Federal Evidence Review

Reverse FRE 404(b) evidence was admissible in marijuana trafficking case involving similar incidence with the supplier of the truck a few months earlier; the evidence was relevant and probative of the defense theory that defendants did not know marijuana was in the truck nor was this evidence outweighed by a risk of confusing the jury or wasting time, in United States v. Montelongo, 420 F.3d 1169 (10th Cir. Aug. 24, 2005) (Nos. 04-2215, 04-2241)

Other act evidence, under FRE 404(b) is typically introduced by one party against another to show the party’s “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” In a criminal case, the government often seeks to introduce a prior act of the defendant against the defendant. Under what circumstances can evidence under FRE 404(b) be introduced in the reverse in a criminal case (so-called “reverse Rule 404(b) evidence”), that is, by a defendant to undermine the defendant’s guilt? “Reverse 404(b)” evidence applies when the defendant tries to introduce the “other act” evidence of another person to prove he or she is not guilty of the charges. A case from the Tenth Circuit highlights the use of this type of evidence.

In the case, defendants Montelongo and McCalvin picked up a semi-truck from “Mr. Gomez” to drive from New Mexico to Michigan. At a border patrol checkpoint, an officer became suspicious because of an “overwhelming scent of orange freshener” and based on other factors. During a canine search, officers checked the area where the dog alerted and found twenty-five bundles of marijuana in duffle bags weighing ninety-three kilograms were discovered with a street value of $200,000 to $250,000. The defendants were then arrested. Before trial, the defendants moved in limine to exclude evidence of a similar, separate incident a few months earlier involving other drivers charged with trafficking marijuana who were also driving a truck owned by “Mr. Gomez.”

As the decision noted, the prior incident “had several facts in common with the facts of [Montelongo’s] case: The truck was owned by Mr. Gomez; the marijuana was packed in duffle bags; and it was hidden in the sleeping compartment of the cabin.” The defendants in the other case “never implicated Mr. Gomez in the crime. Rather, they claimed that they found the thirty-four pounds of marijuana lying by the side of the road and put it into the sleeping compartment themselves. Mr. Gomez was not charged or found guilty of any wrongdoing in the previous case.” Montelongo, 420 F.3d at 1172.

The trial court granted the defense motion to exclude the evidence and the government called Mr. Gomez to testify on direct examination and elicited testimony that he had inspected the truck just before the defendant picked it up and found no marijuana in it. However, after the Gomez testimony, the defendants “sought to cross-examine Mr. Gomez about the facts of that case in order to bolster their contention that Mr. Gomez was operating a drug ring of which the Defendants were unaware.” Montelongo, 420 F.3d at 1172. The trial court excluded this evidence. The defendants appealed following their convictions on the charges.

The Tenth Circuit reversed after concluding that the trial court erred in preventing the defendant’s from using the other act evidence in their cross-examination. The circuit noted that the “reverse 404(b)” other act evidence “is admissible ‘for defensive purposes if it tends, alone or with other evidence, to negate the defendant's guilt of the crime charged against him.’” Montelongo, 420 F.3d at 1174 (quoting Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir. 1999) (alternations and quotations omitted)). Reverse 404(b) evidence may be admitted after balancing the probative value of the evidence against any “danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence,” under FRE 403. Montelongo, 420 F.3d at 1174.

As the Tenth Circuit explained:

“[W]e conclude that the evidence the Defendants sought to elicit on cross-examination was relevant to their defense that they had no knowledge of the marijuana packed in the truck they were driving. We note that the similarities between the two crimes and their temporal proximity that makes this evidence probative. Although Messrs. Brown and Hernandez maintained that they simply found the thirty-four pounds of marijuana by the side of the road, it would not be unreasonable to conclude that such similarities are not coincidental, which belies Mr. Gomez’s claim that he had no knowledge of the marijuana in this case. We also find that the relevance of the proffered evidence is not substantially outweighed by the risk of confusing the jury or the potential for waste of time. The Defendants only sought to cross-examine one witness on this one discrete issue. Nor was there any real danger that the similarities between the two crimes would have ‘distracted the jurors’ attention from the real issues in the case.’ To the contrary, it would have highlighted the central issue at trial—namely, which man was responsible for the contraband. As such, we find that District Court erred in preventing the Defendants from cross-examining Mr. Gomez based on Rule 404(b).”

Montelongo, 420 F.3d at 1174-75 (citations omitted).

The trial court also erred in excluding the evidence alternatively under FRE 608(b). The circuit noted: “By its terms, the Rule only applies to specific instances of conduct used to attack or support the witness’ character for truthfulness. As discussed above, however, the Defendants did not seek to cross-examine Mr. Gomez on the prior incident in order to ‘attack’ his ‘character for truthfulness,’ but rather to negate the Defendants’ guilt of the crime charged against them and to establish that Mr. Gomez had knowledge of the marijuana in the truck driven by the Defendants.” Montelongo, 420 F.3d at 1175. The defendants were deprived of their Sixth Amendment Confrontation Clause rights. The error was not harmless beyond a reasonable doubt and the convictions were reversed.

While there are not many cases admitting reverse Rule 404(b) evidence, the Montelongo decision provides and example of the admissibility of this form of evidence.