Lead Opinion
A federal jury convicted Andrew Chavis on charges of both conspiracy and possession of crack cocaine with intent to distribute. Chavis appeals, asserting that his conviction cannot stand because the district court improperly admitted certain evidence and failed to give a particular jury
I.
In November 2002, the DEA began investigating illegal drug distribution in Rockford, Illinois. This investigation relied on Robert and Rosa Flemons, both of whom had pleaded guilty to dealing crack cocaine but had chosen to cooperate with the government. As part of the cooperation agreement, the DEA provided the Flemonses with money to make purchases from suspected drug dealers while the DEA monitored the transactions.
On November 14, 2002, Alex “Alley Cat” Thompson informed the Flemonses that he could supply them with crack cocaine. After consulting with DEA Agent Doug Hopkins and receiving marked money, the Flemonses arranged to purchase two ounces of crack on November 15. Although the transaction took place and was recorded by the DEA, Thompson was unable to deliver the full two ounces of crack. However, the Flemonses did purchase from Thompson five-eighths of an ounce of crack cocaine for $620.
Approximately a week later, on November 21, the DEA asked the Flemonses to arrange a second buy of crack cocaine from Thompson. Based on surveillance conducted during the first purchase, the DEA was able to locate Thompson’s car at his residence. In anticipation of the second buy, the DEA began surveillance on the car in the hopes of identifying larger dealers connected to Thompson. After the Flemonses placed a call to Thompson for another purchase of drugs, Thompson drove his white Chrysler to the 700 block of Sixth Avenue.
After waiting in his car for several minutes, a second man, later identified as Frank Jefferson, came from the north side of the street and entered a parked maroon Buick. According to Jefferson’s testimony at trial, he had been inside 718 Sixth Avenue, the residence of Chavis’s girlfriend, getting crack cocaine from Chavis to give to Thompson. Thompson and Jefferson drove off in separate cars, but soon reconvened, with Jefferson giving Thompson the drugs at this time. The men again left separately, and each went to Capitol Cleaners, which the Flemonses owned. There, Thompson supplied the Flemonses with crack, while Jefferson stayed in his car.
Again, the Flemonses discovered that Thompson had not given them the bargained amount of crack, so the Flemonses gave him $750, less money than originally agreed upon. Upon discovery of the drug shortfall, Thompson called Jefferson to inform him of the problem. After the deal was completed, Thompson met with Jefferson, giving him the money received from the sale. Jefferson, in turn, gave the majority of this money to Chavis.
On November 22, the DEA decided to shut down the drug conspiracy. To that end, Hopkins instructed the Flemonses to set up one more drug deal with Thompson. Meanwhile, the local police continued surveillance on Thompson, who met and picked up Jefferson in his white Chrysler. At first, Jefferson had trouble reaching Chavis on Chavis’s cell phone to tell him that he needed more crack. Jefferson then stopped by his own house and picked up money in case he had to buy the drugs from another source. Eventually, Jefferson connected with Chavis, who informed
Jefferson and Thompson reached the parking lot first, and the police continued to observe their activities, watching them through binoculars. After approximately twenty minutes, Chavis and his girlfriend, Sidra Moses, pulled up in Moses’s Oldsmobile. Jefferson then left Thompson’s Chrysler and entered the back seat of Moses’s car. Detective Robert Veruchi, one of the local police assisting the DEA’s surveillance, saw Chavis, sitting in the front passenger seat, appear to give something to Jefferson. After observing this apparent hand-off, the police then approached and surrounded the car, ordering the occupants out.
