Did A "Conditional Ruling" Compel The Defendant To Testify In Violation Of The Fifth Amendment?

When a trial court conditions the admissibility of certain statements upon the testimony of the defendant, is the Fifth Amendment privilege against self-incrimination violated? In a trial involving a conspiracy to murder a federal prosecutor and special agent, the Seventh Circuit concluded that while the choice may have been a "difficult" one, it was still voluntary since the defendant retained the right to refuse to testify and appeal the ruling if convicted, in United States v. Caira, _ F.3d _ (7th Cir. Dec. 5, 2013) (No. 12-2631)

The decision of a defendant to testify in a criminal trial can be among the most strategic, difficult and consequential choices to make. The Seventh Circuit recently reviewed this choice in the context in which the trial court had conditioned the admission of some state of mind evidence on the defendant testifying.

Trial Proceedings

In the case, defendant Caira, a medical researcher, was arrested and charged for his role in the production of ecstacy (or the synthetic drug known as MDMA (3,4‐methylenedioxy‐Nmethylamphetamine)). A defense attorney then contacted the FBI to advise that her client (Ricardo Ruiz) learned that defendant Caira was planning to murder the prosecutor and DEA special agent assigned to his case “in exchange for two kilograms of cocaine and lessons on how to make synthetic drugs.” Caira, _ F.3d at _. After meeting with Ruiz, agents learned that another individual involved in the murder plot, Jack Mann. Mann was arrested and agreed to cooperate and wear a recording device during a meeting with defendant Caira. After the meeting, defendant Caira was arrested and then charged with conspiracy to commit murder of a United States official and solicitation of a violent felony in violation. Several text messages between the defendant and Mann were found on his cell phone.

At trial, the government introduced the testimony of cooperating witnesses Ruiz and Mann and incriminating text messages about the murder plan recovered from defendant Caira’s cell phone. The defense theory was that “the plot was all Mann’s idea and that Caira never intended that anyone should be hurt.” Caira, _ F.3d at _. As his first witness, the defendant tried to call his former attorney (Jeffrey Fawell) to show the defendant panicked as part of his state of mind after reviewing a text message. The defense contended the defendant's reaction demonstrated his lack of intent to commit murder.

The trial court agreed with the government that the proffered testimony was "rank hearsay," adding: "[T]here are certain conditions precedent which must be met in order to have that evidence come in and not be hearsay.” Under these terms, the defendant decided to testify "while attempting simultaneously to preserve the Fifth Amendment issue for appeal." Caira, _ F.3d at _. During his testimony, the defendant explained his meeting with defense counsel Fawell:

I got a text message from [cooperating witness] Jack [Mann] saying there is a green light, everything is ready to go, you know, something like the ball is in your court he texted me. So as I got the text message, I let [Fawell] read it, and he said, you know, what’s this about? And I explained to him Jack’s plan to want to kill the prosecutor. And as I told him this, [Fawell] is, like, just … stay away from Jack, just stay away from all that shit, just don’t get involved with Jack anymore.

Caira, _ F.3d at _. The jury convicted the defendant as charged and he was sentenced to serve a prison term of life plus twenty years. On appeal, he that his Fifth Amendment right against compelled self‐incrimination was violated by the trial court's “condition precedent” that he testify before he could offer the statements of his former attorney Fawell.

Circuit Analysis: Hearsay Challenge

Initially, the Seventh Circuit considered whether the statements of former counsel were hearsay. The circuit disagreed with the trial court that the statements were hearsay because they were not offered to show the truth of the matter asserted under FRE 801(c). As the circuit explained:

In our view, the more natural interpretation is that these statements were offered to show Caira’s state of mind, not to prove the point that he actually had received text messages from Mann or that he should avoid Mann. Because the statements were not offered to prove the truth of
the matter asserted, the district court erred by characterizing them as hearsay.

Caira, _ F.3d at _.

Was The Defendant's Testimony Compelled Under The Fifth Amendment?

The Seventh Circuit concluded that the defendant's testimony was not compelled under the Fifth Amendment privilege against self-incrimination. The panel noted that "the link between an evidentiary error and a constitutional violation cannot be drawn so readily." The defendant's election to testify was voluntary since "the defendant retain[ed] the option of standing on his right not to testify and seeking appellate correction of the evidentiary ruling." The result was governed by prior precedent. Caira, _ F.3d at _ (citing United States v. Paladino, 401 F.3d 471, 477 (7th Cir. 2005) ("[T]here is no compulsion in such a case, since the defendant has the option of refusing to testify and instead, if he is convicted, of obtaining appellate correction of the erroneous evidentiary ruling and with it a new trial.") (citing Luce v. United States, 469 U.S. 38, 43 (1984) (holding "that to raise and preserve for review the claim of improper impeachment with a prior conviction [under FRE 609(a)], a defendant must testify")).

The circuit declined the defendant's invitation to "overrule Paladino on the ground that it unjustifiably extends the Supreme Court’s reasoning in Luce, a case in which the defendant did not testify at trial." As the circuit framed the issue:

The question is whether we were correct in Paladino to apply the Luce principle (reaffirmed in Ohler v. United States, 529 U.S. 753, 759 (2000)) to cases in which the defendant does testify in response to an evidentiary error by the district court. We are satisfied that the answer is yes.

Caira, _ F.3d at _.

Ultimately, the defendant is not being compelled to testify because he can decline to do so and challenge the ruling on appeal by requesting a new trial. While "this rule puts the defendant to a hard tactical choice," the circuit noted that "the alternative would be to give him two bites at the apple: testify, and try to win an acquittal; if that fails, appeal and get a new trial on the basis of the judge’s ruling." Caira, _ F.3d at _ (quoting Paladino, 401 F.3d at 477; citing United States v. Wilson, 307 F.3d 596, 599-600 (7th Cir. 2002) (rejecting claim that such a choice impermissibly puts defendant “on the horns of a dilemma”); Cf. McGautha v. California, 402 U.S. 183, 217 (1971) (concluding that “the policies of the privilege against compelled self‐incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt”)).

So while the choice may have been a "difficult" one, the defendant retained the right of election. The error of the trial court in initially excluding the statements of counsel as hearsay was harmless error based on the evidence of guilt.

Separate Fifth Amendment Issue

The circuit noted a distinct Fifth Amendment issue that could arise:

Wrongful exclusion of material evidence can, in some circumstances, amount to a Fifth Amendment violation if it deprives the defendant of due process. This is a distinct problem from the one raised by compulsory self‐incrimination. We do not have before us a case in which the defendant’s only exculpatory evidence other than his own testimony is wrongfully excluded by the district court, and so we express no opinion about that situation.

Caira, _ F.3d at _.

Conclusion

The Caira case highlights some strategic decisions that a defendant may have to make in deciding whether to testify or not. The decision is certainly most often a "difficult" one, as the Seventh Circuit recognized.

The case also involves the application of Supreme Court precedent concerning the consequences of an election to testify. However, two other circuits have concluded that the failure to testify may waive a challenge to an evidence issue. See, e.g., Luce Waiver Principle Extended To Fifth Amendment Testimony Claim (referring to First and Fifth Circuit cases concluding that when a defendant elects not to testify at trial, the defendant’s Fifth Amendment claim is “unreviewable” on appeal).

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