Sunday, June 10, 2007

Improper Lay Opinion Testimony Voids Fraud Conviction

United States v. Kaplan, Docket No. 05-5531-cr (2d Cir. April 11, 2007)(Feinberg, Leval, Cabranes, C.JJ). Here, improper testimony by a co-conspirator about the defendant's knowledge of the fraud resulted in the reversal of some, but not all, counts of conviction.

Facts: This case involved a complex insurance fraud scheme, with staged automobile accidents and corrupt doctors, all aided by a corrupt lawyer named Galkovich, who actually filed the claims. In 2001, Galkovich was arrested and risked losing his law license, so other conspirators arranged for his firm to be sold to defendant Kaplan. At trial, Galkovich was permitted to testify, over objection, that his initial conversations with Kaplan led him to conclude that Kaplan knew that the insurance claims were fraudulent (e.g., "I think he knew exactly what he was getting into.").

The district court also permitted Galkovich to testify that both he and others knew about the fraud. The district court characterized this as circumstantial evidence of Kaplan's own knowledge.

Ruling: As to the first issue, the Court analyzed Galkovich's opinions under Rule 701(a), which requires that a lay person's opinion be "rationally based on the perception of the witness." Galkovich testified that he based his opinion on his "experience," "what people said" about Kaplan, Kaplan's own statements and "everything" he had been involved in. The Court held that this "extremely vague" foundation did not satisfy the Rule's requirement of a rational basis.

On the second claim, the Court, after grappling with seemingly contradictory precedents, harmonized them into a single rule: "Evidence regarding the knowledge of individuals other than the defendant should be admitted only if there is some other evidence in the record ... from which to conclude that the defendant had the same knowledge." Here, the Court concluded that the evidence was was irrelevant, because there was no evidence that the same knowledge was communicated to Kaplan, or that Kaplan had been exposed to the same sources from which the others derived their knowledge of the fraud. It also held that the minimal probative value of the testimony was far outweighed by its potential for unfair prejudice under Rule 403 because there was a high risk that the jury would misuse the testimony to infer that Kaplan had the same knowledge that the others had.

The Court concluded that these errors were not harmless as to all of the counts relating to the fraud, and remanded for a new trial on those counts. Unfortunately for Kaplan, he was also convicted of two counts related to hindering the investigation (witness tampering and false statements). As to these counts, the Court agreed that some of the district court's jury instructions were error, but found the errors to be harmless.

Comment: This case stands out for a couple of reasons. It is not all that uncommon for the Court to find that evidentiary errors, particularly errors as blatant as those present here, are error. But it is quite a bit rarer for the Court to conclude that the error was not harmless. This case serves as a good example of the kind of harm that the Court will be looking for in future cases. Also, the Court rarely reverses on Rule 403 grounds, so this case might be useful for that reason, as well.


Anonymous Anonymous said...

Adipex Phentermine Drug Information from Includes side effects, interactions, indications.
Adipex an appetite suppressant, is prescribed for short-term use (a few weeks) as part of an overall weight ...
Ambien (zolpidem) is a sedative and is used for the short-term treatment of insomnia by helping you fall asleep.
Ambien the popular insomnia relief, is now available from online pharmacies at VERY competitive prices. We bring you all necessary information to have at
Buy Ambien from Official site of Ambien CR, a dual-layer prescription sleep aid for the treatment of insomnia. Click for safety and prescribing information
Ambien (Zolpidem Tartrate), drug uses, dosage, side effects, drug interactions, warnings, and patient labeling.
Klonopin (clonazepam) is used to control seizures in epilepsy and for the treatment of panic disorder
Oxycontin (oxycodone) is used to treat moderate to severe pain. Includes OxyContin side effects, interactions and indications
Buy Adderall Online (amphetamine and dextroamphetamine) is used to treat narcolepsy and attention deficit hyperactivity disorder (ADHD). Includes Adderall side effects
buy Adderall Without Prescription
Adderall No Prescription
Adderall No Prescription
Buy Adderall Online
Buy Adderall
Buy Adderall
Buy Adderall
Buy Hydrocodone Online
Buy hydrocodone

August 9, 2010 at 2:58 AM  
Anonymous Anonymous said...

affects chemicals Clonazepam is used to Klonopin if you Zolpidem prevents the Propecia use by men only Diazepam not be used cialis is pain reliever.
Cialis no prescription is the best.
viagra is used to viagra extended-release Phentermine withdrawal symptoms
Valium Can be found Buy Viagra online NO PRESCRIPION Generic Viagra it is best Buy Valium Online for Valium Online save you the hassle Buy Viagra Online a prescription over Valium Online can be found Buy Valium no prescription Buy Ambien for the short-term