When Chavis left the front seat of the car, a cell phone and a pager dropped onto the ground. Chavis agreed to a police pat-down, which turned up $1,128 in Chavis’s right front pocket and $3,525 in his left rear pocket. Police found on Jefferson a cell phone, crack cocaine, and $1,239 in cash. DEA Agent Hopkins also discovered a baggie containing crack cocaine on the floor of the car near where Jefferson had been sitting. While they were being taken into custody, Jefferson and Chavis turned on each other, each yelling to the other: “You set me up.” Once they arrived at the police station, Chavis shouted to Moses: “Don’t talk. Don’t say nothing, baby. They got nothing.” Chavis told the police that Jefferson had handed a bag of cocaine to him in the car, and that he (Chavis) threw it back at Jefferson just as the police came up. Chavis was subsequently released, while Jefferson began cooperating with the authorities, providing many of the facts and details above. The DEA also examined the money recovered from Chavis, discovering that Chavis possessed 16 of the 19 bills that the Flemons-es had used to purchase crack cocaine on November 21.
On April 22, 2003, a federal grand jury in the Northern District of Illinois indicted Chavis for: (1) conspiring with Alex Thompson and Frank Jefferson to possess with intent to distribute more than 50 grams of substances containing cocaine base on November 15; (2) distribution (with Thompson and Jefferson) of 26.2 grams of substances containing cocaine base on November 21; and (3) possession with intent to distribute more than 50 grams of substances containing cocaine base on November 22. Chavis was arrested on the day of his indictment. At the time of his arrest, Chavis had on his person $1,522 in cash, a small electronic scale, and an Illinois identification card.
At trial, Jefferson, local police, and DEA agents all testified about the drug ring and Chavis’s involvement in it. Chavis attempted to exclude several pieces of evidence, including a prior conviction for possession of cocaine with intent to distribute, and the evidence found on Chavis during his April 22, 2003 arrest. The district court proceeded to analyze the disputed evidence pursuant to Fed.R.Evid. 404(b), concluding that the prior conviction was admissible as it was being used to show Chavis’s intent rather than propensity. The district court also found that the evidence from Chavis’s arrest satisfied Rule 404(b). At the end of trial, Chavis requested that the court give a buyer-seller instruction to the jury. The court refused, finding that no evidence supported such an instruction.
The jury convicted Chavis on the counts dealing with the November 15 and Novem
II.
On appeal, Chavis challenges the district court’s admission of: (1) Chavis’s 1997 conviction on a drug-related offense; (2) evidence found on Chavis when he was arrested in April of 2003; (3) Jefferson’s testimony regarding his ■ dealings with Chavis; and (4) the taped conversations of Thompson and Jefferson from the November 15 and November 21 drug deals with the Flemonses. Further, Chavis asserts that the district court erred in refusing a buyer-seller jury instruction. Finally, Chavis raises a Booker challenge to his sentence.
A. '
The first three of Chavis’s four evidentiary challenges involve the application of Rule 404(b). Rule 404(b) prohibits the use of evidence of other bad acts to show that a defendant has a propensity to commit a crime and that he acted in accordance with that propensity on the occasion in question. See United States v. Best,
(1) the evidence [must be] directed toward a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence [must] show[] that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence [must be] sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence [must] not [be] substantially outweighed by the danger of unfair prejudice.
Best,
1.
Chavis first contends that the district court improperly admitted evidence relating to his 1997 conviction for possession of crack cocaine with intent to distribute. For a specific intent crime, like the ones charged in this case, intent is a required element of the offense, which the government must prove beyond a reasonable doubt. See Best,
Understanding the difficulty in distinguishing between the legitimate use of pri- or convictions as evidence of intent and the
This court has held in several cases that a theory of defense that calls into question intent can supply the additional relevance. In Jones we noted, “a prior conviction may be relevant to show intent if the defendant concedes that he possessed the drugs but denies that he planned to distribute them, or if he denies knowing that the substance was contraband.” Id. at 757-58; see also Puckett,
Turning to Chavis’s .case, we find that the prior conviction was used as evidence of his intent to engage in a conspiracy to possess drugs with an intent to distribute rather than to show his propensity to commit this crime. Chavis presented a defense that he was simply in the wrong place at the wrong time. He claimed no intent to distribute drugs because he was completely innocent. This is nearly identical to Macedo. By portraying himself as a clueless bystander, Chavis himself gave the prior conviction the requisite relevance to satisfy Rule 404(b). Given the defense theory and the government’s obligation to prove specific intent, the district court did not abuse its discretion in determining that the prior conviction went to intent and not propensity. See Macedo,
Chavis also argues that the introduction of the 1997 conviction violated the fourth prong of the Rule 404(b) analysis — that the probative value must not be substantially outweighed by the danger of unfair prejudice. “Evidence is unfairly prejudicial only to the extent that it will cause the jury to decide the case on improper grounds.” See United States v. Jones,
Even if we concluded that the district court abused its discretion by admitting this evidence in violation of Rule 404(b), Chavis’s challenge would nonetheless fail. “A finding of this kind of error [in a decision to admit] simply takes us to the next step, which is to ask whether the error ‘affect[ed] substantial rights.’ ” Jones,
2.
