Evidence - Marc T. Treadwell

• Jurisdiction: United States,Federal
• Publication year: 2009
• Citation: Vol. 60 No. 4

Evidenceby Marc T. Treadwell^*

I. Introduction

During the survey year, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of sharply limiting the number of its "published" opinions. The reasoning behind this trend is discussed in more detail in last year's survey.¹ This survey will address several unpublished decisions which, in the opinion of the Author, are noteworthy. However, practitioners should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive authority."² However, Internal Operating Procedure 7 suggests an even more limited role for unpublished opinions:

The court generally does not cite to its "unpublished" opinions because they are not binding precedent. The court may cite to them where they are specifically relevant to determine whether the predicates for res judicata, collateral estoppel, or double jeopardy exists in the case, to ascertain the law of the case, or to establish the procedural of history or facts of the case.³

II. Article IV: Relevancy

Federal Rule of Evidence 404⁴ 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.⁵ 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.⁶ Such "propensity evidence," or character evidence, is generally not admissible to prove a defendant's propensity to commit a criminal act.⁷ However, Rule 404's prohibition against extrinsic act evidence is subject to broad exceptions.⁸ Although extrinsic act evidence is not admissible to prove a party's propensity to engage in misconduct, it is admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."⁹ Viewed in a practical light, it is easy to see why Rule 404(b) restricts the admission of extrinsic act evidence. In a close case, evidence that a defendant committed other crimes can have a profound impact on jurors. For example, jurors will likely take a dim view of a defendant with a long "rap sheet." Jurors may discern a propensity on the part of such a defendant to commit crimes, or they may conclude that a man of his character must be guilty. Nevertheless, the United States Court of Appeals for the Eleventh Circuit has opened the door considerably for the admission of extrinsic act evidence during the twenty years that the Author has surveyed evidence decisions of the Eleventh Circuit.¹⁰

The Eleventh Circuit applies a three-part test, sometimes called the Beechum¹¹ test, to determine the admissibility of extrinsic act evi-dence.¹² First, the extrinsic act evidence "must be relevant to an issue other than the defendant's character."¹³ Second, the prosecution must prove the defendant committed the extrinsic act.¹⁴ Third, the evidence must survive a Rule 403¹⁵ balancing test,¹⁶ meaning the probative value of the extrinsic act evidence must not be substantially outweighed by its prejudicial effect.¹⁷

The Eleventh Circuit's decision in United States v. Lamons¹⁸ illustrates the tremendous impact of extrinsic act evidence. In Lamons a grand jury returned a five-count indictment against the defendant. In three counts, the grand jury charged that the defendant, while working as a flight attendant, set a fire in a lavatory on a Comair plane. Two counts of the indictment charged the defendant with making a false, anonymous threat to an Air Tran flight on which the defendant was working as a flight attendant. In the defendant's first trial on all five counts, the United States District Court for the Northern District of Georgia severed the Comair counts and submitted to the jury only the counts related to the AirTran incident. The jury deadlocked on these counts and a mistrial was declared.¹⁹ In a subsequent trial on the AirTran incident, a jury convicted the defendant of "conveying false information concerning a false threat" to the AirTran flight but acquitted him of "conveying false information concerning an alleged attempt to kill and injure" AirTran passengers.²⁰

Before the trial on the Comair lavatory fire incident, the government moved in limine to admit the defendant's conviction in the trial of the AirTran incident.²¹ Apparently, the government's case was mostly circumstantial except for statements made by the defendant himself.²² When questioned about the fire by a law enforcement officer, the defendant repeated three times "that he 'did not purposely start that fire.'"²³ Although this statement suggested some involvement with the fire, it specifically refuted any intent to set the fire. Clearly, if jurors knew that the defendant had been convicted of threatening the death of passengers on another flight on which he served as a flight attendant, they would be more inclined to find that he intentionally set the lavatory fire. The defendant contended that the AirTran conviction failed to satisfy the first and second prongs of the Beechum test—the evidence was not relevant to an issue other than his character and any probative value of the evidence was substantially outweighed by its prejudicial effect. The government responded that the evidence was relevant to two issues: intent and the absence of mistake or accident.²⁴

