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Judicial Notice and Collateral Estoppel Re: Philippine Law and a Philippine Court Order Improperly Applied—Related Conspiracy Conviction Vacated/Emails and Newspaper Articles, Although Hearsay, Properly Admitted

The First Department, in a prosecution stemming from the failure to pay tax on the sale of a painting, determined Supreme Court improperly took judicial notice of the law of the Philippines and improperly applied the doctrine of collateral estoppel (based upon a Philippine court order). The painting once belonged to Imelda Marcos when she was the First Lady of the Philippines. Under Philippine law, the painting allegedly should have been forfeited to the people of the Philippines. Defendant (with others) completed the sale of the painting for $32 million. The First Department vacated the conspiracy conviction because of the misapplication of Philippine law, but affirmed the crIminal tax fraud and “filing a false instrument” convictions. In addition to discussing the misapplication of Philippine law and the doctrine of collateral estoppel, the First Department held that emails, although hearsay, were properly admitted to show conduct (not for the truth of the content) and newspaper articles, although hearsay, were properly admitted to show defendant knew the Philippine government was trying to recover the painting (state-of-mind exception):

The trial court erred in reading or paraphrasing approximately eight sentences from an order of the Supreme Court of the Republic of the Philippines in a proceeding commenced by the Republic against Imelda Marcos and others, where the Philippine court granted summary judgment in favor of the petition, and ordered that more than $658 million held mostly in Swiss bank accounts be forfeited to the Republic. Only one sentence read by the court to the jury purported to state the law of the Philippines, namely Philippine Republic Act No. 1379, which provides that any property acquired by a public official during his or her term of public service that is “manifestly out of proportion” to the official’s public salary and any other lawful income “shall be presumed prima facie to have been unlawfully acquired.” The remaining portions of the opinion read to the jury consisted of fact findings, and thus were not proper subjects of judicial notice pursuant to CPLR 4511(b) … .

The court implicitly applied collateral estoppel, which was inapplicable even under the standards governing civil cases, since defendant was not a party to the Philippine case and had no opportunity to litigate the issues therein; moreover, collateral estoppel should be applied with more caution in criminal cases than in civil … . The court further erred in paraphrasing the opinion without clarifying the rebuttable nature of the presumption under the Philippines law, and that error was compounded by the court’s ruling precluding defense counsel from addressing that point in summation. …

The court properly admitted emails exchanged between two of defendant’s alleged coconspirators, her nephews, under the coconspirator exception to the hearsay rule. Contrary to defendant’s argument, the People made a prima facie showing of conspiracy “without recourse to the declarations sought to be introduced” … . There was testimony indicating that one of defendant’s nephews extensively participated in the painting sale at issue, and defendant sent $100,000 of the proceeds to him. Defendant also sent $5 million of the proceeds to the other nephew. Although defendant notes that the court relied in part on the emails at issue, the messages were properly considered to demonstrate the nephews’ conduct, such as offering or arranging to offer certain prices and forwarding photographs of paintings to potential buyers, rather than for the truth of the messages … .

Under the state-of-mind exception to the hearsay rule …, the court properly admitted news articles and other documents, recovered in a search of defendant’s home, concerning the Philippine government’s efforts to recover artworks allegedly misappropriated by the Marcos administration. The circumstances warranted a reasonable inference that defendant was aware of these documents and their contents … , establishing her motive to conceal the sale of a painting allegedly given to her by the former First Lady. Thus, the evidence tended to rebut the defense argument that defendant’s failure to report her income from the sale on her tax returns was not necessarily intentional. People v Bautista, 2015 NY Slip Op 07589, 1st Dept 10-20-15

 

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