PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5098
WALTER RALEIGH JOHNSON, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry F. Floyd, District Judge.
(8:07-cr-00960-HFF-2)
Argued: January 27, 2010
Decided: August 16, 2010
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Reversed and remanded by published opinion. Judge Gregory
wrote the opinion, in which Judge Michael and Judge Motz
joined.
COUNSEL
ARGUED: Clarence Rauch Wise, Greenwood, South Caro-
lina, for Appellant. Jeffrey Mikell Johnson, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee. ON BRIEF: W. Walter Wilkins, United States
2 UNITED STATES v. JOHNSON
Attorney, Columbia, South Carolina, Leesa Washington,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
OPINION
GREGORY, Circuit Judge:
Walter Raleigh Johnson, Jr. ("Johnson") appeals his con-
viction for conspiracy to possess with the intent to distribute
cocaine. He argues that the district court erred in admitting
the testimony of a Drug Enforcement Administration
("DEA") Agent under Federal Rule of Evidence ("Rule") 701
and erred in admitting the testimony of a prior alleged drug
customer under Rule 404(b). Because we find that the court
erroneously admitted testimony under Rule 701 and Rule
404(b), and that the errors were not harmless, we reverse
Johnson’s conviction and remand his case for a new trial.
I.
The Sheriff’s Department of Greenwood County, South
Carolina began conducting the drug investigation at issue in
January 2007. As part of that investigation, a drug informant
collaborated with the Sheriff’s Department and the Green-
ville, South Carolina DEA office to identify Mayo Pickens
("Pickens") as a source of cocaine in the area. After setting up
phone calls and meetings and observing drug transactions
between the informant and Pickens, the DEA obtained a
court-approved wiretap for Pickens’ cell phone. Although
hundreds of calls were intercepted from Pickens’ phone over
the sixty-day period of the wiretap, only about 109 of those
calls were relevant to the drug investigation. Out of the 109
relevant calls, only eight were intercepted between Pickens
and Johnson, all occurring between June 10, 2007 and July
UNITED STATES v. JOHNSON 3
12, 2007. Based on the eight phone conversations between
Pickens and Johnson, the DEA concluded that Johnson was
one of Pickens’ suppliers of cocaine. Johnson was arrested in
August 2007, indicted in October, and charged with one count
of conspiracy to possess with the intent to distribute five kilo-
grams or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) and 846. There were eleven co-
defendants charged as part of the same conspiracy, including
Pickens, Yusef Lateef Holloway ("Holloway") and Wayne
Edward Hull ("Hull"). Johnson and two other defendants in
this case were the only parties who chose to go to trial. Pick-
ens, Holloway and Hull all pled guilty.
At trial, the government called four main witnesses in its
case against Johnson.1 DEA Agent Randy Smith ("Agent
Smith") presented testimony on the wiretap investigation.
Holloway testified that he purchased cocaine from Johnson
for two years beginning in 2003. Hull, a drug customer of
Holloway’s, testified that Holloway got his drugs from John-
son. Finally, Khalil Timpson ("Timpson") testified that he
purchased drugs from Johnson in 1998.
Agent Smith was permitted to interpret four of the eight
phone calls recorded between Pickens and Johnson during his
testimony. After eliciting Agent Smith’s credentials, which
included eighteen years experience as a DEA agent, the gov-
ernment played excerpts of the various phone calls for the
jury, while referring them to a transcript of the calls.2 The
government’s attorney would then refer Agent Smith to a par-
ticular phrase in the conversation and ask him to explain its
meaning. For example: "Special Agent Smith, close to the
beginning of the call there is a line or there’s a phrase that’s
1
Although the government called several other witnesses during their
case in chief, the primary evidence against Johnson was elicited from
these four witnesses.
2
The transcripts were not admitted as evidence but merely used as an
aid so the jury could follow along.
4 UNITED STATES v. JOHNSON
used by Mr. Johnson, ‘I’m going to hit you and let you know
what’s happening.’" J.A. 91.3 Before Agent Smith could offer
his opinion, counsel for Johnson objected on the grounds that
the question called for speculation. The district court asked
the government’s attorney to lay a foundation for testimony
interpreting the calls. The government’s attorney did so in the
following manner:
Q: Special Agent Smith, how long have you been
a DEA agent?
A: Since April of 1990.
Q: And how many—during the course of that time
you have with DEA how many wiretaps have
you participated in?
A: Approximately ten.
