Wake Forest Law Review
12Aug

Against “the Huddleston Test”

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Comments Off on Against “the Huddleston Test”

14 Wake Forest L. Rev. Online 99

Dora W. Klein[1]

“To determine whether evidence is admissible under Rule 404(b), the Huddleston test applies . . . .”[2]

Introduction

Many courts—mostly federal, but also some state courts—are misapplying the United States Supreme Court’s decision in the 1988 case United States v. Huddleston.[3] These courts have used a single paragraph of dicta from the Huddleston opinion to craft multipart checklist-type “tests” that displace the single requirement of Rule 404(b) of the Federal Rules of Evidence (or corresponding state rules). This displacement risks the admission of other acts evidence without determining whether the evidence is relevant for a non-character purpose by means of inferences that do not involve character. These Huddleston tests thus undermine Rule 404(b)’s prohibition that other acts evidence is not admissible to prove action in accordance with character.[4]

Of course, if the Supreme Court in Huddleston had established a test for the admissibility of other acts evidence, then federal courts would be bound to follow (and state courts might be wise to follow).[5] But in fact, the Supreme Court in Huddleston did not decide anything specifically about the admissibility of other acts evidence, much less establish any test of admissibility. Contrary to “the Huddleston test” assertions, the case was not about the substantive requirement for admitting other acts evidence for a non-character purpose but instead was about the procedural requirements for admitting conditionally relevant evidence.[6] Other acts evidence is one kind of conditionally relevant evidence; everything the Court in Huddleston said about other acts evidence applies with equal force to all other kinds of conditionally relevant evidence. Properly considered, Huddleston is a Rule 104(b) case, not a Rule 404(b) case.

I. The Sole Issue Decided in Huddleston Was the Standard of Proof for Admitting Conditionally Relevant Evidence

A. The Trial and Circuit Court of Appeals Decisions

As anyone who has taken a law school Evidence course should recall, the Huddleston case is about some television sets that might have been stolen and some Memorex VCR tapes and kitchen appliances that were definitely stolen. Huddleston fenced the stolen VCR tapes, which led to criminal charges for possessing and selling stolen property. In his defense, Huddleston claimed that he did not know the VCR tapes were stolen.[7]

As part of its proof that Huddleston knew the VCR tapes were stolen, the government offered evidence that Huddleston had also fenced the television sets and appliances.[8] Huddleston had obtained the VCR tapes, television sets, and appliances from the same supplier and offered the goods for sale at prices far below their value.[9] The government’s theory was that Huddleston could not have thought these goods were legitimately for sale at such unreasonably low prices.[10]

Huddleston objected to the government’s attempt to use evidence of the television sets to prove his knowledge that the VCR tapes were stolen on the ground that the government did not have sufficient proof that the television sets were in fact stolen.[11] While the VCR tapes and appliances had been reported as stolen, the government’s only proof that the television sets were stolen was the low price at which Huddleston had offered to sell them, combined with his inability to prove that he had purchased them.[12]

At trial, Huddleston argued that before allowing the government to use the evidence of the television sets, the court needed to make a preliminary finding that the government’s evidence established that the television sets were stolen by clear and convincing proof.[13] The trial court disagreed and admitted the evidence, and Huddleston was convicted of possessing stolen property (but acquitted of selling stolen property).[14]

On appeal, the United States Court of Appeals for the Sixth Circuit initially agreed with Huddleston and adopted the clear and convincing standard for admitting evidence when its relevance depends on proof of a condition, such as that the television sets were stolen.[15] However, the court then granted the government’s petition for rehearing and reversed, holding that the proper standard of proof for admitting conditionally relevant evidence is the lesser preponderance standard.[16]

The Sixth Circuit’s confusion about the proper standard for admitting conditionally relevant evidence was not isolated. The standard of proof question had split the federal circuit courts of appeals, with some agreeing with Huddleston’s position that clear and convincing proof of the condition is required, some deciding that the proper standard is the lesser preponderance of the evidence standard, and some deciding that the evidence is admissible so long as the proponent presents sufficient evidence for the jury to decide that the condition is satisfied.[17]

B. The Supreme Court Decision

1. What the Supreme Court Did Decide: Rule 104(b) Does Not Require a Preliminary Finding Before Conditionally Relevant Evidence Is Admitted

The Supreme Court agreed to hear Huddleston’s case to resolve the split among the circuit courts of appeals regarding the proper standard of proof for admitting conditionally relevant evidence. However, the 1987 case Bourjaily v. United States[18] essentially rejected Huddleston’s primary argument—that the government needed to prove by clear and convincing evidence that the televisions were stolen[19]—before the Supreme Court held oral argument in his case. In Bourjaily, the Court decided that the proper standard of proof for preliminary questions regarding the admissibility of evidence is the preponderance standard.[20]

That left only one related issue for the Court to decide in Huddleston: Does the trial judge need to make a preliminary finding that the government has sufficient evidence to prove the condition that would make the evidence relevant? Specifically, the Supreme Court granted certiorari to “resolve a conflict among the Courts of Appeals as to whether the trial court must make a preliminary finding before ‘similar act’ and other Rule 404(b) evidence is submitted to the jury.”[21]

The Supreme Court decided that a preliminary finding by the trial court is unnecessary—“such evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.”[22] Huddleston thus presented one question and produced one holding: “This case presents the question whether the district court must itself make a preliminary finding that the Government has proved the ‘other act’ by a preponderance of the evidence before it submits the evidence to the jury. We hold that it need not do so.”[23]

Although the Court’s statement of its holding referenced only other acts evidence, the Court supported its decision not to require the trial court to make a preliminary finding by explaining that the admission of conditionally relevant evidence has not traditionally required a preliminary finding:

When an item of evidence is conditionally relevant, it is often not possible for the offeror to prove the fact upon which relevance is conditioned at the time the evidence is offered. In such cases it is customary to permit him to introduce the evidence and ‘connect it up’ later. Rule 104(b) continues this practice, specifically authorizing the judge to admit the evidence ‘subject to’ proof of the preliminary fact.[24]

The television sets were other acts evidence, but more importantly, for purposes of the Supreme Court’s decision, they were conditionally relevant evidence.

The question the Court answered in Huddleston was whether conditionally relevant evidence may be admitted without a preliminary finding by the trial court that the proponent of the evidence has sufficient proof of the condition.[25] But since Huddleston is a Rule 104(b) case, its holding—that a preliminary finding by the trial court is not necessary—applies to all conditionally relevant evidence, not just other acts evidence.[26]

2. What the Supreme Court Did Not Decide: Whether Evidence of the Television Sets Was Properly Admitted for a Non-Character Purpose Under Rule 404(b)

The government offered evidence of the (allegedly) stolen television sets to prove that Huddleston knew that the VCR tapes were stolen.[27] This could be a proper, non-character purpose for admitting the other acts evidence under Rule 404(b). As countless courts have pointed out, “knowledge” is one of the examples of non-prohibited purposes included in Rule 404(b)(2).[28] Critically, Huddleston conceded that if the television sets were stolen, then they were relevant for the non-character purpose of proving knowledge.[29]

Because of Huddleston’s concession, the Supreme Court did not consider whether the television sets were properly admitted under Rule 404(b). More specifically, the Court did not decide whether the television sets were relevant to the issue of Huddleston’s knowledge by means of a chain of inferences that did not include an inference about Huddleston’s character.[30] Huddleston did not present a Rule 404(b) argument, and the Supreme Court did not decide anything specifically about Rule 404(b). That a case so clearly not about Rule 404(b) has been interpreted as establishing a test that replaces Rule 404(b) is surely one of the stranger twists in the evolution of evidence law.

II. The Final Paragraph of the Huddleston Opinion—the Source of “the Huddleston Test(s)”—Is Dictum

After deciding—holding—that the admission of conditionally relevant evidence is governed by Rule 104(b) and does not require a preliminary finding by the trial judge that the condition is satisfied, the Court offered some additional observations about the operation of the Federal Rules of Evidence:

We share petitioner’s concern that unduly prejudicial evidence might be introduced under Rule 404(b). We think, however, that the protection against such unfair prejudice emanates not from a requirement of a preliminary finding by the trial court, but rather from four other sources: first, from the requirement of Rule 404(b) that the evidence be offered for a proper purpose; second, from the relevancy requirement of Rule 402—as enforced through Rule 104(b); third, from the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice; and fourth, from Federal Rule of Evidence 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.[31]

Lured by the appeal of a simple, checklist-type approach to the thorny problem of character evidence, courts have spun this dictum—and surely it is dictum, as the question before the Court was about the procedural requirements for admitting conditionally relevant evidence, not about the substantive issues related to the prohibition of character evidence[32]—into a “holding” that “established” a “test”[33] for the admissibility of other acts evidence under Rule 404(b).

III. Courts Have Used Huddleston’s Dicta to Create Overly Simplified “Tests” of Admissibility for Other Acts Evidence

Consider the following recent statements by various federal and state courts asserting that the Huddleston opinion established a “test” for applying Rule 404(b):

  • “To determine whether evidence is admissible under Rule 404(b)(2), the Huddleston test applies . . . .”[34]
  • “Prior bad act evidence must satisfy a four-part test—established in Huddleston v. United States, 485 U.S. 681 (1988)—to be admissible under Rule 404(b).”[35]
  • “The Supreme Court explicated in Huddleston v. United States a four-part test to determine whether Rule 404(b) evidence is properly admitted.”[36]
  • “Interpreting the federal rule, the Virgin Islands Supreme Court adopted a four-part test established by the United States Supreme Court in Huddleston v. United States, to evaluate whether evidence is properly admitted under Rule 404(b).”[37]
  • “In determining whether evidence is properly admissible under Rule 404(b), we apply the Supreme Court’s test from Huddleston v. United States, 485 U.S. 681 (1988) . . . .”[38]
  • “In determining whether to admit evidence under Rule 404(b), the Court looks to the four-part test in Huddleston v. United States, 485 U.S. 681, 691-92 (1988) . . . .”[39]
  • “The Michigan Supreme Court has held that a trial court’s admission of other-acts evidence was not an abuse of discretion if the trial court’s decision met the three-part test articulated in Huddleston v. United States, 485 U.S. 681, 691–692 (1988) that was adopted in People v. VanderVliet, 444 Mich. 52, 74 (1993).”[40]

Other courts have created similar multipart checklist-type “tests” that merge Rule 404(b) with the other rules of evidence mentioned in the Huddleston opinion, especially Rule 403. Recent examples include:

  • “We apply a three-part test for determining whether evidence of prior crimes is admissible under Rule 404(b), asking whether 1) the evidence is ‘relevant to an issue other than the defendant’s character’; 2) there is sufficient evidence for the ‘jury to find that the defendant committed the extrinsic act’; and 3) the undue prejudice of the evidence substantially outweighs the probative value.”[41]
  • “We employ a four-part test to assess the admissibility of other-act evidence: ‘(1) the prior-act evidence must be relevant to an issue other than character, such as intent; (2) it must be necessary to prove or disprove an element of the claim; (3) it must be reliable; and (4) its probative value must not be substantially outweighed by its prejudicial nature.’”[42]
  • “In United States v. Beechum, this court articulated a two-part test to evaluate the admissibility of evidence under Rule 404(b): First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403.”[43]
  • “We employ a four-part test to determine whether a district court abused its discretion in admitting 404(b) evidence. Such evidence is properly admitted if (1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value.”[44]
  • “To be admissible under Rule 404 (b), other-acts evidence must satisfy a three-part test: (1) the evidence is relevant to an issue in the case other than the defendant’s character, (2) the probative value is not substantially outweighed by the danger of unfair prejudice as required by OCGA § 24-4-403 (‘Rule 403’), and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior act.”[45]
  • “[T]he Supreme Court and Second Circuit have distilled the admissibility inquiry under Rule 404(b) to a four-part test: (1) the prior act evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.”[46]
  • “The Ninth Circuit has developed a four-part test to determine the admissibility of Rule 404(b) evidence: (1) the other act evidence must tend to prove a material point; (2) the other act must not be too remote in time; (3) the evidence must be sufficient to support a finding that the defendant committed the other act; and (4) the other act must be similar to the offense charged.”[47]
  • “To determine if other bad acts evidence is admissible, the trial court should use a three-prong test: (1) Is the evidence relevant for a purpose other than criminal disposition? (2) Does it have probative value? (3) Is its probative value substantially outweighed by its prejudicial effect?”[48]
  • “Under the two-part test, if the court determines that the proffered prior act evidence has ‘special’ relevance, i.e., a non-propensity relevance, it then must consider whether the evidence should nevertheless be excluded under Rule 403 because its probative value is substantially outweighed by a danger of unfair prejudice.”[49]
  • “We review a district court’s decision to admit Rule 404(b) evidence with a three-part test. First, we review for clear error the factual determination that the other acts occurred. Second, we review de novo the legal determination that the acts were admissible for a permissible 404(b) purpose. Third, we review for abuse of discretion the determination that the probative value of the evidence is not substantially outweighed by unfair prejudicial effect.”[50]
  • “The Ninth Circuit uses a four-part test to determine the admissibility of evidence under Rule 404(b): Such evidence may be admitted if: (1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged.”[51]
  • “District courts apply a mandatory test in determining the admissibility of W.R.E. Rule 404(b) evidence: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.”[52]

These tests, whether explicitly invoking Huddleston or only mimicking the opinion’s final paragraph, are illegitimate. Using the Huddleston opinion to decide anything about the admissibility of other acts evidence—except whether, in cases where the other act evidence is conditionally relevant, a preliminary finding by the trial court is required—is just simply wrong.

The Court in Huddleston did not decide anything except that a preliminary finding that a condition is satisfied is not required before conditionally relevant evidence may be admitted. It did not establish any test for the admissibility of other acts evidence for a non-character purpose. The admissibility of other acts evidence for a non-character purpose is governed by Rule 404(b), subject to—as evidence generally is—Rules 104 and 403.[53] The Huddleston opinion’s final paragraph amounts to nothing more than that evidence is admissible when the evidence satisfies the requirements of the Rules of Evidence. A “Huddleston test” suggests that some work is being done by these “parts” or “prongs,” when all that such a “test” has actually done is use a lot of words to say nothing of substance. At risk of being buried in all of these words is the single thing required by Rule 404(b): that a court determine whether the other acts evidence is being offered to prove action in accordance with character.

A few courts have recognized that the final paragraph of the Huddleston opinion merely explains that other rules of evidence—other than Rule 104, which was the rule at issue in Huddleston—guard against the risk of unfair prejudice inherent in other acts evidence. For example, the Supreme Court of Arizona has observed:

In a few cases where we cited to Huddleston, we cited it merely to highlight the four factors that Huddleston identifies as safety precautions embedded within the Federal Rules of Evidence. . . . We continue to agree with these four protective provisions. They are, in essence, merely a restatement of part of the Federal Rules of Evidence.[54]

Judge Shanahan of the Nebraska Supreme Court explicitly rejected the claim that Huddleston established any sort of test of admissibility for other acts evidence:

Referring to Huddleston v. United States, in Ryan, we stated, “The U.S. Supreme Court has set out the requirements for the admissibility of evidence under Fed. R. Evid. 404(b), the equivalent of Neb. Evid. R. 404(2)” and then expressed a four-part test which included, as requirements or conditions for admissibility, the four items which the majority has today characterized as safeguards against “unfair prejudice in the admission of the [‘other acts’] evidence.” In fact, the Huddleston Court did not enunciate four “requirements for the admissibility of evidence under Fed. R. Evid. 404(b),” but did consider means to minimize possible prejudice from admission of “other acts” evidence.[55]

These rare rejections of a “Huddleston test” are 100 percent correct. Rule 404(b)—not any part of the Supreme Court’s opinion in Huddleston—determines when other acts evidence is properly admitted for a non-character purpose. Creating a single amalgamated test out of multiple rules of evidence risks diluting all of the component rules. The harm in thinking that the Court’s dicta established a Rule 404(b) test is that the dicta-inspired tests often displace Rule 404(b)’s prohibition of other acts evidence offered to prove action in conformity with character. None of the “tests,” whether explicitly invoking Huddleston or not, include identifying—and excluding—evidence relevant for a non-character purpose by means of inferences about character.[56] The checklist approach invites a superficial examination of other acts evidence; so long as the prosecutor—and it almost always is the prosecutor[57]—offers up some non-character purpose for admitting the evidence, the court may consider the “relevant for a non-character purpose” part of the test to be satisfied. The Seventh Circuit recognized this risk in the 2014 case United States v. Gomez:

Multipart tests are commonplace in our law and can be useful, but sometimes they stray or distract from the legal principles they are designed to implement; over time misapplication of the law can creep in. This is especially regrettable when the law itself provides a clear roadmap for analysis, as the Federal Rules of Evidence generally do.[58]

The 2020 revisions to Rule 404(b), while not explicitly blaming the Huddleston-inspired tests, are in part meant to focus judges on detecting propensity inferences.[59] Specifically, the revised rule now requires prosecutors to provide written notice of the other acts evidence they intend to introduce and “articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose.”[60] Even before the amendment, some courts had endorsed this more searching inquiry for propensity inferences, requiring more than the mere recitation of some non-propensity purpose. For example, the Seventh Circuit observed: “Had the court asked more specifically how the prior conviction [for distributing cocaine] tended to show intent [to distribute cocaine] eight years later, it would have recognized that it was dealing with propensity evidence all the way down.”[61]

Whether the amendments will be sufficient to increase judges’ attention to hidden propensity inferences is doubtful,[62] but the requirement to articulate not just the permitted purpose but also the reasoning in support of the purpose is a step in the right direction—as well as an implicit acknowledgment that the scrutiny given to prosecutors’ purported reasons for admitting other acts evidence is often lacking.[63] While “Huddleston tests” are certainly not the only reason for courts’ insufficient attention to propensity inferences, these “tests” are just as certainly not helping judges to make proper Rule 404(b) decisions. No part of any “Huddleston test” directs judges to consider the reasoning that makes other act evidence relevant to a non-character purpose.

