USA v. MURILLO et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v. 	CASE NO. 3:25cr178-MCR
MATTHEW J MURILLO,
Defendant.
_________________________________/
ORDER
Defendant 	Matthew J. Murillo is charged 	in 	a four-count superseding
indictment 	with 	participating 	in 	a 	drug 	trafficking 	conspiracy, 	possessing
methamphetamine with intent to distribute, possessing a firearm in furtherance of
the drug trafficking crimes, and possessing a firearm and ammunition while knowing
he was a convicted felon.1 ECF No. 62. The Government has filed a Rule 404(b)
Notice of its intent to introduce at trial evidence of two 2021 Florida convictions.
See Fed. R. Evid. 404(b). 	Murillo objects and seeks to exclude the Rule 404(b)
evidence. 	The Court has reviewed the Parties’ arguments and the record, as
supplemented by the Government, and overrules the objection.
1 Count Four, possession of a firearm by a convicted felon, lists three prior felony convictions—a
2018 Nevada conviction of possessing, receiving, or transferring a stolen vehicle and two 2021
convictions involving drug possession, possession of a firearm by a convicted felon, and
possession of a short-barreled rifle.
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The Government intends to admit certified records documenting the following
state court convictions to show Defendant’s intent, knowledge, and absence of
mistake or lack of accident:
(1) October 8, 2021––a conviction for possession of a firearm by a convicted
felon, possession of controlled substance (two counts), possession of drug
paraphernalia, no vehicle registration, and an expired driver’s license,
filed in the Circuit Court in and for Escambia County, Florida, Case No.
2020-CF-4926A, and
(2) October 8, 2021––a conviction for possession of a firearm by a convicted
felon from another state, possession of a short-barreled rifle, possession of
a controlled substance, and possession of a firearm with altered or
removed serial numbers, filed in the Circuit Court in and for Escambia
County, Florida, Case No. 2021-CF-2344A.
See ECF No. 55. Murillo was sentenced to four years in prison.
Murillo seeks to exclude the evidence, arguing that the prior convictions
amount to improper character evidence and the probative value of this evidence is
outweighed by its prejudicial impact, even with appropriate instructions. 	Murillo
also argues that the Notice is technically deficient due to the Government’s failure
to include an adequate explanation for how this evidence will be used. The Court
disagrees.
Under Rule 404(b), evidence of other crimes is inadmissible to prove that a
defendant acted in conformity with his character but are admissible for other
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purposes, 	“such 	as 	proving 	motive, 	opportunity, 	intent, 	preparation, 	plan,
knowledge, identity, absence of mistake, or lack of accident.” 	Fed. R. Evid.
404(b)(1) & (2). It is beyond dispute that the Eleventh Circuit views this as “a rule
of inclusion” and cautions that Rule 404(b) evidence “should not be lightly excluded
when it is central to the prosecution’s case.” 	United States v. Booker, 136 F.4th
1005, 1013 (11th Cir. 2025) (internal quotations omitted); see also United States v.
Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008) (stating the rule of inclusion applies
unless the evidence “tends to prove only criminal propensity” (internal quotation
omitted)). 	That 	said, 	the 	district 	court 	exercises 	considerable 	discretion 	in
determining the admissibility of Rule 404(b) evidence.2 The Court applies a three-
part test, considering: (1) whether the act is relevant to an issue other than the
defendant’s character; (2) whether there is sufficient evidence for a jury finding, by
a preponderance of the evidence, that the defendant committed the act; and (3)
whether the probative value of the evidence is substantially outweighed by the
2 Citing out-of-circuit cases, Murillo contends that the Court should exercise discretion to apply a
stricter test for admissibility than the traditional liberal rule of inclusion. See United Sates v.
Gomez, 763 F.3d 845 (7th Cir. 2014); United States v. Smith, 725 F.3d 340 (3d Cir. 2013). The
Court recognizes that there is considerable discretion to be exercised within the analysis but also
hews close to the Eleventh Circuit’s long-established and often-repeated view that Rule 404(b) is
a rule of inclusion. See, e.g., Booker, 136 F.4th at 1013.
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danger of undue prejudice or other Rule 403 concerns.3 United States v. Edouard,
485 F.3d 1324, 1344 (11th Cir. 2007).
First, Murillo’s prior convictions are relevant. 	A defendant who pleads not
guilty “makes intent a material issue, imposing a substantial burden on the
government to prove intent.” United States v. Delgado, 56 F.3d 1357, 1365 (11th
Cir. 1995). 	Relevance is determined by comparing the respective state of mind
requirements for the prior crimes and the charged offenses. 	Id.; United States v.
