Lead Opinion
GILMAN J., dеlivered the opinion of the court, in which DAUGHERTY, J., joined JOHN R. GIBSON, J. (pp. 726-27), delivered a separate dissenting opinion.
Elmer J. Haywood was indicted and convicted on one count of possession with the intent to distribute 18 grams of crack cocaine on August 1, 1997. As part of its proof that Haywood intended to distribute the crack cocaine allegedly in his possession on that date, the government offered evidence that Haywood was subsequently arrested for possessing 1.3 grams of crack cocaine on December 21, 1997. Haywood objected to the admission of this evidence, arguing that it was both irrelevant and unfairly prejudicial. The district court overruled his objection. For the reasons set forth below, wе REVERSE Haywood’s conviction and REMAND the case for a new trial.
I. BACKGROUND
A. Factual background
This case arises from Haywood’s alleged sale of crack cocaine to a government informant on August 1, 1997. The Federal Bureau of Investigation (FBI) orchestrated the crack cocaine purchase as part of its investigation into illegal drug sales at an apartment complex located at 610 South Scott Street in Lima, Ohio. Michael Liles, a friend of Haywood, was the principal target of the investigation.
DeWayne Spears assisted the FBI in its investigation by serving as a confidential informant. Spears was serving in that capacity when, on August 1, 1997, he saw Haywood standing outside of Apartment
Spears subsequently informed FBI Agents David Dustin and Carl Spicocchi of the pending crack cocaine sale. Agents Dustin and Spicocchi met with Spears a short time later and equipped him with a monitoring wire and tape-recording device. Spears then departed for Apartment # 7.
Minutes later, Spears met Haywood in front of the apartment. They entered after a brief conversation, with Liles entering shortly thereafter. Spears proceeded tо discuss the crack cocaine salé with both Haywood and Liles. Either Haywood or Liles then went to the basement of the apartment and retrieved crack cocaine, weighed it on a scale in the kitchen, and presented it to Spears. Spears purchased the crack cocaine, which totaled 18 grams, for $900.
Once in possession of the crack cocaine, Spears left Apartment # 7 and met a second time with Agents Dustin and Spicoc-chi. He gave the agents a detailed account of his encounter with Haywood and Liles.
Haywood was arrested nearly a year later for selling the 18 grams ,of crack cocaine to Spears. In the meantime, Haywood had been arrested for possession of crack cocaine on December 21, 1997. This arrest occurred after Lima Police Officers Michael Bean and Brian Leary, searching for Haywood in regard to a matter unrelated to the present case, saw him riding in a vehicle driven by Liles. In searching Haywood pursuant to a lawful stop, Officer Bean found a rock of crack cocaine weighing 1.3 grams in Haywood’s jacket pocket. Haywood was charged in state court with possession of crack cocaine, but the prosecutor later dismissed the charge.
B. Procedural background
In July of 1998, a federal grand .jury indicted Haywood on one count of possession of crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a). The count arose from the August 1, 1997 crack cocaine sale. Haywood pled not guilty to the count. The case then proceeded to trial in the United States District Court for the Northern District of Ohio. At trial, the evidence focused on whether it was Haywood or Liles who sold the crack cocaine to Spears on August 1,1997.
To prove that Haywood was the one who sold the crack cocaine on that date, the government relied primarily on testimony from Spears, Agent Dustin, and Agent Spiccochi, as well as on the tape recording of the crack cocaine sale. Spears testified that Haywood retrieved the cocaine from the basement, weighed it, and presented it for sale. He further said that Haywood accepted the $900 payment for the crack cocaine.
Agent Dustin’s testimony focuse'd on bolstering Spears’s credibility. Dustin said that Spears volunteered as a confidential informant because he was concerned with crime in the community. Spears, according to Dustin, was also timely in meeting with the FBI and never appeared to be under the influence of drugs or alcohol. Agent Spicocchi added that information provided by Spears led to the indictment of 15 individuals on federal drug charges, with 5 other individuals indicted on state and local charges.
Haywood, on the other hand, relied on testimony from Liles and Agent Spicocchi to prove that it was Liles who sold the crack cocaine. Liles testified on direct
Not all of the evidence at trial, however, directly related to whether Haywood or Liles sold the crack cocaine to Spears on August 1, 1997. The government also offered evidence that it contended was indirectly probative as to whether Haywood intended to distribute the crack cocaine allegedly in his possession on that date. Specifically, the government offered the testimony of Officers Bean and Leary regarding their recovery of crack cocaine from Haywood on December 21,1997.
