That's What She Said

United States v. Carthen, No. 10-4817-cr (2d Cir. May 23, 2012) (Winter, McLaughlin, Cabranes, CJJ)

Defenant Tyrone Carthen appealed the government’s reliance on hearsay at his supervised release violation hearing. The circuit, finding no error, affirmed.

Carthen was charged with violating his supervised release by beating and threatening his ex-girlfriend, Marquita Cox. The matter was investigated by Carthen’s probation officer, Darcy Zavatsky, who interviewed Cox and other witnesses, and also reviewed various police and court records. At the VOSR hearing, however, the government called only Zavatsky, who was permitted to, over objection, describe what she had learned. Just before the hearing, it emerged that Cox, who had been cooperative at first, was refusing to testify because she did not want to be respnosible for sending Carthen back to jail. Just after the district court decided the case, Cox submitted a letter to the court asserting that she had "lied on Mr. Tyrone Carthen." Despite this, the district court refused to reopen the hearing.

The found no abuse of discretion in the admission of the hearsay. It found "significant indicia of reliability" in Cox’s statements accusing Carthen of assaulting her. Zavatsky interviewed her six times, and her interviews with other witnesses corroborated Cox’s claims. In addition, Cox bore a scar that was consistent with a would she had described. The reports that Zavatsky relied on were detailed and credible, and some were made under oath. Finally, Cox’s desire not to testify was "not an unusual reaction by a victim of domestic abuse."

Nor was there an abuse of discretion in the district court’s refusal to reopen in the wake of Cox’s seeming recantation. Witness recantations are generally viewed with "utmost suspicion," and here, the district court’s conclusion that Cox’s letter was not credible was sound given the considerable corroboration of her initial, contrary account.

Mommy Dearest

United States v. O’Connor, No. 08-5968-cr (2d Cir. June 16, 2011) (Kearse, Pooler, Hall, CJJ)

Linda O’Connor began sexually abusing her daughter, S.O., when S.O. was ten years old. O’Connor also allowed her friend - he was also her occasional financial benefactor and sex partner - George Lang, to do so; O’Connor even sometimes joined in. Lang died of cancer before he could be prosecuted, and O’Connor then passed S.O. on to her landlord, co-defendant Dean Sacco, in lieu of paying rent. Sacco raped S.O. many times, and also took pictures of the abuse. Finally, on two occasions, O’Connor brought S.O. to a motel in Binghamton, where strangers raped her for money, while O'Connor looked on and ordered her to follow the men’s instructions.

O’Connor and Sacco were convicted of various sex trafficking and child pornography offenses; she was sentenced to 30 years and he to life. This opinion affirms their convictions.

Sacco

Sacco’s main claim on appeal was that the district court abused its discretion in denying his attorney’s motion to withdraw.

The facts are quite unusual. Sacco had a court-appointed attorney, who worked on the case for about two months. He researched and investigated the case and reviewed voluminous discovery materials. Just days before the scheduled trial date, however, the attorney moved to withdraw, saying that the intensity of his personal feelings about the case would affect his ability to zealously represent Sacco.

The attorney cited in particular the recent disclosure of a single item of evidence: a used condom recovered from Sacco’s belonging that had S.O.’s DNA on the outside. The attorney said that this evidence had caused him to shift his “moral and technical perspective” on the case such that he could no longer be effective. The government opposed the motion to withdraw, while Sacco himself took “no firm position” on it. He was largely pleased with his attorney’s performance, although he expressed frustration that they had not communicated more. Sacco also indicated that he wanted to go to trial as quickly as possible, but questioned whether his attorney was truly ready. With this as the record, the district court found that there was an insufficient basis for the attorney to withdraw and denied the motion.

