*1 сondition health serious chronic Hansen’s which leave) bases on other were FMLA days on the unable to work him rendered favor of judgment upheld court require not does decision Our 654-57, question. WL Id. at defendant. merely costly trial through a go to FMG 3608698, *5-6. depres- his say-so that own Hansen’s on certifi- a medical produced has Hansen from work. him to be absent required sion fact issue of a material raises that cation his testimony about own to his addition issue. days at on incapacity to his as medical has Dr. Post’s incapacity, Hansen case this distinguishes The certification a serious health that he has certification where by FMG on relied from those flare-ups episodic cause will that condition sup- evidence no medical had employee job his performing from him prevent leave. FMLA to entitlement porting to necessary for him medically make and ex- leave requested Hansen’s Although Presumably, Dr. work. from absent and frequency estimated Dr. Post’s ceeds his accordance with testify in would Post request- duration, where as in Schaar credit jury will Whether certification. days of number exceeded leave ed his due incapacity of claims Hansen’s com- certified, the certification when to be remains July dates on the depression testimony own Hansen’s with bined weigh Hansen’s can jury decided. work- him from prevented depression his certification the medical testimony against has Hansen days question, ing on the provides Dr. testimony Post any issue a material to raise enough evidence Hansen’s from or detract may add to a reasonable would allow fact that of evidence, to claims, all the other along with Crowell, Dr. as in in his favor. And to find was entitled Hansen whether determine would Hansen Post’s certification July 2011 absences. his for leave FMLA pre- periodically flare-ups episodic func- job his performing venting him III. Conclusion un- he was finding support a could tions summary of grant court’s The district essential or more perform one able to the case is is Reveesed Re- judgment days he position his functions of proceedings consistent for further manded abun- be an may not There absent. was opinion. entitle- Hansen’s as to evidence dance of July for FMLA leave ment to raise enough
absences, there is Thus, reject of fact.
material issue med- no Hansen has argument that
FMG’s to substantiate ical documentation America, STATES UNITED ab- July 2011 his necessity of medical Plaintiff-Appellee, in combina- sences; Post’s certification Dr. just testimony do can Hansen’s tion with Defendant-Appellant. GOMEZ, Nicolas that. No. 12-1104. is- raises material Hansen’s was unable he as to whether of fact sue Appeals, Court United States job of his because functions perform Circuit. Seventh days he on the health condition his serious 11, 2013. Sept. Argued certifica- Dr. Post’s Although absent. 18, 2014. Aug. Decided July cover specifically tion does intermit- need absences, the certified finding that support could
tent leave *5 Fullerton, Attorney, Office D.
Stuart IL, Attorney, Chicago, United States Plaintiff-Appellee. Petro, Attorney, Michael Angela person’s J. M. character or to be- Rentz, IL, for Chicago, Defendant-Appel- have in a way. certain So-called “other act lant. evidence” is purposes, admissible for other however, see Fed.R.Evid. 404(b)(2), WOOD, Judge, Before Chief here the district court admitted the evi- POSNER, BAUER, FLAUM, dence purpose for the of proving Gomez’s EASTERBROOK, KANNE, ROVNER, identity as Güero. SYKES, WILLIAMS, TINDER, and Gomez was convicted on all counts. On HAMILTON, Judges. Circuit appeal primarily he challenged the district SYKES, Judge. Circuit court’s decision to admit the other-act evi- agents suspected Federal Nicolas Go- 404(b)(2). dence under Rule A divided mez of involvement a cocaine-distribu- panel affirmed. We reheard the case en ring operating tion in Chicago and Milwau- clarify banc to the framework for admit- wiretap phones kee. A on the of Robert ting other-act evidence. We now conclude Romero, Chicago supplier, a known re- that our four-part circuit’s test should be vealed a reseller named “Güero” who lived replaced by an approach that closely more agents Milwaukee. The believed that tracks the Federal Rules of Evidence. Gomez was Güero. When Romero and Applying a here, rules-based framework Güero September scheduled a deal for we hold that the cocaine found Gomez’s agents followed Romero as he bedroom admitted, should not have been drove Chicago to Milwaukee and harmless, but the error was so we affirm parked his car on a street near Gomez’s the judgment. house. The two men had brief conversa- tion next to Romero’s car and then left the Background I. scene on day agents foot. Later that *6 In 2010 federal agents were investigat- seized Romero’s parked ear—still where Romero, ing a Chicago-based sup- cocaine
he had quarter left it—and a found kilo- plier. A wiretap phones on his revealed gram of in cocaine the trunk. Gomez was regularly he was conducting business arrested conspiracy and to Milwaukee, with a reseller in a man he distribute cocaine and related crimes. called “Güero” or “Guerito.” The cell At trial the introduced more phones registered Güero used were to a than 50 recorded telephone calls between residence at 2522 West Mineral Street in Romero detailing and Güero their cocaine Milwaukee where Gomez and his brother- in leading the months up to transactions (Other Reyes in-law people lived. lived in September 3. tying The evidence the calls too, the house although the record doesn’t to Gomez’s residence overwhelming, was them.) identify When Romero and Güero so his defense was that Güero must have arranged a cocaine phone, sale over the been Reyes, Victor his brother-in-law who GPS data tracked driving Romero from lived in the response same house. Chicago an alley to behind Gomez’s house government sought to introduce a small on Mineral Street. When several months quantity of cocaine found Gomez’s bed- of wiretap evidence established this trans- room at the time of his arrest. Gomez actional pattern, only thing left was to objected, 404(b)(1) citing Rule of the Fed- catch conspirators in the act. Evidence, eral Rules of prohibits which admission of crimes, evidence of other The opportunity September 2, came on wrongs, or acts for purpose of