Federal Evidence Review

In RICO and drug conspiracy trial, evidence that a defendant murdered another person because the victim possessed photographs of the defendant's colleagues in the local Outlaw Motorcycle Club (OMC) was admissible as direct evidence of the charged RICO conspiracy; FRE 404(b) did not apply as a foundation for the admission of the evidence, in United States v. Fowler, 535 F.3d 408 (6th Cir. Aug. 1, 2008) (Nos. 04-4472, 04-4473)

FRE 404(b) constitutes an exemption from FRE 404(a)'s mandate to exclude "circumstantial use of character evidence" for the purpose of suggesting that the person's conduct on a particular occasion was in conformity to that general character trait. Instead, FRE 404(b) admits "other act" evidence, even if it might suggest a character trait, if it is offered for proving motive, opportunity, or other aspects of a charged crime or defense. See ACN 404(b)(1972). Thus, FRE 404(b) does not apply where the proffered evidence of other acts is also direct evidence of the charged crime. This principle frequently develops in challenges to admission of crimes unrelated to the charged offense, which can also serve as evidence of the charged crime. Two years ago, the Sixth Circuit briefly explored this overlap in a case in which evidence of a murder was proffered as direct evidence of the charged crime of a Racketeer Influenced and Corrupt Organizations Act (“RICO”) offense.

In the case, thirteen defendants, members of the Green region of the international Outlaw Motorcycle Club ("OMC"), were indicted for numerous counts under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and for drug trafficking, and firearms offenses. The OMC was considered so volatile an group that the trial court empaneled an anonymous jury to heard the evidence.

At trial, “the Government introduced evidence that defendant Fowler had murdered "an individual named Steven Gabbard because he possessed photographs that would have incriminated OMC members." "From evidence that he killed someone who could have exposed the OMC's criminal activities," noted the circuit, "it can be inferred that Fowler acted with the intent of perpetuating the OMC as a criminal enterprise and thereby furthering all of its racketeering activities." Fowler, 535 F.3d at 420. The defendant objected that this evidence was inadmissible under FRE 404(b), and he was entitled to a limiting instruction. The trial judge denied this objection and the jury convicted the defendant. He appealed the verdict, raising as one ground the admission of the evidence of the murder of Gabbard.

The Sixth Circuit affirmed the admission of the evidence. The circuit disagreed that the evidence was not admissible under FRE 404(b). The other acts evidence rule did not apply since the evidence was admissible as direct evidence of the charged RICO conspiracy. As the circuit explained:

The evidence was properly admitted as evidence of his guilt because it tended to show Fowler’s membership in the conspiracy by demonstrating that he was attempting to preserve the criminal enterprise by protecting it from discovery. In other words, the evidence was admissible because it showed that Fowler acted with the intent of "furthering or facilitating the criminal endeavor.”

Fowler, 535 F.3d at 422 (citing Salinas v. United States, 522 U.S. 52, 65 (1997) (“A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for the crime’s completion. One can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense. It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself.”)).

The result in Fowler is a rather standard application of the other act exemption rule. Generally, FRE 404(b) will not apply to bar evidence that is admitted in furtherance of a charged RICO conspiracy. See, e.g., United States v. Diaz, 176 F.3d 52, 79 (2d Cir. 1999) (affirming admission of evidence of violence committed on behalf of drug conspiracy because it explained the mutual trust between coconspirators; “Although defendants-appellants conceded that they were associated with the Latin Kings [gang], several issues still remained in dispute, including the existence, nature and operations of the [charged] RICO enterprise, and the related racketeering and drug conspiracies.”); United States v. Thai, 29 F.3d 785, 812-13 (2d Cir.) (evidence of uncharged crimes admitted in RICO trial was not Rule 404(b) evidence because it was independently admissible as crimes in furtherance of the RICO conspiracy), cert. denied, 513 U.S. 977) (1994); United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992) (“An act that is alleged to have been done in furtherance of the alleged conspiracy, however, is not an ‘other’ act within the meaning of Rule 404(b); rather, it is part of the very act charged.”) (citations omitted).