United States v. Nicolas Gomez
763 F.3d 845, 2014 WL 4058963, 95 Fed. R. Serv. 158 (2014)
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Rule of Law:
Evidence of a person's other crimes, wrongs, or acts is inadmissible under Federal Rule of Evidence 404(b) if its relevance to a non-propensity purpose, such as identity, is established only through a forbidden propensity inference. To be admissible, the proponent must articulate a propensity-free chain of reasoning for the evidence's relevance, and its probative value must not be substantially outweighed by the danger of unfair prejudice under Rule 403.
Facts:
- Federal agents were investigating a cocaine-distribution ring involving a Chicago supplier, Robert Romero, and a Milwaukee reseller known as 'Güero.'
- The cell phones used by Güero were traced to a residence shared by Nicolas Gomez and his brother-in-law, Victor Reyes.
- On September 3, 2010, agents observed Romero meet with Gomez in Milwaukee. Shortly after, agents stopped Gomez, who provided them with the same phone number Güero used to arrange drug deals.
- Later that day, agents seized Romero's abandoned car and found a quarter kilogram of cocaine in the trunk.
- Nearly four weeks later, on September 29, agents arrested Gomez at his home and, during a search of his bedroom, found a small quantity of cocaine in the pocket of a pair of pants.
- Gomez's defense at trial was that the government had mistaken his identity and that 'Güero' was actually his brother-in-law, Reyes.
Procedural Posture:
- Nicolas Gomez was charged in federal district court with conspiracy to distribute cocaine and related crimes.
- At trial, the government introduced a small quantity of cocaine found in Gomez's bedroom, over his Rule 404(b) objection, to prove his identity.
- A jury convicted Gomez on all counts.
- Gomez, as appellant, appealed his conviction to the U.S. Court of Appeals for the Seventh Circuit.
- A divided three-judge panel of the Seventh Circuit affirmed the conviction.
- The Seventh Circuit granted a rehearing en banc to clarify the framework for admitting other-act evidence.
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Issue:
Does the admission of a defendant's subsequent possession of a personal-use quantity of cocaine to prove identity in a drug conspiracy violate Federal Rule of Evidence 404(b) when its relevance is established only through the forbidden propensity inference that because the defendant possessed drugs later, he was likely involved in the earlier conspiracy?
Opinions:
Majority - Sykes, J.
Yes. The admission of the cocaine found in Gomez's bedroom violated Federal Rule of Evidence 404(b) because its relevance to proving identity rested entirely on an impermissible propensity inference. The court establishes a new framework for analyzing other-act evidence, abandoning its prior four-part test. Under this new rules-based approach, the proponent must articulate a 'propensity-free chain of reasoning' that connects the evidence to a permitted purpose under Rule 404(b)(2). Here, the government's argument—that Gomez's later possession of cocaine made it more probable that he, not Reyes, was the conspirator—is pure propensity reasoning: 'because he possessed cocaine later, he must have been involved in the conspiracy earlier.' This is the forbidden inference. Although the admission was an error, the court found the error was harmless because the other evidence identifying Gomez as Güero was overwhelming, including Gomez's use of Güero's phone number and his post-arrest admission that the voice on the recordings was his. The conviction is therefore affirmed.
Concurring-in-part-and-dissenting-in-part - Hamilton, J.
Yes. The court correctly held that the admission of the cocaine evidence was a serious error that violated Rule 404(b). I concur with the majority's new framework for analyzing other-act evidence, as it provides needed clarity. However, I dissent from the conclusion that the error was harmless. The government's other evidence was not as airtight as the majority suggests, and much of it depended on the credibility of federal agents regarding an unrecorded confession. Given the highly prejudicial nature of drug evidence in a drug trial—evidence the prosecutor emphasized in closing arguments—we cannot say with 'fair assurance' that the verdict was not substantially swayed by the error. The defendant should be granted a new trial without the improperly admitted evidence.
Analysis:
This en banc decision significantly clarifies the framework for admitting 'other-act' evidence under FRE 404(b) in the Seventh Circuit, abandoning its long-standing multi-part test for a more direct, rules-based approach. The decision mandates that courts and prosecutors articulate a 'propensity-free chain of reasoning' for admissibility, aiming to curb the routine admission of prior bad acts, especially in drug prosecutions. This shift requires a more rigorous, substantive analysis of how the evidence is relevant beyond simply invoking a permitted purpose like 'identity' or 'intent.' The case will likely force trial courts to more closely scrutinize 404(b) proffers and may reduce the prejudicial impact of character evidence on criminal defendants.
