United States v. Carrillo
981 F.2d 772 (1993)

  • Alonzo was an undercover cop.  He bought a balloon filled with drugs from a guy named ‘Tito’ on a street corner and then walked away.
  • Later, he received information that ‘Tito’ was a guy named Carrillo.  He identified a photo of Carrillo as the guy who sold him drugs.
  • Carrillo was arrested and charged with selling drugs.
    • Carrillo argued that it was a case of mistaken identity.
    • Alonzo had participated in several hundred undercover drug buys, and once has misidentified a seller.
  • At trial, Carrillo filed a motion to exclude other evidence of criminal activity, but the judge ruled that if Carrillo wanted to use the defense of mistaken identity, then the prosecution could use details of prior offenses to show that Carrillo was the seller.
  • At trial, Carrillo argued that he was several blocks away when the drug deal happened.  In response, the prosecution brought forward two police officers (Garcia and Peters) to testify that they had seen Carrillo selling drugs.
    • Peters testified that he saw Carrillo selling balloons filled with drugs.
    • Carrillo objected on the grounds that evidence of an extrinsic act was inadmissible.
  • The Trial Judge allowed the testimony to be admitted under FRE 404(b).
    • FRE 404 (b) says that, “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
  • Carrillo was convicted of selling drugs. He appealed.
  • The Appellate Court reversed and remanded for a new trial.
    • The Appellate Court found that there was a two part test to determine if an extrinsic act was admissible under FRE 404(b).
      • First, it must be determined that the extrinsic offence evidence is relevant to an issue other than the defendant’s character.
      • Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice, and meet the requirements of FRE 403.
    •  The Appellate Court found that, under FRE 404(b) prior extrinsic offenses are only admissible if they bear such a high degree of similarity as to make it as the defendant’s handiwork.
      • Garcia and Peters failed to corroborate any unique or uncommon elements of the transaction.  Therefore, all they did was show that Carrillo had acted in conformity of common drug dealing procedures.  That is not enough to satisfy FRE 404(b).
        • Lots of people sold drugs in that area, and lots of people sold drugs in balloons, so all Garcia and Peters’ testimony did was raise issues of Carrillo’s character.  It did not help to prove identity.