United States v. Hardy

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0133p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 08-5991

v.

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Defendant-Appellant. -

DEMARCUS HARDY,

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Appeal from the United States District Court

for the Eastern District of Tennessee of Chattanooga.

No. 06-00139-001—Curtis L. Collier, Chief District Judge.

Argued: January 14, 2011

Decided and Filed: May 19, 2011

Before: SUHRHEINRICH, COLE, and COOK, Circuit Judges.

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COUNSEL

ARGUED: Mark Wettle, Louisville, Kentucky, for Appellant. Zachary C. Bolitho,

ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee.

ON BRIEF: Mark Wettle, Louisville, Kentucky, for Appellant. Zachary C. Bolitho,

ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, Steven S. Neff,

ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.

SUHRHEINRICH, J., delivered the opinion of the court, in which COOK, J.,

joined. COLE, J. (pp. 23–27), delivered a separate dissenting opinion.

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OPINION

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SUHRHEINRICH, Circuit Judge. Defendant DeMarcus Hardy appeals his

conviction and sentence for drugs and firearms convictions following a jury trial.

Specifically, he challenges the admission of prior, uncharged drug activity as a violation

1

No. 08-5991 United States v. Hardy Page 2

of Fed. R. Evid. 404(b), as well as the district court’s decision to grant an upward

departure at sentencing. We AFFIRM.

I. Background

A. Pretrial Proceedings

In December 2006, based on a tip from a confidential informant, the Special

Investigations Unit of the Chattanooga Police Department obtained a search warrant for

Hardy’s house at 3412 Jones Street in Chattanooga, Tennessee. On December 11, 2006,

ten police officers executed the warrant. As they pulled up to the house, a person on the

front porch started yelling “Police” in an apparent attempt to warn those inside. Police

jumped out of the van, also yelled “Police” and “Search Warrant,” and descended on the

house. Hardy burst through the door and took off running. Officers Sully Batts and

Vernon Kimbrough eventually found him hiding in the backyard of another residence.

They handcuffed him and brought him back to 3412 Jones Street. During the search of

the house, the officers found two large plastic bags containing a total of 316.84 grams

of crack cocaine inside of a jacket hanging in the rear bedroom. Attached to the jacket

was a torn dry cleaning bag that bore the letters “D-E-M-A-R”– the first five letters of

Hardy’s name. In that same bedroom, the officers also discovered approximately $5,000

in cash stuffed in the pocket of a pair of jeans. A nine millimeter handgun was on the

floor of the den. Hardy’s wallet was close to the handgun. The officers also found .45

caliber ammunition, digital scales, and pieces of mail addressed to Hardy at the Jones

Street address. Hardy repeatedly told the officers throughout the search that the drugs

were his.

Hardy was charged with one count of being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(1); one count of possession with the

intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(A), and one count of possession of firearms in furtherance

of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(a)(i). Hardy pleaded

not guilty.

No. 08-5991 United States v. Hardy Page 3

Prior to trial, the Government filed notice of its intent to introduce under Fed. R.

Evid. 404(b) evidence of Hardy’s prior sales of crack cocaine. Hardy filed a motion in

limine. The motion was addressed at trial.

B. Trial

1. Government’s Case

The Government called six witnesses. First, Detective Batts told the jury how

Hardy fled from the house, and explained how the officers discovered the crack cocaine,

the $5,000, the digital scales, the 9mm handgun, the .45 caliber ammunition, and the

mail. Batts also related that Hardy claimed the drugs were his.

Next, Wendell Kilgore, a convicted drug dealer and Hardy’s cellmate in the

county jail, testified that Hardy told him that the police “caught him with, like, a half key

of crack.” Kilgore also said Hardy told him he had “a trick up his sleeve” because other

people were staying in the house when the warrant was executed.

2. Evidentiary Hearing

At this point the district court held a hearing on the admissibility of the

Government’s 404(b) evidence. The Government sought to introduce the testimony of

Eugene Coleman and Steven Goodwin, both of whom would testify that they had

purchased, or had been with others who had purchased, crack from Hardy. Hardy argued

the evidence was being offered to show propensity. The Government responded that it

was admissible to prove Hardy’s specific intent to possess and specific intent to

distribute drugs.

The district court held that evidence of Hardy’s prior crack sales was admissible

under Rule 404(b), citing, inter alia, United States v. Johnson, 27 F.3d 1186 (6th Cir.

1994). The court observed that the Government did not have proof of actual possession,

which was in dispute. The court found the probative value of the evidence in question

outweighed unfair prejudice under Fed. R. Evid. 403 in light of the evidence and the

defense. The court also issued a limiting instruction:

No. 08-5991 United States v. Hardy Page 4

[L]et me advise you that this evidence is being admitted only for you to

consider two issues. The first issue is whether the defendant had the

intent to possess the drugs alleged in the indictment, and the second one

is whether the defendant had the intent to distribute the drugs named in

the indictment. . . . You cannot consider this testimony as evidence that

the defendant committed the crime that he’s on trial for now, other than

those two issues. You can only consider this testimony in deciding

whether the defendant had the intent as I’ve described it to you. Do not

consider it for any other purpose.

The court repeated a similar instruction in its final charge to the jury.

Coleman testified that between 2002 and 2003 he sold Hardy approximately 4-

1/2 ounces of crack cocaine on a weekly basis. Coleman said Hardy would then resell

it. Goodwin testified that about one year before Hardy was arrested, Goodwin was with

Isaac Moore when Moore purchased crack cocaine from Hardy.

Detective Andy Brown told the jury that based on his experience and training as

a narcotics investigator, over 300 grams of crack cocaine is a distribution quantity. He

said 300 grams of crack could service about 1,500 crack addicts, and had a street value

of $60,000 to $65,000. Brown also stated that drug traffickers have digital scales “to

make sure that they’re giving the proper amount out when they sell it.” He told the jury

that drug traffickers typically possess firearms to protect the drugs, their money, and

themselves.

The Government’s final witness was Investigator Lee Wolff. He assisted in the

search. He heard Hardy claim ownership of the crack cocaine found in the jacket. Wolff

further testified that before being transported to the police station Hardy asked for his

shoes, which were laying on the floor near the 9mm handgun.

3. Hardy’s Defense

Hardy took the stand in his own defense. He testified that the house on Jones

Street was a “family house” where various family members occasionally stayed. Hardy

said he fled on the night of December 11, 2006, because he thought the officers were

“gangbang[ers]” who came to the house with the goal of retaliating against his cousins.

