Tag Archives: judicial bias

All Pro Appellate Judge Stumbles at Trial – Update for October 25, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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I INSTRUCT THE JURY TO DISREGARD THE SMELL

There’s an old saying among trial attorneys that goes something like for the judge to instruct the jury to disregard something very prejudicial it has just seen or heard is “like throwing a skunk into the jury box and then telling the jury to disregard the smell.”

skunk171025The smell in a decision from the 7th Circuit earlier this week was just too intense. What makes the case even more noteworthy is that the trial judge who crossed the line was not just some small-town hack put on the bench as a reward for political loyalty, but rather Circuit Judge Richard Posner, arguably the 7th Circuit’s MVP for the past 25 years.

Judge Posner was taking a turn in the trenches, as circuit judges do from time to time, just to experience some of the rough-and-tumble which they are called upon to referee up on the appellate bench. The plaintiff was Hakeem El-Bey, a self-described Moorish national, who was running the usual tax scam in which he set up an eponymous trust, naming himself as the trustee and fiduciary, and then claimed $300,000 refunds from the IRS. (There are finer points to the scheme, but we’ll leave them out, because they might just encourage illegality).

The IRS resisted his demands, but someone at the Service finally pushed the wrong button, and a check for $300,000 got sent to Hakeem, who quickly spent it. The blunder happened again a few months later, and Hakeem figured he was on Easy Street.

Alas, it was not to be. The IRS Criminal Division caught up with him, and in short order Hakeem was indicted for mail fraud and making false claims to the IRS.

Hakeem represented himself at trial, an idea the foolishness of which we probably do not have to explain. Judge Posner permitted Hakeem his blunder, but appointed a standby attorney, Gabriel A. Fuentes.

sovereigncitizen161125Hakeem followed the tax protester/sovereign citizen script to the letter, filing pretrial motions related to admiralty law, the Uniform Commercial Code, and the Federal Rules of Civil Procedure. Judge Posner excluded Hakeem’s sovereign citizen evidence, and warned Hakeem that if he brought it up, the judge might exclude him from the courtroom, too, and let attorney Fuentes carry the defense load/

Some background here: the IRS likes to say it depends on voluntary compliance with the tax laws. And of course it does, just like the state police depend on voluntary compliance with the traffic laws. There’re just not enough cops to stop everyone. But Hakeem and his fellow tax protest travelers like to argue that “voluntary compliance” means taxpayers send in their checks and returns out of the goodness of their hearts. The argument has more holes than a swiss cheese factory, but that inconvenient fact does not deter the Hakeems of the world.

At trial, Hakeem cross-examined an IRS representative on the matter, asking her whether federal tax law compliance was voluntary. She responded:

The tax laws are based on individuals taking their information, voluntarily putting them on the tax returns, and mailing them to the IRS. However, the law states if you don’t do that the IRS can come in and file for you because the law states you file and pay your income tax.

aha171025Hakeem figured this was his “A-ha!” moment. He argued with the witness that “you just contradicted yourself. Because in one case you are saying that the IRS is saying filing taxes is voluntary compliance?” At this point, Judge Posner had had his fill:

THE COURT: Look, paying taxes is not voluntary.
THE DEFENDANT: That’s what it says here. I’m not saying it.
THE COURT: Come on.
THE DEFENDANT: Judge, I’m not saying it.
THE COURT: You don’t pay your tax, you go to jail.
THE DEFENDANT: Judge, I’m just saying what they are saying what they have—
THE COURT: Payment of taxes to the government is not voluntary.
THE DEFENDANT: Okay. Judge, so you brought in from behind the law.
THE COURT: Just—look, I’m going to kick you out if you keep on with this nonsense. You understand that? You can go watch the case from another room.
THE DEFENDANT: Okay. I am through.
THE COURT: Don’t you say that tax payment is voluntary.

The jury heard it all.

The government, with one eye on an appeal, was concerned. The next day, before the jury entered the courtroom, the AUSA told the judge “that some of what happened yesterday may have been potentially prejudicial to the defendant … importantly, perhaps, [it] has left a misimpression with the jury in certain respects.” Judge P agreed, and instructed the jury that it should ignore the malodorous exchange of the day before:

After the jury entered the courtroom, the court explained, “You don’t have to worry about the exchanges that Mr. El-Bey and I have had. And I don’t want you to feel any hostility to Mr. El-Bey just because I got annoyed occasionally.” He then proceeded to read parts of the transcript of the previous day’s exchange back to the jury, including his exchange with Hakeem on “voluntary compliance.” The judge concluded

When I said: If you don’t pay taxes you go to jail, what I was simply saying was you must pay taxes, and if you don’t pay taxes it’s criminal and you can be sent to jail. I was not talking about Mr. El-Bey, because he isn’t charged with tax evasion.

