'Hearsay'
is insufficient objection
Seventh
Circuit: Objection must be more specific
By
David Ziemer
david.ziemer@wislawjournal.com
May
14, 2007
| What
the court held Case:
U.S. v. Swan, No. 06-1417. Issue:
Is “Objection. Hearsay.” sufficient to preserve the objection for appeal? Holding:
No. The general
objection failed to put the district court on notice of the issue. |
Admission
of an attorney’s statement as a party admission by an agent was not error,
the Seventh Circuit held on May 8. The court also held that merely objecting on
hearsay grounds is insufficient to preserve the objection for appeal.
Shelia
Swan and her husband, who owned A-1 Home Health Care, were investigated by the
FBI for Medicare fraud.
In
1996, A-1 had received reimbursement from Medicare for $42,600 in wages paid to
Veronica Alexander, Swan’s sister-in-law. A-1 described Alexander as the
“Quality Management Coordinator” for A-1.
FBI
agent Mike Miller sent a subpoena to A-1’s lawyer, seeking documents relating
to that position.
According
to the government, in response to the subpoena, A-1’s attorney stated that
the Swans used the quality management coordinator description, so that they could
be reimbursed at a higher rate, and that there were no documents relevant to the
position.
Swan
was charged in federal court with mail fraud, and at the trial, testimony was
presented that Alexander only worked for the company for one week.
When
FBI Agent Miller was called, he testified as to the statements purportedly made
by A-1’s attorney.
The
Swans’ attorneys objected on hearsay grounds, but the court allowed the testimony
as an admission of a party opponent pursuant to FRE 801(d)(2)(D).
Swan
was convicted, and filed a post-trial motion for a new trial based on the admission
of Miller’s testimony. In an affidavit, Swan’s attorney denied making
he statement attributed to him, and denied that he represented Swan in connection
with the federal criminal investigation.
He
stated that he was only involved for the limited purpose of responding to the
subpoena, and that he had no authority to act for Swan in any other capacity.
The
court denied the motion, and Swan appealed. The court of appeals affirmed in a
decision by Judge Richard D. Cudahy.
The
court first held that Swan failed to properly make an objection at trial.
When Miller
was being questioned during his testimony, Swan’s only objection was on hearsay
grounds.
At
the motion for a new trial, and on appeal, the issue was whether the attorney
was an agent of Swan and the scope of his authority. The court found the general
hearsay objection not specific enough to put the district court on notice and
preserve the issue for appeal. Accordingly, the court reviewed the district court’s
overruling the objection for plain error only.
The
court concluded that there was no plain error in the district court’s admission
of the statement as an admission of a party by an agent.
The
court noted that Miller testified that the attorney called him in response to
the subpoena, identified himself as an associate of the law firm representing
A-1 in the investigation, and that Miller regarded him as representing the Swans.
The
court then rejected a separate argument by Swan — that the statements were
protected by the attorney-client privilege — because Swan made no objection
on that ground at trial.
Accordingly,
the court affirmed.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
