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Case No. 12-6472 IN T HE UNIT ED ST AT ES CO URT O F APPEALS FO R T HE SIXT H CIRCUIT ___________________________________________________ UNITED STATES OF AMERICA, Appellee, v. WILLIAM D. BOYER, Appellant. ___________________________________________________ ON APPEAL FROM JUDGMENTS OF CONVICTION BEFORE THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE HON. SAMUEL MAYS, JR., DISTRICT JUDGE PRESIDING ___________________________________________________ REPLY BRIEF OF APPELLANT BOYER ___________________________________________________ Lowell H. Becraft, Jr. Attorney for Boyer 403-C Andrew Jackson Way Huntsville, Alabama 35801 256-533-2535 [email protected] Dated: June 20, 2013

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TABLE OF CONTENTS

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Table of Cases, Statutes and Other Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Argument in Reply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Issue 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Issue 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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TABLE OF CASES, STATUTES AND OTHER AUTHORITIES Cases:

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Caviness v. Nucor-Yamato Steel Company, 105 F.3d 1216 (8th Cir. 1997). . . . . 14 Commissioner v. Wodehouse, 337 U.S. 369, 69 S.Ct. 1120 (1949). . . . . . . . . . . . . 3 Crador v. Boh Brothers, Inc., 473 F.2d 1040 (5th Cir. 1973). . . . . . . . . . . . . . . . 12 Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120 (5th Cir. 1997). . . . . . . . . 12 Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260 (1909). . . . . . . . . . . . . . . . 8 Grice v. J. Ray McDermott Co., Inc., 465 F.2d 486 (5th Cir. 1972). . . . . . . . . . . 12 Harrison v. United States, 200 F. 662 (6th Cir. 1912). . . . . . . . . . . . . . . . . . . . . 8, 9 Ind Dev. Bd. of Section, Ala. v. Fuqua Indus., 523 F.2d 1226 (5th Cir. 1975). . . 12 Mathis v. New York Life Ins. Co., 133 F.3d 546 (7th Cir.1998).. . . . . . . . . . . . . . . 7 McPherson v. Kelsey, 125 F.3d 989 (6th Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . 6 Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909 (1892). . . . . . . 8 Patterson v. United States, 222 F. 599 (6th Cir. 1915).. . . . . . . . . . . . . . . . . . . . . . 9 Pelfresne v. Village of Williams Bay, 917 F.2d 1017 (7th Cir.1990). . . . . . . . . . . . 7 Penn. Env. Def. Found. v. Canon-McMillan, 152 F.3d 228 (3rd Cir. 1998). . . . . 11 People v. Dempster, 396 Mich. 700, 242 N.W.2d 381 (1976). . . . . . . . . . . . . . . . . 2 Stumpf v. Houk, 653 F.3d 426 (6th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 United States v. Anzalone, 766 F.2d 676 (1st Cir. 1985). . . . . . . . . . . . . . . . . . . . . 2 United States v. Baker, 538 F.3d 324 (5th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . 14 United States v. Bennafield, 287 F.3d 320 (4th Cir. 2002).. . . . . . . . . . . . . . . . . . 12 United States v. Bennett, 472 F.3d 825 (11th Cir. 2006). . . . . . . . . . . . . . . . . . . . 11 United States v. Betterton, 417 F.3d 826 (8th Cir. 2005). . . . . . . . . . . . . . . . . . . . 13 United States v. Brown, 899 F.2d 677 (7th Cir.1990). . . . . . . . . . . . . . . . . . . . . . . 7 United States v. Cesare, 581 F.3d 206 (3rd Cir. 2009).. . . . . . . . . . . . . . . . . . . . . 11 United States v. Critzer, 498 F.2d 1160 (4th Cir. 1974).. . . . . . . . . . . . . . . . . . . . . 1 United States v. Crosgrove, 637 F.3d 646 (6th Cir. 2011). . . . . . . . . . . . . . . . . . . 13 United States v. Dahlstrom, 713 F.2d 1423 (9th Cir. 1983).. . . . . . . . . . . . . . . . . . 2 United States v. Dela Espriella, 781 F.2d 1432 (9th Cir. 1986). . . . . . . . . . . . . . . 2 United States v. Denemark, 779 F.2d 1559 (11th Cir. 1986). . . . . . . . . . . . . . . . . . 2 United States v. Fleck, 413 F.3d 883 (8th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . 14 United States v. Ford, 872 F.2d 1231 (6th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . 5 United States v. Garber, 607 F.2d 92 (5th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . 2 United States v. Gore, 154 F.3d 34 (2nd Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Green,541 F.3d 176 (3rd Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . 14 ii

