Error to Admit Testimony of Former Attorney Regarding Circumstances of Plea Agreement, and Bribery Loss Overly Speculative

United States v. Nelson, No. 12-30101 (Oct. 14, 2013) (Jones, Dennis, Higginson)

Nelson, the former mayor of a Louisiana town, appealed his corruption-related offenses.  The panel affirmed the conviction but vacated his sentence and remanded for resentencing.

Before deciding to go to trial, Nelson entered into a plea agreement with stipulated facts and a waiver that allowed the Government to use the factual stipulation against him if he failed to plead guilty.  After signing the plea agreement, Nelson switched attorneys and decided not to plead guilty.  At trial, the district court allowed the factual stipulation to be admitted as evidence and allowed Nelson’s former attorney to testify as to the circumstances of signing the plea agreement.  The Government argued that the former attorney’s testimony was necessary for them to show that the plea agreement was entered into knowingly and voluntarily.  Talk about prejudicial, right?

The panel affirmed the admission of the factual stipulation because Nelson “validly waived the exclusionary provisions of the plea-statement rules” (Federal Rule of Evidence 410).  The panel thought the former attorney’s testimony that Nelson understood and agreed with the plea agreement and only signed it after a lengthy discussion with his attorney, however, went too far and was protected by the attorney-client privilege.  The error was harmless, though, because it was cumulative of the factual stipulation.  The panel glosses over the fact that the factual stipulation was introduced into evidence through the former attorney, reasoning that it would have gone before the jury whether or not the former attorney testified.

The panel also affirmed the district court’s refusal to instruct the jury on the entrapment defense since Nelson did not present prima facie evidence that he lacked predisposition to the offense.  Specifically, Nelson did not present “a plausible innocent explanation for accepting the money and other gifts offered to him” by a person who was not an FBI undercover agent.  Also, the district court did not err by allowing hearsay as a co-conspirator statement because the witness and Nelson were at least co-conspirators in that they engaged in a common scheme to recruit a certain business (Cifer) to their towns, even if that joint venture was not necessarily unlawful.

With regard to the sentencing loss calculation, the district court calculated the bribery amount at $6,382,000.  The panel found that the district court erroneously valued the loss related to a letter Nelson wrote to the EPA to assist Cifer in obtaining a grant and a letter he wrote to private investors expressing his support of Cifer.  The district court calculated the loss as $4 million and $2 million, respectively.  The panel disagreed with the methodology of calculating the loss to be the total possible value of the grants based on Nelson’s written support of Cifer to receive those grants.  “A defendant’s false statement in seeking government benefits is insufficient to render him accountable for all benefits received or intended to be received.”  The panel also pointed out that “a defendant should not be held accountable for the total amount of [government] benefits obtained, when some portion of that benefit would have been obtained absent the fraudulent conduct,” and that “the expectation of receiving a ‘substantial’ amount of money is insufficiently specific to base a calculation of intended loss.”  The panel remanded to the district court to determine the bribery amount related to those two letters but suggests that, if the amount of loss cannot reasonably be determined, that it may be more appropriate to use “the gain that resulted from the offense” in accordance with the § 2B1.1 commentary—e.g., the amount Nelson received for writing the EPA letter: $10,000.   The panel found that the district court had sufficient evidence, however, to value Nelson’s expected benefit from the kickback scheme at $250,000.

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.

Child Pornography Distribution Conviction Reversed, On Plain Error Review, Because Key Evidence Was Admitted Without Foundation

United States v. Baker, No. 06-40757 (5th Cir. July 30, 2008) (Jolly, Clement, Owen)

It's not often that you see a conviction reversed because of evidentiary error, much less on plain error review. But that's exactly what happened to one of the four child pornography counts of which Baker was convicted, all because the Government failed to lay the proper predicate for admission of the evidence it relied on to prove a distribution charge.

The story began when Yahoo notified authorities that someone had posted forty-six images of child pornography on a group web site hosted by Yahoo. The ensuing investigation revealed that the images were posted from e-mail and IP addresses belonging to Baker. Subsequent searches of computers and diskettes seized from Baker's home and office turned up hundreds of images of child pornography. All of this led, of course, to Baker's indictment "on federal charges based on 18 U.S.C. §§ 2252 and 2252A for (1) distributing in interstate commerce forty-six images of minors engaging in sexual conduct, (2) receiving by means of a computer forty-six images of minors engaging in sexual conduct that had been transported in interstate commerce, (3) receiving by means of a computer more than 600 images of minors engaging in sexual conduct that had been transported in interstate commerce, and (4) possessing more than 600 images of child pornography that had been transported in interstate commerce."

