Revised February 14, 2003
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20041
Consolidated With
No. 01-20823
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE L. J. WILSON,
Defendant-Appellant.
_______________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_______________________________________________
February 13, 2003
Before WIENER and STEWART, Circuit Judges, and RESTANI, Judge.*
RESTANI, J.:
The primary issues before the court in this appeal of a criminal conviction are (1) whether
the district court improperly applied the preponderance of the evidence standard in determining
whether the statute of limitations was tolled under 18 U.S.C. § 3292; (2) whether the district
court abused its discretion in admitting new evidence proffered by the Government at the hearing
on remand; and (3) whether the district court’s finding that the Government proved by a
*
Judge, U.S. Court of International Trade, sitting by designation.
preponderance of the evidence that it sent a foreign discovery request, necessary to toll the statute
of limitations under § 3292, was clearly erroneous. Though Wilson’s remaining claims are either
untimely, without merit, or both,1 we find that the district court clearly erred in concluding that
the Government proved by a preponderance of the evidence that the discovery request was sent to
the Bahamian Government. We therefore REVERSE the decision of the district court denying
George Wilson’s motion for reconsideration of his motion to dismiss the indictment as time-
barred, REVERSE Wilson’s conviction, and VACATE his sentence.
BACKGROUND
In 1999, Defendant-Appellant George L. J. Wilson was convicted by a jury of multiple
charges of conspiracy to commit money laundering, money laundering, mail fraud, and engaging
in monetary transactions involving property derived from specified unlawful activity. United
States v. Wilson, 249 F.3d 366, 368 (5th Cir. 2001) (“Wilson I”). In Wilson I, we affirmed
Wilson’s convictions in all respects, subject to the district court’s ruling on remand, after an
evidentiary hearing, on Wilson’s motion for reconsideration of his motion to dismiss based on the
statute of limitations. Id. at 380. Wilson now appeals the district court’s July 26, 2001 order
denying his motion for reconsideration.
1
Wilson also claims that his conviction and sentence violate the Ex Post Facto and Due
Process clauses of the United States Constitution. These arguments could have and
should have been raised before both the trial court and before this court in Wilson’s first
appeal. See, e.g., Martinez v. Mathews, 544 F.2d 1233, 1237 (5th Cir. 1976) (citation
omitted) (noting exception to this general rule “when a pure question of law is involved
and a refusal to consider it would result in a miscarriage of justice.”). Regardless, the
court in Wilson I affirmed in all respects the judgment and sentence of the district court
and retained jurisdiction only as to the appeal of the trial court’s ruling on the motion to
dismiss after an evidentiary hearing. 249 F.3d at 380. We therefore decline to consider
these new arguments.
2
Wilson was indicted on October 26, 1998. On July 13, 1999, the United States District
Court for the Southern District of Texas denied Wilson’s motion to dismiss the indictment as
time-barred because, in 1994, it had entered an order suspending the statute of limitations for
offenses then under investigation, pursuant to 18 U.S.C. § 3292. The order suspended the
limitations period beginning November 24, 1993, the date on which the United States Department
of Justice, Office of International Affairs (“OIA”) allegedly made an official request for assistance
to the Commonwealth of the Bahamas pursuant to a Mutual Legal Assistance Treaty (“MLAT”).
The Government required assistance in obtaining Wilson’s financial records from a Nassau bank.
Wilson filed a motion for reconsideration on July 22, 1999, challenging for the first time
the Government’s assertion that it had sent the discovery request to the Bahamas and claiming
that, because the letter was never sent, the statute of limitations was not tolled. Wilson I, 249
F.3d at 372. Wilson presented evidence to the district court in support of the motion, but the
court denied it without a hearing on August 4, 1999. See id. (detailing the evidence supporting
Wilson’s theory that the letter submitted to the court by the United States was merely a draft that
was neither sent to nor received by the Bahamian Government). At the time the court considered
the motion for reconsideration, the only evidence proffered by the Government to support its
claim that the letter was sent was a copy of the disputed letter itself and the Government’s
“representation that it was sent . . . .” Id. In Wilson I, this court ruled that the evidence raised a
factual issue as to whether the Government actually sent the discovery request to the Bahamas,
and that the district court erred in denying Wilson’s motion for reconsideration without a hearing.
