United States v. Lucas

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Lucas No. 02-5399
ELECTRONIC CITATION: 2004 FED App. 0046P (6th Cir.)
File Name: 04a0046p.06 STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Jerald W. Newton, Sedona, Arizona, for
Appellant. Camille R. McMullen, ASSISTANT UNITED
UNITED STATES COURT OF APPEALS STATES ATTORNEY, Memphis, Tennessee, for Appellee.
FOR THE SIXTH CIRCUIT BOGGS, C. J., delivered the opinion of the court, in which
_________________ RYAN, J., joined. ROSEN, D. J. (pp. 20-29), delivered a
separate concurring opinion.
UNITED STATES OF AMERICA , X
Plaintiff-Appellee, - _________________
-
- No. 02-5399 OPINION
v. - _________________
>
, BOGGS, Chief Judge. On May 18, 2001, Robin Rochelle
ROBIN ROCHELLE LUCAS, - Lucas was indicted by a grand jury for knowingly and
Defendant-Appellant. - intentionally possessing with the intent to distribute 500
N grams or more of a mixture containing cocaine, in violation
Appeal from the United States District Court of 21 U.S.C. § 841(a)(1). In September 2001, Lucas was
for the Western District of Tennessee at Jackson. convicted by a jury as charged in the indictment and was
No. 01-10022—James D. Todd, Chief District Judge. subsequently sentenced to 121 months in prison, four years of
supervised release, a $100 special assessment, and a $15,000
Argued: August 6, 2003 fine. Lucas appeals the judgment against her on three
grounds, each of which she claims merits reversal. First, she
Decided and Filed: February 12, 2004 argues that the district court abused its discretion in granting
the government’s motion in limine to exclude from the trial
Before: BOGGS, Chief Judge; RYAN, Circuit Judge; and any mention of the fact that Morrell Presley, a person
ROSEN, District Judge.* involved in the events leading to Lucas’s arrest but not a
witness at her trial, had previously been convicted for cocaine
_________________ trafficking, when the defense’s theory was that the drugs were
Presley’s and not Lucas’s. Second, Lucas argues that the
COUNSEL district court abused its discretion when it ruled that she could
not introduce evidence, as an explanation of her nervous
ARGUED: Jerald W. Newton, Sedona, Arizona, for behavior during her arrest, that she had been raped by prison
Appellant. Camille R. McMullen, ASSISTANT UNITED guards in the past. Third, Lucas contends that the court erred
in denying her Batson motion, in which she argued that the
prosecutor exercised a peremptory challenge against a
*
potential juror in a racially discriminatory manner, in
The Honorable Gerald E. Rosen, United States District Judge for the violation of the Equal Protection Clause. See Batson v.
Eastern District of Michigan, sitting by designation.

1
No. 02-5399 United States v. Lucas 3 4 United States v. Lucas No. 02-5399

Kentucky, 476 U.S. 79 (1986) (prohibiting the exercise of that she was in Knoxville, and then gave him the address and
race-based peremptory challenges). Lucas also appeals her name of the hotel. Presley apparently recognized the hotel
sentence and claims that the district court abused its and said he would come over to see her, but did not tell her
discretion in not finding that her prior rape by prison guards that she was not in Knoxville. Lucas awakened the other
and her charitable work for human rights organizations such women, telling them to get dressed because Presley was going
as Amnesty International were grounds for a downward to be visiting them shortly.
departure. We affirm Lucas’s conviction and sentence.
Presley came over, they watched a movie, and eventually
I the group decided they were hungry. Presley volunteered to
go for food and Quinney prepared a shopping list for him,
Robin Rochelle Lucas was arrested on May 9, 2001 in including chicken and cooking oil. Presley said he was low
Tennessee. At the time, she was living in California with her on gas and so Watts allegedly gave him the keys to the rental
grandmother, her nephew, and two nieces. Lucas testified at car, which he took instead of his own car, leaving the room at
her trial that she was on vacation with two friends, Angelina about 2:30 p.m.
Watts and Kimberly Quinney, on her way to visit another
friend, Jackie Parker, who lived in Memphis, and to attend the Presley returned to the hotel room approximately five hours
“Memphis in May” festival. On May 8, 2001, Lucas, Watts, later, at about seven-thirty at night, and although he brought
and Quinney flew from California to Nashville. At the some groceries, he did not return with the chicken or cooking
Nashville airport, Watts obtained a rental car. As they left the oil, allegedly the main reason for his trip. Lucas had been
airport, Lucas says she saw a sign for Knoxville and teased by Watts and Quinney, who suggested that Presley had
Chattanooga (which are over 200 miles away), which she “made off” with the rental car, leaving his old car behind.
followed, thinking that Knoxville was only a few minutes When Presley finally returned, without the chicken, Lucas
away from Nashville. The three women stopped off at a testified that she grabbed the keys out of frustration and
liquor store a few minutes down the road and purchased two started driving towards Memphis. At around eight, Lucas
bottles of Hennessey. Lucas then paid for a room at a called Parker and told her that she was on her way to pick her
Residence Inn, which she claims she thought was in up in Memphis.
Knoxville, but was actually still in Nashville. The group
decided to go to Walgreens, where Quinney purchased several At the hotel, Presley became upset, asking where Lucas had
items, including food and utensils for cooking dinner in the gone with the rental car. According to Quinney’s testimony
room’s small kitchenette. The three went back to the hotel, at trial, Presley was ranting and raving, calling everyone
prepared food, and drank. names. Presley urged Quinney and Watts to call Lucas and
convince her to drive back, specifically stating to Quinney
The three women said that they had planned to drive to that she should “[c]all that B and tell her to come back” and
Memphis the next morning, May 9, but they got up late and that his cell phone was in the car. Quinney called Lucas and
Lucas wasn’t able to get in touch with her friend, Parker, the told her “[t]hat she needed to come back because she had . . .
woman she was to meet in Memphis. Lucas then claims to Morell’s cell phone. She needed to bring him his cell phone.”
have called Morrell Presley, a man she claims to have met At some point Presley even got on the phone and started
twice before (very briefly) through a friend, and asked him for yelling at Lucas to come back, telling her that “she didn’t
directions to Memphis. Lucas testified that she told Presley know who he was” and calling her names. Phone records
No. 02-5399 United States v. Lucas 5 6 United States v. Lucas No. 02-5399

