The Need For An Experienced Trial Attorney

January 10, 2017

 The following case illustrates what can happens when your trial attorney does not have a basic understanding of the Federal Rules of Evidence. In this case the Defense attorney did not understand how to impeachment a witness by a prior conviction, Evidence Rule 609, and how to challenge the testimony of a witness by showing prior bad acts, Evidence Rule 608(b). And when seeking to confront witness with prior inconsistent statements you must first confront the witness with a direct question. This case illustrates why you should retain the services of an experienced trial attorney for trial

In United States of American vs. LaFrances-Dudley O’Neal (No. 1:11-cr-00355-1)(2016)O’Neal, owner of GL Real Estate Development wanted to develop group homes and community assisted living for the elderly. She came up with a scheme to obtain mortgage loans using straw purchasers, false loan applications, and forged appraisals

In 2006 and 2007, O’Neal purchased seven properties, financed by mortgage loans that totaled over $2.6 million. Each property was purchased in the name of a straw buyer. Each straw buyer received approximately $5,000 from O’Neal for each property purchased in his or her name. Because the buyers did not have sufficient income to qualify for the loans, their income and employment information was falsified on the loan applications. Forged appraisals of the properties were used to support higher loan amounts. Bank funds received by the title company in advance of closing were illicitly used as the borrower’s down payment, and invoices were provided to lenders suggesting that renovations not yet undertaken had already been performed. Eventually, all seven properties fell into default and the lenders sustained an aggregate loss of $964,503.

On December 7, 2011, a grand jury returned a seven- count indictment against O’Neal and Donald Ramsey, a mortgage broker who prepared some of the loan documents. Mr. Ramsey agreed to cooperate with the Government and testify against O’Neal.

At the trial, the District Court prevented defense counsel from questioning Ramsey during re-cross-examination about two prior incidents that potentially reflected on Ramsey’s character for truthfulness. The District Court also barred testimony by another witness about an alleged invitation by Ramsey to participate in a shady mortgage deal.

Ramsey testified on direct examination, cross- examination, and re-direct-examination. The District Court then solicited questions from the jury. One juror asked Ramsey, “what he received in return for testifying against the defendant?”

Ramsey testified that his cooperation agreement required him to “just . . . tell the truth,” that he had not “been promised any outcome or result,” but that he “hoped for the best outcome possible.” Asked what he meant by the “best outcome,” Ramsey testified, “Well, for me, I think being able to continue to live a better and upright life and live my life. I don’t have – everybody’s desire is to stay free, but no one, including the judge, would make any commitment of anything to me because I made an error. So I would pray for leniency.”

After this testimony Defense counsel sought to ask Ramsey “when you say that you want to return to live in this upright life, are you suggesting that you never did anything improper in the mortgage business until you met Ms. O’Neal?” The Government objected and counsel approached the bench. The Court asked defense counsel if he had “a good faith basis for believing that Ramsey had done anything illegal in the real estate industry.” Counsel responded that Ramsey had once opened a bank account with a fake document.

The prosecution objected that Ramsey was never convicted on the bad check charge, so questioning on that charge was inappropriate. In response, the Court asked, “Does it have to be a conviction if it’s a bad act and it goes to his credibility?”

Dismissing the jury, the Court asked Ramsey whether he had been criminally charged in Maryland and if there were “ever any allegations made against you regarding a bad check or opening a bank account with a bad check?”

Ramsey denied that he had ever been “in front of a judge or received any citation.” After hearing this, the Court concluded, “Unless counsel has some other information about these allegations in Maryland having been a criminal case, and that there was some culpability found or he admitted culpability based upon what he said, I would have to conclude that this is not an appropriate area to go into.” Defense counsel made no further proffer and no further argument in favor of pursuing this line of re-cross- examination.

Re-cross-examination is an area where trial courts have wide discretion in controlling the scope and the form of questions employed. A party has a right to re-cross only where new matter is brought out on re-direct examination. Where new evidence is revealed on redirect examination, the opposing party must be allowed the right of cross-examination on the new matter. However the privilege of re-cross-examination lies within the trial court’s sound discretion.

The alleged incident at issue here was not brought up on redirect examination. Defense counsel could have questioned Ramsey about these matters during cross-examination, but did not. In circumstances such as these re-cross-examination is a privilege, not a right.