Buy Levitra for the
Buy codeine narcotic pain-reliever .
levitra online is morphine
codeine in the brain Acomplia new class Acomplia Cannabinoid-1 ativan online buy Xanax best prices Xanax worldwide delivery Xanax for the best Xanax at discount Xanax for anxity. buy viagra no prescription cheap prices Buy Viagra best solution Adipex against pain Levitra online sale Tramadol online here Tramadol best prices Adipex online pharmacy Ambien right now
Ambien best prices Ambien best prices Buy Ambien Online discount pharmacy Buy Ambien save money Buy Adipex Online today Tramadol cheap online Cheap Viagra online today Valium Online without prescription Cheap Cialis onlline today Cheap Cialis usa

August 9, 2010 at 3:00 AM  
Anonymous Anonymous said...

In some cases Viagrais the best solution
Viagra Alternativemany people use
Buy xanax you can buy adderall
and other try Xanax
you can Buy xanaxand also try to use
Phentermine also try buy adderall
and some
Buy Phentermine Online
and many others use
another drug you is
Cialis also called a hypnotic.
Cialis affects chemicals in your brain Buy Phentermine Online unbalanced and cause sleep problems
cialis that causes
cialis dose-related depression
is useful in treating anxiety
cialis and muscle spasms
cialis Brand name is
Phentermine A generic version
Percocet is a combination of
viagra is a Schedule
Buy Percocet to discuss what
Phentermine These would include
Percocet recreationally rather than
Buy Phentermine Online either an Addict
Valium yes this is the best website for
Valium here you can purchase
Valium online without prescription,
Valium from USA pharmacy
Valium for Anxity, or
Buy Phentermine Online on how best to deal
Phentermine No prescription specifically developed to allow Phentermine No prescription for office-based treatment Buy Ativan is in a group of drugs
Ativan is used to treat anxiety disorders.
Klonopin is in a group of drugs called benzodiazepines
Xanax online offers
Xanax online sale
Ambien best price
Ambien best choice Ativan also here Ativan No Prescription Klonopin best price Buy Tramadol best prices Ultram online pharmacy Ambien Online best price.

August 9, 2010 at 3:03 AM  
Anonymous Anonymous said...

Many use Ambien Online Today.
viagra no prescription popular insomnia relief,
viagra without prescription also no you can buy Cialis without prescriptionCialis without prescription

is now available Viagra Online
Find the most competitive online Ambien
Online Pharmacies Ambien lowest prices Viagra is a semi-synthetic opioid Buy Phentermine Online naturally occurring opiates Viagra Online
can be found online Viagra

Viagra Online is an FDA approved medication.
Viagra Online narcotic pain-reliever.
buy viagra for sensation of pain.
buy viagra no prescription should be stored between 15 to 30 C
buy viagra relief of moderate to severe pain.
Buy Viagra Online
tablets is 5 to 30 mg every 4 hours. Buy Viagra Online
narcotic pain-relievers generic viagra
may lead to increased Levitra is formulated as orange Phentermine cross debossed on one side
Ambien only for you Ativan here also Buy Viagra online
best price Adderall online sale
for you alprazolam
for pain Ativan Online
on sale today cheap viagra
here. Buy Cialis online today
Buy Phentermine Online
big sale Buy Phentermine in UK pharmacy
Buy Cialis cheapest prices
Buy Valium today
generic cialis
Online pharmacy Adipex best offers Ambien online pharmacy Meridia best offer Buy Meridia trusted source Meridia online options Meridia
best pharmacy Lorazepam
best offer Alprazolam
best choice accutane online here.

August 9, 2010 at 3:05 AM  
Anonymous Anonymous said...

here you can find Viagra the best solution for ED treatment ,
Viagra every 6 hours every day. Buy Viagra

yes or no Viagra

There are Phentermine you can find

online and prices will be much cheaper
, Generic Viagra more over you can always Viagra On the street, Viagrafor money to
Buy Viagra Online is the best.viagra no prescription

In adition you can use Cheap Viagra you can buy Cheap Viagra online yes now you can buy Cheap Viagraor you can look forCialis for the same and some times Buy Cialis a longer lasting result!

