Evidence

• Publication year: 2013

Evidence

W. Randall Bassett

Susan M. Clare

Simon A. Rodell

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Evidence

by W. Randall Bassett^* Susan M. Clare^** and Simon A. Rodell^***

I. INTRODUCTION

The 2012 term of the United States Court of Appeals for the Eleventh Circuit¹ included precedential opinions providing helpful guidance on distinguishing the relevant from the irrelevant² and on balancing the probative value of a criminal defendant's prior convictions with the potential for unfair prejudice.³ The 2012 term also included several unpublished decisions analyzing the admissibility of expert testimony under Federal Rule of Evidence 702 and the United States Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc.⁴ Although these unpublished decisions are not binding precedent,⁵ they can provide guidance to the practitioner on the Eleventh Circuit's view of recurring evidentiary issues. The court's unpublished decisions may be of particular interest to practitioners who typically practice in Georgia

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state courts, which adopted a new Evidence Code—modeled after the Federal Rules—that became effective on January 1, 2013.⁶

The term's two biggest evidence opinions involved constitutional limits on the use of evidence in criminal trials. In the first case, the court reversed a doctor's convictions for distributing controlled substances because the doctor's Confrontation Clause⁷ rights were violated when the district court allowed a government witness to testify about autopsy reports prepared by medical examiners whom the doctor did not have the opportunity to cross-examine.⁸ In the second case, the court reversed a civil contempt judgment against a person who invoked his Fifth Amendment⁹ privilege against self-incrimination and refused to decrypt hard drives sought in a grand-jury investigation into the dissemination of child pornography.¹⁰ This Survey describes all of these decisions to provide the practitioner with a brief overview of the evidentiary landscape in the Eleventh Circuit as it evolved in 2012.

II. RELEVANCE AND PREJUDICE

A. Relevance and Irrelevance

One of the district court's primary functions during a trial is to ensure that the jury considers only evidence that is relevant to the matter and not overly prejudicial. Under Federal Rule of Evidence 401, evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action."¹¹ Under Rule 402, irrelevant evidence is inadmissible, but all relevant evidence is generally admissible unless excluded by the Constitution or by a federal statute or rule.¹² Although distinguishing between relevant and irrelevant evidence is often routine,

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each new factual situation provides an opportunity to further refine these principles. Two Eleventh Circuit cases from the past year illustrate the proper analysis of distinguishing the relevant from the irrelevant.

In Fidelity Interior Construction, Inc. v. Southeastern Carpenters Regional Council of the United Brotherhood of Carpenters & Joiners,¹³ a small contractor (Fidelity) alleged that the Southeastern Carpenters Regional Council (the Union) picketed and sent warning letters to various property owners and several general contractors to discourage them from hiring Fidelity.¹⁴ The Union's campaign proved successful—Fidelity was removed from three jobs in a single week, and several general contractors and property owners agreed never to use Fidelity again.¹⁵ Fidelity sued the Union for conducting an unlawful secondary boycott¹⁶ in violation of the National Labor Relations Act.¹⁷ At trial, the Union moved to exclude the jury from considering evidence of the Union's lawful conduct during its campaign against Fidelity.¹⁸ Refusing to exclude the evidence, the district court concluded that the jury could consider the Union's lawful conduct in determining the Union's objectives, although the jury could award damages only for losses proximately caused by the Union's unlawful conduct.¹⁹ The jury found

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for Fidelity and awarded $1.7 million in damages for the Union's unlawful secondary boycott.²⁰

On appeal, the Union iterated its argument that the district court erred in admitting evidence of the Union's lawful conduct.²¹ The Eleventh Circuit affirmed, noting that the determination of whether a union has engaged in an unlawful secondary boycott requires consideration of both the conduct and the intent of the union.²² In determining intent, "[f]act-finders may examine the entire course of conduct of a union to determine whether its actions were coercive."²³ The court noted that the content of lawful handbills, banners, and warning letters will often offer "telling evidence of secondary intent" when evaluated "in light of the entire campaign strategy and conduct [of a union]."²⁴ Because the evidence of the Union's lawful conduct was relevant to the Union's intent, the district court properly admitted the evidence.²⁵

In contrast, in United States v. Merrill,²⁶ the court considered the district court's exclusion of evidence as irrelevant under Rule 402.²⁷ In Merrill, the criminal defendant's company secured a contract with the U.S. Army to provide the Afghanistan Security Forces with approximately 500 million rounds of AK-47 ammunition.²⁸ The contract required the company to certify where the ammunition was manufactured to ensure compliance with a federal embargo on ammunition "acquired, directly or indirectly, from a Communist Chinese military company."²⁹ The company used an Albanian munitions dealer to fulfill the contract.³⁰ When a company representative arrived in Albania to oversee the shipping operation, he realized that the ammunition was in hermetically sealed tins with paper inside that bore Chinese characters, revealing that the ammunition might have been manufactured in China.³¹ Removing the papers would require destruction of the vacuum

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seal, which could render the ammunition unsafe for the battlefield. Nevertheless, the defendant decided to open the tins, remove the paper, and repackage the ammunition in cardboard boxes. The company then shipped the repackaged ammunition to Afghanistan and sent at least thirty certificates of conformance stating that the ammunition was manufactured by the supplier in Albania, rather than by a Communist Chinese military company.³²

A federal grand jury indicted the defendant for conspiracy³³ to commit false statements,³⁴ major fraud,³⁵ and wire fraud against the United States,³⁶ and for numerous substantive offenses of major fraud and wire fraud.³⁷ At trial, the defendant sought to introduce evidence that the government knew the ammunition was manufactured by a Communist Chinese military company to support defenses of public

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authority, entrapment by estoppel, and innocent intent. The district court excluded the evidence as irrelevant.³⁸

Affirming this ruling, the Eleventh Circuit noted that each of these government-knowledge defenses required the defendant to "'show that he relied on official government communications before acting in a manner proscribed by law.'"³⁹ Yet, the defendant never claimed that he knew about or relied on any government communication at the time he repackaged the ammunition and falsely certified that it was manufactured outside China.⁴⁰ Instead, he learned that the government knew the true origin of the ammunition after he had already lied to the Army and committed his crimes.⁴¹ Because the defendant did not know about the government's knowledge when he was committing his crimes, the evidence could not have helped show any innocent intent.⁴² In other words, the evidence could not have had "any tendency to make [the defendant's innocent intent] more or less probable than it would be without the evidence."⁴³ The district court therefore properly excluded the irrelevant evidence of the government's knowledge of the origin of the ammunition.⁴⁴

B. Balancing Relevance and Prejudice Under Rule 403

Although the Rules permit admission of relevant evidence in most cases, Rule 403 allows a district court broad discretion to "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . ."⁴⁵ The Rule calls for the district court to balance the probative value of evidence against any risk of

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unfair prejudice.⁴⁶ One of the most common sources of controversy in this balancing test is the district court's decision whether to allow the prosecution in a criminal case to present evidence of a defendant's prior criminal convictions.⁴⁷ In general, "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character."⁴⁸ However, such evidence is admissible under Rule 404(b) "for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."⁴⁹ Nevertheless, even if evidence would be admissible under Rule 404(b), the district court can still exclude the evidence as unfairly prejudicial under Rule 403.⁵⁰ Thus, in criminal cases the prosecution will often offer a prior conviction to show the defendant's intent or absence of mistake, and the defendant will respond that admission of the prior conviction will unfairly prejudice his defense by provoking the jury to convict based on the defendant's past criminal behavior rather than

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the conduct for which he is on trial.⁵¹ Such was the case in United States v. Sanders.⁵²

The defendant in Sanders was a commercial truck driver caught hauling 153 kilograms of cocaine hidden in a load of rotting cabbages.⁵³ At the defendant's trial on drug-trafficking and conspiracy charges, the district court admitted into evidence the defendant's 22-year-old conviction for selling 1.4 grams of marijuana. The government argued that the...