Admissibility Of Other Act Evidence To Rebut "Innocent Involvement" Defense

In identity theft and fraud trial, admitting bad act evidence under FRE 404(b) (that during traffic stop after charged crime, but before indictment, defendant provided police a false social security number at a traffic stop) because it was probative of her knowledge or intent in the charged crime, was sufficiently similar to the charged offenses and tended to rebut defendant's innocent involvement defense by showing her "willingness to give a false, even if made-up, social security number" in United States v. Landry, F.3d (1st Cir. Jan. 28, 2011) (No. 09-1877)

FRE 404(b) includes a list of purposes for which other act evidence is appropriate, (e.g., "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"). What if there is a non-propensity issue not on that FRE 404(b) list? In a recent case, the First Circuit explained that while not explicitly listed by FRE 404(b), another appropriate non-propensity purpose for admitting other act evidence involves the "innocent involvement" defense.

In the case, defendant Landry was charged with fraud and various identity theft violations. Prior to these charges, the defendant had worked at a credit card company and had access to client's social security numbers. Allegedly the defendant had access to another individual's account information, also named Landry. After her termination at the credit card company, the defendant allegedly used the information she had learned to obtain use of the other Landry's individual's identity and to apply for three credit cards, to obtain a credit card and to use that credit card of the other Landry.

"Before trial," the circuit noted, "the district court initially directed the Government not to mention evidence of [a] 2008 traffic stop, but warned Ms. Landry that the evidence would be admissible if she opened the door to it. After Ms. Landry's opening statement indicated a defense of good faith and computer error, the district court ruled that the evidence of the traffic stop would be admissible." Landry, __ F.3d at __. The 2008 traffic stop evidence involved the defendant's stop for a traffic infraction and when asked for her name, social security number and date of birth, the defendant provided the arresting officer "her sister's name, a made-up social security number and a made-up date of birth." The officer was able to find the defendant's actual identity "by checking vehicle registration, booking photographs and verifying physical traits, and discovered that Ms. Landry had a suspended license." Landry, __ F.3d at __. The jury convicted the defendant of the charged offenses and she appealed, contending in part that admission of this other act evidence violated FRE 404(b).

The First Circuit affirmed the admission of the other act evidence. Under the "established case law" for the First Circuit, the 2008 traffic stop evidence met a two-step test used to consider the admission of other act evidence. The elements of that test involved:

"First ... whether the evidence has 'special' relevance other than establishing propensity; with respect to this inquiry, Rule 404(b)'s list of purposes is not exhaustive.... To determine whether proffered evidence has special relevance, the court considers the temporal relationship of the other act and the degree of similarity to the charged crime. Second, the court must consider whether Rule 403 requires exclusion of the evidence because the danger of unfair prejudice substantially outweighs the probative value.

Landry, __ F.3d at __ (citing Udemba v. Nicoli, 237 F.3d 8, 15 (1st Cir. 2001) (Evidence was admissible under FRE 404(b) when it “was specially relevant to a contested issue in the case," rejecting that FRE 404(b) has a comprehensive list of all the ways in which evidence of other bad acts may be specially relevant.); United States v. Varoudakis, 233 F.3d 113, 119 (1st Cir. 2000)(Under FRE 404(b) test in the First Circuit, special relevance involves the temporal relationship of the other act and the degree of similarity to the charged crime.)

In the defendant's appeal, she challenged whether the 2008 traffic stop evidence was "specifically relevant" as required by the First Circuit test for admission of FRE 404(b) evidence. The circuit was emphatic in its conclusion: "We believe ... that the 2008 traffic stop is relevant to show intent or knowledge because the evidence rebuts an innocent involvement defense." Landry, __ F.3d at __. The circuit noted a number of cases in which it had previously concluded that evidence rebutting an innocent involvement defense was "specifically relevant" under FRE 404(b), including:

United States v. Rodriguez, 215 F.3d 110, 119 (1st Cir. 2000) (In case in which defendant contended he had not conspired to import illegal drugs, admitting other act evidence of another drug importation that involved the defendant because under FRE 404(b) "the Government had a right to counter the idea that the defendant was just 'innocently caught up' in the events.")
United States v. Wyatt, 561 F.3d 49, 53 (1st Cir. 2009) (where there was a suggestion that the defendant was tricked into participating in fraudulent transactions by others, evidence of the prior fraudulent transactions by defendant “would assist the jury in determining whether [the defendant] was ‘duped’ ... or whether [the defendant] fully understood the fraudulent nature of the charged transactions.”).

United States v. Lugo Guerrero

Similarly, other cricuits have admitted 404(b) evidence when it might serve to rebut an asserted innocent involvement defense, including

Ninth Circuit: United States v. Howell, 231 F.3d 615, 628 (9th Cir. 2000) (holding Rule 404(b) evidence of previous drug convictions relevant to rebut defense that the defendant was “merely present” (quotation marks omitted))
Seventh Circuit: United States v. Huels, 31 F.3d 476, 479 (7th Cir. 1994) (allowing FRE 404(b) evidence to show absence of mistake because the defendant had maintained that “he wandered into the marijuana garden by chance while hunting for deer” and had never been on that plot of land previously)
Second Circuit: United States v. Zackson, 12 F.3d 1178, 1182-83 (2d Cir. 1993) (admitting Rule 404(b) evidence of prior drug trafficking with co-defendant to show intent because defendant denied any participation and claimed innocent association)

In light of the admissibility of FRE 404(b) evidence to meet an asserted defense theory, the circuit found that in defendant's case, the 2008 traffic incident was relevant to the charges of identity theft and fraud:

Ms. Landry's defense is one of innocent involvement. She does not contend that she made a mistake. Rather, she claims that she acted innocently, providing her own date of birth and a social security number of all 9s. The culprit, according to Ms. Landry, is the computer system, which mixed up her identity .... The line of cases admitting Rule 404(b) evidence to counter a defense of innocent involvement supports the district court's determination that the circumstances of her encounter ... at the traffic stop are relevant to show intent or knowledge."

We also believe that the traffic stop is sufficiently similar to be relevant. 'The other bad act need not be identical to the crime charged so long as it is sufficiently similar to allow a juror to draw a reasonable inference probative of knowledge or intent.' We have considered Ms. Landry's contention that the traffic stop is not sufficiently similar because she provided the officer with a made-up social security number, not an actual one as alleged in the charged crime. We find probative, however, her willingness in both situations to lie when asked for personal identification information. Because Ms. Landry's defense was good faith and computer error, Ms. Landry's willingness to give a false, even if made-up, social security number is suggestive of her intent to provide another's identity as her own.

The bad act also was not so distant in time from the charged event as to be irrelevant. The [charged crime of] submission of the credit card applications and use of the Chase card occurred from April to June 4, 2007; the traffic stop occurred on June 18, 2008. The traffic stop, then, occurred a little over a year after the charged crimes."

Landry, __ F.3d at __ (quoting United States v. Landrau-Lopez, 444 F.3d 19, 24 (1st Cir.2006). and citing United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008) (concluding that the prior bank robberies were not too remote because they occurred within fifteen months of the charged robbery).

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