Evidence - W. Randall Bassett and Susan M. Clare
| Publication year | 2011 |
Evidence
by W. Randall Bassett* and Susan M. Clare**
I. Introduction
Although the 2010 term of the United States Court of Appeals for the Eleventh Circuit had its share of controversial cases,1 the court's evidentiary rulings were few in number and moderate in scope. As it has in recent years, the court relied heavily on unpublished decisions to resolve cases without creating binding precedent; thus there were no major alterations to the law of evidence requiring practitioners to run to the nearest volume of the Federal Reporter. As explained in previous iterations of this Survey,2 the court cautions that its "[u]npublished opinions are not considered binding precedent."3 As a result,
The court generally does not cite to its "unpublished" opinions . . . [although it] may cite to them where they are specifically relevant to determine whether the predicates for res judicata, collateral estoppel, or double jeopardy exist in the case, to ascertain the law of the case, or to establish the procedural history or facts of the case.4
The court did, however, continue to refine its treatment of character evidence, the Confrontation Clause,5 and the reliability prong of the
* Partner in the firm of King & Spalding LLP. The Citadel (B.S., 1989); University of Georgia School of Law (J.D., 1992).
** Associate in the firm of King & Spalding LLP. The Georgia Institute of Technology (B.S., 2002); Emory University School of Law (J.D., 2006).
1. See, e.g., United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc) (a child pornography case that produced two concurrences and three separate dissents).
2. For analysis of Eleventh Circuit evidence law during the prior survey period, see Marc T. Treadwell, Evidence, 2009 Eleventh Circuit Survey, 61 Mercer L. Rev. 1113
(2010).
3. 11th Cir. R. 36-2.
4. Fed. R. App. P. 36, 11th Cir. I.O.P. 7.
5. U.S. Const. amend. VI.
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Daubert v. Merrell Dow Pharmaceuticals, Inc.6 three-part test for admitting expert testimony. This Survey will provide a brief precis on these cases and illustrate the major evidentiary trends in the Eleventh
Circuit in 2010.
II. Article IV Relevancy
Federal Rule of Evidence 4047 is the gatekeeping rule for character evidence and evidence of "crimes, wrongs, or acts" other than the conduct that gave rise to the instant litigation.8 Rule 404 is designed to ensure that a jury's deliberations will be based only on the evidence presented to it and not skewed by the good or bad character or prior conduct of a party or a witness.9 Thus, evidence of a person's character traits is inadmissible to show that the person acted according to those traits in the case at hand.10 Similarly, "extrinsic act evidence"-evidence that a party or witness acted wrongly or rightly on a previous occasion-is not admissible to prove that the person acted the same way in a given situation.11 Despite these limits, Rule 404 has such significant exceptions that much extrinsic evidence is admissible; for example, evidence showing knowledge or motive is admissible for those purposes, although not to show that a defendant acted in conformity with prior behavior.12
The court continued to rely heavily on Rule 404(b) in its decisions but frequently with only a brief recitation of the Rule's requirements. For the most part, the court's approach to extrinsic evidence is settled, and judges rarely take the time to explain the theoretical underpinnings of Rule 404(b) within their decisions.
One set of circumstances that recurred in a number of cases before the court in 2010 was the use of extrinsic evidence that is "inextricably
6. 509 U.S. 579 (1993).
7. Fed. R. Evid. 404.
8. Id. Rule 404(b) states the following:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
9. See Fed. R. Evid. 404 Advisory Committee's Note.
10. Fed. R. Evid. 404(a).
11. Fed. R. Evid. 404(b).
12. Id.
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intertwined" with a charged offense. Although Rule 404(b) does not include an exception for outside evidence that is inextricably intertwined, this has long been an exception to the general rule ofexclusion. For example, in United States v. Ellisor,13 the court characterized "inextricably intertwined" evidence as something ofan emanation from the listed exceptions in Rule 404(b), noting that such evidence "pertain[s] to the chain of events explaining the context, motive and set-up of the crime, . . . [if it] is necessary to complete the story of the crime for the
jury."
