Fourth Circuit Finds Prosecutor Abuse for Comment on Credibility and Questioning Character Witness but Affirms Anyway (3/27/13)

In United States v. Woods, 710 F.3d 195 (4th Cir. 2013), here, Woods "was convicted of numerous charges arising from a tax fraud scheme operated through his business of preparing income tax returns for private individuals."  He "was charged in a thirty-four count superseding indictment with willfully assisting the preparation and presentation of false and fraudulent tax returns to the Internal Revenue Service (IRS), in violation of 26 U.S.C. § 7206(2) (Counts 1-12); wire fraud, in violation of 18 U.S.C. § 1343 (Counts 13-22); identity theft, in violation of 18 U.S.C. § 1028(a)(7) (Counts 23-32); and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Counts 33-34). "  The gravamen of the Government's claims was that Woods:

added fraudulent information to clients' tax returns in order to qualify the clients for substantial tax refunds. For example, the evidence showed that Woods listed on the returns various educational, business, and travel expenses never incurred by his clients. Also, Woods falsely listed as dependents on several clients' tax returns the names of individuals who were patients of the VA, including their birth dates and social security numbers. The government's witnesses testified that Woods charged clients a $500 premium for each false dependent included on a tax return. The government maintained that Woods stole the names of the false dependents from the VA computer system, to which he had access through his employment as data warehouse manager.

This is a variation of a theme for abusive tax return preparers.

I address here two of the issues on appeal.  First, is the issue of whether the prosecutor improperly injected his belief as to witness -- the defendant's -- lack of credibility.  Second, is the issue of whether the Government improperly questioned a defense character witness by assuming Woods' guilt.  One problem in the case is that Woods represented himself, hence he was not meticulous at preserving objections and otherwise comporting himself with his best defense.

Prosecutor Comment on Credibility

As discussed above, the government maintained that Woods profited from his fraudulent scheme by charging clients a $500 premium for the inclusion of false dependent information on those clients' tax returns. Woods, however, testified that the $500 sums represented repayments of loans he had made to clients before they received their tax refunds. The part of the government's closing argument at issue here occurred when the prosecutor stated: 

So, Mr. Woods was right in the middle of getting these $500 payments for the fake dependents and he lied about it under oath when he testified this morning (emphasis added). 

According to Woods, this statement was improper and constituted reversible error. In response, the government argues that the statement was neither improper nor prejudicial. 

First, we disagree with the government's contention that this statement was proper. We long have rebuked government counsel for making inflammatory statements of this nature. Twenty years ago, in United States v. Moore, 11 F.3d 475 (4th Cir. 1993), we strongly criticized a prosecutor's statement during closing argument that the crime was "compounded when the defendant . . . comes into a federal court, takes the oath on the Bible, and lies." 11 F.3d at 480. We explained unequivocally that "it is highly improper for the government to refer to a defense witness as a liar," and further noted that we had "continually admonished the government not to engage in such conduct." Id. at 481 (emphasis added). Applying plain error review in Moore, we held that the prosecutor's statement was error that was plain, and we "strongly admonished [the government] to 'clean up its act,'" issuing the warning "hopefully for the last time." n3 Id. at 482 n.9; see also United States v. Weatherless, 734 F.2d 179, 181 (4th Cir. 1984) (noting that government counsel's multiple statements that the defendant was a liar and a "loser" fell "well beneath the standard which a prosecutor should observe"); cf. United States v. Loayza, 107 F.3d 257, 262 (4th Cir. 1997) ("It is improper for a prosecutor to directly express his opinion as to the veracity of a witness.") (quoting Moore, 11 F.3d at 481).
   n3 Despite the error in Moore, we nevertheless affirmed the district court's judgment because the error, although plain, had not affected the defendant's substantial rights. 11 F.3d at 482. In a more recent case in which the government called the defendant a liar, we found that plain error had not been established, and we declined to vacate the defendant's conviction. United States v. Powell, 680 F.3d 350 (4th Cir. 2012). 

Our reasoning in Moore applies with equal force in the present case, because "any statement of personal belief jeopardizes the integrity of the trial process." Loayza, 107 F.3d at 262 (quoting United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983)). When a prosecutor comments on the veracity of a witness, the prosecutor's statement presents two discrete risks: (1) of improperly suggesting to the jury that the prosecutor's personal opinion has evidentiary weight; and (2) of improperly inviting the jury to infer that the prosecutor "had access to extra-judicial information, not available to the jury." United States v. Moore, 710 F.2d 157, 159 (4th Cir. 1983). 

The gravity of these risks is amplified in the case of a criminal defendant exercising his constitutional right to testify in his own defense. Here, by stating that Woods lied under oath, the prosecutor suggested to the jury that Woods abused this constitutional right and attempted to manipulate the outcome of the trial to avoid being held responsible for his true actions. Based on these grave concerns, we reiterate our holding in Moore that error that is plain results when a prosecutor states that a defendant has lied under oath during trial, and we conclude that such an error occurred here. n4
   n4 We are not persuaded by the government's attempt on appeal to distinguish between a situation in which the prosecutor referred to the defendant as a "liar," and, as in this case, a situation in which the prosecutor stated that the defendant "lied."