verified that phone calls were made consistent with this that Lucas did not have the keys. Hammett began shining his
testimony, although the only evidence presented as to what flashlight into the vehicle, looking for the keys, when he
was said during the calls and, indeed, of any interaction with spotted two bags wrapped in cellophane and stuck under the
“Presley,” was the testimony of Lucas and her two friends: front driver’s seat. The bags were eventually retrieved from
Quinney and Watts. the vehicle and later determined to contain 2.2 kilograms of
cocaine. A number of items were found in the car during a
At 9:25 pm, Lucas was pulled over by Trooper Ollie Parker subsequent search. Three cell phones were seized, registered
for speeding at 92 miles per hour near mile marker 104 on I- to Angelita Watts (Vallejo, California), Robyn McPherson
40 going west towards Memphis. As Parker was copying (Vallejo, California), and Cathy Jefferson (Nashville,
information down for Lucas’s ticket, he realized that her Tennessee) respectively. Thirteen credit cards were
driver’s license was expired, called it in, and found out that it recovered, eleven in Lucas’s name and two in the name of
was suspended. When Parker went back to Lucas and told Robyn McPherson, along with a Visa Gold Card application
her of his findings, she explained to him that she had “taken in Robyn McPherson’s name and a receipt from Walgreens.
care” of the suspended license, but Parker was unable to Lucas explained that Robyn McPherson is her niece and that
verify this fact. she had taken her niece’s credit cards and telephone calling
cards because her niece had written over $7000 in insufficient
Trooper Earl Hammett drove up at around 10 pm, and fund checks, which Lucas had covered, and her niece had run
parked behind Parker’s cruiser, which was behind Lucas’s up a phone bill of $800.
rental car. He activated the cruiser’s video camera at 10:03
pm, and this video was played for the jury at trial. About five Lucas denied having any knowledge of the cocaine found
minutes later, Lt. Linuel Allen arrived. Both troopers were in the rental car that night. The defense’s theory at trial was
filled in on what was going on by Parker. that Presley was the one who had put the drugs into the car.
Through the testimony of Quinney and Watts, the defense
At some point Lt. Allen retrieved Lucas’s coat from the car, brought out that Presley was alleged to have been in the car
and found in it $2,855, mostly in twenty-dollar bills. Lucas immediately before Lucas took it on the night that she was
volunteered that this was her traveling money and that she stopped. In addition, according to the testimony of the
had started off the trip with $3,000. Lucas further explained women, Presley took the car for several hours, despite the fact
that she had been driving for about two hours and was on her that his errand of grocery shopping should have been a short
way from Knoxville to Memphis in order to pick up a relative trip. When he did arrive back, he did not have the groceries
and take them back to a Knoxville family reunion. It was he was supposed to have gotten, and presumably he had
obvious to the officers that this was not true, since they were plenty of time to purchase the drugs, using someone else’s car
not two hours from Knoxville. for the transaction. Finally, there was testimony verifying the
fact that Presley was furious with Lucas for driving off in the
Prior to being handcuffed, Lucas was told to remove her car and violently insistent that she return immediately, which
belongings from the car, because she was unlikely to get the makes sense in view of the defense’s theory that Lucas had
car back. Hammett escorted Lucas to the front passenger unwittingly driven off with Presley’s drugs, worth thousands
door, and she leaned in to gather her things. Lucas walked of dollars.
back to the trooper’s car with her hands full. Shortly
thereafter, the troopers realized that the car was locked and
No. 02-5399 United States v. Lucas 7 8 United States v. Lucas No. 02-5399

It was also brought out at trial that Lucas had been Court: You can certainly mention that somebody else
convicted of bank fraud conspiracy in 1994 (when she would committed this crime, not the defendant; but whether you
have been about 28 years old), involving approximately can introduce a certified copy of a document to show this
$7,000 worth of traveler’s checks and the use of false person’s a convicted felon or not, that’s a bit of a stretch.
identification. She served a thirty-month sentence, during Let’s wait and see. Don’t mention the certified copy of
which she was raped by prison guards repeatedly. In 1998, the conviction or that he was a convicted felon until
she received a $500,000 settlement based on the sexual we’ve had an out-of-jury hearing. You can certainly
assault she claimed to have experienced while incarcerated, present the defense that your client didn’t do it. It was
which she states she invested in real estate, a clothing store, Morrell Presley’s drugs. You can certainly do that. I
and a nursing home facility, and which also could explain to guess that’s the defense, isn’t it?
some extent the amount of money found on her at the time of
her arrest. Lucas testified at trial that she was worth Defense Attorney: Yes, sir, Your Honor.
somewhere between $600,000 and $700,000; however, Lucas
filed a statement at sentencing admitting that she was wrong, Later on at the same hearing, the court stated as follows:
claiming that she thought that the appraised value of her
property was the net worth of her property (without You can certainly testify or have evidence about Mr.
subtracting the amount of her mortgage). Lucas also testified Presley, but unless something else develops of which I’m
at sentencing that she has worked with women in prison and not now aware, I’m not going to let the prior conviction
with various international human rights groups since being in because its probative value is greatly outweighed by
released from prison for her prior conviction. the prejudice.