Intertwined evidence was the critical issue in United States v. Lewis.15 The defendant, Lewis, was indicted for cocaine conspiracy and attempted possession arising out of an undercover drug bust operation in South Florida in 2007. A confidential informant contacted two of the codefendants about selling two expensive automobiles in exchange for drugs. One of the codefendants, Jeree Grey, testified about this sale and Lewis's role in starting a cocaine distribution organization in 2006 with Grey and another codefendant, Carlos Spratt. Grey testified that Lewis would transport cocaine from Atlanta, Georgia, to Birmingham, Alabama, where the cocaine would be divided between the three ofthem. Grey also testified that he received a call from Spratt in late 2007 regarding the transaction at issue, and that Lewis later convinced him to trade the vehicles.16
When Lewis argued that evidence of the cocaine conspiracy was prejudicial and irrelevant to the charged offense, the United States District Court for the Southern District of Florida disagreed, and the Eleventh Circuit held that there was no abuse of discretion in that choice.17 The panel reitereated its prior holding that when a cooperating witness testifies about previous uncharged drug offenses that are inextricably intertwined with evidence of the charged offense, the testimony is admissible as intrinsic evidence.18 In the present case, Grey's testimony concerning his prior narcotics dealings with Lewis provided context for the jury and explained why Lewis and Spratt attempted to involve Grey in the current drug deal.19 Because the prior trafficking conduct was "linked closely in time as well as circumstance
13. 522 F.3d 1255 (11th Cir. 2008).
14. Id. at 1269 (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)).
15. 373 F. App'x 930 (11th Cir. 2010) (per curiam).
16. Id. at 932.
17. Id. at 931-32.
18. Id. at 932.
19. Id.
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to the instant offenses," there was no abuse of discretion in admitting the conduct to provide the jury a full understanding of the charged crime.20 Thus, Rule 404 is not applicable because intertwined evidence is intrinsic and goes to the actual charged offense.21
In United States v. McNair,22 the court swiftly disposed of the defendant's arguments that extrinsic evidence was improperly admitted, offering a litany of Rule 404(b) exceptions.23 The defendant, McNair, was one of several Jefferson County, Alabama, commissioners who took bribes from contractors in exchange for securing highly lucrative sewage-repair contracts.24 During the trials of the various commissioners, the United States District Court for the Northern District of Alabama admitted evidence of the bribes taken by the other commissioners.25 On appeal the Eleventh Circuit concluded that this evidence was admissible under any one of the Rule 404(b) exceptions.26 First, the court explained that evidence of the other bribes was inextricably intertwined with the bribes taken in each individual case.27 Second, even if the evidence was not intertwined, the evidence would be admissible to show the intent ofthe conspirators because the contractors' arguments that they gave money out of friendship or goodwill could be rebutted by showing that they gave money to other commissioners as well.28 Finally, the evidence of other bribes could show a common plan or motive, yet another Rule 404(b) exception.29 With a brief statement that there was no merit to the defendants' argument that the prejudice ofthis extrinsic evidence outweighed its probative value, the court noted that the district court had properly given limiting instructions for the Rule 404(b) evidence, refuted each of defendants' contentions, and concluded that there had been no abuse of discretion.30
20. Id.
21. See id.; see also United States v. Valere, 388 F. App'x 922, 927-28 (11th Cir. 2010) (discussing inextricably intertwined evidence and Rule 404(b)); United States v. Garcia-Barzaga, 361 F. App'x 109, 114 (11th Cir. 2010) (discussing inextricably intertwined evidence and Rule 404(b)).
22. 605 F.3d 1152 (11th Cir. 2010).
23. Id. at 1203-06.
24. Id. at 1164-65.
25. Id. at 1203.
26. Id.
27. Id. at 1203-04.
28. Id. at 1204.
29. Id.
30. Id. at 1204-06 & n.72.
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In United States v. Park,31 a confidential informant testified about his prior drug dealings with the defendant and his coconspirators.32 The court recognized that evidence of crimes other than those charged is generally not admissible under Rule 404(b).33 Such evidence is admissible, however, "if (1) [it] is relevant to an issue other than the defendant's character, (2) the act is established by sufficient proof to permit a jury to find the defendant committed the extrinsic act, and (3) the probative value of the evidence is not substantially outweighed by its undue prejudice."34
The court observed that "Rule 404(b) does not apply where the evidence concerns the context, motive,...
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