Federal Evidence Review

In conspiracy and mail fraud trial concerning the defendant's alleged Ponzi scheme, evidence that before the alleged scheme the defendant had worked for four different enterprises that state and federal regulators had closed for "fraudulent practices" was not admissible absent FRE 404(b) evidence linking the defendant to the fraudulent schemes that triggered the closure of the four companies by regulators; however the evidence could have been conditionally admitted subject to proof of sufficient linkage between the other acts and the defendant, in United States v. Midkiff, __ F.3d __ (8th Cir. July 16, 2010) (No. 08-3493)

When other crime or act evidence is admitted under FRE 404(b), its proponent must show a linkage between the proffered other act and the defendant's conduct. Proof connecting the defendant to the prior act is required, as noted by the Supreme Court in Huddleston v. United States, 485 U.S. 681, 689 (1988) (Proponent of the other act evidence “may [not] parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo.”) In a recent case, the Eighth Circuit emphasized that lacking a sufficient connection between the defendant and his alleged prior act or acts obviates the need to an effort to balance the evidence's probative value and its unfairly prejudicial nature. In a sense, absence of a sufficient connection decreases the probative value of the evidence and renders it more susceptible to causing unfair prejudice.

In the case, defendant Midkiff was charged and convicted of conspiracy, mail and wire fraud, and failure to file tax returns. He appealed these convictions claiming that an evidentiary error had occurred. Specifically the defendant claimed that the judge improperly admitted certain other act evidence at trial. The other act evidence had been proffered by the prosecution, attempting to discredit the defendant's testimony on direct examination that "he did not have the requisite intent or knowledge to commit fraud." In cross-examining the defendant, "[t]he government's line of questioning concerned six companies. With regard to four of these, the government's examination "was limited to whether Midkiff had worked for the companies, what his position was, and whether the companies were closed for fraudulent practices."

The circuit agreed with the defendant that admission of the evidence about these four companies was erroneous. As explained by the circuit:

"The problem with the government's cross-examination was that there was no evidence linking Midkiff to the fraudulent schemes that resulted in the companies' closures. Proof connecting the defendant to the prior bad act is required for the evidence to be relevant. We have noted that in situations such as this, 'the district court would have been better advised to conditionally receive this evidence subject to the government providing sufficient linkage to [the defendant].'”

Midkiff, __ F.3d at __ (quoting United States v. Mihm, 13 F.3d 1200, 1205 (8th Cir. 1994) (court should have admitted evidence of marijuana on the defendant's elderly aunt's property subject to the government establishing the necessary link to the defendant; but harmless error because defendant established lack of link upon cross-examination); see also Huddleston v. United States, 485 U.S. 681, 689 (1988) (concluding that the government may not “parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo”).

However, even though admission of evidence about the four companies "should not have been admitted," the circuit concluded that this "error was harmless." The lack of consequence for improperly admitting the other act evidence was a result of "abundant evidence to sustain Midkiff's convictions" so that "any error in admitting the challenged evidence did not affect Midkiff's substantial rights and thus does not merit reversal." Midkiff, __ F.3d at __ (quoting United States v. Smith, 573 F.3d 639, 656 (8th Cir. 2009) (evidentiary error was harmless in light of the extensive testimony and documentary evidence over the course of ... trial).