Limitations on Cross-Examination of Cooperating Co-Conspirators as Sixth Amendment Violation? (11/19/16)

In United States v. Williams, 2016 U.S. App. LEXIS 20215 (11th Cir. 2016) (unpublished), here. the defendant was convicted for "conspiracy to defraud the United States, wire fraud, aggravated identity theft, and wrongful disclosure of identifiable health information"

Briefly stated, Williams's convictions stem from her involvement in a conspiracy to file fraudulent tax returns. Through her employment as a receptionist at a doctor's office, Williams had regular access to patients' personal identifiable information. In furtherance of the conspiracy, Williams stole patient information to be used in [*2]  preparing fraudulent income tax returns and directed the tax refund checks to be mailed to Williams's current and former addresses.

The defendant raised several arguments on appeal.  I focus here on the first argument, that the trial court's limitations upon her attorney's ability to cross-examine cooperating co-conspirators violated her Sixth Amendment confrontation rights.  I do this principally to call readers' attention to a significant split in the Circuits on that issue and that failure to properly preserve the issue at trial can permit the appellate court to review under the plain error standard to avoid deciding the issue, as it did in this case.  I quote the entire section of the opinion on this issue:

On appeal, Williams first contends that the district court violated her Sixth Amendment confrontation rights by limiting her ability to cross-examine cooperating co-conspirators -- those who had agreed to testify for the government - - about the specific sentences they avoided or hoped to avoid by testifying against Williams. 

Because Williams raised no objection to the district court's ruling at trial and, instead, raises this argument for the first time on appeal, we review only for plain error. See United States v. Sosa, 777 F.3d 1279, 1294 (11th Cir. 2015). To demonstrate plain error, Williams "must show that there is (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings." See id. (quotation omitted). 

A criminal defendant has a right, under the Sixth Amendment, to confront witnesses against him. U.S. Const. amend. VI. "The main and essential purpose of confrontation is to secure for the defendant the opportunity of cross-examination." United States v. Baptista-Rodriguez, 17 F.3d 1354, 1366 (11th Cir. 1994) (alteration omitted). Still, a "defendant's right to cross-examine witnesses is not without limitation." Id. "Trial   judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about, among other things, confusion of the issues or interrogation that is repetitive or only marginally relevant." Id. at 1370-71. 

The district court committed no plain error in limiting Williams's cross-examination of the government's cooperating witnesses. Williams concedes on appeal that the circuit courts are split on this issue. n1 Given the disagreement among the circuits on this issue and the absence of controlling precedent from the Supreme Court or from this Court, Williams can demonstrate no plain error. See United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (because an error is "plain" only if the error is "clear under current law," it follows that "there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it.").
   n1 The First, Second, Fourth, Seventh, and Eighth Circuits have held that a district court's limitation on a defendant's ability to cross-examine cooperating co-conspirators constitutes no violation of the Confrontation Clause. Meanwhile, the Third, Fifth, and Ninth Circuits have made the opposite conclusion. For background, see United States v. Dimora, 843 F. Supp. 2d 799, 842-44 (N.D. Ohio 2012) (collecting cases).

Offshore Account Conviction Affirmed (9/10/15; 9/12/15)

In United States v. Hough, ___ F.3d ___, 2015 U.S. App. LEXIS 15973 (11th Cir. 2015), here, involving offshore accounts and related skullduggery, the Court starts its opinion as follows:

It may be, as the Downton Dowager bemoaned, that "[l]ie is so unmusical a word," n1 but it strikes the right note for some of the statements that Dr. Patricia Lynn Hough made in her tax returns.
   n1 Downton Abbey: Season 3, Episode 6 (Carnival Films Oct. 21, 2012).

Hough lost the case, but did obtain a limited remand for recalculation of the sentencing because of incomplete facts to support the tax loss calculation.

I will supplement this blog more detail and discussion on this opinion because it is very interesting.  But, I just don't have time to do that right now.

In the meantime, the following is a bullet point of key issues decided:

• The evidence was sufficient to permit the jury to conclude that there was a defraud / Klein conspiracy.
• The evidence was sufficient to permit the jury to conclude that the defendants filed false returns because, in part, she failed to report the foreign accounts on Schedule B.
• The district court did not abuse its discretion in the cross examination of expert witnesses and, in any event, if error, it was harmless.
• The district court did not err in admitting co-conspirator (her husband) statements because there was sufficient evidence of conspiracy.
• The district court did not make sufficient findings to support its tax loss determination -- specifically, it did not properly determine that the foreign entity was a partnership rather than an association taxable as a corporation.

There is some good stuff in each of those bullet  points.  More later.