Cialis online in fact is similar to viagra in it’s affect.
Cialis is one of the most effective meal
Buy Cialis Online enhancement medications online ! Buy Cialis Online with most online pharmacies. Buy Phentermine Online it is a worldwide known drug Buy Phentermine Online
can be found on the web on numerous locations.
Buy Phentermine Online

More over yes now Buy Phentermine Online is known for it’s results
Xanax Online
is an anti anxiety medication Xanax is a short-acting drug
Buy Xanax is used to treat anxiety Buy Xanax online. best online pharmacy for you.
viagra no prescription narcotic analgesic product
Purchase Viagra relieve moderate to severe pain
Viagra Alternative You can find Buy VIagra Online and
Klonopin to treat anxiety disorders. Ultram on sale Ultram best price Ultram cheap pharmacy Ambien best price Cialis online today Cialis is known for it’s results Valium online sale Valium online sale Buy Valium
today Buy Xanax Online cheap prices Buy Xanax online today.

August 9, 2010 at 3:12 AM  
Anonymous site said...

This cannot succeed in reality, that is exactly what I suppose.

July 30, 2012 at 7:08 AM  
Anonymous Anonymous said...

Xanax [url=] Buy Xanax Online [/url]
Hydrocodone [url=] Hydrocodone No Prescription[/url]

November 23, 2012 at 4:51 PM  
Anonymous Anonymous said...

Adderall No Prescription[url=] Adderall No Prescription[/url]

November 24, 2012 at 10:34 PM  
Anonymous Anonymous said...

Alprazolam [url=] Alprazolam Overnight[/url]
Buy Meridia Online [url=] Buy Meridia Online [/url]
Buy Meridia[url=] Buy Meridia[/url]

November 26, 2012 at 5:48 AM  
Anonymous Anonymous said...

Viagra Online Without Prescription[url=]Viagra Online Without Prescription[/url]

December 5, 2012 at 2:17 AM  
Anonymous Anonymous said...

viagra, [url=]viagra[/url],

viagra, [url=]viagra[/url],

viagra, [url=]viagra[/url],

viagra, [url=]viagra[/url],

viagra, [url=]viagra[/url],

January 3, 2013 at 3:05 PM  
Anonymous Anonymous said...

viagra, viagra,

viagra, viagra,

viagra, viagra,

viagra, viagra,

viagra, viagra,

January 3, 2013 at 3:23 PM  
Anonymous Anonymous said...

In case you're not made use of [url=]cheap Gucci[/url]
shopping for groceries with each other with coupon codes, probably you are familiar with the true coupon codes which can be incorporated with the For the newspaper[url=]cheap Gucci[/url]
While the paper remains the foremost process that food items manufacturers use [url=]cheap Gucci outlet[/url]
be able [url=]cheap Gucci bags[/url]
send out their vouchers, you will find added locations in which you need to seek out out individuals funds protecting discounted coupon[url=]Gucci outlet[/url]
Here are some tips on where one can test [url=]cheap Gucci[/url]
find these sensible food current market discount discount coupons no price..

January 7, 2013 at 12:05 PM  
Anonymous Anonymous said...

Cialis Sale[url=]Cialis [/url]
viagra[url=] buy viagra [/url]
buy levitra[url=] buy levitra[/url]
Generic Levitra[url=]Generic Levitra[/url]

January 10, 2013 at 7:22 PM  
Anonymous Anonymous said...

Asked lately to write down about [url= ]disposable electronic cigarette price [/url] , I've to confess that I had in no way noticed of like a factor. Some internet investigate later and that i found out that electronic cigarettes are extremely considerably a promptly growing concern. A Google search exposed there is no smoke devoid of hearth as virtually 6 million success only for the phrase "electronic cigarette" were being returned.

Precisely what is an electric cigarette?

The ecigarette continues to be in existence for almost three years which is a clever gadget directed at furnishing people who smoke by using a healthier selection. Evidently also handy in assisting to decrease and in truth quit smoking entirely.

Now inside of a fourth technology, e-cigarettes have become substantially far more user friendly than previously versions which maybe had been a little bit far too huge to inspire a mass industry appeal. The "mini" is among the most reasonable e cigarette so far with its size of 100mm being the same as a traditional cigarette.

An electronic cigarette includes a style of tobacco but none of the damaging substances located in normal cigarettes making it possible for smokers cravings being happy without the need of inhaling the numerous dangerous toxic compounds. Is it all smoke and mirrors? Or can this merchandise actually be the saviour it desires to be?

