NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0118n.06
Case No. 13-5290
FILED
Feb 10, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
ALBERT CHALMERS, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
) OPINION
BEFORE: COLE and GRIFFIN, Circuit Judges; and PEARSON, District Judge.
COLE, Circuit Judge. Defendant-Appellant Albert Chalmers was arrested at a
Tennessee duplex after police officers executed a search warrant and recovered ninety grams of
marijuana and a firearm. Although Chalmers invoked his right to remain silent at the time of his
arrest, while in transit to the county jail, Chalmers voluntarily communicated to the officers that
he purchased the firearm and that he did not know it had been reported stolen. Chalmers moved
to suppress these statements, and he now appeals the district court’s denial of his motion. He
also argues that the district court erroneously admitted evidence of ten prior drug transactions
and a 2005 conviction for possession of marijuana with intent to distribute. We affirm
The Honorable Benita Y. Pearson, United States District Judge for the Northern District
of Ohio, sitting by designation.
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Chalmers’s convictions, holding that the district court did not abuse its discretion in admitting
his statement or testimony regarding his prior marijuana sales, and that the court’s error in
admitting evidence of Chalmers’s 2005 conviction was harmless.
I. BACKGROUND
A. Factual Background
On December 6, 2008, officers of the Memphis Police Department executed a search
warrant at a duplex residence on Dexter Avenue in Memphis. One side of the duplex was
occupied and the other vacant. Officers found three individuals in the house—Chalmers, Robert
Brinch, and Shuntaye Montgomery. Officers recovered approximately ninety grams of
marijuana and a firearm, and arrested Chalmers for possession of a firearm and possession of
marijuana with intent to distribute. When officers gave Chalmers his Miranda rights, he invoked
his right to remain silent orally and in writing, in an initialed rights waiver form. Officers
honored his request, and no further questioning occurred.
Officers Keith Crosby and Jerry Graves then transported Chalmers to the Shelby County
jail. A wire metal grate separated the front and back seats of the car, which enabled Chalmers to
hear the officers’ conversation. Upon arrival at the jail, the officers remained inside the police
cruiser to complete an arrest report and tag evidence retrieved at the residence, while Chalmers
remained in the back seat.
Officer Crosby, who was in the front passenger seat, noticed that there was no tag on the
firearm, meaning that the officers had not yet verified whether the gun had been stolen. Crosby
testified at a suppression hearing that “whoever had initially found [the gun] should have
[tagged] it, but they probably just forgot.” Conceding that this was “a mistake,” Crosby
acknowledged that background checks on weapons are usually conducted immediately after a
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weapon is secured. And Graves noted that it was standard police policy to check all firearms
before processing them inside the evidence room.
To check the weapon’s status, Crosby turned to Station B, the channel officers use to
gather information on warrants and stolen property. Crosby told dispatch that he had a “QG,”
which stands for query gun, and provided dispatch with the make, model, and serial number of
the firearm. Dispatch then asked if the officers’ radio was “secure” to confirm that Chalmers
was not in a position to harm the officers once information about the firearm was communicated.
Because Chalmers was “already handcuffed,” and “already in the squad car,” Crosby told
dispatch that the radio was indeed secure. Using another coded response, dispatch replied that
the weapon was a “Signal W,” meaning that it was wanted or stolen. Throughout the
conversation, Chalmers could hear the information transmitted through the police cruiser’s
console speaker.
At this point, neither Graves nor Crosby had spoken to Chalmers. However, both officers
testified that Chalmers initiated a conversation with them after overhearing the exchange with
dispatch, though the officers’ testimony varied slightly. Both officers agree that, upon hearing
the dispatcher report a “Signal W,” Graves asked Crosby from where the gun was stolen, and
Crosby said it was stolen from Mississippi. According to Graves’s testimony, “the defendant
scooted up to the window” separating the front and the back of the vehicle, and “that’s when the
defendant asked . . . ‘is that gun stolen?’” Graves informed Chalmers that it was “stolen out of
Mississippi.” Then Chalmers “just blurt[ed] things out,” saying “I didn’t steal that gun. I paid
$20 for that gun off the street. I didn’t steal nothing.”
