Federal Evidence Review

In trial for illegal possession of machine guns, admitting as proof of knowledge, a video of the defendant "teaching his mother to fire a machine gun"; the video was "other act" evidence under FRE 404(b) as it was sufficient for a jury to conclude that the defendant is in the video and that he recognized the gun used in the video was a machine gun, in United States v. Allen, __ F.3d __ (8th Cir. Jan. 27, 2011) (No. 09-3785)

One foundational element necessary to admit "oher act" evidence under FRE 404(b) is that there is clear and convincing evidence to establish the other act. The Eighth Circuit recently considered a case in which two of the four elements it requires for admission of FRE 404(b) were considered. In its discussion of why there had been the requisite clear and convincing showing of the other act, the circuit discussed some of the problems in showing the requisite foundational elements.

In the case, defendant Allen was convicted for possessing illegal machine guns. On appeal, the defendant argued that the trial court erred in admitting a video shown by the government of the defendant "instructing his mother how to fire an automatic machine gun." The video was shown to the jury for two one-minute intervals. The footage was offered to show that the defendant "had knowledge, intent, and opportunity, and that he would certainly recognize the weapons in his home as machine guns." Allen, __ F.3d at __. The issue was reviewed for plain error under FRE 103(d) since the defendant did not object to the introduction of the evidence at trial and failed to renew his pretrial objection to the evidence. Allen, __ F.3d at __ (citing United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 (8th Cir. 2001) (finding “pretrial objections waived when an appellant’s counsel affirmatively stated ‘no objection’ at trial to the admission of evidence previously sought to be suppressed.”)).

The video was admitted under FRE 404(b), which in the Eighth Circuit requires satisfaction of four elements, including: the other act evidence is "(1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than in prejudicial effect.” Allen, __ F.3d at __ (citing United States v. Strong, 415 F.3d 902, 905 (8th Cir. 2005), cert. denied, 546 U.S. 1130 (2006)). In his appeal the defendant claimed that admission of the video evidence was erroneous because the third and fourth elements were not found. The circuit carefully considered the defense argument "that the footage is not sufficient to support a jury finding that he committed the prior crime 'by a preponderance of the evidence.'" The Eighth Circuit rejected this argument and assessed it at some length.

First, the circuit rejected the defense claim that the video was inadmissible in light of an "innocent explanation" as “there are places where it is legal to fire machine guns, and the location of the videotape is unknown.” The circuit noted that the defendant "misunderstands the government as introducing the video as evidence of a prior crime (not merely a prior act), which evokes a slightly heightened standard for admissibility." Allen, __ F.3d at __ (citing United States v. Littlewind, 595 F.3d 876, 881 (8th Cir. 2010)). The government was not offering the video as a prior crime but as a prior act to show knowledge. As the circuit noted, "So long as prior acts are relevant to show motive, opportunity, intent, knowledge or used for other permissible purposes, there is no requirement that the prior acts be crimes in order to be admissible." There was no error in admitting the video, particularly when reviewed for plain error.

Second, the Circuit dismissed the defense contention that exclusion of the video evidence was a violation of past precedent established in the Eighth Circuit. The circuit found the defendant had relied on a case which was clearly distinguishable from the situation in the defendant's case. It rejected the defendant's argument that, as in United States v. Clemons, 503 F.2d 486, 490 (8th Cir. 1974), the video had an “innocent explanation or [wa]s simply too incomplete,” to be sufficient evidence for its admission. "In Clemons," noted the circuit, "this court excluded evidence of a defendant's prior arrest for possession of narcotics because he was never charged, and the government failed to offer any evidence that he knew about the confiscated drugs. Id. Because “the government failed to prove by clear and convincing evidence that Clemons did commit another similar offense,” a reasonable jury could not find that the defendant had committed the prior alleged offense. Id Accordingly, the prior arrest could not be used as evidence of intent, opportunity, knowledge or absence of mistake or accident. Id."

The situation was completely different from Allen's case. In the defendant's situation:

Where the surrounding circumstances [are] adequately established, [prior acts are] admissible because such conduct is relatively unlikely to be committed without knowledge or intent.” Id. Here, unlike in Clemons, the surrounding circumstances of the video footage are adequately established; they are not incomplete. Allen's wife authenticated (and he does not dispute) that the tape shows Allen telling his mother how to fire machine guns. Instead, Allen objects that there was not sufficient evidence that this prior act was a crime and that there is an 'innocent explanation' because 'there are places where it is legal to fire machine guns, and the location of the videotape is unknown.' Again, this argument misunderstands both the government's reason for introducing the evidence and Fed.R.Evid. 404(b). The government does not claim on appeal that Allen is committing a crime in the video. So long as prior acts are relevant to show motive, opportunity, intent, knowledge or used for other permissible purposes, there is no requirement that the prior acts be crimes in order to be admissible. Accordingly, the evidence is sufficient for a jury to conclude both that Allen is the instructor in the video and that he recognized the guns in question as machine guns.

Allen, __ F.3d at __.