The circuit found no abuse of discretion. While the attorney had tried to based his arguments in the district court on New York’s then-applicable rules of professional responsibility, the circuit noted that the attorney never argued that he would be in violation of any Disciplinary Rule if he continued representing Sacco. And the relevant Ethical Considerations actually supported the district court’s ruling. While an attorney’s personal feelings might permit him to refuse an assignment, they do not permit withdrawal. Withdrawal must be for “compelling reasons,” which “do not include such factors as the repugnance of the subject matter of the proceeding.”

Here, the DNA evidence that prompted the motion to withdraw, whether it suddenly made the subject matter repugnant to the attorney or simply made him realize that his client was guilty, could not serve as a valid basis for withdrawal. Moreover, on appeal, represented by different counsel, Sacco could point to nothing in the record to suggest that his attorney’s representation was actually impaired.

O’Connor

O’Connor had two main appellate claims - sufficiency challenges and the denial of her motion to be severed from Sacco for trial. The circuit disposed of these challenges with little trouble. The sufficiency claims were all quite thin. And,for the severance claim, the circuit began by noting the great deference owed to district courts’ severance decisions.

Here, the nature of the charges “made the joint trial of O’Connor and Sacco particularly appropriate,” since O’Connor was charged with selling S.O. to Sacco for the purpose of producing child pornography. The court also rejected O’Connor’s claim that her defense was antagonistic to Sacco’s, since both defendants argued that S.O.’s testimony was not worthy of belief. Nor was there any risk of “spillover” prejudice. While there was highly damaging evidence admitted against Sacco alone, the judge carefully instructed the jury that each charge and each defendant had to be considered separately.

O’Connor also raised an interesting evidentiary issue. A witness with whom S.O. stayed for two months during the charged time period testified that, when cleaning S.O.’s room she found a note in S.O.’s handwriting that said, “I hate my mother. She used me,” although the witness had not preserved the note.

The circuit found no hearsay error. The district court had admitted the contents of the note under the “state of mind” exception in Fed. R. Evid. 803(3). But that covered only the “I hate my mother” sentence, and not “She used me.” But this latter statement was covered by Rule 801(d), the “prior consistent statement” rule, which makes a statement not hearsay if the declarant testifies, is cross-examined on the statement, and the statement is used to rebut a claim of recent fabrication. Here, both defendants had argued that S.O.’s fabrications began on a date after the note was written, so the prior consistent statement was admissible.

A Bad Call

United States v. Gomez, No. 08-3829-cr (2d Cir. August 4, 2010) (Leval, Pooler, Parker, CJJ)

Here, the improper admission of indirect hearsay resulted in a new trial.

Background

Fred Rivas and a confederate sold 5,000 Ecstacy pills to a confidential informant. They were arrested, and Rivas agreed to cooperate. A New York City detective, Michael Ryan, was permitted to testify about the nature of Rivas’ cooperation; specifically, Ryan testified that he asked Rivas to “call the person who had given him that 5,000 pills,” and that Ryan then dialed Gomez' number from Rivas’ phone and recorded their conversation. The district court denied Gomez’ hearsay objection to this testimony, and the government ended up using it in summation to directly implicate Gomez as the supplier.

The Circuit’s Decision

The court found that Ryan’s testimony constituted prejudicial hearsay, and rejected with unusually strong language the government’s claim that it admitted the testimony for a non-hearsay purpose - as “background” evidence.

Here, there was simply no non-inculpatory alternative to explain why Ryan chose Gomez’ number after he instructed Rivas to call his supplier. Indeed, that testimony “provide[d] background that would aid the jury in understanding why Gomez was called only if we assume that Rivas told Ryan that Gomez was his supplier, which we cannot do.” And, if the jury “inexplicably” missed this “obvious point,” the AUSA “drove it home with her ... summation.”

The testimony was also “completely unnecessary” as background. Ryan testified that Rivas was arrested and agreed to make recorded phone calls. That was “sufficient background” for the calls themselves.

