Federal Evidence Blog

Inadmissible “Good Acts”

Prior bad acts are inadmissible to show propensity under FRE 404(b). However, under what circumstances can prior good acts be admitted? This question was recently considered by the Eleventh Circuit in a mail fraud case in United States v. Ellisor, 522 F.3d 1255 (11th Cir. 2008) (No. 05-14459).

Defendant Ellisor was accused of defrauding parents and schoolchildren who bought tickets to a show he claimed he was going to present, entitled "Christmas From Around the World.” After accepting the money for the show, he cancelled the show at the last minute and skipped town. Before trial, the government moved in limine to exclude evidence that the defendant had conducted legitimate business in the past, which the defendant hoped to offer to negate his fraudulent intent (e.g., “a DVD produced by him that advertised a prior show” and “correspondence purportedly demonstrating that Ellisor had produced other shows over a ten-year period.”) The trial court excluded this evidence and the defendant was convicted.

The Eleventh Circuit agreed with the trial court that the prior good acts evidence should be excluded as irrelevant: “The fact that Ellisor purportedly produced other shows does not bear on his intent to defraud with respect to the Christmas show.” Ellisor, 522 F.3d at 1270-71 (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.”)).

In addition to being irrelevant, the circuit found alternative grounds to exclude the evidence, including as an impermissible attempt to use specific acts of good character circumstantially to prove lack of intent under FRE 404(b), FRE 405(b); as inadmissible hearsay under FRE 801(c); and as risking the confusion of issues, misleading the jury, and considerations of undue delay and waste of time under FRE 403.


Plea Agreement Admitted Under Residual Hearsay Exception

A defendant’s plea agreement can be admitted in a separate proceeding to prove his fraudulent intent under the residual hearsay exception notes the Ninth Circuit in In re Slatkin, 525 F.3d 805 (9th Cir. 2008) (No. 06-56334)

After defendant/debtor Slatkin pled guilty to one of the largest Ponzi schemes ever committed (about 800 investors lost more than $240 million over 15 years), Slatkin filed for bankruptcy protection under Chapter 11. A year later, the trustee for Slatkin’s estate initiated adversary proceedings against the Johnsons and their management company, investors in the Ponzi scheme. The trustee sought to recover fraudulent transfers Slatkin made to them. The bankruptcy court granted summary judgment against the Johnsons, finding that Slatkin had made transfers to the Johnsons in order to "hinder, delay or defraud" creditors. The court’s findings regarding Slatkin’s intent was based "solely on Slatkin’s guilty plea and plea agreement" from the Ponzi scheme prosecution.

Normally, the admission of a plea agreement is considered as a party admission under FRE 801(d)(2)(A). However, when the defendant who entered the plea agreement is not a party to the proceedings, another hearsay exception is required to admit the contents of the plea agreement for the truth of the matter asserted. In the Slatkin case, it was under FRE 807, the residual hearsay exception. See, e.g., United States v. Harwood, 998 F.2d 91, 97 (2d Cir. 1993) (in drug prosecution, defendant could not use co-defendant’s statement to journalist that the defendant had been "in the wrong place at the wrong time," as it was not admissible under the party admission’s exception to hearsay rule because the statement was that of the defendant’s co-defendant who was not a party opponent; rather the prosecution was the party opponent).


Photo Description: Ninth Circuit Court of Appeals Courthouse in San Francisco, CA.


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