Crosby generally corroborated this account, indicating that, as the information was being
transmitted from dispatch, “I remember Chalmers . . . saying he didn’t know that gun was stolen,
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he wouldn’t never have bought it had he known that gun was stolen.” In contrast to Graves,
though, Crosby testified that, to his recollection, neither he nor Officer Graves said anything to
Chalmers before he began “just blurting things out.” Crosby testified that once Chalmers began
speaking, Officer Graves “said something back to him” but he could not remember what.
Chalmers was charged with one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g), one count of possession with intent to distribute approximately
ninety grams of marijuana in violation of 21 U.S.C. § 841(a)(1), and one count of knowingly
possessing a firearm in furtherance of a drug crime in violation of 18 U.S.C. § 924(c).
B. Procedural History
Before trial, Chalmers moved to suppress his statements to Graves and Crosby, arguing
that they “were made in response to interrogation” after he invoked his Miranda rights. As
Chalmers recounts it, the officers continued to question him after he asserted his right to remain
silent, and this conduct, Chalmers argues, requires suppressing the statements he made.
1. Motion to Suppress and Hearing
Officer Crosby and Renee A. LaMondue, an employee for the Memphis Police
Department Communications Division, testified at a suppression hearing before a magistrate
judge. The magistrate judge recommended denial of Chalmers’s motion to suppress, and the
district court adopted this recommendation. The judge found certain “unrefuted details” in the
record. First, Chalmers “initiated the conversation with Officer Graves and began ‘blurting
things out”’; second, Graves told Chalmers that the gun was stolen; and third, Chalmers made
the following statements: that “he didn’t know that gun was stolen,” that he “bought the gun off
the street for $20.00,” and that “he wouldn’t never have bought it had he known that gun was
stolen.”
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The magistrate judge concluded that Crosby and Graves neither initiated the
conversation, nor expressly questioned Chalmers. Moreover, the officers did not engage “in
conduct that they should have known was reasonably likely to elicit an incriminating response.”
Classifying Chalmers’s statements as “voluntary” and “not in response to official interrogation,”
the judge found no constitutional violation.
2. Motion to Reconsider
Chalmers then filed a motion to reconsider the denial of his suppression motion,
concerned that the record before the court was incomplete without the testimony of Officer
Graves. Against the government’s wishes, the district court determined it would be beneficial
for Graves to testify because he was the officer who responded to Chalmers’s question about the
firearm. Accordingly, the district court conducted a second evidentiary hearing, where Graves
gave the account of the conversation with Chalmers.
The district court also heard arguments from Chalmers’s counsel, who argued that the
officers’ testimony conflicted as to who initiated the exchange—Chalmers or Graves. At the
first hearing, Crosby stated that Chalmers volunteered his statements after hearing the messages
from dispatch. Graves, on the other hand, said that he asked Crosby where the gun had been
stolen, and after Crosby responded, “Mississippi,” Chalmers asked if the gun had been stolen.
The district court “affirmed its previous factual finding that Defendant initiated the
conversation with officer Graves.” Following a jury trial, Chalmers was found guilty of all
charges and the district court sentenced him to 48 months of imprisonment as to Counts 1 and 2,
to run concurrently, and 60 months of imprisonment on Count 3, to run consecutively.
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3. Evidentiary Rulings During Trial
Prior to trial, the parties exchanged discovery requests pursuant to Federal Rule of
Criminal Procedure 16. Through this process, the government disclosed its plans to introduce
evidence that Chalmers engaged in marijuana sales on November 14 and 22 and December 3,
2008. The government characterized this evidence as res gestae or intrinsic evidence
“inextricably intertwined” with the events that led to Chalmers’s arrest on December 6, 2008.
Chalmers filed a motion in limine seeking to exclude this and other evidence.
After jury selection, and before the opening statement, the government notified the court
and the defense of its intention to call Shuntaye Montgomery as a lay witness. Montgomery was
present when officers searched the Dexter Avenue residence and would testify that she had been
there on ten prior occasions in order to buy marijuana from Chalmers. The government stated
that it had only recently become aware of the ten prior transactions, and argued that
Montgomery’s testimony would not be subject to Federal Rule of Evidence 404(b) because it
was intrinsic to the offense in question. Defense counsel objected because the evidence was
prejudicial and not probative of Chalmers’s intent to distribute marijuana during the incident at
issue. Ultimately, the court sustained the objection and instructed the government not to refer to
Montgomery’s account in its case-in-chief. The court noted, however, that if defense counsel
“opened the door” through cross-examination or its overall strategy, the court would consider
admitting the evidence.