Id. The court remanded the case to the district court with instructions to conduct an evidentiary
hearing on whether the letter was sent. Id. at 373.
3
On remand, the Government called one witness and introduced one additional piece of
documentary evidence to prove that it sent the letter to the Bahamas. The Government’s witness,
Helma Lanyi, was a paralegal specialist2 who had worked for the OIA since 1991. Lanyi did not
work on the Wilson case until 1996 or 1997, but she claimed familiarity with the office policies
and procedures in place in 1993 when OIA allegedly sent the MLAT request. The district court
expressed concerns about the Government’s failure to produce a Federal Express tracking
number, air bill, or monthly invoice for the November 1993 letter. Lanyi’s explanation to the
court was that staff secretaries do not always keep such records, though official policy was to
keep them for one year. Furthermore, Lanyi testified that OIA’s failure to include the Federal
Express tracking number on the letter explains why OIA could not request documentation from
Federal Express that would have proven the letter was sent.3 The Government then introduced,
over defense objection,4 a computer-generated correspondence log from OIA containing a data
entry for a November 24, 1993 request for bank records to the Bahamas. Lanyi testified that if an
2
Lanyi testified that paralegal specialists assist OIA attorneys with monitoring the
progress of outgoing extradition and legal assistance requests and help respond to
incoming requests.
3
According to Lanyi, Federal Express cannot track a package or retrieve its
corresponding invoice without the tracking number. There was no evidence, however,
that the Government ever attempted to obtain evidence from Federal Express, though
Lanyi testified that the company would have kept the relevant records for seven years.
4
Wilson objected to the admission of the correspondence log on several grounds,
including hearsay. He also argued that the log was inadmissible because the Government
had not produced it in response to his motion for reconsideration, despite the fact that it
was available to the Government and could have been introduced at that time. The court
overruled Wilson’s objections, and Wilson appeals the district court’s admission of the log
into evidence. As discussed infra, the court finds that the district judge did not abuse his
discretion in admitting the correspondence log.
4
entry was made into this log, this signified that the document had been sent.5 Lanyi, however,
neither worked in OIA’s docketing unit nor was she personally responsible for drafting or typing
foreign legal assistance requests, copying them for OIA’s records, or sending them out.
As to the discrepancy between the correspondence log submitted earlier by Wilson in
support of his motion for reconsideration that did not reflect a November 1993 MLAT request
(“old log”), see Wilson I, 249 F.3d at 372, and the one submitted by the Government at the
evidentiary hearing on remand that did include such an entry (“new log”), Lanyi testified that she
had mistakenly sent the wrong page from the report when responding to a request for proof that
the November letter had been sent.6 Compare Gov’t Ex. 1 with Gov’t Ex. 4. In the course of this
explanation, however, Lanyi testified that: (1) the correspondence log listed documents in reverse
chronological order, i.e., the first piece of correspondence in a case would be the last entry on the
5
Lanyi explained that OIA’s docketing unit logs incoming and outgoing correspondence
into OIA’s computer system upon the receipt of copies of outgoing correspondence that
are provided by each team’s secretary. The secretaries are responsible for mailing
outgoing correspondence, via Federal Express or otherwise.
6
On cross-examination, Wilson’s counsel impeached Lanyi’s testimony with a letter
addressed to her from the U.S. Department of Labor, Office of Inspector General, which
clearly requested proof that the November letter was sent: “Please provide confirmation
that the November 1993 letter was in fact dispatched to the proper authorities in the
Bahamas.” See Letter from Edward P. Fischer, Regional Inspector General for
Investigations to Helma Lanyi, OIA (Aug. 4, 1997), Record Excerpts (“RE”) 13. Defense
counsel also established that, within the same week, Lanyi’s phone record reflected that
the Attorney General’s office in the Bahamas “had not received [OIA’s] request for Gulf
Union Bank records.” See Lanyi Phone Record, RE 18.
