Part of an occasional series.
I was watching the news the other day and one of the reporters questioned an appellate expert about an ongoing trial. As David Finfrock was telling us just how long this heat wave was going to last, I looked up the expert on Google. The reporter was right; this guy was one of the best in the state. I did some rummaging around and found some of his appellate briefs. Here is a statement of facts from one of his latest appeals.
Statement of Facts
The government filed written pre-trial notice that it would introduce evidence of Appellant’s 19__ prior felony conviction in Tarrant County, Texas for credit card abuse pursuant to Fed.R.Evid. 404(b), because Appellant “has indicated, at his initial appearance” that “‘the victim in this case stole my identity.’ his intent and knowledge of the crime is certainly at issue in this case.”
Appellant objected on the grounds that the 1989 prior felony conviction was too remote or sufficiently similar to the charge offense to have any probative value and that the prior conviction was also unduly prejudicial. The district court overruled Appellant’s objections, finding that his plea of not guilty placed his intent at issue, that the prior conviction was similar enough to the charged offense to be relevant to his state of mind, and that its probative value outweighed its prejudicial effect. The district court gave the jury a limiting instruction when the prior conviction was admitted, and in its charge to the jury.
In a written stipulation contained in government’s exhibit 8, the parties agreed that Appellant had pled guilty to the felony of credit card abuse on February 28, 19__ in Tarrant County, Texas. At the close of the evidence, the district court overruled Appellant’s request that jurors be instructed not to consider his 19__ prior felony conviction for credit card abuse for any purpose. In final argument, the government alluded to Appellant’s prior conviction and urged jurors to consider it in finding him guilty.
Frankly, I think it could stand some improvement. The sentences are long and much of the language is redundant. (And, no, there aren’t any typos.) Here’s my quick rewrite:
The government filed notice that it wanted to introduce Smith’s 19__ credit card abuse conviction at trial. It said that he had put it at issue because he said at his initial appearance that the victim had stolen his identity. This, the government said, provided the predicate for a 404(b) notice because it demonstrated intent and knowledge of the crime.
Smith objected. He argued that the 20-year-old conviction was too remote in time and wasn’t sufficiently similar to the charges of bank theft and aggravated identity theft. Failing those, argued that the conviction was unduly prejudicial.
The trial court overruled the objection. The court found that his not-guilty plea put his intent at issue, that it was sufficiently similar to the present charges, and it wasn’t unduly prejudicial. It did, however, give the jurors a limiting instruction. In final argument, the government alluded to the conviction and urged the jurors to consider it to find Smith guilty.
Things to keep in mind when writing a statement of facts:
- Short sentences are better than longer sentences.
- Use the client’s name and not his legal moniker.
- Keep a check on redundancy.
- Subject-verb construction enhances readability.
