United States v. David Jemal

pleading, of in some form and agencies answered powers, and the having judicial as determined, we must conclude that to be procedures and powers judicial more functioning has. court is as of Vehicles this constitutional Pennsylvania Board than in on such. court relied Tool & Die The agency at is- administrative

powers that the (citation omitted). 42 S.Ct. at 254 Id. powers of that exceeded there had sue Pennsylva- analyze of the If we the status Vehicles, ordering the namely, of the Board separately from the nia Board Vehicles employ- of reinstatement relief affirmative it, it proceedings before be- nature of pay. ees general, in Board’s clear comes in the district court Finally, we note that functions, character procedures, do analysis used Corwin adopted the this case irrelevant make it a court. It is therefore 593-95, Sales, when it F.Supp. at Jeep may qualify as a proceeding whether Board proper that removal was held dispute action” because it is a contract “civil adjudicatory rather acting in manner “was parties, private two or even whether between District one.” in an administrative than brought original proceeding it could as an However, reasoning this op. court at 3-4. diversity in the district court on the basis of requirements conflates two inappropriately jurisdiction. brought in The matter was not Under 28 U.S.C. the removal statute. and therefore was not remov- a “State court” 1441(a), “any action” of which § civil 1441(a). able under section jurisdiction and original courts have district court” be re- “brought in a State III. require- court. The to the district moved general principle that Applying the separate action” is that it be a “civil ment strictly statute is to be con the removal brought in it be a requirement that from the strued, agen hold that an administrative court.” “State a court should cy without the attributes of clear in was made Commis- The distinction a court”' under 28 not be considered “State Improvement District No. Road sioners of 1441(a). Therefore, § we will reverse U.S.C. Railway, 257 U.S. v. Louis Southwestern St. judgment of dismissal of 250, 251, 547, 550, L.Ed. 364 S.Ct. to the district court and remand analyzed (1922), Supreme Court where that it be remanded to court with directions deciding requirements separately these Pennsylvania Board Vehicles. county proceeding a state whether damages growing out “to assess benefits improvement properly removed a road Court, federal District Court.”

to the county had been noting that the

after court to be recognized by supreme state America, Appellee, UNITED STATES court, proceeding went on to examine “judicial con- it was a determine whether an administrative troversy,” opposed JEMAL, Appellant. David concern: No. 93-5172. course, designation of the statutory Of judgment, body or of a action Appeals, Court of United States finding conclusion of its phrasing Third Circuit. order, judicial is not formula of a the usual May 1994. Argued it is character of the conclusive however, find, acting. When we 1994. Decided June all elements of before it has proceeding July Rehearing Petition Sur wit, adversary controversy, judicial the claim of an issue which parties and capa- parties against the other

one estimation, is stated pecuniary

ble (argued),

Richard E. Mischel New York City, appellant. for Chertoff, Atty., Michael U.S. Edna B. Ax- Farmer, Jr., (argued), elrod John J. Asst. Newark, Attys., Atty., U.S. Office of the U.S. NJ, appellee. LEWIS, ciently comprehensive to remove those issues BECKER Before: as the this case. Inasmuch POLLAK, Judge.* District