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United States v. Harris, 942 F.2d 1125 (7th Cir. 1991). . . . . . . . . . . . . . . . . . . . 2, 9 United States v. Heller, 830 F.2d 150 (11th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . 2 United States v. Henning, 286 F.3d 914 (6th Cir. 2002). . . . . . . . . . . . . . . . . . . . 13 United States v. Insco, 496 F.2d 204 (5th Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . 2 United States v. Lander, 668 F.3d 1289 (11th Cir. 2012). . . . . . . . . . . . . . . . . . . . 6 United States v. Larson, 796 F.2d 244 (8th Cir. 1986).. . . . . . . . . . . . . . . . . . . . . . 2 United States v. Mallas, 762 F.2d 361 (4th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . 2 United States v. McDaniel, 398 F.3d 540 (6th Cir. 2005). . . . . . . . . . . . . . . . . . . 13 United States v. McDermott, 245 F.3d 133 (2d Cir. 2001).. . . . . . . . . . . . . . . . . . . 6 United States v. Ogba, 526 F.3d 214 (5th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993). . . . . . . . . . . . . . . . 10 United States v. Palazzolo, 71 F.3d 1233 (6th Cir. 1995). . . . . . . . . . . . . . . . . . 5, 6 United States v. Papia, 910 F.2d 1357 (7th Cir.1990). . . . . . . . . . . . . . . . . . . . . . . 7 United States v. Parker, 508 F.3d 434 (7th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . 13 United States v. Ramirez, 182 F.3d 544 (7th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . 6 United States v. Reed, 167 F.3d 984 (6th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . 7 United States v. Retos, 25 F.3d 1220 (3rd Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . 12 United States v. Riggi, 541 F.3d 94 (2nd Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . 14 United States v. Ross, 412 F.3d 771 (7th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . 6 United States v. Schwab, 61 F. Supp.2d 1196 (D.Wyo. 1999). . . . . . . . . . . . . 3, 4, 5 United States v. Semrau, 693 F.3d 510, 520 (6th Cir. 2012). . . . . . . . . . . . . . . . . 10 United States v. Sorondo, 845 F.2d 945 (11th Cir. 1988). . . . . . . . . . . . . . . . . . . 15 United States v. Tann, 577 F.3d 533 (3rd Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Thompson, 422 F.3d 1285 (11th Cir.2005). . . . . . . . . . . . . . . . . 14 United States v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir. 1997).. . . . . . . . . . . . . . . 6 United States v. Varbel, 780 F.2d 758 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . 2 United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . 13 United States v. Zalapa, 509 F.3d 1060 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . 14 United States v. Zannino, 895 F.2d 1 (1st Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . 7 Walden v. Georgia-Pacific Corp., 126 F.3d 506 (3rd Cir. 1997).. . . . . . . . . . . . . 10 Williams v. Wal-Mart Stores, Inc., 922 F.2d 1357 (8th Cir. 1990). . . . . . . . . . . . 14 Worth v. Worth, 48 Wyo. 441, 49 P.2d 649 (1935). . . . . . . . . . . . . . . . . . . . . . . . 15 Statutes and Rules: 18 U.S.C. § 2314. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 26 U.S.C. § 1441. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 iii

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26 U.S.C. § 3402. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 26 U.S.C. § 7201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 26 U.S.C. § 7701. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 F.R.Evi. 803(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Rule 24(c), F.R.Cr.P.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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ARGUMENT IN REPLY ISSUE 1: Did the district court err in denying Boyer’s post-trial motion for judgment of acquittal? It is alleged that the legal duties arising from the tax laws are clearly known to all, but there are a few exceptions to this rule. For example, in United States v. Critzer, 498 F.2d 1160 (4th Cir. 1974), at issue was the validity of the conviction of an Indian for tax evasion. Here, the Bureau of Indian Affairs had informed Mrs. Critzer that the money she derived from real property located within a reservation was not taxable; Mrs. Critzer relied upon this advice and failed to report such income. But, the IRS maintained a contrary position, had her indicted and secured her conviction for tax evasion. This conviction was reversed on the grounds that the unsettled nature of this field of law precluded any conviction: “While the record amply supports the conclusion that the underreporting was intentional, the record also reflects that, concededly, whether defendant’s unreported income was taxable is problematical and the government is in dispute with itself as to whether the omitted income was taxable,” Id., at 1160. “We hold that defendant must be exonerated from the charges lodged against her. As a matter of law, defendant cannot be guilty of willfully evading and defeating income taxes on income, the taxability of which is so uncertain that even co-ordinate branches of the United States Government plausibly reach directly opposing conclusions. As a matter of law, the requisite intent to evade and defeat income taxes is missing. The obligation to pay is so problematical that defendant's actual intent is irrelevant. Even if she had consulted the law

