UNITED STATES of America, Plaintiff-Appellee v. Joshua Jermaine KINCHEN, Defendant-Appellant.
No. 12-30340.
United States Court of Appeals, Fifth Circuit.
Sept. 5, 2013.
729 F.3d 466
Gwendolyn Kay Brown, Attorney, Parish Attorney‘s Office, Baton Rouge, LA, for Defendant-Appellant.
HAYNES, Circuit Judge:
A jury found Defendant Joshua Jermaine Kinchen (“Joshua“) guilty of knowingly distributing at least 50 grams of cocaine base in violation of
I
Federal Bureau of Investigation (“FBI“) Agent Bret Stiles worked with local police in connection with the investigation of a drug-trafficking organization. The target of the investigation was Roger Brooks (“Roger“), the head of the organization. Stiles paid Quamlisha Brooks (“Quamlisha“) for services as a confidential informant. At Stiles’ direction, Quamlisha arranged to purchase two and one-quarter ounces of cocaine base from Roger.
Quamlisha contacted Roger to arrange the drug deal. Quamlisha was on the telephone with Roger while driving to a nearby convenience store to purchase the cocaine. She parked her car at a gas pump next to a maroon Ford Expedition with license plate number OIC578.1 Still on the phone with Roger, the driver of the Expedition got her attention and identified himself as “Lil’ Maine,” and Quamlisha asked Roger if he sent this individual to sell her the cocaine instead of coming himself. Quamlisha handed the telephone to the Expedition‘s driver. Roger verified the seller, and the drug sale occurred.
Leaving the store, Quamlisha called agent Stiles, who was nearby observing the transaction, and told Stiles the driver was not Roger, as they both had expected. Stiles followed the Expedition to Old River Road, the street Joshua lived on with his brother, Nathaniel Kinchen (“Nathaniel“), and then called local police to see if they knew anyone who used the nickname “Little Maine.” A detective at the police station believed that Joshua was known as “Little Maine.” On the same day as the drug transaction, Stiles showed Quamlisha a photograph of Joshua and asked, “Who is this?” She identified the person in the photograph as the Expedition‘s driver. Quamlisha also selected the same photograph of Joshua out of a photographic lineup seven months later. A single count indictment charged Joshua with distributing 50 grams or more of cocaine base, in violation of
Prior to trial, the Government moved to introduce evidence that Joshua had a prior conviction for possession of cocaine. Ten months prior to the charged offense, in a separate incident, a detective, Corporal John Johnson, stopped and searched Joshua and found 21 grams of crack cocaine and $3522 cash in his pocket. Joshua was convicted for that possession in July 2009, a month before the charged offense. The Government also sought to admit a concurrent statement made by Joshua to John-
The district court held multiple pre-trial hearings considering the admissibility of Johnson‘s testimony. The district court held that both the possession and the concurrent statement would be admissible, subject to the condition that the Government make no reference to Joshua‘s coincident arrest or conviction. The Government agreed that it would not introduce evidence of Joshua‘s 2009 conviction, but specified that Johnson would testify that he found crack cocaine on Joshua and repeat the statement that Joshua made to him. Over Joshua‘s objection, the district court ruled that the evidence of Joshua‘s prior possession and statement was intrinsic to the crime charged. The court alternatively ruled that the evidence was admissible under Rule 404(b) of the Federal Rules of Evidence as evidence of identity, motive, or intent.
At trial, Joshua contended that his brother Nathaniel, who looks similar to him, was the driver of the Expedition. In fact, Roger testified that he knew Nathaniel, not Joshua, as “Lil’ Maine” and “Maine Maine.” Roger testified that on the day of the transaction, he was leaving town and called Nathaniel with instructions to obtain cocaine for sale to Quamlisha. Roger spoke to both Nathaniel and Quamlisha near the time of the exchange, but Roger admitted that he was not paying attention to whom he was speaking with when Quamlisha handed the telephone to the Expedition‘s driver. Roger‘s phone records showed telephone calls to or from Nathaniel‘s and Quamlisha‘s numbers, but not to or from Joshua‘s number, on the day of the transaction. Roger testified that he had never used Joshua to help in a drug transaction, although he had provided cocaine to Joshua on at least nine prior occasions. He usually provided Joshua with about a gram of cocaine. Roger testified that he observed cars arriving and leaving the Kinchens’ residence and he inferred they were drug deals, but he never witnessed drugs being exchanged. Roger stated that Joshua took part in whatever business the cars brought to the residence, but he did not believe Joshua was involved in the transaction at issue. On appeal, Joshua does not challenge the admission of any portion of Roger‘s testimony.
