Opposition Brief — Bradley Dale Hull, Petitioner v. United States

No. 24-5240

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

BRADLEY DALE HULL, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

NATASHA K. HARNWELL-DAVIS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether any error in admitting petitioner’s text messages

about

selling

intertwined”

heroin

and

methamphetamine

as

evidence

was

harmless

the

because

“inextricably

texts

were

admissible under Federal Rule of Evidence 404(b) as evidence that

petitioner possessed drugs on a previous occasion with intent to

distribute.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (E.D. Wash.):

United States v. Hull, No. 2:20-cr-128 (July 25, 2022)

United States Court of Appeals (9th Cir.):

United States v. Hull, No. 22-30156 (Nov. 24, 2023)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 24-5240

BRADLEY DALE HULL, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-8) is not

published in the Federal Reporter but is available at 2023 WL

8166777.

The opinion of the district court is not published in

the Federal Supplement but is available at 2022 WL 2921000.

JURISDICTION

The judgment of the court of appeals was entered on November

24, 2023.

A petition for rehearing was denied on May 7, 2024 (Pet.

App. 9).

The petition for a writ of certiorari was filed on August

1, 2024.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Washington, petitioner was convicted

on two counts of possessing a controlled substance with intent to

distribute, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(i),

(b)(1)(A)(viii).

Judgment 1.

The district court sentenced him to

200 months of imprisonment, to be followed by five years of

supervised release.

Judgment 2-3.

The court of appeals affirmed

in part and reversed and remanded in part.

1.

In

February

2020,

during

Pet. App. 1-8.

an

investigation

of

petitioner’s girlfriend for selling drugs, officers saw her car

parked at petitioner’s house.

After

watching

the

house

for

C.A. E.R. 103-106, 110, 259, 335.

several

hours,

an

officer

saw

petitioner leave the house with a large plastic bag, put the bag

in his girlfriend’s car, and go back inside.

222, 253-257.

Id. at 101, 105,

Petitioner’s girlfriend then left the house, sat

for a time in the driver’s seat of her car, then also returned

inside the house.

Id. at 259-260.

Moments later, petitioner and

his girlfriend hurried out to the car together and drove away.

Id. at 234, 260-262, 264.

An officer stopped the car after several blocks, pursuant to

an outstanding arrest warrant for petitioner’s girlfriend.

E.R. 110, 215-216, 226.

Later, pursuant to a search warrant,

officers searched the bag petitioner had placed in the car.

at 113-114.

C.A.

Id.

They found approximately 640 grams of a mixture or

3

substance containing a detectable amount of heroin and 72.6 grams

of methamphetamine, along with more than $13,000 cash; they also

found a scale in the car’s glovebox.

Id. at 117, 119-120, 126-

130, 137-138, 294, 310-311.

2.

charged

A grand jury in the Eastern District of Washington

petitioner

with,

inter

alia,

one

count

of

knowingly

possessing with intent to distribute 100 grams or more of a mixture

or substance containing a detectable amount of heroin, in violation

of 21 U.S.C. 841(a)(1) and (b)(1)(B)(i); and one count of knowingly

possessing with intent to distribute 50 grams or more of actual

(pure) methamphetamine, in violation of 21 U.S.C. 841(a)(1) and

(b)(1)(A)(viii).

C.A. E.R. 527-528.

Before trial, the government provided notice pursuant to

Federal Rule of Evidence 404(b) of its intent to introduce text

messages that petitioner had sent in April and May 2020 about

selling heroin and methamphetamine.

Pet. App. 4, 25-26; D. Ct.

Doc. 163 (Nov. 22, 2021); D. Ct. Doc. 223 (Mar. 4, 2022); see C.A.

E.R. 303-309, 313-315, 473-474, 476-477.

The government sought to

admit the text messages as evidence of petitioner’s intent in

connection with the charged drug-distribution offenses.

59.

that

C.A. E.R.

