Wednesday, April 27th, 2016

In Summary Order, Second Circuit rejects claims that bank records and tax returns erroneously were admitted into evidence, that the government improperly interfered with defense access to witnesses, and that the government made improper statements during summation.

United States v. Tavarez, No. 15-1395 (2d Cir. Apr. 27, 2016) (Katzmann, Cabranes, and Kaplan).

Tavarez was convicted after a jury trial of one count of conspiracy to distribute and possess with intent to distribute cocaine. He argued on appeal that: (1) the district court abused its discretion by admitting Tavarez’s bank records and tax returns into evidence; (2) the government impaired his right to a fair trial by improperly interfering with his access to witnesses, including by not granting them use immunity; and (3) the government’s statements during summation denied him a fair trial. The Court rejected all three claims.

First, the Court agreed with the district court that Tavarez’s bank records were relevant and that their probative value was not outweighed by any risk of unfair prejudice. The evidence showed that Tavarez deposited and withdrew large sums of cash at relevant times, despite reporting no income or employment to the IRS. “In light of the government’s theory that Tavarez was responsible for financing the planned [drug] transaction, his financial records were highly relevant to the charges he faced.”

Second, the Court held that the government had not improperly interfered with access to three witnesses. The Court noted that the government “did not offer immunity to any potential witness, so it could not have engaged in discriminatory use of immunity to gain a tactical advantage.” Nor did the government overreach by forcing any witness to invoke the Fifth Amendment.

Finally, the Court found no reversible plain error in the government’s statements during summation. The challenged statements—including the prosecutor’s suggestion that the jury could infer from the defendant’s $4,000 cash withdrawal in Houston that he was one of the drug organization’s sources of money in Texas—were “fair inferences from the evidence presented at trial.


— Edward S. Zas

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Categories: evidence, summation
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