In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2037

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HILDA ALAYETO,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 07-CR-243—Charles N. Clevert, Jr., Chief Judge.

ARGUED OCTOBER 22, 2010—DECIDED DECEMBER 17, 2010

Before KANNE, TINDER, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge. Hilda Alayeto appeals her conviction for illegal possession with intent to distribute

crack cocaine. She argues that excluded evidence of her codefendant’s post-arrest conduct might have led a jury

to doubt her criminal intent and that its erroneous exclusion impaired her constitutional right to present a

defense. Because the district court did not abuse its discretion in its evidentiary rulings, we affirm.
2 No. 10-2037

I. BACKGROUND

On the evening of July 4, 2007, Alayeto was riding

with Victor Gonzalez in his car. She was in the front

passenger seat. Two police officers, who knew Gonzalez

to be a gang member and drug trafficker, conducted a

traffic stop of the vehicle. The officers got out of their

unmarked car, approached Gonzalez’s vehicle with

pistols drawn, and ordered Gonzalez, Alayeto, and a

back seat passenger to show their hands.

In full view of the officers, Gonzalez reached across the

front seat and dropped a clear plastic bag containing a

white substance into Alayeto’s lap. Without conversation, hesitation, or protest, Alayeto leaned her pelvis

forward and shoved the bag down the front of her pants.

After Alayeto concealed the bag, Gonzalez unlocked the

doors.

The officers arrested Gonzalez and Alayeto and transported them to a police station where they were

searched and interviewed. A female officer recovered

the bag—which was later determined to contain 32.82

grams of a substance containing a detectable amount of

crack cocaine—from Alayeto’s vagina. Alayeto had been

restrained and under supervision from the time of her

arrest until the search, so it appears that Alayeto had

immediately concealed the contraband in her vagina

while in the passenger seat of Gonzalez’s car. When

Detective Harold Young informed Alayeto that she and

Gonzalez would be taken to the municipal jail, Alayeto

volunteered that the drugs belonged to her alone and

not to Gonzalez. Detective Young responded that she
No. 10-2037 3

needed to be honest about whether someone threatened her in order to force her to take the crack and claim

it, but Alayeto did not suggest she had been coerced.

Although the nature of their relationship is unclear

from the record, Alayeto and Gonzalez were very close,

having lived in the same house for more than five years.

Alayeto called Gonzalez’s mother, Milagros Rosa, from

jail a few days after their arrest; her phone calls from the

jails were recorded. Alayeto expressed her love and

concern for Gonzalez. Gonzalez’s uncle also participated

in the conversation, indicating that he would speak to a

lawyer on Alayeto’s behalf.

In a subsequent phone call to Rosa, Alayeto inquired

about Alayeto and Gonzalez’s joint property inside their

house, including money that should be found in an

article of clothing concealed inside a couch. Rosa then

asked Alayeto about the quantity of contraband recovered from her; she told Rosa the police removed “like

32 grams” from her vagina at the station. She also mentioned the arresting officers by name, stating she had

known they were looking for Gonzalez prior to the night

of their arrest.

A grand jury charged Alayeto and Gonzalez with

possession with intent to distribute five grams or more

of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B) and 18 U.S.C. § 2. Gonzalez pled guilty

before their scheduled trial, so Alayeto was tried

alone. Alayeto sought to elicit testimony from government witnesses regarding Gonzalez and incidents of

his conduct. The district court limited her cross-examina-
4 No. 10-2037

tion, holding that her questions called for hearsay responses.

In a series of proffers at the end of the government’s

evidence, Alayeto proposed to show that—while released

on bond after their July 4 arrest—Gonzalez had (1) provided Rosa approximately five grams of cocaine to hide

on her person when officers searched his residence,

(2) given a fourteen-year-old female passenger a large

amount of currency to hide on her person when

stopped for a traffic violation, and (3) given another

female juvenile a small quantity of cocaine and directed

her to hide it in her pants during yet another traffic

stop. The district court asked Alayeto to state her theory

of the proffered evidence’s admissibility. Alayeto responded the evidence would show that Gonzalez

acted alone on the date of their arrest and that Alayeto

did not aid and abet Gonzalez’s possession with intent

to distribute.

The district court, on the government’s objection, ruled

Alayeto could not introduce the proffered evidence

based on several Federal Rules of Evidence. The court

first ruled that the officers from whom Alayeto intended

to elicit testimony of these incidents lacked personal

knowledge of the incidents. The court then noted that

the proffered propensity evidence would not appear to

fall within the exceptions to Rule 404(a)’s bar against

attempts to prove that actions conformed to a person’s

character. The court also questioned the relevance of

the evidence, as the incidents occurred after Alayeto’s

arrest and could shed little light on her intent at the time
No. 10-2037 5

of her arrest. The court then ruled the proffered evidence inadmissible under Rule 403, as its negligible

probative value was significantly outweighed by the

consumption of time and the delay of the trial inherent

in securing testimony from competent witnesses on

such ancillary issues. Alayeto responded that evidence

of the incidents should be admitted under Rule 404(b),

but the district court again noted that the incidents

lacked relevance.