No. 08-5991 United States v. Hardy Page 5

He also said that the crack cocaine found in the jacket was not his, and denied telling the

officers the contrary. He explained he had probably taken the jacket to the dry cleaners

for somebody else and just placed it under his name. He further denied knowledge of

the handgun found near his shoes and wallet. He said that it likely belonged to someone

else in the house at the time of the search.

On cross-examination, Hardy claimed that he did not hear the officers yell

“Police” and “Search Warrant” before he ran out of the house. He also told the jury that

all of the Government’s witnesses were liars who wanted to convict an innocent man.

He acknowledged his prior convictions for felony rape, felony aggravated assault, and

felony aggravated robbery. He also admitted that he had almost $600 cash in his wallet,

even though he did not have a regular job.

Hardy’s uncle, Jacob Barrow, also testified. Barrow stated that the house in

question belonged to Hardy’s grandmother before she died, and that since her death,

numerous family members, including Hardy, resided there at different times.

On rebuttal, the Government called Investigator Vernon Kimbrough. Kimbrough

testified that the officers were yelling “Police” as they exited the raid van. He also said

that Hardy talked throughout the search and took “full responsibility” for the crack

cocaine. Investigator Christopher Palmer, the Government’s second rebuttal witness,

corroborated Kimbrough’s testimony.

In the jury instructions, the district court reminded the jury that testimony of

Hardy’s prior sales of crack cocaine could only be used as evidence of Hardy’s

“knowledge or intent to possess the drugs as well as his intent to distribute the drugs

alleged in the superseding indictment. You must not consider it for any other purpose.”

The jury convicted Hardy on all three counts.

No. 08-5991 United States v. Hardy Page 6

C. Sentencing

The presentence report set a base offense level of 32, and after a two-level

increase for obstruction of justice under U.S. Sentencing Guidelines Manual, § 3C1.1,

calculated Hardy’s total offense level at 34. The presentence report listed Hardy’s

criminal history. It reported that Hardy had been convicted in state court of reckless

endangerment after he caused serious bodily injury to another with a firearm on

December 26, 1989. Hardy was sixteen years old at the time and served ten months of

imprisonment. On July 3, 1992, Hardy was convicted of aggravated assault and

aggravated robbery after he shot a person in the leg. He was discharged to probation.

While on bond, Hardy broke into a woman’s house, took her into a wooded area,

forcibly raped her, and threatened to kill her if she screamed. He told the victim he had

a gun. Hardy was convicted of rape, but received an eight-year suspended sentence. He

did not receive any criminal history points for the rape conviction. On October 25, 2001,

Hardy was convicted of aggravated assault for brutally beating the mother of his child

by repeatedly kicking her in the face and head with his steel-toed boots. For this, he was

convicted of aggravated assault and sentenced to eleven months of imprisonment.

Despite this extensive criminal history, Hardy received only five criminal history

points. This placed him in a criminal history category III. Based on an offense level of

34 and a criminal history category of III, the presentence report calculated Hardy’s

advisory Guidelines range to be 188 months to 235 months of imprisonment. However,

because Hardy faced a mandatory minimum sentence of 60 months of imprisonment for

his § 924(c) conviction, the presentence report determined that Hardy’s effective

Guidelines range was 248 months to 295 months.

The presentence report also stated that a departure from the Guidelines might be

warranted under section 4A1.3 because Hardy’s criminal history did not adequately

represent the seriousness of his prior criminal conduct. The report noted that had

Hardy’s rape sentence not been suspended, the conviction would have counted for

criminal history points and Hardy would be classified as a career offender, resulting in

a Guidelines range of 420 months to life.

No. 08-5991 United States v. Hardy Page 7

At sentencing, the district court advised the parties that Hardy might receive a

sentence above the Guidelines range. Neither party objected to the presentence report,

and the district court stated the Guidelines range was 248 to 295 months of

imprisonment. The district court recognized the advisory nature of the Guidelines and

outlined Hardy’s criminal history. Hardy spoke in allocution. He maintained his

innocence, accused his trial attorney of ineffective assistance of counsel, and said he was

a “man of God” who was “not a threat to society.” Hardy’s attorney asked for a within-

Guidelines sentence. The district court nonetheless determined that an upward departure

was warranted under section 4A1.3, based on Hardy’s prior criminal record. The district

court explained it was departing to a criminal history category VI, which would have

applied had Hardy qualified as a career offender. As a result of the departure, Hardy’s

revised Guidelines range was 420 months to life imprisonment. The district court stated

that it believed a 420-month sentence was sufficient but not greater than necessary to

serve the purposes of 18 U.S.C. § 3553(a).

The district court also indicated that even if it had not departed upward under

section 4A1.3, it would have imposed the same sentence by varying upward from the

Guidelines range under 18 U.S.C. § 3553(a). The court discussed the § 3553(a) factors.

It remarked that based on the “background and history of the defendant” and “the nature

and circumstances of the offense,” a sentence of 420 months imprisonment was

“sufficient but not greater than necessary to achieve purposes” of § 3553(a). The court

stressed the importance of incapacitating Hardy due to his “propensity to commit

extremely violent crimes with guns, where people run a substantial risk of being severely

injured if not killed.” The court also felt that such a lengthy sentence was essential to

“protect society from future crimes of this defendant.”

After announcing the sentence, the court asked if there were any objections to the

sentence imposed. There were none.

Several hours after sentencing, Hardy amended his previously filed motion for

new trial to include a request for resentencing. The district court denied both motions.

In denying the motions, the court stated again that “Defendant’s criminal history

No. 08-5991 United States v. Hardy Page 8

category under-represented the seriousness of both his criminal history and the

likelihood he would commit other crimes.” The court said Hardy had “lived a life of

crime,” and a “criminal history category of III was inadequate to address the near-

inevitability of Defendant committing additional crimes upon his release.” The court

stated that Hardy’s sentence “was substantially driven by a need to protect the public

from further crimes–particularly violent ones.”

D. Appeal

On appeal, Hardy challenges the admission of his prior crack cocaine sales under

Fed. R. Evid. 404(b) and the upward departure of his sentence.

II. Analysis

A. Prior Bad Acts

Hardy claims that the district court abused its discretion by finding that evidence

of Hardy’s prior crack sales was admissible under Federal Rules of Evidence 404(b) and

403 for the purpose of proving intent to distribute. Under Rule 404(b), evidence of

“other crimes, wrongs, or acts is not admissible to prove the character of a person in

order to show action in conformity therewith.” It may be admissible “as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Fed. R. Evid. 404(b). Before the court may admit 404(b) evidence, it must:

(1) determine whether this is sufficient evidence that the prior acts occurred;

(2) determine whether the other act is admissible for one of the proper purposes outlined

in the rule; and (3) apply Rule 403 balancing to determine whether the probative value

of the evidence is substantially outweighed by the danger of unfair prejudice. United

States v. Allen, 619 F.3d 518, 523 (6th Cir. 2010), cert. denied, 131 S. Ct. 841 (2010)

(citation omitted). The district court’s decision to admit such evidence is reviewed for

abuse of discretion. Id. (citation omitted).