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and sought to guide herself accordingly, she could have had no certainty as to what the law required. “It is settled that when the law is vague or highly debatable, a defendantactually or imputedly – lacks the requisite intent to violate it,” Id., at 1162. This single case is an adequate demonstration that there is at least one part of the tax code which is unclear and that lack of clarity caused the reversal of Mrs. Critzer’s criminal conviction. But there are others; see United States v. Mallas, 762 F.2d 361 (4th Cir. 1985)(a prosecution for violating an unclear legal duty abridges principles of due process); United States v. Garber, 607 F.2d 92, 97-98 (5th Cir. 1979); United States v. Dahlstrom, 713 F.2d 1423, 1429 (9th Cir. 1983); United States v. Heller, 830 F.2d 150 (11th Cir. 1987); and United States v. Harris, 942 F.2d 1125 (7th Cir. 1991). Unclear legal duties in other fields of law besides tax likewise prevent criminal convictions on due process grounds; see United States v. Insco, 496 F.2d 204 (5th Cir. 1974); People v. Dempster, 396 Mich. 700, 242 N.W.2d 381 (1976); United States v. Anzalone, 766 F.2d 676, 681-82 (1st Cir. 1985); United States v. Denemark, 779 F.2d 1559 (11th Cir. 1986); United States v. Varbel, 780 F.2d 758, 762 (9th Cir. 1986); United States v. Dela Espriella, 781 F.2d 1432 (9th Cir. 1986); and United States v. Larson, 796 F.2d 244 (8th Cir. 1986). This appeal presents a similar issue. Boyer’s indictment specifically charged him with the commission of income tax evasion proscribed by 26 U.S.C. §7201 (R.E. 2

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2, Indictment). The theory of each count of the indictment was that Boyer failed to file federal income tax returns and committed tax evasion by, among other means, “filing a false Form W-4”. For the years in question, Boyer was a pilot for Federal Express and he submitted to Federal Express Forms W-4 that claimed exemption from withholding, which the federal appellate courts have held is a classic form of tax evasion. But during trial, prosecution witnesses testified that Federal Express was Boyer’s withholding agent, a term defined in 26 U.S.C. §7701(a)(16), which applies only to non-resident aliens and foreign corporations.1 Since prior to trial the prosecution never identified the statutory foundation of Boyer duties regarding the submission of Forms W-4 for income tax withholding, the testimony of these witnesses supplied this deficiency. When trial was completed, an inconsistent legal question had been posed: was this prosecution one based on a contention that the income tax withholding at issue here was based on 26 U.S.C. §1441, or was it based on 26 U.S.C. §3402? The undersigned has had a prior similar experience involving a shifting, uncertain theory of prosecution. See United States v. Schwab, 61 F. Supp.2d 1196

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See, for example, Commissioner v. Wodehouse, 337 U.S. 369, 69 S.Ct. 1120

(1949). 3

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(D.Wyo. 1999). This case involved defendants charged with violations of 18 U.S.C. § 2314, which has several unnumbered paragraphs that each charge a separate offense. The first unnumbered paragraph makes penal the acquisition of funds in the amount of $5,000 or more from interstate commerce by some fraudulent scheme, while the second unnumbered paragraph proscribes getting another person to move in interstate commerce as a result of some scheme or artifice to defraud. At a pre-trial conference in that case and in response to a motion for bill of particulars, the prosecution informed the defense and the district court that its case was based on the second unnumbered paragraph of § 2314. During trial, the prosecution attempted to show that via the scheme to defraud for which it offered some evidence, the defendants had obtained money from some insurance companies in another state, a case really based on the first unnumbered paragraph rather than the second. Since there had been no evidence offered at trial that any person had moved in interstate commerce as a result of this alleged scheme to defraud, the undersigned moved for judgment of acquittal. Ultimately after trial and pursuant to motions for acquittals or new trial, the district court in that case not only granted a new trial, but it also dismissed the indictment. One reason the district court offered for doing so was: “Under the circumstances of this case, the government’s change of paragraphs — and thereby 4