Haywood objected to the admission of any evidence regarding his December 1997 crack cocaine possession. He argued that such evidence had “nothing to do with this case” and would cause “unfair prejudice.” The government countered that the evidence was admissible under Rule 404(b) of the Federal Rules of Evidence to prove Haywood’s intent on August 1, 1997. Agreeing that the testimony was admissible under Rule 404(b), the district court overruled Haywood’s objection.
Officer Bean then testified that he recovered 1.3 grams of crack cocaine from Haywood on December 21, 1997. He described the crack cocaine as a single rock, slightly smaller than a golf ball. The district court gave a contemporaneous instruction that the jury could consider Officer Bean’s testimony only “with regard to the issue of intent to the extent that it is relevant in this case.” After this instruction, Officer Leary took the stand and essentially corroborated the facts as related by Bean. A cautionary instruction similar to that given following Bean’s testimony was neither requested by Haywood nor given by the district court.
The jury subsequently found Haywood guilty on the drugtrafficking count. He was later sentenced by the district court to a 115-month term of imprisonment, with an additional 5 years of supervised release. Haywood now appeals, arguing that the district court committed reversible error when it admitted the evidence of his December 1997 possession of crack cocaine.
II. ANALYSIS
A. Framework for analyzing the admission of evidence of other acts under Rule 404(b)
Rule 404(b) provides that evidence of other acts is “not admissible to prove the character of a person in order to show action in conformity therewith.... ” Such evidence, however, may be admissible for other purposes, including proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistаke or accident....” Id.
This court has set forth a three-step process for determining the admissibility of evidence of other acts under Rule
In the present case, Haywоod concedes that the other act at issue — his possession of crack cocaine on December 21, 1997-— actually occurred. The analysis thus focuses on (1) whether the evidence of Haywood’s crack cocaine possession on that date is probative of a material issue other than his character and (2) whether the probative value of the evidence is substantially outweighed by its potential prejudicial effect.
B. Standard of review
We review a district court’s rulings regarding both the second and third steps of the Rule 404(b) admissibility analysis to determine whether the district court abused its discretion. United States v. Mack,
Haywodd, however, contends that we should review de novo the district court’s holding with regard to the second step in the Rule 404(b) analysis. As support for this proposition, Haywood relies on this court’s decision in United States v. Wells,
But this court concluded in Trepel v. Roadway Express, Inc.,
C. The district court abused its discretion in holding that the evidence of Haywood’s December 1997 crack cocaine possession was probative of a material issue other than character
Evidence of other acts is probative of a material issue other than character if (1) the evidence is offered for an admissible purpose, (2) the purpose for which the evidence is offered is material or “in issue,” and (3) the evidence is probative with regard to the purpose for which it is offered. Johnson,
The inquiry therefore begins with the question of whether the government offered the evidence of Haywood’s Decеmber 1997 crack cocaine possession for an admissible purpose. According to the government, this evidence was offered as
Next, the inquiry turns to whether Haywood’s intent was material or “in issue” during his trial. This court has held that “[w]here there is thrust upon the government ... the affirmative duty to prove that the underlying prohibited act was done with a specific criminal intent, other acts evidence may be introduced under Rule 404(b).” Johnson,
The inquiry thus shifts to whether the evidence of Haywood’s December 1997 crack cocaine possession is probative of his intent to distribute crack cocaine on August 1, 1997. To determine if evidence of other acts is probative of intent, we look to whether the evidence relates to conduct that is “substantially similar and rеasonably near in time” to the specific intent offense at issue. United States v. Blankenship,
We must first decide whether the evidence of Haywood’s December 1997 crack cocaine possession is “substantially similar” to the offense at issue — possession of crack cocaine with the intent to distribute. The dissent apparently believes that it is, relying on cases from the Fifth, Eighth, and Eleventh Circuits that have held that a defendant’s possession of drugs for personal use is relevant to prove his intent to distribute drugs found in his possession on another occasion. United States v. Logan,
But we are unable to discern a compelling rationale for this approach, which fails to recognize that “[a]cts related to the personal use of a controlled substance are of a wholly different order than acts involving the distribution of a controlled substance. One activity involves the personal abuse of narcotics, the other the implementation of a commercial activity for profit.” United States v. Ono,
Accordingly, the substantial-similarity analysis turns on whether Haywood intended to distribute the 1.3 grams of crack cocaine in his possession in December of 1997. United States v. Watson, No. 96-5772,
Finally, the government offered no other circumstantial evidence that would support the conclusion that Haywood intended to distribute the 1.3 grams of crack cocaine. Haywood, for example, had not divided the crack cocaine into individual allotments suitable for sale. United States v. Jones, Nos. 91-6005, 91-6032,
The record, then, contains no evidence showing that Haywood intended to distribute the 1.3 grams of crack cocaine. Absent such evidence, Haywood’s December 1997 crack cocaine possession has no bearing on whether he intended to distribute the crack cocaine allegedly in his possession on August 1,1997.
