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.

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