Hardy challenges all three prongs of the standard.

No. 08-5991 United States v. Hardy Page 9

1. Preliminary Finding

Hardy asserts that the district court should have made a preliminary finding that

the prior drug sales occurred. Hardy did not make this argument below and has therefore

forfeited it on appeal. See Vance v. Wade, 546 F.3d 774, 781 (6th Cir. 2008) (“[T]he

failure to present an issue to the district court forfeits the right to have the argument

addressed on appeal.”) (internal quotation marks and citation omitted). The argument

fails anyway. See Huddleston v. United States, 485 U.S. 681, 688-89 (1988) (concluding

“that a preliminary finding by the court that the Government has proved the act by a

preponderance of the evidence is not” required by the text of the rule and that “similar

act evidence is relevant only if the jury can reasonably conclude that the act occurred

and that the defendant was the actor”); United States v. Trujillo, 376 F.3d 593, 605 (6th

Cir. 2004) (applying Huddleston; holding that the district court did not err in failing to

make a factual determination that the alleged bad acts occurred because “a jury could

reasonably have concluded that [the defendant] committed the prior bad acts based

upon” the witnesses’s testimony). In this case, Coleman’s and Goodwin’s testimony was

sufficient for the jury to conclude that the acts occurred. The district court did not err

by failing to make a preliminary factual determination that the prior sales of crack

cocaine took place.

2. Proper Purpose

Hardy contends that Goodwin’s and Coleman’s testimony was not admissible

under Rule 404(b) to prove intent because it was not part of the same scheme nor did it

show the same modus operandi of the charged conduct. In determining whether the

proffered evidence is admissible for a legitimate purpose, it must be probative of a

material issue other than character. United States v. Carney, 387 F.3d 436, 451 (6th Cir.

2004) (quoting Huddleston, 485 U.S. at 686)). It is if (1) the evidence is offered for a

permissible purpose, (2) that purpose is in issue, and (3) if probative to the purpose for

which it is offered. United States v. Jenkins, 345 F.3d 928, 937 (6th Cir. 2003) (citing

Johnson, 27 F.3d at 1190-91).

No. 08-5991 United States v. Hardy Page 10

a. Permissible Purpose

The crime of possession of cocaine with intent to distribute is a specific intent

crime such that the defendant’s intent is a statutory element of the offense. United States

v. Matthews, 440 F.3d 818, 829 (6th Cir. 2006) (citation omitted).

b. In Issue

This court has specifically held that “where the crime charged is one requiring

specific intent, the prosecutor may use 404(b) evidence to prove that the defendant acted

with the specific intent notwithstanding any defense the defendant might raise.”

Johnson, 27 F.3d at 1192. See also United States v. Bilderbeck, 163 F.3d 971, 977 (6th

Cir. 1999) (stating that “where the crime charged is one requiring specific intent, the

prosecutor may use 404(b) evidence to prove that the defendant acted with specific

intent notwithstanding that the defense was lack of possession, not lack of intent to

distribute”). But see United States v. Jenkins, 593 F.3d 480, 486 (6th Cir. 2010)

(questioning whether intent is truly in issue when the defendant claims he did not

possess the drugs at all, let alone possess with intent to distribute).

Hardy indicated to the district court that he was challenging both knowledge and

intent. Intent is in issue because Hardy denied possessing the cocaine altogether. See

Johnson, 27 F.3d at 1193 (holding that intent was in issue where the defendant pled not

guilty and therefore did not admit he possessed the cocaine, but denied possession

altogether). On the other hand, “knowledge” was not in issue because Hardy did not

claim he “was unaware that he was committing a criminal act.” See Johnson, 27 F.3d

at 1194 (holding that knowledge was not in issue because the defendant did not argue

that he possessed the drugs by mistake or accident, but denied that he was possessing the

drugs at all).

No. 08-5991 United States v. Hardy Page 11

c. Probity

“To determine if evidence of other acts is probative of intent, we look to whether

the evidence relates to conduct that is ‘substantially similar and reasonably near in time’

to the specific intent offense at issue.” United States v. Haywood, 280 F.3d 715, 721

(quoting United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985)). This court

has “repeatedly recognized that prior drug-distribution evidence is admissible [under

Rule 404(b)] to show intent to distribute.” United States v. Ayoub, 498 F.3d 532, 548

(6th Cir. 2007) (citing Jenkins, 345 F.3d at 938 (collecting cases)); United States v. Bell,

516 F.3d 432, 443 (6th Cir. 2008) (quoting Ayoub); see also United States v. Love, 254

F. App’x 511, 518 (6th Cir. 2007) (same).

As the Government asserts, there is ample support for its position. For example,

in United States v. Mauldin, 109 F.3d 1159 (6th Cir. 1997), the defendant was charged

with possession with intent to distribute cocaine as well as firearms charges after police

discovered the drugs in his vehicle during a Terry stop. The defendant contended he did

not commit the charged crime. This court allowed the government to introduce evidence

that the defendant previously sold some cocaine. “Because the government was

obligated to prove that Mauldin possessed the cocaine and that he did so with the

specific intent of distributing it, the evidence of a similar act of possession was

admissible.” Id. at 1161 (citation omitted). This court also found the evidence more

probative than prejudicial because “[b]oth events occurred near the same location,” the

prior sale was for a substantial quantity of drugs, and the amount of money involved was

inconsistent with personal use. Id.

