United States v. Clay
Decision Date | 19 April 2012 |
Docket Number | No. 09–5568.,09–5568. |
Citation | 677 F.3d 753 |
Parties | UNITED STATES of America, Plaintiff–Appellee, v. Gary CLAY, Defendant–Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
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ORDERThe court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.
KETHLEDGE, Circuit Judge, dissenting from the denial of rehearing en banc.
This case presents two significant and recurring issues on which our court has express intra-circuit conflicts. The first issue—on which there is also an inter-circuit split—concerns our standard of review with respect to a district court's determination that bad-acts evidence is admissible for a proper purpose under Federal Rule of Evidence 404(b). The panel majority reviewed this determination de novo, and reversed the district court. See 667 F.3d 689, 693. I would have reviewed this determination for an abuse of discretion (and affirmed), not only because that is the standard the Supreme Court has told us to use for evidentiary decisions, but also because the determination rests primarily upon the district court's superior understanding of the issues and evidence at trial. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (). Specifically, once the district court identifies one of the purposes listed in Rule 404(b), the question then becomes whether, given the issues and evidence in the case, the proposed bad-acts evidence sufficiently aligns with that purpose. The district court knows that ground better than we do. But the more important point is that our decisions show one panel after another disagreeing with each other in published opinions discussing the issue.1 We ought to clean up our law on this issue.
The Supreme Court has encountered the same situation in an analogous context. In Cooter & Gell v. Hartmarx Corporation, for instance, the Court addressed the question “whether the court of appeals must defer to the district court's legal conclusions in Rule 11 proceedings[,]” where the standard of review is otherwise abuse of discretion. 496 U.S. 384, 401, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). And the Court held that, for legal and factual questions alike that require “ ‘fact-intensive, close calls,’ ” we should apply a “unitary abuse-of-discretion standard.” Id. at 403, 404, 110 S.Ct. 2447 (citation omitted). The question whether bad-acts evidence was admitted for a proper purpose under Rule 404(b) is such an issue.
The mere tincture of a legal issue, in a question predominately factual, should not be enough to vaporize the deference we owe the district court. And there is no disputing that the evidentiary issues presented in this case are predominantly factual. As it turns out, there is a circuit split on this issue: compare United States v. Green, 617 F.3d 233, 239 (3d Cir.2010) ( ) and United States v. Akin, 213 Fed.Appx. 606, 608 (9th Cir.2006)(per curiam) (same) and United States v. Plumman, 409 F.3d 919, 928 (8th Cir.2005) ( ) with United States v. Hite, 364 F.3d 874, 881 n. 10 (7th Cir.2004) vacated on other grounds by 543 U.S. 1103, 125 S.Ct. 1027, 160 L.Ed.2d 1012 (2005) ( ) and United States v. Gilbert, 229 F.3d 15, 20–21 (1st Cir.2000) ( ); see also United States v. Osorio, 288 Fed.Appx. 971, 974 (5th Cir.2008) (per curiam) ( ). The circuits are also split (sometimes internally) on essentially the same issue in the context of other evidentiary rules. Compare United States v. Tatum, No. 10–2625, ––– Fed.Appx. ––––, ––––, 2012 WL 573959, at *3 (6th Cir. Feb. 23, 2012) () and United States v. Ferguson, 676 F.3d 260, 285 (2d Cir.2011) ( ) and Mahone v. Lehman, 347 F.3d 1170, 1171 (9th Cir.2003) ( ) with United States v. Brown, 669 F.3d 10, 22 (1st Cir.2012) ( ) and United States v. Tran, 568 F.3d 1156, 1162 (9th Cir.2009) ( ) and United States v. Lopez–Garcia, No. 98–2252, 1999 WL 707783, at *2 (10th Cir. Aug. 18, 1999) ( ) and Trepel v. Roadway Express, Inc., 194 F.3d 708, 716–17 (6th Cir.1999) ( ); compare also Echo, Inc. v. Timberland Machs. & Irrigation, Inc., 661 F.3d 959, 963 (7th Cir.2011) ( ) with United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir.2011) ( ) and United States v. El–Mezain, 664 F.3d 467, 511 (5th Cir.2011) (same). So perhaps eventually the Supreme Court will remind us again that “abuse of discretion is the proper standard of review of a district court's evidentiary rulings.” Joiner, 522 U.S. at 141, 118 S.Ct. 512.
The second intra-circuit conflict concerns the showing necessary to admit evidence of a defendant's prior crimes under Rule 404(b). For years, the test for admitting such evidence had been whether the defendant's conduct in the prior crime was “sufficiently analogous to support an inference” that the defendant intended to engage in similar conduct in the events giving rise to the pending case. See United States v. Benton, 852 F.2d 1456, 1468 (6th Cir.1988). That test was more flexible—and thus easier to meet—than the test announced in United States v. Bell, 516 F.3d 432 (6th Cir.2008). There, we held that prior-crimes evidence is admissible only if the prior crime was “part of the same scheme or involved a similar modus operandi[.]” Id. at 443. Here, the majority applied the Bell test, whereas I would have applied the Benton one—which other circuits apply as well. See United States v. LeCroy, 441 F.3d 914, 918, 926 (11th Cir.2006); United States v. Shadletsky, 491 F.2d 677, 677–78 (5th Cir.1974). But again the relevant point is that we have one panel after another disagreeing with each other as to which of these tests controls.2 The practical result should be intolerable: in our circuit even the most conscientious district-court judge cannot tell what the law is on this important issue.
I respectfully dissent from the denial of rehearing.
* The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.
1. See, e.g., United States v. Murphy, 241 F.3d 447, 450 (6th Cir.2001) ( ); United States v. Mack, 258 F.3d 548, 553 n. 1 (6th Cir.2001) ( ); United States v. Haywood, 280 F.3d 715, 720 (6th Cir.2002) ( ); United States v. Perry, 438 F.3d 642, 647 (6th Cir.2006) ( ); United States v. Matthews, 440 F.3d 818, 828 (6th Cir.2006) (same); United States v. Ayoub, 498 F.3d 532, 547 (6th Cir.2007) (same); United States v. Love, 254 Fed.Appx. 511, 513–14 (6th Cir.2007) ( ); United States v. Bell, 516 F.3d 432, 440 (6th Cir.2008) ( ); United States v. Hembree, 312 Fed.Appx. 720, 723–24 (6th Cir.2008) (same); United States v. Jenkins, 593 F.3d 480, 484 (6th Cir.2010) (applying abuse-of-discretion review); United States v. Allen, 619 F.3d 518, 524 n. 2 (6th Cir.201...
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