The Eleventh Circuit affirmed the admission of the AirTran conviction.²⁵ To the Eleventh Circuit, the key was the defendant's statement that he did not intentionally set the fire.²⁶ "Rather than creating a primary inference of [the defendant's] character or his propensity to commit criminal acts, the evidence instead permitted the inference that [the defendant] deliberately set the fire based on the improbability of accident."²⁷ Turning to the Rule 403 balancing test, the court concluded that the probative value of the AirTran incident was significant.²⁸ First, "the Government's need for the evidence was strong; it may have been determinative of the issue of willfulness."²⁹ While the two incidents involved very different facts, both involved the defendant in his "capacity as a flight attendant, targeting commercial aircraft and passengers, [and] were designed to disrupt commercial aviation."³⁰ Accordingly, the probative value of the AirTran incident was not substantially outweighed by its prejudice to the defendant.³¹

United States v. Ellisor³² involved the sad case of a con artist who specialized in bilking schools and their students. The defendant sold thousands of tickets to school children and parents to attend an elaborate, but bogus, Christmas extravaganza.³³ At his trial for mail fraud in connection with the scam, the United States District Court for the Southern District of Florida admitted evidence of a similar scheme perpetrated by the defendant in Utah.³⁴ On appeal, the Eleventh Circuit concluded that evidence of the Utah scheme was relevant to an issue other than the defendant's character—that is, "his intent to defraud by promoting an illusory show"³⁵ —and that the probative value of this evidence was not substantially outweighed by its prejudicial impact.³⁶ However, the defendant contended that because the prosecution was allowed to introduce evidence ofa prior bad act, he should have been allowed to introduce a video purporting to establish that he produced many legitimate shows over the course of the previous ten years.³⁷ The Eleventh Circuit rejected this argument because evidence of good conduct is inadmissible to negate a defendant's criminal intent.³⁸ "The fact that Ellisor purportedly produced other shows does not bear on his intent to defraud with respect to the Christmas show, and is therefore irrelevant."³⁹ In short, the fact that the government can use evidence ofa prior bad act to prove intent does not open the door for a defendant to prove prior good conduct to negate intent.⁴⁰

Because virtually all appeals involving Rule 404(b) are criminal cases, it is easy to forget that Rule 404(b) applies to civil cases as well. Indeed, given the clearly prejudicial impact of evidence of other bad acts, it would seem courts should be more reluctant to admit extrinsic act evidence in criminal cases—when freedom and sometimes life are at stake—than in civil cases. The reality is that courts are much less likely to admit evidence of other transactions in civil cases. Closer examination reveals a logical basis for this disparate treatment. Civil cases rarely involve issues of intent, motive, scheme, or other similar scienter-based issues that come into play in cases of intentional misconduct. Rather, civil cases typically involve situations in which the degree of intent is much lower, certainly much less malevolent, and is often completely absent. For example, the admission of evidence of a prior automobile accident in a negligence case involving an unrelated subsequent accident only serves to prove the improper and prejudicial point that a defendant, because of negligence on a prior occasion, was more likely to have been negligent on the occasion at issue. This is exactly the type of propensity evidence that Rule 404(b) precludes. In a criminal case, on the other hand, evidence ofa prior burglary involving facts similar to the charged offense may tend to prove a defendant's motive, intent, or plan in committing the charged offense.

Still, there are civil cases in which conduct on other occasions is relevant, such as Goldsmith v. Bagby Elevator Co.⁴¹ In Goldsmith the plaintiffclaimed that his Birmingham, Alabama employer discriminated against him on the basis ofrace.⁴² The egregious facts of the case were foreshadowed by Judge Pryor's opening paragraph, which begins with the observation that Birmingham, according to Martin Luther King, Jr., "'is a symbol of segregation for the...