Thursday, July 03, 2008

Fives Affirm Questionable 404(b) and Loss-Amount Determinations in Union Voter Fraud Case

United States v. Crawley, No. 07-20461 (5th Cir. June 27, 2008) (Jones, Barksdale, Stewart)

Crawley was elected president of a Teamsters local in Louisiana in 1997, 1999, and 2002. Irregularities in the 2002 election prompted an investigation which revealed that Crawley falsified voter ballots, and that he received a $20,000 kickback in connection with a contract for telephone services at the union hall. Crawley was eventually convicted of mail fraud, and several Title 29 embezzlement and false record offenses. In addition to sentencing him to 78 months' imprisonment, the district court ordered him to pay the union local a little over $120,000 in restitution. Crawley appealed his conviction and sentence.

Crawley's challenge to his conviction concerned 404(b) evidence that he argued was improperly admitted. At trial, a union member testified that
[i]n September 2002, Crawley invited Kyle to his home after work hours. There, the two men engaged in an “assembly-line” process: using several different pens, Crawley marked and folded each ballot; he then handed it to Kyle, who placed and sealed the ballot in the return envelope. Crawley used the Union’s membership roster to decide which members were unlikely to vote in the election, such as part-time UPS employees. Kyle testified that peel-and-stick labels generated by the Union’s computer were used on the envelopes to avoid their being challenged. Thereafter, the completed ballots were separated by the zip codes for the “voters” and mailed from various post offices.

Not content to rely on this testimony, the Government called another witness who testified, over Crawley's objection, that Crawley "committed similar acts of voter fraud [in the 1999 election, as well]; and devised the strategy of duplicating ballots for those members least likely to vote." Following that testimony, the district court instructed the jury that "the evidence of the 1999 voter fraud could be considered only for determining Crawley’s 'motive, intent, identity, knowledge, opportunity, plan, preparation, and the absence of mistake or accident in engaging in' the 2002 voter fraud."

Applying the Fifth Circuit's two-prong Beechum test, the court of appeals found no error in admission of the testimony concerning the 1999 election. Under the first prong, the court held that the evidence was relevant to Crawley's intent, insofar as it showed that Crawley "acted with the same specific intent in 2002 as he had in 1999." The court rejected Crawley's argument that the evidence was not in fact relevant to intent because his defense was that someone else submitted the fake ballots:
Regardless of the defenses asserted by Crawley, the Government was required to prove specific intent as an essential element of the charged offenses. Therefore, the extrinsic evidence was offered to demonstrate Crawley acted with the requisite intent to commit those offenses. Based on the testimony regarding the 1999 fraud, the jury could rationally conclude that, “because the defendant had unlawful intent in the extrinsic offense [1999 fraud], it is less likely that he had lawful intent in the present offense [2002 fraud]”. Gordon, 780 F.2d at 1173. The testimony, therefore, was offered for a legitimate purpose under Rule 404(b). (Because the evidence was properly offered to show intent, we need not decide whether, in addition, it was admissible to demonstrate motive, as was also held by the district court.)

The court then concluded, as to the second Beechum prong, that the prejudicial impact of the evidence did not substantially outweigh its probative value, because the district court instructed the jury "that the 1999 voter-fraud evidence could only be considered for the limited purpose of determining motive, intent, identity, knowledge, opportunity, plan, preparation, and the absence of mistake or accident in engaging in the 2002 voter fraud. Even assuming, therefore, that admission of the extrinsic evidence posed a risk of undue prejudice, that risk was greatly minimized by the court’s limiting instruction."

(Both of these conclusions are questionable. If anything, given Crawley's defense the evidence was relevant to identity, not intent. But even if, as the court says, the 1999 voter-fraud evidence was relevant to intent, it had little to no probative value in relation to the unfairly prejudicial he-did-it-before-so-he-must-have-done-it-again inference that 404(b) exists to prevent. After all, if the jury were to conclude that Crawley was behind the 2002 ballot falsification, it's all but inconceivable that they would have trouble finding that he did so with the specific intent to defraud the union. It's also hard to see how the district court's instruction to the jury minimized any prejudice, given that it was simply a boilerplate recitation of permissible 404(b) factors, some of which the Government doesn't even appear to have argued for.)

Crawley also challenged the district court's loss findings for purposes of the Guidelines calculations and the restitution award. The district court used Crawley's salary and benefits for both calculations, as well as the $20,000 kickback. To oversimplify things a bit, Crawley argued that the loss amount for both purposes should be limited to the $20,000 kickback, because the union got what it paid for in the form of his services as local president. The court of appeals disagreed, concluding that "[b]y procuring a union office by fraud," Crawley "render[ed] any service valueless ab initio." Additionally, it wasn't possible to sever Crawley's legitimate services to the union from his non-legitimate services. Thus, the district court did not clearly err in the Guidelines calculation, nor did it abuse its discretion in determining the restitution amount.

(This, too, is questionable. Is it really true that Crawley's services as union president were "valueless ab initio"? Unless everything he did as president was corrupt, the union got at least some value out of his service. Doesn't the union as victim receive a windfall by getting all of Crawley's salary and benefits back when they would have otherwise had to pay someone else to do the job? To be fair, the court addresses these points, just not convincingly in my opinion.)

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