United States v. Bakshinian

United States District Court · Evidence

EvidenceRule 801(d)(2)party-opponent admissiongovernment prosecutorclosing argumentRule 401Rule 403motions in limine

Facts

The government charged Gregory Ivan Bakshinian with possession of a counterfeit security and attempted bank fraud, alleging he acted in a conspiracy with Bahrain Khan Nabaie and Mkrtych Karagezyan. After severance, Nabaie was tried and convicted first. At Nabaie's trial, the prosecutor argued that Bakshinian was a young man being used by Nabaie, though he may also have had a financial interest. Bakshinian sought to introduce that prior statement as exculpatory and also sought to prevent the government from presenting an inconsistent theory at his own trial.

Issue

Whether a prosecutor's closing argument from a prior, related criminal trial is admissible against the government as a party-opponent admission under Rule 801(d)(2), and if so, whether its admissibility should be governed by the heightened McKeon framework or by ordinary Rules 401 and 403. The court also considered whether the government could be barred from presenting a theory inconsistent with the one advanced in the earlier severed trial.

Rule

In a criminal case, a statement made by a government prosecutor may be treated as a statement of a party-opponent under Federal Rule of Evidence 801(d)(2). The special McKeon limitations developed for using a defendant's prior trial statements do not govern prior statements by government prosecutors; instead, such statements are evaluated under the usual relevance and Rule 403 standards. Separately, when no new significant evidence comes to light, the prosecution may not offer inconsistent theories and facts regarding the same crime in separate trials to convict different defendants.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a severed fraud prosecution in Phoenix, Dana Mercer is tried after her alleged associate. At the associate's earlier trial, the prosecutor argued in closing that Dana was "mostly a courier following directions from others." At Dana's trial, the defense offers that remark.

What is the strongest basis for admitting the prosecutor's prior remark over a hearsay objection?

Explanation. The majority held that a government prosecutor's statement may be treated as a party-opponent statement under Rule 801(d)(2). The court reasoned that prosecutors, unlike ordinary government agents, can bind the sovereign and are not disinterested in the outcome. No oath, firsthand knowledge, or personal participation in the events is required for this theory of admissibility. (Derived from United States v. Bakshinian (n.d.).)