In United States v. Mazzeo, 2015 U.S. App. LEXIS 1040 (9th Cir. 2015) (unpublished), here, the Court was presented with the issue of whether a guilty verdict before the adoption of the new interpretation based on an instruction omitting the stricter willfulness interpretation was error and, if so, reversible error. That issue alone made Mazzeo worthy of comment here. Mazzeo also involved another issue that I think is worthy of discussion -- whether it was error for the district court to exclude the IRS agents' notes of the conversation giving rise to the false statement conviction.
Before addressing the issues separate, I think it will be helpful to quote the full opinion because it is short and the issues are certainly related. I omit the caption:
n* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Defendant-Appellant Tara Mazzeo appeals her conviction on two counts of making false statements to a government official in violation of 18 U.S.C. § 1001, for which she was sentenced to five years of probation without conditions of confinement. Mazzeo contends that the district judge committed reversible error in excluding the government agent's handwritten notes from evidence and that there was insufficient evidence to support the jury's verdict. Mazzeo additionally argues that the district court plainly erred in failing to instruct the jury that the element of willfulness for a § 1001 crime requires knowledge of unlawfulness. We have jurisdiction under 28 U.S.C. § 1291. We ordered supplemental briefing regarding Mazzeo's challenge to the district court's jury instruction related to willfulness and affirm as to all issues raised in the case.
The district court's exclusion of evidence during trial is reviewed for abuse of discretion. United States v. Evans, 728 F.3d 953, 959 (9th Cir. 2013). Under this deferential standard, we consider whether the district court's evidentiary decision was based on "consideration of the relevant factors" and whether there was a "clear error of judgment." United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir. 1984). The district judge did not abuse his discretion in determining that the notes had little, if any, probative value on the basis of Mazzeo's proffers at trial. Even if in error, the exclusion neither rose to the level of a deprivation of Mazzeo's constitutional rights, cf. United States v. Pineda-Doval, 614 F.3d 1019, 1032-33 (9th Cir. 2010), nor undermined the weighty evidence offered against Mazzeo so as to more probably than not affect the jury's verdict, see United States v. Gwaltney, 790 F.2d 1378, 1384-85 (9th Cir. 1986).
Mazzeo's argument, presented for the first time upon appeal, that the excluded notes were inconsistent with evidence produced at trial is reviewed for plain error. See Hudspeth v. Commissioner, 914 F.2d 1207, 1215 (9th Cir. 1990). This argument fails because the distinctions that Mazzeo points to are ones without a difference. Considering the ample evidence supporting the jury's verdict and the jury's opportunity to fully consider the defense's theory that Mazzeo understood the questions differently from the agents even absent the notes, we cannot say that any possible error seriously affected the fairness and integrity of the proceedings so as to warrant reversal. See United States v. Romero-Avila, 210 F.3d 1017, 1022-23 (9th Cir. 2000) (declining to reverse for plain error where prosecutor presented independent evidence of defendant's guilt).
Mazzeo's challenge to the sufficiency of the evidence, preserved by motion for acquittal, is reviewed de novo. United States v. Carranza, 289 F.3d 634, 641 (9th Cir. 2002). Mazzeo argues that her conviction for false statements cannot be sustained where the interview on which it was based was not recorded and where the government failed to otherwise prove the precise language of the questions to which the jury found her answers false. These arguments fail on several grounds.
This is not an instance where a single, ambiguous question could have lent itself to separate interpretations, with respect to one of which the defendant's answer was literally true. Cf. United States v. Cook, 489 F.2d 286, 286 (9th Cir. 1973). Rather, the jury was presented with starkly contrasting versions of questions asked and answers given by Mazzeo. We decline to invade the jury's exclusive province to evaluate the credibility of witnesses in order to resolve such evidentiary conflicts. See United States v. Young, 573 F.2d 1137, 1139 (9th Cir. 1978) ("[I]t is the jury's exclusive function to weigh the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts.").
