FRE 608(b)

U.S. v. Abair | 13-2498

April 2014

Stop us if you have heard this story before: A Russian woman wanted to buy a home in Indiana. But Citibank Moscow would not let her transfer funds directly into her account in the United States because of bureaucratic reasons. So she slowly withdrew funds from the Russian account at ATMs in Indiana and deposited the cash into her United States account. The next thing she knows, she is convicted of structuring currency transactions, after facing a relentless and brutal cross-examination that accused her of lying on two totally unrelated documents – a student loan application and federal tax return.

Fortunately, the Seventh Circuit intervened, and in a rare move, overturned her conviction in U.S. v. Abair, No. 13-2498. The legal basis: FRE 608(b). FRE 608(b) allows cross-examination about specific instances of a witness’s conduct if they are probative of character for truthfulness, but prohibits extrinsic evidence to prove such instances. As such, under FRE 608(b), the examiner is “stuck with [the] denial” if a witness answers that the dishonest act did not occur.

According to the Seventh Circuit, the prosecutor (and district court) failed to properly apply FRE 608(b) based on a combination of two problems. First, the prosecutor asked numerous questions without a sufficient basis to believe the woman had actually lied. The evidence at trial was that her husband prepared the tax returns and never showed them to her before electronically filing them. Similarly, the evidence at trial was that the computer-generated student loan application allowed for some questions to be skipped, resulting in inaccurate information (zeroes instead of the word “skipped”) on the application. And “in the absence of a good faith basis for asking [her] these accusatory questions at trial, it was an error to allow the cross-examination.”

Second, the prosecutor failed to stop when the woman denied the accusations. Indeed, the “questioning recounted her various assets in such detail that the [trial] court worried aloud whether it was essentially ‘an attempt by the government to proffer her bad acts.’” The result was that “the prosecutor had excessive latitude not to ask questions but to state and repeat accusations in the jurors’ mind.”

While the case provides important lessons on the rules of evidence, the most important lesson is buried underneath – in the good work of defense counsel. Defense counsel fully addressed this significant evidentiary issue at trial with timely and precise objections, and created a record that allowed his client to prevail on appeal. When necessary, he requested a sidebar to further develop the evidentiary record. Before trial he prepared his client for her testimony on these issues, and even went so far as to have her duplicate the online loan application experience of “skipping questions” at his office. As a result, there was no mention of plain error review – and the harm of evidentiary error was plain for the Court to see. Unfortunately, that is not a story we hear too often.