In a footnote, the court remarked that, while Ryan’s instruction to Rivas to call his supplier did not include hearsay (one might quibble with this conclusion since, although Ryan was subject to cross-examination, he gave the instruction when he was not, and it was offered, at least in part, for its truth) the instruction’s connection to Rivas’ call to Gomez nevertheless communicated the hearsay message that Rivas identified Gomez as his supplier. The court directed that, on retrial, the district court “should exclude the officer’s instruction.”

The court also found that the admission of the hearsay was not harmless. While the evidence was legally sufficient, it was “hardly overwhelming as to” Gomez’ involvement in that particular transaction. Although Rivas’ recorded conversation with him likely related to a drug deal, a “reasonable juror” would “not have been compelled to conclude that Gomez was the supplier for the earlier sale” because the call did “not clearly indicate that Gomez supplied the 5,000 pills.” It should be noted that this particular analysis would be easier to follow if the court had quoted at least some of the recorded conversation. But, alas, it did not.

Moreover, while the district court gave a limiting instruction, that did not render the hearsay error harmless. The court will not presume that a jury has followed a limiting instruction where “there is an overwhelming probability” that the jury would be unable to and “the evidence is devastating to the defense.” Both were true here. Gomez’ jury was “confronted with an instruction that they should not consider Ryan’s testimony as proof that Gomez was Rivas’ supplier despite the fact that there was no apparent reason for the testimony other than to show that Ryan dialed Gomez’ number” because Rivas had identified Gomez as the supplier. Moreover, the limiting instruction did not cover the most damaging portion of the testimony - that Ryan called Gomez’ number only after instructing Rivas to call his supplier. It covered only Ryan’s instructions to Rivas and Rivas’ actions in response.

Finally, while the court did not rule on Gomez’ Confrontation Clause argument, it noted that “the very concerns embedded in the Confrontation Clause are part and parcel of our harmless error analysis.” Specifically, it considered the “importance of the wrongly admitted testimony,” and found Rivas’ untested accusation to be “significant.”

Kaiser on a Roll

United States v. Kaiser, No. 07-2365-cr (2d Cir. July 1, 2010) (Jacobs, Calabresi, Pooler, CJJ)

Mark Kaiser was convicted after a jury trial of securities fraud-related offenses in connection with an accounting fraud scheme at USF, a large food product distributor. The circuit, finding error in the conscious avoidance instruction and in an evidentiary ruling, vacated the judgment and remanded the case for a new trial.

Background

From 1994 until 2001, Kaiser helped run USF’s Purchasing Department, and negotiated rebates from its vendors called promotional allowances (“PA”s”). Kaiser was charged with developing a scheme to fraudulently inflate the PA income for certain years and with committing other fraudulent acts, including making false statements, to hide the inflated numbers from USF’s outside auditors. The government’s case was built largely around the testimony of three cooperating witnesses, who testified that Kaiser was the mastermind. Kaiser’s defense was that the cooperators had cooked up the scheme, kept him in the dark about it, then collectively decided to make him the scapegoat once it all unraveled.

The Charge Error

First, the court found plain error in the district court’s conscious avoidance instruction. A conscious avoidance charge must communicate two points: that a jury may infer knowledge of the existence of a fact only if it finds that the defendant was aware of high probability of its existence, and second, that there can be no conscious avoidance of a fact that the defendant actually believed did not exist. So important are these concepts that a 1988 decision on the issue directed that the opinion be circulated to all AUSAs in the circuit. Remarkably, then, the charge at Kaiser’s trial omitted both of these key concepts.

The court agreed with Kaiser that the omission “might well have confused the jury” - the particular language used by the district court, which merely indicated that “there are times that a person can consciously avoid looking at facts that are available and that, in the law, is the equivalent of knowledge” - created “some risk” that the jury would convict if it found that Kaiser “was merely negligent.” Also troubling was the omission of the instruction that an actual belief in the nonexistence of the relevant information would absolve Kaiser entirely.

Lastly, the court found - on review for plain error - that Kaiser established that the erroneous charge affected his substantial rights. The documentary evidence in the case was consistent with his defense that he was unaware of the fraud. While the testimony of the cooperating witnesses tipped the balance, there was “ample reason for the jury to question” their credibility.

