Evidence - Rule 404(b) -- Similar Transactions; Other Offenses – Drug Cases

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

United States v. Carter, 779 F.3d 623 (6th Cir. 2015)

The trial court committed reversible error by admitting prior drug distribution evidence in this case. The defendant was charged with possession of precursors to manufacture methamphetamine and conspiracy to manufacture meth. The prior offense involved a different drug and did not involve any manufacturing conduct.

United States v. Stacy, 769 F.3d 969 (7th Cir. 2014)

Defendant was charged with manufacturing methamphetamine. Several years earlier, he was convicted of possession of methamphetamine. The trial court erred (though it was harmless) by admitting the prior offense. Other than demonstrating propensity, the evidence of the prior possession served minimal probative purpose in proving any element at issue in the charged offense. The court stressed that the focus of the Rule 403 aspect of the inquiry is whether the supposed limited purpose for which the evidence is being offered by the government is a disputed issue in the case.

United States v. Chapman, 765 F.3d 720 (7th Cir. 2014)

The defendant was charged with possession with intent to distribute heroin and gun charges. The gun and drugs were found in a bag in a house. The defendant denied having any connection to the bag. The government introduced evidence of the defendant’s prior heroin convictions and the circumstances of those offenses. The Seventh Circuit reversed: Proving defendant’s knowledge about distribution quantities of drugs was not relevant, because he denied possession of the bag at all. To the extent that the evidence was admissible to prove an element of the offense that was not in dispute (intent to distribute), it was inadmissible pursuant to Rule 403. The Seventh Circuit also held that the defendant should have been permitted to testify that with regard to his prior drug offenses (one of which was offered pursuant to Rule 404(b) and the others pursuant to Rule 609), the defendant should have been permitted to testify that he entered a guilty plea in those prior cases. This testimony was offered as “rehabilitation”: when he was guilty, he pled guilty. This was his effort to blunt the force the impeachment evidence.

United States v. Gomez, 763 F.3d 845 (7th Cir. 2014) (en banc)

The Seventh Circuit, sitting en banc, reconstructs the analysis that must be used in deciding whether to admit other crimes evidence. Rather than a strict four-part test, the court insists that the ultimate questions are relevance and unfair prejudice and issues such as similarity and recency are relevant, but not “checklist” items that must be checked: “The extent to which a proffered “other crime, wrong, or act” is close in time and similar to the conduct at issue in the case may have a bearing on its relevance, which is the starting point for all evidence questions, but the importance of testing for similarity and recency will depend on the specific purpose for which the other-act evidence is offered. The proponent of the other-act evidence should address its relevance directly, without the straightjacket of an artificial checklist.” Second, the government must explain the legitimate purpose for which the evidence is offered in a way that does not include propensity as part of the reasoning. The trial court must not simply ask whether the other act evidence is being offered for a non-propensity purpose; the court must ask how the evidence establishes an element in a non-propensity way. And, finally, the court must determine whether the non-propensity purpose is a legitimately disputed issue at trial that would make the evidence more probative on that issue than prejudicial. Thus, with general intent crimes, such as drug possession or drug distribution offenses, the mere fact that the defendant enters a not guilty plea does not make his intent an issue that can be proven by the government with Rule 404(b) evidence, unless the defendant expressly disputes his intent at trial. The court emphasized that a carefully-crafted case-specific jury instruction should be given to the jury that expressly limits the use of this evidence, emphasizes the burden of proof on the government to prove each element beyond a reasonable doubt, and cautions against using the evidence to prove that the defendant is a bad person.

United States v. Lee, 724 F.3d 968 (7th Cir. 2013)

The trial court committed reversible error by admitting a prior cocaine conviction in this drug prosecution. The only purpose for which the evidence was admitted was to show his propensity to commit a drug offense. The government’s claim that the evidence was probative of his “knowledge, intent and lack of mistake” were simply surrogates for propensity evidence.

