*2 Before WILLIAMS, SYKES, and Abair emigrated to the United States HAMILTON, Judges. Circuit from Russia in 2005 and married an Amer- ican citizen. They lived together in HAMILTON, Circuit Judge. Indiana, where Abair ran a massage thera- Two weeks before she was planning to py business and worked toward her nurs- close on purchase of a new home in ing degree. During time, Abair still Indiana, Yulia Abair learned that her owned apartment her old in Moscow. Af- bank in Russia would not pur- wire the ter being divorced, Abair sold apart- price chase from her account. She man- ment in 2010 and deposited the proceeds in aged to secure money before the clos- her account with Citibank Moscow. The ing by withdrawing a few hundred dollars year, next signed she a contract buy at a time from up ATMs to her maximum home for in cash Bend, South Indiana. daily limit and depositing the cash at her agreement That set the closing June for bank in Indiana. She was charged with 2011. violating a federal criminal statute that prohibits structuring currency transac- Several weeks after signing contract, in tions order to evade federal reporting Abair asked Citibank Moscow to transfer requirements for transactions involving the purchase price from her account. The $10,000 more than in currency. 31 U.S.C. bank refused, apparently because her local 5324(a)(3). § Abair was convicted in a bank account was her married name and
jury trial. She agreed also sell her the Citibank Moscow account used her new home and to forfeit the pro- entire maiden name. way to reach her ceeds to government. She argues on money in time for the closing bywas with- appeal that the trial court erroneously ap- drawing by it bit bit from Citibank ATMs plied 608(b) Federal Rule of Evidence by in Indiana. Abair did so over a frenetic allowing prosecutor to cross-examine two weeks which repeatedly with- her at length about alleged false state- drew the maximum daily amount of cash ments on a tax return and student finan- (this ceiling was set in rubles but hovered cial applications. aid We find that $6400). around Over the period, same lacked a faith basis for eight deposits made at her local believing that Abair lied on tax bank in ranging amounts from financial $6400 aid forms and therefore conclude $9800 below the limit which district court erred —all by allowing the currency reporting requirements kick to ask a series of accusato- in. See ry 5313(a); § and prejudicial 31 U.S.C. questions 31 C.F.R. them 608(b). § under Rule 1010.311.The last We of these say deposits cannot the error was on Tuesday, May harmless trial Because it immedi- hinged on Abair’s credibility. ately We reverse followed the Day weekend, Memorial Abair’s conviction and remand her deposit new posted alongside one she trial. Abair also challenges the forfeiture had made Saturday, pushing “daily” proba- existed, “said and she requirements thresh- $10,000 reporting over
deposit something organization bly C.F.R. See 31 regulation. by —some- old set (Abair in the arrived had identi- this.” thing for her like asked teller § 1010.813. English, very curren- little required speaking out the States and filled fication it was presume continuing difficulties report. We testified cy and she transaction *3 conversations.) to government led the that technical report or complex with Abair. based investigate were amounts her deposit said She the hand at on she had much cash on how decided Office Attorney’s U.S. The purse. in her fit would how much time and she was and prosecuting, worth was Abair counts— eight jury on by grand indicted Abair, prosecu- the cross-examining In struc- one—of merged into correctly later joint her 2008 about sought to ask tor for purposes transactions financial turing Applica- Free and the return income tax requirements. reporting evading the of (“FAFSA”) Aid Student Federal tion for parties the trial. Because to Abair went nursing attending while filed forms she do- was a her local bank that stipulated rele- objected on attorney Her school. institution, only two the financial mestic conference, In a sidebar grounds. vance prove had to government the elements mis- Abair he believed prosecutor said the reporting of the knew that Abair the on expenses business her represented had structured that she and requirements aid student on her and lied return tax evading of purpose for the her transactions income about her business applications requirements. those about to ask He intended assets. and her case-in-chief, the During its truthfulness Abair’s filings to attack the withdrawals of pattern on Abair’s focused 608(b), of Evidence Federal Rule under day that on each It showed deposits. and spe- about cross-examination which allows bank, than had more she to the Abair went if conduct a witness’s cific instances always de- yet $10,000 possession in her truth- of character they probative are gov- The that amount. than less posited to evidence fulness, extrinsic prohibits but had who agents two called IRS ernment attorney Abair’s such instances. prove that They testified interviewed Abair. the that objection, arguing his