In the retrial on methamphetamine distribution and illegal firearms charges, admitting evidence of the defendant's “acquitted conduct” (of three charges during his first trial) without revealing that the defendant had been acquitted and precluding the defense “evidence of his prior acquittals”; while the acquitted conduct evidence could be admitted as evidence of motive, intent, lack of mistake under FRE 404(b), evidence that the defendant was acquitted of the offenses was inadmissible hearsay, in United States v. Vega, __ F.3d __ (8th Cir. April 17, 2012) (No. 11–2437)
The Eighth Circuit recently considered the admissibility of "other act" evidence based on acquitted conduct. While the evidence was admissible against the defendant under FRE 404(b), information that the defendant had been acquitted of criminal charges regarding this same conduct was barred. Did this distinction make sense? What evidence objectives were served?
In the case, defendant Vega was originally tried regarding evidence obtained on January 12, 2010 (based on a controlled buy) and January 22, 2010 (based on execution of a search warrant). In the first trial, the jury acquitted him of three drug and weapon charges arising from the January 12th incident; but a mistrial was declared regarding two charges related to the January 22nd evidence. Evidence related to the acquitted charge was admitted in the second trial under FRE 404(b). The jury was not told that this evidence had resulted in an acquttal in the first trial. The jury convicted the defendant on the two remaining counts. The defendant appealed his conviction concerning the January 22 activities. He argued that "evidence from the January 12, 2010 drug transaction had little probative value given the first jury's verdict [of acquittal]; thus, the prejudicial effect substantially outweighed the probative value of the evidence." He added that if the prior act evidence qualified for admission under FRE 404(b), then at the time the trial court should have permitted the defendant to present evidence that an earlier jury had acquitted the defendant on this "conduct that the government was alleging to be true." Vega, __ F.3d at __.
The Eighth Circuit rejected the defendant's reasoning and affirmed the convictions. This distinction between conduct evidence and the result of that conduct was consistent with the operation of FRE 404(b) concerning the admissibility of other act evidence and other rules of evidence. As explained by the circuit, while the action on the two dates were distinct, they were also closely related and therefore relevant to one-another:
the evidence from the January 12, 2010 drug transaction was relevant to whether Vega intended to distribute methamphetamine on January 22, 2010—the date the search warrant was executed. At trial, [co-defendant] Horvath testified that, on January 12, 2010, he purchased from Vega “$300 worth of meth [amphetamine]” in “[a] little zip-lock baggie” that had “the ace of spades on it.” The events of January 12, 2010, are what led to the execution of the search warrant on January 22, 2010. Officer Branch testified that, on January 22, 2010, Horvath stated that he “had received methamphetamine from Larry [Vega], the individual across the street.” A search of Vega's residence on January 22, 2010, uncovered not only a drug scale and 8.6 grams of methamphetamine but also packaging bearing the ace of spades design—the same type of packaging used during the controlled buy on January 12, 2010.Vega, __ F.3d at __.
Not only was the evidence of the January 12th events relevant to a material issue at the retrial, but the evidence also satisfied three other conditions required in the Eighth Circuit for the admission of other act evidence: In addition to the proffered evidence being (1) relevant to a material issue, it also was "(2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) [its']... potential prejudice does not substantially outweigh its probative value.” Vega, __ F.3d at __ (citing United States v. Cowling, 648 F.3d 690, 699 (8th Cir. 2011) (quoting United States v. Johnson, 439 F.3d 947, 952 (8th Cir. 2006))).
Having resolved that the January 12th evidence was probative on issues related to the January 22nd charges, the circuit noted that the defendant failed to contest the second (similar in time and close in time) and third foundational elements (shown by a preponderance of the evidence). The defendant based his appeal almost exclusively on the grounds that "the prejudicial effect of the January 12, 2010 events substantially outweighed the probative value of the evidence," violating the fourth foundational requirement for admission of FRE 404(b) evidence. The circuit was not impressed with this contention, in particular because the trial court "gave a limiting instruction on what weight, if any, the jury should give to the evidence of the January 12, 2010 drug transaction; the instruction stated:
You have heard evidence that the defendant was involved in a drug transaction with Daniel Horvath on January 12, 2010. You may consider this evidence only if you find it is more likely true than not true. This is a lower standard than proof beyond a reasonable doubt. If you find that this evidence is more likely true than not true, you may consider it to help you decide motive, opportunity, intent, knowledge, preparation, plan, identity, and/or absence of mistake. You should give it the weight and value you believe it is entitled to receive. If you find that it is not more likely true than not true, then you shall disregard it.Vega, __ F.3d at __.
The circuit rejected that this fourth foundational element had been shown because the cautional instruction provided by the judge reduced the risk of unfair prejudice from the introduction of the January 12 evidence. Having determined that the trial court did not err under FRE 404(b) in admitting the January 12 evidence, the circuit examined the other side of the question: If the January 12 evidence was to be admitted, did not the defendant have the right to present to the jury the fact that this evidence had been involved in his prior acquittals? The circuit noted that applicable precedent answered in the negative. As a general matter
...although a judgment of acquittal is relevant with respect to the issues of double jeopardy and collateral estoppel, once it is determined that these pleas in bar have been rejected, a judgment of acquittal is not usually admissible to rebut inferences that may be drawn from the evidence that was admitted.Vega, __ F.3d at __ (quoting United States v. Wells, 347 F.3d 280, 285–86 (8th Cir. 2003) (holding that district court's failure to instruct jury regarding prior acquittals was not abuse of discretion) (quotations and citations omitted))).
“[T]wo primary reasons” exist as to “why a judgment of acquittal is not generally admissible to rebut inferences that may be drawn from evidence that was the basis of a previous trial.” The first reason is that “judgments of acquittal are hearsay.” The second reason is that “judgments of acquittal are not generally relevant, because they do not prove innocence; they simply show that the government did not meet its burden of proving guilt beyond a reasonable doubt.”
Because the defendant had been acquitted on the charges related to conduct that occurred on January 12th, the fact of his acquittal on that conduct was still not admissible during the defendant's retrial on drug charges arising from conduct that occurred on January 22nd. The Eighth Circuit explained that the government's failure to prove the defendant's conduct broke the law on January 12 was not relevant to whether or not the defendant broke the law on January 22.
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