Q: And how many consensual calls have you mon-
itored or participated in with informants?
A: Easily over a hundred.
Q: And how many cooperating defendants have
you debriefed or interviewed?
A: Probably more than a hundred.
Q: Have you interviewed—how many defendants
have you debriefed or interviewed who were
actually involved in this case?
A: At least ten.
3
Citations to J.A. __ refer to the Joint Appendix filed by the parties
upon appeal.
UNITED STATES v. JOHNSON 5
Q: Have most of those interviews occurred before
or after the initiation of the wiretap?
A: Most of them occurred after.
Q: Are you familiar with the street terms
used—and I’m assuming they change from day-
to-day, but are you familiar with the street
terms typically used by those involved in the
drug trade?
A: Yes I am.
....
Q: All right. Based on your investigation thus far,
prior to the wiretap and now after the wiretap,
what did—do the terms—what did Mr. John-
son’s part of the conversation midway down the
page when they are talking about "hitting ya",
what did that mean to you?
J.A. 91-93. Over the defense counsel’s renewed objection,
Agent Smith was permitted to answer: "He’s referring [SIC]
that when he is able to obtain cocaine, he’ll let Mr. Pickens
know so they can purchase it or so he can purchase it." J.A.
93. When asked how he knew that cocaine was the subject of
the conversation, Agent Smith replied, "[j]ust based on other
calls." Id. Agent Smith translated "[s]omebody hit me on any-
thing I’ll let you know what’s happening," to mean "when
he’s [Johnson’s] able to get cocaine and drugs, he will call
Mr. Pickens and let him know." J.A. 95. Despite continually
premising Agent Smith’s testimony on his "training and expe-
rience," the government never proffered Agent Smith as an
expert witness. Instead, the officer continued to offer his opin-
ion regarding the nature of the phone calls between Pickens
and Johnson. Although he maintained that the conversations
referenced drug deals, Agent Smith admitted that "there was
6 UNITED STATES v. JOHNSON
no information that . . . Mr. Pickens and Mr. Johnson actually
conducted a drug transaction" during the time period that the
phone calls took place. J.A. 104. He further testified that he
was not the officer who conducted the surveillance in the
investigation and could not offer testimony regarding what the
surveillance uncovered.
In addition to Agent Smith’s testimony, the government
called Holloway, a co-defendant with an extensive prior
record who pled guilty to conspiracy in the case, to testify
against Johnson. Holloway testified that he had known John-
son since 1998, and that he began to buy drugs from him in
Anderson, South Carolina in the summer of 2003. Though he
pooled the purchase money with Hull, another drug dealer in
the area, Holloway testified that he went alone to transact
deals because Johnson did not trust Hull. Holloway told the
jury that over the next couple of years he purchased approxi-
mately forty to forty-five kilograms of cocaine from Johnson,
half a kilogram to four kilograms per transaction. The drug
deals occurred in Greenville, South Carolina or Atlanta, Geor-
gia and the surrounding area. Holloway testified that the deals
took place at a Wendy’s parking lot on several occasions, as
well as a Red Lobster parking lot and an apartment complex.
During one deal in July 2005, Holloway and Johnson had a
conversation on the quality of the cocaine being supplied and
the price. Holloway alleged Johnson’s drugs were bad
because they did not yield as much product as expected and
that the price per kilogram was too high, thereby harming his
ability to make a profit on it. In December 2005, during the
last deal that took place between the two, Holloway attempted
to get his money back from Johnson for a bad batch of
cocaine but was unable to do so. Holloway testified that he
purchased drugs from a different supplier until his arrest in
August 2006.
Hull, another co-defendant, testified that he was supplied
drugs by Holloway and that Holloway’s source was Johnson.
Although Hull asserted he never went along for drug transac-
UNITED STATES v. JOHNSON 7
tions, he stated he had met Johnson in the course of dealing
cocaine in Anderson, South Carolina, and even went to a strip
club in Atlanta with Holloway and Johnson. Hull therefore
pooled drug purchase money with Holloway to buy from
Johnson but was not permitted to buy directly from him. Hull
testified that despite complaints regarding the quality of
cocaine Johnson supplied, Holloway continued to purchase
drugs from Johnson because he was the cheapest supplier.4
DEA Agent Jarvis Reeder5 ("Agent Reeder") testified to
further inconsistencies in the testimony given by Holloway
and Hull. Agent Reeder, who conducted a post-arrest inter-
view with Hull, and wrote a report based on that interview,
testified that Hull stated he taught Holloway how to cook
cocaine into crack, whereas Holloway testified that Johnson
taught him how to reduce cocaine to crack. Agent Reeder also
testified that Hull stated in his interview that he and Holloway
met Johnson in Atlanta, but never mentioned meeting him in
Anderson, South Carolina, as Hull related in his testimony.
