 Evidence for the Trial Judge Other Crimes, Wrongs, or Acts Applying Federal Rule of Evidence 404b Part 2 Welcome to Evidence for the Trial Judge, a Federal Judicial Center program for the United States District and Magistrate Judges. I'm Stephen Salzburg, Howery Chair of Trial Advocacy at the George Washington University Law School, and this is the second part of our program on Federal Rule of Evidence 404b. With me once again to discuss some of the more challenging issues that can arise in connection with other crimes, wrongs, or acts evidence, our United States District Judges, Vicki Miles-Lagrange, of the Western District of Oklahoma, Rena Raji of the Eastern District of New York, and Milton Shader of the Northern District of Illinois. In the first part of this program we discussed scenario one in your written materials, which was a drug case. Today we'll begin with scenario two, which is a white collar crime case. As you can see, the charge is that broker, we refer to as B, and compliance official, the CO, conspired to defraud a brokerage customer during an arbitration over alleged churning. The compliance official has alleged to have falsely claimed to have located a letter from the customer purporting to acknowledge the trading. The letter is a forgery. The 404b evidence is that broker told two assistants that another client, executive, or E, was too busy to sign an agreement with the brokerage firm that an assistant saw B cutting and pasting an agreement for E that B said he was applying E's signature to the agreement and had done this before. That when the firm began an internal investigation of the conduct giving rise to the indictment, B told an assistant not to volunteer information to the firm's counsel, and finally to B threatened to kill the assistant if he found she had met secretly with the firm's counsel. Now let's discuss this hypothetical based on these facts, which is that B defends by claiming he first saw the letter at issue during the arbitration. Judge Reging, I get to ask you first. The government has said, Judge, that this is a case in which intent is everything. I mean, it's fraud, we're alleging, mail fraud, not conspiracy to defraud the customer and fraudulent keeping of records, and therefore we've got to show knowledge and intent and we start out with the basically the first issue which is the conduct as to executive or E, the creation of documents apparently that were never documents that this other customer signed. The defendant's response is going to be in this case that this is one transaction out of hundreds of customers, one series of events out of perhaps years of work for the brokerage house, and that the trial is going to end up being a trial about executive and about conversations, not about what happened in the arbitration. What's your initial reaction? My initial reaction is to ask for papers because I think that this scenario presents some tough questions and from the brief arguments you made, I would not be prepared to rule. This case presents a real risk of offering the evidence just for propensity purposes and now I'm focusing on the evidence of possibly the other signature or paste job on the executive's document. I mean, is that being offered for the purpose of showing that he likely made the forgery in the case on trial as well? Well, then you're a forger once, a document tamper always. This starts to be like propensity. On the other hand, the government might be able to fashion an argument that suggested that this all went to a general modus operandi, an ability to create these kind of documents. I think the defense argument that, too, does not modus operandi prove, might be persuasive to me and that's why I would need papers. The other proffer, the threat evidence, I'll call it, is powerful. It is powerful proof of knowledge of criminal conduct but not the conduct charged, the similar act conduct and so you really have a chain here and I don't think the last act, the threat would come in unless the document with respect to executive were coming in so I would probably put that aside for a moment and try to focus on whether I was going to let in the evidence of the tampering with the executive's document. Well, let's put it aside, Judge Hitter, and let's talk about the conduct of this broker in cutting and pasting and apparently falsifying documents in connection with the account of this executive. Suppose a prosecutor, having heard Judge Raji, says, this is going to be tougher to persuade than I thought. Suppose a prosecutor shifts gears and says, it's really not so much about knowledge, it's not so much about intent despite this being a fraud case because I can see that your honor might be concerned here that this is only one event but it shows ability. She mentioned ability, it shows that this is a person who had the qualifications to be able to do this and apparently this document went unobserved in the company's records. So even according to the defense theory that I never saw this before, the ability to pull this off is important and that's why it should commit. Is that likely to get a receptive hearing? Well, before I deal with that, it seems to me that what you've just said demonstrates why it's important to get the government to identify upfront the predicates for prospective introduction of the evidence because they really should not be in a position to keep trying, you know, piece by piece in an effort to paint you into a corner while they are painting themselves out. When we talk about intent, for example, the question is intent to do what? In this one, it seems to me that they're trying to do it by showing intent to defraud and if you put it in those terms, that's a synonym for propensity. Now, I would tend to be much more persuaded by this second line of attack what Hugh Will used to refer to as the Stalingrad defense has now become the Stalingrad offense one street at a time and so essentially I think that the idea of saying yes, this shows the ability, the capability of performing something in this way to create an undetected document I think would be a more solid basis for permitting it to come in. Judge Miles LeGrange, as between