Conclusion

Numerous scholars have urged amending Rule 404(b) to provide more explicit guidance that excluding “character evidence” means excluding other acts evidence that is relevant to a non-character purpose only by means of an inference about character.[64] In the meantime, judges can make a bad situation a little better by not invoking Huddleston for anything other than what the Supreme Court decided in this case: the admission of conditionally relevant evidence does not require a preliminary finding by the trial court that the condition is satisfied, but rather, a determination that the proffering party has offered (or will offer) sufficient evidence for the jury to find that the condition is satisfied.[65] That is all that the Court in Huddleston decided. Spinning multipart checklist-type tests out of a non-holding is definitely not helpful and quite likely harmful.

Rule 404(b) prohibits the admission of other acts evidence to prove action in accordance with character.[66] That is a difficult rule to apply. But using Huddleston’s dicta to make the task of applying Rule 404(b) easier comes with a cost: the possible, if not likely, admission of evidence that should be excluded.

  1.  Professor of Law, St. Mary’s University School of Law. The author thanks Michael Ariens, Chad Pomeroy, and Michael Smith for helpful comments and conversations. ↑
  2.  United States v. Akina, No. 1:22-cr-01008-KWR-1, 2024 WL 326460, at *5 (D.N.M. Jan. 29, 2024). ↑
  3.  Huddleston v. United States, 485 U.S. 681 (1988). ↑
  4.  See Fed. R. Evid. 404(b)(1) (“Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”). ↑
  5.  See Jennifer Wimsatt Pusateri, It Is Better to Be Safe When Sorry: Advocating a Federal Rule of Evidence that Excludes Apologies, 69 U. Kan. L. Rev. 201, 239 (2020) (noting that “even though the Federal Rules of Evidence do not apply in state courts, they serve as a model for the evidentiary rules of many states”). ↑
  6.  Huddleston, 485 U.S. at 689–90. ↑
  7.  United States v. Huddleston (Huddleston I), 802 F.2d 874, 876 (6th Cir. 1986). ↑
  8.  Id. at 875–76. ↑
  9.  United States v. Huddleston (Huddleston II), 811 F.2d 974, 976 (6th Cir. 1987). ↑
  10.  Id. ↑
  11.  Huddleston I, 802 F.2d at 876–77. ↑
  12.  Id. at 876. ↑
  13.  Id. at 877. ↑
  14.  Id. at 875–76. ↑
  15.  Id. at 877. ↑
  16. Huddleston II, 811 F.2d 974, 977 (6th Cir. 1987). ↑
  17.  Huddleston v. United States, 485 U.S. 681, 685 n.2 (1988). ↑
  18.  483 U.S. 171 (1987). ↑
  19.  See Brief for the Petitioner at 15, Huddleston, 485 U.S. 681 (No. 87-6). ↑
  20.  Bourjaily, 483 U.S. at 175. ↑
  21.  Huddleston, 485 U.S. at 685 (citations omitted). ↑
  22.  Id. ↑
  23.  Id. at 682. ↑
  24.  Id. at 690 n.7. ↑
  25.  Id. at 685. ↑
  26.  See, e.g., United States v. Balthazard, 360 F.3d 309, 313 (1st Cir. 2004) (“When the relevancy of evidence is conditioned on the establishment of a fact—in this case, that the other marijuana growing operations were undertaken in furtherance of the charged conspiracy—the offering party need only introduce sufficient evidence to permit a rsuraeasonable jury to find the conditional fact by a preponderance of the evidence to establish that the evidence is relevant.”). ↑
  27.  Huddleston, 485 U.S. at 683. ↑
  28.  See, e.g., United States v. Proto, 91 F.4th 929, 932 (8th Cir. 2024) (“Evidence that Proto previously possessed a firearm in connection with drug trafficking is relevant to show his knowledge and intent. We routinely have affirmed the admission of similar evidence in cases involving drug trafficking and related gun charges.” (citations omitted)). ↑
  29.  Huddleston, 485 U.S. at 686 (“Petitioner acknowledges that this evidence was admitted for the proper purpose of showing his knowledge that the Memorex tapes were stolen. He asserts, however, that the evidence should not have been admitted because the Government failed to prove to the District Court that the televisions were in fact stolen.”). ↑
  30.  Id. at 689. ↑
  31.  Id. at 691–92. ↑
  32.  Scholars have debated the precise contours of what counts as dicta; however, all seem to agree that dicta includes statements not necessary to the court’s holding. See Dictum, Black’s Law Dictionary (11th ed. 2019) (defining “obiter dictum” as a “judicial comment . . . that is unnecessary to the decision in the case and therefore not precedential”); Shawn J. Bayern, Case Interpretation, 36 Fla. St. U. L. Rev. 125, 129 (2009) (“The principal feature of holdings is that they are necessary to decide a case, and the principal feature of dicta is that they are not.”). ↑
  33.  See, e.g., United States v. Cole, 26 F. App’x 45, 48 (2d Cir. 2001) (“To determine the admissibility of prior bad-acts evidence pursuant to Fed. R. Evid. 404(b), we apply the test established by the Supreme Court in Huddleston v. United States . . . .”). ↑
  34.  United States v. Candelaria, No. 1:22-CR-00767-KWR-1, 2024 WL 82845, at *2 (D.N.M. Jan. 8, 2024). ↑
  35.  United States v. Houck, Crim. Action No. 22-323, 2023 WL 158730, at *2 (E.D. Pa. Jan. 11, 2023). ↑
  36.  United States v. Cushing, 10 F.4th 1055, 1075 (10th Cir. 2021). ↑
  37.  People v. Rivera, 2022 VI Super 76U, at *2 (V.I. Super. Ct. Sept. 6, 2022). ↑
  38.  United States v. Bridges, No. 21-1679, 2022 WL 4244276, at *6 (3d Cir. Sept. 15, 2022). ↑
  39.  United States v. Heller, No. 19-CR-00224-PAB, 2019 WL 5394177, at *1 (D. Colo. Oct. 22, 2019). ↑
  40.  People v. Lawhead, No. 338063, 2018 WL 2419052, at *5 (Mich. Ct. App. May 29, 2018). ↑
  41.  United States v. Gutierrez, No. 22-14125, 2024 WL 262706, at *3 (11th Cir. Jan. 24, 2024) (quoting United States v. Sterling, 738 F.3d 228, 238 (11th Cir. 2013)). ↑
  42.  Howard v. City of Durham, 68 F.4th 934, 955 (4th Cir. 2023) (quoting Smith v. Baltimore City Police Dep’t, 840 F.3d 193, 201 (4th Cir. 2016)). ↑
  43.  United States v. Valenzuela, 57 F.4th 518, 521 (5th Cir. 2023). ↑
  44.  United States v. Brandon, 64 F.4th 1009, 1020–21 (8th Cir. 2023) (citing United States v. Williams, 796 F.3d 951, 958–59 (8th Cir. 2015)). ↑
  45.  Randolph v. State, 891 S.E.2d 818, 823 (Ga. 2023) (citing Lowe v. State, 879 S.E.2d 492 (2022)). ↑
  46.  United States v. Johnson, No. 21-CR-428 (ER), 2023 WL 5632473, at *17 (S.D.N.Y. Aug. 31, 2023) (citing United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002)). ↑
  47.  United States v. Eggleston, No. CR 20-434 DSF, 2022 WL 252412, at *2 (C.D. Cal. Jan. 26, 2022) (quoting United States v. Bibo-Rodrieguez, 922 F.2d 1398, 1400 (9th Cir. 1991)). ↑
  48.  Smith v. Commonwealth, 636 S.W.3d 421, 436 (Ky. 2021) (citing Purcell v. Commonwealth, 149 S.W.3d 382, 399–400 (Ky. 2004)). ↑
  49.  United States v. Lindsey, 3 F.4th 32, 43 (1st Cir. 2021) (citing United States v. Henry, 848 F.3d 1, 8 (1st Cir. 2017)). ↑
  50.  United States v. Serrano-Ramirez, 811 F. App’x 327, 341 (6th Cir. 2020) (citing United States v. Hardy, 228 F.3d 745, 750 (6th Cir. 2000)). ↑
  51.  United States v. Cox, 963 F.3d 915, 924 (9th Cir. 2020) (citing United States v. Bailey, 696 F.3d 749, 799 (9th Cir. 2012)). ↑
  52.  Lajeunesse v. State, 458 P.3d 1213, 1217–18 (Wyo. 2020) (citing Griggs v. State, 367 P.3d 1108, 1143 (Wyo. 2016)). ↑
  53.  See Fed. R. Evid. 404(b), 104, 403. ↑
  54.  State v. Terrazas, 944 P.2d 1194, 1197 (Ariz. 1997) (en banc) (citations omitted). ↑
  55.  State v. Yager, 461 N.W.2d 741, 751 (Neb. 1990) (Shanahan, J., dissenting) (citations omitted) (quoting State v. Ryan, 444 N.W.2d 610 (Neb. 1989)). ↑
  56.  See, e.g., cases cited supra notes 34–52 (articulating a “Huddleston test” that does not direct a court to exclude evidence that is relevant by means of an inference about character). ↑
  57.  See Fed. R. Evid. 404 advisory committee’s note to 1991 amendment (“[T]he overwhelming number of cases [addressing 404(b)(2) evidence] involve introduction of that evidence by the prosecution.”). ↑
  58.  United States v. Gomez, 763 F.3d 845, 853 (7th Cir. 2014). ↑
  59.  See Fed. R. Evid. 404 advisory committee’s note to 2020 amendment. ↑
  60.  Fed. R. Evid. 404(b)(3)(B). ↑
  61.  United States v. Miller, 673 F.3d 688, 699 (7th Cir. 2012). ↑
  62.  Steven Goode, It’s Time to Put Character Back into the Character-Evidence Rule, 104 Marq. L. Rev. 709, 711–12 (2021) (“The Judicial Conference’s Committee on Rules of Practice and Procedure and its Advisory Committee on Evidence Rules recently undertook a multi-year effort to revise Rule 404(b). But they wound up producing amendments so trifling that nothing is likely to change.” (citations omitted)). ↑
  63.  Cf. United States v. Miller, 673 F.3d 688, 696 (7th Cir. 2012) (“[A]dmission of prior drug crimes to prove intent to commit present drug crimes has become too routine.”). ↑
  64.  For a recent and persuasive example, see generally Hillel J. Bavli, Correcting Federal Rule of Evidence 404 to Clarify the Inadmissibility of Character Evidence, 92 Fordham L. Rev. 2441 (2024). ↑
  65.  Huddleston v. United States, 485 U.S. 681, 685 (1988). ↑
  66.  Fed. R. Evid. 404(b)(1). ↑

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16Mar

Exclusion On My Mind: The Admissibility of Rap Lyrics as Evidence in Criminal Proceedings

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Mae Zeitouni

The State of Florida v. Jamell Demons is an ongoing criminal case in Florida concerning popular rap artist Jamell Demons, more commonly known by his stage name YNW Melly.[1] Demons faces two first degree murder charges related to the 2018 deaths of Anthony Williams and Christopher Thomas.[2] This case has garnered a great deal of attention from the public, mainly in connection with Demons’ popular single “Murder on My Mind,” a rap single detailing homicidal ideations through a fictional story of Demons accidentally killing a friend.[3] After Demons’ first trial ended in a mistrial, the prosecution has sought to introduce the majority of Demons’ discography into evidence in his upcoming second trial. The prosecution hopes to cite the lyrics in Demon’s rap songs as proof of culpability, intent, and/or his real-life actions.[4] In a controversial decision, presiding Judge John Murphy has ruled that Demon’s lyrics are admissible evidence that the prosecution may use as part of their case.[5]

Demons is far from the first high-profile rapper to “face the music” in court, as the admissibility of artistic expression in criminal trials has been the subject of much discussion over the past few decades.[6] Over the past 30 years, rap lyrics have often been used as evidence in criminal trials—a strategy that has become increasingly popular with prosecutors over time.[7]  For example, when hip-hop star Jeffery “Young Thug” Williams was charged with criminal racketeering under Georgia’s Racketeer Influenced and Corrupt Organizations Act (“RICO”) in 2023, a Fulton county judge ruled that Williams’ rap lyrics and music videos were “conditionally admissible” as long as the lyrics were relevant to proving either mens rea or actus reus.[8]

In essence, the lyrics must be “relevant” to be admissible. Under the Federal Rules of Evidence, relevance requires (1) that the evidence makes a fact more of less probable and (2) that the fact is a “fact of consequence.”[9] Rap lyrics cannot be used only to emphasize a defendant’s “bad character” or their general “propensity” to commit certain crimes.[10] Furthermore, under Federal Rule of Evidence 403, even if the evidence is considered to be relevant, courts ruling on the admissibility of evidence are required to weigh and balance the probative value of evidence against its potential to illicit unfair prejudice.[11] If the probative value of relevant evidence outweighs its prejudicial influence, the evidence may be admitted.[12] It is important to note courts often caution that unfair prejudice does not equate to evidence which will harm a party’s case, but rather to evidence which is likely to cause the case to be decided upon an improper basis.[13]

Even with the boundaries established by the Federal Rules, artistic expression and its relation to an alleged wrongdoing is largely uncontemplated by the law. Musicians often create fictional personas under which they produce their music. Consequently, it can be difficult to determine whether their artistic expression is based upon lived events or fabricated stories which fit with their fictitious character.[14] Thus, courts are faced with an additional responsibility in determining the admissibility of rap lyrics: whether the words/speech of the artist is based in reality or fiction.

There have been some efforts by legislators at both state and federal levels to resolve this issue, through either modification of jurisdictional evidentiary rules or sweeping legislation aiming to restrict the use of rap lyrics entirely; however, these efforts have not yet been widely successful.[15] While the problems surrounding the evidentiary admissibility of artistic expression, particularly rap lyrics, are not yet completely settled, inconsistent administration of such decisions could pose a problem.

[1] YNW Melly’s Double Murder Retrial On Pause As Prosecutor Appeal Judge Order Over Evidence, NBC6 (Jan. 26, 2024), https://www.nbcmiami.com/news/local/ynw-mellys-double-murder-retrial-on-pause-as-prosecutors-appeal-judge-order-over-evidence/3217421/.

[2] Mary Helen Moore, Grand Jury Indictment: YNW Melly Fired The Gun, Killing The Friends He Grew Up With, Treasure Coast Newspapers (Feb. 15, 2019), https://www.tcpalm.com/story/news/crime/2019/02/14/indictment-ynw-melly-shot-friends-staged-scene-look-like-drive-by/2868483002/.

[3] Kyle Eustice, YNW MELLY’S “MURDER ON MY MIND” NABS NO. 1 SPOT ON APPLE MUSIC AMID MURDER CHARGES, HipHopDX (Feb. 16, 2019), https://hiphopdx.com/news/id.50328/title.ynw-mellys-murder-on-my-mind-nabs-no-1-spot-on-apple-music-amid-murder-charges.

[4] Eddie Fu, YNW Melly’s Lawyer Thinks The Rappers Lyrics May Be Used As Evidence In Court, Genius (Apr. 9, 2019), https://genius.com/a/ynw-melly-s-lawyer-thinks-the-rapper-s-lyrics-may-be-used-as-evidence-in-court.

[5] Order Den. Def.’s Mot. to Suppress, State v. Demons, Dec. 18th, 2023, 19001872CF10A.

[6] See Cady Lang, What to Know About Young Thug’s Trial and the Controversial Use of Rap Lyrics in Criminal Cases, Time Magazine (Jun. 29, 2022), https://time.com/6192371/young-thug-rap-lyrics-evidence-court/; Jaeah Lee, This Rap Song Helped Sentence a 17-Year-Old to Prison for Life, N.Y. Times (Mar. 30, 2022), https://www.nytimes.com/2022/03/30/opinion/rap-music-criminal-trials.html.

[7] Emily Pecot, Using Rap Lyrics as Evidence In Court, New Jersey State Bar Assoc. (Feb. 15, 2023), https://njsbf.org/2023/02/15/using-rap-lyrics-as-evidence-in-court/.

[8] Bill Hochberg, Why Rap Lyrics Can Be Used In Young Thug’s Trial, But Not In Jam Master Jay’s Case, Forbes (Feb. 27, 2024), https://www.forbes.com/sites/williamhochberg/2024/02/27/why-jam-master-jay-and-young-thugs-trials-differ-on-rap-lyrics/?sh=236e933c2036. Mens rea refers to the state of mind which the defendant must be proved to have had at the time of the relevant conduct while actus reus refers to the outward conduct which must be proved against the defendant. Id.