Unfortunately, the judge was not quite done. When he was reading the jury instructions, Judge Posner went off-script, ignoring the written instruction on materiality, and ad libbing instead:

One [element] is that … the scheme to defraud involved a materially false or fraudulent pre-tense, representation, or promise. That’s very important, that notion of materiality… Little white lies, those are not material falsehoods. They don’t—I mean, they may embarrass you when it’s discovered, but they’re not—that’s not wrongful conduct. It’s when, with specific reference to our case, if you—if tell—if you tell the Internal Revenue Service a lie which is capable of getting them to do something which they would never do if they knew the truth, namely, give you $300,000 to which you’re not entitled, that is a material falsehood. That’s fraud. And that is an element of the charges.

swift171025On appeal, Hakeem complained that Judge Posner had been biased against him, and thus violated his due process right to a fair trial. In the 7th Circuit, that’s like accusing Taylor Swift of lip-syncing. But the 7th had to reluctantly that Hakeem had a point:

It is clear from the transcript of the trial court proceedings that El-Bey was a difficult litigant. He filed numerous irrelevant motions, disregarded court instructions, and often inappropriately interrupted the district court to express disagreement and dissatisfaction. Nonetheless, we agree with El-Bey that the district court’s remarks during cross-examination of the government’s first witness conveyed bias regarding his dishonesty or guilt. The district court interrupted El-Bey at the beginning of his cross-examination, stating, “Look, paying taxes is not voluntary.” When El-Bey noted that he was only reading what the document stated, the district court remarked “Come on”—a statement laced with skepticism. The district court continued with further remarks in the presence of the jury reflecting upon El-Bey’s dishonesty or guilt, stat-ing, “You don’t pay your tax, you go to jail,” and “I’m going to kick you out if you keep on with this nonsense…” The purpose of the comments cannot eliminate the bias conveyed to the jury by the remarks here. The court’s statements that one who does not pay taxes goes to jail and that El-Bey was acting in a nonsensical manner indicated bias about El-Bey’s guilt or honesty to the jury.

And if that were not enough, the Circuit said, Judge Posner did it again when he ad libbed instructions that “conveyed to the jury that El-Bey was guilty by concluding that El-Bey’s receipt of the checks and money made him guilty of mail fraud and making false claims.”

The appellate court had no doubt about Hakeem’s culpability, noting that “there is more than enough evidence of El-Bey’s guilt. But in the end, that did not matter. “We must… conclude that the unfairness in the trial requires reversal,” the court said. “Any other holding would constitute the adoption of the principle that a defendant the court thinks is obviously guilty is not entitled to a fair trial.”

Hakeem will be retried. Judge Posner will probably not be there.

United States v. El-Bey, Case No. 15-3180 (7th Circuit, October 24, 2017)

– Thomas L. Root

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Judge Boyle’s Mouth Buys Defendant a New Trial – Update for August 16, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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HEY, JUDGE – SHUT UP

We’ve had dealings with many federal judges in our day, and we have been impressed by most of them. If we were a criminal defendant, we would want to appear in front of a Mark Bennett (N.D. Iowa), a Jed Rakoff (S.D.N.Y.), a Jack Weinstein or (retired) John Gleeson (E.D.N.Y.), or a Jeff Helmick (N.D. Ohio). Not because these guys are soft on defendants, but because they’re thoughtful and fair.

Boyle170817We won’t name any of the judges on the other end of the scale save one, who is the subject of today’s case. We have some experience with Hon. Terrence W. Boyle, U.S. District Judge for the Eastern District of North Carolina, and that experience left us all too able to believe the experience that would-be U.S. citizen Hemza Menade Lefsih, a native Algerian, had in Judge Boyle’s courtroom.

Judge Boyle has a distinction of being among the most reversed – if not the most reversed – district judge in the 4th Circuit. Twice he has been proposed for elevation to the 4th Circuit Court of Appeals – once by President George H.W. Bush and again a decade later by President George W, Bush – and twice the appointment has not been approved by the Senate. While his opponents included predictably liberal groups, Judge Boyle’s fitness has been roundly questioned “over concerns about competence not conservatism.” Notably, many of his reversals were for F.R.Crim.P. 52(b) “plain error,” mistakes so substantial and obvious that they merited reversal even when the defendant had not objected in the trial court.

