Snipes Verdict

[LPC]

Could be phoned in.

I spent some time this morning reading Demos reports on the Snipes trial at http://www.thesnipestrial.com/ and it's perfectly clear that, absent sudden cerebral accidents among a majority of the jurors, or Snipes able to demonstrate an ability to levitate himself in front of the jury, Snipes is toast.

So the only questions remaining are (a) how long with the jury deliberate and (b) the sentencing.

I think that (b) is premature, but I don't think its too soon to consider whether the jury will need more time than they needed to choose which socks to wear that morning.

I'm going to go with 2 hours only because there seem to a lot of documents.

[Nikki]

I figure at least a full day so they can get a free lunch and dinner.

The Judge made them sit in a cold courtroom without breaks. They deserve a payback.

[Dr. Caligari]

I predict 2 days, only because there are a lot of different counts and charges, and I expect the jury will take the case seriously, even if Snipes doesn't.

[Demosthenes]

This jury doesn't care about free lunches. Earlier this week, one juror even cooked and brought in meatballs for all 16 jurors.

My prediction:

Most of one day to deliberate. They have to read that whole 29 page letter, since the judge wouldn't let the prosecutor read it into the record, and said that the jury could read it on their own...

Kahn, guilty on counts one and two.

Rosile, guilty on counts one and two.

Snipes, not guilty on the first conspiracy count, guilty on the filing a false return count, and guilty on all six willful failure to file counts.

The defense seems to think that winning a victory on the place of residence will get them a full acquittal. I am unclear on that concept.

By the way, our good Quatloos buddy Bill Branscum is attending the trial. (He's working for Snipes.) Teaparty moderator Robert Raymond is also there.

[Lambkin]

So the only questions remaining are (a) how long with the jury deliberate

It could take them a long time to stop laughing and trading jokes about the proceedings and evidence.

[Doktor Avalanche]

I'm going to predict deliberations will take more than an hour but less than two.

I also predict the defense testimony will degenerate quickly into a train wreck, the judge will admonish their side for arguing the law, contempt charges will be handed out like Hollywood swag, and Snipes will not take the stand.

[Demosthenes]

This is a serious jury. No eye rolling, no napping, not even any closed body language (crossed arms, etc.). They've been awake, watchful, serious, polite, and taking a lot of notes.

[Joey Smith]

I predict 2 days, only because there are a lot of different counts and charges, and I expect the jury will take the case seriously, even if Snipes doesn't.

Ditto

[wserra]

The defense seems to think that winning a victory on the place of residence will get them a full acquittal. I am unclear on that concept.

Once properly raised - IOW, if a defendant introduces evidence from which a reasonable jury could find that s/he did not commit the crime in the district of trial - venue is an element of the prosecution's case. United States v. Gillette, 189 F.2d 449 (2d Cir. 1951). They don't prove it, they lose. However, the burden on the govt to prove proper venue is not beyond a reasonable doubt, but by a preponderance. Moreover, if Snipes is convicted on a conspiracy count, then venue is almost certainly properly laid, since all it requires is one overt act in the district of trial. To say that the conspiracy charge is a prosecutor's best friend understates the situation by an order of magnitude.

By the way, our good Quatloos buddy Bill Branscum is attending the trial. (He's working for Snipes.)

Interesting. http://quatloos.com/Q-Forum/viewtopic.php?p=22073#22073

[wserra]

Ah, but Florida is in the 11th Circuit. Does the 11th Circuit use the same standard, or do they make the prosecution prove venue with the BRD standard?

Preponderance. United States v. Rivamonte, 666 F.2d 515 (11th Cir. 1982). I believe (not certain) that's the rule everywhere.

[Judge Roy Bean]

If the members of the panel are typical begrudging taxpayers I'm guessing they've made their minds up already but will go back, spend a couple of hours reading, have some lunch and vote. Once.

If there's an abused taxpayer in the room, it might take two votes.

This is just a guess, but I think the juror who brought in the meatballs is a shoe-in for foreperson.

[Nikki]

Both states in which I've lived (NJ, MD) and served on juries have the policy that the first juror seated is automatically the foreperson.

Do other states have the jurors elect their own?

[Demosthenes]

Ah, but Florida is in the 11th Circuit. Does the 11th Circuit use the same standard, or do they make the prosecution prove venue with the BRD standard?

Preponderance. United States v. Rivamonte, 666 F.2d 515 (11th Cir. 1982). I believe (not certain) that's the rule everywhere.

The defense's proposed jury instructions assumes preponderance.