At trial, several witnesses were questioned about Chalmers’s connection to the Dexter
residence. Officer Graves testified first and stated that he had engaged in surveillance of the
residence and saw Chalmers enter and leave the house repeatedly. Graves was cross-examined
as to Chalmers’s connection to the house—i.e., whether he was carrying a key to the house when
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he was arrested, whether his clothes were found at the house, and whether he appeared to be
receiving mail at the residence. Similarly, Officer Crosby, who testified next, answered
questions on cross-examination as to whether he had collected personal items from the house as
evidence. Defense counsel asked a third officer whether any investigation had been conducted to
determine who owned a puppy found at the residence and who paid the electric bill. This officer
also testified on direct examination about his familiarity with “trap houses,” or duplex buildings
in which one of the two attached units is used to sell drugs, and the other is used as a regular
residence.
The government then asked the court to reconsider its ruling regarding Montgomery’s
testimony as to the ten prior drug sales, arguing that this evidence pertained to intent and that the
defense had “opened the door” with questions designed to undermine Chalmers’s connection to
the residence. In particular, the government emphasized that within the two-week period before
Chalmers’s arrest, Montgomery purportedly bought the same drug, in the same packaging, at the
same residence—evidence that would refute the defense strategy that the prosecution could not
prove Chalmers’s intent to distribute the marijuana found at the address. Defense counsel
objected, arguing that the defense had not received proper notice and that the jury would likely
consider the previous sales as propensity evidence.
The court admitted Montgomery’s testimony, reasoning that it was intrinsic evidence
pertaining to the offense at issue, and therefore not subject to Rule 404(b). Therefore, the court
held that the government’s notice was sufficient, as it was not required to give advance notice at
all. The court further explained that the testimony would also be admissible as extrinsic
evidence even if Rule 404(b) did apply. Defense counsel requested, and was granted, a limiting
instruction regarding Montgomery’s testimony. Montgomery then testified that she met
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Chalmers about two weeks before his arrest, that Chalmers gave her his phone number, and
when she called him, they arranged to meet at the Dexter residence, where she subsequently
purchased marijuana from Chalmers on about ten occasions.
The other trial witnesses included Joe Hoing and Malinda Hilliard. Hoing, a criminal
investigator for the Drug Enforcement Administration and Shelby County, Tennessee, testified
as to the use of drug paraphernalia, packaging, and firearms in marijuana transactions. Hilliard,
a supervisor for the local utilities company, testified that Chalmers’s name was not associated
with the utilities company account for the Dexter residence, but during the government’s cross-
examination she provided the phone number associated with the account, which was the same
number Montgomery used to reach Chalmers.
Toward the end of trial, the government requested permission to offer rebuttal testimony
from Officer Errol Freeman concerning Chalmers’s 2005 conviction for possession of marijuana
with intent to distribute. The government argued that the conviction—resulting from a search
warrant executed, again, at the Dexter residence, and also involving the recovery of small,
individually wrapped quantities of marijuana—was probative of Chalmers’s intent at the time of
the 2008 arrest, as it rebutted defense counsel’s suggestion that Chalmers’s purpose for being at
the house was to use marijuana recreationally. Defense counsel countered that Rule 404(b)
excluded the conviction because it was three years old, and therefore of little relevance to intent
in the case at hand, and because admitting it would be unduly prejudicial. The court heard
arguments from both sides and ultimately admitted the evidence with a limiting instruction. The
government’s closing argument included references to Montgomery’s testimony, as well as
Chalmers’s 2005 conviction. Chalmers was convicted of all three counts.
