It Wasn’t Me: Third Circuit Finds That District Court Properly Precluded Reverse-404(b) Evidence In Carjacking Appeal
A little while ago, I posted an entry about a recent opinion in which the United States District Court for the District of New Mexico noted that the Tenth Circuit has suggested, but not yet specifically held, that courts should more readily find reverse-Rule 404(b) evidence admissible than regular Rule 404(b) evidence because of the absence of the fear of an innocent man being convicted. The position of the Tenth Circuit is not anomalous, and, indeed, many courts have held what the Tenth Circuit has merely suggested. But, as the recent opinion of the Third Circuit in United States v. Donzo, 2009 WL 1452043 (3rd Cir. 2009), makes clear, defendants are not automatically entitled to introduce reverse-Rule 404(b) evidence.
In relevant part, Federal Rule of Evidence 404(b) provides 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.
Usually, a prosecutor seeks to introduce Rule 404(b) evidence to prove that a criminal defendant committed the subject crime, but sometimes a defendant seeks to introduce so-called reverse-Rule 404(b) evidence to prove that somebody else committed the subject crime. That was the case in Donzo.
In Donzo, Musa Donzo was convicted of attempted carjacking and knowingly carrying a firearm in relation to a violent crime after a carjacking in Bensalem, Pennsylvania in September 2006. What jurors did not hear during Donzo’s trial was that a witness (mis)identified Donzo as the person who committed a carjacking approximately twenty miles away from the September carjacking on October 2, 2006. At the time of this latter carjacking, Donzo was still in custody based upon the September carjacking, and he sought to introduce evidence of this misidentification to prove that he was also misidentified in connection with the September carjacking.
The district court precluded Donzo from presenting this misidentification evidence, and the Third Circuit agreed, even though it had allowed for the admission of such reverse-Rule 404(b) evidence in United States v. Stevens, 935 F.2d 1380 (3rd Cir. 1991), to prove misidentification (i.e., the absence of identity). The reason? According to the court, in Stevens, the two crimes were extremely similar, whereas in Donzo,
Donzo failed to meet the threshold of Rule 401 and 403. He sought to introduce evidence that a victim of a carjacking approximately twenty miles away from the instant offense had mistakenly selected Donzo from a photo array for a crime committed while Donzo was in the custody of authorities. Donzo established little evidence of similarity in the two crimes, other than both crimes involving a carjacking. Further, Donzo did not seek to introduce the evidence to prove someone else may have committed the instant offense, but sought to use it as proof that misidentifications can occur.
The fact that Donzo was misidentified for a moderately comparable crime has no bearing on whether he committed the instant offense in which his identification was corroborated by substantial evidence. Therefore, the district court did not abuse its discretion in excluding
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