The district court admitted the text messages on the ground

the

texts

were

evidence

that

were

“inextricably intertwined” with the charged drug offenses.

Pet.

App. 12, 24; C.A. E.R. 57-58.

of

transactions

4

During trial, the government introduced four text message

conversations, two of which established petitioner’s identity as

the

sender

and

two

of

which

discussed

methamphetamine in April and May 2020.

at 473-474, 476-477.

testified

that

heroin

and

C.A. E.R. 303-309; see id.

During the defense case, a defense witness

someone

girlfriend’s car.

selling

else

put

Id. at 339-344.

the

drugs

in

petitioner’s

Petitioner also testified in

his own defense and said that he had “never been involved in

selling heroin or methamphetamine.”

Id. at 399.

The government

subsequently impeached petitioner with a prior conviction for

conspiracy to deliver heroin.

Id. at 415-419.

At the close of evidence, the district court instructed the

jury that the government was required to prove beyond a reasonable

doubt that petitioner knowingly possessed the charged heroin and

methamphetamine with intent to distribute.

426-427, 429.

C.A. E.R. 422-423,

During its closing statement, the government argued

that petitioner’s text messages could be considered “as part” of

the jury’s analysis “concerning whether the defendant intended to

further distribute the drugs” involved in the charged offenses.

Id. at 438.

The jury found petitioner guilty on both drug counts.

Id. at 488-489.

Petitioner moved for a new trial, arguing (among other things)

that the district court had erred in admitting the text messages,

on the theory that “he did not contest that whoever possessed the

drugs certainly had the intent to distribute.”

Pet. App. 12.

The

5

court

denied

the

motion.

Id.

at

13.

The

court

rejected

petitioner’s argument, observing that petitioner never stipulated

to intent at trial and that the jury was instructed on “all the

necessary elements that the Government had to prove beyond a

reasonable doubt.”

Id. at 12.

The court further found that

petitioner -- who had “never sought a limiting instruction” -- had

not shown that the text messages were “unduly prejudicial.”

Id.

at 12-13.

The district court sentenced petitioner to 200 months of

imprisonment, to be followed by five years of supervised release.

C.A. E.R. 3-4.

3.

In an unpublished memorandum disposition, the court of

appeals affirmed in part and reversed and remanded in part.

Pet.

App. 1-8.

While it set aside the sentence because the district

court

erred

had

in

calculating

petitioner’s

criminal

history

score, id. at 6-7, it rejected petitioner’s other claims, including

his claim that his conviction was infirm due to the court’s

admission of the text messages, see id. at 1-6.

The court of appeals acknowledged that, as the “government

concede[d] on appeal,” the text messages were “not ‘inextricably

intertwined’ with the counts of conviction,” as the district court

had deemed them.

Pet. App. 4; see id. at 3-4.

But the court of

appeals found the error was harmless because the text messages

were admissible under Federal Rule of Evidence 404(b) as evidence

of petitioner’s intent in connection with the charged offenses.

6

Id. at 3-4.

The court explained that the government bore the

burden of proof to show petitioner’s mental state, including his

“specific intent to distribute” drugs, and that “[t]his was the

purpose for which the government initially proffered the evidence

and for which it provided pretrial notice.”

Id. at 4 nn.3-4.

And

the court agreed with the district court that petitioner had “not

shown that the evidence was unduly prejudicial.”

Id. at 4-5.

ARGUMENT

Petitioner contends (Pet. 8-26) that the court of appeals

erred in rejecting his challenge to the admission of the text

messages.

But the court correctly recognized that the messages

were admissible.

Its factbound decision does not conflict with

any decision of this Court or another court of appeals, and this

case would, in any event, be an unsuitable vehicle to address the

question presented.

This Court has recently and repeatedly denied

petitions for certiorari raising similar issues. 1 It should follow

the same course here.

1.

a.