Lanyi responded to the Labor Department’s request for proof by sending the old
correspondence log. See Gov’t Ex. 4. The FAX cover sheet read, “Attached please find
our OIA computer printout which shows that OIA sent the request in 1993,” and
explained that the log reflected all outgoing communications. Id. The log, however,
included only one entry for an outgoing MLAT request, a request to depose three
Bahamian citizens. There was no entry for a November letter.
5
log; (2) the page allegedly sent by mistake was the “last page,” and (3) the entry in the log for a
December 1993 letter was the “first entry.”7 Nevertheless, Lanyi claimed that the entry for the
November letter on the new log, a product of a new software system after a 1999 upgrade at OIA
that was printed just two days prior to the evidentiary hearing, was not newly created and that the
system was tamper-proof.
Wilson argued that the entry in the log was only circumstantial evidence and did not prove
that the letter was sent,8 especially in light of Lanyi’s testimony that OIA’s office procedures were
frequently disregarded or considered as “discretionary.” On cross-examination of Lanyi, Wilson's
counsel pointed out discrepancies in the form of the November 24 and the December 3 letters,9
7
The December 1993 letter did not request the documentation requested by the
November letter and was not the basis of any decision to suspend the statute of
limitations. The statute was determined to be suspended for three years from the
November letter, making the October 26, 1998 indictment timely. Wilson I, 249 F.3d at
371.
8
Wilson argued, “[The correspondence log] is not direct evidence of anything. . . .
[S]omebody at OIA, as I understand the procedure, had a piece of paper put in her box or
his box and typed [a correspondence entry] in the computer. [Docketing clerks] have no
personal knowledge that it was sent or not sent.” Tr. of Remand Hr’g at 68-69 (July 12,
2001).
9
The November MLAT letter submitted by the Government to the district court in 1994
in support of its application to toll the statute of limitations did not have a date stamp on
the first page, while another copy of that same letter submitted by the Government to the
court in 1999 did have a date stamp. Compare RE 20 with RE 9.
Turning to the differences between the two MLAT letters allegedly sent by the
same attorney at OIA to the Bahamas within 9 days of each other, Wilson showed that the
December 1993 letter had various initials appearing in the letterhead area indicating, for
example, the secretary who typed the letter and the person who signed the letter. The
November 1993 letter was blank in that area. The December letter referenced the OIA
docketing number for the MLAT request, which Lanyi testified was included on all official
correspondence dealing with MLAT requests, yet the alleged November letter did not.
The December letter had a return address for OIA’s Criminal Division on the upper right-
(continued...)
6
which Lanyi testified were not significant. Lanyi admitted that she had no personal knowledge of
the correspondence procedures used by Deborah Gaynus, the OIA attorney whose signature
appeared on both the November and December MLAT requests, and her secretary, Niges Forgee.
In his cross-examination of Lanyi, Wilson’s counsel also emphasized the other factual allegations
which had led this court to remand in Wilson’s first appeal, including the fact that the Government
had no records of the Federal Express tracking number and that it made no attempt to obtain any
evidence from Federal Express to prove that the letter was sent, despite the fact that the company
keeps such records for seven years. Wilson’s lawyer did not put on any additional evidence or
call any witnesses, stating to the court that he felt that the Government had not met its burden of
proving that the MLAT request was sent by a preponderance of the evidence.
The presiding judge allowed the attorneys to make closing arguments to the court. The
Government argued that, based on Lanyi’s testimony about OIA procedures and the
correspondence log entry for the November 24 letter, the court should find the Government met
its burden of proof. Responding to the court’s questions, however, the Government’s attorney
apparently conceded that the Government had not met its burden, stating that “at best” the case
was “a wash.” The court stated that if it was a wash, then the Government did not prove its case
by a preponderance of the evidence. The Government then tried to correct its unfortunate choice
of words, admitting that it was a wash whether or not the Bahamian officials received the letter,
but maintaining that it had shown by a preponderance of the evidence that the letter was sent and
9
(...continued)
hand side of the page; the November letter had no return address. The December letter
indicated that there was an enclosure, i.e., the actual MLAT request for legal assistance;
the November letter did not. Compare RE 9 with RE 12.
