In U.S. v. Matthews, 2005 WL 1334341 (June 8, 2005), the Court (Tjoflat, Hill, Granade b.d.) reversed the defendant’s drug-trafficking conviction on the ground that evidence of a prior arrest was erroneously admitted in violation of Fed. R. Evid. 404(b).
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These cooperating witnesses testified that Matthews participated in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail, cooperating with the government.
The Court rejected the argument that wiretap evidence should have been excluded because the recordings were not sealed in accordance with 18 U.S.C. § 2518(8)(a). The Court noted that the recordings were sealed within two days of the expiration of the order authorizing interception, and held that this was a reasonable time within the meaning of the statute.
The Court also rejected the argument that one conversation among two conspirators in which Matthews’ name was mentioned should have been excluded because it was not in "furtherance of the conspiracy." The Court found that one could have concluded otherwise.
The Court also rejected the challenge to the sufficiency of the obstruction evidence. "The jury was, of course, free to infer that Matthews was merely passing on along news of [a former conspirator’s] unfortunate demise, reflecting on the fleeting nature of human existence, and sending greetings." But the jury could also have drawn other inferences from the references by Matthews in a letter to a conspirator about another conspirator’s execution when he began cooperating with the government.
Turning to the 404(b) issue, the Court rejected the government’s argument that evidence of an earlier arrest for drug trafficking could be introduced to show the defendant’s "intent" in the instant charged offense. The Court pointed out that the uncontradicted testimony of the cooperating witnesses was that Matthews had participated in significant drug trafficking activities. Had the jury believed these witnesses, intent would not have been at issue. Matthews could not have participated in these activities without the requisite criminal intent. The prior arrest, therefore, was introduced not to show intent, but to buttress the credibility of the cooperating witnesses by showing Matthews’ propensity for drug trafficking. This is precisely what Rule 404(b) prohibits.
The Court found that the error was not harmless, pointing out that the prosecutor relied heavily on the prior arrest in closing argument, as the "glue" that held its witnesses’ stories together.
