Monday, November 11, 2019

Net Worth, Corroboration of Defendant's Statements and Corpus Delecti (11/11/19)

One of my weekly automated searches picked up this recent case quote from United States v. Tanco-Baez, Nos. 16-1322, 16-1323, 16-1563, 2019 U.S. App. LEXIS 32910, at *15-16 (1st Cir. Nov. 4, 2019), here (cleaned up; emphasis supplied):
The Court recognized that the corpus delicti for some offenses -- unlike the corpus delicti for, say, homicide -- is not "tangible." Smith, 348 U.S. at 154. For example, according to the Court, tax evasion is an offense that lacks a "tangible" corpus delicti, id., because the offense results in no "physical damage to person or property," The Court then explained that, for offenses of that sort, evidence that would tend to establish the corpus delicti "must implicate the accused," even though evidence that would tend to establish the corpus delicti of offenses that result in physical damage or injury -- such as evidence of the murdered body in a homicide case -- need not.
Since I don't recall dealing with the concept of corpus delecti before in my tax crimes adventures or the cited Smith case, I thought I would chase down Smith, which may be viewed in it glory here.

In Smith, the Court opens with this statement:  "This is the third of the net worth cases and the first dealing with the Government's use of extrajudicial statements made by the accused."  Tax Crimes fans know (or should know) all about the net worth method for proving taxable income and thus tax due and owing, a key element of tax evasion.  (The net worth method is also used in civil cases to establish tax due.)  I had encountered the other two cases of this net worth trilogy, Holland v. United States, 348 U.S. 121 (1954), here, and Friedberg v. United States, 348 U.S. 142 (1954), here.  I am sure many tax crimes fans had encountered Holland and Friedberg.  So, having not yet consciously encountered Smith, I thought I would educate myself.

I found out that the real reason Smith does not arise prominently in a tax crimes practice is that the key issue it resolved was not a tax issue, but a general criminal issue having to do with the so-called corroboration rule for a defendant's out of court admissions of a crime.  Thus, Smith is prominently linked with the corroboration rule cases; indeed, it is linked with a "trio" of corroboration cases decided the same day.  As the First Circuit in Tanco-Baez said:
But, while the corroboration rule initially served this important but "extremely limited function," Smith, 348 U.S. at 153, the Supreme Court expanded on it in a trio of cases decided on the same day in 1954. See Smith, 348 U.S. 147; Opper v. United States, 348 U.S. 84 (1954); United States v. Calderon, 348 U.S. 160 (1954).
The background for Smith is that, in the application of the net worth method, the agent received statements from Smith as to opening net worth but then, through further investigation, increased the opening net worth.  In the net worth method, it is better for the defendant (or taxpayer in a civil case) to have a higher opening net worth, so the agent's further investigation helped Smith, although it still indicated enough income in the convicted years to convict for tax evasion.  In effect, the agent’s further work “corroborated” the statements as to components of the opening net worth made by Smith.