We also decline to adopt a new, bright-line rule barring § 1001 prosecutions absent a recording of the incriminating interview. In false statements cases, the full context in which the statements were uttered is to be evaluated in determining the sufficiency of the evidence. See United States v. Sainz, 772 F.2d 559, 562 (9th Cir. 1985). Drawing all reasonable inferences in favor of the government, see United States v. Corona-Verbera, 509 F.3d 1105, 1117 (9th Cir. 2007), we conclude that a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009) (quoting United States v. Dearing, 504 F.3d 897, 900 (9th Cir. 2007)).
Mazzeo's challenge to the jury instruction on willfulness is reviewed for plain error, as there was no objection at trial. United States v. Garrido, 713 F.3d 985, 994 (9th Cir. 2013). "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." Fed.R.Crim.P. 52(b). Nonetheless, we cannot correct an error pursuant to Rule 52(b) "unless the error is clear under current law." United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). That is, for an error to be "plain," it must be "contrary to the law at the time of appeal." Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997). Mazzeo argues that the district court's error in failing to instruct the jury that knowledge of unlawfulness is required for a § 1001 crime is plain in light of the government's concession of error and our unpublished decision in United States v. Ajoku, 584 Fed.Appx. 824 (9th Cir. 2014). We disagree.
As Ajoku addressed a conviction under 18 U.S.C. § 1035, it did not disturb the longstanding precedent in this circuit that, under 18 U.S.C. § 1001, "willfully" means only "deliberately and with knowledge." United States v. Tatoyan, 474 F.3d 1174, 1182 (9th Cir. 2007) (citing Browder v. United States, 312 U.S. 335, 341, 61 S. Ct. 599, 85 L. Ed. 862 (1941)); United States v. Heuer, 4 F.3d 723, 732 (9th Cir. 1993). Mazzeo points to no intervening authority displacing this holding. Whether or not the "willfulness" element for a § 1001 crime should be altered is a question for another day. As the district court's error, if any, is not obvious under current law, Mazzeo's conviction must stand.
First, flavoring the whole case, I think is the fact that the defendant received 5 years probation. I just wonder whether the case would have been resolved the same way (at least via nonprecedential decision) if she had instead been sentenced to, say, 3 years incarceration and 2 years supervised release. Of course, as I am sure the panel appreciates, felony convictions have serious real consequences even if fully probated.
Second, the issue of the excluded evidence is a bit surprising to me. The particular surprise is that the judge excluded that evidence. Once it was excluded and the defendant is convicted, even if it were error, the reversal does not then become automatic. I would like to offer briefly some background. CI agents -- usually two -- often make a surprise appearance at a taxpayer's home. Two agents are involved so that one can take notes if the taxpayer consents to the interview (i.e., after receiving the modified Miranda warnings, the taxpayer does not stop the interview or ask for a lawyer). The notetaker then, upon return to the office (or shortly thereafter) prepares a memorandum of the interview which the other CI agent reviews and the two then agree upon the final contents of the memorandum of the interview. Both sign the memorandum as their contemporaneous best recollection of the interview. Usually, the notetaker is not a court reporter and the interview is not recorded. (The quality of the notetaking by CI Agents that I have seen leaves much to be desired.) Both agents thus walk away from the interview with their recollections of the interview and the notetaker's notes. The dangers of such a surprise interview are that the taxpayer (or other interviewee) may make damaging admissions to which the agents can testify at a criminal trial for a tax crime or that the taxpayer may make false statements to which the agents can testify to at a criminal trial for false statements under § 1001. As we have discussed before, a truthful answer in an interview is a defense to the false statement crime. Moreover, if the question is ambiguous or reasonably could have been construed as ambiguous, an answer that exploits the ambiguity in the question cannot be prosecuted under § 1001. See The Limits of Literal Truth as Defense to Perjury (or Even 18 USC 1001) (Federal Tax Crimes Blog 7/24/10), here. For this reason, it is important to focus particularly, as the Supreme Court did in Bronston v. United States, 409 U.S. 352 (1973), here, on the precise question asked and the answer given. (Bronston was a perjury prosecution, but most courts interpret the false statement crime consistently.) The hand written notes did not indicate the Q&A and, moreover, the agents could not remember the precise Q&A. The memorandum apparently just summarized the agents' memories at the time the memorandum was prepared of what Mazzeo had said in response to questions (not specifically recorded). In that environment fraught with the possibility of miscommunication, particularly given the surprise nature of the agents' appearance, I would have thought that the absence of the specific Q&A or something very close to it would have been required for conviction under Bronston. (Okay, I recognize that there is some nuance to Bronston's holding, but I think that, at a minimum, Bronston requires that the evidence establish beyond a reasonable doubt that the interviewer and interviewee were on the same page and that begs for the Q&A.) The Ninth Circuit panel held that the agents did have in the memorandum, prepared close in time, the effect of the Q&A Mazzeo had a different memory. The jury believed the agents. The Ninth Circuit held that that was within the province of the jury and thus could support the conviction. In so holding, the Court did decline a bright-line holding that false statement prosecutions would require a recorded interview.
