Case o' The Week: Good Case on Bad Acts, Rendon-Duarte & FRE 404(b)

The Ninth delivered an interesting opinion with mixed results on FRE 404(b) {bad acts evidence}, and on using "reckless" conduct to establish a USSG § 4B1.2 "crime of violence" predicate. United States v. Rendon-Duarte, __ F.3d __, No. 06-30200, Slip. Op. 3314 (9th Cir. Mar. 21, 2007) , decision available here.

Players: Opinion by ND Cal. District Judge Schwarzer.

Facts: Anchorage cops saw Rendon-Duarte buy what they thought was a handgun. Slip op. at 3345. They then saw him get into the passenger seat of his car, lean over, and appear to move something on the floor. Id. Rendon-Duarte’s girlfriend drove the car away; she was stopped by the cops. Id. The cops searched the car and found two loaded handguns under the car’s floor carpet in front of the passenger seat. Id. At trial, the girlfriend denied ownership of the guns. Id. Over defense objection the district court admitted FRE 404(b) [bad acts] evidence of two incidents where Rendon-Duarte had been in cars that had contained guns. Id.

Issue(s): “On appeal, [Rendon-Duarte] challenges the district court’s admission of evidence under Federal Rule of Evidence 404(b) of two prior incidents of gun possession to prove intent, knowledge and lack of mistake.” Id. at 3344.

Held: “The material fact at issue here was whether Rendon-Duarte had knowledge of and intent to possess the weapons found in his vehicle. The evidence of the prior acts established only that weapons were found in the cars he drove or rode in . . . . Because there was no evidence that Rendon-Duarte had knowing possession of the weapons at issue here, the admission of the prior-act testimony was an abuse of discretion.” Id. at 3347. [But, the panel continues to explain, the error was harmless given other evidence in the case]. Id. at 3348.

Of Note: As Jon Sands astutely notes in his earlier blog, Rendon-Duarte is interesting in its refusal to sanction the use of prior gun incidents as 404(b) evidence in a Section 922(g) trial. The case is troubling, however, for its finding that Alaskan “Assault in the Third Degree” is a categorical crime of violence under Section 4B1.2(a) of the guidelines. Id. at 3348. There was no objection to this prior at sentencing, so the panel undertakes plain error review. The panel held that the sentencing court plainly erred in relying solely on the factual description in the PSR to find the prior was a crime of violence. Id. at 3349. The Court salvages the sentence, however, with the cursed “affects substantial rights” prong of the Olano plain error analysis. Id. at 3349-50.

The Court in Rendon-Duarte (too) briefly dismisses the defense argument that reckless conduct should not qualify as a Section 4B1.2(a) “violent” offense. Id. For Rendon-Duarte, this meant a bump in the gun guideline. For another defendant, however, this casual embrace of “reckless” conduct as a § 4B1.2(a) “crime of violence” conviction could trigger the draconian Career Offender guidelines. A more thorough (though ultimately disappointing) discussion of reckless conduct and Section 4B1.2 can be found in United States v. Rutherford, 54 F.3d 370, 373-77 (7th Cir. 1995).

NB: Be sure to distinguish 18 USC § 16 “crimes of violence” (the definition used for aggravated felonies in immigration cases). That’s a different definition altogether from the guideline definition as issue here, and “reckless” conduct doesn’t cut it in the Section 16 context. See United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001).

How to Use: When faced with 404(b) evidence, flaunt the holding of Rendon-Duarte: if the present “material fact at issue” is the defendant’s knowledge, the prior bad acts have to show knowledge to be admissible. In this case, that meant the prior bad acts had to involve knowing possession of a gun – and they didn’t. This reasoning should apply to a drug case: a prior incident where a mule was caught around drugs shouldn’t be admissible in a later smuggling trial to show knowledge (at least, those bad acts wouldn’t be admissible under the logic of Rendon-Duarte).

For Further Reading: FRE 404(b) – “Bad acts” – is a bad rule. Few jurors can resist convicting someone who has had previous brushes with the law (whether the defendant’s been convicted or not), and in the real world everyone knows that FRE 404(b) limiting instructions are useless.

Maybe appellate courts are becoming more sensitive to the government’s routine abuse of this rule? AFPD Bill Theis posts a very thoughtful entry on the Seventh Circuit blog that describes an encouraging decision from his Circuit: United States v. Keefer Jones. Blog available here. As Bill speculates, maybe there’s a (welcome) new direction for 404(b)?

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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