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Reversal of Federal Criminal Case Because Trial Judge Prevented Defense From Presenting Important Evidence

Kish Law LLC

I recently posted about how we convinced the United States Court of Appeals for the Eleventh Circuit here in Atlanta to reverse the federal criminal case against our radiologist client because the trial judge prevented us from using important “peer review” testimony from another doctor who would have told the jury that he reached the same conclusions as did our client. Recently, another federal court did something similar, reversing a federal criminal conviction because the trial judge would not allow the defense to present certain evidence to the jury. That case was decided by the Seventh Circuit, which was sitting in what we lawyers call an en banc session, meaning all of the judges on that entire court participated. The case is U.S. v. Lacey Phillips and Erin Hall, and can be viewed here.

The basic story is familiar. Back in 2006, the defendants, an unmarried couple (they’ve since married) were looking for a house to buy. She had good credit, he did not. She applied for the loan, and the application asked for the “borrower’s income.” The defendants wanted to tell the jury that the mortgage broker had told them that “borrower’s income” was really a term of art, and meant the total amount of money that would be used for paying the mortgage, whether or not it was money earned by the person signing the mortgage. So, like many couples, they combined her income and his income on the loan application. They also sort of dressed up her job title, making it look as if she had the sort of employment that would generate the overall joint income of the couple.

The housing market collapsed. Phillips and Hall could no longer pay the mortgage, and it went into foreclosure. The lender had many other similar loans, and the bank went out of business. Regulators scoured the bank’s loans, and came across the one to Phillips and Hall. The regulators also discovered that the mortgage broker had lots of similar loans, so they indicted him. He “flipped” so he could get a sentence reduction by testifying against Phillips and Hall.

The trial prosecutors wanted to prevent Hall and Phillips from telling the jury about their understanding of the term “borrower’s income.” The Defendants wanted to explain what the broker had told them and that they therefore had not knowingly made a false statement on the loan application or associated documents. The trial judge agreed with the prosecutors. The jury convicted them, they appealed, and the majority of the Seventh Circuit reversed their convictions because of the trial judge’s mistaken ruling which prevented the jury from hearing important testimony about what the Defendants believed when they went through the loan application process.

This is eerily reminiscent of our recent case, a complex federal criminal prosecution where prosecutors convinced the trial judge to keep certain important evidence away from the jury. Even the most casual reader of this blog knows how I am a big fan of good lawyering, including attorneys who keep plugging away and finally prevail on appeal. Hats off to the lawyers in this case!

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