Federal Evidence Review

In an extortion trial, the Eleventh Circuit finds “meritless” a Confrontation challenge to the statements the victim made to his wife since the defense cross-examination of the wife about what the victim had told her about the alleged extortion threats was invited; the defendant “cannot complain ... about testimony he elicited,” in United States v. Bornscheuer, 563 F.3d 1228 (11th Cir. March 31, 2009) (Nos. 06-14607, 07-10009)

How does a party “invite” an error that it later claims should be a basis for reversal on appeal? Sometimes it may be inadvertent during the heat of a trial. Other times, as suggested by former California Chief Justice Roger Traynor, it may result from a party’s poorly executed attempt to mitigate a “prejudicial matter” that was “first introduced” by the party’s “adversary and then developed by the appellant in an effort to mitigate its prejudicial effect.” Traynor, The Riddle of Harmless Error 76-77 (1970). Traynor warned, however, that “mechanically” employing the doctrine of invited error is certainly not “judiciously” employing the doctrine. A recent Eleventh Circuit decision illustrates some of the difficulty in teasing out whether applying the invited error doctrine in an evidentiary context was mechanical or judicious.

In Bornscheuer, the defendant was charged with extortion and conspiring to obtain victim Fessler’s property by threatening the victim and his family with physical violence and other forms of harassment. The case involved the purchase by the defendant of a publishing operation owned by the victim. The defendant actually did not have the full purchase price and as business conditions soured in 2003 and 2004, the defendant insisted that the victim rescind the deal. As part of the ill-conceived deal, the defendant had given the victim’s wife a $595,000 mortgage on the defendant’s residence and now the defendant wanted the debt cancelled. When the victim refused to rescind the deal, the defendant told him:

“You don't understand, Fessler, that my investors are dangerous people. They are of the criminal element. They are the kinds of people who will resort to anything in order to get their money back.”

Bornscheuer, 563 F.3d at 1230. These threats increased in frequency and detail, as the defendant pressed to cancel the deal.

In the face of these threats, the victim feared that he and his family were in “grave danger.” The victim contacted the FBI and an investigation was opened. He was asked to “record all future conversations with Bornscheuer … and to agree to any demands … made” by the defendant. With evidence of this sort gathered by the victim, the defendant was charged and convicted of violating the Hobbs Act and related charges. On appeal, he claimed his Confrontation Clause rights were violated by the admission “through the testimony of [the victim’s wife] Susanne Fessler, statements [of the victim] Claus Fessler made to her describing the threats Bornscheuer had made.” Bornscheuer, 563 F.3d at 1238.

The Eleventh Circuit concluded the “argument is meritless.” The circuit faulted the defendant for filing a brief that “contains broad assertions about the Government's use of out-of-court statements that came in through Susanne Fessler's testimony,” but that “fails to cite any statement that came in over a hearsay objection.” Bornscheuer, 563 F.3d at 1238. The circuit ventured that “[p]erhaps such failure is due to the fact that the majority of the out-of-court statements Susanne Fessler recited were elicited by Bornscheuer's attorney during cross-examination.” The circuit then dismissed the contention as invited error: “Bornscheuer cannot complain here about testimony he elicited.” Bornscheuer, 563 F.3d at 1238 (citing Ford v. Garcia, 289 F.3d 1283, 1293-94 (11th Cir. 2002); see also United States v. Martinez, 604 F.2d 361, 366 (5th Cir. 1979) (“The accepted rule is that where the injection of allegedly inadmissible evidence is attributable to the action of the defense, its introduction does not constitute reversible error.”)).

The circuit appeared frustrated with the briefing it received on the issue. Since the defendant failed to identify to the circuit’s satisfaction the specific testimony that ran afoul of the Confrontation Clause, application of the invited error doctrine might reflect less its mechanistic application and more a frustration with a sketchy appellate argument. Nonetheless, the circuit concluded that the defendant invited the problems it raised on appeal.