Federal Evidence Review

In affirming the exclusion of an indictment from a related case, Ninth Circuit notes other factors that may impact a prosecutor’s decision to seek an indictment; consequently, the indictment lacked probative value and would consume time at trial and be “unnecessarily confusing,” in United States v. Bingham, _ F.3d _ (9th Cir. August 4, 2011) (Nos. 06-50668, 06-50669)

The Ninth Circuit recently reviewed the issue of whether an indictment from another case could be admitted by the defense to show whether the government believed the defendant was part of a conspiracy. In the case, two Aryan Brotherhood prison gang members were prosecuted for Racketeer Influenced and Corrupt Organizations (RICO) violations. At trial, co-defendant Hevle wanted to introduce the indictment from a related case (United States v. Sahakian (SD Ill.)). See also United States v. Sahakian, , 453 F.3d 905 (7th Cir. 2006). The defense sought to show that since the defendant was not named in the Sahakian indictment, “the government didn’t believe he was a member of the conspiracy to murder” others. The trial court excluded the indictment under FRE 403 “because it was not particularly probative of Hevle’s role in the conspiracy alleged in this case, created significant risk of jury confusion, and would waste time.” Bingham, _ F.3d at _.

The Ninth Circuit affirmed, agreeing that the indictment was excludable under FRE 403. The circuit noted that the indictment would not necessarily help establish “an ‘inconsistent theories’ defense.” As the circuit noted other factors may weigh in the exercise of the prosecutor’s charging decision:

The government may decide to charge or not to charge a suspect in an indictment for a variety of reasons that have nothing to do with his guilt or innocence, taking into consideration the availability of prosecutorial resources, alternative priorities, the expectation of prosecution by other authorities, or any number of other valid discretionary reasons. See, e.g., United States v. Sua, 307 F.3d 1150, 1153 (9th Cir. 2002) (“[A] district court may properly exclude, under Fed. R. Evid. 403, a plea agreement offered for the purpose of establishing the government’s belief in a person’s innocence.”); see also United States v. Delgado, 903 F.2d 1495, 1499 (11th Cir. 1990) (“Certainly, we cannot attribute the government’s decision not to prosecute to an independent determination that the defendant is not guilty.”); United States v. Bakshinian, 65 F. Supp. 2d 1104, 1105-10 (C.D. Cal. 1999).

Bingham, _ F.3d at _. Further, the circuit noted that there was little probative value that which would be time consuming and be “unnecessarily confusing.”

The Bingham opinion highlights that legal documents from other cases may not survive the FRE 403 bar based on other factors that may motivate their initial filing.