[9] Fed. R. Evid. 401; Fed. R. Evid. 402.

[10] Fed. R. Evid. 404.

[11] Fed Rules Evid. R 403.

[12] Fed Rules Evid. R 403; see State v. Cheeseboro, 552 S.E.2d 300, 313 (2002) (“We find these references too vague in context to support the admission of this evidence. The minimal probative value of this document is far outweighed by its unfair prejudicial impact as evidence of appellant’s bad character i.e. his propensity for violence in general . . . these lyrics contain only general references glorifying violence. Accordingly, the Ruckus song should have been excluded.”)

[13] Kelly McGlynn, Lyrics in Limine: Rap Music and Criminal Prosecutions, ABA (Jan. 11, 2023), https://www.americanbar.org/groups/communications_law/publications/communications_lawyer/2023-winter/lyrics-limine-rap-music-and-criminal-prosecutions.

[14] Id.

[15] See e.g., Cal. Evid. Code § 352.2(a);A.B. A127, 2023 Reg. Sess. (N.Y. 2023); Press Release, Congressmen Johnson, Bowman Re-Introduce Bill To Protect Artists’ 1st Amendment Rights, The Office of Congressman Hank Johnson (Apr. 23, 2023), https://hankjohnson.house.gov/media-center/press-releases/congressmen-johnson-bowman-re-introduce-bill-protect-artists-1st.

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30Jan

The Spoils of War: Arguments in Favor of Independent Claims for Spoliation Against Third Parties

Categories: Online
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11 Wake Forest L. Rev. Online 1 (Opens PDF in new tab)

Andrea A. Anderson*

I.  Introduction

Kenneth was a coal miner.[1]  One day, while cooling a welding area, a hose burst and severely injured his neck and face.[2]  Despite sustaining major injuries that would prevent him from working in the future, Kenneth had limited legal options to pursue compensation.[3]  For example, workers’ compensation law protected his employer, the coal company, from lawsuits by employees.[4]  Kenneth’s best option was to bring a products liability claim against the manufacturer and distributor of the welding hose.[5]  When Kenneth asked his employer for the hose so that he could investigate the cause of his injuries, his employer refused.[6]  The employer also refused to reveal the identity of either the manufacturer or distributor of the hose.[7]  After further investigation, Kenneth learned that his employer intentionally destroyed the hose after it had allowed the manufacturer and distributor to inspect it for their own legal defense.[8]  Perhaps even more troubling, Kenneth learned that the distributor was a subsidiary of the employer coal company.[9]  Frustrated with the unfair actions of the coal company and unable to pursue his products liability claim, Kenneth filed suit against his employer for intentional spoliation of evidence.[10]

Spoliation tort claims hold an individual liable in damages for the destruction of evidence critical to another’s legal claim.  The tort serves as an alternative to the traditional evidentiary approach to spoliation.[11]  In the traditional approach, parties claiming spoliation are limited to trial sanctions ranging from an inference that the destroyed evidence would have been adverse through the complete dismissal of a suit.[12]  In the tort suit, by contrast, a plaintiff is not limited to trial remedies and may seek full compensation for the underlying lawsuit.[13]

Courts and legal scholars categorize spoliation claims by the level of intent of the spoliator and the party’s relation to the underlying lawsuit.[14]  Spoliation claims may be brought against primary parties to the underlying suit or third parties to the litigation.[15]  Additionally, plaintiffs may allege that the spoliator negligently or intentionally destroyed evidence necessary for the litigation.[16]  This categorization results in four overall forms of spoliation claims: first-party negligent, first-party intentional, third-party negligent, and third-party intentional destruction of evidence.[17]

An independent spoliation cause of action is relatively novel.  In 1984, the California Court of Appeals was the first court to allow an independent spoliation claim.[18]  Afterwards, additional state courts began following suit and recognized independent forms of spoliation within their own jurisdictions.[19]  In the thirty-six years since the first case in California, thirty-three states have considered an independent spoliation claim.[20]  Nineteen states declined to recognize a spoliation tort, and fourteen states recognized at least one form of the claim.[21]

Of the forms of spoliation, third-party intentional claims enjoy the largest support amongst courts.  Most recently, the Idaho Supreme Court formally recognized third-party intentional spoliation in October of 2019.[22]  This Comment argues that third-party intentional claims are necessary and viable tort claims within the scheme of American civil litigation.

Third-party intentional spoliation claims are necessary to provide a remedy for the victim.  While sufficient trial sanctions exist to deter and remedy spoliation committed by first parties, such remedies are not available against third parties who interfere with a litigant’s ability to seek justice under the court system.[23]  Currently, states provide limited misdemeanor charges against third parties who are under a court order to preserve evidence and subsequently destroy or lose the material.[24]  Such consequences are only available in narrow circumstances, insufficiently deter spoliation, and fail to provide the victim with any remedy in its underlying lawsuit.  Thus, third-party spoliation claims are necessary to provide a remedy where current law is lacking.

Third-party intentional claims are viable because they advance the tort goals of deterrence and morality.  When an individual takes intentional steps to interfere with a viable claim, he measures the cost and benefits to the action.[25]  Knowing that spoliation is only found in the most fortuitous of circumstances and most cases settle before the discovery of such malfeasance,[26] the intentional spoliator takes a calculated risk that is purely aimed at self-interest at the expense of truth and justice.  Such immoral and intentional interference cannot be tolerated in our courts and should be addressed with a cause of action.

As Kenneth the coal miner’s case illustrates, third-party intentional spoliators are rarely true strangers to the underlying litigation.  Third parties who intentionally destroy evidence often have some pecuniary or personal interest in the lawsuit.[27]  Faced with minimal consequences, there is little deterrent for interested third parties to exercise their traditional property rights and dispose of their own property at will.  As courts and legal scholars wrestle with the issue of independent spoliation claims, they should choose to adopt and affirm the viability and necessity of third-party intentional spoliation claims.

Part II of this Comment will trace the evolution of independent tort claims from its beginning in California courts through its current acceptance across the fifty states and the District of Columbia.  Part III of this Comment will present arguments in favor of the necessity and viability of third-party intentional claims.  Part III.A will explain that third-party intentional claims conform with tort law principals. Part III.B will explain the fundamental errors in court opinions rejecting third-party intentional spoliation and will examine successful frameworks used in states that recognize independent spoliation.

II.  Background

A.  Historical Development of Spoliation of Evidence as a Tort

1.  Spoliation as an Evidentiary Issue

The concept of spoliation has its roots in English common law.  Its origin is often traced back to Amory v. Delamirie,[28] a 288-year-old case of a chimney sweep who found a jeweled ring while performing his work.[29]  In Amory, the sweep brought the jewel to a goldsmith who, under the pretense of evaluating the jewel, took it from the sweep and refused to return it.[30]  The sweep brought a common law claim of trover against the goldsmith, but the goldsmith refused to produce the jewel at trial.[31]  The court directed the jury that “unless the [goldsmith] did produce the jewel, and shew it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages.”[32]  This jury instruction represents what the American legal system would later call an adverse inference in favor of the victim of spoliation.

Under American law, spoliation of evidence is largely treated as an evidentiary matter that the court addresses through sanctions.  The Federal Rules of Civil Procedure, for example, impose a variety of sanctions for first-party spoliation.[33]  Courts will fashion the intensity of the sanction to the level of intent of the spoliator.[34]  State courts follow a similar pattern when addressing first-party spoliation.  State courts largely treat spoliation as an evidentiary matter, and they enjoy great discretion in determining the just remedy for each case of spoliation.  For example, in Maryland, “[t]he destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party.”[35]  Under Florida law, a court may even sanction an offending party by establishing a rebuttable presumption of negligence and liability.[36]  Massachusetts and Minnesota take a slightly different approach.  Instead of tailoring the spoliation sanction to the level of culpability in the offending party, those states instruct judges to select a remedy that will address the level of prejudice suffered by the innocent party.[37]

Compared to the wealth of tools to address first-party spoliation, there are relatively limited remedies against third parties who destroy evidence.  Under several state laws, a third party who destroys evidence may be subject to criminal liability.  For example, under California law, it is a misdemeanor offense to destroy evidence that a court has ordered a stranger to the action to preserve for litigation.[38]  In Delaware, a state statute made it a class G felony to conceal, alter, or destroy evidence by any person, primary parties to the litigation or third parties.[39]

States have traditionally used evidentiary sanctions to deter and remedy spoliation.  Though courts have the greatest flexibility when addressing spoliation by a first party, court orders and criminal charges are also available against third parties who destroy evidence.

B.  Spoliation as an Independent Tort

The evidentiary approach, however, is not the only way that a court may deter and remedy the destruction of evidence that is essential to a civil suit’s just resolution.

1.  Spoliation Tort Birth and California’s Expansive Phase

California was the first state to recognize an independent claim for spoliation in Smith v. Superior Court.[40]  In Smith, the plaintiff was permanently blinded when a wheel and tire detached from another motorist’s van and collided with her windshield.[41]  After the accident, the van was towed to the dealer’s repair shop who agreed to preserve parts of the van for inspection.[42]  Unfortunately, the dealer shop later destroyed or lost the parts, and the plaintiff sued the dealer for “Tortious Interference with Prospective Civil Action By Spoliation of Evidence.”[43]

California’s Second District Court of Appeals noted that “California has long recognized [for] every wrong there is a remedy.”[44]  The court believed recognition of a novel, independent tort was necessary to deter future acts of intentional spoliation.[45]  Responding to arguments that assessing damages would be impermissibly speculative, the court quoted a United States Supreme Court holding that not all tort damages must be proven with certainty.[46]

Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.  In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.[47]

The defendant argued that the tort of intentional spoliation of evidence was precluded by a state statute imposing a misdemeanor criminal punishment for the act.[48]  The court rejected the defendant’s argument and noted that other state criminal statutes gave rise to a civil cause of action.[49]  The court further analogized intentional spoliation of evidence to the tort of intentional interference with prospective business advantage.[50]  The court ultimately concluded that the claim was necessary to protect the legal interests of a litigant in the value of his probable expectancy of the underlying suit and crafted a claim for intentional spoliation of evidence.[51]  Shortly after Smith, the California Second District Court of Appeals recognized an independent tort of negligent spoliation of evidence.[52]

In the next decade, four more states would formally recognize an independent spoliation tort.  Two years after Smith, the Supreme Court of Alaska formally recognized the tort of first-party spoliation.[53]  In 1993, the Ohio Supreme Court answered certified questions from a federal court regarding Ohio’s recognition of spoliation actions.[54]  Without providing detailed reasoning, the court officially recognized an independent tort for intentional spoliation against first- and third-party spoliators.[55]  Two years later, the Illinois and New Mexico supreme courts recognized negligent spoliation claims under their existing tort law structures.[56]  In the spring of 1998, the District of Columbia also recognized negligent spoliation claims against third parties.[57]  The District of Columbia would thus become the first jurisdiction to create a stand-alone negligent spoliation tort with elements distinct from traditional negligence law.

2.  California’s Restrictive Phase and the Continued Growth of Spoliation Claims

Just two months after the District of Columbia recognized spoliation, the Supreme Court of California changed direction and severely limited the availability of independent spoliation claims.[58]  In Cedars-Sinai Medical Center v. Superior Court,[59] the plaintiff alleged the defendant hospital intentionally destroyed medical records to prevent the plaintiff from prevailing in his medical malpractice claim.[60]  The court explained that deterrence of spoliation alone was insufficient to justify the recognition of a novel tort.[61]  Instead, the court would only recognize the claim if it “would ultimately create social benefits exceeding those created by existing remedies for such conduct, and outweighing any costs and burdens it would impose.”[62]  The court was most concerned with three issues: (1) the potential for endless litigation in recognizing a derivative tort action for misconduct associated with an underlying suit; (2) the strength of already existing remedies; and (3) the uncertainty in assessing damages.[63]  The court held that there was no cause of action for first-party spoliation of evidence where the party knew of the destruction before the conclusion of the initial lawsuit.[64]

One year after Cedars-Sinai, the Supreme Court of California rejected its recognition of third-party intentional spoliation in Temple Community Hospital v. Superior Court.[65]  The court explained that it would be an anomaly “for a nonparty to be liable in damages, including punitive damages for conduct that would not give rise to tort liability if committed by a [primary] party” to the litigation.[66]  The court again reiterated its concern over the speculative nature of damages in spoliation claims and noted that causation in such claims was similarly speculative.[67]  Re-emphasizing the court’s concern with duplicative litigation and inconsistent jury determinations, the court believed that third-party claims posed an even greater burden to the judicial system because it would substantially enlarge the class of plaintiffs.[68]

The California Supreme Court rejected the Second District’s reasoning that spoliation was analogous to  interference with prospective economic advantage.[69]  Under California common law, interference with prospective economic advantage is not viable under circumstances that present speculative claims such as sporting contracts and governmental licensing.[70]  Because spoliation claims are inherently speculative, they do not fall within the class of economic interests protected by California common law.[71]

Finally, the California Supreme Court reasoned the lack of remedies against third parties was an insufficient argument to recognize an independent spoliation claim.[72]  The court found existing criminal sanctions were sufficient to address third-party spoliation and rejected the claim.[73]  After acknowledging that fewer remedies were available for third-party spoliation, the court held that it was ultimately a matter for the legislature to draft additional protections into the law and the burden of private parties to ensure conservation of evidence through contractual agreements.[74]

After Cedars-Sinai and Temple, California courts were increasingly hostile towards independent spoliation claims.  The Second District Court of Appeals retreated from leading the state in recognizing spoliation claims and declared it would not recognize first- or third-party spoliation of evidence as independent torts.[75]  The Third and Fourth Districts followed suit and also declined to recognize independent claims for negligent spoliation of evidence.[76]

Despite California’s dramatic shift, states continued to formally recognize independent spoliation claims.  In the next twenty years, Alabama, Connecticut, Florida, Idaho, Louisiana, Montana, New Jersey, and West Virginia would all recognize independent spoliation actions.[77]

3.  States Continue to Recognize the Necessity and Viability of Independent Spoliation Claims

Most recently, in Raymond v. Idaho State Police,[78] Idaho recognized intentional spoliation in October 2019.[79]  In Raymond, the plaintiff’s father, Barry Johnson, was killed in a car accident.  The accident occurred when a police officer tried to pass Johnson while driving at a very high speed in the left lane while Johnson was making a lawful left turn into his driveway.[80]  The state police investigated the accident, and though the driving officer was charged with manslaughter, the charges were ultimately dismissed.[81]  The daughter brought suit against the state and county alleging two claims: wrongful death and intentional interference with prospective civil litigation.[82]

The pleadings in Raymond reflect the philosophical divide between courts that endorse the recognition of tort spoliation and those that do not.  The plaintiff argued that the state should adopt third-party spoliation claims in order “to protect plaintiffs from third-party misconduct because existing nontort remedies are insufficient and do not serve as adequate deterrents.”[83]  On the other hand, the defendant argued that the state should not adopt the tort because it would lead to endless and burdensome litigation, and existing remedies sufficiently deter the destruction of evidence.[84]

The Supreme Court of Idaho agreed with the plaintiff and formally adopted the tort of “intentional interference with a prospective civil action by spoliation of evidence by a third party.”[85]  The court supported its decision with two policy justifications: remedy and deterrence.[86]  Unlike first-party spoliation, the court believed traditional non-tort remedies to deter destruction of evidence by third parties provided an inadequate remedy for victims.[87]  Third parties are not subject to the same evidentiary inferences and discovery sanctions used to remedy destruction of evidence by first parties.[88]  Further, the court argued, attorney sanctions against third parties provided only minimal and insufficient deterrence.[89] Thus, by limiting the tort to third parties, the court believed it was creating an enhanced deterrent and providing a remedy to victims that would otherwise not have one.[90]  Finally, the court argued, that by limiting the claim to intentional interference, it was not only providing a remedy for the victim, but addressing acts that “are ultimately an affront to the judicial process as a whole.”[91]

Courts in Hawaii, Kansas, Missouri, Oklahoma, Utah, Vermont, and Virginia have considered independent spoliation claims, but rejected the individual case on its facts without affirming or rejecting a spoliation tort.[92]  Within those opinions, courts continued to express approval of third-party intentional spoliation claims.[93]  Eighteen states have yet to consider independent spoliation claims but may do so in the future as litigants continue to seek remedies for interference with their legal rights.

III.  Analysis

The value and recognition of independent spoliation claims remains hotly contested.  The majority of state courts that have considered the issue have followed Cedars-Sinai and declined to recognize the claim.  However, as is clear from the trend in case law, the California Supreme Court’s change in position did not stem the tide in recognition of spoliation torts.  Just last year, the Idaho Supreme Court joined the ranks of state courts that found the claim valid and necessary under its state legal system.

