United States v. McBride

his trial coun- because representation tive guilty plea him failed advise

sel govern- of all his in his loss result

would fifth respect benefits. With

ment has

factor, government that the we note prej- will cause argued that withdrawal However, States.

udice to over- two are insufficient

these factors that Nichol- strong presumption

come Nor do plea binding. is final and

son’s just for re- a fair and reason show Thus, we have the withdrawal.

questing district concluding

no hesitation

court, considering judi- carefully after its constraining factors

cially recognized discretion, appropriately denied

exercise motion.

Nicholson’s

III. reasons, judgment foregoing

For

of the district court

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee, McBRIDE,

Fredrick Lamar

Defendant-Appellant.

No. 10-5162. Appeals,

United States Court Circuit.

Fourth Jan. 2012.

Argued: April

Decided: unreasonable,

tion the detention was whether evi- certain dence admissible. Fredrick Lamar aby McBride was tried and convicted (1) possession of cocaine with intent distribute, in violation of 21 U.S.C. 841(a)(1) (2) (b)(1)(C); §§ fel- being a firearm, possession on in of a in violation 924(a)(2); 922(g)(1) §§ of 18 U.S.C. (3) using knowingly carrying and and a in of a drug firearm furtherance traffick- crime, ing in of violation 18 U.S.C. 924(c)(1). § that We hold the detention valid, was the defendant’s vehicle but that court improperly district admitted cer- tain evidence McBride’s showing knowledge statements of crack cocaine and his willingness manufacture Accordingly, and distribute it. we affirm Salvini, ARGUED: Ann Salvini Jessica in part, part, reverse in and remand Bennett, LLC, Greenville, & Car- South case to the district court. olina, Appellant. Jeffrey for Mikell John- son, Attorney, Office of the United States Columbia, Carolina, Appellee. South for I. Nettles,

ON BRIEF: William N. Módica, Attorney,

States Matthew J. As- A. sistant Attorney, United States Office of p.m. 6:15 August At on Lieu- Columbia, Attorney, United States Phillip tenant and Agent Ardis Harold Carolina, South Appellee. III, Kennedy undercover officers of the WILKINSON, GREGORY, County Clarendon in Before Sheriffs Office South and Carolina, (the KEENAN, by drove Nu Judges. Circuit Vibe Club

club), an establishment which Ardis Affirmed in in part, part, reversed and familiar. In his decades in en- law by published opinion. remanded Judge forcement, by Ardis had driven the club KEENAN the majority opinion, wrote times, many generally and recalled that it which Judge joined. Judge GREGORY open did not midnight. until about He an opinion concurring WILKINSON wrote interested, therefore, became ob- when he in part dissenting part. and two served cars in club’s parking lot early evening. OPINION also personal knowledge Ardis had KEENAN, BARBARA MILANO past activity criminal at club. In Judge: Circuit he had been an investigation involved case, appeal this regarding drug activity According criminal we there. principally time, consider whether there was to his information at that certain men reasonable, suspicion articulable detain illegal drugs were known to deliver to the vehicle, the defendant’s whether the dura- club. range, recognized Ardis the man as information and un-

Based club, activity McBride, Ardis a prior hour for whom he from nar- usual knew the club Kennedy observe decided investigation. cotics dealership. automobile nearby from Four men in the other were club at through binoculars at the looking While them, recognized time. Ardis two also lot, saw the officers four parking club’s investigations. narcotics Ardis stop varying the club for vehicles patrons announced handful the course of an hour. lengths of time over in- conducting the sheriffs office was vehicle, Explor- Ford the last blue When vestigation. patrons He informed lot, truck, male entered the a black in a er they provided after him with identification immediately tee shirt came out from white description and a of the vehicle in which with the driver the club walked arrived, they had would free to be truck, male, Hispanic to a black blue However, leave. Ardis also informed the also SLS automobile that Cadillac patrons parking vehicles lot the lot. men conversed parked pas- briefly, opened the Cadillac SLS’s were being police. detained suspected Although door. Ardis senger time, At the Kennedy this left club tem- engaging drug in a trans- pair was and, while porarily, crossing parking the hands, action, not see and he could their lot, engine observed that the a cham- exchange any- not observe the men did pagne-colored Cadillac Escalade was run- male then thing between them. black ning, sitting and a man passen- was the club, Hispanic to and the returned the ger Kennedy seat. reentered the club and his blue truck. male returned to provided They this information to Ardis. interaction, Following blue the truck parking to the lot and opened returned the by club drove the left the and officers’ they Escalade’s door. Inside noticed that time, raining It was at that location. center console of the vehicle was the although wip- the truck’s windshield blue money the stuffed with to the extent that motion, headlights the truck’s ers were fully armrest could close. The officers activated, in of South were not violation man into club. thereafter escorted the the basis, law. On this the officers Carolina stop. the driver of initiated traffic When club, returning the Ardis After inside unable to a valid produce the truck was began patrons’ to record the information. license, placed was under ar- he driver’s produce any McBride did not Although escorting As were the rest. the officers identification, the he stated that he was truck, they the observed a passenger from Upon owner of the black' Cadillac SLS. to contain a bag, which was found black information, and infor- recording this large amount of cash.1 patrons, mation five Ardis from other on the evidence retrieved from Based to told all six men that were free truck, blue and his observations leave. None left at that time. lot; activity parking club’s Ardis lot and parking Ardis returned to the activity investigate inside decided sheriff, with the who had arrived conferred Kennedy entered the the club. He and When Ardis asked the sher- scene. met at the door the man club were request iff for a canine authorization speaking with the who had been earlier nearby jurisdiction to unit from a truck. At this closer narcotics driver the blue bag was to contain 1. The later determined $9,101. vehicles,2 trial,

