Prior bad acts are inadmissible to show propensity under FRE 404(b). However, under what circumstances can prior good acts be admitted? This question was recently considered by the Eleventh Circuit in a mail fraud case in United States v. Ellisor, 522 F.3d 1255 (11th Cir. 2008) (No. 05-14459).
Defendant Ellisor was accused of defrauding parents and schoolchildren who bought tickets to a show he claimed he was going to present, entitled "Christmas From Around the World.” After accepting the money for the show, he cancelled the show at the last minute and skipped town. Before trial, the government moved in limine to exclude evidence that the defendant had conducted legitimate business in the past, which the defendant hoped to offer to negate his fraudulent intent (e.g., “a DVD produced by him that advertised a prior show” and “correspondence purportedly demonstrating that Ellisor had produced other shows over a ten-year period.”) The trial court excluded this evidence and the defendant was convicted.
The Eleventh Circuit agreed with the trial court that the prior good acts evidence should be excluded as irrelevant: “The fact that Ellisor purportedly produced other shows does not bear on his intent to defraud with respect to the Christmas show.” Ellisor, 522 F.3d at 1270-71 (citing United States v. Camejo, 929 F.2d 610, 613 (11th Cir. 1991) (noting “[e]vidence of good conduct is not admissible to negate criminal intent”); United States v. Marrero, 904 F.2d 251, 260 (11th Cir. 1990) (“The fact that Marrero did not overcharge in every instance in which she had an opportunity to do so is not relevant to whether she, in fact, overcharged as alleged in the indictment.”)).
In addition to being irrelevant, the circuit found alternative grounds to exclude the evidence, including as an impermissible attempt to use specific acts of good character circumstantially to prove lack of intent under FRE 404(b), FRE 405(b); as inadmissible hearsay under FRE 801(c); and as risking the confusion of issues, misleading the jury, and considerations of undue delay and waste of time under FRE 403.
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A Different Approach
Not all jurisdictions reflect the stringency of the Eleventh Circuit in Ellisor. For an example of a differing result, consider the New Mexico state court of appeals case State v. Mercer, 106 P.3d 1283 (Ct. App. 2004) (In fraud prosecution involving construction contracts, the defendant could introduce testimony of at least one satisfied customer in order to rebut the prosecution evidence of fraudulent intent).
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