United States v. Harold Hall, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4720

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

HAROLD HALL, JR.

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:14-cr-00629-JFA-1)

Argued: January 24, 2017 Decided: June 1, 2017

Before WILKINSON, WYNN, and FLOYD, Circuit Judges.

Reversed, vacated, and remanded by published opinion. Judge Wynn wrote the opinion,
in which Judge Floyd joined. Judge Wilkinson wrote a dissenting opinion.

ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Benjamin Neale Garner, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles,
United States Attorney, William K. Witherspoon, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
WYNN, Circuit Judge:
A jury convicted Defendant Harold Hall, Jr., of possession with intent to distribute

marijuana, possession of a firearm by a convicted felon, and possession of a firearm in

furtherance of a drug trafficking crime based on evidence obtained during law enforcement

officers’ search of a Columbia, South Carolina, home in which Defendant resided along

with, he maintains, three other individuals. The search revealed approximately six

kilograms of marijuana and three firearms inside a deadbolt-locked bedroom in the home.

To establish Defendant’s possession of the guns and marijuana, the government

relied on a constructive possession theory, under which it had to prove that Defendant

“kn[e]w[] of [the contraband’s] presence and ha[d] the power to exercise dominion and

control over it.” United States v. Schocket, 753 F.2d 336, 340 (4th Cir. 1985) (emphasis

added). At trial, the government presented no evidence directly linking Defendant to the

guns and marijuana or to the locked bedroom in which the contraband was found. The

guns and marijuana did not include Defendant’s fingerprints, nor was there evidence that

he had ever used any of the three guns or the marijuana. Defendant did not have a key to

the bedroom’s lock. And the remaining items found in the locked bedroom provided no

evidence that Defendant had ever been inside that room.

How then did the government establish, beyond a reasonable doubt, Defendant’s

constructive possession of the contraband in the locked bedroom? The government

successfully sought admission of Defendant’s prior convictions—one for possession of

marijuana and three for possession with intent to distribute marijuana—under Federal Rule

of Evidence 404(b)(1). The district court concluded that these convictions were admissible

2
to establish that Defendant (1) knew, based on his familiarity with the smell of marijuana,

that the house contained marijuana; and (2) had the specific intent to distribute the

marijuana.

Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.” Rule 404(b)’s prohibition is not based on

the notion that “character is irrelevant; on the contrary, it is said to weigh too much with

the jury and to so overpersuade them as to prejudge one with a bad general record and deny

him a fair opportunity to defend against a particular charge.” Michelson v. United States,

335 U.S. 469, 475–76 (1948) (footnote omitted).

To ensure that defendants are protected from the prejudicial effect of their prior

convictions, the government must establish that evidence of a defendant’s prior bad acts is

admissible for a proper, non-propensity purpose, such as “proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Fed. R. Evid. 404(b)(2). In meeting this burden, the government must prove that the

evidence is “relevant to an issue, such as an element of an offense, and [is] not . . . offered

to establish the general character of the defendant.” United States v. Queen, 132 F.3d 991,

997 (4th Cir. 1997). “The more closely that the prior act is related to the charged conduct

in time, pattern, or state of mind, the greater the potential relevance of the prior act.” United

States v. McBride, 676 F.3d 385, 397 (4th Cir. 2012). The government also must

demonstrate that the evidence is “necessary in the sense that it is probative of an essential

claim or an element of the offense,” that the evidence is “reliable,” and that “the evidence’s

3
probative value [is] not . . . substantially outweighed by confusion or unfair prejudice.”

Queen, 132 F.3d at 997.

The district court in this case concluded that the government—which simply

provided the district court with the name and date of the convictions, but offered no

information regarding the facts and circumstances giving rise to those convictions—met

its burden to establish that Defendant’s prior convictions were admissible under Rule

404(b) as to Defendant’s knowledge and intent. In doing so, the district court abused its

discretion. In particular, because the government proffered no evidence of any connection

between Defendant’s prior possession conviction and the instant possession with intent to

distribute charge, that possession conviction was not relevant to whether Defendant

intended to distribute the marijuana found inside the locked bedroom. Likewise, the

absence of factual similarity and temporal proximity between Defendant’s prior possession

with intent to distribute convictions and the conduct alleged in the present case renders

those prior convictions irrelevant to establishing Defendant’s intent to distribute the

marijuana in the locked bedroom. And although Defendant’s prior marijuana possession

and distribution convictions were relevant to establishing Defendant’s knowledge of the

smell of marijuana, the minimal probative value of admitting those convictions for that

purpose was substantially outweighed by the likelihood of unfair prejudice, particularly in

light of (1) Defendant’s decision not to contest his knowledge of the smell of marijuana or

its presence in the house; and (2) the absence of evidence linking Defendant to the

contraband in the locked bedroom.

4
 The dissenting opinion would reduce the government’s burden under Rule 404(b),

allowing admission of evidence that a defendant committed a prior drug offense to establish

the defendant’s knowledge and intent to commit a later drug offense, even absent any

linkage between the prior offense and the charged conduct. But it is well established that

the “fact that a defendant may have been involved in drug activity in the past does not in

and of itself provide a sufficient nexus to the charged conduct where the prior activity is

not related in time, manner, place, or pattern of conduct.” United States v. Johnson, 617

F.3d 286, 297 (4th Cir. 2010). In accordance with that principle, we have held on numerous

occasions that a district court abuses its discretion by admitting evidence of a defendant’s

prior drug convictions when those convictions are removed in time from the charged

offense and the government fails to establish a sufficient link between those prior

convictions and the events giving rise to the charge at issue. This precedent requires that

we reach the same conclusion here. 1

We turn first to the issue at hand, after which we devote a separate section to

responding to our dissenting colleague’s protestations.

I.

1
We acknowledge the dissenting opinion’s view that we in the majority are
demonstrating “the encroachment of overactive appellate judging on the roles of district
courts, juries, and advocates in the conduct of a trial.” Post at 1. But we remind our good
colleague that appellate judges do not come to the court as tabulae rasa. See Republican
Party of Minn. v. White, 536 U.S. 765, 777–78 (2002) (Scalia, J.). They come, for example,
with varying degrees of prior experience in trial advocacy and trial judging. That diversity
of prior experience is often helpful in the collective decision-making process of appellate
judges.

5
 A.

On June 25, 2012, a confidential informant working on behalf of several law

enforcement agencies completed a probable cause purchase of marijuana at a residence on

Steadham Road in Columbia, South Carolina (the “residence,” or the “Steadham Road

residence”). The confidential informant did not purchase the marijuana from Defendant.

Rather, the informant bought the marijuana from an individual referred to only as “Jeezy,”

who, the informant testified, was not Defendant. J.A. 394–95. Following the purchase,

law enforcement officers obtained a warrant to search the residence.

On June 27, 2012, law enforcement officers went to the Steadham Road residence

to execute the search warrant. Minutes before conducting the search, Officer Brien Gwyn

saw two men leave the residence and drive away in a blue Ford SUV. Officer Gwyn

followed the SUV and conducted a traffic stop several blocks away. Defendant and his

cousin, Gerald Hall (“Gerald”), were in the SUV. When questioned, Defendant told

Officer Gwyn that he lived at the Steadham Road residence by himself. Gerald was later

charged with simple possession of marijuana arising from the officers’ search of the SUV.

Although Gerald’s arrest report indicated that he had no permanent address, Gerald

testified at trial that he had lived at the Steadham Road residence for several years,

including at the time of these events.

While Officer Gwyn conducted the traffic stop, other law enforcement officers

searched the Steadham Road residence. Immediately upon entering the residence, the

officers smelled an overwhelming odor of unburnt marijuana. In conducting their search,

the officers found marijuana residue on the kitchen table. Inside the kitchen, the officers

6
found a utility bill for the residence in Defendant’s name, as well as a piece of mail

addressed to Defendant. In the living room, the officers found several computers that

Defendant used for his work as a truck dispatcher, one of which had a digital scale on top.

And inside a closet in the back-left bedroom, officers found a shirt containing Defendant’s

photo identification and $1,000 in cash.

Defendant’s uncle, Russell Sulton, testified that he lived in one of the remaining

three bedrooms, and Sulton’s brother, Robert Hendrix, testified that he lived in another of

the bedrooms. Like Defendant and Gerald, neither Sulton nor Hendrix owned the house.

The residence’s final bedroom, at the back-right side of the house, was secured with a

deadbolt lock. After forcing entry into that bedroom, officers found approximately six

kilograms of marijuana, packaging material, and three guns, at least one of which was

stolen. Defendant’s fingerprints were not on any of this contraband. The government also

did not introduce evidence that Defendant had previously used or been linked to the guns,

or that Defendant had used or sold the marijuana. And none of the other evidence found

inside the locked bedroom pointed to Defendant as the bedroom’s occupant or as someone

who previously had accessed the room.

Upon learning that officers had entered the Steadham Road residence and

discovered the marijuana and guns, Officer Gwyn took Defendant and Gerald into custody

and drove them to the residence in his patrol car. Officers later arrested Defendant in

connection with the contraband found inside the deadbolt-locked bedroom.

B.

7
 A federal grand jury indicted Defendant for (1) knowingly possessing a firearm after

being convicted of a crime punishable by a term of imprisonment exceeding one year, in

violation of 18 U.S.C. § 922(g)(1); (2) knowingly or intentionally possessing with intent

to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); and (3) knowingly

using and carrying firearms during and in relation to, and possessing firearms in

furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Because

Defendant did not actually possess the guns or marijuana, the government pursued a

constructive possession theory, under which the jury could find that Defendant possessed

the contraband in the deadbolt-locked bedroom only if it concluded beyond a reasonable

doubt that Defendant “[1] kn[e]w[] of [the contraband’s] presence and [2] ha[d] the power

to exercise dominion and control over it.” Schocket, 753 F.2d at 340.

Prior to Defendant’s jury trial, the government sought leave to introduce, as part of

its case-in-chief, evidence of four of Defendant’s prior convictions: a 2006 conviction for

possession of marijuana (the “prior possession conviction”); a 2004 conviction for

possession with intent to distribute marijuana; and two 2007 convictions for possession

with intent to distribute marijuana (collectively, the “prior possession with intent to

distribute convictions”). The government provided the court with the date of each

conviction and the statutes Defendant had been convicted of violating, but it did not offer

the court any information regarding the circumstances giving rise to the convictions.

Emphasizing only the “overwhelming” odor of marijuana at the Steadham Road residence

at the time of the search, the government argued that Defendant’s prior marijuana

convictions were relevant and admissible under Rule 404(b) to establish his knowledge

8
absent mistake that there was marijuana inside the residence, where Defendant had been

just minutes before officers executed the search warrant. J.A. 22–23.

Defendant objected to admission of the prior convictions to establish knowledge of

the contraband, arguing that the convictions were “not 404(b) material” because Defendant

was “not charged with smelling marijuana,” and “[h]e certainly didn’t smell the guns.”

J.A. 24–25. Defendant further emphasized that the prior convictions had no relevance to

the only contested issue in the case—whether Defendant had the power to exercise

dominion and control over the contraband in the locked bedroom. Initially, the district

court expressed reluctance to admit the prior convictions, questioning the government’s

theory that the smell of marijuana inside the Steadham Road residence, by itself, rendered

Defendant’s prior drug convictions admissible under Rule 404(b) to establish Defendant’s

knowledge. But after the government provided the district court with this Court’s

unpublished decision in United States v. White, 519 F. App’x 797 (4th Cir. 2013), the

district court concluded that White compelled admission of Defendant’s prior convictions.

Although the district court admitted the prior convictions, the court reaffirmed its belief

that the framers of Rule 404(b) did not intend to render such convictions admissible. J.A.

62. (“I don’t like [White]. I’m not sure Rule 404(b) was drafted to be that broadly

construed, but that is the way it has been construed, and I am bound by my oath to follow

the Fourth Circuit law.”).

Notwithstanding that the government argued only that the prior convictions were

admissible to establish Defendant’s knowledge of the marijuana, the district court admitted

the prior convictions to establish both Defendant’s knowledge of and intent to distribute

9
the marijuana. To that end, at the conclusion of its case-in-chief, the government read

Defendant’s prior convictions into evidence before the jury and stated that the convictions

were “relevant to [Defendant’s] knowledge and intent regarding the crimes which we’re

here for today.” J.A. 64. The district court then provided a limiting instruction, informing

the jury that Defendant’s prior convictions were “being offered only on the issue of

knowledge and intent” and could not “be accepted . . . to show that someone is a bad person

. . . [or] had a propensity to commit an offense.” J.A. 64–65. The court’s instruction did

not limit the jury’s use of Defendant’s prior convictions to the possession with intent to

distribute charge. And the absence of other evidence establishing that Defendant had

knowledge of the guns inside the locked bedroom indicates that the government—and the

jury—relied upon Defendant’s prior marijuana convictions to prove that Defendant also

knew about the guns.