Detective Steven Lovett testified that he knew Joshua to be “Little Maine.” Quamlisha testified, identifying Joshua as the Expedition driver and stating that she remembered being very attracted to Joshua, who was wearing a gold grill on his teeth. Roger and Joshua‘s girlfriend both testified that Joshua sometimes wore a gold grill on his teeth. Roger testified that Nathaniel had four permanent gold teeth, two on the top and two on the bottom. The jury found Joshua guilty; he was sentenced to be imprisoned for 180 months and to be placed on supervised release for five years. Joshua appeals.
II
We apply an abuse-of-discretion standard in reviewing a district court‘s evidentiary rulings. United States v. Coleman, 78 F.3d 154, 156 (5th Cir.1996). The abuse-of-discretion standard is “heightened” when evidence is admitted under
“A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment
III
Joshua argues that the district court reversibly erred in admitting evidence of his prior possession and the concurrent statement that he sold drugs to support his family, contending that, (1) the evidence was not intrinsic to the crime charged; (2) the district court abused its discretion in alternatively holding that the evidence was admissible under Rule 404(b); and (3) because the evidence tying him to the crime was minimal, any error was not harmless.
The district court held that Joshua‘s prior possession and statement that he sold drugs to support his family was admissible as intrinsic evidence, or if not intrinsic, then “definitely 404(b).” The district court noted that while the evidence was prejudicial, it was relevant to either identity, motive, or intent because it showed that Joshua was a dealer, rather than merely a user, of cocaine. After Johnson testified, the district court provided a limiting instruction cautioning the jury that Joshua was not on trial for any act or conduct or offense not alleged in the indictment.
We agree with Joshua that the evidence in question was not intrinsic evidence. “Evidence of an act is intrinsic when it and evidence of the crime charged 2 are inextricably intertwined, or both acts are part of a single criminal episode, or it was a necessary preliminary to the crime charged.” United States v. Sumlin, 489 F.3d 683, 689 (5th Cir.2007). Intrinsic evidence is “admissible to complete the story of the crime by proving the immediate context of events in time and place.” Coleman, 78 F.3d at 156. Joshua was arrested for the prior possession and made the concomitant statement in October 2008, over a year before the drug transaction in the instant indictment. There is no evidence linking that earlier possession to the drug deal that Roger orchestrated for Quamlisha. Nor has the Government argued to the district court, or on appeal, that Johnson‘s testimony was intrinsic. Thus, we conclude that the district court was incorrect in stating that the testimony regarding the prior possession and concomitant statement was intrinsic. The evidence of Joshua‘s prior possession of cocaine and his concurrent statement were extrinsic to the offense charged here.
Accordingly, we turn to the central issue: whether the district court abused its discretion by admitting that evidence under
Evidence of “motive” is thus relevant in that it helps establish that Joshua had a reason to commit the charged offense. See e.g., United States v. Benton, 637 F.2d 1052, 1056-57 (5th Cir.1981) (upholding admissibility of prior murders where relevant to show defendant‘s motive for charged murder). “Motive has been defined as ‘the reason that nudges the will* and prods the mind to indulge the criminal intent.‘” Id. at 1056 (citing Beechum, 582 F.2d at 911 n. 15); see also BLACK‘S LAW DICTIONARY 1039 (8th ed. 2004) (“Motive” is “[s]omething...that leads one to act.“). The extrinsic act evidence need not be similar to the charged offense when the extrinsic evidence is introduced to show motive. Beechum, 582 F.2d at 911 n. 15.