maintained not re- interview, was which during the bearing on truthfulness. had no documents knowledge of her corded, revealed Abair he had testified ex-husband Abair’s testi- agents also rules. The reporting the disputed the out filled the one who was that she outright told them that Abair fied tax re- joint on their information expense rules reporting avoid the had wanted Abair allowed turn, online FAFSA the the thought “she because judge part assets. The she was about though skip questions at as look her would probative is what something, filings were the organization ruled that anof 608(b) and under truthfulness she said.” Abair’s of the evidence value probative not dispute Abair did part, For her by the substantially outweighed not was by limit of the aware she was Fed.R.Evid. See prejudice. danger of But agents. spoke time she free judge said The making only after she learned said very limited manner “in a question why friend she asked deposits, when question- subjects,” provided on these identification show been asked she had lying she denied point at ing stopped that the version Abair’s bank. on forms. thought why she asked agents did, one count of though, repeatedly, structuring. sug- Ask he We have before, it gested at the denials: “Isn’t as much United States v. stopping without you helped prior Davenport, make state- 1171-72 true that Cir.1991), statements —in submissions but the district judge ments —false corrected matters; problem by merging that related to financial both on this score your sentencing. tax returns and on financial aid counts at your did not you made false statements?” do so earlier applications, because defense counsel wait- this, con- until questioning challenge Abair denied but the ed mid-trial to the indict- tinued. Didn’t the FAFSA form ask her ment under Federal Rule of Criminal Pro- No, exactly. to state her assets? cedure 29 rather than doing so a Rule being pre-trial delayed Didn’t she recall asked about her motion. merger No, computer skip sentence, let her had no effect assets? on Abair’s *4 nothing part. suggests the number of counts jury’s jury contributed to the verdict. The in the same questioning The continued was instructed to consider the sepa- counts it vein. Wasn’t true she also lied about rately, jury and a rational could have her income on the FAFSA forms? Didn’t guilty found Abair of each one based on she lie on her taxes about her business’s agents’ testimony the IRS and the record say expenses losses? Didn’t she were of Abair’s transactions if it did not believe gross her she un- receipts? double Was testimony. her turnWe now to the princi- gave that her false aware husband pal appeal. issue on numbers when he did their taxes? Abair having played denied lied. She said she A. Cross-Examination Under Rule family’s in preparing almost no role her 608(b) signed
tax returns and never them. Her attorney objections. But multiple raised 608(b) Federal Rule of Evidence limits although ques- the trial court reined in the of specific examples use of a witness’s somewhat, tioning had prior support conduct to or undermine the achieved what he set out to do. credibility. The witness’s rule bars extrin- jury guilty found Abair on all prior gives sic evidence of conduct but trial merged eight counts. The court judges discretion allow counsel ask one, counts into Abair sentenced to two about on cross-examination. Because years probation, of and ordered her to sell substantial,” possibilities “the are abuse govern- her new home and forfeit to the however, sufficiently the conduct must be sale, proceeds ment all the of the which relevant to truthfulness before it can be $67,060. amounted to subject of cross-examination. Fed. 608(b) Advisory R.Evid. Committee Note Analysis II. questions for 1972. What are allowed re- subject argues overriding protection the district court mains to “the 403,” allowing ques- requires abused its discretion in of Rule which their outweighed by filings “probative tions about her financial and claims value be unconstitutionally danger prejudice, the forfeiture was exces- of unfair confusion of Id.; issues, issues, dealing misleading jury....” sive. Before with those though, briefly Seymour, v. 472 argument we address see also United States (7th Cir.2007) (“Rule 969, original eight-count indictment F.3d 971 403 for the exercise of multiplicitous theory on the that her establishes the standard only judge’s evidentiary mat- eight deposits together support could discretion 264 Benabe,
