Evidence of murder committed in furtherance of drug conspiracy is not inadmissible under Rule 404(b) as evidence of other crimes, wrongs, or acts

EVIDENCE/SENTENCING United States v. Portillo-Quezada, No. 05-3102, ___ F.3d ___ (10th Cir. Nov. 29, 2006)(Kansas). Appeal of conviction and sentence for conspiracy to distribute methamphetamine and possession of firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 2, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii), and 18 U.S.C. § 924(c)(1)(A). HELD: (1) District court did not abuse discretion in admitting murder evidence as direct proof of drug conspiracy and defendant’s willingness to use violence to ensure conspiracy’s success. Evidence that defendant participated in uncharged murder related to victim’s failure to pay debts owed to conspiracy and victim’s disclosure of defendant’s drug activities to police was not barred by Rule 404(b) of Federal Rules of Evidence as impermissible evidence of other crimes, wrongs, or acts. Rule 404(b) does not apply to testimony offered as direct evidence of charged crimes. In conspiracy prosecution, uncharged acts committed in furtherance of charged conspiracy are themselves part of act charged. Such evidence is therefore intrinsic to crime and simply does not implicate requirements of Rule 404(b). Conduct which occurs during life of conspiracy and is part of same is direct evidence of conspiracy and therefore not subject to Rule 404(b). (2) Where defendant’s statutory exposure to punishment has not changed, sentencing under non-mandatory sentencing guideline regime established by United States v. Booker, 543 U.S. 220 (2005), does not amount to ex post facto judicial decision making in violation of the Due Process Clause. Read the opinion here.