UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 21-270 (JEB)

JANN JOUSTEN APONTE RIVERA,

Defendant.

MEMORANDUM OPINION

Jann Jousten Aponte Rivera is one of several Defendants allegedly involved in a wide-

ranging conspiracy to traffic narcotics from Puerto Rico into the District of Columbia and

Maryland between October 2019 and April 2021. He is also charged with shooting and killing a

woman named Shantay Butler in the course of that conspiracy. With trial set for late October,

the Government moves for leave to introduce evidence of two other bad acts in its case-in-chief:

(1) a Summer 2020 dispute over unpaid drug money in which Aponte Rivera allegedly held a

gun to a co-conspirator’s head; and (2) a December 23, 2020, robbery in Catano, Puerto Rico, in

which he allegedly shot and killed another individual with the assistance of a co-conspirator.

The Court will grant the Motion in substantial part. The handgun-assault incident shall be

admitted without limitation. Certain facts regarding the robbery-murder incident shall also be

admitted — provided, however, that the Government may not disclose to the jury evidence of the

killing itself, at least for now.

I. Background and Legal Standard

In May 2022, a grand jury returned a four-count superseding indictment against three

Defendants for multiple narcotics- and firearm-related offenses. Among them was Aponte

1 Rivera, who was charged with the following counts: Conspiracy to Distribute and Possess with

Intent to Distribute Five Kilograms or More of Cocaine, in violation of

(Count

I); Continuing Criminal Enterprise, in violation of

(a) and (e)(1)(A) (Count III);

and Causing Death Through the Use of a Firearm During and in Relation to a Drug Trafficking

Offense, in violation of

(c)(1)(A)(iii) and 924(j)(1) (Count IV). See ECF No. 47

(Superseding Indictment). The Government has now filed a Motion to admit the aforementioned

bad-acts evidence pursuant to Federal Rule of Evidence 404(b).

Rule 404(b) provides that “[e]vidence of any other crime, wrong, or act is not admissible

to prove a person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” Such evidence, however, is admissible for other purposes,

including “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2); see also United States v. Appiah,

, at *6 (D.D.C. June 25, 2020) (“[A]ny purpose for which bad-acts evidence is

introduced is a proper purpose so long as the evidence is not offered solely to prove character.”)

(quoting United States v. Miller,

(D.C. Cir. 1990)).

It is a threshold question whether the proffered evidence constitutes “any other” act, as

required to trigger Rule 404(b) — that is, whether the evidence is “intrinsic” or “extrinsic” to the

charged crime. United States v. McGill,

(D.C. Cir. 2016). Our Circuit has

rejected the rule embraced by other courts that evidence is intrinsic merely if it “completes the

story of the charged crime,” as “all relevant prosecution evidence explains the crime or

completes the story to some extent.”

(cleaned up). Intrinsic evidence, rather, “is limited to

acts that are ‘part of the charged offense’ itself or that are ‘performed contemporaneously with

the charged crime . . . if they facilitate the commission of the charged crime.’”

at 883

2 (quoting United States v. Bowie,

(D.C. Cir. 2000)). Where, as here, “the

indictment contains a conspiracy charge, uncharged acts may be admissible as direct [i.e.,

intrinsic] evidence of the conspiracy itself.” Id. at 881 (cleaned up).

Evidence intrinsic to the charged crime and extrinsic evidence that withstands scrutiny

under Rule 404(b) may nevertheless be barred by Rule 403 if the risk of “unfair prejudice”

associated with it — including the forbidden propensity inference — “substantially outweigh[s]”

its probative value. See McGill,

(“[E]vidence of other crimes or acts having a

legitimate nonpropensity purpose . . . may nevertheless contain the seeds of a forbidden

propensity inference[,] . . . [and thus] Rule 403’s balancing of prejudice and probativeness may

still bar the introduction of [the] evidence.”) (internal quotation marks omitted); United States v.

Straker,

(D.C. Cir. 2015) (similar). Rule 403’s “requirement that the danger

of unfair prejudice substantially outweigh probative value calls on [the court], in close cases, to

lean towards admitting evidence.” Straker, 880 F.3d at 589.

II. Analysis

A. Summer 2020 Handgun-Assault Incident

The Government first seeks to admit evidence of the handgun-assault incident primarily

on the ground that it is “intrinsic” to the charged conspiracy and thus not even subject to Rule

404(b). It alleges that at some time during the summer of 2020, Aponte Rivera traveled from

Puerto Rico to the D.C. area on behalf of co-defendant Rey Rivera Ruiz to meet with a co-

conspirator and, while there, threatened him with a gun during a dispute over unpaid drug

money. See ECF. No. 62 (Mot.) at 5. The Court agrees that this evidence is not subject to Rule

404(b) because it is part and parcel of the very drug conspiracy for which Aponte Rivera has

been indicted.