Under Federal Rule of Evidence 404(b), “[e]vidence

of any other crime, wrong, or act is not admissible to prove a

person’s character in order to show that on a particular occasion

the person acted in accordance with the character.”

Fed. R. Evid.

Brown v. United States, 2024 WL 4426723 (Oct. 7, 2024) (No.

23-7174); Jeune v. United States, 144 S. Ct. 576 (2024) (No. 235332); Wilson v. United States, 144 S. Ct. 110 (2023) (No. 227204); Drew v. United States, 142 S. Ct. 1159 (2022) (No. 216704); Perpall v. United States, 142 S. Ct. 562 (2021) (No. 208322).

1

7

404(b)(1).

Such evidence may be admissible, however, “for another

purpose, such as proving motive, opportunity, intent, preparation,

plan,

knowledge,

accident.”

identity,

absence

of

Fed. R. Evid. 404(b)(2).

mistake,

or

lack

of

Federal Rule of Evidence

403, in turn, provides that a “court may exclude relevant evidence

if its probative value is substantially outweighed by a danger of

one or more of the following: unfair prejudice, confusing the

issues,

misleading

the

jury,

undue

delay,

needlessly presenting cumulative evidence.”

wasting

time,

or

Fed. R. Evid. 403.

“The threshold inquiry a court must make before admitting

similar acts evidence under Rule 404(b) is whether that evidence

is probative of a material issue other than character.” Huddleston

v.

United

States,

485

U.S.

681,

686

(1988).

For

example,

“[e]xtrinsic acts evidence may be critical to the establishment of

the truth as to a disputed issue, especially when that issue

involves

the

actor’s

state

of

mind

and

the

only

means

of

ascertaining that mental state is by drawing inferences from

conduct.”

Id. at 685.

Then, as required by Rule 403, a court

must “determine whether the probative value of the similar acts

evidence is substantially outweighed by its potential for unfair

prejudice.”

Id. at 691; see id. at 688.

One factor that may also

be “appropriate” is the “availability of other means of proof.”

Fed. R. Evid. 403 advisory committee note (1975 Amendment); see

Fed. R. Evid. 404 advisory committee note (1975 Amendment) (“The

determination must be made whether the danger of undue prejudice

8

outweighs the probative value of the evidence in view of the

availability of other means of proof and other factors appropriate

for making decisions of this kind under Rule 403.”) (citation

omitted).

Here,

the

court

of

appeals’

comported with Rules 404(b) and 403.

admissibility

determination

The messages were “probative

of a material issue other than character,” Huddleston, 485 U.S. at

686 -- namely, petitioner’s intent to distribute the drugs found

in his girlfriend’s car, an element of the charged offenses that

the government was required to prove beyond a reasonable doubt.

Pet. App. 4; see Pet. 26 (acknowledging that the text messages

were “offered for a proper purpose under Rule 404(b)”); see, e.g.,

United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982)

(evidence of defendant’s other sales of narcotics is relevant under

Rule 404(b) to show defendant’s intent to distribute narcotics in

charged

offense).

Accordingly,

the

evidence

was

properly

introduced for reasons other than to prove “a person’s character.”

Fed. R. Evid. 404(b)(1).

Likewise, the lower courts correctly recognized that the

probative value of the messages was not “substantially outweighed

by [the] potential for unfair prejudice.”

691; see Pet. App. 4-5; id. at 13.

Huddleston, 485 U.S. at

Although the court of appeals

did not cite Rule 403 specifically, it agreed with the district

court the petitioner had “not shown that the evidence was unduly

prejudicial,” Pet. App. 4-5, and the district court, in turn,

9

correctly understood the inquiry to require both that the text

messages be “probative of the elements the Government had to prove”

and that “no undue prejudice accrued,” id. at 12-13.

The lower courts’ fact-specific determinations were correct.

Petitioner’s

text

messages

were

highly

probative,

because

petitioner’s “defense rested on” testimony that petitioner was not

responsible for the drugs in the car.