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change of criminal offenses — after it had rested, after the evidence was closed and after defendants had made their decision not to testify deprived the defendants of fair notice of what they must be prepared to defend against. Therefore, defendants were prejudiced because they did not have the ability to adequately prepare and defend against the charges against them.” Id., at 1204. This case is similar to Schwab, supra. In Boyer’s opening brief, he noted two lines of decisional authorities that support his contention that the district court in this case erred in denying his post-trial motion for judgment of acquittal or new trial. First, there is that string of decisional authorities like United States v. Palazzolo, 71 F.3d 1233, 1236 (6th Cir. 1995), which hold that a “verdict [is] to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Second, Boyer presented in that brief a less developed series of cases holding that inconsistent theories of prosecution violate due process, an issue now being considered by a panel of this court after the vacation of the decision in Stumpf v. Houk, 653 F.3d 426 (6th Cir. 2011). But there is also the authority represented by the decision in Schwab: “A variance arises when the evidence presented at trial establishes facts which are different from those alleged in the indictment.” Schwab, 61 F. Supp.2d at 1200. See also United States v. Ford, 872 F.2d 1231, 1235 (6th Cir. 1989)(errors regarding date 5

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of offense was variance); United States v. McDermott, 245 F.3d 133 (2d Cir. 2001) (variance between the conspiracy charged and proof at trial); United States v. Ramirez, 182 F.3d 544 (7th Cir. 1999) (variance between charge and proof in firearm case); United States v. Ross, 412 F.3d 771 (7th Cir. 2005) (substantial variance between date charged and proof at trial); United States v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir. 1997) (fatal variance between pleading and proof of date of offense); and United States v. Lander, 668 F.3d 1289, 1295 (11th Cir. 2012)(shifting legal theory was a variance). Boyer, in his opening brief cited an abundance of authority supportive of his contentions and presented a persuasive argument that the district court erred in denying his post-trial motion. The Government was unresponsive to this issue and offered essentially no reply in its brief: (a) it presented no cited authority and made no argument to address that line of cases like United States v. Palazzolo, supra, and (2) it again cited no authority and made no argument to address authorities like the vacated Stumpf v. Houk, 653 F.3d 426 (6th Cir. 2011). Consequently, Boyer maintains that the Government has waived its response. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived,” and that “[i]t is not sufficient for a party to mention a possible argument in the most 6

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skeletal way, leaving the court to . . . put flesh on its bones.”); United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999) (invoking this rule to deem an issue forfeited); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting the “settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”); United States v. Papia, 910 F.2d 1357, 1363 (7th Cir.1990)(“A litigant who fails to press a point by supporting it with pertinent authority . . . forfeits the point.”); Mathis v. New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir.1998); Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.1990) (the court will not do a party’s research); and United States v. Brown, 899 F.2d 677, 679 (7th Cir.1990) (court has no duty to construct legal arguments for litigants). Here, it appears that the Government, by its failure to offer argument in opposition to that proffered by Boyer, is conceding the issue that Boyer raises, and this court should consider such as a concession of error by the Government. ISSUE 2: Did the district court err when it limited the relevance of certain defense exhibits offered during trial? At trial, the district court admitted Exs. 36, 37 and 38 tendered by Boyer for purposes other than that for which they were offered: to demonstrate Boyer’s intent and state of mind. The trial court’s error is thus based on its rejection of this ground 7

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for admission and its admission of these exhibits on another ground. Boyer’s counsel established error via lengthy argument, and his subsequent agreement to a limiting instruction related to the grounds for which these exhibits were admitted did not waive the error. He simply agreed that, in view of the admission of these exhibits on another ground, the limiting instruction was correct in that respect. But the error is still there. The Government responds to this issue with several arguments. It contends that Boyer did not object to the limiting instruction about which he now complains in this appeal, that such can be considered here only on a “plain error” basis, and that if there was any error, it was harmless. These contentions are without merit.2 A number of courts have concluded that letters of the nature that Boyer offered here are admissible evidence. At least twice, the U.S. Supreme Court has considered this issue in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909 (1892), and Crawford v. United States, 212 U.S. 183, 202, 29 S.Ct. 260 (1909), and held that letters are admissible evidence. This court, in Harrison v. United States, 200 F. 662, 675 (6th Cir. 1912), held that letters a defendant relied upon should have been admitted into evidence:

Although Boyer addresses these contentions of the Government, he maintains that this issue is still not subject to plain error review. 2

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“If they were in fact laid before respondent as and for genuine letters, and if he believed them so to be, and in that belief acted on them, these things bore on his intent. It was not necessary first to show that they were signed by the writers, or mailed by the writers, or that their recitations of fact were true. In the ordinary case involving the admission of letters, it is these things which are of primary importance; but here the primary question was whether Harrison saw these letters, and believed them to be genuine correspondence, and on them based his statements. Whether it is credible that respondent knew of the testimonials, but not of the complaints, and whether, in connection with all these circumstances, such testimony sufficiently supported his alleged belief, were for the jury.” See also United States v. Harris, 942 F.2d 1125, 1130 (7th Cir. 1991). And long ago this court held letters that evidence the intent of a party are admissible; see Patterson v. United States, 222 F. 599, 649 (6th Cir. 1915)(“If there was anything in the circumstances then or theretofore existing affecting their good faith, they were for the jury to consider, just as it was for them to determine the good faith of the Pflum circular.”). At the time of Boyer’s trial, there was plenty of decisional authority holding that letters are admissible to prove the intent and state of mind of a party. As noted in Boyer’s opening brief, the letters in question were offered pursuant to F.R.Evi. 803(3),3 but the district court clearly and expressly rejected their The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: *** (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed 3

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admission on this ground, ultimately admitting them on a different basis. While trial courts have discretion regarding the admission of evidence, that discretion is abused if the trial court’s decision is based on “an erroneous view of the law or a clearly erroneous assessment of the evidence.” United States v. Semrau, 693 F.3d 510, 520 (6th Cir. 2012). Here, existing decisional authorities (including some within this circuit) holding that letters are admissible as proof of a parties intent and state of mind demonstrate that the district court did err, and erred plainly, when it rejected admitting these exhibits as proof of Boyer’s intent and state of mind. In United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1776-78 (1993), the Supreme Court confronted the issue of whether allowing alternate jurors to convene with the petit jury during its deliberations in a criminal case in violation of Rule 24(c), F.R.Cr.P., was reviewable as “plain error.” The elements of plain error review established via Olano were described in Walden v. Georgia-Pacific Corp., 126 F.3d 506, 520 (3rd Cir. 1997), as follows: “First, there must be an actual error — a deviation from or violation of a legal rule. Second, the error must be plain; that is, the error must be clear and obvious under current law. Finally, the error must affect substantial rights. In other words, the error must be prejudicial and must have affected the outcome of the district court proceedings.” Plain error may be applied “when a unless it relates to the validity or terms of the declarant’s will. 10

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district court has committed a serious and flagrant error that jeopardized the integrity of the proceeding.” Pennsylvania Environmental Defense Foundation v. CanonMcMillan, 152 F.3d 228, 234 (3rd Cir. 1998). There are a large number of cases where courts have concluded that it is sufficient to grant relief for plain error when a party’s substantial rights have been affected by the error. See United States v. Bennett, 472 F.3d 825, 834 (11th Cir. 2006) (“The offense level miscalculation therefore affected Bennett’s substantial rights. Under these circumstances, Bennett has shown that the plain error that substantially affected his rights also seriously affected the fairness, integrity, or public reputation of the judicial proceedings in this case.”); United States v. Gore, 154 F.3d 34, 48 (2nd Cir. 1998)(“we thus decide to exercise our discretion to address the plain error raised by Wells’s appeal because to do otherwise would negatively impact the fairness, integrity and public reputation of judicial proceedings.”); United States v. Tann, 577 F.3d 533, 543 (3rd Cir. 2009)(“We hold that leaving this error uncorrected would seriously affect the fairness and integrity of these proceedings and, therefore, conclude that we will exercise our discretion to grant relief under Rule 52(b).”); United States v. Cesare, 581 F.3d 206, 209 (3rd Cir. 2009)(“Put another way, leaving this error uncorrected would seriously affect the fairness and integrity of this proceeding. Therefore, under the plain error standard, we may notice this double 11

