Tuesday, August 3, 2010
Explain Yourself: Seventh Circuit Reverses Conviction Based On District Court's Failure To Explain Rule 403 Ruling
Federal Rule of Evidence 404(b) provides that
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Of course, evidence offered under Rule 404(b) is still subject to the balancing test set forth in Federal Rule of Evidence 403, which provides that
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
And, as the recent opinion of the Seventh Circuit in United States v. Ciesiolka, 2010 WL 2891087 (7th Cir. 2010), makes clear, a trial court's perfunctory consideration of this balancing test is inadequate and may in itself be grounds for reversal.
In Ciesiolka, Mark Ciesiolka was convicted of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity.
His prosecution emanated from a police sting operation, in which an officer, purporting to be a 13-year-old girl named "Ashley," engaged in series of sexually explicit, instant-messaging ("IM") conversations on an online Yahoo forum with the defendant. The sting, however, was marred by numerous oddities. The profile created by the officer displayed a photo of a woman in her late 20s and indicated that the user's interests included "beer" and "Purdue University." When asked by the defendant to send pictures during their IM conversations, the officer inexplicably sent a photo of a woman in her late 20s. Ciesiolka remarked that she looked 21. Ashley nevertheless maintained that she was just 13. Although Ciesiolka and the officer agreed to meet at a Pizza King, the defendant evidently got cold feet and, despite repeated encouragement from Ashley, declined to meet. The officer admitted: "I lie about my age."
The crime with which Ciesiolka was charged required the government to prove beyond a reasonable doubt that the defendant believed that "Ashley" was under 18....[G]iven the somewhat bizarre nature of the sting operation itself, replete as it was with suggestions that Ashley may have been an adult, it is perhaps unsurprising that the government sought to bolster its case. It did so by introducing voluminous evidence under Fed.R.Evid. 404(b) of the defendant's other IM conversations with unknown third parties, over 100 images of child pornography and/or erotica discovered on his computer and testimony from a woman, "SC," who claimed that Ciesiolka had had sex with her several times when she was 15. This evidence took up an entire day of a three-day trial and yet, at the time of its introduction, was subject only to a single, pro forma limiting instruction.
After he was convicted, Ciesiolka appealed, claiming, inter alia, that the district court erred in allowing the prosecution to admit the aforementioned evidence under Federal Rule of Evidence 404(b). The Seventh Circuit agreed, noting that evidence offered under Rule 404(b) is still subject to the balancing test set forth in Federal Rule of Evidence 403 and concluding that it "could find no portion within it where the court explained its bare-bones conclusion that 'the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.'"
According to the court, this was problematic because "a trial court's 'perfunctory' consideration of this critical question is inadequate and may in itself be grounds for reversal." And, based upon the extremely prejudicial nature of the evidence of the evidence presented by the prosecution, the Seventh Circuit found that it had to reverse because
the district court abused its discretion in failing to propound reasons for its conclusion that the probative value of SC's testimony, the many images of child pornography and the content of Ciesiolka's numerous, offensive IM conversations with third parties was not substantially outweighed by the risk of unfair prejudice.