Alayeto next proposed to introduce Gonzalez’s phone

calls from jail in her case in chief. She suggested that the

recorded calls would show that Gonzalez conducted

trafficking activities through his uncle while in jail, thus

demonstrating that Alayeto was not a participant in

Gonzalez’s trafficking. The government again objected.

The district court ruled the evidence inadmissible,

finding the calls to be irrelevant to Alayeto’s case, to be

hearsay not subject to any exception, and to be inadmissible under Rule 403.

Alayeto moved for a mistrial on the grounds of the

evidentiary exclusions. The court denied her motion,

finding that its evidentiary rulings did not deprive her

of due process or the opportunity to present evidence

supporting her theory of defense. The jury then found

Alayeto guilty after the two-day trial. The district court

later sentenced Alayeto to sixty months’ imprisonment

and a subsequent four-year term of supervised release.

She timely appealed her conviction.
6 No. 10-2037

II. ANALYSIS

Alayeto presents two issues in her appeal. First, she

contends the district court abused its discretion by excluding evidence of her co-defendant’s post-arrest

conduct that would have cast reasonable doubt on her

intent. Second, she contends those evidentiary rulings

infringed her constitutional right to present a defense

during her criminal trial. Both issues turn on Alayeto’s

argument that the excluded evidence constituted admissible “reverse 404(b)” evidence that would have led

to her acquittal.

We review the district court’s decisions to exclude

Alayeto’s proffered evidence for an abuse of discretion.

United States v. Jones, 600 F.3d 847, 853 (7th Cir. 2010).

We will not find error in the district court’s evidentiary

rulings unless the record is devoid of evidence on

which it could have based those rulings. Agushi v.

Duerr, 196 F.3d 754, 759 (7th Cir. 1999). In addition, we

will not reverse a conviction for erroneous exclusion

of reverse 404(b) evidence unless the ruling had substantial influence on the jury. United States v. Reed, 259 F.3d

631, 634 (7th Cir. 2001). We review de novo, however,

the question of whether the evidentiary ruling infringed

upon a defendant’s constitutional rights. See United

States v. Stark, 507 F.3d 512, 515 (7th Cir. 2007).

Alayeto argues that, had the jury been made aware of

Gonzalez’s post-arrest conduct, it might have inferred

that females in his company do not have the intent to

deliver contraband thrust on them by Gonzalez. Based

on that inference, the jury might then have had
No. 10-2037 7

reasonable doubt that she had any criminal intent on

the date of her arrest. She therefore contends that the

evidence of his post-arrest conduct—which was to be

the only evidence supporting her theory of defense—should have been admitted pursuant to Fed. R.

Evid. 404(b).

While admission of propensity evidence is generally

prohibited, United States v. Murray, 474 F.3d 938, 939

(7th Cir. 2007), Rule 404(b) allows the introduction of

an individual’s other acts for a variety of other purposes. Fed. R. Evid. 404(b) (“Evidence of other crimes,

wrongs, or acts . . . may, however, be admissible for

other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence

of mistake or accident”). Rule 404(b) is most often used

by prosecutors to introduce evidence of a criminal defendant’s conduct that is not part of the charged crimes,

but which is probative of the defendant’s motive, intent,

or identity with regard to the charged crime. Reed, 259

F.3d at 634. Criminal defendants, however, may also use

Rule 404(b) to bolster their defenses by making use of

what is known as “reverse 404(b)” evidence. Id. Under

Rule 404(b), Alayeto may introduce evidence regarding Gonzalez’s other crimes or conduct to support

her defense “if it tends, alone or with other evidence, to

negate [her] guilt of the crime charged against [her].”

Agushi, 196 F.3d at 760.

According to Alayeto, evidence of Gonzalez’s post-arrest

conduct would have supported her theory of defense

and thus likely would have negated her guilt on the
8 No. 10-2037

narcotics charge. She argues the evidence should have

been admitted because district courts should be less

discriminating in admitting reverse 404(b) evidence than

in admitting evidence proffered by the prosecution. See

United States v. Seals, 419 F.3d 600, 607 (7th Cir. 2005)

(“[T]he defense is not held to as rigorous of a standard

as the government in introducing reverse 404(b) evidence.”). She nevertheless concedes that its admission is

still constrained by the other Federal Rules of Evidence.