Yet in presenting his defense at trial, Defendant did not contest his knowledge of

marijuana generally or his knowledge that the Steadham Road residence contained

marijuana or guns. Nor did Defendant contest that the marijuana in the locked bedroom

was intended for distribution. Rather, Defendant argued that he did not possess the

marijuana or guns in the locked bedroom because he lacked the power to exercise dominion

and control over them. In particular, the defense sought to establish that Gerald, not

Defendant, possessed the contraband. In support of this defense, Defendant called Gerald

to the witness stand and elicited testimony that Gerald, not Defendant, resided in and had

sole access to the deadbolt-locked bedroom; that Defendant did not live in the residence

but stopped by occasionally to dispatch trucks for his work; that Gerald alone possessed

10
the marijuana and guns in the locked bedroom; and that Defendant had no interest in the

marijuana or guns. Defendant also elicited testimony from Sulton and Hendrix, who

corroborated Gerald’s testimony that Defendant did not live in the residence and that

Gerald occupied the locked bedroom. 2

Notwithstanding that the district court admitted Defendant’s prior marijuana

convictions solely for the purposes of establishing Defendant’s knowledge and intent to

distribute, during closing arguments the government used Defendant’s prior convictions

for a third purpose: to discredit Gerald’s testimony. Specifically, the government appealed

to Defendant’s prior convictions to suggest that Gerald—who, unlike Defendant, had no

prior felony convictions—lied about solely possessing the guns and drugs because he was

likely, according to the government, to receive probation if he were convicted for the

offenses related to the contraband, whereas Defendant was at risk of receiving a substantial

sentence due to his prior felony convictions. J.A. 143–44 (“[Defendant] knew that he

would have been facing substantial[ly] more time in jail [than Gerald] who has no prior

2
The dissenting opinion characterizes this defense as a “cock-and-bull” story, citing
evidence presented by the government that tended to establish that Defendant did live at
the Steadham Road residence. Post at 5. But, as discussed in greater detail below, that
Defendant lived at the residence does not prove that he possessed the contraband in the
back-right bedroom. Infra Part IV.B, VII.A; United States v. Blue, 808 F.3d 226, 233–34
(4th Cir. 2015). Nor does the dissenting opinion’s characterization of the government’s
case as open and shut—a characterization even the government seems not to have agreed
with during trial, see infra Part VIII.B—affect our conclusion that the district court
committed legal error in admitting evidence of Defendant’s prior convictions and, for that
reason, abused its discretion. Koon v. United States, 518 U.S. 81, 100 (1996) (“A district
court by definition abuses its discretion when it makes an error of law.”).

11
convictions. Gerald probably would have gotten probation. So Gerald became the fall guy

for the family.”).

The jury convicted Defendant of all three indicted offenses, and the district court

sentenced Defendant to 360 months in prison. Defendant timely appealed. On appeal,

Defendant argues that the district court (1) reversibly erred in admitting evidence of

Defendant’s four prior marijuana convictions; (2) improperly sentenced Defendant as a

career offender; (3) unconstitutionally increased Defendant’s maximum sentence based on

his prior convictions, which were not proven to the jury beyond a reasonable doubt; and

(4) erroneously imposed a substantively unreasonable sentence.

For the reasons that follow, we conclude that the district court abused its discretion

in allowing the government to introduce evidence of Defendant’s prior possession and

possession with intent to distribute convictions under Federal Rule of Evidence 404(b) and

that this error irreparably tainted each of Defendant’s three convictions. Because this error

requires that Defendant’s convictions be vacated, we decline to rule on the remaining three

issues raised on appeal.

II.

We generally review a district court’s decision to admit a defendant’s prior

convictions under Rule 404(b) for abuse of discretion. See McBride, 676 F.3d at 395.

“Where a party, however, fails to object to the admission of evidence . . . we review the

admission for plain error.” United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996) (applying

plain error review to an unpreserved challenge to admission of prior bad act evidence under

Rule 404(b)). The government argues that Defendant failed to properly preserve his

12
argument against admission of the prior convictions because his objections before the trial

court lacked sufficient specificity. Accordingly, the government maintains that we must

apply “the more rigorous plain error standard.” Appellee’s Br. at 16. This argument

borders on frivolous. 3

“To preserve a claim of error under Federal Rule of Criminal Procedure 51(b), a

party must only ‘inform[] the court . . . of the action the party wishes the court to take.’”

United States v. Woods, 710 F.3d 195, 200 n.2 (4th Cir. 2013) (alterations in original). In

the case at bar, Defendant objected to the admission of his prior marijuana convictions as

“not 404(b) material” immediately after the government notified Defendant and the district

court that it intended to introduce those prior convictions. J.A. 25. Defendant’s counsel

explained that the prior convictions were of minimal relevance to establishing Defendant’s

knowledge of the marijuana because “he’s not charged with smelling marijuana. He’s

charged with the marijuana that was in that back right room. . . . [and] whether or not he

knew it was in there, whether he had exercised dominion or control over it.” J.A. 24.

Defendant’s counsel further argued that, based on the government’s theory, the prior

convictions could not be relevant to the firearm charges because “[Defendant] certainly

didn’t smell the guns.” J.A. 24. These arguments not only “inform[ed] the court” that

Defendant did not believe admission of the prior convictions was proper to establish

3
Meritless preservation and waiver arguments waste the Court’s time and unfairly
prejudice opposing parties, who must devote limited briefing space to refuting unsupported
arguments. See Cornes v. Munoz, 724 F.2d 61, 63 n.3 (7th Cir. 1983); see also Smith v.
Robbins, 528 U.S. 259, 281 (2000) (explaining that counsel has an “ethical duty as an
officer of the court . . . not to present frivolous arguments”).

13
knowledge under Rule 404(b), but they also “inform[ed] the court” of Defendant’s position

that the convictions were not relevant to—much less probative of—the only contested issue

in the case: whether Defendant had the power to exercise dominion and control over the

contraband in the locked bedroom. See Fed. R. Crim. P. 51(b). The district court

recognized as much, stating that it “would overrule [Defendant’s] objection and allow the

404(b) evidence.” J.A. 62 (emphasis added).

Defendant’s arguments, therefore, were more than sufficient to preserve his

objection to the district court’s admission of his prior convictions under Rule 404(b). But

even if Defendant had not cited Rule 404(b) by name—which he did—his arguments would

have been adequate to preserve his objection because they were “sufficiently specific to

bring into focus the precise nature of the alleged error.” United States v. Doswell, 670 F.3d

526, 530 (4th Cir. 2012) (internal quotation marks omitted). Accordingly, we now review

for abuse of discretion the district court’s admission of Defendant’s prior marijuana

convictions under Rule 404(b) to establish knowledge and intent.

III.

Federal Rule of Evidence 404(b)(1) provides that “[e]vidence of a crime, wrong, or

other act is not admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” The government, therefore,

“may not introduce evidence of extrinsic offenses to demonstrate the defendant’s

propensity to commit unlawful acts or to prove that the defendant committed the crime

with which he is presently charged.” United States v. Powers, 59 F.3d 1460, 1464 (4th Cir.

1995) (internal quotation marks omitted).

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 Rule 404(b)’s “purposeful exclusion of such prior ‘bad act’ evidence is not

grounded in its irrelevance.” McBride, 676 F.3d at 395. “Instead, the general

inadmissibility of such evidence is based on the danger that this type of evidence will

overly influence the finders of fact and thereby persuade them ‘to prejudge one with a bad

general record and deny him a fair opportunity to defend against a particular charge.’” Id.

(quoting Michelson, 335 U.S. at 475–76). Additionally, Rule 404(b)’s general exclusion

of evidence of a defendant’s prior bad acts “reflects the revered and longstanding policy

that, under our system of justice, an accused is tried for what he did, not who he is.” United

States v. Caldwell, 760 F.3d 267, 276 (3d Cir. 2014). To that end, Rule 404(b) “protects

against juries trying defendants for prior acts rather than charged acts.” Queen, 132 F.3d

at 996 (emphasis added).

Although “other acts” evidence is not admissible to prove criminal propensity, such

evidence “may be admissible for another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Fed. R. Evid. 404(b)(2). As the plain language of the rule suggests, this list of proper

purposes is not exhaustive. Queen, 132 F.3d at 994–95. Yet to constitute a proper purpose,

“there must be some articulable inference for the jury to draw from the previous offense

other than that the defendant had [a] bad character and therefore more probably had the

intent to commit the crime he is now charged with.” United States v. Lynn, 856 F.2d 430,

436 (1st Cir. 1988).

The government bears the burden of establishing that evidence of a defendant’s

prior bad acts is admissible for a proper purpose. United States v. Youts, 229 F.3d 1312,

15
1317 (10th Cir. 2000); United States v. Arambula-Ruiz, 987 F.2d 599, 602–03 (9th Cir.

1993). To satisfy this burden, the government must identify each proper purpose for which

it will use the other acts evidence and explain how that evidence “fits into a chain of

inferences—a chain that connects the evidence to [each] proper purpose, no link of which

is a forbidden propensity inference.” United States v. Davis, 726 F.3d 434, 442 (3d Cir.

2013). Even if the government provides a proper purpose for admitting prior bad act

evidence, such evidence is still inadmissible if its likely prejudicial effect substantially

outweighs its probative value. McBride, 676 F.3d at 396.

In Queen, we set forth a four-step test for determining when evidence of prior bad

acts is admissible under Rule 404(b). 132 F.3d at 997. First, “[t]he evidence must be

relevant to an issue, such as an element of an offense, and must not be offered to establish

the general character of the defendant.” Id. Second, “[t]he act must be necessary in the

sense that it is probative of an essential claim or an element of the offense.” Id. Third,

“[t]he evidence must be reliable.” 4 Id. And fourth, “the evidence’s probative value must

not be substantially outweighed by confusion or unfair prejudice in the sense that it tends

to subordinate reason to emotion in the factfinding process.” Id.

Applying this test, we first consider whether the district court abused its discretion

in holding that Defendant’s prior conviction for simple possession of marijuana was

admissible under Rule 404(b). Then, we address whether the district court abused its

4
Defendant does not challenge the reliability of his prior convictions.

16
discretion in admitting Defendant’s three prior convictions for possession with intent to

distribute marijuana.

IV.

A.

We first address whether Defendant’s prior possession conviction was admissible

to prove Defendant’s intent to distribute the marijuana found inside the locked bedroom of

the Steadham Road residence. The first step of the Queen test provides that other acts

“evidence must be relevant to an issue, such as an element of an offense, and must not be

offered to establish the general character of the defendant.” Id. “For evidence to be

relevant, it must be ‘sufficiently related to the charged offense.’” McBride, 676 F.3d at

397 (quoting United States v. Rawle, 845 F.2d 1244, 1247 n.3 (4th Cir. 1988)). “The more

closely that the prior act is related to the charged conduct in time, pattern, or state of mind,

the greater the potential relevance of the prior act.” Id.; see also Queen, 132 F.3d at 997

(“[T]he more similar the prior act is (in terms of physical similarity or mental state) to the

act being proved, the more relevant it becomes.”). In the context of prior drug offenses, in

particular, we have held that the “fact that a defendant may have been involved in drug

activity in the past does not in and of itself provide a sufficient nexus to the charged conduct

where the prior activity is not related in time, manner, place, or pattern of conduct.”

Johnson, 617 F.3d at 297 (emphasis added).

The government makes no effort to argue that the district court properly admitted

Defendant’s prior marijuana possession conviction as relevant to his intent to distribute

marijuana. For good reason. “Possession and distribution are distinct acts—far more

17
people use drugs than sell them—and these acts have different purposes and risks.” Davis,

726 F.3d at 444; see also United States v. Ono, 918 F.2d 1462, 1465 (9th Cir. 1990) (“Acts

related to the personal use of a controlled substance are of a wholly different order than

acts involving the distribution of a controlled substance.”). Fundamentally, “[o]ne activity

involves the personal abuse of [illegal drugs],” whereas the other involves “the

implementation of a commercial activity for profit.” Ono, 918 F.2d at 1465. “[I]f the act

of possessing or using marijuana is to be admissible to prove intent to transport and sell

marijuana, . . . then there is no reason why participation in any drug-related crime could

not be used to prove intent to engage in any other drug-related crime, or why any robbery

could not be used to prove the requisite intent with respect to any other robbery. A rule

allowing such evidence would eviscerate almost entirely the character evidence rule.”

