Eighth Circuit
Case: United States v. Conner, No. 18-1032, 2019 WL 2039858, at *2 (8th Cir. May 9, 2019)
Type of Case: Criminal
Charges/Counts: 18 U.S.C. § 1951 (Hobbs Act robbery); 18 U.S.C. § 924(c)(1)(A)(ii) (brandishing a firearm during and in relation to a crime of violence); and 18 U.S.C. § 922(g)(1) (unlawful possession of a firearm as a previously convicted felon).
Rule(s) of Evidence Cited: FRE 401; FRE 404(b)(2); FRE 403.
Brief Factual Summary: The government charged the Defendant with robbing a general store on December 7, 2016. The primary evidence of the robbery was the store’s surveillance video, which showed a masked person robbing the store. To help prove that the Defendant was the masked perpetrator, the government offered different surveillance videos from an earlier date. These surveillance videos, taken from a country jail on November 17, 2016, showed the Defendant “wearing a jacket and shoes that matched the jacket and shoes worn by the person that committed the robbery on December 7, 2016.”
The Defendant argued that the evidence should be excluded as improper character evidence under Rule 404(b) and as unfairly prejudicial under Rule 403. The district court admitted the videos under 404(b), explaining that they were “relevant on the issue of identity, and the clothing and apparel go directly to the issue of identity.”
Rulings
- FRE 404(b)(2)
The Eighth Circuit upheld the admission of the evidence but, in so doing, ruled that Rule 404(b) did not apply. Rather, the Court held that the evidence was simply relevant under Rule 401. The Court reasoned:
“We agree that the evidence was relevant to whether Conner was the Casey’s robber. But while ‘identity’ is one of the permissible purposes for which evidence of prior bad acts may be admitted under Rule 404(b)(2), Conner’s attire is not the sort of ‘identity’ evidence contemplated by that rule. Rule 404(b) provides for the receipt of evidence of a defendant’s prior crimes to prove ‘identity’ in a situation ‘where the pattern and characteristics of the crimes are so unusual and distinctive as to be like a signature.’ United States v. Lewis, 483 F.3d 871, 875 (8th Cir. 2007) (internal quotation and brackets omitted). The evidence of Conner’s attire on November 17 was not evidence of a prior crime or wrong offered to show that he committed a ‘signature’ crime on December 7. It was simply relevant circumstantial evidence that he committed the robbery because he was known to wear clothing like that worn by the robber.”
- FRE 403
The Court held that a limiting instruction regarding the county jail surveillance videos was sufficient to avoid any unfair prejudice.
Ninth Circuit
Case: United States v. Carpenter, No. 17-10498, 2019 WL 2049818, at *5 (9th Cir. May 9, 2019)
Type of Case: Criminal
Charges/Counts: 18 U.S.C. § 1201(a)(1) (conspiracy to kidnap and kidnapping).
Rule(s) of Evidence Cited: FRE 404(b)(2); FRE 403.
Brief Factual Summary: Various defendants were charged with kidnapping a man who was suspected of stealing marijuana from a Mexican cartel. Their alleged plan was to trade the victim to a cartel for thirty pounds of marijuana.
At trial, the government sought to offer two pieces of evidence. First, evidence about the “missing marijuana” that allegedly motivated the kidnapping, which also served to implicate one of the defendants, Velazquez, in previous drug dealing. Second, evidence that Velazquez used methamphetamine during the kidnapping.
Rulings
- FRE 404(b)(2)/403
With respect to the “missing marijuana,” the Ninth Circuit upheld the admission of the evidence. The Court wrote: “As Velazquez admits, the circumstances of the initial drug-trafficking incident and missing marijuana were necessary to provide a ‘coherent and comprehensible story’ regarding the background for the kidnapping of Gonzalez.”
With respect to Velazquez’s methamphetamine use during the kidnapping, the Ninth Circuit expressed serious “doubt” that the evidence was admissible under 404(b)(2). But even if it was, the Court reasoned, the district court should have excluded it under Rule 403. The Court wrote:
“We seriously doubt that Velazquez’s methamphetamine use speaks to his motive to commit kidnapping or conspiracy to kidnap, although we find that the evidence is probative of his state of mind and the absence of duress. Nonetheless, we conclude that the district court abused its discretion in admitting the evidence because it should have been excluded under Rule 403’s balancing. Drug use ‘is highly prejudicial,’ and the connection between the charged offenses and the methamphetamine use was evidently slight. Id. at 1017. The low probative value of the methamphetamine use—particularly in light of the other evidence that the government introduced to establish the absence of duress and the codefendants’ state of mind—is ‘substantially outweighed’ by its prejudice. Fed. R. Evid. 403.”