For example, the proffered reverse 404(b) evidence must

be relevant, United States v. Walton, 217 F.3d 443, 449-50

(7th Cir. 2000), must not constitute inadmissible hearsay, United States v. Della Rose, 403 F.3d 891, 902 (7th Cir.

2005), and must survive the balancing of competing

considerations under Rule 403, United States v. Wilson,

307 F.3d 596, 601 (7th Cir. 2002). The district court correctly relied on each of these rules in its evidentiary

rulings below.

Following Alayeto’s first proffer of reverse 404(b)

evidence—Gonzalez’s three post-arrest incidents where

females concealed contraband for him—the district court

evaluated the probative value of the evidence and

then weighed it under Rule 403. The district court

found, and we agree, that “[i]f it is true that

Mr. Gonzalez engaged in those activities after the date

of this incident, it does not demonstrate that this

particular defendant was forced to take drugs from

Mr. Gonzalez and put it into her pants or body cavity.”

(Tr. at 285.) Nothing in Alayeto’s proffer tended to demonstrate that Gonzalez compelled her or any other

female to take or conceal the drugs, let alone tended
No. 10-2037 9

to prove that Gonzalez’s conduct around others necessarily negated her own intent. See Murray, 474 F.3d at

940 (discussing reverse 404(b) cases in which a third

party’s pattern of criminal conduct was probative of the

defendant’s criminal intent or participation). The other

evidence at trial showed that she did not protest

before concealing the bag. Indeed, she concealed the

bag not just in her pants but rather in her vagina;

such resolve strongly suggests her intimate involvement with the crime as opposed to mere unwilling participation. Further, the jury’s knowledge of the postarrest incidents would not tend to negate any

inferences drawn from Alayeto’s familiarity with both

the precise amount of contraband she concealed and

her knowledge that Gonzalez was wanted for drug trafficking. The contested evidence may have demonstrated

Gonzalez’s intent to deliver the narcotics, but it would

not have been significantly probative of Alayeto’s intent. Their individual intents are not mutually exclusive.

Pursuant to Rule 403, the district court next weighed

this negligible probative value against considerations

of delay, waste of time, and confusion of the issues

before the jury. The court correctly noted that the trial

would have to be delayed to procure witnesses

competent to testify about the incidents because the

available witnesses lacked the requisite personal knowledge. Despite Alayeto’s arguments to the contrary, there

was also a danger that the jurors would be distracted

from the central issue in the case—Alayeto’s intent—by

prolonged discussions of Gonzalez’s post-arrest activities.
10 No. 10-2037

Neither this risk of confusion nor the potential for

delay would have substantially outweighed reverse

404(b) evidence of significant probative value. But Gonzalez’s post-arrest conduct had minimal relevance, if any.

Given the trial judge’s “ability to gauge the impact of

the evidence in the context of the entire proceeding,”

United States v. Vargas, 552 F.3d 550, 554 (7th Cir. 2008),

we find that the district court properly exercised its discretion in determining that Alayeto’s first category

of proffered evidence was not admissible.

Alayeto’s second proffer of reverse 404(b) evidence—Gonzalez’s recorded calls from jail and the subsequent arrest of his uncle—likewise suffered from a

lack of probative value. The district court also concluded

that the calls were inadmissible hearsay. Alayeto’s only

response to that conclusion is that the calls occurred

within the conspiracy period charged against Gonzalez

in the same indictment naming Alayeto in a joint count.

Yet the indictment’s only count naming Alayeto

does not involve conspiracy charges, and Alayeto never

developed any argument for admitting the evidence

under Rule 801(d)(2)(E) or any other Rule. Accordingly,

the district court did not abuse its discretion by ruling

this evidence also inadmissible.

Having found that the district court did not err in its

evidentiary rulings, we turn briefly to Alayeto’s

second issue—that the rulings deprived her of her constitutional right to present a defense. Alayeto, as a

criminal defendant, was unquestionably entitled to “a

meaningful opportunity to present a complete defense.”
No. 10-2037 11

Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting

Crane v. Kentucky, 476 U.S. 683, 690 (1986)). As the

Supreme Court reiterated in Holmes, however, judges

may exclude marginally relevant evidence and evidence

posing an undue risk of confusion of the issues without

offending a defendant’s constitutional rights. Id. at 326-

27. We find that the evidence Alayeto sought to

introduce could not have played a major role in casting

doubt on her guilt and that the district court did not err

by excluding it. Accordingly, its exclusion did not violate

Alayeto’s constitutional right to present a complete

defense. See Wilson, 307 F.3d at 601.

III. CONCLUSION

Because the district court’s evidentiary rulings

were not erroneous and did not deprive Alayeto of any

constitutional right, we AFFIRM Alayeto’s conviction.

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