Third, on the predicate issue of whether the trial court had properly excluded the notes (which exclusion could have impaired Mazzeo's ability to put on an effective defense that the jury erred in believing the agents, the Ninth Circuit panel indicated that exclusion in the context of the case was within the discretion of the trial court. But, it said "Even if in error, the exclusion neither rose to the level of a deprivation of Mazzeo's constitutional rights, nor undermined the weighty evidence offered against Mazzeo so as to more probably than not affect the jury's verdict." (citations omitted.) In effect, the court was saying that, in its view, the jury would have very likely reached the same verdict even with the notes. That holding seems troubling to me.
Fourth, the Ninth Circuit panel then affirmed on the jury instruction issue for this reason:
As Ajoku addressed a conviction under 18 U.S.C. § 1035, it did not disturb the longstanding precedent in this circuit that, under 18 U.S.C. § 1001, "willfully" means only "deliberately and with knowledge." United States v. Tatoyan, 474 F.3d 1174, 1182 (9th Cir. 2007) (citing Browder v. United States, 312 U.S. 335, 341, 61 S. Ct. 599, 85 L. Ed. 862 (1941)); United States v. Heuer, 4 F.3d 723, 732 (9th Cir. 1993). Mazzeo points to no intervening authority displacing this holding. Whether or not the "willfulness" element for a § 1001 crime should be altered is a question for another day. As the district court's error, if any, is not obvious under current law, Mazzeo's conviction must stand.I find the overall opinion troubling. It appears to me that the Court could have reversed and remanded for retrial if the Government chose to retry. It did not because it found the evidence, as accepted by the jury, overwhelming in favor of her guilt. Perhaps even the fully probated sentence entered into the Court's decision to put the case to rest. (Well, there might be post-appeal remedies, depending on how the law develops; perhaps even an ineffective assistance of counsel at trial for not anticipating DOJ' reversal on the interpretation of willfulness and putting that issue in play by proffering to the court instructions requiring knowledge of illegality, but perhaps her not being incarcerated may limit some of those remedies.)
The Briefs are listed below with links to the briefs:
- Mazzeo DKT 06-1 D Opening Brief (TJ001).pdf, here;
- Mazzeo DKT 12 US Answering Brief (TJ001).pdf, here:
- Mazzeo DKT 19 D Supplemental Brief Opening Brief (TJ001).pdf, here.
- Mazzeo DKT 24 US Supplemental Brief (TJ001).pdf, here.
- Mazzeo DKT 27 D Reply Brief (TJ001) (1).pdf, here.
- Mazzeo DKT 33 US Citation of Supplemental Authorities (TJ001).pdf, here.
- Mazzeo DKT 36 D Citation of Supplemental Authorities (TJ001).pdf, here.
- Mazzeo DKT 38 D Post-Argument Supplemental Brief on Plain Error (TJ001).pdf, here.