In United States v. Myers, 123 F.3d 350 (6th Cir. 1997), the defendant was

charged with possession with intent to distribute crack cocaine. The defendant denied

possession. The government introduced evidence of four prior drug transactions. The

Myers court ruled the evidence admitted for a proper purpose, citing Johnson, 27 F.3d

at 363. In Ayoub, the defendant moved to suppress evidence of four prior controlled

buys of marijuana from Ayoub at his home, which occurred four years prior to the

charged offense. This court held the evidence was admissible to show identity of the

No. 08-5991 United States v. Hardy Page 12

possessor of the guns and drugs and intent to distribute the drugs. Ayoub, 498 F.3d at

548.1

Nevertheless, as this court recently recognized, on the question of whether proof

of a defendant’s prior convictions was probative of specific intent, “[o]ur precedents are

hard to reconcile on this point.” Jenkins, 593 F.3d at 485 (comparing Johnson, 27 F.3d

at 1192 (stating that “where the crime charged is one requiring specific intent, the

prosecutor may use 404(b) evidence to prove that the defendant acted with the specific

intent”) with Bell, 516 F.3d at 444 (stating that “to be probative of a defendant’s present

intent to possess and distribute, his prior convictions for drug distribution must be related

in some way to the present crime for which the defendant is on trial”)). Hardy relies

chiefly on Bell. See Bell, 516 F.3d at 441-46 (holding that four prior state drug

convictions were improperly admitted because they “were for offenses that occurred

several years previously and were not alleged to be part of the same scheme to distribute

drugs or to involve a similar modus operandi” and as such, were not probative of

whether Bell intended to possess and distribute drugs on the charges at issue).2

However, as the Government points out, Bell is inconsistent with prior precedent

and is therefore not controlling. See, e.g., Dupont Dow Elastomers, LLC v. NLRB, 296

F.3d 495, 506 (6th Cir. 2002) (stating that “[w]hen a later decision of this court conflicts

with the holding of a prior decision, it is the earlier case that controls”); Salmi v. Sec’y

of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court

cannot overrule the decision of another panel. The prior decision remains controlling

authority unless an inconsistent decision of the United States Supreme Court requires

modification of the decision or this Court sitting en banc overrules the prior decision.”).

1

The Government’s reliance on United States v. Matthews, 440 F.3d 818 (6th Cir. 2006), is less

persuasive. There, a substantial amount of cocaine was found on the defendant’s person and he was

charged with possession with intent to distribute crack cocaine and gun charges. The district court allowed

the government to introduce the testimony of a witness that had previously purchased crack cocaine from

Matthews to establish knowledge and intent to distribute. This Court affirmed. Matthews is

distinguishable though, because there the defendant asserted that he had picked up a clear plastic bag off

the street without knowing it contained crack. Thus, the evidence was properly admitted “to prove that

he knew what cocaine looked like.” Id. at 829. See United States v. Freeman, Nos. 08-5677, 08-5678,

2010 WL 4244268 at *11 (6th Cir. Oct. 19, 2010) (distinguishing Matthews on this basis).

2

Bell had not been issued at the time of the district court’s decision.

No. 08-5991 United States v. Hardy Page 13

Given this Circuit’s precedent, it cannot be said that the district court abused its

discretion on the issue of probity.

3. 403 Balancing

The district court must also balance the probative value of the evidence against

its prejudicial effect. One factor in that assessment is the availability of other means of

proof, which would reduce the need for potentially confusing evidence. Myers, 123 F.3d

at 363. Limiting instructions are also a factor. Id.

Hardy argues that the district court abused its discretion in failing to consider

“the wealth of alternative evidence” to establish the requisite specific intent; namely, the

expert witness’s testimony concerning the distribution quantity of cocaine, the presence

of a firearm, the money in Hardy’s wallet, the cocaine found in the clothes linked to

Hardy, and Hardy’s own statements to the police claiming ownership of the cocaine.

Here, the district court found that the probative value of the prior acts evidence

outweighed the unfair prejudice “in light of the evidence and the defense,” noting that

the Government did not have evidence of actual possession. The district court gave a

strong cautionary instruction, and repeated a similar instruction during its final charge

to the jury.

In Ayoub, we found no error based on similar instructions, and also relied on the

fact that the defendant admitted the other evidence against him was overwhelming. See

Ayoub, 498 F.3d at 548-49; see also Myers, 123 F.3d at 363-64 (finding that the district

court did not err in its 403 balancing where there was scant evidence of intent; the other

acts were relatively close in time to the alleged act; and instructions were clearly

phrased, correctly focused on intent, and warned of potential misuses of other acts

factors). Cf. Jenkins, 593 F.3d at 485-86 (holding that prejudicial effect outweighed

probative value of an unrelated drug conviction on facts presented, where the

government had ample evidence to convict, and its evidence on issue of possession was

not overwhelming); Jenkins, 345 F.3d at 939 (holding that prior acts evidence was

unfairly prejudicial where the government’s evidence was weak and the only real

No. 08-5991 United States v. Hardy Page 14

evidence offered by the government to establish knowledge came from the contested

404(b) prior bad acts).

In short: Our review of evidentiary rulings is limited to abuse of discretion. The

district court found that the prior acts evidence was admitted for a proper purpose,

consistent with case law from this circuit; determined that its probative value was not

outweighed by its prejudicial effect, based on the evidence and the defense; and gave

two strong cautionary instructions to the jury. In other words, the district court did not

abuse its discretion in admitting the prior acts evidence.

4. Harmless Error

Admission of other-acts evidence constitutes “harmless error” if the other record

evidence of guilt is overwhelming, eliminating any fair assurance that the conviction was

substantially swayed by the error. United States v. Murphy, 241 F.3d 447, 453 (6th Cir.

2001). “An error is harmless unless one can say, with fair assurance that the error

materially affected the defendant’s substantial rights, –that the judgment was

‘substantially swayed’ by the error.” Allen, 619 F.3d at 523 (internal quotation marks

and citation omitted). Whether the jury was ‘substantially swayed’ by the improper

other-acts evidence, “generally depends on whether the properly admissible evidence of

the defendant’s guilt was overwhelming.” Haywood, 280 F.3d at 724.

In Ayoub, we held that the defendant “f[ell] on his own sword” in arguing that

the alternative evidence against him established unfair prejudice because, as the

defendant stated, “the evidence against him was ‘overwhelming.’” Ayoub, 498 F.3d at

548. But see Jenkins, 593 F.3d at 486 (finding the government’s argument that any error

in admission of the prior acts evidence was harmless given the overwhelming evidence

against the defendant “amount[ed] to a concession that the admission of this evidence,

for this purpose, was merely piling on”; concluding that the error was not harmless

because the government’s evidence on the element of possession was not

overwhelming). Indeed, as Hardy asserts, there was a “wealth of alternative evidence”

against him, including his own statements to the police that he possessed the drugs. Like

Ayoub, any error here could only be harmless.

No. 08-5991 United States v. Hardy Page 15

B. Response to Dissent

The dissent claims that we have ignored Bell, and misapplied Jenkins. But, (as

we noted in our opinion, supra, at 12) Jenkins itself recognizes that our precedent on this

point is problematic:

That leaves unanswered, of course, the question whether proof of

Jenkins’s prior convictions was probative of that issue as well. Our

precedents are hard to reconcile on this point. Compare, e.g., [United

States v. Johnson, 27 F.3d 1186, 1192 (6th Cir. 1994)] (“where the crime

charged is one requiring specific intent, the prosecutor may use 404(b)

evidence to prove that the defendant acted with the specific intent”) with

United States v. Bell, 516 F.3d 432, 444 (6th Cir.2008) (“to be probative

of a defendant’s present intent to possess and distribute, his prior

convictions for drug distribution must be related in some way to the

present crime for which the defendant is on trial”).