showing when Romero and Güero discussed a that the told Romero 3. Güero September September day. On following for the sale he was and that had been towed Gomez’s house out Mercedes agents staked DEA (The FBI number group of Milwaukee, separate phone. a a new cell using and Chicago left He agents Romero. DEA was deactivat- followed agents gave Gomez Milwaukee, Mercedes, drove asked day.) in a white Romero very When ed block and a a within on street parked and the “three happened after had Güero what groups of Both house. of Gomez’s a half responded Rey, El left Güero of [them]” a brief videorecorded and agents watched stopped had been that his brother-in-law Romero and Gomez between interaction driving away El while by police Mercedes. parked to the standing next Reyes. happened what Rey exactly— conversation, two men a short After when he had then asked Güero Romero and company hands, parted then shook by police, and and searched stopped been opposite directions. away walked while stopped that he explained was Güero DEA past him happened route took to Go- what walking exactly Gomez’s — to confirm his him stopped agents, who mez. an anti- part of Pretending to be identity. four weeks 29—almost September On and force, him down they patted gun task Gomez at agents arrested later —federal name, address, telephone and for his asked table were Go- the kitchen his home. On gave Gomez The number. number Güero had and the cell phone mez’s wallet arrange used to number Güero the same September 3. When using since been go let him agents day. the sale bedroom, they agents searched Gomez’s and walked home. Gomez filled with documents found a shoe box later, minutes FBI agents A few Gomez, including phone bill addressed green minivan as Gomez drove watched phones cell Güero had of the three for one up Romero. picked the street and down Although all September until up used Rey, El Mercado The two men drove to registerеd under were phones three cell store, grocery and nearby restaurant name, the cellular- Reyes’s records from (Gomez’s brother- Reyes they met where the billing confirmed provider service housemate). agent An FBI in-law to Gomez at addressed statements were pho- into the restaurant them followed Agents also Street. Mineral 2522 West con- meeting. Surveillance tographed cocaine quantity found small Rey and left El three men as the tinued *7 bed- in Gomez’s pants of pair a pocket of ways. separate went their room. in a tan Suburban Reyes away drove directly DEA by a to the brought identified stopped and was and Gomez was must’ve been in center Chica- processing and Romero agent. prisoner Gomez FBI’s of them returned him. neither spooked agents because interviewed where two go a took phone white to the Mercedes—Romero recorded three of the They played Chicago. Later way the describing taxi all back calls, including the one agents seized day the federal that identified 3. Gomez September events car A of the search Mercedes. abandoned all three. He as Güero own voice on his quarter a revealed headquarters at DEA conspiracy to charged with thereafter was in the hidden trunk. of cocaine kilogram distribute, cocaine with intent possess counts of three § and see U.S.C. following morning, аnd evening That a drug to facilitate using telephone a showed Romero phone calls recorded 843(b). crime, § see id. reviewing the events frantically Güero At trial the introduced more II. Discussion than phone 50 recorded calls and testimo- Admissibility A. The of Other-Act Evi- ny agents from various federal to establish dence just we’ve facts described. Gomez’s identity defense was mistaken claimed Rule prohibits the admission of —he simply that he wrong place was at crimes, evidence of other wrongs, or acts He wrong time. also that the argued purpose for the of proving person’s a char- government would never be able to show acter or to behave in a certain possession him in of cocaine. In response way, permits the but use of this evidence prosecutors sought to introduce small purposes: other quantity of cocaine found in Gomez’s bed- (1) Prohibited Uses. Evidence of a room at the time of his arrest. Gomez crime, wrong, or other act is not admis- 404(b)(1) objected on grounds. prove person’s sible to character judge initially trial govern- denied the order to particular show that on a occa- ment’s request ultimately admitted the sion person acted accordance with evidence to show identity Gomez’s as Güe- the character. ro.1 In the end Gomez focused his defense (2) Uses; Permitted ... This evi- on attempting to raise reasonable doubt may dence be admissible for another government’s about the contention that he purpose, proving motive, such as oppor- Güero, arguing was likely more was intent, tunity, preparation, plan, knowl- Reyes was coconspirator. Romero’s edge, identity, mistake, absence of or He jurors reminded the Reyes lived lack of accident. same address and had also met with 404(b). Fed.R.Evid. September on Romero and that the cell phones used in regis- were conspiracy Our long circuit has four-part used a Reyes’s tered in jury name. The convict- test to determine when other-act evidence ed on all Gomez counts. is admissible: appeal
On primarily Gomez challenged To if determine such evidence is admis- the admission of the sible, other-act evidence— the district engage court must in a the cocaine found his bedroom on the four-pronged analysis and evaluate day (1) of his arrest —and also raised sen- whether evidence is directed to- tencing A issue. divided panel ward establishing a matter in issue oth- affirmed, court disagreement but the er than defendant’s propensity to to the evidentiary question. limited (2) Unit- commit the charged, crime the evi- Gomez, ed States dence shows that the other act is similar (7th Cir.2013); (Hamilton, id. 1159-63 enough and enough close in time to be J., dissenting). We the panel (3) vacated issue, relevant to the matter in opinion granted en banc rehearing evidence is sufficient support challenge Gomez’s to the admission of the finding the defendant committed *8 404(b). other-act evidence (4) under act, Rule the We similar and the probative now panel opinion reinstate the on the value of evidence is not substantially sentencing only issue and address Rule outweighed danger of prej- unfair 404(b) question. udice.