intent on the one hand and this argument about ability on the other, how do you react if the prosecutor is going to make one or both arguments to you? Is one more persuasive, at least at the outset than the other? Not particularly. In my circuit, in the 10th circuit, the court, our circuit gives broad leeway to prosecutors in using 404B prior act evidence in conspiracy cases. But this is one of those cases where the skillfulness of the advocacy becomes critically important because it is a closed call and I am wanting so much more information about the particulars of the event with executive, the 404B evidence. Especially about the nature of the two fraudulent documents. The first one is described to us as a forgery. So, I mean, does this mean something more or less than that it just wasn't signed by the customer? Do we know whose signature it is? When you look at executive's document, what was the tampering there? Is there anything about the two that links in together? I do think we need a lot more information before we can just take words like intent, knowledge, plan, ability, and say that it comes in. That's certainly something I would sign on to as well. I didn't mean to indicate that all forgeries are alike. You know, it's animal farm operates here too. Some are more equal than others. And in order to demonstrate likelihood, it seems to me that a lot more has to be shown than what we have in the kind of bare-boned scenario we have. I suppose there's a little twist on our scenario which is that the defendant in the course of arguing is willing to say, we're willing to stipulate that knowledge and intent are established if the government can prove that the defendant B, broker, actually forged this letter and put the customer's signature on it. We don't dispute if you can prove that, that there was knowledge and intent, and therefore you don't need the rest of it. Does that change anything? Not for me. First of all, I know there were cases that talked like that. I think D.C. Circuit had a case of that nature. I think that the Supreme Court's suggestion and old chiefs that we talked about last time would indicate otherwise. But the reason for me it doesn't make a difference is I don't find the intent argument persuasive to begin with. Judge? I was going to say I don't find the defendant's stipulation in that instance particularly persuasive either because if the government could establish that broker created this letter, you know, they don't need the 404B evidence. That's why this whole area is, I think I referred to it earlier as being challenging because 404B evidence is prejudicial in a weak case and you don't need it. The government doesn't need it in a strong case. This is why Judge Radge, I think you were hinting that it's an easy case if you have forensic evidence and you can show that the broker actually signed the customer signature. Then you don't need this other stuff. It's an easy case of a forgery. If you don't know who signed it and all you know is that there may have been some manipulation of somebody else's papers, then it sounds a lot like we're talking about propensity. Did I read you right on that? I think that's the concern. As I said, I'm not ruling that I would keep it out. I'm not ruling that on what I know it's not enough for me to make a ruling. I would ask the government whether they have anything more that they can explain to me about the two documents here. This seems to me to be an ideal case for saying to the prosecutor, I won't let you cover this in opening argument because it's much more likely that you're going to be able to get better informed in a meaningful way during the course of the trial and the risk of course of referring to it in opening argument is all of us know the mythology about how much place opening argument takes in terms of causing the jury to reach a conclusion. I think that this is one in which the trial itself is much more likely to elicit the meaningful information that Judge Rajee was talking about. I think one of the concerns for the defense in this case could be that defendant probably has some concern about this evidence in terms of whether he would take the stand or not and would probably try to push the court to a ruling that there are no circumstances under which I would allow him to be cross-examined on this. And just as I said I couldn't make a ruling for the government at this point I'm not sure I could make a ruling for the defense either. It might very well be that the defendant might testify in a way that would open the door to allowing him to be cross-examined about this other material. Judge Miles LeGrange let me then go shift to the issue we put aside. The one that Judge Rajee said we take up second which is this is the conversation that Roker had with the assistant and then the threat to kill her if she spoke privately with the counsel. Here's my question. I'm the prosecutor and you've now dealt me this blow of keeping it so far. You're not going to let in the first part which was my propensity evidence. You're keeping that out and I'm hurt. So I say Your Honor please at least don't keep out the consciousness of guilt evidence and the reason I say it's consciousness of guilt is this investigation began after the arbitration and after the facts came to light about the arbitration and there was this criminal investigation. That's when the firm began its own investigation and I say that while it's true that all the comments that were made were made to an assistant who had only had a previous conversation about executive that a jury could easily find that the reason there was this fear on the part of Roker was because he was afraid that the customer's issue was going to come to light and that's really powerful evidence much more powerful than it is prejudicial. Am I going to get anywhere? This is not the woose approach but I would be very cautious in admitting that evidence. It is strong evidence of arguably strong evidence of consciousness of guilt of broker but on the other hand it's extremely prejudicial and so then my test when I put it on the 403 scale becomes to make a determination whether or not it is unfairly