Federal Evidence Review

In trial for possessing stolen paintings, admitting evidence of statements by the paintings' owner that defendant's offer to return one (a still-life by Paul Czanne) in exchange for transferring to defendant title to six other stolen paintings, to which the owner ultimately agreed, was "extortion" and “something like kidnaping”; the prejudicial impact of the statements did not outweigh their probative value under FRE 403 because they were relevant to the defendant's contention that he held the paintings with the owner's permission, in United States v. Mardirosian, __ F.3d __ (1st Cir. April 14, 2010) (No. 09-1144)

In admitting evidence of criminal liability, how admissible are statements by victims characterizing the nature of the defendant's allegedly criminal acts? FRE 403 provides the court discretion to exclude this evidence, even if relevant, if it is unduly prejudicial. This does not necessarily lead to the exclusion of a victim's conclusions about the conduct to which he or she was subjected by the defendant. Such evidence is often an essential part of the case against the defendant. A recent case in the First Circuit described the application of FRE 403 in an appeal concerning a complex art theft scheme. The circuit explained how, contrary to the defendant's contention, the victim's ad hoc characterization of the criminal scheme constituted evidence whose probative value was not outweighed by the risk of undue prejudice.

In the case, defendant Mardirosian, a criminal defense attorney, ended up with several paintings belonging to Bakwin. These paintings had been in the possession of one the defendant's clients who had died in jail. The defendant did not attempt to return the paintings to the owner but rather explored various avenues for possibly selling the paintings. As a result of the defendant's efforts to transfer the paintings, he was charged with "possessing, concealing or storing six stolen paintings, including a rare Czanne valued at $29 million, in violation of 18 U.S.C. § 2315." As negotiations for the return of the paintings to their owner Bakwin bogged down over the years, the defendant demanded, and the owner Bakwin ultimately agreed in 1999, that for the return of the $29 million Czanne, the victim would transfer title of the remaining paintings (which were worth less than $1 million) to the defendant. At trial, the defendant contended that by virtue of this arrangement, "the owner had given him legal title to the paintings." Accordingly he could not be found guilty of possessing a stolen painting because "he subjectively believed that he held title to the paintings ... and thus the government could not prove he knowingly possessed stolen property." Mardirosian, __ F.3d at __.

The trial court was not convinced by this defense and entered a verdict against the defendant. He appealed, contending that the trial court erred in allowing the victim "and the government to use certain words to characterize Mardirosian's actions" in dealing with the paintings. As described by the First Circuit this objection involved the trial court's admission of testimony by the victim who described the exchange of the Czanne for the other paintings as “extortion” and “something like kidnaping.” The victim "testified that his initial response" to the proposed agreement with the defendant was to tell his agent "that it was “extortion, but if we can get the painting back that way, I can't believe that we could not also get the other six paintings.” Later, when asked why he entered into the agreement, Bakwin stated, “Well, first of all, I wanted desperately to get the paintings back, and second of all, I felt that this was just extortion, and he had no right to the six other paintings.... I felt it was something like kidnaping.” Mardirosian, __ F.3d at __.

In assessing the evidence under FRE 403, the circuit noted that the defendant argued that the victim's "characterization of the 1999 Agreement had no probative value in proving the criminal offense charged." The defendant argued that "[b]ecause its prejudicial impact outweighed its probative value ... the testimony should have been excluded under Rule 403 of the Federal Rules of Evidence." Mardirosian, __ F.3d at __. The circuit rejected this contention on appeal. The circuit reviewed the issue for plain error because the defendant had failed to preserve the issue for review. No error was found:

"We note that Bakwin's testimony was in fact highly relevant to the prosecution's case. A central theme of Mardirosian's defense at trial was that the 1999 Agreement was a valid agreement between sophisticated business people and represented Mardirosian's good faith effort to return the stolen paintings to Bakwin. Bakwin's testimony undermined these arguments by suggesting that Bakwin did not enter into the agreement willingly. The testimony was also important to the government's case in that it provided proof that Mardirosian did not seek through the 1999 Agreement to return the paintings for a reward that he actually believed had been posted. As we find no error occurred, Mardirosian's claim fails."

While Mardirosian is not an exceptional case in terms of the application of FRE 403, it does illustrate the application of the principles behind the rule in the more unusual criminal setting. There, as in the more run-of-the-mill criminal case, evidence will not be considered unduly prejudicial “simply because” it is inflammatory. See Robinson v. Runyon, 149 F.3d 507, 512–13 (6th Cir. 1998) (trial judge erred by not admitting application form that contained a “litany of racial stereotypes”). As in Robinson, the victim's evidence in Mardirosian was particularly probative since it demonstrated the defendant's motive.