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II. DISCUSSION
A. Chalmers’s Statements
1. Standard of Review
When examining a district court’s denial of a motion to suppress, we review the court’s
factual findings for clear error and its legal determinations de novo. See United States v. Pelayo-
Landero, 285 F.3d 491, 494 (6th Cir. 2002). “The district court’s factual findings are overturned
only if the reviewing court has the definite and firm conviction that a mistake has been
committed.” Id. at 494–95 (internal quotation marks and citations omitted). If a district court
has denied a motion to suppress, we review the record “in the light most likely to support the
district court’s decision.” United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009). However,
whether Chalmers initiated a discussion with the officers after invoking his right to remain silent
“is a legal question we review de novo.” United States v. Whaley, 13 F.3d 963, 968 (6th Cir.
1994).
Several facts are uncontested. The parties agree that Chalmers invoked his right to
remain silent and that he was in custody when officers transported him to the county jail. The
parties also agree that the officers did not expressly question Chalmers. Therefore, in the
absence of actual questioning, we must determine whether the officers engaged in the functional
equivalent of express questioning.
We start with Miranda v. Arizona, in which the Supreme Court articulated several
“procedural safeguards . . . to secure the privilege against self-incrimination.” 384 U.S. 436, 444
(1966). When a suspect is in custody and asks to speak with a lawyer, the police must stop
further interrogation until an attorney is present. Id. at 474. If a suspect has invoked his right to
remain silent or his right to counsel, officers must “scrupulously” honor the suspect’s wishes. Id.
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at 479. However, statements uttered “freely and voluntarily” are admissible in evidence; indeed,
Miranda makes clear that “[v]olunteered statements of any kind are not barred by the Fifth
Amendment.” Id. at 478.
Post-Miranda decisions have clarified that the protections in that case are not confined to
instances of “express questioning.” Rhode Island v. Innis, 446 U.S. 291, 298–99 (1980). The
Miranda Court was troubled by the “interrogation atmosphere” and the potential “evils it can
bring.” Miranda, 384 U.S. at 456. Miranda recognized that “coercion can be mental as well as
physical,” id. at 448, and was concerned that “the interplay of interrogation and custody” might
induce self-incrimination. Innis, 446 U.S. at 299.
2. Functional Equivalent of Express Questioning
The safeguards provided in Miranda apply to express questioning and, relevant here, to
“its functional equivalent.” Innis, 446 U.S. at 301. The Supreme Court has defined the
functional equivalent of express questioning as “any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Pennsylvania v. Muniz,
496 U.S. 582, 600–01 (1990).
Rhode Island v. Innis applies the definition of functional equivalency in a factual context
nearly indistinguishable from the present case. In Innis, officers arrested a suspect for armed
robbery; however, at the time of his arrest, officers were unable to locate the shotgun allegedly
used in the robbery. 446 U.S. at 294. After the suspect was Mirandized, he indicated that he
wished to speak with a lawyer. Id. Three officers transported the suspect to the police station in
a four-door police car, with a wire screen mesh separating the front and back seats. Id. While in
transit, officers mentioned to one another that a school for handicapped children was located in
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the same area where the suspect had been arrested, and that it may be wise to continue to search
for the shotgun. Id. at 295. At this point, the suspect interrupted the officers’ conversation and
asked them to “turn the car around so he could show them where the gun was located.” Id.
Returning to the scene of the arrest, the officers re-Mirandized the suspect, but he “wanted to get
the gun out of the way” because there was a school nearby. Id.
Because the suspect’s statements in Innis were spontaneous, there was no reason for the
officers to believe that the suspect would make an unsolicited statement after overhearing their
exchange. Id. at 303. The Court acknowledged that the officers were engaged in a conversation,
“to which no response . . . was invited,” and held that they did not violate the suspect’s Miranda
rights. Id. at 302. The Court further explained:
A practice that the police should know is reasonably likely to evoke an
incriminating response from a suspect thus amounts to interrogation. But, since
the police surely cannot be held accountable for the unforeseeable results of their
words or actions, the definition of interrogation can extend only to words or
actions on the part of police officers that they should have known were reasonably
likely to elicit an incriminating response.
Id. at 301–02 (emphasis omitted).
Edwards v. Arizona is also instructive. There, the Supreme Court held that if a suspect
invokes his Miranda rights, he is not subject to “further interrogation . . . unless the accused
himself initiates further communication, exchanges, or conversations with the police.” Edwards
v. Arizona, 451 U.S. 477, 484–85 (1981). This rule, called an “Edwards initiation,” offers “clear
and unequivocal guidelines to the law enforcement profession.” Minnick v. Mississippi, 498 U.S.
