Snipes Appellate case

[Demosthenes]

Source:
http://lawprofessors.typepad.com/whitec ... rcuit.html

June 28, 2009
Wesley Snipes Gets Oral Argument in the 11th Circuit
Actor Wesley Snipes has been granted oral argument in the 11th Circuit Court of Appeals. Snipes was convicted of misdemeanor tax counts and found not guilty of other conspiracy and tax fraud counts following a jury trial (see here). The oral argument is scheduled for November 2009. Last year (September - September reporting period) less than 16% of all Eleventh Circuit criminal appeals were disposed of on the merits following oral argument (1258 total criminal cases, 1059 terminated after submission on the briefs, and 199 terminated after oral argument see here). Representing Snipes are Philadelphia area Attorney Peter Goldberger, former president of the National Association of Criminal Defense Lawyers Carmen Hernandez,Daniel Meachum (of Atlanta), and Linda Moreno (of Tampa). For a discussion of one of the issues likely to be raised on appeal, see here.

[jcolvin2]

Being assigned to an oral argument calendar doesn't necessarily mean that oral argument will be heard in the case. Circuit Rule 34-3(f) provides:

(f) When an appeal is assigned to an oral argument panel, the oral argument panel, whether or
not composed of only active judges, may by unanimous vote determine that the appeal will be
decided by the panel without oral argument, or transfer the appeal to the non-argument calendar. In appeals involving multiple parties, an oral argument panel may by unanimous vote determine that the appeals of fewer than all parties will be decided by the panel without oral argument, and that the appeals of the remaining parties will be scheduled for oral argument.

While I am not familiar with the 11th Circuit, the panels will gradually winnow the number of cases on the oral argument calendar in the weeks before the scheduled argument.

[LPC]

If the 11th Circuit does hear oral argument, it might be the result of the new argument that Snipes was entitled to a pre-trial hearing at which he could testify on the issue of venue without waiving his 5th Amendment rights.

Although I have to admit that I'm not certain I understand what Snipes is proposing (and I haven't read his appellate brief to try to figure it out). Venue is a factual issue on which Snipes had a right to a trial by jury. Did Snipes want to waive his right to a jury trial on that issue, and so have a bench hearing on the venue issue and then a jury trial on the issue of guilt?

Or was Snipes asking for two bites at the apple, asking for a pre-trial hearing on venue and then a jury trial on venue (assuming he loses the pre-trial hearing). But how does that solve the 5th Amendment issue? Assuming that the judge rules against Snipes at the pre-trial hearing, wouldn't Snipes still be faced with the choice of testifying at trial and so waiving his 5th Amendment rights or submitting the venue issue to the jury without his testimony?

I can understand the function of a pre-trial hearing in a dispute over a search and seizure because the issue is evidentiary and will not ever be presented to the jury, but venue is an issue normally addressed to the jury and Snipes seems to be arguing that his has the right to have the issue decided by the jury and the right to have the issue NOT decided by the jury.

So the 11th Circuit ruling could be interesting.