The Nigerian Defense?

A couple of years ago, I did a post on the Trojan horse defense, i.e., the claim that a Trojan horse program put the child pornography on the defendant’s hard drive.

This post is about what might be called the Nigerian Defense.

it was raised by Jeffrey Kelly, who was charged with forgery and theft “after he presented two counterfeit checks to a bank in Valdez”, Alaska. Kelly v. State, 2008 WL 612807 (Alaska Court of Appeals 2008). Here, according to the court of appeals, are the essential facts that led to the charges:

Kelly went to the First National Bank Alaska in Valdez on March 10, 2005, and presented a check for $30,000. Kelly was told it would take a while for the check to clear because the check was drawn off of a Canadian bank. Kelly returned to the same bank on March 24, and presented a check for $9,960. The supervisor at the bank, Linda A. Goebel, approved the check for immediate deposit. According to Goebel, Kelly told her the check was good, that he had received it from a stock transaction, and that he had recently cashed a similar check at the bank. Goebel testified that she mistakenly thought the check was for approximately $900 and made the funds available for Kelly's immediate use. Kelly's account was credited for the full amount ($9,960), and he spent a large portion of the money within a short period of time.

Later, the bank discovered that the checks were counterfeit, and it put a hold on Kelly's account. On April 6, Goebel contacted Kelly. . . . Kelly met with Goebel's supervisor on April 11, and he promised to pay back the money. Kelly signed a loan agreement and provided collateral for the amount he had already spent -- approximately $6,452.

Kelly v. State, supra. Ms. Goebel also contacted the

Valdez Police Department and reported the incident. Investigator Daniel C. Mott contacted Kelly on April 16 and again on April 21. Kelly initially repeated his story about having received the checks from a stock transaction. But Kelly then changed his story -- he said he received the checks from a woman who had e-mailed him from Nigeria requesting help in bringing her family to the United States.

Kelly v. State, supra.

Kelly was, as I noted above, charged with forgery and theft based on his presenting and cashing the counterfeit checks. He went to trial and the jury convicted him on all counts. Kelly v. State, supra.

He appealed his convictions, arguing, among other things, that the trial judge erred in not letting him admit all of the emails he claimed to have received from the person who allegedly perpetrated the Nigerian scam that got him into trouble:

Kelly's defense was that he was the victim of an Internet scam. Kelly did not testify, but sought to admit his version of the facts through e-mail communications with the Nigerian scammer. Specifically, Kelly asserted that he had been contacted through e-mail by a woman claiming to be from Nigeria who needed his help in bringing her family and money to the United States. The e-mail scammer promised that if Kelly would assist her, she would let him have a share of the money. The woman sent Kelly some official looking documents and the two checks that he later presented to the First National Bank.

Kelly admitted that, by the time of trial, everyone knew that this was a common Internet scam. But he pointed out that, at the time he received the e-mail, the scam was not as widely known. He argued that he was not very smart, that he was defrauded, and that he was a victim of the scam. He claimed that, at the time he presented the checks, he had no intent to defraud the bank.

Judge Schally allowed Kelly to admit into evidence the e-mails he sent and received up until April 6, the date when the bank confronted Kelly with the fact that the checks were counterfeit. Kelly argues that it was error for Judge Schally to not admit e-mails sent and received after April 6 into evidence.

Kelly asserts that the e-mails after the 6th were admissible to show his innocent state of mind regarding the validity of the checks. Specifically, Kelly argues that `[t]he post-April 6 e-mails were important to [Kelly's] defense because they would have established that, even after he was in criminal trouble, he still believed the checks were genuine and was seeking assurances and explanations from the Nigerians.’

Kelly v. State, supra.

The theft and forgery charges against Kelly both required that he act with a particular level of mens rea, or intent. The forgery charge required that, acting with the “intent to defraud” his victim, Kelly have uttered a forged instrument, including a check. Alaska Statutes § 11.46.505(a)(1). “Uttering” a forged instrument is defined as “to issue, deliver, publish, circulate, disseminate, transfer, or tender” a forged instrument, such as a check. Alaska Statutes § 11.46.580(b)(1). The theft charged required that, acting with the “intent to deprive another of property or to appropriate property of another to oneself,” Kelly have obtained the property of another. Alaska Statutes § 11.46.130(a)(1).

To commit either or both crimes, therefore, Kelly would have to have acted with the intent to defraud the bank and thereby unlawfully obtain property belonging to it when he tendered the checks to the bank. The intent to defraud (how he goes about getting the property) and the intent to commit theft (actually getting the property) both implicitly require that the defendant have known that what he was doing was “wrong.”

Kelly’s defense at trial was based on the premise that “the state's case centered on proving that Kelly knew the checks were counterfeit” Appellant’s Brief, Kelly v. State, supra. On appeal, the defense argued that the emails were “being offered to show the `core of our defense’ - that Kelly believed the checks to be genuine and that he also was a victim of the Nigerians' scam.” Appellant’s Brief, Kelly v. State, supra.

That’s a perfectly legitimate defense theory. If it were true, then Kelly would not have had the intent required to commit either theft or fraud.

The issue on appeal, though, was not whether he had been allowed to present that defense at all. Instead, the issue on appeal went to the propriety of the trial court’s refusing to admit the post-April 6 emails, i.e., the emails that allegedly involved communications sent after it had become apparent the checks were no good.

The Alaska Court of Appeals held that the trial court acted correctly in refusing the admit these emails, for two reasons. The first went to the nature of the evidence itself:

`A defendant's self-serving statements are hearsay and cannot be admitted into evidence unless they qualify under some exception to the hearsay rule or are used for a non-hearsay purpose.’ Judge Schally did not abuse his discretion in finding that Kelly's later e-mails were self-serving hearsay statements that had little probative value. The essential question . . . was whether Kelly, at the time he presented the counterfeit checks, had an intent to defraud. Kelly's state of mind after he was confronted with the fact that the checks were counterfeit was not relevant. Even if Kelly did not know at the time he passed the checks that they were counterfeit, it proves very little that Kelly made statements professing his innocence after he was confronted with the fact that the checks were counterfeit.

Kelly v. State, supra.

The other reason went, essentially, to the effect of not introducing these emails:

Kelly was able to fully establish his defense through the e-mails sent and received before April 6, which were admitted. These e-mails tended to show that Kelly was contacted by the Internet scammer. And the e-mails tended to establish the scammer's method of operation. The question at trial was whether Kelly was actually fooled by the scam and had no intent to defraud the bank when he presented the checks. The e-mails that the court allowed into evidence permitted Kelly to present this defense. Therefore, even if Judge Schally had erred in refusing to allow Kelly to admit the later e-mails, any error would be harmless.

Kelly v. State, supra. The appellate court therefore affirmed Kelly’s conviction.