Pet. App. 13.

His knowledge

and intent with respect to the drugs involved in the charged

offenses were thus directly at issue.

The jury also heard that

petitioner was previously convicted for conspiracy to deliver

heroin, C.A. E.R. 415-419 –- evidence that petitioner does not

challenge here -- reducing any prejudicial impact of the text

messages.

b.

Petitioner’s contrary arguments lack merit.

Petitioner principally argues (Pet. 24-25) that his intent

was not at issue because his counsel “conceded” the intent-todistribute element of the charged offenses in his opening statement

and in cross-examining a witness.

Pet. 24-25.

That contention

lacks merit. Petitioner’s intent to distribute the drugs was indeed

contested at trial; in any event, his counsel’s statements could

not

have

relieved

petitioner’s

intent;

the

and

government

even

if

of

its

petitioner

burden

to

prove

had

offered

to

stipulate to his mental state, the government was free to decline.

This Court has recognized that as a general matter, for

evidence to be relevant, “[t]he fact to which the evidence is

10

directed need not be in dispute.”

Old Chief v. United States, 519

U.S. 172, 179 (1997) (emphasis added) (quoting Fed. R. Evid. 401,

advisory

committee

note

(1975

Amendment)).

The

government’s

burden to prove every element of the offense beyond a reasonable

doubt is neither eliminated nor lowered when the defendant opts

not to rebut the government’s evidence on that element at trial.

See United States v. Gaudin, 515 U.S. 506, 510 (1995); Estelle v.

McGuire, 502 U.S. 62, 69-70 (1991).

And by its terms, Rule 404(b)

expressly allows the admission of other-act evidence for the

purpose of “proving

* * *

intent,” regardless of whether the

defendant has explicitly contested the intent element.

Fed. R.

Evid. 404(b)(2).

In this particular case, however, petitioner’s defense at

trial did in fact place his knowledge and intent directly at issue.

One of the defense witnesses testified that someone else put the

drugs in petitioner’s girlfriend’s car, C.A. E.R. 339-344, and

petitioner himself testified that he had “never been involved in

selling heroin or methamphetamine,” id. at 399.

That theory of

the defense -- reducing to an assertion that petitioner “just

happened to be in the vicinity” of the drugs -- necessarily brought

“into question

* * *

the issue of intent.”

Jack B. Weinstein &

Margaret A. Berger, Weinstein’s Evidence Manual § 7.01[5][d][ii]

(Matthew Bender 2024).

Petitioner points to his counsel’s opening statement, in

which his attorney recognized that the drugs in the car were

11

“intended for [] distribution” but argued that petitioner “had

nothing to do with it.”

C.A. E.R. 85.

Petitioner also emphasizes

his counsel’s statement when cross-examining a witness, in which

his

counsel

stated

that

the

heroin

and

methamphetamine

in

petitioner’s girlfriend’s car “[s]eemed bound for distribution.”

Id. at 183-184.

Those statements -- which suggest that the

quantity

discovered

of

drugs

in

the

car

was

consistent

with

someone’s intent to distribute the drugs -- do not eliminate the

dispute over whether petitioner intended to distribute the drugs,

the fact to which the text messages were directed.

statements

made

by

petitioner’s

attorney

are

In any event,

not

admissible

evidence on which the government could have relied on to prove an

element of the offense, as the jury was instructed here.

See id.

at 423.

Finally, even if petitioner had in fact offered to stipulate

to his intent -- which, unlike his attorney’s statements, would

have been admissible evidence -- the “accepted rule” is that,

except for a defendant’s status as a prior convicted felon, “the

prosecution is entitled to prove its case free from any defendant’s

option to stipulate the evidence away.”