ters, generally includes cross-exami- United States v. 436 of course which (7th Cir.2011) 608(b)); 639, Fed.Appx. (unpub- 655 United States nation” under lished) (“A Saunders, 907, questions on cross- prosecutor’s F.3d 920 Cir. v. 166 1999) (“district than judges retain wide examination must be based on more court prosecutor’s suspicions.”); limitations own United impose reasonable latitude Elizondo, 1308, v. 920 F.2d 1313 based on concerns States on cross-examination (7th Cir.1990) (same). harassment, prejudice, confusion interrogation the issues or matter, financial general lying As a on relevant”). marginally as tax returns or financial documents such seem to be an ar- applications aid would conclude that the In this case we truthful- chetype bearing of conduct by al court abused its discretion district Lynch, ness. See States v. 699 on Abair’s lowing the cross-examination (7th Cir.1982) curiam); (per F.2d 845 filings financial because the Sullivan, United States v. 803 F.2d 90- basis to believe provide did not sufficient (3d Cir.1986); but see United States filings of Abair’s char probative Dennis, (8th Cir.1980) 608(b) acter for truthfulness. Rule re (“civil problems regarded tax cannot be as quires that the cross-examiner have reason indicating a lack of truthfulness under this actually engaged to believe the witness standard”). here, however, problem *5 conduct that is relevant to her character government is that did demon- not for truthfulness. See United States v. strate a to Abair sufficient reason believe (7th Cir.2000) Miles, 988, 207 F.3d 994 actually attorney herself lied. As her ex- attorney refusal to (affirming court’s allow trial, testified, plained at and as Abair government to cross-examine witness ques- online her to skip FAFSA allowed firearm; register about failure to conduct tions about her irrelevant assets violated local ordinance but was irrelevant See, application. e.g., Dep’t to her U.S. truthfulness); to v. United States DeGer Ed., 2010-2011 FAFSA on the Web Work- (7th atto, Cir.1989) 876 F.2d 584 sheet, at http://ifap.ed.gov/ available (questioning improper under Rule eannouncements/attachments/ 608(b) government because lacked suffi (last FOTWWorkshEnl011.pdf visited permit good cient evidence “to a faith be 2014). March knowingly helped lief that DeGeratto 1 prostitution operation”); government acknowledged McCormick on The at sen- (Kenneth ed., tencing § 41 Broun 7th skip ques- Evidence S. Abair could these ed.2013) (“the tions, a it cross-examiner must have but claimed she had nevertheless good inquiry” faith in fact for affirmatively reported having basis no assets. 608(b)); government why 4 B. explain under Jack Weinstein The failed to this, Margaret Berger, A. Fed Abair Weinstein’s would have done and the De- Evidence, § (Joseph partment printout eral M. of Education on which 608.22[2][a] ed.2013). ed., case, McLaughlin In this government enough 2d relies is not least, simply support position. printout there was no reason —at none its The a shows government relating has offered—to be list of zeros next to items to the assets, filings bearing lieve the material applicant’s had but that does not mean actually figures. on Abair’s truthfulness. As we have ex Abair entered those The record, plained, prosecutorial printout department “a hunch” that the is an internal engaged dishonesty government provided in is not defendant has no rea- DeGeratto, 583; F.2d at see to think that enough. 876 son such zeroes similar applicant may what an conduct necessary answers reflect verbatim be to decide if it (For truthfulness). bears on typed example, on her form. Abair witness’s In the good absence of a faith probably asking did not write “Not Been Selected basis for accusatory questions trial, Abair these For Random Verification” or enter “0” for was an error the court to allow high graduation.) her date of school The cross-examination. anything government pointed has not supporting theory the record its the face The error was not harmless. We testimony of Abair’s and other indications could hold the error if harmless simply option her exercised government persuaded us that we could skip inapplicable questions about her as- say “with fair assurance that the error did more, government sets. Without substantially sway jury.” Barber faith failed to establish basis City Chicago, in filling believe that Abair’s conduct out Cir.2013). We find no such assurance the forms was relevant to her character hinged here. The trial on Abair’s credibil for truthfulness. ity. jurors could in reasonably have also sufficient lacked knowledge ferred and intent pat from her intentionally believing basis for Abair lied transactions; they tern of also could have joint her in- her and then-husband’s considered them an daily innocent series of tax come return for 2008. The return deposits by scrambling someone to save $8,872 in expenses stemming listed vehicle her purchase. They house could have be business, massage figure from her large agents’ lieved the IRS account of Abair’s shift enough to the business into the red. confession; they equally could have viewed acknowledged having provided her any supposed confession as the result of a figures ex-husband most of the for her misunderstanding stemming from Abair’s business, but he testified —in response to imperfect grasp nerves of En and/or question from the he glish. Against backdrop, a case —that *6 had calculated the vehicle numbers him- alleging chicanery, repeated financial the addition, government self. In the never accusations that Abair lied on her taxes any provided doubting reason for Abair’s and financial applications aid cannot be testimony that she not did not see the deemed harmless.