146, 151 (1990). An Edwards initiation occurs when, “without influence by the authorities, the
suspect shows a willingness and a desire to talk generally about his case.” Whaley, 13 F.3d at
967. Expressing some limitations on this general proposition, we noted that there may be
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circumstances where “a bare inquiry by either a defendant or by a police officer should not be
held to ‘initiate’ any conversation or dialogue.” Id. at 966–67. Specifically, statements about
“routine incidents of the custodial relationship, will not generally ‘initiate’ a conversation” under
Edwards. Id. It is not the case that every question a suspect asks demonstrates a desire to start a
conversation with police. See United States v. Soto, 953 F.2d 263, 265 (6th Cir. 1992)
(requesting to keep belongings separate from those of co-defendant is not initiation); Jacobs v.
Singletary, 952 F.2d 1282, 1294 (11th Cir. 1992) (asking officer, “Where are my children?” is
not initiation); Christopher v. Florida, 824 F.2d 836, 845–46 (11th Cir. 1987) (asking question in
response to police officer’s interrogation not initiation) cert. denied, 484 U.S. 1077 (1988).
Chalmers, like the suspect in Innis, was not expressly interrogated or subject to the
functional equivalent of express questioning because he initiated the conversation with the
officers by “blurt[ing]” out that he purchased the gun off the street for $20. His statements were
“not merely a necessary inquiry arising out of the incidents of the custodial relationship” and
suggest that Chalmers wanted to talk about the current arrest. Whaley, 13 F.3d at 967 (citation
omitted). As the district court correctly held, the “unrefuted evidence . . . remains that the
defendant himself initiated the conversation.” Although Chalmers claims the officers’ testimony
is inconsistent, by both accounts, Chalmers started the conversation and his voluntary
communication cannot form the basis of a Miranda violation. While Chalmers concedes that the
officers did not question him directly, his position is that their exchanges with dispatch should
not have occurred in his presence, as these communications were “designed to elicit an
incriminating response.” The record does not support Chalmers’s argument.
The officers’ entire conversation, partly conducted using coded signals, was predicated
on ensuring that the evidence recovered during the search warrant could be processed. While
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Chalmers overheard their exchange, as in Innis, “no response from the [suspect] was invited,”
and there was no reason why Crosby or Graves “should have known that their conversation was
reasonably likely to elicit an incriminating response.” 446 U.S. at 302. Additionally, there is no
evidence indicating that the officers tried to solicit incriminating statements from Chalmers,
using the types of psychological ploys that concerned the Miranda Court. Crosby and Graves
were merely completing paperwork before processing evidence when Chalmers asked whether
the gun was stolen. The critical point is that Chalmers’s comments were not made at the
insistence of the authorities. See Arizona v. Mauro, 481 U.S. 520, 529–30 (1987) (“In deciding
whether particular police conduct is interrogation, we must remember the purpose behind our
decisions in Miranda and Edwards: preventing government officials from using the coercive
nature of confinement to extract confessions that would not be given in an unrestrained
environment.”).
Chalmers characterizes the officers’ conduct as “deliberate, reckless, or at least grossly
negligent” because, in his view, it was improper for Graves and Crosby to run a background
check on the firearm in his presence. But the officers were not attempting to bait Chalmers into
making an incriminating statement, as the record establishes that conducting a background check
on the weapon was part of their police work and attendant to Chalmers’s arrest.
Viewing the evidence in a light most likely to support the district court’s decision, we
conclude that the officers did not interrogate Chalmers when he uttered statements about the gun.
We affirm the district court’s denial of Chalmers’s motion to suppress.
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B. Prior Acts Evidence
Chalmers next challenges the admissibility of prior acts evidence, specifically
Montgomery’s testimony regarding the prior marijuana purchases from Chalmers in the two-
week period before Chalmers’s arrest, and Officer Freeman’s testimony as to Chalmers’s 2005
conviction for possession with intent to distribute. The Federal Rules of Evidence prohibit the
admission of evidence of an individual’s prior crimes or other actions if used “to show that on a
particular occasion the person acted in accordance with” their past behaviors. Fed. R. Evid.
