First Amendment As Part Of The FRE 403 Balance

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In public corruption trial, admitting evidence of the defendant's legal political campaign contributions which "had significant probative value" to show the lobbyist defendant's modus operandi, and which was not unfairly prejudicial, although it "posed a close question;" the circuit declined to "decide whether and precisely how the First Amendment alters the FRE 403 analysis because, even assuming First Amendment concerns justify placing a thumb on the prejudice and confusion side of the scale, that added weight fails to change the outcome of the balance" in support of admitting the challenged evidence, in United States v. Ring, _ F.3d _ (D.C. Cir. Jan. 25, 2013) (No. 11–3100)

Prior Federal Evidence Blog posts, summarized below, have examined a few of the evidence issues in the cases arising out of the Abramoff lobbying scandal. A recent D.C. Circuit case highlights an unusual aspect of the FRE 403 probative value-unfair prejudice balance for relevant evidence. In the case, defendant Ring, a "once ... prominent Washington lobbyist," was prosecuted for his involvement in a scandal the D.C. Circuit characterized as exhibiting "corruption so extensive that it ultimately implicated more than twenty public officials, staffers, and lobbyists." Ring, _ F.3d at _. One of the more unique evidence issues that arose at trial was a particularly "weighty" one involving the defendant's claim that evidence of the defendant's lawful political campaign contributions managed to "r[u]n afoul" of Rule 403 and of the defendant's First Amendment rights. This unusual conjunction of the evidence code with the Constitution bears examination.

One ground for the defendant's appeal of his conviction was that "by permitting the jury to draw adverse inferences from evidence about his campaign contributions, the court "ran afoul" of FRE 403 and violated the defendant's First Amendment rights to speech. Even though there was no evidence that any of the defendant's "campaign contributions were themselves unlawful, [the prosecutor] repeatedly introduced testimony about those contributions in order to paint a fuller picture of [defendant's] interactions with public officials" and to "demonstrate that he viewed money as a means to his clients' political ends. For example, the government introduced an email in which Ring asked Abramoff to make sure that a particular congressman who had acted as “a good soldier” received “his fair share of contributions.” One witness testified that Ring had a “running joke” in which he would hold up a client's campaign check and ask, “Hello quid. Where's the pro quo?”

From an FRE 403 view point, this evidence "posed a close question." The trial judge found that the evidence was "intertwined and ... integrally part of" the charged illegal conduct. In addition, the evidence "helped shed light on his modus operandi." In order to minimize possible unfair prejudice inherent in introducing this evidence, the trial judge also provided numerous cautionary instructions by "repeatedly remind[ing] the jury—indeed, virtually every time campaign contribution evidence was presented—that such contributions are legitimate lobbying tools and that the jury must not consider the lawfulness of Ring's contributions in reaching its verdict. Pressing the same point, the district court's final jury instructions emphasized that “the propriety or legality of any campaign contributions ... [was] not before [the jury] and [the jury was] therefore instructed not to consider campaign contributions ... as part of the illegal stream of benefits that Mr. Ring [was] charged with providing to certain public officials.” Ring, _ F.3d at_.

However, this did not dispose of the defendant's appeal. The circuit acknowledged that the defendant raised a vaild "First Amendment argument" that:
rests on the proposition that permitting a jury to draw adverse inferences from constitutionally protected activity violates a defendant's First Amendment rights. Although the First Amendment limits the government's authority to criminalize speech and other protected activity, the Supreme Court has made clear that the Amendment simply “does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”
Ring, __ F.3d at __ (citing McCormick v. United States, 500 U.S. 257, 271-74 (1991) (campaign contributions can constitute criminal extortion only when made pursuant to an explicit quid pro quo agreement, declining to address whether this requirement “exists in other contexts, such as when an elected official receives gifts, meals, travel expenses, or other items of value”); United States v. Stevens, 559 U.S. 460 (2010); Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993)).

The D.C. Circuit then examined what role the defendant's First Amendment right to free speech might have on the admission of evidence. The circuit noted that "campaign-contribution evidence had significant probative value" in the defendant's case as it "gave jurors a window into the way in which lobbyists like Ring gain influence with public officials" and how he rewarded politicians with campaign contributions, suggesting "that he put other things of value to similar use." Against this probative use, the circuit also concluded that "we think it similarly clear that the contribution evidence had a strong tendency to prejudice, confuse, and mislead the jury." Ring, __ F.3d at __ (citing Old Chief v. United States, 519 U.S. 172, 180 (1997) (“The term ‘unfair prejudice’ ... speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”)).

The D.C. Circuit suggested that in conducting the FRE 403 balance, "concerns about jury prejudice and confusion should carry more weight in the context of core First Amendment activity," although it acknowledged "there appears to be little support for ... injecting the First Amendment into the Rule 403 balance in this way [as it] would resonate with First Amendment — specific 'chilling' concerns — concerns that are especially powerful where political speech is involved. In this case, however, we need not decide whether and precisely how the First Amendment alters the Rule 403 analysis because, even assuming First Amendment concerns justify placing a thumb on the prejudice and confusion side of the scale, that added weight fails to change the outcome of the balance." In the defendant's case, the court's studious and consistent attempts to provide limiting instruction instructions against abuse of the evidence Ring, __ F.3d at __ (citing Brown v. Hartlage, 456 U.S. 45, 61 (1982)).

Prior Blog Posts

As previously noted in blog posts, other cases in the Abramoff lobbying scandal cases have presented some noteworthy evidence issues. One Blog post on United States v. Safavian, 435 F.Supp.2d 36 (D.D.C. 2006), rev’d on other grounds, 528 F.3d 957 (D.C. Cir. 2008), probed one defendant's conviction for providing false statements to federal agents concerning a golfing trip to Scotland with key legislators. Conviction Reversed Based On Exclusion Of Defense Expert Testimony On Meaning Of Word "Business." Another Abramoff-related blog post, Admitting E-mail Evidence , examined problems in authenticating and admitting e-mail evidence of communications between the defendant government administrator and an Abramoff lobbyist in United States v. Safavian, 435 F.Supp.2d 36 (D.D.C. 2006), rev’d on other grounds, 528 F.3d 957 (D.C. Cir. 2008). Before trial's start, the government sought a provisional ruling concerning the admissibility of about 260 e-mails which were the subject of the appeal.


Federal Rules of Evidence