The blog entry for the conviction is:  Another UBS Related Offshore Account Conviction (5/9/14; 5/12/14), here.

Addendum 9/12/15 5:00pm

The appellate briefs are linked here for viewing or download:

• Hough's opening brief, here.
• U.S. Answering brief, here.
• Hough's reply brief, here.

I supplement to add a discussion of just a couple of issues.

Kerr & Quiel - Denial of Post-Trial Motions - Installment #1 (8/19/13)

I have previously written on the convictions and pre-trial proceeding for Stephen Kerr and Michael Quiel.  I provide the blogs and links at the end of this blog.  Today, I write on the district court's rejection of their motions for acquittal or, alternatively, a new trial.  These types of motions are standard after a conviction.  They are usually denied.  The district court denied the motions here. See United States v. Kerr, 2013 U.S. Dist. LEXIS 116327 (D AZ 8/16/13), here.

The opinion is standard fare.  I write principally because of the range of issues presented and, for students at least, to introduce them to the issues.

The facts are:  The defendants were charged with conspiracy among themselves and Rusch, their attorney (the common count 1 of the indictment), tax perjury (relating to omission of income and false answer to the foreign account question on Schedule B) and FBAR violations.  Both defendants were acquitted of the conspiracy count.  Kerr was convicted of tax perjury and one FBAR violation. Quiel was convicted of the tax perjury charges but not the FBAR counts.

Testimony of Attorney; Attorney-client privilege.

This issue is introduced in my prior blog, titled Defendant Waives Attorney-Client Privilege by Asserting Reliance on FBAR Advice Defense (7/19/12), here.  Kerr first claimed that his and Quiel's acquittals of the conspiracy charge meant that the testimony of their lawyer, Rusch, was not admissible under the crime-fraud exception to the attorney-client privilege.  As you may have guessed (or have read in the earlier blogs), the attorney, Rusch, was their "lawyer" who helped orchestrate their machinations.  Rusch pleaded guilty earlier.  The problem with Kerr's first claim was that Rusch's testimony was not admitted under the crime-fraud exception.  Rather, it was admitted because the defendant's claimed reliance on counsel as a defense.

Kerr next claimed that the ground for admitting the lawyer's testimony -- Kerr's reliance on advice of counsel -- did not support the lawyer's testimony at trial.  The precise argument is not crisp to me, but as recited by the court it was:  "Kerr argues that the advice of counsel defense may waive the privilege "as to documents presented early on[,]" but does not waive the privilege regarding Rusch's testimony because the advice of counsel defense did not require Rusch to testify."  As articulated by the court, the problem was that there was no authority cited by Kerr for the proposition.  Certainly, the attorney-client privilege once waived is gone forever.  (This is different from the Fifth Amendment privilege which can be waived during the criminal investigation but asserted at any ensuing criminal trial.)  Kerr's claim as more refined was in effect that, although Kerr had noised about a reliance on counsel defense earlier in the proceedings, he did not actually make the defense at trial; hence, he argued, Rusch's testimony could not be justified on a reliance of counsel defense.  The problem, as found by the Court, is that Kerr indeed did assert the defense at trial:

This claim is inaccurate because Kerr presented this defense in both opening and closing arguments and requested and received a jury instruction encapsulating that defense. (See e.g. Doc. 325 at 124) ("Now this is their lawyer. This is a tax expert. They believe him. They rely upon this advice."); (Doc. 338 at 79) ("a very, very important jury instruction in the case . . . that's basically the instruction regarding the reliance on counsel"); (Doc. 287 at 35) (jury instruction for advice of counsel defense). Accordingly, the Court can find no error in the admission of Rusch's testimony, and such testimony will not be excluded when determining the sufficiency of the evidence under Rule 29(c)(2) or Rule 33(a).

Negative Inference from NonParty Alleged Co-Conspirator's Invocation of Fifth Amendment in a Civil Case (4/13/13)

Last week, in the class that Larry Campagna, here, and I teach on Tax Fraud at UH Law School Larry, a student asked about the assertion of the Fifth Amendment by a third party witness -- alleged to be a co-conspirator -- permits a negative inference against a party alleged to be a co-conspirator.  It is a good question, so I took a look and thought I would post my very brief research -- I have not chased this to the ground.

Of course, it is common-place in criminal cases that a nonparty co-conspirator's testimony can be used against a co-conspirator defendant.  The applicable Federal Rule of Evidence, Rule 801(d)(2)(E), here, so provides:

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: 

* * * * 

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and: 

* * * * 

(C) was made by a person whom the party authorized to make a statement on the subject; 

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or 

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.   

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

The Notes of the drafting Committee say: