Evidence - Marc T. Treadwell

• Publication year: 2008

Evidenceby Marc T. Treadwell^*

I. Introduction

During the survey year, according to a Westlaw search, the United States Court of Appeals for the Eleventh Circuit rendered 2252 opinions. However, only 375 of these opinions were "published," which is consistent with the Eleventh Circuit's recent trend of sharply limiting the number of published decisions. The court's view on this issue is illustrated by Internal Operating Procedure ("IOP") 5 in Eleventh Circuit Rule 36-2¹ :

The unlimited proliferation of published opinions is undesirable because it tends to impair the development of the cohesive body of law. To meet this serious problem it is declared to be the basic policy of this court to exercise imaginative and innovative resourcefulness in fashioning new methods to increase judicial efficiency and reduce the volume of published opinions.²

The Eleventh Circuit applies this policy with vigor, perhaps to the disappointment of lawyers looking for helpful authority to cite when appearing before the Eleventh Circuit or the district courts within the circuit. The problem, if it can be called a problem, is exacerbated by the fact that a significant percentage of published opinions are cases that raise issues about aliens, particularly the deportation of aliens, and federal sentencing guidelines. These may well be areas of the law that are in need of precedential guidance, but lawyers looking for published cases addressing more traditional issues like evidence will find relatively few cases.

The end result, or at least the end result for those writing survey articles on Eleventh Circuit evidence decisions, is that there is not much to write about, making this Article the shortest of the Author's twenty-one Eleventh Circuit evidence survey articles.

In addition to limiting the number of published opinions, some circuits have forcefully discouraged litigants from citing unpublished opinions. The Eleventh Circuit never quite went this far, but an earlier version of its IOP made clear that "[r]eliance on unpublished opinions is not favored by the court."³ Many argued that courts should not be allowed to restrict citations to their unpublished opinions. The Judicial Conference agreed and proposed a rule prohibiting any court from enacting a rule barring parties from citing to unpublished opinions.⁴ Newly adopted Federal Rule of Appellate Procedure 32.1⁵ provides that courts may not prohibit the citation of unpublished federal judicial decisions issued on or after January 1, 2007.⁶ Currently, the Eleventh Circuit allows the citation of unpublished opinions as persuasive authority but not as binding precedent.⁷

II. Article IV. Relevancy

Federal Rule of Evidence 404⁸ is the principal rule governing the admissibility of "extrinsic act evidence"—evidence of acts and transactions other than the one at issue—offered for substantive, as opposed to impeachment, purposes.⁹ Rule 404 is intended to prevent the admission of evidence of prior misconduct offered solely to prove that a defendant is more likely to have committed the charged offense.¹⁰ This evidence is sometimes called "propensity evidence"¹¹ and is generally not admissible to prove the defendant's propensity to commit a criminal act.¹² The Eleventh Circuit applies a three-part test, sometimes called the Beechum test, to determine the admissibility of extrinsic act evidence.¹³ First, the extrinsic act evidence "must be relevant to an issue other than the defendant's character."¹⁴ Second, the prosecution must prove the defendant committed the extrinsic act.¹⁵ Third, the evidence must survive a Rule 403¹⁶ balancing test,¹⁷ meaning the probative value of the extrinsic act evidence must be substantially outweighed by its prejudicial effect.¹⁸ However, Rule 404(b) provides that extrinsic act evidence may be admitted to prove matters such as motive, preparation, knowledge, intent, scheme, or plan.¹⁹

Viewed in a practical light, it is easy to understand why Rule 404(b) restricts the admission of extrinsic act evidence. In a close case, evidence that a defendant has committed or likely committed other crimes can have a huge impact on jurors. If a defendant committed prior drug offenses, jurors may think he or she is more likely to have committed the charged drug offense. Indeed, it seems that prosecutors most often resort to the use of extrinsic act evidence in drug cases. The defense will then aggressively, but usually unsuccessfully, fight to exclude the evidence of prior drug-related activity. In these cases, courts typically rule that evidence of prior, supposedly similar, drug activity is admissible to establish the defendant's intent to engage in the charged drug activity.²⁰ In 2005 the Eleventh Circuit briefly signaled a change in its Rule 404(b) analysis in drug cases, holding that a plea of not guilty does not always open the door for the admission of prior drug convictions to prove intent.²¹ However, four months after denying the government's motion to reconsider its case, the Eleventh Circuit sua sponte vacated the decision.²² The court issued a per curiam opinion, holding that a not guilty plea in a drug conspiracy case makes the defendant's intent a material issue that opens the door for the admission of evidence of prior drug convictions.²³

The Eleventh Circuit's Rule 404(b) analysis in United States v. Edouard²⁴ is typical of the court's approach to extrinsic act evidence. In this drug conspiracy case, the defendant contended that the district court improperly admitted testimony that in 1995 and 1996 he had imported cocaine into the United States through the use of couriers.²⁵ After applying the Beechum test, the Eleventh Circuit disagreed.²⁶ Under the first prong, the court noted the extrinsic act evidence was admissible to prove the defendant's intent to engage in the charged conspiracy.²⁷ The defendant's not guilty plea made intent a material issue and thus opened the door for the admission of extrinsic act evidence to prove intent.²⁸ Because the same state of mind was required for both the conspiracy charge and the extrinsic offenses, the extrinsic offenses were relevant to prove the defendant's attempt to commit the charged offense.²⁹

The second prong of the Beechum test—whether the government has sufficiently proven the defendant committed the extrinsic offenses—appeared to be a more problematic issue for the government.³⁰ The defendant had not been charged and, therefore, had not been convicted of committing the extrinsic offenses.³¹ However, a conviction is not necessary to render evidence of extrinsic offenses admissible.³² Rather, the prosecution may introduce evidence of extrinsic acts if a jury would be able to find, by a preponderance of the evidence, that the acts actually occurred.³³ The government's evidence consisted of testimony from the defendant's two brothers. In exchange for possible sentence reductions, the brothers testified that they smuggled cocaine into the United States for the defendant on commercial airlines in return for payment. The defendant presented no evidence to rebut this testimony.³⁴ The Eleventh Circuit held that this testimony was sufficient to allow a jury to conclude by a preponderance of the evidence whether the defendant committed the prior acts.³⁵ Under the third prong of the Beechum analysis—the Rule 403 balancing test—the defendant primarily argued that the extrinsic acts were too remote and different to be admissible. His alleged prior smuggling involved human couriers, while the charged offense alleged smuggling cocaine in cargo.³⁶ However, because both schemes involved smuggling cocaine into the United States, the fact that different means were used did not render the extrinsic acts inadmissi-ble.³⁷ The charged conspiracy allegedly began in 1998, and thus, the 1995 and 1996 activities were not too remote to be inadmissible.³⁸ Accordingly, because the extrinsic act evidence satisfied Rule 404(b), the district court did not err in admitting the evidence.³⁹

Similarly, in United States v. Tampas,⁴⁰ the defendant contended that the district court improperly admitted extrinsic act evidence, but the Eleventh Circuit's brief treatment of this argument undoubtedly left the defendant unsatisfied. In Tampas the defendant was charged with conspiracy to commit embezzlement from a Young Men's Christian Association ("YMCA"). The defendant, with the aid of a YMCA employee, allegedly received payments for services that either he did not perform or had a value substantially less than the payments he received. The YMCA employee, who was charged as the defendant's coconspirator, had previously been convicted of failing to remit payroll taxes. At the defendant's trial, the government introduced evidence of the coconspira-tor's prior conviction.⁴¹ The defendant contended that this evidence was extrinsic and inadmissible pursuant to Rule 404(b). The defendant further argued that he had not been charged with tax related crimes, yet the jury heard evidence that his coconspirator had committed tax fraud.⁴² The Eleventh Circuit noted that the Government did not offer the evidence to implicate the defendant in the tax fraud scheme but to show that because of the coconspirator's tax fraud the YMCA had funds available to finance the kickback conspiracy.⁴³ However, the court did not discuss why it was relevant for the Government to show the reason the funds were available in addition to showing that the funds were available. The defendant likely argued that it would be sufficient to show that the conspirators arranged for the defendant to be overpaid and that the YMCA had resources to fund the kickback scheme. The court did not explain why it was necessary for the jury to know that the reason the YMCA had the cash on hand...