UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40456
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KELVIN RUCKER,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
USDC No. 1:96-CR-80-2
June 19, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
Kelvin Rucker appeals his conviction for conspiracy to
distribute and possess with intent to distribute cocaine base and
possession with intent to distribute cocaine base, in violation of
21 U.S.C. §§ 846 and 841(a)(1). We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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FACTS AND PROCEEDINGS BELOW
On April 22, 1996, Rucker was a passenger in a vehicle being
driven by Amos E. Wilson. Texas Department of Public Safety (DPS)
Trooper Richard Eatherly stopped their vehicle on Interstate 10
between Winnie and Beaumont, Texas, for following a semi-tractor-
trailer at an unsafe distance. Neither Wilson nor Rucker had a
valid driver’s license. After receiving permission from Wilson to
search the vehicle, the trooper discovered a package under the hood
of the car containing approximately 124.11 grams of crack cocaine.
The trooper then arrested Rucker and Wilson and read them their
Miranda rights.
Wilson denied knowing the amount of drugs and told the officer
that Rucker had purchased the drugs and placed them in the vehicle.
Rucker stated that he did not know the amount of drugs in the car,
but admitted to paying approximately $3,500 for the crack cocaine.
About an hour after the arrests, the arresting officer
informed a DPS investigator that Rucker and Wilson wished to
cooperate and wanted to be interviewed. After an interview, Rucker
agreed to cooperate with the police in a controlled buy. During
the course of this meeting, Rucker admitted that the crack cocaine
found in the car was his and filled in the details of the drug
purchase. He also admitted that he had made some cocaine deals
before. In consent forms dated April 23 through 25, 1996, Rucker
gave his authority and consent
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to the Texas Department of Public Safety to make full use
of anything heard and/or recorded over said telephone in
any criminal prosecution under the laws of the State of
Texas or the United States.
On April 23, 1996, Rucker began participating in a controlled
drug buy. The plan was that Rucker would try to purchase one-half
a kilogram of crack cocaine from the same drug supplier from whom
he had purchased the drugs found in his car at the time of his
arrest. Over a period of three days, telephone conversations
between Rucker and his source were recorded and were later admitted
into evidence at Rucker’s trial. However, the controlled buy was
eventually called off because the deal could not be set up as
planned and an alternative plan was unsafe. Rucker was released on
April 25, 1996, pending the filing of federal charges. On April
30, 1996, Rucker called one of the investigating officers and told
him a story that conflicted with his previous statements, but at no
time did Rucker tell the officers that Wilson had intimidated him
into “taking a rap” on the drug charges.
Rucker testified at trial and stated that Wilson intimidated
him into signing an affidavit, dated April 24, 1996, stating that
the drugs were his and that Wilson knew nothing about the drug
deal. Rucker also presented other witnesses who testified that
Rucker would never be involved with drugs and that Rucker was
afraid of Wilson.
The jury found Rucker guilty on both counts of the indictment.
The court sentenced Rucker to 108 months’ imprisonment on each
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count, to be served concurrently and followed by five years
supervised release.
ANALYSIS
Rucker presents three grounds of error, all related to his
contention that the district court erred by allowing the
introduction of the evidence concerning the controlled drug buys.
He argues that the taped telephone conversations were subsequent
bad acts which, under Federal Rules of Evidence 404(b), should not
have been admitted and that the prejudicial effect of this evidence
outweighed its probative value. Rucker also argues that the
prejudicial effect of this evidence was not mitigated by a limiting
instruction and that the trial court reversibly erred in failing to
conduct an on-the-record analysis of the probative value and the
prejudicial effect of the evidence.
STANDARD OF REVIEW
Rucker asserts that he “was granted a running objection to the
line of testimony” concerning his participation in the controlled
drug buy. The government argues, and the record reveals, that that
characterization is inaccurate. Rucker objected to the narrative
nature of the officer’s answers regarding the drug transaction
which lead to Rucker’s arrest. (“Your Honor, I believe she’s
supposed to ask him question rather than him just continuing
to--”). The district court found the narrative nature of the
answers permissible under the circumstances, overruled the
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objection, and allowed Rucker to have a “running objection” to “all
of this line of testimony.” Rucker did not object to the
introduction of the tape recordings of the telephone conversations
between Rucker and his source, transcripts of those conversations,
or testimony regarding the conversations, except to the extent that
the officer was “translating.” Nor did he object to testimony
concerning the circumstances of the controlled buy. Accordingly,
in the absence of an objection, the admission of the evidence
should be reviewed for plain error. See United States v.
