United States  v. Harris, No. 07-2195 (7th Cir. 08/06/2008).

Spencer Harris was convicted after a jury trial on five separate criminal counts: one count of distributing crack cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B), one count of distributing powder cocaine, id. §§ 841(a)(1), (b)(1)(C), one count of possessing crack cocaine with intent to distribute, id. §§ 841(a)(1), (b)(1)(B), one count of being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(c)(1)(B), and one count of possessing a firearm in furtherance of a drug-trafficking crime, id. § 924(c)(1)(A). The district court sentenced Harris to a total of 460 months' imprisonment.

 

On appeal, Harris claims that the district court made several erroneous evidentiary rulings, which deprived him of a fair trial. We do not believe that the district court abused its discretion in admitting the challenged evidence against Harris, so we affirm his conviction.

 

In anticipation of trial, the government gave notice of its intent to present evidence of other crimes, wrongs, or acts committed by Harris. See Fed. R. Evid. 404(b). The government's notice delineated the "other act" evidence that it intended to offer Harris sold cocaine and crack cocaine to a cooperating witness, Haynes, on numerous occasions prior to the controlled purchases.  

 

In response to the government's notice, Harris filed a motion in limine, which sought to bar the evidence of prior drug deals with Haynes as irrelevant and as improper propensity evidence under Rule 404(b).

 

With regard to the prior drug deals between Harris and Haynes, the district court stated that "those transactions . . . are relevant to show the history between the two. And in that sense they are intricately related to the charges found in . . . the indictment. So things that go to their history and relationship are very relevant and will not be barred." The district court explained that the evidence was also admissible under Rule 404(b) because it "would go to show the defendant's knowledge of cocaine, his intent to distribute it, and it would go towards establishing the nature and extent of the relationship between the defendant and [Haynes]."

 

As for the drug transactions between Harris and Powers and between Harris and Brown, the district court explained that:

 

[E]vidence of those should be limited to the same time frame that [Haynes] was purchasing crack or powder cocaine from [Harris]. For that time frame the other incidents are relevant as corroboration of [Haynes's] testimony, and to show that there was a source that Harris had for purchasing the cocaine that he in turn sold as cocaine or crack cocaine.

 

The district court also determined that the evidence that Harris drove luxury vehicles would "be relevant to show an unaccounted for source of income if the Government is able to introduce other evidence that the defendant lacked a source of income." Finally, with respect to the .22 revolver and the ammunition, the court stated "[t]he second gun doesn't add much prejudice to the first gun, which is required under the Government's indictment, if it's going to prove its charge."

 

The district court justified its admission of testimony about other drug transactions between Harris and Haynes because such testimony was "intricately related" to the conduct charged in the indictment. United States v. Strong, 485 F.3d 985, 989-90 (7th Cir. 2007), and because the evidence was admissible under Federal Rule of Evidence 404(b).

Rule 404(b) prevents the admission of evidence of other crimes, wrongs, or acts to prove that a person acted in conformity with his prior conduct. Fed. R. Evid. 404(b). In other words, "Rule 404(b) plainly prohibits the government from introducing evidence of prior bad acts to show that the defendant's character is consistent with a propensity to commit the charged crime." United States  v. Simpson, 479 F.3d 492 (7th Cir. 2007). But evidence may be properly admitted under Rule 404(b) for a non-propensity purpose, such as to prove " 'motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' " United States v. Sebolt, 460 F.3d 910, 916 (7th Cir. 2006) (quoting Fed. R. Evid. 404(b)).

A district court properly admits evidence of prior acts under Rule 404(b) if:

           

"(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice."

Acts that are "intricately related to" (or "inextricably intertwined with") a crime charged in the indictment "are generally admissible . . . and are not subject to the constraints of [Rule 404(b)]." Strong, 485 F.3d at 989-90. But we recently noted that the " 'inextricably intertwined' formula . . . is unhelpfully vague."  United States v. Taylor, 522 F.3d 731, 734 (7th Cir. 2008).

We explained that "intent and absence of mistake are express exceptions to the Rule 404(b) bar; there is no need to spread the fog of 'inextricably intertwined' over them. Almost all evidence admissible under the 'inextricably interwoven' doctrine is admissible under one of the specific exceptions in Rule 404(b) . . . ."  Id. at 735.

After reviewing the record, we believe that there is "no need to spread the fog" of the "intricately related" doctrine in this case because Haynes's testimony about his other drug transactions with Harris was admissible under Rule 404(b).

 

Haynes's testimony related to several non-propensity issues, including Harris's intent to distribute the drugs recovered during the police searches, his knowledge of the drugs, and the absence of mistake. Evidence that Harris sold drugs to Haynes was relevant to show that Harris intended to sell the drugs found during the police searches, and Harris's intent was automatically at issue because the indictment charged him with specific intent crimes. 

 

The testimony from Haynes was also relevant to rebut the allegations of mistake that Harris raised by claiming that he was an innocent bystander and that Haynes "set him up." The government therefore needed to introduce evidence of the illicit history between Harris and Haynes in order to elucidate their ongoing business relationship and rebut Harris's attempt to downplay his role in the controlled purchases.

 

The testimony from Haynes also satisfies the other prongs of our test for review under Rule 404(b). The testimony was "similar enough and close enough in time" to the charged conduct-in fact, the transactions were limited to a two-year period and involved identical amounts of the same drug as those charged in the indictment.

 

The evidence was also sufficient to support a jury finding that Harris engaged in the prior drug transactions with Haynes: the evidence of the controlled purchases and the items recovered from the residences, as well as Powers's and Brown's testimonies, corroborated Haynes's coherent story. See United States v. Mallett, 496 F.3d 798, 802 (7th Cir. 2007).

And the evidence satisfies the final prong of our Rule 404(b) admissibility inquiry-the balancing test incorporated from Federal Rule of Evidence 403. Rule 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403.

 

Standing alone, evidence regarding a vast number of similar drug deals might allow a jury to improperly convict a defendant based on his propensity to sell drugs. See Simpson, 479 F.3d at 499. But in this case, Haynes's testimony did not stand alone. The district court gave numerous and detailed limiting instructions on the issue. These instructions alleviated any potential prejudice caused by the testimony. See  United States v. Hearn, No. 07-1613, slip op. at 14 (7th Cir. July 18, 2008).  Thus, the district court did not abuse its discretion by admitting the evidence of other drug transactions between Harris and Haynes.

We AFFIRM the judgment of conviction, and the sentence of the district court.

 

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com.

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