This still does not have the context of the other two contemporaneous corroboration cases of the development of the law since Smith and the two other cases.  The Court in Tanco-Baez covers that quite nicely, so I won’t plow that ground here for those wanting to get further into the issue.  I do offer this excerpt, rather extensive to tee up the topic in its current context:
"It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused." Wong Sun v. United States, 371 U.S. 471, 488-89 (1963). This "corroboration rule" initially was intended to mitigate the risk that a false confession would lead to a conviction for a crime that not only had not been committed by the defendant but also that had not been committed by anyone else. See Smith v. United States, 348 U.S. 147, 153-54 (1954). 
That risk was evident from early English and American cases. Defendants in some of them had been sentenced to death for homicide solely on the basis of their confessions of guilt, but the supposed victims had then appeared, post-sentencing, "very much alive." David A. Moran, In Defense of the Corpus Delicti Rule, 64 Ohio St. L.J. 817, 826-31 (2003). 
Courts thus began, in cases involving an offense that, like homicide, involved physical damage or injury, to demand evidence independent of the defendant's confession of what is known as the corpus delicti — encompassing both an injury and a criminal cause for that injury. Only with such evidence could a confession to that offense be considered corroborated. And thus, only with such evidence could a conviction be deemed adequately supported by the evidence if the sufficiency of the proof depended upon the confession. 
In this way, courts ensured that there would at least be independent proof of a crime in place before the accused could be convicted of committing it, even if there were no proof apart from the defendant's confession of the defendant's culpability for that crime. So, for example, under this corroboration rule, a defendant's confession to a homicide could not ground the conviction for that offense unless the government also put forth adequate "tangible evidence of the death of the supposed victim." Wong Sun, 371 U.S. at 489 n.15. 
But, while the corroboration rule initially served this important but "extremely limited function," Smith, 348 U.S. at 153, the Supreme Court expanded on it in a trio of cases decided on the same day in 1954. See Smith, 348 U.S. 147; Opper v. United States, 348 U.S. 84 (1954); United States v. Calderon, 348 U.S. 160 (1954). In so elaborating the rule's scope, the Court broadened it in various ways, some of which have direct bearing on the issues that are before us in this appeal. 
First, the Court explained in this trio of cases that, although the corroboration rule was aimed at ensuring that a defendant could not be convicted of committing a crime based simply on his confession when no independent evidence indicated that a crime had been committed at all, the rule also reflected broader concerns about the reliability of certain statements by the accused. Specifically, the Court described the rule as reflecting the fact that confessions may be unreliable because they are coerced or induced or because, even if not involuntarily made, they might "reflect the strain and confusion attending [an accused's] predicament rather than a clear reflection of his past." Smith, 348 U.S. at 153. The Court further explained that the requirement that a conviction for a crime like homicide must rest on more than an uncorroborated confession by the accused reflects the fact that the average juror is not familiar with the criminal justice system's long history of false confessions. Id. 
These observations provided background for the Court's clarification in this trio of cases that the scope of the corroboration rule was not limited to "confessions." To be sure, the Court explained, a confession is a "complete and conscious admission of guilt," Opper, 348 U.S. at 91, and the corroboration rule historically had been applied to such confessions by the accused. But, the Court held in these cases that the corroboration rule was no less applicable to certain admissions by the accused, even though such statements by the accused are not like a confession because they fail to "admit[ ] to all the elements of the offense," Smith, 348 U.S. at 154, and may merely "explain actions rather than admit guilt," Opper, 348 U.S. at 91. 
The Court described the types of admissions to which the corroboration rule applied as "statements of the accused out of court that show essential elements of the crime . . . necessary to supplement an otherwise inadequate basis for a verdict of conviction." Opper, 348 U.S. at 91. After all, the Court elaborated, these "admissions have the same possibilities for error as confessions." Id. Thus, the Court explained, when an accused's "admission is made after the fact to an official charged with investigating the possibility of wrongdoing, and the statement embraces an element vital to the Government's case," it must be corroborated, just as a confession must be, to provide the necessary evidentiary support to permit a conviction to survive a sufficiency-of-the-evidence challenge. Smith, 348 U.S. at 155. 
The Court emphasized, moreover, that a statement by the accused of the sort just described is subject to the corroboration rule even when the admission is not to "one of the formal `elements' of the crime" but instead only to "a fact subsidiary to the proof of these `elements,'" Smith, 348 U.S. at 155, that is "essential" to the proof of an element, Opper, 348 U.S. at 90. "It is the practical relation of the statement to the Government's case which is crucial," the Court explained, "not its theoretical relation to the definition of the offense." Smith, 348 U.S. at 155. 
In light of this precedent, Cepeda's statement in his interview with the law enforcement agent about the length and nature of his drug use must be corroborated if it is to be relied upon to support his conviction against the sufficiency-of-the-evidence challenge that he brings. For while that admission was not a strict confession, it was made "after the fact to an official charged with investigating the possibility of wrongdoing, and the statement embrace[d] an element vital to the Government's case," id., given that the statement admits to a fact that is vital to the government's effort to prove an element of the offense for which he was convicted — namely, the "unlawful user" element. 
Second, the Court in this trio of 1954 cases clarified the corroboration rule in another respect that bears on Cepeda's sufficiency-of-the-evidence challenge. This clarification concerned the types of offenses to which the corroboration rule applied. 
The Court recognized that the corpus delicti for some offenses — unlike the corpus delicti for, say, homicide — is not "tangible." Smith, 348 U.S. at 154. For example, according to the Court, tax evasion is an offense that lacks a "tangible" corpus delicti, id., because the offense results in no "physical damage to person or property," Wong Sun, 371 U.S. at 489 n.15. The Court then explained that, for offenses of that sort, evidence that would tend to establish the corpus delicti "must implicate the accused," even though evidence that would tend to establish the corpus delicti of offenses that result in physical damage or injury — such as evidence of the murdered body in a homicide case — need not. Smith, 348 U.S. at 154. 
