The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50388
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY EDWARD BROWN,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
( W-94-CR-61 (1))
Febraury 25, 1997
Before POLITZ, Chief Judge, REAVLEY and DENNIS, Circuit Judges.
POLITZ, Chief Judge:*
Roy Edward Brown appeals his conviction of possession with intent to
distribute 50 or more grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
Concluding that the district court admitted evidence contrary to the strictures of
Federal Rule of Evidence 403, we reverse the conviction and remand for a new
trial.
Background
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule
47.5.4.
This appeal arises out of Brown’s second trial and conviction on the stated
offense. We reversed the first conviction and remanded for a new trial after finding
a violation of Federal Rule of Evidence 404(b) by the admission of evidence of
Brown’s prior conviction of possession of crack cocaine with the intent to
distribute.1 At the second trial the prosecutor relied primarily upon the testimony
of two witnesses, Kelly Hensley and Stanley Johnson, to establish Brown’s guilt.
Hensley testified that she saw a man holding a brown paper bag found to contain
117.51 grams of crack cocaine and identified Brown as that man. Johnson testified,
over the objection of Brown, that while working in conjunction with the Killeen
Police Department, he purchased crack cocaine from Brown on three separate
occasions. Brown was again convicted and again appeals his conviction.
Analysis
Brown contends that the district court erred in overruling his objection and
admitting evidence of his alleged participation in three drug transactions. The
district court admitted the evidence as relevant to the critical issue of Brown’s
intent to distribute the 117.51 grams of crack cocaine he allegedly possessed.
Extrinsic evidence of “other wrongs” may be admitted at criminal trials if
this evidence passes a two-part test. First, the evidence must be probative of some
issue other than character. The evidence cannot be used solely to prove that the
defendant is a “bad guy.” Second, the probative value of the evidence must not be
1
71 F.3d 1158 (5th Cir. 1995). The facts leading up to Brown’s arrest, trial, and
conviction are fully explained in our earlier opinion and we do not repeat them here.
2
outweighed by its prejudicial effect.2
On appeal Brown vigorously maintains that any probative value of the
evidence was outweighed greatly by its prejudicial effect. Assuming arguendo that
the evidence was probative of intent, to determine its admissibility we must weigh
its probative value against its prejudicial effect.
The probative value of extrinsic evidence introduced to prove intent must be
“determined with regard to the extent to which the defendant’s unlawful intent is
established by other evidence, stipulation, or inference.”3 In this case, the
prosecutor established the intent to distribute crack cocaine element with
overwhelming and uncontroverted evidence of the quantity involved and the
compelling inference therefrom. Police Officer Patrick Turk, a narcotics
investigator, testified that one gram of crack cocaine has a street value of
approximately $200 and that 117.51 grams of crack cocaine has a street value of
over $23,000. Turk further testified that crack cocaine is usually sold on the street
in the form of small rocks in quantities of 0.1 to 0.2 grams and that 117.51 grams
of crack cocaine is a “wholesale quantity, a dealer’s quantity.”
This testimony combined to establish affirmatively the element of intent to
distribute crack cocaine and was admitted without objection or contradiction by
Brown. Therefore, the extrinsic evidence of the three drug transactions between
Brown and Johnson, had very little, if any, probative value on the issue of intent,
2
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440
U.S. 920 (1979).
3
Id. at 914.
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whereas the prejudice resulting from its admission obviously overwhelms. This
evidence was such that the jury likely convicted Brown on the basis of their
perception of him as a drug dealer rather than the evidence actually before them.
Evidence of the three drug transactions was improperly admitted, and this
error was not harmless beyond a reasonable doubt.4 As in Brown’s first trial, the
evidence in the second trial was not so overwhelming that the jury likely
disregarded Johnson’s testimony. Brown’s defense was that Hensley incorrectly
identified him as the man she saw holding the brown paper bag. Hensley was the
only eyewitness, and Brown pointed out significant differences between Hensley’s
description of the man she saw holding the brown paper bag and his own
unchallenged physical appearance. Additionally, the prosecutor produced no
physical evidence whatever linking Brown to the brown paper bag or to the crack
cocaine contained therein.
We also find of considerable import the fact that the district court
inadvertently gave conflicting limiting instructions to the jury. Before Johnson was
allowed to testify, the district court instructed the jury that they could consider his
testimony “for the limited purpose of considering . . . whether or not the Defendant
possessed a controlled substance with the intent to distribute it.” In the final
instructions, however, the district court instructed the jury that they should consider
the evidence “only to determine whether the Defendant had the intent to distribute
the ‘crack’ cocaine as alleged.” In further exacerbation of the situation, the
4
Chapman v. California, 386 U.S. 18 (1967).
4
prosecutor, during closing arguments, characterized the evidence as propensity
evidence. Specifically, the prosecutor stated that “[t]he question on . . . Johnson is,
is he telling you the truth . . . . There’s absolutely no doubt that he’s into ‘crack’
cocaine, but who does he buy his ‘crack’ cocaine from? Right there [indicating
Brown], that’s who he told you.”
Under these circumstances, we cannot say that the erroneous admission of
Johnson’s testimony was harmless beyond a reasonable doubt and we therefore are
compelled to REVERSE Brown’s conviction and REMAND for a new trial.
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