In drug conspiracy and distribution bench trial, confidential informant’s testimony about trying to make a controlled buy with the defendant was admissible other act evidence even if the incident occurred years after the charged drug offense when the evidence was used to prove the defendant’s identity, in United States v. Gallo-Moreno, 584 F.3d 751 (7th Cir. Oct. 19, 2009) (No. 06-1696)
It comes as little mystery to practitioners that a defendant’s other acts may be admitted to prove the defendant’s involvement in a charged crime, even if that crime occurred earlier than the other acts. Often this proof goes by way of inference from evidence of a modus operandi – that the alleged other act is so unique or distinctive as to be associated with the defendant and that this modus operandi has a very close similarity to that of the charged offense. In a recent case, the Seventh Circuit explored the use of FRE 404(b) to identify the defendant in the absence of the evidence being used to show a modus operandi. Instead, the use of the other act evidence was to show the defendant’s knowledge of matters involved in the charged offense. In this case, the evidence directly, rather than inferentially, tied the defendant to the charged crime by identifying him.
Although the defendant was indicted in 1994 under the identity of Carrion for his role in a Chicago drug conspiracy, authorities were unable to arrest him. In part, this was because “nobody had [ever] seen Carrion.” Three years later, under the name of Gallo-Moreno, he was arrested on suspicion of being Carrion. In a bench trial on the earlier drug charges, the primary matter of dispute involved his identity: “whether Gallo-Moreno was Carrion.” Gallo-Moreno, 584 F.3d at 753.
DEA tapes that supported the earlier indictment captured the voice of Carrion during several telephone calls in which DEA agent Tovar participated in an undercover capacity with Confidential Informant Varela as a cocaine dealer. After the arrest of some participants in Carrion’s drug conspiracy, Tovar and Varela sought to arrange additional shipments of cocaine with Carrion. Their recorded conversations with the defendant “took place over the phone; nobody ever saw Carrion.” The recordings totaled about 30 minutes. Three years later after Carrion’s indictment, Varela “was in Texas trying to purchase cocaine in an unrelated undercover drug operation” again under a false name. There, he met with a man known as Gallo-Moreno to negotiate the purchase and importation of cocaine from Mexico to Chicago. “During their meeting, Gallo-Moreno and Varela recognized each other's voices” and “[s]hortly after this meeting, Varela informed the authorities that Gallo-Moreno was Carrion.” Gallo-Moreno, 584 F.3d at 755.
At trial, the uncharged evidence of the 1997 Texas meeting was presented. Specifically, “Valera (sic) offered testimony about his 1997 encounter with Gallo-Moreno in Texas; he identified Gallo-Moreno as Carrion based on the Texas encounter and the tapes of his earlier communications with Gallo-Moreno.” The trial court found the defendant guilty in the bench trial. On appeal, he contend in part that the introduction of evidence about “Varela's attempted drug transaction with Gallo-Moreno in Texas in 1997” violated FRE 404(b). The defendant argued that the other act evidence “simply show[ed] that he is a drug dealer and is more likely to be Carrion for reasons related only to propensity, in violation of Rule 404(b)'s restriction on the use of propensity-based evidence.” Gallo-Moreno, 584 F.3d at 756.
The Seventh Circuit affirmed the admission of the other act evidence under FRE 404(b) to show identity. In fact, “[i]dentity was the sole issue at trial.” The Texas evidence strongly tied the defendant’s identity to Carrion. In the Texas meeting, the defendant “recognized Varela's voice, knew of a “Jose Antonio Varela” by name, expressed a desire to kill Varela, said that Varela got a lot of “our people” busted, intimated that the seized cocaine [from 1994] was his, and used similar language as Carrion. This evidence tended to prove Gallo-Moreno's identity as Carrion, and none of it requires a forbidden propensity-based inference to conclude that Gallo-Moreno is Carrion.” Gallo-Moreno, 584 F.3d at 756.
The circuit rejected the defendant’s attempt to distinguish the identification that occurred in the Texas incident from other types of identity cases in which FRE 404(b) evidence had been admitted. The defendant suggested the evidence “only shows he had ‘generic knowledge’ of ‘one of the largest and most uniquely significant seizures’ of cocaine” in the Chicago area. In addition the defendant contended that what the prosecution suggested was the defendant claiming ownership in the cocaine seized in 1994 was only the defendant’s general way of talking about those involved in “drug-trafficking [broadly].” The circuit disagreed because the defendant’s knowledge, as revealed in the Texas incident, “is highly probative of his identity as Carrion. The same is true of Varela's testimony about the similarities between Gallo-Moreno's speech and Carrion's. The district court did not abuse its discretion in admitting this evidence.” Gallo-Moreno, 584 F.3d at 757.
Unlike proof of identity by modus operandi, which typically involves distinctive characteristics of the charged and uncharged conduct, the other act evidence involved in Gallo-Moreno suggested identity in another manner. The defendant’s knowledge of highly unusual information that others were not likely to know, rather than showing a typical pattern of behavior, formed the basis for showing identity. For a similar instance of use of FRE 404(b) evidence for proof of identity but not necessarily modus operandi, see United States v. Brooks, 161 F.3d 1240, 1242-43 (9th Cir. 1998) (no error in admitting phone conversation recorded nine days after the charged drug offense, in which the defendant gave pager number to the conversant; because the investigating agent was able to use that same number to contact the defendant several times, it was evidence suggesting identity).
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