- Mazzeo DKT 43 US Post-Argument Supplemental Brief on Plain Error (TJ001).pdf, here.
- Mazzeo DKT 46 D Post-Argument Supplemental Reply Brief on Plain Error (TJ001).pdf, here.
For a recent statement of the need for having a notetaker when federal prosecutors interview, see the memorandum of David W. Ogden, Deputy Attorney General, titled "Guidance for Prosecutors Regarding Criminal Discovery, dated 1/4/10, as updated 9/9/14, here. The pertinent portion is here (footnotes omitted):
8. Information Obtained in Witness Interviews: Although not required by law, generally speaking, witness interviews should be memorialized by the agent. Agent and prosecutor notes and original recordings should be preserved, and prosecutors should confirm with agents that substantive interviews should be memorialized. When a prosecutor participates in an interview with an investigative agent, the prosecutor and agent should discuss note-taking responsibilities and memorialization before the interview begins (unless the prosecutor and the agent have established an understanding through prior course of dealing). Whenever possible, prosecutors should not conduct an interview without an agent present to avoid the risk of making themselves a witness to a statement and being disqualified from handling the case if the statement becomes an issue. If exigent circumstances make it impossible to secure the presence of an agent during an interview, prosecutors should try to have another office employee present. Interview memoranda of witnesses expected to testify, and of individuals who provided relevant information but are not expected to testify, should be reviewed.
a. Witness Statement Variations and the Duty to Disclose: Some witnesses’ statements will vary during the course of an interview or investigation. For example, they may initially deny involvement in criminal activity, and the information they provide may broaden or change considerably over the course of time, especially if there are a series of debriefings that occur over several days or weeks. Material variances in a witness’s statements should be memorialized, even if they are within the same interview, and they should be provided to the defense as Giglio information.
b. Trial Preparation Meetings with Witnesses: Trial preparation meetings with witnesses generally need not be memorialized. However, prosecutors should be particularly attuned to new or inconsistent information disclosed by the witness during a pre-trial witness preparation session. New information that is exculpatory or impeachment information should be disclosed consistent with the provisions of USAM §9-5.001 even if the information is first disclosed in a witness preparation session. Similarly, if the new information represents a variance from the witness’s prior statements, prosecutors should consider whether memorialization and disclosure is necessary consistent with the provisions of subparagraph (a) above.
c. Agent Notes: Agent notes should be reviewed if there is a reason to believe that the notes are materially different from the memorandum, if a written memorandum was not prepared, if the precise words used by the witness are significant, or if the witness disputes the agent’s account of the interview. Prosecutors should pay particular attention to agent notes generated during an interview of the defendant or an individual whose statement may be attributed to a corporate defendant. Such notes may contain information that must be disclosed pursuant to Fed.R.Crim.P. 16(a)(1)(A)-(C) or may themselves be discoverable under Fed.R.Crim.P. 16(a)(1)(B). See, e.g., United States v. Clark, 385 F.3d 609, 619-20 (6th Cir. 2004) and United States v. Vallee, 380 F.Supp.2d 11, 12-14 (D. Mass. 2005).DOJ also announced in a news release title "Attorney General Holder Announces Significant Policy Shift Concerning Electronic Recording of Statements," dated 5/22/14 (as updated 9/15/14), here, that interviews of persons in federal custody (under Miranda, inherently coercive) must be electronically recorded. There are exceptions, but the concept that relying on notes alone is problematic in such federal custody settings. Of course, noncustodial interviews (such as CI interviews of the type involved in Mazzeo) are also problematic. The new policy for custodial interviews is for video recording and that may not be feasible for noncustodial hearings (such as involved in Mazzeo), but certainly audio recordings are possible and could substantially contribute to the search for truth in this area. That same notion would apply to proffer sessions before federal prosecutors as well because they can be quite coercive. (I could recount a war story here, but forego in order to keep this already long blog to a readable length.)