Witness Intimidation as Spoliation - Joseph Hage Aaronson

Commercial Litigation and Arbitration

Commercial Litigation and Arbitration

Witness Intimidation as Spoliation

From United States v. Manns, 2008 U.S. App. LEXIS 10016 (6th Cir. May 5, 2008) (unpublished), in which the defendant threatened the lives of two witnesses in statements — not to the witnesses — but to his cellmate:

We find unconvincing Manns's arguments that his alleged statement to Steven Tackett does not constitute admissible spoliation evidence and that its unfair prejudicial impact outweighed its probative value. "Spoliation is defined as the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction." United States v. Copeland, 321 F.3d 582, 597 (6th Cir. 2003) (quoting BLACK'S L. DICT. 1401 (6th ed. 1990)). In United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986), cert. denied, 480 U.S. 922 (1987), we held that "[t]hough not listed in Rule 404(b), spoliation evidence, including evidence that defendant attempted to . . . threaten[] a witness, is admissible to show consciousness of guilt." Id. Since Mendez-Ortiz, we have reiterated that spoliation evidence regarding the defendant's threats to witnesses is admissible. See United States v. Blackwell, 459 F.3d 739, 768 (6th Cir. 2006), cert. denied, U.S. , 127 S. Ct. 1336 (2007); Copeland, 321 F.3d at 597; United States v. Fortson, 194 F.3d 730, 737 (6th Cir. 1999); United States v. Maddox, 944 F.2d. 1223, 1230 (6th Cir. 1991), cert. denied, 504 U.S. 961 (1992). *** By contrast, Manns's statement to his cellmate demonstrated his intent to destroy the evidence unfavorable to him (Tackett and Roberts's testimony) and thus satisfies the definition of spoliation evidence.

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Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

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(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

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(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

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