404(b). However, such evidence may be used to prove motive, intent, and identity, and for
purposes other than establishing propensity. Id. When evidence is subject to 404(b), the party
offering the evidence must give “reasonable notice of the general nature” of the evidence, id.,
and the court must ensure that the evidence is admissible for a proper purpose and is not unduly
prejudicial. See United States v. Mack, 258 F.3d 548, 552–53 (6th Cir. 2001). But not all prior-
acts evidence implicates Rule 404(b): “intrinsic acts” that are “part of a single criminal episode”
or “a continuing pattern of illegal activity” are admissible notwithstanding Rule 404(b). United
States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995). Therefore, we must first determine
whether the evidence Chalmers challenges is subject to Rule 404(b), and if so, whether the rule’s
requirements are met.
1. Standard of Review
Generally, a district court’s evidentiary rulings are reviewed for abuse of discretion. See,
e.g., United States v. Saadey, 393 F.3d 669, 679 (6th Cir. 2005). Abuse of discretion occurs
when “the reviewing court is firmly convinced that a mistake has been made.” United States v.
Allen, 619 F.3d 518, 523 (6th Cir. 2010). However, there is some disagreement in this circuit as
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to the standard of review for evidentiary questions under Federal Rule of Evidence 404(b). The
admissibility of evidence under Rule 404(b) is subject to a three-part analysis:
First, the district court must decide whether there is sufficient evidence that the
other act in question actually occurred. Second, if so, the district court must
decide whether the evidence of the other act is probative of a material issue other
than character. Third, if [so], the district court must decide whether the probative
value of the evidence is substantially outweighed by its potential prejudicial
prejudice.
United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012) (quoting United States v. Jenkins, 345
F.3d 928, 937 (6th Cir. 2003)).
In light of this approach, some panels have applied a different standard of review to each
part of the three-step inquiry. Compare Clay, 667 F.3d at 693 (reviewing for clear error the
determination that other acts occurred; reviewing de novo the legal determination as to whether
the evidence was admissible for a permissible purpose; and reviewing for abuse of discretion the
question of probative value versus prejudice) with United States v. Ray, __ F. App’x __, No. 12-
6180, 2013 WL 6670785 (6th Cir. Dec. 18, 2013) (reviewing entirety of Rule 404(b) analysis for
abuse of discretion); see also United States v. McDaniel, 398 F.3d 540, 544 (6th Cir. 2005)
(reviewing “de novo the court’s conclusions of law, e.g., the decision that certain evidence
constitutes hearsay,” because it is an abuse of discretion to make errors of law). As addressed
below, the facts of this case do not require us to resolve this debate.
Rule 404(b) also contains a notice requirement. We review for abuse of discretion the
court’s determination as to whether the prosecution gave proper notice under Rule 404(b). See
United States v. Moore, 495 F. App’x 680, 684 (6th Cir. 2012).
Evidentiary rulings are subject to harmless error review, meaning that a conviction will
not be overturned unless the error affected the defendant’s substantial rights. United States v.
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DeSantis, 134 F.3d 760, 769 (6th Cir. 1998). “[A]n error in admitting evidence is presumed to
be reversible unless [the court] conclude[s], with fair assurance . . . that the judgment was not
substantially swayed by [the] error.” United States v. Davis, 547 F.3d 520, 528 (6th Cir. 2008)
(internal quotation marks omitted).
2. Prior Drug Transactions
On appeal, Chalmers argues that Montgomery’s testimony should have been excluded for
the following reasons: (1) Rule 404(b) applied to the evidence because it was not intrinsic to the
offense, (2) the defense did not receive sufficient notice, and (3) the probative value of the
evidence was substantially outweighed by the danger of unfair prejudice. The government
counters that the testimony was intrinsic evidence and therefore not subject to Rule 404(b)’s
restrictions, and also notes that even if 404(b) applies, the government used it to show intent and
identity, in conformity with the rule. Additionally, the government argues that it gave the
defense notice before trial. The district court held that Rule 404(b) did not apply because the
evidence was intrinsic, in other words, that it was indicative of “a continuing pattern of illegal
activity.”