prejudicial. Is there a way to split this baby and let part in and not all? Well it seems to me that if you're looking at the potential for unfair prejudice and how that plays out in the scales that there's an enormous difference between the instruction not to cooperate and a threat to kill. If the government is wedded to a package deal the answer to me at least is that the government loses on that one. If the government would be prepared not to move into the second area I think I'd be much more inclined to permit it because I do agree that the showing of consciousness of guilt by the instruction not to cooperate is something that at least the jury ought to be in a position to weigh. How would you end up on the two parts of this last piece? I guess I'm still not persuaded yet to allow it to come in at all. I'll assume for a moment that the defendant did not produce a forged document at the arbitration that he is innocent of the crime charged but that he fiddled with executives agreements and he signed those and so he is scared to death that if those come in people will assume he forged the other document as well and so he makes this totally inappropriate and irresponsible comment to a co-worker. As I said it shows his very clear consciousness of guilt of what he's done in executives accounts but I'm not sure it proves the crime charged and it does have that tremendous potential for prejudice. Now I get any better links than that and I might reconsider but that's why I probably wouldn't let it in now. The one thing these first two scenarios have taught us is these are not easy issues and so let's see if it gets easier if we turn to a third scenario and the third one is a civil case and this one is a Title VII action. You have the scenario in your written materials but let me briefly summarize them for those of you who haven't had time to review them before today's broadcast. The claim is that after two years on the job Planoff was unlawfully fired by the defendant factory because she is an Asian American. The defendant factory claimed she was fired for assaulting a co-worker on company grounds. Everyone agrees that Planoff struck a white female co-worker in the face with her fist on company grounds while both women were signing out for the day. Planoff claims she was attacked first and was the victim of a racial slur but the employer concluded that Planoff attacked first and without provocation. A seven-year veteran personnel officer made the decision to terminate. Time permitting we're going to consider five pieces of potential 404B evidence in this scenario. The first piece is testimony by a co-worker that five years before the incident a white male worker had worked ten years for the factory and hit another worker in the head with a hammer. He was suspended for a month. Judge Biles of Grange, let's start with you. It appears that the plaintiff's principal claim is that the punishment of termination was out of proportion to the offense and she's offering this piece of evidence that goes back five years. The objection is going to be it's other act and it's prejudicial and it's remote and the circumstances are different. How do you react? I'd probably look at, and I may be cheating a little bit but I'd probably look at the one and two together and I don't want to jump ahead of you. Why don't we do the second piece of this evidence as well as the first which is three years before the plaintiff's incident a white female worker who had worked for the company for three years slapped a white supervisor in the face and she was suspended for a week and the suspended worker had claimed that she'd responded to provocation but an investigation found no provocation. I think if we do the two together there are certainly some distinctions that could be made between the two. The first, we've got an employee who had been on the job ten years a lot longer than the plaintiff in our case in the second instance. The violated employee had been on the job, no, the violator, excuse me, had been on the job three years. I think there are all kind of distinctions that we could make between these two proffers but I would tend more than likely to allow both of those pieces in to certainly as being relevant on the issue of disparate treatment. Judge Shader, it is a discriminatory treatment claim and is the danger of 404B or other act evidence as great in this setting with these two pieces of evidence as it was in our other scenarios given that we've got a five year period and only two incidents? Well, interestingly it seems the employment discrimination case I think are the largest single source of civil litigation that we have in our courts and I don't remember a single case in which as many motions for some re-judgment as we have, as many times we have to deal with it in the course of trial, I've ever heard the objection framed in terms of 404B. It is framed in different ways because intent is an issue. We see all the cases that talk about the idea that employers have become more sophisticated and therefore you seldom get the smoking gun, you seldom get the direct evidence of discrimination in that form and that therefore perforce the employee must resort to the inferential kind of material and it's in that climate I think that we all get these cases that involve this and I think that the net result of that is almost inevitably that we will tend much more to be inclined to permit sometimes snippets of individual incidents to come in when they're cumulative in nature and in order to overcome the difficulties of making the kind of direct proof that's necessary. Judge Maggi, federal magistrate judges both have a lot of discrimination cases. The number of cases on the civil side to get tried seems to be a good percentage in a lot of courts and my question is you get these two pieces of evidence and are you as worried about the prejudicial effect in this setting just when it will be evident that we're talking about a five-year period and the company will have a chance to explain as we were in the previous scenarios that we dealt with? I am not. The plaintiff's claim is that she has been disciplined more severely than others. Well, that