United States v. Richards, 719 F.3d 746 (7th Cir. 2013)

The defendant was charged with being a member of a drug conspiracy. He denied knowing that he was being used as a drug courier. The government offered Rule 404(b) evidence to show that the defendant was familiar with the drug trade. Admitting this testimony was not error. However, the government during closing argument insisted that the evidence proved that the defendant was, in fact, a drug dealer and therefore, the jury could infer that he was guilty of the charged offense. This was an improper propensity argument that was inconsistent with the limited purpose for which the 404(b) evidence was offered.

United States v. Smith, 725 F.3d 340 (3rd Cir. 2013)

The defendant’s conviction was reversed because the government was improperly permitted to introduce evidence of the defendant’s prior drug conviction. Even though the prior conviction involved conduct that occurred on the same street corner, the government failed to identify a proper purpose for the admissibility of the evidence other than an argument that implicitly relied on a theory of “propensity.”

United States v. Davis, 726 F.3d 434 (3rd Cir. 2013)

A defendant’s prior simple possession of cocaine was not admissible in this prosecution for possessing with intent to distribute a kilo of cocaine. There was no proof that the drugs were similar in appearance, or form, so the prior possession did not prove that the defendant, in the present case, was aware of what was in the parcel in his car. The Third Circuit canvasses other appellate courts’ decisions on this question and joins the majority in concluding that a prior possession offense is not generally admissible in a distribution prosecution.

United States v. Scott, 677 F.3d 72 (2d Cir. 2012)

In this drug prosecution, the arresting detectives testified that they observed the defendant retrieve something from inside a tree and hand it to a woman after receiving money from her. Then, over objection, they testified that they recognized the defendant, “from many previous encounters they had had with him.” The Second Circuit reversed the conviction, holding that this comment was an unmistakable reference to prior encounters the defendant had with the law. This evidence was inadmissible under Rule 404(b).

United States v. Miller, 673 F.3d 688 (7th Cir. 2012)

The admission of a prior conviction for possession with intent to distribute crack was error in this prosecution for possession with intent to distribute crack. The Seventh Circuit condemns the routine use of other crimes evidence in drug cases and declares that henceforth a rational explanation of how the prior offense establishes a fact in dispute must be made and simple statements such as, “it proves the defendant’s intent” will no longer be satisfactory. Here, the drugs were found in proximity to the defendant. He claimed the drugs were not his. The fact that he previously possessed with intent to distribute drugs did not prove his “intent” in this case, because he did not contest that whoever owned the drugs in this case intended to distribute them. He denied that he was the owner of the drugs. The court also stressed the need to engage in the Rule 403 analysis.

United States v. McBride, 676 F.3d 385 (4th Cir. 2012)

Evidence that a defendant previously sold cocaine to an informant about two years prior to the charged offense of possession with intent to distribute crack cocaine was inadmissible Rule 404(b) evidence. Admitting this evidence was reversible error. There was no logical relevance to the prior crime evidence.

United States v. Sanders, 668 F.3d 1298 (11th Cir. 2012)

Introducing evidence of a minor marijuana sale that occurred twenty-two years prior to the major cocaine smuggling operation that was the focus of this prosecution was error under Rule 404(b). The amount of marijuana was so small (i.e., the criminal behavior was relatively insignificant) and the remoteness in time was so significant, that any probative value was non-existent. The court concluded, however, that admitting the evidence was harmless error.

United States v. Santini, 656 F.3d 1075 (9th Cir. 2011)

The defendant was caught at the border bringing marijuana into the country. He claimed that because of a brain injury, he was subject to being tricked and presented a psychiatrist to support the defense. The prosecutor also presented an expert witness who testified that based on his review of the defendant’s “rap sheet” this defense was invalid, because he had run-ins with the law prior to the injury. The Ninth Circuit reversed the conviction: the rap sheet was unreliable and did not distinguish arrests from convictions and was otherwise not probative of the defendant’s state of mind in connection with the present case. The government’s argument tha the evidence was admissible to explain the expert’s opinion was also unavailing, because pursuant to Rule 702, the expert must base his opinions on reliable information.