Judges, and otherwise admissible and not

evidence was subject under Federal Rule of to exclusion THE COURT OF OPINION we hold Evidence BECKER, Judge. admitting not its discretion did abuse judgment in a criminal from a appeal This judgment of the district court evidence. important question under presents case will therefore be affirmed.1 404(b): a whether Evidence Rule of Federal offering comprehensive a may, by I. FACTS AND PROCEDURAL possessed stipulation and unreserved HISTORY motive, intent, opportunity, knowledge, sought to be established 1985, other fact approached or his September In Jemal 404(b) evidence, govern- prevent Indiek, incorporating attorney, Joseph about of the defen- putting on evidence ment from In No- for him and a relative. a business question arises acts. This prior bad began discussing dant’s Jemal vember stemming from a “bust-out” a mail fraud January In plan Levy, his cousin. with by defen- allegedly masterminded they scheme Levy to specifically proposed he co-conspira- Along with Jemal. dant David jobbing a “wholesale business” start a Levy, allegedly started Jemal tor Norman Big Bargain office of Stores —one back Merchandise), its increased (Capital business suggested He retail stores. Jemal’s means, bought rating by fraudulent credit buy and resell it to “mom merchandise no intention of on credit with goods for resale At the end of Janu- pop” and retail stores. sellers, goods, kept the sold the paying the Levy that he could raise ary, informed Jemal corporation bank- money, and declared Levy willing “operate to capital was this, him of one jury convicted rupt. For incorporate the They agreed to business.” fraud, mail conspiracy to commit Capital count the name Merchan- business under counts § for six substantive and U.S.C. dise. fraud, § 1341. of mail 18 U.S.C. corporation and then formed Jemal corporation’s president. Levy be the asked to objections, the district Over Jemal’s brought Levy him to he with In March 1986 to introduce allowed the Levy, meeting, but office. At the in Indick’s of Jemal’s involvement evidence Jemal, by-laws signed not in order frauds and bust-outs surance Levy presi- listing resolutions Capital Mer board and intended prove he knew treasurer, secretary, dent, vice-president, argues that to be a bust-out. Jemal chandise Capital Mer- to the stock stipu and subscriber willingness because he indicated had been back- intent, These documents chandise. knowledge bad late to 23, 1985, Indick September dated have been excluded. evidence should acts a means inappropriate not district testified agree Jemal that a Although we Levy had been “reality” that reflecting the to admit evi generally refuse court should indi- on the dates “corporation” operating to show prior bad acts of a defendant’s dence lease, which he Levy signed a also cated. when the defendant knowledge and intent of Jemal’s prepared, Jemal had and unre said comprehensive proffered has lease Avenue —a premises at 143 Newark req possessed the stipulation that he served purport- 1984 and (or to October fact backdated other uisite 1,1984 to October run from November ing to bad sought to be established Levy not move into 31,1986, although did evidence), was not suffi- Jemal’s offer * alleged plea co- Poliak, guilty of Jemal's tion that District United States Louis H. Honorable Jem- Pennsylvania, evidence of conspirator constitute did not Judge Eastern District for the designation. light sitting by guilt is, other instructions al's — clearly and does gave, without merit by Jemal only advanced other contention 1. The warrant discussion. plain appeal error for on —that cautionary give jury a instruc- fail to court to March, pur- thereafter,

office until 1986. The lease was Soon according Levy, portedly assigned Capital Merchandise Levy discussed strategy running their November corporation bankruptcy into and then satisfying by having liq- creditors a marshal 10, 1986, Levy opened On Mareh a bank remaining uidate They began assets. order- Capital account for Merchandise for which he ing in large quantities merchandise with no signed signature allowing card him to with- paying intention of Levy for it. testified that day, according draw funds. The next most orders and sales were made Jemal. Levy, signed signature an additional However, Levy began Jemal and feuding, Levy” saying card with the name “Mike and, November, Levy’s after involvement “just Levy to use that name.” want[ed] Capital very Merchandise was limited. In told the bank that “Mike” was his brother January Levy 1987 remaining received his sign in emergen- and would for funds case of “payoff’ $5,000,bringing compen- his total cy. $14,000. sation to Jemal took 80-85% of the Levy began purchase and then Jemal to income, allegedly some of it By for rent. wholesalers, merchandise substantiat- Capital March 1987 Merchandise was essen- ing their stating credit worthiness that tially defunct, corporate with the bank ac- they had in couple been business for a count closed for insufficient funds. years as evidenced the backdated lease. Jemal was Capital engaging But indicted for in a con- Merchandise needed to establish spiracy fraud, to significant a commit mail history credit 18 more order to U.S.C. § begin and for six buying large quantities substantive counts of mail merchandise. fraud, § 18 Kassin, U.S.C. approached Levy, Jemal Norman Sam an ac- who quaintance co-conspirator named as a familiarity who had with and a co- bust-out defendant, pleaded guilty to conspiracy schemes and asked for advice on how to to commit jury trial, mail history inflate the fraud. After corporation. credit Jemal was convicted on provided Kassin all this advice in counts. June and agreed purchase to write Capital orders for approached Merchandise. Jemal also his ac- II. PRIOR BAD ACT TESTIMONY (accord- quaintance Beda, Richard told him A. The Evidence and to Defendant’s Offer Beda) ing to “going that he was to amake Stipulate Merchandise, Capital