Appellant further argued that the District Court erroneously applied Federal Rule of Evidence 608(b), which provides:

“Except for a criminal conviction under Rule 609, extrinsic evidence  is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of . . . the witness.

Rule 608(b) allows questioning on specific incidents that did not result in a criminal conviction if the questioning about such incidents is “probative. If the District Court found the questions probative, it must then apply the “overriding” balancing test of Rule 403 to ensure that the “probative value not be outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury.”

The proffer by defense counsel provided scant support for the probative value of the questioning and the District Court was left to evaluate a slew of allegations, almost all of which Ramsey had denied. When given the opportunity to question Ramsey defense counsel asked the witness whether he “had a case in District Court in Maryland” Ramsey answered that question in the negative. Defense counsel gave the District Court no reason to believe that the answer to either question should have been “yes.” No conviction was noted for the bad check case,

Nothing in the record indicates Defense counsel sought to ask questions about Ramsey’s alleged use of a bad check to open up a bank account in 2006. Trial counsel briefly adverted to an incident concerning the opening of a bank account with a fraudulent document, but the Government interjected that the incident to which defense counsel referred was the 2003 charge of uttering a bad check. Defense counsel appeared to agree and never again mentioned Ramsey’s opening of a bank account. When the District Court asked Ramsey about opening an account with a bad check, Ramsey denied any such allegation and defense counsel failed to do any further follow-up.

Against the dangers of confusion of issues and misleading the jury, and the fact that direct and cross-examination had been completed, the District Court did not abuse its discretion in declining to allow questioning on these vague allegations during re-cross-examination.

This background sheds light on the District Court’s comment, that questioning about the prior incidents would not be allowed “unless . . . there was some culpability found or [Ramsey] admitted culpability. This comment is best read as the Court’s reasonable conclusion that some boost to the probative value of the questioning – such as a conviction, corroborating details, or an admission – would be required to outweigh the other factors that weighed against its admission.

The defense allegations had little probative value, and Ramsey had limited ability to explain or counter, when the proffer contains no details about dates, name of the bank, name of the account holder, or other pertinent details.

After Ramsey’s testimony concluded, defense counsel sought to introduce testimony from another mortgage broker that Ramsey had “asked her to do some loans, some mortgages, and that they were shady. Defense counsel explained that his purpose in introducing Ramsey’s statement related to Ramsey’s “credibility, and also to rebut some of the things that he said, that he never, you know, did anything shady before this, transactions and that type of thing, or that he’s sorry that he allowed himself to be sucked into it,

The Government objected on hearsay grounds. After considering whether the alleged statement was hearsay and whether it was relevant, the District Court ultimately excluded it on the grounds that the statement did not contradict anything Ramsey said during his testimony and was therefore “nothing other than a character assassination.”

On appeal O’Neal argued the District Court abused its discretion in excluding this testimony as impeachment-by- contradiction evidence. The appellate court held that regardless of whether the statement was hearsay, the District Court did not abuse its discretion in declining to admit it. “In general, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.” Fed. R. Evid. 608(b). However, “Rule 608(b)’s bar against extrinsic evidence does not apply when the evidence is used to contradict a statement made by a witness during her testimony.

However the Defense counsel never asked Ramsey whether he had asked the witness to participate in some “shady” mortgages. Instead, he attempted to introduce the statement through another witness after Ramsey had left the stand. Ramsey never said that he had not previously committed mortgage fraud or that all his past mortgage transactions had been aboveboard. Nevertheless, defense counsel proffered the “shady” mortgages testimony to “rebut” Ramsey’s testimony that “kind of implied . . . this was out of character for him.” Courts have taken a dim view of evidence offered to impeach by contradiction where the evidence did not contradict a “specific statement” made by the witness.

The problem here is that O’Neal’s trial counsel failed to show what fact from Ramsey’s testimony would have been made “more or less probable” by the proffered testimony. Ramsey never said that the fraud with O’Neal was his only “shady” mortgage scheme. Nor did Ramsey claim a one-off motive for participating in this fraud that would have been undermined by his participation in other unsavory deals.

To the extent the proffered testimony was relevant at all, it was not an abuse of discretion to conclude that any probative value was substantially outweighed by the other considerations identified in Rule 403, “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”


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