November 13, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Nicholas G. Garaufis found that certain uncharged 'similar act' evidence offered by the prosecution was not admissible. Judge Frederic Block denied a petition under the Hague Convention seeking the return of a young child to Ecuador. Judge Edward R. Korman denied intervention by anti-abortion groups in an action involving increased access to an emergency oral contraceptive. And Judge Jack B. Weinstein rejected equal protection, malicious prosecution and false arrest claims.

Similar Act Evidence

In United States v. Cadet, 08 CR 458 (EDNY, Sept. 11, 2009), Judge Garaufis granted in part, and denied in part, defendant's motions to exclude certain similar act evidence at his upcoming trial.

Defendant, a tax preparer, was charged with 35 counts of assisting the preparation of false tax returns, in violation of 18 U.S.C. §7602. The indictment alleged that defendant secured unwarranted refunds for his clients by claiming false deductions. By motion in limine defendant challenged the proposed use at trial, under Fed. R. Evid. 404(b), of certain uncharged acts: (1) his failure to file his own personal and business tax returns for several recent years (as well as his payments to his employees by cash or personal check without reporting those earnings to the IRS); and (2) his dealings with an undercover IRS agent posing as a taxpayer for whom defendant prepared a return showing a $3,000 liability, then offered to convert the liability into a $2,400 refund with 'creative financing' and a higher fee.

Judge Garaufis found evidence of defendant's personal tax history to be inadmissible under Rule 404(b). 'Failing to file one's personal tax returns,' the court stated, 'lacks the requisite 'substantial similarity' to filing forms containing false information on behalf of others.' In any event, the evidence was inadmissible under Rule 403 because its minimal probative value on the issue of intent was outweighed by the risk of the jury's inferring that defendant is 'generally a tax cheater.' The court saw no such problem in admitting evidence of the uncharged dealings with the undercover agent. That evidence was relevant to prove knowledge, intent and absence of mistake and to corroborate the testimony of defendant's other clients, and could fairly be admitted with a limiting instruction.

The evidence was not admissible to demonstrate a modus operandi, given the lack of similar 'idiosyncratic details' between the uncharged conduct and the charged conduct. As Judge Garaufis saw it, the general similarities here-asking for a higher fee to include false deductions-were not so distinctive as to be like a 'signature.'

Judge Garaufis granted the government's motion to allow the testimony of another IRS agent, who had no role in the investigation, as an expert summary witness on income tax computation to show the 'materiality' of the false statements on the returns of defendant's clients.

Hague Convention

In Bonilla Ordoñez v. Sinchi Tacuri, 09 CV 1571 (EDNY, Sept. 10, 2009), Judge Block denied a wife's petition against her husband for return of the couple's 3-year-old son from New York to Ecuador under the Hague Convention. Following an evidentiary hearing, the court found that the parties' 'last shared intent' was that their son should live in the United States.

Petitioner Bonilla, the boy's mother, is a native-born citizen of Ecuador and not a United States citizen. In 2001 she met respondent Sinchi in Ecuador. Sinchi is a dual citizen of both countries. Bonilla came to the United States illegally in 2002 to live with Sinchi. Their son James was born here in 2006.

In August 2006 Bonilla and Sinchi went to Ecuador to deal with a problem involving Bonilla's two older sons. They intended to marry in Ecuador so that Sinchi could sponsor Bonilla and her two older children for United States citizenship. When they left Sinchi's home in New York to go with James to Ecuador, they brought with them only two pieces of luggage per person and stored their belongings and James's things in their landlord's garage.

Shortly after arriving in Ecuador, Bonilla and Sinchi were married. In the fall of 2006 Sinchi returned to the United States and initiated the citizenship applications.

In December 2006 Sinchi briefly returned to Ecuador and, a month later, took James back to New York with Bonilla's consent. In September 2007 Sinchi and James went to Ecuador where Sinchi learned of his wife's infidelity to him. He then lost interest in processing the citizenship applications. In October 2007 Sinchi and James returned to New York.

Bonilla obtained an Ecuadorian judgment ordering Sinchi to 'turn over [James] forthwith.' In April 2009 she filed this action under the Hague Convention on the Civil Aspects of International Child Abduction.

The issue here was whether Bonilla could meet her burden of showing that James 'was habitually resident in [Ecuador]' when he was removed to the United States in October 2007. To resolve this issue, Judge Block looked to the last 'shared intent' of the parents as to where James should live. See Duran v. Beaumont, 534 F.3d 142, 147 (2d Cir. 2008).

Sinchi argued that the parties' last shared intent was to have James live in the United States. Bonilla argued that their intent to do so was 'conditional' – i.e., when the couple went to Ecuador in August 2006, they agreed that James would stay in Ecuador unless and until Bonilla and her two other children could live in the United States legally.

In crediting Sinchi's trial testimony that he intended James's sojourn in Ecuador to be temporary, Judge Block pointed (among other things) to the small amount of luggage taken during the 2006 trip and the return to New York for eight months in 2007. The court summarized its findings:

... when the parties left for Ecuador both agreed that James would stay in Ecuador temporarily for a period of time reasonably necessary for Bonilla to gain custody of her elder two sons and for Sinchi to pursue their United States citizenship. Neither party envisioned James remaining in Ecuador permanently under any conditions; rather, both parties intended that, after this reasonable period of time had elapsed, James would return to the United States to be raised, and that the entire family would also come to the United States to live-legally, if possible, but illegally if necessary. (Slip op. 9-10)

At some point, the court added, the marriage fell apart and Bonilla changed her mind.

