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If a defendant presents credible evidence of government inducement, then the prosecutor must show predisposition beyond a reasonable doubt. Fed. R. Evid. 404(b) provides that evidence of crimes, wrongs, or other acts is inadmissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character, but is admissible for other purposes. Fed. R. Evid. 404(b). Under the inclusionary approach adopted by the Second Circuit, such evidence is admissible for any purpose other than to show the defendant's criminal propensity. In an entrapment case, evidence offered to show predisposition is admissible under Fed. R. Evid. 404(b). A district court must also assess the admissibility of such evidence under Fed. R. Evid. 403, which permits a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice. Fed. R. Evid. 403.
Defendant-Appellant Atdilon Baez was tried and convicted of knowingly possessing a TEC-9 semi-automatic firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and knowingly selling the TEC-9 to a convicted felon, in violation of 18 U.S.C. § 922(d)(1). Baez was sentenced principally to 105 months of imprisonment.
Did the district court exceed the bounds of its discretion when it determined that the armed robbery statements were probative evidence of predisposition?
The court held that the district court did not exceed the bounds of its discretion when it determined that the armed robbery statements were probative evidence of predisposition because they showed Baez’ predisposition to engage in criminal activity involving firearms, criminal activity with government informant and to ensure that the government informant had appropriate weapons for future robberies and the like under Fed. R. Evid. 404(b). The district court did not abuse its discretion in admitting evidence of the sale of TEC-9 to a convicted felon because the sale of the revolver occurred the first time Baez saw government informant outside of prison, and there was no evidence to suggest that government informant badgered Baez into making the sale.