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.

______________________________

Subscribe Now To The Federal Evidence Review

** Less Than $25 Per Month ** Limited Time Offer **

subscribe today button
Read more

Excluding Expert Testimony Of Defendant’s “Peculiar Turn Of Mind” That Drug Use Was “Almost Sacramental Consumption”

First Circuit affirms trial court’s exclusion of defense expert psychologist’s opinion that while the cocaine conspiracy defendant was “technically competent” to stand trial, he had a “peculiar turn of mind” that “interprets everything in terms of a highly abstracted philosophy of life” making “drug use … an almost sacramental consumption”; the expert opinion was not probative of a lack of ability to form the requisite intent to participate in the charged conspiracy and was substantially confusing or misleading, in United States v. Ahrendt, 560 F.3d 69 (1st Cir. March 19, 2009) (No. 06-1254)

Read more

Forty-Seven Key Supreme Court Cases Impacting Evidence Issues

List includes constitutional, statutory, and Federal Rules of Evidence - based evidence-related cases

The Federal Evidence Review has compiled a list of forty key evidence key evidence cases decided by the Supreme Court, which is listed below. Read more

Madoff Plea Avoids Cooperation Terms - Its Implications

A cooperation plea agreement would have required his truthful responses concerning the fraud scheme; Madoff plea allocution statement appears to try to limit the exposure of others who may have been involved in his fraud scheme, in United States v. Bernard L. Madoff (SDNY 09 Cr 213 (DC))

On March 10, 2009, Bernie Madoff waived his right to be indicted by a grand jury. The government filed an eleven count information charging him with securities fraud, investment adviser fraud, mail fraud, wire fraud, three counts of money laundering, false statements, perjury, false filings with the Securities and Exchange Commission, and theft from an employee benefit plan. The Madoff plea seems unlikely to end the inquiries into one of the largest fraudulent schemes in the country's history.Read more

Daubert Expert Determination Can Be Made During Trial

Ninth Circuit notes that the trial court did not abuse its discretion in denying request for a pretrial Daubert hearing, in United States v. Alatorre, 222 F.3d 1098 (9th Cir. 2000)

A party may request that the trial court hold a pretrial Daubert hearing to perform its “gatekeeping” role to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) Can the Daubert requirement be fulfilled during the trial? Some cases confirm it can, including the following one from the Ninth Circuit.Read more

In Fraud Case, E-Mails From Non-Testifying Investors Admitted As Non-Hearsay

E-mails from investors demanding information about defendant's fraudulent scheme were not hearsay when offered to provide context for the defendant's message, to rebut the defendant's argument that she did not know the scheme was fraudulent, and to show the defendant had received communications indicating the fraudulent nature of the project, in United States v. Dupre, 462 F.3d 131 (2d Cir. 2006), cert. denied, 127 S.Ct. 1026 (2007)

As e-mail evidence becomes more common, under what circumstances can e-mails of non-testifying witnesses be admitted? A fraud case highlights one scenario in which the e-mails may be admitted for a non-hearsay purpose. Read more

Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (II)

In aggravated sexual abuse of a child trial, trial court was not required to hold a Daubert reliability hearing before admitting expert testimony by a university professor of pediatrics concerning the characteristics of minor victims of abuse; trial court has discretion to decide whether a Daubert hearing is required, in United States v. Kenyon, 481 F.3d 1054, 1061 (8th Cir. 2007)

A formal Daubert hearing is not always required before expert testimony may be admitted. An Eighth Circuit case noted the substantial discretion left with the trial court on this issue. Read more

Shoeprint Expert Testimony Satisfied Daubert Reliability Factors

shoe prints

A lack of precision in a shoeprint expert's testimony was not a bar to the expert testimony, in United States v. Ford, 481 F.3d 215 (3d Cir. Mar. 29, 2007) (No. 05-4998)

The Third Circuit reviewed how expert shoeprint testimony comported with the Daubert factors for expert testimony. In the case, defendant Ford was involved with others in robbing two banks. Before trial, the court held a Daubert hearing on the admissibility of expert testimony that three partial shoe-prints from the counters of one of the bank were similar to the type of imprints that would be made by the shoes defendant Ford was wearing when he was arrested.Read more

Limits To Relying On Internet Materials And Information In Court (Part IV(b))

Internet URL

In action to recover damages based on international terrorism, while noting concerns that a terrorism and counterterrorism expert relied on web postings to show that organization was responsible for the murder, en banc majority concludes that FRE 703 permitted the expert to rely on this unauthenticated, hearsay evidence, in Boim v. Holy Land Foundation for Relief and Development, __ F.3d __ (7th Cir. Dec. 3, 2008) (en banc) (Nos. 05-1815, 05-1816, 05-1821 & 05-1822)

Read more
Federal Rules of Evidence
PDF