Federal Evidence Review

Eighth Circuit joins Third and Sixth Circuits in holding the district court could decide any vindictive prosecution issue before trial but the issue was not appropriate for the jury, in United States v. Clay, _ F.3d _ (8th Cir. Aug. 27, 2010) (No. 09-3134) (per curiam)

In the case, defendant Clay, a licensed attorney holding a real estate and contractor’s license, and two others were prosecuted based on a fraud scheme involving the purchase of five homes. The purchasers were promised a “no-risk transaction” and received cash at closing. Fraudulent information and forged signatures were submitted with contracts showing the sale price exceeded the asking price. Invoices were submitted for work that was not completed. The defendant received a check for the invoice amount which he split with the co-conspirators. At trial, the defendant sought to introduce evidence “of the original prosecutor’s animosity toward him” which resulted in the offenses being filed. The trial court excluded this evidence. After the defendant was convicted for conspiring to commit wire fraud and money laundering, on appeal he challenged the exclusion of the vindictive prosecution evidence.

The Eighth Circuit noted the open issue and held “that the selective prosecution of a criminal defendant is not an issue for the jury to decide” but one for “the district court should consider … before trial.” The Eighth Circuit noted that the Third and Sixth Circuits had reached the same conclusion:

• United States v. Abboud, 438 F.3d 554, 579 (6th Cir. 2006) (“[T]he district court’s motion in limine was correct because the defense of selective prosecution is a matter that is independent of a defendant’s guilt or innocence, so it is not a matter for the jury.”), cert. denied, 127 S. Ct. 446 (2006)
• United States v. Berrigan, 482 F.2d 171, 175 (3d Cir. 1973) (“By both tradition and constitutional mandate the jury is given the responsibility of determining guilt or innocence according to instructions of law delivered by the court. The question of discriminatory prosecution relates not to the guilt or innocence of appellants, but rather addresses itself to a constitutional defect in the institution of the prosecution.”)

On the merits, the district court had properly denied the claim. In a pretrial hearing, the district court heard testimony from the original prosecutor and supervisor. The court noted that the investigation commenced once a tax preparer became concerned that he could face criminal prosecution for filing false tax returns for the conspirators. One prosecutor was too busy to review a draft warrant prepared by the FBI agent and the matter was reassigned to another prosecutor who approved the affidavit.

The prior precedent noted that the issue of vindictive prosecution is not an issue concerning guilt or innocence, which the fact-finder decides. Even assuming this issue could be presented to the jury, additional FRE 403 unfair prejudice concerns would be raised. To place the evidence in context, the jury would have to learn more about the process in which charges are reviewed and brought. The potential for confusion of the issues certainly would be ripe.