The final witness the government called against Johnson
was Timpson. Prior to his testimony, defense counsel objected
pursuant to Rule 404(b), arguing that Timpson’s testimony
was inadmissible character evidence. The district court over-
ruled the objection and gave the jury an instruction on the
limited purpose of the prior acts testimony. "For example, this
evidence may be — may properly be considered to prove the
defendant’s motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident. In this
instance the government seeks to offer the testimony to prove
knowledge and intent." J.A. 263.
4
This testimony directly contradicts Holloway’s testimony that an
unnamed drug trafficker called "White Boy" was his cheapest supplier.
J.A. 213.
5
Although initially called as a government witness, counsel for Johnson
called Agent Reeder to testify regarding his interview with Hull and the
inconsistencies between the information he collected in the interview and
Hull’s testimony at trial. J.A. 518–547.
8 UNITED STATES v. JOHNSON
Timpson is currently serving a prison sentence imposed in
2001 in North Carolina for possession of crack cocaine. He
testified that in November of 1998 he purchased a kilogram
of cocaine per week from Johnson. Their drug transactions
followed a pattern. Timpson would deliver the purchase
money to Johnson at his rim shop, East Cost Wheels, in
Greenville, South Carolina. Johnson would then call Timpson
and arrange for delivery of the cocaine at Bailey’s Sports Bar
in Greenville. This alleged pattern lasted for three to four
months, until Johnson moved to Atlanta. Timpson was
arrested in January 2000, and though he cooperated with the
authorities at the time of his arrest, he did not tell the agents
that Johnson had been his drug supplier, and instead gave the
names of two other individuals. After Timpson’s testimony,
the district court ruled his testimony admissible under Rule
404(b).
Johnson called several witnesses to testify regarding his
mode of employment. Mark Rice testified that Johnson was
a broker for his rehab real estate business in Atlanta, and addi-
tionally sold household appliances in association with their
business. Gerald Stitton testified that Johnson was a broker
for his car dealership, and would bring him clients on a regu-
lar basis for a referral fee. Hansel Little testified that he had
purchased real estate, a car, and several appliances from John-
son over the course of their friendship, and he had even
employed Johnson in his personal training business for sev-
eral months.
Johnson then took the stand in his own defense and asserted
that not only had he never been involved with drugs before,
but he had no prior record of criminal activity, and further had
been employed as a United States Marine, a South Carolina
State Trooper, and an entrepreneur with several business ven-
tures in the real estate and auto industry. Johnson also called
two close friends, Thorpe Jacob, his dentist, and Alan Forrest,
a Georgia State Trooper, as well as his fiance, Christina
Eschleman, a university administrator, and his mother, who
UNITED STATES v. JOHNSON 9
owned a funeral home in South Carolina, to testify regarding
his lifestyle and character.
The jury convicted Johnson on the sole conspiracy count
and he was sentenced to 220-months’ imprisonment. This
appeal followed.
II.
On appeal, Johnson argues that the district court erred in
admitting the testimony of Agent Smith and Timpson under
Rule 701 and Rule 404(b) respectively. We address each
argument in turn.
A.
This Court reviews a district court’s evidentiary ruling for
abuse of discretion. United States v. Perkins, 470 F.3d 150,
155 (4th Cir. 2006) (citing United States v. Gray, 405 F.3d
227, 238 (4th Cir. 2005)). "A court has abused its discretion
if its decision ‘is guided by erroneous legal principles’ or
‘rests upon a clearly erroneous factual finding.’" Brown v.
Nucor Corp., 576 F.3d 149, 161 (4th Cir. 2009) (quoting
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.
1999)).6
Evidentiary rulings are subject to harmless error review
under Federal Rule of Criminal Procedure 52, such that "in
order to find a district court’s error harmless, we need only be
able to say ‘with fair assurance, after pondering all that hap-
pened without stripping the erroneous action from the whole,
6
The government argues that plain error review applies to these issues
because Johnson’s counsel did not object with sufficient specificity under
Rule 103(a)(1), where she only objected to the agent’s testimony as "spec-
ulative" and not on the basis of Rule 701. Resp’t. Br. 11, n. 9. Because
there were many objections throughout Agent Smith’s testimony which
were sufficient to provide the district court with notice of the grounds for
the objection, we decline to apply plain error review.
