United States v. Donald Bush
944 F.3d 189
4th Cir.2019Background
- Federal indictment charged Bush (and others) with a multi-year (2008–2017) conspiracy to possess and distribute cocaine and cocaine base and two counts for using a phone to facilitate drug felonies. Bush went to jury trial.
- The government sought to introduce a Sumter County state-court conviction record (May 2013) showing Bush pleaded guilty to distributing cocaine base (the “State Conviction Record”).
- Defense argued the State Conviction Record was extrinsic evidence subject to Fed. R. Evid. 404(b) and therefore inadmissible; government argued it was intrinsic to the conspiracy.
- The district court deferred a pretrial ruling, then during trial ruled the State Conviction Record intrinsic under Fourth Circuit precedent (not subject to Rule 404(b)) and admitted it; coconspirator testimony otherwise placed Bush regularly selling/making crack in Sumter except while incarcerated.
- Jury convicted Bush on the conspiracy and two § 843(b) counts; jury attributed ≥5 kg of cocaine and between 28 g and 280 g of cocaine base to Bush; district court sentenced him to life. Bush appealed arguing (1) admission of the State Conviction Record and (2) a Napue claim that the government failed to correct false testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard to review a trial court’s intrinsic/evidence finding | Bush: de novo review required (citing other circuits) | Government: abuse-of-discretion review; Fourth Circuit precedent governs | Court applied abuse-of-discretion (bound by Circuit precedent) |
| Admissibility of State Conviction Record (intrinsic vs. extrinsic / Rule 404(b)) | Bush: Record was an extrinsic prior bad act; Rule 404(b) forbids admission; incarceration shows he withdrew from conspiracy | Government: Record involved same drug, place, and timeframe and was inextricably intertwined with the charged conspiracy; not subject to Rule 404(b) | Court held Record was intrinsic (same substance, place, and period; no evidence of withdrawal) and admissible |
| Napue claim for failure to correct alleged false testimony by coconspirator McDowell | Bush: McDowell contradicted himself about when he began dealing with Bush (2011 v. 2013); prosecution allowed false testimony, violating due process | Government: Any inconsistencies were clarified on record; inconsistencies alone do not show knowing use of false testimony | Court found no provable false testimony or government knowing use; mere inconsistencies fail Napue; plain-error review not satisfied |
Key Cases Cited
- United States v. Chin, 83 F.3d 83 (4th Cir. 1996) (defines “intrinsic” acts in conspiracy context and when Rule 404(b) does not apply)
- Huddleston v. United States, 485 U.S. 681 (1988) (Rule 404(b) generally bars extrinsic acts evidence to prove character)
- Napue v. Illinois, 360 U.S. 264 (1959) (due process violation when prosecution knows of, or allows, false testimony)
- United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994) (acts intrinsic to the charged offense are not subject to Rule 404(b))
- United States v. McBride, 676 F.3d 385 (4th Cir. 2012) (uncharged conduct arising from same series of transactions is intrinsic)
- United States v. Siegel, 536 F.3d 306 (4th Cir. 2008) (uncharged conduct not “other crimes” under Rule 404 when it arose from same series of transactions)