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On August 18, 2014, the 7th Circuit in a 43 page opinion annonced a new standard for admitting FRE 404(b) other acts evidence.  The new standard was announced in an en banc opinion in  US v. Gomez, 12-1104 (7th Cir. 2014)   .    

Chicago Federal Criminal Defense Attorney Michael J. Petro represented Gomez at his Motion to Suppress Evidence, at trial, on direct appeal and in this en banc appeal. 

In the opinion written by the Honorable Diane S. Sykes,    the all eleven Judges in the 7th Circuit found that the admission of the FRE 404(b) evidence at Gomez’s trial was error.  Specifically,

“The government’s sole theory is that Gomez’s possession of a user quantity of cocaine 26 days after the conspiracy ended shows that he, rather than Reyes, was Guero. That argument is extraordinarily weak, but the more important point is that it rests on pure propensity: Because Gomez possessed a small quantity of cocaine at the time of his arrest, he must have been involved in the cocaine-distribution conspiracy. The district court should not have admitted this evidence.”

After agreeing that the admission of the evidence was error, Judge’s Bauer, Posner, Flaum, Easterbrook, Kanne, Sykes and Tinder found that the error was harmless. Specifically, the majority found that the prosecution’s case would not have been significantly less persuasive had the improper evidence been excluded. 

In a dissent authored by Judge David F. Hamilton and joined by Chief Judge Wood, Judge Rovner and Judge Williams, the dissent disagreed that the  error was harmless.  Specifically, “While the majority’s treatment of the Rule 404(b) issue is a welcome improvement on our circuit’s law, I respectfully dissent from the finding that the serious Rule 404(b) error was harmless. I would reverse Gomez’s conviction and remand for a new trial”

Chicago Federal Criminal Defense Attorney Michael J. Petro respectfully agrees with the dissent.

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit  or call 312-913-1111