bust-out” of and asked if he company could use Beda’s essentially as a Jemal’s defense was credit that he agreed reference. Beda was an innocent and sent out landlord who 20 to had no involve- 40 indicating references ment Capital perpetrated that bust-out Mer- scheme Levy very good. chandise’s credit was and others. sought impeach He to Levy government’s and the other witnesses During period, Levy Jemal advised by demonstrating they testifying were remove his name from the docu- because of deals had made with the ments “after discussions we had that we government, by showing past tendency their planning were to scam company;” Kassin lie, crimes, and, past their regard with provided similar August, advice. In although Levy, by history drug abuse. made to July, look as if it Levy resigned as president director and objections, Over govern- continuous corporation inveigled and his invalid father ment introduced evidence of crimes Levy sign Morris Levy” name “Jack allegedly committed, Jemal had ostensibly to on naming Levy documents Jack the sole show Jemal’s of the nature of a shareholder, director, president Capi- bust-out scheme and perpetrate his intent to tal Merchandise. in August Also Capi- one. Kassin testified that Jemal had been tal Merchandise submitted a partners credit state- one of his in a bust-out of a store ment, signed by Levy”, “Jack to Dun and called Trading 1977; SBL in 1976 or Jemal apparently Bradstreet. Jemal fabricated the Trading’s had served as SBL landlord and sales, statement to equities, show profits had profits. received 25% of the Kassin also far above their actual values. operated testified that he had bust-out pro- that its The court indicated from of mistake. was aware of which any prejudice outweighed undue purchase dis- value bative had wanted which Jemal a useful Finally, Kassin testi- that it was too difficult to obtain merchandise. counted in 1982 Id. this ease. operated stipulation bust-out on he had fied that housing building into a moved which or 1983 a new stipu- counsel then offered Defense business businesses —a one of Jemal’s saying: lation implying (apparently operations then ceased space for the use the decided that Jemal regard to the Count of the indict- [w]ith scheme). bust-out charging conspiracy, stipu- I would ment the —of all of the elements of late to in 1986 Jemal Beda testified Richard indictment, save the defen- count of the him so damaged clocks from purchased had membership conspiracy. dant’s and file an “stage” a flood could through alleg- regards to Counts With practice regular (allegedly a claim insurance fraud, I would submit that Jemal). ing mail during Beda also testified acting remaining issue of only is the operated in issue he had operation bust-out regard to a lease And him to make in concert. even advised concert, into acting later entered I will to that issue of agreement similar finds by Capital Merchandise. —if Levy is testimony of Norman that the trial, opposi- his Jemal voiced before Just truthful, jury may find that the then the acts of this bad the introduction tion to may requisite intent and had the defendant His counsel stated: evidence. acting remaining elements consider the distinguished from one be case should This in concert. the defen- that acknowledge we employee or an officer an was either dant stipulation, the court considering this After committing corporation, that he of the proposal'..., with the “[e]ven concluded that innocent. otherwise were acts which some the highly under issue I think it’s relevant knowl- issue of the defendant’s Then are, how knowledge of what bust-outs issue of his important. The edge becomes also as evidential operate. I think it works case, In this important. becomes intent mistake, so that lack of even the issue of on contention, quite simply, is that our play, may not be those though intent govern- was not involved. defendant certainly are.” others signato- my alleges that client ment present- Finally, prosecution after he checking and that account ry on the witnesses, again counsel fifteen ed alias. Levy” as an name “Mike used the 404(b) issue, stip- offering to Rule raised the signed a ever deny that defendant We ulate that: any checks. any power sign or had check the name my used deny that client We committed Levy that David testified Levy.” “Mike Knowingly and inten- following acts: 1. that order counsel continued Defense ar- a fictitious lease tionally entering into prior bad the introduction preclude prepa- Participating 2. rangement. acts evidence: back-dating docu- ration and gov- that if the prepared I’m financial infor- Supplying false 3. ments. my client was can establish that Bradstreet, ernment credi- Dun & mation to account, checking signatory on the Ordering on behalf merchandise 4. tors. acts as the other participated he Selling that Merchandise, 5. Inc. Capital they can Levy, that by Norman Merchandise, described Inc. by Capital merchandise requisite had the find David guilty By plea of not mail as the far knowledge and acts. any of these having committed denies is concerned. fraud proven has government you If find any one or doubt beyond a reasonable Nonetheless, ruled the district above, I then alleged the acts more of testimony was admissible prior bad find that you must you intent, instruct and lack operandi, showing modus possessed requisite knowl- pertaining evidence to his character. edge and intent. Id. at 1019. Relying prior rationale, on its Despite our characterization of Rule again rejected stipulate, offer to 404(b) as a rule of admissibility, we have give but limiting it did instructions to the expressed that, our concern “[although the

