Federal Evidence Review

In drug possession and distribution prosecution, excluding threatening letters offered by defendant as "reverse 404(b) evidence" (to show that the defendant had been coerced into the criminal conduct); the evidence was excluded because the threat had been made post-arrest and had a tenuous relation to the charged drug transaction, in United States v. Savage, 505 F.3d 754 (7th Cir. Oct. 17, 2007) (No. 06-1990)

As with many circuits, the Seventh Circuit applies two elements in considering whether to admit reverse 404(b) evidence (evidence of other acts offered by a defendant to show the defendant did not act criminally). The tests examines: “First, ... whether the evidence is probative” under FRE 401. Second, “if so, whether its probative value is trumped by Rule 403,” (which balances the probative value of the evidence against such considerations as prejudice, undue waste of time, and confusion of the issues). Savage, 505 F.3d at 761. In considering the issue, the Seventh Circuit set out some of the considerations in examining the admissibility of "reverse 404(b)" evidence.

In the case, defendant Savage was arrested for purchasing more than 60 grams of powder cocaine and more than 60 grams of crack cocaine from his cousin. DEA officers received a tip which alerted them to the transaction and after the defendant's arrest, "he admitted criminal conduct and agreed to cooperate and record telephone conversation of drug transactions with others. However, he later changed his mind and withdrew from cooperating. At his trial, he presented a coercion defense, claiming that he was coerced into buying the cocaine under threat of physical violence by Valdez, a leader of the Latin Kings street gang. According to the defendant’s testimony, “a few hours before the drug purchase" which led to his arrest, "Valdez gave Savage $1,500 and ordered him to ‘invest that wisely’ or else Valdez would ‘shoot him like he shot Eddie Hurt,’ another member of the Latin Kings.” Savage, 505 F.3d at 758. The defendant claimed that he informed a forensic psychiatrist who evaluated his coercion defense and the special agent about the threat, which both persons denied.

The trial court also excluded letters of threats of physical violence made by Valdez after the drug purchase as irrelevant. The trial court explained that the letters were excluded “because I thought that it would just raise unnecessary issues that would confuse the jury, and, secondly, the probative value of the threats from Valdez and his wife are more probative of threatening Mr. Savage to deter him from persisting in prosecuting Mr. Valdez, which at one point appeared to be the case, and really aren’t probative of any pre-crime threats towards—any pre-crime coercion of Mr. Savage.” Savage, 505 F.3d at 760. The jury convicted the defendant and he appealed, challenging the exclusion of his post-conduct threats.

The Seventh Circuit affirmed the exclusion of the post-conduct threats after concluding the evidence was inadmissible as “reverse 404(b) evidence” which involves other crimes evidence offered “for defensive purposes if it tends, alone or with other evidence, to negate the defendant’s guilt of the crime charged against him.”

The fact that the proffered evidence occurred after the charged conduct did not disqualify the evidence. Savage, 505 F.3d at 761 (citing United States v. Anifowoshe, 307 F.3d 643, 646-47 (7th Cir. 2002) (“by its very terms, 404(b) does not distinguish between ‘prior’ and ‘subsequent’ acts”; however, the “chronological relationship between the charged offense and the other act” may help determine the probative value of the evidence); United States v. Betts, 16 F.3d 748, 757 (7th Cir. 1994) (“Rule 404(b), of course, does not restrict evidence concerning the defendant’s ‘other acts’ to events which took place before the alleged crime; by its very terms, 404(b) does not distinguish between ‘prior’ and ‘subsequent’ acts. The critical question is whether the evidence is sufficiently probative of a matter within the rule’s purview. Depending upon the factual circumstances, the chronological relationship of the charged offense and the other act may well have some bearing on this inquiry, but it is not necessarily dispositive.”), abrogated on other grounds by United States v. Mills, 122 F.3d 346 (7th Cir. 1997))

The circuit concurred with the trial court that “the probative value of post-conduct threats is somewhat limited. The text of threatening letters—two containing the word ‘REDRUM,’ or ‘murder’ backwards, and a third with a threat to ‘come down there right now and kidnap you and beat you for a weak [sic]’—do not reference the drug deals that Savage argues Valdez coerced him into doing. The threats occurred well after the drug deal, which, though not a dispositive factor, lessens the probative value of the letters. The probability that a jury would view these letters as further support of Savage’s coercion defense is slight.” Savage, 505 F.3d at 761.

Under FRE 403, the limited probative value was outweighed by confusing the issues “the threats were made at a time when Savage was cooperating with the government against Valdez, the jury may have confused the issue of whether Valdez coerced Savage into ending his cooperation with the government with the issue of whether Valdez coerced Savage into dealing drugs.” Savage, 505 F.3d at 761. The jury had already heard evidence about the violent character of Valdez and further evidence about the post-conduct letters would not have added much. Finally, even assuming error resulted from excluding the letters, any error was harmless in light of overwhelming evidence. Among other things, the defendant had admitted purchasing the cocaine with the intent to sell it. The excluded evidence did not deprive the defendant of his Sixth Amendment right to present a complete defense.