Motive is not an ultimate issue in this case, such as an element of the criminal offense, but it is part of the story and provides context to the events in question. By showing motive—that this defendant had a reason to commit the crime—the Government‘s more important purpose was to offer circumstantial evidence to support Joshua‘s identity. See Benton, 637 F.2d at 1057. The prior possession is, of course, not admissible to show Joshua‘s propensity to deal drugs. Yet, extrinsic evidence of prior drug use or possession is relevant to establishing motive where the actions help establish why the defendant wanted to commit the charged offense.4 See, e.g., United States v. Bitterman, 320 F.3d 723,
Turning to step two of our Beechum analysis, we must assess whether the district court abused its discretion in holding that the prejudicial effect of Joshua‘s prior possession and concurrent statement did not substantially outweigh the probative value. See Beechum, 582 F.2d at 913; see also
The prejudicial effect of extrinsic evidence substantially outweighs its probative value when the relevant exception, i.e. motive, is uncontested, because the incremental probative value of the extrinsic offense is inconsequential when compared to its prejudice. United States v. Roberts, 619 F.2d 379, 382 (5th Cir.1980) (citing Beechum, 582 F.2d at 914). However, we disagree with Joshua‘s apparent argument that only his identity and not his motive were at issue, such that the motive evidence was of minimal probative value. The two issues were intertwined here given Joshua‘s theory of mistaken identity, premised in part on his argument that he was principally a user.6 Evidence of Josh-
Addressing the potential prejudicial effect, we note that the jury heard from Roger (without objection) that Joshua used cocaine and participated in drug deals. Thus, the “feed his family” evidence was not the only evidence suggesting Joshua was a drug dealer. Furthermore, it was not the sort of admission of acts of a “heinous nature” that would inflame the jury to act irrationally. See Beechum, 582 F.2d at 917. Any prejudicial effect of the testimony was further diminished by the district court‘s instructions to the jury regarding the “limited purpose[] for which any evidence of other similar acts may be considered.” See Crawley, 533 F.3d at 355. We have also held that “proof of prior drug activities is more probative than prejudicial” in proving Rule 404(b) exceptions such as knowledge or intent. United States v. Harris, 932 F.2d 1529, 1534 (5th Cir.1991) (citing cases); see also United States v. Thomas, 348 F.3d 78, 86 (5th Cir.2003) (“[T]he district court properly explained that the evidence of the defendant‘s prior convictions for cocaine-related offenses is probative of the [d]efendant having the requisite state of mind or intent to participate in the present cocaine-related offenses.” (internal quotation marks and citation omitted)). We conclude that it was not an abuse of discretion for the district court to conclude that the prejudicial effect of the evidence did not substantially outweigh its probative value. We thus do not address the question of harmlessness of any error.
IV
Joshua also challenges the procedure followed by the district court with respect to Nathaniel‘s testimony. At a pre-trial hearing, the district court appointed an attorney for Nathaniel and ordered the parties to file questions they wanted to ask of Nathaniel. Of the questions submitted, the court selected five that would be allowed. The court conducted a subsequent hearing to determine whether Nathaniel wanted to invoke his Fifth Amendment right against self-incrimination. Nathaniel was sworn in as a witness, the court explained that answers to some submitted questions may incriminate him, and Nathaniel‘s counsel said Nathaniel would invoke his right.
Joshua requested to ask Nathaniel each of the questions in front of the jury and have him invoke his right to each individual question. Over Joshua‘s objections, at trial he was permitted to ask Nathaniel only the questions pre-approved by the court. On appeal, Joshua argues that this overall procedure denied him his Sixth Amendment right to present witnesses on
“A valid assertion of the witness’ Fifth Amendment rights justifies a refusal to testify despite the defendant‘s Sixth Amendment rights.” United States v. Goodwin, 625 F.2d 693, 701 (5th Cir.1980) (citing United States v. Lacouture, 495 F.2d 1237 (5th Cir.1974); United States v. Gloria, 494 F.2d 477 (5th Cir.1974)). A district court‘s decision to exclude a witness’ testimony based on an invocation of the witness’ Fifth Amendment privilege is reviewed for an abuse of discretion. United States v. Boyett, 923 F.2d 378, 379-80 (5th Cir.1991). It was within the district court‘s discretion to prevent Joshua from making Nathaniel invoke his Fifth Amendment privilege in the presence of the jury. See Lacouture, 495 F.2d at 1240. Joshua has no “right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege,” which may have been the purpose of Joshua‘s questions to Nathaniel, according to Joshua‘s appellate brief. See id.