This Comment argues that state courts should continue to recognize spoliation claims, but under narrow circumstances.  Because existing court sanctions properly address both negligent and intentional first-party spoliation, no such independent claim is necessary to deter or remedy destruction of evidence by primary parties.  Additionally, holding third parties liable for negligent destruction of evidence would not be viable under the American legal system, where property owners generally enjoy the right to use and destroy personal property at will.[94]  Imposing an affirmative duty to preserve evidence on a third party would violate his property rights and impose a burden of predicting future litigation between parties other than himself.[95]  Thus, third-party negligence claims, though perhaps necessary in our system for lack of adequate remedies, are nonviable because the claims violate other established legal principles.

Third-party intentional claims, by contrast, are necessary and viable under the American legal system.  A third party who destroys evidence, with the intent of interfering with another’s lawsuit, commits a flagrant affront to the judicial system.  Our current legal system provides inadequate deterrence for such intentional spoliation in the form of weak criminal misdemeanor sanctions.  Further, the judicial system leaves the victim of such spoliation without any form of remedy, as traditional discovery sanctions are unavailable against a third party.  Thus, this Comment argues that third-party spoliation claims are necessary to provide a remedy to the victim and provides an analysis of state spoliation frameworks that are viable under American civil law.

A.  Recognition of Third-Party Intentional Spoliation Claims is Consistent with the Fundamental Goals of Law

In 2003, the West Virginia Supreme Court recognized all forms of spoliation except first-party negligent claims.[96]  The court reached its decision by analyzing each form of the claim under the goals of tort law: deterrence, compensation, and morality.[97]  Applying this analytical framework, it is clear that third-party intentional spoliation claims are consistent with the fundamental goals of tort law.

Deterrence and compensation weigh heavily in favor of recognizing third-party intentional spoliation claims.  Trial courts are generally given great discretion in selecting the appropriate sanction for first-party spoliation and will tailor the remedy according to the fault of the party destroying evidence.[98]  Third parties, by contrast, are not subject to the same trial sanctions and consequences.  Though some states impose misdemeanor charges for third parties who fail to comply with a court order to preserve evidence,[99] there is no penalty for destroying evidence before litigation begins or before the court issues an order.  As argued in Smith, “[i]f crucial evidence could be intentionally destroyed by a party to a civil action who thereby stands to gain substantially monetarily by such destruction, the effect of a misdemeanor would be of minimal deterrence.”[100]

Further, there is no form of compensation for the victim of third-party destruction of evidence because the court will not sanction an innocent first-party litigant for the behavior of a third party.  Thus, the goal of compensation and deterrence weighs in favor of recognizing third-party intentional claims.

Traditionally, the core of tort law was morality.[101]  When courts determined liability for actions, the morality of the tortfeasor’s act was the predominant factor in their analyses.[102]  Professor Charles Nesson discussed the intentional spoliator as an immoral man.[103]  After looking at the relevant case law, Professor Nesson discovered a disturbing pattern: spoliation is generally discovered only in the most fortuitous of circumstances.[104]  He hypothesized that as a result of its low rate of discovery, a victim of spoliation may not discover the destruction until well into the litigation or even after trial.[105]  However, most civil claims will settle before the resolution of the suit.[106]  Thus, as Professor Nesson argues, the intentional spoliator adopts a “potent strategy: suppress [i.e., spoliate] and settle.”[107]  The intentional spoliator acts immorally as he takes a calculated risk to interfere with another’s right to seek justice under the legal system in hopes of reaping some tangible benefit.

As concluded by legal scholars and the West Virginia Supreme Court, spoliation claims are necessary and viable under the American legal system because they enforce morality, deter wrongdoing, and compensate victims.

B.  The Temple Decision is Fundamentally Flawed

The Supreme Court of California did not fairly represent the nature of a third-party intentional spoliation tort in Temple.  Temple reasoned that spoliation claims are not viable because damages are impermissibly speculative.[108]  However, other states who have recognized spoliation have created workable standards for spoliation that fall within United States Supreme Court guidance.  Similarly, Temple reasoned that causation in spoliation claims is overly speculative.[109]  However, a study of other jurisdictional case law reveals multiple frameworks for causation that a court may adopt to avoid arguments of speculation.  Finally, Temple reasoned that allowing claims against third parties would create a substantial burden on the litigation system by enlarging the class of available plaintiffs.[110]  However, no such pattern has been seen in any state that allows third-party intentional claims, and justices within California disagreed with Temple’s assertion.  Contrary to Temple, third-party intentional spoliation claims are necessary and viable under American civil law.

1.  Temple Incorrectly Represented the Nature of Tort Spoliation Damages and Suggested Frameworks

In Temple, the court criticized Smith’s analogy of intentional spoliation to a claim for intentional interference with prospective economic advantage.[111]  Other state courts, however, have affirmed this interpretation of spoliation.  New Mexico courts, for example, also recognize intentional spoliation as within the class of economic torts.[112]  In its decision to recognize third-party intentional spoliation, the New Mexico Supreme Court explained the use of the judicial system and potential recovery in a lawsuit was an economic interest entitled to protection.[113]  In a later case, the New Mexico Supreme Court affirmed its view of spoliation torts and explained that its “primary goal in adopting a separate cause of action for intentional spoliation was not to vindicate the interests of the courts in preventing litigation-related fraud . . . [but was] to protect litigants’ and potential litigants’ prospective right of recovery in civil actions.”[114]

The argument against spoliation as an economic tort in Temple is merely a reiteration of the California Supreme Court’s critique of spoliation damages in Cedars-Sinai.[115]  Under California law, the Temple court reasoned, the economic tort was not viable because damages were impermissibly speculative.[116]  However, as explained by both the earlier Smith case and—more recently—the Idaho Supreme Court, spoliation damages are not so indeterminant as to cross the threshold into impermissible speculation.[117]

States that recognize spoliation claims created workable frameworks to assess damages.  One such framework, used in Alabama, Connecticut, and West Virginia, allows the plaintiff to recover the full value of the underlying lawsuit.[118]  This framework is the most concrete way of assessing spoliation damages.  In these states, so long as the plaintiff successfully shows all other elements of spoliation, there arises a rebuttable presumption that—but for the spoliation—the plaintiff would have recovered the full value of the underlying suit.[119]  The juries need not employ mathematical probabilities to assess the damages, and plaintiffs need not spend additional funds on damages experts.  Instead, the damage sum is set at the time of pleading.

Another form of damages in spoliation claims avoids the issue of speculation by providing an instruction to the jury to multiply the possible award in the underlying suit by the probability that the plaintiff would have won the claim if he had access to the evidence.[120]  This form of damages is factual, and thus inherently more speculative than the full recovery standard.  However, the determination of damages is still within the bounds of the United State Supreme Court precedent in Story Parchment Co. v. Paterson Parchment Paper Co.[121]  Story Parchment only prohibits damages based on mere speculation or guess.[122]  The Supreme Court instructs that it is enough that the damages are a matter of just and reasonable inferences.[123]  Requiring a jury to assess the probability that a litigant would have prevailed on a claim and multiplying that by a known sum is not a mere guess. It is the result of a reasonable inference and designed to bring justice to a party who has been deprived a legal right.

Thus, there are several ways to assess damages in a spoliation claim that are not speculative.  Instead of the Temple decision, courts considering the viability of spoliation claims should adopt one of the other models developed in other state supreme court decisions.

2.  Temple Incorrectly Represented the Nature of Causation in Tort Spoliation and Suggested Frameworks

In Temple, the California Supreme Court argued that independent spoliation claims require the jury to make a speculative guess as to causation.[124]  Namely, the claims require a jury to speculate as to the effect of the evidence on the underlying suit without a means to determine the actual content of the evidence.[125]  The nature of spoliation claims makes it impossible for the jury to assess what the evidence actually contained and whether its absence was the cause in fact of the failed lawsuit.[126]  However, states who have adopted spoliation as an independent tort have created successful ways to assess causation within the claims.[127]  In general, states have adopted one of two viable frameworks for causation: (1) a summary judgment standard and (2) a significant impairment standard. 

Under the summary judgment standard, a plaintiff needs to show that the evidence was so critical to the underlying action, that without it, the claim could not or did not survive a summary judgment  challenge.[128]  Because survival of summary judgment requires a showing that there exists no genuine dispute of material fact, a party claiming spoliation in these states must essentially show the destroyed evidence was critical to the underlying suit.  Without that evidence, the party would have no other evidence to meet its burden of production on an essential element of the underlying claim.[129]  However, under this standard, the plaintiff need not show the underlying claim would have ultimately been successful with the evidence.  Thus, the summary judgment standard avoids speculation on the actual effect the underlying evidence would have had on the success of the suit.  Instead, the standard requires only that the plaintiff show the destruction interfered with its burden of production.

Under the significant impairment standard, causation requires a showing of a significant possibility of success in the underlying suit and that the destruction of the evidence caused a significant impairment in pursuing the claim.[130]  In Holmes, the court rejected a standard that would require plaintiffs to show they would have prevailed on the underlying claim by a preponderance of the evidence.[131]  The court reasoned that such a standard was unreasonably high and failed to protect the unique circumstances of a spoliation victim.[132]  Such a standard would essentially require that the plaintiff prove the initial lawsuit in its entirety.[133]  However, in order to protect defendants from frivolous lawsuits and duplicate litigation, the court believed it important that the underlying suit was, at some threshold, meritorious.[134]  Thus, as compared to the summary judgment standard, this form of causation requires a defendant to address the possible success of the underlying suit.  As stated by the Montana Supreme Court, the significant impairment test requires the plaintiff to show that:

(1) the underlying claim was significantly impaired due to the spoliation of evidence; (2) a causal relationship exists between the projected failure of success in the underlying action and the unavailability of the destroyed evidence; and (3) the underlying cause of action would enjoy a significant possibility of success if the spoliated evidence still existed.[135]

“With respect to the third prong of causation, the standard of ‘significant possibility of success,’ is lower than the standard of ‘preponderance of the evidence.’”[136]  Though the significant impairment standard does require some form of speculation as to the underlying suit, it adds an additional layer of protection to defendants from frivolous lawsuits.

Both forms of causation provide a workable standard within their states.  The summary judgment standard provides a more concrete determination than the significant impairment standard.  By comparison, the significant possibility standard requires the plaintiff to show a possibly meritorious lawsuit but stops short of requiring the plaintiff to show it would have succeeded by a preponderance of the evidence.  Both standards provide a workable framework that allows the plaintiff to prove causation without resulting to speculation.  Further, both frameworks provide a remedy for the victim of a third-party intentional spoliation claim that would otherwise have no remedy at law for the impact of destroyed evidence on its underlying legal claims.

3.  Temple Incorrectly Represented the Burden of Third-Party Spoliation Claims on the Judicial System

Temple argued that third-party spoliation claims threaten the judicial system with a potential for endless derivative litigation and a substantially larger pool of defendants.[137]  However, the court presents this argument merely as a hypothetical.  The court does not support its hypothetical fear with any data from within its state or the five other states that recognized spoliation after Smith.

Notably, the justice who wrote the opinion in Cedars-Sinai (rejecting first-party spoliation claims) dissented in Temple and disagreed with the argument that third-party claims imposed a substantially larger burden than was justified.[138]  Instead, the dissent called the argument hyperbolic.[139]  Rather than endless litigation, the action “would create a single lawsuit between the spoliation victim and the spoliator.”[140]  Because the typical remedies available against first parties are unavailable against third parties, the dissent argued that any added burden on the judicial system is outweighed by the necessity to provide victims with a remedy and deter wrongdoing.[141]

In contrast to Temple, no other state who recognized third-party intentional claims later reported having a flood of litigation or a substantial burden on the judicial system.  California is the only state that has substantially changed its position on spoliation claims after recognition.  Despite California’s strong opinion in Temple, more states adopted at least one form of the tort in the twenty years after California’s reversal than states adopted the tort during its high water mark in California.[142]  When the Idaho Supreme Court officially recognized intentional claims against third parties, the court discussed and dismissed the reasoning in Temple, concluding “that the scale should tip in favor of the potential victims of spoliation . . . by providing a cause of action for which there is otherwise no remedy against a third party-spoliator.”[143]

IV.  Conclusion

To date, eighteen states have yet to decide on the recognition of an independent spoliation claim.  The highest courts in Hawaii, Kansas, Missouri, Oklahoma, Utah, Vermont, and Virginia have considered independent spoliation claims, but rejected the individual case on its facts without considering the merits.[144]  As state courts continue to consider independent spoliation claims, they should think of Kenneth’s claim against his coal company employer.  The coal mine deliberately interfered with Kenneth’s lawsuit when it allowed the other party to investigate a necessary piece of evidence and then destroyed the hose before the company was under a court order to preserve it.  The coal company knew it was immune to lawsuits by employees and could not be a first party in the products liability claim, but nevertheless the company had a pecuniary interest in the suit against its subsidiary.  Such immoral interference with the justice system cannot be tolerated, and courts should provide a remedy to victims like Kenneth.  As states continue to consider and decide on the issue, Temple should be viewed with skepticism.  Instead, courts should look to the viable frameworks within states who have adopted the independent tort and use those standards to craft and create their own cause of action for third-party intentional spoliation.

           *   Andrea is a 2021 J.D. candidate at the Wake Forest University School of Law.  Andrea thanks Professor Michael Green for his guidance and contribution to this Comment.

      [1].   Austin v. Consolidation Coal Co., 501 S.E.2d 161, 161 (Va. 1998).

      [2].   Id.

      [3].   See id.

      [4].   Id. at 161.

      [5].   Id.

      [6].   Id. at 161–62.

      [7].   Id.

      [8].   Id. at 162.

      [9].   Id.

     [10].   Id.

     [11].   See, e.g., Dowdle Butane Gas Co., Inc. v. Moore, 831 So. 2d 1124, 1127–28 (Miss. 2002); Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998).

     [12].   Dowdle, 831 So. 2d at 1127.

     [13].   See, e.g., Hannah v. Heeter, 584 S.E.2d 560, 571 (W. Va. 2003) (“[I]f a spoliator cannot rebut the presumption that the injured party would have prevailed in the underlying litigation but for the spoliation, the spoliator must compensate the party injured by the spoliation for the loss suffered as a result of his or her failure to prevail in the underlying litigation.”).

     [14].   Dowdle, 831 So. 2d at 1128; Bart S. Wilhoit, Comment, Spoliation of Evidence: The Viability of Four Emerging Torts, 46 UCLA L. Rev. 631, 659–61 (1998).

     [15].   Wilhoit, supra note 14, at 659–61.

     [16].   Id.

     [17].   Id.

     [18].   Hills v. United Parcel Service, Inc., 232 P.3d 1049, 1052 (Utah 2010) (citing Smith v. Superior Court, 198 Cal. Rptr. 829 (Cal. Ct. App. 1984)).

     [19].   See, e.g., Hazen v. Municipality of Anchorage, 718 P.2d 456, 463 (Alaska 1986) (recognizing a common law cause of action in tort for first-party intentional spoliation of evidence).

     [20].   See infra Section II.B.

     [21].   See infra Section II.B.

     [22].   Raymond v. Idaho State Police, 451 P.3d 17, 21 (Idaho 2019) (“[W]e now formally adopt the tort of intentional interference with a prospective civil action by spoliation of evidence by a third party.”).

     [23].   Smith v. Superior Court, 198 Cal. Rptr. 829, 834–35 (Cal. Ct. App. 1984).

     [24].   Id. at 833.

     [25].   Charles R. Nesson, Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action, 13 Cardozo L. Rev. 793, 795 (1991).

     [26].   Id. at 796.

     [27].   Wilhoit, supra note 14, at 667, 668 n.225.

     [28].   93 Eng. Rep. 664 (K.B. 1722).

     [29].   Id. at 664.

     [30].   Id.

     [31].   Id.

     [32].   Id.

     [33].   Fed. R. Civ. P. 37(b)(2)(A).

     [34].   See, e.g., Broccoli v. Echostar Commc’ns Corp., 229 F.R.D. 506, 510 (D. Md. 2005).

     [35].   Miller v. Montgomery County, 494 A.2d 761, 768 (Md. Ct. Spec. App. 1985).

     [36].   Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346–47 (Fla. 2005).

     [37].   Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420, 425 (Mass. 2002) (“[C]onsistent with the specific facts and circumstances of the underlying case, sanctions for spoliation are carefully tailored to remedy the precise unfairness occasioned by that spoliation.”); Foust v. McFarland, 698 N.W.2d 24, 30 (Minn. Ct. App. 2005) (explaining that under Minnesota law, the intent of the spoliator was irrelevant and the propriety of the sanction was instead dependent on the prejudice resulting to the opposing party).

     [38].   Smith v. Superior Ct., 198 Cal. Rptr. 829, 833 (Cal. Ct. App. 1984).

     [39].   Lucas v. Christiana Skating Ctr., Ltd., 722 A.2d 1247, 1250 (Del. Super. Ct. 1998).

     [40].   198 Cal. Rptr. 829 (Cal. Ct. App. 1984).

     [41].   Id. at 831.

     [42].   Id.

     [43].   Id.

     [44].   Id. at 832.

     [45].   Id. at 835 (“If crucial evidence could be intentionally destroyed by a party to a civil action who thereby stands to gain substantially monetarily by such destruction, the effect of a misdemeanor would be of minimal deterrence.”).

     [46].   Id.

     [47].   Id. (quoting Story Parchment Co. v. Paterson P. Paper Co., 282 U.S. 555, 563 (1931)).

