Seventh Circuit affirms that threatening statement by defendant in custody pending trial was admissible to show consciousness of guilt as direct evidence of the charges, in United States v. Mokol, _ F.3d _ (7th Cir. June 22, 2011)
Consciousness of guilt evidence can be probative yet carry risks of unfair prejudice. The Seventh Circuit recently considered the admission of this evidence.
In the case, defendant Mokol was charged as a felon in possession of a firearm following two burglaries. The defendant’s girlfriend testified at trial and recounted that the defendant told her that “[i]f anybody tells on [me, about the burglaries or firearms], they would end up in the ground.” The jury convicted the defendant on two counts involving one burglary but acquitted him on the counts related to the other burglary. On appeal, the defendant challenged the admission of the girlfriend’s testimony.
The Seventh Circuit affirmed the admission of the testimony, which it observed “fits comfortably within the widely recognized principle that a defendant’s attempts to intimidate potential witnesses are probative of his consciousness of guilt. In support, the circuit cited to the following cases:
- United States v. Johnson, 624 F.3d 815, 820-21 (7th Cir. 2010) (admitting recorded phone calls of the defendant while in jail pending trial to show consciousness of guilt; “while Johnson did not explicitly instruct his associate to threaten the informant in the recordings, the jury could reasonably interpret the phone conversations in that manner”)
- United States v. Calabrese, 572 F.3d 362, 368 (7th Cir. 2009) (“we have repeatedly observed that intimidation of a witness suggests consciousness of guilt”) (citing other cases)
- United States v. Miller, 276 F.3d 370, 373 (7th Cir. 2002) (“Evidence that the defendant threatened a potential witness or a person cooperating with a government investigation is relevant to show the defendant's consciousness of guilt.”)
- United States v. Balzano, 916 F.2d 1273, 1281 (7th Cir. 1990) (“Courts have held that evidence of a defendant's attempts at intimidation of a witness or of a person cooperating with a government investigation is admissible to demonstrate a defendant's "consciousness of guilt" of the charges which were the subject of the witness' testimony or cooperation.”) (citing other cases)
The circuit also noted that FRE 404(b) normally would not bar the evidence. Mokol, _ F.3d at _ (citing Miller, 276 F.3d at 373-74 (noting threat evidence was admissible as direct evidence to show consciousness of guilt); United States v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir. 1994) (“[A]s direct evidence of the crime charged, the evidence of threats is not even Rule 404(b) evidence.”)).
The circuit found unpersuasive the defendant’s argument that he was in custody at the time of the statement, suggesting he could not carry out the threat. The circuit noted that consciousness of guilt evidence has been allowed “in a variety of factual contexts” including where the defendant was in custody. Mokol, _ F.3d at _ (citing Calabrese, 572 F.3d at 366-67 (recorded conversation of organized crime boss threatening suspected informant) with United States v. Zierke, 618 F.3d 755, 758 (8th Cir. 2010) (defendant in custody for more than seven months encouraged son “eliminate witnesses against him”) and United States v. Young, 248 F.3d 260, 271-72 (4th Cir. 2001) (reckless endangerment and assault conviction of murder suspect against a victim’s mother who was cooperating)).
Finally, the evidence was not unfairly prejudicial under FRE 403, as the trial court carefully considered the probative value of the evidence. Based on its disposition, the circuit did not need to consider two alternative theories offered by the government to admit the evidence, including “because it tends to explain why, in her early discussions with law enforcement, Lori Miller related a different account of the facts that tended to exculpate Mokol.” Mokol, _ F.3d _ n.2.
Depending on the facts of the case, some courts have admitted consciousness of guilt evidence under FRE 404(b). For an example, consider: Other Act Evidence As Evidence Of Consciousness Of Guilt.
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