This conclusion renders moot the question of whether Haywood’s December 1997 crack cocaine possession is “reasonably near in time” to the offense with which he was charged. When an act and a charged offense are so dissimilar that the act has no logical tendency to prove the intent element of the charged offense, no degree of temporal proximity will infuse the act with probative value. United States v. Bakke,
For all of the reasons set forth above, we conclude that the district court abused its discretion in holding that the evidence of Haywood’s possession of crack cocaine
D. The district court abused its discretion in implicitly holding that the probative value of the evidence of Haywood’s December 1997 crack cocaine рossession was not substantially outweighed by its potential prejudicial effect
Even if we were to determine that the evidence of Haywood’s December 1997 crack cocaine possession was probative of a material issue other than character, our inquiry regarding the admissibility of the evidence would not end. Probative “other acts” evidence is nevertheless inadmissible if the value of the evidence is substantially outweighed by its potential prejudicial effect. Johnson,
In the present case, however, the district court did not explicitly perform this required balancing. The district court thus overlooked this court’s preference “for an explicit finding regarding the [required] balancing” in light of the “potential for confusion, misuse, and unfair prejudice from other act evidence.” United States v. Myers,
We conclude that the district court abused its discretion by implicitly determining that the probative value of the evidence of Haywood’s December 1997 crack cocaine possession was not substantially outweighed by its potential prejudicial effect. Specifically, the evidence was both unfairly prejudicial and unnecessary.
First, the evidence of Haywood’s December 1997 crack cocaine possession “unquestionably [had] a powerful and prejudicial impact.” Johnson,
Second, there was other evidence regarding Haywood’s intent. Myers,
Finally, the admission of this prejudicial evidence was not remedied by the district court’s instruction to the jury that the evidence could be considered only as it related to Haywood’s intent. United States v. Seiber, No. 96-6463,
For all of the reasons set forth above, we сonclude that the district court abused its discretion in implicitly holding that the probative value of the evidence of Haywood’s December 1997 crack cocaine possession was not substantially outweighed by its potential prejudicial effect.
E. The district court committed reversible error in admitting the evidence of Haywood’s December 1997 crack cocaine possession under Rule 404(b)
We must next decide whether the district court’s improper admission of the evidence of Haywood’s December 1997 crack cocaine possession requires us to reverse Haywood’s conviction. In making this decision, we examine the likely effect that the inadmissible evidence had on the jury’s vеrdict.
Specifically, we will presume that the district court’s error was reversible unless we can say, “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.... ” Kotteakos v. United States,
Haywood’s guilt was significantly contested in the present case. Although the
In the absence of overwhelming evidence establishing Haywood’s guilt, we conclude that the admission of the highly prejudicial evidence of Haywood’s December 1997 crack cocaine possession was not harmless. The government, however, contends that this conclusion does not end the inquiry into whether the district court’s admission of the evidence is reversible error. Instead, it urges that we must review the district court’s admission of the evidence under the “plain error” standard.
