United States v. Frederick Bush, 673 F. App'x 947

Defendant Frederick Bush convicted of possession with intent to distribute crack cocaine (21 U.S.C. §§ 841(a)(1), (b)(1)(C)).
Government introduced testimony about three earlier controlled buys arranged by law enforcement at the Mahan Drive residence and a photograph seized from Bush’s phone allegedly depicting a "crack donut."
Bush moved to exclude the controlled-buy testimony and the photograph as improper prior-bad-act evidence under Fed. R. Evid. 404(b) and as unduly prejudicial under Rule 403.
The district court admitted both the controlled-buy testimony and the photograph; the court also gave limiting instructions regarding the prior-act evidence.
On appeal Bush argued the admissions were erroneous; the Eleventh Circuit assumed without deciding preservation and reviewed for abuse of discretion and harmless error.
The Eleventh Circuit affirmed the conviction, finding the controlled buys were intrinsic (or, alternatively, admissible under 404(b)) and the photograph admissible under 404(b); any error would have been harmless.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of controlled-buy testimony	Government: testimony is intrinsic or admissible to show intent and absence of mistake	Bush: prior buys were improper prior-act evidence and prejudicial under Rules 404(b)/403	Evidence was intrinsic (or admissible under 404(b)); probative value not substantially outweighed by prejudice; admission not an abuse of discretion
Admission of "crack donut" photograph	Government: photo shows prior crack manufacturing, relevant to intent and knowledge	Bush: photo is extrinsic prior-act evidence and unduly prejudicial	Photo was extrinsic but met 404(b) requirements (relevance to intent, sufficient proof, not unduly prejudicial); admission proper
Preservation / Standard of Review	Government: issues were waived if not objected to; otherwise abuse of discretion review applies	Bush: argues court erred (assumes preserved)	Court assumed preservation for purposes of appeal, reviewed for abuse of discretion and applied harmless-error principles
Harmless-error analysis	Government: any evidentiary error would be harmless given other strong proof	Bush: prior-act evidence/photo contributed substantially to conviction	Any error harmless—evidence not integral; abundant independent proof (admissions, incriminating texts, prior convictions, confessions to inmates, physical evidence) supported conviction

United States v. Edouard, 485 F.3d 1324 (11th Cir.) (prior-offense evidence is intrinsic when it completes the story or is inextricably intertwined)
United States v. Jiminez, 224 F.3d 1243 (11th Cir.) (evidence is inextricably intertwined when it corroborates, explains, or provides necessary context)
United States v. Delgado, 56 F.3d 1357 (11th Cir.) (prior drug offenses probative to rebut mere-presence defense; unlikely to be highly prejudicial)
United States v. Barrington, 648 F.3d 1178 (11th Cir.) (single witness’s uncorroborated testimony can support a jury finding of a prior act)
United States v. Jernigan, 341 F.3d 1273 (11th Cir.) (evidence of similar past behavior makes knowing conduct more likely)
United States v. Henderson, 409 F.3d 1293 (11th Cir.) (harmless-error standard for evidentiary rulings)
United States v. Troya, 733 F.3d 1125 (11th Cir.) (review of district court evidentiary rulings is for abuse of discretion)
United States v. Zapata, 139 F.3d 1355 (11th Cir.) (pleading not guilty makes intent an issue)