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jeopardy error present in Cesare’s dual convictions.”); United States v. Retos, 25 F.3d 1220, 1232 (3rd Cir. 1994)(“erroneous failure to instruct Retos’ jury in accordance with Ratzlaf, seriously affect[ed] the fairness’ of Retos’ trial, * * * and thereby resulted in severe prejudice to him, a hallmark of manifest injustice.”); United States v. Bennafield, 287 F.3d 320, 324 (4th Cir. 2002)(“Accordingly, because the error here was plain and affected Bennafield’s substantial rights, and because no significant factor weighs against our correcting it, we exercise our discretion to vacate the Count One conviction and remand for resentencing.”); Grice v. J. Ray McDermott Co., Inc., 465 F.2d 486, 488 (5th Cir. 1972)(“Nevertheless, they argue that unless this court remands the case for a new trial, a substantial miscarriage of justice will result. We agree.”); Crador v. Boh Brothers, Inc., 473 F.2d 1040, 1041 (5th Cir. 1973) (erroneous instruction regarding damages caused reversal because “this is one of those uncommon occasions when unpreserved trial court error would result in grave injustice if allowed to stand.”); Independent Dev. Bd. of Section, Alabama v. Fuqua Indus., 523 F.2d 1226, 1239 (5th Cir. 1975) (erroneous jury charge that set up “an additional hurdle to a favorable jury verdict” was plain error requiring new trial because possibility of prejudice was so significant “that it cannot be ignored”); Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120, 1129 (5th Cir. 1997)(“We therefore conclude that the error’s serious effect on the fairness, integrity, or public 12

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reputation of judicial proceedings requires us to vacate the district court’s judgement as to the respective liability of the parties.”); United States v. Ogba, 526 F.3d 214, 238 (5th Cir. 2008)(sentence was multiplicitous and constituted plain error: “Failing to remedy a clear violation of a core constitutional principle would be error ‘so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of [the] judicial proceedings and result in a miscarriage of justice.’”); United States v. Whitfield, 590 F.3d 325, 347 (5th Cir. 2009)(error recognized, even though not briefed on appeal); United States v. Bencs, 28 F.3d 555, 564 (6th Cir. 1994); United States v. Henning, 286 F.3d 914 (6th Cir. 2002) (conspiracy conviction reversed for plain error); United States v. McDaniel, 398 F.3d 540 (6th Cir. 2005)(Booker sentencing issue noted as plain error); United States v. Crosgrove, 637 F.3d 646 (6th Cir. 2011); United States v. Parker, 508 F.3d 434, 441 (7th Cir. 2007) (overruling prior precedent and concluding that multiplicitous convictions, with concurrent sentences and assessments, amounted to miscarriage of justice); United States v. Betterton, 417 F.3d 826, 833 (8th Cir. 2005)(“For defendants who meet the first three factors of the plain-error test in the Booker context, this Court has repeatedly chosen to exercise its discretion under the fourth factor to vacate the defendant’s sentence. We have recognized that ‘refusing to allow [a defendant] to be resentenced would leave [the defendant] incarcerated for a longer 13

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period than that to which the district court would have sentenced him under an advisory regime.’ United States v. Fleck, 413 F.3d 883, 897 (8th Cir. 2005). We have held that this alone is enough to seriously affect the fairness, integrity, and public reputation of the judicial proceedings that placed the defendant in prison.”); Caviness v. Nucor-Yamato Steel Company, 105 F.3d 1216, 1220 (8th Cir. 1997)(“We think, given the circumstances of this case, that the failure to give a limiting instruction not only was plain error but was so clearly prejudicial that it must be corrected. Accordingly, we vacate the award of compensatory damages and remand for a new trial.”); United States v. Zalapa, 509 F.3d 1060, 1065 (9th Cir. 2007) (“By convicting and sentencing Zalapa on both firearms counts, the district court’s plain error exposed Zalapa to double jeopardy, which makes his convictions fundamentally unfair.”); and United States v. Thompson, 422 F.3d 1285, 1302 (11th Cir.2005)(“We also conclude that the sentencing errors in this case ‘seriously affected the fairness, integrity or public reputation of judicial proceedings.’”). Furthermore, the erroneous admission of evidence has been the subject of plain error review. See Williams v. Wal-Mart Stores, Inc., 922 F.2d 1357, 1362 (8th Cir. 1990); United States v. Riggi, 541 F.3d 94, 102 (2nd Cir. 2008); United States v. Green, 541 F.3d 176, 185 (3rd Cir. 2008); United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008)(plain error review used in child porn case where the images in 14