jury respect to the use bad acts government hardly it, will admit the reasons evidence. proffered to admit bad act evidence potemkin often village, because the Proper

B. The motive, suspect, is often mixed between 1) Background urge to show some consequential other fact as well impugn as to the defendant’s begins Fed.R.Evid. by stating that: character.” Sampson, See F.2d at 886. [ejvidence crimes, wrongs other or acts result, As a we held in Sampson “[i]f is not prove admissible the character of evidence, offers offense person in order to show that he acted in it clearly must articulate how that evidence conformity therewith. fits into a logical inferences, chain of no link We have stated that: of which can be the inference because [character rejected evidence is not be- before, defendant committed ... offenses cause is irrelevant. On contrary, “it likely therefore more to have committed weigh is said to too much with the Moreover, one.” Id. once the overpersuade to so prejudice them toas government articulates how the evidence fits one with general a bad deny record and chain, into such a the district court must him a fair opportunity to against defend a weigh value of the evidence particular charge.” Michelson v. United against potential its prejudice cause undue States, 469, 475-76, 335 213, U.S. 69 S.Ct. articulate rational explanation on the 218, (1948). 93 168 L.Ed. record for its decision to admit or exclude the evidence. at Id. 889.2 United Sampson, 883, States v. 980 F.2d 886 (3d Cir.1992) 404(b)/Rule We review the Rule weigh 403 ing. process only for discretion; of abuse Nonetheless, prior while bad acts evi hence the significant district court has lee dence prove inadmissible to is that the defen way reaching its decision. Id. at 886. “If dant “acted in conformity therewith,” “[char judicial desirable, self-restraint is ever it is acter] ... evidence be admissible for when a Rule analysis 403 of a trial court is other purposes, proof motive, such as of op appellate reviewed tribunal.” United intent, portunity, preparation, plan, knowl 761, (3d States v. Long, 574 F.2d Cir.), 767 edge, identity, or absence of mistake or acci denied, 985, cert. 439 577, U.S. 99 S.Ct. 58 404(b). dent.” Fed.R.Evid. recog haveWe (1978). L.Ed.2d 657 404(b) nized that is Rule of rule inclusion rather .than of exclusion. See United States 2) Stipulations Scarfo, 1015, (3d v. 850 Cir.), F.2d 1019 cert. denied, 910, 488 263, U.S. 109 S.Ct. 102 The Circuit Second has held as a (1988). L.Ed.2d 251 Evidence can be admit law, matter of it is an abuse of discretion for ted even if it does specific fit one of the district .not courts admit bad acts evi- exceptions rule, listed long so as it is prove dence to an issue such knowledge or used for a purpose other proving than intent if the defendant takes steps sufficient defendant’s likelihood to have committed this See, to.remove that issue from the e.g., case. particular based on an crime inference drawn United Manafzadeh, 81, States v. 592 F.2d 87 steps 2. These admissibility 404(b); 2) follow the test for set under Rule it must be relevant under Supreme out 402; 3) Court in Huddleston v. Unit- Rule outweigh its must value States, 681, 691, 1496, ed 485 U.S. S.Ct. prejudicial 108 its 403; effect under the standard of Rule 1502, (1988). 99 L.Ed.2d 771 Supreme 4) The charge must Court stated that for bad acts evidence to only consider the purpose evidence for 1) be admitted: proper purpose must have a which it was admitted. See id.