     [48].   Id. at 833.

     [49].   Id. at 834–35.

     [50].   Id. at 836.

     [51].   Id. at 837.

     [52].   Velasco v. Com. Bldg. Maint. Co., 215 Cal. Rptr. 504, 506 (Cal. Ct. App. 1985).

     [53].   Hazen v. Municipality of Anchorage, 718 P.2d 456, 463–64 (Alaska 1986).

     [54].   Smith v. Howard Johnson Co., Inc., 615 N.E.2d 1037, 1038 (Ohio 1993).

     [55].   Id.

     [56].   Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 269–70 (Ill. 1995) (holding that under Illinois law, an independent claim for spoliation may be stated under existing tort law); Coleman v. Eddy Potash, Inc., 905 P.2d 185, 189–91 (N.M. 1995) (recognizing both an intentional spoliation of evidence claim and a claim of negligent spoliation under traditional negligence theory in New Mexico).

     [57].   Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 847 (Ct. App. D.C. 1998) (“[N]egligent or reckless spoliation of evidence is an independent and actionable tort in the District of Columbia.”).

     [58].   Cedars-Sinai Med. Ctr. v. Superior Ct., 954 P.2d 511, 521 (Cal. 1998).

     [59].   954 P.2d 511 (Cal. 1998).

     [60].   Id. at 512.

     [61].   Id. at 515.

     [62].   Id.

     [63].   Id.

     [64].   Id. at 521.

     [65].   Temple Cmty. Hosp. v. Superior Ct., 976 P.2d 223, 225 (Cal. 1999).

     [66].   Id. at 225.

     [67].   Id. at 228 (citing Cedars-Sinai Med. Ctr., 954 P.2d at 518).

     [68].   Id. at 231–32.

     [69].   Id. at 231.

     [70].   Id.

     [71].   Id.

     [72].   Id.

     [73].   Id. at 232–33.

     [74].   Id. at 232.

     [75].   See, e.g.,Coprich v. Superior Ct., 95 Cal. Rptr. 2d 884, 891 (Cal. Ct. App. 2000).

     [76].   Lueter v. State of California, 115 Cal. Rptr. 2d 68, 79 (Cal. Ct. App. 2002) (holding that California courts do not recognize a tort cause of action for negligent spoliation of evidence); Farmers Ins. Exchange v. Superior Court, 95 Cal. Rptr. 2d 51, 56 (Cal. Ct. App. 2000) (“[W]e “decline to recognize a tort for negligent third party spoliation of evidence.”).

     [77].   Smith v. Atkinson, 771 So. 2d 429, 432 (Ala. 2000); Rizzuto v. Davidson Ladders, Inc., 905 A.2d 1165, 1178 (Conn. 2006); Humana Worker’s Comp. Servs. v. Home Emergency Servs., Inc., 842 So. 2d 778, 781 (Fla. 2003); Raymond v. Idaho State Police, 451 P.3d 17, 21 (Idaho 2019); Fiveash v. Pat O’brien’s Bar, Inc., 201 So. 3d 912, 918 (La. Ct. App. 2016); Oliver v. Stimson Lumber Co., 993 P.2d 11, 18 (Mont. 1999); Rosenblit v. Zimmerman, 766 A.2d 749, 757 (N.J. 2001); Hannah v. Heeter, 584 S.E.2d 560, 568 (W. Va. 2003).

     [78].   451 P.3d 17 (Idaho 2019).

     [79].   Id. at 21 (“[W]e now formally adopt the tort of intentional interference with a prospective civil action by spoliation of evidence by a third party.”).

     [80].   Id. at 19.

     [81].   Id.

     [82].   Id.

     [83].   Id. at 20.

     [84].   Id.

     [85].   Id. at 21.

     [86].   Id.

     [87].   Id. at 21–22.

     [88].   Id. at 22.

     [89].   Id.

     [90].   Id.

     [91].   Id. at 23

     [92].   Matsuura v. E.I. du Pont de Nemours and Co., 73 P.3d 687, 705–06 (Haw. 2003) (denying the spoliation claim after concluding that the plaintiff had plenty of other ways to prove the effects of Benlate and that a spoliation claim requires plaintiffs to show the destruction of the evidence caused the plaintiff to lose the underlying suit);Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177, 1183 (Kan. 1987) (“We conclude that absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the new tort of the intentional interference with a prospective civil action by spoliation of evidence should not be recognized in Kansas.”); Fisher v. Bauer Corp., 239 S.W.3d 693, 701 (Mo. Ct. App. 2007) (citing Brown v. Hamid, 856 S.W.2d 51, 56 (Mo. 1993)) (denying leave to amend to allege intentional spoliation because there was no evidence that defendant had destroyed the records in question); Patel v. OMH Med. Ctr., Inc., 987 P.2d 1185, 1202 (Okla. 1999) (“Because the conduct complained of in this action does not present a case of spoliation of evidence, we need not consider today whether that tort should be recognized as a viable cause of action in this state.”); Hills v. United Parcel Serv., Inc., 232 P.3d 1049, 1058 (Utah 2010) (affirming dismissal of independent spoliation claim because evidence was not relevant to the underlying jury verdict); Menard v. Cooperative Fire Ins. Ass’n of Vt., 592 A.2d 899, 900 (Vt. 1991) (affirming the dismissal of the plaintiff’s action because the loss of evidence caused no harm given that it did not prevent the plaintiff from proving that the defendant was negligent in the underlying lawsuit); Austin v. Consolidation Coal Co., 501 S.E.2d 161, 162 (Va. 1998) (holding that an employer does not owe a duty to employees to preserve evidence for litigation against third parties).

     [93].   Utah, for example, stated it would likely affirm a third-party intentional spoliation claim.  Hills, 232 P.3d at 1056.  In that case, the Utah Supreme Court declined to recognize the independent tort on the facts.  Id. at 1052.  Despite the refusal to render a judgment, the court continued to detail the evolution of independent spoliation claims and expressed a favorable attitude towards intentional third-party claims.  The court noted that the state split on the recognition of the independent tort reflected a divide between higher values of judicial efficiency and finality of judgment on one side and the value on the need to remedy and deter spoliation on the other.  Id. at 1056.  The court agreed with other jurisdictions that there exist insufficient non-tort remedies to deter third parties from intentionally spoliating evidence.  Id. at 1057 (“Indeed, as this case shows, evidence tends to disappear when the risk of seldom-enforced non-tort remedies are weighed against the risk of payment on a wrongful-death claim.  This is especially problematic considering that the intentional spoliation of evidence threatens to undermine the integrity of our entire legal system.”).

     [94].   See generally Lior Jacob Strahilevitz, The Right to Destroy, 114 Yale L.J. 781 (2005) (discussing the historical roots and American limitations on the right to destroy personal property).

     [95].   Oliver v. Stimson Lumber Co., 993 P.2d 11, 18 (Mont. 1999); Coleman v. Eddy Potash, Inc., 905 P.2d 185, 191 (N.M. 1995) (“We hold that in the absence of [certain enumerated circumstances] a property owner has no duty to preserve or safeguard his or her property for the benefit of other individuals in a potential lawsuit.”); Hannah v. Heeter, 584 S.E.2d 560, 568 (W. Va. 2003).

     [96].   Hannah, 584 S.E.2d at 573–74.

     [97].   Id. at 566 (citing Wilhoit, supra note 14, at 662).

     [98].   See, e.g., Miller v. Montgomery County, 494 A.2d 761, 768 (Md. Ct. Spec. App. 1985) (holding that the range of adverse jury instructions and inferences, tailored to the level of intent in spoliation, were sufficient remedies for parties who intentionally or negligently spoliate evidence); Harris v. State Dep’t of Corr., 294 P.3d 382, 389 (Mont. 2013) (explaining that the recognition of first-party intentional spoliation is unnecessary because courts are already able to remedy deliberate spoliation with harsher discovery sanctions or the entry of default judgement).  But see Foust v. McFarland, 698 N.W.2d 24, 30 (Minn. Ct. App. 2005) (holding that when deciding against the recognition of first-party spoliation claims, the intent of the spoliator is irrelevant and the propriety of the sanction is dependent on the prejudice to the opposing party).

     [99].   See, e.g., Smith v. Superior Ct., 198 Cal. Rptr. 829, 833 (Cal. Ct. App. 1984).

   [100].   Id. at 835.

   [101].   Wilhoit, supra note 14, at 662.

   [102].   Id.

   [103].   Nesson, supra note 25, at 795.

   [104].   Id. at 796.

   [105].   Id.

   [106].   Id.

   [107].   Id.

   [108].   Temple Cmty. Hosp. v. Superior Ct., 976 P.2d 223, 232 (Cal. 1999).

   [109].   Id.

   [110].   Id.

   [111].   Id. at 231.

   [112].   Coleman v. Eddy Potash, Inc., 905 P.2d 185, 190 (N.M. 1995).

   [113].   Id.

   [114].   Torres v. El Paso Elec. Co., 987 P.2d 386, 403 (N.M. 1999).

   [115].   Cedars-Sinai Med. Ctr. v. Superior Ct., 954 P.2d 511, 516 (Cal. 1998).

   [116].   Temple, 976 P.2d at 232.

   [117].   Smith v. Superior Ct., 198 Cal. Rptr. 829, 835 (Cal. Ct. App. 1984); Raymond v. Idaho State Police, 451 P.3d 17, 22 (Idaho 2019).

   [118].   Smith v. Atkinson, 771 So. 2d 429, 438 (Ala. 2000) (full recovery in a third-party negligence claim); Rizzuto v. Davidson Ladders, Inc., 905 A.2d 1165, 1181 (Conn. 2006) (full recovery in a first-party intentional claim); Hannah v. Heeter, 584 S.E.2d 560, 571 (W. Va. 2003) (full recovery for all forms of spoliation claims).

   [119].   Smith, 771 So. 2d. at 435; Rizzuto, 905 A.2d at 1180; Hannah, 584 S.E.2d at 571.

   [120].   Oliver v. Stimson Lumber Co., 993 P.2d 11, 21 (Mont. 1999); see also Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 853 (D.C. 1998) (explaining that damages should be equal to a “just and reasonable estimation based on relevant data” of the damages the plaintiff would have gained in the underlying suit “multiplied by the probability that the plaintiff would have won the underlying suit had the spoliated evidence been available”); Miller v. Allstate Ins. Co., 573 So. 2d 24, 29 (Fla. Ct. App. 1990) (holding that damages in a spoliation claim are equal to the anticipated amount of the underlying claim “reduce[ed] . . . to the extent that any uncertainty reduced the value of the award or earnings”).

   [121].   282 U.S. 555 (1931).

   [122].   Id. at 563 (“Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.”).

   [123].   Id.

   [124].   Temple Cmty.. Hosp. v. Superior Ct., 976 P.2d 223, 230 (Cal. 1999).

   [125].   Id. at 230–31.

   [126].   Id. at 230.

   [127].   See infra Section III.B.2.

   [128].   See, e.g., Smith v. Atkinson, 771 So. 2d 429, 432 (Ala. 2000) (concluding that under Alabama law, a plaintiff must show “that the lost or destroyed evidence was so important to the plaintiff’s claim in the underlying action that without that evidence, the claim [would] not survive . . . a motion for summary judgment . . .”); Hannah v. Heeter, 584 S.E.2d 560, 570 (W. Va. 2003) (“[A] plaintiff in a spoliation claim does not have to file an action in which the spoliated evidence would have been vital to proving or defending his or her case. Instead, he or she simply may show that without the spoliated evidence, a summary judgment would have been entered on behalf of the adverse party in the underlying action.”).

   [129].   As an example, the Hawaii supreme court declined to certify a question about a spoliation claim where a plaintiff alleged defendant destroyed evidence from a scientific study relevant to the toxicity of a chemical.  Matsuura v. E.I. du Pont de Nemours & Co., 73 P.3d 687, 706 (Haw. 2003).  The court reasoned that, because similar scientific tests conducted by independent sources also provided data for the chemical’s harmful effects, and that plaintiffs in other jurisdictions were able to prove substantially similar claims against the defendant without the use of the data, the plaintiff could not prove the destroyed evidence caused her to lose the suit.  Id.

   [130].   Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 850 (D.C. 1998).

   [131].   Id.

   [132].   Id.

   [133].   Id. at 851.

   [134].   Id.

   [135].   Oliver v. Stimson Lumber Co., 993 P.2d 11, 21 (Mont. 1999) (citing Holmes, 710 A.2d. at 851-52).

   [136].   Id. Illinois courts have adopted a similar standard that essentially functions in the same manner as the significant impairment standard.  See, e.g.,Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 271 n.2 (Ill. 1995) (“A plaintiff need not show that, but for the loss or destruction of the evidence, the plaintiff would have prevailed in the underlying action.  This is too difficult a burden, as it may be impossible to know what the missing evidence would have shown.  A plaintiff must demonstrate, however, that but for the defendant’s loss or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in the underlying suit.”); Hartmann Realtors v. Biffar, 13 N.E.3d 350, 357 (Ill. Ct. App. 2014) (“The plaintiff must demonstrate that, but for the defendant’s loss or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in an underlying lawsuit; the plaintiff need not show that he would have prevailed.”).  Note that this standard, like the significant impairment standard, requires proving both that the destruction of evidence rendered the lawsuit nonviable and that the underlying lawsuit was in some way meritorious.  However, the reasonable probability of success standard is arguably more lenient than the significant probability of success standard.

   [137].   Temple Cmty. Hosp. v. Superior Ct., 976 P.2d 223, 232 (Cal. 1999).

   [138].   Id. at 239 (Kennard, J., dissenting).

   [139].   Id.

   [140].   Id. (emphasis added)

   [141].   Id. at 236.

   [142].   Alaska, the District of Columbia, Illinois, New Mexico, and Ohio recognized the tort between 1984 and 1998.  Alabama, Connecticut, Florida, Idaho, Louisiana, Montana, New Jersey, and West Virginia recognized the tort after 1998.

   [143].   Raymond v. Idaho State Police, 451 P.3d 17, 23 (Idaho 2019).

   [144].   Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177, 1183 (Kan. 1987) (concluding “that absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the new tort of ‘the intentional interference with a prospective civil action by spoliation of evidence’ should not be recognized in Kansas”); Matsuura v. E.I. du Pont de Nemours & Co., 73 P.3d 687, 706 (Haw. 2003) (noting that a spoliation claim requires plaintiffs to show that the destruction of the evidence caused the plaintiff to lose the underlying suit and concluding that plaintiff had plenty of other ways to prove the effects of Benlate and the claim failed); Fisher v. Bauer Corp., 239 S.W.3d 693, 704 (Mo. Ct. App. 2007) (affirming dismissal of intentional spoliation allegation because there was no evidence that defendant had destroyed the records in question); Patel v. OMH Med. Ctr., Inc., 987 P.2d 1185, 1202 (Okla. 1999) (“Because the conduct complained of in this action does not present a case of spoliation of evidence, [the court] need not consider today whether that tort should be recognized as a viable cause of action in this state.”); Hills v. United Parcel Serv., Inc., 232 P.3d 1049, 1058 (Utah 2010) (affirming dismissal of independent spoliation claim because evidence was not relevant to the underlying jury verdict); Menard v. Cooperative Fire Ins. Ass’n of Vt., 592 A.2d 899, 900 (Vt. 1991) (same); Austin v. Consolidation Coal Co., 501 S.E.2d 161, 163 (Va. 1998) (holding that an employer does not owe a duty to employees to preserve evidence for litigation against third parties).

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22Mar

Weekly Roundup: 3/18-3/22

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By Matthew Hooker

Spencer v. Virginia State Univ.

            In this civil case, the Fourth Circuit affirmed a grant of summary judgment in favor of Virginia State University concerning the plaintiff’s claim that she was sexually discriminated against with respect to her salary. The plaintiff, a sociology professor, earned a median salary when compared to men who were also full professors in the same department. But the plaintiff argued that the court should compare her pay to that of two former university administrators who earned at least $30,000 more than her. But the Fourth Circuit held that because the plaintiff and these two men did not perform “equal” work requiring “equal skill, effort, and responsibility,” she could not prevail under the Equal Pay Act. “Professors are not interchangeable like widgets.” The two men taught in different departments than the plaintiff, taught at a higher class level, and worked more hours. The Fourth Circuit also held the plaintiff could not prevail under Title VII because the university had explained the pay disparity by showing its practice of paying administrators 9/12ths of their previous salary, which was a nondiscriminatory reason.

United States v. Davis

            In this criminal case, the Fourth Circuit held that the district court did not abuse its discretion in admitting certain pieces of evidence when the defendant was ultimately convicted for distribution of over 50 grams of methamphetamine. The defendant had also objected to the use of coconspirator testimony for sentencing purposes after the jury had acquitted him on a charged conspiracy count.

            The Fourth Circuit first held that the admission of an out-of-court statement of an informant was not an abuse of discretion because the testimony was offered as an explanation or motive for the officers’ use of the informant, so the testimony was not hearsay under Federal Rule of Evidence 801(c). The Fourth Circuit next held that the government properly authenticated certain photos introduced at trial because, even though there was no direct evidence to authenticate, the context was sufficient to authenticate since “the burden to authenticate under Rule 901 is not high.” The Fourth Circuit also held that an officer’s familiarity with the defendant’s voice was enough to authenticate a recording of a telephone conversation since the officer had in-person conversations with the defendant such that the officer would be able to recognize his voice.

