Tuesday, March 25, 2014

Prosecutor's "Golden Rule" Argument to Jury Criticized by Court of Appeals (3/25/14)

In United States v. Hunte, 2014 U.S. App. LEXIS 4729 (11th Cir. 2014), an unpublished opinion, here,  the Eleventh Circuit sustained convictions for conspiracy and tax perjury.  The defendants had a scheme to claim refunds related to income tax allegedly withheld (but not actually withheld).  It worked at first, but not later.  Hence, the criminal case.  The opinion is standard fare for this genre of case.  The opinion does have an interesting discussion of prosecutorial misconduct in the closing jury argument.  I offer that discussion:

The Court first discusses the standard of review.  Because there was no objection at trial (which would have permitted the judge to clarify with instructions), the standard of review is for plain error, requiring that the error be plain or obvious and affect the defendant's substantial rights.  Applying this standard, the Court held (bold face supplied by JAT):
Mr. George's prosecutorial misconduct claim on appeal is one of cumulative error. He contends the cumulative effect of the various improper remarks made by the prosecution throughout its opening and closing arguments served to deny him a fair trial. "Even where individual judicial errors or prosecutorial misconduct may not be sufficient to warrant reversal alone, we may consider the cumulative effects of errors to determine if the defendant has been denied a fair trial." United States v. Ladson, 643 F.3d 1335, 1342 (11th Cir. 2011) (quoting United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009)). "In addressing a claim of cumulative error, we must examine the trial as a whole to determine whether the appellant was afforded a fundamentally fair trial." United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997). 
Of the various remarks Mr. George challenges, we find that three in particular were improper. During its closing argument and final summation, the prosecution made the following remarks: (1) that the defendants "were stealing from you and they were stealing from me and everyone else that's paying into the system"; (2) that the defendants were "living large off of your tax dollars"; and (3) that without citizens filing accurate tax returns, "we would have no tax revenue, . . . no way to build schools . . . no way to fight wars." There is no doubt that these "golden rule" remarks were improper, as they directly suggested that the jurors had personal stakes in the outcome of the case and they placed the prosecution together with the jury in a joint effort to combat fraud. See United States v. McGarity, 669 F.3d 1218, 1246 (11th Cir. 2012) ("[B]y telling the jury that the victims of the child pornography are 'our daughters and granddaughters, neighbors, friends,' the prosecutor here crossed the line . . . 'demarcating permissible oratorical flourish from impermissible comment.'"). See also United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009) ("Improper suggestions, insinuations and assertions calculated to mislead or inflame the jury's passions are forbidden in the presentation of closing arguments.").  We expect prosecutors from the Tax Division of the Department of Justice to refrain from this kind of argument in the future. 
Nonetheless, as in McGarity, 669 F.3d at 1246-47, the improper remarks did not so prejudicially affect Mr. George's rights that a different outcome might have been achieved in their absence. First, the district court instructed the jury on at least three separate occasions that the arguments of counsel were not evidence. See United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985) (holding issuance of three curative instructions was sufficient to cure damage arising from prejudicial comments made by prosecutor). Second, there was overwhelming evidence against Mr. George. The improper remarks did not affect Mr. George's substantial rights, even when considered cumulatively. See Ladson, 643 F.3d at 1342 ("There is no cumulative error where the defendant cannot establish that the combined errors affected his substantial rights.") (internal quotation marks omitted). As a result, the prosecution's improper statements do not require reversal.

3 comments:

  1. Swiss Bank
    Accounts. 2014.

    Is your monies safe
    in these accounts ---- definitely NOT.

    Would you get your
    money back if every body decided to withdraw all their accounts –
    NO WAY.

    Economic Experts
    say that there would only enough money to repay 50% of their clients.

    Are you going to be
    in the 50% --- that loose your money.-- Get it out NOW.

    2012 -- - June.
    -- Published in Anglo INFO .Geneva.--- USA Trust Fund Investors were
    sent false and fraudulent documents by Pictet Bank.Switzerland. in
    order to collect large fees. ( Like MADOFF) ---Even after the SEC in
    the USA uncovered the fraud Pictet continued to charge fees and drain
    whatever was left in these accounts. Estimated that $90,000,000
    million lost in this Pictet Ponzi scheme.

    2012 - - - July.
    -- De – Spiegel. -- states – Pictet Bank uses a letterbox
    company in

    Panama
    and a tax loophole involving investments in London to gain

    German
    millionaires as clients.