1273 denied, (7th Cir.), 490 338, cert. U.S. Mohel, F.2d 344 604 Cir.1979); v. (2d States United (1989)). 2087, 104 1075, 109 650 L.Ed.2d (2d Cir.1979), v. S.Ct. States 748, United 753 F.2d Cir.1980). conducting (2d minimum, means that 934, At a 941-42 618 F.2d Figueroa, test, courts in balancing district with in this 403 are faced the Rule we question initial directed to have been the Second follow the Seventh we should is whether signifi to be acts evidence prior bad consider rule. Circuit’s regardless of the defense cantly probative rule, if the Circuit’s the Second Under Mazzanti itself employed by the defendant. 404(b) Rule evidence offers allowing the decision upheld a district intent, can knowledge or defendant prove dealing prior drug introduction evidence if his de evidence introduction avoid presence conceded where charged act not do the “he did is that fense wrongdo any but or near scene denied at 900, Ortiz, 857 F.2d v. States at all.” United ing. id.3 See 1070, denied, (2d Cir.1988), 489 U.S. cert. 903 (1989). 1352, L.Ed.2d 820 103 109 S.Ct. position yet definitive taken a We have has claimed a defendant where stipulations to remove on the use than drugs at all rather not distribute did case, although we from a evidence a substance claiming that he distributed in the context expressed ourselves drugs without out to be turned In balancing generally. United Rule 403 drugs, the Second was the substance (3d Cir.), Provenzano, 620 F.2d 985 v. States admission precluded the Circuit has 267, denied, 101 66 S.Ct. 449 U.S. cert. Mohel, See, at 604 F.2d e.g., evidence. crime (1980), gov considered the 129 we L.Ed.2d 944; United 755; 618 F.2d Figueroa, corpora that a attempt prove ernment’s (2d Colon, Cir. F.2d v. States introducing corporation was a sham tion 1989). appeals essen Many other courts jail dur evidence See Second Circuit. tially agree with the supposedly period that he was ing the time Jenkins, 7 F.3d v. United States considering In corporation. running the Cir.1993) interpreta- (8th (observing that this defendant’s offer language of clear comports with the tion unavailable, that: held inadmis acts evidence makes bad rule which not automatical- stipulate does offer to [a]n character); States United prove sible cf. proved may not be the fact ly mean that Cir.1978) (rea (5th Silva, F.2d instead, long probative value as the sole soning where defendant’s ef- prejudicial the exceeds proof the still act, no is there participation denial stipu- fect, the offer into account taking Palmer, 990 intent), v. States United issue Grassi, F.2d 602 v. States late. United — denied, (9th Cir.1993), 490, cert. F.2d 495 (“A (5th Cir.1979) stipula- 1192, cold 1197 1120, 429 -, 127 L.Ed.2d 114 S.Ct. U.S. legitimate party ‘of deprive tion can theory (1994) defendant’s (holding that where evidence,’ Wigmore on 9 moral force property onto he had moved was that (3d 1940), and 589 ed. § 2591 at Evidence growing marijuana had no tangible, fully substitute can never had sold there, his statement testimony wit- or physical evidence inadmissible). marijuana before was nesses.”) held contrast, has the Seventh In in Provenzano 1004. We concluded Id. at specific intent involving cases “‘[i]n stipulation would proposed issue, that because re automatically an crimes, is the defen- toas whether some made leave doubt has of whether the gardless ” and because completely unavailable dant was States in the case.’ United issue intent an structuring a difficulty (7th conceptual of “the Cir. Mazzanti, 1171 F.2d 888 v. fact convey the same would Monzon, stipulation that 869 v. 1989), States United (quoting the defendant is that cantiy the defense less when an taken intermediate Circuit has 3. The Fourth See charged act at all. perform the did not prior bad that the use of approach. It has held Hernandez, F.2d meticulously United States be examined must acts evidence approach 1992). (4th to the is similar This pro- Cir. implied strongly and has each case at 1274-75. case. See in this signifi- we will take prior acts evidence infra bad bative value of unavailability due to incarceration without tent with Provenzano’s rule that stipulations id,., adverting to that concept,” admission of should be taken into account in conducting a the evidence was not an abuse of discretion. balancing Rule 403 analysis. See United Hernandez, Sheeran, States