inspect the he learned that such was convicted. Before McBride filed already neighbor- a unit en route from suppress motion to the evidence found ing County. Florence Ardis reentered the Cadillac SLS. He asserted that detention his again patrons club and stated vehicle before the arrival leave, were free but that their vehicles canine narcotics unit was not sup- being ported by suspicion, were detained so that the canine unit reasonable in violation could check them. Fourth rights. Amendment that, alternatively McBride contended changed noticeably McBride’s demeanor even if supported by the seizure was rea- upon hearing that a canine unit soon would suspicion, sonable the duration of the de- Ardis, arriving. According be McBride tention was unreasonable. After conduct- loud, nervous, “got very[,] very [began] ing hearing, the district court denied forth, pacing back and sweating [and was] McBride’s motion. time, profusely.” At contrary to his statement, trial, earlier denied McBride owner- Also before government filed Next, ship of the black Cadillac SLS. notice of intent to its introduce “bad informed evidence, the officers that in- he act” as evidence of McBride’s leave, keys provided tended to guilt for the crimes charged, under Rule patron 404(b) club to a with instructions to lock of the Federal Rules Evidence. left, after all patrons club had This based on bar, began walked out of the walking an encounter between McBride and a con- away club. fidential police informant named Burnell Blanding, had to attempted purchase who Following departure, McBride’s a canine base, “crack,” cocaine or from McBride. unit narcotics arrived at club about 55 Although McBride filed a motion in limine minutes after the vehicles first were de- seeking prior to exclude this time, tained. At that dog trained evidence, this issue was not resolved be- narcotics detection on “alerted” the black fore trial. Cadillac SLS. McBride pleaded guilty, and his case information, Using this and other details was jury tried before a in the district from the investigation, officers ob- court. government introduced its evi- tained a search warrant for the black Cad- dence through stipulations and through A illac search of SLS. the vehicle revealed testimony two pros- witnesses. The McBride, photograph his li- driver’s witness, Ardis, primary ecution’s focused cense, $1,500 in cash on the floorboard his testimony August the events seat, behind the driver’s a loaded nine- 2009. The government also elicited testi- pistol millimeter semiautomatic in the him, mony objection, over McBride’s glove compartment, “tin and a foil” pack- regarding powder the method which age containing plastic bags two of white cocaine to produce is used crack cocaine. powder totaling cocaine grams. 373.85 Following testimony, this the district B. denied McBride’s motion limine to Based on the evidence seized from exclude the “bad act” involving evidence SLS, Cadillac the government secured a McBride’s encounter with Blanding in three-count indictment charging give McBride and stated that the court would with the crimes for which he ultimately jury limiting restricting instruction County 2. Clarendon does not have its own canine unit. narcotics intent, his his ab- “knowledge, his of that evidence. accor- consideration and/or crimes jury concerning heard evi- sence of mistake” ruling, dance instruction, the police charged. the district January that on In this dence purchase to Blanding attempt jury court also cautioned used in an encoun- from McBride to consider cocaine were to use crack captured recording. in a video have com- ter that crimes that McBride day, testified that on Blanding verdict guilty mitted. The returned a audio and video equipped him with police on each of the three counts the indict- record encoun- ment, devices to surveillance the district court sentenced residence. McBride at McBride’s ter with a total months’ McBride to serve of 235 imprisonment. appeals. McBride testimony, when According Blanding’s to house asked arrived McBride’s he “anything,” if McBride he had

McBride II. pieces,” “no refer- he had responded arguments challeng- McBride raises two cocaine costing of crack ring portions ing the court’s denial of his motion district explained that twenty dollars. McBride suppress evidence found in the Cad- cocaine still current batch of crack his First, illac SLS. he asserts that the author- “wet,” process meaning that it was reasonable, did articulable ities not have heated, being explained that his Second, he suspicion to detain vehicle. correctly. batch had not rendered contends that the duration of the deten- that he McBride also stated needed minutes, tion, about 55 was unreasonable regarding possibility “his man” contact under the circumstances. We address cocaine, and recom- acquiring arguments in turn. these Blanding return a few mended if he Blanding When asked could hours. court’s review district crack cocaine from someone other procure findings regarding factual the motion McBride, responded that he than error, suppress for clear and the court’s only has] one some- [who was “about legal de novo. States conclusions At the end of Bland- thing around there.” 877, Edwards, F.3d Cir. v. 666 882 testimony, government the ing’s direct 2011). here, When, sup a motion to as video recording four minutes of the played denied, we evi press been view the has Blanding’s encounter with McBride. the most favorable to light dence the government. Id. any nor McBride neither testified called However, on his behalf. witnesses attorney testimony elicited

McBride’s A. to Blanding on cross-examination the ef- argues that the officers’ McBride’s that events at home fect was not detention of the Cadillac SLS 14, January unrelated to the 2008 were reasonable, suspi articulable supported by at the club on place activities took disagree. cion. We 12, 2009. August evidence, imposes who a deten close An officer After the the dis- be investigatory purposes “must jury. Included tion trict court instructed specific to articulable limiting point was a able among these instructions which, rational together facts taken could con- stating instruction facts, reasonably those inferences from testimony of McBride’s bad sider Ohio, v. Terry intrusion.” considering warrant purpose acts for limited 392 1868, 1, 21, turn

392 U.S. 88 S.Ct. 20 L.Ed.2d now review the facts (1968). requires 889 A detention more to the officers before an known unparticularized than an “inchoate and nounced the detention Cadillac SLS. ” ‘hunch,’ suspicion but it not re- or does facts that Ardis Those included was famil 27, quire 88 probable cause. Id. at S.Ct. club, knew iar with that the club standard, suspicion 1868. This reasonable past drug activity. a site of had been Al Supreme applied per- which the Court history such a is an though articulable fact in- Terry, equally applicable sons suspi insufficient to establish reasonable “ vestigative personal proper- detentions of alone, ‘an standing cion area’s disposition Place, ty. 696, United v. 462 U.S. States activity criminal is an toward articulable (1983). 702, 2637, 103 77 L.Ed.2d 110 S.Ct. that may fact’ be considered along with particularized support factors to rea employ