The Evidentiary Ruling

The court also found error in the admission of testimony from one of the cooperators, Lee, who reported that USF’s general counsel, Abramson, had learned of an accounting decision that Kaiser had made in connection with a particular PA payment and was “very upset and wanted to go to the SEC to expose” it. The circuit rejected the government’s argument that the statement was not admitted for its own truth. To the contrary, the government in summation used the supposed truth of the hearsay to rebut Kaiser’s assertion that his conduct had been approved by lawyer.

The court also rejected the government’s claim that the testimony was not hearsay because it was an assertion of the Abramson’s “then existing state of mind.” Here, the “obvious premise” of the statement was the Kaiser was doing something illegal. It was this assertion, not Abramson’s intent to report Kaiser to the SEC that “constitutes inadmissible hearsay.”

Moreover, and in any event, the court held that the statement should have been excluded under Rule 403. The mere identification of a non-hearsay use of a statement is insufficient to justify its admission if the jury is likely to consider it for its truth “with significant resultant prejudice.” Here, there could be “no doubt” that Abramson’s statement that he wanted to report Kaiser to the SEC was “highly prejudicial.” It went to the “important disputed issue” of whether Kaiser acted knowingly, and the jury would likely have concluded that Abramson, who, unlike the witness who reported the statement, had never been charged with a crime, was both knowledgeable and trustworthy. The prejudice was compounded by the district court’s refusal to give a limiting instruction. For hese same reasons, the court found that the error was not harmless.

Expert Tease

United States v. Mejia, No. 05-2856-cr (2d Cir. October 6, 2008) (Jacobs, Parker, Hall, CJJ)

Here, the improper admission of “officer expert” testimony resulted in a new trial.

Background

The defendants were convicted of participating in two drive-by shootings in connection with their membership in the MS-13 gang. One defendant was sentenced to sixty-three years’ imprisonment, the other to sixty.

A significant portion of the evidence against them, however, came from a New York State Police investigator who testified about the structure and organization of MS-13, as well as its “methods and activities, modes of communication and slang.” It turned out however, the officer’s sources for much of this information were suspect, including reports from other law enforcement officers, custodial statements from other gang members, internet research, and wiretaps that he listened to.

The Court’s Ruling

The court of appeals reversed, finding that much of the officer’s testimony was improper.

The court began with an interesting survey of the development of the so-called “officer expert,” in the 1980s, and of the court’s generally favorable response to this type of testimony. The court pointed out, however, that such testimony “must be limited to those issues where sociological knowledge is appropriate. An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization’s hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence.” As an officer’s “purported expertise narrows from ‘organized crime’ to ‘this particular gang’ ... to the criminality of the defendant,” it becomes “a little too convenient” that the government “has found an individual who is expert on precisely those facts that the Government must prove to secure a guilty verdict - even more so when that expert happens to be one of the Government’s own investigators.”

Here, the agent strayed from his proper expert function in several ways. First, much of his testimony concerned material “well within the grasp of the average juror,” such as the fact that the task force had seized guns and ammunition from MS-13 members, and that MS-13 members had committed drug crimes and murders. The circuit noted that no expertise was required to understand any of those facts: lay testimony, arrest records, death certificates and “other competent evidence of these highly specific facts” was available and would readily have been understood by the jury. Similarly, the officer’s testimony about gang members’ travel patterns and the gang’s operations more generally, “went far beyond interpreting jargon or coded messages ... or explaining organizational hierarchy.” The court was particularly concerned about the officer’s testimony that MS-13 had committed “between eighteen and twenty-three murders since 2000.”

The court also condemned the officer’s improper use of hearsay. While an expert can rely on certain types of hearsay, he “may not, however, simply transmit that hearsay to the jury.” Here, the officer identified hearsay as the source of much of his information, and “at least some of his testimony involved merely repeating information he had read or heard.” Thus, he was not acting as an expert, “but instead as a case agent.” For similar reasons, the testimony violated Crawford by communicating the testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion.