v. In United States v. F.2d 699 F.2d 112 (4th Cir.1992) (3d Cir.1983), (employing we a Rule summarized 403 balanc- Provenzano as ing analysis to follows: a district reverse court’s deci- sion to admit evidence of defendants’ Although “[a]n offer to does not sale of crack where automatically mean that may the fact defendant did not sell instead, the crack proved be involved at long as the all and where there was no indication that proof value of the prejudi- still exceeds the carefully district court had cial balanced taking effect into account the offer to evidence). stipulate,” Provenzano, United States v. (3d Cir.1980) (em- 620 F.2d 1003-04 emphasize, however, We that to suc phasis added), we held that evidence ceed, the proffer defendant’s must be com admissible the absence of such a conces- prehensive unreserved, completely elimi sion sometimes should not be admitted nating the government’s need prove where the defendant has offered “a suit- point it try would otherwise to establish us stipulation.... able convey that would 404(b) ing evidence. As the Second Circuit fact,” same id. at 1004. explained, whether a defendant has removed Sheeran, Sheeran, 699 F.2d at 118 n. 12. In an issue the case: in the absence of an stipulate, offer to depends not on the form of words used upheld the admission of evidence of bad counsel but on consequences that the alleged co-conspirators prove their may trial court properly attach to those control over companies involved in the words. When the Government offers charged conspiracy. prove issue, act. evidence to counsel While we did not decide Provenzano and express must dispute decision not to Sheeran specific under the rubric of Rule issue with clarity sufficient that the trial 404(b), Provenzano, we think that which in- (a) justified court will be in sustaining ob- question volved the of whether to admit evi- jection any subsequent cross-examina- dence that the jail, defendant was in inwas jury tion or argument that seeks raise essence a Rule involving prior (b) the issue and in charging bad acts evidence. at least .in if they find all the other elements estab- absence reconsideration, banc Proven- beyond lished doubt, a reasonable they can zano and Sheeran prevent would seem to us resolve the against issue from adopting per se rule of the Second disputed. because is not may just Circuit. That as well inasmuch Figueroa, 618 F.2d cases, there be some presently un- foreseeable, which the district might When a defendant indicates a desire identify properly calling as for the admission preclude to 404(b) the admissibility of Rule 404(b) of Rule evidence notwithstanding a by evidence stipulating away particular a is willingness defendant’s stipulate. to government sue but the offers a reasonable However, although we leave open, the explanation door why as to proposed the stipula we that believe district courts gener- should tion inadequate, the judge district should ally prior deem bad acts evidence explore inadmissi- possibility the agree an fashioning ble prove to an issue that the defendant ment on a comprehensive more stipulation— makes he clear is not contesting. preferably limine, The rele- in as the recent Rule vance of the bad acts evidence will be amendment contemplates. See Fed. cases, minimal in most such 404(b) (amended since the evi- 1991). R.Evid. Finally, dence will not bear on the issues being con- we that note even if the defendant is unwill tested. And the prejudice undue ing will be to make sufficient concessions to com quite high, since bad acts evidence pletely case, remove an issue from the the quite tends to persuasive. This is consis- district court weigh prejudice should against final, apparent from Jemal’s This becomes taking into account only after value probative stipulate to complete, offer to and most weigh- a stipulation, “partial” the defendant’s made after knowledge offer and intent —an of discre- abuse review for will ing that we view that was court its it district stated the (hold- Hernandez, F.2d at tion. Cf. stipulation useful to obtain impossible a the use value of ing the that if to offered this case. Jemal reduced can be evidence bad acts any of performed had jury found that he the cer- concede willingness to defendant’s the Levy, then it by Norman five acts described issues). tain requisite the “possessed that he should find supra at