Monday, November 6, 2017

Seventh Circuit Reverses Conviction in Tax Case Presided Over by Judge Posner (11/6/17)

United States v. El-Bey, 2017 U.S. App. LEXIS 20897 (7th Cir. 2017), here, is interesting because (i) it is a tax case, (ii) the Seventh Circuit reverses the conviction for improper remarks of the trial judge, and (iii) the trial judge was Richard Posner, then a Seventh Circuit judge designated as trial judge for the case.

Many -- but I hope, not too many -- readers of this blog might ask, so who is Judge Posner? His Wikipedia page is here.  He is generally considered a giant in the law because of his many judicial and extrajudicial contributions over a long period of time -- from his appointment to the Seventh Circuit in 1981 through his retirement in 2017.  In the law courses I formerly taught on Federal Tax Procedure and Federal Tax Crimes, I routinely required students to read some Judge Posner opinions because he is so articulate, moves quickly to the point and presents his reasoning so well.  He is not uncontroversial, though.  And this case shows him not at his best, but I believe it is an outlier over a very long and distinguished career.  (By the way, Judge Posner is a rare appellate judge who actually tried cases from time to time and for that, in my estimation, he is to be greatly commended; appellate judging is a lot different than trial judging; I am not sure that appellate judges always appreciate the dynamics of trying a case where there are so many opportunities for mistakes by the judges and the lawyers; trial judges make dozens, sometimes hundreds, of decisions, large and small, every day in a trial and often cannot slow down the course of trial to craft the best decision.)

