Failure to Preserve Error Prevents Reversal of Conviction
The importance of preserving error was illustrated once again today in U.S. v. Sine. The Ninth Circuit affirmed the conviction of a Utah lawyer charged with fraud arising from his participating in a pyramid investment scheme. When the scheme began to unravel, Sine had attempted to present the appearance that he was himself an unwitting victim of the chicanery by filing lawsuits in attempts to recover the funds of victims. However, that activity led to his thorough castigation by a federal district court judge in Ohio. References to that dressing down, which included the Ohio judge’s factual findings that Sine had not acted as a bona fide trustee and had failed in his fiduciary obligations, were made repeatedly during Sine’s prosecution – all without objection by the defense. The defense did successfully object to the admission of the order itself, but failed to make any objection when numerous witnesses were questioned regarding the findings and conclusions of the Ohio judge.
The Ninth Circuit acknowledged that the prosecution’s tactics in using the Ohio judge’s factual findings had the potential to unfairly prejudice Sine. The prosecution was not entitled to “shortcut” its own burden to prove Sine’s culpability through evidence that another had reached that conclusion. The Court even flatly agreed that the admission of the evidence violated FRE 403 and 802. However, because the error was not preserved, the Court employed the plain error analysis. Finding that evidence of Sine’s guilt was overwhelming, the Court affirmed.