knowledge intent.” See Case act Application C. at the first position falters But Jemal’s backdating stipulation specified —the the district acted thinkWe position is government’s of the lease. acts evidence admitting prior bad properly the backdated knowingly entered that Jemal his actions intended that Jemal to here show Capital having intention of with the lease and knew scheme part of a bust-out to be credit to boost use the its Merchandise lease a scheme. part of such were his acts acts among the overt rating. This act was com stipulation that not offer did Jemal taken the specified in the indictment intent the issues pletely removed alleged con- of the in furtherance despite appar an the knowledge from stipulation to proposed spiracy. Yet Jemal’s so, nor can think to do ently effort respect sincere to knowledge intent with job. have done the government that would to stipulation required have lease would (1st Garcia, proposed knowledge 983 F.2d Jemal and intent: prove U.S. Cf. Cir.1993) sincerity jury he (“[Notwithstanding the found that stipulate that to intentionally into a offer, must entered “knowingly and the concession the defendant’s find arrangement,” should to lease ground fictitious necessary substantive cover the requisite ease.”). possessed the Although issue from the remove and intent. that “our conten counsel asserted defense was tion, the defendant simply, is that quite Indeed, admitted that counsel involved,” that Jemal had to concede he he not but stated signed the lease client had alleged of the acts in some participated the lease as had not intended use part of knowl brings been elements of government have by the This bust-out. acts, those fore.4 Provenza respect to edge With scheme. bust-out Cf. stipu (observing no, that a that while Jem 620 F.2d at had to claim defense counsel did unavailable was acts, do so with lation that did not performed al wheth- as to the issue completely remove not a “bust-out.” perpetrate intent to an Moreover, specified acts pro- additional government claims that Jemal’s also 4. The govern- helped the government would not inadequate it did because stipulation was posed case, allow they not sufficient were ment’s Jemal's constituted of the acts which not list all guilty were even if to find (assuming that he committed alleged crimes requisite intent. None intent). performed with example, the requisite For acts with as an specified in the indictment sought these use argues conspiracy taken furtherance overt act (in phony refer- company credit Richard Beda’s ence, fact, with Jemal's act taken none stipulation proposed did Jemal’s but act was an co-conspirator) and none alleged government, howev- alleged act. The cover this in order mail deficiency involved fraud. er, supposed identify this did not conspiracy or either a conviction on trial; obtain did stipulation at nor counts, government had to the stipula- the substantive the acts in of these point to the absence of the performed at least one prove that Jemal rejecting it. Given Jemal’s for basis tion stipulation Jem- proposed in his acts listed and knowl- attempt intent to eliminate —and sincere proved that government if the that al conceded proposal of several edge case and his the acts, jury the then any performed of these gov- he if think that the stipulations, we alternative knowledge intent. requisite and the find should felt that additional district court or the ernment list to Jemal’s failure rely on do not We stipulation make therefore to part of to be acts needed stipulation as proposed in his additional pointed to these adequate, should have district court’s upholding the basis for opportunity add Jemal allowed acts and 404(b) determination. stipulation. them to the er might the defendant have been able to not offer to make such a concession and emergency return in an help run the com- could not have part done so as of a reason- pany Garcia, question); in 983 F.2d at 1174- able strategy, because the evidence (explaining that a concession that the de- that Jemal engaged in these acts was too fendant something knew about cocaine traf- strong for him realistically to contest it. ficking did not remove the of issue knowl- proposed Jemal’s stipulation did reduce the edge from the case where his defense was role knowledge that played in the that he did not presence know of the of case, since, respect to the acts