In another Seventh Circuit case involving a sexual predator the Court affirmed the conviction of Eric D. Zahursky. Zahursky repeatedly contacted “Shelly” (United States Secret Service Special Agent Ryan Moore) who claimed to be 14 on an adult chat line. Eventually they made arrangements to meet for sex at a Starbucks in Valparaiso, Iowa.

During the chat room discussions “Shelly” asked Zahursky to bring condoms, and K-Y jelly . When Zahursky arrived at the Starbucks he was arrested by Moore while another agent searched his car. In the car the agent found the condoms, the jelly and directions from Zahursky’s Illinois house to the Starbucks. On appeal Zahursky challenged the search. The Court found it to be a valid search under the automobile exception to the Fourth Amendment’s warrant requirement. The automobile exception started with The Supreme Court’s decision in Carroll v. United States It allows for a search of any vehicle for which there is probable cause that evidence of a crime will be found due to the mobility of the vehicle and the decreased expectation of privacy in a vehicle. The Court found that there was probable cause that the condoms, the K-Y jelly and other evidence of interstate travel (an element of the offense) would be found in the vehicle and therefore the search was legal even though it started before it was discovered that the K-Y jelly and the condoms were not in Zahursky’s pockets.

Another issue on appeal was the admission at trial of evidence of Zahursky’s other contacts with juveniles on chat lines and the use of a witness called “SS” who Zahursky lured into have sex five years prior to the trial when “SS” was fourteen. The appellate court found the evidence appropriate. Evidence cannot be admitted solely to show bad character or a propensity to commit a crime. But the appellate court found that the trial court admitted the evidence under Rule 404(b) of the Federal Evidence Code. Under Rule 404(b) evidence is admissible if

(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged;
(2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue;
(3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and
(4) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.

The appellate court found that the evidence was admissible to show knowledge, motive, and intent. The chat line evidence shows Zahursky’s interest in juvenile sex and therefore is admissible to show his motive in contacting “Shelly.” The numerous discussions on the chat line indicating the girls’ ages is admissible to show lack of mistake.

Zahursky argued that the chat line evidence should be excluded because the probative value of the evidence was substantially outweighed by excessively prejudicial details. But the court did not find that the chat line evidence was unduly prejudicial because Zahursky was unable to prove that as a result of the evidence the jury decided the matter on emotional grounds.

Finally the appellate court remanded the matter to the trial court for resentencing since the trial court erred in enhancing the sentence under the Federal sentencing guidelines for unduly influencing a minor. Based on Seventh Circuit precedent the court found that the enhancement was not appropriate when the “minor” is an agent.

On Monday we discussed prior bad acts evidence in a narcotics and guns case. Today we have prior bad acts evidence in a Tenth Circuit parental kidnapping case.

Vojko Rizvanovic is the father of two young children. He was in a long term relationship with their mother. In 2006 she took the children and moved into a shelter. The family court found that Rizvanovic committed emotional and domestic abuse against the children and their mother. As a result it gave the mother sole custody.

During an overnight visitation Rizvanovic took the children to Australia with the plan to then take them to Macedonia. He was arrested on a stop over in Vienna.

At trial, Rizvanovic argued, as an affirmative defense, that he took the children abroad to protect them from being abused by their mother who had a history of mental illness. During cross examination on the international parental kidnapping charges the court allowed the prosecutor to question Rizvanovic about the family court finding that he abused his family. The Court also permitted rebuttal evidence from the defendant’s seventeen year old daughter regarding his abusiveness. The court instructed the jury that the evidence was not being admitted for the truth of the matter asserted but merely to assist in judging Rizvanovic’s credibility.

Rizvanovic argued that whether or not he was abusive was not relevant to whether he took the children out of the country to escape their mother’s abuse. Both parents could be abusive and his abuse, if any, was not relevant. But the court found evidence of his abuse relevant on the issue of motive. He claimed he was trying to protect the children. The judge felt and the Circuit court agreed that if he claimed that he was trying to protect the children evidence of abuse which was contrary to his claim to protect the children was admissible.

