-hire involves a victim—whoever is being targeted for murder. This is also consistent with the statute in question, which refers to an “intended victim” of the plot. See 18 U.S.C. § 1958(a). So, in an alternate scenario—one that’s concededly unlikely—where Baskin wasn’t traumatized and didn't spend any money on security measures, I’d argue that she’d still qualify as a victim. The reason being simply that she was targeted by the Tiger King’s plot. It seems like at least one court agrees with this approach too. See U.S. v. Turner, 367 F. Supp. 2d 319, 326 (E.D.N.Y. 2005) (“the offense charged against a defendant can serve as a basis for identifying a ‘crime victim’ as defined in the CVRA”). In other words, the 10th Circuit's reasoning about the harm Baskin suffered, while totally unobjectionable, might not have been strictly necessarily either.

One last thing. The PDF link to the 10th Circuit opinion no longer seems to be working. Here is an updated link—



Posted by: kotodama | Jul 23, 2021 4:32:18 PM

Post a comment