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US v. Nicolas Gomez,  No. 12-1104  .

Editors Note:  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. 


SYKES, Circuit Judge.

Federal agents suspected Nicolas Gomez of involvement in a cocaine-distribution ring operating in Chicago and Milwaukee. A wiretap on the phones of Robert Romero, a known Chicago supplier, revealed a reseller named “Guero” who lived in Milwaukee. The agents believed that Gomez was Guero.

At trial the government introduced more than 50 recorded telephone calls between Romero and Guero detailing their cocaine transactions in the months leading up to September 3. The evidence tying the calls to Gomez’s residence was overwhelming, so his defense was that Guero must have been Victor Reyes, his brother-in-law who lived in the same house.

In response the government sought to introduce a small quantity of cocaine found in Gomez’s bedroom at the time of his arrest. Gomez objected, citing Rule 404(b)(1) of the Federal Rules of Evidence, which prohibits the admission of evidence of other crimes, wrongs, or acts for the purpose of showing a person’s character or propensity to behave in a certain way.

A. The Admissibility of Other-Act Evidence

Our circuit has long used a four-part test to determine when other-act evidence is admissible.  Our four-part test for evaluating the admissibility of otheract evidence has ceased to be useful. We now abandon it in favor of a more straightforward rules-based approach. This change is less a substantive modification than a shift in paradigm that we hope will produce clarity and better practice in applying the relevant rules of evidence.

Because other-act evidence can serve several purposes at once, evidentiary disputes under Rule 404(b) often raise the following question: Does a permissible ultimate purpose (say, proof of the defendant’s knowledge or intent) cleanse an impermissible subsidiary purpose (propensity)?

Spotting a hidden propensity inference is not always easy. For this reason, although we have long required the record to reflect a “principled exercise of discretion” by the district court, we have more recently emphasized the importance of identifying the non-propensity theory that makes the other-act evidence relevant and specifically asking how the evidence tends to make a particular fact of consequence more or less probable.

The principle that emerges from  recent cases is that the district court should not just ask whether the proposed other-act evidence is relevant to a non-propensity purpose but how exactly the evidence is relevant to that purpose—or more specifically, how the evidence is relevant without relying on a propensity inference.  Careful attention to these questions will help identify evidence that serves no permissible purpose.

Finally, even if other-act evidence is relevant without relying on a propensity inference, it may be excluded under Rule 403, which applies “with full force” in this context  and gives the district court discretion to exclude relevant evidence if its probative value is “substantially outweighed by a danger of … unfair prejudice,” FED. R. EVID. 403. Other-act evidence raises special concerns about unfair prejudice because it almost always carries some risk that the jury will draw the forbidden propensity inference.

One important issue in Rule 403 balancing in this context is the extent to which the non-propensity factual proposition actually is contested in the case.  The general guiding principle is that the degree to which the non-propensity issue actually is disputed in the case will affect the probative value of the otheract evidence.

Our circuit also requires special caution when other-act evidence is offered to prove intent, which though a permissible non-propensity purpose is nonetheless “most likely to blend with improper propensity uses.”

To summarize then, when intent is not “at issue”—when the defendant is charged with a general-intent crime and does not meaningfully dispute intent—other-act evidence is not admissible to prove intent because its probative value will always be substantially outweighed by the risk of unfair prejudice.

In contrast, when intent is “at issue”—in cases involving specific-intent crimes or because the defendant makes it an issue in a case involving a general-intent crime— other-act evidence may be admissible to prove intent, but it must be relevant without relying on a propensity inference, and its probative value must not be substantially outweighed by the risk of unfair prejudice. And again, the degree to which the non-propensity issue actually is contested may have a bearing on the probative value of the other-act evidence.

In sum, to overcome an opponent’s objection to the introduction of other-act evidence, the proponent of the evidence must first establish that the other act is relevant to a specific purpose other than the person’s character or propensity to behave in a certain way. See FED. R. EVID. 401, 402, 404(b).

Other-act evidence need not be excluded whenever a propensity inference can be drawn. But its relevance to “another purpose” must be established through a chain of reasoning that does not rely on the forbidden inference that the person has a certain character and acted in accordance with that character on the occasion charged in the case.

If the proponent can make this initial showing, the district court must in every case assess whether the probative value of the other-act evidence is substantially outweighed by the risk of unfair prejudice and may exclude the evidence under Rule 403 if the risk is too great. The court’s Rule 403 balancing should take account of the extent to which the non-propensity fact for which the evidence is offered actually is at issue in the case.

B.  Application of a Rules Based Framework.

Here, the district court allowed the government to use the evidence of the user quantity of cocaine found in Gomez’s bedroom for the purpose of proving his identity as Guero. That was error, but for reasons we will explain, the error was harmless.

In short, the prosecution’s case was strong and would not have been any less persuasive had the other-act evidence been excluded—or at least it would not have been significantly less persuasive in the mind of the average juror. The link between the small quantity of cocaine found in Gomez’s bedroom and his identity as Guero was extremely weak; the government has never really articulated a coherent theory for why this evidence helped its case. Excluding it would not have seriously diminished the strength of the prosecution’s case against Gomez. We’re satisfied that the error was harmless.


HAMILTON, Circuit Judge, joined by WOOD, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges, concurring in part and dissenting in part.

By:  Chicago Federal Criminal Defense Attorney Michael J. Petro