Cenephat, 115 F.4th 1359, 1366 (11th Cir. 2024) (“Where the state of mind required
for the charged and extrinsic offenses is the same, the first prong of the Rule 404(b)
test is satisfied.” (internal quotation omitted, alteration accepted)), cert. denied, 145
S. Ct. 1340 (2025). 	The knowledge and intent required for the prior firearm and
drug crimes (i.e., knowledge and intent to possess a firearm, ammunition, and drugs)
are not only comparable, they are the same knowledge and intent required for the
current charges, despite the slight differences between the prior crimes and the actual
3 The evidence must satisfy Rule 403, which allows the exclusion of relevant evidence only “if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403. In reviewing evidence under Rule 403, the
Eleventh Circuit instructs courts to ordinarily strike the balance in favor of admissibility, viewing
the evidence “in a light most favorable to its admission, maximizing its probative value and
minimizing its undue prejudicial impact.” 	United States v. Edouard, 485 F.3d 1324, 1344 n.8
(11th Cir. 2007) (quoting United States v. Brown, 441 F.3d 1330, 1362 (11th Cir. 2006)).
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crimes currently charged. 	See, e.g., Cenephat, 115 F.4th at 1366 (identifying the
existence of “a logical connection between a convicted felon’s knowing possession
of a firearm at one time and his knowledge that a firearm is present at a subsequent
time” (internal quotations omitted)); United States v. Matthews, 431 F.3d 1296, 1311
(11th Cir. 2005) (stating, “circuit precedent regards virtually any prior drug offense
as probative of the intent to engage in a drug conspiracy”); United States v. Butler,
102 F.3d 1191, 1196 (11th Cir. 1997) (finding relevant “evidence of prior personal
drug use to prove intent in a subsequent prosecution for distribution of narcotics”).
The first prong of the Rule 404(b) analysis is met.4
The second prong requires consideration of whether a jury could find by a
preponderance of evidence that Murillo committed the other crimes. In light of the
Government’s supplemental submission of the Sentencing Recommendation, signed
by Murillo, the evidence does present a factual basis from which a jury could find
by a preponderance of the evidence that he committed the acts. See United States v.
Green, 873 F.3d 846, 866 & n.11 (11th Cir. 2017) (noting Florida’s procedures for
a nolo plea require a factual basis but requiring the Government in the Rule 404(b)
4 The prior traffic misdemeanors listed in the evidence, however, have no probative value as to
Murillo’s intent and knowledge for purposes of the drug and firearm charges. 	Therefore, the
Government is required to redact them as irrelevant.
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context to show that the requirements actually satisfy the preponderance of the
evidence standard); see also United States v. Weathers, Case No. 3:18cr16, ECF No.
42 (N.D. Fla. July 5, 2018) (accepting a Sentencing Recommendation as sufficient
proof of the factual basis).
Murillo also argues that the prejudicial impact of these prior convictions
outweighs their probative value. The Court disagrees. Exclusion is justified only if
the prior act is “substantially outweighed” by the potential for unfair prejudice.
United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997) (emphasis in
original). 	This determination requires “a common sense assessment of all the
circumstances surrounding the extrinsic offense, including prosecutorial need,
overall similarity between the extrinsic act and the charged offense, as well as
temporal remoteness.” 	United States v. Perez, 443 F.3d 772, 780 (11th Cir. 2006).
Murillo has not identified any circumstances or basis for concluding that the prior
convictions’ probative value is substantially outweighed by unfair prejudice in this
instance. Given the similarity of the crimes, which shows Murillo’s knowledge and
intent to possess firearms and narcotics; the proximity between his prior crimes and
the current charges, which shows that Murillo was arrested on the current charges
less than seven months after being released from prison on the 2021 convictions; the
Government’s need to prove intent as central to its case; and the lack of any
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circumstances that would justify finding unfair prejudice, the balance strikes in favor
of admissibility. Edouard, 485 F.3d at 1344 n.8; see also United States v. Pollock,
926 F.2d 1044, 1049 (11th Cir. 1991) (where there is “limited evidence of
conspiratorial intent, the prior convictions [a]re that much more probative”).
Murillo further argues that the Notice fails to comply with the Rule. Again,
the Court disagrees. 	Rule 404(b)(3) requires the Government to “articulate in the
notice the permitted purpose” for which the evidence will be offered “and the
reasoning that supports the purpose.” 	Fed. R. Evid. 404(b)(3); see also Cenephat,
115 F.4th at 1366. Here, the Government’s statement that the evidence will be used
to prove Murillo’s intent, knowledge, and absence of mistake articulates a non-
propensity purpose. And the Government reasoned, with supporting case law, that
by pleading not guilty, Murillo has placed his intent at issue, requiring proof. The
Rule requires nothing more.
Accordingly, Murillo’s request to exclude the evidence of his prior state court
convictions, 	ECF 	No. 	57, 	is 	DENIED 	and 	his 	objection 	to 	the 	Notice 	is
OVERRULED, with the exception that the Government must redact the traffic
misdemeanor convictions as irrelevant.
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DONE AND ORDERED this 7th day of April 2026.
M. Casey Rodgers
M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE
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