## Facts

- A federal grand jury indicted members of a Milwaukee cocaine distribution ring; Diane Blas agreed to cooperate with the government.
- Blas informed authorities that she and her husband sold cocaine to Dennis Torres and described his involvement in drug-related events; Torres learned Blas was cooperating and had implicated him.
- On March 5, 1991, Torres entered Blas’s family grocery store seeking Blas; when told she was not present, he became agitated and used vulgar, menacing language.
- Torres threatened to kill Blas for naming him to authorities and also threatened to harm Blas’s father (Juan Glarza) and destroy the store.
- Torres was charged with threatening a federal witness in violation of 18 U.S.C. § 1513.
- Over objection, the district court admitted two prior violent incidents (1989) under Federal Rule of Evidence 404(b) to show intent:
  - A car-wash confrontation where Torres shot at a man he believed stole his television.
  - Evidence connecting Torres to a shooting following a street fight, including a revolver found in his car and a magazine matching ammunition recovered at the scene.
- The jury was instructed to consider the prior-acts evidence only on the question of Torres’s intent, not as proof of bad character.
- Torres was convicted; the district court departed upward from the Sentencing Guidelines and imposed an 85-month sentence.

## Issues

1. Whether the district court erred under Federal Rule of Evidence 404(b) and Rule 403 by admitting evidence of Torres’s prior violent acts to prove intent to retaliate against a federal witness.
2. Whether the district court abused its discretion by departing upward from the Sentencing Guidelines in imposing an 85-month sentence.

## Decision

- The Seventh Circuit affirmed the conviction and sentence.
- The court held the prior-acts evidence was properly admitted under Rule 404(b) to prove intent rather than propensity.
- The court held the evidence’s probative value on intent was not substantially outweighed by unfair prejudice, particularly given similarity, temporal proximity, and limiting instructions.
- The court held the upward departure was justified and not an abuse of discretion.

## Legal Principles

- Rule 404(b) permits admission of other-act evidence for a non-propensity purpose, including proving intent, so long as the evidence is sufficiently related to the charged conduct and supported by adequate proof.
- In assessing admissibility of other acts, courts consider whether the evidence targets a matter in issue (not character), whether the acts are similar and close enough in time to be relevant, whether there is sufficient evidence the defendant committed the acts, and whether Rule 403 balancing favors admission.
- Violent prior acts may be admissible to show retaliatory intent where the charged offense requires proof of intent to retaliate and the prior acts reflect retaliation for perceived wrongs.
- A clear limiting instruction directing the jury to consider other-act evidence only for intent weighs against a finding of unfair prejudice under Rule 403.
- An upward Guidelines departure is permissible when the sentencing court identifies legally valid reasons, supported by the record, showing the guideline range does not adequately account for the seriousness of the offense conduct and relevant offender characteristics, and the departure is reasonable.

## Conclusion

The Seventh Circuit upheld the admission of prior retaliatory violence to prove intent in a federal witness-retaliation prosecution and affirmed an upward sentencing departure where the district court reasonably found the guideline range understated the seriousness of explicit threats against a cooperating witness and the defendant’s history of retaliatory violence.


United States v. Torres, 977 F.2d 321 (7th Cir. 1992)