U.S. v. Queen

• Decision Date: 29 December 1997
• Docket Number: No. 96-4085,96-4085
• Citation: 132 F.3d 991
• Parties: 48 Fed. R. Evid. Serv. 599 UNITED STATES of America, Plaintiff-Appellee, v. Roland Demingo QUEEN, a/k/a Mingo, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 991

132 F.3d 991

48 Fed. R. Evid. Serv. 599

UNITED STATES of America, Plaintiff-Appellee, v. Roland Demingo QUEEN, a/k/a Mingo, Defendant-Appellant.

No. 96-4085.

United States Court of Appeals Fourth Circuit.

Argued Sept. 29, 1997.

Decided Dec. 29, 1997.

ARGUED: Arcangelo Michael Tuminelli, Baltimore, MD, for Appellant. Andrew George Warrens Norman, Assistant United States Attorney, Baltimore, MD, for Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore, MD, for Appellee.

Before RUSSELL, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge RUSSELL and Judge MOTZ joined.

OPINION

NIEMEYER, Circuit Judge:

The primary issue raised in this appeal is whether evidence of the defendant's prior acts of witness tampering were properly admitted under Federal Rule of Evidence 404(b) to prove the element of intent in a later prosecution for a separate act of witness tampering in violation of 18 U.S.C. § 1512(b)(1). Because we conclude, after a full examination of our Rule 404(b) jurisprudence, that the district court did not abuse its discretion in admitting the evidence, and because we reject the defendant's other assignments of error, we affirm.

I

On August 8, 1995, a grand jury returned a superseding indictment charging Roland D. Queen with conspiring to tamper with a witness in violation of 18 U.S.C. § 371 and with tampering with a witness in violation of 18 U.S.C. § 1512(b)(1). The indictment alleged that during the period from February 1994 to March 1995 Queen had illegally attempted to dissuade a witness named Feronica Isaacs from testifying in the drug trafficking trial of Stephen Hester and others.

Before trial, the government notified Queen that it intended to introduce evidence at trial indicating that Queen had tampered with witnesses in 1986. In response, Queen filed a motion in limine to exclude that evidence under Federal Rules of Evidence 404(b) and 403. At a pretrial hearing on the motion, the government presented two witnesses whom it intended to have testify to the 1986 conduct. According to one witness, before Queen's 1986 trial for armed robbery, Queen threatened to shoot him if he testified against Queen at trial, and according to the other, before the same trial Queen had threatened to "deal with" him for his role in alerting the authorities to Queen's involvement in the armed robbery. The district court denied the motion in limine, ruling that the government's evidence of prior acts was admissible under Federal Rule of Evidence 404(b) to show intent for the crimes charged and that, under Federal Rule of Evidence 403, the testimony would not be unduly prejudicial.

At trial, in addition to introducing evidence of Queen's prior acts of witness tampering, the government introduced evidence of a conspiracy between Queen and Hester to tamper with witnesses before and during Hester's trial. It presented evidence of threatening actions that Hester had taken towards Isaacs, of menacing glares that Queen had made towards witnesses testifying against Hester on the witness stand, and of a meeting that Queen had with Isaacs on her doorstep where Queen allegedly threatened Isaacs, telling her that it would be in her best interest not to testify against Hester, and attempted to bribe her not to testify. Although Queen admitted that he had visited Isaacs and had spoken with her, he denied that he had threatened or bribed her. He maintained that he visited Isaacs only to suggest that she visit Hester's attorney. In instructing the jury, the district court told the jury not to consider Queen's prior acts evidence for any purpose other than to infer intent as to the charged crime.

The jury returned a verdict of guilty on both counts charged, and the court sentenced Queen to 174 months imprisonment. In sentencing Queen, the court adjusted his offense level upward by two levels for perjury committed during trial, finding:

I am satisfied by a preponderance that Mr. Queen's testimony was false in respect to the purpose of his visit to Miss Isaacs and with respect to his actions, which I find were, in fact, designed to dissuade her from testifying or from testifying truthfully, and, as such, constituted perjury; and that Mr. Queen gave false testimony to the Court and the jury under oath, and knowing it to be false and material, obviously to the issues, [which] were under inquiry.

This appeal followed.