10 UNITED STATES v. JOHNSON
that the judgment was not substantially swayed by the error.’"
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)
(quoting United States v. Heater, 63 F.3d 311, 325 (4th Cir.
1995)).
B.
Johnson argues on appeal that Agent Smith’s testimony
was erroneously admitted by the district court. Because Agent
Smith was not proffered as an expert, Johnson argues that his
testimony was only admissible as lay opinion testimony. Yet,
Johnson asserts that because Agent Smith’s opinions regard-
ing the calls were not based on his own perception, but rather
on his experience and training, his testimony cannot be con-
sidered a lay opinion for purposes of Rule 701. We agree.
Rule 701 permits lay opinion testimony where:
if the witness is not testifying as an expert, the wit-
ness’ testimony in the form of opinions or inferences
is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness,
(b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical or other special-
ized knowledge within the scope of Rule 702.
Fed. R. Evid. 701. This Court explored the line between Rule
701 and 702 in Perkins. We held "lay opinion testimony must
be based on personal knowledge." Perkins, 470 F.3d at 155-
56. In order to adequately build a foundation for lay testi-
mony, it must be "based on the perception of the witness."
TLT-Babcock Inc. v. Emerson Elec. Co., 33 F.3d 397, 400
(4th Cir. 1994) (citing Fed. R. Evid. 701). "A critical distinc-
tion between Rule 701 and Rule 702 testimony is that an
expert witness ‘must possess some specialized knowledge or
skill or education that is not in possession of the jurors.’" Cer-
tain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d
UNITED STATES v. JOHNSON 11
200, 203 (4th Cir. 2000) (citation omitted). Therefore "[a]t
bottom . . . Rule 701 forbids the admission of expert testi-
mony dressed in lay witness clothing." Perkins, 470 F.3d at
156.
Here, we have exactly what Rule 701 forbids. The govern-
ment called Agent Smith to testify regarding his interpretation
of the wiretapped phone calls between Pickens and Johnson.
In response to the defense’s objection, the government elic-
ited testimony on Smith’s credentials and training, not his
observations from the surveillance employed in this case. Fur-
thermore, Agent Smith admitted that he did not participate in
the surveillance during the investigation, but rather gleaned
information from interviews with suspects and charged mem-
bers of the conspiracy after listening to the phone calls. His
post-hoc assessments cannot be credited as a substitute for the
personal knowledge and perception required under Rule 701.
The government’s reliance on Perkins to support its argu-
ment in this case is misplaced. In Perkins, we found no abuse
of discretion where the district court admitted the testimony
of police officers regarding whether a fellow officer’s use of
force was reasonable at a particular crime scene. Though the
Court acknowledged that "the line between lay opinion testi-
mony under Rule 701 and expert testimony under Rule 702 is
a fine one," 470 F.3d at 155, the basic mandate that Rule 701
testimony be based on personal knowledge remained a guid-
ing principle. In that instance, where the testifying officers
were at the scene in question, their opinions were based on
their "contemporaneous perceptions" and therefore satisfied
the personal knowledge requirement of Rule 701. Id. at 156.
By contrast, other officers who did not witness the officer’s
use of force could not provide lay testimony about whether or
not it was reasonable, as they would be rendering expert opin-
ion based on second-hand information. Id.
One of our sister circuits has considered this issue in an
analogous case. In United States v. Peoples, 250 F.3d 630 (8th
12 UNITED STATES v. JOHNSON
Cir. 2001), the Eighth Circuit found that the officer in ques-
tion was erroneously permitted to give her opinion regarding
the meaning of plain English words and phrases when she
gave "a narrative gloss that consisted almost entirely of her
personal opinions of what the conversations meant." Id. at
640. Importantly, the Court found that the agent "lacked first-
hand knowledge of the matters about which she testified. Her
opinions were based on her investigation after the fact, not on
her perception of the facts." Id. at 641.
Here, Agent Smith did not testify to directly observing the
surveillance or even listening to all of the relevant calls in
question. Instead, much of his testimony was what should
have been considered that of an expert, as he consistently sup-
ported his interpretations of the phone calls by referencing his
experience as a DEA agent, the post-wiretap interviews he
conducted, and statements made to him by co-defendants.
