United States v. Cheryl Ward, A/K/A Cheryl Morris (97-6089), Earl Morris (97-6199), and Larry Turnley, A/K/A "l.t." (97-6200)

America, UNITED STATES

Plaintiff-Appellee, (97-

Cheryl WARD, Cheryl Morris a/k/a

6089), (97-6199), Earl Morris Lar-

ry Turnley, (97-6200), “L.T.” De- a/k/a

fendants-Appellants. 97-6089, 97-6199,

Nos. 97-6200. Appeals, States Court of

Sixth Circuit.

Argued Dec. 1998. Sept.

Decided 1999.

Rehearing Suggestion Rehearing

En Banc Nov. 1999. Denied

ñales, Schwartz, Mezibov & Cincinnati, OH, for Defendant-Appellant Cheryl Ann Ward.

Charles R. Ray (argued briefed), Nashville, TN, for Defendant-Appellant Earl Morris.

Sabin R. Thompson (argued and briefed), Prochaska, Williams Nashville, & TN, for Defendant-Appellant Larry Turn- ley. RYAN,

Before: SUHRHEINRICH, COLE, and Circuit Judges.

RYAN, J., delivered opinion court, in which SUHRHEINRICH, J., joined. COLE, 492-94), J. (pp. delivered a separate opinion concurring part in dissenting in part.