But certainly when you compare the probativeness of the evidence with the prejudice to Rizvanovic it is significantly more prejudicial than it is probative. Considering that his defense was based upon a claim that the children’s mother abused the children evidence that he abused them is prejudicial while of limited probative value on the issue of his credibility. But as we pointed out Monday appellate courts are reluctant to reverse trial court decisions, based upon the admissibility of evidence.

Damion Townsend was charged with conspiracy to distribute at least 50 grams of cocaine base and an unspecified amount of cocaine, possession with intent to distribute cocaine base, and possession of a firearm during and in furtherance of a drug transaction. He was convicted on the conspiracy charge only.

Townsend drove his close friend, Jones, who unbeknownst to him was a government informant, and Winfree around New York City to complete some errands and to purchase some cocaine from Scrap in a deal arranged by Jones. Then at Jones urging they went to Townsend’s house where Jones converted the cocaine into cocaine base.

He raised two issues on appeal: insufficiency of he evidence, and the admission of prior bad act testimony.

But winning a case on appeal is no easy task. For many issues the appellate court gives great deference to the trial court and the jury verdict. When it comes to sufficiency of the evidence the

Court ‘must review the evidence in the light most favorable
to the government, drawing all reasonable inferences in its favor.Reversal is warranted only if no rational factfinder could have found the crimes charged proved beyond a reasonable doubt. In other words, a court may grant a judgment of acquittal only if the evidence that the defendant committed the crime alleged was nonexistent or . . . meager.”

(citations omitted)

Since the test is if there is any evidence that Townsend conspired to sell base cocaine, the appellate court won’t overrule the trial court. Here Townsend claimed that the informant who he had known since childhood was not credible. Thus it is a question whether or not the jury believed the informant. Since the jury could have believed the informant the appellate court did not reverse the conviction. This is probably a good rule. Our country’s criminal laws are bases on the common law’s faith in the jury system. The jury composed of peers of the defendant is the trier of the facts. The members of the jury, not the appellate judges saw the witnesses and determined which witnesses to believe and which witnesses not to believe. And I for one prefer to put my faith in a jury than in a jaded judge.

The second issue is that the prosecutor introduced two prior incidents in which Townsend sold guns to Jones. This is called prior bad acts evidence (21 USC 402(b). Theoretically it cannot be used to show Townsend’s bad character. It can only be used to prove an issue that is in contention. But as the majority points out The Second Circuit has an “inclusionary approach.” The standard of review is an abuse of discretion. In other words before the appellate court will consider reversing a conviction for an error in admitting the evidence it must find that the trial court’s decision was arbitrary and irrational. Once it finds that the decision is arbitrary and irrational it applies the harmless error test.

“An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.”

In other words it is nearly impossible.

But in this case it is a close call. It is arbitrary and irrational if the alleged prior incident is not relevant to some issue that is before the court.

“To determine whether a district court properly admitted
other act evidence, we consider whether “(1) the prior acts evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.”

The majority opinion found it relevant on the issues of knowledge and intent both of which it found to be disputed. It also went to show the relationship between Townsend and the informant. But the minority opinion pointed out that the intent and the knowledge necessary for sell firearms is different from what is needed in a drug transaction. Furthermore, the relationship between Townsend and Jones was not in question. All agreed it was close. Therefore it could only be used as illegal character evidence and should have been excluded.

The dissent also claimed that the trial court should have excluded the evidence under the Federal Rules of Evidence section 403 which excludes evidence whose probative value is highly outweighed by the prejudicial value to the defendant. The trial court failed to take into consideration the fact that even if the evidence is relevant it can be excluded if it shows the propensity of the defendant to commit crimes. While neither opinion raises the issued under Section 403 the evidence can be excluded, where although the evidence is relevant it waste too much time to put it in. Here they had a least one witness testify about the guns and put both guns into evidence. For the minimal value if any of using the guns it took up a significant amount of time and should have been excluded on the section 402(b) and 403 issues.