Argued September 11, 2013
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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 cr 1055-1 -- William J. Hibbler, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Stuart D. Fullerton, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.
For NICOLAS GOMEZ, Defendant - Appellant: Michael J. Petro, Attorney, PETRO & ASSOCIATES, Chicago, IL; Angela M. Rentz, Chicago, IL.
Before WOOD, Chief Judge, and BAUER, POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge, joined by WOOD, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges, concurring in part and dissenting in part.
Sykes, Circuit Judge.
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, see Fed.R.Evid. 404(b)(2), 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. We reheard the case en banc to clarify the framework for admitting other-act evidence. We now conclude that our 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 here, we hold that the cocaine found in Gomez's bedroom should not have been admitted, but the error was harmless, so we affirm the judgment.
In 2010 federal agents were investigating Romero, a Chicago-based cocaine supplier. A wiretap on his phones revealed that he was regularly conducting business with a reseller in Milwaukee, a man he called " Guero" or " Guerito." The cell phones Guero used were registered to a residence at 2522 West Mineral Street in Milwaukee where Gomez and his brother-in-law Reyes lived. (Other people lived in the house too, although the record doesn't identify them.) When Romero and Guero arranged a cocaine sale over the phone, GPS data tracked Romero driving from Chicago to an alley behind Gomez's house on Mineral Street. When several months of wiretap evidence established this transactional pattern, the only thing left was to catch the conspirators in the act.
The opportunity came on September 2, 2010, when Romero and Guero discussed a
sale for the following day. On September 3, DEA agents staked out Gomez's house in Milwaukee, and a separate group of FBI agents followed Romero. He left Chicago in a white Mercedes, drove to Milwaukee, and parked on a street within a block and a half of Gomez's house. Both groups of agents watched and videorecorded a brief interaction between Gomez and Romero standing next to the parked Mercedes. After a short conversation, the two men shook hands, then parted company and walked away in opposite directions.
Gomez's route took him past the DEA agents, who stopped him to confirm his identity. Pretending to be part of an antigun task force, they patted him down and asked for his name, address, and telephone number. The number Gomez gave was the same number Guero used to arrange the sale that day. The agents let him go and Gomez walked home.
A few minutes later, FBI agents watched as Gomez drove a green minivan down the street and picked up Romero. The two men drove to Mercado El Rey, a nearby restaurant and grocery store, where they met Reyes (Gomez's brother-in-law and housemate). An FBI agent followed them into the restaurant and photographed the meeting. Surveillance continued as the three men left El Rey and went their separate ways.
Reyes drove away in a tan Suburban and was stopped and identified by a DEA agent. Gomez and Romero must've been spooked because neither of them returned to the white Mercedes--Romero took a taxi all the way back to Chicago. Later that day the federal agents seized the abandoned Mercedes. A search of the car at DEA headquarters revealed a quarter kilogram of cocaine hidden in the trunk.
That evening and the following morning, recorded phone calls showed Romero and Guero frantically reviewing the events of September 3. Guero told Romero that the Mercedes had been towed and that he was using a new cell phone. (The number Gomez gave to DEA agents was deactivated that very day.) When Romero asked Guero what had happened after the " three of [them]" left El Rey, Guero responded that his brother-in-law had been stopped by police while driving away from El Rey--exactly what happened to Reyes. Romero then asked Guero when he had been stopped and searched by police, and Guero explained that he was stopped while walking--exactly what happened to Gomez.
On September 29--almost four weeks later--federal agents arrested Gomez at his home. On the kitchen table were Gomez's wallet and the cell phone Guero had been using since September 3. When agents searched Gomez's bedroom, they found a shoe box filled with documents addressed to Gomez, including a phone bill for one of the three cell phones Guero had used up until September 3. Although all three cell phones were registered under Reyes's name, records from the cellular-service provider confirmed that the billing statements were addressed to Gomez at 2522 West Mineral Street. Agents also found a small quantity of cocaine in the pocket of a pair of pants in Gomez's bedroom.
Gomez was brought directly to the FBI's prisoner processing center in Chicago where two agents interviewed him. They played three of the recorded phone calls, including the one describing the events of September 3. Gomez identified his own voice as Guero on all three. He was thereafter charged with conspiracy to possess cocaine with intent to distribute, see 21 U.S.C. § 846, and three counts of using a telephone to facilitate a drug crime, see id. § 843(b).
At trial the government introduced more than 50 recorded phone calls and testimony from various federal agents to establish the facts we've just described. Gomez's defense was mistaken identity--he claimed that he was simply in the wrong place at the wrong time. He also argued that the government would never be able to show him in possession of cocaine. In response prosecutors sought to introduce the small quantity of cocaine found in Gomez's bedroom at the time of his arrest. Gomez objected on Rule 404(b)(1) grounds. The trial judge initially denied the government's request but ultimately admitted the evidence to show Gomez's identity as Guero. In the end Gomez focused his defense on attempting to raise a reasonable doubt about the government's contention that he was Guero, arguing that it was more likely that Reyes was Romero's coconspirator. He reminded the jurors that Reyes lived at the same address and had also met with Romero on September 3, and that the cell phones used in the conspiracy were registered in Reyes's name. The jury convicted Gomez on all counts.
On appeal Gomez primarily challenged the admission of the other-act evidence--the cocaine found in his bedroom on the day of his arrest--and also raised a sentencing issue. A divided panel of this court affirmed, but the disagreement was limited to the evidentiary question. United States v. Gomez, 712 F.3d 1146, 1159 (7th Cir. 2013); id. at 1159-63 (Hamilton, J., dissenting). We vacated the panel opinion and granted rehearing en banc on Gomez's challenge to the admission of the other-act evidence under Rule 404(b). We now reinstate the panel opinion on the sentencing issue and address only the Rule 404(b) question.