Definitions of so-called “intrinsic” or “background” evidence abound. The narrower
articulations posit that evidence of prior acts is intrinsic only if it is “part of a single criminal
episode” or “part of a continuing pattern of illegal activity.” Barnes, 49 F.3d at 1149. Broader
definitions encompass evidence that “is a prelude to the charged offense, is directly probative of
the charged offense . . . or completes the story of the charged offense.” United States v. Hardy,
228 F.3d 745, 748 (6th Cir. 2000). Commentators have criticized these more expansive
definitions as unwisely permitting litigants and courts to avoid the precautions that Rule 404(b)
imposes. See 1 Mueller & Kirkpatrick, Federal Evidence § 4.33 (4th ed. 2009).
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Cases with analogous facts suggest that Montgomery’s testimony was intrinsic. For
example, in United States v. Gonzalez, the defendant—who was, like Chalmers, charged with
possession with intent to distribute—argued that Rule 404(b) applied to a co-conspirator’s
testimony that, on previous occasions, he had paid Gonzalez to drive him to particular locations,
where he then sold cocaine. See 501 F.3d 630, 633 (6th Cir. 2007). Gonzalez’s attorney
defended the case by suggesting that, on the date of the arrest, his client did not own the car, was
unaware that there were drugs in the car, and had no knowledge that he was facilitating a drug
transaction. Id. Applying plain error review, id. at 638, the court noted that it did not need to
rely on a “broad, narrative-based definition” of Rule 404(b) to conclude that the evidence
“establishe[d] a continuing pattern of illegal activity that is intrinsic to the charged offense,” id.
at 640. Similarly, this court has held that testimony regarding a prior, uncharged exchange of
illegal drugs was admissible as intrinsic evidence where a witness testified that the defendant had
been “shorted” during the first exchange, and that the subsequent exchange, which gave rise to
the criminal charges, was intended to make up the difference. See Barnes, 49 F.3d at 1146.
Conversely, evidence is considered extrinsic—and Rule 404(b) accordingly applies—if there is a
lack of “temporal proximity, causal relationship, or spatial connections . . . between the other
acts and the charged offense.” Hardy, 228 F.3d at 748–50 (finding error, though harmless,
where court admitted evidence that a witness and the defendant had engaged in drug transactions
six years before the charged offense).
We conclude that the district court did not abuse its discretion in ruling that
Montgomery’s testimony was not subject to Rule 404(b). See Flagg v. City of Detroit, 715 F.3d
165, 175–76 (reviewing for abuse of discretion district court’s determination that evidence was
not intrinsic); United States v. Toney, 161 F.3d 404, 414 (6th Cir. 1998). In doing so, we avoid
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using an expansive, “completes the story” definition of intrinsic or background evidence, and we
emphasize the close temporal, spatial, and causal proximity between the ten prior drug deals and
the circumstances surrounding Chalmers’s arrest. See Hardy, 228 F.3d at 748–50. Specifically,
the prior drug deals took place within the two-week period immediately preceding Chalmers’s
arrest; occurred in the same residence where he was arrested and where the drugs leading to his
arrest were found; involved the same type of drug, in similar packaging; and involved
Montgomery, who was also present in the residence at the time of Chalmers’s arrest. See id.
Given these facts, the prior acts establish a pattern of drug deals occurring in the Dexter
residence, which in turn sheds light on Chalmers’s relationship to the residence and to the drugs
found there. See id.; Gonzalez, 501 F.3d at 640. We note that slightly different facts—
establishing a weaker temporal, spatial, or causal link—might well lead us to the opposite
conclusion. In this instance, however, the district court did not abuse its discretion in admitting
the evidence without engaging in a Rule 404(b) analysis.
3. Prior Conviction
Lastly, we consider the admissibility of Officer Freeman’s testimony regarding
Chalmers’s 2005 conviction for possession of marijuana with intent to distribute. The
government argued that the evidence was admissible to show that the marijuana recovered
during execution of the search warrant was not intended for personal use, as the prior arrest also
occurred in the Dexter residence, where police again found individually wrapped baggies of
marijuana. Chalmers’s counsel objected that the evidence’s probative value was slight and that it
would be unduly prejudicial. The court considered the three Rule 404(b) factors—whether the
prior act actually occurred, whether it was admissible for a proper purpose, and whether it was
unduly prejudicial—and decided to admit the evidence.
