Wednesday, May 27, 2009
In relevant part, Federal Rule of Evidence 404(b) provides that
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Usually, a prosecutor seeks to introduce Rule 404(b) evidence to prove that a criminal defendant committed the subject crime, but sometimes a defendant seeks to introduce so-called reverse-Rule 404(b) evidence to prove that somebody else committed the subject crime. In its recent opinion in United States v. Duran-Moreno, 2009 WL 1290010 (D.N.M. 2009), the United States District Court for the District of New Mexico addressed this latter scenario.
In Duran-Moreno, Ricardo Duran-Moreno was charged with possession with intent to distribute 500 or more grams of methamphetamine and possession with intent to distribute cocaine. Duran-Moreno was charged after large amounts of methamphetamine and cocaine were found hidden in the bumper of his Impala.The prior owner of that Impala was Santos Salazar, who had previously been convicted of possessing with intent to deliver methamphetamine in 2008. The State, knowing this fact, believed that Duran-Moreno would try to introduce evidence of Salazar's conviction to prove that the drugs found in the Impala belonged to Salazar and not him; consequently, it moved to preclude Duran-Moreno from introducing evidence of the conviction.
The United States District Court for the District of New Mexico disagreed, noting that most courts have allowed criminal defendants to introduce so-called reverse-Rule 404(b) evidence. Indeed, the court noted that just last year it had admitted such evidence in United States v. Moreau, 2008 WL 2229467 (D.N.M. 2008). Of course, the court noted that Duran-Moreno could not simply introduce Salazar's conviction as propensity character evidence, but it found that he could use the conviction to show Salazar had the intent, opportunity, ability, and know-how to place the drugs in the Impala-...a permissible purpose under rule 404(b). Indeed, the court noted that the Tenth Circuit has suggested, but not yet specifically held, that courts should more readily find reverse-Rule 404(b) evidence admissible than regular Rule 404(b) evidence because of the absence of the fear of an innocent man being convicted.