US v. McElroy

Filing 920091120

Opinion

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var WPFootnote1 = '  Of the Seventh Circuit, sitting by designation.\
'

var WPFootnote2 = '  To assist the reader, we shall refer to each defendant by\
first name when that convention facilitates comprehension.\
'

var WPFootnote3 = '  The jurisdiction of the district court is based on 18\
U.S.C. § 3231. Our jurisdiction is based on 28 U.S.C. § 1291.\
'

var WPFootnote4 = '  On September 24, 1992, the Department of Labor filed a\
lawsuit against Aimee and the Daily Agency, a predecessor of DAK.\
See Trial Tr. vol. 8, 93-96, Feb. 6, 2008. The parties settled\
that lawsuit in August 1994 and the Department of Labor thereby\
enjoined Aimee and the Daily Agency from paying any employees in\
cash. Instead, they were to “make all payment by check or other\
paper.” See Trial Tr. vol. 4, 132-35, Jan. 30, 2008.\
'

var WPFootnote5 = '  DAK, Pro Temp and Precission had moved into the 14 Bristol\
Drive office in December 2000.\
'

var WPFootnote6 = '  See 2 Wayne R. LaFave, Search and Seizure § 3.7(a) (4th ed.\
2004) (“Because the probable cause determination is to be based\
upon all the relevant facts and circumstances, [] more recent\
events may take on greater significance when considered together\
with other facts which are not as current but which were much more\
incriminating at the time they occurred.”); see also Stephen A.\
Saltzburg & Daniel J. Capra, American Criminal Procedure 126 (8th\
ed. 2007) (noting that stale information may be refreshed by\
corroborating, recent information).\
'

var WPFootnote7 = '  Federal Rule of Evidence 1006 states,\
\
                                 The contents of voluminous writings, recordings, or\
photographs which cannot conveniently be examined in\
court may be presented in the form of a chart, summary,\
or calculation. The originals, or duplicates, shall be\
made available for examination or copying, or both, by\
other parties at reasonable time and place. The court\
may order that they be produced in court.\
'

var WPFootnote8 = '  Federal Rule of Evidence 611 states, in relevant part,\
\
                                 (a) Control by court. The court shall exercise\
reasonable control over the mode and order of\
interrogating witnesses and presenting evidence so as to\
(1) make the interrogation and presentation effective for\
the ascertainment of the truth, (2) avoid needless\
consumption of time, and (3) protect witnesses from\
harassment or undue embarrassment.\
'

var WPFootnote9 = '  Federal Rule of Evidence 702 states,\
\
                                 If scientific, technical, or other specialized knowledge\
will assist the trier of fact to understand the evidence\
or to determine a fact in issue, a witness qualified as\
an expert by knowledge, skill, experience, training, or\
education, may testify thereto in the form of an opinion\
or otherwise, if (1) the testimony is based upon\
sufficient facts or data, (2) the testimony is the\
product of reliable principles and methods, and (3) the\
witness has applied the principles and methods reliably\
to the facts of the case.\
\
Federal Rule of Evidence 703 states,\
\
                                 The facts or data in the particular case upon which an\
expert bases an opinion or inference may be those\
perceived by or made known to the expert at or before the\
hearing. If of a type reasonably relied upon by experts\
in the particular field in forming opinions or inferences\
upon the subject, the facts or data need not be\
admissible in evidence in order for the opinion or\
inference to be admitted. Facts or data that are\
otherwise inadmissible shall not be disclosed to the jury\
by the proponent of the opinion or inference unless the\
court determines that their probative value in assisting\
the jury to evaluate the expert\'s opinion substantially\
outweighs their prejudicial effect. \
'

