Evidence - Rule 404(b) – Similar Transactions – Defendant’s Use of 404(b) Evidence

United States v. Garcia, 729 F.3d 1171 (9th Cir. 2013)

The defendant was charged with murder and involuntary manslaughter as a result of his killing a person with whom he was fighting. The defendant sought to introduce evidence that the victim had previously engaged in various acts of violence towards others and the defendant knew of these other incidents. The trial court erred in excluding this evidence. In a self defense case, the defendant’s knowledge of the victim’s prior assaultive behavior is relevant to show his state of mind in shooting the victim. See also United States v. Saenz, 179 F.3d 686 (9th Cir. 1999); United States v. James, 169 F.3d 1210 (9th Cir. 1999).

United States v. Parkes, 668 F.3d 295 (6th Cir. 2012)

The defendant, a customer of a small Tennessee bank, was charged with participating in bank fraud. His company had large debts to the bank, in fact, the debts exceeded the lending limits permitted by the bank and the FDIC. The president of the bank altered the books to make it look like the loans were actually to several different unrelated companies (some of which were non-existent), so that it did not appear on the books as an outsized loan to the defendant. The defendant sought to introduce evidence that the president had altered the books of the bank to falsify the amount of loans by other customers, as well (customers who were not aware that this was occurring). The trial court improperly excluded this evidence. This evidence was offered to show that the president had the means and the motive to commit the crime with which the defendant was charged. The fact that the 404(b) evidence would also show the president’s propensity to commit this crime did not automatically disqualify the admissibility of the evidence.

United States v. Wright, 625 F.3d 583 (9th Cir. 2010)

The defendant was charged with possession of child pornography on his computer. He defended on the basis that his roommate downloaded the child pornography on the defendant’s computer. The roommate did not testify at trial. The defendant sought to introduce evidence that the roommate was computer-savvy, and that he had an interest in young boys. The Ninth Circuit held that such evidence was admissible pursuant to Rule 404(b) and that the limitations on Rule 404(b) evidence when introduced against the defendant are more relaxed when introduced against a person (witness, or non-witness) other than the defendant. Because the issue was not properly litigated in the trial court, the plain error standard applied and the appellate court concluded that the error in excluding the evidence did not rise to the level of plain error.

United States v. Montelongo, 420 F.3d 1169 (10th Cir. 2005)

The defendant was convicted of transporting marijuana in a truck. The owner of the truck also owned other trucks and another of the trucks was also found to have been carrying marijuana. When the owner testified, the defendant sought to cross-examine him about the other incident (to suggest that the owner was using the trucks to haul marijuana, unbeknownst to the drivers). Barring this cross-examination was reversible error. The defendant was permitted under Rule 404(b) to show the other incident to prove his innocence.

United States v. Stephens, 365 F.3d 967 (11th Cir. 2004)

The defendant was charged with selling methamphetamine to an informant. The transactions were recorded on videotape, but the content of the tapes was hard to discern and did not clearly reveal the defendant handing any drugs to the informant. Nevertheless, the police testified that they searched the informant before he met with the defendant and he had money, but no drugs; and when he returned from the meetings, he had drugs and no money. Prior to trial, the informant died of natural causes. The defendant attempted to offer evidence at trial that the informant was regularly using, buying and selling drugs during the time period of the undercover work. Defense counsel explained that his theory was that the informant actually hid drugs on his person, or in his car before he had the meetings with the defendant and he was tricking the police into believing that he was actually acquiring the drugs from the defendant. The trial court excluded the evidence, holding that this was an improper method of impeaching the informant – through prior bad acts evidence. The Eleventh Circuit reversed, holding that this evidence was admissible in support of the defendant’s theory that the informant had a source of drugs which explained how he had the drugs to give to the agents. The evidence was also admissible under Rule 404(b) – defendant’s use of Rule 404(b) – to show the informant’s other acts that explained his opportunity to commit the deception perpetrated on the police.

United States v. Cruz-Garcia, 344 F.3d 951 (9th Cir. 2003)

The defense attempted to prove the facts underlying the witness’s prior convictions to show that he had the capacity to commit the offenses with which the defendant was charged. The trial court erroneously excluded this evidence. The evidence was admissible under Rule 404(b) to prove the witness’s capacity to commit the crime. Indeed, the prosecutor had repeatedly argued that the witness was too stupid to have committed the crime without the defendant’s help. The court noted that Rule 404(b) should be more liberally interpreted when the evidence is being offered against a witness, as opposed to the defendant.

United States v. Cohen, 888 F.2d 770 (11th Cir. 1989)

The Eleventh Circuit holds that Rule 404(b) may be used by the defendant in an effort to introduce evidence of a witness’ prior bad acts. Thus, if a witness’ prior criminal acts or misconduct would provide a motive or demonstrate a modus operandi, or demonstrate a capacity (as here) to commit a crime without the aid of the defendants, such evidence may be admissible without regard to the rules of impeachment embodied in Rules 608 and 609.