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Trial Tactics

Waiving Evidentiary Claims: An Illustrative Case

By Stephen A. Saltzburg

United States v. Cohen, 887 F.3d 77 (1st Cir. 2018), illustrates (a) how a defendant in a criminal case can lose the right to appeal evidence rulings by entering into an agreement with the government that moots a ruling by the trial judge, and (b) how defense counsel’s failure to understand a judge’s ruling may lead to an agreement that actually provides no benefit to the defense.

The Charges

The government charged R. David Cohen with conspiring with both indicted and unindicted individuals to use stolen identities to obtain fraudulent tax refunds from the IRS from October 2011 to December 2014. Conspirators other than Cohen gathered the stolen identities and applied for the fraudulent refunds. These conspirators would give the tax refund checks to Cohen, a real estate attorney in Massachusetts, who would deposit the refund checks into an existing Interest on Lawyers’ Trust Accounts (IOLTA) bank account, subsequently opened IOLTA accounts, and conventional business accounts that Cohen or a coconspirator opened at different banks.

Bank officials questioned Cohen about the deposits to the various IOLTA and business accounts. Cohen explained that the deposits related to his real estate legal work and that the deposits were made on behalf of his clients who were involved in real estate closing transactions for which he was their attorney.

In 2013 while the conspiracy was ongoing, Cohen entered into an agreement with the Massachusetts Attorney General’s Office (the AG Settlement) to settle a lawsuit by the AG alleging that Cohen provided advice for and consented to unlawful conduct by one of his clients. Cohen agreed to pay a $40,000 fine and not to conduct real estate closings for a period of six months upon the signing of the AG Settlement.

In the criminal prosecution that later ensued, the United States alleged that Cohen stopped using his IOLTA accounts to launder the fraudulently obtained checks once he agreed to the AG Settlement, and thereafter Cohen and his coconspirators switched to using conventional business bank accounts to deposit checks, make cash withdrawals, and continue to launder money.

The government charged Cohen with one count of conspiring to convert government property, 14 substantive counts of conversion of government property, and one count of conspiracy to commit money laundering. Cohen testified at trial, claiming that he was “a fool,” not a “crook,” and that he did favors for friends and failed to closely examine documents or ask enough questions of his friends. The jury did not believe him and convicted him on all counts.

The Character Evidence Issue

Prior to trial, the government told both Cohen and the trial judge that it intended to cross-examine any character witnesses Cohen might call to testify as to his reputation for truthfulness and honesty about the AG Settlement. Near the close of the government’s case-in-chief, it informed Cohen and the judge that it also would ask Cohen about the AG Settlement if he decided to take the stand in his defense.

Cohen’s defense counsel asked the judge to exclude any cross-examination of Cohen about the AG Settlement; indicated that he had thought that the government would not use the settlement; and said that if the settlement were going to be the subject of cross-examination, he might as well call reputation witnesses. The trial judge issued the following ruling:

This request is DENIED without prejudice to the defendant challenging specific questions posed by the government on cross-examination. The Court notes that permissible cross-examination of the defendant and permissible cross-examination of possible defense character witnesses is not identical. For example, as to the latter the government may challenge the basis for the witness’[s] opinion or reputation testimony regarding the defendant’s character. Thus, while asking the character witness whether he or she is aware of the fact of the lawsuit may well be a permissible challenge to the basis of the witness’[s] testimony that same question of the defendant, at least standing alone, does not appear to bear on truthfulness or untruthfulness.

After the judge made this ruling, the parties conferred and reached an agreement. They told the judge that they had agreed as follows: If Cohen testified and the government chose to cross-examine him about the AG Settlement, the government agreed that it would only ask Cohen the date when he agreed with the attorney general’s office not to engage in real estate transactions for six months; and in return, Cohen agreed that he would not call any reputation witnesses. As noted above, Cohen did take the stand, and the government limited its cross-examination about the AG Settlement to the agreed-upon question.

In his appeal of his convictions, Cohen argued that the judge erred in his order by permitting the government “to use . . . prejudicial, irrelevant evidence to impeach Cohen’s [potential] witnesses who would have testified to Cohen’s reputation for truthfulness and honesty.” He claimed that he abandoned the reputation witnesses to prevent the government from repeatedly referring to the AG Settlement during cross-examination to create unfair prejudice to the defense.

The Appellate Ruling

The First Circuit correctly pointed out that “[t]he District Court never ruled that the AG Settlement could be used during cross-examination,” and “[t]he District Court merely ruled that it would rule on a question-by-question basis whether questions regarding the AG Settlement would be permitted during cross-examination.” The First Circuit also pointed to a large contradiction between the claim made on appeal and statements by defense counsel at trial. Whereas Cohen claimed on appeal that he did not call character witnesses because of a concern that they would be cross-examined about the AG Settlement, defense counsel told the trial judge that if the judge permitted cross-examination of Cohen about the AG Settlement, he might as well call the reputation witnesses because the jury would have heard about the AG Settlement during Cohen’s testimony.