Courts must a common suspicion.” v. sonable United States approach sense and in evaluat contextual (4th Cir.1997) 106 617 Sprinkle, ing validity deten investigatory Moore, (quoting v. United States States, tion. v. See Ornelas 517 (4th Cir.1987)); 1105, 1107 see v. 695-96, Illinois U.S. 116 S.Ct. Wardlow, 119, 124, (1996); 528 U.S. L.Ed.2d 911 United States (2000). Branch, (4th Cir.2008). Further, 145 L.Ed.2d 570 Thus, prior history only not the suspicion” aspect the term “reasonable club’s suggesting should be viewed as a “nontechnical” con of venue ac criminal cept, incorporates which tivity the “factual and be afoot. Ardis’ suspicions also practical everyday considerations of life” in activity were aroused the volume of Ornelas, which prudent persons act. early the club evening hours when Branch, 1657; U.S. S.Ct. usually the club was closed. F.3d at 336. activity that occurred per- between totality of We consider the sup- sons in the parking club’s lot also circumstances, requires which to evalu us ported finding suspicion. of reasonable ate the “cumulative information available” that, testified in his experience, Ardis officer, to the detaining engag rather than exchange brief between McBride ing in “piecemeal refutation” of individ truck, driver the blue which occurred ual upon facts which the officer relied dur SLS, the Cadillac beside was consistent

ing Branch, Terry stop. 537 F.3d at drug with a Although transaction. stand- Arvizu, (citing United States v. alone, ing support inference would not 266, 273, 744, U.S. 151 L.Ed.2d suspicion, a reasonable the discovery (2002) Whitehead, 740 and States v. United $9,101 in the blue truck after the traffic (4th Cir.1988)). A set of stop provided corroborating sup- factors, individually each of which would porting suspicion. Ardis’ initial could, be activity consistent with innocent contact when Ardis’ with McBride is another together, a produce considered rea supporting finding factor a activity. sonable reasonable suspicion criminal See Sokolow, suspicion. Although from a United distance Ardis States v. 490 U.S. (1989). identify could not man interacting S.Ct. 104 L.Ed.2d 1 Ad the truck, ditionally, may the driver of the blue appear acts that innocuous Ardis could may in certain that the man had a suggest complex- contexts criminal discern dark activity other was white wearing under circumstances. ion and a shirt. Ardis Branch, at club, 336. that was in testified once he the he only person that was the noticed McBride description. Ardis also fit that was

who pend- The reasonableness a detention previously had en- aware that McBride ing by first “canine sniff’ was addressed drug and that other club gaged dealing, in Supreme Court States v. were likewise had patrons present who Place, in- and that decision continues to in the activity past. in drug been involved There, analysis. form our authorities Miami, approached the defendant in the sum, the officers observed unex- Florida, suspicion that he was airport hour plained traffic an unusual at a transporting luggage. narcotics his drug activity. having history of location Although 103 S.Ct. 2637. U.S. McBride, they who officers also saw The law gave defendant enforcement offi- engaged drug have transactions knew to search baggage, cers consent to his appeared engaged in what past, officers contacted declined instead be transaction with another individ- drug (DEA) Drug Enforcement Administration shortly found ual who was thereafter York, agents Airport at LaGuardia in New $9,000. Further, over possession of airport to which the was defendant company was McBride found traveling, informed of their agents known to been other men have involved suspicions. Id. factors, drug trade. These taken to- agents The DEA confronted the defen- gether, sufficient to establish reason- were arrival, upon dant him his and informed able, for the officers’ suspicion articulable detaining luggage were until of the SLS on the detention Cadillac they could obtain a search warrant. Id. at may it contained ground illegal have agents 2637. The DEA also S.Ct. drugs.3 accompa- told the defendant he could wished, but ny them if he that he was free B. to leave. Id. The defendant declined join luggage who took the agents, asserts, alternatively subjected another where it airport, was however, that even if the detention of his by a “sniff a trained test” narcotics by supported reasonable Cadillac SLS pe- dog, positively. which alerted Id. The the duration of the detention suspicion, riod from the initial detention of the defen- arrival of the canine unit pending the positive by luggage dant’s alert Therefore, unreasonable. McBride ar dog Id. A later lasted about minutes. gues, started as lawful what have luggage search of the defendant’s revealed became, of his vehicle detention over kilogram Id. than one of cocaine. hour, an unsup course of almost a seizure ported by probable disagree, cause. We Court instructed that Supreme considering 55-minute when created period and conclude intrusion detention, beginning courts must investigative between detention quality the arrival the canine narcotics unit “balance the nature and in Fourth did result an unlawful seizure of the intrusion on the individual’s against impor- Amendment interests the Cadillac SLS. patrons parties large after announced to 3. While both also refer Ardis the money of the being amount of in the console cham- club their vehicles detained. were paign Therefore, Cadillac Escalade as evidence that discovery the officers' of that mon- support suspicion, reasonable that mon- could ey analysis. germane is not to our by ey observed the authorities until was not minutes, governmental long tance the interests al- as detention as 90 709-10, justify Id. at leged the intrusion.” do so in at declined to that case. Id. explained, 103 S.Ct. 2637. As the Accordingly, Court 2637. the Court S.Ct. an intrusion in both nature vary such length held that the of the detention extent. Id. at S.Ct. 2637. luggage defendant’s under circum those qualified stances as an sei unreasonable Place, in The nature of the intrusion 710, 103 zure. at Id. S.Ct. 2637. sniff,” particularly “canine was limited. The Court Id. S.Ct. 2637. noted that it was other inves- “aware of no the Although method of em- analysis

tigative procedure limited both that is so here, ployed applicable in Place is we in in the manner which the information is conclude circumstances of the de- and in the informa- obtained the content of tention of McBride’s a dif- compel vehicle revealed procedure.” tion the Id. The ferent result. Both the and the intrusion, however, nature posed extent the the extent of detention of Cadillac greater concern to the Court. significantly SLS differ from deten- First, the impact Court addressed tion of the luggage defendant’s in Place. arising on the defendant deten- at the note outset that the detention property. Although noting tion of his automobile, of an like the of a detention the seizure of personal property may be luggage, may prove particularly traveler’s of person, less intrusive than the seizure intrusive certain situations. Court stated that such not the case, however, those circumstances are case the defendant’s Id. at situation. present. 708, 103 respect lug- S.Ct. 2637. With within a gage posses- traveler’s immediate The defendant in Place was in transit at sion, a thus, seizure and, “intrudes on both the sus- the time the detention pect’s possessory luggage interest in his DEA agents as restricted the defendant’s liberty well as his proceeding interest course of travel. Conversely, officers his itinerary.” Id. present impede case did not during travel, any McBride because Second, the length Court addressed already had his club. arrived at detention, placing emphasis special Therefore, the seizure of his automobile agents’ on the lack diligence in pursuing under these circumstances was significant- investigation. Id. at ly less intrusive than would have been the 2637. The Court observed that the DEA case a roadside detention. See United agents had suspicious been informed of the Yang, States v. 653-54 shortly situation after the defendant Cir.2003) (allowing for a more extended Miami, airplane boarded the and there- detention once defendant was allowed to ample arrange fore had time to for an location). drive to a more secure investigation Airport upon LaGuardia action, his arrival. Id. Such length Court pres- the detention in the noted, would have minimized the intrusion concededly ent case was not brief. How- ever, to the defendant. agents, Id. The DEA this detention of less than one hour however, failed to this level materially exercise of was of shorter duration than diligence, extending investigatory de- detention 90-minute at issue in See Place. longer necessary White, tention than under also United States v. (8th Cir.1994) (80 Additionally, circumstances. Id. minute wait ca- reasonable). stated that approved

