Monday, February 5, 2018
11th Circuit Finds Conviction Resulting From Nolo Contendere Plea Insufficient to Satisfy Character Evidence Test
Federal Rule of Evidence 404(b) provides that evidence of a crime, wrong, or other act
may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.
Meanwhile, Federal Rule of Evidence 410(a)(2) provides that
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:...
(2) a nolo contendere plea
So, let's say that a defendant is on trial for a crime (crime #1, e.g., safecracking) and has a prior conviction based upon a nolo contendere plea for a prior crime (crime #2, e.g., safecracking). If the prosecution wants to introduce evidence of the prior crime for a permissible purpose (e.g., knowledge of how to crack a safe), can it prove that prior crime solely through evidence of the defendant's prior conviction resulting from his nolo contendere plea? According to the Eleventh Circuit in United States v. Green, 873 F.3d 846 (11th Cir. 2017), the answer is "no."
In Green, the facts were as stated above. The court observed that this was a question of first impression in the Eleventh Circuit. It then noted that "[t]o have Rule 404(b) prior act evidence admitted, the proponent need only provide enough evidence for the trial court to be able to conclude that the jury could find, by a preponderance of the evidence, that the prior act had been proved." Therefore,
The prosecutor can, of course, prove the prior act by calling witnesses to testify. Or, as is often the case when the act has become the subject of a conviction, the prosecutor can prove the act by introducing a certified judgment of conviction. Indeed, "[i]t is elementary that a conviction is sufficient proof that [the defendant] committed the prior act."
Obviously, a conviction based on a verdict of guilty after a trial will suffice. A jury can convict only if it has found the defendant guilty beyond a reasonable doubt, which standard clearly exceeds the preponderance standard. Likewise, a conviction based on a guilty plea to the prior crime also suffices to meet Rule 404(b)'s proof requirement.
This then took the court to a conviction based on a nolo contendere plea. According to the court,
In deciding the impact of Federal Rule of Evidence 410 on the question before us, Rule 410 does not, as a textual matter, address a nolo conviction; instead, it prohibits only the admission of a nolo plea. Indeed, Rule 410 implicitly deals with the inability to use as an admission particular types of pleas or statements made during a proceeding or plea discussions. Further, the fact that courts have recognized numerous instances in which a nolo conviction is admissible for purposes of proving that a conviction occurred argues against a reading that Rule 410 contains an absolute prohibition on the use of nolo convictions. Finally, as to the policy argument that defendants would be loath to enter a nolo plea if they were aware that the resulting conviction could later be used in an unrelated criminal case as Rule 404(b) intent evidence, the persuasiveness of that argument is greatly undermined by the existence of long and well-settled legal precedent permitting use of a nolo conviction in ways that are much more harmful to a defendant. For example, that a defendant's sentence for a subsequent conviction is subject to an enhancement, and sometimes a quite substantial one, by admission of a nolo conviction would seem a much more sobering prospect than the thought that it might someday be used as Rule 404(b) evidence.
Thus, Rule 410 is an uncertain basis on which to rest a determination that a nolo conviction is not admissible.
This led the court to consider Federal Rule of Evidence 803(22)(a). That Rule provides an exception to the rule against hearsay for
Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea
This Rule led the court to conclude as follows;
Rule 803(22)...provides stronger support for an argument that a conviction based on a nolo plea should not, as a general matter, be considered for the truth of the matter asserted. Again, Rule 803(22) provides that a prior judgment of conviction based on a nolo plea is not included in the list of judgments that are exempt from the hearsay rule. And here the Government sought to admit the conviction to show that Defendant had possessed ammunition in 2006, thereby putting admission of this evidence within reach of that rule.
Therefore, the court deemed the evidence inadmissible. So, in the Eleventh Circuit, something more than a conviction resulting from a nolo contendere plea is needed to admit evidence of a prior crime.