In United States v. Roldan, the Second Circuit (Carney, Park, and Robinson) vacated defendant Jey James Roldan Cardenas’s conviction for conspiracy to import cocaine into the United States, finding that the district court erred in excluding evidence related to Roldan’s defense at trial that he lacked the requisite criminal intent. The Second Circuit addressed whether the excluded evidence—testimony from a witness corroborating Roldan’s testimony bearing on his state of mind—was relevant, if its admission would run afoul of Federal Rule of Evidence 404(b), and if its exclusion was harmless. 

In the course of reversing, the Court determined that the evidence: (i) tended to make it more probable that Roldan did not have the requisite intent; (ii) did not implicate Rule 404(b); and (iii) was central to Roldan’s defense (and therefore that its exclusion was not harmless). The case underscores the breadth of evidence permitted to be presented as to a defendant’s state of mind and illustrates the distinction between propensity-based evidence and evidence bearing on intent. It is good to see the Circuit’s recognition that there is scarcely any trial right more important than the right to offer exculpatory evidence, and that its wrongful exclusion is reversible error when it impacts the verdict.

Background

In April 2021, Roldan worked as a low-level patrolman for the Colombian National Police (“CNP”). During one of his assignments Roldan met Jose Alfredo Aguas Oviedo, a fellow CNP officer assigned to work in the same region. Over the course of their work together, Aguas told Roldan that he earned additional money by providing drug-related information to the CNP’s anti-narcotics unit. Specifically, Aguas represented that he had a “source” who supplied him drug information, and that he provided such information to the CNP. Aguas explained that the CNP paid reward money to the source, of which the source would pay Aguas a percentage.

One month later an undercover informant for the DEA, Isidro Vargas, met Aguas under the guise of attempting to obtain and transport drugs to the United States. At the meeting, Vargas pressed Aguas to meet Aguas’s boss or a higher-ranking CNP official. In a subsequent meeting with Vargas shortly thereafter, Aguas brought Roldan—pretending to be a “major” in the CNP—to coordinate a plan to send cocaine through the Cartagena airport and, ultimately, to New York. Roldan, Aguas, and Vargas met and corresponded with each other about the terms of the deal and logistics of the plan. Eventually, on February 19, 2022, Aguas and Roldan were arrested in Colombia pursuant to provisional arrest warrants, and Roldan was extradited to the United States in October of 2022.

Trial

Roldan’s defense at trial was that he never intended to facilitate drug trafficking; instead, Roldan thought he was participating in an operation to set up a drug seizure by the CNP. Specifically, Roldan testified that Aguas told him that a Mexican drug trafficker—that is, Vargas—was attempting to move drugs through the Cartagena airport. Roldan further testified that Aguas described a plan in which Roldan would “pretend to be Aguas’s boss,” in order to persuade the trafficker (Vargas) to place the drugs in a warehouse, after which point the drugs would be seized by the CNP. Roldan also testified that Aguas said that he could keep a portion of the reward money. Thus, according to Roldan, his intent was never to facilitate drug trafficking, rather, he intended to assist the CNP with a sting operation.

 In order to corroborate Roldan’s account, the defense sought to introduce statements from a high-ranking official in the CNP’s anti-narcotics unit, Major Victor Alfonso Torres Valero, into evidence. Specifically, Roldan sought to introduce a statement from Torres’s interview with the government in which Torres stated that Aguas had twice previously given information to his subordinates leading to successful cocaine seizures. In the defense’s view, this evidence was relevant to Roldan’s state of mind because it corroborated Roldan’s testimony of what Aguas told him, i.e., that Aguas provided information leading to successful drug seizures. In other words, it was reasonable for Roldan to go along with Aguas’s scheme. Despite its relevance to the case, the government moved to exclude the statement on the basis that it constituted impermissible propensity evidence under Federal Rule of Evidence 404(b). The district court granted the government’s motion, stating that it did so “largely for the reasons stated in the government’s motion.” Roldan was ultimately convicted of conspiracy to import cocaine into the United States and sentenced to 165 months’ incarceration.

The Appeal: Conviction Reversed and Remanded

Roldan appealed his conviction primarily on the grounds that the district court improperly excluded Torres’s statement that Aguas had previously twice assisted the CNP’s anti-narcotics unit by providing information that led to drug seizures.

