Commercial Litigation and Arbitration

Admissibility of Intrinsic vs. Extrinsic Evidence of Other Bad Acts under Federal Rule of Evidence 404(b) — ABA Judicial Recusal Standards

United States v. Ciavarella, 2013 U.S. App. LEXIS 10513 (3d Cir. May 24, 2013):

Mark Ciavarella, a former state judge, was convicted by a jury in the Middle District of Pennsylvania of racketeering, honest services mail fraud, money laundering conspiracy, filing false tax returns, and several other related crimes. The charges resulted from the so-called "Kids for Cash" scandal that erupted in Luzerne County, Pennsylvania in late 2008. Ciavarella and his fellow judge, Michael Conahan, were accused of receiving over $2.8 million in three years from a commercial builder, Robert Mericle, and an attorney and businessman, Robert Powell, in exchange for helping to construct and operate juvenile detention centers and placing juvenile offenders there. Ciavarella complains that the District Court Judge overseeing his case was biased and should have recused himself early on, when Ciavarella asked him to do so. Ciavarella also assigns numerous trial and sentencing errors, which we discuss in detail below. ***

Ciavarella argues that the District Court erred under Federal Rule of Evidence 404(b) by admitting evidence that demonstrated that he and Conahan failed to disqualify themselves in certain lawsuits over which they presided. Ciavarella argues that this evidence was not relevant, failed to assist the jury in understanding whether the payments were bribes or part of a scheme to defraud, and that even if relevant, was unfairly prejudicial. Even if we assume Ciavarella is correct that Rule 404(b) applies in this instance because extrinsic offense evidence is at issue,13 we find no abuse of discretion.

Footnote 13. The Government maintains that the District Court correctly ruled that the evidence is "intrinsic evidence of Ciavarella's guilt on the honest services fraud counts." Gov't Br. at 47. "Rule 404(b) does not extend to evidence of acts which are 'intrinsic' to the charged offense." United States v. Cross, 308 F.3d 308, 320 (3d Cir. 2002) (internal quotation marks omitted).

The Government sought to introduce evidence under Rule 404(b) that Ciavarella and Conahan failed to disqualify themselves or disclose their conflicts of interest in cases over which they presided involving Mericle, Powell, PACC, and WPACC as litigants. The American Bar Association's Model Code of Judicial Conduct requires all judges to either disqualify themselves from or disclose their interest in proceedings in which their impartiality may be questioned due to their economic interest in the subject matter in controversy. Model Code of Judicial Conduct R. 2.11 (2011). "Almost every State . . . has adopted the American Bar Association's objective standard . . . ." Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 888 (2009). Ciavarella testified that though he knew of the affirmative duty to disqualify himself in certain cases, he failed to do so. Multiple attorneys that represented opposing parties in cases before Ciavarella against Powell or companies owned by Mericle testified about the judges' failure to disqualify themselves or disclose their financial relationships. When the relationships were specifically inquired about, Ciavarella downplayed them or responded angrily. In each case, there had been rulings squarely in favor of Mericle, Powell, and the juvenile detention centers. Witnesses testified that had the opposing counsels known about Ciavarella's and Conahan's relationships, it would have affected the counsels' handling of their cases.

As is relevant to Ciavarella's argument on appeal, extrinsic evidence of other bad acts is admissible under Federal Rule of Evidence 404(b) if three requirements are met. First, the evidence must be offered for a proper purpose under Rule 404(b); second, the evidence must be relevant under Rule 402; and third, the probative value of the evidence must outweigh its potential for unfair prejudice under Rule 403. Huddleston v. United States, 485 U.S. 681, 691 (1988).

Footnote 15. As a fourth requirement under Rule 404(b), evidence must also "be accompanied by a limiting instruction (where requested) about the purpose for which the jury may consider it." Cross, 308 F.3d at 320-21.

Proper purposes for the evidence include "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b). "Rule 404(b) is a rule of inclusion, not exclusion, which emphasizes the admissibility of other crimes evidence." Gov't of V.I. v. Edwards, 903 F.2d 267, 270 (3d Cir. 1990).

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