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Univ. of South Carolina School of Law

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Friday, December 3, 2010

Bad Reputation?: Sixth Circuit Finds No Error With District Court's Prevention Of Character Evidence Question

A husband and wife are charged with conspiracy to commit money laundering, six counts of money laundering or aiding and abetting money laundering, and one count of harboring or concealing a fugitive. The husband has his attorney call a character witness to ask him whether he had an opinion as to the husband's reputation for "integrity, honesty and fair dealing" among his friends and associates. The prosecution objects, and the court sustains the prosecution's objection, prompting defense counsel to modify his question and ask whether the husband's reputation for "truth and veracity" was "good." The character witness answers that the husband's reputation for "truth and veracity" was "good." Is such an answer to this second question the functional equivalent of a positive answer to the first question? According to the recent opinion of the Sixth Circuit in United States v. Reid, 2010 WL 4829852 (6th Cir. 2010), the answer is "yes." I disagree.

In Reid, the facts were as stated above, with the Wayne and Donna Reid being the defendants, and evidence adduced at trial establishing

the existence of a large-scale, mostly marijuana, drug trafficking operation centered in rural Clay County, Kentucky. That operation generated millions of dollars in illicit drug proceeds for its distributors, one of whom, Larry Jackson, Jr.,...was a long-time friend of Wayne and Donna Reid. The money laundering conspiracy began in January 2000, after the drug trafficking operation was well established, and continued until the last of the substantive money laundering transactions occurred on November 9, 2005. In all, Reid received an estimated $1.5 million in drug proceeds from Jackson either directly, or at Jackson's direction after he became a fugitive.

After Wayne was convicted, he appealed, claiming that the trial court improperly precluded his character witness from answering the first question listed above. The Sixth Circuit did not even have to address this issue because the government conceded that the question should have been allowed under Federal Rule of Evidence 404(a)(1), which provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused - Evidence In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution....

According to the court, though, the problem for Reid was that he did

not explain in what way his reputation for "integrity, honesty, and fair dealing" would be distinct from his reputation for "truth and veracity."...

Even if Reid had articulated a basis for distinguishing between these traits, we find any error in the exclusion of this testimony to be harmless....[O]ther character witnesses testified (1) that Reid had a "good" reputation for "truth and veracity," and (2) that Reid had a "good" reputation for "integrity, honesty, and fair dealing." (Emphasis added.)

Now, I certainly agree with the court's harmless error ruling in light of the fact that other character witnesses in fact did testify that Reid had a good reputation for integrity, honesty, and fair dealing. But I don't see why the Sixth Circuit thought that Reid needed to explain why his reputation for "integrity, honesty, and fair dealing" would be distinct from his reputation for "truth and veracity." A person's reputation for "truth and veracity" does seem to match up with his reputation for honesty. But it seems to me that testimony that an individual has a good reputation for integerity and fair dealing is different from testimony that he has a good reputation for honesty and veracity.

You could say that a person is "honest," and I could still see that person harboring a fugitive. But I'm not sure that I could say the same about a person with "integrity." And I could see an "honest" person having some role in a money laundering conspiracy, but I wouldn't think the same about a person with a reputation for "fair dealing." 

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/12/mercy-rule-us-v-reid-f3d-2010-wl-4829852ca6-ky2010.html

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