United States v. Powell, 652 F.3d 702 (7th Cir. 2011)

Evidence of a prior drug sale in a case alleging distribution of drugs is rarely admissible as Rule 404(b) evidence, because the issue of intent is rarely an issue in a drug distribution case. Harmless error in this case.

United States v. Tanner, 628 F.3d 890 (7th Cir. 2010)

Defendant was charged with being a member of a drug conspiracy. Several years earlier, he was in possession of a gun at a New Years Eve party. While there may be some limited relevance to his possession of a firearm previously (guns are “tools of the trade of drug dealers” the probative value was outweighed by the unfair prejudicial impact). Harmless error.

United States v. Johnson, 617 F.3d 286 (4th Cir. 2010)

The fact that a defendant may have been involved in drug activity in the past does not in and of itself provide a sufficient nexus to the charged conduct where the prior activity is not related in time, manner, place, or pattern of conduct. The prior drug episodes in this case occurred nearly five years before the charged conspiracy allegedly began. There was no link to the current members of the conspiracy. This was not harmless error in this case and required reversal of the conviction.

United States v. Jenkins, 593 F.3d 480 (6th Cir. 2010)

The defendant was arrested in a house which contained ample quantities of guns and drugs. During his trial, the government offered evidence that the defendant was convicted of possession with intent to distribute marijuana at the same location in 1998, eight years prior to the events in this case. The government argued that the evidence was admissible to prove knowledge and intent. The Sixth Circuit reversed the conviction. Though knowledge and intent are generally relevant in any drug case, neither issue was really contested in this case. Even if the evidence was probative on either of these issues, it was “microscopic” at best and under Rule 403, the judge should have excluded the evidence.

United States v. Conner, 583 F.3d 1011 (7th Cir. 2009)

Though upholding the admissibility of other drug offenses pursuant to Rule 404(b), the Seventh Circuit rejected the lower court’s use of the “inextricably intertwined” theory.

United States v. Davis, 547 F.3d 520 (6th Cir. 2008)

The trial court admitted evidence of a prior marijuana transaction in this crack cocaine conspiracy and distribution prosecution. The trial court erroneously instructed the jury on the proper consideration of this evidence. The evidence could not reasonably have been considered as “preparation” evidence, because the prior marijuana offense was not undertaken in preparation of the crack offense. Nor was the evidence admitted a part of a “pattern.” Perhaps the evidence was admissible to show the defendant’s intent in committing the charged conduct, but that was not the basis upon which the evidence was actually admitted and that was not the limiting instruction provided to the jury.

United States v. Taylor, 522 F.3d 731 (7th Cir. 2008)

The arresting officer was asked how he knew the defendant and he responded that he knew him based on his experience as a gang and narcotics officer. This was improper 404(b) evidence that was not necessary, or admissible. Judge Posner debunks the government’s argument that the evidence was “inextricable intertwined,” a phrase that Judge Posner described as “unhelpfully vague” in explaining why evidence was admissible. In the end, however, the court held that the inadmissible evidence was harmless error.

United States v. Simpson, 479 F.3d 492 (7th Cir. 2007)

The defendant’s statement to the police that he had previously sold crack cocaine was not admissible in this crack cocaine case because it was nothing other than mere propensity evidence. The government’s claim that it established the “identity” of the perpetrator was rejected by the Seventh Circuit – there was nothing unusual about the defendant’s offense and there were surely many other crack dealers in the neighborhood. The evidence did not meet the standard for admission under Rule 404(b), and was more unfairly prejudicial than probative of the identity of the perpetrator in this case. The Seventh Circuit also rejected the government’s “intricately related” theory of admissibility. The error was reviewed under a plain error standard, because counsel did not object to the defendant’s statement. Reversible plain error.

United States v. Baker, 432 F.3d 1189 (11th Cir. 2005)

The Eleventh Circuit held that various acts of violence that the government was permitted to introduce against several defendants in this massive drug trial should not have been admitted. Harmless error, however, with regard to all but two defendants. The admission of improper Rule 404(b) evidence against those two defendants was reversible error. The court noted, moreover, “If intent is undisputed by the defendant, the evidence is of negligible probative weight compared to its inherent prejudice and is therefore uniformly inadmissible.” 432 F.3d at 1205.