In United States v. Mares, we found no error in the trial court‘s refusal to allow counsel to take a witness question-by-question outside of the presence of the jury for the purpose of having the witness invoke his right after each question. 402 F.3d 511, 514-15 (5th Cir.2005). A key focus is whether the trial court inquires into the legitimacy of the invocation, see id., which is an issue Joshua does not brief on appeal. We conclude that Joshua does not present any error warranting reversal in this regard.
V
Finally, Joshua challenges the procedural and substantive reasonableness of his above-Guidelines sentence.8 On appeal, Joshua first argues that his sentence was unreasonable because the court did not use the Fair Sentencing Act‘s (“FSA“) five-year mandatory minimum sentence. After his sentencing hearing, the Supreme Court subsequently determined that the FSA applies to an offender like Joshua whose crime preceded August 3, 2010, but was sentenced after that date. See Dorsey v. United States, 567 U.S. 260, 132 S.Ct. 2321, 2331, 183 L.Ed.2d 250 (2012). Thus, Joshua is correct that the FSA applies to his sentence.
However, we do not remand such a procedural error if the Government proves the error is harmless by “point[ing] to evidence in the record that will convince us that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error made[.]” United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir.2009) (citation omitted). Here, the Government shows that the presentence report used the FSA-amended, 2011 version of the Guidelines to produce a recommended range of 120 to 150 months. The court gave an upward variance because it concluded that 150 months was insufficient.
A panel of this court recently considered this same argument and found any error in not recognizing the FSA‘s retroactive applicability was harmless, relying on authority that found harmless error when an imprisonment term was not lengthened as the result of such error. United States v. Williams, 505 Fed.Appx. 343, 344 (5th Cir.2013) (unpublished) (citing United States v. Teel, 691 F.3d 578, 587 (5th Cir.2012)), cert. denied, 569 U.S. 1011, 133 S.Ct. 2375, 185 L.Ed.2d 1092 (2013).
Joshua next argues his sentence was procedurally unreasonable because the court failed to adequately explain its reason for deviating from the Guidelines’ recommended range. Joshua contends that we cannot determine how substantial a deviation the court intended to make because it did not start with the five-year mandatory minimum sentence. He cites Gall v. United States, for the proposition that “a major departure should be supported by a more significant justification than a minor one.” 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
Yet, the court‘s upward variance was from the range calculated under the Guidelines (120 to 150 months)—a range Joshua does not challenge—not from a statutory minimum. After looking at the factors in
Last, Joshua contends his sentence was substantively unreasonable because the court “pointed to no specific feature of [his criminal] history that was not properly reflected in his criminal history calculation.” He also claims Nathaniel received a lesser sentence for similar conduct.
These arguments are not briefed. In any event, we conclude that the district court adequately explained its reason for varying upward. Any dissimilarity with Nathaniel may be understood in light of the fact that Nathaniel accepted responsibility for his crime, while Joshua did not, so they are not similarly situated. See United States v. Guillermo Balleza, 613 F.3d 432, 435 (5th Cir.2010) (the
AFFIRMED.
EMILIO M. GARZA, Circuit Judge, dissenting:
I dissent from the majority opinion‘s holding that the district court did not abuse its discretion by admitting Joshua‘s prior possession and concurrent statement under Rule 404(b). Because I conclude the district court did abuse its discretion by admitting the extrinsic evidence and the error was not harmless, I would VACATE the conviction and REMAND for a new trial.
First, while I agree that Joshua‘s concurrent statement is relevant to Joshua‘s motive, Joshua‘s prior possession is not and thus fails even the first step of the Beechum analysis. For extrinsic evidence to be admissible under the first step of the Beechum analysis, the evidence must be “relevant to an issue other than the defen-
The reason the majority does not explain why Joshua‘s prior possession helped establish his motive to commit the charged drug offense is that it does not. The relevance of extrinsic evidence of motive turns on two different inferences. First, the extrinsic act must support an inference of a mental state, such as desire for money, jealousy, revenge, etc. 22A Charles Alan Wright & Victor James Gold, Fed. Prac. & Proc. Evid. § 5240 (2d ed.2013); e.g., United States v. Arnold, 773 F.2d 823, 833 (7th Cir.1985) (holding evidence of defendants’ loan sharking activities admissible to show motive for bribery of witness before grand jury investigating loan sharking). The extrinsic act can prove mental state in two ways: (1) the extrinsic act can cause the mental state, see e.g., United States v. Stumes, 549 F.2d 831, 833 (8th Cir.1977) (holding evidence of prior conviction of manslaughter admissible to show vengeful motive for sending threatening letters to witnesses), or (2) the extrinsic act may be a consequence of the mental state, see, e.g., United States v. Garcia-Meza, 403 F.3d 364, 368 (6th Cir.2005) (holding prior assault on wife admissible to show husband‘s jealousy as motive for her murder).