Old Chief, 519 U.S. at

189; see United States v. Tan, 254 F.3d 1204, 1213 (10th Cir. 2001)

(collecting cases applying that rule). 2

In short, nothing in the

See, e.g., United States v. Bailey, 840 F.3d 99, 119120 (3d Cir. 2016), cert. denied, 580 U.S. 1103, 580 U.S. 1137,

580 U.S. 1158, and 580 U.S. 1159 (2017) (defendant’s offer to

stipulate did not result in unfair prejudice that substantially

outweighed probative value of government’s proffered evidence

2

12

record of this case supports the assertion that the government was

not put to its burden to prove petitioner’s intent with respect to

the drugs that he denied having anything to do with.

2.

Petitioner fails to identify a conflict between the

decision below and the decision of any other court of appeals that

warrants this Court’s review.

As a threshold matter, the decision

below is unpublished and nonprecedential.

See Pet. App. 1.

And

it nowhere even purports to hold, or identify circuit precedent

that holds, that the degree to which intent is in dispute is

categorically irrelevant to the analysis.

Petitioner errs in asserting (Pet. 13) that the circuits are

divided on the “interplay between Rule 403 and Rule 404(b).”

All

of the courts of appeals follow the same basic approach that this

Court’s decisions prescribe:

“a case-by-case determination” that

considers “the probative value of the

* * *

act to prove present

intent,” and “weigh[s] that value against the tendency of the

evidence to suggest unfairly a propensity to commit similar bad

acts,” taking into account other available evidence on the relevant

because government was entitled to present evidence through

testimony); United States v. Queen, 132 F.3d 991, 997 (4th Cir.

1997), cert. denied, 523 U.S. 1101 (1998) (same); United States v.

Wright, 866 F.3d 899, 904-905 (8th Cir. 2017), cert. denied, 584

U.S. 992 (2018) (same); United States v. Crowder, 141 F.3d 1202,

1209 (D.C. Cir. 1998) (en banc), cert. denied, 525 U.S. 1149 (1999)

and 528 U.S. 1140 (2000) (same).

13

issue.

United States v. Miller, 673 F.3d 688, 697, 699 (7th Cir.

2012). 3

At most, petitioner has noted some degree of variance in how

particular opinions have described the analysis.

See Pet. 13-23;

compare, e.g., United States v. Jimenez-Chaidez, 96 F.4th 1257,

1266 (9th Cir. 2024) (considering purpose and relevance of evidence

under Rule 404(b), then weighing risk of prejudice and probative

value under Rule 403), with United States v. Bailey, 840 F.3d 99,

122 (3d Cir. 2016), cert. denied, 580 U.S. 1103, 580 U.S. 1137,

580 U.S. 1158, and 580 U.S. 1159 (2017) (assessing prejudicial

effect as part of Rule 404(b) analysis).

But petitioner does not

explain how any difference in articulation

lead to differences in

outcome -- let alone why any other circuit’s formulation would

have resulted in a different outcome on the particular facts of

his case. 4

See United States v. Henry, 848 F.3d 1, 8-10 (1st Cir.

2017), cert. denied, 581 U.S. 1022 (2017); United States v.

McCallum, 584 F.3d 471, 475-477 (2d Cir. 2009); Queen, 132 F.3d at

993-998; United States v. Kinchen, 729 F.3d 466, 471-473 (5th Cir.

2013); United States v. Hardy, 643 F.3d 143, 150-153 (6th Cir.),

cert. denied, 565 U.S. 1063 (2011); United States v. Drew, 9 F.4th

718, 724 (8th Cir. 2021), cert. denied, 142 S. Ct. 1159 (2022);

United States v. Silva, 889 F.3d 704, 712-714 (10th Cir. 2018),

cert. denied, 139 S. Ct. 1319 (2019); United States v. Colston, 4

F.4th 1179, 1192-1193 (11th Cir. 2021); Crowder, 141 F.3d at 12091210.

