USA v. Fey, No. 22-11373 (11th Cir. 2023)
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In this appeal before the United States Court of Appeals for the Eleventh Circuit, the defendants, David Fey and Shari Lynn Gunter, were convicted of distributing methamphetamine and conspiring to kill and killing a witness to their crimes. The court was required to decide on three issues: (1) whether the district court abused its discretion by admitting evidence that Fey had attempted to hire someone to kill a witness cooperating with federal officials and if so, whether that error was harmless; (2) whether the district court plainly erred by declining to instruct the jury on spoliation; and (3) whether the district court erred by overruling Fey and Gunter’s objection to testimony about a coconspirator’s death and by declining to declare a mistrial.
The Eleventh Circuit affirmed the district court's decisions on all three issues. First, it held that, although the prosecutors failed to identify the testimony about Fey's solicitation of a witness's murder as evidence under Federal Rule of Evidence 404(b), this error was harmless. The court reasoned that Fey and Gunter had ample notice of this testimony before trial and there was sufficient evidence to support the juries' convictions on the charges related to the witness's murder, even without this testimony.
Second, the court found that the district court did not plainly err in declining to give a spoliation instruction to the jury about the destruction of the victim's tissue samples. The court noted that, even if such an instruction could be given in a criminal trial, it would be required only when the absence of material evidence is predicated on bad faith, not negligence.
Finally, the court held that the district court did not err in overruling Fey and Gunter’s objection to testimony about the overdose death of a coconspirator. The court reasoned that the testimony did not imply that Fey and Gunter were involved in the coconspirator's death and did not prejudice their substantial rights. Therefore, the district court did not abuse its discretion in denying a mistrial.
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