*1 Jaramillo-Suarez, 1368, 857 F.2d v. States (9th Cir.1988) (same). under I do not Now, at some was read the indictment principle or the rationale such stand clearly indicated the defendant length and openly permit the Rule to be why should we following the indictment he colloquy violated. went plead guilty. The Court intended to every of the Rule through each and one simply based on cannot be Harmless error length, and in each one at requirements some defendant assumption that the court’s clearly he under- Mr. Bashara indicated and will receive if he is tried will be convicted them. stood mandatory mini- longer than the a sentence always harmless er- There would mum. MERRITT, dissenting. Judge, Chief assumption. The defen- if we make this ror establishes, clearly record this case The his constitutional entitled to exercise dant is found, that the defen- court and the district knowing of “the right by trial after guilty on the understand- pled by dant mandatory penalty provided minimum not seek a ing government would for the Rule. Not law.” That is the reason mandatory minimum he case; sentence he was not advised in this was he subjecting himself run the risk of would not affirmatively a defendant en- misled. When (See Appendix II and R. a sentence. to such something that is guilty plea is told tering a 113-14.) 50, prosecutor Both the pp. (viz., mandatory mini- risk of a true no lawyer specifically advised defendant’s case), I no “risk of in this see mum sentence “special arraignment that no such court at inexactitude,” court terminological as the (See present in this case. provision” was it, saying that he was “misled.” Here puts 4-10.) 37, Upon Appendix pp. I and R. right af- denying the defendant the we are mandatory learning minimum of the risk of a by in combination with the forded the Rule sentence, sought to withdraw the defendant offering a rea- Amendment without Sixth plea proceed to trial. guilty his plausible explanation. Our obli- or soned requires more than gation to the Rule of Law obviously violated its The district court giving in this case. are the accused 11(c), to “in- duty under Rule Fed.R.Crim.P. mandatory of ... form the defendant penalty provided
minimum law....” The mandatory, not within
language of the rule is court. Once the
the discretion of the district court learned that it had violated the
district the defendant to
rule it should have allowed guilty plea, especially light
withdraw his that it that the defendant the fact is clear America, UNITED STATES of believing misled into that there would be Plaintiff-Appellee, mandatory minimum sentence involved. no majority that the district court finds mandatory aware of the minimum and Timothy JOHNSON, Moses it. yet failed to inform the defendant of Nev Defendant-Appellant. ertheless, majority apparently follows the No. 93-5071. provision Rule 11 principle that this ignored by judges district if the sentence Appeals, Court of United States mandatory longer mini imposed is than the Sixth Circuit. adopted circuit has mum sentence. No other 28, Sept. Argued 1993. principle. v. Hour such a See United States (11th Cir.1991) (in ihan, 936 F.2d July Decided 1994. to invoke harmless error order independently defendant knew must show mandatory min likely receive
that she would misled);
imum sentence and was not United
ranged by a confidential informant. The offi- cers saw defendant Johnson arrive in a ear and walk utility down the street to a pole paused, over, where he bent and moved a concrete block. Johnson then walked across the street to the car in which the confidential along informant was seated Sammy with Jones, police an undercover officer. Johnson told the confidential informant and Jones drugs he had the asked the two money. men had the *4 got The confidential informant out of the car and utility walked with Johnson to the down, pole. object, Johnson bent moved an pointed and to something. Johnson then Clancy, Atty., Joseph Daniel A. U.S. C. asked the confidential informant if he was a Jr., (briefed), Murphy, Atty. Asst. U.S. officer, police wire, if wearing he was and if (ar- Cotten, Christopher Atty. E. Asst. U.S. money. he had the The confidential infor- TN, gued) Memphis, plaintiff-appellee. for mant returned to the car and told Jones that (argued Doris A. Randle-Holt drugs. Johnson had the point, At that briefed), TN, Memphis, defendant-appel- for signal given, “take down” and the offi- lant. cers arrested Johnson as attempted he to ran from the An scene. officer then went to the KEITH, NELSON, RYAN, Before: utility pole bags and found four containing a Judges. Circuit rock-like substance underneath several pieces RYAN, of concrete. Judge, The substance Circuit delivered the was later court, KEITH, twenty-five determined to opinion grams in of the which of co- caine base. Judge, joined. NELSON, Circuit DAVID A. 1194-96), Judge (pp. Circuit delivered a trial, government Before informed the
