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The Bavis lawyers, in their filing, contended that United had “a long history of failing to substantially comply with the federal aviation security regulations.” They cited a former United security executive retained as an expert by the plaintiffs, who contended that the airline had failed to heed warnings in the years before Sept. 11 about the need for greater staffing and training.
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.