Chavis next argues that the district court abused its discretion when it admitted, pursuant to Rule 404(b), the evidence that the police found during his April 2003 arrest. We evaluate using the same four-part test discussed above, despite the fact that the evidence was found several months after the charged offenses. See United States v. Anifowoshe,
The district court did not abuse its discretion when it admitted the various pieces of evidence discovered at Chavis’s arrest because the evidence was not offered to show propensity. Rather, the items from the 2003 arrest went directly to establishing his knowledge and intent relating to the charged 2002 crimes of conspiracy to distribute crack cocaine and possession with intent to distribute. As discussed previously, Chavis’s theory of defense was complete innocence, contending that drugs were on the car floor and several thousand dollars in his pockets not because he was part of a drug conspiracy, but because of an unfortunate, yet explainable, chain of events. The evidence collected at the 2003 arrest show Chavis’s intent and knowledge
Turning to the fourth prong of the Rule 404(b) analysis, the district court again gave a proper limiting instruction to the jury that lessened any prejudice from the arrest evidence. See, e.g., Macedo,
3.
Chavis also asserts that the district court should not have admitted testimony of Jefferson regarding his dealings with Chavis in the year preceding the charged offenses. Chavis challenged this evidence before the district court for failing to comply with Rule 404(b). The district court disagreed and decided that the evidence was inextricably intertwined with the major issues in the case.
“As we have stated before, evidence ‘concerning'the chronological unfolding of events that led to an indictment, or other' circumstances surrounding the crime, is not evidence of “other acts” within the meaning of Fed.R.Evid. 404(b).’ ” United States v. Ojomo,
In this case, Jefferson offered testimony describing the specifics of the drug conspiracy. He testified about the length of his relationship with Chavis and their arrangements for selling crack cocaine, including the amount and frequency of the drug sales and the drug prices. He explained that Chavis would front him drugs on credit, and that Jefferson would repay Chavis after making a sale. The absence of this evidence about the prior
4.
Turning to the final evidentiary challenge, Chavis contends that the district court erred when it admitted at his trial taped evidence recording the drug deals between Thompson and the Flemonses. Chavis suggests that this evidence violated Rule 403 in that the probative value of the tapes was outweighed by possible confusion of the issues or unfair prejudice. As Chavis did not challenge this evidence before the district court, we review for plain error. See Price,
The district court did not violate Rule 403 in the admission of the tapes of the drug deals. The tapes went directly to a major element of the charged offenses— the actual distribution of the crack cocaine on November 21 and 22. To show that Chavis had possessed those drugs, the government needed to connect the Flem-ons’s request for crack with the subsequent request for Chavis to supply those drugs. The conversations between Chavis, Thompson, and Jefferson helped set the stage for Jefferson’s testimony that he then went to Chavis for drugs. As such, they were highly probative and relevant. On the other side of the Rule 403 balance, we cannot conclude there was any unfair prejudice or confusion of the issues stemming from these tapes. The district court did not err.
B.