separate concurring opinion. district court of its intention to introduce evidence that Johnson had RYAN, made two other Judge. Circuit drug sales less than a month earlier. The When a intent is an element of a government argued that evidence of those charge, criminal is intent “in issue” such that 404(b) sales was' admissible under Rule be- prosecution may introduce evidence of 404(b) cause go preparation, “the acts defendant, other acts of misconduct motive, intent, plan, all those in this case.” 404(b), regardless under Fed.R.Evid. of the objected, The defendant but the district court crime or the defense asserted? This is the objection. overruled the question presented Timothy in Moses John- appeal posses- son’s from his conviction for trial, informant, testify- At the confidential twenty-five grams sion of of cocaine base ing concerning prior drug buys, stated distribute, with intent in violation of 21 bought grams that he five of cocaine base 841(a)(1). § U.S.C. Johnson contends that from prior Johnson the first of the trans- admitting, the district court erred under grams actions and twelve in the second 404(b), evidence two narcotics transaction, days Immediately two later. fol- sales to a confidential informant. We affirm. lowing testimony, the confidential informant’s gave
the district following limiting court I. instruction: 21, 1992, February Shelby County,
On gentlemen Ladies and I will up later, Tennessee sheriffs give you officers set a surveil- detailed instructions but I Memphis, lance of a street comer in you any proof Tennes- will tell as to events see, drug indictment, previously alleged monitor deal ar- that are not in the of the crime edge in the commission informant] [confidential to this
I think as charged. regarding testimony some did have indict- added.) events unrelated dates and (Emphasis weighed in ment, may some should — guilty a verdict returned may not—-but are case but parts court then sen- May 1992. The district allegations as to the indict- proof of the prison. months in to 262 tenced Johnson words, an event if it was In other ment. alleging that the evi- appeals, now Johnson event, it, it was another preceded drug inad- sales was of the two dence per- purpose, 404(b), some and even ad- be admissible under Rule missible purposes named some other rele- for one of the motive or missible haps to show 404(b), purpose, should or other some proof and the activity, but it is not vant under Fed. have been excluded nonetheless beyond a prove still has substantially prejudicial 403 as more R.Evid. alleged in the events doubt that reasonable probative. than give a I will occurred. the indictment you give I instruction when more detailed II. instructions, I an but think this is final you remind to listen appropriate time to court’s admis review the district We *5 during final in- 404(b) instruction under prior acts evidence sion of Rule jury. in analysis to the announced step struction we the three Gesso, 1257, 971 F.2d 1261- v. United States added.) (Emphasis banc). (6th Cir.1992)(wi First, we review 62 district court’s factual for clear error possessing denied testified and Johnson that a act occurred. determination 21, cross- February 1992. On any drugs on Second, novo whether the dis we review de examination, asked Johnson legal “the correct determi trict court made prior drug The defendant sales. about admissible for that the evidence was nation” objection objected. The court overruled Id. at 1262. And legitimate purpose. a jury: gave a instruction second third, for' abuse of discretion we review jury, proof gentlemen of Ladies that the “other court’s determination district may happened happened or have of what preju probative than acts” evidence is more than the date the indict- on a date other dicial. Id. happened on proof not as to what ment is 404(b) provides that: Now, may the indictment. the date of crimes, wrongs, other or Evidence of operations, but it proof method be as to of prove the charac- is not admissible to acts happened on that date. proof is not of what action in person of a order show ter may only it for a limited you consider So however, may, conformity It therewith. prove purpose. It does not the events purposes, for other such as admissible subject February are the the 21st which intent, motive, prepa- proof opportunity, give you I a more indictment. will ration, knowledge, identity, or ab- plan, at the end of the case. detailed instruction of mistake or accident.... sence added.) (Emphasis admissibility ruling of evidence In on the 404(b), the district submitted under gave the court proofs, At the close of all one of the court must determine whether jury: instruction to the third “other justifying the admission of factors testimony this as You cannot consider material, is, issue,” “in acts” evidence is committed the that the defendant evidence case, so, “other and if whether the Instead, now. that he is on trial for probative of such factors. acts” evidence is deciding it for you can consider whether the The court must also determine necessary had the whether defendant is substantial- probative value of the evidence charged prejudicial or ef- ly outweighed by potential commit the crime its intent to 403; v. Fed.R.Evid. United States plan and knowl- fect. preparation, evidence of
1191
(6th
Acosta-Cazares,
945,
raising
genuine
878 F.2d
948-49
issue of intent for Rule
denied,
curiam),
899, 404(b)
Cir.)(per
circuits,
cert.