Calverley, 37 F.3d 160 (5th Cir. 1994). Further, trial counsel
did not request limiting instructions, nor did he request the trial
court to conduct an on-the-record balancing of the probative value
and prejudicial effect of the evidence challenged on appeal,
mandating a plain error review of these related issues as well.
Id.
Under Fed. R. Crim. P. 52(b), we may correct forfeited errors
only when the appellant shows the following factors: (1) there is
an error, (2) that is clear or obvious, and (3) that affects his
substantial rights. United States v. Calverley, 37 F.3d 160, 162-
64 (5th Cir. 1994)(citing United States v. Olano, 507 U.S. 725,
731-37 (1993)). If these factors are established, the decision to
correct the forfeited error is within the sound discretion of the
court, and the court will not exercise that discretion unless the
error seriously affects the fairness, integrity, or public
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reputation of judicial proceedings. Olano, 507 U.S. at 735-36.
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, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Fed. R. Evid. 404(b).
To determine whether “other act” evidence was erroneously
admitted, this court must first determine whether the evidence was
“intrinsic” or “extrinsic.” United States v. Williams, 900 F.2d
823, 85 (5th Cir. 1990). “Other act” evidence is intrinsic when it
“is ‘inextricably intertwined’ with the evidence used to prove a
crime charged.” United States v. Royal, 972 F.2d 643, 647 (5th
Cir. 1992)(citation omitted). Intrinsic evidence also includes
evidence of acts that “are part of a single criminal episode” or
“were necessary preliminaries to the crime charged.” Id. (internal
quotations and citations omitted.) Such evidence is admissible to
allow the jury to evaluate all of the circumstances under which the
defendant acted. Id.
The Government argues that the district court did not err in
admitting the evidence of the controlled buy because it was
intrinsic evidence of the crime charged. We reject the
Government’s invitation to characterize the evidence as intrinsic.
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When Rucker agreed to cooperate with the police and participate in
the controlled buy, he was no longer acting in furtherance of the
conspiracy. Thus, the controlled buy was not “part of a single
criminal episode” and is properly characterized as extrinsic. See
Royal, 972 F.2d at 647.
Having determined that the controlled buy was extrinsic to the
offense charged, we must next decide whether the trial court should
have excluded it under 404(b). This court has established a two-
part test to determine the admissibility of Rule 404(b) evidence:
(1) the extrinsic evidence must be relevant to an issue other than
the defendant’s character and (2) the evidence’s probative value
must not be substantially outweighed by undue prejudice and the
evidence must satisfy the other requirements of Fed. R. Evid. 403.2
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978); see
also United States v. Bentley-Smith, 2 F.3d 1368, 1377 & n.11 (5th
Cir. 1993).
A conviction for possession of a controlled substance with
intent to distribute requires proof that the defendant knowingly
possessed the contraband and intended to distribute it. United
States v. Pineda-Ortuno, 952 F.2d 98. 102 (5th Cir. 1992). The
2
Fed. R. Evid. 403 provides: “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury. . .” Relevant evidence is “evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” Fed. R. Evid. 401.
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Government argues that the evidence of the controlled buy is
admissible because it was relevant to an issue other than Rucker’s
character, that is, to show Rucker’s active involvement in the
charged conspiracy and to counter Rucker’s counsel’s claim in
opening statements that Rucker “did not even know what drugs were.”
According to the Government, Rucker’s behavior during the attempted
controlled buy tended to show that he knew individuals who could
obtain large quantities of cocaine and that Rucker knew “drug
slang.” Because such knowledge has a “tendency to make the
existence of [the required mens rea] more probable . . . than it
would be without the evidence,” see Fed. R. Evid. 401, we find that
it is relevant, and thus passes the first prong of the Beechum
test.
The next question is whether the probative value of this
extrinsic evidence is substantially outweighed by undue prejudice.
Ridlehuber, 11 F.3d at 523.
The Government contends that the evidence of the controlled
buy was not offered to prove Rucker’s character as a drug dealer,
but rather to disarm the anticipated defense that he knew nothing
about the drugs and had been intimidated by Wilson into accepting
the blame for a crime of which he had no knowledge and in which he
did not participate. Because Rucker, through his counsel’s opening
argument, put his knowledge of drugs and drug trafficking in issue,
the probative value of the evidence was not outweighed by undue
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prejudice. Consequently, we hold that it was not error, much less
plain error, to admit evidence of the controlled drug buy.
Further, even if the evidence had been excluded, the remaining
evidence pointed overwhelmingly to Rucker’s guilt.
Therefore, we affirm Rucker’s conviction.
AFFIRM.
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