var WPFootnote10 = '  Our cases are generally consistent with other circuits’\
treatment of summary witness evidence offered in complex cases.\
See, e.g., United States v. Harms, 442 F.3d 367, 375-76 (5th Cir.\
2006); United States v. Pree, 408 F.3d 855, 869-72 (7th Cir. 2005);\
United States v. Sabino, 274 F.3d 1053, 1067 (6th Cir. 2001),\
modified on other grounds, 307 F.3d 446 (6th Cir. 2002); United\
States v. Pinto, 850 F.2d 927, 935 (2d Cir. 1988); see also 4 Jack\
B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §\
611.02[2][a][vii] (2d ed. 2009); 6 Jack B. Weinstein & Margaret A.\
Berger, Weinstein’s Federal Evidence § 1006.08[4] (2d ed. 2009).\
'

var WPFootnote11 = '  Although the evidence was admissible in this case, we again\
emphasize the need for caution when summary witness testimony and\
exhibits are offered and note that they are allowed only in limited\
situations. See United States v. Flores-de-Jesus, 569 F.3d 8, 18-19 (1st Cir. 2009).\
'

var WPFootnote12 = '  George Wallace, Charlie Wallace’s brother, was one of the\
DAK employees who helped distribute cash payroll. He testified at\
the trial but not about this incident. \
'

var WPFootnote13 = '  Federal Rule of Evidence 803 states, in relevant part:\
\
                                 The following are not excluded by the hearsay rule, even\
though the declarant is available as a witness:\
 \
                                 (1) Present sense impression. A statement describing or\
explaining an event or condition made while the declarant\
was perceiving the event or condition, or immediately\
thereafter.\
 \
                                 (2) Excited utterance. A statement relating to a\
startling event or condition made while the declarant was\
under the stress of excitement caused by the event or\
condition. \
'

var WPFootnote14 = '  Indeed, another treatise suggests that the Advisory\
Committee notes to the present sense impression exception, in\
noting that the witness may be examined as to the circumstances\
surrounding the declarant’s utterance, amounts to an implied\
recognition of a corroboration requirement. 4 Stephen A.\
Saltzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of\
Evidence Manual § 803.02[2][b] (9th ed. 2009). The treatise\
suggests further that most federal courts have read the exception\
to require such corroboration. See id. at §§ 803.02[2][6],\
803.03[1] (collecting cases). Notably, the treatise quickly adds,\
however, that this “requirement” does not imply that the witness\
must be able to testify as to the exact circumstances under which\
the declarant made the statement; such a rigid requirement would\
rob the exception of much of its practical effect by making the\
declarant’s statement simply cumulative of the witness’s utterance.\
'

var WPFootnote15 = '  Indeed, both federal and state courts have admitted\
identifications under this exception. See, e.g., United States v.\
Delaplane, 778 F.2d 570, 574 (10th Cir. 1985); United States v.\
Earley, 657 F.2d 195, 198 (8th Cir. 1981); Jones v. State, 780\
N.E.2d 373, 376-77 (Ind. 2002); McDowell v. State, 807 So. 2d 413,\
421 (Miss. 2001). We have no reason to address, of course, the\
question of prior identifications or non-identifications through\
lineup or photo array under the present sense impression exception. \
See United States v. Brewer, 36 F.3d 266 (2d Cir. 1994). \
'

var WPFootnote16 = '  The Government cites to the 2000 Guidelines. Other than\
additions to the application notes in the 2007 Guidelines, not\
relevant here, the 2000 and 2007 Guidelines are identical.\
'

var WPFootnote17 = '  See United States v. Maken, 510 F.3d 654, 659 (6th Cir.\
2007) (holding that the district court did not err in determining\
that state tax losses constituted “relevant conduct”); United\
States v. Baucom, 486 F.3d 822, 829 (4th Cir. 2007) (holding that\
the district court erred in failing to include state tax amounts in\
the calculation of relevant conduct), vacated on other grounds,\
Davis v. United States, 128 S. Ct. 870 (2008); United States v.\
Fitzgerald, 232 F.3d 315, 318, 321 (2d Cir. 2000) (affirming\
inclusion of state and city tax amounts in a total loss\
calculation); United States v. Powell, 124 F.3d 655, 665-66 (5th\
Cir. 1997) (holding that the district court properly included\
evaded state taxes as “relevant conduct” in calculating the total\
tax loss). \
'

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