The government bases its argument on Haywood’s failure to cite Rule 404(b) when objecting to the evidence of his December 1997 crack cocaine possession. According to the government, Haywood objected only on general relevancy grounds. The government concedes that Haywood’s objection preserved his argument regarding the relevancy component of the Rule 404(b) admissibility analysis; that is, Haywood’s argument that the evidence was not probative of a material issue other than character. But the government contends that Haywood’s objection does not preserve his argument that the probative value of the evidence was substantially outweighed by its potential prejudicial effect. Thus, if we hold that the evidence is inadmissible on the basis of balancing relevancy versus prejudice, the government insists that we must review the improper admission of the evidence under the plain error standard of review. United States v. Lucas, Nos. 94-5625, 94-5674,
The government’s argument, however, lacks merit. An objecting party is required to state “the specific ground of objection” only if the ground “was not apparent from the context....” Fed. R.Evid. 103(a)(1). Haywood explained to the district court that he was objecting to the evidence of his December 1997 crack cocaine possession because it was both irrelevant and prejudicial. These are the two key elements in the admissibility analysis under Rule 404(b). Johnson,
III. CONCLUSION
For all of the reasons set forth above, we REVERSE Haywood’s conviction and REMAND the case for a new trial.
Dissenting Opinion
dissenting.
I respectfully dissent. The district court did not abuse its discretion in admitting Haywood’s December 1997 crack possession under Fed.R.Evid. 404(b). The evidence was admissible to show Haywood’s intent to distribute crack in the sale to Spears at issue here and his knowing possession of crack at that time.
Under Rule 404(b), evidence of other crimes, if more probative than prejudicial, is admissible to prove knowledge or intеnt. See United States v. Dabish,
The Fifth Circuit recognizes that distinction. Like a number of sibling circuits, it follows a rule of admissibility that dictates a result opposite to the court’s result today: other acts of drug possession, regardless of quantity, are routinely admissible under Rule 404(b) to prove intent to distribute drugs at another time. See United States v. Gadison,
This rule is especially plausible if it is narrowed to cases such as Haywood’s, where the drug in the prior or subsequent possession and the drug the defendant is charged with distributing are the same. Evidence that a defendant carries a certain kind of drug with him suggests a degree of involvement in the trade that tends to support an inference of intent to distribute that drug at another time. Cf. United States v. Templeman,
Even if we hold that a rule such as the Fifth, Eighth and Eleventh Circuits’ is in
At a minimum, the district court’s decision to admit the evidence did not rise to the level of an abuse of discretion, as required for reversal. Any need to exclude was eminently debatable. There was thus no reversible error under Rule 404(b).
Since in my view the evidence of the subsequent crack possession also easily met the admissibility requirements of Rules 402 (relevance) and 403 (probative value not substantially outweighed by unfair prejudice), essentially for the reаsons discussed above, I would uphold Haywood’s conviction. I respectfully dissent from the court’s opinion.
Notes
. In analyzing whether the conduct was substantially similar, the court works to distinguish three unpublished opinions of this circuit, each of which found a prior drug possession admissible to show intent to distribute. See supra pp. 721 -22 (opinion of the Court). The proper approach to this case is open in any event, since "unpublished opinions are never controlling authority.” Fonseca v. Consolidated Rail Corp.,
. Even those courts that disagree with the broad rule of admissibility in intent-to-distribute cases gauge the admissibility of prior or later possessions on a case-by-case basis. See, e.g., United States v. Monzon,
. Even supposing the district court’s decision to admit the evidence of the later craсk possession was an abuse of discretion, I think the trial’s outcome was not "substantially swayed” by the supposed error. See supra at p. 724 (quoting Kotteakos v. United States,
Spears testified that he bought crack from a man named Emo. This purchase took place in Apartment 7 of the [apartments] where Emo's sister lived.... Spears picked Haywood out of a photographic lineup as Emo the very week these events occurred, and later identified Haywood in open Court.
In addition to this identification, more than one witness testified that Haywood used to wear his hair in an Afro. FBI agеnts observed Spears talking with a man with an Afro just moments before the controlled buy.... Liles testified that drug transactions carried out at Apartment 7 were attributable to Emo, an alias used by Haywood. Finally, a recording of the drug deal was played at trial and, because both Spears and Liles had testified, the jury could perform a comparison of their voices with those of the men recorded on tape.
[Spears] stood firm in his testimony in the face of a vigorous cross examination at trial. He consistently stated that he bought the crack from Haywood. If anything, the presence of Liles in Apartment 7, and his limited participation in the deal between Haywood and Spears, supports a conviction of both Haywood and Liles. It certainly does not exonerate Haywood, or establish that Spears has a poor memory.
(App.418-19) (footnote omitted).