1. The court also allowed the longer other-act evi- no defends the admission purpose showing dence for the Gomez's of the purposes, evidence for these so we do knowledge and the absence of mistake. The not them address here.
853 in rele- 616, applying the practice and better F.2d 620 Zapata, 871 v. States United Cir.1989) vant rules of evidence. v. (7th (citing States United (7th 776, Cir. 779 738 F.2d Shackleford, (Relevance) and 1. Rules 401 & 402 (4) (2), 1984) (1), of the test and parts for (Relevance on a 104 Conditioned States, U.S. v. United and Huddleston Fact) (1988), 1496, 99 L.Ed.2d 681, 108 S.Ct. begin evidentiary All (3)). questions part for 402, general which contains in our commonplace Multipart tests are ad is “[r]elevant evidence principle useful, they can be but sometimes and law is and evidence “[irrelevant missible” legal principles stray or distract evidence 401 defines relevant not.” Rule implement; over designed they are (having probative is both as which creep law can of the misapplication time make a more or less “any tendency to fact when regrettable especially This in. the evi than it would be without probable roadmap clear a provides law itself (the dence”) “of fact must be material Rules of Evidence analysis, as the Federal action”). determining in consequence problem noted this do. We have generally four- 404(b) third factors our Espe- second context before. the Rule to the basic generally correlate one, part test other-act cases like this cially drug 402, 401 and inquiry under Rules relevance au- admitted almost is too often evidence rote apply with the but the rules do of the consideration tomatically, without Step inflexibility implies. the test purpose for of the which “legitimacy district court test directs the three for it.” and the need is to be used evidence of the whether the evidence to evaluate Miller, v. 673 F.3d States support act proffered other is sufficient (7th Cir.2012); States see also United commit- finding that the a defendant Cir.2006) Jones, 800, 812 if act is two asks the other Step it. ted J., a (Easterbrook, (“Allowing concurring) the con- enough to recent and similar both drug routinely to introduce prosecutor relevant in the case to duct in chief without in the case convictions (i.e., determining consequence “of to some concrete demonstrating relevance action”). F.2d Zapata, 871 See need- litigants creates between the dispute rest on the that a conviction will risk less “sufficiency” inqui three —the Step inference.”). More- forbidden 104(b), which ad from Rule ry—flows here, over, aspects explain we some as a fact: conditioned dresses relevance basis in the adequate lack an our test depends of evidence relevance “When rules. exists, must be proof a fact on whether finding support introduced sufficient evaluating test for four-part Our does exist.” the fact has Fed.R.Evid. admissibility of other-act evidence States, 104(b).2 v. United In Huddleston it in We now abandon to be useful. ceased whether considered Supreme Court rules- straightforward more of a favor re of other-act the admission change is less This approach. based court finding by the quires preliminary a shift in modification than substantive prepon- proved by has been clarity that the act produce hope that we will paradigm stylistic, purely so to be guage intended slightly was different 2. The text of Rule States, text. Fed.R.Evid. 104 quote the current of Huddleston v. United at the time (2011 amend- advisory committee's notes 99 L.Ed.2d U.S. 108 S.Ct. *9 ments). (1988), lan- change the but the to current 854 682, the evidence. at ‘sufficiently idiosyncratic
derance of
485 U.S.
two crimes
”
1496. The Court
i
permit
pattern.’
108 S.Ct.
held
an inference of
Id. at 498
t
689,
Thomas,
(quoting
does not. Id. at
States v.
652 F.3d
785-86
robbery);
Shriver,
United States v.
Cir.2011) (explaining that
comparison
“the
(7th Cir.1988)
968,
(same
F.2d
prior
[the defendánt’s]
acts to the
motive).
respect
this,
Recognizing
charged crimes” is “directed at establish
repeatedly
said that
“similarity”
404(b) evidence”)
ing
relevancy
of the
requirement
for admitting other-act evi-
(citing Lloyd,
States v.
71 F.3d
Foster,
dence
“unduly
is not
rigid,”
(7th
1256,
Cir.1995)).
1264-65
But
785,
F.3d at
“loosely
instead is
inter-
strength
inquiry
of this
varies depending
preted
applied,”
United States v. Var-
particular
on the
theory of admissibility.
(7th Cir.2008).
gas,
552 F.3d
example,
For
one permissible purpose for
the introduction of other-act evidence is to
Our discussion thus far should illustrate
prove a
identity
defendant’s
through
problem
treating
“similarity”
“distinctive
operation,
manner of
or modus
and “timing” factors as formal boxes to
operandi.” United
Simpson,
States v.
