Use Present Tense to Adopt Prior Statement or Is Hearsay; Insufficient Evidence for Money Laundering Count

United States v. Demmitt, No. 11-11120 (Feb. 1, 2013) (Stewart, Garza, Elrod)

The factual resume of the basis for a plea was impermissibly admitted hearsay. The witness did not admit on the stand that he made the statement and that it was true, so it was not adopted pursuant to Rule 801(d)(1). Instead, the prosecutor asked him, "did you swear that everything contained in the factual resume was true and correct?" The past tense flawed the witness’s adoption of the factual resume. The Government argued that its admission was harmless because it later became a prior inconsistent statement and would have been admissible at that point. The panel rejected this argument but found the error to be harmless due to the totality of the evidence adduced at trial.

The panel found that the use of the deliberate ignorance instruction was proper but that the Government did not present sufficient evidence to support one of Demmitt’s convictions for money laundering. Specifically, the Government did not prove that the wire transfer in question was designed to conceal the nature, location, source, ownership, or control of the fraudulently obtained money. The Government only proved that the wire transfer occurred and that it was connected to fraudulently obtained money. That conviction—one out of twenty-seven counts—was vacated.