USA v. Greg L. Murray, 06-1078. A jury convicted the defendant of participating in a drug conspiracy in which a gun was used and a death resulted from that use, and the judge sentenced him to life in prison. Together with two other men, Hines and Trice, the defendant had agreed to rob another cocaine dealer, who two years earlier had failed to deliver to Trice cocaine that Trice had paid for. In the course of the robbery, the defendant (according to the government’s evidence) shot and killed the dealer.
The only issue presented by the appeal that warrants discussion is whether the judge was right to exclude the "reverse Rule 404(b) evidence," as the parties call it (a more descriptive term would be "nondefendant Rule 404(b) evidence"), that the defendant offered.
Rule 404(b) of the Federal Rules of Evidence makes inadmissible "evidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith"—to show in other words that he has a "propensity" to commit crimes.
Occasionally, the government rather than the defendant invokes Rule 404(b), in order to prevent the defendant from using the "other crimes" of another person to try to shift the blame to that person. Concern with the poisonous effect on the jury of propensity evidence is minimal in such cases.
In the vast run of such cases, the only serious objection to the evidence is that its probative value is slight, as it may just amount to pointing a finger at someone else who, having a criminal record, might have committed the crime the defendant is accused of committing.
In any event, the common element in previous cases before this court is proof of a pattern of criminal conduct by a third person and that the present case fits the pattern.
Does it in this case?
The defendant argues that the earlier crime is evidence of a distinctive crime style or pattern—enlisting a cousin to kill for you to protect your drug business—that points to Hines as the triggerman in the present case and thus fits the mistaken-identity exception in Rule 404(b).
Fine, but here, even if the defendant was not the triggerman, his conviction would be unaffected by the reverse 404(b) evidence. The Pinkerton doctrine would make the defendant liable for the killing even though one of his coconspirators had pulled the trigger, since it is foreseeable that an armed robbery of a drug dealer may result in a death.
As such, in Murray’s case, only the sentence might be affected as the non-shooter might receive a lighter sentence than the shooter.
In the end, because the nondefendant Rule 404(b) evidence was relevant only to the sentence, it was properly excluded at the trial. Finally, had there been any error in the exclusion of the evidence, it would have been harmless, since the defendant had admitted to several persons that he was the killer. AFFIRMED.
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