            Finally, the Fourth Circuit held that the district court properly explained the sentence imposed, even though the court considered acquitted conduct in establishing the drug amounts. Since it has long been acceptable to consider such conduct, and because the district court did explain its consideration and the defendant’s contrary arguments, the explanation was adequate.

Duncan v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) applied the incorrect standard of review in reviewing an immigration judge’s (“IJ”) determinations. The IJ had concluded that the petitioner was not in his father’s physical custody under the Child Citizenship Act of 2000 (“CCA”), subjecting the petitioner to removal proceedings. In a case of first impression, the Fourth Circuit concluded that whether an individual was in the “physical custody” of a parent under the CCA is a mixed question of fact and law, requiring a bifurcated approach. The Fourth Circuit held that the application of the facts to the relevant state law in determining whether an individual satisfies the physical custody requirement is a legal judgment subject to de novo review by the BIA. Since the BIA reviewed for clear error, remand of the case was necessary for application of the correct standard.

Vasquez v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) failed to fully consider all relevant evidence in support of the petitioner’s claim for asylum and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The petitioner had expressed great fear that she and her son would be tortured or even murdered by the 18th Street gang if they were removed and sent back to El Salvador. In reviewing the immigration judge’s (“IJ”) denial of relief, the BIA did not adopt the IJ’s opinion but instead offered its own reasons for denying relief, so the Fourth Circuit reviewed the BIA’s reasons. Although the BIA had considered country condition reports, it had ignored the petitioner’s testimony that she twice sought the aid of local police and twice was turned away. Since the BIA wholly failed to consider this evidence, the Fourth Circuit remanded the case for review of all relevant evidence.

Attkisson v. Holder

            In this civil case, the Fourth Circuit affirmed a dismissal for failure to state a claim where the plaintiffs sued a number of government officials and corporate entities for alleged illegal intrusions into the plaintiffs’ electronic devices to conduct unlawful surveillance. The Fourth Circuit first held that the plaintiffs failed to state a Bivens claim. Although Bivens itself recognized a remedy for Fourth Amendment violations, the Fourth Circuit viewed the plaintiffs’ claim as presenting a “new Bivens context” because of the rank of the government officials here and the use of electronic surveillance. Since this was a new Bivens context, the Fourth Circuit had to consider whether there were special factors suggesting denying a cause of action. Here, the Fourth Circuit held such factors were present since Congress had already explicitly legislated in this area without authorizing damages for a Fourth Amendment violation.

            The Fourth Circuit next held that the plaintiffs failed to state a claim under the Electronic Communications Privacy Act (“ECPA”) because the defendants in question were entitled to qualified immunity. In doing so, the Fourth Circuit declined to review the district court’s interpretation of the ECPA and instead held that qualified immunity was appropriate since there was a “lack of settled precedent supporting the plaintiffs’ ECPA claim.”

            Finally, the Fourth Circuit upheld dismissal of the complaint against certain Verizon entities and John Doe agents. Because the plaintiffs had failed to identify or serve any of the John Doe agents, had failed to prosecute their claims, and had failed to respect court orders, the Fourth Circuit held there was no abuse of discretion for the district court to dismiss the complaint as to these final parties.

Brundle v. Wilmington Trust, N.A.

            In this civil case, the Fourth Circuit affirmed a judgment finding that an Employee Stock Ownership Plan (“ESOP”) trustee breached its fiduciary duties under the Employee Retirement Income Security Act of 1974 (“ERISA”). The Fourth Circuit noted that, under ERISA, there need not be proof that the fiduciary acted in bad faith, but only that the fiduciary failed to act solely in the interest of the ESOP participants. The defendant primarily challenged the district court’s findings of fact during the bench trial, but the Fourth Circuit held that there was no clear error in those findings. The Fourth Circuit also held that there was no clear error in the district court’s damages award.

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21Mar

Fourth Circuit Checks an Abuse of Police Power

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On February 16, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for U.S. v. Cowden.

I. Facts and Procedural History

This case involves the appeal of Defendant Mark Cowden, who was charged with deprivation of rights under color of law under 18 U.S.C. § 242, and knowingly making a false statement to impede a federal investigation under 18 U.S.C. § 1519.

Michael Hoder, a West Virginia State Police Trooper, initiated a traffic stop of Ryan Hamrick, who was speeding and had a taillight violation. As Hoder attempted to arrest Hamrick, Hamrick engaged in a physical altercation with Hoder. Hoder called for additional law enforcement assistance, which arrived after Hoder had effectively placed Hamrick under arrest. Hamrick was then driven to the HCSO station for processing, without offering further resistance or speaking in any threatening manner to the officers.

Defendant Mark Cowden, an HCSO lieutenant, was waiting to process Hamrick when he learned that Hamrick resisted Hoder’s efforts in arresting him. Officers surrounding Defendant Cowden noticed that he was “unusually hostile” and stating threats against Hamrick for his behavior. When Hamrick arrived at the station, he was restrained in handcuffs securing his hands behind his back, and he was not threatening any officers physically or verbally. Hamrick did display a “loud and drunken demeanor,” but no other officers other than Defendant Cowden perceived him as a threat.

As Hamrick was entering the lobby of the HCSO, he attempted to pull away from Cowden and Sergeant Cline, who were escorting him in the building. Even though no other officers viewed this as a threat, Defendant Cowden “pulled Hamrick toward the elevator and threw him against the wall.” Cowden then slammed Hamrick’s head into the wall and told Hamrick that he was in “our house” and that Hamrick needed to “play by our rules.” Cowden continued to physically abuse Hamrick, until Sergeant Cline intervened and told Cowden to “back off.” After the altercation, Hamrick had injuries around his face and was bleeding from his nose and mouth. He was taken to a hospital to receive additional care, which costed $3,044.

At trial, the district court allowed the jury to hear evidence regarding Defendant Cowden’s previous use of force on two prior occasions during other criminal investigations. The district court instructed the jury that it “may not consider” that evidence “in deciding if the defendant committed the acts charged in the indictment.” Instead, the judge charged the jury that they should only use the evidence to show the state of mind or intent necessary to commit the crime charged in the indictment and to show that it was not due to mistake or accident. Cowden also submitted proposed jury instructions to the district court, which included a generic “Lesser Included Offenses” instruction, showing that a charge of Section 242 can qualify as a lesser offense depending on whether a victim suffered bodily injury. The district court, however, adopted the government’s proposed instructions of Section 242, and Cowden did not object to the court’s decision at the charge conference.

The jury acquitted Cowden of the false statement charge but found Cowden guilty on the deprivation of rights charge. Cowden appealed the decision.

II. Issues Presented

Four issues were presented on this appeal: (1) whether evidence of Cowden’s two prior uses of force were properly admitted by the district court; (2) whether the evidence was sufficient to support his felony conviction; (3) whether the jury was properly instructed on the elements of the Section 242 offense; and (4) whether Cowden was improperly held liable for injuries Hamrick sustained at the time he was arrested by another law enforcement officer.

III. Holding

The United States Court of Appeals for the Fourth Circuit held in the following manner for each issue on appeal: (1) evidence of Cowden’s two prior uses of force was properly admitted by the district court; (2) the evidence was sufficient to support his felony conviction; (3) Cowden failed to show plain error regarding the denial of a particular jury instruction; and (4) Cowden was properly held liable for injuries Hamrick sustained at the time he was arrested by another law enforcement officer.

IV. Reasoning 

The court reasoned that evidence of Cowden’s two prior uses of force was properly admitted by the district court because, although potentially constituting prior “bad acts,” the evidence was properly admitted under an exception to Rule 404(b). The evidence was used to help establish the defendant’s state of mind and not simply that he had a propensity for violence. In addition, the court concluded that any possible unfair prejudice did not “substantially outweigh” the probative value of this evidence.

Next, the court concluded that the evidence provided by the government was more than sufficient to support the jury’s determination that Cowden acted willfully. From the evidence presented, the jury could conclude that Cowden, while acting as a law enforcement officer, willfully used unreasonable force against Hamrick.

The court then determined that Cowden failed to show any error, let alone plain error, regarding the court’s denial of his requested jury instruction. The court reasoned that the instructions given by the district court correctly explained the statutory distinctions, permitting the jury to find Cowden guilty of a misdemeanor rather than a felony if the jury determined that Hamrick had not suffered a bodily injury as a result of Cowden’s actions. Thus, although the district court used different words, it instructed the district court as Cowden requested.

Lastly, the court reasoned that the government carried its burden of showing by a preponderance of the evidence “the amount of the loss sustained by a victim as a result of the offense.” Therefore, based on the overwhelming evidence regarding the injuries Hamrick sustained as a result of Cowden’s actions, the court held that the district court acted within its discretion in requiring Cowden to pay the full amount of Hamrick’s medical expenses.

 

 

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21Feb

Weekly Roundup – 2/12-2/16

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Weekly Roundup: 2/12-2/16

By: Mary Kate Gladstone & Robert Tucci

U.S. v. Cowden

In this case, the defendant, a former lieutenant with a West Virginia Sheriff’s Office, appealed his conviction for deprivation of rights under the color of law in violation 18 U.S.C. § 242 after he assaulted an arrestee.  On appeal, the defendant argued that the district court erred in admitting evidence of his prior uses of force; that the evidence was insufficient to support his conviction; that the jury was improperly instructed on the elements of the offense; and that he should not have been held liable for injuries to the arrestee when a different officer was the one arresting him, but the Fourth Circuit affirmed on all accounts.

Intl. Refugee Assistance v. Donald J. Trump

This is a consolidated appeal of three separate cases seeking injunctive and declaratory relief, asserting that Proclamation No. 9645, Enhancing Vetting Capabilities and Process for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats, and Executive Order 13,780, Protecting the Nation From Foreign Terrorist Entry into the United States, violate the Immigration and Nationality Act, the Establishment Clause of the First Amendment, the Free Speech and Free Association Clauses of the First Amendment, the equal protection and procedural due process guarantees of the Due Process Clause of the Fifth Amendment, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act. The Fourth Circuit affirmed the preliminary injunction granted by the district court, noting that the Executive Order and Proclamation were “unconstitutionally tainted with animus toward Islam” based on their contents and the context of official statements made by President Trump.

U.S. v. Smith

In this case, defendant Antoine Smith appealed his enhanced prison sentence under 18 U.S.C. § 924(e)(2)(B)(i), the Armed Career Criminal Act (ACCA), arguing that one of his prior convictions, voluntary manslaughter (a North Carolina crime), is not a violent felony within the meaning of the force clause of the ACCA. The Fourth Circuit disagreed, holding that voluntary manslaughter in North Carolina requires an intentional killing, thus involving “the use, attempted use, or threatened use of physical force against the person of another” as required by the force clause of the ACCA.

Salgado-Sosa v. Sessions

In this case, plaintiff and Honduras citizen Reynaldo Salgado-Sosa petitioned for review of the denial of his asylum application, and requested the court to grant a withholding of removal and protection under the Convention Against Torture. In requesting relief, Salgado-Sosa stated that he feared he would face persecution if he was returned to Honduras, as the gang MS-13 has repeatedly attacked his family for resisting extortion demands. The Fourth Circuit vacated and remanded in part, finding that the Board of Immigration Appeals erroneously rejected Salgado-Sosa’s withholding of removal on the grounds that Salgado-Sosa could not establish a “nexus” between MS-13’s threats and membership in a cognizable “particular social group” – his family – and remanded the asylum claim for consideration of whether the untimely application exception in Zambrano v. Sessions is applicable in Salgado-Sosa’s case. 

E.W. v. Dolgos

Plaintiff E.W., a minor and elementary school student, appealed the district court’s grant of summary judgment for defendant Dolgos, a school resource officer, in E.W.’s 42 U.S.C. § 1983 action, which alleged that Dolgos used excessive force in handcuffing a calm and compliant E.W. for an altercation with another student that occurred several days prior, thus violating the Fourth Amendment and several state law claims. The Fourth Circuit affirmed the district court’s decision, finding that Dolgos was entitled to both federal qualified immunity an state statutory immunity under the Maryland Tort Claims Act.

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27Oct

Fourth Circuit Reverses for Admittance of Prior Arrest Evidence

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By Sophia Blair

On October 27th, 2016, the Fourth Circuit reversed and remanded a civil case, Makia Smith v. Baltimore City Police Dep’t, to the District of Maryland after determining that the district court improperly admitted evidence under Federal Rule of Evidence 404(b) and the admittance resulted in reversible error.

Summary of the Facts and District Court Proceedings

On May 8, 2013, appellant Makia Smith (“Smith”) filed this action in the District of Maryland against the Baltimore City Police Department as well as individual officers Campbell, William Pilkerton, and Nathan Ulmer in their official capacity (collectively, “Appellee”). Smith alleged excessive force, deprivation of property without due process, and violations of the First and Fourth Amendments pursuant to 42 U.S.C. § 1983. Smith made additional state claims under Maryland law including intentional inflictions of emotional distress.

Smith claimed that, on March 8, 2012, two police officers observed her filming them as they arrested a juvenile in the middle of a street, and then battered and unlawfully arrested her. In a prior related criminal case, Smith was charged with second-degree assault of an officer, resisting or interfering with arrest, failing to display a license on demand, willfully disobeying a lawful order of the police, and causing a vehicle to obstruct a free vehicle passage of a roadway. The charges were dropped via a nolle prosequi disposition in January 2013.

The arresting officer, Nathan Church (“Church”), and Smith gave conflicting reports of the events that led to Smith’s arrest. Church testified that he received a call for back up at Hartford Road in Baltimore. When he arrived, there were juveniles running through the streets, and another officer, Talmadge Jackson (“Jackson”), was attempting to arrest a juvenile. As Church assisted Jackson in his efforts, he heard tires screech as multiple cars came to a stop. When he looked up, he saw Smith’s car blocking traffic and Smith standing behind her car holding her phone up, as if she was videotaping. Church and Smith’s account of events diverged from here: Church testifying that Smith was verbally aggressive, combative, and non-compliant, and Smith testifying that Church menaced and threatened her because he saw her videotaping.

On March 9, 2015, Smith filed a motion in limine to exclude all evidence of her prior arrests: second degree assault in 2005, fleeing and eluding in 2006, and second degree assault in 2010, none of which resulted in convictions. The district judge granted the motion, however the case was reassigned to a new judge prior to trial.

At trial, Appellee successfully introduced evidence of Smith’s three prior arrests as relevant to her claim for damages. Smith’s mother testified that the March 8, 2012 arrest had a significant emotional impact on Smith, supporting Smith’s claim of intentional infliction of emotional distress. Following the mother’s testimony, Appellee’s counsel argued that she had “opened the door” and gave Appellant’s counsel notice that they might bring the prior arrests in. Calling the mother’s testimony “overemotional” and “tainted with hearsay,” the district judge said he would let the prior arrests in;­ he felt they went to whether this arrest did cause Smith emotional distress.

When Appellee’s counsel introduced the prior arrests at trial, the district court gave limiting instructions and clarified that the prior arrests should only be considered with respect to the amount of damages awarded, not Smith’s credibility. At the conclusion of the trial, the jury returned a verdict in favor of the police officers on all counts.

Abuse of Discretion and Harmless Error

This issue on appeal was whether the district court erred in admitting evidence of Smith’s prior arrests. The Fourth Circuit analyzed whether there was an abuse of discretion and reversible error. An abuse of Discretion occurs where a district court “arbitrarily or irrationally” admits evidence. Additionally, citing United States v. Madden, the test for harmless error is whether “after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” The appeal turned on whether Smith’s prior arrests, which did not involve struggles with police, made it more or less probable that she suffered emotional damage.

Admittance of Prior Acts under FRE 404(b)

Federal Rule of Evidence 404(b)(1) prohibits the admission of evidence of prior arrests to prove a person’s character or to demonstrate that someone acted in accordance with that character on a particular occasion. Prior acts are admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident,” under Federal Rule of Evidence 404(b)(2). Pursuant to United States v. Garcia-Lagunas, the Fourth Circuit employs a four-part test to determine whether prior-act evidence is admissible: “(1) the prior-act evidence must be relevant to an issue other than character, such as intent; (2) it must be necessary to prove an element of the [claim]; (3) it must be reliable; and (4) its probative value must not be substantially outweighed by its prejudicial nature.” In this case, the Fourth circuit limited its analysis to relevance and prejudicial nature because they were the only elements that Smith raised on appeal.

Under FRE 404(b), admission of evidence of prior acts is admissible to help the jury determine the extent of damages as a non-character based purpose, but it must still have probative value on the question of damages. The alleged relevance of the prior arrests to damages in this case is whether those prior arrests were responsible, in whole or in part, for the emotional distress experienced by Smith. The Fourth Circuit stated that, because Smith’s emotional distress claim was based on the specific interactions with officers in this case, and because she testified that she had never had a similar experience with an officer before this case, the prior arrests were not relevant.

