Compromising Position: 11th Circuit Case Involves Rare Intersection Between Rules 408(a) & 413(a)

Federal Rule of Evidence 408(a) provides that

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and  

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

Meanwhile, Federal Rule of Evidence 414(a) provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

Usually, these Rules are two ships passing in the night, but they had a rare intersection in the recent opinipon of the Eleventh Circuit in United States v. Levinson, 2013 WL 49718 (11th Cir. 2013).

In Levinson, Allen Levinson was convicted for (1) using a computer to attempt to persuade, induce, entice, and coerce a minor to engage in sexual activity; and (2) as a registered sex offender, committing a felony offense involving a minor. After he was convicted, Levinson appealed, claiming, inter alia, that the district court erred by allowing the prosecution to admit evidence that he settled a civil action that his daughter brought against him for sexually abusing her when she was a minor.

Had Levinson objected to the admission of this settlement evidence at trial, he likely would have had a point because such evidence almost certainly was inadmissible under Federal Rule of Evidence 408(a). But because Levinson failed to object at trial, the Eleventh Circuit found that he failed to preserve the issue for appellate review.

Moreover, the court found no separate issue with the substance of the settlement evidence because Levinson was accused of child molestation and the daughter's prior lawsuit against him alleged that he engaged in acts of child molestation against her. Accordingly, the evidence was admissible under Federal Rule of Evidence 414(a).

-CM