II The government argues that the court’s decision was
correct and further submits that Federal Rule of Evidence
A. Presley’s Prior Conviction 404(b) prohibits the admission of this evidence because it
prohibits introducing evidence of other crimes to prove the
Lucas contends that the district court erred in prohibiting character of a person in order to show action in conformity
the defense from presenting evidence of Presley’s prior therewith. Although the district court did not explicitly rule
conviction for possessing and distributing cocaine, on the that the evidence was inadmissible pursuant to Rule 404(b),
basis that it was irrelevant. Lucas claims that not only was it did address this line of reasoning:
this an erroneous application of the Federal Rules of
Evidence, but that this exclusion unconstitutionally prevented Court: [W]hy is it relevant that he’s been convicted of a
her from mounting a complete defense. cocaine offense?

A few days prior to trial, a certified copy of a conviction of Defense Attorney: Because it shows his propensity to
Morell Presley was obtained, which reflected that Presley had leave the cocaine in the car. He’s the one that had the car
previously been convicted of possessing cocaine with the for several hours before Ms. Lucas had the car.
intent to distribute it. Lucas sought to introduce this evidence
and the court denied the request: The Court: Aren’t prior convictions inadmissible to
show propensity?
No. 02-5399 United States v. Lucas 9 10 United States v. Lucas No. 02-5399

... e.g., United States v. Stevens, 935 F.2d 1380, 1404 (3d Cir.
1991). See also United States v. Wilson, 307 F.3d 596, 601
Well, this is an interesting question, gentlemen. I have (7th Cir. 2002). There is, therefore, some merit in
never in thirty years had this one come up. It seems to considering the admissibility of such 404(b) evidence as
me though that this is still the type of evidence that is far depending on a straightforward balancing of the evidence’s
more prejudicial than probative. Whether Mr. Presley probative value under Rule 401 against Rule 403's
had a prior cocaine conviction or not doesn’t mean that countervailing considerations of “prejudice, confusion of the
he did or did not put the cocaine in this car. I’m going to issues, or misleading the jury, or by considerations of undue
sustain the government’s objection to the testimony that delay, waste of time, or needless presentation of cumulative
Mr. Presley was a convicted cocaine dealer. evidence,” as suggested by the Third Circuit in Stevens, 935
F.2d at 1404 . However, in assessing the probative value of
(emphasis added). such evidence we must also recall that the Advisory
Committee Notes following Rule 401 explain that rules such
We agree with the government that evidence of Presley’s as Rule 404 and those that follow it are meant to prohibit
prior conviction does come under Rule 404, although it falls certain types of evidence that are otherwise clearly “relevant
within a subset of such evidence sometimes called “reverse evidence,” but that nevertheless create more prejudice and
404(b)” evidence, in which the evidence of a prior act by confusion than is justified by their probative value. In other
another is offered as exculpatory evidence by the defendant, words, we affirm that prior bad acts are generally not
instead of being used by a prosecutor against a defendant. considered proof of any person’s likelihood to commit bad
See, e.g., United States v. Hill, 322 F.3d 301, 308 (4th Cir. acts in the future and that such evidence should demonstrate
2003). By its plain terms, Rule 404(b) mandates that something more than propensity.
“[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in Lucas’s defense is that Presley committed the crime, and
conformity therewith,” instead of restricting itself to evidence she did not. The defense wanted to introduce Presley’s
proving “the character of the accused.” Rule 404(b) conviction in order to demonstrate that in addition to access
(emphasis added).1 to the car and his strange behavior, Presley had a propensity
for selling cocaine. The defense wants the jury to make the
Nevertheless, we recognize, as do several of our sister inferential leap that because Presley sold drugs before, he is
circuits, that such evidence when presented by the defense, likely to have done so again.
requires us to reconsider our standard analysis, as the primary
evil that may result from admitting such evidence against a Lucas argues on appeal that, although she specifically
defendant -- by tainting his character -- is not present in the stated before the district court only that she would use the
case of 404(b) evidence used against an absent person. See, evidence of Presley’s conviction to prove propensity, this
information should have been admitted on the basis that it
could also have been used to prove knowledge and intent,
1
The rule does, in the next sentence, explicitly refer to “the accused.” which are among several exceptions in Rule 404(b) that are
However, it does so in the context of notice requirements that must be listed as purposes for which such testimony can be
followed by a prosecutor introducing such evidence against a defendant. introduced. This argument is not convincing. Presley’s
This differential use of “the accused” provides additional evidence that
the first sentence is not intended to apply only to the accused.
knowledge of what cocaine is, or what it looks like, is not at
No. 02-5399 United States v. Lucas 11 12 United States v. Lucas No. 02-5399