Furthermore, because Appellee’s counsel asked Smith if this was her “first rodeo” when introducing the prior arrest evidence, it was clear that the evidence was being offered for character and propensity, and not the extent of damages. Additionally, Appellee’s counsel made no record of the nature of Smith’s prior arrests, none of which included altercations with police officers. Therefore, the Fourth Circuit held that the evidence was barred from admittance by FRE 404(b).

Additionally, the Fourth Circuit held that the evidence of prior arrests here was too prejudicial, noting that this type of evidence “generally impugns character.” The court doubted that the jury drew the distinction between the significance of an arrest and a conviction. While the district court attempted to curtail prejudice by giving limiting instructions, the Fourth Circuit doubted the effectiveness of limiting instructions and the sufficiency with which they were explained to the jury. The district judge gave a limiting instruction when the evidence was admitted, but did not do so prior to jury deliberations. Also, the instructions did not mention “character” or “propensity,” nor did they confine the use of the evidence to damages. As a result, the Fourth Circuit determined that prejudice outweighed any possible probative value.

Harmless Error

The Fourth Circuit found that there was reversible error, as there was no assurance the improperly-admitted evidence did not substantially sway the jury. Because this was a classic “he-said-she-said” case, the jury’s view of the Smith’s credibility and character was central to the verdict. Additionally, because the limiting instructions given by the district court were inadequate, they were not sufficient to cure an error.

Disposition

Therefore, the Fourth Circuit found abuse of discretion and reversible error, and reversed and remanded to the District Court of Maryland.

 

 

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26Oct

Fourth Circuit Vacates Exclusion of Grand Jury Evidence in Human Trafficking Case

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By John Van Swearingen

On Wednesday, October 26, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Alvarado. The district court had issued an order precluding the government from calling upon two witnesses to testify about anything discussed during a grand jury proceeding for a post-superseding indictment; the order also excluded those witnesses’ grand jury testimony for all purposes at trial, including impeachment. The government appealed, arguing the district court abused its discretion by excluding this evidence. Further, the government argued that, in the absence of a finding of prosecutorial misconduct, evidentiary exclusion cannot be used as a remedy. The Fourth Circuit vacated the district court’s order, holding that the district court abused its discretion by ordering the exclusion of the evidence for two reasons. First, the district court did not provide any legal justification for determining how the scope of the government’s questions at the grand jury proceeding exceeded permissible grounds. Second, the district court did not explain how delay, cited by the district court as a reason supporting the exclusionary remedy, was appropriately related to the remedy. However, the Fourth Circuit refused to adopt a blanket policy forbidding district courts to enact exclusionary remedies regarding grand jury proceedings in the absence of prosecutorial misconduct.

Facts and Procedural History

On December 4, 2014, Maria Rosalba Alvarado McTague (“Alvarado”) and Felix Chujoy (“Felix”) were indicted by a federal grand jury for visa fraud and immigration charges. More specifically, Alvarado and Felix were accused of smuggling undocumented immigrants into the country to work, in horrendous conditions and for below minimum wage, in their Peruvian restaurant in Virginia. Alvarado and Felix were released on bond. Expecting a superseding indictment, the defendants and the government moved jointly for a continuance. The district court set trial for June 22, 2015.

The grand jury returned a superseding indictment on March 12, 2015. Alvarado and Felix were charged with additional counts of labor trafficking, Gladys Chujoy was added as a defendant, and all three Defendants were charged with witness tampering, conspiracy to witness tamper, and obstruction of justice. Because evidence suggested Alvarado and Felix were using third-parties’ phones to contact witnesses, their bonds were revoked by the magistrate.

The government continued investigating these matters by questioning individuals whose phone numbers appeared in the phone records of witnesses. Carolyn Edlind (“Edlind”) and Sheriff Donald Smith (“Smith”) were interviewed during this investigation in May 2015, and both were subsequently subpoenaed to testify at trial.

On June 21, 2015, the government moved to continue the trial because of a personal emergency. Defendants did not object and explicitly waived any speedy trial objection; however, Alvarado did have to retain new counsel. The district court set trial for October 26, 2015.

In August 2015, counsel for an inmate incarcerated alongside Felix contacted the government with an invitation to interview that inmate. The inmate advised that he and others had provided PINs to Felix in order to facilitate Felix making surreptitious phone calls. After obtaining the recorded conversations, the government discovered evidence that Felix, Edlind, and Smith were potentially engaged in a witness-tampering scheme.

On October 6, 2015, the government subpoenaed Edlind and Smith to testify before the grand jury regarding the post-superseding indictment tampering scheme. This information was disclosed to both the district court and Defendants.

On October 20, 2015, Felix, Edlind, and Smith testified before the grand jury about the scheme, and the grand jury returned a new indictment. Felix and Edlind were charged with new counts of witness tampering, conspiracy to witness tamper, and obstruction of justice. Edlind was also charged with an additional count of obstruction (based on her prior grand jury testimony) and perjury.

Alvarado thereafter filed a motion to continue in order to investigate the possibility of prosecutor misconduct. The court granted the motion, set trial for December 1, 2015, and invited all Defendants to join the investigation regarding prosecutorial misconduct.

On November 13, the Defendants filed a joint motion for dismissal of all indictments, alleging the government used the third grand jury proceeding with the primary intent of uncovering evidence for the charges on the March 12 indictment as well as determining the Defendants’ trial strategy. The district court found no prosecutorial misconduct and denied dismissal of the indictments. However, the district court forbade the government from calling Edlind or Smith to testify about anything covered in their testimony before the October 6 grand jury; the court also excluded that testimony for any use at trial, including impeachment.

The district court stated this exclusionary remedy was appropriate for two reasons. First, the district court stated the government’s questions during the October 6 grand jury proceeding delved too far into the original underlying charges. Second, the court stated, in the interests of fundamental fairness, the delay caused by the government’s June 21 continuance and Alvarado’s later continuance supported exclusion.

The government appealed pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291, arguing two points. First, the district court’s exclusionary remedy was an abuse of discretion. Second, an exclusionary remedy could never apply without prosecutorial discretion.

Exclusion of Evidence Based on the Government’s Questioning, Where the Questioning Had the Dominant Purpose of, and in Fact Did, Produce New Indictments, Was an Abuse of Discretion

The Fourth Circuit held the district court abused its discretion in excluding the grand jury evidence. Absent compelling evidence that the grand jury process was abused – for example, finding that the dominant purpose of a grand jury proceeding was building evidence against a defendant already charged – district courts are generally guided to refrain from intervening. See United States v. Moss, 756 F.2d 329, 331­–32 (4th Cir. 1985).

Also, grand jury proceedings have a presumption of regularity that is bolstered when those proceedings result in new indictments. Id. The function of those proceedings, gathering evidence for an indictment, requires broad latitude in questioning witnesses. See id. at 332. Investigating additional crimes, for example, does not require the government to ignore previous ones.

Here, the district court did not find any improper purpose behind the October 6 grand jury proceedings. Additionally, the district court did not explain its legal basis for determining that the government’s lines of questioning in the October 6 proceeding ­– given the regularity of grand jury proceedings and the fact that new indictments were, in fact, issued – merited an exclusionary remedy. Rather, the court based its remedy on incidental benefits to the government’s case as a result of the proceeding, as well as the court’s determination that some questions seemed too far removed from the new allegations. Lacking a finding of bad faith or improper purpose, the district court essentially excluded the government’s evidence as punishment for not being clairvoyant. The Fourth Circuit therefore held the district court abused its discretion by issuing an exclusionary remedy.

Exclusion of Evidence Based on Delay Without a Supporting Legal Basis Was an Abuse of Discretion

The Fourth Circuit also held the district court’s exclusion of evidence based on delay was an abuse of discretion. The district court never explained in its order why the continuances it once granted later justified exclusion of evidence. The district court did not find bad faith on behalf of the government; further, the court did not state that the government did anything other than conduct a good-faith investigation into the new witness tampering and obstruction charges.

If a district court is going to exclude evidence on the basis that the evidence was attained due to a bad-faith continuance, grand jury abuse, or other prosecutorial misconduct, then the court must clearly state so in its order. Failing to do so – yet ordering exclusion of evidence – was an abuse of the district court’s discretion.

Strict Categorical Limitations on District Courts’ Powers to Issue Remedies in Grand Jury Proceedings Rejected

The Fourth Circuit rejected the government’s argument to categorically limit a district court’s available remedies regarding grand jury proceedings. As argued by the government, if a grand jury proceeding is found to have a proper dominant purpose, the district court will be unable to issue any remedies regarding evidence and testimony obtained during that proceeding. Such is the case in the Eleventh Circuit – a district court may only issue an exclusionary remedy if grand jury proceedings were conducted with the improper dominant purpose of obtaining evidence for existing charges. See United States v. US Infrastructure, Inc., 576 F.3d 1195, 1215 (11th Cir. 2009).

The Fourth Circuit did not want to exclude the availability of a remedy for lines of questioning that skirt the limits of permissibility but do not go beyond them. In certain situations, the court held, remedial actions may still be justified despite a proper dominant purpose for grand jury proceedings.

However, the district court here failed to justify its exclusionary remedy. The district court failed to state any findings of bad faith or prosecutorial misconduct in its order. The government’s lines of questioning did not support a finding of improper purpose. The delays were not connected to reasons for the district court’s exclusionary remedy. For those reasons, and not – as the government proposed – due to a blanket prohibition on available district court remedies, the Fourth Circuit vacated the district court’s order.

Disposition

The Fourth Circuit vacated the district court’s order excluding evidence and testimony from or relating to the October 6 grand jury proceedings. The court remanded the case back to the district court with instructions to either (a) admit the excluded evidence or (b) issue a new order specifically stating how the exclusion of the evidence is narrowly tailored to the court’s concerns regarding the government’s conduct.

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8Mar

Fourth Circuit Upholds The “But-For” Causation Standard For ADA Claims

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By Sarah Saint

On March 4, 2016, the Fourth Circuit issued a publish opinion in Gentry v. East West Partners Club Management Company, Inc., a civil case in which Plaintiff Judith Gentry (“Gentry”) sued her former employer East West Partners Club Management Company, Inc. (“East West”) and manager Jay Manner (“Manner”) for wrongful termination in violation of the Americans with Disability Act (“ADA”) in addition to other state and federal law claims. On appeal, Gentry challenges the district court’s jury instructions and the damages award. The Fourth Circuit found no reversible error, and thus affirmed the district court’s judgment.

Gentry’s Injury and Termination

Prior to termination, Gentry was an executive housekeeper at the Maggie Valley Club and Resort (“the Club”). East West managed the Club through Manner. In July 2007, Gentry fell at work and injured her left foot and ankle. She received treatment and surgery, and eventually returned to work in January 2009, though still experiencing pain. In January 2010, her doctor determined that, under North Carolina workers’ compensation guidelines, Gentry had a 30 percent permanent physical impairment and may need further surgery.

When the Club’s insurance carrier offered to settle Gentry’s workers’ compensation claim, Gentry declined and expressed concerns that she would be terminated if she accepted. According to the insurance adjuster, Manner was surprised to learn of these fears, describing Gentry as a “great worker” who did “a great job,” and that he intended to make layoffs due to financial difficulties. Manner denied making these statements. Manner, on the other hand, stated that the insurance adjuster felt extorted by Gentry and that she expected Gentry to make another claim against the Club. The insurance adjuster also denied these statements. Nevertheless, Manner relayed his version of the conversation to the officers of the Club and East West. Gentry’s workers’ compensation claim was settled at mediation in November 2010.

In December 2010, Gentry was terminated. The Defendants claim that the termination was part of a restructuring plan to consolidate management positions due to financial difficulties. Gentry was fired along with two other department heads. All but three housekeeping employees had been terminated. Gentry, on the other hand, alleged that one of the executives told her Manner terminated Gentry because of the “issues with [her] ankle.” The Equal Employment Opportunity Commission (“EEOC”) investigator also confirmed that the executive thought Manner terminated Gentry due to her disability. The executive denied ever making such statements.

Procedural History

Gentry sued the Club and East West for (1) disability discrimination under the ADA and North Carolina common law; (2) sex discrimination under Title VII and North Carolina common law; and (3) retaliation against Gentry for pursuing a workers’ compensation claim, in violation of North Carolina common law. Gentry also sued East West and Manner for tortiously interfering with her employment contract with the Club. The jury found for Gentry on the workers’ compensation retaliation claim and the tortious interference claim. The jury found for the Defendants on all other claims.

On appeal, first, Gentry argued that the district court incorrectly instructed the jury on the causation standard and the definition of disability under the ADA. Second, she argued that the district court erred in refusing to admit certain evidence. Third, Gentry argued that she is entitled to a new trial on damages for claims on which she prevailed.

Standard of Review for Jury Instructions

Challenges to jury instructions are reviewed for abuse of discretion. Jury instructions are viewed in their totality to determine if they adequately informed the jury without misleading or confusing the jury or prejudicing one of the parties. Whether jury instructions were correct statements of law are reviewed de novo. Jury instructions will not be set aside unless they seriously prejudice the objecting party.

ADA Causation Standard

Title I of the ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.” 42 U.S.C. § 12112(a). The district court instructed that Gentry had to prove that her disability was the but-for cause of her termination. Gentry argued that this was in error and that the district court should have instructed that Gentry had to prove that her disability was a motivating factor for her termination. The Fourth Circuit determined that the ADA’s text requires a “but-for” causation standard, and thus the district court did not err in applying a “but-for” causation standard to Gentry’s ADA claim.

Title VII allows for employees to establish actionable disability discrimination under the motivating factor causation standard. The Fourth Circuit pointed to the 1991 amendment to the Civil Rights Act of 1964 providing for this, codifying the Price Waterhouse v. Hopkins decision that first established the motivating factor standard for Title VII cases. However, in Gross v. FBL Financial Services, Inc., the Supreme Court determined that the motivating factor causation standard does not apply to the Age Discrimination in Employment Act (“ADEA”) because Congress did not amend the ADEA when it amended Title VII. The Fourth Circuit determined that the ADA, too, does not allow employees to establish actionable disability discrimination under the motivating factor causation standard, following the reasoning in Gross and joining the Sixth and Seventh Circuits. The few cross-references in the ADA to Title VII do not incorporate the motivating factor standard, contrary to Gentry’s contentions. Using the legislative history and the plain language of the ADA, the Fourth Circuit determined that the language of the ADA requires that “on the basis of” unequivocally means but-for causation.

ADA Definition of Disability

The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1).

The district court instructed the jury that an impairment substantially limits a major life activity “if it prevents or significantly restricts a person from performing the activity.” However, EEOC regulations now provide that an impairment does not need to prevent or significantly restrict a major life activity in order to be substantially limiting.

Because Gentry did not initially object to the district court’s instruction, the standard of review is plain error, which requires Gentry to establish that the district court erred, that the error was plain, and that the error probably affected the outcome of the trial. The Fourth Circuit determined that Gentry failed to establish that the error probably affected the outcome of the trial, and thus affirmed the district court’s definition of disability jury instructions. Gentry could not prove that the jury believed her injury was less severe than the jury instruction required. Instead, there was substantial evidence Gentry was terminated for other reasons. In so concluding, the Fourth Circuit considered that Gentry was terminated more than three years after her injury, that no one complained of her ability to do her job, and that her only evidence that she was terminated due to her disability was the disputed statements of Manner.

The district court also instructed the jury that a “regarded as” disability is actionable if “a perception that [Gentry] was disabled, was the ‘but for’ reason that [Defendants] . . . terminate[d] her employment.” The Fourth Circuit  could not see how Gentry was prejudiced by the jury instruction because the jury would have been instructed to find for Gentry if they believed Manner’s alleged statements. Accordingly, the Fourth Circuit found no abuse of discretion and no serious prejudice to Gentry that would warrant vacating the verdict.

Finally, the district court instructed the jury regarding the “record of” disability, to which Gentry also objected. However, because Gentry did not object to the instructions at trial and did not explain how the language affected her case, the Fourth Circuit could not find that the district court erred or otherwise abused its discretion.

State Law Claims and Damages Awards

For the state law claims, the district court instructed the jury that it could award damages for back pay, front pay, emotional pain and suffering, and nominal damages; and that Gentry had to mitigate her damages by seeking and accepting similar employment and that it could reduce the damages award based on what she could have earned. The jury awarded Gentry $10,000 against East West for workers compensation retaliation and $5,000 against East West and Manner each for tortious interference. Gentry argued on appeal that the trial court erred in denying her motion to introduce evidence of East West’s insurance coverage and indemnification and in denying her motion for a new trial on damages.

Gentry argued that the damages award was minimized by the Defendants’ belaboring of their poor financial conditions and the impression that a large award would be overly burdensome. Further, she argued that she should have been allowed to dispel this impression by presenting evidence of East West’s liability insurance and its indemnification agreement with the Club.

Evidentiary rulings are reviewed for abuse of discretion. Rulings will only be overturned if they are arbitrary and irrational. The Fourth Circuit found no such basis for overturning the district court’s decision.

The Defendants’ evidence of their financial status was relevant in their defense that they did not terminate Gentry because of her disability but rather because of their financial situation. Further, Gentry did not sufficiently show how the evidence of the financial troubles would show that the Defendants could not pay a damages award. Finally, the district court instructed the jury to award Gentry “fair compensation” and did not reference the Defendants’ ability to pay.

