U.S. v. Plitman

• Decision Date: 01 August 1998
• Docket Number: Docket No. 99-1177
• Citation: 194 F.3d 59
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. JACOB PLITMAN, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 59

194 F.3d 59 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. JACOB PLITMAN, Defendant-Appellant.

Docket No. 99-1177

August Term, 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued May 28, 1999

Decided: September 30, 1999

Appeal from judgment of the United States District Court for the Southern District of New York (Preska, Judge) convicting defendant after a jury trial of two counts of tax evasion in violation of 26 U.S.C. § 7201 (1994). Because defendant's counsel as a matter of what might be considered sound trial strategy made a valid waiver of defendant's right to personally confront a government witness, we affirm the convictions.

Affirmed.

[Copyrighted Material Omitted] JAMES A. BRUTON, III, Williams & Connolly, Washington, D.C. (Kirsten M. Schimpff, Williams & Connolly, Charles E. Clayman, Clayman & Rosenberg, New York, NY, on the brief), for Defendant-Appellant.

STANLEY J. OKULA, JR., Assistant United States Attorney, (Mary Jo White, United States Attorney, Southern District of New York, Lewis J. Liman, Assistant United States Attorney, on the brief) New York, NY, for Appellee.

Before: KEARSE, WALKER and POOLER, Circuit Judges.

POOLER, Circuit Judge:

Jacob Plitman appeals from the March 5, 1999, judgment of the United States District Court for the Southern District of New York (Loretta A. Preska, Judge) convicting him after a jury trial of two counts of tax evasion in violation of 26 U.S.C. § 7201.

BACKGROUND

A federal grand jury returned a two-count indictment against Plitman on March 16, 1998, and charged that Plitman evaded his income taxes in the tax years 1991 and 1992 when he substantially under-reported his income to the Internal Revenue Service ("IRS"). The government alleged that while Plitman worked for Silatex USA, Ltd. ("Silatex") he directed his employer to pay approximately 75 percent of his income to FMP Investments, Ltd. ("FMP"). Silatex was a New York affiliate of Silatex, S.A., a Venezuela-based company that manufactured women's clothing. FMP was a British Virgin Islands corporation that Plitman's cousins owned and over which Plitman held power of attorney. During the tax years 1991 and 1992, Silatex paid FMP $201,500. Of that amount, Plitman's cousins transferred approximately $157,000 to their accounts in the Israel Discount Bank, and $144,394 of the Israel Discount Bank account funds then personally benefitted Plitman. The money entered Plitman's personal bank account, paid his personal American Express account charges, and paid his son's college tuition. As a result of this scheme, the government alleged, Plitman evaded $23,349 in taxes in 1991 and $21,682 in taxes in 1992.

Judge Preska conducted a pre-trial conference on May 7, 1998, which Plitman attended. During the conference, the district court suggested a trial date of May 18, and the government requested an adjournment. The prosecutor objected to the date because he sought to depose or obtain the voluntary appearance of Hayim (or Jimmy) Belility, Silatex's president, who lived in Venezuela. IRS agent Peter O'Keeffe had interviewed Belility over the telephone in June 1995, and Belility had said, "it was Mr. Plitman's idea to have 75 percent of his compensation sent to him as checks to FMP." During the course of the pretrial conference, defense counsel stipulated to the admission of O'Keeffe's hearsay account of his conversation with Belility. Despite the stipulation, the prosecutor expressed his unhappiness at the early trial date because he wanted to obtain additional information from Belility and present him as a live witness. The prosecutor said he was "completely surprised and essentially off guard" with the May 18 trial date, but Plitman's lawyer pressed for the early date. Judge Preska scheduled trial for May 18.

The jury trial took place from May 18 until May 21. In addition to O'Keeffe's testimony about his conversation with Belility, the government presented Deonarain Brijmohan, Silatex's former comptroller. Brijmohan testified that when Plitman began working for Silatex, Plitman instructed Brijmohan to pay him $2,000 per month gross pay and to pay $7,500 per month to FMP. The comptroller further testified that he did not know what work FMP performed for Silatex in exchange for the money and that the payments to FMP coincided with Plitman's tenure with Silatex. At the time Plitman left Silatex, Belility gave Plitman a $20,000 check made payable to FMP and marked "final payment," Brijmohan testified. The government's direct case also consisted of documentary evidence including tax returns and bank records.