3 To begin, the incident occurred within the conspiracy period (October 2019 to April 1,

2021). In addition, using a firearm to coerce the payment of funds associated with the sale of

drugs plainly facilitates a conspiracy to traffic the same. See United States v. Edwards,

(D.D.C. 2012) (concluding that incident in which defendant “threatened a

co-conspirator with a gun under the belief that the co-conspirator had stolen a large sum of

money and several kilograms of cocaine” was intrinsic evidence of the conspiracy itself partly

because it “represented an attempt to protect both the object of (cocaine) and proceeds of

(currency) the conspiracy”). Although Defendant speculates that the assault could have occurred

“for any number of reasons” unrelated to the conspiracy, he does not meaningfully contest the

basic facts of what transpired. See ECF No. 76 (Def. Response) at 2.

Evidence of this incident, moreover, would not generate sufficient unfair prejudice to

warrant exclusion: “[T]he evidence, by its very nature, could not lead to an unfair inference that

Defendant is ‘prone’ to commit the crime charged because the [handgun assault is itself] alleged

to be part and parcel to the crime charged.” United States v. Lerma-Plata,

(D.D.C. 2013). Defendant’s conclusory assertion that this incident would “confuse” and

“mislead” the jury does not persuade the Court otherwise. See Def. Response at 2. The evidence

shall therefore be admitted without limitation.

B. December 2020 Robbery-Murder Incident

The Government also seeks to introduce evidence of the robbery-murder incident on

December 23, 2020. It concedes, as a preliminary matter, that the incident “does not appear to

have been in furtherance of the drug trafficking conspiracy” and is thus subject to Rule 404(b)’s

restrictions. See Mot. at 8. It contends, however, that the evidence is admissible for a raft of

non-propensity purposes.

Extrinsic bad-act evidence is admissible under Rule 404(b) only if

4 it is “probative of a material issue other than character” and passes muster under Rule 403.

Miller,

(citation omitted). The Court agrees that the robbery-murder incident is

relevant to several non-propensity purposes that bear on Defendant’s involvement in the drug-

trafficking conspiracy and Butler’s murder. It took place only two-and-a-half months after and

less than three kilometers from the place of Butler’s murder. See Mot. at 2, 7. Both murders

also involved the same co-conspirators: the same individual provided the gun Defendant used in

both, and the same individual picked up and dropped off Defendant from the scene of both

crimes. Id. at 7.

As the Government correctly notes, these similarities help to “demonstrat[e] the

relationship between the various co-conspirators, the modus operandi of the defendant, his access

to firearms, his common scheme or plan and motive, as well as his intent, to murder Shantay

Butler.” Id. at 8. The incident is probative of each of those issues independent of any inference

that Defendant has a propensity for murder. See, e.g., United States v. Mosquera-Murillo,

, 182–83 (D.D.C. 2015), aff’d,

(D.C. Cir. 2018) (concluding that

404(b) evidence was “probative of [co-conspirators’] specific pattern of partnering with each

other . . . to engage in conduct . . . that was substantially similar to the scheme for which the

defendants will be tried”); United States v. Bell,

(D.C. Cir. 2015) (concluding

that evidence of uncharged murder was “admissible to show use of and familiarity with

firearms”); see also United States v. Mathis,

(D.C. Cir. 2000) (“In a conspiracy

prosecution, the government is usually allowed considerable leeway in offering evidence of other

offenses to inform the jury of the background of the conspiracy charged, to complete the story of

the crimes charged, and to explain to the jury how the illegal relationship between the

participants in the crime developed.”) (cleaned up).

5 Whether such evidence survives Rule 403, however, is a closer question. Despite its

relevance to several material issues in this case, the robbery-murder incident undoubtedly

elevates the risk that the jury would improperly infer that Defendant has a propensity for murder

and is therefore guilty of Count IV. Cf. United States v. Coleman,

(D.C. Cir.

2009) (“[M]anifest prejudice can result when the jury is informed of a prior conviction that is

similar to the charged offense.”); United States v. Jackson,

, at *2 (D.D.C.

Dec. 2, 2021) (noting, in context of impeaching testifying defendant, that “danger of unfair

prejudice is enhanced” whenever impeachment evidence is crime “similar to the crime now

charged”) (quoting 28 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

6134 (2d ed.)). In addition, to introduce evidence of a crime as serious as murder cannot help

but give a jury reason to want to convict anyone before it.

Because the Government can still demonstrate Defendant’s relationship with co-

conspirators, access to firearms, and other material issues for which it seeks to admit this

evidence without specifically disclosing that a person was shot and killed — the most incendiary

and prejudicial detail — the Court will admit evidence of the incident, including the discharge of

the weapon, but not its result. See, e.g., Straker,

(affirming admission of 404(b)

evidence where district court “prevented the government from soliciting testimony about

particularly prejudicial details”); United States v. Morrow,

, at *31 (D.D.C.

Apr. 7, 2005) (noting that “features of the [potential 404(b)] incident may be shorn from

presentation” to mitigate prejudice). The parties are advised, however, that the Court may

broaden or narrow this restriction as the evidence and circumstances at trial require.

6 III. Conclusion

The Court, accordingly, will grant the Government’s 404(b) Motion, except that, as to the

robbery-murder incident, the Government may not disclose the result of the shooting. A separate

Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: October 12, 2023

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