USA v. Sharriff Miller, 11-1038

In April 2008, acting on a tip from a confidential informant, police obtained a search warrant and then raided a home where defendant Shariff Miller and several other people were staying. After apprehending Miller on his way out the side door, police searched the house and found several guns and a quantity of crack cocaine. The cocaine and a pistol were found close to some of Miller's personal effects in a room where he was alleged to be staying.

Miller was tried and convicted of three offenses: possessing more than five grams of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug crime in violation of 18 U.S.C. § 924(c)(1)(A).

Miller appeals his convictions and raises three issues…..The third issue requires reversal of two of Miller's convictions and a remand for re-sentencing on the third.

At trial, the prosecution used Rule 404(b) to admit evidence that Miller had been convicted in 2000 of felony possession of cocaine with intent to distribute it. We conclude that admission of the details of Miller's prior drug conviction violated the character evidence prohibition of Rule 404(b) and was an abuse of discretion.

We conclude that admission of the details of Miller's prior drug conviction violated the character evidence prohibition of Rule 404(b) and was an abuse of discretion.

We conclude that admission of the details of Miller's prior drug conviction violated the character evidence prohibition of Rule 404(b) and was an abuse of discretion.

Use of a prior drug distribution conviction to prove intent to distribute is often a disguised use for impermissible propensity purposes, and was so here. We have often warned about the dangers of applying the exceptions in Federal Rule of Evidence 404(b) too loosely to admit prior bad acts, especially in drug cases, without paying close attention to both the legitimacy of the purpose for which the evidence is to be used and the need for it. See, e.g., United States v. Beasley, 809 F.2d 1273, 1277-80 (7th Cir. 1987).

III. Evidence of Prior Intent to Distribute Cocaine

The government's use of Miller's eight-year-old conviction for possession of cocaine with intent to distribute was far more problematic, and the admission of that evidence here requires reversal of his conviction on the two drug-related charges. Miller has never argued that the bags of drugs — some of which had price tags attached — were not intended for distribution. His defense at trial was instead that, despite the proximity to his personal effects, the drugs were not in fact his and he was not staying in the room where the drugs and pistol were found.

Because felon status is an element of the felon-in-possession charge, the government needed to prove that Miller was a convicted felon. The fact of his prior conviction of an unspecified felony was admissible for that purpose. E.g., Old Chief v. United States, 519 U.S. 172, 190-92 (1997). The nature and underlying story of that prior conviction, however, were not necessary or admissible merely to prove felon status — although they might have been admissible for another purpose under Rule 404(b). Id.

The district court wisely waited until after opening statements and cross-examination of a key witness to learn the defense theory before deciding whether to admit the details under Rule 404(b).

Miller contends, and we agree, that the drug crime evidence from 2000 was substantially more prejudicial than it was probative. The only purpose for which it could have been used by the jury here was to draw an impermissible propensity inference. The arguments presented in this case suggest that admission of prior drug crimes to prove intent to commit present drug crimes has become too routine. Closer attention needs to be paid to the reasons for using prior drug convictions — to lessen the danger that defendants like Miller will be convicted because the prosecution invited, and the jury likely made, an improper assumption about propensity to commit drug crimes.

Rule 404(b) does not provide a rule of automatic admission whenever bad acts evidence can be plausibly linked to "another purpose," such as knowledge or intent, listed in the rule. The Rule 402 requirement of relevance and the unfair prejudice balancing inquiries of Rule 403 still apply with full force. United States v. Beasley, 809 F.2d 1273, 1279-80 (7th Cir. 1987);

This must be so because the "list of exceptions in Rule 404(b), if applied mechanically, would overwhelm the central principle. Almost any bad act evidence simultaneously condemns by besmirching character and by showing one or more of `motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident', not to mention the `other purposes' of which this list is meant to be illustrative." Beasley, 809 F.2d at 1279 (emphasis in original).
The trial judge must balance the relevance of the proposed use of the evidence to the case — and the evidence's relevance to that proof — against the high risk that the evidence will also tend to establish bad character and propensity to commit the charged crime. Citing United States v. Manganellis, 864 F.2d 528, 532-33 (7th Cir. 1988), that if a mere claim of innocence were enough to automatically put intent at issue, the resulting exception would swallow the general rule against admission of prior bad acts.

Whether the intent element is specific or general for the charged crimes, all bad acts evidence must be balanced for probative value and unfair prejudice. Id.; Jones, 455 F.3d at 806-07.
It is helpful to distinguish between two aspects of the relevance inquiry.

The first aspect concerns whether a Rule 404(b) exception, like intent, is "at issue" — that is, whether the issue is relevant to the case. For example, knowledge may not be at issue at all where the charge is a strict liability offense, so that knowledge is not even an element of the crime. Similarly, while intent is at least formally relevant to all specific intent crimes, intent becomes more relevant, and evidence tending to prove intent becomes more probative, when the defense actually works to deny intent, joining the issue by contesting it. When, as in this case, the drugs in question were clearly a distribution quantity, the packages had price tags, and the defendant did not deny they were intended for distribution by someone, intent was "at issue" in only the most attenuated sense.
Whether the bad acts evidence offered is relevant to and probative of intent, without being too unfairly prejudicial by invoking a propensity inference.