479 check in the admissibility analysis. It’s far
(7th
Cir.2007),
F.3d
497-98
abrogated
tempting
stop
too
at superficial compar-
part
grounds by
other
United States
meaningfully
isons without
analyzing how
Boone,
Cir.2010).
similarity
recency
prior
of the
bad
A prior act will be relevant to this purpose
act affect
unique
its relevance in the
cir-
“
when it
‘bears a singular strong resem
cumstances of the case. And the similari-
blance to the pattern of
ty
the offense
and timing
may
of the other act
charged’ with the similarities between the
bear on the
question
relevance
at all. We
*10
simultaneously
return to a framework that
condemns
besmirching
think it bеst to
character
by showing
the relevance of other-act evidence
and
one or more of
weighs
‘motive,
intent,
directly.
opportunity,
preparation,
plan, knowledge, identity, or absence of
principle
positive
To restate
”).
mistake or accident’....
In the crimi-
proffered
extent to which a
terms: The
context,
especially
cases,
nal
and
in drug
crime,
wrong, or act” is close
“other
criminal
few defendants are
activity
new to
time and similar to the conduct at issue
range
and the
of possible
fairly
defenses is
bearing
on its
may
the case
rele
limited, so at
of
permitted
least three
vance,
starting point
which is the
for all
purposes listed in the
in-
knowledge,
rule-—
importance of
questions,
evidence
but the
tent,
identity
routinely
and
in play.
—are
similarity
recency
will de
testing for
Because other-act evidence can serve
pend
purpose
on the
for which the
specific
once,
purposes
evidentiary
several
dis
The propo
other-act evidence is offered.
404(b)
putes under Rule
often raise the
other-act evidence should ad
nent of the
following
question:
permissible
Does
ul
directly, without the
dress its relevance
purpose (say, proof
timate
of the defen
of an artificial checklist.
straightjacket
intent)
dant’s
or
knowledge
cleanse an
404(b)
2. Rule
impermissible subsidiary purpose (propen
sity)? On thе surface the rule seems to
404(b)
excludes relevant evidence
(b)(2)
if
permit
this. But
subsection
crimes,
if
wrongs,
of other
or acts
the rule allows the admission of other bad
purpose
person’s
is to show a
propensity
they
acts whenever
can be connected to
way,
in a
behave
certain
but other-act
intent,
knowledge,
the defendant’s
or
may
evidence
be admitted for “another
(or
identity
plausible non-pro
some other
to,
including,
not
purpose”
but
limited
pensity purpose),
against
then the bar
motive,
intent,
“proving
opportunity,
prep-
propensity
virtually
evidence would be
aration,
knowledge, identity,
plan,
absence
mistake,
meaningless.
point
We have made this
or lack of accident.” Fed.
See,
404(b).
e.g.,
before.
United States
straightfor-
The rule is
R.Evid.
McMillan,
744 F.3d
Cir.
enough, but confusion
because
ward
arises
2014); Miller,
admissibility
keyed
(explaining
purpose
to the
offered,
“if applied mechanically,”
permit
which the evidence is
and other-
usually
purposes
act
ted
listed in the rule “would ov
capable
being
evidence is
of the rule
multiple purposes,
principle”
used for
one of which is
erwhelm the central
(quoting
propensity.3
Beasley,
against
propensity
See
809 F.2d at
evidence
1279)).
(“Almost any
Beasley,
act
vacated on
Jones
other
is relevant
to a non-
other-act evidence
States,
1125,
125 S.Ct.
U.S.
exactly the
propensity purpose but how
(2005).
2948,
This is not
Old
Chief
reversed.
Id.