In El-Bay, the defendant was charged with mail fraud and failse claims arising from false tax returns claiming $1.8 million in refunds, of which he received $600,000.  Defendant represented himself at trial and was a difficult litigant.  Defendant apparently pushed Judge Posner past his snapping point, causing Judge Posner to say some inappropriate things that suggested to the jury that defendant was dishonest and lacked credibility, thus denying defendant a fair trial.  Hence, the Seventh Circuit panel (Judges Wood, Manion and Williams) reversed in a per curiam opinion (meaning the author is not named).  The key discussion in the opinion is (footnote omitted):
It is clear from the transcript of the trial court proceedings that El-Bey was a difficult litigant. He filed numerous irrelevant motions, disregarded court instructions, and often inappropriately interrupted the district court to express disagreement and dissatisfaction. Nonetheless, we agree with El-Bey that the district court's remarks during cross-examination of the government's first witness conveyed bias regarding his dishonesty or guilt. The district court interrupted El-Bey at the beginning of his cross-examination, stating, "Look, paying taxes is not voluntary." When El-Bey noted that he was only reading what the document stated, the district court remarked "Come on"—a statement "laced with skepticism." United States v. Martin, 189 F.3d 547, 554 (7th Cir. 1999). The district court continued with further remarks in the presence of the jury reflecting upon El-Bey's dishonesty or guilt, stating, "You don't pay your tax, you go to jail," and "I'm going to kick you out if you keep on with this nonsense." While the government contends that the district court's statements were merely meant to remind El-Bey that his sovereign citizen views were not permitted at trial, the purpose of the comments cannot eliminate the bias conveyed to the jury by the remarks here. The court's statements that one who does not pay taxes goes to jail and that El-Bey was acting in a nonsensical manner indicated bias about El-Bey's guilt or honesty to the jury. Contra id. (no bias in district court's questioning of witness where "district judge was firm, but not harsh or abusive in any way [and] [t]he questions were not laced with skepticism and they gave no indication as to the judge's thoughts about [the defendant's] honesty or dishonesty"). 
We also find that these comments seriously impaired El-Bey's credibility as a pro se defendant in the eyes of the jury. "Federal district judges are busy people and they get irritated when lawyers waste their time and that of jurors, witnesses, and other lawyers. It is unfortunate, but it is inherent in an adversary system, that the cost of this irritation is likely to be borne primarily by the [defendant]." Cooper v. Casey, 97 F.3d 914, 919 (7th Cir. 1996). Reversible error occurs "when the judge so impairs the lawyer's credibility in the eyes of the jury as to deprive the client of a fair trial." Id. While a district court "must often confront courtroom behavior by attorneys which is deserving of censure, ... the judge's role in the exchange [here] went far beyond the correction of an alleged misstatement." United States v. Spears, 558 F.2d 1296, 1298 (7th Cir. 1977). The district court's admonishments of El-Bey and threat to eject him from court occurred in the presence of the jury and "so discredited him in the eyes of the jury that he could not have remained an effective spokesman for hi[mself.]" Id. (finding reversible error where district court admonished defense counsel by stating counsel's statements during closing were "absurd and bordering upon a lie" and threatening to fine counsel for contempt in the presence of the jury). This harm was exacerbated by the fact that the admonishment was not directed toward defense counsel and indirectly imparted upon the defendant, but, instead, was aimed directly at the defendant while he was exercising his constitutional right to defend himself.
Next, we agree with El-Bey's contention that the comments were prejudicial. We note that although the government argues on appeal that no prejudice occurred, it expressed concern to the district court during trial that the comments "may have been potentially prejudicial to the defendant." We evaluate the district court's comments "in the context of the course of the trial." Curry, 538 F.3d at 728. Here, the district court's comments at the beginning of trial were not "inadvertent, isolated and ambiguous." Id. Instead, the jury heard several remarks, at different parts of the trial, that conveyed that El-Bey was guilty or dishonest. As detailed above, the court made comments in the presence of the jury during cross-examination of the first government witness which conveyed that El-Bey had committed a crime. The threat to kick El-Bey out of court also seriously impacted his credibility in the eyes of the jury. The jury was present throughout the entire exchange, and the district court's remarks were "of a sort most likely to remain firmly lodged in the memory of the jury and to excite a prejudice which would preclude a fair and dispassionate consideration of the evidence." Quercia v. United States, 289 U.S. 466, 472, 53 S. Ct. 698, 77 L. Ed. 1321 (1933) (finding prejudicial error in district court's remarks to the jury that defendant's hand wiping during his testimony "is almost always an indication of lying"). The jury's service that day ended with the court's threats to eject El-Bey from the courtroom fresh on the jurors' minds, as it was the last exchange of the day. (We do not intend to imply that reprimanding El-Bey for inappropriately introducing his sovereign citizen defense was unwarranted. "However, any such reprimand or censure should have been made outside the presence of the jury." Spears, 558 F.2d at 1298.) 
In addition to the remarks made during cross-examination of the first government witness, El-Bey's guilt was again conveyed during the oral jury instructions to the jury at end of trial. At the end of its oral jury instructions, in the course of explaining that there were six false claims charged and two mail fraud charges, the district court stated to the jury: 
The two mail fraud[s] being the two $300,000 checks that he, Mr. El Bey, received; and the four false claims being the $300,000 refunds that he sought but that the Internal Revenue Service didn't give him, so that they were attempts. Now, my mistake was that the first two counts which are for the two checks he received, they are also being charged as false claims. So they are mail fraud because through use of the mail, you know, he got all this money, but they are also—they are also false claims. (emphasis added). 
But rather than clarifying what El-Bey was charged with, the language conveyed to the jury that El-Bey was guilty by concluding that El-Bey's receipt of the checks and money made him guilty of mail fraud and making false claims. 
El-Bey also points to another oral jury instruction, when the court sought to explain to the jury that the IRS was an innocent victim: 
[I]f maybe, as I say, they were better funded, better organized, better administered the Internal Revenue Service would not have given Mr. El Bey anything, that doesn't bear on his guilt or innocence. Because, I mean, there are a great many crimes that would not occur if the victim were more cautious, right? So if you go to the toughest neighborhood in Chicago and decide to take a stroll at 3:00 a.m. and you're attacked by someone, beaten up, you're a fool for having been there and exposed yourself to this person. But the person who attacked you is guilty of a crime. So you don't blame the victim for the crime, even if you think the victim was careless. 
We agree with El-Bey that comparing the fraud crimes El-Bey was charged with to a violent attack on an individual could be seen as an insinuation to the jury that El-Bey's actions were as reprehensible as those of a violent and brutal criminal. 
"Judicial comments in the presence of the jury are subject to special scrutiny because of the recognized fact that 'the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling." United States v. Dellinger, 472 F.2d 340, 386 (7th Cir. 1972) (quoting Quercia, 289 U.S. at 472). Here, the district court's "deprecatory and often antagonistic attitude toward the defen[dant] is evident in the record from the very beginning. It appears both in the presence and absence of the jury." Dellinger, 472 U.S. at 386.1 "Most significant, however, were remarks in the presence of the jury, deprecatory of [El-Bey] and [his] case." Id. at 387. These statements implied that El-Bey "was inept, bumptious, or untrustworthy, or that his case lacked merit." Id. Cumulatively, the comments "telegraphed to the jury the judge's contempt for the defen[dant,]" id., and seriously prejudiced El-Bey. See also Spears, 558 F.2d at 1298 ("[W]e think the trial judge 'lost his cool,' departed from the equanimity of spirit required of him, and seriously prejudiced the defense."). 
But the government continues, arguing that even if the court's remarks were prejudicial, its curative instruction at the beginning of the second day of trial and at the beginning of its oral instructions to the jury resolved any prejudice. As the government notes, "jurors are presumed to follow limiting and curative instructions[,]" United States v. Smith, 308 F.3d 726, 739 (7th Cir. 2002), and we have previously found such instructions reduce the risk of any prejudice the court may have conveyed. See United States v. McCray, 437 F.3d 639, 644 (7th Cir. 2006). Here, the district court explained to the jury on the second day that it shouldn't "worry about the exchanges" and shouldn't "feel any hostility to Mr. El Bey just because I got annoyed occasionally." However, during this instruction, the court read portions of the previous day's exchange back to the jury, reminding the jury, for example, of the court's comment that "If you don't pay taxes you go to jail." While we understand the attempt to mitigate the effect of the previous day's comments and to clarify that El-Bey was not charged with tax evasion, reading the transcript back to the jury meant the jury now heard the comments from the judge a second time. 
In its final instructions, the court gave the following instruction: "[Y]ou shouldn't think that I have expressed or taken any view on this. I respect your domain, which is to issue the verdict, and I'm not trying to influence you in any way." But it followed this remark by comparing El-Bey to a violent assailant, and a "definite and concrete assertion of fact, which [it] had made with all the persuasiveness of judicial utterance[,]"Quercia, 289 U.S. at 472, that El-Bey's actions constituted mail fraud and false claims. This assertion of the district court's view that El-Bey was guilty of the charges was made shortly before the jury began its deliberations. Cf. United States v. Donato, 99 F.3d 426, 435, 321 U.S. App. D.C. 287 (D.C. Cir. 1996) (per curiam) (citation omitted) (negative comments by judge revealed "such a high degree of ... antagonism as to make fair judgment impossible"). 
Although there is more than enough evidence of El-Bey's guilt, "we must ... conclude that the unfairness in the trial requires reversal. Any other holding would constitute the adoption of the principle that a defendant the court thinks is obviously guilty is not entitled to a fair trial." Spears, 558 F.2d at 1297.

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