In other words, can the government fairly use this evidence to meet its burden of proof on this issue?

We recognize that many of our cases approve the admission of prior drug-dealing crimes to show intent in drug-dealing prosecutions, despite the fact that, of the Rule 404(b) other purpose exceptions, intent is the exception most likely to blend with improper propensity uses. E.g., United States v. Perkins, 548 F.3d 510, 514-15 (7th Cir. 2008). We have never approved admission of bad acts evidence solely because it was formally relevant to intent and intent was "at issue."

There may be enough cases affirming such admissions, however, that in cases charging specific-intent drug crimes, the admission of prior drug convictions may have come to seem almost automatic. It is not. We need to recall first principles. "To meet the test of Rule 404(b), there must be a showing that an issue has been joined as to intent, or another of the 404(b) categories, discrete from a showing of mere propensity." Chavis, 429 F.3d at 673 (Cudahy, J., concurring).

To differentiate between "the illegitimate use of a prior conviction to show propensity and the proper use of a prior conviction to prove intent," "the government must affirmatively show why a particular prior conviction tends to show the more forward-looking fact of purpose, design, or volition to commit the new crime." United States v. Jones, 389 F.3d 753, 757-58 (7th Cir. 2004).

In every Rule 404(b) case relying on intent, the court (1) must consider the probative value of the prior act to prove present intent, and (2) must weigh that value against the tendency of the evidence to suggest unfairly a propensity to commit similar bad acts. The availability of precedent that balances the relevance of bad acts evidence and decides to admit it does not excuse prosecutors or courts from asking in each new case whether and how prior bad acts evidence might be relevant, probative, and fair.

Confusion and misuse of Rule 404(b) can be avoided by asking the prosecution exactly how the proffered evidence should work in the mind of a juror to establish the fact the government claims to be trying to prove. Here, Miller claimed that the drugs found in the shoe box and on the bed were not his, that he was in effect an innocent bystander.

How, exactly, does Miller's prior drug dealing conviction in 2000 suggest that he intended to deal drugs in 2008? When the question is framed this way, the answer becomes obvious, even though implicit: "He intended to do it before, ladies and gentlemen, so he must have intended to do it again." That is precisely the forbidden propensity inference.

And this is where the district court erred, even as it undertook the correct Rule 402 relevance and Rule 403 prejudice analysis — and cited some of our cases mentioned above. The court focused on whether intent was at issue based on Miller's defense and on the government's obligations of proof. Having concluded that intent was at issue, the court turned to analyze prejudice and, citing Hurn, simply stated that the evidence was highly probative of intent.

Had the court asked more specifically how the prior conviction tended to show intent eight years later, it would have recognized that it was dealing with propensity evidence all the way down. Unless there is a persuasive and specific answer to the question, "How does this evidence prove intent?" then the real answer is almost certainly that the evidence is probative only of propensity.

The court focused on whether intent was at issue based on Miller's defense and on the government's obligations of proof. Having concluded that intent was at issue, the court turned to analyze prejudice and, citing Hurn, simply stated that the evidence was highly probative of intent. Had the court asked more specifically how the prior conviction tended to show intent eight years later, it would have recognized that it was dealing with propensity evidence all the way down.

Unless there is a persuasive and specific answer to the question, "How does this evidence prove intent?" then the real answer is almost certainly that the evidence is probative only of propensity.
Miller's prior conviction for possession of cocaine with intent to distribute shows he once had an intent to distribute drugs. When intent is an essential element of the charged crime, prior bad acts evidence directed to intent can easily be nothing more than propensity evidence. This is why cases so often look to the nature of the defense to seek a possible justification for use of the evidence.

The admission of the details of Miller's 2000 conviction was an abuse of the district court's discretion. The government argues in the alternative that the error was harmless. We disagree as to the two drug-related charges, though the evidence of Miller's guilt in this case was strong. Police found a scale suitable for measuring drugs, and crack cocaine packaged for distribution, both in shoe boxes containing Miller's personal papers.

In deciding whether the non-constitutional error was harmless, we do not try to guess what the jury might have decided if it had not known that Miller had been convicted of this same crime eight years earlier. We instead ask whether an average juror would find the prosecution's case significantly less persuasive without the improper evidence. See Hicks, 635 F.3d at 1073-74.

We do not agree with the government that its evidence was overwhelming. Nor do we agree that the strength of the other evidence is the sole relevant factor. Our role in deciding whether an error was harmless is not to "become in effect a second jury to determine whether the defendant is guilty." See Neder v. United States, 527 U.S. 1, 19 (1999).

IV. Conclusion

Miller's convictions for possession with intent to distribute and for possession of a firearm in furtherance of that crime are REVERSED. Miller's conviction for being a felon in possession of a firearm was not tainted by the Rule 404(b) error and is AFFIRMED, but the sentence on that charge is VACATED so that the district court can resentence Miller on that charge once the other charges are resolved. The case is REMANDED for new sentencing on the felon-in-possession charge and a new trial on the other charges consistent with this opinion.

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