issue in this case. And certainly a prior conviction does not 476 U.S. 683, 690 (1986) (holding that “the Constitution
demonstrate Presley’s intent to sell in the future. Such an guarantees criminal defendants a meaningful opportunity to
argument would turn the exception into the rule. If, instead, present a complete defense.”) (internal quotation marks and
it was shown that Presley had borrowed someone else’s car in citations omitted). As we have stated previously, a complete
which to do the prior drug deal or if he had packaged the defense does not imply a right to offer evidence that is
cocaine in the same way and had left it under the passenger’s otherwise inadmissible under the standard rules of evidence.
seat in the same way, the evidence of his prior drug deal Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en
might have been sufficiently probative, but the simple fact banc). See also Taylor v. Illinois, 484 U.S. 400, 410 (1988).
that he sold cocaine before is only minimally relevant. Lucas was able to explore her theory that Presley was in fact
the culprit and present it to the jury through Quinney’s and
We therefore hold that the standard analysis of Rule 404(b) Watts’s testimony, as well as her own, describing his alleged
evidence should generally apply in cases where such evidence strange behavior and his alleged access to the car. The
is used with respect to an absent third party, not charged with exclusion of Presley’s prior conviction did not violate Lucas’s
any crime. In this case, not only does the evidence not fall constitutional right to present a defense and was instead an
within the any of the exceptions, even if it did, the district appropriate ruling by the district court in accordance with the
court did not err in determining that any probative value of Federal Rules of Evidence.
the prior bad act was outweighed by its prejudicial effect.
Introducing evidence of Presley’s prior conviction would Finally, we note that Federal Rule of Evidence 609 is not
have been prejudicial to fair consideration in that it would applicable to this case, though it was mentioned by the
have made it easier for the jury to lay the blame on Presley for defense in its brief as an alternate ground for admitting
the drug deal despite evidence presented at trial.2 Under the Presley’s prior conviction. However, Rule 609 addresses
abuse of discretion standard, we will only reverse if we are only the ability of a party to impeach a witness through the
firmly convinced that a mistake has been made. Nida v. Plant introduction of prior convictions, specifically for the purpose
Protection Ass’n Nat’l, 7 F.3d 522, 527 (6th Cir. 1993). of attacking credibility. Because Presley was not a witness
Accordingly, the district court did not abuse its discretion in (indeed, he has never been found nor his current existence
excluding this evidence. established), Rule 609 is not applicable.
In addition, we hold that Lucas was not prevented from B. Prior Sexual Assault
presenting a complete defense, as she is entitled to do under
the Constitution, because of the district court’s decision to bar Lucas contends that the district court abused its discretion
the admission of this evidence. See, e.g., Crane v. Kentucky, in determining that the prejudicial impact of admitting
testimony regarding her prior sexual assault in prison
outweighed any relevance these events had in explaining her
2 nervous behavior when arrested. We hold that even if the
In the Advisory Comm ittee Notes to Rule 403, it is explained that
“‘[u]nfair prejudice ’ within its context means an undue tendency to
district court abused its discretion, any error was harmless and
suggest decisio n on an improper basis, com mon ly, though not necessarily, thus nonreversible.
an emo tional one.” Here the jury might have made a decision that Presley
was the culp rit simply because of an unfair inference that because he had The government, through the testimony of Trooper Earl
sold cocaine before, he had done so here, and not on the basis of actual Hammett, introduced evidence at trial that Lucas had been
evidence linking him to the crime.
No. 02-5399 United States v. Lucas 13 14 United States v. Lucas No. 02-5399

nervous when stopped by the Tennessee Highway Patrol. nervous out there? Why were you nervous out there? I
Specifically, Trooper Hammett stated in his testimony that need to be able to, without - - I fully respect what the
Lucas “got nervous after she found out that we were going to court is saying. We don’t need to talk about exactly what
try to get back in the car after it was locked.” The prosecutor that was or give them the gruesome specifics, but I need
reiterated this fact in his closing argument to the jury, in to ask if her - - Can I ask her a question to the effect, Did
which he stated in relevant part: you experience in prison - - you know, she’s actually
been treated for post-traumatic stress syndrome, and I
Now, once she realized that not only was she going to be want to know if I can ask her - -
arrested but that the car was going to be towed, that’s
when Trooper Hammett indicated that he had started The Court: You can certainly have her explain that she
noticing some things. He indicated that when she was was nervous because she was afraid she was about to be
asked to remove her items from the vehicle that he tried arrested and she didn’t want to be arrested. But that
to flash the light inside of the car to assist her, and he doesn’t mean she gets to tell about all the intimate
indicated that she was dodging the flashlight, his horrible details of prison.
flashlight. He also told you that she became nervous.
Defense Counsel: Could I mention, I suppose, because
Lucas sought to counter this evidence by explaining that she spent time in prison, the fears that that’s caused her
she had been raped by male guards when she had previously through the years?
been in prison for conspiracy to commit bank fraud, and it
was for this reason that she had been nervous when told by The Court: Well, certainly.
the officers that she was under arrest.3 Furthermore, Lucas
wanted to explain that the federal government had paid her Defense Counsel: Something to that effect?
$500,000 in a settlement, because of the rapes she had
endured while in the prison system. The district court judge The Court: There’s absolutely nothing wrong with that.
agreed to allow Lucas to testify to the fact that she had But we’re not going to turn this into a demonstration that
received money in a lawsuit settlement, in order to explain the we’ve got Mother Teresa here, who is a national TV star,
source of her money and to counter inferences made by the who was sexually abused in prison. None of those things
prosecution that the money came from drug dealing. have anything to do with this case.
However, the judge determined that she could not testify to
the fact that she had been raped. The following exchange We review a district court’s decision to exclude evidence
took place between the judge and Lucas’s lawyer on this for abuse of discretion. United States v. Bartholomew, 310
issue: F.3d 912, 920 (6th Cir. 2002). “Under this standard, we will
leave rulings about admissibility of evidence undisturbed
Defense Counsel: Judge, all these issues have been unless we are ‘left with the definite and firm conviction that
raised, and one of the issues has been, Why were you the [district] court . . . committed a clear error of judgment in
the conclusion it reached upon a weighing of the relevant
factors or where it improperly applies the law or uses an
erroneous legal standard.’”
3
The Presentencing Report states that Lucas “was subjected to sexual
assaults and gang rap e while incarce rated at a men’s jail facility.”
No. 02-5399 United States v. Lucas 15 16 United States v. Lucas No. 02-5399