191-92,
Supreme
Court
jurors
they
not use the
must
other-act
prove identity. Simpson,
Finally, the instruction would be identity theory of rele improved by tying limiting principle support the To its here, government of The vance the relies on two prosecution’s proof. the burden jurors gov in other-act evidence was ad should be reminded that the eases which duty beyond response a rea mitted in to a defense of mistak prove ernment’s is to Brown, every specific identity: the en States v. 471 sonable doubt element of (7th Cir.2006), States charged, discharge crime and it cannot its F.3d 802 and United (7th Cir.1999). Gibson, that the F.3d 673 inviting burden an inference There, the defen past sug inapplicable. acts Brown is person defendant is whose in a alleged participated to commit dant was to have gest willingness propensity or interrupted by that was drug crimes. transaction scene, opposite that reached the identical case but another He fled the police. charged with Simpson conclusion. was apprehended in the deal was man involved cocaine, in his de- selling and as Gibson law enforce cooperate with agreed to identity. govern- The was mistaken fense cooperator at 804. The ment. Simpson’s introduced statement ment drug buyer who Brown as identified deal- admitting the FBI that he had been police arrived. when fled the scene years leading or four ing cocaine for three identity— was mistaken Brown’s defense charged crime. We held up to the nothing do with that he hаd he claimed admitted to improperly this evidence was specific occa on this cooperator —not only be identity because it could prove Id. at In any other time. 806. sion or by way imper- of an relevant to that issue introduced evi government response at 497- propensity inference. Id. missible purchased drugs had that Brown dence by highlight- distinguished 98. We Gibson many occa cooperator prior from the specifically pointed ing that Gibson had this use of other-act approved sions. We finger culprit at an alternative it undercut Brown’s evidence because —his history drug of brother —and Gibson’s lying. Id. that the was cooperator claim likely that he—not dealing made it more admissibility theory of The basic drug dealer. Id. at his brother —was the of other transac in Brown—that evidence contrast, Simpson argued n. 1. In more a witness the defendant and tions between wrong had the generally police the witness’s iden is admissible to bolster guy. Id. participant of the defendant as a tification Gibson, Here, in mistaken- as Gomez’s a distinct charged in the transaction —is per- another identity singled defense out widely acknowledged theory of admis son—his brother-in-law and housemate 404(b). sibility under Rule See ImwinK- Reyes the “real” Güero. The Victor —as (2006). § But it has no supra, 3:7 elRied, government quantity introduced the user evi application in this case. other-act cocaine found in Gomez’s bedroom fоr quantity of cocaine dence here —a user showing that as between purpose days after found in Gomez’s bedroom 26 two, likely it was more that Gomez was not conspiracy ended—did serve If the distinction drawn Güero. purpose. valid, Simpson is then Gibson controls as point. is more on was Gibson Gibson closely analogous precedent. the more distributing cocaine up. not hold But the distinction does him, that it His defense was supposed on a Simpson relied difference brother, In re- his who sold the cocaine. propensity evidence probative value of sponse introduced Gib- mistaken-identity focuses when a defense FBI that postarrest son’s statement to the rather particular suspect on a alternative regularly he sold cocaine 1994to identity gen- more arguing than mistaken (he in the particular denied involvement erally. But Rule does not allow case). in the upheld sale at issue We probative evidence when it is propensity prosecution’s use of Gibson’s statement evidence as a enough; bars history drug dealing about his “because Gibson, just as categorical matter. *17 at trial was that of primary his defense of the defendant’s Simpson, the evidence Gibson, at identity.” mistaken 170 F.3d history dealing prove tended to his drug of in the identity participant as a only by way pro- a forbidden square drug is hard to with United deal of Gibson dealer, drug al- 492, nearly pensity inferencе: Once Simpson, States v. 479 F.3d
863 in been involved the cocaine-distribution Simpson and ways drug dealer. Gibson conspiracy. The district court should not now conclude cannot reconciled. We have admitted this evidence. recent did not survive our that Gibson in and Lee. decisions Miller 2. The Error Harmless Was yet example is another of This case subject Evidentiary errors are exactly pro- asking how importance to review for harmlessness. See Fed. evidence is relevant with- posed other-act 52(a); McMillan, 744 F.3d R.CRIM.P. govern- relying propensity. out on The 1034; v. Vargas, United States 689 F.3d in ment maintains that the cocaine found (7th Cir.2012). 867, context, 875 was admissible because Gomez’s bedroom whether, test for harmless error is “[t]he probable it made it more that Gomez—not average juror, pros the mind of the just say Reyes Güero. But that is —was significant ecution’s case would have been relevant; it that the evidence is doesn’t tell ly persuasive improper less had the evi pro- in a us how the evidence is relevant Vargas, dence been excluded.” 689 F.3d way. pivotal ques- pensity-free On (citing Loughry, at 875 United States v. tion, government has little to offer. (7th 965, Cir.2011)). 660 F.3d The argue If there had been some basis identifying Gomez as Güero was that the cocaine in Gomez’s bedroom was quite compelling and would not have been product conspiracy, of the then so had the other-act evidence been less might qualified as direct evidence excluded. drug participation Gomez’s Romero’s First, Romero addressed his coconspira- ring apply. would not See and tor as “Güero” in numerous recorded Phillips, 745 F.3d United States calls, phone confirming always that it was (7th Cir.2014); United States v. person the same end of the on other Adams, Cir.2010); 628 F.3d in the leading up Sep- line months to the Alviar, States v. tember 3 transaction. GPS data showed (7th Cir.2009). But government driving alley Romero to the Go- behind argument, good doesn’t make that rea- arranging mez’s house after sales with son. The cocaine in Gomez’s room was a September again Güero. On Romero quantity; pure small user it was half as as arrange called a cocaine sale for Güero quarter kilogram of cocaine found in day. the next Romero drove to Milwaukee car; it was almost Romero’s and recovered September planned parked 3 as his four weeks after Romero and Gomez house, near consistent Mercedes Gomez’s doing together. ceased business past practice. agents Federal ob- end, In the offers no videorecording captured served—and a —a theory other than to connect conversation brief between Gomez and the cocaine found Gomez’s bedroom to they Romero as stood next to the Mer- Güero, identity coconspir- his as Romero’s Importantly, cedes. the two men when аtor. government’s theory sole is that parted company oppo- and left on foot possession quantity Gomez’s of a user directions, Gomez, agents stopped site days conspiracy cocaine 26 ended identification, gave he asked for his after he, Reyes, shows that rather than phone them the same number that Güero argument extraordinarily That day. Güero. up had used to set the sale that weak, important point but the more is that day agents Later seized and pure propensity: it rests on Because Go- the abandoned Mercedes and searched in the possessed quantity quarter kilogram mez a small of cocaine found a of cocaine arrest, trunk. the time of his he must have *18 Gomez, Reyes. not happened evidence cor- know that