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finding witness's testimony regarding previous, uncharged drug purchases from defendant intrinsic because the testimony "is a natural part of the confidential informant's account of the circumstances surrounding the charged offense"
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Criminal No. 99-77, SECTION "R".
February 7, 2000.
ORDER AND REASONS
Before the Court is the government's motion to admit evidence (1) of defendant's prior history of drug dealing with the confidential informant; (2) of a drug buy between them that was arranged but never occurred; and (3) that defendant was charged two other times with possession with the intent to distribute crack. The defense objects that these acts are impermissible extrinsic character evidence that must be excluded under Federal Rule of Evidence 404(b). For the following reasons, this Court finds that evidence of the acts is admissible.
I. Discussion
A. Intrinsic or Extrinsic
In determining whether "other acts" evidence should be admitted, the Court must first determine whether the evidence is intrinsic or extrinsic. Other acts evidence is intrinsic when the evidence of the other acts and evidence of the crime charged are "inextricably intertwined," or both acts are part of a "single criminal episode," or the other acts were "necessary preliminaries to the crime charged," or the uncharged offense arose out of the same transaction or series of transactions as the charged offense. See United States v. Morgan, 117 F.3d 849, 861 (5th Cir. 1997); United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996). Such evidence is also admissible if it is necessary to complete the story of the crime charged by proving the immediate context of events in time and place. See Coleman, 78 F.3d at 156. Intrinsic evidence does not implicate Rule 404 (b).
This Court finds that evidence of the drug buy that was arranged between the confidential informant and defendant but that never occurred is intrinsic, because it completes the story of and is inextricably intertwined with the offense charged. The proposed buy was set to occur on October 22, 1998, only weeks before the alleged November 19, 1998 distribution. The Fifth Circuit has found evidence to be intrinsic when, as here, it directly relates to the crime charged. See, e.g., Coleman, 78 F.3d at 156 (evidence of attempted carjacking on same day of charged carjacking was admissible as intrinsic evidence); United States v. Walker, 148 F.3d 518, 528 (5th Cir. 1998) (attempt to suborn perjury from one person admissible when defendant charged with suborning similar perjury from different person). In Coleman, the Fifth Circuit found the evidence admissible to complete the story of the crime by proving the immediate context of events in time and place. See Coleman, 78 F.3d at 156. The arranged buy was for the same drug ("crack") and between the same parties as the crime charged. Although it did not occur on the same day, the arranged buy places the crime charged in the proper context because it establishes that defendant had opportunity, knowledge and intent. See id.; cf. United States v. Clements, 73 F.3d 1330, 1337 (5th Cir. 1996) (evidence that defendant was aware of tax liability prior to time of indictment was admissible as intrinsic evidence because government had to prove that defendant acted willfully). Because it is intrinsic, the evidence of the arranged buy is not subject to the strictures of 404(b). Evidence of defendant's prior drug dealings with the government's informant is subject to the same analysis. This evidence explains the nature of the relationship between the confidential informant and defendant and why the informant could expect to obtain crack from defendant on the occasion at issue. This testimony is a natural part of the confidential informant's account of the circumstances surrounding the charged offense. See United States v. Costa, 691 F.2d 1358, 1360-61 (5th Cir. 1982) This evidence is also intrinsic. In any case, even if evidence of the arranged buy and defendant's prior drug dealings with the confidential informant are extrinsic, for the reasons given below, they are nonetheless admissible under Rule 404(b) to show motive, opportunity, knowledge, and intent.
B. Rule 404(b)
Rule 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . .
FED. R. EVID. 404(b). A court may admit evidence of extraneous acts under Rule 404(b) only if: (1) it is relevant to an issue other than the defendant's character, and (2) the evidence's probative value is not substantially outweighed by undue prejudice. See United States v. Route, 104 F.3d 59, 63 (5th Cir. 1997); United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978). When extrinsic evidence is offered to prove intent, the Court may ascertain the relevancy of such evidence by comparing the defendant's state of mind in perpetrating the different offenses. See United States v. LeBaron, 156 F.3d 621, 624 (5th Cir. 1998). When, as here, the government must prove that defendant acted "intentionally or knowingly," the issue of intent is material. Thus, because Clark pled not guilty plea, he has placed intent at issue, justifying the admission of evidence of extrinsic acts. See United States v. Parsee, 178 F.3d 374, 379 (5th Cir. 1999); United States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997). Evidence regarding defendant's previous drug dealing with the government's informant, the arranged buy, and the two occasions that police found crack in defendant's possession, are highly relevant on the issues of motive, opportunity, knowledge and intent. The intent involved in his prior drug dealing and in setting up the drug buy that never actually occurred is the same intent involved in the crime charged. Further, the arranged buy and the two instances of possession all occurred within weeks or months of the charged crime and involved crack, indicating that defendant knew what crack was, and had the motive to distribute it as well as the opportunity to acquire it. See Chavez, 119 F.3d at 346-47 (holding that overall similarity of extrinsic evidence and charged offense, and the amount of time separating the extrinsic and charged offenses are factors to consider in determining whether evidence is probative).
Moreover, the possibility of undue prejudice does not substantially outweigh the probative value of the evidence in this case. The danger in admitting other acts evidence is that the jury may convict Clark for the extrinsic offenses, rather than the offense charged. See Old Chief v. United States, 519 U.S. 172, 180-81, 117 S.Ct. 644, 650 (1997); Beechum, 582 F.3d at 914. Thus, the Court must perform a commonsense assessment of the circumstances surrounding the extrinsic offenses. See Beechum, 582 F.2d at 914. Here, the Court finds little danger of unfair prejudice. First, the probative value of the extrinsic evidence is particularly high as to knowledge and intent. To the extent that the government's case is based on a paid informant whose credibility is in issue, evidence of the arranged buy has independent probative force because it was tape recorded by the government, which corroborates the informant. Evidence that defendant possessed crack on two other occasions is also independent of the informant's testimony and it provides independent evidence of opportunity to obtain crack, which is another increment of proof. See United States v. Henthorn, 815 F.2d 304, 308 (5th Cir. 1987) (finding probative value of extrinsic offense evidence outweighed possible prejudice when defendant pled not guilty and attacked credibility of witness). Further, the Court intends to limit any danger of undue prejudice by instructing the jury on the limited purpose of extrinsic evidence provided in the Fifth Circuit Pattern Jury Instructions § 1.19. See id. at 625-26.
II. Conclusion
For the foregoing reasons, defendant's motion to exclude the evidence of prior acts is denied. The Court will give the jury a Rule 404(b) limiting instruction.
New Orleans, Louisiana, this 7th day of February, 2000.