United States District Court, S.D. New York
February 25, 2004.
UNITED STATES OF AMERICA -against- KIMBERLY HOLLIER, Defendant
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
COURT'S RULING ON GOVERNMENT'S OBJECTIONS TO DEFENSE
COUNSEL'S CLOSING ARGUMENTS
During defense counsel's closing arguments in this case, the Court
sustained several objections made by the Government. Because of the
significance of the issue and the implications of the ruling, the Court
would like to the record to reflect the basis upon which it sustained
those objections. Defense counsel appeared to be suggesting to the jury
that his client, defendant Kimberly Hollier, on trial here on charges of
wilfull tax evasion, somehow believed that there was no legal basis upon
which he could be subject to income taxes. The apparent purpose of this
suggestion was to counter the Government's proof with regard to the
"wilfullness" element of the charges. In other words, the defense
appeared to be endeavoring to suggest to the jury that Mr. Hollier
actually believed that the Government did not have the right or authority
to impose taxes on him, that he thus did not have any tax obligations and
therefore that he could not have intended to evade those obligations.
Of course, Mr. Hollier is entitled to believe whatever he
wishes to believe. That is his Constitutional prerogative. However,
Hollier's beliefs with respect to the relevant charges on trial were not
sufficiently placed at issue or in evidence. Had he taken the stand and
stated his views on the matter; had he written a letter to the IRS or to
the New York City Housing Authority expressing his
belief and that document was then admitted in evidence, or had he, during
the investigation of the charged offenses, made a statement in this
respect to a witness, such as the Internal Revenue Service agent who
testified, defense counsel's closing argument may have presented a
different matter. But, on the record as the Court assessed it, the
Government properly objected to this line of argument because there was
absolutely no evidence during the trial as to Mr. Hollier's beliefs
concerning the Government's authority to tax him. Although there was
ample evidence suggesting that Mr. Hollier violated the tax code, as the
Court ruled in denying Mr. Hollier's Rule 29 motion for a judgment of
acquittal, there was no evidence supporting the inference that his reason
for doing so stemmed from any belief about the legality of the tax system
or its applicability to him.
The Second Circuit has held that lawyers are entitled to "broad
latitude in the inferences they may suggest to the jury during closing
arguments." United States v. Suarez, 588 F.2d 352, 354 (2d Cir.
1978). However, the Second Circuit has also
cautioned that counsel may not "refer to `facts' that are not in
the record" nor may counsel "misstate the evidence." Id.
Similarly, the Supreme Court has held it error for a lawyer, during
closing remarks, to "indulge in an appeal wholly irrelevant to any
facts or issues in the case." Viereck v. United States,
318 U.S. 236, 247 (1943).
Defense counsel's suggestions to the jury during summation would have
run afoul of these well-settled principles. As the Court already advised
the jury and will repeat again in its formal instructions, what the
lawyers say in their closing arguments is not evidence, and cannot be so
considered by the jury. Defense counsel's line of argument to which the
Government objected attempted to reference a fact that was not in
evidence and not reasonably suggested by the evidence namely,
that Mr. Hollier disputed the legality of the tax code as applied to him.
Similarly, the lack of record evidence as to Mr. Hollier's personal
beliefs in this regard rendered the issue irrelevant and therefore
improper as a subject of closing remarks.
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