Next, jury heard other the call Romero phone Earlier that same identity as Güero. roborating Gomez’s Reyes, and happened asked Güero what Güero used were phones The three cell an in the responded Güero with account on Mineral Street to the house registered happened about what to his person third Reyes, with but the that shared Gomez after the three men left El brother-in-law address, at that bills sent to Gomez were Rey.5 Finally, when Gomezwas arrested in a box in his of the bills and he had one nearly con- his home four weeks after the True, phones the could be bedroom. еnded, his wallet was found on the spiracy too, joined Reyes Reyes and linked to right phone next to the Güe- kitchen table meeting the at El and Gomez at Romero September ro had used since stopped and Rey after Gomez short, prosecution’s the case was agents. DEA So it’s no won- searched strong any and would not have been less pointing defense on der focused his Gomez had the other-act evidence been persuasive Reyes. the finger at least it would not have excluded—or persuasive less in the significantly been convincingly refuted But other evidence average juror. the The link be- mind of theory Reyes During that was Güero. quantity the small of cocaine found tween interview, federal postarrest Gomez’s identity bedroom his as Gomez’s and agents played several of the recorded weak; extremely govern- Güero was him, including that phone calls for one took really never articulated a coher- ment has cocaine sale on place after the aborted theory why helped ent this evidence its that September 3. Gomez admitted Guero’s Excluding case. it not have serious- would recordings on the was his. This voice ly strength prosecu- of the diminished own, quite powerful admission is on its against tion’s case Gomez. We’re satisfied challenged agents’ because Gomez that the error was harmless. on with our credibility, press we harmless- Affirmеd. analysis. error See States v. Rob- (7th Cir.2013). inson, HAMILTON, Judge, joined by Circuit WOOD, Judge, Chief and ROVNER and phone September In a recorded call on WILLIAMS, Judges, concurring in Circuit retracing previous day, the events of the part dissenting part. -person in the how Güero describes first away him as he police stopped walked agrees unanimously The en banc court Romero; by admitting from his conversation with that the district court erred dissenting colleagues object stop 5. Our that that occurred—that occurred to him press interpretation exactly day way happened did not that same September phone jury. of the call before the day. to Nicolas Gomez that no coinci- It's disagree. prosecutor We It's true did dence because Nicolas Gomez is Güero. specifically agents' stop calls, contrast The context of these combined with (on foot) (in car). Reyes Gomez his But evidence, just the other one more kind of is prosecutor September discussed proof that Nicolas Gomez was Roberto phone closing argument, call detail in in some partner calls. Romero’s in all of these explaining that: evidence, touching After on some of the other point, telling prosecutor to this call, returned says- another Call [I]n Gomez —(cid:127) beyond jurors they confident could be Gomez tells Romero that Gomez had been a reasonable doubt that Gomez was Güero stopped walking when he was and had post-stop phone of the context of the "because turned the corner. Now it’s no coincidence Güero, things about phone [Güero] the man calls where talks on this Romero, telling only happened Roberto Romero about a to Nicolas Gomez.” *19 404(b) charged the evidence that Gomez the indictment. The under Rule reason of a small amount of possession is that the defendant is on trial here for nearly four weeks after cocaine specific charges conspiracy of to possess charged conspiracy ended. Its admission cocaine with intent to distribute and us justified any on of the three was not ing telephone to facilitate a drug by court and grounds accepted the district crime. He is-not on trial for those other jury. argued by government to the It government’s acts. is the burden to Sykes’ opinion for the court on the Judge prove beyond a reasonable doubt the 404(b) question merits of the Rule takes specific charged elements of the crimes clarify important steps and welcome this government here. The cannot meet its area of evidence law. See troublesome by inviting you burden to infer that the Gomez, 712 generally United States v. person defendant is a whose past acts (7th Cir.2013) (Hamil- F.3d 1159-63 suggest he has a bad character or a ton, J., dissenting). join I therefore Parts tendency to commit crimes. Sykes’ opinion. II-B-1 Judge II-A and of Nevertheless, after having done so much joining opinion also take Those this this improve our circuit’s law under Rule opportunity provide example an of the 404(b), majority the en banc still affirms instruction that should type be despite Gomez’s conviction the serious given properly when evidence is admitted 404(b) majority Rule error. The does so 404(b). the facts Suppose under Rule here that finding the Rule error was (1) that Suppose had been different. Go- harmless, in Part II-B-2 of opinion. its possessed quan- mez had later a wholesale this resulting From conclusion and the af- tity purity of cocaine of the same as the (2) firmance, I respectfully dissent. conspiracy, involved in the that We cocaine government had shown that the co- should reverse this conviction and remand probative caine would be of Gomez’s iden- highly prejudi- for a new trial without the (3) tity unfairly prejudicial, and not erroneously cial evidence admitted under limiting the defendant wanted a in- 404(b). good struction. A instruction consistent sure, government’s To be case with our circuit’s Pattern Instruction 3.11 person against the called “Güero” was air- would be: tight. gov- But was Gomez “Güero”? testimony You have heard ernment offered substantial evidence defendant committed acts other than the But that not he was. evidence is as clear charged ones in the indictment. Before contends, majority particularly as the evidence, using you must decide keep requirement when we view the likely it more than not that whether beyond proof a reasonable doubt. The the defendant took the actions that are applicable standard for harmless error is you in the indictment. If provided by Federal Rule of Criminal Pro- did, you may decide that he then consid 52(a), the court to requires cedure which help you er that evidence to decide disregard an error that “does not affect whether the defendant was the same rights.” is on the substantial The burden person as the one called “Güero.” You the error here show may any not consider this evidence Olano, was harmless. United States purpose. specific, you other To more 725, 734, 507 U.S. 113 S.Ct. that, may not infer because defen (1993); States v. Pat- L.Ed.2d 508 past, dant committed an act he Cir.1994). terson, 1239, must committed the crimes error, let’s consider the September harmless So finding To avoid that, remand, indicating that Güe- government’s “need not show defendant *20 him a second ro Gomez rather than his brother-in- not convict was jury would Richards, Reyes, who lived the same v. 719 law Victor time.” United States Cir.2013). (7th meeting 746, Even house and who was also observed F.3d 765-66 Romero, supplier, September on “probably” still would with the where the defendant im convicted in the absence of have been evidence, error is proper agent linguist An FBI and a testified proper necessarily harmless. Id. The not phone recorded they played three juror an average is “whether question they for when interviewed him calls Gomez signifi case prosecution’s
would find
arrest, and that he identified his
after his
improp
cantly
persuasive
less
without
That
voice as Güero on those calls.