David P. Leonard, The New Wigmore, A Treatise on Evidence: Evidence of Other

Misconduct & Similar Events § 7.5.2.

Moreover, the mens rea requirements for possession and distribution offenses are

fundamentally different. For example, the Georgia possession statute under which

Defendant was convicted prohibits “any person to purchase, possess, or have under his or

her control any controlled substance”—regardless of what the person intends to do with

the controlled substance. Ga. Code Ann. § 16-13-30(a). By contrast, to convict Defendant

of possession with intent to distribute marijuana, the government had to prove Defendant’s

specific intent to distribute the marijuana found inside the locked bedroom. See 21 U.S.C.

§ 841(a)(1), (b)(1)(D). Because Defendant’s prior possession conviction did not require a

finding of specific intent, the only relevance that conviction could have to his intent to

18
distribute marijuana on a later, unrelated occasion is that it tends to suggest that Defendant

is, in general, more likely to distribute drugs because he was involved with drugs in the

past. This is precisely the propensity inference Rule 404(b) prohibits. See Johnson, 617

F.3d at 297.

For this reason, several of our sister circuits have held that evidence of a defendant’s

prior conviction for possession of drugs for personal use is inadmissible under Rule 404(b)

to prove a defendant’s intent to distribute a controlled substance on a later, unrelated

occasion. See, e.g., Davis, 726 F.3d at 445 (“[A] possession conviction is inadmissible to

prove intent to distribute.”); United States v. Haywood, 280 F.3d 715, 721 (6th Cir. 2002)

(finding no “compelling rationale” for the idea that “a defendant’s possession of drugs for

personal use is relevant to prove his intent to distribute drugs found in his possession on

another occasion”); Ono, 918 F.2d at 1465 (discussing the fundamental differences

between possession and distribution crimes); United States v. Monzon, 869 F.2d 338, 344

(7th Cir. 1989) (finding that a defendant’s possession of marijuana was not relevant to his

intent to distribute). But see, e.g., United States v. Butler, 102 F.3d 1191, 1196 (11th Cir.

1997) (“[T]he logical extension of our current jurisprudence is to admit evidence of prior

personal drug use to prove intent in a subsequent prosecution for distribution of

narcotics.”).

We agree, and therefore hold, that a defendant’s prior conviction for possession of

a drug is not relevant to establishing the defendant’s intent to distribute a drug at a later

time, absent some additional connection between the prior offense and the charged offense.

Because the government proffered no evidence of any connection between Defendant’s

19
prior possession conviction and the instant possession with intent to distribute charge, we

find that Defendant’s prior possession conviction is not relevant to whether Defendant

intended to distribute the marijuana found inside the locked bedroom of the Steadham Road

residence.

B.

Next, we consider whether the district court abused its discretion in permitting the

government to introduce Defendant’s prior possession conviction to establish Defendant’s

knowledge of the marijuana inside the locked bedroom. Again, we first must determine

whether Defendant’s prior possession conviction was relevant, i.e., “related in time,

manner, place, or pattern of conduct,” to his knowledge that the marijuana was inside the

locked bedroom. Johnson, 617 F.3d at 297.

A defendant’s prior conviction for possession of a particular drug will not always

be relevant to establishing the defendant’s knowledge of “the same drug when prepared for

distribution.” Davis, 726 F.3d at 443. For example, distribution quantities of a drug are

often packaged differently than quantities possessed for personal use, rendering a

defendant’s knowledge of the packaging of a personal use amount of a drug irrelevant to

his knowledge of how a distribution amount of the same drug might be packaged. Id.

Likewise, a single drug may be sold in multiple forms, rendering a defendant’s past

possession of one form of the drug irrelevant to his knowledge of a different form of the

same drug. Id.

Nonetheless, a prior possession conviction may be relevant to establishing a

defendant’s knowledge of the same type of drug for purposes of a later offense if the

20
particular characteristic of the drug used to establish knowledge does not materially vary

based on quantity, form, or packaging, for example. Of particular relevance here, an

individual’s prior experience with the smell of unburnt marijuana, as evidenced by a prior

marijuana-related conviction, is relevant to establishing that the defendant knew, based on

smell, of the presence of unburnt marijuana on a later occasion. See United States v. Jara,

474 F.3d 1018, 1022–23 (8th Cir. 2007) (holding that defendant’s prior experience with

marijuana was admissible to establish that he knew, based on smell, that the car he was

driving contained marijuana); United States v. Espinoza-Durazo, 253 F. App’x 677, 680

(9th Cir. 2007) (“[Defendant]’s prior experience with marijuana makes it unlikely that she

could have sat in the car with 147 pounds of it without recognizing the smell, and therefore

the prior act tends to prove knowledge.”). Accordingly, we conclude that Defendant’s prior

possession conviction was relevant to his knowledge that the Steadham Road residence

contained marijuana.

Although we conclude that Defendant’s prior possession conviction was relevant to

establishing his knowledge that marijuana was inside the residence, the prejudicial effect

of admitting that prior conviction for this purpose far outweighed the evidence’s probative

value, rendering the conviction inadmissible under Queen’s fourth prong. That vital prong

requires the trial judge to “balance the relevance of the proposed use of the evidence to the

case—and the evidence’s relevance to that proof—against the high risk that the evidence

will also tend to establish bad character and propensity to commit the charged crime.”

United States v. Miller, 673 F.3d 688, 697 (7th Cir. 2012). Absent such balancing of the

prior bad act evidence’s probative value against its prejudicial effect, “the list of exceptions

21
in Rule 404(b), if applied mechanically, would overwhelm the central principle. Almost

any bad act evidence simultaneously condemns by besmirching character and by showing

one or more of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident, not to mention the other purposes of which this list is meant

to be illustrative.” Id. at 696–97 (internal quotation marks omitted).

Defendant’s prior possession conviction had minimal probative value for several

reasons. First, “the probative value of prior act evidence is diminished where the defendant

does not contest the fact for which supporting evidence has been offered.” Caldwell, 760

F.3d at 283 (emphasis added); Miller, 673 F.3d at 697 (finding that, although “intent is at

least formally relevant to all specific intent crimes” and, accordingly, at issue in every case

in which the defendant pleads not guilty, “intent becomes more relevant, and evidence

tending to prove intent becomes more probative, when the defense actually works to deny

intent, joining the issue by contesting it” (emphasis added)). Indeed, “[t]he prejudicial

effect of extrinsic evidence substantially outweighs its probative value when the relevant

exception [under which the government seeks admission of an extrinsic offense] is

uncontested, because the incremental probative value of the extrinsic offense is

inconsequential when compared to its prejudice.” United States v. Kinchen, 729 F.3d 466,

473 (5th Cir. 2013) (emphasis added). Here, Defendant did not contest that he knew, based

on his knowledge of the odor of marijuana or otherwise, that there was marijuana inside

the Steadham Road residence. Accordingly, evidence of Defendant’s knowledge of the

odor of marijuana, as established by his prior possession conviction, was of “minimal”

probative value. Caldwell, 760 F.3d at 283–84.

22
 Second, even if Defendant had contested his knowledge of the odor of unburnt

marijuana or of the presence of marijuana inside the residence, Defendant’s knowledge of

the odor of marijuana was minimally probative of the crucial issue regarding his

knowledge: whether Defendant knew that there was marijuana inside the locked bedroom.

Under the government’s constructive possession theory—requiring proof both of

Defendant’s knowledge of the contraband and his ability to exercise dominion and control

over it—such localized knowledge would have been particularly relevant. But the officers’

undisputed testimony at trial was that they smelled a strong odor of unburnt marijuana upon

entering the Steadham Road residence and that this odor pervaded the house. The

government did not offer any evidence that the odor of marijuana specifically emanated

from the locked bedroom. To the contrary, the government argued that Defendant’s prior

marijuana conviction was relevant to establishing that he knew “there [wa]s marijuana in

his house.” J.A. 23 (emphasis added). That the officers found marijuana residue on the

dining room table further reinforced that the odor of marijuana was not localized to the

locked bedroom. Accordingly, Defendant’s knowledge that the Steadham Road residence

smelled of marijuana did not speak to whether he knew that the locked bedroom, in

particular, contained marijuana—much less guns—further diminishing the probative value

of Defendant’s prior possession conviction to prove knowledge within the government’s

constructive possession theory.

On the other side of the scale, admission of Defendant’s prior possession conviction

was highly prejudicial. As the Advisory Committee’s note to Rule 404 warns:

23
 Character evidence is of slight probative value and may be very prejudicial.
It tends to distract the trier of fact from the main question of what actually
happened on the particular occasion. It subtly permits the trier of fact to
reward the good man and to punish the bad man because of their respective
characters despite what the evidence in the case shows actually happened.

Fed. R. Evid. 404(a) advisory committee’s note to 1972 proposed rule. And “[t]he

prejudicial impact is only heightened when character evidence is admitted in the form of a

prior criminal conviction,” Caldwell, 760 F.3d at 284, as was the case here.

Additionally, the dearth of evidence supporting the only contested issue in

Defendant’s case—whether Defendant had the power to exercise dominion and control

over the marijuana and guns in the locked bedroom—enhanced the prejudicial effect of

admitting Defendant’s prior possession conviction. When other crimes evidence is of

“marginal probative value” and other evidence supporting a drug trafficking defendant’s

guilt is “scarc[e] and equivocal,” there is “an unacceptable risk that the jury w[ill] assume

that [the defendant] ha[s] a propensity for [drug] trafficking and convict on that basis

alone.” United States v. Aguilar-Aranceta, 58 F.3d 796, 802 (1st Cir. 1995); see also

United States v. Sumner, 119 F.3d 658, 661 (8th Cir. 1997) (holding that the district court

abused its discretion in admitting evidence of the defendant’s other crimes because the

“overall weakness of the government’s case” increased the prejudice associated with

introduction of such evidence); United States v. Rhodes, 886 F.2d 375, 380 (D.C. Cir. 1989)

(holding that the district court plainly erred in admitting prior bad acts evidence because

the “weakness of the government’s other evidence” enhanced the other acts’ prejudicial

effect).

24
 Here, the government did not introduce any evidence establishing that Defendant

could exercise dominion and control over the contraband in the locked bedroom—the only

disputed issue at trial. In particular, the government did not introduce evidence that

Defendant had a key to the deadbolt lock on the bedroom door or had previously accessed

the bedroom through other means on any occasion. It did not introduce evidence that

Defendant’s fingerprints were on any surface in the locked bedroom, let alone on the

marijuana or guns. And it did not introduce evidence that Defendant owned or had used

any of the other objects found inside the locked bedroom.

In possession cases involving similar facts, this Court and other circuits have found

that the government failed to introduce sufficient evidence to support a finding that a

defendant constructively possessed contraband. See, e.g., United States v. Blue, 808 F.3d

226, 233–34 (4th Cir. 2015) (finding that the government failed to provide sufficient

evidence to prove that the defendant exercised dominion and control over heroin in a

footstool inside an apartment when the government’s evidence established only that the

defendant had a key to the apartment and spent five minutes inside it); United States v.

Brown, 3 F.3d 673, 680–81 (3d Cir. 1993) (holding that the government failed to produce

sufficient evidence to establish that the defendant constructively possessed drugs found in

a house in which she lived, at least some of the time, when the defendant’s shorts and

switchblade were found in a room in which no drugs were found, her fingerprints were not

found on the drugs, and she did not own the house); United States v. Zeigler, 994 F.2d 845,

847–48 (D.C. Cir. 1993) (holding that the government failed to introduce sufficient

evidence to establish the defendant’s constructive possession of contraband in the locked

25
laundry room of her boyfriend’s apartment, where the defendant had been staying “off and

on for two or three months,” when there was no evidence she had ever been inside the

laundry room or knew the combination to the lock). Due to the lack of evidence connecting

Defendant to the drugs inside the locked bedroom and the minimal probative value of the

prior possession conviction to establish Defendant’s knowledge that the bedroom

contained marijuana, there is a strong and unacceptable likelihood that the jury concluded

Defendant “had a propensity for [drug] trafficking and convict[ed] on that basis alone”—

the precise result Rule 404(b) forbids. See Aguilar-Aranceta, 58 F.3d at 802.