OPINION RYAN, Judge. Circuit The three case, in defendants this Earl Morris, Cheryl Ward, and Larry Turnley, were convicted of participation a large in cocaine distribution conspiracy. ap- Their peals raise the following issues: (cid:127) Whether there was sufficient evidence support pos-' conviction for session cocaine and Turnley’s con- viction on count; the conspiracy (cid:127) Whether the district court erred by evidence, admitting in a copy certified judgment of a previous of Ward’s con- offense, viction for a drug which con- material; tained extraneous (cid:127) Whether the district court abused its discretion in refusing grant Morris trial; separate (cid:127) Whether there was a violation of 18 201(c)(2); Anderson, Robert U.S.C. Atty., Asst. U.S. Of- Nashville, fice Attorney, TN, U.S. (cid:127) Whether the district court abused its S. (argued briefed), Vicki Marani U.S. discretion in denying Morris and Turn- Department Justice, Section, Appellate ley a mistrial or new trial because of Division, DC, Criminal Washington, alleged perjury, of perju- subornation Plaintiff-Appellee. ry, and denial process; of due (cid:127) Martin (argued briefed), S. Piñales Whether the erred in- when (briefed), John P. Sirkin, Feldmeier Pi- calculus, cluded in the sentencing con- Mor- charge Ward was tified that acquitted, Turnley was for which duct however, around; others, testi- life sentence. ris was not in a resulting thereby during merely present fied that she below, we will discussed reasons For transactions, only a mi- had respects. in all affirm Ward, who lived Morris and nor role. I. California, co- transported Angeles, Los defen- the three Nashville, indicted Ten- grand Terry A to Norvell caine all others, charging dants, well as seven cousin, Marcus nessee, Terry’s and to cocaine very large complicity Indiana. Holder, Indianapolis, three All but conspiracy. trafficking very large, Terry was sold quantity pled guilty and Michael Smith defendants deliv- per kilograms 30-M0 usually around govern- with the cooperate to agreed and much receive Holder would ery, while in trial testify at defendants’ and ment 5 to 10 approximately quantities, smaller some, and sentences reduced return for kilograms. recom- reduction of a sentence promise kilograms 30-40 of the distribute Terry 5K1.1 would to section pursuant mendation hours, fairly large Michael by selling for others. Sentencing Guidelines in a of matter codefendants, all counts. acquitted on many was of Smith to quantities would collect Turnley. He including and charged Morris The indictment $22,000-$26,000 kilo- per usually money, with possession and distribution Ward with share, the rest and deliver his gram, keep 10, April on to cocaine intent distribute Terry and Ward. 841(a)(1) money to Morris § 1995, of U.S.C. in violation transactions regarding abetting all 2, and testified aiding § and 18 U.S.C. frame, and his time charged conspiracy during counts Six additional pi'ovision. telephone of co- possession was corroborated testimony Ward with Morris and 1994, 27, July in Nash- caine, ranging records, from from hotels dates and records on All the code- 14, 1995. hands. through changed March cocaine ville, where appealing fendants, including the three 1995, April The ended conspiracy conspiring to dis- here, charged with were Ter- tipped off were when authorities 1, June cocaine from possess tribute and Ter- helped who Spangler, ry and Melissa 1995, in violation 1994,through April large engaged money, were ry count with charged § was 846. Morris 21 U.S.C. The trans- in Nashville. drug transactions enter- continuing a criminal engaging Nashville Terry’s house in began at action (CCE), of 21 U.S.C. in violation prise ar- and Ward 1995. Morris April on also were and Ward § 848. Morris two placed and Terry’s house rived laundering, viola- money with charged kilograms containing 38 bags large duffel (2). 1956(a)(1)(A)(i)and § U.S.C. tion of 18 Terry’s property. on in a shed of cocaine counts, Turn- conspiracy to the In addition from the transported later bags The were pos- and distribution ley charged with vehicle, and Lewis’s Quintinia to cocaine shed one to distribute with intent session rented car. On 24, 1996, Spangler’s with to possession and then April base on 10,1995, Terry Span- and June April morning cocaine base intent distribute Super 8 toMotel 12,1996. from the gler moved there, began Inn, police and LaQuinta co- trial, of the defendants’ many During and day, Terry Later that surveillance. testified, following details indictees Terry realized park, at a met Spangler Morris revealed. conspiracy were re- Spangler followed. they being were his conspiracy; man in the the head subsequently and was the motel turned to the distribution cocaine started supply of car searched her police arrested. Ward, to be said ring. girlfriend, His cocaine. kilograms the 38 tes- discovered Some witnesses second-in-command. agreed to Spangler cooperate with reasonable doubt. See United States v. police. placed Odom, She a phone recorded call 958-59 Terry, eventually who turned himself Terry then police. agreed place A. phone Morris, call recorded him telling Ward challenges the six counts that that Spangler had been arrested. Morris allege possession of cocaine he get said would his people on the case to April 1995, transaction, which ended develop situation, further ac- thereby the conspiracy. To prove that a defendant knowledging his involvement with Terry 841(a)(1), violated U.S.C. the govern Spangler. made a Terry deal ment must establish person “that a know authorities and revealed the entire conspir- ingly and intentionally distributes or pos acy, including the details of the conspira- sesses with intent to distribute controlled money tors’ laundering. all Eventually, substance.” Forrest, States the conspirators arrested, were and all but To prove the three defendants here pled and Smith that Ward aided and abetted guilty agreed cooperate. 2,§ transactions under 18 U.S.C. gov trial, After a lengthy the convictions ernment must establish that Ward partici were as follows: Ward was convicted of six pated in the venture as something she of possession counts, the seven the con- wished to bring sought about and to make count, spiracy money and laundering. She Odom, succeed. See 13 F.3d at 959-60. was sentenced to 262 in prison. months argues Ward that Morris was there guilty very found of six were of the seven few references to her in possession counts, any of the testi conspiracy count, the mony trial, during the and money many and the that of laundering charges, but witnesses, the such Spangler, as acquitted was testified of the continuing criminal only to meeting Ward or enterprise that Ward charge. He assist was sentenced to ed her with transportation the 360 months in of the prison. co Turnley was con- However, caine. Holder victed of the testified that he conspiracy count and the delivered drug Ward, possession money to received charge that resulted from a her, cocaine from and 12, search of his considered her to home 1996, on June but Terry second-in-command. acquitted was testified that alleg- distribution that present Ward was edly during most April occurred on of the 1996. Based on transactions, and that she his would count extensive criminal history, including as money when it was conduct, relevant delivered. He also April transaction, 24 testified that Ward would Turnley which sometimes deliv acquitted, was he was er drugs, although testimony his sentenced to life in in that All prison. de- three regard lacked specificity. The fendants thrust of challenge conviction, their and Ward’s argument is that Turnley government appeals his sentence as well.