own
Miller,
States v.
er evidence.” United
testimony
entirely on the credibil-
depends
(7th
Cir.2012); see
Kot
F.3d
also
ity
agents,
They
however.
of the federal
States,
750, 765,
328 U.S.
tealcos United
by
did not record this critical admission
(1946) (in
case
66 S.Ct.
90 L.Ed.
orally
writing.
testimo-
or
Such
Gomez
error, question is
of non-constitutional
ny
law enforcement officers is
from federal
say
fair assurance”
whether we can
“with
evidence,
course,
substantial
substantially swayed
that verdict was not
required
was not
to believe it.
error).
Reyes,
phys-
As between Gomez and
404(b)
can
Because Rule
evidence
be so
ical evidence found
the search was am-
powerful
prejudicial, we have found
one
the cell
biguous.
agents
The
found
improper
drug
admission of other-acts
phones
billing
Güero had used. The
state-
despite
quite
evidence harmful
otherwise
phones
ments for all three
Güero had used
See,
strong
guilt.
e.g.,
Gomez,
phones
were addressed to
but the
Lee,
States v.
724 F.3d
982-83
Reyes’s
registered
were
under
name.
Cir.2013) (Rule 404(b) error was not harm-
really help
That evidence does not
decide
less
cocaine was found in trunk of
although
which one was Güero.
driving,
pack-
car
cocaine’s
defendant was
it,
on
aging
fingerprint
had defendant’s
majority’s strongest
The
evidence that
him
witness testified
defendant sold
telephone
comes from
Gomez
Güero
cocaine,
phone
records connected de-
calls between Romero and Güero after the
Miller,
witness);
fendant to
September 3 seizure of Romero’s car with
(erroneous
prior drug
701-02
admission of
September
the cocaine hidden in it. In a
despite
conviction was not harmless
sub- phone
p.m.,
call at 9:27
Güero described
guilt).
stantial evidence of
Even when
being
than
stopped
someone other
himself
404(b)
properly
evidence is admitted
but is by police,
exchange
ambiguous:
but the
improperly
propensity,
then
used
show
they following you
But
as
Romero:
were
we have found the error to be harmful.
well or not?