Given that Defendant’s prior conviction for possession of marijuana was highly

prejudicial and minimally probative of Defendant’s knowledge of the marijuana inside the

locked bedroom, we conclude that the district court abused its discretion in finding that the

probative value of admitting that conviction outweighed its prejudicial effect. Lynn, 856

F.2d at 436 n.13 (“[A]dmission [of a prior conviction] is not warranted when, in the context

of the government’s case and appellant’s defense the relevance is minimal and the tendency

to draw the propensity inference great.”).

*****

In sum, Defendant’s prior possession conviction is not relevant to Defendant’s

intent to distribute the marijuana found inside the Steadham Road residence. And the

prejudice associated with admission of Defendant’s prior possession conviction far

outweighs the conviction’s minimal probative value in establishing Defendant’s

knowledge of the smell of marijuana or the presence of marijuana inside the locked

bedroom—as well as its even more attenuated probative value in proving Defendant’s

26
knowledge of the presence of guns inside the same bedroom. Accordingly, we conclude

that the district court abused its discretion by allowing the government to introduce

evidence of Defendant’s prior possession conviction under Rule 404(b).

V.

Having concluded that the district court abused its discretion in admitting

Defendant’s possession conviction, we now must determine whether the district court

properly admitted Defendant’s three possession with intent to distribute convictions.

Again, we apply the Queen framework to determine whether those convictions are

admissible under Rule 404(b) to establish either Defendant’s knowledge or his intent to

distribute the marijuana found inside the locked bedroom of the Steadham Road residence.

A.

First, we must determine whether Defendant’s prior possession with intent to

distribute convictions were admissible to establish his intent to distribute the marijuana in

the locked bedroom. Again, as Queen instructs, we begin by assessing whether those

convictions are relevant to Defendant’s intent to distribute the marijuana. 132 F.3d at 997.

In assessing relevance, we consider how closely “the prior act is related to the charged

conduct in time, pattern, or state of mind.” McBride, 676 F.3d at 397.

The government did not put forward any evidence before or during trial that

Defendant’s prior intent to distribute convictions were related in manner or arose from the

same “pattern of conduct” as the instant offense. Johnson, 617 F.3d at 297. Although three

of the prior offenses involved the same crime—possession with intent to distribute—and

the same drug—marijuana—their similarities end there. None of the prior convictions

27
involved the Steadham Road residence. Nor did any of the prior convictions involve

storing marijuana in a deadbolt-locked bedroom. Nor did Defendant allegedly purchase

the marijuana in the locked bedroom from the same supplier from whom he purchased the

marijuana at issue in any of the three prior convictions. At bottom, unlike drug cases in

which we have found prior drug offenses admissible under Rule 404(b), the government

failed to establish any “linkage between the prior-act evidence and the drug crimes charged

in the indictment.” McBride, 676 F.3d at 397.

On the contrary, there are material differences between the circumstances giving

rise to Defendant’s previous possession with intent to distribute convictions and the

conduct at issue here, particularly regarding the only contested issue in this case—

Defendant’s power to exercise dominion and control over the marijuana in the locked

bedroom. In one case, for example, law enforcement officers found marijuana in

Defendant’s pocket while executing a warrant search of his residence and, in the course of

the same search, discovered distribution quantities of marijuana in his bathtub and dresser

drawer. In another case, Defendant did not contest his ownership of the marijuana giving

rise to the offense. And in the last case, officers found marijuana in a plastic bag that they

observed Defendant throw out of the window of his car. That, as these facts establish,

Defendant’s prior drug offenses are not “related” in pattern or manner of conduct to the

instant possession with intent to distribute charge weighs against concluding that those

28
prior convictions are “sufficiently related to the charged offense to render [them]

adequately relevant to prove intent or knowledge.” 5 Johnson, 617 F.3d at 298.

These material differences between the prior possession with intent to distribute

convictions and the charged offense set this case apart from cases in which we have

concluded that a defendant’s prior convictions for possession with intent to distribute are

admissible under Rule 404(b) to establish intent to distribute on a later occasion. For

instance, in United States v. Rawle, 845 F.2d 1244 (4th Cir. 1988), we upheld the district

court’s admission of testimony regarding the defendant’s prior bad acts as a transporter of

controlled substances because of striking similarities between those prior acts and the

events giving rise to the allegations at trial. Namely, the other acts testimony revealed that

the defendant “dr[o]ve tractor[ trailer]s laden with marijuana” and used “false bills of

lading” as part of an interstate drug trafficking conspiracy that culminated in his prior

convictions. 845 F.2d at 1247–48. Noting that the facts underlying the charged offense

involved the defendant allegedly cooperating with family members to transport marijuana

across state lines using tractor trailers and false bills of lading, we concluded that “there

was sufficient similarity between these prior bad acts and the alleged acts of the defendant

in the case at bar” to render the prior acts relevant to proving the charged offense. Id. at

1248. Likewise, in United States v. Brewer, 1 F.3d 1430 (4th Cir. 1993), we held that the

5
The facts surrounding Defendant’s prior convictions are recounted in the
presentence report prepared for and introduced during Defendant’s sentencing hearing.
The government failed to provide the facts surrounding Defendant’s prior convictions
when it sought admission of those convictions under Rule 404(b).

29
district court properly admitted testimony regarding the defendant’s involvement in a series

of drug transactions in Washington, D.C., to establish the defendant’s intent to distribute

drugs in Virginia. Id. at 1436. In reaching this conclusion, we emphasized that the

Washington, D.C., drug sales involved the same co-conspirators and occurred at the same

time as the conduct at issue, creating a link sufficient to render the prior acts relevant to

proving the intent element of the charged offense. Id.

The significant passage of time between Defendant’s three prior possession with

intent to distribute convictions and the charged offense further undermines any relevance

Defendant’s prior convictions may have. The most recent of those three convictions

occurred five years before the events giving rise to the instant case. When, as here, the

government fails to establish any connection or similarity between a prior drug conviction

and a charged drug offense, we have held that a district court abused its discretion in

admitting evidence regarding the defendant’s participation in drug-related activities as little

as one-and-a-half years prior to the events giving rise to the charge at issue. McBride, 676

F.3d at 395, 397 (stating that, for purposes of Rule 404(b), one-and-a-half years constitutes

a “significant passage of time” between an unrelated prior offense and a charged offense);

see also Johnson, 617 F.3d at 298 (characterizing an unrelated prior offense occurring

nearly five years before the offense at issue as “remote in time” and holding that the district

court abused its discretion in admitting evidence of that prior offense).

The lack of factual similarity and temporal proximity between Defendant’s prior

possession with intent to distribute convictions and the conduct alleged in the present case

renders the prior convictions irrelevant and, therefore, inadmissible under the first prong

30
of Queen. This conclusion is consistent with several of our previous decisions holding that

a district court abused its discretion in concluding that a prior offense was relevant and

admissible under Rule 404(b). In United States v. Johnson, 617 F.3d 286 (4th Cir. 2010),

for example, we concluded that the district court abused its discretion in holding that the

defendant’s alleged sale of drugs in 1998 was relevant to his intent to conspire to sell drugs

in 2003. 617 F.3d at 298. In reaching this conclusion, we emphasized the lack of temporal

proximity between the alleged prior bad act and the conduct at issue, as well as the absence

of a “nexus” between the two offenses—such as overlapping co-conspirators, parallels in

the manner in which the sales were effected, or similarities in how the defendant acquired

the drugs that he was alleged to have sold. Id. at 297–98. Because the prior bad acts were

not “sufficiently related to the charged offense” to be relevant, we held that the district

court had “administered impermissibly [Rule 404(b)] ‘to convict a defendant on the basis

of bad character, or to convict him for prior acts, or to try him by ambush.’” Id. (quoting

Queen, 132 F.3d at 997).

Similarly, in United States v. McBride, 676 F.3d 385 (4th Cir. 2012), we held that

the district court abused its discretion by admitting testimony regarding a defendant’s prior

involvement with crack distribution to establish his intent to distribute cocaine

approximately one-and-a-half years later. 676 F.3d at 397. In reaching this conclusion,

we emphasized that the defendant’s alleged prior distribution activity occurred at a

different time and in a different location, and “did not arise out of the same series of

transactions as the charged offense.” Id. at 396–97. Due to the lack of “linkage” between

the prior bad act and the charged offense, we concluded that the “evidence [wa]s relevant

31
primarily to establish [the defendant]’s character as a ‘drug dealer’”—“the very type of

evidence that the limitation imposed by Rule 404(b) was designed to exclude.” Id. at 398.

And in United States v. Hernandez, 975 F.2d 1035 (4th Cir. 1992), we held that a

district court abused its discretion by admitting testimony regarding the defendant’s alleged

participation in a crack distribution conspiracy in New York to establish her intent to

conspire to distribute crack in Washington, D.C., at a later time and with different co-

conspirators. 975 F.2d at 1039–40. We explained that the defendant’s alleged involvement

in the prior crack conspiracy was irrelevant because, due to the lack of factual similarity

between that prior involvement and the charged offense, defendant’s participation in a

previous, unrelated conspiracy “did not establish anything about her conduct or mental

state during the course of the conspiracy alleged in the indictment.” Id. at 1039 (emphasis

added). “The testimony did not show that [the defendant] intended to engage in crack

distribution in Washington or that she intended to continue to deal in crack after leaving

New York. Nor did it show that she intended to engage in crack distribution with [a

different co-conspirator], or even that she intended to engage in future crack dealing at all,”

we explained. Id.

As in Johnson, McBride, and Hernandez, the government in this case failed to

establish any “linkage” between Defendant’s prior possession with intent to distribute

convictions and the present offense. The conduct giving rise to Defendant’s prior

convictions occurred more than five years before and in different locations from the present

offense. And the government failed to provide any evidence suggesting—much less

demonstrating—a substantive relationship between the circumstances surrounding the

32
prior convictions and the charged offense, such as similar methods of storing, packaging,

or distributing the marijuana; parallels in the manner in which Defendant acquired the

marijuana; or identical customers or co-conspirators involved in distributing the marijuana.

Rather, the government introduced the fact of Defendant’s prior possession with intent to

distribute convictions without providing any evidence linking the prior convictions to the

charged offense. The government did so notwithstanding that it bears the burden of

establishing the admissibility of Rule 404(b) evidence, see supra Part III, and that the fact

of a defendant’s past involvement in drug activity “does not in and of itself provide a

sufficient nexus to the charged conduct where the prior activity is not related in time,

manner, place, or pattern of conduct.” Johnson, 617 F.3d at 297 (emphasis added).

Given the government’s failure to provide the district court with any evidence

linking the circumstances giving rise to Defendant’s prior convictions to the conduct at

issue in the charged offense, the district court could not have assessed or determined—as

Johnson, McBride, and Hernandez require—whether there was a sufficient “linkage” or

“nexus” between the prior offenses and the charged conduct to render the prior convictions

relevant and warrant their admission under Rule 404(b) to establish Defendant’s intent.

The district court’s failure to apply the proper legal standard for determining whether a

prior bad act is admissible under Rule 404(b) is, by definition, an abuse of discretion.

Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 200 (4th Cir. 2000) (holding that

the district court’s failure to apply the appropriate legal standard amounted to an abuse of

discretion).

33
 We therefore conclude that Defendant’s prior possession with intent to distribute

convictions were relevant to Defendant’s intent to distribute the marijuana inside the

Steadham Road residence only if we credit the idea that Defendant’s prior involvement

with marijuana renders “[t]he charged acts . . . more plausible.” Hernandez, 975 F.2d at

1040. “But this, once again, is precisely the criminal propensity inference Rule 404(b) is

designed to forbid.” Id. Accordingly, we hold that these prior convictions were not

relevant to proving Defendant’s intent to distribute and, thus, fail on the first Queen prong.

B.

Finally, we consider whether the trial court abused its discretion in finding that

Defendant’s prior possession with intent to distribute convictions were admissible under

Rule 404(b) to establish his knowledge of the marijuana inside the locked bedroom at the

Steadham Road residence.