7
that it had provided explanations for all of the concerns raised by Wilson, the trial judge, and this
court.
Wilson’s closing argument emphasized the fact that the Government called Lanyi as its
only witness – a paralegal who had no personal knowledge as to whether the disputed letter was
sent in 1993 and who did not work on the Wilson case until at least four years later – but did not
call as witnesses the three people with actual knowledge relevant to this disputed, and dispositive,
issue: Gaynus, Forgee, or the docketing clerk who made the entry for the November letter. Lanyi
testified that all three of these potential witnesses still worked for the Government at the time of
the remand hearing. According to Wilson, the Government’s failure to call those with personal
knowledge of the letter and the circumstances of its transmission to the Bahamas was an implicit
acknowledgment that their testimony would have hurt the Government’s case.
Wilson also urged that the new correspondence log, which was admitted into evidence by
the district court on remand, did not prove that the letter was sent, only that somebody put a copy
of a letter that was allegedly sent into a docketing clerk’s in-box. Because the docketing clerks
themselves do not actually know whether a piece of correspondence they enter was mailed or not,
Wilson suggested that the log entry could have been fabricated in some way, highlighting various
circumstances where, if the log entry actually existed as of November 24, 1993, an OIA employee
could have simply printed it out, allowing the Government to avoid all of the evidentiary problems
presented here. For example, Wilson stressed that in 1997, Lanyi, by “mistake,” sent the “wrong
page” of the correspondence log in response to a request for proof from the Labor Department
that the November letter was sent. Despite this obvious mistake, neither the requesting case
agent nor the federal prosecutor sought the correct page of the log from OIA, though the
8
evidence reflected that they were both on notice that proof of OIA’s transmission of the
November MLAT was crucial to the Government’s case. See supra notes 6-7 and accompanying
text.
Two years passed without OIA providing the proper documentation as requested by the
Labor Department and, in 1999, the federal prosecutor in this case finally sought proof from OIA
that the letter was actually sent. The prosecutor needed such proof in order to respond to
Wilson’s original motion to dismiss the indictment as time-barred, yet OIA again did not (or could
not) produce a log entry or other proof that the November letter was sent. Nevertheless, the
entry inexplicably appeared on the new log introduced at the July 2001 evidentiary hearing. The
evidence showed that, in the time between Wilson’s motion for reconsideration and the remand
hearing, OIA upgraded its MLAT request tracking system and converted it to a new Oracle
program. Wilson argued that the system could have been tampered with or the entry added at
that time.10 Finally, Wilson argued that the Government’s failure to subpoena Federal Express or
produce other relevant records, along with proof that the Bahamian Attorney General never
received the November request for bank records, supported Wilson’s theory that the letter was
never sent.
10
Wilson also presented two alternative theories whereby the log entry was innocently,
though erroneously, created. The crux of the first theory was that OIA attorney Gaynus
attempted to type and transmit the November letter herself, but the letter was never
actually sent out due to her secretary’s absence during the Thanksgiving holiday. The
second theory was that an outgoing fax to the Bahamian Attorney General in 1997, which
transmitted the November 1993 MLAT request after he informed OIA that he never
received it, was incorrectly docketed as of the date on the MLAT request attached,
November 24, 1993, rather than the date of the FAX transmittal. The Government
characterized these theories as speculative and conjectural.
9
On July 26, 2001, the district court, “[h]aving considered the evidence and arguments of
counsel at the hearing, together with the submissions on file,” denied Wilson’s motion for
reconsideration. The court found that, based upon Lanyi’s credible testimony about office
correspondence procedures, the OIA correspondence log, and the transmittal letter, the
Government met its burden of proving by a preponderance of the evidence that OIA sent the
MLAT request on November 24, 1993. This appeal followed.11
STANDARD OF REVIEW
We review a district court’s admission or exclusion of evidence for abuse of discretion.
