Error in excluding testimony from appellant's mother not harmless

US v. Ibisevic:  Ibisevic was convicted for attempting to leave the United States without reporting some $40,000 in U.S. currency he carried in his luggage. At trial, the district court prohibited his mother from testifying as to Ibisevic’s statements to her at the time of this arrest, which tended to negate a finding of his intent to commit bulk cash smuggling, failing to report the international transportation of currency, and making false statements to authorities. The Fourth Circuit vacated and remanded the district court’s determination that any error it made in prohibiting the admission of Ibisevic’s mother’s testimony at trial was harmless.

According to Ibisevic’s motion for a new trial, which the district court denied, Ibisevic’s mother Rahima would have testified that Ibisevic had told her, immediately upon signing the customs form, that the officers were asking the insurance value of the checked luggage. The district court conceded its error in excluding this testimony; however, it found its error harmless.

The Fourth Circuit used to a three-part test in its analysis of whether the error was harmless from United States v. Ince: 1) the centrality of the issue, 2) the steps taken to mitigate the error, and 3) the closeness of the case. The Fourth Circuit resolved that the excluded testimony went directly to the central issue of this case, Ibisevic’s intent, because Ibisevic’s mother’s testimony was the only evidence that corroborated his claim that he gave truthful answers to customs agents who questioned him. Next, it found that there was no effort made to mitigate the effects of the error. Finally, the Fourth Circuit found that the "closeness" question involved an assessment of whether the evidence was not only sufficient to convict, but whether the evidence was sufficiently powerful in relation to the excluded testimony to ensure the error did not affect the outcome. The Fourth Circuit disagreed with the district court, holding that evidence against Ibisevic was not "overwhelming" and the jury deliberated for more than four hours, so the case was apparently a close one. None of the factors, then, weighed in favor of harmless error.

Great work, FPD in Alexandria!