Under Queen, we first determine whether Defendant’s prior possession with intent

to distribute convictions were relevant to his knowledge of the marijuana inside the locked

bedroom. 132 F.3d at 997. As was the case with Defendant’s prior possession conviction,

we conclude that these prior convictions are relevant to his knowledge that the Steadham

Road residence contained marijuana. See supra Part IV.B. In particular, Defendant’s past

experience with distribution amounts of marijuana makes it more likely that Defendant

knew, based on the pervasive smell of marijuana, that there was marijuana inside the

residence.

But, also like his prior possession conviction, Defendant’s prior convictions for

possession with intent to distribute marijuana are of minimal probative value because

34
Defendant did not contest his knowledge of marijuana and because the government did not

introduce evidence suggesting that Defendant’s knowledge of marijuana would have

permitted him to identify the smell as emanating from the deadbolt-locked bedroom. See

supra Part IV.B. And, as was the case with his prior possession conviction, Defendant’s

prior possession with intent to distribute convictions were highly prejudicial because of the

absence of other evidence supporting the charges against Defendant and the resulting

increased risk that the jury would use the prior convictions for an improper purpose—to

punish Defendant for his prior bad acts, rather than the charged conduct. See supra Part

IV.B.

Additionally, Defendant’s prior possession with intent to distribute convictions

were arguably even more prejudicial than his prior possession conviction because

“prejudicial impact is only heightened when character evidence is admitted in the form of

a prior criminal conviction, especially a prior conviction for the same crime as that being

tried.” Caldwell, 760 F.3d at 284. Given that Defendant’s prior convictions for possession

with intent to distribute marijuana were highly prejudicial and had minimal probative value

regarding Defendant’s knowledge of the marijuana in the locked bedroom—not to mention

the guns also located inside that bedroom—we conclude that the district court abused its

discretion in admitting those convictions to establish knowledge.

*****

In sum, we conclude that Defendant’s prior possession with intent to distribute

convictions were not relevant to his intent to distribute the marijuana in the locked

bedroom, except to raise the very propensity inference Rule 404(b) prohibits. And the

35
minimal relevance of such prior convictions to establishing Defendant’s knowledge that

the locked bedroom contained marijuana was significantly outweighed by their extreme

prejudice to Defendant. Accordingly, the district court abused its discretion in admitting

Defendant’s prior possession with intent to distribute convictions. 6

VI.

The government nevertheless argues that the district court did not abuse its

discretion in admitting Defendant’s prior convictions for four reasons: (1) under our

precedent, Rule 404(b) is a rule of “inclusion,” rendering the prior convictions

presumptively admissible; (2) Defendant placed his intent and knowledge at issue by

pleading not guilty; (3) the present case is indistinguishable from United States v. Rooks,

596 F.3d 204 (4th Cir. 2010), in which we deemed a prior possession with intent to

distribute conviction admissible to establish knowledge and intent; and (4) the district

court’s limiting instruction negated any prejudice resulting from admission of the prior

convictions. We disagree. The government’s arguments reflect a fundamental

6
Defendant does not argue on appeal that the district court erred in admitting his
prior convictions to establish intent when the government did not argue that intent was a
proper purpose for introducing the prior acts under Rule 404(b) and instead sought to
introduce the prior convictions only to prove Defendant’s knowledge that the Steadham
Road residence contained marijuana. J.A. 22–23 (“[T]he Defendant’s prior convictions for
[possession with intent to distribute] marijuana certainly go to his knowledge . . . absent
mistake that there’s marijuana in his house . . . .”). We, however, note that it was error for
the district court to admit Defendant’s prior convictions to establish intent when the
government (1) never sought admission of the convictions to establish intent; and (2) did
not provide a propensity-free chain of inferences explaining the prior convictions’
relevance to intent. Davis, 726 F.3d at 442.

36
misunderstanding of our case law regarding the admissibility of a defendant’s prior

convictions under Rule 404(b).

A.

The government first argues that our longstanding characterization of Rule 404(b)

as an “inclusive rule” renders evidence of a defendant’s prior convictions presumptively

admissible and, therefore, weighs in favor of affirming the district court’s admission of

Defendant’s convictions. See Appellee’s Br. at 17 (quoting Powers, 59 F.3d at 1464).

Our characterization of Rule 404(b) as a rule of inclusion reflects our determination

that the Rule’s list of non-propensity uses of prior bad acts evidence is not “exhaustive.”

See United States v. Stockton, 788 F.2d 210, 219 n.15 (4th Cir. 1986); Caldwell, 760 F.3d

at 276 (“Our use of the term ‘inclusionary’ merely reiterates the drafters’ decision to not

restrict the non-propensity uses of evidence.”). That characterization does not displace the

longstanding rule that prior “bad act” evidence is “general[ly] inadmissib[le].” 7 McBride,

7
For this reason, the dissenting opinion’s reliance on our statement that “evidence
of a defendant’s prior, similar drug transactions is generally admissible under Rule 404(b)
as evidence of the defendant’s knowledge and intent” is misplaced. See post at 6 (internal
quotation marks omitted) (quoting United States v. Cabrera-Beltran, 660 F.3d 742, 755
(4th Cir. 2011)). United States v. Cabrera-Beltran, 660 F.3d 742 (4th Cir. 2011), does not
compel the admission of all of a defendant’s prior drug transactions in cases in which the
defendant is later charged with the same drug offense. To the contrary, Cabrera-Beltran
requires that prior drug transactions be “similar” to the charged offense to be admissible
under Rule 404(b)—a requirement that the government failed to meet in this case. See
supra Part V.A; Cabrera-Beltran, 660 F.3d at 755–56 (explaining that “the conduct
charged in the indictment is exceedingly similar to the conduct” involved in the defendant’s
prior drug transactions in that “the same drugs were sold in similar quantities and
transported in a similar manner, even allegedly using the same car in one instance”
(emphasis added)).

37
676 F.3d at 395; see also, e.g., Huddleston v. United States, 485 U.S. 681, 685 (1988)

(“Federal Rule of Evidence 404(b) . . . generally prohibits the introduction of evidence of

extrinsic acts that might adversely reflect on the actor’s character . . . .” (emphasis added)).

Accordingly, our characterization of Rule 404(b) as a rule of inclusion does not

render prior convictions presumptively admissible. Caldwell, 760 F.3d at 276 (stating that,

notwithstanding the Third Circuit’s characterization of Rule 404(b)’s list of permissible

purposes as inclusive, “Rule 404(b) is a rule of general exclusion, and carries with it ‘no

presumption of admissibility’” (quoting 1 Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence § 4:28, at 731 (4th ed. 2013))). On the contrary, under Rule 404(b),

evidence of a defendant’s prior bad acts is generally inadmissible, properly coming into

evidence only when the government meets its burden to explain each proper purpose for

which it seeks to introduce the evidence, to present a propensity-free chain of inferences

supporting each purpose, and to establish that such evidence is relevant, necessary, reliable,

and not unduly prejudicial. Queen, 132 F.3d at 997; Davis, 726 F.3d at 442. Here, the

government simply did not meet this burden because Defendant’s prior convictions were

either irrelevant or unduly prejudicial. See supra Parts IV–V.

B.

The government next contends that, by pleading not guilty to the charged offenses,

Defendant placed all elements of those offenses at issue, thereby allowing the government

to introduce evidence of Defendant’s prior convictions to establish his knowledge and

intent. But “[a]lthough a defendant’s plea of not guilty places at issue all elements of the

charged crimes, this does not throw open the door to any sort of other crimes evidence.”

38
McBride, 676 F.3d at 398 (citation and internal quotation marks omitted); see also

Hernandez, 975 F.2d at 1039 (“It is a truism that a plea of ‘not guilty’ to a charge requiring

intent places that mental state in issue and that the state may offer evidence of other bad

acts to address that issue. This principle, however, does not permit any sort of uncharged

bad act to be brought to bear against defendants charged with intentional crimes.” (citations

omitted)). If a defendant’s claim of innocence always permitted the government to

introduce evidence of a defendant’s prior bad acts, “the resulting exception would swallow

the general rule against admission of prior bad acts.” Miller, 673 F.3d at 697; Caldwell,

760 F.3d at 281 (“We disagree, however, with the proposition that, merely by denying guilt

of an offense with a knowledge-based mens rea, a defendant opens the door to admissibility

of prior convictions of the same crime.”).

In Hernandez, this Court explained that the type of defense a defendant presents at

trial affects the admissibility of other acts evidence under Rule 404(b), even when the

defendant pleads not guilty and, in so doing, formally places all elements of the charged

offense at issue. 975 F.2d at 1039. There, the government sought to introduce evidence

of the defendant’s prior participation in a crack distribution conspiracy to establish her

intent to distribute crack as part of a different conspiracy in a different city. Id. At trial,

the defendant pled not guilty but did not contest her intent to distribute crack or claim that

she “had never touched crack or did not know what it was.” Id. Rather, she “offered as

her defense the contention that she had not sold the crack in question.” Id. Notwithstanding

that the defendant pled not guilty, we held that the district court abused its discretion in

admitting the prior bad acts evidence to establish intent because “the relevance of [the other

39
acts] testimony was at best small” and the effect of its admission was highly prejudicial.

Id.

Hernandez reflects the general principle that even when a defendant enters a plea of

not guilty, thereby formally placing all elements of the charged offense at issue, a

defendant’s decision not to contest certain elements of the charged offense may so diminish

the probative value of prior bad acts evidence that such evidence becomes unduly

prejudicial and, therefore, inadmissible under Rule 404(b). 8 Cf. McBride, 676 F.3d at 403–

04 (Wilkinson, J., dissenting) (recognizing that “factual iterations” like the defense

presented at trial and whether the denial of certain elements “was central to the entire

defense” can “make or break the case for admissibility”). Put differently, when a defendant

does not contest a particular element of a charged offense, that element is “‘at issue’ in

only the most attenuated sense,” minimizing the probative value of any prior bad act the

government maintains is relevant to that uncontested element. Miller, 673 F.3d at 697.

Because Defendant did not contest his knowledge of marijuana inside the Steadham

Road residence or his intent to distribute the marijuana (had he possessed it), the probative

value of his years-old prior convictions to his knowledge and intent was “at best small”

and, therefore, was far outweighed by the highly prejudicial nature of the prior convictions.

8
The dissenting opinion implies that Hernandez rejects outright the notion that a
defendant’s decision not to dispute an element of the charged offense renders prior bad acts
evidence tending to prove that element less relevant. Post at 12. But, as discussed,
Hernandez takes a more nuanced approach by making clear that choosing not to contest a
particular element renders the relevance of bad acts evidence offered to prove that element
“at best small”—even when the defendant chooses to plead not guilty. 975 F.2d at 1039.
We adopt the same approach here.

40
Hernandez, 975 F.2d at 1039; see also Miller, 673 F.3d at 697 (“When, as was true here,

intent is not meaningfully disputed by the defense, and the bad acts evidence is relevant to

intent only because it implies a pattern or propensity to so intend, the trial court abuses its

discretion by admitting it.”).

C.

Third, the government argues that the district court’s admission of Defendant’s prior

convictions is supported by this Court’s decision in Rooks, in which we concluded that a

district court did not abuse its discretion in admitting a defendant’s prior possession with

intent to distribute conviction to establish the defendant’s intent to distribute drugs at a

later time. 596 F.3d at 211–12. In Rooks, an officer watched the defendant discard a plastic

bag containing twenty-four individual baggies of crack cocaine while fleeing from police.

Id. at 207. Because the officer observed the defendant actually possessing the drugs, the

centrally disputed issue in Rooks was whether the defendant intended to distribute the drugs

he discarded, id. at 211—not whether the defendant had the power to exercise dominion

and control over the drugs, which is the only contested issue in the case at bar.

This distinction is material. As explained above, when a defendant does not contest

an element of a charged crime—such as knowledge or intent—the probative value of prior

bad act evidence establishing that element decreases. See supra Parts IV.B, V.B & VI.B.

And when the probative value of prior bad act evidence decreases, there is increased risk

that the jury will use the prior bad act evidence—already recognized as highly prejudicial—

for a purpose Rule 404(b) prohibits, i.e., to convict the defendant for his prior bad acts or

“simply for possessing bad character.” Queen, 132 F.3d at 995. Because, unlike in Rooks,

41
Defendant’s prior convictions were not probative of a contested element of the charged

offense, our holding in Rooks that the district court did not abuse its discretion in admitting

the defendant’s prior conviction does not control the present case. Rather, the case at bar

stands in line with Johnson, McBride, and Hernandez, in which we found that the district

court abused its discretion in admitting evidence of prior bad acts that were not probative

of a contested element of the charged offense or not similar to the charged offense. See

supra Part V.A.