necessarily requires us to start looking at how others were disciplined. The concern a court might have is ensuring that what we're going to compare is reasonable. Both of these proffered pieces of evidence involve assaults, not other forms of employee misconduct, lateness or who knows what else. We have assaults and I think the plaintiff has to be allowed to put in proof of how other employees who engaged in this kind of egregious conduct were disciplined. Because I assume this kind of conduct doesn't go on day in, day out, you're probably going to have to let the plaintiff to go, you're going to have to let her go back more years than you might if it were the kind of discipline that a company has to administer more regularly. I would think that both of these pieces of evidence come in. Judge Miles of Granger, I'm going to go to the third piece of evidence and start with you. The third piece of evidence that we have is testimony by a co-worker that she heard the personnel officer, that's the person who's been there seven years, use a derogatory term to refer to a Puerto Rican employee a year before the plaintiff's incident. Now I want to just add a fact to make this a little bit more complicated, or maybe easier. It happened that the remark was made at a Christmas party where the entire assembly of workers was there. There was an argument between the personnel person and the co-worker, and in the course of it, for another heated argument, the personnel officer made a very derogatory remark, racial slur, and everybody heard it. There was no apology, and the company, as far as we can tell, has never done anything about it. Does it come in? May I ask you a question? Sure. It's the same personnel officer. Same personnel officer. So his character, his or her character, is certainly at issue because that's the same personnel officer that terminated our plaintiff in the case of Barr. It may be admissible. I'm kind of searching my mind on what issue, other than propensity, though. How about the argument the plaintiff might make? It shows that the company was willing to tolerate racial bigotry in the workplace on part of this personnel officer and not do anything about it. That would be their argument. Judge Shader, will that argument get very far? I wouldn't think so. There are a lot of cases that talk about the idea that what are called stray remarks in the workplace won't establish the hostile environment that is essentially the kind of thing that you're talking about here because you're shifting over from, I think, the idea of disparate treatment, something that necessarily requires the showing of intent in the particular case to the idea that this supervisor was an equal opportunity discriminator. And I think that that's something that really doesn't lend itself sufficiently in terms of its probative value in those terms. And the opportunity that this gives the jury to decide that this person's a bad guy and therefore is much more likely to have done this is, I think, sufficiently troublesome. So I would not permit it. Dredge, I have a change of the facts now. Let's change the facts and make the co-worker another Asian employee. And let us suppose that a year before the personnel officer got angry at another Asian employee at this party and in public made a derogatory remark about Asian workers. And now the plaintiff offers that remark so it's not a Puerto Rican anymore. It's the third one that I gave. And I think now the plaintiff offers this as evidence to show motive. I think that this is going to be more likely to be persuasive to the court. One of the questions this jury is going to have to decide is whether this personnel officer when he imposed the discipline here had a bias against Asians. And because those kind of views are difficult to prove directly any evidence about his dealings with Asians could be probative. Now I assume that before I have to rule on this this was probably fleshed out pretty well in discovery. This is after all a civil case. And I also assume that this personnel officer is likely going to wind up on the stand. The company probably has to have him testify to defend the case. And so I suspect this is going to come in. For me it's much more than suspicion. You know if you want to talk about the smoking funds you've just pulled the trigger I think. The mindset of this supervisor is directly an issue when it comes to intent and the idea of demonstrating a mindset that's biased against the particular class which the plaintiff belongs seems to me to be extraordinarily powerful. That's what I meant when I talked about not making the presumption of an equal opportunity discriminator that applies biased in one, biased in all. And in this instance it seems to me to be especially powerful. We're almost at the conclusion of our program. And I did want to ask one last question. This seems to me and I don't know if you agree with this that in civil cases sometimes men look as difficult to rule on other act kinds of evidence but that actually it's just as hard to draw the line between such things as bias and motive and propensity. And in fact the difference between the word bias and the word predisposition may be really hard for anybody truly to understand. Do you agree with that? Yes I do. And while it may not in a civil case it may not come in as 404B evidence I'm confronted with the same problem via motion and lemonade. It doesn't make it any easier. It's certainly not any easier. Well you do get the last word from this because I think our time is up and we won't be able to complete our discussion of the last two parts of this scenario but if you're watching the program with the group of your colleagues please consider continuing the discussion amongst yourselves. On behalf of the Federal Judicial Center I'd like to thank our three United States District Judges Vicki Miles LeGrange, Reena Raji and Milton Shader for being with us again today. Thanks for watching and we hope you'll take a moment to fill out the program evaluation form in your materials. As always your feedback is important to us and plays a vital role in the design of these programs. Thanks again and good day.