Court it had of never nine narcotics unit was Place, trial, Moreover, time McBride’s Rule agents in At of unlike the 404(b) part; provided, in relevant in investi- diligent here were their officers Crimes, Ardis informed Shortly after or gation. Wrongs, Other Acts.-Evi- crimes, official patrons wrongs, decision of other or acts is club’s dence parking prove the vehicles club’s not admissible to character of detain lot, the assistance of to show in requested person the sheriff a order action however, conformity may, narcotics unit. In the therewith. It the nearest canine detention, purposes, of be admissible for other such context this 55-minute motive, intent, proof opportunity, of of a canine unit in Clarendon as absence knowledge, plan, identity, weigh against finding preparation, does a County not of or .4 or absence mistake accident... diligent. investigation that the 404(b). Fed.R.Evid. considerations, we con- Based these The purposeful exclusion of such of length time clude grounded act” prior “bad evidence is was detained was rea- McBride’s vehicle Instead, general its irrelevance. inad given pur- diligence sonable the officers’ missibility of such evidence based on the suing investigation. their We therefore that this danger type of evidence will over that the not err hold district did fact ly thereby influence finders of denying suppress McBride’s motion prejudge them “to with a persuade one evidence found the Cadillac SLS. deny general bad record and him a fair opportunity against to defend a particular III. States, charge.” Michelson v. United 469, 475-76, 93 L.Ed. U.S. challenges next (1948); Hernandez, United States v. court’s admitting district decision (4th 1035, 1038 Cir.1992). argues act” He “bad evidence. in- testimony Although prior of of that oc “bad act” evidence is admission events 404(b) eighteen months before the crimes admissible under Rule to demon- curred character, his man charged, attempted which showed strate defendant’s bad such willing always of cocaine and is not barred from the ufacture crack evidence cocaine, altogether. The Rule itself provides ness to sell crack violated Federal trial 404(b). allowing exceptions Rule of review the number of for the ad- Evidence evidence, abuse of of includ- admission this evidence for mission motive, “proof opportu- Hodge, ing discretion. United States evidence Cir.2004). intent, plan, knowledge, our Upon nity, preparation, review, im acci- identity, we absence of mistake or [and] hold 404(b). admitted. dent.” Fed.R.Evid. properly intent, preparation, plan, Although germane analysis, opportunity, it is not to our mistake, 404(b) knowledge, identity, absence or we note Rule was amended request by December to read: On a defen- lack accident. case, crime, prosecutor in a (1) dant criminal Prohibited Uses. Evidence of a must: wrong, or other act is admissible (A) gen- provide reasonable notice person’s prove character in order to show any eral nature such evidence that the person particular that on occasion trial; and prosecutor intends to offer at acted in with the character. accordance (B) Uses; (2) during if do so trial—or trial before Permitted Notice in a Criminal court, cause, good excuses lack of may be for Case. This evidence admissible motive, pretrial purpose, proving as notice. another such 396 (1) illustrate, provided by requirement a trial

As our cases court’s analysis competing prior of these considerations criminal receive of defendant notice presents continuing challenge. government’s See intent to introduce such Johnson, 286, evidence, (2) United States v. 617 F.3d requirement aof (4th Cir.2010) (comparing 296 United limiting jury explaining instruction (4th Mark, States v. 448 purpose prior for which the act” “bad evi- Cir.1991), prior drug- which held that Queen, dence be considered. See 132 testimony in a drug conspiracy transaction F.3d at 997. 404(b), case was admissible under Rule note that prior We also not all Hernandez, F.2d at which “bad act” is encompassed by evidence Rule prior drug-transaction testimony held that 404(b). of uncharged Evidence conduct in a drug conspiracy case was inadmissible arising out of same series of transac 404(b)). under Rule Because the danger offense, tions as the and evidence admitting prior inherent in “bad act” evi- complete story “served to of dence be imper- is that it will considered trial,” qualify crime on do as evidence character, missibly as of we have subject of “other crimes” to scrutiny under developed certain governing criteria ad- 404(b). Rule Kennedy, United States v. type mission of this evidence. (4th Cir.1994). F.3d have provided four-factor context, present In the we first observe test for courts to consider when determin prior act” “bad evidence at issue ing admissibility prior “bad acts” plainly falls within the realm of Rule evidence: 404(b). January The events (1) The evidence must be relevant to an did not arise of the out same series of issue, offense, such as an element of an transpired transactions as the events that and must not be offered establish the Similarly, at the nothing club. that oc- general character defendant. In January curred at McBride’s residence regard, more similar prior necessary “complete 2008 was the sto- (in physical act is similarity terms of or ry” alleged crimes the club. We state) mental being to the act proved, turn, therefore, consider the four-factor (2) the more relevant it becomes. The employed Queen. test in Johnson and act necessary must be in the sense that question We note that there is no re- it probative of an essential claim or an reliability garding the prior “bad (3) element of the offense. The evidence act” evidence at issue here. The audio (4) must be reliable. And the evidence’s video particularly materials are accurate probative value must not be substantial- and, representations the past events ly outweighed by confusion or unfair thus, there can be no real concern that the prejudice in that it the sense tends to being events were recalled inaccu- subordinate reason to emotion in the rately inor fashion. Reliability, biased factfinding process. however, is but one the four factors

Johnson, 617 F.3d 296-97 (quoting we consider. Queen, States (4th Cir.1997)); see United States v. factors of relevance and necessity, Rawle, Cir.1988). evidence, as applied challenged rest factors, addition to these four on far ground. we also less firm These two fac- tors, protection concerns, have stated against that other which embody overlapping misuse of evidence is are often considered tandem. See John-

397 evidence, 297; yet it is distinction F.3d at the another son, Hodge, at 354 of F.3d 617 119, 14, January events 2008 F.2d the of 312; Bailey, separating v. 990 States United Cir.1993). (4th of 2009. August the events 124 Additionally, prior “bad acts” that relevant, it to be