The jury convicted Plitman on both counts of tax evasion. The district court denied Plitman's motion for acquittal or a new trial by a memorandum and order dated January 25, 1999. Judge Preska sentenced Plitman to one year and one day imprisonment, two years supervised release, and a $100 special assessment. Plitman now appeals his conviction.¹

DISCUSSION

I. Sixth amendment right to confrontation

Appellant claims a violation of his Sixth Amendment right to confront the witnesses against him. Specifically, Plitman contends that the district court committed plain error when it permitted Agent O'Keeffe to testify regarding his conversation with Belility because the testimony was inadmissible hearsay and defense counsel could not stipulate to the evidence's admission. Plitman argues that the stipulation was invalid because (1) he did not waive the right and defense counsel never said that his client waived the right and/or knew the risks involved; and (2) matters of trial strategy did not justify defense counsel's action. The government does not dispute that O'Keeffe's testimony was hearsay and not within an exception to the hearsay rule. Rather, the government contends that Plitman's stipulation through counsel was a valid waiver like any ordinary evidentiary stipulation in a trial. According to the government, nearly all evidentiary stipulations involve some loss of the right to confront witnesses, but our criminal justice system relies on the ability of defense counsel to decide what ultimately benefits their clients.

The parties agree that the plain error standard applies to this issue, which defendant did not raise at trial. A plain error affects defendant's substantial rights and must "seriously affect[] the fairness, integrity, or public reputation of judicial proceedings" in order to warrant action on appeal. United States v. Gore, 154 F.3d 34, 42 (2d Cir. 1998) (internal quotation marks omitted). The error must be "'so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant's failure to object.'" Id. at 43 (quoting United States v. Tillem, 906 F.2d 814, 825 (2d Cir. 1990)).

With this standard in mind, we look to the substance of Plitman's challenge to his counsel's waiver. Criminal defendants possess two types of constitutional rights, and a different waiver standard applies to each. See Brown v. Artuz, 124 F.3d 73, 77 (2d Cir. 1997) (citing United States v. Teague, 953 F.2d 1525, 1531 (11th Cir. 1992) (in banc)), cert. denied, 118 S. Ct. 1077 (1998). The first category involves rights that defense counsel may waive on behalf of defendant because they concern strategic and tactical matters such as selective introduction of evidence, stipulations, objections, and pre-trial motions. See id. The second category involves rights that only defendant himself may waive because they are "personal" and include matters like pleading guilty, waiving a jury trial, pursuing an appeal, and deciding to testify. See id. at 77-78. When defendants personally waive their rights, the waivers "not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970).

In her post-trial decision, Judge Preska held that Plitman's counsel made a valid waiver of his client's confrontation rights because the evidentiary stipulation did not implicate a personal right. We have not decided specifically whether and under what circumstances defense counsel may waive a defendant's right to confrontation. Our opinion in Brown v. Artuz suggests that defense counsel may make the waiver where a stipulation involves trial strategy and tactics, even though the stipulation impacts on a defendant's constitutional rights. See Brown, 124 F.3d at 77. Other circuit courts of appeals have held that "counsel in a criminal case may waive his client's Sixth Amendment right of confrontation by stipulating to the admission of evidence, so long as the defendant does not dissent from his attorney's decision, and so long as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy." United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980); see also Wilson v. Gray, 345 F.2d 282, 287-88 (9th Cir. 1965); Cruzado v. Puerto Rico, 210 F.2d 789, 791 (1st Cir. 1954). But see Clemmons v. Delo, 124 F.3d 944, 956 (8th Cir. 1997) (stating that "the law seems to be clear that the right of confrontation is personal and fundamental and cannot be waived by counsel"), cert. denied, 118 S. Ct. 1548 (1998).

In a case similar to the one before us, the Tenth Circuit Court of Appeals recently held that defense counsel could stipulate to the admission of hearsay evidence in which a police chief relayed the identification of defendant by the elderly crime victim, who did not testify at trial. See Hawkins v. Hannigan, No. 97-3326, 185 F.3d 1146, 1154-56 (10th Cir. Aug. 4, 1999). The Tenth Circuit found no Sixth Amendment violation because there was no indication that defendant disagreed with or objected to counsel's decision and the stipulation "was a matter of prudent trial strategy." Id. at 1154-55. The Eighth Circuit in Clemmons faced an entirely different set of facts in which neither defendan...