D.

Finally, the government argues that the district court’s limiting instruction negated

any prejudice resulting from admission of Defendant’s prior convictions. We agree that

limiting instructions serve as “additional protection” against undue prejudice. See, e.g.,

Queen, 132 F.3d at 997. But evidence that fails to satisfy the Queen test cannot be rendered

admissible simply because the district court provides a limiting instruction. McBride, 676

F.3d at 399 n.5 (“A jury instruction, while a required condition for the admission of any

evidence pursuant to Rule 404(b), does not necessarily rescue the use of otherwise

inadmissible evidence.”); Johnson, 617 F.3d at 298 (finding error “despite the district

court’s limiting instruction” where “the proponent of Rule 404(b) evidence cannot

demonstrate that the evidence satisfies our four-part test for admissibility”). Here,

Defendant’s prior convictions were irrelevant or unduly prejudicial and therefore

inadmissible under Rule 404(b)—problems a limiting instruction cannot cure.

VII.

42
 “Evidentiary rulings are subject to harmless error review under Federal Rule of

Criminal Procedure 52.” Johnson, 617 F.3d at 292. “[T]he appropriate test of

harmlessness in the context of Rule 404(b) is whether we can say ‘with fair assurance, after

pondering all that happened without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error.’” McBride, 676 F.3d at 400 (quoting

United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994)). Our harmlessness inquiry is

not a sufficiency of the evidence analysis. Id. Rather, even if the government adduced

sufficient evidence to support Defendant’s conviction, we must consider whether the

prejudicial nature of Defendant’s prior convictions may have swayed the jury’s judgment.

Id. The government bears the burden of establishing that the error was harmless. 9 United

States v. Curbelo, 343 F.3d 273, 286 (4th Cir. 2003).

We conclude that the government cannot establish harmlessness for at least two

reasons: (1) the relative weakness of the government’s overall case against Defendant; and

(2) the government’s improper use of Defendant’s prior marijuana convictions for a

purpose other than that for which the district court admitted them.

A.

An error is less likely to be harmless when the government’s case is weak because,

in that scenario, even a small error has the potential to sway the jury’s judgment in light of

9
The government acknowledged at oral argument that it likely waived harmless
error review by failing to argue harmlessness in its brief. Fed. R. App. P. 28(b). While we
agree that the government waived this argument by failing to raise it in its brief, we further
conclude that the government’s harmlessness argument fails on the merits.

43
the absence of other evidence supporting a finding of guilt. See Johnson, 617 F.3d at 298–

99 (finding, “given the overall weakness of the government’s case against” the defendant,

that the district court’s improper admission of other acts evidence was not harmless).

Because Defendant did not contest his knowledge of the marijuana or his intent to distribute

the marijuana found inside the locked bedroom, the only contested issue for the jury to

decide was whether Defendant had the power to exercise dominion and control over the

marijuana and guns in the locked bedroom. As explained above, the government

introduced virtually no evidence on that issue. See supra Part IV.B. In particular, the

government did not provide evidence that Defendant had a key to the deadbolt on the

locked bedroom door, or had even been inside the locked bedroom at any time. See supra

Part IV.B. Nor did the government provide evidence that Defendant had ever come into

contact with the guns or marijuana, let alone that Defendant had the power to exercise

dominion and control over them. See supra Part IV.B.

At most, the government’s evidence established that Defendant lived, at least some

of the time, in the Steadham Road residence, in which officers found the marijuana and

guns. But “dominion and control cannot be established by mere proximity to the

contraband, by mere presence on the property where the contraband is found, or by mere

association with the person who does control the contraband.” Blue, 808 F.3d at 232. And

“[m]ere joint tenancy of a residence is insufficient to prescribe possession [of its contents]

to all the occupants.” Id. (alterations in original) (internal quotation marks omitted);

Zeigler, 994 F.2d at 848 (“Those who spend considerable time in another’s [residence],

even those who ‘live’ there, do not for that reason possess everything on the premises.”).

44
“Rather, [i]n joint occupancy cases, there must be some additional nexus linking the

defendant to the contraband.” Blue, 808 F.3d at 232 (alteration in original) (internal

quotation marks omitted). For this reason, this Court and other courts have concluded that

the government failed to adduce sufficient evidence to establish a defendant’s constructive

possession of contraband in a residence he or she jointly occupied when, as is true here,

there was no evidence that the defendant had access to or had ever been in the specific

place in which the contraband was found. Id. at 234; Brown, 3 F.3d at 680–81; Zeigler,

994 F.2d at 847–48.

Because “the government presented no evidence, circumstantial or direct, that

[Defendant] ever entered the [deadbolt-locked bedroom] or had the [key] to the lock[] on

its door,” Zeigler, 994 F.2d at 848, and did not offer any “additional nexus linking the

defendant to the contraband,” Blue, 808 F.3d at 232, the government’s evidence regarding

Defendant’s dominion and control over the marijuana in the locked bedroom was weak, at

best. And the government’s evidence of Defendant’s ability to exercise dominion and

control over the guns also found inside the locked bedroom was even weaker. From the

absence of other evidence establishing Defendant’s constructive possession of the guns,

the record shows that the government bootstrapped Defendant’s constructive possession of

the guns onto his alleged constructive possession of the marijuana, based on his knowledge

of marijuana’s odor and, according to the government, resulting knowledge that the

Steadham Road residence contained marijuana. But, as Defendant’s trial counsel rightly

pointed out, Defendant “didn’t smell” the guns, J.A. 24, and the government adduced no

other evidence linking him to those guns or to the locked bedroom in which they were

45
found. The government’s case against Defendant for constructive possession of both the

marijuana and the guns thus hinged upon Defendant’s past experience with the smell of

marijuana and resulting knowledge of its presence inside the residence.

In such circumstances, the government cannot meet its burden to establish “that it

is highly probable that the error did not affect the jury’s judgment regarding” whether

Defendant constructively possessed the marijuana and guns. McBride, 676 F.3d at 400

(emphasis omitted). Accordingly, we conclude that the district court’s errant admission of

Defendant’s prior convictions was not harmless. See Johnson, 617 F.3d at 298–99 (finding,

“given the overall weakness of the government’s case against” the defendant, that the

district court’s improper admission of other acts evidence was not harmless). 10

B.

Even if the government had presented stronger evidence of Defendant’s possession

of the contraband in the locked bedroom, the government’s improper use of the prior

convictions during its closing argument would preclude a finding of harmlessness. As

previously noted, during its closing argument, the government used Defendant’s prior

convictions to discredit Gerald’s testimony that he alone possessed the marijuana and guns.

10
Based on the evidence presented at trial, the jury could have believed that
Defendant lived at the Steadham Road residence along with Sulton, Hendrix, and Gerald.
Because the government did not charge the other three occupants of the Steadham Road
residence—who, based on the record, had no prior convictions but otherwise stood in the
same position as Defendant relative to the contraband in the locked bedroom—there is an
“unacceptable risk” that Defendant’s “prior conviction allowed the jury to convict h[im]
upon facts that would likely have been insufficient to convict a similarly situated defendant
without a prior conviction,” further indicating that the errant admission of Defendant’s
prior convictions was not harmless. Aguilar-Aranceta, 58 F.3d at 802.

46
In particular, the government argued that Gerald—“the fall guy for the family”—lied about

his ownership of the contraband to help Defendant, who, in the event of conviction, would

face a longer sentence due to his criminal record. J.A. 143–44.

Notwithstanding its obligation to identify and explain the logical sequence of non-

propensity inferences supporting each purpose for which it sought to admit Defendant’s

prior convictions, see supra Part III, the government did not ask the court for leave to

introduce those convictions to discredit Gerald’s testimony, nor did the district court

authorize the government to use Defendant’s convictions for that purpose. 11 On the

contrary, the district court’s limiting instruction informed the jury that the prior convictions

were admitted “only on the issue of knowledge and intent.” J.A. 64 (emphasis added). The

government’s use of Defendant’s prior convictions to support its “fall guy” theory may

have factored in to the jury’s decision to convict Defendant, notwithstanding that the court

never evaluated whether or concluded that the convictions were admissible under Rule

404(b) for that purpose. And the government’s use of Defendant’s prior convictions to

discredit Gerald undermined the court’s limiting instruction by suggesting to the jury that

it had license to use the convictions for purposes other than those approved by the court,

11
Because the government did not seek admission of Defendant’s prior convictions
for the purpose of discrediting Gerald—and, therefore, the district court could not have
admitted the convictions for that purpose, see supra Part III—we need not decide whether
discrediting Gerald was a proper purpose for introducing Defendant’s prior convictions
under Rule 404(b). We find it questionable, however, that a defendant’s prior conviction
would be admissible to discredit a witness testifying on the defendant’s behalf based solely
on the theory that the witness is more likely to lie because a defendant with a criminal
record would face a longer sentence if convicted.

47
thereby further increasing the risk that the jury’s judgment would be improperly swayed

by the court’s errant admission of the prior convictions.

For these reasons, the government cannot establish that the district court’s errant

admission of Defendant’s prior convictions was harmless.

VIII.

The dissenting opinion’s extrajudicial, editorial comments and misrepresentation of

this case’s holding open the need for a separate discussion. The dissent characterizes our

holding as a usurpation of the district court’s discretionary authority over evidentiary

issues, a pronouncement that prior drug distribution convictions are hardly ever relevant in

future drug prosecutions, and a departure from Circuit authority. For the reasons that

follow, that reading of the majority opinion is simply inaccurate.

A.

The dissenting opinion denounces the majority opinion as a usurpation of what the

dissent seems to characterize as the district court’s unbridled authority over “[a]dmitting

or excluding evidence.” Post at 1. According to the dissenting opinion, we should simply

“keep [our] hands off” the “perfectly acceptable, indeed [] correct, discretionary call at trial

to admit evidence of [Defendant]’s prior convictions.” Post at 1. But “[e]ven the briefest

perusal of the record tells a dramatically different story,” post at 2, about the district court’s

decision to admit Defendant’s prior convictions. Far from a “routine discretionary call,”

post at 12, the district court’s determination that Defendant’s prior convictions were

admissible under Rule 404(b) was an erroneous legal conclusion based on (1) a misreading

of this Court’s unpublished opinion in United States v. White, 519 F. App’x 797 (4th Cir.

48
2013); (2) a mistaken belief that White was binding authority; and (3) an absence of facts

explaining the alleged relevance of Defendant’s prior convictions to the charged conduct,

without which the district court could not possibly have had information on which to base

an informed exercise of its discretion.

In support of its argument that Defendant’s prior convictions were admissible under

Rule 404(b), the government provided the district court with United States v. White, an

unpublished opinion authored by a panel of this Court. In that case, two defendants were

charged with several offenses, including conspiracy to distribute cocaine and cocaine base

as well as possession with intent to distribute cocaine and cocaine base. 519 F. A’ppx at

799. The panel affirmed the district court’s decision to admit “a prior narcotics conviction

for each” defendant under Rule 404(b). Id. at 804–06. In so doing, the panel explained

that the district court “reason[ed] that the evidence was admissible because it related to the

knowledge and intent necessary to commit the crimes for which [the defendants] were on

trial” and also “reasoned that the evidence would not unfairly prejudice” the defendants.

Id. at 804–05.

Rather than interpreting White as permitting defendants’ prior convictions to be

admitted under Rule 404(b) when, in a district court’s reasoned opinion, those prior

convictions are sufficiently similar to the charged offense to be relevant and not unfairly

prejudicial, the district court appears to have read White as standing for the far broader

principle that, when a limiting instruction is provided, a prior conviction is categorically

admissible under Rule 404(b) in a subsequent prosecution for the same offense. But White

does not stand for this principle. Rather, White was based on our conclusion that the

49
defendants’ prior convictions were “similar to the charges they faced in this case” and,

therefore, were “relevant to whether they possessed the requisite knowledge and intent to

commit the narcotics crimes with which they were charged.” 519 F. A’ppx at 806

(emphasis added). And our conclusion regarding the prejudicial effect of the defendants’

prior convictions was not based solely on the fact that the district court gave the jury a

limiting instruction. Id. Instead, our holding was based on the defendant’s failure to

provide evidence that prejudice resulted in spite of that limiting instruction. Id.