has not shown that she anything did more than II. Morris; associate with and she claims that her presence at drug transactions Turnley challenge ? can by be explained the fact that she was sufficiency of the some, evidence as to but Morris’s girlfriend. all, of the of which they crimes were convicted. In reviewing the points that prove out to court’s denial of Turnley’s Ward’s and mo that Ward aided and abetted in the posses- for acquittal, tions determine, we must sion and cocaine, distribution of it need while reviewing the facts the light most that show Ward participated in the favorable prosecution, any drug transactions such a manner that rational trier of fact could have found would indicate that she had an active role essential elements beyond crime in assuring that the enterprise succeeded. on record was evidence there that out role Ward’s that appears itWhile that Turnley, and Terry car sold as minor, especially relatively

venture involved been not have Turnley could partici- other some compared February after transactions drug any she deliv- testimony that there pants, jail. he had been because proceeds, drug counted drugs, ered used participants other the car drove Turnley’s partic- the evidence While These drug proceeds. or drugs to deliver mea- conspiracy is charged in the ipation evidence sufficient more than are activities Ter- given say, particularly we ger, cannot an aider conviction Ward’s support no testimony, Thompson’s ry’s we affirm Accordingly, abetter. have found could of fact trier rational conviction. doubt. beyond a reasonable Turnley guilty one of Turnley was testimony, that

Terry’s have conceivably distributors, might B. his ground jury on rejected been sufficiency challenges Turnley dealer drug a convicted Terry conviction his evidence government; a deal with who struck ele The essential only. conspiracy count fact credibility call for is a against charged conspiracy ments say that are unable we finder “(1) by two agreement an Turnley are: evi- on such convict juror could rational laws, and persons violate more U.S. Virginia, v. Jackson See dence. of, intended (2) ‘knew conspirator each ” L.Ed.2d 99 S.Ct. conspiracy.’ in the participated join and Turnley’s (1979). Accordingly, we affirm 1110, 1120 Elder, States count. conspiracy the conviction omitted). Cir.1996) (citation (6th satisfied knowledge is “Proof of III. es knew the the that defendant

by proof question the now turn We Ev- conspiracy_ object of the sential in admit court erred whether the an not be need conspiracy member of ery judgment of a copy a certified ting the every of phase participant active previous from Ward’s order commitment the party to he is a long so as conspiracy, extraneous contained that drug conviction Unit- agreement.” conspiratorial general to in sought material. v, Hernandez, 358 31 F.3d ed States previously Ward was that evidence troduce (internal marks Cir.1994) (6th quotation in a federal and sentenced convicted omitted). of The connection citation ap distribute intent to possession for need conspiracy the defendant the of cocaine kilograms 11 proximately evidence is sufficient if there slight of Evidence Rule authority Federal of a reason- beyond connection the establish requi 404(b) had the Ward proof that as id. doubt. See able cocaine possess intent to site criminal the court objected, but case. Ward this only evi that the Turnley argues evi into drug conviction prior allowed the refer “passing him awas against dence 404(b), instructing the Rule under dence one of Turnley was Terry that by ence” the to consider not they were jury that that Turnley concedes distributors. that Ward as evidence prior conviction that she Thompson testified Ida witness here, charged but crimes custom committed of Lewis’s Turnley to be one knew that prove tending only as evidence testified, he never ers, Lewis for intent requisite or had of his Ward name as one Turnley’s mentioned The court possession. of cocaine govern crime And while Terry’s customers. they jury instruct on to went show phone bills records of points ment proof conviction prior use could also Turnley, Terry and between calls made ing intent, prepara- “motive, opportunity, of by pointing this evidence Turnley rebuts tion, plan, knowledge, identity (6th so forth Because accident”; and the absence of mistake or Ward did not properly object to the unre- these, course, being all of the factors judgment order, dacted our review is limit- 404(b). Plainly, listed Rule none of the ed to an assessment plain for error. See factors, named “intent” possibly save Cowart, States v. 90 F.3d “knowledge,” issue in the case and Cir.1996). We have may held we they justification were not admitting our exercise discretion to plain reverse for conviction evidence. error only when the failure to do so would result in a manifest miscarriage justice. The document admitted to prove the See Co., Finch Monumental Ins. prior conviction and sentence contained a Life We do by statement sentencing judge not believe the district apparent court’s drug Ward was a “big-time dealer.” At failure to notice the four-word comment in the time of document, admission the five-page document can properly be object Ward not did to this extraneous characterized as error statement, so serious as to and did not ask that it be re- result in miscarriage justice, Therefore, particu- dacted. there is nothing in the larly given that the defense counsel record to failed suggest the court did did bring the matter to perform analysis an court’s atten- under Fed.R.Evid. tion. 403 to determine whether probative value of conviction was substan- out, point however, We that while tially outweighed nature the commitment order was properly ad sentencing court’s statement. missible under Federal Rule of Evidence However, during jury instruction discus- 404(b) as tending evidence to show that sions, attorney brought “big- Ward had requisite intent to commit time dealer” comment to the court’s charged, crimes we believe the attention, objected admission instruction was erroneous. The district the document. The document already had listed all of simply the factors named jury; therefore, been shown to the in the rule for which evidence of un suggested to Ward’s counsel that he charged misconduct might be admissible come up jury with a instruction to deal any case, even though of most them were