Gentry also argued that she is entitled to a new trial on damages because the damage award was inadequate and that the jury found that Gentry failed to mitigate her damages against the clear weight of the evidence.

Motions for new trial are reviewed for abuse of discretion, which is a high standard because the district court is in the position to hear from the witnesses and has a perspective an appellate court can not match. The crucial inquiry is whether an error occurred in the conduct of the trial that was so grievous as to have rendered the trial unfair. Gentry did not meet this substantial burden because she could not assert with certainty the reasons for the jury’s decision on damages. Further, she could not assert that the clear weight of the evidence showed that she properly mitigated her damages. Accordingly, the Fourth Circuit affirmed the district court’s denial of Gentry’s motion for a new trial.

Conclusion

The Fourth Circuit affirmed the judgment of the district court on all the issues Gentry raised on appeal.

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5Feb

Fourth Circuit Finds Insufficient Evidence in Heroin-Related Convictions

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By Paige Topper

On December 10, 2015, in the criminal case of United States v. Daniel Blue, a published opinion, the Fourth Circuit reversed Daniel Blue’s (appellant) prior convictions of conspiracy and possession with the intent to distribute heroin due to insufficient evidence.

Surveillance on Blue Leading to His Arrest

Using the cooperation of a fellow heroin distributor, officers set up a controlled heroin buy in the hopes of arresting a known middleman, Keith Townsend. During the staged buy, officers watched Blue interact with their target in what appeared to be a drug deal with Blue giving Townsend heroin folded into a slice of bread. Two weeks later the officers decided to start tracking Blue by placing a hidden GPS on Blue’s vehicle.

In their surveillance of Blue’s whereabouts the officers followed Blue to Fox Hall apartment complex where they watched Blue enter the apartment building empty-handed and return about five minutes later with a cloudy white, plastic container in his hand. The officers then followed Blue to a lake in Baltimore County known for narcotics transactions. Blue entered into a vehicle with another male, Jamar Holt, and drove around the lake in Holt’s car before returning to his own vehicle. The officers followed Holt under the assumption that a drug transaction between Holt and Blue had occurred. Holt ultimately escaped the officers. After this failed attempt, the officers went to the new address that Blue was at, according to the GPS, and arrested Blue upon his departure from a residence on Sinclair Lane. Ultimately, a grand jury convicted Blue of conspiracy to distribute heroin and possession with intent to distribute heroin.

Insufficient Evidence for Possession with Intent to Distribute 

First the Fourth Circuit addressed Blue’s sufficiency of the evidence argument for the possession with intent to distribute 100 grams or more of heroin conviction. This conviction referred to 108.6 grams of heroin located in one of the Fox Hall apartment units hidden in a footstool. The standard of review for this evidence was whether such evidence could support a rational determination of guilt beyond a reasonable doubt. The government argued there was enough evidence because the officers watched Blue enter and leave the Fox Hall apartment building and that Blue lied to the officers about not being at that location.

The Fourth Circuit noted that the two principal issues with this count were (1) whether Blue knew the 108.6 grams of heroin was in the footstool in the front bedroom of the apartment unit and (2) whether Blue had the power to exercise dominion and control over the heroin. Dominion and control cannot be established by mere proximity to the drug, by mere presence on the property where the drug is found, or by mere association with the person who does control the drug.

Although the officer’s observed Blue entering and exiting the apartment building, they did not see Blue enter the specific apartment unit where the heroin was found nor did they see Blue interact with the occupants of the apartment unit in question. Therefore, the Fourth Circuit determined there was insufficient evidence to establish Blue’s possession of the heroin found in the footstool. The  government argued that Blue was using the apartment as a stash house and thus had constructive possession of the heroin. The Fourth Circuit declared that the government did not provide constructive notice of the heroin through proof that Blue resided or leased the apartment, that Blue’s personal possessions were in the apartment, or that Blue was associated with the occupants of the apartment. As a result of the lack of connection between Blue and the occupants of the apartment, the government’s theory of a stash house was found to be unreasonable. The complete lack of connection between Blue and the heroin convinced the Court that the evidence did not support a rational determination of guilt beyond a reasonable doubt.

The Fourth Circuit also rejected the government’s reliance on case law that suggested the holder of a key has constructive possession of the contents in the apartment. In particular, the Court noted that no Fourth Circuit case had ever adopted the overly broad statement of the law derived from the Eighth Circuit. Moreover, the Eighth Circuit itself qualified the statement, which was located in a footnote, by rejecting the government’s argument in that case that the defendant’s possession of a key to the home, by itself, proved the defendant knowingly possessed cocaine found in the home. Here, the fact that Blue had a key to the apartment did not provide sufficient evidence to establish guilt beyond a reasonable doubt.

Insufficient Evidence for Conspiracy to Distribute

Blue’s second challenge was against the sufficiency of the evidence to support the charge for conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin. The Fourth Circuit again found that the evidence did not support a rational determination that Blue was guilty of conspiring to distribute. To have found Blue guilty for conspiracy for distribution specifically over 100 grams the government had to tie Blue and another person to an agreement to distribute the 108.6 grams of heroin. The government failed to present such evidence.

Fourth Circuit Reversed Both Convictions

As a result of the lack of sufficient evidence linking Blue to the 108.6 grams of heroin in the footstool and linking Blue to an agreement to distribute that amount of heroin, the Fourth Circuit reversed both convictions of conspiracy and possession with intent to distribute heroin.

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20Jan

Banker and Girlfriend Convictions Affirmed in Murder-For-Hire Targetting Estranged Wife

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By Eric Jones

On January 20, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Moore.  Wendy Annette Moore and Christopher Austin Latham appealed their convictions for participating in a murder-for-hire plot, the target of which was Latham’s estranged wife.  Moore and Latham argued on appeal that the district court constructively amended the indictment against them through erroneous jury instructions, and improperly admitted both hearsay and character evidence.  The Fourth Circuit affirmed the convictions.

The Murder-For-Hire Plot

Latham was a banking executive in Charleston, South Carolina, and was dating his assistant Moore.  Moore and Latham allegedly hired Moore’s ex-husband Samuel Yenawine and his cellmate Aaron Wilkinson to murder Latham’s estranged wife Nancy Cannon.  Wilkinson was stopped by police as he drove through Charleston.  Wilkinson quickly revealed that he and Yenawine were involved in the plot, and that the murder had not yet occurred.

Although Wilkinson originally believed that he and Yenawine were setting out to purchase drugs, once on the road to Charleston from Louisville, Kentucky, Yenawine informed Wilkinson that they were in fact on the way to kill Cannon.  Once in Charleston, Yenawine purchased a pay-as-you-go cell phone, which he used to communicate to a then-unnamed woman that would meet them at the hotel.  Moore met the men, rented them a room, and gave the men $5,000 cash.  Yenawine later met with Moore a second time, returning with a manila envelope containing a “hit packet” with information about Cannon and her children, the plot to murder her, printed maps with handwritten notes, Cannon’s schedule and routine, and photographs of Cannon, her residence and her vehicle.  The items in the “hit packet” were linked to Latham and Moore through handwriting analysis.  Investigators also linked several of the items to Latham and Moore’s office computers and individual printers, and to their cell phones.  Cell phone tower evidence and bank records further linked Latham and Moore to the murder plot.

The Jury Instructions

After a jury trial, Latham was convicted of the use of interstate commerce facilities in the commission of murder for hire, in violation of 18 U.S.C. § 1958(a).  Moore was convicted of conspiracy to use interstate commerce facilities in the commission of murder for hire, solicitation of murder for hire, the use of interstate commerce facilities in the commission of murder for hire, and illegal firearm possession.  Latham was sentenced to 120 months in prison, and Moore to 180 months.

The federal murder-for-hire statute, 18 U.S.C. § 1958(a), enumerates two distinct and alternative prongs: the “travel prong” and the “facilities prong.”  Under the travel prong, the Fourth Circuit explained, a defendant may be convicted if she “travels in or causes another . . . to travel in interstate or foreign commerce.”  Under the facilities prong, a defendant may be convicted if she “uses or causes another . . . to use the mail or any facility of interstate commerce.”  Moore and Latham were being charged under the travel prong.  In its closing instructions, the district court read the indictment to the jury, advising them that the defendants were only being charged under the travel prong.  As it went on to describe § 1958(a), however, the court made two references to the uncharged facilities prong, indicating that a defendant may also be guilty of that prong.  Latham and Moore both filed post-trial motions arguing that the district court had constructively amended the indictment against them by mentioning the facilities prong.

Constructive Amendment of the Indictment

As the Fourth Circuit explained, a constructive amendment occurs when the government or the court “broadens the possible bases for conviction beyond those presented by the grand jury.”  The Court further explicated that the “key inquiry is whether a defendant has been tried on charges other than those listed in the indictment.”  Rather than rely solely on the jury instructions, however, the Fourth Circuit clarified that a reviewing court should “consider the totality of the circumstances—including not only the instructions and the indictment but also the arguments of the parties and the evidence presented at trial—to determine whether a jury could have ‘reasonably interpreted’ the challenged instructions as ‘license to convict’ on an unindicted charge.”  Although the Court conceded that in some circumstances a reference to the facilities prong could constitute an impermissible constructive amendment, it held that in this case it was not.  First, the bulk of the jury instruction properly tracked the indictment and omitted any mention of the facilities prong.  Additionally, the court’s opening instructions to the jury described only the travel prong.  The court also gave the jurors a copy of the indictment, which included only the travel prong, and expressly cautioned that the defendants were “not on trial for any act or crime not contained in the indictment.”

Furthermore, the entirety of Latham and Moore’s defense, as well as the entirety of the prosecution, focused on the travel prong and neither party mentioned the facilities prong.  The Fourth Circuit also noted that “the term ‘facilities of interstate commerce’ was never defined for the jury, and the government never suggested that . . . was a basis for convicting the [defendants].”  Thus, based on the totality of the circumstances at trial, the Fourth Circuit held that no juror could have reasonably believed that they were free to convict the defendants under the uncharged facilities prong.

The Hearsay and Character Evidence

At trial, the government called Yenawine’s new cellmate to testify that, before committing suicide after arrest, Yenawine told him about the murder-for-hire plot.  The district court allowed these statements to enter under the “statement against interest” exception to hearsay, found in Fed. R. Evid. 804(b)(3).  As Yenawine had no reason to lie to his cellmate, and the defendants could not establish that the district court abused its discretion in finding sufficient corroboration of Yenawine’s statements, the Fourth Circuit affirmed the district court’s decision.

Moore and Latham also argued on appeal that certain character evidence about Yenawine’s prior conviction for arson and his alleged involvement in murder was improperly admitted.  As these objections were not made at trial, however, the Fourth Circuit examined the record only for “plain error” that “seriously affect[ed] the fairness, integrity, or public reputation of [the] judicial proceedings.”  The Court moved quickly past these arguments, stating that “Moore and Latham have not established that any of the testimony to which they object was admitted in ‘error,’ let alone ‘plain error.’”  In fact, as the Court pointed out, “some of the testimony was elicited by the [defendants] themselves.”  Furthermore, “even assuming, arguendo, the existence of plain error, [the Fourth Circuit] could not find the ‘serious[] effect’ on the ‘fairness, integrity, or public reputation’ of judicial proceedings required.”

The Fourth Circuit Affirmed the Convictions

Because the totality of the circumstances of the trial indicated that no reasonable juror could have been confused by the jury instruction, the Fourth Circuit held that no constructive amendment of the indictment had occurred.  Additionally, because the evidentiary objections could be disposed of “briefly,” the Court affirmed Latham’s and Moore’s convictions.

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11Nov

Fourth Circuit Revisits Sex Trafficking Case

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By Malorie Letcavage

On August 18, 2015 the Fourth Circuit Court of Appeals issued its published opinion in the criminal case of United States v. Fuertes. In this case, the Court had to review the conviction of German de Jesus Ventura and Kevin Garcia Fuentes for conspiracy to commit and commission of sex trafficking and related offenses. The Court affirmed Fuertes’ conviction and vacated Ventura’s conviction on Count Seven and remanded for judgment of acquittal.

Background

German de Jesus Ventura was operating brothels in Annapolis, Maryland with the help of Kevin Garcia Fuentes. Ventura threatened any local competitive pimps with violence. A local competing pimp, Ramirez, received threatening phone calls and was subsequently murdered. When Fuertes was arrested for a traffic violation, the phone number he gave matched the one that made the threatening phone calls to Ramirez. Fuertes also had business cards for his prostitution services on him when he was arrested. Fuertes consented to a search of his home and the police found that it was being used as a brothel. The police continued to monitor Fuertes and Ventura because they believed the two had murdered Ramirez. The police discovered that Ventura was also running brothels. Rebeca Duenas Franco testified that she had a violent history with Ventura, and that he forced her to commit sexual acts against her will through violence and threats. She also stated that she witnessed Fuertes and Ventura celebrating Ramirez’s murder.

The police continued surveillance and learned of other brothels the Defendants were running. They had intelligence that the two would be transporting a prostitute across state lines and that another local pimp was assaulted at the behest of Fuertes and Ventura. The Defendants were arrested in 2011 and indicted on seven charges relating to prostitution and sex trafficking. Fuertes and Ventura appealed their guilty charges claiming errors regarding evidentiary rulings, jury instructions and sufficiency of evidence.

Evidence Under 404b

Defendants claimed that the evidence of violent acts and violence against competitors was improperly admitted. The Court disagreed and held it was properly admitted under the Federal Rules of Evidence 404(b). This rule allows evidence of bad acts if they are admitted for a purpose other than to prove character. The evidence must also be necessary to prove an element of the crime, be reliable, and its probative value must not be substantially outweighed by prejudice. The Court found the violent acts relevant because they showed evidence of Defendant’s participation in the sex trafficking business and that they knowingly conspired to participate in that business. Since the jury had to find an overt act in furtherance of the conspiracy, the threat to use violence against competitors went towards that element.

Further, Defendants did not offer evidence that the information was unreliable or unfair. Since there was already substantial evidence about the violence committed against Duenas, the further evidence of violence was no more likely to cause the jury to react with their emotions instead of their intellect than her testimony of Defendants’ violent behavior. The Court held that the admission of the evidence of violence against other pimps was allowed, and not an abuse of discretion.

Expert Testimony Properly Admitted

The Defendants also argued that the testimony of Dr. Baker was improperly allowed because her experience was mostly with juveniles and was only attempting to bolster Duenas’ credibility about the source of her injuries. The Court disagreed based on Rule 702 concerning expert witnesses. It held that the scientific nature of the testimony meant that the district court as the gatekeeper had properly determined that it was relevant and reliable. It found that Dr. Baker had twenty-five years of experience with abuse cases, and had been qualified to testify as an expert in two dozen other cases. The Court found that it did not matter that her experience with abuse focused on juveniles because there is no distinction between adults and children when it comes to abusive injuries and her training would go to weight, not admissibility.

The Court further held that Dr. Baker did not comment on Duenas’ credibility or guess as to who caused her injuries. Just because her testimony corroborated Duenas’ testimony, did not mean it had to be excluded. The Court thus held that the decision to admit Dr. Baker’s testimony was not an abuse of discretion.

Classification as a Violent Crime

Ventura claimed that he should be acquitted for sex trafficking by force, fraud, or coercion in violation of 18 U.S.C. § 1591(a), which was a predicate for his 18 U.S.C. § 924(c) conviction, because it is not categorically a crime of violence. The Court reviewed the district court’s decision for plain error. To prove a conviction under 18 U.S.C. § 1591(a), the government must prove that the Defendant 1) used or carried a firearm and 2) did so during or in relation to a crime of violence. A crime of violence is defined as “an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

To determine whether it is a crime of violence the Court used the categorical approach to determine whether the defendant was in fact convicted of a crime that qualifies as a crime of violence under the force clause of the § 924(c)(3)(A). Because the definition of the offense allows that it may be committed nonviolently, it does not qualify as a categorical crime of violence under the force clause. The Court also found that it did not qualify as a crime of violence under the residual clause, § 924(c)(3)(B). There was not a substantial risk that the defendant would use physical force against the victim in completing the crime, so sex trafficking could not be categorically considered a crime of violence.

The Court then held that there was clear error when the District Court instructed the jury that sex trafficking by force, fraud or coercion was categorically a violent crime. It held that the error affected Defendant’s substantial rights and the fairness of the judicial proceedings. The Court vacated Ventura’s §924(c) conviction and remanded it for judgment of acquittal.

Evidence was Sufficient

The Defendants argued that there was insufficient evidence that Fuertes knew or recklessly disregarded that Duenas was coerced or forced to engage in commercial sex acts. The Court found that when viewing the facts in the light most favorable to the government, a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Court held that a reasonable jury could have found that Fuertes knew or recklessly disregarded that Duenas was forced or coerced to commit commercial sex acts because he witnessed Ventura beat her with a belt and was heavily involved in the prostitution business.

Conclusion

The Court affirmed the district court’s conviction of Fuertes because the evidence of violence was relevant to proving his involvement in sex trafficking and the expert testimony of Dr. Baker was properly admitted because she was a qualified expert. The Court also vacated Ventura’s conviction under 18 U.S.C. §924(c) because sex trafficking is not categorically a violent crime. The Court remanded that count for acquittal.

 

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