In this prosecution for a variety of crimes, including securities fraud and obstruction of justice, United States v. Polusen, Nos. 08-4218; 09-3658, 2011 U.S. App. Lexis 17715; 2011 Fed App. 0235P (6th Cir. August 25, 2011), the Sixth Circuit Court of Appeals rejected a character rule challenge to the trial court's admission of defendant's acts amounting to spoliation on the ground that the spoliation evidence, the Court of Appeals held, was admissible to show "consciousness of guilt," which, the Court of Appeals held, is not the same as the sort of "character" barred by Federal Rule of Evidence 404:
In March 2008, Poulsen was convicted in the Obstruction Case of conspiracy, witness tampering, and obstruction of justice. Prior to his sentencing in that case, Poulsen filed a motion in limine in his Securities Case to exclude certain types of evidence, including his conviction in and the facts underlying the Obstruction Case. The district court denied this motion, holding that the "obstruction conviction and its underlying facts are admissible under Rule 404(b)."...
Other bad acts are probative and admissible if relevant to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. (citing Fed. R. Evid. 404(b)). This list is "neither exhaustive nor conclusive." United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986). Our courts admit "spoliation evidence, including evidence that a defendant attempted to bribe . . . a witness," because such spoliation evidence shows "consciousness of guilt." Id.; see also United States v. Anderson, 333 F. App'x 17, 24 (6th Cir. 2009). Poulsen's conviction in the Obstruction Case was supported by evidence of his attempts to pay Sherry Gibson to give favorable testimony. This evidence was not offered to prove Poulsen's character in conformity with this prior bad act but rather was offered as evidence of his consciousness of guilt. The district court was aware of this distinction and clearly stated how Poulsen's "prior acts" were admissible under Rule 404(b): "Evidence of witness tampering was admissible as an 'other purpose' under Rule 404(b) because it 'tends to establish consciousness of guilt without any inference as to the character of the spoliator.'" Because, as the district court recognized, evidence of Poulsen's "attempts to bribe Gibson to testify favorably at his fraud trial is probative of his consciousness of guilt," the evidence was admissible. We take no issue with this finding, and move on to the question of whether the district court abused its discretion in determining that the evidence was not impermissibly prejudicial.
Note that although defendant attempted to raise an entrapment defense, the Court of Appeals did not rely on Federal Rule of Evidence 405(b), which allows the admission of character evidence when character is an element of a claim, charge, or defense. Earlier in its opinion the Court of Appeals had held that the trial court had properly rejected a request for an entrapment jury instruction because defendant had not presented sufficient evidence at the trial to make his claim of entrapment a triable issue.
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