How does it work with a conspiracy charge that takes place in multiple districts, or when a conspiracy count is mixed in with other non conspiracy counts?

For example, if Kahn and Rosile are clearly in Middle Florida, and they are faxing and mailing a false claim back and forth with Snipes while Snipes is in New York, is it suitable to hold the trial in Florida?

And how important is the defendant's physical presence in a count where the lack of doing something is the crime. Where was Snipes when he didn't file the 2001 tax return?

Snipes made multiple representations on official forms that his residence was in Florida, but he was abroad filming, and traveling between New York, Los Angeles, and Florida at any given time.

[Demosthenes]

Bernhoft's proposed jury instructions:

There is an issue in this case as to whether the Government has established what is known as proper “venue” in this court with respect to Counts Three through Eight of the indictment — the failure to file charges against Defendant Snipes.

The Sixth Amendment to the Constitution of the United States protects certain fundamental rights of any Defendant in a criminal case. One of the things it says is that “the accused shall enjoy the right to a...trial...[in] in the state and district wherein the crime shall have been committed.” This creates
what is called a proper venue for the charging of any criminal offense, and it requires the Government to prove, as alleged in the indictment, that the charged offense or offenses were committed in the Middle District of Florida.

In that respect, you are instructed that both Lake and Orange Counties, among others, are within the Middle District of Florida.

On this issue of proper venue, and on that issue alone, you are
instructed that the Government’s burden of proof is somewhat less stringent than it is with respect to all of the other matters the Government must prove beyond a reasonable doubt as I have previously explained to you.

Specifically, the Government must prove proper venue — that the alleged crime was committed within this district — by a “preponderance of the evidence.” A preponderance of the evidence means evidence that is enough to persuade you that it is more likely than not or more probable than not that the alleged crime was committed within this district as charged.

[wserra]

How does it work with a conspiracy charge that takes place in multiple districts, or when a conspiracy count is mixed in with other non conspiracy counts?

For example, if Kahn and Rosile are clearly in Middle Florida, and they are faxing and mailing a false claim back and forth with Snipes while Snipes is in New York, is it suitable to hold the trial in Florida?

Given a charged conspiracy between those defendants, yes. Venue is proper "against defendant in district where co-conspirator carried out overt acts even though there was no evidence that the defendant had ever entered that district or that the conspiracy was formed there". United States v. Rodriguez-Moreno, 526 U.S. 275 (1999) (citing to Hyde v. United States, 225 U.S. 347 (1912)).

And how important is the defendant's physical presence in a count where the lack of doing something is the crime. Where was Snipes when he didn't file the 2001 tax return?

The question is rendered pretty much academic because of the properly-joined conspiracy counts. The answer to the academic question, though: at his residence, wherever that was. Venue is proper in cases charging failure to do a legally-required act where the defendant should have performed the act. Johnston v. United States, 351 U.S. 215 (1956).

Snipes made multiple representations on official forms that his residence was in Florida, but he was abroad filming, and traveling between New York, Los Angeles, and Florida at any given time.

Sounds like his residence was in Florida. Again, though, the conspiracy counts render his residence moot.

As I'm sure you understand, the motion for a discretionary change of venue based on (for example) local prejudice raises different issues.

[wserra]

Were I the judge, I would not give Bernhoft's charge as requested, without appropriate language (see my post above) as to the venue of conspiracies.

[Demosthenes]

Thanks, Wes!

[grixit]

Ladies and Gentlemen, regardless of the merits of the government's case, you must acquit my client for lack of jurisdiction. You see, my client has been assisting his good friend David Copperfield in the development of a new levitation demonstration, and on every occasion when the alleged acts took place, he was in fact, floating 10 feet above the ground, and therefor not being on US soil, was not within any applicable venue.

[wserra]

Thanks, Wes!

Fàilte!

Hey, how many words of Scottish Gaelic do you think I know?

[LPC]

Snipes made multiple representations on official forms that his residence was in Florida, but he was abroad filming, and traveling between New York, Los Angeles, and Florida at any given time.

Sounds like his residence was in Florida.

No, that's only evidence that he *claimed* a Florida residence. He might have been lying.

You don't suppose Snipes is stupid enought to take the stand and testify that he wasn't really a resident of Florida, but was a resident of (California, New York, or New Jersey, take your pick), but that he claimed to have a Florida residence in order to evade (I'm sorry, make that "avoid") the income taxes that would otherwise be payable to those other states?

I really don't think that admitting that he lied in order to avoid state income tax is really going to help his cause.