other in his cocaine closet and did not apprehend signing than the fictitious lease and backdat- the nature of drug paraphernalia that was documents, ing the Jemal willing was to con- apartment); Colon, visible his 880 F.2d at knowledge cede government intent if the (observing stipulation that a to intent if proved engaged question the acts. The government proved that whether, becomes given concession, this intended direct an undercover officer to a district court abused finding its discretion in particular person buy drugs did not re- probative that the value of the evidence out- case). move the issue of intent from the weighed its prejudice. undue Jemal makes Moreover, as the second pro- no real argue effort to it did—he ex- posed stipulation, agreed if the pends almost all of capital his on the conten- government proved that he had participated tion rejected, we have now namely, that he backdating documents, had completely removed the issues knowl- jury could then infer and in- edge and intent from the case. tent. Unlike specified the first act We hold that the district court did not stipulation, proof of this act not on does abuse its discretion. testimony require proof surface of knowledge and in- participated (in had bust-outs tent. But argument Jemal’s actual with re- least acting one case landlord), as a spect to backdating that, this while he that he had advised Beda that in order to did documents, backdate the he did so with- engage successfully in a bust-out he should out the intent use documents for a formulate agreement a lease similar to that bust-out. Defense argued, “you see, counsel later Capital Merchandise, used high- if [the intent to during defraud] occurred ly relevant to the issue of whether Jemal meeting office[,] at Sam Kassin’s ... if that’s knowingly and intentionally entered ficti- when Mr. Jemal allegedly made up his mind tious agreement lease purpose to bust corporation out, this then the back- engaging in a bust-out. The district eourt dating of the documents ... doesn’t have a was well within its discretion in holding that sinister intent.”5 Jemal had no real value of this evidence was not way completely excising the issues of substantially outweighed by any unfairly knowledge and intent from this case. prejudicial effect. Hypothetically, Jemal could have removed The judgment of the district court will be these issues contending that he did not affirmed. participate any alleged by the acts government including formation the ficti- SLOVITER, Present: Chief Judge, — tious lease and backdating of corporate BECKER, STAPLETON, MANSMANN, documents —and then he could have con- GREENBERG, HUTCHINSON, SCIRICA, ceded proved COWEN, NYGAARD, ALITO, ROTH, engaged any acts, of these LEWIS, McKEE, should Judges find knowledge and intent. POLLAK, But Jemal did District Judge*. 5. Defense counsel However, made statement after the the evidence partic- of defendant’s district court accept had proposed refused to ipation in the backdating of the documents was stipulation. It thus, be that if the overwhelming, district court fact accepted proposed stipulation, accept stipulation counsel court’s ed the refusal foreclos- simply would argued possibility relying defendant did not strategy on this can participate backdating deemed harmless error. documents and he argued not would panel intent. rehearing *As to only. REHEAR- PANEL FOR PETITION SUR RE- FOR SUGGESTION WITH ING BANC IN

HEARING 25, 1994

July by Appel- rehearing filed for petition judges who to the having submitted

lant been Court the decision

participated judges in circuit other available

to all service, judge who concurred no active rehearing, and for having asked

the decision the circuit judges of the circuit majority of having voted for service regular active banc, petition by the court rehearing rehearing DENIED.

for al., ANDERSON, Jr., et

Daniel

Plaintiffs-Appellants, CO., LOMASON &

DOUGLAS Defendants, al., INC., et Inc., Co.,

Douglas Lomason &

Defendant-Appellee. 92-7554.

No. Appeals, Court States

United

Fifth Circuit. 23, 1994.

June July

As Corrected Rehearing on Denial

As Amended En Bane Rehearing Suggestion 9, 1994. Sept.

Case Details

Case Name: United States v. David Jemal

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 25, 1994

Citation: 26 F.3d 1267

Docket Number: 93-5172

Court Abbreviation: 3rd Cir.