General Electric Co. v. Joiner, 522 U.S. 136, 141 (1997) (citations omitted). A district court’s
factual findings, such as the district court’s determination here that the letter was sent, are
reviewed for clear error. United States v. Meador, 138 F.3d 986, 991 (5th Cir. 1998). The
district court’s ultimate decision that the statute of limitations was properly tolled is a legal
conclusion reviewed de novo. Id.
DISCUSSION
A. Government’s Burden of Proof
Wilson argues that the district court improperly applied a preponderance standard for the
Government’s burden of proof at the hearing on remand. We considered and rejected this
argument in Wilson’s first appeal, holding that the plain language of the statute, 18 U.S.C. §
11
We note that the original panel that presided over Wilson I rescinded its April 19, 2001
direction that it would “consider any appeals” from the district court’s ruling after the
evidentiary hearing, relinquishing control of the appeal to the present panel. Order of
November 21, 2002; see Wilson I, 249 F.3d at 380.
10
3292, required the district court to decide by a preponderance of the evidence whether the statute
of limitations should be tolled. Wilson I, 249 F.3d at 373. This decision cannot be reexamined
either by the district court on remand or by this court in a subsequent appeal pursuant to the “law
of the case doctrine.” United States v. Becerra, 155 F.3d 740, 752 (5th Cir. 1998) (quoting
Illinois Cent. Gulf R.R. v. Int’l Paper Co., 889 F.2d 536, 539 (5th Cir. 1989)). Therefore,
Wilson’s argument that the district court should have required the Government to carry a more
stringent burden is without merit.
B. Admission of OIA Correspondence Log
Wilson argues that the district court improperly considered Government Exhibit 1, the
new correspondence log containing an entry for the November 24 letter, at the remand hearing.
He contends that the Government should be estopped from using the log now because the
Government did not present this document to the district court when it first considered his motion
for reconsideration.
We remanded this case to the district court with instructions to conduct an evidentiary
hearing to determine whether the letter was sent. Wilson I, 249 F.3d at 372-73. On remand, the
district court is not limited to the record before it and “retains the discretion to admit additional
evidence,” United States v. Bell Petroleum Servs., Inc., 64 F.3d 202, 204 (5th Cir. 1995)
(citations omitted), unless bound by the appellate court’s specific mandate to restrict its review in
some manner. See Becerra, 155 F.3d at 754. By recognizing a disputed issue of fact and
remanding the case for an evidentiary hearing, the court’s prior opinion obviously contemplated
the taking of additional evidence. See Wilson I, 249 F.3d at 372-73. Because the Government
claims that the log entry for the November letter has always existed, the court is puzzled by the
11
Government’s failure to produce this log in response to Wilson’s motion to dismiss or motion for
reconsideration. Nevertheless, given the purpose of the evidentiary hearing, the district court did
not abuse its discretion in allowing the Government to present the evidence at its disposal to
refute Wilson’s claims that the letter was never actually sent.
C. District Court’s Factual Finding That the Government Sent a Formal Request for Legal
Assistance to the Bahamian Government
Wilson argues that the district court clearly erred in finding that the Government had
established by a preponderance of the evidence that the November 24, 1993 letter was sent. He
directs this court to numerous deficiencies in the Government’s proof: (1) the Government did not
produce Federal Express or other relevant records to prove the letter was sent, despite the fact
that such documentary evidence would have been readily available; (2) the Government did not
call as witnesses the attorney who drafted and signed the letter, the secretary who would have
typed and mailed it, or the data entry person who logged in the correspondence, even though they
were still Government employees when the hearing on remand took place; (3) there was no
Federal Express number, ID number, OIA case number, or other identifying information on the
disputed letter, despite routine practice to include such information on all outgoing
correspondence; (4) internal government documents existed that questioned whether the letter
was sent out by OIA’s correspondence unit, that exposed the Government’s failure to obtain
proof of mailing in response to its own inquiries, and that indicated it was never received by the
Bahamian Government; (5) the Government had the opportunity and incentive to produce the
new correspondence log earlier in the proceedings and failed to do so, yet managed to provide it
at the remand hearing, after OIA’s computer system upgrade had taken place and certain
identifying information concerning log entries was changed in the conversion; and (6) the
12
Government’s sole witness at the hearing on remand was a paralegal who did not work on
Wilson’s case until 1996, approximately three years after the letter was allegedly sent, who had no
personal knowledge as to whether the disputed letter was actually mailed, who only testified as to
routine correspondence procedures, and who admitted that those procedures were flexible and
were not always followed by OIA staff. Thus, Wilson argues that the Government failed to prove
that the MLAT request was sent to the Bahamas in November of 1993 by a preponderance of the
evidence. The Government, without explanation, failed to respond to Wilson’s argument that it
did not sustain its burden at the evidentiary hearing.12
This court must determine whether the district court committed “clear error” when it
found that the Government proved its case by a preponderance of the evidence. See Meador, 138
F.3d at 991.