Ibid. (quoting United States v. Haywood, 280 F.3d 715, 720 Fed. R. Evid. 401)). In addition, the risk of undue sympathy
(6th Cir. 2002)). could have been managed to some extent by a limiting
instruction. However, the Federal Rules of Criminal
Lucas argues that the information regarding her rape in Procedure provide that an error “which does not affect
prison was crucial to her defense. Lucas contends that the substantial rights shall be disregarded.” Fed. R. Crim. P. 52.
“jury would assume she would not be unduly nervous [when To determine whether barring this evidence was harmless
arrested] as she had experienced this before,” since she had error, we consider the impact of the error upon the right of the
been incarcerated before, and thus she needed to explain her defendant to a fair trial. United States v. Layne, 192 F.3d
nervous behavior. Lucas argues that the evidence of her 556, 573 (6th Cir. 1999).
having been raped was the only information that could
effectively counteract the inferences made by the prosecutor. Lucas’s nervousness upon being faced by the police was
Lucas also contends that the information was not especially not crucial to the prosecution’s case. The physical evidence
prejudicial, other than potentially producing sympathy for of the drugs in the car she was driving, the cash in her pocket,
Lucas, which might have been minimized through a proper and inconsistencies in her testimony as compared to the
limiting instruction by the district court. statements she made to the officers the night she was arrested
on such issues as the existence of a family reunion, constitute
The government argues that Lucas’s rape in prison was not convincing evidence, so that even if barring the evidence of
relevant, since “[a] sexual assault that occurred seven years Lucas’s prior sexual assault was done in error, it was harmless
earlier than the charged drug offense does not negate any error that does not warrant the grant of a mistrial.
elements of cocaine possession.”
C. The Batson Challenge
Under the Federal Rules of Evidence, all relevant evidence
is admissible. See Fed. R. Evid. 402. However, a court may Whether a party exercised its peremptory challenges in a
exclude relevant evidence whose “probative value is discriminatory manner is a finding of fact, which we review
substantially outweighed by the danger of unfair prejudice, for clear error. United States v. Bartholomew, 310 F.3d 912,
confusion of the issues, or misleading the jury, or by 919 (6th Cir. 2002).
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403. The jury venire for this trial included only two African-
Americans and the prosecutor exercised a peremptory
The fact that Lucas was raped while in prison is technically challenge to exclude one of those jurors, Ms. Green, from the
relevant, as it suggests that her behavior, which might jury. Lucas objected to this challenge, noting that there did
otherwise be taken as evidence of guilt and was argued as not appear to be any cause for eliminating her from the jury,
such by the prosecution, was potentially explainable for other other than the fact that she was black. The prosecutor
reasons. See, e.g., Robinson v. Runyon, 149 F.3d 507, 512 represented that he was using a peremptory challenge to
(6th Cir. 1998) (noting that the rules regarding relevance are remove Ms. Green because she had given the “impression that
“quite liberal,” since “‘evidence having any tendency to make . . . she just didn’t want to be [there],” and “had indicated that
the existence of any fact that is of consequence to the she had been divorced before [–] we knew that might be a
determination of an action more probable or less probable factor.” The district court found that the Government had
than it would be without the evidence’ is relevant.” (quoting
No. 02-5399 United States v. Lucas 17 18 United States v. Lucas No. 02-5399

articulated a legitimate nondiscriminatory reason for the authority to depart downward, since there is “no duty on the
challenge and permitted Ms. Green’s removal. trial judge to state affirmatively that he knows he possesses
the power to make a downward departure, but declines to do
A Batson claim is analyzed in three steps. First, the so.” United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995).
defendant must make a prima facie showing that the
prosecutor removed a potential juror for a discriminatory Lucas argues that the district court should have granted a
reason. If the defendants make this showing, the second step downward departure in her sentence on the basis of her rape,
requires the prosecutor to articulate a nondiscriminatory and of the charity work that she did for Amnesty International
reason for the removal. Assuming that the prosecutor does and Human Rights Watch. The government contends not
so, the third step requires the trial court to determine whether only that the district court understood that it was able to grant
the opponent of the peremptory strike has proven purposeful a downward departure, but also that doing so would not have
discrimination. See, e.g., United States v. Yang, 281 F.3d been reasonable under the circumstances.
534, 548-49 (6th Cir. 2002), cert. denied, 123 S. Ct. 1015
(2003). The district court, in making this ruling, stated as follows:

In reviewing the government’s race-neutral explanation, we Now, concerning the defendant’s prior incarceration, it is
need not find that the reason given is “persuasive, or even tragic and unfortunate what happened to Ms. Lucas when
plausible.” Id. at 548. All that is necessary is that the reason she was in federal custody on her prior conviction. It is
not be inherently discriminatory. Id. at 548-49. It is, not the purpose of prisons to inflict that sort of injury and
therefore, difficult to conclude in this case that the district damage upon someone, and I regret seriously that that
court made a clear error in determining that the prosecutor’s happened to Ms. Lucas. But that’s not a basis for a
peremptory challenge was free of race bias, since there is no downward departure in this case. I’m sure it was very
other evidence of discriminatory bias and the prosecutor did distressing to the defendant, but that is not – there’s not
not exercise a peremptory challenge in order to eliminate the a showing that the mental effect of that tragic incident
other one of two black persons from the jury. United States affected her responsibility in this case or is – and it’s not
v. Sangineto-Miranda, 859 F.2d 1501, 1520-21 (6th Cir. a basis for any sort of downward departure.
1990) (holding that the final makeup of the jury is relevant to
a finding of discrimination). We therefore affirm the district Also, her work for Amnesty International and the other
court’s ruling on this issue. human rights organizations, that’s commendable. That
came about as a result of her being a victim, I suspect,
D. Downward Departure It’s good work, but it is not a basis for a downward
departure in this case.
A district court’s failure to grant a downward departure can
only be reviewed by us upon appeal if the lower court (emphasis added).
erroneously believed that it lacked authority to grant such a
departure as a matter of law. See United States v. Owusu, 199 The district court does not state that it does not have the
F.3d 329, 349 (6th Cir. 2000); United States v. Landers, 39 ability to depart downwards in general. Instead, it states that
F.3d 643, 649 (6th Cir. 1994). Furthermore, the district court there was no basis for a departure in this case. Therefore, we
need not explicitly state that it is aware of its discretionary have no jurisdiction to consider this part of the appeal.
No. 02-5399 United States v. Lucas 19 20 United States v. Lucas No. 02-5399