with the comment. Not sur- applicable not instance, to this case. For prisingly, Ward’s counsel declined to offer Ward’s defense was not that she mistaken any suggestion, preferring to further ly thought she selling powdered was sugar draw the jurors’ matter to the attention. cocaine, instead of thereby justifying Rule 404(b)

Despite the district court’s errone to prove evidence of “absence mis jurors ous advice to the as litany accident,” to the take or and no issue was raised purposes under Federal Rule of Evidence in the case suggesting “identity” was 404(b) for which they could consider the Similarly, jurors issue. could not conviction, prior does not argue possibly Ward have understood how the prior the commitment order should have been conviction would have been relevant argues excluded. She instead that prove it was “opportunity” “motive” or “prepa or highly prejudicial to admit the order with ration” “plan” forth,” or or “and so as out excising “big-time by dealer” instructed the court. The district court party statement. But opposing the ad should jury have instructed the mission of a ground document on the could use the only conviction for its prejudicial matter, it contains “has the worth as proof that Ward had the intent to burden of requesting redaction 404(b) and forfeits commit the charged. crimes Rule right evidence, to exclude the statements if [s]he even properly admitted, fails specific to make request.” instruction, See under a properly limiting asks Engebretsen v. Fairchild Corp., jurors to engage in mental gymnastics that Aircraft innocence guilt their and decide rately ability or even their beyond be

may well separately. has great evidence Such willingness. their ordinari- prejudice, for unfair potential that “in con is rule general carefully and court's only the trial ly it is cases, jointly indicted persons spiracy as limiting instruction clearly articulated the defen together should tried —and the evi- which for purpose specific