Nor could Bonilla overcome the impact of these findings by her argument that James's 'acclimatization' to Ecuador trumps the parties' 'last shared intent.' The facts here simply did not show that James had become so 'acclimatized' to life in Ecuador that 'serious harm' to him would result if he lived in the United States.

Judge Block noted that Bonilla could try to secure custody and/or visitation rights through a proceeding in New York state court.


In Tummino v. Hamburg, 05 CV 366 (EDNY, Aug. 27, 2009), Judge Korman denied the motion of three non-profit organizations whose members opposed abortion to intervene in an action where plaintiffs sought an order directing wider over-the-counter distribution and access to Plan B, a prescription-only emergency oral contraceptive.

The intervenors sought leave to intervene in order to appeal from the court's judgment ordering the FDA to permit 'Plan B's manufacturer 'to make Plan B available to 17 year olds without a prescription, under the same conditions as Plan B is now available to women over the age of 18.'' Slip op. 2.

Judgment was entered on March 24, 2009, and the last day to appeal was May 26, 2009. On April 22, 2009, the FDA announced that it would not appeal. Intervenors, Concerned Women for America (CWA), Christian Medical & Dental Associations and Christian Pharmacists Fellowship International, did not move to intervene and appeal until June 25, 2009, even though some of their members were aware of the FDA's decision not to appeal on the day it occurred. That same day CWA issued a press release condemning the decision as 'driven by politics.'

Intervenors had to show that they were sufficiently harmed by the judgment to give them independent standing to pursue the appeal. Standing requires a showing that: (1) intervenors have suffered an injury in fact that is concrete and particularized and actual or imminent; (2) there is a causal connection between the injury and the challenged conduct; and (3) it is likely that the injury will be redressed by a favorable decision.

The court rejected all asserted standing theories. First, intervenors did not suffer an 'informational injury,' because a mere interest in a problem does not confer standing. Their alleged lack of access to pediatric safety information was undifferentiated and common to all members of the public. Moreover, the FDA had found that a pediatric safety assessment was not necessary because the data relating to adults could be extrapolated to over-the-counter use of Plan B by adolescents.

Second, intervenors claimed that they suffered a 'procedural injury' because they were denied the opportunity to participate in the FDA rulemaking process. Because rulemaking was not required under the statute when a drug sponsor proposed the change and the FDA itself decided here not to undertake rulemaking, the rulemaking process had not been short circuited. Consequently, there was no causal connection between the alleged procedural violation and the alleged injury. Moreover, intervenors did not allege a concrete 'organizational injury' or any injury suffered by their members.

Similarly, Judge Korman rejected the argument that intervenor pharmacists would be compelled to distribute a 'misbranded' drug, because pharmacists who did not want to sell the Plan B drug did not have to participate. Nor was there any state regulation or statute compelling them to dispense Plan B to 17-year-olds without a prescription. Thus, their fears of prosecution were imaginary and speculative.

Finally, contrary to intervenors' argument, physicians had no third-party standing. They had not suffered a concrete injury and patients did not need their protection because they could figure out the safety issues for themselves and avoid Plan B. Judge Korman also held that the intervenors' motion was untimely. Instead of taking steps to intervene immediately, they waited two months to file their motion seeking leave to intervene and appeal. By then, the time to appeal had elapsed. Slip op. 18-22.

Malicious Prosecution

In Thompson v. Detective Grey #475, 08 CV 4499 (EDNY, Aug. 26, 2009), Judge Weinstein dismissed plaintiff's claims asserting denial of equal protection, malicious prosecution and false arrest arising from his state prosecution for weapons possession and murder.

Plaintiff claimed that the district attorney failed to prosecute the actual shooter. Plaintiff also claimed that his arrest for weapons possession and murder in October 2003 and the grand jury's subsequent refusal to indict him established malicious prosecution and false arrest, even though in November he was re-arrested and indicted on substantially similar charges. After an evidentiary hearing the judge in the state case, ruling that the police lacked probable cause to arrest plaintiff in October 2003, had suppressed evidence obtained on that date. Plaintiff was subsequently convicted of murder and possession of the murder weapon.

Judge Weinstein dismissed plaintiff's claim that he was denied equal protection by the state's failure to prosecute another person for the murder. Plaintiff, the court observed, had no constitutional right to compel the prosecution of another. Judge Weinstein also dismissed plaintiff's malicious prosecution claim given his subsequent conviction on similar charges. The dismissed charges were not sufficiently distinct from the subsequent charges on which he was convicted to show prosecutorial abuse.

Judge Weinstein reached a similar conclusion about plaintiffs false arrest claim under section 1983. As the court found, the two arrests were 'inextricably intertwined,' and a finding of false arrest would imply that plaintiff's conviction was invalid and thus would amount to an impermissible collateral attack on that conviction.

The claims against the City of New York were not viable because 'there is no basis from which a jury could find an official policy or custom that produced the alleged constitutional violations.' Slip op. 10. Further, the prosecutors had absolute prosecutorial immunity and, in this case, Detective Grey had qualified immunity because he had arguable probable cause to arrest plaintiff immediately after the shooting near the crime scene.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the October, 2009, issue of the New York Law Journal. Copyright © 2009 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]