The First Circuit added that, even if Cohen’s description of the judge’s order were correct (which it was not), Cohen could not successfully challenge the ruling as to reputation witnesses. After the Supreme Court’s decision in Luce v. United States, 469 U.S. 38 (1984), the First Circuit and other circuits have consistently held that a party waives a challenge to a conditional ruling concerning how cross-examination of a witness may proceed, unless the objecting party actually calls the witness to the stand to “give the court a chance to perform the required balancing in the concrete context of actual question and answer.” (United States v. Mazza, 792 F.2d 1210, 1222–23 (1st Cir. 1986).)

The agreement that Cohen made with the government specifically stated that if the government limited its cross-examination of Cohen, he would not call the character witnesses. He entered into the agreement voluntarily and, as a result, the judge never ruled on the questions that the government would be permitted to ask the character witnesses. Thus, there was no way for the Circuit to know whether the government actually would have sought to cross-examine character witnesses had they been called or what questions the judge would have permitted.

The Trial Judge’s Ruling Dissected

The trial judge appeared to nail the ruling and to draw a distinction between cross-examination of a defendant and cross-examination of character witnesses that many judges often miss. The judge appeared to have a firm grasp on Fed. R. Evid. 608(b), which reads as follows:

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about.

There is, or at least there should be, a difference between (b)(1) and (b)(2). Under (b)(1), a cross-examiner may ask a witness about his or her own acts if they are probative of character for truthfulness or untruthfulness. Thus, the prosecutor should have been permitted to ask Cohen on cross-examination whether he had provided advice for and consented to unlawful conduct by one of his clients, provided that the judge found that such conduct was in fact probative of his character for truthfulness or untruthfulness. But if Cohen denied the conduct, the Rule makes clear that the prosecutor could not offer extrinsic evidence to contradict him. The AG Settlement would be just that, extrinsic evidence, because the AG Settlement is not a specific instance of conduct by Cohen.

In other words, Cohen could have avoided any mention of the AG Settlement had defense counsel focused on the plain language of Rule 608 (b)(1). The point that third-party conduct is not admissible to contradict a denial of a prior bad act has been made for some time. (See Stephen A. Saltzburg, A Last Word on Impeaching the Witness with Prior “Bad Acts,” 8 Crim. Just. 37–40 (Summer 1993); Stephen A. Saltzburg, Impeaching the Witness: Prior “Bad Acts” and Extrinsic Evidence, 7 Crim. Just. 28–31 (Winter 1993).)

The questioning of character witnesses has been different ever since the Supreme Court’s decision in Michelson v. United States, 335 U.S. 469 (1948), which held that reputation witnesses can be asked about things they might have heard about a defendant that could have adversely affected reputation. Although the reputation witnesses in Michelson were providing testimony that today would be Fed. R. Evid. 405(a) testimony, courts have held that today character witnesses (reputation and opinion witnesses) can be cross-examined in the same fashion pursuant to Rules 405 and 608.

This is why the trial judge was exactly right in telling the parties “that permissible cross-examination of the defendant and permissible cross-examination of possible defense character witnesses is not identical.” The judge was aware of the Michelson line of cases that courts have found to be codified in Rules 405(a) and 608(b)(2) and wrote that “as to the latter [character witnesses] the government may challenge the basis for the witness’[s] opinion or reputation testimony regarding the defendant’s character.” Accordingly, the judge was warning the defense that “asking the character witness whether he or she is aware of the fact of the lawsuit [AG Settlement] may well be a permissible challenge to the basis of the witness’[s] testimony,” while simultaneously informing the defense “that same question of the defendant, at least standing alone, does not appear to bear on truthfulness or untruthfulness.”

Bottom Line

It appears that defense counsel could have prevented even the one question about the AG Settlement on cross-examination of Cohen, at least in the form it was asked, had greater attention been paid to the distinction that the judge drew in making the conditional ruling. Then, if defense counsel voluntarily chose not to call character witnesses, the AG Settlement would have been out of the case.

Instead, defense counsel made an agreement that actually conferred no benefit on the defense. Rule 608(b) (1) would have protected Cohen from prejudicial questions about the AG Settlement had it been properly understood and relied upon.

Lessons

  1. There is a difference between cross-examination of a witness about his or her own acts (Rule 608(b)(1)) and cross-examination of a character witness (Rule 608(b)(2)). This case illustrates the importance that the difference might make.
  2. Conditional rulings cannot be appealed unless the conditions assumed by the ruling actually occur. Simply put, a party cannot challenge a conditional ruling concerning cross-examination of a witness if the witness is never called by the party.
  3. It is vitally important to parse the details of an evidentiary ruling. Cohen illustrates how a judge might provide guidance to the parties about evidence law, but one party might not fully comprehend or might misunderstand the ruling.

Stephen A. Saltzburg

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Stephen A. Saltzburg is the Wallace and Beverly Woodbury University Professor at the George Washington University Law School in Washington, DC. He is a past chair of the Criminal Justice Section and a regular columnist for Criminal Justice magazine. He is also the author of the book Trial Tactics, Third Edition (ABA 2013), an updated and expanded compilation of his columns.

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