Evidence:
A. Article IV- Relevancy
Article IV - Relevancy
Sixth Circuit Decisions
• 401 - RelevanceU.S. v. Newsom, 05-5030 (6/29/06)
> Defendant was charged with being a felon in possession of a firearm and at trial a defense witness testified that she did not see defendant with a gun. On cross examination, the government asked the witness whether she had seen defendant’s tattoos of guns on his body. Defendant objected to the relevance of the evidence and the district court permitted the question in order to impeach the witness’ credibility. Defendant appealed this evidentiary ruling.
* Holding: The court held that, pursuant to FRE 401, the question regarding defendant’s tattoos had no relevance in the case. First, the question did not serve as direct evidence that defendant possessed a firearm as charged in the indictment. Second, the court held that the question of whether the witness had seen pictures of tattoos on defendant’s body had no effect on her credibility as to whether she had seen defendant with an actual gun. Nonetheless, because the reference to the tattoos was only a single question, the error was harmless.
• 402/403 - Relevance/Prejudice
U.S. v. Sanders, 04-3181 (4/20/05)
> Defendant was observed by an officer fleeing from a car, and a gun fell out of his pocket. The officer retrieved the gun, but the defendant was not apprehended until later. At trial, the government introduced a backpack that contained common burglary tools that were found in the car. The government also introduced the testimony of a witness who stated that she sold the car in question to the defendant. Defendant did not object to the admission of evidence at trial, but challenged it on appeal.
* Holding: The court first held that the burglary tools and the witness’ testimony were relevant under FRE 402. The court ruled that the burglary tools were relevant to show defendant’s “knowing possession of the firearm and ammunition” because of the “recognized connection between firearms and items consistent with burglary tools.” The witness’ testimony about selling the car to the defendant was relevant to identify defendant as the person the officer saw drop the gun. The court further found that none of the evidence was unduly prejudicial. Thus, the admission of the evidence was affirmed.
• FRE 402/403 - Relevance/Undue Prejudice
U.S. v. Till, 04-2128 (1/20/06)
> Defendant was charged with being a felon in possession of a firearm. During trial, the district court admitted evidence that defendant, at the time of his arrest, was in possession of small amounts of marijuana and crack cocaine. Defendant appealed admission of the drug evidence.
* Holding: The court found that the marijuana and crack cocaine were relevant evidence because of “the propensity of people involved with drugs to carry weapons.” Further, the court found that the probative value of the evidence was not substantially outweighed by its prejudicial effect because of the “causal, temporal and spatial connection” of the drugs with the firearm. According to the court, the possession of the drugs by defendant was inextricably intertwined with the firearm possession and thus was res gestae. As such, drug evidence would help to prove defendant’s motive to possess the firearm. Therefore, the court affirmed the district court’s decision admitting the evidence. Further, the court found that a limiting instruction about the drug evidence was unnecessary given the brief mention of the drug evidence at trial, the weight of the evidence against defendant, and the lack of precedent requiring such an instruction.
• 401/403 - Relevance/Undue Prejudice
U.S. v. Whittington, 05-2247 (7/28/06)
> Defendant was charged with conspiracy to distribute crack cocaine. Before trial, he filed a motion to exclude evidence of his possession of $500 and $600, and a cell phone. The district court ruled that the evidence was relevant and not unduly prejudicial and denied the motion. After conviction, defendant appealed.
* Holding: The court first found that the money and cell phone evidence were relevant because the government also offered testimony that defendant was unemployed, and that drug dealers often carry cash and cell phones. Second, the court held that the cell phone and the cash were “neutral items” that were unlikely to unduly inflame the jury. Further, the court noted that the evidence of the cash did not lead the jury to convict defendant of a greater amount of crack, as claimed by defendant, because the jury convicted defendant only of the conspiracy and not the substantive distribution count. Had the jury believed the money was from the sale of crack, it presumably would have convicted him of the distribution count. Thus, the conviction was affirmed.
• 401/403 - Relevance/Undue Prejudice
U.S. v. Lopez-Medina, 05-5891 (8/25/06)
> Defendant was charged with a drug conspiracy and at trial the government introduced the record, presentence report, and mug shots of two acquaintances of defendant. Upon defendant’s conviction, he appealed.
* Holding: The court held that the information regarding defendant’s acquaintances was “guilt by association” evidence that was not relevant to a determination of defendant’s guilt or innocence. Based upon this error, and the other evidentiary errors (See infra), the court held that defendant’s case had been prejudiced such that reversal of the conviction was warranted.
• 401 - Relevance - Limits on Cross Exam
U.S. v. Veach, 05-6268 (8/1/06)
> Defendant was charged with threatening federal officers and during the trial defendant attempted to cross examine an officer about her reaction to defendant the day after defendant had allegedly threatened to inflict harm to her. The district court prohibited the line of questioning and defendant appealed.
* Holding: The court found that the line of questioning proposed by defendant was relevant because defendant’s threats to the officer had been threats of future harm. Therefore, the officer’s reaction to the defendant the day after the threats were made was relevant to show whether the officer’s alleged fear was reasonable. The court accordingly held that the district court erred in limiting defendant’s cross examination but that the error was harmless. Nevertheless, because the court was remanding for retrial on other grounds, the court instructed the district court to reconsider its ruling during the retrial.
• 401 - Relevance
U.S. v. Blackwell, 05-4588 (8/29/06)
> Defendant was charged with conspiracy to commit insider trading based upon the fact that numerous friends and family bought stock in his company shortly before a buyout by a larger company. At trial, defendant introduced expert testimony to show that “leakage” of information does occur during the time period prior to a buyout through sophisticated non-insiders’ observations of a company’s activities. Defendant also attempted to introduce additional testimony that other members of the board of directors of defendant’s company had family and friends who bought stock shortly before the buyout. The district court excluded the latter evidence and defendant appealed.
* Holding: The court held that the evidence about the activities of other board members’ families was not relevant to defendant’s guilt. The court ruled that the evidence was not relevant because defendant was not able to show the likelihood that the trading surrounding the other board members was due to “leakage.” The court found that it was equally likely that the other board members also tipped family members, but were simply not prosecuted. Accordingly, the court affirmed the district court’s exclusion of the evidence.
• 401/403 - Relevance/Confusion of Issues
U.S. v. Winkle, 04-4196 (2/21/07)
> Defendant was charged with bank fraud for check kiting activities and sought at trial to introduce an FDIC report that detailed the failure of the bank to detect the embezzlement activities of an employee, which allegedly delayed discovery of defendant’s check kiting. The district court refused to admit the report and, upon his conviction, defendant appealed.
* Holding: First, the court held that the FDIC report was not relevant to a fact in issue because the report focused on the bank employee’s embezzlement and the failure of the regulators to catch the embezzlement. Second, the court held that, even if the report had some minimal relevance, its probative value was substantially outweighed by the danger of confusing the issues and misleading the jury. Accordingly, the exclusion of the evidence was affirmed.
• 401/403 - Relevance/Prejudice
U.S. v. Cody, 06-6003 (8/16/07)
> Defendant was arrested for several robberies and during his interrogation by the police he stated that he “couldn’t live in prison, so he was going to kill himself.” The tape of the statement was played for the jury, and defendant objected. The district court overruled the objection and indicated that the statement was an admission. Defendant appealed.
* Holding: The court held that defendant’s suicidal statement was analogous to evidence of a defendant’s flight from the scene of a crime. Thus, the court applied the four-step analysis used for flight evidence. In order to admit flight evidence, four inferences must be drawn: (1) from defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt for the charged offense; and (4) from consciousness of guilt of the charged offense to actual guilt of the charged offense. Under the circumstances of the case, the court held that the inferences supported the belief that defendant’s suicidal statements were indicative of his guilt, and thus, the district court’s evidentiary ruling was affirmed.
• 401/403 - Relevance/Undue Prejudice
U.S. v. Hunter, 07-3698 (3/9/09)
> Defendant was charged with drug and firearm offenses and at trial the government introduced a picture of defendant holding a gun. The gun revealed in the picture was identical to the gun found in defendant’s hotel room, and defendant’s girlfriend testified that the gun was the same gun, and that the picture was taken a few months earlier. Defendant was convicted and he appealed.
* Holding: The court held that the picture of the gun was relevant to prove defendant’s ownership of the gun, and corroborate defendant’s girlfriend’s testimony that defendant owned the gun. Further, the court held that although the picture was arguably menacing, the photo’s evidentiary value outweighed any prejudicial effect.
• 401 - Relevance
U.S. v. White, 07-2404 (4/16/09)
> Defendant was charged with narcotics and weapons violations and at trial the government introduced four pieces of evidence that were challenged by defendant: (1) testimony that defendant’s counsel assisted in administering a polygraph to a witness in order to determine if she was a snitch; (2) testimony that defendant beat and choked a witness to get her to change her testimony; (3) evidence that defendant’s attorney advised him on how to evade law enforcement detection by avoiding Nextel phones and publicizing himself as a rap artist; and (4) testimony that defendant’s girlfriend was not seen driving a certain vehicle. The district court admitted all of the evidence, defendant was convicted, and he appealed.
* Holding: First, the court held that the defense counsel’s assistance with the polygraph to determine if a witness was a snitch was admissible because it showed consciousness of guilt. Second, the beating and choking of defendant’s girlfriend was proper to explain the girlfriend’s inconsistent testimony on behalf of defendant at a bond hearing. Third, the attorney’s advice on how to avoid law enforcement was direct evidence of defendant’s intent to engage in drug trafficking. Fourth, the testimony about whether defendant’s girlfriend drove a certain car was proper impeachment of her testimony that she was driving the car. Such evidence was relevant because it refuted defendant’s story as to how drugs may have come to be in his vehicle. Accordingly, the district court’s rulings were affirmed.
• 402 - Relevance
U.S. v. Vasilakos, 05-3166 (11/21/07)
> Defendant was a manager for a company, and was charged with conspiracy and mail fraud for defrauding the company of large sums of money. At trial, defendant offered evidence to show that corporate officers of the company condoned defendant’s actions and that they also defrauded the company. The district court refused to admit the evidence and defendant challenged the district court ruling on appeal.
* Holding: The court held that defendant’s proffered evidence was not relevant under FRE 402 because it had no tendency to show that it was less probable that defendant acted with intent to defraud. Even if certain executives approved of defendant’s conduct, and committed fraud themselves, this evidence could not negate defendant’s intent to defraud the company. Accordingly, the district court’s ruling was affirmed.
• 401/403 - Relevance/Undue Prejudice
U.S. v. Wheaton, 06-4080 (2/19/08)
> Defendant was charged in a drug conspiracy. At trial the government introduced a picture of a gun that was found in a home owned by a codefendant, which defendant frequently used to sell drugs. Upon defendant’s conviction, he appealed and argued that the picture of the gun was not properly admitted.
* Holding: First, the court held that the picture of the gun was relevant because, although no firearm was charged, the court found that firearms, “as tools of the drug-trafficking trade, are probative evidence in drug prosecutions.” Further, the court ruled that a sufficient connection was made between defendant and the residence where the firearm was found. Second, the court held that any prejudice was cured by the district court’s instruction that the jury should not consider the picture of the gun as proof of defendant’s bad character. Accordingly, admission of the evidence was affirmed.
• 401/403 - Relevance/Undue Prejudice
U.S. v. Lawson, 04-4480 (8/1/08)
> Defendant was charged with several other individuals with RICO violations. One of the predicate acts was the murder of a man by defendant. At trial, defendant challenged the relevance and prejudicial effect of three pieces of evidence: (1) the murder of the victim; (2) video tape showing the murder; and (3) use of defendant’s nickname “Psycho.” The district court admitted the evidence, defendant was convicted, and he appealed.
* Holding: First, the court held that the evidence pertaining to the murder of the victim was directly relevant to prove a required predicate act for the RICO conviction. Thus, it could not be unduly prejudicial. Second, defendant’s complaint about the video tape was actually that it showed what looked to be someone else committing the murder. The court found that exculpatory evidence would clearly be relevant and admissible. Third, the nickname “Psycho” was not used to either identify defendant or connect him to the charge, and thus, it was improperly admitted. The court nonetheless held that the error was harmless because of the weight of the evidence against defendant. Accordingly, defendant’s conviction was affirmed.
• 401/403 - Relevance/Prejudice
U.S. v. Penney, 05-6821 (8/7/09)
> Defendant was charged with attempting to kill a federal agent. Defendant testified at trial in his own defense and claimed that he did not realize that the person he shot was a federal agent. In rebuttal, the government presented two inmate-witnesses who heard defendant state at the jail, while the charges were pending, that he wished that he had killed the agent so that the agent could not be a witness against him. Defendant was convicted and argued on appeal that the prior statement was irrelevant and unduly prejudicial.
* Holding: The court held that the statement made by defendant at the jail months after the incident was not relevant to show defendant’s intent at the time of the shooting. The court ruled, however, that the statement was relevant to attack defendant’s credibility. Defendant testified and denied saying that he wished to kill the agents. Thus, the jury could consider the later statement made by defendant at the jail in assessing whether defendant lied under oath during trial. Accordingly, the district court’s ruling was affirmed.
• 401/403 - Relevance/Prejudice
U.S. v. Warman, 05-4416 (8/18/09)
> Defendant was charged in a major drug conspiracy involving the Outlaw Motorcycle Club and at trial the government introduced numerous statements made to FBI agents and an informant. The statements related to background evidence regarding why the FBI began investigating defendant, and to a prior murder of an informant committed by the Outlaws. Defendant was convicted and argued on appeal that the statements were irrelevant and unduly prejudicial.
* Holding: The court first held that background evidence was relevant insofar as it explained the reason for the government’s investigation of defendant and certain Outlaws. Further, the court found that the statements were not unduly prejudicial because there was substantial evidence introduced at trial linking defendant to the conspiracy. Second, the court found that the evidence about an informant being murdered was inflammatory, however, (1) defendant raised no 403 argument in the district court, (2) the district court provided a limiting instruction, and (3) the jury heard significant other evidence about violence on the part of the Outlaws. Accordingly, the court found no plain error, and defendant’s conviction was affirmed.
• 401/403 - Relevance/Prejudice
U.S. v. Deitz, 05-3410 (8/20/09)
> Defendant was charged for participating in a drug conspiracy with members of the Outlaw Motorcycle Club. At trial, the government introduced the following: (1) testimony from informants that fear of the Outlaws caused them to go into witness protection; (2) testimony regarding the killing by the Outlaws of an informant; (3) t-shirts reading “snitches are a dying breed,” and a Dayton Chapter Outlaws t-shirt; and (4) drugs seized from defendant during two prior arrests. Defendant was convicted and argued on appeal that the evidence was irrelevant and unduly prejudicial.
* Holding: The court found no plain error in admission of the evidence. First, the witness protection evidence was proper because the prosecutor did not try to enhance the witnesses’ credibility with the evidence, the prosecutor did not imply that defendant threatened the witnesses, and the district court gave a proper limiting instruction. Second, the killing of a witness was inflammatory but there was other admissible evidence of violent acts by the Outlaws and the district court took action to minimize the gory details of the killing. Third, the t-shirt evidence was properly admitted because of the significant evidence about the Outlaw’s focus on retaliation against informants and to show defendant’s participation in the Outlaws. Fourth, the drug evidence was directly relevant to show defendant’s participation in narcotics. Accordingly, defendant’s conviction was affirmed.
• 403 - Prejudice
U.S. v. Wesley, 04-1626 (5/18/05)
> Defendant was charged with attempted bank robbery, and at trial the government introduced a tape recording of defendant wherein, during the course of planning the robbery, he talked about a prior conviction and prison sentence he had served. Defendant was convicted and challenged the admission of the statement on appeal.
* Holding: The court first noted that the evidence was proper under FRE 404(b) as background evidence that was part of the res gestae of the offense. The court then held that the evidence should have been excluded under FRE 403 because the unfair prejudice substantially outweighed the probative value. The court noted that the statement was relevant to show defendant’s intent to commit bank robbery, but that it was “hardly the only or the strongest evidence in that regard.” The court also commented that the case was very close on the sufficiency of the evidence. Accordingly, the case was reversed and remanded for a new trial.
• 403 - Prejudice
U.S. v. Dixon, 04-5670 (6/27/05)
> Defendant was charged with bank extortion. Defendant allegedly confessed to a man named Duke. Duke told a woman named Weems about defendant’s confession and Weems confronted defendant about it. When Weems confronted defendant, he lost all the color in his face. The government proposed to present the testimony of Weems at trial to say that defendant lost all the color in his face when she told him that Duke had claimed that he confessed. The district court ruled pretrial that the testimony of Weems was inadmissible, and the government appealed.
* Holding: The court held that Weems’ testimony was inadmissible under FRE 403. The probative value of the loss of color in defendant’s face was low, given that it could have been due to any number of factors other than guilt. The prejudicial value was extremely high given that a jury would likely go beyond the basis for which the testimony was offered and consider the substantive content of defendant’s alleged confession to Duke. This was particularly unfair where Duke was not going to testify as a witness because, at the time of trial, he did not recall the confession ever occurring. Thus, the district court’s ruling was affirmed.
• 403 - Prejudice
U.S. v. Newsom, 05-5030 (6/29/06)
> During defendant’s trial for being a felon in possession of a firearm, the district court permitted the government to ask a witness about tattoos of guns on defendant’s body. The defense then asked another witness about the tattoos, which prompted the government to ask multiple witnesses in detail about defendant’s numerous tattoos depicting guns and violence. Defendant did not object to the latter series of government questioning. On appeal, defendant challenged the tattoo evidence under FRE 403.
* Holding: First, the court held that the probative value of the evidence was substantially outweighed by its prejudicial effect. The tattoo evidence had no probative value at all in the case, and the prejudicial effect of the jury hearing that defendant had guns and violent sayings tattooed on his body was high. Because defendant did not object, however, the court applied plain error analysis. The court found that the error was plain, but that it did not deprive him of a fair trial. Accordingly, the conviction was affirmed.
• 403 - Prejudice
U.S. v. Lloyd, 04-4014 (9/1/06)
> Defendant was charged with bank robbery and at trial the government introduced 911 tapes from the bank tellers in which the tellers provided the same information about the robber as they did during their testimony at trial. Further, the government presented expert testimony that a shoe print left at the bank was of the same length and tread design as defendant’s shoe. Defendant challenged the evidence on appeal as being unduly prejudicial under FRE 403.
* Holding: First, the court held that admission of the 911 tape was not unduly prejudicial. The only difference between the 911 tape and the witness testimony at trial was the apparent emotion of the voices in the 911 tape. The court found that any prejudice resulting from emotions on the tape was minimal. Second, the court ruled that admission of the expert testimony was not unfairly prejudicial. Defendant was found within a short proximity to the bank right after the robbery and he was wearing the shoe in question. The court held that, even though the expert could not make an exact match, the evidence carried enough probative weight that it did not violate FRE 403. Finally, the court ruled that any evidentiary error was harmless in light of the strong evidence of defendant’s guilt.
• 403 - Undue Prejudice
U.S. v. Franco, 99-2194 (4/11/07)
> Defendant was charged with possession of cocaine with intent to distribute and at trial the defendant pursued an entrapment defense. In response, the government presented testimony regarding defendant’s prior drug trafficking activities. After his conviction, defendant argued on appeal that the evidence of his prior drug trafficking should have been excluded under FRE 403.
* Holding: When a district court rules on the admissibility of evidence, it should expressly weigh the probative value of the evidence and its prejudicial effect pursuant to FRE 403. In the case, the court found that the district court did not make an explicit finding under FRE 403. The court nonetheless held that a reversal was unwarranted because (1) defendant had not requested a 403 analysis in the district court and (2) the probative value of the evidence in rebutting defendant’s entrapment defense was not substantially outweighed by it prejudicial effect. Accordingly, the conviction was affirmed.
• 403 - Undue Prejudice
U.S. v. Stout, 06-6353 (12/20/07)
> Defendant was charged with receipt and possession of child pornography. Prior to trial, the government notified defendant that it intended to introduce defendant’s prior convictions for surreptitiously videotaping a friend’s fourteen year old daughter taking a shower. Defendant moved in limine to exclude the prior conviction, claiming that it was substantially more prejudicial than probative. The district court granted the motion and the government filed an interlocutory appeal.
* Holding: In analyzing evidence under FRE 403, the court must weigh the probative value of, and the need for, the evidence against the harm likely to result from its admission. In the case, the court found that, although the government’s need for the evidence was strong (because it had little other evidence of intent or knowledge), the probative value of the evidence was relatively weak. In contrast, the court ruled that the prejudicial effect was high because the evidence was both inflammatory and distracting. In the district court’s words, the prior conviction evidence was “more lurid and frankly more interesting than the evidence surrounding the actual charges,” and “frankly, creepier.” Accordingly, the court found no abuse of discretion in the district court’s decision to exclude the evidence in the government’s case in chief, and affirmed the district court’s ruling.
• 403 - Undue Prejudice
U.S. v. Guthrie, 07-6215 (3/2/09)
> Defendant was charged with car-jacking and firearm offenses. At trial, the government introduced a recording of a 911 call the victim made while in the car-jacked vehicle with defendant, and a video recording of the high speed chase defendant had with the police. Defendant argued that the evidence should be excluded pursuant to FRE 403. The district court admitted the evidence, defendant was convicted, and he appealed.
* Holding: The court held that the only prejudicial effect of the evidence on defendant’s case was the “legitimate probative force of the evidence.” The court found no improper nature to the evidence. Accordingly, defendant’s conviction was affirmed.
• FRE 404(a) - Profile Evidence
U.S. v. Baldwin, 04-3199 (8/10/05)
> Defendant was charged with wire fraud and conspiracy to defraud as a result of faking his own kidnaping. During the investigation, and before the FBI determined that defendant was faking, the FBI obtained a character profile from defendant’s father in order to determine how defendant might react to the kidnappers. The profile portrayed defendant as a rich playboy who lived off of his parents’ money and did not want to work. At trial, the government introduced the profile. Defendant appealed.
* Holding: FRE 404(a) prohibits admission of evidence of a person’s character in order to prove action in conformity therewith. Profile evidence falls into this category, but it may be nonetheless admissible if it is used to show why a defendant was stopped for investigation, to rebut inferences raised by a defendant’s testimony, or to show modus operandi. In the case, the court held that the district court erred in admitting the profile evidence. Defendant had not questioned the FBI agent’s state of mind or challenged his investigative technique. Further, the personality profile had nothing to do with the staged kidnaping, and thus did not show modus operandi. Even though the court found error, the error was harmless because the evidence against defendant was otherwise overwhelming, and thus the conviction was affirmed.
• 404(b) - Background Evidence
U.S. v. Frederick, 03-1895 (5/5/05)
> Defendant was charged with being a felon in possession of a firearm, distributing marijuana, and a § 924(c) charge. At trial, a witness testified that he had sold defendant the gun in question, that the gun was purchased by defendant to protect himself from drug dealers who were after him, and that the witness and defendant had dealt drugs and guns previously. Defendant appealed and argued that the testimony should have been excluded pursuant to FRE 404(b).
* Holding: Evidence of other acts of a defendant may be admitted as res gestae or “background” evidence. Under such a rule, the prior acts must be “inextricably intertwined” with the charged offense. The court found the prior dealings the witness had with defendant fell within the background evidence exception and were properly admitted to complete the story of the sale of the gun to defendant. Thus, the conviction was affirmed.
• 404(b) - Background Evidence
U.S. v. Martinez, 03-3833 (11/17/05)
> Defendant was charged in a drug conspiracy and at trial the government introduced the fact that defendant was previously convicted in state court for three crack sales. The crack sales at issue were a small part of the drug conspiracy charged in the indictment and were listed as overt acts in the conspiracy. Defendant argued on appeal that admission of the convictions was improper under FRE 404(b).
* Holding: The court held that background or res gestae evidence does not implicate 404(b) if it is evidence that is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness’ testimony, or completes the story of the charged offense. In the case, the court ruled that the defendant’s prior crack sales were inextricably intertwined with the charged conspiracy, and were accordingly not excludable under 404(b).
• 404(b)/403 - Intrinsic Acts
U.S. v. Jackson, 05-6014 (1/12/07)
> Defendant was charged in a drug conspiracy and at trial the government introduced evidence of a drug sale that was the subject of a separate state prosecution. The drug sale occurred during the time period alleged in the federal conspiracy charge and in the same location. Upon defendant’s conviction, he appealed and argued that the evidence was improperly admitted.
* Holding: FRE 404(b) excludes evidence of prior bad acts of a defendant that are used to show her propensity to commit a crime. Where other acts, however, are “inextricably intertwined” with the evidence of the crime charged in the indictment, FRE 404(b) is not implicated. In the case, the court found that the prior drug sale was “inextricably intertwined” with the conspiracy charge, and accordingly, the evidence was properly admissible. Further, the court noted that, because the evidence was properly introduced to prove the conspiracy charge, its admission was not prohibited by FRE 403.
• 404(b) - Intrinsic Acts
U.S. v. Gonzalez, 06-3303 (8/30/07)
> Defendant was charged with possession of cocaine with intent to distribute. On the day of trial, the government disclosed that it intended to introduce evidence to show that a coconspirator trained defendant in the drug trade and that defendant accompanied the coconspirator on two prior smaller transactions before the charged conduct occurred. Defendant argued for the first time on appeal that the government had not provided the required notice of the 404(b) evidence before trial.
* Holding: Because defendant failed to object at trial, the court applied plain error review. The court held that the evidence regarding the coconspirator’s training of defendant in the drug trade and the two prior transactions were “intrinsic” evidence to the charged transaction, and thus were not properly deemed 404(b) evidence. Although the court deemed the matter a close case, the testimony of the coconspirator established “evidence of an ongoing drug conspiracy” and a “continuing pattern of illegal activity” that was “intrinsic” to the charged offense. Further, the court found that, even if the evidence properly fell under 404(b), defendant’s substantial rights were not affected by the government’s failure to provide notice. Accordingly, the court found no plain error and the district court ruling was affirmed.
• 404(b) - Motive
U.S. v. Garcia-Meza, 03-2485 (4/5/05)
> Defendant was tried and convicted of first degree murder of his wife. At trial, the government introduced evidence that the defendant had assaulted his wife five months prior to the murder. Defendant argued on appeal that the prior assault was inadmissible under FRE 404(b).
* Holding: The court found that the prior assault was admissible to show motive. The government established that both the murder and the prior assault were committed based upon defendant’s jealousy of his wife’s actions with other men. Thus, the prior assault was admissible to show defendant’s motive to commit the murder. The court further found that the probative value of the evidence substantially outweighed its prejudicial effect.
Thus, the admission of the evidence was affirmed.
• 404(b) - Absence of Mistake/Motive
U.S. v. Abboud, 04-3942 (2/24/06)
> Defendant was charged with bank fraud and tax crimes and at trial the government introduced evidence that defendant had paid employees “under the table.” Defendant argued on appeal that the evidence was inadmissible pursuant to FRE 404(b).
* Holding: Four factors must be met before evidence is admissible under Rule 404(b): (1) the proponent must identify the specific purpose for the evidence; (2) the court must decide whether the identified purpose is at issue in the case; (3) the court must weigh the probative value against undue prejudice; and (4) the court must instruct the jury as to the limited use of the evidence. First, the court found that the “under the table” payments were admissible to show lack of mistake for the tax violations. Defendant had claimed that the failure to file taxes was due to inadvertence. The court found that the secret payments properly attacked defendant’s good faith in failing to file the returns. Further, the court held that the secret payments were admissible to show motive in the bank fraud charges. Defendant had engaged in check kiting, and the “under the table” payments showed that defendant had cash flow problems, and thus a motive to commit check kiting. Finally, the court found that the district court had provided a proper limiting instruction. Accordingly, the admission of the evidence was affirmed.
• 404(b) - Absence of Mistake/Intent
U.S. v. Bell, 06-6248 (2/14/08)
> Defendant was charged with possession of large amounts of marijuana and crack with intent to distribute based upon narcotics that were found in his girlfriend’s residence. During the trial, defendant denied knowing the drugs were there or that they were his. The district court permitted the government to introduced four prior state drug distribution convictions in order to show absence of mistake or accident, and intent. Upon his conviction, defendant appealed.
* Holding: The court held that the prior convictions were not properly admitted to show either absence of mistake, or intent. Regarding absence of mistake, the court held that defendant had raised that defense at trial. To the contrary, his defense was that he did not know the drugs were there and they were not his. Thus, absence of mistake or accident was not at issue in the case. Regarding intent, although the issue of intent was an element that the government was required to prove, the prior convictions were not sufficiently similar temporally or in terms of modus operandi in order to support their admissibility. Therefore, the convictions were not admissible to prove intent. The court further held that the probative value of the evidence was substantially outweighed by its prejudicial effect under FRE 403, and that the admission of the evidence was not harmless. Accordingly, defendant’s conviction was reversed.
• 404(b) - Motive
U.S. v. Rayborn, 05-6894 (7/26/07)
> Defendant was a pastor who was charged with arson and mail fraud for burning his church and filing for the insurance proceeds. At trial, the government offered evidence to show defendant’s exercise of control over church finances, including proof of using church funds for personal expenditures. Defendant argued that the evidence was inadmissible under FRE 404(b). The district court admitted the evidence, defendant was convicted, and he appealed.
* Holding: The court applies a three part test in order to determine if evidence is admissible under FRE 404(b): (1) whether the evidence was sufficient to prove that the prior acts occurred; (2) whether the evidence was admitted for a proper purpose under 404(b); and (3) whether the probative value of the evidence was substantially outweighed by its prejudicial effect. In the case, the court held that there was no dispute as to whether defendant exercised control over the church finances. Second, the court found that the evidence was properly admitted to show defendant’s motive use the insurance proceeds to his own benefit. Third, the court ruled that the probative value was not outweighed by the prejudicial effect because motive was a highly relevant issue in the case. Thus, the conviction was affirmed.
• 404(b) - Motive
U.S. v. Cody, 06-6003 (8/16/07)
Defendant was charged with two armed robberies. At trial, defendant’s wife and son testified that defendant and his family had a crack cocaine problem and that defendant’s motive to rob banks was to pay off drug debts, and to buy more crack. Defendant was convicted and appealed the admission of his family’s tesimony.
* Holding: The court held that the crack cocaine evidence was relevant to show defendant’s motive, and that it was not unduly prejudicial because it was inextricably intertwined with the robberies. Thus, the admission of the evidence was affirmed.
• 404(b) - Identity/Modus Operandi
U.S. v. Perry, 04-4506 (2/24/06)
> Defendant was charged with bank robbery and at trial the government sought to introduce another bank robbery, which happened one month after the charged bank robbery, for which defendant had already been convicted. In both of the robberies, defendant had entered the bank carrying a gun in a bookbag, sought change for $50, sought to purchase money orders, then pulled out his gun and robbed the bank. Defendant argued that the robbery conviction was inadmissible under FRE 404(b), but the district court disagreed and admitted the evidence to show identity and modus operandi. Defendant appealed.
* Holding: The court held that because the identity of the perpetrator was the central issue in the case, admission of the bank robbery conviction was appropriate under Rule 404(b). The court found that the circumstances of the two robberies were unique such that they created a “signature” for the crime. The court emphasized that two robberies need not be “identical in every detail” in order to be admitted as modus operandi under Rule 404(b). Finally, the court ruled that the probative value of the evidence was not substantially outweighed by its prejudicial effect. The court noted that the district court gave an appropriate limiting instruction to the jury on multiple occasions regarding its use of the evidence. Accordingly, the conviction was affirmed.
• 404(b) - Preparation/Identity/Intent
United States v. Davis, 05-2465 (11/13/08)
> Defendant was charged with conspiracy and distribution of drugs. At trial, the government introduced evidence to show that defendant utilized his cousin to act as an intermediary to sell crack to a third party. Over defendant’s objection, the government also introduced evidence to show that defendant and his cousin sold marijuana on a prior occasion using a similar arrangement. At the government’s request, the district court admitted the prior sale, pursuant to FRE 404(b), to prove preparation and identity. The court provided a limiting instruction to the jury on both theories. Defendant was convicted of both conspiracy and distribution, and he appealed.