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questions were not authenticated by any witness); and United States v. Sorondo, 845 F.2d 945, 949 (11th Cir. 1988). Here, the error regarding admission of these exhibits on a basis different from that for which they were offered was clear and plain error: existing decisional authorities more than 100 years old settled this matter long ago. Did this plain error prejudice and affect Boyer’s substantial rights? Boyer asserts that it did, because this case was decided primarily on the basis of Boyer’s intent, whether he acted in good faith or with willful intent. Even a small amount of proof such as these exhibits could have easily shifted the jury in the direction of returning not guilty verdicts in Boyer’s favor. Finally, the Government asserts that courts should consider, when making a decision to either admit or reject evidence such as these letters, whether a defendant had an opportunity or motive to fabricate his “good faith” intentions. Government’s brief at page 20. However, when any court considers rejecting admission of evidence of this nature, it should bear in mind the views of Professor Wigmore as stated in Worth v. Worth, 48 Wyo. 441, 469-70, 49 P.2d 649 (1935): “It may not be without interest to note the opinion of Professor Wigmore, in his great work on Evidence (2nd Ed.), Sec. 1732, in connection with his treatment of self-serving declarations under a similar situation. He says: ‘It has been argued that the party (an accused) must not be allowed to ‘make evidence for himself.’ But this objection applies equally to many classes of statements * * 15

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* and is yet not thought of as fatal. Moreover, the notion of ‘making,’ that is ‘manufacturing’ evidence, assumes that the statements are false, which is to beg the whole question. Then it is further suggested that at any rate the accused, if guilty, may have falsely uttered these sentiments in order to furnish in advance evidence to exonerate him from a contemplated crime. But here the singular fallacy is committed of taking the possible trickery of guilty persons as a ground for excluding evidence in favor of a person not yet proved guilty; in other words, the fundamental idea of the presumption of innocence is repudiated. * * * Because (we say) this accused person might be guilty and therefore might have contrived these false utterances, therefore we shall exclude them, although without this assumption they indicate feelings wholly inconsistent with guilt, and although, if he is innocent, their exclusion is a cruel deprivation of a most natural and effective sort of evidence. To hold that every expression of hatred, malice and bravado is to be received, while no expression of fear, good will, friendship, or the like, can be considered, is to exhibit ourselves the victims of a narrow whimsicality, which might be expected in the tribunal of Jeffreys, going down from London to Taunton with his list of intended victims already in his pocket. * * * But it was not to have been anticipated in a legal system which makes so showy a parade of the presumption of innocence and the rights of the accused. This question-begging fallacy about ‘making evidence for himself’ runs through much of the judicial treatment. There is no reason why a declaration of an existing state of mind, if it would be admissible against the accused, should not also be admissible in his favor, except so far as the circumstances indicate plainly a motive to deceive.” Boyer asserts that, whether or not plain error review is applicable here, the district court erred and reversibly so when it gave the jury in this case the limiting instruction in question. This was a close case and if this jury had been informed that it could consider these letters as evidence of Boyer’s intent and state of mind, the outcome may very well have been entirely different.

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CONCLUSION For the reasons noted above, Boyer’s convictions must be reversed. Respectfully submitted this the 20th day of June, 2013.

/s/ Lowell H. Becraft, Jr. Attorney for Appellant Boyer 403-C Andrew Jackson Way Huntsville, AL 35801 256-533-2535 [email protected]

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CERTIFICATE OF COMPLIANCE Pursuant to Fed.R.App.P. 32(a)(7)(C), I certify, based on the word-counting function of my word processing system (WordPerfect, Version 11), that this brief complies with the type-volume limitations of Fed.R.App.P. 32(a)(7)(B): 1. Exclusive of the exempted portions specified in Fed.R.App.P. 32(a)(7)(B)(iii), this brief contains fewer than 7,000 words, to wit, less than 5500 words; 2. The brief has been prepared in a proportional spaced format using Times New Roman type (14 point type).

/s/ Lowell H. Becraft, Jr. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing has been delivered to counsel for the Appellee via the Court’s electronic filing system. Justin L. Bailey U.S. Attorney’s Office – Memphis 167 N. Main St., Ste. 800 Memphis, TN 38103 Dated this the 20th day of June, 2013.

/s/ Lowell H. Becraft, Jr.

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