United States of America v. Hilda Alayeto

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 con-
viction for illegal possession with intent to distribute
crack cocaine. She argues that excluded evidence of her co-
defendant’s post-arrest conduct might have led a jury
to doubt her criminal intent and that its erroneous ex-
clusion impaired her constitutional right to present a
defense. Because the district court did not abuse its dis-
cretion in its evidentiary rulings, we affirm.

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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 conversa-
tion, 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 trans-
ported 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

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No. 10-2037 3
needed to be honest about whether someone threat-
ened 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 re-
covered from her; she told Rosa the police removed “like
32 grams” from her vagina at the station. She also men-
tioned 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 govern-
ment witnesses regarding Gonzalez and incidents of
his conduct. The district court limited her cross-examina-

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4 No. 10-2037
tion, holding that her questions called for hearsay re-
sponses.
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) pro-
vided 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 re-
sponded 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

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No. 10-2037 5
of her arrest. The court then ruled the proffered evi-
dence 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 inadmis-
sible 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.

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6 No. 10-2037
II. ANALYSIS
Alayeto presents two issues in her appeal. First, she
contends the district court abused its discretion by ex-
cluding 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 admis-
sible “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 substan-
tial 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

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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 de-
fense—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 pur-
poses. 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 de-
fendant’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 re-
garding 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

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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) evi-
dence.”). 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 hear-
say, 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 cor-
rectly 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 dem-
onstrate that Gonzalez compelled her or any other
female to take or conceal the drugs, let alone tended

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No. 10-2037 9
to prove that Gonzalez’s conduct around others neces-
sarily 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 involve-
ment with the crime as opposed to mere unwilling par-
ticipation. Further, the jury’s knowledge of the post-
arrest 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 traf-
ficking. The contested evidence may have demonstrated
Gonzalez’s intent to deliver the narcotics, but it would
not have been significantly probative of Alayeto’s in-
tent. 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 knowl-
edge. 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.

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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 Gonza-
lez’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 dis-
cretion in determining that Alayeto’s first category
of proffered evidence was not admissible.
Alayeto’s second proffer of reverse 404(b) evi-
dence—Gonzalez’s recorded calls from jail and the sub-
sequent 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 con-
stitutional right to present a defense. Alayeto, as a
criminal defendant, was unquestionably entitled to “a
meaningful opportunity to present a complete defense.”

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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.
12-17-10

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