493 U.S.
purposes.
In these
the mate
(1989).
255,
110 S.Ct.
(1990);
Williams,
different case would be
United States v.
816 F.2d
(11th Cir.1987).
of
circuits,
the defendant had raised
issue
in-
Other
act,
done,
however,
by pleading
tent
that the
recognize
a distinction between
innocently, by
or acci-
in
done
mistake
cases which a defendant claims that he did
all,
dent. ... No such defense was raised
charged
not do the
act at
and then makes
here, however,
intent,
pertinent
and we find
no issue of
and those in which the
theory
Thompson
defense
that
observations of Lord Sumner in
is
the defendant acted
mistakenly
or
innocently,
with
only
latter
v. The
King,
[1918]
App.C.
221, 232,
cited
a formal
intent
is
mere fact
McCormick,
p.
§
[T]he
331 n.
[Evidence
in
not,
government’s case does
(1954)]:
element of
circumstances, justify
of
admission
in all
to be
an
can be said
“Before
issue
example, we have
For
prior act evidence.
raised,
permit the introduc-
would
which
is a formal element
intent
held
where
obviously preju-
so
of such evidence
tion
case,
criminal in-
government’s
of the
but
accused,
have been
it must
dicial to the
be inferred from
properly
can
tent
many
in so
if not
raised
substance
404(b)’s
itself, Rule
of the act
commission
words,
must be
the issue so raised
may
justify admission
exception
not
intent
prejudicial evidence is
to which the
one
prior act evidence.
of the
theory
plea
mere
relevant. The
everything material in
guilty puts
at 738-39.
Id.
enough
purpose.
is not
issue
is a class of
recognize that there
We
n
the ac-
prosecution cannot credit
precisely
intent
is
issue
eases
which
fancy
in order
cused with
defenses
intent, separate
apart
specific
because
some
them at
the outset with
rebut
conduct, made
underlying prohibited
is
from
piece
prejudice.”
damning
charged. These are
of the crime
an element
squarely
Ring,
In
this circuit
Id. at 1007-08.
prove
must
government
cases in which
gov-
rejected
rule that would allow
prohibited
committed the
that the defendant
acts evidence
to introduce other
ernment
intent. Such
did so with
act and
recognize,
prove mens rea.
Id. We
simply to
intent to
might include assault with
offenses
explained
Ring,
Judge McCree
as
rob,
entering with intent
breaking and
approach
an
would emasculate
such
ease,
arson, or,
possession
in this
commit
4Q4(b)’s
character evi-
general prohibition on
Here,
intent to distribute.
of cocaine with
permit
prosecution to
and would
dence
prove be
required
impress
highly prejudicial
evi-
with
that the defen
yond a reasonable doubt both
of an accused’s
misconduct
dence
cocaine and that he did so
possessed
dant
ground that intent was an element
spe
prosecuting
In
with intent to distribute.
charged.
Imwinkel-
crime
See Edward J.
crimes,
prior acts evidence
cific intent
ried,
an Accused’s
The Use
Evidence
proving intent.
method of
often be the
Mens Rea:
Uncharged Misconduct to Prove
Thus,
at 1007-08.
where the
Ring, 513 F.2d
Engulf
Threaten to
The Doctrines Which
requiring specific in
charged is one
*7
Prohibition,
Evidence
51 Ohio St.
Character
404(b)
tent,
may
evidence
prosecutor
the
use
(1990).