United States v. Matthews, 411 F.3d 1210 (11th Cir. 2005) REHEARING GRANTED AND THIS DECISION WAS VACATED in December, 2005. 431 F.3d 1296

The Eleventh Circuit initially decided – in an opinion that was withdrawn – that a decade-old drug conviction should not have been admitted in this cocaine conspiracy trial. The defendant was charged with his participation in a massive cocaine conspiracy. The evidence against him, however, was primarily comprised of the testimony of alleged co-conspirators. The defense was that they were all liars. The government introduced evidence of a 1991 drug arrest and argued that the evidence was admissible to prove the defendant’s “intent.” The Eleventh Circuit initially reversed. The issue in the case was whether the defendant was, in fact, involved in the drug sales, not whether he had the requisite intent. The suggestion that “intent” is always an issue was not persuasive. The court found that it was impossible for a jury to properly consider the evidence for the limited purpose offered by the government (i.e., the defendant was engaged in the drug deals, and only his intent was an issue, and the prior offense was probative of his intent – that line of reasoning was, in the opinion of Judge Tjoflat, “preposterous”). This opinion contains a lengthy analysis of Rule 404(b) evidence in the context of a drug prosecution and was sure to be the leading case in this area of the law – until it was withdrawn. REHEARING GRANTED AND THE DECISION WAS SET ASIDE. THE CASE IS INCLUDED HERE FOR THE PURPOSE OF SHOWING WHAT A FAVORABLE DECISION MIGHT SAY, SOME DAY.

United States v. Jones, 389 F.3d 753 (7th Cir. 2004)

The trial court erred (though it was harmless) in admitting evidence of two prior drug convictions in this prosecution for possession with intent to distribute cocaine. The only logical relevance of the prior convictions was proof of propensity to deal in drugs. This is the prohibited purpose. Harmless error.

United States v. Ramirez-Robles, 386 F.3d 1234 (9th Cir. 2004)

Evidence of defendant’s prior conviction for possession of a user quantity of methamphetamine was improperly admitted in this distribution of methamphetamine case. Harmless error.

United States v. Sampson, 385 F.3d 183 (2d Cir. 2004)

Defendant was charged with a drug offense committed in 1998 and another offense committed in 2000. He demonstrated that he would testify at a trial involving the 1998 offense, but not the 2000 offense. The Second Circuit concluded that the events surrounding the 2000 incident would not have been admissible in a trial involving just the 1998 transaction, because the defendant contended that he was not the person who was involved in the 1998 event – thus his “intent” was not in issue and the 2000 event could not be introduced to prove his intent. Because the evidence of the 2000 offense would not have been admissible under Rule 404(b) and the defendant demonstrated that he had a plausible basis for testifying at a trial involving just the 1998 offense, the failure to sever the counts was reversible error.

United States v. Jenkins, 345 F.3d 928 (6th Cir. 2003)

The defendant received an express mail package that the police believed contained drugs. The package was delivered to the defendant’s house and shortly thereafter she was approached by the police and questioned. She denied knowing what was in the package, claiming that she was paid $50 to receive it for someone else. The police “told” her it contained drugs and she responded, “Yeah” but again denied knowing what was in the package. The government offered evidence that she admitted to being a crack cocaine user, though she denied that it came from the person to whom the package was ultimately destined. The trial court committed error in admitting the statement that she used crack cocaine. The use of cocaine is not sufficiently probative of her intent to participate in the possession with intent to distribute cocaine. The court also concluded that the evidence was insufficient to support the conviction.

United States v. Garcia, 291 F.3d 127 (2d Cir. 2002)

The government offered a twelve-year old prior conviction for selling two grams of cocaine for the purpose of proving that the defendant knew that the phone conversation had had with an informant was in code for a multi-kilogram cocaine transaction. The Second Circuit held that there was no showing that the prior deal established his knowledge of the code that was used by the informant.