“The burden of showing something by a preponderance of the evidence . . . simply
requires the trier of fact to believe that the existence of a fact is more probable than
its nonexistence before [he] may find in favor of the party who has the burden to
persuade the [judge] of the fact’s existence.” Concrete Pipe & Products of Cal., Inc.
v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 622 (1993)
(internal quotation marks omitted). In other words, the preponderance standard goes
to how convincing the evidence in favor of a fact must be in comparison with the
evidence against it before that fact may be found . . . . See Greenwich Collieries v.
Director, OWCP, 990 F.2d 730, 736 (CA3 1993) (“A preponderance of the evidence
is . . . [e]vidence which is . . . more convincing than the evidence . . . offered in
opposition to it . . .”) (internal quotation marks omitted)), aff’d, 512 U.S. 267 (1994).
. . . “[W]hen the evidence is evenly balanced, the [party with the burden of
12
The Government did offer a few paragraphs of argument in favor of the district court’s
1994 order suspending the running of the statute of limitations in its Wilson I brief. This
argument is wholly insufficient to support the district court’s July 2001 order denying
Wilson’s motion for reconsideration after the evidentiary hearing. The Government’s brief
in the present appeal argues that the preponderance standard is the appropriate burden of
proof under § 3292, but fails to respond to Wilson’s argument that the Government did
not sustain this burden at the evidentiary hearing.
13
persuasion] must lose,” Director, Office of Workers’ Compensation Programs v.
Greenwich Collieries, 512 U.S. 267, 281 (1994).
Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9 (1997). A reviewing court,
however, “will not reverse a lower court’s finding of fact simply because [it] ‘would have decided
the case differently.’” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting Anderson v.
Bessemer City, 470 U.S. 564, 573 (1985)). Instead, the court must ask “whether ‘on the entire
evidence,’ it is ‘left with the definite and firm conviction that a mistake has been committed.’” Id.
(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
A review of the “entire evidence” presented to the district court leaves us “with the
definite and firm conviction” that the court was mistaken in its finding that the Government
proved by a preponderance of the evidence that the letter was sent. See id. at 242-43. The
district court’s order denying Wilson’s motion for reconsideration relied in part upon a
presumption of mailing derived from the testimony of Lanyi. The court stated, “[t]he Fifth Circuit
‘has long accepted proof of the normal practice of the use of the mails by means of circumstantial
evidence, without requiring the testimony of a business’ mail clerk, ostensibly the only person
who could testify directly to the business practice of mailing and receiving letters.’” Order of July
26, 2001, RE 5 (citations omitted). The court found that Lanyi qualified as a person familiar with
OIA’s routine correspondence practices, and that her testimony was therefore sufficient to
establish the letter was sent according to routine practices.