The Opinion

The Court began its analysis by weighing the relevance of the excluded evidence: that Aguas had twice provided information to the CNP’s anti-narcotics unit leading to successful drug seizures. The Court easily concluded that the evidence was relevant because it made Roldan’s testimony that Aguas had told Roldan he had previously facilitated drug seizures more credible, and Roldan’s defense “hinged almost entirely on the jury crediting his testimony that Aguas told him—and he believed—that the purpose of their operation was to set up a law enforcement seizure of the drugs.” In the context of this case, the evidence was important exculpatory evidence.

The Court also found that Rule 404(b) did not bar introduction of the evidence. The Court first observed that Rule 404(b) precludes otherwise relevant evidence of a crime, wrong, or act to show a person’s character if offered to show that a person acted in accordance with such character on a particular occasion. In rejecting the government’s argument that the evidence would “invite the jury to infer that Aguas acted in conformity with that prior good conduct in this case,” the Court explained that the relevance of the evidence was not connected to any inferences about Aguas’s conduct or intent. Instead, the evidence was relevant because it corroborated Roldan’s testimony about a conversation that bore on Roldan’s state of mind. Thus, the Court held, there was no propensity-based inference and Rule 404(b) was not implicated. The district court misapplied Rule 404(b) when it excluded the exculpatory evidence. 

Finally, the Court concluded that exclusion of the evidence was not harmless, noting that courts weigh several factors in the harmless error analysis, including the importance of the excluded evidence to the defense, whether the evidence was cumulative, and the overall strength of the prosecution’s case. Here, the Court found that evidence that Aguas had, in fact, provided information leading to successful drug seizures was central to Roldan’s defense because it corroborated Roldan’s testimony as to what Aguas told him and, therefore, bore directly on the jury’s assessment of his credibility and his state of mind: 

The main dispute at trial was whether Roldan intended to participate in a drug-trafficking conspiracy or instead believed he was assisting in a law enforcement seizure. Evidence that Aguas had, in fact, provided information leading to successful drug seizures tended to corroborate Roldan's testimony as to what Aguas told him, and thus bore directly on the jury's assessment of his credibility and state of mind.

The Court therefore found the error was not harmless but prejudicial, and vacated Roldan’s conviction.  

Commentary

The Second Circuit’s decision in Roldan—a relatively rare instance where the Court found that a district court exceeded its discretion in an evidentiary ruling and an even more rare reversal of a criminal conviction—elucidates two key interrelated principles on the issue of evidence of criminal intent.

First, the Court underscored that when intent is at-issue, otherwise inadmissible evidence may be introduced not for the truth of the matter but to show what a defendant believed. For example, in its relevance analysis the Court discussed a prior case in which it reversed exclusion of hearsay evidence that tended to enhance the defendant’s credibility where the defendant’s central defense was that he lacked the requisite intent.[1]  The Court explained that such a statement is admissible “without regard” to its truth, because what “mattered” was what the defendant believed. This illustrates that when intent is at-issue and a defendant’s credibility is on the line, permissible uses of otherwise inadmissible evidence may arise.

Second, the Court distinguished true propensity-based evidence from evidence related to a defendant’s state of mind. In its discussion rejecting the government’s argument that 404(b) barred the evidence, the Court noted that the theory of relevance about Roldan’s credibility—and, more specifically, his state of mind—did not rely on inferences about anyone acting in conformity with prior conduct. Again, the evidence sought to prove “Roldan’s state of mind,” and therefore the evidence was not propensity-based at all. The Court’s discussion once more emphasizes that when a defendant’s state of mind is disputed, the fact a statement was said (or heard) carries the day, not its underlying truth.

The Court’s decision, especially its harmless error analysis, is heartening. It is so easy after a conviction is in place, backed by a jury verdict, for a reviewing court to treat the analysis as if akin to a review pursuant to Rule 29, asking if there was still sufficient evidence to convict even if the excluded evidence had been admitted. Yet when there is a preserved error, it is the government’s burden to prove that “it is ‘highly probable that the error did not affect the verdict.’” Roldan (citing United States v. Dukagjini, 326 F.3d 45, 61 (2d Cir. 2003)). This is a demanding standard that asks the reviewing court to imagine a trial in which the excluded evidence was admitted, and then not to ask if its admission would have changed the outcome but if it is highly probable that the error did not change the outcome. Here, rather than focus only on the strength of the government’s case, the Court closely examined the nature of the defense and asked how the excluded evidence was “central” and “critical” to the defense theory. This case should be cited by defense counsel in other cases and hopefully other panels will give similar close scrutiny to the exclusion of exculpatory evidence.