United States v. Haywood, 280 F.3d 715 (6th Cir. 2002)

The defendant was charged with selling 18 grams of crack to an informant. He was arrested a year after the supposed transaction. In the meantime, in an unrelated incident, he was found to be in possession of a small amount of cocaine. The Sixth Circuit holds that the trial court reversibly erred in admitting the evidence relating to the episode of simple possession.

United States v. Millard, 139 F.3d 1200 (8th Cir. 1998)

The defendants, husband and wife, were charged in a methamphetamine conspiracy. The government introduced two prior convictions against both defendants. This was error (harmless as to the husband, reversible as to the wife). The only reason to admit this evidence was to show the defendants' "propensity" to commit a drug offense and this is precisely what Rule 404(b) prohibits.

United States v. Eggleston, 165 F.3d 624 (8th Cir. 1999)

The defendant was charged with possessing, with intent to distribute, crack cocaine that was found in the trunk of his car. His defense was that the drugs belonged to a passenger and he did not know the drugs were in his car. The government introduced evidence of a six-year old drug conviction. The Eighth Circuit held that this evidence was inadmissible, though it was harmless error. If the defendant claimed that he did not know what drugs were, or that he thought the substance was foot powder, his prior conviction would be probative of his knowledge. But because his defense was that the drugs were not his, the prior drug conviction was only probative of his propensity to commit the crime, which is a prohibited purpose.

United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998)

The defendant was charged with a marijuana offense. The evidence established that a car was stopped and that the occupants fled and marijuana was found in the vehicle. The defendant denied being in the vehicle. He had previously been involved in an offense in which he fled from a car that had marijuana in it. This evidence was inadmissible under Rule 404(b). The question in the present case was whether the defendant was in the car – i.e., identity of the perpetrator. The fact that the defendant previously fled from a car in which there was marijuana did not establish that he was the perpetrator in this case, because the two offenses were not so similar that the jury could reason that whoever committed the first offense was likely to be the person who committed this offense.

United States v. Falls, 117 F.3d 1075 (8th Cir. 1997)

The government offered evidence that the defendant was involved in drug transactions on a large scale prior to his participation in the charged conspiracy. The government's theory -- this evidence proved that he participated in the charged conspiracy -- is exactly the theory prohibited by Rule 404(b). Admitting this evidence was error, but harmless.

United States v. Jones, 28 F.3d 1574 (11th Cir. 1994)

Though the error was harmless, the trial court erred in permitting the government to introduce evidence of gambling activity at a particular house, as well as the defendant’s prior gambling conviction in this drug/firearm prosecution. The government offered the proof on this theory: the defendant is a convicted gambler; gambling paraphernalia was found at the house where the drugs were found; therefore, the drugs belonged to the defendant. Among other problems with this theory, the government failed to establish that the gambling paraphernalia found at the house was sufficiently similar to the type of gambling for which the defendant was previously convicted. Also, the evidence did not satisfy the Rule 403 balancing test. Where, as here, the government has a strong case without the extrinsic offense, then the prejudice to the defendant will more likely outweigh the marginal probative value. If the government can do without the evidence, fairness dictates that it should; but if the evidence is essential to obtain a conviction, it may come in.

United States v. Simpson, 992 F.2d 1224 (D.C.Cir. 1993)

The defendant was stopped on suspicion of committing a rape. He was frisked and was found in possession of Dilaudid and cocaine. He contended that he was framed by the frisking officer. The AUSA questioned the defendant at trial about his knowledge of Dilaudid. He testified that he had had Dilaudid before, but did not know much about packaging of the drug. The trial court then permitted the government to introduce evidence of the defendant’s prior conviction for possessing Dilaudid. This was reversible error. No valid 404(b) purpose was offered for admitting this evidence.

United States v. Manner, 887 F.2d 317 (D.C.Cir. 1989)

Though relevant on the issue of intent, evidence that a drug defendant sold drugs after the crimes with which he was charged, should not have been admitted without an on-the-record finding that the relevance outweighed the prejudicial effect.