to the substantial proving has burden dant jurors, by the may be considered dence sepa grant a refusal from prejudice to the unfairness substantial that avoids trial.” rate Id. was instruction Here, court’s accused. here. that burden not carried has Morris there was error, but since certainly all, instructions were court’s First instruction, the part of to this objection each judge should very clear that for at least admissible conviction was second, And separately. case defendant’s district recited purposes of the one over- against evidence Morris our dis- to exercise court, and we decline highly implausible is whelming. It do, how- We error.” find “plain cretion to by associa- guilty be deemed Morris would courts, when admit- ever, caution district considering the guilt, based Ward’s tion evidence, 404(b) to instruct ting Rule that Morris strength of the evidence may be act” evidence the “other jury that and Ward conspiracy ring leader specific to the respect only with considered “second-in-command.” usually factor named rule — If the case. in the in issue is one—which specific to the as V. is uncertain may be evidence such for which purpose has the issue that now turn to We admissible, ought inquire jour in federal du argument become for purpose which prosecutor country: throughout courts offered, a deter- then make being it is 201(c)(2) to situations applies U.S.C. whether, judgment, in the court’s mination offer codefend- prosecutors federal which in the case. inis issue purpose the named or a sentence sentence a reduced ants by reason was waived the error Because pursuant recommendation reduction object, properly failure the defendant’s Sentencing Guidelines section 5K1.1 harm- may be deemed on the whole gov with the cooperation exchange for less, conviction. affirm Ward’s we 201(c)(2) that it provides Section ernment. offer, or give, anyone a crime is IV. any person, of value to anything promise given ... testimony or because is “for we address issue must next ? as a witness person such given its dis or to abused court the district in defendants trial.” The three a upon a request for denying Morris’s in cretion applies provision argue that case this v. this States United trial. separate See Hofs disagree. We (6th of this to the facts case. 316, tatter, 323 8 F.3d however, note, that our resolution the rest We from severance requested Morris opinion of by an simplified issue is After the this several times. of the defendants in United of this panel another admit Ward’s it would court ruled that Cir.1998), (6th Ware, 414 161 F.3d v. mo States conviction, his Morris prior renewed — -, denied, 119 U.S. rt. severance, claiming that Ward’s tion a for ce (1999). In 1348, 511 143 L.Ed.2d “big- as a S.Ct. designation conviction and court, well- thorough in Ware, this unfairly prejudice would time dealer” section held opinion, reasoned associated. the two were Morris because 201(c)(2) of prosecutors apply not does but request, Morris’s The denied if and even sentencing; fering leniency it to consider jury that was instructed the rule would did, exclusionary sepa- to each the evidence as defendant 491 testimony of apply bring any to the the witnesses ine the witnesses to inconsisten- lighter testimony sentences ex- cies in to the who were offered attention of the testimony. jury. id. at change for their See We know of no rule that stands for will, must, that, proposition 419-21. We as we follow full even with cross- examination, ruling panel, of the Ware and hold that 18 perjured introduction of 201(c)(2) apply testimony does not to feder- per U.S.C. se warrants a new trial. attorneys. al prosecuting Regarding the defendants’ claim of deni process, al of due this has stated that VI. might errors that not be when We next address the court’s re- alone, together produce viewed may a fun Turnley mistrials grant fusal to Morris and damentally unfair trial. See United States alternative, trials, or, new (6th Ashworth, v. 836 F.2d Cir. Terry claim basis of their committed 1988). However, we have also cautioned They perjury perjury. and subornation of give weight that to much too to the cumu allege also that the combination of these lative effect of errors would “violate the errors, alleged as well as the district Supreme warning Court’s v. Glasser court’s denial of Morris’s motion for sever- States, 60, 83, 315 U.S. 62 S.Ct. ance and the admission of Ward’s (1942): guard 86 L.Ed. 680 We must conviction, so infected the trial that their against magnification appeal of in process rights due were violated. stances which were of importance little ” Ashworth, setting.’ their The denial of motions for a mistri omitted). (parallel citations Because we al or new trial are reviewed for an have concluded that the district court did abuse of discretion. See United States v. rulings judgments, not err in its there Moore, Cir.1990), 917 F.2d is cumulative effect from which to con Garner, United States clude that there has been a denial of due process. that, argues Terry while there is some evidence that VII. perjured regarding himself collateral is sues, at perjury brought his turn Finally, sentencing we to the one jury by tention of the the defendants challenge: Turnley’s claim that the district themselves when all three defendants court erred when it included in calcu- given virtually were unlimited latitude to sentence, Turnley’s lus of conduct for Terry cross-examine and other witnesses wit, acquitted, which he had been distri- regarding the collateral matters about to sell possession bution intent Terry which lied. April cocaine base on 1996. The facts rely Turnley

The defendants on United States v. of are charge as follows: (2d Wallach, Cir.1991), 935 F.2d 445 in in the car one Thomasina Christian informant, drags which the court held that the issue of sold to a confidential perjured testimony requires phone whether a an earlier recorded call from the depends materiality new trial of the not informant to Christian did reveal However, perjury prose- Turnley’s and the extent to which the testi- name. Christian perjured Turnley person gave cution was aware of the testimo- fied that was the who ny. drags price. See id. at 456. We think Wallach her the and dictated the At here, not in that apply sentencing, adopted does because case the court the recom- perjured testimony brought was not in the presentence mendation contained here, marijuana jury, report equivalen- the attention of the whereas to include the conduct, court gave opportu- cy the defendants several of the crack cocaine as relevant calculating Turnley’s nities level. The to cross-examine and recross-exam- offense 492 the district court’s sentencing range We review Turnley’s