tax return signed but never even it be- compelling This conclusion becomes electronically. cause her husband filed it when one considers the extent and accusa- tory
Without more than the
has
nature of the cross-examination. The
here,
presented
it
repetitive questions
has not established a
about Abair’s FAFSA
form,
attributing
faith basis for
the
particular,
beyond simply
vehicle
in
went far
figure to Abair
thinking
identifying
specific
or
it was
the
conduct she was
result of a deceitful act
than
being
questioning
rather
an
asked about. The
re-
Miles,
oversight. See
citing
States
Cir.1987) (affirm-
said that based on
saying computer
812 F.2d
614
—
608(b) my
might skip question
answers I
on excessive
ing restrictions
witness),
assets,
my
and I did—I went to Mr. Ste-
cross-examination
Foster,
F.2d
506 vens’
office and we—all
[defense counsel]
v.
570
and Watkins
”
(4th Cir.1978)
grant
thing....
screens was—I did the same
(affirming
habeas
petition where cross-examination
corpus
608(b),
prosecutor
Under Rule
prior acts went
impeach defendant with
have been stuck
that denial.
should
far), among other cases. While we
too
following highly
But he continued with the
scope
ques-
of the
need not hold that the
(at
improper compound question
least
under Rule 403 or
tioning itself was error
are
twelve distinct factual assertions
built
harassing
on
under Rule 611’s bar
it)
just
accusatory speech:
into
that was
an
questioning,
wasteful
see United States
fact, you
your
“In
were asked what
assets
(7th Cir.2006)
Dawson,
you put
were and
zero for the value of
(“trial
responsibility
not to
judge has
2009, 2010,
your
assets
2011. You did
hand,
get
out of
allow cross-examination
you
in 2009
the fact
despite
jury,
prolong
and
the trial
confuse
you
a condominium and
held bank
owned
unnecessarily”),
the cross-examination
accounts and held assets in the United
long
and in such detail
this case went
so
You
that in
despite
States.
did
dispel any suggestion
as to
that the error
part
you
fact
in the first
of 2010
examples
note a few
was harmless. We
owned a condominium and in the second
illustrate.
part
you
proceeds
of 2010
had
of more
(In
$130,000.
beginning
At the
of the examination on than
Isn’t that correct?”
forms,
prosecutor
compound question prob-
the FAFSA
used
addition to the
lem,
extreme,
vague
confusing compound (triple)
things
which took
to an
question
they
confusing negative
wrap-up,
to attack: “And on that form
in the
“Isn’t
income;
you
your family
they
yes
ask
to state
that correct?” meant
that a
or no
you
you
much
ambiguous.)
ask
to state how
earn from answer would have been
De-
working
they
you
your
objected
to state
judge
ask
fense counsel
and the
called
assets;
isn’t that true?” Abair
answered
sidebar conference. The
cau-
(correctly)
exactly.”
“Not
That prompted
“pushing
tioned the
that he was
“Isn’t it true that
follow-up question:
envelope” but did not take
correc-
action,
you
appli-
leaving
long
accusatory
when
were asked in the FAFSA
tive
*7
were,
your
“question” hanging.
cation to state what
assets
to
them,
your
list
to state the value of
as-
resumed,
questioning
prosecu-
When
objection
sets—” which drew the accurate
true,
subject:
tor returned to the
“Isn’t it
question
that
assumed facts not in ma’am,
you
that
lied not
about not
evidence, namely
actually
that Abair was
having any
during
assets
those three
questions
asked those
in the online form. years
objected again,
Defense counsel
—.”