A. The Admissibility of Other-Act Evidence
Rule 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).
Our circuit has long used a four-part test to determine when other-act evidence is admissible:
To determine if such evidence is admissible, the district court must engage in a four-pronged analysis and evaluate whether (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.
United States v. Zapata, 871 F.2d 616, 620 (7th Cir. 1989) (citing United States v. Shackleford, 738 F.2d 776, 779 (7th Cir. 1984) for parts (1), (2), and (4) of the test and Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), for part (3)).
Multipart tests are commonplace in our law and can be useful, but sometimes they stray or distract from the legal principles they are designed to implement; over time misapplication of the law can creep in. This is especially regrettable when the law itself provides a clear roadmap for analysis, as the Federal Rules of Evidence generally do. We have noted this problem in the Rule 404(b) context before. Especially in drug cases like this one, other-act evidence is too often admitted almost automatically, without consideration of the " legitimacy of the purpose for which the evidence is to be used and the need for it." United States v. Miller, 673 F.3d 688, 692 (7th Cir. 2012); see also United States v. Jones, 455 F.3d 800, 812 (7th Cir. 2006) (Easterbrook, J., concurring) (" Allowing a prosecutor routinely to introduce drug convictions in the case in chief without demonstrating relevance to some concrete dispute between the litigants creates needless risk that a conviction will rest on the forbidden propensity inference." ). Moreover, as we explain here, some aspects of our test lack an adequate basis in the rules.
Our four-part test for evaluating the admissibility of other-act evidence has ceased to be useful. We now abandon it in favor of a more straightforward rules-based approach. This change is less a substantive modification than a shift in paradigm that we hope will produce clarity and better practice in applying the relevant rules of evidence.
1. Rules 401 & 402 (Relevance) and 104 (Relevance Conditioned on a Fact)
All evidentiary questions begin with Rule 402, which contains the general principle that " [r]elevant evidence is admissible" and " [i]rrelevant evidence is not." Rule 401 defines relevant evidence as that which is both probative (having " any tendency to make a fact more or less probable than it would be without the evidence" ) and material (the fact must be " of consequence in determining the action" ).
The second and third factors in our four-part test generally correlate to the basic relevance inquiry under Rules 401 and 402, but the rules do not apply with the rote inflexibility that the test implies. Step three of the test directs the district court to evaluate whether the evidence of the proffered other act is sufficient to support a jury finding that the defendant committed it. Step two asks if the other act is both recent and similar enough to the conduct charged in the case to be relevant (i.e., " of consequence in determining the action" ). See Zapata, 871 F.2d at 620.
Step three--the " sufficiency" inquiry--flows from Rule 104(b), which addresses relevance conditioned on a fact: " When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist." Fed.R.Evid. 104(b). In Huddleston v. United States, the Supreme Court considered whether the admission of other-act evidence requires a preliminary finding by the court that the act has been proved by a preponderance
of the evidence. 485 U.S. at 682. The Court held that it does not. Id. at 689. Relying on the default principle that relevant evidence is admissible unless a rule specifies otherwise, the Court concluded that nothing in the text or history of Rules 104 or 404(b) requires the judge to find that the proponent has proved the other act before the evidence may be admitted. Id. at 687-89. Although a preliminary finding by the judge is not required as a condition of admissibility, the Court emphasized that other-act evidence may not be admitted unless the evidence is sufficient for the jury to find by a preponderance of the evidence that the other act was committed. Id. at 689-90. This requirement remains in full force as a condition of relevance.
Step two of the test, which requires an inquiry into the similarity and timing of the other act, is loosely connected to the basic principles of relevance found in Rules 401 and 402. See United States v. Foster, 652 F.3d 776, 785-86 (7th Cir. 2011) (explaining that " the comparison of [the defendant's] prior acts to the charged crimes" is " directed at establishing the relevancy of the 404(b) evidence" ) (citing United States v. Lloyd, 71 F.3d 1256, 1264-65 (7th Cir. 1995)). But the strength of this inquiry varies depending on the particular theory of admissibility. For example, one permissible purpose for the introduction of other-act evidence is to prove a defendant's identity through a " distinctive manner of operation, or modus operandi." United States v. Simpson, 479 F.3d 492, 497-98 (7th Cir. 2007), abrogated in part on other grounds by United States v. Boone, 628 F.3d 927, 933 (7th Cir. 2010). A prior act will be relevant to this purpose when it " 'bears a singular strong resemblance to the pattern of the offense charged' with the similarities between the two crimes 'sufficiently idiosyncratic to permit an inference of pattern.'" Id. at 498 (quoting United States v. Thomas, 321 F.3d 627, 634-35 (7th Cir. 2003)). Sometimes the prior bad act may be too dissimilar to be relevant to show a distinctive pattern, leaving only the forbidden propensity inference. Id.
On the other hand, the need to check for similarity and recency may be substantially diminished or nonexistent depending on the particular purpose for which the evidence is offered. See United States v. Torres, 977 F.2d 321, 326 (7th Cir. 1992); United States v. Beasley, 809 F.2d 1273, 1277 (7th Cir. 1987). In some cases the relative similarity of the other act to the charged offense may be unimportant as a test of relevance. See, e.g., Foster, 652 F.3d at 785-86 (holding that the similarity of the other-act evidence to the charged offense was " of exceedingly minimal significance" when evidence of a prior check-cashing scheme was introduced to show a criminal relationship between the defendant and his accomplice in an armed bank robbery); United States v. Shriver, 842 F.2d 968, 974 (7th Cir. 1988) (same with respect to motive). Recognizing this, we have repeatedly said that the " similarity" requirement ...