result is that that the relevant conduct finding factual months to 360 increased from 324-405 was of the evi by preponderance a occurred Based on Turn- prison. to life in months for clear error. See United States dence history, the court criminal ley’s extensive (6th Cir.1994). Pierce, 146, 17 F.3d 151 v. prison. life in him to sentenced Turnley acquit that Despite the fact objections to the Turnley did not submit transaction, say we cannot ted of the report. Accordingly, presentence clearly relying upon erred that the court declare that it explicitly not court did conclude, by a testimony to Christian’s of the evidence by preponderance a found evidence, that preponderance Turnley supplied the cocaine base to that Turnley acquitted, which conduct for her sale to the informant. Christian indeed occurred. Instead, find- adopted the court the factual Regarding Turnley’s contention guideline applications pre- ings and court did not make a that the district Turnley argues two report. sentence that conduct finding on the record (1) obligated the court was things: occurred, this court held United States acquitted proved that the conduct was find (6th 1290, Wilson, v. 920 F.2d 1295 Cir. convincing instead of by clear and evidence 1990), that because the district (2) standard; and preponderance report its find adopted presentence least, required the court very law, presentence fact and re ings of finding on the record make be examined to determine port must by a preponderance conduct occurred findings sufficient were made on the evidence. But, support the record to the sentence. also stated that a failure to this court has Turnley object Because did not object presentence report to the waives presentence report, we review his any objections. future See United States have used argument that the should (6th Duranseau, v. 1123 convincing plain standard for clear object Turnley Because did Olano, v. 507 error. See United States presentence report that included a 725, 732, 113 S.Ct. 123 L.Ed.2d U.S. conduct, of the relevant the dis discussion (1993). a court can correct an 508 Before that it trict court was not on notice had to below, it error not raised must determine the record. specific findings make more (1) (2) error; that there was: an that is We do not believe the district (3) i.e., law; in the plain, well-settled con acquitted erred when included (4) rights; affects substantial preponderance it found duct because miscarriage result in a serious would that the conduct occurred. of the evidence Dedhia, v. justice. See United States 134 Accordingly, we affirm the sentence. — denied, Cir.), cert. -, L.Ed.2d U.S. 118 S.Ct. VIII. (1998). Despite some difference of reasons, For we AFFIRM the the above opinion among the circuits as to which convictions of all three defendants and use, standard to see United v. States Turnley’s sentence. Watts, 148, 156-57, 519 U.S. S.Ct. (1997), 136 L.Ed.2d 554 this court has COLE, part Judge, concurring Circuit adopted convincing never the clear and dissenting in part. standard, August, see United States Accordingly, majority I ex- opinion, concur with the err, much III, we hold that the court did not Ward’s cept section which addresses 404(b) err, I be- plainly using preponder less claim. Because Fed.R.Evid. prior the admission Ward’s ance of the evidence standard. lieve ure ask for a specifically and commitment order was un- redaction of judgment respectfully I dissent fairly prejudicial, judgment commitment order at regard with to that issue. Indeed, majority trial. writes that argue “Ward does not the commit- matter, an initial I do not believe that As ment order should have been excluded.” un- majority opinion fully captures the my This is not understanding of either subjected in fairness to which Ward argument argument Ward’s below or her Indeed, reading majority this case. trial, before this court. Before as the might one conclude that the opinion, notes, majority objected Ward under inflammatory in Fed. material contained Ward’s 404(b) commitment order was prior judgment any R.Evid. to the introduction of drug dealer” com- “big-time the court’s evidence of her crime. Further- Certainly, question ment. there is more, again objected she under Rule highly manifestly prejudicial it was to 404(b) to the introduction of her government to alert the allow the judgment and commitment order.3 As District the fact the United States notes, judg- Ward the redaction of the Kentucky Court for the Eastern District ment merely and commitment order was big-time drug had dealer.1 labeled Ward option one available to the district court out, however, even more points As Ward 404(b), excluding under Rule as was inflammatory order’s was the relevant-con- together. order all Cf. United States section, duct which concluded that Ward Mernweather, very for acts at issue responsible Cir.1996) (stating that a court’s exclusion Thus, per- court this case. the district 404(b) a tape recording under could a doc- mitted introduce proof have either allowed on matter another ument contained federal dis- question by by playing other means that, judge’s trict all conclusion for intents offending portions tape). less guilty and purposes, Ward was as charged.2 I majority need not elaborate is correct that Ward did jury. effect this must have had on the identify specific inflammatory por- judgment tions and commitment prejudicial Given the nature of the com- order before it was admitted. Neverthe- judgment