Second, the mental state shown must be, either directly or through appropriate inferences, causally related to some other issue in the case. Wright, supra, § 5240. Where there is no evidence linking the charged crime to the uncharged crime the latter proves the former only by inference to the defendant‘s character and is thus irrelevant to motive. United States v. Brown, 880 F.2d 1012, 1014–15 (9th Cir. 1989) (holding where court could not see how defendant‘s prior assaults established motive to commit charged murder admission of prior assaults was abuse of discretion). Here, the prior drug possession does not support an inference of any mental state (e.g. a desire for money, jealousy, or revenge) that is causally related to an issue in the case. The majority holds the prior possession is relevant to establishing that Joshua was a dealer rather than merely a user of drugs, but this is propensity evidence, not evidence of a mental state that explains Joshua‘s involvement in the charged offense.4 Accordingly, Josh-
Second, both Joshua‘s prior possession and his concurrent statement fail step two of the Beechum analysis. For extrinsic evidence to be admissible under the second step of the Beechum analysis, its prejudicial effect must not substantially outweigh its probative value. See Beechum, 582 F.2d at 913. The prejudicial effect of extrinsic evidence substantially outweighs its probative value when the relevant exception is uncontested because the incremental probative value of the extrinsic offense is inconsequential when compared to its prejudicial effect. United States v. Roberts, 619 F.2d 379, 382 (5th Cir.1980) (citing Beechum, 582 F.2d at 914). Accordingly, courts have generally held motive evidence is admissible only where the defendant contests the issue of motive or where motive is an element of the offense. See, e.g., United States v. Williams, 585 F.3d 703, 708 (2d Cir.2009) (holding extrinsic evidence of defendant‘s motive to possess gun inadmissible where defendant did not contest the issue of motive); United States v. Siegel, 536 F.3d 306, 317-18 (4th Cir.2008) (holding 404(b) motive evidence admissible where murder statute required Government to prove not only that defendant killed victim but that she killed victim for purpose of preventing him or anyone else from providing law enforcement with information about federal crimes she committed); United States v. Johnson, 27 F.3d 1186, 1191-93 (6th Cir.1994) (holding trial court improperly instructed jury, in trial for possession of cocaine base with intent to distribute, that evidence of defendant‘s similar acts of possession was admissible to show motive, where motive was not element of crime charged and defendant did not contest motive); United States v. Tai, 994 F.2d 1204, 1210 (7th Cir.1993) (holding 404(b) evidence admissible under intent exception but not motive exception where motive not contested).
Here, the Government had little need for extrinsic evidence of motive and any probative value the evidence may have had was necessarily slight. The majority holds that Joshua‘s motive was contested because the issues of motive and identity “were intertwined here given Joshua‘s theory of mistaken identity, premised in part on his argument that he was principally a user.” Ante, at 473. The majority might be correct if the defense had disputed any material aspect of the Government‘s case or that either Nathaniel or Joshua was the Expedition driver. The defense did not, however, challenge any feature of the drug transaction except for the identity of the man who handed the drugs to the informant.5 The defense did not contest that Joshua (as well as Nathaniel) had motive.6 No aspect of Joshua‘s defense suggested
Because I conclude the admission of the extrinsic evidence was an abuse of discretion, I proceed to consider whether the error was harmless. “The government has the burden of establishing harmlessness beyond a reasonable doubt.” United States v. McCall, 553 F.3d 821, 827 (5th Cir.2008). If the Government fails to meet its burden, we must reverse the error. An error is harmless if a court, “after a thorough examination of the record is able to conclude beyond a reasonable doubt that
For these reasons, I would VACATE the conviction and REMAND for a new trial. Respectfully, I dissent.
EMILIO M. GARZA
UNITED STATES CIRCUIT JUDGE