In multi-defendant cocaine conspiracy trial, FRE 105 was satisfied by trial judge’s limiting instruction prior to deliberations that the jury give “separate, personal consideration to the case of each individual defendant” and to “analyze what the evidence in the case shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant”; although the instruction was provided immediately prior to deliberations rather than contemporaneous with the testimony, the instruction satisfied the obligation to instruct jury when evidence can be admitted against one party and not others, in United States v. Beasley, 495 F.3d 142 (4th Cir. July 25, 2007) (No. 04-4107)
FRE 105 requires that if evidence is admissible for one purpose but not others, or against one party but not others, if requested by a party, the trial judge should instruct the jury on the proper scope of the evidence. A prerequisite to the applicability of FRE 105 is that a party requests the limiting instruction. While limiting instructions are common in most trials, cases involving a dispute about the application of FRE 105 that authorizes the instructions, are rare. Two years ago, the Fourth Circuit considered the scope of FRE 105 and the obligation of counsel to request a limiting instruction as a prerequisite to application of FRE 105.
In the case, defendant Beasley was charged with participating in a multi-defendant cocaine conspiracy. At trial, the defendant requested the court give “a contemporaneous limiting instruction under Federal Rule of Evidence 105 to instruct the jury when evidence was admissible against one party, but not another.” Beasley, 495 F.3d at 150 (emphasis added). Apparently the trial judge decided to provide the instruction at the conclusion of the case rather than contemporaneously with the introduction of particular evidence, as requested. The defendant was convicted and appealed, contending in part that the trial judge erred in not providing a contemporaneous limiting instruction.
The Fourth Circuit affirmed the trial judge’s delivery of limiting instructions at the close of trial rather than contemporaneous with the admission of particular evidence. The circuit briefly noted that FRE 105 concerned limiting instructions when “evidence was admissible against one party, but not another.” While the rule itself specifies that the court should provide such a limiting instruction “upon request” this did not mean contemporaneously. Rather, “we have held that the timing of such an instruction is left to the discretion of the trial court.” Beasley, 495 F.3d at 150-51 (citing Klein v. Sears, Roebuck & Co., 773 F.2d 1421, 1426 (4th Cir. 1985) (“The more modern approach is to defer to the trial court's discretion as to the timing of the limiting instruction even in criminal trials”)).
The circuit found the trial court’s instruction was sufficient for purposes of FRE 105. As the circuit explained:
“In this case, the district court met its obligation under Rule 105 when it instructed the jury at the conclusion of the trial that it ‘is your duty to give separate, personal consideration to the case of each individual defendant. When you do so, you should analyze what the evidence in the case shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant or defendants.’”Beasley, 495 F.3d at 151 (citation omitted).
FRE 105 rarely arises as an issue at trial. However, as the Beasley case emphasizes, a prerequisite for its application is a request by a party for appropriate limiting instructions in the case where the court admits evidence for limited purposes. As the Fifth Circuit noted concerning the application of FRE 105:
“[I]nstructions adequately informed the jury that it was to consider the witnesses’ characterization of Dozier's conduct as ‘extortion’ or ‘blackmail’ or ‘a shakedown’ only as evidence of that witness' perception of events as they occurred, not as a conclusive legal opinion. If the defense, having lost the argument on general admissibility, desired a more precise limiting instruction on the extent to which the jury could consider such testimony, it could, and should, have requested one. See Fed. R. Evid. 105.”United States v. Dozier, 672 F.2d 531, 543 (5th Cir. 1982).
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