"Don't Call Me Shirley"

United States v. Haldar | 13-1238

May 2014

Haldar is a good reminder that trial counsel must be diligent in raising and maintaining evidentiary objections during the give and take of the trial process in order to preserve issues for appeal. Haldar also demonstrates that comedic references can have a very long shelf-life.

Haldar was convicted of visa fraud charges stemming from his role as a leader of a Hare Krishna temple in Milwaukee (known as GVS). With respect to evidentiary issues, two snippets are worthy of attention.

The first snippet – in questioning the lead case agent, the prosecutor asked the agent to describe a tip that the government had received regarding Haldar’s temple and possible visa fraud. Defense counsel properly objected on hearsay grounds. The prosecutor then responded, “Actually I think I can take care of it this way. Without going into the substance of the letter, is it fair to say you received a tip letter that indicated that you should look into GVS?” The agent responded in the affirmative, and there was no objection. On appeal, the Seventh Circuit applied plain error review because defense counsel did not object to the rephrased question.

A couple of practice points here: (1) Just because the prosecutor incorporates the hearsay statement into his question, as opposed to eliciting it through an answer, does not remedy the hearsay problem. Do not be lulled into that trap. (2) This question not only deserved a hearsay objection, it also deserved a relevance objection. “Course of investigation” questions for proactive investigations (why did you decide to target this particular person for further investigation) are “rarely relevant,” as the Seventh Circuit noted in a footnote, and counsel should also object on this basis.

The second snippet – at trial, the case agent twice testified that 33% of religious visas are obtained through fraud, as part of his “course of investigation” testimony. Defense counsel did not object, and as a result, the Seventh Circuit again applied plain error review – dooming his appeal. Although noting that the testimony regarding the rate of fraud for religious visas was both “irrelevant and unfair,” the Seventh Circuit found that under plain error review the testimony was not sufficiently egregious to warrant reversal.

The government’s decision to present statistical evidence in its case-in-chief is a re-occurring trend (see U.S. v. Chhibber, 12-2728 in our March 2014 blog) and defense counsel must guard against it vigilantly. While statistics can have their place, their use is entirely improper when the purpose is to say that many people commit a particular type of fraud – because the only inference to be drawn is that the particular defendant here must be like those many other people.

Finally, the comedic reference – for those of you who read about Haldar and his association with the Hare Krishnas, and immediately thought of Leslie Nielsen and the movie Airplane, you were not alone. In fact, defense counsel, in arguing his initial concerns that the legitimacy of the Hare Krishna religion would be subject to the government’s attack, referenced the movie and the comedic portrayal of the religion throughout the movie. If only our evidence professors were as memorable as iconic movies, perhaps trial errors would be better preserved for appellate review than they currently are.