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10-2037 U.S. v. Alayeto

Third-party other acts and ‘reverse 404(b)’

In a drug trafficking case, evidence of a co-defendant’s post-arrest conduct was inadmissible because it did not necessarily negate evidence of defendant’s own intent or participation.

“Following Alayeto’s first proffer of reverse 404(b) evidence-Gonzalez’s three post-arrest incidents where females concealed contraband for him-the district court evaluated the probative value of the evidence and then weighed it under Rule 403. The district court found, and we agree, that ‘[i]f it is true that Mr. Gonzalez engaged in those activities after the date of this incident, it does not demonstrate that this particular defendant was forced to take drugs from Mr. Gonzalez and put it into her pants or body cavity.’ (Tr. at 285.) Nothing in Alayeto’s proffer tended to demonstrate that Gonzalez compelled her or any other female to take or conceal the drugs, let alone tended to prove that Gonzalez’s conduct around others necessarily negated her own intent. See Murray, 474 F.3d at 940 (discussing reverse 404(b) cases in which a third party’s pattern of criminal conduct was probative of the defendant’s criminal intent or participation). The other evidence at trial showed that she did not protest before concealing the bag. Indeed, she concealed the bag not just in her pants but rather in her vagina; such resolve strongly suggests her intimate involvement with the crime as opposed to mere unwilling participation. Further, the jury’s knowledge of the postarrest incidents would not tend to negate any inferences drawn from Alayeto’s familiarity with both the precise amount of contraband she concealed and her knowledge that Gonzalez was wanted for drug trafficking. The contested evidence may have demonstrated Gonzalez’s intent to deliver the narcotics, but it would not have been significantly probative of Alayeto’s intent. Their individual intents are not mutually exclusive. …

“Alayeto’s second proffer of reverse 404(b) evidence-Gonzalez’s recorded calls from jail and the subsequent arrest of his uncle-likewise suffered from a lack of probative value.”


10-2037 U.S. v. Alayeto, Eastern District of Wisconsin, Clevert, Jr., Ch. J, Kanne, J.

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