The district court failed to recognize an important distinction between Lanyi’s testimony
and that which is normally accepted as adequate to establish routine business practices. Lanyi was
a paralegal, not a secretary or docketing clerk, and she testified that she was not responsible for
drafting or mailing MLAT requests or for making correspondence log entries. Aside from her
14
personal inexperience with executing OIA correspondence procedures, her testimony
demonstrates that there really were no consistent procedures or practices at OIA during the time
in question. Furthermore, though Lanyi worked at OIA in November of 1993 when the MLAT
was allegedly mailed to the Bahamas, she was not assigned to work on the Wilson case until
approximately four years later. She testified, “I was not there at that time. So, I do not know
what the procedures were for Ms. Gaynus and her secretary in what they sent out. . . . There
would not be a consistency [in correspondence procedures] of the kind that you describe.” Tr. of
Remand Hr’g at 89 (emphasis added). This demonstrates that Lanyi was not a competent witness
qualified to give evidence as to the correspondence procedures used by the OIA team responsible
for the November letter. Accordingly, we find that there was insufficient evidence before the trial
court to give rise to a presumption that the letter was mailed. See Beck v. Somerset
Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989) (holding that “a copy of the properly
addressed letter, a certified mail receipt and signed return post cards” was sufficient to raise the
presumption that a letter was received in the due course of the mail).
Because the presumption of mailing does not arise in this case,13 we must review the
“entire evidence” to determine whether the district court’s factual finding that the letter was sent
13
We note that the effect of the presumption relied upon by the district court here is
simply to shift the burden of producing evidence that the letter was not sent to Wilson.
See Beck, 882 F.2d at 996; Wells Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940,
944 (5th Cir. 1983) (discussing burden shifting in the context of circumstantial evidence of
routine mailing practices of the sender). Given the evidence Wilson presented in support
of his theory that the November letter was only a draft that was never mailed by OIA or
received by the addressee, even if we were to find that the presumption of mailing
properly arose here, Wilson produced sufficient evidence of non-mailing to rebut the
presumption. “If the party against whom the presumption operates produces evidence
challenging the presumed fact, the presumption simply disappears from the case.”
Pennzoil Co. v. F.E.R.C., 789 F.2d 1128, 1136-37 (5th Cir. 1986).
15
constituted clear error. What particularly informs this court on review is that the Government
failed to meet proof with proof in every step of the litigation here: first in its response to Wilson’s
motion for reconsideration, next at the remand hearing, and now here on Wilson’s appeal of the
district court’s ruling in its favor. In light of the persuasive evidence Wilson proffered in support
of his position that the MLAT request was never mailed to the Bahamas, the Government’s
burden of proving that it was more likely than not that OIA mailed the November letter required
more than circumstantial evidence of questionable origin and the testimony of an OIA employee
wholly without personal knowledge relevant to the MLAT request at issue here. “Whenever
circumstantial evidence is relied upon to prove a fact, circumstances must be proved and cannot
be presumed.” Montgomery-Ward & Co. v. Sewell, 205 F.2d 463, 467 (5th Cir. 1953). As
described in detail above, Lanyi’s testimony was often either contradictory (e.g., the
circumstances surrounding her allegedly mistaken transmission of the wrong page of the old
correspondence log in 1997), displayed a lack of personal knowledge (e.g., her testimony about
office correspondence procedures, when she was never responsible for such matters in her
position as a paralegal specialist and when she admitted total unfamiliarity with the procedures of
the OIA attorney and secretary responsible for the November MLAT), or was wholly without
probative value (e.g., her lay opinion that OIA’s computer software was tamper-proof). This
testimony does not prove the circumstances surrounding the mailing of the letter and the
subsequent correspondence log entry as required by Sewell. Even if we consider the evidence as
equally balanced, the Government still must lose. See Rambo, 521 U.S. at 137 n.9 (quoting
Greenwich Collieries, 512 U.S. at 281).
16
In addition, this circuit has long recognized that a party’s failure to call available witnesses
or produce evidence that would clarify or explain disputed factual issues can give rise to a
presumption that the evidence, if produced, would be unfavorable to that party. See, e.g., Streber
v. Comm’r of Internal Revenue, 138 F.3d 216, 221-22 (5th Cir. 1998); United States v. Lehmann,