See,
Richards,
e.g.,
Romero: What did He was a sher- iff. Romero: they what? What did tell him or what? Eh, something, that if he had if Güero: Thеy just Güero: that he they — was— something, or weapons he had because give wanted him to permission them they supposedly looking were They to search his car. they —that weapon. someone who had a had seen him El Rey come out of over (Call 34800). 72 at No. Doc. 184-85 They here. him if gone asked he had agents stopped Reyes both Gomez and to the—to get tacos or what. What *21 September 3. Each could describe the oth- go did he there for? brother-in-law, exchange er as his so this Romero: Is that they seen the three of does not resolve the issue. us come out here? majority support The finds more from a Güero: Uh-huh. September
call at 9:29 a.m. on 4 but de- to if you, they Romero: And saw us all including scribes the conversation as more together, why don’t understand —I actually details than it did. Ac- specific why. happen you How did it to also? cording majority: to beg your pardon? Güero: I phone In a recorded call Septem- on Romero: You you also said that when retracing previ- ber the events of the came village, you over to the little day, ous Güero describes in the were searched. I don’t understand first person police stopped how the him as he why. from away
walked his conversation with Well, turning Güero: when I was Romero; happened we know that to Go- corner— mez, Reyes. not Earlier that same walking, right? Romero: You were phone call Romero asked Güero what Güero: Yes. happened Reyes, respond- and Güero 64171). (Call Doc. 72 at 189 No. A mo- person ed with an account in the third call, however, ment later in the same happened about what to his brother-in- Romero seemed to treat the car as Gue- Rey. law after the three men left El Reyes driving ro’s. was the car when actually give Ante at 864. Güero did not stopped agents. and taken explicit Romero such information about The interpret, context is difficult to timing. Although may he well have been talking Romero and Güero were still about referring stop to a previ- himself on the September the events of 3 and the seizure day, say although ous he did not so. And of the car: may asking Romero also well have been guys Romero: Those see each other ev- (which Reyes being Güero about stopped ery they once a while. were How
would course indicate Güero was doing they over there? are do- What Reyes), Reyes the name was never They ing? They plates. have mentioned between them. As translated over there. But personal plates from Spanish transcript, in the official guys doing that’s how those are it. key exchange went like this: understand, Then I Güero: from what Romero: It like your they they bring plates seems brother— those —when
your they happened bring brother-in-law —what when someone from over get person, when he came from Supposedly over there? He there. guy, right? they had another car from that that’s when come out. majority’s interpretation know whether the I don’t It can’t be. Imagine. Romero: strange, not this the adversarial test It’s would have withstood understand. they want? What failure to make government’s What did The dude. of trial. I know don’t they expecting? were also means appeal argument They wanted to fuck. what it in to rebut had an occasion Gomez never you also also since stop you maybe this court. and that? shops in there in went majority’s argu- making than Rather pardon? beg your Güero: I ment, tried to trial mean, Maybe know. I don’t Romero: I the errone- identity by emphasizing prove in, you go waiting they were 404(b) evidence. Doc. ously admitted I something. don’t or some house prosecutor finished 75 at 32-33. they have taken not that know. If closing argument of the opening segment this, dude. your just ear like of this possession by telling at 190-91.
Id. cocaine, pure much less quantity of user referring to Güero passage The first nearly shipments, and conspiracy than the *22 walking now seems being stopped while charged conspiracy the four weeks after that Güero strongest evidence the ended, identity, well as Gomez’s as showed to be the most that Gomez. While seems of mistake. Id. knowledge and absence I am exchange, the not likely reading of course, judge told the of the district And the serious Rule renders persuaded be used for all jury that the could evidence 404(b) harmless. error purposes. of those unwarranted three First, govern- the important, and most government both the emphasis by This that the argument the ment never made the is another reason judge and the trial significance the of majority makes about not evidence was admitting error pre- appellate Its briefs phone calls. harmless. only perfunctory the most harmless sented and made no mention of argument error thought the co- clearly prosecutors The Nor did the phone call. September than the powerful more caine evidence was Yes, at trial. point make this government they I think were majority’s theory. new out Güero government pointed possession in right. Evidence of cocaine on foot one of being stopped described especially case is damn- conspiracy cocaine hap- calls, something which is actually of probative if it is ing, even not Doc. 75 at 14-15. pened to Gomez. See deciding whether any dispute. issue in the con- not draw prosecutor But the did harmless, act do not as an error was Reyes and the stop trast between jury how the guess or try second majority is therefore stop of Gomez. an “whether have We ask would decided. interpreta- an finding harmless error juror prosecution’s find the average would tion persuasive less without significantly case jury. press before the did Miller, F.3d improper evidence.” majority’s interpretation of If the new at 700. presented phone calls been had majority’s Accordingly, treat- while trial, would have had occasion to Gomez 404(b) is a welcome issue ment of the was, no it. As it there was need. challenge law, I re- circuit’s on our improvement decisive, surely were if this evidence And finding that the dissent from spectfully taken full ad- prosecutors would I error was harmless. not, serious Rule They so we do not vantage of it. did reverse Gomez’s conviction and re- would a new trial.
mand for America,
UNITED STATES
Plaintiff-Appellee, Vargas,
Benito and Rodolfo SALINAS
Defendants-Appellants. 12-3769,
Nos. 13-1378.
United States of Appeals, Court
Seventh Circuit.
Argued April *23 Aug.
Decided
notes
fact to which the evi-
can be
linked to
plausibly
acts evidence
dence is directed need not be in dis-
purpose....
another
The Rule 402 re-
....
pute
ruling should be made on
[T]he
quirement of relevance and the unfair
the basis of such considerations as waste
balancing
of Rule 403
prejudice
inquiries
(see
prejudice
of time and undue
Rule
(internal
full
apply
quota-
still
with
force.”
403),
any general
rather
than under
re-
omitted)).
tion marks
only
that evidence
quirement
is admissible
then,
in
To summarize
when
if
in
dispute.”);
directed matters
Fed.
tent is not “at issue”—when the defendant
advisory
committee’s notes
R.Evid.
a general-intent
is
crime and
(“No
(1972)
mechanical solution is of-
meaningfully dispute
does not
intent —oth
fered.”). Moreover,
noted,
as we have
prove
er-act evidence is not admissible to
Supreme
specifically
Court has
endorsed
probative
intent because its
value will al
accepted
prosecution
“the
rule that the
ways
substantially outweighed by
be
any
prove
entitled to
its case free
contrast,
In
prejudice.
risk of unfair
when
the evi-
option
stipulate
defendant’s
involving spe
“at issue”-—in
intent is
cases
away.”
Chief,
dence
Old
519 U.S.
cific-intent crimes or because the defen
in