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Challenge to the Indictment: Failure to Appear and Witness Tampering

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by: Ryan • May 22, 2012 • no comments

Let me state my conclusion upfront: in most cases where the state has charged a felony and either a subsequent Failure to Appear or Witness Tampering, the indictment is subject to a demurrer.

To minimize confusion, let's say the original felony is either a Felony Assault IV or a Promoting Prostitution, two crimes that often result -- down the road -- in additional failure to appear or witness tampering charges.

The indictment is subject to a demurrer if the witness tampering/failure to appear is not properly joined with the assault/promoting prostitution. Contact me for the latest copy of the demurrer.

The question is: how do we determine if they are improperly joined?

A failure to appear is improperly joined with an assault IV or a promoting prostitution unless one of three criteria is met:

(1) Same or similar crimes. Obviously, an FTA is nothing like an assault or a promoting. This is easy.

(2) Same criminal episode. Hey, if the COA says that a vehicular assault is not from the same criminal episode as a Hit & Run that occurred immediately after, and they have in Orchard v. Mills, then we can be confident that an FTA/witness tampering that occurs days, weeks or months later isn't part of the same criminal episode.

(3) Common Scheme or Plan. This is the state's only argument, but under the analysis of St v. Wittwer, it can't be a basis for joining these charges in one indictment.

In Wittwer, the COA found that a Failure to Appear and a Witness Tampering were properly joined with each other, since they both evinced a plan to avoid responsibility for the original charges. The COA appeared to reject an argument that the failure to appear was properly joined because it was evidence of a guilty mental state.

The state argues that defendant's failure to appear evidences consciousness of guilt of the charges related to the May 10 events and is "connected together" with those charges for that reason. The better argument advanced by the state is that the failure to appear is properly joined with the charges related to the May 25 events because defendant's actions in both cases sought to evade responsibility for the May 10 charges. It can be inferred that defendant's aggression toward Hess on May 25 was intended to both retaliate for her grand jury testimony and deter similar testimony at trial. Defendant's later entreaties to Hess not to appear at trial continued that scheme. [Emphasis added.]

In sum, there were multiple charges from 3 dates. The May 14th FTA was properly joined with the May 25th Witness Tampering, because they were part of a common scheme to "evade responsibility." The May 25th Witness Tampering charges were properly joined with the May 25th Assault-type charges because they were from the same criminal episode. And the May 25th Assault-type charges were properly joined with the May 10th assault-type charges (specifically, UUW, menacing and harrassment) because they were "same or similar" crimes.

But what you don't get from the court's opinion -- and what, in fact, the court seems to reject -- is that it's okay to joind the FTA with the original Assault charges because that's somehow a common scheme or plan. And the COA's dismissal of that argument makes sense. My motivation for hitting my neighbor with hedge clippers reflects a very different plan than not showing up on in court on a felony charge.

And since the crimes aren't of the same or similar character, nor are they from the same criminal episode, then the FTA isn't properly joined with the Assault. I submit the same holds true for the Witness Tampering. The reasons I hit my neighbor are different than the reasons I made a jail call and promised him that if he didn't show up for trial, I'd stop my dog from barking throughout the night.

The "common scheme or plan" case law in Oregon is explicitly rooted in federal case law, and here are some examples -- thanks Michael Levine! -- of federal case law that is defense-favorable in interpreting "common scheme or plan."

United States v. Ohle, 678 F.Supp.2d 215 (S.D.N.Y.2010) (defendant's alleged personal tax evasion was not sufficiently related to alleged conspiracy to develop fraudulent tax shelter to warrant their joinder in single indictment so severance warranted); United States v. Ramallo-Diaz, 455 F. Supp. 2d 22 (D.Puerto Rico 2006) (counts charging conspiracy to embezzle and conspiracy to launder money from an employees' pension plan were not properly joined in indictment charging counts related to embezzlement and laundering of labor union funds); United States v. Kaquatosh, 227 F.Supp.2d 1045 (E.D.Wis.2002) (offense of resisting federal officer was not of same or similar character to counts of assault with intent to kill a Native American so severance warranted).

See also this great post by Aaron Jeffers.

Every day I see cases on the Mult Co docket that are crying out for an improper joinder dismissal. I'm sure the same is true throughout the state. And the beauty is, if you lose the demurrer, you've given your client a great chance of dismissal at the COA, which isn't such a bad result when the underlying charges are sex offenses, like promoting prostitution, or other serious felonies.

And again, the remedy for improper joinder is Dismissal, Not Severance .