575
L.J.
acted with the
prove
to
that the defendant
notwithstanding any
specific
defense
cases,
intent
subsequent
the
In
we have followed
might raise.
the defendant
Ring.
out in
In
v.
rule set
United States
(6th Cir.1989),
Rodriguez,
cert.
1193 may why that there not be other circumstances trial duty court’s is apply 404(b) and, uncharged correctly misconduct evidence is which ad- admitting before such evidence, prove carefully missible to intent. We have no occa- to decide whether it will today hypothetical substantially prejudicial sion to examine cases not be more proba- than legitimate component before us or to muse in dicta about tive. A weigh- admissibility ing process of such evidence in cases is the trial judg- court’s informed whether, general specific which a rather than a ment despite intent the “technical” admis- proved. sibility must be evidence, rule we have reaffirm- of the other jurors acts stated, so, narrowly purposely ed is likely to ad- are more than not to use the evidence only specific very dress type purpose intent crimes of the for the for which the first sen- charged with which the defendant was here tence of the rule states that it not be range involving and not the whole used. crimes And when trial court’s final deci- made, criminal states of mind. sion balancing done, is having been jurors permitted and the are to hear of the case, pled In this guilty Johnson not misconduct, prior defendant’s important it is put government proof. to its He did jurors that the clearly, simply, then be possessed cocaine, not admit that he nor correctly concerning instructed the narrow allege possessed did he that he with cocaine purpose and limited for which the evidence See, some intent other than to distribute. may be considered. That was not done in Robison, e.g., 365, United States v. 904 F.2d this case. (6th Cir.), denied, 946, cert. U.S. Although the balancing probative value (1990). Rather, S.Ct. L.Ed.2d 323 prejudice and substantial may be “subsumed possession Johnson denied of cocaine alto in the ruling admitting evidence,” court’s gether. whether, entirely It is not clear Acosta-Cazares, 878 F.2d at it is be- opening reason of his counsel’s statement to prior cause acts evidence carries with such placed Johnson in issue the intent high risk of confusion and misuse that component distribute of the offense with heightened there is a need for the careful charged. which regardless he is But application principles set out in Rule defense, Johnson’s since the case, In 403. the district court did not obligated prove that Johnson explicit finding make an probative on the cocaine, possessed the but that he did so with prejudicial value versus the effect of the evi- it, distributing intent of gov gave dence. The jury sepa- court three ernment’s evidence of other similar acts of rate pur- and inconsistent instructions on the possession with intent to distribute was ad poses for which acts could be con- subject duty missible weigh court’s sidered. The court first instructed the probative against value of the evidence that the bad acts evidence was “admis- prejudicial its effect. purpose, sible for some perhaps to show mo- tive or activity”; some other relevant it later B. *8 instructed that the evidence was admissible jurors When hear that a defen “proof as operations”; to method of and dant has on earlier occasions committed es still later stated that the evidence was admis- sentially the same crime as that for which he sible to show “intent to commit the crime trial, is on the unquestionably information charged preparation, plan or as of evidence powerful That, has a prejudicial impact. and knowledge and in the commission of the course, why of prosecution is the uses such charged.” crime evidence whenever it can. When acts introduced, regardless evidence is instruction, of the stat The first that the evi purpose, ed very great motive,” the likelihood is that dence was admissible “to show is jurors the will precisely use the evidence for mistaken. Motive not in in was issue purpose may considered; the not be to case. It was not an element of the crime suggest that the person, charged, claim, defendant is a bad and the defendant did not for criminal, convicted and that if example, he “did it that charged he committed the of probably before he again.” did it purpose. That is fense for some innocent 1194 example, gov- in the instruction, suggestion, the was no