White does not stand for the idea that prior drug convictions are categorically

admissible under Rule 404(b) in subsequent drug prosecutions, nor does it provide support

for the notion that “a proper limiting instruction” is the only prerequisite for admitting

evidence of a defendant’s prior convictions under Rule 404(b). J.A. 61–62. And as

discussed, neither principle is consistent with the binding law of this Circuit. Johnson, 617

F.3d at 297 (“The fact that a defendant may have been involved in drug activity in the past

does not in and of itself provide a sufficient nexus to the charged conduct where the prior

activity is not related in time, manner, place, or pattern of conduct.”); McBride, 676 F.3d

at 399 n.5 (“A jury instruction, while a required condition for the admission of any evidence

pursuant to Rule 404(b), does not necessarily rescue the use of otherwise inadmissible

evidence.”). The district court misread White and admitted Defendant’s prior drug

convictions based on that misreading.

But the district court’s error did not end there. In addition to misinterpreting White’s

holding, the district court also treated White, an unpublished opinion, as binding precedent.

But, of course, we make clear in every unpublished opinion that “[u]npublished opinions

50
are not binding precedent in this circuit.” E.g., White, 519 F. App’x at 799 (emphasis

added). Combined, these errors formed the district court’s basis for admitting Defendant’s

prior convictions, as evidenced by the court’s statement that it was admitting the

convictions reluctantly and only “[i]n light of this White case. I don’t like it. I’m not sure

Rule 404(b) was drafted to be that broadly construed, but that is the way it has been

construed, and I am bound by my oath to follow the Fourth Circuit law.” J.A. 62 (emphasis

added).

Notably, before reading White, the district court had suggested that it did not see

Defendant’s prior convictions as relevant to proving his intent to distribute the marijuana

inside the Steadham Road residence. When the government first moved to introduce

Defendant’s prior convictions to prove his knowledge of the marijuana, the district court

was skeptical of the government’s theory. The court acknowledged that law enforcement

officers’ testimony that “they smelled marijuana as soon as they went in[side]” the

residence would be admissible, but it failed to understand how that testimony “tie[d]

together” with Defendant’s prior convictions. J.A. 23. In particular, the district court

expressed its view that whether Defendant’s prior convictions were relevant to his

knowledge of the marijuana would “depend on what kind of defense he puts up . . .

assuming he testifies and says he never dealt with marijuana.” J.A. 23–24. It was only

after the district court misread White and interpreted that case as binding that the court

concluded that, regardless of the defense Defendant pursued, Defendant’s prior convictions

were admissible. And even then, the district court expressed concern over the sheer breadth

of this application of Rule 404(b), doubting that the rule “was drafted to be that broadly

51
construed.” J.A. 62. The district court’s statements suggest that the court understood White

as foreclosing the court’s ability to exercise its discretion to exclude Defendant’s prior

convictions and that, had the court believed otherwise, it would have exercised its

discretion to find those prior convictions inadmissible under Rule 404(b).

At bottom, the district court’s decision to admit Defendant’s prior convictions under

Rule 404(b) was not, as our dissenting colleague claims, a “routine discretionary call.”

Post at 12. The district court never conducted a Queen analysis, never considered whether

Defendant’s prior convictions were similar to the charged offense such that there was a

“nexus” or “linkage” among them—nor could it have, given the government’s failure to

provide such evidence—and never balanced the convictions’ probative value against their

potential prejudicial effect. To urge, as the dissenting opinion does, that the district court

“concluded in the end that the evidence was relevant to knowledge and intent,” post at 12,

is far too generous a characterization of the district court’s decision, which, in reality, had

its roots in two legal errors. And to insist that we overlook such clear errors in the name

of “respect [for] a trial court’s job,” post at 13, is to sacrifice the fundamental role of

appellate courts on the altar of deference, see United States v. Taylor, 487 U.S. 326, 336

(1988) (“[A] decision calling for the exercise of judicial discretion hardly means that it is

unfettered by meaningful standards or shielded from thorough appellate review.” (internal

quotation marks omitted)).

B.

But we do not lay the blame entirely, or even mostly, at the district court’s feet. It

is true that the district court’s decision to admit Defendant’s prior convictions was based

52
on its misinterpretation of White and misapprehension of White as binding precedent. But

the district court was hard pressed to conduct any Rule 404(b) analysis given the

government’s failure to meet its burden to explain each proper purpose for which it sought

to introduce the evidence, to support those purposes with propensity-free chains of

inferences demonstrating relevance, and to establish that the prior convictions were

necessary, reliable, and not unduly prejudicial. Queen, 132 F.3d at 997; Davis, 726 F.3d

at 442.

As discussed above, the government offered no evidence to suggest that

Defendant’s prior convictions were relevant in time, place, manner, or pattern of conduct

to the offense at issue in this case. See supra Part V.A. On the contrary, the government

provided the district court only with the statute under which Defendant was convicted, the

name of each offense, and the year of each conviction. The government never argued that

there was any “linkage between the prior-act evidence and the drug crimes charged in the

indictment.” McBride, 676 F.3d at 397. Nor did the government cite any case law—other

than White—to support its argument that Defendant’s prior convictions were admissible to

establish his knowledge of the marijuana inside the residence.

In fact, the dissenting opinion does more to argue for admission of Defendant’s prior

convictions than the government did below. Citing Rooks, the dissenting opinion maintains

that Defendant’s prior convictions were admissible to show “his extensive knowledge of

marijuana sales and distribution, and therefore his related intent to engage yet again in just

such prohibited conduct.” Post at 8. The first problem with this line of reasoning is that it

lacks the appropriate analytical framework, lumping together for consideration both

53
Defendant’s prior possession conviction—which can have no bearing on his future intent

to distribute, see supra Part IV.A—and his prior possession with intent to distribute

convictions.

The second problem with the dissenting opinion’s rationale is that it advances an

argument the government failed to make. In addition to neglecting to provide any evidence

of temporal proximity or factual similarity between Defendant’s prior convictions and the

charged offenses, the government failed to assert that the prior convictions were relevant

to Defendant’s “knowledge of marijuana sales and distribution.” Post at 8. And the

government never proposed intent as a proper purpose for which Defendant’s prior

convictions could be introduced under Rule 404(b). Indeed, the government argued only

that the prior convictions were relevant to proving Defendant’s knowledge of the smell of

marijuana. The government’s failure to suggest that Defendant’s prior offenses were

admissible to establish his knowledge of marijuana distribution or his intent to distribute

deprived the district court of an opportunity to conduct a Queen analysis to determine

whether Defendant’s prior convictions were relevant to those purposes and whether, if

relevant to those purposes, the convictions were nevertheless unduly prejudicial. Nor could

the district court have ensured that Defendant’s prior convictions were relevant to

something other than his propensity to commit drug crimes.

Continuing to make arguments the government failed to make, the dissenting

opinion cites United States v. Mark, 943 F.2d 444 (4th Cir. 1991), as a basis for affirming

the district court’s decision to admit Defendant’s prior convictions. In Mark, we upheld a

district court’s admission of the defendant’s prior convictions to show that the defendant

54
was “not an innocent friend of his codefendants but rather was . . . responsible for the

transaction at issue.” 943 F.2d at 448. According to our colleague in dissent, Mark stands

for the proposition that Defendant’s decision to point the finger at Gerald as the sole person

with an interest in the marijuana inside the Steadham Road residence rendered Defendant’s

prior convictions—both for possession and possession with intent to distribute—

“immediately relevant.” Post at 8.

But what the dissenting opinion omits from its analysis is that Mark affirmed a

district court’s admission of the defendant’s prior convictions based on the conclusion that

those convictions were “sufficiently related to the charged offense and clearly relevant” to

prove intent and knowledge. 943 F.2d at 448 (emphasis added). In particular, we found

in Mark that the prior drug transactions admitted into evidence “occurred in the same state

and during the same year [Mark] was arrested” on the charged offenses. Johnson, 617 F.3d

at 297. Moreover, the admission of evidence of Mark’s prior drug transactions through

witness testimony established “how [Mark] was able to obtain the drugs which he later sold

to his codefendants.” Id. In other words, Mark’s prior drug transactions demonstrated how

Mark obtained the very drugs he was charged with distributing. Id. And finally, Mark

placed his intent to be part of the charged drug distribution conspiracy squarely in dispute

by “testif[ying] on his own behalf” that his relationship to his codefendants was

“innocuous.” Id. Mark presents precisely the type of “linkage” between prior drug

convictions and charged offenses that is necessary to establish relevance—and precisely

the type of “linkage” that is absent in this case. See supra Part V.A.

55
 Here, the government presented no evidence that Defendant’s prior convictions

were at all related to the charged offense. As discussed supra Part V.A, the offenses giving

rise to Defendant’s prior convictions occurred over five years before the events underlying

the instant offenses. There was no connection put forth by the government—or apparent

from the record—between the marijuana inside the Steadham Road residence and the

marijuana Defendant previously had been convicted of possessing that would indicate that

Defendant obtained the marijuana from the same source, sold the drug to the same people,

or engaged in similar practices regarding the drug’s distribution. And, unlike Mark,

Defendant did not contest the elements his prior convictions were offered to prove—

knowledge and intent.

Finally, we note that the dissenting opinion implies that the government’s case

against Defendant was open and shut. Post at 3–4. But the record suggests that the

government did not share that opinion. In an attempt to explain the lack of evidence linking

Defendant to the locked back-right bedroom or to the contraband found inside it, the

government called an expert witness to explain to the jury why fingerprints were not found

anywhere in the room, much less on the contraband. It is this acknowledged absence of

evidence linking Defendant to the locked bedroom—an absence not remedied by the

dissenting opinion’s repeated appeal to evidence linking Defendant to the residence—that

increased impermissibly the prejudicial effect of Defendant’s prior convictions as offered

to establish his constructive possession of the marijuana and guns inside that locked room.

See supra Part IV.B, V.B.

56
 And even if the government’s case were the slam dunk the dissenting opinion

portrays it as, that fact alone would not render the district court’s legal error harmless. To

the contrary, “the question is not simply whether we believe that irrespective of the error

there was sufficient untainted evidence to convict but, more stringently, whether we believe

it highly probable that the error did not affect the judgment.” McBride, 676 F.3d at 400

(internal quotation marks omitted). And in cases involving the presentation of testimony

that “effectively brand[s]” the Defendant as a drug dealer “based on events completely

unrelated to the offenses for which he was being tried,” the nature of that testimony

becomes so prejudicial that even the strongest of cases cannot render the Rule 404(b) error

harmless. Id.

C.

Perhaps the dissenting opinion’s greatest flaw is its mischaracterization of our

holding. The dissent implies that the outcome of this case renders prior drug distribution

convictions categorically irrelevant and inadmissible under Rule 404(b) in future drug

prosecutions. Post at 1 (“Apparently, past distributional drug convictions are now to be

regarded as hardly relevant[.]”). That is not the case.

Our holding does no more than hold the government to its burden to demonstrate

the relevance of other acts evidence by establishing that a prior bad act is sufficiently

related in time, place, manner, pattern of conduct, or state of mind, and, in addition, that

the evidence is necessary, reliable, and not unduly prejudicial. Johnson, 617 F.3d at 297;

Queen, 132 F.3d at 997; Davis, 726 F.3d at 442. This is nothing new. Nor does it represent

a “naked policy judgment[]” that prior drug distribution convictions are “hardly relevant”

57
in future drug prosecutions. 12 See post at 1–2. Indeed, we cite favorably decisions in which

this Court has deemed prior bad acts relevant to the defendant’s charged conduct. See, e.g.,

supra Part V.A (discussing Rawle and Brewer). Notably, however, those decisions deemed

the other acts evidence relevant on the basis of “linkage between the prior-act evidence and

the drug crimes charged in the indictment.” McBride, 676 F.3d at 397. In other words, the

government met its burden in those cases—something it failed to do here.