Jenkins, 593 F.3d at 485. It is for this reason that we felt it necessary to state that,

because “Bell is inconsistent with prior precedent,” it “is therefore not controlling.”

Supra, at 13. And because Jenkins follows Bell, it too cannot trump prior precedent.

And “[o]ur precedents are hard to reconcile” on the issue of probity. Contrary

to the dissent’s assertion, Myers did not hold that the prior bad acts testimony by the

four witnesses was “part of the same scheme,” and most of it occurred after the crime

of indictment. See Myers, 123 F.3d at 362-63. Rather, in holding that the district court

admitted the evidence for a proper purpose under Rule 404(b), Myers applied the rule

in Johnson, that “where the crime charged is one requiring specific intent, the

prosecutor may use 404(b) evidence to prove that the defendant acted with the specific

intent notwithstanding any defense the defendant might raise.” Johnson, 27 F.3d at

1192. Johnson cautioned that this did not mean that other acts evidence is automatically

admissible in such cases, but that it was up to “the trial court to determine whether such

evidence, in the context of a given case, is more substantially prejudicial than probative.”

Id. (citing Fed. R. Evid. 403). See also id. at 1193 (stating that “regardless of Johnson’s

defense, since the government was obligated to prove not only that Johnson possessed

the cocaine, but that he did so with the specific intent of distributing it, the government’s

No. 08-5991 United States v. Hardy Page 16

evidence of other similar acts of possession with intent to distribute was admissible

subject to the court's duty to weigh the probative value of the evidence against its

prejudicial effect”). In other words, per Johnson, prior similar bad acts are probative of

specific intent, subject to 403 balancing.

Ayoub is relevant here too. Although, as the dissent noted, Ayoub conceded at

trial that four prior drug transactions occurring four years prior to the charged activity

were probative of the crime at issue, he argued that their probative value were

outweighed by their prejudicial effect. Ayoub, 498 F.3d at 534. Thus, the Ayoub court’s

“remarks” on the question of probity were slightly more than dicta because the probative

value of the evidence was integral to resolving Ayoub’s challenge to the 403 balancing.

Judge Cole, writing for the panel, stated:

Second, this evidence was admissible for a proper purpose: to

show (1) Ayoub’s identity as the possessor of the guns and drugs

recovered in the present case, and (2) his intent to distribute the drugs.

Here, the officers recovered over a pound of marijuana, two firearms,

drug paraphernalia, scales, bowls, plastic bags, and cutting agents. The

similar evidence in 2000 led Ayoub to confess to possessing the narcotics

at that time, and he subsequently pleaded guilty to attempted delivery and

manufacture of marijuana. We have repeatedly recognized that prior

drug-distribution evidence is admissible to show intent to distribute.

United States v. Jenkins, 345 F.3d 928, 938 (6th Cir.2003) (collecting

cases). Indeed, Ayoub did not contest at trial that the year-2000 evidence

was probative. . . .

On appeal, however, in an apparent attempt to minimize the

probative value of the year-2000 evidence, Ayoub notes that the current

evidence against him “was overwhelming, especially given [his] ‘full and

complete’ confession, both orally and in writing.” (Ayoub’s Br. 30.) He

further states that the physical evidence in the present case, such as the

packaging materials and mixing agents, showed that he “was not a mere

drug user but was actively distributing narcotics.” ( Id.) Moreover, he

notes that “the sizeable weight of the marijuana ... and its secretion in the

rafters of the garage ... strongly indicate the narcotics were intended for

distribution.” ( Id. at 30-31.) We agree that this evidence is all quite

probative of Ayoub’s intent to distribute, but that does not mean the

year-2000 evidence was not probative; at best, it means that the

year-2000 evidence was not necessary for the conviction. But the

question here is simply whether the purpose for which the evidence was

No. 08-5991 United States v. Hardy Page 17

offered (i.e., identity and intent) was “in issue,” see Jenkins, 345 F.3d at

937, and it plainly was.

Ayoub, 498 F.3d at 548.

Furthermore, in holding that the evidence was properly admitted, the court

concluded that under the

third final, step of the Rule 404(b) analysis, the probative value of the

year-2000 evidence was not substantially outweighed by its potential

prejudicial effect. The district court provided a detailed instruction to the

jury that this evidence was offered to establish identity and intent but not

“to demonstrate Mr. Ayoub’s criminal propensities, or to demonstrate

that he is a bad person ... and [that the jury] must not receive the evidence

for those purposes.” (JA 480.) Additionally, as discussed, Ayoub admits

the other evidence [against] him was “overwhelming.” Cf. Jenkins, 345

F.3d at 939 (concluding that prior-acts evidence was unduly prejudicial

where “the evidence proffered against [the defendant] by the Government

was weak,” and “the only real evidence offered by the Government in

order to establish her knowledge [of cocaine receipt] came from the

contested Rule 404(b) evidence”).

Ayoub, 498 F.3d at 548-49. Here too, Hardy argued that the government had a “wealth

of alternative evidence” to establish specific intent; and the district court issued limiting

instructions.

Mauldin, cannot be dismissed so easily either. In that published opinion, this

court held that “[t]he government was permitted to introduce Rule 404(b) evidence that

previously Mauldin had made a sale of cocaine,” because “Mauldin was charged with

a specific intent offense of possession of cocaine with intent to distribute,” Mauldin

“contended that he did not commit the charged act,” and “the government was obligated

to prove that Mauldin possessed the cocaine and that he did so with the specific intent

of distributing it, the evidence of a similar act of possession was admissible subject to

the court’s duty to weigh the probative value of the evidence against its prejudicial

effect.” Id. Not insignificantly, the Mauldin court cited Johnson, 27 F.3d at 1191-93.

The Mauldin court held the evidence admissible because both events occurred near the

same location, the prior event was for the purchase of a substantial quantity of drugs, and

No. 08-5991 United States v. Hardy Page 18

the amount of money involved was inconsistent with personal drug use. Mauldin,109

F.3d at 1161. Finally, the district court in that case gave cautionary instructions. Id.