The second that the other theory the case of ernment’s proof “method used as of could be evidence necessary steps preliminary in acts were In cases also mistaken. operations,” is criminal enter- greater, overall success of of the identity perpetrator the the which prise. issue, the charged in evidence is crime utilizing the acts other committed defendant other circuits cases in this and The opera or method of opercmdi modus same trial willingness in a remarkable reveal perpetrator employed the was tion as admit, appellate readily and to courts tending charged, is admissible as crime acts evidence readily approve, other courts to committed prove that the defendant to any articulation of the clear without Fountain, 2 charged. United States crime apply To justifying its admission. rationale — denied, (6th Cir.), cert. F.3d 404(b) must court fairly, the district -, 126 L.Ed.2d S.Ct. U.S. identify, in instructions to the its carefully Weissenberger, Federal (1993); see Glen also in the rule specific factor named (1987). theory The § at 92 404.17 Evidence justify of the upon to admission that is relied employed operation that if the method is evidence, explain why that factor other acts essentially and is identical the crimes all of material, jurors against us and warn the is can said to sufficiently unique, the method be ex to draw the inferences ing the evidence defendant, thus “signature” of the sentence of in the first pressly forbidden identity perpetra as the prove his tending to 404(b). charged. crime tor of the by the instructions are troubled We here, dispute was no about But there likely that the three case. It is given in this perpetrator of identity of the thoroughly con substantially incorrect claim, for exam- charged. did Johnson permissible use tradictory instructions twenty- possessed else ple, that someone prior drug sales con of the evidence intent base with grams of cocaine five unwittingly en jurors and even fused the that his arrest was it and distribute for the couraged them to use the evidence identity. His was mistaken defense result of in the rule. expressly purpose forbidden possessed the seen to have that no one was 1) Nevertheless, the district court’s because: that, in he was arrested and narcotics when ultimately include a refer did instructions events, passerby. was an innocent all he purpose for which proper ence to the issue, identity there is noth- were Even 2) used; the defen acts evidence unique in the or so manner ing so unusual objection registered no counsel dant’s charged and the of- acts” which the “other ruled given the evidence was once instruction “sig- suggest as to fense were committed 3) admissible; of the defen the evidence single actor' —Johnson. nature” of overwhelming, we conclude is guilt dant’s given to the third instruction con imprecise did not instructions was evidence admissible verdict, did not result and thus taminate charged or the crime “intent commit show justice. miscarriage of in a plan knowl preparation, as evidence of Knowledge is a in error. edge” is likewise III. claims the defendant “material issue” when reasons, AFFIRM foregoing For the committing a that he was he unaware of conviction. judgment Evidence act. Weinstein’s criminal *9 (1993). ¶404[13], In this 404-79 to 404-81 NELSON, Judge, A. Circuit DAVID case, was not at because knowledge issue concurring. argue, example, that he for Johnson did not judgment in most of in the and I concur drugs by mistake or inadver possessed the Judge Ryan written for the opinion has tence, to be the was so or that he intoxicated Rather, particularly troubled I am not doing. he court. he was unaware of what here, however, the trial court did anything Likewise drugs the at all. possessing denied why. explain to separately I There plan were not issue. write preparation or By way background, may helpful it response questions to at all. In posed by to his did, although however, that lawyer, note defense counsel he also testified that his statements, opening present objection to an meeting intent in with the confidential infor- 404(b) evidence, to introduction day mant on question was to take the point objection the sole of her was that the money informant’s without turning any over prosecutor previously had not told her the drugs. Johnson claimed to have been lead- purpose for which he intended to offer such ing the confidential informant to believe that inquired evidence. The court then what the give dope Johnson would him exchange for was, purpose prosecutor responded dollars, and the but testimony was that this was that the evidence would be offered to show actually not what he intended to do. “What “[ijntent, motive, mistake, prepara- lack of you were going to do?” the defendant’s law- tion, plan, things.” all those Defendant yer asked. lawyer rejoinder this, Johnson’s offered no to I going “A. was to make the block and ultimately and the court ruled “that based on money. leave (cid:127)with the I ’point,
what have at this the evidence would Q. you going give Were him anything 404(b)_” (Em- be admissible ... under money? for his phasis supplied.) clearly The defense was No, A. I wasn’t. precluded raising objections from further prosecutor attempted when the develop Q. you Did think going he was to call the during the evidence the trial itself —at which police you? on expected time the court could be to have a A. I police. know he couldn’t call the understanding setting— fuller of the factual Q. Why? objection any but no such at made time during presentation prosecution’s A. What could he tell them? What would case-in-chief.1 them, fixing he tell buy some dope?” opening
