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.

_________________

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.