Finally, the court concluded that the error was not harmless. The testimony was relevant to several contested issues, including whether the gang (1) was an enterprise, (2) affected commerce, (3) engaged in narcotics trafficking, and (4) engaged in acts of violence. The court accordingly vacated the convictions and remanded the case to the district court for a new trial.

Trial by Error

United States v. Al-Moyad, No. 05-4186-cr (2d Cir. October 2, 2008) (McLaughlin, Parker, Wesley, CJJ)

Defendants Al-Moayad and Zayed were convicted in front of Judge Johnson of conspiring to provide material support to Hamas and Al-Qaeda, designated terrorist organizations. Al-Moayad was also convicted of related substantive offenses. He was sentenced to seventy-five years in prison, while Zayed was sentenced to forty-five years.

The defendants asserted that they were entrapped. Their trial, however, was marred by a string of spectacularly unfair evidentiary rulings that gravely undermined their defense. The court of appeal remanded the case for a new trial before a different judge.

Background

This case arose through the efforts of a confidential informant named Al-Anssi. In November of 2001, Al-Anssi approached the government and offered to furnish - for money - information regarding terrorism. Among ththe possible targets he mentioned was Al-Moayad, whom Al-Anssi described as the imam of a mosque, but who also ran a bakery and a school. Al-Anssi claimed that Al-Moayad supported terrorist groups. Defendant Zayed was Al-Moyad’s assistant. Although Al-Anssi demanded millions of dollars for his work, in all he was paid only about $100,000, and, in 2004, he set himself on fire outside the White House to publicize his claim that he was entitled to more money.

The FBI sent Al-Anssi to Yemen several times in 2002; the plan was to have Al-Anssi introduce the defendants to another informant, “Saeed,” who was posing as a wealthy American who wanted to donate money to support terrorist activities. Also, in September of 2002, Al-Anssi attended and videotaped a wedding hosted by Al-Moayad. At the wedding, a representative of Hamas made a speech proclaiming that, thanks to Hamas, there would be a terrorist attack in Tel Aviv that same day. And, indeed, there was - a suicide bombing on a bus.

In 2003, Al-Anssi set up a sting operation in Germany. He introduced the two defendants to Saeed, and they discussed Saeed’s anticipated donation to their causes. The defendants were arrested after a final meeting in Germany.

The Trial Errors

1. Improper Testimony

At trial, the government called Gideon Black as its final witness. He was on the Tel Aviv bus that Hamas bombed, as mentioned in the wedding speech. The district court overruled the defendant’s motions to preclude Black’s testimony and to instead allow them to stipulate that they knew that Hamas was engaged in terrorist activities. The court also permitted the government to introduce, through Black, graphic photographs and a DVD depicting the event. Moreover, the court permitted Black to testify about the horrible aftermath of bombing, not just the bombing itself, also over objection.

On appeal, the court held that the district court’s Rule 403 balancing with respect to this evidence was so skewed as to be “arbitrary.” Worse still, the district court refused to give a meaningful limiting instruction. In fact, the evidence was largely irrelevant. The defendants were not charged with any offense in connection with the Tel Aviv bus bombing. Moreover, the evidence was not necessary to show that the defendants knew that Hamas was involved in violence, because the defendants never denied knowing this. Finally, even if it were proper to admit evidence that the bombing occurred, evidence of the bombing’s aftermath was even less probative at trial and far more prejudicial.

Judge Johnson permitted other improper testimony, as well. During the government’s rebuttal case, the judge had admitted into evidence a document that purported to be an application form for a terrorist training camp. The form had been partially filled out by someone named Abu Jihad, and listed defendant Al-Moayad as his sponsor. The judge then permitted the government to call someone named Goba - who had attended the training camp - as a witness. Although the government proffered that Goba would only testify only about the form itself, in it elicited testimony that went far beyond the scope of the proffer.

