Trial Court Should Have Let Defendants' 404(b) Evidence In

U.S. v. Montelongo, 2005 WL 2033637 (8/24/05) - An excellent case on "reverse 404(b)" and the right to cross-examine. The defendants were taking a truck cross country for a Mr. Gomez. At a border patrol checkpoint, duffle bags of marijuana were found under a mattress in the sleeping portion of the cab. Each defendant contended that Mr. Gomez alone or in concert with the other defendant was responsible for the marijuana. Mr. Gomez testified there was no marijuana in the truck when he gave it to the defendants. The d.ct. refused to allow the defense to cross-examine Mr. Gomez about the fact that a few months before the marijuana was found in this case duffle bags of marijuana were found in the sleeping compartment of a truck owned by Mr. Gomez. The drivers in that case never implicated Mr. Gomez. The 10th ruled that when defendants want to introduce 404(b) evidence, its admissibility is determined by comparing the probative value against considerations such as undue waste of time and confusion of the issues, not prejudice to the government or the witness. In this case, the similarities and temporal proximity of the incidents gave the prior incident probative value that outweighed any contrary considerations. The time factor was minimal and the evidence wouldn't distract the jury but would actually highlight the central issue of the case---namely, which man was responsible for the contraband. Evidence Rule 608(b), relied upon by the d.ct., was inapplicable because the 404(b) evidence was not used to attack Mr. Gomez's character for truthfulness. The d.ct.'s exclusion of the evidence violated the Confrontation Clause because it precluded an entire relevant area of cross-examination. The government could not prove the error was harmless beyond a reasonable doubt. In reaching that conclusion, the 10th rejected the government's claim that the excluded evidence would only have shown Mr. Gomez was in on the deal with the defendants, noting that the government's theory at trial was that Mr. Gomez had nothing to do with the marijuana.