III ___________________
For the reasons given above, we AFFIRM Lucas’s CONCURRENCE
conviction and subsequent sentence. ___________________

ROSEN, District Judge, concurring. I agree with the
majority and join in affirming Lucas’s conviction and
sentence. I write separately, however, on the “reverse 404(b)”
issue discussed in Part II of the majority opinion as I find the
relevancy/prejudice test and rationale set out by the Third
Circuit in United States v. Stevens, 935 F.3d 1380 (3rd Cir.
1991), more compelling than the standard Rule 404(b)
analysis adopted by the majority where, as here, the prior
“bad act” is that of an absent third party, not that of the
defendant, and the evidence is not being used by a prosecutor
against a defendant, but rather is offered as exculpatory
evidence by the defendant.
Lucas’s defense at trial was that Morell Presley, not Lucas,
committed the crime with which she was charged. To support
this defense, Lucas sought to admit evidence of Presley’s
prior conviction for possession with intent to distribute
cocaine. The district court denied this request finding that it
was more prejudicial than probative. Although not
disagreeing with the district court’s finding, the majority now
holds that the straightforward relevance/prejudice analysis
under Rules 401 and 403 is inapplicable in the context of
“reverse 404(b)” evidence.1 Under the majority’s ruling here,

1
To the extent that the majority’s opinion can be read to imply that
a Rule 403 probative value/prejudice analysis is not part of a traditional
Rule 404 (b) analysis, that wo uld be an inaccura te statement of the law.
W ell-settled law clearly provides that a Rule 403 balancing is an essential
part of a Rule 40 4(b) analysis. See e.g., U nited States v. Largent, 545
F.2d 103 9, 10 43 (6th Cir.197 6), cert. denied, 429 U.S. 109 8 (1977 );
United States v. Ring, 513 F.2d 10 01, 1005 (6th Cir. 197 5); United States
v. Blan kenship, 775 F.2d 735, 739 (6th Cir. 198 5); United States v. Vance,
871 F.2d 572 , 575 ( 6th Cir. 19 89), cert. denied, 493 U.S. 933 (1989);
United States v. Blakeney, 942 F.2d 10 01, 1018 (6th Cir. 19 91), cert.
No. 02-5399 United States v. Lucas 21 22 United States v. Lucas No. 02-5399

evidence of “other crimes,” whether offered to incriminate or litigation -- in particular, the criminal defendant -- from the
to exonerate the defendant, is subject to a straightforward prejudice of the propensity/character taint danger.
application of Rule 404(b). Rule 404(b)’s basic rule of exclusion -- that evidence of other
crimes, wrongs, or acts is not admissible to prove the
Fed. R. Evid. 404(b) provides: character of a person in order to show action in conformity
therewith -- has its source in the common law. The common
Evidence of other crimes, wrongs, or acts is not law rule was that “the doing of a criminal act, not part of the
admissible to prove the character of a person in order to issue, is not admissible as evidence of the doing of the
show action in conformity therewith. It may, however, criminal act charged.” See Wigmore, Code of Evidence, 3d
be admissible for other purposes such as proof of motive, ed., p. 81. See also, United States v. Dudek, 560 6th F.2d
opportunity, intent, preparation, plan, knowledge, 1288, 1295-96 (6th Cir. 1977) (noting that Fed. R. Evid.
identity, preparation, plan, knowledge, identity, or 404(b) restates the common law). The policy underlying the
absence of mistake or accident. common law rule was the protection of the criminal
defendant. See Wright & Graham, Federal Practice and
Observing that the Rule is directed to evidence of other acts Procedure: Evidence, § 5239, pp. 436-439.
of “a person” and not only the other acts of “a defendant,” the
majority finds that the standard Rule 404(b) analysis should Rule 404(b) continues the policy of the common law. Id.
apply with respect Morell Presley’s prior conviction for at 439. This is clear from this Court’s observation in United
possession with intent to distribute cocaine. Because Lucas States v. Phillips, 599 F.2d 134 (6th Cir. 1979). In Phillips,
failed to demonstrate that Presley’s conviction could have the Court noted that Rule 404(b)’s exclusionary rule
been offered for any purpose other than to prove Presley’s addresses two main policy concerns:
propensity to commit the crime with which Lucas was
charged, the majority finds admission of the evidence to be (1) that the jury may convict a “bad man” who deserves
precluded by a straightforward application of Rule 404(b). to be punished not because he is guilty of the crime
charged but because of his prior or subsequent misdeeds;
Although at first blush, the majority’s “plain language of and (2) that the jury will infer that because the accused
the rule” approach carries some weight and finds some committed other crimes, he probably committed the
support in the case law, a closer examination of the policies crime charged.
underlying Rule 404(b) and the case law addressing the
“reverse 404(b)” evidence issue, persuades me that the Rule 599 F.2d at 136.
404(b) should not be applied in cases where, as here, the
defendant offers prior act evidence of a third party to prove Professor Weissenberger explained these policy concerns
some fact -- even propensity -- relevant to the defense. in his treatise as follows:
First, both the source and policy underlying Rule 404(b) [E]vidence of the extrinsic act is excluded because it is
demonstrate that the Rule is intended to protect a party to the thought that the jury might punish an individual for the
discrete conduct rather than weighing only the direct
evidence of the charged crime. Another policy
supporting Rule 404(b) is a recognition of the danger that
denied, 502 U .S. 1035 (199 2).
No. 02-5399 United States v. Lucas 23 24 United States v. Lucas No. 02-5399