In addition, it is difficult to distinguish this case from Ayoub, which found the

other-acts evidence more probative than prejudicial under the Rule 403 balancing. On

top of that, Ayoub also found any error harmless:

We sidetrack for a moment to note that Ayoub falls on his own

sword here: his argument shows that even if the year-2000 evidence were

improperly admitted, any error would be harmless because, as he states,

the evidence against him was “overwhelming.” Cf. United States v.

Murphy, 241 F.3d 447, 453 (6th Cir.2001) (“[T]his Court finds that any

error, if any, in admitting evidence of ‘other acts’ is harmless in light of

the overwhelming evidence of Defendant’s guilt.”) As recounted above,

Ayoub explains in detail why the jury properly convicted him of not

merely using the drugs but of “actively distributing narcotics.” This alone

is dispositive of his Rule 404(b) claim.

Ayoub, 498 F.3d at 548.

Which brings us to the real problem: “[o]ur precedents are difficult to reconcile

on this point.” Jenkins, 593 F.3d at 485. Johnson set out a fairly narrow, but

straightforward rule. Again:

Thus, where the crime charged is one requiring specific intent, the

prosecutor may use 404(b) evidence to prove that the defendant acted

with the specific intent notwithstanding any defense the defendant might

raise.

The rule might be stated as follows: where there is thrust upon the

government, either by virtue of the defense raised by the defendant or by

virtue of the elements of the crime charged, the affirmative duty to prove

that the underlying prohibited act was done with a specific criminal

intent, other acts evidence may be introduced under Rule 404(b).

That is not to say that the other acts evidence is automatically

admissible in such cases. There remains the very important duty in the

trial court to determine whether such evidence, in the context of a given

case, is more substantially prejudicial than probative. Fed.R.Evid. 403.

Johnson, 27 F.3d at 1192. Bell appears to alter that rule:

No. 08-5991 United States v. Hardy Page 19

However, whether the evidence of Bell’s prior drug convictions was

probative on the issue of intent is a closer question. “To determine if

evidence of other acts is probative of intent, we look to whether the

evidence relates to conduct that is ‘substantially similar and reasonably

near in time’ to the specific intent offense at issue.” Haywood, 280 F.3d

at 721 (quoting Blankenship, 775 F.2d at 739). But see United States v.

Ismail, 756 F.2d 1253, 1260 (6th Cir.1985) (“There is no absolute

maximum number of years that may separate a prior act and the offense

charged.”). . . .

Likewise, while we “have repeatedly recognized that prior drug

distribution evidence is admissible to show intent to distribute,” Ayoub,

498 F.3d at 548 (citing Jenkins, 345 F.3d at 938 (collecting cases)), our

cases have only found such evidence probative of present intent to

possess and distribute when the prior distributions were part of the same

scheme or involved a similar modus operandi as the present offense. See,

e.g., United States v. Robison, 904 F.2d 365, 368 (6th Cir.1990)

(admitting testimony about the defendant's statements to co-conspirator

regarding his intent to distribute in prior drug transactions to show

present intent to distribute in transaction with same co-conspirator);

United States v. Rodriguez, 882 F.2d 1059, 1064-65 (6th Cir.1989)

(admitting evidence of prior drug transactions with same accomplice as

in present case for the purpose of showing intent, plan, and knowledge).

Unless the past and present crime are related by being part of the same

scheme of drug distribution or by having the same modus operandi, the

fact that a defendant has intended to possess and distribute drugs in the

past does not logically compel the conclusion that he presently intends

to possess and distribute drugs. See United States v. Bakke, 942 F.2d

977, 983 (6th Cir.1991) (holding that evidence of the defendant's arrest

in a “totally unrelated drug transaction” six months after the charged

drug conspiracy only showed that the defendant was a drug dealer at the

time of the later transaction and did not prove that the defendant was a

member of the drug conspiracy). Indeed, a person may be a distributor

of drugs on one occasion, and a mere user on another. The only way to

reach the conclusion that the person currently has the intent to possess

and distribute based solely on evidence of unrelated prior convictions for

drug distribution is by employing the very kind of reasoning- i.e., once

a drug dealer, always a drug dealer-which 404(b) excludes. See Old Chief

v. United States, 519 U.S. 172, 180-81, 117 S.Ct. 644, 136 L.Ed.2d 574

(1997). Thus, to be probative of a defendant’s present intent to possess

and distribute, his prior convictions for drug distribution must be related

in some way to the present crime for which the defendant is on trial.

Bell, 516 F.3d at 443-44 (emphases added).

No. 08-5991 United States v. Hardy Page 20

Rule 404(b) evidence must be carefully managed to avoid it becoming precisely

what it is designed to prevent: propensity or character evidence. The Bell and Jenkins

courts’ attempt to clarify the principle of Rule 404(b) is understandable. However, with

few exceptions, the district courts of this circuit have properly exercised their discretion

in admitting such evidence after Rule 403 balancing, as they are allowed to do under the

law of this circuit. And that is certainly true in the case before us today.

C. Upward Departure

The district court departed upward under section 4A1.3(a)(1) from the advisory

Guidelines range of 248 to 295 months to a Guidelines range of 420 months to life

imprisonment. Section 4A1.3(a) provides for an upward departure when a defendant’s

criminal history category does not adequately reflect his criminal history. Section 4A1.3

states in relevant part that “[i]f reliable information indicates that the defendant’s

criminal history category substantially under-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant will commit other

crimes, an upward departure may be warranted.” USSG § 4A1.3(a)(1). “[W]hen

reviewing the reasonableness of an upward departure, we consider the seriousness of the

defendant’s past criminal conduct, the likeliness of recidivism, prior similar adult

conduct not resulting in criminal convictions, previous lenient sentences for offenses,

whether the sentence will have a deterrence on future criminal conduct, the necessity of

isolating the defendant from the community and the length of time necessary to achieve

rehabilitation, if rehabilitation is possible.” United States v. Griffin, 530 F.3d 433, 441

(6th Cir. 2008) (internal quotation marks and citation omitted).

All of the Griffin factors support the district court’s decision to depart upward.

Hardy has a serious criminal past. The district court outlined Hardy’s prior record at

sentencing. He forcibly raped a woman, shot a person during a robbery, assaulted a

person with a deadly weapon, and kicked a woman in the face repeatedly with steel-toed

boots. The court found the likelihood of recidivism is high, because Hardy’s whole life

has been a life of crime, and prior bouts in prison and on probation failed to evoke

change. Hardy was previously arrested (but not ultimately charged) with unlawfully

No. 08-5991 United States v. Hardy Page 21

carrying a weapon, similar to the instant charge. The court expressly found a need to

protect the public. And, as the district court noted, it does not appear that Hardy can be

rehabilitated, and the record reflects that he showed no remorse. Further, an upward

departure was also warranted because Hardy has “an extensive record of serious,

assaultive conduct” and “received what might now be considered extremely lenient

treatment in the past.” USSG § 4A1.2, comment. (backg’d) (2007).