Goba testified about his experiences in the training camp, including visits to the camp from Osama Bin Laden, and described speeches that Bin Laden made. In addition, during Goba’s tesitmony the government introduced an Al Jazeera news video documenting that visit.

The court of appeals again found error. First, the court noted that Judge Johnson failed to undertake a conscientious Rule 403 balancing at all, perhaps because of the government’s misleading proffer about what Goba would say. But it was clearly error to admit Goba’s testimony, particularly the parts relating to Bin Laden. This was “highly inflammatory and irrelevant and should not have been permitted.” There was, after all, no evidentiary connection between Goba the defendants.

Having held that the testimony of both Black and Goba was error, the appellate court went on to hold that error was not harmless as to the issue of the defendants’ predisposition, which went to the heart of their entrapment defense. Here, while there was some evidence of predisposition, it was not overwhelming, and much of the government’s proof on that issue was inadmissible for other reasons. Moreover, the government’s conduct with respect to Black’s and Goba’s testimony magnified the prejudicial effect. For each witness, the government repeatedly elicited testimony that was well beyond the scope of its proffer.

2. Al-Anssi’s Notes

While in Yemen, Al-Anssi took notes of his meetings with Al-Moyad and Zayed. During its examination of Al-Anssi, the government introduced those notes as substantive evidence, without any limitation. This, too, was error.

First, the notes were not properly admitted as prior consistent statements, because they were made after Al-Anssi’s motive to fabricate - his expectation that he would be paid large amounts of money by the FBI - had already arisen. Nor was the evidence admissible to rehabilitate Al-Anssi’s credibility.

Finally, the notes were inadmissible to rebut any supposed false impression created during the defendants’ examinations of Al-Anssi. It is true that redirect examination can be used for this purpose, but “otherwise inadmissible evidence can be used to rebut a false impression only if the evidence is carefully limited.” Generally, in such situations, the district court must admit the evidence for a clearly defined, limited purpose, and not for its truth. Here, by contrast, Judge Johnson admitted the notes in their entirety, for their truth, and without any limitation.

The erroneous admission of Al-Anssi’s notes was not harmless, given its effect on the defendants’ entrapment defense. Several assertions in the improperly admitted notes that were critical to the government’s predisposition case were not duplicated anywhere else. The notes were also seriously prejudicial for other reasons. They were the only evidence that Al-Moayad had a relationship with Bin Laden after the 1980's, a critical point at trial, and also suggested Al-Moayad had given material support to Hamas.

3. Improper Admission Other Evidence

The court held that the admission of other evidence, without limitation, was error.

First, the form showing that Al-Moayad had sponsored an applicant to an Al-Qaeda training camp, discussed above, was inadmissible hearsay. The court of appeals rejected the government’s argument that the form was a co-conspirator’s declaration, since there was no evidence that Al-Moayad was in a conspiracy with the person who filled out the form.

Next, it was also error to admit the wedding speech, at least without limitation. The speech was not a co-conspirator statement, since there was no evidence that Al-Moayed was in a conspiracy with the speaker.

Third, the government admitted a will found in Croatia in which the testator indicated that he was willing to die as a martyr. This, the circuit held, was hearsay, but the government used it for its truth.

These three errors, together, contributed substantially to the unfairness of the trial.

4. Cumulative Impact

Finally, the court also agreed with the defendants that the collective impact of all of the district court’s errors rendered the trial fundamentally unfair.

Comment

This case has several noteworthy features. Most importantly, it clearly illustrates the importance of preserving evidentiary errors in the district court. Every error the court reversed on was objected to by the defense attorneys, and with great specificity. That was critical here, since it is highly unlikely that the court would have reversed here on plain error grounds.