prosecutor
just
The
ques- properly,
having
then restated his
for Abair had
denied
recall, ma’am,
so,
you
you
tion: “Don’t
prosecutor kept repeating
done
but the
your
clearly
were asked what the value of
at-
question.
assets
was
you
by
FAF-
filling
presented
were when
out those
tuned to the risk
this line
questioning,
forms?”
answered:
I
not take effective
SA
Abair
“When
but he did
forms,
filling
they
questions
by stopping
rebuking
prose-
asked
action
or
money
telling
jury
disregard
how—about tax return —how much
cutor or
these
(1)
accusatory
by
improper
questions.
looking
and
to:
the nature of the defen
had exces- dant’s crime and its connection to
result was
other
(2)
questions
activity,
to ask
but to criminal
sive latitude not
whether the criminal
way
in a
un-
statute
meant
repeat
principally
people
state and
accusations
to reach
(3)
defendant,
like
mistakably
plant
pun
intended to
the accusa-
the maximum
case,
jurors’
imposed,
tions in the
minds.
In this
as
ishment that
have been
could
(4)
DeGeratto,
by
“this
the harm caused
we said
cross-examina-
defendant’s con
Malewicka,
much
far with too
duct.
v.
tion went
too
little.”
United States
(7th Cir.2011).
1099, 1104
F.3d
584. The
lacked a
questioning
faith basis for this line of
Bajakajian,
Supreme
In
Court held
608(b),
under Rule
and the extent of its
$350,000
punishment
was an excessive
cross-examination makes clear that the er-
report
the defendant’s failure to
taking
ror
not
harmless.
currency
amount of
out
coun-
try.
distinguished that
We
case Malew-
B. Forfeiture
icka,
$280,000
affirming a
forfeiture for the
challenges
Abair also
the forfeiture of
structuring
same
offense Abair was
value, arguing
her house’s entire
that it is
charged with. Malewicka was a close
disproportionate
so
the crime as to case, however,
significantly
and differed
unconstitutionally
amount to an
excessive from the facts here. Over the course of
Eighth
fine under the
Amendment. The
years,
several
defendant Malewicka with-
pursuant
forfeiture was ordered
to 31 drew millions of dollars from her busi-
5317(c)(1)(A),
§
provides
U.S.C.
which
through
ness’s bank account
hundreds of
part
part
that as
of a sentence for a viola-
just
cash transactions
below
§
tion of 31
a court
U.S.C.
“shall
limit.
at 1102.
upheld
Id.
We
the forfei-
property,
order the defendant to forfeit all
in large part
pervasive-
ture
based on the
personal,
real or
involved in the offense ness of the violations and the risk that a
any property
traceable thereto.”
small-business owner in her position could
statutory
subject
This
command is
structure transactions to facilitate tax eva-
Eighth
the constitutional
limit of the
sion or other crimes. Id. at 1105-07.