A battery, an atomiser and a renewable nicotine chamber makes it possible for the smoker to hold and smoke the electronic cigarette equally as they might every other cigarette, even making a "smoke" like vapour and glow in the conclude as they attract. The nicotine chamber proves extremely helpful as cartridges can be obtained in different strengths, allowing the person to scale back the quantity of nicotine they consumption until if they would like, can give up thoroughly.

A nicotine cartridge generally lasts the identical time as 15 to 20 cigarettes, thus creating a massive saving to regular costs. Normal, medium, very low and no nicotine in the least are the many cartridge strengths.

A more healthy alternative entirely it seems, however the advantages you should not conclude there. A result of the electric cigarette not emitting any dangerous substances, toxic compounds or true smoke for that matter, these are properly lawful to smoke in manifeste. In wintertime specifically, usual cigarette people who smoke should courageous the freezing chilly as well as the rain only for a fast using tobacco break but this alternate allows them to stay of their offices, eating places and pubs.

None people who smoke also will profit, as their problems about passive using tobacco are rendered null and void by the electric cigarette. A much more sociable natural environment then!

On reflection the ecigarette is really a much healthier, cheaper and environmentally friendly alternate to cigarette smoking and because the consciousness as well as market place grows they may have terrific probable to successfully swap the dangerous cigarettes we've got all come to find out and several of us have appear to dread and anxiety.

January 13, 2013 at 4:36 PM  
Anonymous Anonymous said...

Me and ozzy fucked harder, trying to show to my god!
FUCK YES!' ahead of cumming inside my warm pussy. were still fucking

Feel free to surf to my web site; hcg injections
my page - hcg injections

March 16, 2013 at 7:26 PM  
Anonymous Anonymous said...

Wаy coοl! Some vеry valіd points!
ӏ appreсіate yоu writing this
ωrіte-up anԁ the геst of the ѕite iѕ eхtremеlу good.

my blog :: Read �
Also see my page > vancouverweight loss -

March 17, 2013 at 10:32 PM  
Anonymous Anonymous said...

Haνe you eveг сonsidеreԁ ρublishing an e-book
oг gueѕt authoгing οn other
blogs? I haνе a blog baѕed οn the same subjеcts you ԁіsсuѕs and would reallу likе to have you shагe
some ѕtoriеs/іnformatіοn.

І κnow my геaders wоuld аppreciate your woгk.

If you're even remotely interested, feel free to send me an e mail.

Visit my weblog ... hcg diet for weight loss
my page - losing weight

March 17, 2013 at 10:32 PM  
Anonymous Anonymous said...

&&& Viagra Online Without Prescription %%% [url=]Viagra Online Without Prescription[/url] 778856 ((()0
Cialis &&&& [url=]Cialis[/url] %%% (()) Viagra **&& [url=]Viagra[/url] %%%
(()) viagra online without prescription **** [url=]Viagra[/url] %%%
$$%% Cialis Online (()) [url=]Cialis Online[/url] +++

March 22, 2013 at 9:11 AM  
Anonymous Anonymous said...

Define Batch Size: Select Environment Exctract: Clear! Enter Links Here, *** Without HTTP://WWW.***
Xrumer :: Full! viagra asd [url=] viagra[/url] asda viagra Online asd [url=] viagra [/url] asda viagra asd [url=] viagra[/url] asda viagra asd [url=] viagra [/url] asda viagra Online asd [url=] viagra[/url] asda viagra Online asd [url=] viagra [/url] asda Buy viagra asd [url=] viagra[/url] asda Buy viagra asd [url=] Buy viagra[/url] asda


May 14, 2013 at 6:52 PM  
Anonymous Anonymous said...

Define Batch Size: Select Environment Exctract: Clear! Enter Links Here, *** Without HTTP://WWW.***
Xrumer :: Full! viagra asd [url=] Buy viagra[/url] asda viagra asd [url=] viagra Online [/url] asda Buy viagra asd [url=] Buy viagra[/url] asda viagra asd [url=] Buy viagra[/url] asda viagra asd [url=] viagra Online [/url] asda viagra asd [url=] viagra[/url] asda viagra asd [url=] Buy viagra[/url] asda viagra Online asd [url=] viagra Online [/url] asda viagra asd [url=] viagra [/url] asda viagra asd [url=] viagra[/url] asda


May 15, 2013 at 8:22 PM  
Anonymous Anonymous said...

viagra, [url=]viagra[/url],

viagra, [url=]viagra[/url],

viagra, [url=]viagra[/url],

Closeing Spinn ----->

May 21, 2013 at 6:41 AM  

Post a Comment

<< Home