In a decision that only a legal apologist or circuit judge could love, the 8th Circuit in  U.S. v. Vega pulled a breathtaking move and twice screwed the defendant without breaking a sweat.  Via Federal Evidence Review, the Court upheld a drug conviction where the government was allowed to use prior bad act evidence for which the defendant had been acquitted, but denied the defendant to introduce the fact that he had been acquitted.

Cool, huh?

The defendant argued that the prejudice of the acquitted conduct, which the government introduced under F.R.E. 404(b), far exceeded it’s probative value.  This seems almost definitional to those of us who are not slaves to the proposition that anything serving to convict is inherently admissible, but not to Judge Smith, who wrote the opinion.

The key to the Circuit’s decision is that one of the foundational requirements for admissibility under 404(b) is that the bad acts need only be shown by a preponderance of the evidence, whereas a conviction requires proof beyond a reasonable doubt.  Just because the defendant was acquitted, therefore, doesn’t mean that it wasn’t more likely than not that he committed the criminal conduct.

What makes this more astounding is that this was all presented in the first trial, where the jury acquitted on the first count and hung on the second. At the second trial, the jury was presented with the 404(b) from the first, but only asked to decide the second.  And the defendant was precluded from telling the jury that he had already been acquitted.

…although a judgment of acquittal is relevant with respect to the issues of double jeopardy and collateral estoppel, once it is determined that these pleas in bar have been rejected, a judgment of acquittal is not usually admissible to rebut inferences that may be drawn from the evidence that was admitted.

“[T]wo primary reasons” exist as to “why a judgment of acquittal is not generally admissible to rebut inferences that may be drawn from evidence that was the basis of a previous trial.” The first reason is that “judgments of acquittal are hearsay.” The second reason is that “judgments of acquittal are not generally relevant, because they do not prove innocence; they simply show that the government did not meet its burden of proving guilt beyond a reasonable doubt.”

Bizarrely, the rationale makes perfect legal sense, assuming one doesn’t let the equities keep you awake at night.  Most of us would assume that once a defendant is acquitted of an alleged crime, that would be a pretty good reason not to allow its use in a subsequent trial.  While the court is technically correct in noting that the burden for admission of evidence under 404(b) is lower than for acquittal, it creates two untenable situations: First, it requires the defense to try a case within a case, defending against the 404(b) conduct as well as the conduct for which he’s on trial. 

Second, the defense had already fought, and prevailed, against the charges, yet was compelled to face them again, even if only to bolster a different count on which the first jury hung.

It’s unfortunately common to have courts sentence defendants based on acquitted conduct, making the fact of acquittal something of a farce.  In this case, the defendant’s conviction on the second count, at the second trial, elevates this legal catch-22 to a higher plane.

The core of the argument on appeal was the probative versus prejudice prong of F.R.E. 404(b).  On the one hand, this certainly seems to cover the scenario presented Vega at his second trial, as the use of acquitted conduct to prove the hung count doesn’t get more prejudicial.  But then, it falls into the vast wasteland of discretionary decisions to be made by a court as to admissibility of evidence.  Outside of an abuse of discretion, something that’s found only when the judge starts screaming “hang the bastard” in the middle of trial, there is little to do.

More to the point, it’s shocking (at least to those who do not adhere to the belief that convicting defendants is the primary purpose of a legal system) to see the 8th Circuit approve of this outcome given the horrible stench of how it was achieved.  Yes, the twisted rationale is sound, provided you don’t get hung up on the prejudice thing or that it reflects the absence of fundamental fairness, but for crying out loud, the guy was acquitted.  Acquitted! 

At what point does an acquittal matter?  At what point does the court show the jury that modicum of respect to give some meaning to its verdict?  Or do we only love juries that convict?  And if they don’t, does the court exercise its discretion to find a way to make sure such a mistake doesn’t happen again? 

H/T Michael Drake