Bajakaji-
Amendment. United
States
recognized
log-
Malewicka
a limit on the
an,
321, 337-39,
524 U.S.
118 S.Ct.
Bajakajian:
ic of
reporting
even a
offense
(1998)
Applying Bajakajian, special an unconsti there was a risk of tax eva- tutionally money laundering present excessive fíne can be identified sion or not in currency There is no indication transactions. The withdraw-
Abair’s case. reporting legitimate, deposits avoid the rules on als were but the land- Abair tried to deposits that her in big other occasions or ed Abair trouble. activity. any tied to other criminal investigators The bank tellers told recognize that the be We money “musty,” “mildewy,” had a may have been involved lieves that Abair odor, “dirty” kept as if it had been in a wrongdoing, but there range in a of other freshly basement rather than drawn from wrongdoing. other simply is no evidence of an inferred from the ATM. Prosecutors record, in appears For all that money odd smell that the must have come commit at most a one-time offender who illegitimate brought from an source and unusually ted an minor violation of the the full force of the federal criminal law structuring tied to other statute Attorney’s down on Abair. The U.S. Of-
wrongdoing. therefore have serious We eight fice in South Bend indicted her on doubts that the forfeiture of her home’s money structuring counts of a transaction $67,000 comports entire value with the currency reporting requirements. to avoid “principle proportionality” of is the 5324(a)(3). See 31 U.S.C. jury § A con- inquiry of the constitutional “touchstone victed her on all counts. The Clause,” Baja under the Excessive Fines sentence, argued prison for a emphasizing kajian, at 118 S.Ct. but U.S. suspicious smelly money, nature of the can exploration further of the issue await judge rejected argu- but the district trial. new placed probation. ment and Abair on sentence, Abair’s conviction and includ- prosecutor sought also of forfeiture order, ing the forfeiture are REVERSED issue, required entire amount at which and the case is REMANDED to the dis- Abair to sell her new home. For some trict court trial. for new reason, agreed unknown before trial Abair fight not to if she con- forfeiture was SYKES, Judge, dissenting. Circuit victed. pretrial stipulation, Based on the Abair, immigrant Yulia a Russian requested entered the forfeiture nurse, registered made an unusual series order, and Abair lost full of value large deposits cash into her account at a $67,000 government. home—about the —to Bend, bank near South Indiana. at- This arguments appeal: Abair raises four agents tracted the attention of IRS (1) (2) the indictment multiplicitous; was Justice, eventually Department but evidentiary the district court an committed investigation up their turned no evidence (3) error; the evidence was insufficient to activity. evading of nefarious Abair wasn’t (4) convict; and the forfeiture was exces- laundering ill-gotten gains; taxes or Eighth sive violation of the Amendment. buying having a home and was diffi- arguments Three of these can culty accessing be summari- funds her Citibank Mos- ly rejected. The district court cured the get problem, cow account. To around the multiplicity problem by merging my Abair resorted to the scheme col- leagues sentencing. have described: She made re- counts The evidence was convict, peated though ATM withdrawals from her Rus- sufficient to even the struc- deposited turing sian bank account and the cash violation technical not con- activity. with her local bank a series of transac- nected to criminal And be- just forfeiture, stipulated tions under the threshold that cause Abair to the triggers requirements reporting Eighth the bank’s she waived the Amendment chai-
269 Whitmore, (D.C.Cir. 609, might have 359 lenge, which but for the waiver F.3d 618 2004). merit. had substantial evidentiary questions, As with other the evidentiary That leaves the claim of er- judge permit trial has broad discretion to judge the My colleagues
ror. hold or exclude cross-examination under Rule permitted not have the should 608(b)(1). deferential; Appellate review is in- specific to cross-examine Abair about only we for look an abuse of discretion. on her truthful- bearing stances of conduct Holt, 997, United v. States 486 F.3d 1000- 608(b)(1) ness under Rule and that the (7th (“We Cir.2007) 01 review district trial. I disagree. error warrants new scope court’s decision to limit the of cross- my But different take on this case should 608(b) examination Rule an [under ] not be understood as an endorsement of discretion.”); abuse of v. United State pursue decision to government’s (7th Cir.2006) Dawson, 956, 434 F.3d 959 every weapon Perhaps in its arsenal. (“The important point is the decision (or adequate) expla- there’s a at least whether to allow a witness to be cross- disproportionate deploy- so nation for 608(b) ... examined Rule is con- [under ] criminal-justice ment of resources. On the fided to the discretion of the trial record, however, this case shows present ”). judge.... practice What this means in every being prose- sign of an overzealous is that close cases are resolved in favor of of a criminal cution for a technical violation upholding judge’s exercise of discretion regulatory rigid statute —the kind of and to control