When Is Intent An Issue For FRE 404(b) Purposes?

In a possession with intent to distribute methamphetamine trial, evidence of defendant's prior state conviction for delivery of cocaine was properly admitted under FRE 404(b) to show motive or intent which remained in issue since the defendant had pleaded not guilty and did not provide the prosecution with any "enforceable pre-trial assurances" nor "any stipulation or concession regarding his intent"; however, even had this admission been erroneous, it was harmless error, in United States v. Carrillo, __ F.3d __ (5th Cir. Oct. 18, 2011) (No. 10–50243)

What need a criminal defendant do to concede an issue, relieving the prosecution of the burden of proving an element of the charged crime beyond a reasonable doubt? This question carries particular significance in assessing the admission of other act evidence for the purpose of proving the defendant's criminal intent. In a recent case, the Fifth Circuit examined when FRE 404(b) evidence is relevant to proving a necessary element of the charge, such as motive or intent.

In the case, defendant Carrillo and his girlfriend were prosecuted possessing methamphetamine with the intent to distribute. The jury acquitted the girlfriend but convicted defendant Carrillo after his unsuccessful efforts to suppress the admission of his confession at trial as well as to restrict use of evidence about his flight from the police. On appeal, he contended that, among other things, the trial judge erred in admitting as other act evidence under FRE 404(b) testimony that the defendant "had been convicted in 2005, in a Texas court, of 'the offense of delivery of a controlled substance, cocaine, 4 grams or more but less than 200 grams.'" Carrillo, __ F.3d at __. The defendant contended that his prior conviction had been introduced only for the illegitimate purpose of showing his bad character and propensity toward dealing in illegal drugs. This violated FRE 404(b)'s direction that such evidence not be admitted solely for proving "the character of a person in order to show action in conformity therewith." Carrillo, __ F.3d __ (quoting FRE 404(b)).

The Fifth Circuit rejected this argument after applying the two factor test to introduce other act evidence under FRE 404(b):

Evidence of prior offenses is admissible if ‘it is (1) relevant to an issue other than the defendant’s character, and (2) the incremental probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the defendant.
Carrillo, __ F.3d at __ (citing United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005) (quoting United States v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003)).


The defendant "argue[d] that the prior conviction was inadmissible because it was introduced only for the illegitimate purpose of showing his bad character and propensity toward dealing in illegal drugs." Carrillo, __ F.3d at __ . The circuit concluded that the evidence was admissible as it was relevant to showing motive or intent, as allowed under FRE 404(b). The circuit noted that the admission of the prior drug conviction evidence had been facilitated by the defendant's plea of not guilty:

By pleading not guilty to possession with intent to distribute methamphetamine, Carrillo put his intent and knowledge at issue. The government asserts that the prior conviction was admissible under Rule 404(b) to show Carrillo's knowledge and intent. However, Carrillo's conviction for delivery of cocaine in 2005 arguably had no legitimate relevance to either his knowledge of methamphetamine or his intent to distribute methamphetamine in 2009. Carrillo's prior conviction did little, if anything, to establish a relevant fact other than Carrillo's bad character or propensity toward selling illegal drugs. Further, it is doubtful whether the prior conviction's incremental probative value, if any, was outweighed by the danger of unfair prejudice to Carrillo.
Carrillo, __ F.3d at __ (citing States v. Olguin, 643 F.3d 384, 390 (5th Cir. 2011) (“A defendant's not-guilty plea intuitively puts his intent and knowledge into issue.”), cert. denied by Ledesema v. U.S., 2011 WL 3921408 (Oct. 11, 2011) and by Olguin v. U.S., 2011 WL 4051403 (Oct. 11, 2011); McCall, 553 F.3d at 828 (“By pleading not guilty to the charges and requiring the government to prove the elements of its case, McCall made evidence of his general intent relevant.”)).

However, on the facts of the case, the circuit questioned whether the prior conviction was probative and not bad character evidence. The circuit did not need to resolve this issue because any error was harmless based on the strong evidence of guilt and limiting instruction that was given when the evidence was offered.

The Carrillocase provides recent insight on the ability of the trial court to permit FRE 404(b) evidence in light of a non-guilty plea and the government's burden to prove the case.

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