For evidence 14, 2008, January involving occurred “sufficiently to the related be must attempted of crack McBride’s manufacture Rawle, 1247 F.2d at offense.” 845 charged expressed willingness to cocaine and Shackleford, (citing States v. n. 3 cocaine, bear no discernible rela- sell crack (4th Cir.1984)). The 779 F.2d 738 of possession of tionship charge to to prior related closely that the act is to distribute for cocaine with intent time, or pattern, in charged conduct govern- was on trial. The which McBride mind, greater potential state of Johnson, prove not that the attempting ment was to prior act. See relevance was to be possession in McBride’s 297; cocaine States at see also United Cabrera-Beltran, for the of crack cocaine. used manufacture 755 F.3d Cir.2011) (“conduct identify any also government The failed to charged in the indict between of the Jan- exceedingly prior connection the location similar” ment added)). And, transaction, of McBride’s resi- (emphasis uary act conduct case, dence, this have held the club the activities particular import to we and where have August “fact that a defendant occurred on drug activity past in involved been that, in involving note other cases We of itself a sufficient provide does not upheld in which we have narcotics charged conduct where nexus to evidence, of act” we admission “bad time, man prior activity is related pri- linkage have identified between ner, or of John place, pattern conduct.” drug crimes or-act evidence and the son, 617 F.3d at 297. charged Compare in the indictment. possession was indicted for (evidence Rawle, 1245-46,1248 F.2d at for with the intent to distribute cocaine transport use of tractor trailers to 12, 2009. August that occurred on events marijuana from southern states to north Blanding was provided by The evidence sufficiently linked to eastern states time, man- place, pattern, or unrelated trac conspiracy conduct of to use for McBride was ner to the conduct which marijuana from transport trailers to tor January Certainly, events indicted. states), states to northeastern southern “exceedingly 2008 were not similar” Cabrera-Beltran, at 755 club. transpired the events (“same quanti drugs were sold similar involving Blanding occurred The incident manner,” transported in a similar ties and years before the events one and one-half vehicle), using even same once this is not dis- club. While timeframe Johnson, (testimony held at 298 positive, significant of time passage such drugs five that defendant sold inadmissible any relevance attenuating the effect of had conspira years beginning before could be afforded to the evidence. alleged persons in the indictment cy Hernan conspiracy), further observe McBride was unrelated dez, 1037-38, (testimony F.2d at charged in this case with manufactur- cocaine, months before possession or held inadmissible that six ing crack even with alleged Washington-area Al- cocaine. the conduct with intent to distribute crack case, narcotic, the de conspiracy type drug difference in distribution though this alone, special recipe she exclusion stated “knew standing would not merit fendant cooking prior, marijuana crack” because she used to similar importation York”). admissible, “sell that New the defendant was because necessary evidence was “a demonstrate type linkage supporting admis- conduct,” continuous course of essential an notably absent in of such evidence is sion of element the Travel Act. at 1248. Id. Instead, Blanding this case. the evidence establish primarily relevant to Likewise, Wells, in United the States v. “drug a dealer.” McBride’s character as charged defendant was with interference very type the of This is evidence agents. with Internal Revenue Service 404(b) imposed by was de- limitation Rule Cir.1998). 163 F.3d We held to States v. signed exclude. See United partic- that evidence of the defendant’s Sanders, (4th Cir.1992). 964 F.2d a ipation tobacco fraud evasion and tax Similarly, government’s argument the years scheme several earlier was admissi- regarding “necessity” Blanding’s the for ble, because this evidence context provided testimony persuasive. govern- is not for interference charge. at 896. Id. correctly ment contends that McBride’s attempt The defendant’s to evade convic- plea guilty required prose- not that prior tion for the crimes had led to the prove beyond cution a doubt reasonable charge of interference. crimes, element including each case, however, In present Blanding’s McBride’s intent. While this statement of testimony failed to serve a role comparable accurate, provide the law is it does trial, in McBride’s and was not “neces- general license essentially for the use of sary” regard- to establish McBride’s intent prior unrelated “bad act” evidence. ing the events at the club. The events of have held that evidence is “neces- January provide any 2008 did not con- sary,” for purposes establishing an ex- text regarding August the events of 404(b), under ception Rule when evi- 2009, and none of the charges against “is an part dence essential of the crimes on required proof activity of ongoing trial” or when that “furnishes evidence in order to secure a conviction. Addition- Rawle, part of the context of the crime.” ally, government did present (citations 845 F.2d at 1247 quota- n. concluding Blanding’s basis for testi- omitted). tion marks Although a defen- an mony part essential of the crimes plea guilty dant’s of not at issue places all Wells, on trial. See 163 F.3d at 896. crimes, charged Bailey, elements open “this throw does not Instead, the use of Blanding’s testimony any to the door sort of crimes evi- other closely parallels use of improper Hernandez, Id. (citing dence.” prior “bad act” evidence that we consid- 1039-40). ered in Hernandez and In Johnson. Her- nandez, the defendant was tried being of our prior Two provide help- decisions to conspiracy possess distribute examples ful and to showing type connec- with to required tion to intent distribute The dis- find that cocaine. “bad trict court admitted act” act” evidence is “bad evi- “necessary” prove that, showing for which dence crime on trial. more than six months defendant is Rawle, indictment, alleged before the acts charged defendant was with a Act, violation had person charged Travel 18 U.S.C. defendant told a § in connection with participation unrelated narcotics case that she had in a importation conspiracy. New York marijuana recipe learned in increase 845 F.2d at 1245. We held that evidence quantity selling of crack cocaine while prejudice potential in unfair Although resulted at 1037. there. Id. drug Blanding’s testimony la- jury that for confusion. instructed the the district testimony only as as a manufac- beled McBride consider it should intent, cocaine, we nev- crack and this the defendant’s turer and dealer of evidence was ad- given the evidence prejudicial held that was all the more ertheless label it not con- any because was improperly mitted McBride was not indicted for cocaine the defendant nected to the the manufacture or involving crime either sell, and the conspiring of crack cocaine. distribution merely depict the de- served effect Blanding’s testimony also had the drug dealer. experienced fendant as It confusing undisputed the issues. is at 1041. Id. crack cocaine nor the manu- that neither Johnson, was Similarly, in a defendant illegal drugs any way was in facture of conspiracy to and convicted of charged in the indict- necessary prove the counts cocaine. with intent distribute possess Thus, Blanding’s testimony did not ment. court’s admission was the district At issue govern- naturally fit the context showing that “bad act” evidence prior and, lay attempt ment’s case its earlier, purchased person had years five testimony, Blanding’s foundation from the per of cocaine week kilogram one range had to far afield from government 617 F.3d at 291. After this defendant. to the case. the issues relevant govern- presented was evidence At the close of its direct examination chief, gave the district ment’s case asked, Ardis, you government “are fa- jury’s restricting limiting instruction crack cocaine is miliar or aware of how Id. at 297. of the evidence. consideration question This was unrelated to made?” improperly that the district court We held indictment, charges in the and Ardis’ it related this evidence because admitted digression dis- response affirmative almost that had occurred five to conduct manufacture, cost, and street cussing the de- the events for which years before necessarily of crack cocaine distract- value related, on trial and was fendant was jury considering from its task of ed the indirectly, charged to the directly or either charges for which concerning at 298. conspiracy. Id. on trial. McBride was admitted improperly Like the evidence Johnson, case is Accordingly, present the evidence in Hernandez and a situation in which the to the crimes not us was unrelated before thus, against the defendant and, could be evidence admitted in no case charged, because it was so only prejudicial “was “necessary” prove ele- considered Queen, 132 F.3d at highly See Additionally, probative.” intent. ment of McBride’s Rather, inherently the evidence was Blanding’s tes- we determine because any plausible prejudicial the absence timony unrelated to the crimes for was value, tried, and the effect of evi probative and thus being McBride was which dence, merely to purpose, if not its regard intent with probative of his jury as a manu offenses, McBride before the necessarily brand we of crack cocaine. facturer and distributor factor of our conclude under the fourth conclude, therefore, that the admission Queen that We test set forth Johnson was error.5 “bad act” evidence act” evidence of of this “bad admission instruction, limiting instruction. A was not cured the issuance of 5. This error rv. mony effectively branded McBride as “drug manufacturer” and “crack cocaine Having pri- concluded that the dealer,” completely based on events unre- improperly or “bad act” evidence was ad lated to the offenses for which he was McBride, against mitted we must now ad being highly prejudicial tried. The nature impact dress error on testimony precludes of this us from con- trial. cases of non-constitu McBride’s cluding highly that it is probable that the error, appropriate tional test of harm error jury’s judgment did not affect the 404(b) lessness the context of Rule regarding drug charges. McBride’s Ac- assurance, say whether we can “with fair cordingly, we conclude that the district all pondering after without happened court’s error in admitting Blanding stripping the erroneous action from the evidence cannot be classified as harmless. whole, judgment was not substan tially swayed by the error.” United States Because the admission of the Blanding Madden, (4th Cir.1994) error, evidence was not harmless we now States, (quoting Kotteakos v. impact 328 assess charges its on the individual 750, 765, U.S. 90 L.Ed. 1557 on which McBride was convicted. See (1946)). test, Sanders, In applying this we have at F.2d 299-300. Count 1 of question stated that simply is not charged the indictment pos- McBride with “whether we believe that of irrespective session with intent to distribute cocaine. the error there was sufficient untainted Count 3 him with use of a firearm but, evidence to convict stringently, in furtherance a drug trafficking of crime. whether we believe it highly probable that Both these required counts evidence of the error did not affect judgment.” McBride’s intended drug distribution to Ince, (4th United States v. support a conviction. Because his intend- Cir.1994) (citations quotation and internal drug ed very subject distribution was the omitted). marks See also coiTupted by evidence, United States v. Blanding Ibisevic, 675 F.3d 349-50 Cir. regard convictions with to Counts 1 and 3 cannot stand. 2012).