Hemza could tell you all about that. Initially, he had immigrated to the United States some years ago through what’s known as the Diversity Immigrant Visa Program. The Diversity Program awards permanent residence immigration visas – “diversity visas” – to individuals from countries with historically low immigration numbers on the basis of a random lottery system. Hemza won a lottery slot and received a diversity visa. As allowed under the Diversity Program, he then applied for citizenship five years after coming here.

ticket170817Question 23 on the application form asks whether an applicant has “ever been arrested, cited, or detained by any law enforcement officer . . . for any reason.” Hemza, who had worked as a cab driver, answered “no” to Question 23, despite the fact he had gotten 11 traffic tickets during his driving career. He thought Question 23 referred only to serious criminal offenses that resulted in arrests or detentions and not to traffic tickets, and so believed that he was answering the question truthfully.

Because Hemza failed to acknowledge his traffic tickets in answer to Question 23, the government – which should have had better things to do – charged him with making a false statement and immigration fraud. The government had no direct evidence that Hemza knew his answer to Question 23 was false. Instead, it relied on circumstantial evidence and its classic “smear the defendant” strategy.

An Immigration and Customs Enforcement agent testified that Hemza was proficient in English and had advanced education. In addition, the agent called Hemza’s motives in entering the Diversity Program into question, saying that in his experience, it was unusual that someone like Hemza would apply only for a diversity visa instead of a student visa, and probably did it because there were fewer restrictions on him as a diversity program entrant.

When the government’s next witness testified that the Diversity Program was established by Congress so that people from countries with historically low immigration rates would have an opportunity to live permanently in the United States, Judge Boyle could not restrain himself:

District court:  You’re saying that Congress has set up a law that your agency enforces that invites people to come to America from places where they don’t normally come to America?

Special Agent Freitas:   Yes.

District court:   That’s incredible. And the reason that they don’t come to America is because they haven’t tried to come to America? Is that it?

Special Agent Freitas:   Usually because of – they may not have family members here from those countries or employment opportunities.

District court:   Okay. Do you think anybody in America knows about this, other than the Committee that sent it through Congress? Probably not.

Special Agent Freitas:   I didn’t know it before I started –

District court:   And it’s your job. Don’t you love Congress? I mean, unbelievable, unbelievable. I’m sitting here 32 years, first time I ever heard this. And you’re talking about the hundred countries that nobody could name if they had a list of 180 countries in the world?

Special Agent Freitas:   Yes.

District court:   The bottom hundred.

inconceivable170817Judge Boyle carried on like this for an extended period, at one point complaining that “so if you get lucky and win the diversity lottery and get a card to come to America you can drag along your ten kids and four wives or what?” He whined that where some programs admitted people Aren’t there quotas on people coming from countries that send a lot of people here, and you who had proven they were “a doctor, an engineer or a rocket scientist or someone who is going to contribute to the well-being of the United States of America and make it a better place to live because of your skill or personal characteristics,” the Diversity Program used by Hemza told people “in the bottom hundred countries in the world, just come on.”

Hemza was his own witness, explaining his incorrect answer to Question 23 was an honest mistake, rather than a knowing falsity, that “he did not understand what the word ‘cited’ meant, or that “traffic tickets are actually included in the word cited.” Instead, because the word “cited” appears between “arrested” and “detained” in Question 23, Hemza assumed that it carried a similar meaning: being taken into custody. He testified, “It never occurred to [me] that [a] traffic ticket could be [a] criminal offense.”

Hemza was convicted. Ironically, at sentencing, Judge Boyle said he believed Hemza was “sincere” in his account of his “unknowing mistake,” thus putting meat on the bones of the old saying that “it takes a good prosecutor to convict the guilty, but it takes a great prosecutor to convict the innocent.”

judge160222This time, the 4th Circuit ruled earlier this week, the “great” prosecutor had help. The appellate court reversed Hemza’s conviction, holding that Judge Boyle’s diatribe about the Diversity Program denied him a fair trial.

A federal judge need not sit silently during the presentation of evidence at trial. “There is no question,” the Court of Appeals said, “that in these core matters of trial management, a district court is granted broad discretion.”