None of this second-hand information qualifies as the founda-
tional personal perception needed under Rule 701. As such,
the district court abused its discretion in admitting Agent
Smith’s testimony as a lay witness under Rule 701.
C.
The government argues that even if the district court erred
in admitting Agent Smith’s testimony under Rule 701, that
error is harmless because (1) the testimony could have been
admitted under Rule 702, and (2) there was sufficient evi-
dence of Johnson’s guilt independent of the Agent’s testi-
mony. We disagree.
1.
Rule 702 permits expert testimony where it "will assist the
trier of fact to understand the evidence or to determine the
fact in issue." Fed. R. Evid. 702. Experts must have special-
ized knowledge that will assist the trier of fact, and the knowl-
edge, skill, experience, training and education that qualifies
UNITED STATES v. JOHNSON 13
them on the subject of their testimony. Id. The testimony must
be based on sufficient facts or data, and the witness must use
reliable principles and methods, and apply those principles
and methods reliably to the facts of the case. Id. It is well
established that narcotics officers can be appropriately desig-
nated as experts on the drug market and drug jargon. See
United States v. Hopkins, 310 F.3d 145, 150-51 (4th Cir.
2002) (affirming introduction of expert testimony about drug
trade).
This Court outlined the appropriate manner by which nar-
cotics officers should be qualified as experts in United States
v. Wilson, 484 F.3d 267 (4th Cir. 2007). In that case, the
defendant objected at trial to a detective being designated an
expert witness where he failed to provide adequate support
and methodology regarding his opinions on drug jargon and
code. The Court found that the detective had adequately stated
his methodology for deciphering the code used by the targets
of the drug investigation. Id. at 277. In affirming the district
court, we noted that the detective pointed to a pattern that
emerged over time regarding certain words that were used out
of the context of their dictionary meanings. Id. Although most
of the detective’s testimony was found to be properly admit-
ted, we cautioned,
[A]lthough the district court erred in failing to
exclude Seabolt’s testimony when that testimony
either interpreted language that needed no interpreta-
tion, or when Seabolt did not adequately explain his
methodology in reaching a questionable interpreta-
tion, the net effect was harmless because the over-
whelming majority of Seabolt’s expert testimony
was properly admitted.
Id. at 278.
In the case at bar, it is clear that Agent Smith had sufficient
expertise to qualify as a person knowledgeable in the field of
14 UNITED STATES v. JOHNSON
narcotics. On two occasions, he enumerated his experience
both as a DEA agent and in conducting wiretap investigations.
However, the Supreme Court has made clear that in addition
to having the requisite specialized knowledge, the expert’s
testimony must "be the reliable product of reliable principles
and methods that are reliably applied to the facts of the case."
Id. at 274 (quoting Fed. R. Evid. 702 advisory committee’s
note); see also, Kumho Tire Co. v. Carmichael, 526 U.S. 137,
141-42 (1999) (citing Daubert v. Merrell Dow Pharmaceuti-
cals, Inc., 509 U.S. 579 (1993)). Although Agent Smith
repeatedly indicated that he had the expertise to testify regard-
ing drug jargon and the drug trade generally, he provided vir-
tually no methodology or guiding principles that would enable
him to decode the wiretapped phone calls in this case.
As such, we cannot say with any "fair assurance" that
Agent Smith’s testimony would have been admitted as expert
testimony. See Brooks, 111 F.3d at 371. By the government’s
own admission, the phrases Smith interpreted "were not typi-
cal drug code" and "did not have common meaning in the
drug world," Resp’t Br. 21 n.15 (internal quotation marks
omitted), which highlights the need for more information as
to how Smith’s experience in drug enforcement would qualify
him as an expert in interpreting uncommon drug-related
slang. In these circumstances, the government has failed to
meet its burden of establishing that the district court would
have admitted this somewhat unique testimony under Rule
702 based on Agent Smith’s general drug-investigation expe-
rience alone. See United States v. Curbelo, 343 F.3d 273, 278
(4th Cir. 2003)("[F]or nonconstitutional errors, the Govern-
ment must demonstrate that the error did not have a substan-
tial and injurious effect or influence in determining the jury’s
verdict.") (internal quotation marks and citation omitted).
2.