II

As his principal argument on appeal, Queen contends that the district court abused its discretion in admitting the evidence that he had twice intimidated witnesses before his 1986 armed robbery trial. Queen argues that such evidence could only have demonstrated his propensity to commit witness tampering in this case and therefore is prohibited by Federal Rule of Evidence 404(b). In order to bolster its claim that Queen threatened Isaacs, the government had offered evidence of the prior acts to show Queen's "intent, knowledge and lack of mistake in visiting Feronica Isaacs" to threaten her at her doorstep. The district court ruled, following a full pretrial evidentiary hearing, that Queen's prior acts were relevant to whether his words to Isaacs were spoken with an intent to intimidate. Although the court, while applying Federal Rule of Evidence 403, acknowledged that the prior-acts testimony contained a prejudicial aspect, it explained that the evidence "is prejudicial because it is so highly probative."

The question of whether evidence of prior acts is admissible under Federal Rule of Evidence 404(b) is frequently presented to our court. ¹ That fact suggests that as we address the issue again, we attempt to provide yet a clearer standard for the rule's application.

We begin with the general proposition that any evidence which tends to make the existence of a fact of consequence to an issue in the case "more probable or less probable" than without the evidence is relevant and therefore, as a general proposition, admissible. Fed.R.Evid. 402, 401. But even relevant evidence may be excluded if its probative value is "substantially outweighed" by the potential for undue prejudice, confusion, delay or redundancy. Fed.R.Evid. 403. Prejudice, as used in Rule 403, refers to evidence that has an "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed.R.Evid. 403 advisory committee's note; see also United States v. Powers, 59 F.3d 1460, 1467 (4th Cir.1995) (ruling that prejudice is shown only where court believes the evidence will unduly excite the emotions of the jury and thereby cause it to act irrationally).

Against these general principles, Federal Rule of Evidence 404(b) recognizes the potentially probative value of evidence about prior "crimes, wrongs, or acts." The rule specifies that such evidence is generally admissible except when it is offered to prove "the character of a person in order to show action in conformity therewith." ² Because the rule recognizes the admissibility of prior crimes, wrongs, or acts, with only the one stated exception, it is understood to be a rule of inclusion, see United States v. Aramony, 88 F.3d 1369, 1377 (4th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (1997); United States v. Russell, 971 F.2d 1098, 1106 (4th Cir.1992), authorizing evidence of prior acts for purposes other than character, such as "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). ³ As a rule of inclusion the rule's list is not exhaustive. See United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988).

The exception to admissibility under Rule 404(b) prohibits proof of a defendant's character to show conduct in conformity therewith because evidence of a person's character supplies an inadequate causal link between it and the specific conduct sought to be established. The fact that totally different types of conduct may follow from a single type of character leaves proof of character too general, ambiguous, and uncertain to prove specific conduct. But that realization does not disqualify evidence of earlier specific states of mind from proving a later similar state of mind. Thus, just as Federal Rule of Evidence 406 recognizes the probative value of repetitive conduct, authorizing the admission of evidence about habit and routine practice, Rule 404(b) recognizes the probative value of willful states of mind. However, because of the complex and difficult distinction between evidence of character and evidence of, for example, intent or motive, the broad discretion generally given to trial judges in regulating the admissibility of evidence is, under Rule 404(b), more restricted. Thus, we have articulated a four-prong test of admissibility for prior-act evidence: (1) the prior-act evidence must be relevant to an issue other than character, such as intent; (2) it must be necessary to prove an element of the crime charged; (3) it must be reliable; and (4) as required by Federal Rule of Evidence 403, its probative value must not be "substantially outweighed" by its prejudicial nature. See, e.g., Rawle, 845 F.2d at 1247. Notwithstanding the greater care required in admitting evidence of prior acts, we still review a district court's determinations of the admissibility of evidence under Rule 404(b) for abuse of discretion, as we do generally for evidentiary rulings. See, e.g., United States v. Greenwood, 796 F.2d 49, 53 (4th Cir.1986).

Notwithstanding our test for application of Rule 404(b), the decisions applying the test to determine whether prior-act evidence is probative of intent appear to lack consistency, perhaps because the rule's underlying principles are so elusive. For example, in United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991), we held that evidence of a defendant's involvement in prior drug transactions was admissible to prove intent in...