In prosecution for acting as an agent of a foreign government, in admitting evidence of other “kickback” schemes, the requirement under FRE 404(b) to show sufficient evidence “that the prior act occurred and that the defendant was the actor” was met by the uncorroborated testimony of the cooperating co-conspirator concerning the kickbacks, in United States v. Duran, 596 F.3d 1283 (11th Cir. Feb. 16, 2010) (No. 09-11446)
Before other act evidence may be admitted under FRE 404(b), the proponent of the evidence must normally present sufficient evidence to establish the act was committed by the defendant or party. Can the uncorroborated testimony of a cooperating co-conspirator be sufficient? The Eleventh Circuit recently considered this issue.
In a prosecution for conspiring to and acting in the United States as an agent of a foreign government, without prior notification to the Attorney General, the government introduced evidence of numerous “kickback” schemes between the defendant and a co-conspirator business partner to various Venezuelan national and state officials. The evidence was offered under FRE 404(b) to show intent, motive and predisposition to knowingly act as an agent of a foreign government. The co-conspirator cooperated with the government and testified about the kickbacks at trial. The defendant was convicted and on appeal challenged the admission of the kickback evidence as inadmissible under FRE 404(b).
The Eleventh Circuit affirmed the admission of the kickback evidence. As one element to admit the FRE 404(b) evidence, the proponent was required to show “that the prior act occurred and that the defendant was the actor.” Duran, 596 F.3d at 1298 (quoting United States v. Cancelliere, 69 F.3d 1116, 1124 (11th Cir. 1995) (listing elements; citation omitted)). The circuit held that the uncorroborated testimony of the cooperating co-conspirator about the kickbacks was sufficient to show “that the prior act occurred and that the defendant was the actor.” Duran, 596 F.3d at 1298. Two cases were cited in support:
- United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001) (“Here, Sears, the supplier of Dickerson’s subsequent cocaine purchases, provided sufficient proof of the extrinsic act through his testimony to support a jury’s conclusion that Dickerson did purchase and possess cocaine after the charged conspiracy ended.”)
- United States v. Bowe, 221 F.3d 1183, 1192 (11th Cir. 2000) (noting “the uncorroborated word of an accomplice … provides a sufficient basis for concluding that the defendant committed extrinsic acts admissible under Rule 404(b)”)
The other requirements to admit the kickback evidence under FRE 404(b) were also met. The evidence was admitted for a proper purpose, to show the defendant’s intent and motive. Additionally, after the defendant asserted an entrapment defense, the evidence was also admissible to show his predisposition to knowingly act as an agent of a foreign government. There was “minimal” prejudicial impact from the evidence based on its probative value and limiting instruction.
The Duran case shows that the sufficient evidence requirement for FRE 404(b) evidence does not interpose a high bar in some circuits. For another post discussing the presentation of sufficient evidence under FRE 404(b), see Sufficient Showing That Defendant Made Uncharged Internet Chats Under FRE 404(b).
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