Federal Evidence Review

In prosecution for first-degree murder and for using a firearm in the commission of a crime of violence, testimony that defendant threatened two percipient witnesses at the scene of the crime was admissible under FRE 404(b) to show consciousness of guilt, in United States v. Begay, 567 F.3d 540 (9th Cir. June 1, 2009) (No. 07-10487)

Other act evidence under FRE 404(b) is admissible for other than propensity purposes, such as for showing a defendant's “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This list is not exhaustive and occasionally other act evidence is admissible for other purposes, such as to show a defendant's consciousness of guilt on the charged crime.

In a recent Ninth Circuit case, the panel affirmed the defendant's conviction for using a firearm during a crime of violence, but reversed the defendant's first-degree murder convictions based on insufficient evidence. In remanding the case, the circuit dismissed the defense contention that the trial court “improperly admitted evidence that he intimidated” two witnesses. In doing so in the penultimate paragraph to the opinion, the circuit displayed the general approach of many appeals courts to assess admission of evidence of consciousness of guilt with little critical assessment.

In the case, defendant Begay was charged with two first-degree murders and with using a firearm during a crime of violence. While the evidence was insufficient to support the first-degree murder charge, the circuit affirmed the firearms conviction. The charges arose from an incident near a Navajo Indian Reservation in Arizona. According to two passengers in the defendant's truck, after leaving a party, the defendant flagged down a car carrying the two victims, high school students, and inexplicably shot and killed them.

Two witnesses testified that they heard gunshots. One witness asked the defendant why he shot the victims and the defendant did not respond. During the trial, evidence was admitted that the defendant had told the two witnesses “to keep quiet” about the incident and “Begay told [witness] Clark to say nothing to the FBI and 'to watch himself.' At various times following the murders, Begay told Clark to 'watch his back.'“ Begay, __ at __. Following his conviction, for the first time on appeal, the defendant challenged the admission of the witness intimidation evidence among other issues. The defendant argued that the witness intimidation evidence “constituted improper character evidence under Federal Rule of Evidence 404(b) and was unduly prejudicial under Federal Rule of Evidence 403.” Begay, __ at __. Because the defendant failed to object to this evidence at trial, the circuit reviewed the claim for plain error.

As the circuit explained:

“there was no error at all, as a defendant's threats against a witness are admissible to show consciousness of guilt. Moreover, the district court did not err in concluding that the probative value of Begay's threats outweighed any unfair prejudice.”

Begay, 567 F.3d at 552 (citing Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897 (9th Cir. 1996) (on habeas review, no due process violation in admitting evidence of threat defendant made against two witnesses because this evidence did not render the trial unconstitutionally arbitrary and unfair in light of the defendant's offer of an imperfect self-defense theory to negate malice and because the threats were probative of defendant's consciousness of guilt; nor was the evidence particularly inflammatory or macabre and court gave limiting instruction, so that the probative value of the evidence was not outweighed undue prejudice).

Witness intimidation evidence is often relevant to show consciousness of guilt. As evidence of a guilty mind, many courts have affirmed admission of evidence of threats as not unduly prejudicial and occasionally with a bit more explanation than offered in Begay. See, e.g., United States v. Hayden, 85 F.3d 153, 159 (4th Cir. 1996) (in drug conspiracy prosecution, no error in admitting evidence that defendant wrote a witness a threatening letter because “[e]vidence of witness intimidation is admissible to prove consciousness of guilt and criminal intent under Rule 404(b), if the evidence (1) is related to the offense charged and (2) is reliable.”).

In contrast, another line of threat cases allows in evidence of threats against a witness as relevant “to explain a witness' inconsistent statements, delays in testifying, or even courtroom demeanor indicating intimidation.” United States v. Thomas, 86 F.3d 647, 654 (7th Cir. 1996). In Thomas, the circuit noted that the probative value of certain threats to a witness was substantially outweighed by its prejudicial nature and should have been excluded. However, the circuit also explained what it considered the general approach of courts towards admission of evidence that a witness had been threatened:

“[W]e have cautioned courts regarding the admission of threat evidence to assess the credibility of witnesses.... These cases indicate that trial courts must carefully consider the probative value of threat evidence that is to be admitted for the purpose of assessing the credibility of witnesses.... [T]hreat evidence has extremely limited probative value towards credibility, unless the evidence bears directly on a specific credibility issue regarding the threatened witness. For example, threat evidence can be relevant to explain a witness' inconsistent statements, delays in testifying, or even courtroom demeanor indicating intimidation.”

Thomas, 86 F.3d at 654 (citing United States v. Qamar, 671 F.2d 732, 736 (2nd Cir. 1982) (holding threat evidence admissible under Rule 403 to explain demeanor of witness who testified almost inaudibly and visibly wanted to get off witness stand); United States v. DeLillo, 620 F.2d 939, 945-46 (2nd Cir.) (holding threat evidence admissible under Rule 403 to impeach witness), cert. denied, 449 U.S. 835 (1980).