the admission of evidence at severe exercise of law-enforcement discre- trial; appropriate only reversal is if no Inspector tion that would make Javert judge reasonable would make the same proud. Despite prosecutorial over- Chapman, decision. See United States v. I reaching, legal find no error and so (7th Cir.2012); 692 F.3d 827 would affirm. Vargas, States v. 552 F.3d Cir.2008) (“Only per- where no reasonable 608(b)(1) permits Rule a cross-examiner adopted by son could take the view credibility by to attack the of a witness evidentiary trial court will we reverse an in asking leading questions specific ruling.”). “if they probative stances of conduct are Here, allowed the character for truthfulness [witness’s] fal- apparent to cross-examine Abair about or untruthfulness.” FED. R. EVID. sehoods in her 2010-2012 FAFSA forms 608(b)(1). prohibits But the rule also (federal and in applications) financial-aid prove use of extrinsic evidence to the wit col- My her 2008 federal tax return. ness’s character for truthfulness. So the leagues conclude that this was an abuse of effectively by bound cross-examiner “the did discretion because answer; witness’s if she denies the conduct not demonstrate a sufficient reason to be- equivocates, against admitting the rule actually lieve Abair herself lied” these extrinsic the opportu evidence eliminates Majority op. Respect- documents. nity By to rebut. See United States v. fully, sidesteps applica- conclusion (4th Cir.1993) (ex num, 608(b)(1) Rule legal ble standard for cross- 608(b)(1), plaining under Rule examination and also the deferential stan- may inquire specific “cross-examiner into appellate dard of review. conduct, incidents of but does so at the peril being of not able to rebut the wit To cross-examine a witness under denials”); 608(b)(1), need nesses] see also United States cross-examiner *10 270 pro- but support a factual basis to Cross-examination resumed good-faith
have clumsily interrupted by questioning. line of See ceeded proposed the Holt, 1264, objections. F.2d 1274 additional Abair de- States v. 817 several (7th Cir.1987); a plausible also United States v. nied that she lied and offered see (5th Cir.2008); Skelton, infor- explanation misleading 444 for how the 514 F.3d Whitmore, 622; up at United States mation wound in these documents. She 359 F.3d (1st Cir.1996). Cudlitz, program 1001 testified that the online for the Copies permitted skip ques- That was met here. her to the standard FAFSA an- documents are in the record.1 tions about her assets based on other the relevant (Her gave forms— earlier in the form. In each of Abair’s three FAFSA swers she 2010, 2011, years speculates program financial-aid and counsel the en- for asking automatically.) appears 2012—a zero on the line tered the zeroes She also assets, and another zero completed about her cash testified that her husband their appears asking electronically. on the line for the value of tax return 2008 and filed in acknowledged giving investments. But other evidence She him financial in- during years, business, massage the case showed that these formation about her but in equity apart- signed Abair had substantial her said that she neither saw nor Russia, in property ment and after the return before it was filed. sold, money— held a substantial sum of My colleagues Abair’s explanation credit $100,000 Citibank Moscow —in and conclude that the cross-examination addition, In account. on her 2008 federal good-faith lacked a factual basis return, husband, jointly tax filed with her Majority op. should have been excluded. a
Abair claimed
business loss of
reasoning misapplies
at 264-66. This
massage therapist
from her work as a
legal
governing
standard and overlooks the
in part
expenses totaling
based
on vehicle
a
judge’s
deference owed to trial
evidentia-
$8,872,
seemingly implausible figure giv-
determinations.
ry
en the nature of the business.
good-faith-basis
standard for cross-
vigorously objected
Abair’s counsel
608(b)(1)
examination under Rule
is not a
government’s
proposed cross-examina-
bar;
high
suspicion
“well[-]reasoned
sidebar,
lengthy
tion. After a
judge
Holt,
a circumstance is true is sufficient.”
objection
overruled the
permitted
(quoting
When judge’s obligation simply the trial reasons, I foregoing respectfully For the prosecutor’s good-faith test the factual ba- dissent.2 proposed sis for the cross-examination. here, conducting proper did so 608(b)(1) and inquiry under both Rule judge appropriately limited
Rule 403. scope of the cross-examination and
closely prosecutor’s ques- monitored the True, asked com-
tions. legal prosecutorial Despite disagreement about the fresh exercise of discretion. 2. our 608(b)(1), my colleagues’ may to moder- issue under Rule The executive branch choose against a new ate its strict enforcement stance decision to reverse and remand for into salutary permitting and resolve not to sink further resources trial has the effect of America, UNITED STATES of
Plaintiff-Appellee,
Anthony VOLPENDESTO, Mark Sarno,
Polchan, and Michael
Defendants-Appellants. 11-3022, 12-1180,
Nos. 12-1656. Appeals,
United States Court of
Seventh Circuit.
Argued Dec. 2013. March
Decided En
Rehearing Rehearing Banc
Denied June circumstances,
prosecuting her. Under the to do. might prudent just thing be the most