United States v. Gomez - 763 F.3d 845 (7th Cir. 2014)

Rule:

Fed. R. Evid. 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts for the purpose of proving a person's character or propensity to behave in a certain way, but permits the use of this evidence for other purposes: (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b).

Facts:

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. When Romero and Guero scheduled a deal for September 3, 2010, the agents followed Romero as he drove from Chicago to Milwaukee and parked his car on a street near Gomez's house. The two men had a brief conversation next to Romero's car and then left the scene on foot. Later that day the agents seized Romero's car—still parked where he had left it—and found a quarter kilogram of cocaine in the trunk. Gomez was arrested and charged with conspiracy to distribute cocaine and related crimes. 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 over-whelming, 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. So-called "other act evidence" is admissible for other purposes, however, and here the district court admitted the evidence for the purpose of proving Gomez's identity as Guero. Gomez was convicted on all counts. On appeal he primarily challenged the district court's decision to admit the other-act evidence under Rule 404(b)(2). A divided panel affirmed. 

Issue:

Did the district court err in its decision to admit the other-act evidence under Rule 404(b)(2)?

Answer:

Yes.

Conclusion:

The court concluded that the circuit's four-part test should be replaced by an approach that more closely tracks the Federal Rules of Evidence. Applying a rules-based framework, the court held that the cocaine found in Gomez's bedroom was erroneously admitted under Fed. R. Evid. 404(b) because it was relevant only through an improper inference of propensity to commit the charged crimes, particularly as there was no evidence that this cocaine was the product of the conspiracy. The error in introducing the Rule 404(b) evidence was harmless under Fed. R. Crim. P. 52(a) because the evidence against Gomez was compelling and it would not have been any less compelling if the Rule 404(b) evidence had been excluded, particularly cell phone and other evidence linked defendant to the conspiracy and identified him as the coconspirator.