The rape offense was properly considered. It received no criminal history points

because the sentence was suspended. See USSG §§ 4A1.2(b)(2); 4A1.2(e)(3). See also

USSG § 4B1.2, comment. (n.3) (incorporating time limitations under USSG § 4A1.2 for

career offender provision).

Hardy complains that the length of his sentence is substantively unreasonable

because it is “greater than necessary” to accomplish the sentencing goals set out in

18 U.S.C. § 3553(a). Here, the court carefully articulated a host of factors at sentencing

in its memorandum and order to support its decision. The district court’s decision is

entitled to deference, and is not unreasonable. See United States v. Herrera-Zuniga, 571

F.3d 568, 587 (6th Cir. 2009) (and cases cited therein).

The district court also did not act unreasonably in sentencing Hardy as though

he were a career offender, which he would have been had his rape conviction not

resulted in a suspended sentence. See United States v. Robinson, 357 F. App’x 677,

689-90 (6th Cir. 2009), cert. denied, 130 S. Ct. 3440 (2010). See also United States v.

Myers, 589 F.3d 117, 125-26 (4th Cir. 2009), cert. denied, 130 S. Ct. 3306 (2010). The

court explained that Hardy had four previous crimes of violence, and that his history

clearly demonstrated a violent criminal pattern and future threat.

The 420-month sentence is also justifiable as a variance from the advisory

Guidelines range. The district court stated that had it not departed upward under section

4A1.3, it would have found the original Guidelines range of 248 to 295 months

inadequate to fulfill the purposes of 18 U.S.C. § 3553(a) due to Hardy’s “propensity to

commit extremely violent crimes with guns, where people run a substantial risk of being

severely injured if not killed.” It stated that Hardy’s background and history and nature

No. 08-5991 United States v. Hardy Page 22

of the offense warranted a departure. It added that the 420 months was sufficient but not

greater than necessary to protect the public and to impress upon Hardy the seriousness

of his offenses. See Herrera-Zuniga, 571 F.3d at 587 (district court has authority to

deviate from the advisory Guidelines range under either § 3553(a) or section 4A1.3).

See also id. at 589 (noting that “the court’s authority under § 3553(a) more broadly

permits consideration of the nature and circumstances of the offense and the history and

characteristics of the defendant”).

In sum, the sentence imposed was both substantively and procedurally

reasonable, and the district court did not abuse its discretion. See Gall v. United States,

552 U.S. 38 (2007).

III. Conclusion

The judgment of the district court is AFFIRMED.

No. 08-5991 United States v. Hardy Page 23

________________

DISSENT

________________

COLE, Circuit Judge, dissenting. Because the majority ignores United States v.

Bell, 516 F.3d 432 (6th Cir. 2008), and misapplies United States v. Jenkins, 593 F.3d 480

(6th Cir. 2010), to reach a conclusion that the record and the Federal Rules of Evidence

do not support, I respectfully dissent.

Bell’s holding that Rule 404(b) evidence is probative of intent only “when the

prior distributions were part of the same scheme or involved a similar modus operandi

as the present offense” is not at odds with our prior case law and must be followed. Bell,

516 F.3d at 443. The majority disagrees and points to a series of cases which they claim

preclude Bell’s finding on probity; none of them do. The 404(b) evidence admitted in

United States v. Myers, 123 F.3d 350, 354 (6th Cir. 1997), was probative of intent

because it was “part of the same scheme.” Bell, 516 F.3d at 443. All of the other acts

in that case occurred during the period where Myers and a co-conspirator were engaged

in a scheme to sell crack cocaine. See Myers, 123 F.3d at 354. United States v. Ayoub,

498 F.3d 532 (6th Cir. 2007), is of no moment either because Ayoub never contested

probative value, so Ayoub’s discussion of the issue is dicta. See Ayoub, 498 F.3d at 548.

And United States v. Mauldin, 109 F.3d 1159 (6th Cir. 1997), does not bar Bell’s holding

because Mauldlin did not fully describe what the other-acts evidence consisted of or how

it related to the charged crime, and the little that it did say about that issue is not

inconsistent with a finding that the prior-acts reflected the same scheme or modus

operandi as the charged conduct. See Mauldin, 109 F.3d at 1161.

Applying Bell to the case at hand bars the majority’s finding on probity. The

other acts admitted by the district court were not probative of intent because they did not

form part of the same scheme or show a similar modus operandi—a point underscored

by the government’s failure to argue in the alternative that they did.

No. 08-5991 United States v. Hardy Page 24

The majority’s Rule 403 balancing analysis is also off the mark. I see no way to

distinguish this case from Jenkins, which vacated the defendant’s conviction after

finding that the other-acts evidence was more prejudicial than probative. Just as in

Jenkins, intent was nominally at issue in Hardy’s trial but possession was “the

battleground.” Id. at 486. Also like in Jenkins, the government’s evidence of intent to

distribute here was overwhelming—a detective testified that the quantity of cocaine

discovered at the house (along with a digital scale) could satisfy 1,500 crack addicts, and

Hardy’s cellmate said, in essence, that Hardy told him that his entire defense was “a

trick”—so the probative value of the other-acts evidence was “microscopic at best” and

admitting it was plainly “piling on.” Id. at 485-86. The prejudicial effect of the

evidence, moreover, was obvious—once a drug dealer, always a drug dealer—and made

worse by the fact that, unlike in Jenkins, the evidence of prior drug-dealing had not been

found by a jury beyond a reasonable doubt.

The harmlessness analysis tracks Jenkins too. The error at trial cannot be ignored

because the government’s evidence of constructive possession—a separate

element—“though solid, was not overwhelming.” Id. at 486. I therefore cannot “say

with fair assurance that the admission of the [404(b) evidence] . . . did not substantially

sway the results at trial.” Id. (internal quotation marks omitted). Moreover, Ayoub does

not undermine the analogy between this case and Jenkins. The defendant in Ayoub

conceded that the evidence on all the elements of drug distribution was overwhelming,

unlike here, where the defendant maintains—and I agree—that the evidence of

possession was not so strong that the improper admission of Hardy’s prior bad acts can

be said not to have prejudiced the jury’s consideration of that element.

The majority insists that I have the cases wrong and that Bell cannot be

reconciled with what came before it. Not so. Bell did not overrule any prior holdings.