areWe unable to conclude, however, conclude this case We that the Bland- highly probable that it is that the error ing did evidence did not infect remaining Ince, jury’s affect the judgment. See count on which McBride was convicted. 583; Ibisevic, 21 F.3d at 675 F.3d at 350. Evidence of McBride’s intended drug dis- If we were to set Blanding’s aside testimo- tribution was unrelated to Count ny (the and Ardis’ testimony related charge being of possession felon of a evidence), Blanding it is fact, clear that firearm. stipulated government presented felon, sufficient evidence he was a convicted posses- his and from which a jury could have convicted sion a handgun of was established without However, McBride of the charged. crimes dispute at Accordingly, the trial. we hold permitted we are not to excise this inad- that McBride’s conviction respect with missible evidence from our consideration. Count is unaffected our determination Madden, See 753. We must be evidence was im- mindful that the jury presented properly testi- admitted. required

while a condition for the admission especially 298. We conclude that this is 404(b), any pursuant this, to Rule does true in a case such as in which the necessarily rescue the testimony plausible proba- use of otherwise "bad act” lacked Johnson, inadmissible evidence. See tive value. error, I can find no to these tasks. and

V. certainly not amounts to an one that abuse affirm district court’s We therefore discretion, in the admission of Bland suppression mo- McBride’s denying order prior narcotics ing’s testimony about trans with tion. We affirm McBride’s conviction with I actions the defendant. therefore indictment, but respect to Count III respectfully from Parts dissent and IV reverse vacate sentence. majority opinion.* respect McBride’s convictions remand case to Counts and I. proceedings further the district court for opinion.6 consistent with this A. PART, IN AFFIRMED REVERSED Appellant’s position overlooks simply PART,

