In United States v. Fey, No. 22-11373 (Dec. 28, 2023) (William Pryor, Rosenbaum, Abudu), the Court affirmed the defendants’ convictions for distributing meth and for conspiring to and actually killing a cooperating witness by administering a lethal amount of meth and fentanyl.

First, the Court found no reversible Rule 404(b) error. At trial, the government introduced testimony that, years after the murder, one of the defendants solicited someone to murder someone else who witnessed the murder. The Court held that this evidence was extrinsic (not intrinsic) and thus fell under Rule 404(b), as that conversation occurred years after the murder conspiracy was completed. And the Court held that the government failed to provide the requisite notice of this testimony before trial under Rule 404(b). However, the Court determined that this error was harmless because the government’s pretrial brief and jury instructions, filed months in advance of trial, put the defense on notice of this testimony. In addition, the evidence was supported by sufficient evidence and did not violate Rule 403 because, although testimony that Fey sought to have a witness killed was “not flattering,” it was not prejudicial than probative.

Second, the Court did not commit plain error by failing to instruct the jury on spoliation of evidence. The district court declined to instruct the jury that officers negligently allowed the victim’s tissue samples to be destroyed before they could be examined. The Court found it unnecessary to decide whether a spoliation instruction may ever be given in a criminal (as opposed to a civil) case because, even if it could, it was required only where the spoliation was based on bad faith, not mere negligence. And there was no binding precedent on this point, which was required to satisfy plain error.

Finally, at trial the defense objected to an officer’s testimony that another individual died from a drug overdose. The Court held that, even if eliciting that testimony was improper, it was harmless because there was no suggestion that the defendants played a role in the individual’s overdose death.