FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 10, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14911

Non-Argument Calendar

________________________

D. C. Docket No. 07-00523-CR-2-KOB-TMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRAD LAMONT SMITH,

Defendant-Appellant.

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No. 08-14919

Non-Argument Calendar

________________________

D. C. Docket No. 07-00523-CR-KOB-TMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus
CHRISTOPHER LAFRANCE SMITH,

Defendant-Appellant.

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Appeals from the United States District Court

for the Northern District of Alabama

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(November 10, 2009)

Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

In this consolidated appeal, brothers Brad Lamont Smith and Christopher

LaFrance Smith appeal their convictions for firearms offenses, 18 U.S.C. §§

922(g)(1), 924(c), and for armed robbery of a United States post office, 18 U.S.C.

§ 2114. No reversible error has been shown; we affirm.

The Smiths’ appellate challenges involve the admission of (1) post-arrest

phone conversations between Brad and his sister, Adrian Adams, about Brad’s

desire to prevent a key government witness from testifying, and (2) Adams’s

testimony about what these conversations meant. The government introduced this

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evidence to show Brad’s consciousness of guilt. We review a district court’s

In the conversations, Brad refers to “cooking a steak.” In her testimony, Adams states 1

that Brad wanted her to talk to their brother, Marlow, “about cooking a steak” and that she

understood these words to mean to harm or kill a certain government witness.

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evidentiary rulings for an abuse of discretion. United States v. Eckhardt, 466 F.3d

938, 946 (11th Cir. 2006).

Brad argues that the government gave inadequate pretrial notice of its intent

to use the conversations and testimony in violation of Fed.R.Evid. 404(b); and this

lack of notice prejudiced his ability to present a defense. Under Rule 404(b),

evidence of uncharged “crimes, wrongs, or acts” may be admissible for certain

limited purposes “provided that upon request by the accused, the prosecution in a

criminal case shall provide reasonable notice in advance of trial, or during trial if

the court excuses pretrial notice on good cause shown, of the general nature of any

such evidence it intends to introduce at trial.”

Here, that (1) the conversations at issue did not occur until the weekend

before trial, (2) the government confirmed the threatening nature of the

conversations only after the first day of trial had concluded, and (3) the

government could not have obtained this evidence earlier through the exercise of

due diligence, is undisputed. Brad also was able to review the tapes before

Adams’s testimony. We conclude that these conditions -- coupled with the

government’s prompt notice upon learning about the threatening nature of the

evidence -- constitute good cause excusing the government’s lack of pretrial

notice; and the district court abused no discretion in admitting the evidence despite

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the lack of pretrial notice.

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Brad also contends that the recorded conversations were subject to exclusion

because of their low probative value: they were ambiguous, did not support an

inference of consciousness of guilt, and were cumulative of Adams’s testimony.

Brad also argues that the probative value of Adams’s testimony was outweighed by

its prejudice.

We have concluded that “[c]ourts may consider evidence of threats to

witnesses as relevant in showing consciousness of guilt under Rule 404(b).” United

States v. Baker, 432 F.3d 1189, 1220 (11th Cir. 2005) (internal quotation and

citation omitted). Prior bad act evidence, such as witness threats, must meet these

three requirements to be admissible: (1) “the evidence must be relevant to an issue

other than defendant’s character;” (2) “the government must offer sufficient proof

so that the jury could find that defendant committed the act;” and (3) the risk of

undue prejudice must not outweigh substantially the probative value. United

States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008); see also Fed.R.Evid. 403.

We have noted that the admissibility of witness threats is “a close call” because the

potential prejudice “may be great.” Baker, 432 F.3d at 1220-21.

Brad did not object to this evidence on pretrial notice grounds in the district court. But 2

the court’s decision to excuse the government’s lack of pretrial notice is supported under either a

plain error or abuse of discretion standard.

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Despite the potential prejudicial value of this evidence, we conclude that the

district court abused no discretion in admitting it. The government offered the

evidence only for the limited purpose of showing Brad’s consciousness of guilt,

and not to prove his bad character. While Brad argues that the conversations

inherently were ambiguous and that Adams’s corroborating testimony about their

meaning could not be tested in a meaningful way, we “defer to the district court’s

determination that the [recordings and corroborating] testimony [were] credible

enough to allow a jury to find that the [threat] occurred.” United States v. Brazel,

102 F.3d 1120, 1154 (11th Cir. 1997) (quotation and citation omitted).

And many factors in Brad’s case minimized the risk of undue prejudice. The

court gave a limiting instruction to the jury that it could consider the evidence only

on whether it indicated consciousness of guilt and admonished the jury that it was

their responsibility to decide “whether to believe [the] testimony and what weight,

if any, to give it.” See United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir.

2005) (considering whether the court gave an appropriate limiting instruction in

balancing the degree of prejudice against probative value). In addition, Brad

created doubt about “whether a threat was actually made” by eliciting Adams’s

testimony on cross-examination that the conversations did not contain explicit

threats of harm to anyone. See Brazel, 102 F.3d at 1154. Given these things and

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that the balancing test of Rule 403 favors admissibility, see United States v. Dodd,

347 F.3d 893, 897 (11th Cir. 2003), we conclude that no undue prejudice resulted

from the admission of this evidence.

Christopher argues that the district court’s admission of the evidence against

Brad violated Christopher’s right to a fair trial because its admission created

“spillover prejudice” against him, which the court’s limiting instructions could not

cure. Where, as here, evidence of an attempt to threaten or harm a witness is

admissible under Rule 404(b) against the defendant who made the threat, the

district court still must balance its probative value against the risk of undue

prejudice to uninvolved codefendants. Baker, 432 F.3d at 1220-21.

Here, the district court -- on three separate occasions -- explicitly instructed

the jury that it was to consider the evidence only about Brad’s consciousness of

guilt and that it was not to consider the disputed evidence “in any regard as to”

Christopher. And the court received the jury’s affirmative response when it asked

whether each member could “separate out this evidence” on each defendant. See

United States v. Gonzalez, 703 F.2d 1222, 1224 (11th Cir. 1983) (the law assumes

that jurors follow their instructions, and “the decision as to whether the jury can

sort out the evidence relevant to each defendant is firmly committed to the

discretion of the trial court”). We reject Christopher’s argument that this limiting

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instruction did not adequately cure any prejudice. See id. (concluding that the

district court abused no discretion by admitting one defendant’s threat against a

witness under Rule 404(b), where it instructed the jury that it could only consider

the evidence against the defendant who made the threat).

AFFIRMED.

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