In trial of defendant under the Deadbeat Parents Punishment Act, admitting exhibit at final arguments that depicted the defendant's luxury car, his statement that he had no obligation to pay for the support of his child, and picture of the child whom the defendant failed to support; while "hardhitting," the exhibit was not unfairly prejudicial under FRE 403 since it portrayed "exactly what [the evidence] depicts," in United States v. Hanna, __ F.3d __ (7th Cir. Dec. 22, 2010) (No. 10-1331)
It is not a common case that deals with the FRE in evaluating the argumentation of counsel during the close of trial. Even rarer is reference to the FRE in evaluating the use of exhibits in closing argument. In a recent case, the Seventh Circuit considered a defendant's contention that an exhibit used by the prosecutor in final arguments to the jury violated FRE 403, which bars the introduction of evidence, even if relevant, which is unduly prejudicial. The circuit rejected the defendant's argument, but none the less left the implication that the FRE is fully applicable even in the assessment of arguments by counsel.
In the case, defendant Hanna was an Illinois pathologist. When he and his wife divorced shortly after the birth of their daughter, the defendant was ordered to make biweekly child-support payments of $967.38 until his daughter turned eighteen years of age. "For the most part, he flouted this order. After several years of nonpayment and a move to Washington State, a federal grand jury in Chicago indicted Hanna on charges that he willfully failed to pay a support obligation to a child residing in another state." Hanna, __ F.3d at __. At trial, the trial court admitted evidence that:
Hanna was living quite well. Hanna took out a lease for a Lexus ES 300 in October 2002, and paid nearly $800 a month for the car through September 2005. In December 2003, just three months after losing his Washington medical license, he leased a Porsche Boxster S, putting $1,455 down and agreeing to pay $930 a month for five years. On the lease application, Hanna listed an annual income between $100,000 and $150,000. In August 2005 Hanna leased a third car (a Jaguar) for almost $950 per month, and in March 2008 Hanna took out a fourth lease of $1,100 a month for an Audi A6. All the while, Hanna spent significant sums on travel, gifts, and entertainment.Hanna, __ F.3d at __.
In addition to the evidence of a lavish life-style, the prosecution also presented testimony of a Special Agent of the U.S. Department of Health and Human Services. The agent recounted interviewing the defendant, who he reported he found defiant, admitting that he failed to satisfy his child-support obligations and indicating no intention to pay. When the agent pointed out large accounts the defendant maintained in Canada and that he was using to fund his luxuries, the agent said that the defendant told him: “I am not going to use my life lines to pay child support. I'm using them to pay myself.” The jury convicted the defendant and as part of his appeal, he cited as unduly prejudicial an exhibit the prosecution used during closing arguments.
Hanna, __ F.3d at __.
The defendant contended that admission of the exhibit violated FRE 403. The exhibit should not have been admitted, he argued, because it was unfairly prejudicial. Specifically, the exhibit "displayed side-by-side pictures of his daughter and a Porsche Boxster [luxury car] just above his statement to [the] Agent ... -'I am not going to use my life lines to pay child support. I'm using them to pay myself.' This combination of materials, Hanna asserts, inflamed the jury and was therefore unfairly prejudicial." Hanna, __ F.3d at __.
The Seventh Circuit did not require a lengthy analysis to dismiss the defendant's argument. According to the circuit:
Hanna has not demonstrated that he was unfairly prejudiced, let alone that the district court abused its discretion by admitting the exhibit. He does not deny making the statement. All he says is that the exhibit inflamed the jury by suggesting that he placed a higher value on his Porsche than his daughter. The government stands by its exhibit and the message it conveyed: that Hanna did, in fact, place a higher premium on his cars and lifestyle than his own daughter. In our view, the district court was entitled to come to the conclusion that the exhibit, while hard-hitting, was a permissible use of the evidence in the case. It illustrated graphically Hanna's willfulness and the choice he made to live a life of luxury while at the same time ignoring his obligation to pay child support. Where, as here, a defendant is 'being prosecuted for exactly what [the evidence] depicts,' we have consistently rejected Rule 403 challenges.Hanna, __ F.3d at __ (citing United States v. Burt, 495 F.3d 733, 741 (7th Cir. 2007), United States v. Zawanda, 552 F.3d 531, 535 (7th Cir. 2008))
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