4

Several of the decisions that petitioner cites,

moreover, are inapposite. United States v. Loughry, 660 F.3d 965,

969 (7th Cir. 2011), addresses Federal Rule of Evidence 414, not

Rule 404. Another case, United States v. Bell, 516 F.3d 432 (6th

Cir. 2008) has been abrogated. See Hardy, 643 F.3d at 152 (“Bell

is inconsistent with prior precedent and is therefore not

controlling.”).

3

14

Petitioner emphasizes (Pet. 14) the First Circuit’s approach

in Henry v. United States, 848 F.3d 1, 9, cert. denied, 581 U.S.

1022 (2017), as “simple” and “provid[ing] a meaningful test for

determining what probative weight to give Rule 404(b) evidence and

assessing the amount of unfair prejudice under Rule 403 if the

other-act evidence goes to the jury.”

But in Henry, the court of

appeals

prior

affirmed

“the

admission

of

drug

dealing

by

a

defendant to prove a present intent to distribute,” rejecting the

defendant’s

argument

that

his

prior

drug

convictions

were

inadmissible because his “defense centered on possession rather

than intent.”

848 F.3d at 8, 9.

The First Circuit explained that “[a] defendant’s failure to

argue lack of knowledge or intent” “does not remove those issues

from the case.”

Henry, 848 F.3d at 9 (citation and internal

quotation marks omitted).

The court further determined that the

district court did not abuse its discretion in determining that

Rule 403 did not require exclusion.

Id. at 9-10.

Petitioner does

not

case

have

explain

why

he

believes

differently

under

the

First

his

Circuit’s

would

analysis

in

come

out

Henry

--

particularly given that petitioner did put his knowledge and intent

squarely at issue here.

3.

See pp. 9-11, supra.

At all events, this case would in any event be a poor

vehicle to address the question presented, for multiple reasons.

First, this case is in an interlocutory posture because the

court of appeals vacated petitioner’s sentence and remanded for

15

resentencing.

Pet. 1 n.1; Pet. App. 8.

The interlocutory posture

of a case ordinarily “alone furnishe[s] sufficient ground for the

denial” of certiorari.

Hamilton-Brown Shoe Co. v. Wolf Bros. &

Co., 240 U.S. 251, 258 (1916); see Brotherhood of Locomotive

Firemen & Enginemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328

(1967) (per curiam) (observing that a case remanded to the district

court “is not yet ripe for review by this Court”); Abbott v.

Veasey, 580 U.S. 1104, 1105 (2017) (statement of Roberts, C.J.,

respecting the denial of certiorari).

Consistent

with

that

general

rule,

this

Court

denies interlocutory petitions in criminal cases.

routinely

See Stephen M.

Shapiro et al., Supreme Court Practice 4-55 n.72 (11th ed. 2019).

That practice promotes judicial efficiency because, among other

things, it enables issues raised at different stages of lower court

proceedings to be consolidated into a single petition.

See Major

League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 508 n.1

(2001) (per curiam) (“[W]e have authority to consider questions

determined in earlier stages of the litigation where certiorari is

sought from the most recent of the judgments of the Court of

Appeals.”) (citation omitted).

Petitioner offers no reason to

deviate from that practice here.

Second, any error in this factbound case was harmless.

trial,

the

evidence

established

that

police

officers

At

watched

petitioner place distribution-quantities of methamphetamine and

heroin in his girlfriend’s car.

See pp. 2-3, supra.

The evidence

16

also established that the bag in which the drugs were found also

contained

collectible

coins,

and

that

petitioner

was

a

coin

collector. C.A. E.R. 130-131, 403. In its closing, the government

relied on that evidence about the circumstances of the charged

offense to urge the jury to find petitioner guilty, referring only

briefly to the challenged text messages. C.A. E.R. 436-442. There

is no sound basis for supposing that without those messages, the

jury would have acquitted petitioner.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

NATASHA K. HARNWELL-DAVIS

Attorney

DECEMBER 2024