the jury may misestimate the probative value of the 572, 582 (1st Cir. 1987), cert. denied, 484 U.S. 989; United
extrinsic act evidence in evaluating its significance . . . . States v. Aboumoussallem, 726 F.2d 906, 911-912 (2nd Cir.
The natural and inevitable tendency of the tribunal -- 1984); United States v. Stevens, 935 F.3d 1380 (3rd Cir.
whether judge or jury -- is to give excessive weight to the 1991); United States v. Krezdorn, 639 F.2d 1327, 1332-33
vicious record of crime thus exhibited, and either to (5th Cir. 1981), cert. denied, 465 U.S. 1066 (1984); United
allow it to bear too strongly on the present charge, or to States v. Morano, 697 F.2d 923, 926 (11th Cir. 1983). These
take proof of it as justifying a condemnation irrespective courts were persuaded by the policy underpinnings of Rule
of guilt of the present charge. 404(b). The Eleventh Circuit’s explanation in United States
v. Krezdorn, supra, is illustrative:
Weissenberger’s Federal Evidence, § 404.12 3d. ed. (1998).
The extrinsic acts rule is based on the fear that the jury
The foregoing discussion demonstrates that the principal will use evidence that the defendant has, at other times,
policy consideration underlying Rule 404(b)’s exclusionary committed bad acts to convict him of the charged
rule is to protect the parties in an action, and in particular, offense. Consequently, where the only purpose served
criminal defendants, from the danger of unfair prejudice. The by extrinsic offense evidence is to demonstrate the
danger of prejudice to a party -- particularly a criminal propensity of the defendant to act in a certain way, the
defendant -- however, does not exist in the context of “reverse evidence must be excluded. When, however, the extrinsic
404(b)” evidence where, as here, the defendant offers offense was not committed by the defendant, the
evidence of other crimes or bad acts of a third party evidence will not tend to show that the defendant has a
exculpatorily. criminal disposition and that he can be expected to act in
conformity therewith. When the evidence will not
Notwithstanding these policy considerations, because of the impugn the defendant’s character, the policies underlying
language used in Rule 404(b), i.e., the use of “a person” Rule 404(b) are inapplicable.
instead of “a party”, the courts have not treated “reverse
404(b)” evidence uniformly and the circuits are divided on the 639 F.2d at 1332-1333 (citations omitted).
issue of the Rule’s applicability with regard to such evidence.
The Seventh and the Ninth Circuits, like my colleagues on the Courts adopting the policy approach to Rule 404(b) found
panel in this case, have taken a “plain language” approach, that policy considerations were particularly persuasive with
and because Rule 404(b) speaks not of the parties to a case regard to evidence of acts of third parties offered
but of “a person,” have held that Rule 404(b) applies not only exculpatorily by criminal defendants. For example, in United
to the extrinsic acts of the parties but also to the acts of absent States v. Aboumoussallem, supra, a narcotics trafficking
third parties. See Agushi v. Duerr, 196 F.3d 754, 759-761 defendant sought to offer in support of his defense that he had
(7th Cir. 1999); United States v. McCourt, 925 F.2d 1229 (9th been duped into transporting the drugs by his cousins
Cir. 1991). evidence that a few months earlier, another individual had
been similarly duped by these same cousins to transport
However, the First, Second, Third, Fifth and Eleventh narcotics. The district court excluded the evidence as not
Circuits have taken the opposing view and have all relevant, more prejudicial than probative, and not admissible
determined that Rule 404(b) is not applicable to evidence of under Rule 404(b). The Second Circuit disagreed with the
acts of third parties. See United States v. Gonzalez, 825 F.2d district court’s determination that the defendant’s proffered
No. 02-5399 United States v. Lucas 25 26 United States v. Lucas No. 02-5399