    2012
    - - - August ---- German Opposition Leader accuses Swiss Banks of
    "organised crime."

    All
    the fines that crooked Swiss banks have incurred in the last few
    years exceeds £75.Billion.

    It
    is also calculated that the secrecy " agreements" with
    regards to tax evation by their clients will cost the banks another
    £450 Billion.( paid out of your monies.)

    The
    banks are panicking --- the are quickly restructuring their banks
    ---- from partnerships --

    to
    " LIMITED COMPANIES." ----- this will probably mean that
    in the future --- they could

    pay
    you only 10% of your monies " if you are one of the lucky ones"
    ---- and it be legal.

    ReplyDelete
  2. Swiss Bank
    Accounts. 2014.

    Is your monies safe
    in these accounts ---- definitely NOT.

    Would you get your
    money back if every body decided to withdraw all their accounts –
    NO WAY.

    Economic Experts
    say that there would only enough money to repay 50% of their clients.

    Are you going to be
    in the 50% --- that loose your money.-- Get it out NOW.

    2012 -- - June.
    -- Published in Anglo INFO .Geneva.--- USA Trust Fund Investors were
    sent false and fraudulent documents by Pictet Bank.Switzerland. in
    order to collect large fees. ( Like MADOFF) ---Even after the SEC in
    the USA uncovered the fraud Pictet continued to charge fees and drain
    whatever was left in these accounts. Estimated that $90,000,000
    million lost in this Pictet Ponzi scheme.

    2012 - - - July.
    -- De – Spiegel. -- states – Pictet Bank uses a letterbox
    company in

    Panama
    and a tax loophole involving investments in London to gain

    German
    millionaires as clients.



    2012
    - - - August ---- German Opposition Leader accuses Swiss Banks of
    "organised crime."

    All
    the fines that crooked Swiss banks have incurred in the last few
    years exceeds £75.Billion.

    It
    is also calculated that the secrecy " agreements" with
    regards to tax evation by their clients will cost the banks another
    £450 Billion.( paid out of your monies.)

    The
    banks are panicking --- the are quickly restructuring their banks
    ---- from partnerships --

    to
    " LIMITED COMPANIES." ----- this will probably mean that
    in the future --- they could

    pay
    you only 10% of your monies " if you are one of the lucky ones"
    ---- and it be legal.

    ReplyDelete
  3. we are getting closer......
    "Credit Suisse Set Aside Another $480 Million For An Expected Legal Settlement With The US Government"

    Credit Suisse has increased the funds it has set aside to settle a U.S. tax dispute and avoid prosecution for helping wealthy Americans to hide their money from the taxman.

    Switzerland's second-biggest bank set aside an extra 425 million Swiss francs ($480 million), taking its total provision for tax and securities law matters in the United States to 895 million francs, it said in its annual report on Thursday.
    A spokesman for the bank declined to comment on whether the increase indicates that it is close to resolving the U.S. tax dispute.
    Switzerland's private banking model has been rattled to its core by the U.S. crackdown on tax evasion. Credit Suisse rival UBS admitted to helping U.S. taxpayers evade taxes and paid a $780 million fine in 2009.
    Evidence culled from the UBS probe and thousands of Americans coming forward under a tax amnesty in the United States has fed a second wave of investigation, which has ensnared Credit Suisse and 13 other large Swiss banks.

    Credit Suisse is under investigation by the U.S. Department of Justice and has been accused by U.S. senators of helping American customers to dodge taxes through a variety of tactics, including the creation of offshore shell entities, falsifying visa applications and establishing a branch at Zurich airport, where wealthy U.S. clients could fly in, conduct their banking and leave.

    On Thursday the bank said it will reduce previously reported fourth-quarter and 2013 results by 468 million francs after taxes to mainly reflect the U.S. tax deal provision, resulting in a
    fourth-quarter net loss of 476 million francs.
    The bank said in its annual report that total litigation provisions had doubled to 2.33 billion francs, compared with 1.16 billion a year earlier.
    It also said it had paid Chief Executive Brady Dougan 9.8 million francs in 2013, up 26 percent from the previous year. ($1 = 0.8860 SwissFrancs)

    Read more: http://www.businessinsider.com/r-credit-suisse-increases-provision-for-us-tax-deal-2014-03#ixzz2xoRa7B9a

    ReplyDelete

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