“Evidence of Other Crimes, Wrongs, or Acts” and Email

As I noted in an earlier post, Rule 404(b) of the Federal Rules of Evidence provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

Rule 404(b) (and similar state rules of evidence) creates an exception to the general rule – which is found in Rule 404(a) of the Federal Rules of Evidence and in similar state provisions – “excluding circumstantial use of character evidence.” Advisory Committee Note – Federal Rule of Evidence 404. As the drafters of Rule 404 noted, character evidence can be used “for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. This use of character is often described as `circumstantial.’” Advisory Committee Note – Federal Rule of Evidence 404.

As the drafters also noted, in most

jurisdictions today, the circumstantial use of character is rejected but with important exceptions: (1) an accused may introduce pertinent evidence of good character . . .; (2) an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide . . . ; and (3) the character of a witness may be gone into as bearing on his credibility.

Advisory Committee Note – Federal Rule of Evidence 404. This post is about a case in which the defendant argued that the trial court erred in admitting certain emails pursuant to Rule 404(b), which applied because it’s a federal case.

The case is U.S. v. Hemetek, 2010 WL 3377327 (U.S. Court of Appeals for the 4^th Circuit) and this is how it arose:

In . . . 2005, based on information from a anonymous informant that Hemetek had purchased marijuana seeds over the internet, Sergeant Starcher designated the Hemetek farm for helicopter surveillance. . . . During the flyover of the Hemetek farm, . . . marijuana plants were observed growing in three large plots. . . .

The police approached the farm and received permission to search from [Hemetek’s] son, Richard Lockhart. . . . Richard said Hemetek used to be involved with growing marijuana when she was married to Vaughn Johnson. On arriving . . . while the search was underway, Hemetek stated that when she was married to Johnson, the couple had grown some marijuana but that she had not been associated with it in recent years and that the plants did not belong to her.

Hemetek was indicted on September 16, 2008 . . . and charged with . . . knowingly and intentionally manufacturing, by growing and cultivating, 100 or more marihuana plants. . . in violation of [21 U.S. Code § 841(a)(1)]. . . . [T]he case was set for jury trial. . . .

The government gave notice pursuant to [Rule 404(b)] that it intended to introduce evidence of the correspondence and purchase of the marijuana seeds from medicalseeds.com in the trial . . . to show motive, intent and absence of mistake. [Hemetek] filed a Motion in Limine to suppress the introduction of said evidence. . . .The Court rule that the emails . . . could be introduced . . . at trial. . . . As the case was a circumstantial one only, in that there was no direct connection of [Hemetek] to the marijuana plants located proximate to her property, the admission of the email and the statements acknowledging [she] had prior involvement with marijuana were crucial to the government's case. Had they not been admitted into evidence . . . it is unlikely [Hemetek] would have been convicted. . .

Brief of Appellant, U.S. v. Hemetek, 2010 WL 752208 (2010). According to the prosecution’s brief on appeal, the evidence consisted of an email thread between an

individual with an email address of *6 khemetek @hotmail.com and an entity with the email address, seedorders@medicalseeds.com. The first email stated, `I placed an order in March and my check has been cashed #471 for $350. Could I please have my order or my money back. K. Hemetek, Rt. 1 Box 156, Letart, WV, 25253.’ The second was dated April 28, 2004, and stated, `Greetings, the hold on your cheque was recently removed and your order was shipped. Next time if you wish faster service do not send a payment via cheque. Peace Mary.’

The third message in the thread stated, `The seeds I got were bad - only two out of 20 came up and I had got some from a friend . . . and they all came up. I am asking for a refund of $350 or I am going to post it on the internet site.’ This message . . . referenced an address of `Rt.1, Box 156, Letart, WV, 25253.’ The final message was dated June 15, 2004, and stated, `Greetings, we guarantee 80% germination simply send back the seeds that do not germinate and we can re-ship. Mary.’

Brief of Appellee, U.S. v. Hemetek, 2010 WL 1220268 (2010).

As the 4^th Circuit explained, evidence of “other bad acts” is not admissible under Rule 404(b) if it is used “`to prove the character of a person in order to show action in conformity therewith’” but may be admissible for other purposes “`such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident’”. U.S. v. Hemetek, supra (quoting Rule 404(b)).

The court also noted that when the district court judge gives the jury a limiting instruction that explains “`the purpose for admitting evidence of prior acts,’” the evidence “`will not ... be applied to convict a defendant on the basis of bad character or . . . prior acts. . . . Instead, such evidence will be “probative of elements of the offense in trial.’” U.S. v. Hemetek, supra (quoting U.S. v. Queen, 132 F.3d 991 (U.S. Court of Appeals for the 4^th Circuit 1997)).

In her motion in limine, Hemetek argued that the prosecution,

by using the e-mail, improperly suggested `that because she had bought seeds in the past she was likely to have cultivated the plants, and because of the suspicious circumstances surrounding the discovery of the email, the district court should have suppressed this evidence.’

U.S. v. Hemetek, supra. The 4^th Circuit did not agree:

Despite Hemetek's contentions, the e-mail demonstrates that she had previously sought to purchase and plant marijuana seeds, had the knowledge and intent to cultivate marijuana, and had taken preparatory steps to do so. The e-mail also tends to demonstrate that the presence of marijuana on Hemetek's property was not a mistake or accident, and that she had the motive and opportunity for such cultivation. Thus, the evidence was both relevant to and probative of the charged act of cultivating marijuana. . . .

The evidence was reliable because the e-mail came from her personal e-mail account and contained her name, address, and the number of the check she wrote to pay for the order, confirmed with a copy of the check from her bank. . . . Accordingly, we find that the district court did not abuse its discretion in admitting the e-mail pursuant to Rule 404(b).

U.S. v. Hemetek, supra.

How, you might ask, did law enforcement happen to fly over the Hemetek farm and/or get the emails? According to the prosecution’s brief on appeal,

Sgt. E.B. Starcher of the West Virginia State Police received an anonymous letter at the West Virginia State Police detachment in Mason County, West Virginia. The letter alleged that [Hemetek] was using school computers to correspond with a website affiliated with marijuana. [It] also contained printouts from an apparent series of emails between [Hemetek] and a website called, `medicalseeds.com.’

Brief of Appellee, U.S. v. Hemetek, supra. And how did the anonymous person know this? According to Hemetek’s brief on appeal, at trial the prosecution presented witnesses

associated with New Haven Elementary School, where [Hemetek] was a reading teacher, [the first of whom,] the retired secretary of New Haven Elementary School testified that to get to the computer lab at the school a person would have to enter the front door of the school and pass by her office.

Angela Roach, a computer technology specialist at New Haven Elementary School testified that on February 7, 2005, she and Blythe Powell discovered an email on Hemetek's account on the a computer in the computer lab, when they accessed Hemetek's email account. . . .

Blythe Powell testified that she shared the email with the principal of their school. Linda Rollins, a psychologist and investigator for the Mason County Board of Education, testified that many people were aware of Hemetek's password for her Hotmail account, where the email was accessed by Powell and Roach.

Brief of Appellant, U.S. v. Hemetek.

Oh, . . . and Hemetek was sentenced to serve 60 months in prison. U.S. v. Hemetek, supra.