IN AND REMANDED relationships this: that institutional are to personal relationships law what are to life. WILKINSON, Judge, Circuit relationship And keeping the trial and part: concurring part dissenting appellate courts free of unwarranted en- reorder ruling This seeks to the bal- croachments is essential to the harmonious appellate workings system. ance between trial and courts. of our It thus pulls trial majority regrettably article faith that district court is “[a] process away from both trial accorded a in determining wide discretion substituting its own jury, and the assess- admissibility of evidence under the Abel, weight Rules.” United States ment the relevance Federal 45, 465, activity. By 54, criminal prior defendant’s 469 U.S. 83 L.Ed.2d (1984). holding “expressed majority the defendant’s pays lip 450 The sendee willingness to sell crack cocaine no bear[s] to our deferential review district relationship charge discernible ante evidentiary rulings, court’s see at 394-95, possession of cocaine with intent any regard but fails to show actual 397, distribute,” ante the majority de- for the trial rulings judge reasoned parts from law established no fewer in this been case. This court has clear spanning than five circuits more than the trial court’s “determination [of thirty years. admissibility] except will not be overturned extraordinary under the most of circum- wisely recog- Our circuits have sister Heyward, v. stances.” United States 729 assessing nized that whether defendant’s Cir.1984). (4th 297, 2 F.2d 301 n. Evi- prior in different transactions narcotics are prior dence of a bad defendant’s acts is no relevant to the offenses an in- is exception. We must “defer a trial tensely They wisely question. factual have 404(b) balancing court’s Rule unless it is courts of appeals understood that the owe arbitrary or irrational exercise of dis- significant first deference the district Greenwood, cretion.” States 796 court’s whether discretion on (4th Cir.1986). 49, F.2d 53 jury’s should be admitted and then much determination about how it This of review is some weight standard appellant trope But mere in the opening should receive. seems to to be recited think are then quickly that circuit courts better suited stanza discussion and for- * remaining pleased I and 6. We have McBride’s as- I am to concur Parts II of the reviewed signments conclude of error and opinion. have no merit. gotten. protect greater required It exists to the different care in admitting evi- appellate acts, functions of the trial and courts. dence of we still review a dis- “Judgments evidentiary relevance and trict court’s determinations of the admissi- fundamentally prejudice are a matter of 404(b) bility of evidence under Rule for management.” trial v. Ben- United States discretion, generally abuse of as we do kahla, (4th Cir.2008). 530 F.3d evidentiary rulings.” United States v. They quickly spot, by are made on the (4th Cir.1997). Queen, 132 F.3d ... judges pulse much closer to the “[t]rial recognizes “Because the rule the admissi- appeals] of the trial than court of can [the crimes, acts, bility or wrongs, Tindle, ever be.” United States v. 808 only the exception, one stated it is under- (4th Cir.1986). n. stood to be a rule of inclusion.” Id. pro- district court was “immersed in these ... ceedings familiarity and has far more B.

with the matter than we do.” United Rosen, (4th States v. Queen Applying the test to the evidence Cir.2009). Thus, ap- even if the in this case illustrates how small a spot peals believes that is far from certain “[i]t appellant has on which to stand. As relevant,” or it [evidence] majority properly acknowledges, there concerns “a proven matter that could be question is no that the evidence here is re- means,” by “may other we nevertheless fact, liable. there were video and audio judgment substitute our for that of the recordings of Blanding’s transaction with 199-200; trial court.” Id. at see also Unit- the defendant. Nor does the different Boros, ed States v. chemical form of the narcotics—crack ver- Cir.2012) (“We will not opin- substitute our powder sus cocaine—make the evidence ion for that of judge merely the trial be- “ unfairly prejudicial. acts’ evi- ‘[B]ad cause we be inclined to rule different- dence, admissible under Rule is not (internal ly question relevancy.” on the barred Rule 403 where such evidence omitted)). quotations did not any involve conduct more sensa- Supreme The Court has been clear that tional or disturbing than the crimes with if a provides even rule of evidence which the defendant charged.” was Unit- admissibility limitations on gener- than the (4th Byers, 197, ed States v. guidelines al present in Rules Cir.2011). judge The district was none- it is for the apply district court to those acutely theless that Blanding’s aware tes- Joiner, standards. See Gen. Elec. v.Co. timony was not to be received general as 136, 142-43, 522 U.S. character evidence. prose- He steered the (1997) L.Ed.2d 508 (discussing admission cution’s questioning away prejudicial evidence). of scientific In reviewing the subjects and restricted it to the relevant application district court’s evidentiary foundation for the evidence. See J.A. 210- standards, continually the Court has ad- judge gave The also limiting careful monished the courts of appeals against jury. instruction to the majority con- “applying overly stringent review to moment, siders this to be of no even that ruling give [that] fail[s] the trial though we have been clear that “where the deference that is the hallmark of judge given the trial has a limiting abuse-of-discretion review.” instruc- Id. at 404(b), tion 118 S.Ct. 512 This court on the use of has heeded this Rule the fear respect 404(b), caution with that may improperly to Rule ac- use the evi- knowledging that “Notwithstanding Queen, dence subsides.” 132 F.3d at 997. Indeed, presents perfect this case il- perforce must focus on my colleagues So probative or question of the relevance lustration of matters to which the trial the least the evidence. But this is value of court was attuned that nonetheless eluded reversing the district ground defensible appellate review. In States v. Her- United in “relevance Embodied Rule court. nandez, Cir.1992), 975 F.2d 1035 on a low barrier to admissi- typically presents majority heavily which the relies and dis- Leftenant, v. bility.” States at great length, cusses evidence of the (4th Cir.2003). Moreover, 338, 346 activity defendant’s narcotics relevance is at the heart of the assessing less relevant because intent was not an management function. district court’s trial issue the case. The court noted that It is for this reason rules “[t]he “Hernandez offered as her defense the give judges evidence trial broad discretion had not crack contention she sold the evaluating proba- whether evidence is question.... testify She did not tive, only ‘plus value’ to make requiring way she had some sold or handled the Queen, 132 F.3d at 997 it admissible.” requisite knowledge crack but without the Evidence, § (quoting Wigmore intent; testify that or nor did she she had (Tillers rev.1983)). never touched crack or did not know what Here, whether majority questions Here, contrast, it was.” Id. at 1039. proving is relevant expressly the district court found that the and distribute possess McBride’s intent to proving evidence was relevant seized. But this is a distinct- the narcotics knowledge McBride’s and intent: especially suited for the ly inquiry factual I In this case find that since we’re deal- court, discretion of the district since “the club, ing with a situation use for which intent evidence is offered denying knowledge defendant’s of—or ... should be considered with meticulous apparently deny put up wants to or will regard to the facts of each case.” United Hernandez, not—knowledge evidence later to or States (4th Cir.1992). vehicle, ill- Appellate judges drugs knowledge are equipped club, to make that determination from activity going on in the all record, the cold conditioned as we are to knowledge, possible this. Lack of mis- analogies precedent rath- focus more on take, not-being-mine type evidence indi- of fact on particularities er than on the cates that the Government should be factu- questions which such turn. Because it put up proof allowed to virtually endless and permutations al are intentionally knowingly possessed. by training trial courts are sen- especially J.A. 188. variation, Supreme sitized to their recognized, As the district quick recognize has been Court was cen- knowledge and intent of McBride “[djistrict ad- courts have an institutional of his case. In- tral to the entire defense making vantage appellate over courts 404(b) recog- explicitly asmuch as Rule Koon v. these sorts of determinations.” knowledge and intent as disputed nizes States, 81, 98, 116 S.Ct. 518 U.S. admissibility, the district court grounds for (1996). 2035, particu- In 135 L.Ed.2d 392 hardly ruling for its here. can be faulted lar, knowledge full the district court “has sort of factual iterations noted insights not con- gains of the facts and for court make or break the case district veyed by the record.” Gall v. United 586, admissibility. They can be difficult for States, 38, 51, 169 552 U.S. divine, (2007). though even appellate judges to L.Ed.2d 445 404 substantially particular to a seasoned varies based on the