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Chalmers argues, first, that he was given insufficient notice of the government’s plan to
introduce the evidence, and second, that the evidence’s probative value was substantially
outweighed by the risk of unfair prejudice. Chalmers’s attorney did not object to a lack of notice
at trial, so we review the district court’s (implicit) determination that notice was sufficient under
the plain error standard. See Moore, 495 F. App’x at 684. Here, the government disclosed
Chalmers’s conviction during discovery and sought the court’s permission to admit that evidence
during trial, but before placing Officer Freeman on the stand. Additionally, the government
argued—and the court agreed—that Freeman’s testimony would be relevant to rebut the theory
defense counsel had pursued throughout trial. Under these circumstances, we decline to find that
the court clearly erred in excusing the lack of pretrial notice. Fed. R. Evid. 404(b)(2).
Regardless of whether we apply abuse of discretion or de novo review, Chalmers’s 2005
conviction is at least minimally relevant to intent to distribute. Chalmers also placed intent at
issue during the course of the trial. See United States v. Bell, 516 F.3d 432, 441–43 (6th Cir.
2008) This court has found evidence regarding prior drug distributions “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.” Id. at 443 (citations omitted). Such
is the case here.
The last step of the Rule 404(b) inquiry directs us to determine whether the district court
abused its discretion in concluding that the evidence was not unduly prejudicial. Federal Rule of
Evidence 403 permits a court to exclude evidence “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” When a court finds that evidence of a prior act
is admissible under Rule 404(b), it must then undertake this balancing inquiry. See, e.g., Clay,
667 F.3d at 693 (“Third . . . the district court must decide whether the probative value of the
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evidence is substantially outweighed by its potential prejudicial effect.”). In doing so, the court
should consider the similarities between the prior act and the present offense, the likelihood that
the jury will draw impermissible conclusions from the evidence, and the government’s ability to
prove intent through other means. See Bell, 516 F.3d at 445; United States v. Haywood, 280
F.3d 715, 723 (6th Cir. 2002).
Although Rule 403 balancing is “highly discretionary,” Bell, 516 F.3d at 445, the district
court abused its discretion in admitting evidence of this conviction. Officer Freeman’s testimony
was introduced near the end of trial. At that point, jurors had already heard ample testimony
establishing intent to distribute, including Montgomery’s testimony that she had come to the
Dexter residence to purchase marijuana from Chalmers at the time of his arrest, just as she had
done ten previous times over the past fourteen days. Montgomery’s testimony firmly established
intent and was significantly more probative than evidence of the 2005 conviction, given the close
temporal proximity between the ten sales and Chalmers’s arrest. Moreover, jurors had also
already heard that Chalmers’s phone number was associated with the house’s utility company
account, that the residence fit the description of a “trap house” used to sell drugs, and that the
drugs recovered during execution of the search warrant were packaged in such a way as to
indicate that they were intended for distribution. Simply put, the evidence of Chalmers’s 2005
conviction was superfluous—it had minimal value in light of the other evidence presented at
trial, but increased the risk that jurors might convict Chalmers for the wrong reasons. The
district court should have excluded it.
Nevertheless, we do not vacate a conviction if the trial court’s error was harmless. An
error in admitting Rule 404(b) evidence is presumed to be reversible “unless we can say, ‘with
fair assurance,’” and upon considering all that occurred at trial, ‘“that the judgment was not
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substantially swayed by the error.’” Haywood, 280 F.3d at 724 (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946)). Harmless error typically applies where there is overwhelming
admissible evidence of a defendant’s guilt. See United States v. Mack, 729 F.3d 594, 603 (6th
Cir. 2013). As addressed above, the evidence against Chalmers was compelling, particularly
Montgomery’s testimony. While jurors could have drawn problematic inferences from
Chalmers’s prior conviction, the weight of the improperly admitted evidence was slight in the
context of the trial as a whole. We doubt that the jury was substantially swayed by Officer
Freeman’s testimony, given all the evidence that had already been presented. Accordingly, the
admission of this evidence constituted harmless error.
III. CONCLUSION
For the foregoing reasons, Chalmers’s convictions are hereby affirmed.
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