contained' in the ments less, invoke sought because Ward order, prejudi- commitment as well as the judgment court’s discretion to exclude the itself, cial I would nature the order entirety and commitment order its be- if I agreed inclined reverse even than proba- cause it was more majority’s conclusion that Ward tive, objections pre- her were sufficient to objection waived her to the admission of serve the matter for review. See Charles I agree this evidence. do not with that Jr., Graham, conclusion, W. majority’s Wright Alan & Kenneth opin- however. The Procedure, places emphasis ion much fail- Practice Federal & statement, order, 1. The which describes the reason tion the court counted as relevant con- why imposed a 240-month sentence Keys Keys April duct "11.90 and 38 1995.” possessing on Ward for cocaine with intent to pro- as "To distribute reads follows: "[tjhere attorney simply that 3.Ward’s stated respect provide just pun- mote for the law & objection, is Your Honor.” The court not- an ishment, and act a deterrent to crim- future objection, ed the and it is clear from the Deft, dealer, activity. big-time drug inal is a record that the understood the nature of crime; just for the sentence is A Indeed, shortly objection. justi- sentence of 240 mos. is sufficient and granted thereafter defendants ... con- "[a]ll fied.” 404(b) tinuing objection to evidence.” See 103(a)(1) (requiring litigants to Fed.R.Evid. case, possess- In this Ward stood accused of 2. grounds objections specifically state the ing with intent cocaine to distribute dis- ground apparent specific was not from April "if tribution of cocaine on or about context”). prior judgment 1995. In Ward's and convic- (“Counsel instructing jury than the (1982) purposes, rather has done all the if on the point the he that it could consider the order preserve requires Rule words, under In “the ground ‘prejudice’ of intent. other question ‘objects’ 403.”).4 question the instructing is plainly There erred district likely have more been judge jury would that the admissible [evidence was] district the question had the evidence ‘plan,’ to exclude prove ‘opportunity,’ ‘preparation,’ ” attorney detailed the factors that Ward’s Id. ‘knowledge,’ or ‘absence of mistake.’ case, to balance in this see judge added). Furthermore, the (emphasis at 1077 that this lack of id., cannot conclude I in the absolutely is no indication there a waiver. constitutes detail that, erroneous giving record this instruction, any court conducted sort of event, any it is clear that the district In po- Rule 403. “Given the balancing under to follow this court’s instruc- court failed confusion, misuse, and unfair tential for of Rule proper application for the tions evidence, act it is prejudice from other 404(b). that the district court make an preferable defendant, objection by the Upon explicit finding regarding the Rule 403 bal- evidence, usually proponent of Myers, v. 123 F.3d ancing.” United States required should be to iden- government, (6th balancing Such purposes or tify specific purpose necessarily the conclu- would have led to government offers the evi- which the that, may although crimes, sion wrongs, “other or acts.” dence of to introduce some evi- requiring proponent have been entitled ... After for which identify specific purpose regarding dence acts de- offered, fendant, is the district court judgment the evidence and commitment or- identified determine whether the substantially must more der motive or prove purpose, probative. balancing pro- than A factor in identity pur- some other [or] intent prejudice and unfair is the bative value “material”; is, it is that whether is pose, availability proof. of other means of See in the case. If court finds “in issue” Latouf, United States v. 132 F.3d is, determine, then it must fact, government, evidence, admitting the other acts before informed the court that it had witnesses probative value of the evi- whether the testify prior pos- who could as to Ward’s outweighed by substantially dence is drugs, in the event that session of Rule danger prejudice of unfair under judgment court disallowed the and com- Rule 403. If the evidence satisfies mitment order. evidence, then, receiving after I that the Because believe admission “clearly, simply, court must and commitment order judgment jury correctly” instruct as to the 404(b) Fed.R.Evid. 403 and error5 under may con- specific purpose they for which law, major- and our case I dissent from the sider the evidence. I ity’s opinion regard. this would re- Merriweather, 78 F.3d at 1076-77. As the verse conviction and remand for notes, majority the district errone- new trial. ously jury when the instructed —both in the again order was introduced and court’s final instructions —that judgment consider the and commit-

might any a number of

ment order for one of circuit, Additionally, required are 5. I would not conclude that the 4. In this district courts Merriweather, balancing conduct Fed.R.Evid. 403 in evaluat- error was harmless. See 404(b) ing objection. a Rule See United States F.3d at 1079. Cir.1997); Myers, 363-64 Merriweather, 78 F.3d at 1076-77.

Case Details

Case Name: United States v. Cheryl Ward, A/K/A Cheryl Morris (97-6089), Earl Morris (97-6199), and Larry Turnley, A/K/A "l.t." (97-6200)

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 5, 1999

Citation: 190 F.3d 483

Docket Number: 97-6089, 97-6199, 97-6200

Court Abbreviation: 6th Cir.