United States v. Nicolas Gomez,  No. 12-1104.    Editor's Note.  Chicago Criminal Defense Attorney represented Mr. Gomez at trial and on appeal.  Mr. Gomez's case is currently pending a Petition for Rehearing En Banc in the 7th Circuit Court of Appeals.  mjpetro     

A jury found Nicolas Gomez guilty of four drug-related crimes following a five-day jury trial. Mr. Gomez was sentenced to four concurrent 84-month terms. Mr. Gomez contends that the district court erred in admitting evidence of his possession of cocaine a few weeks after the charged crimes.   While the admission of the uncharged cocaine possession was questionable, it was not an abuse of discretion.

 This investigation was based largely upon interception of telephone communications between Roberto Romero and a male referred to as "Guero." The government believes Guero was Mr. Gomez. 

Twenty-six after the end of the charged conspiracy later, agents arrested Mr. Gomez at his home and searched the residence pursuant to a search warrant. The agents found a personal use quantity of cocaine in the pocket of a pair of pants found in a bedroom connected with Mr. Gomez. The district court denied Mr. Gomez's pretrial motion to suppress evidence of the search and its fruits. 

The government renewed its motion to admit the cocaine evidence under Rule 404(b) at trial. The government argued that Mr. Gomez had "opened the door through [his] opening statement and cross-examinations of two witnesses regarding [his] not possessing or touching cocaine, implying that [he] was just an innocent bystander at the wrong place at the wrong time." 

The court state that "The implication of [defense counsel's] questioning was not simply, [Mr. Gomez] does not have drugs on him now. The implication of [defense counsel's] questioning was, [Mr. Gomez] is not at all associated with drugs. And I think that inference is what [defense counsel] wanted to get to the jury. [Mr. Gomez] is an individual who is pure as the new fallen snow." 

The court agreed with the government and admitted the evidence on the issues of identity, knowledge, and absence of mistake or accident. 

When Mr. Gomez was tried in September 2011, Federal Rule of Evidence 404(b) provided that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

For the evidence to be admissible, the non-propensity probative value of the evidence must be sufficient so as not to be substantially outweighed by the risk that the jury will use the evidence as proof of an improper character inference. FED. R. EVID. 403; United States v. Ciesiolka, 614 F.3d 347, 355-56 (7th Cir. 2010)

Mr. Gomez's primary defense at trial was that the investigators were mistaken as to whose voice they recorded conspiring with Roberto Romero. Mr. Gomez pointed out that others (such as Victor Reyes) lived in the residence from which calls were made and received, and, as already noted, Mr. Gomez pointed out the lack of any eyewitness testimony to his participation. The investigators, he implied, were mistaken.

The government's September 29 evidence rebutted that implication only by showing precisely what Rule 404(b) forbids: that Mr. Gomez has a propensity toward involvement with cocaine, making it less probable that the investigators were mistaken. 

Nor can we perceive a series of non-propensity inferences that would make Mr. Gomez's later possession of cocaine relevant to his knowledge during the conspiracy. 

In the end, we cannot say that admission of the September 29 evidence was an abuse of discretion under these standards. The government articulated a reasonable, if a bit wobbly, theory of relevance to a non-propensity matter central to the prosecution and defense. 

The district court listened to eloquent argument from Mr. Gomez's counsel concerning the risk of unfair prejudice, but ultimately disagreed, admitted the evidence, and gave a limiting instruction to reduce that risk. 

AFFIRMED   

HAMILTON, Circuit Judge.    I respectfully dissent. The entire panel agrees that two of the three grounds the district court relied upon to admit the Rule 404(b) evidence are without merit. The remaining ground offered to support its admission was so weak that we can no longer say that admission was a sound exercise of discretion.

The majority states the applicable law correctly in general terms, but under Rule 404(b), the nub of the matter lies in specific applications. I would reverse and remand for a new trial.     

The only remaining leg of the district court's now unstable three-legged stool for admitting this evidence is that it tended to show identity — that Gomez was the voice of "Guero" in the telephone intercepts. The majority describes the chain of inferences to show identity as "not particularly compelling." Slip op. at 18.

That's an understatement.

The identity rationale for admitting the user quantity evidence is itself just a thin veil over what is really just propensity evidence. Neither the district court, the government, nor the majority has articulated that chain of inferences in a persuasive way that does not include sheer propensity.   

The problem is that the user quantity of cocaine discovered almost four weeks later simply has not been linked to the earlier distribution conspiracy by anything except that location.

For the sake of argument, one can speculate that perhaps the user quantity was a leftover from an earlier delivery, but the same could be said of any user quantity. Possession of this small quantity says nothing probative about whether the possessor had any role in the upstream large-scale distribution conspiracy.

Without a closer link between the user quantity in the pocket and the earlier conspiracy, the only inference that could be made to suggest that Gomez rather than Victor Reyes was on the phone calls is that it was Gomez because he was involved in some way with drugs. This is a pure propensity inference that Rule 404(b) forbids. A person's possession of a small user quantity of cocaine provides no useful information about that person's involvement in large-scale distribution, except through the prohibited inference of propensity. 

It is true that in Rule 404(b) cases, we have often trusted the effectiveness of limiting instructions, though without necessarily giving the question close empirical attention. 

In fact, however, there is good reason to question the effectiveness of limiting instructions when it comes to Rule 404(b) evidence, particularly in a case like this. Social science experiments using mock jurors find that jurors are more likely to convict when they have heard evidence of a prior conviction and that limiting instructions are often ineffective at guiding jurors' use of such evidence.  (See opinion for string cite of research.  mjpetro). 

Where the district judge, the prosecution, and the majority have had so much trouble articulating how the Rule 404(b) evidence related to the legitimate issue of identity, we should not assume that jurors would have managed to do so. Under these circumstances, we should not take any comfort from the usual limiting instruction.   

In his comments on the Rule 404(b) evidence, the district judge simply never came to grips with how the presence of a user quantity of cocaine in Gomez's room nearly four weeks after the end of the large-scale distribution conspiracy made his participation in the conspiracy any more likely without relying on general propensity. I would find that the admission of the Rule 404(b) evidence was an abuse of discretion and would reverse and remand for a new trial.

For the full opinions visit the 7th Circuit Court of Appeals Web Site 

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com

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