But there are limits, and Judge Boyle – unsurprisingly to us – exceeded them. “This jury,” the 4th Circuit said, “would have no need to deduce from a pattern of interruptions or questions that the district court was skeptical of the defendant; here, the district court conveyed that skepticism directly. In the context of an immigration-fraud case – that is, with immigration front and center before the jury – the court began with a series of questions and comments suggesting a negative view of the very immigration program through which Lefsih had entered the country: ‘[U]nbelievable, unbelievable.’ And contrary to the government’s argument, what reasonably could have appeared to the jury as the court’s disapproval did not stop with the Diversity Program itself, or the Congress that established it. Instead, the court went on to provide a negative assessment of the people – like Lefsih himself – who make use of the Diversity Program to come to the United States.”

boyleB170817This was a case in which the credibility of the defendant was of “crucial importance,” and as a result, aspersions cast by the court on the trustworthiness of Diversity Program entrants would have carried special weight. The Circuit Court concluded that “it is enough to say” that Judge Boyle’s comments “taken together, would have conveyed to the jury the court’s ‘negative impression’ of the Diversity Program and the immigrants who avail themselves of the Program, and thus of Lefsih himself.”

The 4th Circuit includes the obligatory “we do not doubt that the district court in this case acted without any intent to influence the jury improperly” language, but veteran Judge Boyle watchers recognize that statement for the mandatory fig leaf that it is.

Hemza will get a new trial.

United States v. Hemza, Case No. 16-4345 (4th Cir., Aug. 14, 2017)

– Thomas L. Root

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Recuse Me – Update For March 9, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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THE JUDGE IN THE TOWN’S GOT BLOODSTAINS ON HIS HANDS…

We confess to a lack of creativity. This is the second time in less than a month that we’ve pinned our theme to lyrics from Vicki Lawrence’s 1973 hit, The Night the Lights Went Out in Georgia. What compounds our intellectual felons is that the judge in today’s report had hands stained green, not red.

The big Supreme Court news Monday was the unsurprising (to us, at least) Pena-Rodriguez v. Colorado decision, in which the Court held that the sanctity of the jury room could be invaded where a juror showed racial bias. The decision of importance to our readers, Beckles v. United States, ran a distant second in the news. And the case we’re looking at today, a summary disposition in Rippo v. Baker, was almost completely ignored.

bribeB160627Mike Rippo is a Nevada death-row inmate who alleged that the judge in his state trial was biased. Mike was tried for two murders in 1992. Shortly after his trial started, newspaper stories revealed the judge, Gerard Bongiovanni, was under investigation by a federal grand jury for allegedly taking bribes. Mike moved for the judge’s recusal as a matter of due process, contending that a judge could not impartially adjudicate a case in which one of the parties was criminally investigating him. Mike argued the judge had a motive to favor the prosecution in his case, in order to curry favor.

The DA falsely denied that his office was part of the bribery probe, and the judge himself said he did not know about any state law enforcement involvement in the fed’s investigation. The trial went on, and Mike was convicted. But after the trial ended, the judge was indicted by a federal grand jury for bribery unrelated to Mike’s case.

vegas170309In a later state post-conviction proceeding, Mike advanced his bias claim again, this time pointing to documents from the judge’s criminal trial indicating that the district attorney’s office had participated in the bribery investigation. The state court denied the motion, and the Nevada Supreme Court affirmed. It reasoned that Mike was not entitled to discovery or an evidentiary hearing because his allegations “did not support the assertion that the trial judge was actually biased in this case.”

The U.S. Supreme Court dithered over Mike’s petition for certiorari, re-listing it for conference five times. Finally, last Monday the Court summarily reversed the Nevada courts and sent the case back.

The Nevada courts’ error, last Monday’s short opinion said, was in applying the wrong legal standard. The due process clause “may sometimes demand recusal even when a judge has no actual bias,” the Court ruled. “Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable.”

 The Rippo decision may save some people from writing pleadings on the sides of their cars…
The Rippo decision may save some people from writing pleadings on the sides of their cars…

The test is not “whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.” To make out a bias complaint, a litigant need not “show as a matter of course that a judge was actually biased in the litigant’s case.” Such a standard would be nearly impossible to meet. Instead, it is enough if “the circumstances alleged” are such that “the risk of bias” is too high to be constitutionally tolerable.

And how high is too high? We’ll have to wait for further opinions to resolve that.

Rippo v. Baker, Case No. 16-6316 (March 6, 2017) per curiam

– Thomas L. Root

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