Wednesday, January 31st, 2007

Prosecutorial Gamesmanship Deemed Sleazy but Harmless

United States v. Chin, Docket No. 06-1048-cr (2d Cir. Jan. 30, 2007) (McLaughlin, Sack, Rakoff): This is yet another instance in which the Court scolds a prosecutor for sleazy misconduct at trial, but then renders its bite toothless by deeming harmless the misdeed. I suppose this is better than simply overlooking the misconduct, as the Court often does, but then I’m not the one who has to do the time.

Chin was charged with pretending to be an INS officer and defrauding aliens by telling them that he could obtain U.S. visas for them for a fee. To prove his guilt, the Government offered victim witnesses who said that they met with the defendant in China on particular dates. In his defense, Chin attempted to introduce into evidence credit-card receipts, complete with his signature, showing that he was actually in New York on the those same dates. The judge at the first trial refused to admit the receipts into evidence, however, and Chin was convicted. On appeal, the Circuit vacated his conviction, finding that the trial court erred in not admitting the receipts. United States v. Chin, 371 F.3d 31 (2d Cir. 2004).

Before the retrial, defense counsel notified the Government that it intended to call a handwriting expert at trial to testify that the signatures on the receipts were indeed Chin’s. This notice conformed with the requirement of defense-expert disclosure set forth in Fed. R. Crim. P. 16(b)(1)(C). The Government, however, gave no notice that it too intended to call a handwriting expert. As expected, Chin introduced the New York credit-card receipts at trial, and then called the handwriting expert to testify that the signatures on the receipts belonged to Chin.

One day before the close of the defense case, the Government announced that it would call its own handwriting expert in its rebuttal case. The Government had retained the expert well before the start of the trial, and had even obtained from him a written opinion challenging the authenticity of Chin’s signatures on the credit card receipts. Op. 3. But the Government had not provide any notice of this to the defense, justifying its sandbagging through the language of Rule 16(a)(1)(G), which requires pretrial disclosure of expert testimony only if the Government intends to elicit such testimony in “its case in chief.” Over objection, the trial court allowed the Government expert to testify, though it granted a one-day adjournment to allow the defense to prepare for the cross of the expert. Chin was convicted, and he appealed again.

The Circuit was clearly unhappy with the prosecutor’s gamesmanship, describing it as “sharp practice [] unworthy of a representative of the United States.” Op. 4. And although acknowledging that the Government did not technically violate Rule 16(a)(1)(G), the Court explained that “it does not follow that the Government has carte blanche in every case to spring a surprise expert witness on an unsuspecting defendant who has long since disclosed his own expert’s prospective testimony.” Op. 4. And “[i]n an appropriate case, such an ambush might well violate due process.” Id.

Unfortunately for Chin, his is not that case. The Court found that the Government’s “regrettable” action did “not rise to a due process violation” because the trial court “gave defense counsel what he needed: time to prepare to cross-examine [the Government’s expert].” Op. 5. Apparently, this was all defense counsel asked for, and even now, Chin is “unable to specify with any particularity how he was prejudiced by not receiving a longer continuance.” Id. “Thanks to the prudence of the district court in granting the continuance,” in sum, “Chin was not deprived of due process.” Id.

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