The Court thus confronted a choice about whether to apply the corroboration rule to this class of offenses. As the Court described that choice, it could either "apply[ ] the corroboration rule to [these] offense[s] and accord[ ] the accused even greater protection than the rule affords to a defendant in a homicide prosecution, or . . . find[ ] the rule wholly inapplicable because of the nature of the offense." Id. (internal citations omitted). 
In the end, the Court chose the former path. Id. And, it did so even though it recognized that it was thereby necessarily providing a "broader guarantee" to defendants in cases of crimes lacking a "tangible corpus delicti" than had been granted to defendants accused of crimes that had one. Id. The Court explained that this "broader guarantee" resulted precisely because the substantial independent evidence needed in such cases to corroborate the admission or confession — and thus to ensure that a crime had been committed at all — necessarily would also be evidence "implicat[ing] the accused." Id. 
The Court eventually summarized the corroboration rule as it had been elaborated in this trio of 1954 cases in dicta as follows: "[w]here the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable." Wong Sun, 371 U.S. at 489 n.15. And, "in such a case," the Court went on, "[t]here need . . . be no link, outside the confession, between the injury and the accused who admits having inflicted it." Id.; see also Smith, 348 U.S. at 153-54 (recognizing that for crimes producing physical injuries, "[o]nce the existence of the crime was established . . . the guilt of the accused could be based on his own otherwise uncorroborated confession"). 
But, by contrast, the Court further explained in that dicta, "where the crime involves no tangible corpus delicti," then "the corroborative evidence must implicate the accused in order to show that a crime has been committed." Wong Sun, 371 U.S. at 489 n.15 (second quotation quoting Smith, 348 U.S. at 154). For, in a case of that type, the only evidence that could corroborate the fact that a crime was committed at all — according to the Court — is evidence that tends to prove that the defendant committed it. Smith, 348 U.S. at 154. And so, the Court has made clear that, at least in cases of that type, "[a]ll elements of the offense must be established by independent evidence or corroborated admissions." Id. at 156. 
The Court's guidance in the trio of 1954 cases about the scope of the offenses to which the corroboration rule applies is of direct relevance to Cepeda's sufficiency-based challenge to his conviction. That is so because the conviction that he challenges under the corroboration rule is for a status-based, firearms possession offense. Thus, like the crime of tax evasion at issue in Smith, it is a crime that has no "tangible corpus delicti." Wong Sun, 371 U.S. at 489 n.15 (emphasis added) (citing Smith, 348 U.S. at 154). In consequence, even though any evidence that would tend to establish the corpus delicti for that offense "must implicate" Cepeda in its commission, Smith, 348 U.S. at 154, the government must corroborate the admission that he made about the nature and duration of his drug use if it wishes to rely on that admission to support the "unlawful user" element of the status-based firearms possession offense of which he was convicted, see id. at 154-56. 
Finally, the Court in this trio of cases addressed one other issue that bears on Cepeda's evidentiary sufficiency challenge to his conviction. That issue concerns the means through which the government may corroborate an admission in a case in which there is no tangible corpus delicti for the underlying offense. 
Notably, the Court made clear in the trio of 1954 cases that "the corroborative evidence [for the admission] need not be sufficient, independent of the statements, to establish the corpus delicti." Opper, 348 U.S. at 93. Thus, there is no requirement for the government to put forth "substantial evidence . . . which tends to establish the whole of the corpus delicti" directly. Id. (emphasis added). For example, corroboration may be shown even if the "direct corroborative evidence . . . tends to establish . . . one element of the offense" and the other elements are proven "entirely by independent evidence," so long as the evidence as a whole, including any corroborated admissions, is "sufficient to find guilt beyond a reasonable doubt." Id. at 93-94 (emphasis added). 
The Court also made clear that, while there must be "substantial independent evidence that the offense has been committed," that substantial independent evidence may include evidence that "merely fortifies the truth of the confession" or admission. Smith, 348 U.S. at 156. Thus, evidence that would not, absent the confession or admission, "independently establish[ ] the crime charged," may nonetheless corroborate the admission or confession. Id. For that reason, the independent evidence that corroborates the essential fact that has been admitted may take the form of evidence that "bolster[s] the [admission] itself and thereby prove[s] the offense `through' the statements of the accused." Id. (emphasis added). 
The Court had no occasion in Opper, Smith, and Calderon to address in full, however, the types of independent evidence that could be relied upon to bolster such an admission, such that the offense may be proved through that corroborated admission. The Court was asked in each of those cases to find the admission or confession at issue corroborated only based on evidence that tended to show that the content of the relevant portions of the admission or confessions was actually true, or that the alleged crime had actually occurred. Smith, 348 U.S. at 157-59; Opper, 348 U.S. at 93-94; Calderon, 348 U.S. at 164-168. The Court had no need, therefore, to address when or whether independent evidence that directly tended to confirm only admitted facts other than the "vital" fact in dispute could render trustworthy the admission of that essential fact, notwithstanding the absence of any independent evidence that directly tended to establish it.[n.1]
    [n.1] In Smith, for instance, the government successfully corroborated admissions of the defendant's net worth — a key fact in his prosecution for tax evasion — both by "substantiating [his] opening net worth directly" and by presenting "independent evidence . . . which tends to establish the crime of tax evasion." 348 U.S. at 157-59. The government thus did not attempt to argue that — and, in consequence, the Court had no occasion to consider whether — the net worth admission was trustworthy because, for example, other of his financial disclosures were shown to be accurate. Stating that corroboration can "prove the offense `through' the statements of the accused," Smith, 348 U.S. at 156, the Court cited by "cf." and without explanation to Parker v. State, 88 N.E.2d 556 (Ind. 1949), reh'g denied, 89 N.E.2d 442 (Ind. 1950), in which the Indiana Supreme Court held that "the corroboration required is not of incidental facts stated in the confession but that the offense charged had been committed." Parker, 88 N.E.2d at 558. In other words, the corroboration could not merely tend to support the credibility of the confession if it did not also tend to show the existence of a crime. Id. at 559-60.

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