Chavis next argues that the district court improperly denied him a buyer-seller jury instruction. We review a district court’s decision regarding a jury instruction for an abuse of discretion. See United States v. Reed,
A defendant must satisfy a four-part test before he is entitled to a jury instruction to present a theory of defense. He must show that (1) the proposed instruction is a correct statement of the law; (2) the evidence in the case supports the theory of defense; (3) the theory of defense is not already part of the charge; and (4) failure to include the proposed instruction would deny the defendant a fair trial.
United States v. Meyer,
In this case, Chavis wanted an instruction to inform the jury that the mere fact of a buyer-seller relationship did not automatically mean there was a conspiracy. The line between a conspiracy and a mere buyer-seller relationship is difficult to discern, so district judges should instruct juries about the difference if there is evidence in the record that would sup
We disagree; there was no evidence of a buyer-seller relationship between Jefferson and Chavis. The government presented evidence that the men were in cahoots as coconspirators, while Chavis argued complete innocence. We have dealt with such a situation before. See United States v. Fort,
C.
Finally, Chavis challenges his sentence based on Booker, asserting that the mandatory nature of the guidelines made his sentence improper. The government agrees that a remand, as contemplated in Paladino, is appropriate because the district court sentenced Chavis under the then-mandatory guidelines. See United States v. Castillo,
III.
The district court was right to admit the various challenged pieces of evidence after properly considering arguments from counsel and conducting the appropriate analysis. Further, the court did not abuse its discretion when it concluded that there was no support for a buyer-seller jury instruction in the evidence at trial. We affirm the district court on these issues, and order a limited remand for it to conduct the Paladino inquiry.
Notes
. The district court actually gave limiting instructions to the jury twice about the consideration of this evidence, both after the government initially presented the evidence and after closing arguments. Each time the district court instructed the jury to consider the conviction and other acts evidence only on the question of intent, knowledge, or absence of mistake or accident. The language employed correctly tracked the Seventh Circuit Pattern Federal Criminal Jury Instruction 3.04 (1999).
Concurrence Opinion
concurring.
I do not agree that evidence of Chavis’s 1997 conviction of a drug crime was admissible to show intent (or, as the government has also argued, knowledge). Chavis’s defense was that although he was present at the scene of the drug sale, he did not supply the drugs at issue to Jefferson or Thompson. As the majority puts it, Chav-is claimed that “he was simply in the wrong place at the wrong time.” His defense, then, is that the drugs were not his, not that he did not realize that drugs were involved. Although “[a] prior conviction may be relevant to show intent if the defendant concedes that he possessed the drugs but denies that he planned to distribute them, or if he denies knowing that the substance was contraband,” neither of those scenarios is presented here. United States v. Jones,
The government describes Chavis’s defense as an assertion “that he just happened to stumble upon the scene of a drug deal, and that someone just happened to hand him crack cocaine, but that he never intended to possess or distribute the crack.” This description is an attempt to shoehorn the prior conviction into the intent or knowledge exception by painting his defense (the drugs weren’t mine) as a lack of intent (I had them, but I wasn’t going to sell them) or a mistake (I thought they were cough drops). But again, Chav-is never claimed that he had mistakenly sold anything or that he was unaware of what crack cocaine looked like. As in Jones, the government here has failed to articulate how the prior conviction established specific intent or some other state of mind as a concept discrete from Chavis’s propensity to commit drug crimes. Id.
This, I think, is the essential point. To meet the test of Rule 404(b), there must be a showing that an issue has been joined as to intent, or another of the 404(b) categories, discrete from a showing of mere propensity. E.g., id. at 757 (“the government must affirmatively show why a particular prior conviction tends to show the more forward-looking fact of purpose or design, or volition to commit the new crime”); United States v. Macedo,
Although I believe that there is error here as to the 404(b) issue, the other evidence is more than sufficient to support the judgment. I therefore join the majority in all but Part II.A.1 of the opinion.