613 F.2d 130, 135 (5th Cir. 1980); United States v. Chapman, 435 F.2d 1245, 1247 (5th Cir.
1970); United States v. Johnson, 288 F.2d 40, 45 (5th Cir. 1961). The court can only draw a
negative inference when the missing witness has information “peculiarly within his knowledge,”
i.e., a party need not call a witness if her testimony would be cumulative, and the strength of the
inference to be drawn from the witness’s absence varies with the particular facts of each case.14
Streber, 138 F.3d at 221-22 (citations omitted). In Coyle Lines, Inc. v. United States, 195 F.2d
14
There is, however, an important exception to the applicability of the presumption: if the
witness is “equally available” to both parties, any negative inference from one party’s
failure to call that witness is impermissible. McClanahan v. United States, 230 F.2d 919,
925 (5th Cir. 1956) (citation omitted). A missing witness’s availability, however,
is not to be determined from his mere physical presence at the trial or his
accessibility for the service of a subpoena upon him. On the contrary, his
availability may well depend, among other things, upon his relationship to one
or the other of the parties, and the nature of the testimony that he might be
expected to give . . . .
Id. at 926 (citation omitted). Thus, when the person not called is connected in some way
to one of the parties and “it might be expected that his testimony, if given, would
corroborate” that party’s theory of the case, the missing witness is not considered to be
“equally available” to both parties and the adverse inference arises. Id. at 925 (making
adverse inference when missing witness was party’s attorney whose legal advice was at
issue); see Labit v. Santa Fe Marine, Inc., 526 F.2d 961, 962-63 (5th Cir. 1976)
(suggesting that the negative inference arises when the missing witness is an employee
whose testimony would favor the employer-party); Chapman, 435 F.2d at 1247 (“When a
witness is controlled by one party, failure to call the witness, if his testimony would
elucidate facts in issue, creates an inference which the [court] is permitted to draw against
that party”).
17
737, 741-42 (5th Cir. 1952), this court found a “particularly strong” adverse inference from the
Government’s failure to call employee-witnesses who would have supplied direct testimony
regarding the subject matter of the lawsuit.
The present case presents a similar situation to that addressed by this court over fifty years
ago in Coyle Lines. The Government failed to call a single witness with actual personal
knowledge of the November 1993 letter or its subsequent entry into the OIA correspondence
tracking system, though all three of the Government employees involved in 1993 were still in the
Government’s employ at the time of the hearing on remand. The OIA attorney and secretary who
allegedly drafted and mailed the letter would have testified to matters “peculiarly within [their]
knowledge,” and their testimony would have been directly relevant to the Government’s case.
Therefore, the Government’s failure to call its own employees as witnesses when they had crucial
information about this dispositive issue of fact gives rise to a “particularly strong” adverse
inference against it. See Coyle Lines, 195 F.2d at 742.
The district court’s error is highlighted by the Government’s approach before this court.
Its appellate brief completely ignores Wilson’s argument that the Government failed to meet the
preponderance standard, and the Government offers neither argument nor legal authority
supporting the district court’s finding that the letter was sent. Perhaps the Government found it a
difficult argument to make. Nevertheless, the Government’s complete failure to dispute any of
the factual errors Wilson raises here or to otherwise defend the district court’s ruling – in addition
to the Government’s failure to attempt to subpoena Federal Express records or to call any one of
the potential witnesses who had personal knowledge of the November 1993 letter in the
proceedings below – appears to us to be an implicit acknowledgment that the Government could
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not, and did not, sustain its burden. Considering the lack of any direct evidence supporting the
Government’s allegation that the letter was sent, the questionable circumstances surrounding the
Government’s tardy production of the correspondence log, Lanyi’s lack of capacity to testify
regarding the mailing of the November 1993 MLAT, and the adverse inference we draw from the
Government’s failure to call available and pertinent witnesses, we hold that the district court
clearly erred in finding that the Government proved that the MLAT letter was sent by a
preponderance of the evidence. The trial court therefore improperly tolled the five-year statute of
limitations on Wilson’s offenses.
CONCLUSION
In light of the foregoing, we REVERSE the decision of the district court denying Wilson’s
motion for reconsideration of his motion to dismiss based on the statute of limitations. Because
Wilson was not indicted within five years of the acts allegedly constituting offenses under federal
law, we REVERSE Wilson’s conviction on all counts and VACATE his sentence.
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