At trial, the Government introduced a couple of exhibits relevant to the appeal: 1) a report from the National Center for Missing and Exploited Children containing file names of the forty-six images found on the website (and presumably identifying them as pictures of actual children, although the opinion doesn't say), but not the images themselves, and 2) "a three-ring binder containing printouts of forty-six images identified by filename in the full NCMEC report and stored in electronic format on a disc that accompanied that report." Baker objected to admission of the report, on the ground that the Government had not laid the proper predicate for its admission. He did not make the same objection to the admission of the binder. The district court admitted both exhibits, and Baker was convicted of all four charges.

On appeal, Baker argued that his conviction on all four counts should be reversed because the district court erred in admitting the NCMEC report and binder, for several reasons. The court only addressed one of those reasons: the lack of foundation for the exhibits. Reviewing Baker's objection to the report for abuse of discretion, and his objection to the binder for plain error, the court agreed that his conviction for distribution must be reversed.

The Government introduced both exhibits through an investigator from the Texas Attorney General's office. There was no evidence that the investigator had any personsal knowledge of how the report was prepared, and "[n]o other witness or document in evidence vouches for the source, accuracy, or circumstances surrounding preparation of [the report] or of the disc from which [the binder] was derived." Also, the Government did not brief, or even mention, the applicability of Rules 901 and 902 (concerning authentication) to the NCMEC report. Thus,

[i]n light of the record as a whole, we conclude that the district court erred by admitting [the report] over Baker’s objection that no foundation or predicate was offered. Although the issue is a close one, we cannot confidently say that this error was harmless. [The report] contains two lists of file names corresponding to images that Baker allegedly uploaded to Yahoo; it also states that the listed images “appear to contain child pornography.” The jury could have inferred from [the report] that Baker uploaded child pornography to Yahoo. In fact, [the report] was the only evidence showing that Baker uploaded child pornography to the Internet; [the binder] contained photographs of child pornography, but the photographs alone, taken out of context from the full NCMEC report, presented no evidence that Baker distributed pornographic files.

The court then concluded that admission of the binder was plain error:

The only source in the record of the child pornography images Baker purportedly uploaded was [the binder]. The sole authenticator and sponsor of that exhibit was [the AG's investigator]. Although [he] testified without objection at trial that the images in [the binder] were the ones uploaded to the Yahoo Web site, it is clear from reading the record in its entirety that the witness had no personal knowledge of this fact. At other junctures during the trial, it was apparent that he obtained the images from other state law enforcement officers, and that his only basis for testifying that these images were the ones uploaded to the Yahoo Web site and sent by Yahoo to NCMEC was statements to that effect in the NCMEC report. Because the Government offered no witness competent to sponsor [the binder], the admission of that exhibit was error.

Moreover, that error is plain. The sponsoring witness clearly had no firsthand knowledge of the exhibit’s chain of custody. The Government offered no independent evidence sufficient to show that Baker uploaded to Yahoo the images in [the binder].

That error affected the outcome of the proceedings, and thus Baker's substantial rights, because "[t]he only source of the images that Baker purportedly uploaded to Yahoo was [the binder], so this exhibit was essential to Baker’s Count 1 conviction for distributing child pornography." Even though those images were also found on Baker's home computer, "without [the binder], no evidence shows that Baker uploaded these images to the Yahoo Web site as opposed to downloading them from that or some other Internet source."

As for the final prong of the plain error analysis, the court drew a parallel to a case reversing an order erroneously granting a suppression motion: "If the erroneous exclusion of essential inculpatory evidence has a 'serious effect on the fairness, integrity, or public reputation of judicial proceedings,' we have no trouble concluding that the erroneous inclusion of such evidence does as well."

But this only led the court to reverse Baker's distribution conviction. Baker argued that the erroneous admission of the NCMEC exhibits "prejudiced him with regard to the other three counts on which he was found guilty because this evidence undermined his contention at trial that he did not know that any of the images at issue in Counts 2, 3, or 4 were on his home or work computers." Unlike the thorough analysis it devoted to the challenged exhibits and and their effect on Count 1, the court didn't address Baker's prejudice argument in any depth. Instead, the court simply held that "erroneous admission of [the challenged exhibits] does not require reversal of these [other] counts" because "[t]he Government presented evidence of many images of child pornography on Baker’s home computer and evidence of over 600 images of child pornography on the computer he used at work and on diskettes that were in his office." (As you can see, that's not really responsive to Baker's argument.)

As a final note, be aware that the court did not decide whether the NCMEC report and binder would have been admissible under the business record or public record exceptions to the hearsay rule, because it was unnecessary to do so in light of the court's holding that the Government failed to lay the necessary foundation. So this doesn't mean that such evidence is necessarily admissible, even with the proper predicate. The court also did "not reach Baker’s contention that admitting the NCMEC report without a witness who had personal knowledge of its content or preparation violated his Sixth Amendment right to confrontation." The Supreme Court will likely shed some light on that question when it decides Melendez-Diaz v. Massachusetts next term.