Another noteworthy feature of this case is the unusually high degree of government misconduct, both at trial and on appeal. At trial, the government repeatedly took advantage of the fact that the judge was asleep at the wheel by introducing evidence that it must have have known was improper, and by repeatedly going beyond its own proffers as to the supposedly limited purpose of the evidence. On appeal, the misconduct took a different form. As least as they were described by the circuit itself, the government made numerous arguments on appeal that seem to have been wholly without basis in law or fact.

This case also introduces a new feature: the “concurrence by footnote.” Throughout the opinion, there are footnotes revealing that Judge Wesley took a position that differed from the views of the other two judges. But he did not write separately on those points, and did not quibble with the ultimate outcome.

Finally, it is noteworthy that the circuit sent this case back to a different judge with no analysis and with none of the usual qualifications that are intended to spare the district judge’s feelings.

Standing Alone

United States v. Hamilton, No. 06-2933-cr (2d Cir. August 15, 2008) (Leval, Sotomayor, Katzmann, CJJ)

Hamilton was convicted of participating in a marijuana conspiracy. He raised a host of issues on appeal, and prevailed on his claim that the district court erroneously concluded that he lacked standing to challenge a search.

The Fourth Amendment Issue

This investigation began in 1999, in Los Angeles, where local authorities arrested Hamilton and charged him with marijuana possession. Hamilton was released on bail, then disappeared, and later acquired a Florida driver’s license in a different name. The government later learned that the LA marijuana would make its way to the Bronx.

In 2004, L.A. police officers intercepted a FedEx package containing marijuana that was supposed to go to an address in Encino, California. They conducted a controlled delivery, and discovered five men in the driveway of the house, one of whom was Hamilton, who was still using an alias. The men told the officers they did not live in the house and did not know who did, but that someone named Shane Johnson owned it. The men also said that someone named “Slick” was inside the house. Many of the house’s doors were open; the officers called out to Slick and, when he did not answer, entered the house. There was a man in one of the bedrooms, and he gave the officers consent to search the house, which contained guns, marijuana and related paraphernalia. While they were there, UPS arrived with a second package. The officers obtained a search warrant for both packages and discovered that each contained drug money.

Hamilton was arrested in 2005. In the district court, just before jury selection, his counsel moved to suppress the evidence obtained from the Encino house, citing the officers’ warrantless entry; counsel explained that he had only learned of the pre-consensual entry from the 3500 material. As to standing, counsel proffered that Hamilton had purchased the house, registered it in the name of his “common-law wife,” had free access to the house, and stayed there frequently. The AUSA countered that, when the LAPD saw Hamilton at the house in 1999, he denied living there. Counsel conceded that Hamilton did not have keys to the house but insisted that he had “access.” Without conducting a hearing, the court concluded that Hamilton did not have standing to challenge the search, concluding that his privacy interest in it was no greater than that of a mortgagee bank.

The circuit disagreed. Hamilton’s proffered facts showed that he had “free and frequent access” to the house, as well as “effective control of it,” and thus a solid expectation of privacy. “There is no authority for the proposition that one need live in the premises, or exercise control over them, in order to enjoy a privacy interest.” The district court therefore erred in “failing to draw reasonable inferences in Hamilton’s favor from the facts he alleged” and in denying the motion without a hearing. It remanded the case for further consideration of the motion to suppress.


The Hearsay Issue

At trial, Hamilton conceded that he had been involved in marijuana distribution in the past, but asserted that he had withdrawn from the conspiracy after his October 1999 arrest. Under this theory, the federal indictment, filed in January of 2005, was time barred. To counter this, the government introduced testimony that an agent had learned that Hamilton was “living with” Shane Johnson at the house that had been searched.

On appeal, the defense argued that this was improper hearsay. But the circuit sided with the government, which argued that the testimony was necessary to establish that Hamilton had been a fugitive since he skipped bail in 1999, and thus that the statute of limitations had been tolled. “[I]n order to persuade the jury that the statute of limitations was tolled,” the government “needed to show the course of its investigations that eventually led to the capture of the defendant.”