Beyond arguing the district court’s error was harmless
under Rule 702, the government argues that there was suffi-
UNITED STATES v. JOHNSON 15
cient evidence, in addition to Agent Smith’s testimony, which
supported Johnson’s conviction. However, because Agent
Smith’s testimony leant critical credibility bolstering the gov-
ernment’s reliance on the testimony of three convicted drug
dealers (who often contradicted themselves), we cannot agree,
and find the district court’s error was not harmless.
In order for an evidentiary ruling to be harmless, we must
find that the judgment was not substantially swayed by the
error. See Brooks, 111 F.3d at 371. Often in criminal cases
where there is a significant amount of evidence which incul-
pates a defendant independent of the erroneous testimony, the
error is considered harmless. See United States v. Banks, 482
F.3d 733, 741-42 (4th Cir. 2007). However, in this instance,
the evidence against Johnson cannot be viewed independently
from Agent Smith’s testimony.
Both Holloway and Hull, co-defendants in this case, testi-
fied against Johnson. Each of them has a criminal history dat-
ing back over ten years, and each sought sentencing
consideration for their cooperation in testifying. Though Hol-
loway offered direct testimony regarding Johnson’s alleged
involvement in the conspiracy, his testimony was contradicted
by Hull on several points. For example, Holloway testified
that he always went alone to meet Johnson and that Johnson’s
prices were expensive. By contrast, Hull testified that he and
Holloway took a trip to Atlanta with Johnson and that Hol-
loway dealt with Johnson because he was the cheapest sup-
plier. Hull also testified that he did not have direct knowledge
of Johnson’s alleged drug involvement because he never wit-
nessed a transaction take place. Furthermore, Agent Reeder’s
testimony highlighted further inconsistencies, such as whether
Hull or Johnson taught Holloway to cook crack, and whether
or not Hull ever met Johnson in Anderson, South Carolina.
Timpson’s testimony was also questionable. Although he
claimed to have cooperated with the authorities regarding his
drug involvement when he was sentenced in 2000, he did not
16 UNITED STATES v. JOHNSON
name Johnson as one of his suppliers. Instead, he named two
other individuals, despite allegedly purchasing drugs from
Johnson on a weekly basis for at least three months.
Furthermore, the government offered no direct evidence
that linked Johnson to the charged conspiracy aside from the
testimony of Holloway. No drugs were found, no financial
evidence was presented and there was no surveillance that
captured Johnson engaging in illicit activity, despite the
extensive investigation mounted by the local DEA.
Thus, where three drug-dealer witnesses had considerable
credibility issues in a case with little additional evidence,
Agent Smith’s testimony leant credence to their claims
because his wiretap interpretations supported their testimony
that Johnson was in fact involved in drug dealing. Had Agent
Smith’s testimony been excluded, the jury would have
weighed the testimony of Johnson, a veteran and former law
enforcement officer with no criminal record, against that of a
convicted drug dealer and two co-defendants with long rap
sheets. Where Agent Smith’s testimony buttressed evidence
against Johnson that was otherwise weak, "we cannot con-
clude that the evidence was unimportant or was not a substan-
tial factor in the jury’s verdict." United States v. Grinage, 390
F.3d 746, 751 (2nd Cir. 2004); see also Peoples, 250 F.3d at
642 (holding the Rule 701 error was not harmless where the
jury may have found the testimony of a co-conspirator "inade-
quate to support a guilty verdict beyond a reasonable doubt
had it not been buttressed by [the agent’s] supporting infor-
mation and opinions.").
We thus cannot find that admission of Agent Smith’s testi-
mony was harmless where it bolstered the scant, conflicting,
and not entirely credible evidence against Johnson.
III.
Johnson next argues that Timpson’s testimony was not
properly admitted under Rule 404(b) because it was not rele-
UNITED STATES v. JOHNSON 17
vant to nor necessary to prove Johnson’s intent or knowledge
in the case. He further argues that this error was not harmless
due to the paucity of evidence before the court linking him to
the conspiracy. We agree.
A.
Rule Rule 404(b) provides:
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, how-
ever, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or acci-
dent . . . .
Fed. R. Evid. 404(b). Our Circuit’s jurisprudence concerning
the application of Rule 404(b) has evolved by addressing the
tension in cases involving evidence of prior drug transactions.
Compare United States v. Mark, 943 F.2d 444, 448 (4th Cir.
1991) (holding evidence of prior drug-transaction testimony
admissible under Rule 404(b) to prove knowledge and intent
in drug conspiracy case) with United States v. Hernandez, 975
F.2d 1035, 1040 (4th Cir. 1992) (holding prior drug-
transaction testimony inadmissible under Rule 404(b) in drug
conspiracy case). As a result we endeavored to further clarify
"the rule’s [elusive] underlying principles" in United States v.
