Tuesday, October 13, 2015

The Tenth Circuit’s failure to scrutinize 404(b) evidence in drug cases

The Tenth Circuit’s dismissive attitude toward challenges to 404(b) evidence in drug cases is well illustrated here: “Our court has time and again held that past drug-related activity is admissible other-acts evidence under Rule 404(b) to prove, inter alia, that the defendant had the knowledge or intent necessary to commit the crimes charged.” United States v. Watson, 766 F.3d 1219, 1237 (10th Cir. 2014). Things are different in the Seventh Circuit: “We have recently cautioned that district courts have too readily admitted prior bad acts evidence in drug cases.” United States v. Richards, 719 F.3d 746, 759 (7th Cir. 2013); see also United States v. Miller, 673 F.3d 688, 698 (7th Cir. 2012) (“There may be enough cases affirming such admissions [of prior drug-dealing crimes], however, that in cases charging specific-intent drug crimes, the admission of prior drug convictions may have come to seem almost automatic. It is not. We need to recall first principles.”). Interestingly, although Richards found that the other crimes evidence was admissible, the Seventh Circuit nonetheless reversed because during closing argument the prosecutor repeatedly described the defendant as a “drug dealer” and “drug trafficker,” violating the rule prohibiting “arguing to a jury that it should convict a defendant based on the defendant’s propensity to commit a crime.” Id. at 764 (quotation omitted).

But outside of drug cases, the Tenth Circuit has displayed a more enlightened attitude. In United States v. Commanche, 577 F.3d 1261, 1266 (10th Cir. 2009), the Court distinguished proper from improper use of 404(b) evidence. That is, “[i]n some instances, the permissible purposes of 404(b) evidence are logically independent from the impermissible purpose of demonstrating conformity with a character trait.Id. But

[i]n other cases, bad act evidence bears on a permissible purpose only if a jury first concludes that the defendant likely acted in conformity with a particular character trait. Consider a case in which a defendant is accused of murdering his wife using his car but claims that he thought that car was in reverse when it was actually in drive. To demonstrate the absence of mistake, the government attempts to elicit testimony that the defendant twice previously slapped his wife. In such a case, the disparate circumstances between the prior instances and the vehicular killing negate any possibility of directly using the prior instances to show lack of mistake. Rather, a jury could use this evidence to conclude that the defendant was not mistaken as to the status of his transmission only if it first concluded that he had a propensity for violence against his wife and this alleged murder was another such incident. Rule 404(b) does not allow evidence of other bad acts in such a case. If that defendant is to be convicted of murder, it must be based on his allegedly murderous act and not his bad character. We hold that evidence is admissible under Rule 404(b) only if it is relevant for a permissible purpose and that relevance does not depend on a defendant likely acting in conformity with an alleged character trait.

Id. at 1266-67. The Seventh Circuit seems to apply this same degree of scrutiny in drug cases:

How, exactly, does Miller's prior drug dealing conviction in 2000 suggest that he intended to deal drugs in 2008? When the question is framed this way, the answer becomes obvious, even though implicit: “He intended to do it before, ladies and gentlemen, so he must have intended to do it again.” That is precisely the forbidden propensity inference.

Miller, 673 F.3d at 699. We need to find a way to convince our courts to apply this common-sense reasoning in drug cases.

 -- Tom Bartee

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