* Holding: First, the court held that preparation was not at issue in the case because the government theory of the case made no suggestion that the prior marijuana transaction was a preliminary step to the overall success of the conspiracy, or that the marijuana sale was a necessary precursor to the crack sale. Second, the court held that identity was not at issue in the case because there was no question that defendant was the person who sold the crack. Lastly, the court held that the evidence may have been properly admissible to show intent because both charges were specific intent crimes. The district court, however, did not provide a limiting instruction to the jury regarding intent, and thus, it was not a proper basis to admit the evidence. Accordingly, the court held that the district court erred in admitting the prior act evidence. The court found that the error was harmless in relation to the distribution count (for which the evidence was overwhelming), but not harmless in relation to the conspiracy count. Thus, the court reversed defendant’s conviction for conspiracy.
• 404(b) - Intent
U.S. v. Jones, 03-6239 (4/15/05)
> Defendant was charged in a meth conspiracy, and at trial, defendant’s friend testified that defendant had taught him to make meth three years earlier, and that he had seen defendant make meth several times. The court admitted the testimony to show intent pursuant to FRE 404(b). Defendant argued that the prior meth activities were too old to be probative.
* Holding: The court found no abuse of discretion in the admission of the testimony. There is no absolute rule on the age of prior acts regarding their admissibility. The court concluded that three year old meth manufacturing conduct was sufficiently probative to be admitted to show intent under 404(b). Thus, the admission of the evidence was affirmed.
• 404(b) - Knowledge/Intent
U.S. v. Matthews, 04-6398 (3/14/06)
> Defendant was indicted for drug and weapon charges and at trial claimed that he had found crack cocaine on the ground and picked it up, not knowing what it was. During rebuttal, the government presented an informant who had purchased drugs from defendant approximately eight years earlier. The witness was someone uncertain about the exact time period, but was “emphatic” that he had purchased the drugs from defendant. Defendant appealed and argued that the testimony of the informant was improper under FRE 404(b).
* Holding: In assessing the admission of prior acts evidence under Rule 404(b), the court must consider three issues: (1) whether sufficient evidence existed that the prior act occurred; (2) whether the evidence was admissible for a proper purpose under Rule 404(b); and (3) whether the evidence was admissible under Rule 403. In the case, the court first found no clear error in the district court’s conclusion that the prior drug sale occurred. Second, the court held that the evidence was admissible to show intent and knowledge. Defendant had put his knowledge of the bag’s contents at issue by his cross examination of the police officer. Because possession of crack with intent to distribute is a specific intent crime, the court found that Rule 404(b) permitted the admission of the testimony. Third, even though the prior drug sale was eight years old, the court found no abuse of discretion in the Rule 403 analysis because, as the court stated, “even eight-year-old drug sales were probative as to whether [defendant] could identify the contents of the bag as cocaine.” Thus, the conviction was affirmed.
• 404( b) - Intent
United States v. Fraser, 05-1423 (6/1/06)
> Defendant was charged with a counterfeit check scheme. At trial, defense counsel claimed in opening statement that defendant had been “duped” into being involved in the scheme by another individual. The district court then permitted the government to introduce portions of a book defendant had written called “The Birth of a Criminal” wherein defendant described the same kind of check scheme that was charged in the case. Defendant appealed and challenged the admission of the quotes from his book under FRE 404(b).
* Holding: Before admitting “other acts” evidence under FRE 404(b), the court must determine whether (1) there is sufficient evidence that the “other act” occurred, (2) the “other act” is admissible for a proper purpose, and (3) the evidence is admissible under FRE 403. First, the court held that there was sufficient evidence that defendant wrote the book because his picture was on the cover, and it was found on his website. Second, the court held that the quotes from the book were admissible to show defendant’s intent. The court found that the book was relevant to prove that defendant had not been tricked into participating in the check scheme. Third, the court ruled that the evidence had a very high probative value and that defendant suffered no substantial undue prejudice. The court also emphasized that the district court had given a limiting instruction regarding the jury’s use of the evidence. Accordingly, the conviction was affirmed.
• 404(b) - Intent/Identity
U.S. v. Ayoub, 06-1610 (8/16/07)
> Defendant was charged with being a felon in possession of a firearm, and possession of marijuana with intent to distribute. The charges were based on a gun and drug trafficking evidence that were found in defendant’s residence. At trial, the government introduced evidence to show that an informant purchased marijuana from defendant on four occasions before the government executed a search warrant on the home. Defendant objected to the evidence under FRE 404(b). The district court admitted the evidence, defendant was convicted, and he appealed.
* Holding: First, the court held that the evidence was properly admitted to show both intent and identity. The prior sales were probative of defendant’s intent to sell the marijuana found in the home, and they were also probative to show defendant’s identity as the possessor of the marijuana found in the home. Further, the court ruled that the probative value of the evidence outweighed any prejudicial effect that the evidence had. Finally, the court found unavailing defendant’s argument that the prior-sales evidence was unnecessary because the case against defendant was overwhelming . The court remarked that this fact only tended to prove that any error in the admission of the prior-sales evidence was harmless error. Accordingly, the admission of the evidence was affirmed.
• 404(b) - Intent
U.S. v. Stephens, 07-1907 (11/25/08)
> Defendant was charged with two counts of drug trafficking. At trial, the government sought to introduce defendant’s prior conviction for drug trafficking in order to show defendant’s intent to sell the drugs he was carrying at the time of his arrest. The district court admitted the prior conviction, defendant was convicted, and he appealed.
* Holding: Regarding intent, the court held that, generally, prior drug-distribution convictions may not be used to demonstrate the intent to distribute drugs in a later case. However, the court ruled that, even if the district court erred, the error was harmless because the evidence supporting defendant’s guilt was overwhelming. Accordingly, the district court’s ruling was affirmed.