Queen, 132 F.3d 991, 995 (4th Cir. 1997). We held that evi-
dence of prior bad acts under Rule 404(b) is admissible when
the following criteria are met:
(1) The evidence must be relevant to an issue, such
as an element of an offense, and must not be offered
to establish the general character of the defendant. In
this regard, the more similar the prior act is (in terms
of physical similarity or mental state) to the act
being proved, the more relevant it becomes. (2) The
18 UNITED STATES v. JOHNSON
act must be necessary in the sense that it is probative
of an essential claim or an element of the offense. (3)
The evidence must be reliable. And (4) the evi-
dence’s probative value must not be substantially
outweighed by confusion or unfair prejudice in the
sense that it tends to subordinate reason to emotion
in the factfinding process.
Queen, 132 F.3d at 997.
Johnson argues that Timpson’s testimony is not admissible
under Rule 404(b) because the alleged prior drug transaction
is not sufficiently related to the conspiracy charged such that
it could be considered probative of intent or knowledge or
necessary to prove those elements of the offense. The govern-
ment counters that not only does Timpson’s testimony satisfy
the four criteria outlined in Queen, but the district court also
provided a limiting instruction in this case, which provided
"additional protection against the pitfalls" of admitting the
character evidence that the rule seeks to exclude. See Id. The
meager protection afforded by the court’s limiting instruction,
however, cannot outweigh the prejudice incurred by evidence
that does not meet the mandate of the rule in the first instance.
In order for evidence of prior drug transactions to be admis-
sible in a drug conspiracy case, the prior acts must be relevant
to the charged offense. Thus, we have repeatedly found that
the prior act which is alleged to be probative of an element of
the crime must be "sufficiently related to the charged
offense." Mark, 943 F.2d at 448 (internal quotation marks
omitted) (quoting United States v. Rawle, 845 F.2d 1244,
1247 n.3 (4th Cir. 1988)); Hernandez, 975 F.2d at 1039.
Therefore, the more closely the prior act is related to the
charged conduct—either in time, pattern, or state of
mind—the more probative it is of the defendant’s intent or
knowledge in relation to the charged conduct. See Rawle, 845
F.2d at 1247; Mark, 943 F.2d at 448; Hernandez, 975 F.2d at
1039. The fact that a defendant may have been involved in
UNITED STATES v. JOHNSON 19
drug activity in the past does not in and of itself provide a suf-
ficient nexus to the charged conduct where the prior activity
is not related in time, manner, place, or pattern of conduct.
In Rawle, we held that the prior bad act evidence was
"properly introduced to show knowledge, common scheme or
plan," where the defendant had transported marijuana on I-95
in empty tractor trailers in the past and was charged in a simi-
lar scheme. 845 F.2d at 1245-46. Because similar methods
were used, such as placing paper products in the back of the
trailer and creating false bills of lading to conceal the contra-
band, "there was sufficient similarity between these prior bad
acts and the alleged acts of the defendant in the case at bar."
Id. at 1248. In Mark, we found the character testimony was
necessary to link the defendant to the co-defendants by show-
ing he "was not an innocent friend of his codefendants but
rather was a major cocaine distributor responsible for the
transaction at issue." 943 F.2d at 448. The witness testifying
against Mark corroborated another witness’ testimony by
detailing how the defendant was able to obtain the drugs
which he later sold to his codefendants. Id. Mark’s prior drug
transactions occurred in the same state and during the same
year he was arrested. Id. at 446. Because Mark testified on his
own behalf regarding his innocuous relationship to the co-
defendants, the "extrinsic act evidence . . . was sufficiently
related to the charged offense and clearly relevant" to prove
his intent and knowledge in the case. Id. at 448 (emphasis
added).
In both Rawle and Mark the prior bad act evidence was
related to the charged drug crimes in time and manner. By
contrast, the testimony offered in Hernandez only bore a
"slight relationship to the acts charged in the indictment,"
where the witness testified regarding the defendant’s prior
statements about a recipe for cooking drugs and then selling
them in New York six months prior. 975 F.2d at 1038, 1040.
