In U.S. v. Matthews, 2005 WL 3291400 (Dec. 6, 2005), the Court (Tjoflat, Hill, Granade b.d.), on panel rehearing, vacated its prior published opinion which had 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). The Court otherwise reaffirmed its prior rejection of defendant’s other arguments.
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These witnesses testified that Matthews participating in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail.
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 noted that the evidence of the defendant’s 1991 conviction for drug trafficking was "relevant" to the charges for more recent drug trafficking, finding that a defendant’s not guilty plea places his intent at issue. The Court recognized that there was an eight-year gap between the prior conviction and the offenses charged in this case, but concluded that this did not make the prior evidence "too abstracted" to be sufficiently probative. The Court concluded that the evidence was not unduly prejudicial, finding that the government needed the evidence to establish the defendant’s intent.
[In a separate concurrence, Judge Tjoflat recognized that the 404(b) result was dictated by prior precedent, but called for the Court to reexamine this precedent, which had "turned Rule 404(b) on its head."].