Notwithstanding the prosecutor's error -- with which the Court was not pleased, the Court went on to find that the error, in the context of the overwhelming evidence in the case was not prejudicial sufficient to justify a new trial.  The Court said in conclusion:

In light of this volume of evidence of Woods' guilt, we conclude that, even in the absence of the prosecutor's improper statement, Woods' credibility would have been significantly weakened by the direct conflict between his testimony and that of the several government witnesses and the documentary evidence. Moreover, a considerable portion of the government's evidence directly contradicted Woods' theories of defense. Accordingly, although we strongly criticize the prosecutor's argument that Woods had lied under oath, we conclude that Woods' substantial rights were not violated and that this trial error does not warrant reversal of Woods' convictions.

Focus on footnote 4 above.  The footnote is cryptic as to precisely what the Government’s argument was.  Here is the argument from the Government's Brief (pp. 60-61):

In the instant case, government counsel did not call the defendant a liar.  Nor did counsel express his personal opinion about the defendant’s veracity.  Rather, counsel commented on the veracity of the defendant’s testimony which was clearly contradictory to the testimony of government witnesses and the documentary evidence that was admitted at trial.  Since the defendant’s credibility was in issue, it was permissible for government counsel to argue from the evidence that the defendant was untruthful.

While it is permissible for the prosecutor to argue that the jury can determine credibility and that defendant or any witness lied, the fine line is suggesting to the jury that the defendant or the witness lied.  This is a very fine line, because most jurors would know that the prosecutor would not have made the argument unless the prosecutor believe the defendant or witness lied, Still fine lines are important in the criminal arena.

Prosecutor Improper Questioning of Character Witness

Woods used character evidence -- his own testimony and that of a third party -- designed, he thought, to permit the jury to infer that his character was inconsistent with the charges made by the Government, thus permitting it to infer that he was not guilty.  That is the office of such character evidence under Rule 404(a).  In most cases, the problem is that it opens a door that would otherwise be closed to the Government by using contrary character evidence.  The Government cross-examined the character witness, but did so in a way that was improper.  How so?

The context on appeal was Woods' complaint that the district judge had not given a requested character evidence instruction.  The requested instruction was:

The defendant has offered evidence of his good general reputation for honesty and integrity. The jury should consider this evidence along with all the other evidence in the case in reaching a verdict.

This seems like a fairly usual instruction to the jury to explain the concept.  Normally, a defendant is entitled to such an instruction where the evidence properly raises the claim of character inconsistent with the charged crimes.

The Court of Appeals reviewed the character evidence, and found that the prosecutor had improperly questioned the third party witness.  Here is the discussion:

Woods testified that his "integrity has never been in question about my service and my dedication to my work . . . I've worked hard." Harrison agreed on cross-examination that Woods' integrity was never called into question regarding his work at the VA. Harrison also acknowledged in his testimony his previous statement that he would be surprised to learn that Woods had been abusing his position at the VA. 

On redirect examination, Harrison responded to the government's questions as follows: 

Q: Mr. Harrison, Mr. Woods asked you if his integrity had been called into question at work. Do you remember that? 

A: Yes. 

Q: Isn't it fair to say that the information that you've been presented with here calls into question the defendant's integrity? 

A: Yes. 

The district court ultimately declined to give Woods' proffered instruction on character evidence, finding that Harrison "equivocated" in his opinion of Woods' good character. 

The government contends on appeal that, by his testimony on redirect examination, Harrison retracted his opinion of the defendant's character and, thus, that Harrison's testimony did not support Woods' request that a character instruction be given to the jury. We disagree with the government's argument. 

The prosecutor's question, referenced above, effectively required that Harrison assume Woods' guilt for purposes of influencing the content of the character testimony, a practice clearly prohibited under our precedent. We repeatedly have held that "questions put to defense character witnesses that assume[ ] a defendant's guilt of the crime for which he was charged [are] improper." United States v. Mason, 993 F.2d 406, 408 (4th Cir. 1993) (citing United States v. Siers, 873 F.2d 747 (4th Cir. 1989)). Harrison's response to the improper question therefore did not provide a valid basis on which to refuse the proffered character instruction. 

Even assuming that Harrison's overall testimony was "equivocal" in its endorsement of Woods' character, it nevertheless remained the province of the jury to determine the credibility of his testimony and the proper weight to afford that particular evidence, including consideration of any inconsistencies in Harrison's testimony. See United States v. Dinkins, 691 F.3d 358, 387 (4th Cir. 2012) (noting that "it is the jury's province to weigh the credibility of the witnesses, and to resolve any conflicts in the evidence"). Therefore, we hold that the district court abused its discretion in refusing to give the requested character evidence instruction. 

We are unable to conclude, however, that Woods was prejudiced by the district court's refusal to give that instruction. As previously discussed, Woods' uncorroborated testimony was in direct conflict with substantial documentary and testimonial evidence. Comparing the defense evidence with the strength of the government's case, we firmly are convinced that the jury would have returned guilty verdicts with or without the requested character instruction. Therefore, the record before us, considered as a whole, fails to establish the required manifestation of prejudice. See Wellington, 717 F.2d at 938.