In her statement to the de- emphasized govern- fense counsel that jury If the had testimony, believed this proving ment had the burden of both the obligated acquit would have been the de- possession element of and the element of possession-with-intent-to-dis- fendant of the intent to distribute: charge tribute even if it also believed that credible, proof beyond “Is there believable trap Johnson claimed to have been set- knowingly reasonable doubt that he ting for the confidential informant was actu- it, willfully possessed ever number one. ally drugs. baited with two, possess Number did he it with the Against background I turn to the first else, intent to distribute it to someone limiting question, instructions in an they it, ... proved possessed once that he given request instruction at the of defense substance crack cocaine?” counsel after the confidential informant had jury Defense counsel went on to tell the (without objection) testified about the dispute “we don’t the substance the drug telling sales. In that the evi- officers ... found is crack cocaine.” She proof dence did not allega- constitute however, explained, that both the element of “may tions in the indictment but be admissi- possession and the element of intent re- purpose, ble for perhaps some other to show very mained much issue: “Mr. Johnson activity,” motive or some other relevant it, dispute possessed does that he ever making court was a statement that strikes possessed he ever cocaine with the intent to me as accurate as far itas went. It seemed (Emphasis distribute.” supplied.) well, presum- accurate to defense counsel as stand, ably, When defendant Johnson took request because she made no clarifi- having possessed he expansion denied the crack cocaine cation or of the instruction. case, prosecution objection 1. After ground had rested its De- was based that the testify beyond scope fendant Johnson elected to on his own went cross-examination rect, of di- lawyer objected prosecution's *10 ground behalf. His and not on the that the evidence sales, cross-examining 404(b). drag him on his but was inadmissible under Rule prosecutor both lawyer and the given defendant’s limiting instruction —also The second objection the they no to what had stated that and also defense counsel request of at the jury been told. had request for clarifica- without accepted her jury that al- expansion tion or —told this, quite confident in I feel all Given prior acts did though evidence of contaminated was not saying that the verdict happened on proof as to what constitute any way. indictment, may “it be to in the date referred I am operations....” method of proof as to If the defen- that this was error.
not sure past had been operandi modus
dant’s agreed to delivery drugs he had of
to make money
sell, taking the customer’s rather than himself, perhaps drugs keeping
and consider- this into
jury entitled to take was my point, in need not decide ation. We America, Plaintiff- of UNITED STATES view, was errone- if the instruction because Cross-Appellant, Appellee, At all, plainly it was not erroneous. ous at words, the kind most, it constituted in other brought to have had of error that would HOLLINGSWORTH, Jr. L. Arnold timely objec- through a the court’s attention Pickard, III, Defendants- A. William it on made of anything were tion Cross-Appellees. Appellants, appeal. 92-2399, 92-2483, 92- Nos. in- prior-bad-aets instruction The final 2694 and 92-2695. with charge worked out general in a cluded Appeals, States Court United Stating attorneys end of the case. at the Circuit. Seventh laundry list want the whole that “I don’t jury there,” telling the judge proposed Argued 1993. June prior-bad- “you [the can consider 29, 1993. Decided Oct. deciding the defen- whether evidence] aets necessary intent to commit dant had the 8, 1994. Reargued En Banc Feb. (Emphasis supplied.) The charged.” crime 2, 1994. Decided June in- expanded to prosecutor wanted the list knowledge,” and plan “preparation, clude appro- that this would be judge decided stated, affirmatively Defense counsel
priate. conference, that she charge
at the end of the objection” what had been “[n]o
had
worked out. charge instructed general —which of the
jury, among things, that “each other (both the of the offense” elements
essential possession and the element
element of distribute) was in issue—conformed
intent to upon at the
exactly agreed to what had been only consider can
charge “[Y]ou conference. deciding prior-bad-acts evidence]
[the necessary the defendant had the
whether charged,”
intent to commit the crime told, preparation, plan “or as evidence knowledge in the commission court finished the charged.” When the
delivery its instructions to