Commercial Litigation and Arbitration

Evidence of Spoliation Admissible to Show Consciousness of Guilt under Fed.R.Evid. 404(b)

From United States v. Anderson, 2009 U.S. App. LEXIS 12532 (6th Cir. May 26, 2009):

Next, Remble contends that the district court erred by *** admitting testimony that Remble had attempted to bribe a witness, Antwan Atkins, into not testifying at trial. ***

The district court ... did not err in permitting Atkins to testify that Remble, during prison church services, attempted to bribe Atkins into not testifying at trial. Atkins's testimony was admissible under Rule 404(b) of the Federal Rules of Evidence. We have held that "[t]hough not listed in Rule 404(b), spoliation evidence, including evidence that defendant attempted to bribe and threatened a witness, is admissible to show consciousness of guilt," but that such evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986) (per curiam). Here, Atkins's testimony was probative because it was an attempt to establish Remble's connection to and role in the conspiracy. The fact that the alleged bribery attempt took place during church meetings was necessary to explain how, where, and why these co-conspirators were able to meet in one location. Notably, Remble did not threaten Atkins and the prosecutor did not overtly link the fact that Remble attempted to bribe someone in a church to his bad character. Whatever harm was done by linking the bribe to church services, it did not so unfairly prejudice Remble that its probative value was outweighed. Further, any error was harmless because there was overwhelming evidence of Remble's guilt.

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