Hernandez was charged with conspiracy to distribute drugs in
the Washington, D.C. area and testified that she was in no
20 UNITED STATES v. JOHNSON
way involved in the conspiracy. The testimony in Hernandez,
therefore, did not illustrate anything regarding the defendant’s
intent to sell drugs in Washington nor was it closely related
in time or place to the charged offense. Id. at 1039 ("Evidence
to show intent is not admissible when the unrelated bad act is
tenuous and remote in time from the charges in the indict-
ment.").
Just as the informant’s testimony was "tenuous and remote"
in Hernandez, so too was the evidence presented by Timp-
son’s testimony. The drug transactions that Timpson alleged
he conducted with Johnson occurred in 1998, nearly five
years before the charged conspiracy allegedly began in this
case. Not only was the testimony remote in time, but Timpson
did not link Johnson to any of the other co-defendants. "In
Mark, the trial court pointed out that the evidence of prior bad
acts disclosed how the defendant got the drugs that he was
charged with selling." Hernandez, 975 F.2d at 1040. No such
nexus can be found in Timpson’s testimony. Instead, Timpson
merely described the transactions he alleged that he conducted
with Johnson, which were neither directly nor indirectly
related to the charged conspiracy. Even the description of the
nature of the drug transaction—exchanging money at John-
son’s rim shop before meeting at a bar to exchange the
drugs—did not relate to the manner in which Holloway
described transacting business with Johnson, such that this
case could be said to fit within the circumstance described in
Rawle. We therefore cannot find that Timpson’s testimony
was sufficiently related to the charged offense to render it
adequately relevant to prove intent or knowledge. When, as
here, the proponent of Rule 404(b) evidence cannot demon-
strate that the evidence satisfies our four-part test for admissi-
bility, we must notice error; in such circumstances, the Rule
has been administered impermissibly "to convict a defendant
on the basis of bad character, or to convict him for prior acts,
or to try him by ambush." Queen, 132 F.3d at 997.
UNITED STATES v. JOHNSON 21
B.
Thus, we find that the district court erred in admitting Tim-
pson’s testimony under Rule 404(b), despite the district
court’s limiting instruction. Furthermore, we cannot say that
this error was harmless, given the overall weakness of the
government’s case against Johnson, and the fact that Johnson
testified in his own defense as well as called numerous wit-
nesses to support his innocence.
As stated above, the government had scant evidence against
Johnson in this case. Agent Smith translated four vaguely-
worded phone calls which led to Johnson’s arrest. Hull and
Holloway told conflicting stories regarding the nature of their
dealings with Johnson. Agent Reeder further illustrated the
discrepancies between Hull and Holloway’s accounts, dis-
crediting the government’s already weak case against John-
son. In addition, Johnson called seven witnesses to testify
about his legitimate source of income, both in the form of
employers and clients. Moreover, his fiance, a university
administrator, and his mother, who ran a family funeral home
in South Carolina, testified that Johnson was not and had
never been involved in drugs. When viewed in light of the
paucity of evidence the government presented, and the
strength of the case Johnson presented, Timpson’s testimony
cannot be said to be harmless where it provided a powerful
allegation linking Johnson to a totally unrelated drug-dealing
conspiracy that took place several years before the investiga-
tion that led to Johnson’s indictment.7 In sum, the government
7
It also cannot be said that the 404(b) error is harmless because Johnson
"opened the door" to character evidence by taking the stand and disavow-
ing any involvement in drug activity. Because Timpson was called in the
government’s case in chief, the error occurred prior to Johnson taking the
stand, making it impossible to make a post-hoc assessment as to whether
Johnson would have testified without the damaging, inculpatory testimony
of Timpson. The record further supports this inference. See J.A. 578-607:
The government was allowed a stretch with Timpson, who’s been
incarcerated so long, with what he thought he knew from way
22 UNITED STATES v. JOHNSON
has failed to carry its burden of demonstrating — let alone
advance any argument at all—that the Timpson testimony
"did not have a substantial and injurious effect or influence on
the result." United States v. Lynn, 592 F.3d 572, 585 (4th Cir.
2010) (internal quotation marks omitted). Consequently, we
must reverse.
IV.
For the foregoing reasons, Johnson’s conviction is reversed
and the case is remanded for proceedings consistent with this
opinion.
REVERSED AND REMANDED
back in the day and we’re not allowed the same latitude with
respect to us being able to offer a credible defense for Mr. John-
son who’s sitting back here fighting for his life.
J.A. 586 (Att’y. for Johnson).
...
Well, I think I need to testify to show my character.
J.A. 606 (Johnson Testimony).