they may be second-nature drug. preparation familiarity with the judge district whose case, own. In this case exceeds our long expressly have Our sister circuits conscientiously proceeded district court rejected this distinction. See United States (1st Cir.2009) prong “four test” as the through 65, the same Santiago, v. 566 F.3d 72 (“That 187, majority, powder J.A. and made reasoned the conviction was for co- (as told) caine and some I ruling on the record. do not understand years crack less- present before sale majority regard painstak- how the can weight, judge but the still ened its arbitrary or irrational ing inquiry as “an probative preju- free to it more than deem Greenwood, 796 exercise of discretion.” dicial.”); Molina, United States F.2d at 53. (8th Cir.1999) (“The F.3d dis- trict court its also did not abuse discretion C. by admitting grams evidence of 1.4 overturning In judg- the district court’s crack cocaine that was found in the bed- ment, majority concludes that the evi- Fraga room shared with Molina. Molina primarily dence was irrelevant because the Fraga charged distributing were containing powder a mixture or substance prior acts involved the manufacture and crack, cocaine. Possession of which is de- distribution of crack cocaine than rather powder, rived from cocaine is relevant to in- possession powder cocaine with knowledge show the defendants’ of cocaine tent to distribute at issue in this case. But based substances and further discredits why it is unclear this should make a differ- defense.”); unwitting bystander Molina’s requiring prior ence. bad acts Hernandez, United States v. 84 F.3d bear some resemblance to the crime (7th Cir.1996) (“Similarity tougher, issue, similarity may we have held that be but given our deferential standard of re- only demonstrated not “through physical view, we concur in the district court’s con- acts,” Queen, similarity of the 132 F.3d at clusion that prior conviction was simi- “through but also in- the defendant’s 404(b) enough lar purposes. for Different dulging himself the same state of mind involved, drugs were but both incidents perpetration of both the extrinsic concerned distribution amounts charged offense and offenses.” Id. It is Hernandez, drugs.”); United States v. irrelevant transaction in- (11th Cir.1990) (The defen- volved the manufacture of narcotics for activity dant’s narcotics was “distin- pos- sale whereas the instant offense was guishable only in that drug session with intent to distribute. This is marijuana earlier conviction was whereas not a distinction requisite material to the this case involved cocaine. We do not view defendant, intent of the such as when distinction; this as a material the element activity personal involves the “[o]ne abuse of intent the extrinsic and of- narcotics, implementation other the same.”); fenses was the United States v. activity of a commercial profit.” Unit- (9th (“In Batts, Cir.1978) Jenkins, ed States v. [404(b) this case the evidence consisted of ] Cir.2003). anything, If evidence of prior activity in drugs, albeit a different drug manufacturing is even telling as drug. connecting The factor between the knowledge to the defendant’s and intent. crime here and the rebuttal evi- disclaimer, Notwithstanding its see ante at dence is the fact the crime here 397-98, majority opinion (hashish) the burden of the charges an intent to distribute is that the intent to distribute narcotics and the rebuttal evidence discloses acts of trial no more reliable as a duce a second up to an act of distribu- leading negotiation at the truth than the getting involved matter of drugs Merely because tion. States, Mackey v. first.” U.S. strip this conduct does are different value.”). L.Ed.2d 404 majority in- The evidentiary its (1971) (Harlan, J., concurring part and weight departs from explicably dissenting part). of this evi- locating the admission caselaw the discretion well within dence merely It does more than inconvenience for us to I see no reason district court. participants put through pro- them of our approach sound diverge from the traumatic, twice. Retrials can be cess circuits, in this case in especially fellow so, especially criminal trials as witnesses of its court’s exercise which the district brought are back for a second time to plainly was so reasonable. discretion jurors troubling relive events. As for here, time insignificance it reduces to II. duty listening to evi- spent civic the distinctions the extent To argument weighing facts dence and any rele- majority relies have which the accuracy way questioned. is in no whose vance, weight [to be] “value or is their majority ground treads no here that Queen, by jury.” determined trial, by not covered at reviewed “Assessing probative value at 998. judge, jury and assessed district ultimately, ... if ... is a matter [evidence] rendering a fair verdict. I would let the admitted, trier of is for the the evidence stand in full. The district court verdict Abel, 105 S.Ct. 465. fact.” 469 U.S. standards, applied proper legal followed jury agreed with the may It be that the circuits, case law from ours and other what, if cannot know majority’s view—we evidentiary made a sound and considered Blanding’s testimo- any, weight it afforded inquiry, admirably discharged its obli- to be the arbiter of ny—but gations throughout. respect With all appeals. court of questions, such not the the trial my colleagues majority, fine Indeed, jurors here both though even commended, court should be not reversed. counsel arguments opposing from heard cross-examination Blanding’s

and observed issues, majority nevertheless

on these own. judgment with its

supplants their “betray[s] too much distrust of simply

This adversary process to ability America, UNITED STATES the evidence on just reach results when Plaintiff-Appellee, Benkahla, in.” both sides is 310-11. ENGLE, F. Shawn Shawn a/k/a the district Sending this case back to Engle, Defendant- Forrest a second round diminishes court for Appellant. yesterday’s Retrials are like process. trial No. 10-4850. breakfast—always stale and seldom satis- try remember often fying. Witnesses Appeals, United States Court trial rather than they said at the first what Fourth Circuit. of the events their actual recollections Argued: Dec. 2011. removed Everyone is farther question. Feb. Decided: process trial is de- the events the very act of signed to reconstruct. “The well, ironically, pro-

trying stale facts

Case Details

Case Name: United States v. McBride

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 23, 2012

Citation: 676 F.3d 385

Docket Number: 10-5162

Court Abbreviation: 4th Cir.