In finding that prior evidence of drug distribution is probative of intent only where “the

prior distributions were part of the same scheme or involved a similar modus operandi

as the present offense” Bell gave a precise shape to what other panels has passed on sub

silentio; a perfectly legitimate—and binding—exercise of panel authority. Bell, 516

No. 08-5991 United States v. Hardy Page 25

F.3d at 444; see Hilliard v. United States, 157 F.3d 444, 449 (6th Cir. 1998) (describing

subsequent panel’s refinement of a prior panel rule); cf. United States v. Bowers, 615

F.3d 715, 721-22 (6th Cir. 2010) (quoting Hagans v. Lavine, 415 U.S. 528, 533 n.5

(1974) (“[W]hen questions of jurisdiction have been passed on in prior decisions sub

silentio, [we are not] bound when a subsequent case finally brings the jurisdictional issue

before us.”)). Viewed this way, Bell’s “scheme or modus operandi” test is not a break

with the longstanding requirement that evidence of prior bad acts are probative only

where they are “substantially similar and reasonably near in time” to the charges in the

indictment, but a refinement of it as applied to drug distribution cases. United States v.

Haywood, 280 F.3d 715, 721 (6th Cir. 2002) (quoting United States v. Blankenship, 775

F.2d 735, 739 (6th Cir. 1985)).

The modesty and propriety of Bell’s holding on probity is evident on considering

the definitions of “scheme” and “modus operandi.” The latter means “[a] method of

operating or a manner of procedure,”1 Black’s Law Dictionary (9th ed. Online Ver.

2009), and the former “a plan of action devised in order to attain some end.” Oxford

English Dictionary, Def. 5.b. (Online Ver. Mar. 2011). These broad definitions plainly

encompass the facts of our prior holdings on probity while giving more nuanced

guidance to future courts tasked with applying our rule that other acts evidence must be

“substantially similar and reasonably near in time” to be probative. Haywood, 280 F.3d

at 721.

Consider Ayoub: the other-acts evidence there consisted of testimony describing

a search of Ayoub’s residence in 2000 which yielded “approximately three pounds of

marijuana in gallon-size bags, approximately five grams of cocaine, a triple-beam scale

and a Ruger .45-caliber handgun.” Ayoub, 498 F.3d at 547. Likewise, scales, handguns,

plastic bags, and a pound of marijuana turned up in the search of Ayoub’s parents’

residence in 2004, which led ultimately to the federal conviction we reviewed in Ayoub.

See id. at 536. To be sure, this evidence from 2000 related to conduct that is

1

Black’s also describes the more specific—and restrictive—sense: “a patter of criminal behavior

so distinctive that investigators attribute it to the work of the same person.” Black’s Law Dictionary (9th

ed. Online Ver. 2009).

No. 08-5991 United States v. Hardy Page 26

“substantially similar” to the conduct adjudicated at Ayoub’s 2005 trial, but the

comparison also reveals a strikingly parallel scheme or modus operandi to distribute

marijuana.

As for United States v. Johnson, 27 F.3d 1186 (6th Cir. 1994), it is not in tension

with Bell either. The majority sees a conflict between the Johnson court’s holding that

“where the crime charged is one requiring specific intent, the prosecutor may use 404(b)

evidence to prove that the defendant acted with the specific intent” and Bell’s

scheme/modus operandi rule. But this passage misleads by making it appear as if the

Johnson court held that 404(b) evidence—of any sort, and irrespective of its similarity

to the charged conduct—is always probative where specific intent is an element of the

charged crime. As the majority obliquely acknowledges, however, Johnson actually

found, consistent with prior precedent, that “similar acts of possession with intent to

distribute” were probative of the specific intent at issue in that case. Johnson, 27 F.3d

at 1193 (emphasis added). So the question remains whether Bell legitimately refined

what “similar” means for drug-distribution crimes by looking closely at the prior case

law and expressing in more specific language our prior sub silentio holdings. I believe

it did and the facts of Johnson underscore further that prior panels have been applying

without saying so, the scheme/modus operandi rule that Bell properly articulated.

And, as with our other cases, the facts in Johnson conform to Bell’s rule. There,

the evidence of prior bad acts consisted of testimony by a confidential informant that

Johnson had sold him crack cocaine on two occasions one month prior to the

unconsummated sale of crack cocaine (apparently orchestrated by the same informant)

that led to the charging of the crime of indictment. See Johnson, 27 F.3d at 1189. While

the opinion does not make clear whether the prior acts were undertaken with the same

modus operandi as the charged conduct, it is plain that the prior acts were part of the

same scheme to sell drugs as that charged in the crime of indictment, that is, the same

“plan of action devised in order to attain [the same] end.” Oxford English Dictionary,

Def. 5.b.

No. 08-5991 United States v. Hardy Page 27

Finally, another word on balancing. Jenkins aptly described prior bad acts

evidence as “loom[ing] Kong-like” at trial. Jenkins, 593 F.3d at 486. Such evidence

dominates and overwhelms every decision a jury makes, and instructions intended to

mitigate this effect are fig-leaves that cannot hope to hide the propensity evidence

glaring into the jury box. Id. This view of 404(b) evidence is grounded in more than the

musings of appeals court judges, empirical studies confirm that “juries treat prior bad

acts evidence as highly probative of the charged crime.” United States v. Gravenhorst,

377 F.3d 39, 49 (1st Cir. 2004) (Torruella, J., dissenting) (citing Harry Kalven, Jr. &

Hans Zeisel, The American Jury 160 (1966); Abraham P. Ordover, Balancing the

Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 Emory L.J.

135 (1989); Roselle L. Wissler & Michael J. Saks, On the Inefficacy of Limiting

Instructions: When Jurors Use Prior Conviction Evidence To Decide on Guilt, 9 L. &

Hum. Behav. 37 (1985)). Of course, the real-world effects of 404(b) evidence do not

necessarily dictate the result in a particular case. Whatever the academy says, we have

approved of limiting instructions, and other-acts evidence is sometimes admissible

despite its prejudicial effect. But I cannot agree that the district court’s determination

here is entitled to our deference.

The majority credits the district court’s finding that the probative value of the

other-acts evidence outweighed its prejudicial effect because the government did not

have evidence of actual possession. Yet if the prior bad acts admitted below were

probative at all they were probative of intent, not actual possession. Thus, the district

court’s effort at balancing fails on its own terms, leaving the 404(b) testimony to poison

the jury’s consideration of possession, an element on which the government’s evidence,

while strong, was not overwhelming. The error, then, was far from harmless.

For these reasons, I would REVERSE the district court’s 404(b) determination

and REMAND for a new trial.