• 404(b) - Knowledge
U.S. v. Holden, 07-5573 (2/24/09)
> Defendant was charged with falsifying facts in a matter within the jurisdiction of the EPA. Defendant’s trial defense was that one of his employees fabricated test results at defendant’s water treatment without his knowledge. At trial, the government introduced evidence that a civil engineer conducted an evaluation of defendant’s plant eight years earlier, at a time when the employee was not working for defendant, and found the same types of reporting inaccuracies. Defendant was convicted and argued for the first time on appeal that the evidence should have been excluded under FRE 404(b).
* Holding: The court held that evidence offered for a “non-propensity purpose” may be admitted under Rule 404(b). The court found that the evidence regarding the prior evaluation of the plant was admissible to refute defendant’s claim that he was without knowledge of the fabricated nature of the test results regarding his plant. Accordingly, the court found no plain error and affirmed defendant’s conviction.
• 404(b) - Knowledge/Intent
U.S. v. Jenkins, 08-5203 (2/9/10)
> Defendant was charged with being a felon in possession of a firearm and possession of narcotics with intent to distribute. The only defense at trial was whether defendant constructively possessed the gun and narcotics, which were in plain view in the home in which defendant was living on a part-time basis. At trial, the government introduced defendant’s prior conviction for drug trafficking out of the same house that occurred 8 years earlier. Defendant objected to the evidence, but the district court admitted it under FRE 404(b) to show knowledge and intent. Defendant was convicted and he appealed.
* Holding: First, the court held that the evidence was not properly introduced to prove knowledge. The court found that knowledge was not at issue in the case in any meaningful sense because the drugs were in plain view throughout the house, so no one could have inadvertently possessed them. Accordingly, knowledge was not a proper basis for admission of the evidence.
Second, the court held that, under Sixth Circuit precedent, intent was arguably at issue because the offense was a specific intent crime. The court held, however, that it was a difficult question as to whether defendant’s prior conviction was actually probative of intent. The court instead decided the case on the grounds that the evidence was substantially more prejudicial than probative. The court found that whatever “microscopic” probative value the prior conviction had, it was unnecessary in the case given the government’s other evidence of knowledge and intent. The court noted that one factor in the 403 analysis is the “availability of other means of proof.” The court found that the government had solid proof of knowledge and intent apart from defendant’s prior conviction, and that the government conceded as much in making its argument that the error was harmless. Thus, the court ruled that the prejudicial effect of the evidence substantially outweighed its probative value. Because the court held that the evidence against defendant was not overwhelming, the court found no harmless error and reversed defendant’s conviction.
• 405(a) - Cross Examination/Specific Acts
U.S. v. Matthews, 04-6398
> At his trial on drug and weapon charges, defendant presented a witness who testified that defendant was a good person and that she had never known him to get into trouble. During cross examination, the prosecutor asked the witness if she was aware of “defendant’s prior drug trafficking activities in 1995 and 1997.” Defendant challenged on appeal that the prosecutor’s use of defendant’s prior drug trafficking during cross examination was improper.
* Holding: FRE 405(a) permits a party to cross examine a witness regarding specific incidents of conduct after opinion testimony has been offered on direct. In the case, the court first held that the witness had offered opinion testimony about defendant’s character on direct examination. Second, the court found no error in the form of the prosecutor’s question on cross examination because the prosecutor had a good faith basis to believe that defendant had committed the prior activities. The government had an informant, who testified in rebuttal, about the activities. Third, the court found that the prosecutor had improperly insinuated that there were two prior incidents of drug trafficking by referring to “1995 and 1997" when in fact there was only one prior incident. Because defendant had not specifically objected to the reference to two dates, however, the court applied plain error analysis and concluded that the prosecutor’s error did not likely affect the verdict. Accordingly, the conviction was affirmed.
• 405 - Reputation or Opinion Evidence
U.S. v. Seymour, 05-1643 (10/27/06)
> Defendant was charged with sexual assault on federal property and at trial he attempted to introduce the testimony of a witness to show that he and the victim were intimate with each two years after the alleged sexual assault. The district court excluded the testimony and defendant appealed, arguing that it should have been admitted under FRE 405.
* Holding: The court held that FRE 405 only permits the use of specific instances of a person’s conduct when inquired into on cross examination (Rule 405(a)), or where the pertinent character trait is “an essential element of a charge, claim, or defense” (Rule 405(b)). First, the court found that defendant failed to inquire about the victim’s intimate conduct with defendant during cross examination of the victim. Second, the court held that the extrinsic evidence, through testimony of a third party witness, was not proper because the victim’s character was not “an essential element of a charge, claim, or defense.” Thus, the district court ruling was affirmed.
• 413/414 - Prior Sexual Assault Evidence
U.S. v. Seymour, 05-1643 (10/27/06)
> Defendant was charged with sex offenses, against both a minor and an adult, on federal property. During trial, the government introduced, pursuant to FRE 413, evidence of two prior uncharged sexual assaults defendant had committed against two other adult women. Defendant appealed and argued that, in a prosecution for sexual molestation of a child, FRE 414 prohibited the introduction of a prior sexual assault of an adult.
* Holding: FRE 413 permits introduction of a prior sexual assault in a prosecution for sexual assault. FRE 414 permits introduction of a prior sexual molestation of a child in a prosecution for sexual molestation of a child. In the case, the court held that FRE 414 did not prohibit the introduction of a prior sexual assault of an adult in a prosecution for molestation of a child where the evidence was otherwise admissible under FRE 413. Because the court found that defendant’s two prior sexual assaults were admissible under FRE 413 and were not unduly prejudicial under FRE 403, the court affirmed the district court’s ruling.