Considering The Inadmissibility Of Other "Good Acts" Evidence

While uncharged other "bad acts" evidence may be admitted where the requirements of FRE 404(b) are satisfied, what about other "good acts"? What propensity concerns are raised by this evidence? The Sixth Circuit recently considered a defense request to admit other "good acts" in a public corruption case, in United States v. Dimora, _ F.3d _ (6th Cir. April 30 2014) (Nos. 12-4004, 12-4051)

Normally, propensity character evidence is disallowed. However, FRE 404(b) allows uncharged evidence to be admitted for a limited purpose. Like other "bad acts" evidence, the admission of other "good acts" evidence also raises concerns about propensity. A recent Sixth Circuit case considered the admission of proffered other "good acts" evidence.

Trial Court Proceedings: Proffer To Admit Other "Good Acts" Evidence

The case involved a public corruption trial against two county commissioners. The commissioners were charged with providing local contracts, patronage, and other favors in exchange for trips, cash, and other things of value. Defendant Dimora offered to "present evidence of other 'good acts'—that on several occasions he helped constituents 'without asking for . . . or receiving anything of value.'" The trial court concluded that the evidence did not satisfy the requirements of FRE 404(b). The jury convicted the defendants. On appeal, defendant Dimora challenged the exclusion of this evidence.

Sixth Circuit Review: Concerns About Propensity Evidence

The Sixth Circuit affirmed the exclusion of the proffered other "good acts" evidence noting that the defense "evidence does not hit the target" under FRE 404(b). As the circuit explained:

All it would have shown is that, in situations unrelated to the charges, Dimora did favors for people who did not pay him bribes. For the same reason that prior “bad acts” may not be used to show a predisposition to commit crimes, prior “good acts” generally may not be used to show a predisposition not to commit crimes.

Dimora, _ F.3d at _ (citing United States v. Qaoud, 777 F.2d 1105, 1111 (6th Cir. 1985) (in kickback prosecution of a state court judge, excluding evidence that the defendant one time declined to assist an “influence peddler”; concluding that the evidence of this “totally different incident . . . demonstrate[d] little or nothing about [the judge’s] intent on the charges made in th[e] indictment.”)). The circuit disagreed with the defendant that this evidence was admissible on the issue of his intent. In particular, "the government built its case on agreements between Dimora and a closed circle of bribers. Dimora’s evidence about acts with no connection to these agreements tells us nothing relevant about his case." Dimora, _ F.3d at _.

Conclusion

The Dimora case shows the high hurdle that other "good acts" evidence has to be admitted under FRE 404(b). In most instances, the evidence is not probative to the charged conduct. As demonstrated in the Dimora case , the facts of the case are unconnected to the uncharged conduct.

For others cases addressing this issue, consider:

  • United States v. Kassar, 660 F.3d 108, 123 (2d Cir. 2011) (in trial for conspiring to kill U.S. officers, to acquire and export anti-aircraft missiles, and to knowingly provide material support to a terrorist organization, excluding classified evidence, the “vast majority” consisting “of prior good acts performed by the defendants allegedly for the good of the United States,” as inadmissible under FRE 404(b) since it was offered “prove the character of a person in order to show action in conformity therewith”)
  • United States v. Ellisor, 522 F.3d 1255 (11th Cir. 2008) (In fraud scheme involving production of a show, concluding that “[t]he fact that [defendant] Ellisor purportedly produced other shows does not bear on his intent to defraud with respect to the Christmas show.”) (citing United States v. Camejo, 929 F.2d 610, 613 (11th Cir. 1991) (noting “[e]vidence of good conduct is not admissible to negate criminal intent”); United States v. Marrero, 904 F.2d 251, 260 (11th Cir. 1990) (“The fact that Marrero did not overcharge in every instance in which she had an opportunity to do so is not relevant to whether she, in fact, overcharged as alleged in the indictment.”))

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Photo Description: Sixth Circuit Court of Appeals, Potter Stewart U.S. Courthouse, Cincinnati, OH. Learn more about the courthouse which was named after U.S. Supreme Court Justice Potter Stewart who served for twenty-three years on the Court.

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