evidence was not relevant and inadmissible under Rule The absence of prejudice in the context of “reverse 404(b)”
404(b), explaining: evidence was similarly emphasized by the Third Circuit in
Stevens, supra, 935 F.2d at 1404, and by the New Jersey
We believe the standard of admissibility when a Supreme Court in State v. Garfole, 76 N.J. 445, 388 A.2d 587
criminal defendant offers similar acts evidence as a (1978), which both the Stevens court and the Aboumoussallem
shield need not be as restrictive as when a prosecutor court cited with approval:
uses such evidence as a sword. The prosecution, in the
Anglo-American tradition, may not ordinarily offer . . .[O]ther-crimes evidence submitted by the
evidence of a defendant’s prior wrongdoing for the prosecution has the distinct capacity of prejudicing the
purpose of persuading the jury that the defendant has a accused. Even instructions by the trial judge may not
propensity for crime and is therefore likely to have satisfactorily insulate the defendant from the hazard of
committed the offense for which he stands trial. As Dean the jury using such evidence improperly to find him
Wigmore points out, the evidence is objectionable not guilty of the offense charged merely because they believe
because it has no appreciable probative value but because he has committed a similar offense before. . . . But when
it has too much. Presumably, the “too much” argument the defendant is offering that kind of proof exculpatorily,
means that a guilty person, and, of far more serious prejudice to the defendant is no longer a factor, and
concern, an innocent person, may be convicted primarily simple relevance to guilt or innocence should suffice as
because of the jury’s willingness to assume his present the standard of admissibility, since ordinarily, and
guilt from his prior misdeed. subject to rules of competency, an accused is entitled to
advance in his defense any evidence which may
Wigmore also identifies objections based on the risk rationally tend to refute his guilt or buttress his innocence
that the jury will convict because the defendant may not of the charge made.
have been punished for his prior offenses and the
injustice of requiring the defendant to defend against a Id., 76 N.J. at 452-53, 388 A.2d at 591 (footnote omitted).
series of accusations. These possibilities of prejudice
must be assessed even in cases where the prosecutor It was precisely because of the absence of prejudice to the
offers similar acts evidence, not to prove the character of defendant that the Third Circuit held in Stevens that
the accused, but to prove one of the permissible admissibility of “reverse 404(b)” evidence was governed by
subsidiary facts listed in Rule 404(b), such as intent or the relevancy/prejudice considerations of Fed. R. Evid. 401
plan. However, risks of prejudice are normally absent and 403:
when the defendant offers similar acts evidence of a
third party to prove some fact pertinent to the defense. We agree with the reasoning of Garfole and with its
In such cases the only issue arising under Rule 404(b) holding that the admissibility of “reverse 404(b)”
is whether the evidence is relevant to the existence or evidence depends on a straightforward balancing of the
non-existence of some fact pertinent to the defense. evidence’s probative value against considerations such as
undue waste of time and confusion of the issues.
726 F.2d at 911-912 (citations and footnotes omitted; Recasting this standard in terms of the Federal Rules of
emphasis added). Evidence, we therefore conclude that a defendant may
introduce “reverse 404(b)” evidence so long as its
No. 02-5399 United States v. Lucas 27 28 United States v. Lucas No. 02-5399

probative value under Rule 401 is not substantially Presley, whose character would be tainted, is not a party.
outweighed by Rule 403 considerations. . . . [Thus], a Therefore, the more rigidly constructed constraints of Rule
defendant must demonstrate that the “reverse 404(b)” 404(b) need not and should not apply. Instead, this should be
evidence has a tendency to negate his guilt, and that it treated as a simple relevance issue and, since the proffered
passes the Rule 403 balancing test. evidence has a tendency to negate Lucas’s guilt, it passes
Rule 401 relevancy muster.
935 F.2d at 1404-05 (footnote omitted).
This leaves only the Rule 403 part of the analysis. The
I agree with the reasoning of the Second and Third Circuits. disputed evidence is especially probative here because the
In my view, the simple fact that proffered evidence involves Defendant testified and her credibility was, in the absence of
somebody’s prior bad act -- not the defendant’s -- does not much other independent evidence showing her involvement
automatically bring it under the Rule 404(b) rubric and with the drugs, an important element for the jury to weigh.
admission standard. The entire 404(b) paradigm is intended Unlike the district court, I would have found that the
to protect a party to the litigation from the prejudice of the probative value of the evidence of Presley’s prior conviction
propensity/character taint danger. The danger of prejudice to was not substantially outweighed by the dangers of prejudice
a party, -- particularly a criminal defendant -- however, does or confusion, particularly with the availability of a limiting
not exist in the context of “reverse 404(b)” evidence; indeed, instruction, and would have admitted the evidence. But, the
it is that party which the Rule is intended to protect who is standard of review is abuse of discretion, and although I
offering the evidence. believe this presents a close question, the fact that I would
have admitted the evidence does not mean that the trial judge
I find the Third Circuit’s reasoning particularly persuasive here abused his discretion in excluding it. I am particularly
and would apply the relevancy/prejudice test established in persuaded that there is no abuse of discretion here since the
Stevens here because, where the character interests and issue is a close one and there is a split in the circuits as to the
inferences of a party are not implicated, there is simply no appropriate standard to apply to reverse 404(b) evidence --
evidentiary policy or purpose served by precluding a and, I agree with the majority that the only use of the
propensity consideration by the jury that is not already evidence here would have been for the propensity inference,
addressed by the traditional Rule 401/403 evidentiary and that is not permitted by the straightforward Rule 404(b)
analysis. (For example, any concerns about prejudice to a analysis applied by the majority and the other circuits that
party -- here, the Government -- or confusion of the issues, by have adopted this test.2 Accordingly, with respect to the
admission of the evidence would be adequately dealt with in
the context of a Rule 403 analysis.)
2
In this case, there seems little doubt that Presley’s prior I have somewhat the same view about the jail rape evidence offered
conviction for cocaine distribution would tend to negate by way of explanation for Defendant’s nervousness. The rather
Lucas’s guilt by corroborating her defense that the drugs were circum scribed, limited testimony she was allow ed to give -- that she was
afraid of going to jail (as would be most people) hardly gives the same
Presley’s, not hers, albeit through the propensity inference, texture and context to her nervous reaction as does the purported real
and there can be no serious question, therefore, that such reason (i.e., the rape experience). Indeed, taken alone, the limited “afraid
evidence is relevant. Further, the danger of character taint of going to jail” reason she was allowed to testify to seems to be a weak
posed by the propensity inference is not present here because one and the jury might well have been misled by it. But again, although
I might have allowed Defendant to testify that she was rap ed while in jail,
No. 02-5399 United States v. Lucas 29

reverse 404(b) issue, I concur in the result reached by
majority although not in its analysis. With respect to all of
the other issues presented, I join in the majority opinion.

I cannot say that the trial judge abused his discretion in keeping that
testimony out.