U.S. v. Trevino, 91-1737

• Decision Date: 21 October 1992
• Docket Number: No. 91-1737,91-1737
• Citation: 978 F.2d 1262
• Parties: NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. UNITED STATES of America, Plaintiff-Appellee, v. Crisanto TREVINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1262

978 F.2d 1262

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Crisanto TREVINO, Defendant-Appellant.

No. 91-1737.

United States Court of Appeals, Seventh Circuit.

Submitted Oct. 21, 1992. ^*

Decided Oct. 23, 1992.

Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

ORDER

A jury convicted Crisanto Trevino of numerous offenses, including possessing controlled substances (heroin and cocaine) with intent to distribute them. 21 U.S.C. § 841(a)(1). Over Trevino's objection, the government introduced evidence of prior similar acts under Federal Rule of Evidence 404(b). The similar act evidence consisted of the testimony of a drug addict named Cristobal Najar that, on several occasions in the months preceding Trevino's arrest, Trevino gave Najar heroin. Trevino maintains on appeal that the district court abused its discretion by admitting this evidence.

Rule 404(b) prohibits the government from introducing evidence of a defendant's prior crimes to prove the defendant's propensity to commit the crime charged. However, Rule 404(b) permits the introduction of such evidence in order to prove other things such as intent. For this to occur,

evidence of prior bad acts must satisfy a four-part test: (1) the proffered evidence must be relevant to a matter in issue other than the defendant's propensity to commit the charged crime; (2) the prior bad act must be similar in nature and close in time to the crime charged; (3) the prosecution must establish that the defendant in fact committed the prior bad act; (4) the probative value of the evidence must not be outweighed by its prejudicial effect.

United States v. Goodapple, 958 F.2d 1402, 1406 (7th Cir.1992). On appeal, Trevino contends that Najar's testimony fails parts 1 and 4 of this test. We analyze the evidence in light of part 1 first.

Possession with intent to distribute a controlled substance is a specific intent crime. Id. at 1407. As with the defendant in Goodapple, Trevino's distribution of heroin to Najar "was directly relevant to and probative of" Trevino's intent with regard to the charge of possession with intent to distribute. Id. In fact, the relevance of the prior acts is greater here than in Goodapple since Trevino's prior acts were closer in time to the crime charged than were the defendant's in Goodapple. Thus, the first part of the test is satisfied.

The fourth part concerns whether admission of the evidence is barred by Rule 403, i.e., whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Citing United States v. Rivera, 837 F.2d 906 (10th Cir.1988), Trevino maintains that "[i]n order for evidence to be admissible under Rule 404(b) there must be a substantial need for the probative value of the evidence provided for by the other crimes." Appellant's Br. 10. Thus, according to Trevino, Najar's testimony was inadmissible because the government had abundant proof that Trevino knew about the contraband in his basement.

We anticipated this argument in United States v. Leight, 818 F.2d 1297, 1302-03 n. 3 (7th Cir.), cert. denied, 484 U.S. 958 (1987). We also anticipated its main...