United States v. James Brown, A/K/A Steven Brown

HARRY T. EDWARDS, Circuit Judge,

dissenting:

I cannot join the majority opinion because, in my view, the District Court erred in denying appellant’s pre-trial motion to sever counts under Rule 14 of the Federal Rules of Criminal Procedure. As this court long ago recognized, “the admissibility of the other crimes evidence in separate trials is a highly significant factor in determining whether joinder is prejudicial....” Drew v. United States, 331 F.2d 85 , 90 n. 12 (1964) (citing cases). Under Rules 404(b) and 403 of the Federal Rules of Evidence, the evidence separately seized in November 1990 and in February 1991 would not have been cross-admissible had appellant been tried separately on the respective charges. This is so because the gun and the beeper that were seized during appellant’s arrest in February 1991 bore no probative value whatsoever on the question whether appellant had intended to distribute drugs confiscated three months earlier. The motion to sever should have been granted.

Appellant James Brown was tried on nine counts charged in a superseding indictment returned on April 9, 1991. Of those nine counts, seven were drug trafficking and related charges stemming from the November 20,1990 search of an apartment belonging to appellant’s co-defendant, Victoria Williams. That search revealed, inter alia, a locked safe containing crack cocaine, drug paraphernalia, two operable firearms, and ammunition. Appellant’s fingerprints were found on the inside of the safe itself and on a digital scale discovered in the safe. The remaining two counts arose from appellant’s arrest on February 21, 1991, at which time Brown, a convicted felon, was found to be carrying a semi-automatic pistol with a defaced serial number. A search incident to arrest further revealed that appellant carried a telephone beeper and a key bearing four numbers, three of which matched the serial number on the safe seized in November, the fourth number on the safe having been obliterated during its seizure.

I cannot agree with the majority’s conclusion that the gun and the beeper recovered in February 1991 would have been admissible in a trial of the November drug trafficking charges. Under the Federal Rules of Evidence, the trial court must undertake a two-step inquiry to determine the admissibility of such extrinsic evidence. United States v. Washington, 969 F.2d 1073, 1080-81 (D.C.Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1287 , 122 L.Ed.2d 679 (1993); United States v. Miller, 895 F.2d 1431, 1435 (D.C.Cir.), cert. denied, 498 U.S. 825 , 111 S.Ct. 79 , 112 L.Ed.2d 52 (1990). Rule 404(b), the first hurdle, requires that the evidence be admitted for a legitimate purpose, specifically, a purpose other than “to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b); Washington, 969 F.2d at 1080 . If a purpose other than propensity to commit crime can be shown, the trial judge still must determine whether the prejudicial impact of the evidence substantially outweighs its probative value. See Fed.R.Evid. 403; Washington, 969 F.2d at 1081 . In my view, the gun and *435 the beeper fail to overcome even the first hurdle.

Although Rule 404(b) does not automatically bar evidence of a bad act that occurred after the crime charged, we have recognized that “[t]he temporal (as well as the logical) relationship between a defendant’s later act and his earlier state of mind attenuates the relevance of such proof.” United States v. Watson, 894 F.2d 1345, 1349 (D.C.Cir.1990). As we have previously noted, later acts are most likely to show the accused’s intent when “they are fairly recent and in some significant way connected with 'prior material events.” United States v. Childs, 598 F.2d 169, 174 (D.C.Cir.1979) (emphasis added) (evidence that defendant subsequently returned to same location to sell other stolen items probative of defendant’s criminal intent with respect to crime charged). Here, the gun and the beeper were discovered on appellant’s person fully three months after the raid on Williams’ apartment uncovered two firearms and evidence of drug dealing. In my view, this is not so tight a temporal nexus as to shed significant light on whether appellant, in November, intended to distribute drugs or possess guns. Indeed, the temporal sequence in this case cuts peculiarly against admissibility, since the Government is in effect asking us to believe that the February possession of a gun and beeper were probative of intent to possess and distribute drugs that had long since been confiscated in the raid on Williams’ apartment. Unless the jury were to draw the additional, and impermissible, inference that appellant again was involved in drug dealing and therefore must have been so involved on a prior occasion, the gun and beeper simply are not probative at all.

Moreover, there are no circumstances in this case to suggest that the subsequent act “in some material way [was] connected with the prior event.” United States v. Gallo, 543 F.2d 361, 365 (D.C.Cir.1976). At the time of his February arrest, appellant was not found to be carrying drugs nor were there any surrounding indicia of current drug involvement. This case therefore is easily distinguished from cases in which the “bad act” sought to be introduced consists of evidence of actual prior drug dealing. See, e.g., Washington, 969 F.2d at 1080-81 ; United States v. Rogers, 918 F.2d 207, 210 (D.C.Cir.1990); United States v. Anderson, 881 F.2d 1128, 1142 (D.C.Cir.1989). In those eases, the similarity of the charged crime and the other acts evidence established a nexus that is wholly lacking here. In Rogers , for example, the defendant had been observed running with and tossing away a gym bag containing fifty-five grams of crack cocaine. In that case, we sanctioned the introduction of evidence of the defendant’s prior crack distribution in order to rebut defendant’s testimony that he had picked up someone else’s bag by mistake. See Rogers, 918 F.2d at 210 . We also approved the admission of evidence that Rogers had previously possessed a beeper in light of Rogers’ testimony that the beeper found on his person at the time of arrest belonged to a friend. * See id. at 212-13 . In this case, however, the only logical connection between the two sets of evidence is that the jury could conclude from the gun and beeper found in February that appellant fit the profile of a drug dealer (or indeed, simply that appellant was a “bad” person) and thus must surely have been guilty of possessing and intending to distribute the drugs found in Williams’ apartment — precisely the inference against which Rule 404(b) is meant to guard.

In Rogers , the defendant’s attorney had waived his Rule 404(b) objection with respect to the beeper and our analysis proceeded under Rule 403. Therefore, we declined to address the questions whether Rule 404(b) applies only to “bad" or criminal acts and if so, whether possession of a beeper constitutes such an act. See Rogers, 918 F.2d at 212 n. 3. Similarly, I here express no opinion on these questions, but note only that, even if Rule 404(b) does not apply, appellant's beeper still should not have been admitted in a trial of the November drug charges as it bore no probative value on the question whether appellant had intended to distribute drugs confiscated three months earlier.