Although the dissenting opinion accuses the majority of “disregard[ing] circuit

precedent at every turn,” post at 11–12, it is the dissent that disregards at least three

substantially similar cases in which this Court has deemed admission of a defendant’s prior

12
Because the dissenting opinion characterizes our reasoning as rendering prior
drug convictions “hardly relevant” in future drug prosecutions, see post at 1, we highlight
that we did not decide this case by deeming all of Defendant’s prior convictions irrelevant
to the drug charge at issue. Instead—and unlike the dissenting opinion—we analyzed
Defendant’s prior possession conviction separately from his prior possession with intent to
distribute convictions, and we considered each type of conviction as it related to (1)
knowledge; and (2) intent to distribute—the purposes for which the district court instructed
the jury it could use those convictions. See supra Parts IV–V. This is precisely the
sequence of analysis Rule 404(b) requires. We found only Defendant’s prior possession
conviction and prior possession with intent to distribute convictions irrelevant to
Defendant’s intent to distribute the marijuana inside the Steadham Road residence. See
supra Parts IV.A, V.A. In so concluding, we did not close the door on the possibility that
the government may meet its burden to establish a link between the facts and circumstances
giving rise to prior drug distribution convictions and the conduct giving rise to a subsequent
drug distribution charge sufficient to render those prior convictions relevant. See supra
Part V.A. Nor did we conclude that Defendant’s prior convictions were irrelevant to his
knowledge that the residence contained marijuana. See supra Parts IV.B, V.B. This further
demonstrates that our holding does not purport to render all drug distribution convictions
inadmissible in future drug prosecutions, but instead holds the government to its burden to
argue a non-propensity chain of inferences supporting each proper purpose for which it
seeks to admit a Defendant’s prior convictions and requires district courts to adhere to their
longstanding obligation to conduct a Queen analysis.

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drug distribution activity under Rule 404(b) an abuse of discretion. This Court found in

Hernandez, Johnson, and McBride that a lack of temporal proximity and factual “nexus”

between a defendant’s prior bad acts and charged offense renders the prior acts not

“sufficiently related to the charged offense” to be relevant under the first Queen prong. See

supra Part V.A. Given that Defendant’s prior convictions became final more than five

years earlier and that the government failed to put forth any evidence establishing a “nexus”

between those prior convictions and the charged offenses, our conclusion that Defendant’s

prior possession conviction and prior possession with intent to distribute convictions were

not relevant to his intent to distribute the marijuana inside the Steadham Road residence

represents nothing more than an application of this longstanding authority. Accordingly,

the only way we would “disregard[] circuit precedent” would be if, like the dissent, we

ignored Hernandez, McBride, and Johnson and held that Defendant’s prior convictions

were relevant and admissible under Rule 404(b).

*****

Regrettably, the dissenting opinion characterizes us as “dukes and earls of the

appellate kingdom,” post at 13, thumbing our noses at the district court’s reasoned and able

exercise of discretion. That’s simply disrespectful of the role of every appellate judge in

this country. But more importantly, we as judges should seek to enhance, not erode, the

public’s confidence and trust in the integrity of the judicial process.

IX.

In its opening argument, the government told the jury, “This is a case about a drug

dealer, a drug dealer who kept multiple guns to protect his drugs . . . . Ladies and

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gentlemen, this is the case of the United States of America vs. Harold Hall, Jr.” J.A. 42.

The district court’s admission of Defendant’s unrelated prior convictions to establish

knowledge and intent, in the absence of evidence connecting Defendant either to the

deadbolt-locked bedroom or to the marijuana or guns found inside, allowed the case to

become just that: a case about Defendant’s character as “a drug dealer.” By admitting

Defendant’s prior convictions, the district court gave rise to the very scenario Rule 404(b)

is designed to prevent and deprived Defendant of his right to be “tried for what he did, not

who he is.” Caldwell, 760 F.3d at 276.

For these and the foregoing reasons, we reverse the district court’s decision to admit

Defendant’s prior convictions under Rule 404(b), vacate Defendant’s convictions, and

remand to the district court for proceedings consistent with this opinion.

REVERSED, VACATED, AND REMANDED

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WILKINSON, Circuit Judge, dissenting:

This case may seem just a matter of one small evidentiary ruling, and in a sense it

is. In another sense, however, it demonstrates the encroachment of overactive appellate

judging on the roles of district courts, juries, and advocates in the conduct of a trial. Not

content with performing our own important and primary function, embodied in the de novo

standard of review, we have assumed under a wholly different and deferential standard a

trial court’s most basic task.

Trial judges are called trial judges for a reason. The reason is that they conduct trials.

Admitting or excluding evidence is what they do.

On evidentiary questions, especially those of non-constitutional dimension,

appellate judges are best advised to keep hands off. Our instincts are less practiced than

those of the trial bench and our sense for the rhythms of a trial less sure. Here the district

judge made a perfectly acceptable, indeed a correct, discretionary call at trial to admit

evidence of Hall’s prior convictions. Those convictions were highly probative of Hall’s

present knowledge and intent. See FED. R. EVID. 404(b). Now, twenty-five months later,

after sifting evidence at length and at our leisure, we presume to call that right choice wrong

and to transform the Rule 404(b) light from yellow to a flashing red for even the most

probative past drug offenses. Apparently, past distributional drug convictions are now to

be regarded as hardly relevant, notwithstanding the fact that the drafters of Rule 404(b)

have never carved out such offenses from other admissible bad acts evidence.

The majority’s hostility to the admissibility gateways of Rule 404(b) and its

eagerness to discount the probative force of past drug distributional offenses could not be

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more apparent. But those are naked policy judgments that are not ours to make. Decisions

such as these not only erode the trial court’s role. They further insulate trials from the

reality of life outside the courtroom and cast doubt on what I thought was one of the

foremost features of American law—the right of a duly sworn and selected jury to assign

what weight it would to evidence.

I.

As an initial observation, the majority’s whole presentation of this case is simply

incorrect. At least if the majority is prepared to assume the mantle of district judge (as to

evidentiary rulings), and super-juror (as to harmless error), it should properly set forth the

case that unfolded at trial. Overturning a jury verdict requires at a minimum a fair telling

of what the jurors saw and heard. My good colleagues in the majority present Hall as a

sympathetic defendant, plucked randomly from amongst his relatives and targeted for

prosecution despite the fact that each “stood in the same position . . . relative to the

contraband in the locked bedroom.” Maj. Op. at 47 n.10. The majority goes so far as to

suggest that the government’s only evidence that Hall possessed or constructively

possessed the marijuana at issue was his prior convictions. Id. at 2–3. Even the briefest

perusal of the record tells a dramatically different story.

Shortly before officers executed the search warrant for the Steadham Road

residence, they observed Hall leave the house with his cousin, Gerald. Hall entered a Ford

Expedition that was parked in the driveway and registered in his name at that address. J.A.

195; 254–55. Officers had previously observed this same car in the driveway during a

controlled drug purchase. J.A. 233. DMV records, moreover, disclosed additional vehicles

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registered to Hall at that address as well. J.A. 195.

When Officer Brien Gwyn stopped Hall in his vehicle soon thereafter, Hall told

Officer Gwyn that he lived at the Steadham Road residence. J.A. 257. Importantly, Hall

stated that he lived there alone. J.A. 257. It is unsurprising, then, that officers executing

the search warrant found the house empty while Hall was away. J.A 192–93. Later, when

Officer Jerry Maldonado asked for Hall’s address to complete an arrest report, Hall again

indicated that he lived at the Steadham Road residence. J.A. 237. And where did cousin

Gerald claim to live? Gerald told Officer Maldonado that he had no permanent address.

J.A. 237. In fact, his South Carolina identification at that time listed an address on Bailey

Street. J.A. 333.

Once officers entered the Steadham Road residence, they found a host of evidence

indicating that Hall alone lived there. This included, for example, a recent utility bill in

Hall’s name, J.A. 195–96, additional mail directed to Hall at that location, J.A. 196, three

computer monitors that Hall claimed he used to dispatch tractor-trailers for his trucking

company, J.A. 193, and a shirt with Hall’s driver’s license and $1000 in cash, J.A. 198.

The driver’s license listed the Steadham Road residence as Hall’s address. J.A. 198.

Investigator John Carwell summarized the search as follows: “Everything in the

house was related to Harold Hall, Jr.” J.A. 225. When asked if there was anything

suggesting other occupants, his answer was concise: “No.” J.A. 225. Until this time,

officers were simply investigating an address tied to drug activity. Only after every piece

of evidence pointed directly to Hall and no one else did they focus their efforts, and

ultimately the indictment, on him. J.A. 226.

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 As the majority notes, Hall (with Gerald’s connivance) eventually tried to eschew

association with the Steadham Road residence and shift any blame for the marijuana to

Gerald, who faced substantially less time. That defense, however, fell apart. Gerald failed

even to recognize the blue container filled with bags of marijuana that was confiscated

from the back bedroom. See J.A. 200–04, 303–04, 350. Gerald was also emphatic that the

largest purchase of marijuana he ever made was “a half a pound of weed,” J.A. 316–17,

yet the government selected one of the confiscated bricks and showed the jury during

closing arguments that it weighed over three pounds. J.A. 140–41.

Faced with the adverse jury verdict, the majority attempts to construct an alternate

reality from the evidence adduced at trial. No one actually at the trial, however, would

recognize the narrative spun by the majority. The majority suggests that Hall did not own

the Steadham Road residence, despite Gerald’s testimony that Hall’s name was on “the

thing . . . . for whoever owned the house.” J.A. 328–29. The majority protests that Hall’s

fingerprints were not found on the guns or marijuana, conveniently overlooking both the

absence of anyone’s fingerprints and the expert testimony that the various textures were

not prone to collecting them. J.A. 280–283. And as for the deadbolt key that Gerald

allegedly kept with him “at all times,” J.A. 324, he had no key to the back bedroom or the

house when he was arrested, and no key was somehow ever found. J.A. 406–08. Even the

majority is forced to concede that Hall told Officer Gwyn that he lived at the Steadham

Road residence by himself. The majority notes that notwithstanding the absence of any

permanent address on Gerald’s arrest report, he testified at trial that, miraculously, he had

lived at the Steadham Road residence for many years. The majority’s opening paragraphs

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in this opinion are at best a closing argument to a jury, which the jury, of course,

unanimously rejected.

In the majority’s view, every weakness it perceives in the government’s evidence

leads automatically to a finding of inadmissibility. This drastic leap from the contestable

quality of evidence to the inadmissibility of the same ignores the fact that the whole

function of a trial is to test the strength of evidence. It is this conflation of weight and

admissibility that threatens to eclipse not only the trial court’s discretion, but ultimately the

advocates’ and the jury’s role.

The government did not pull Hall’s name out of a hat or embark on a witch hunt

against someone with prior drug convictions. Hall was not equally situated with his other

family members who only belatedly discovered that they did, after all, somehow manage

to live at the Steadham Road residence. The jury saw right through this. Spotting cock-

and-bull stories is one thing we have juries for. The case came down crucially to Gerald’s

credibility, which the jury, as the trier of fact, had the opportunity to judge, and which the

majority did not. For all the respect shown for the role of the jury in this case, it might as

well have sat outside the courthouse in the rain.

II.

Title 21 U.S.C. § 841(a)(1) provides that “it shall be unlawful for any person

knowingly or intentionally to . . . possess with intent to manufacture, distribute, or

dispense, a controlled substance.” Hall necessarily “placed these elements directly in issue

by his plea of not guilty,” and the government was required to prove each element beyond

a reasonable doubt in order to secure a conviction. United States v. Mark, 943 F.2d 444,

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448 (4th Cir. 1991).

Hall’s whole defense put his knowledge of the drug, and his intent to distribute it,

squarely into dispute. He claimed his knowledge of the illegal substance and the guns was

minimal because they were all locked away in some back bedroom to which he had no

access. He further adduced evidence that his cousin Gerald was the only one who had any

intent to distribute the drugs and that Hall could not possibly have had any such plan. The

elements of knowledge and intent, of course, are the very issues on which Rule 404(b)

evidence is admissible. And this dispute was not some peripheral matter, as the majority

contends. It was the whole show.

In the majority’s view, Hall is entitled to a free pass. He gets to advance his claim

of utter disinvolvement with the drug business in his own home while the government is

left with a hand tied behind its back.

This was the precise evil which Rule 404(b) was intended to prevent. “In drug cases,

evidence of a defendant’s prior, similar drug transactions is generally admissible under

Rule 404(b) as evidence of the defendant’s knowledge and intent.” United States v.

Cabrera-Beltran, 660 F.3d 742, 755 (4th Cir. 2011). “Consequently, we have construed

the exceptions to the inadmissibility of prior bad acts evidence broadly, and characterize

Rule 404(b) as an inclusive rule, admitting all evidence of other crimes or acts except that

which tends to prove only criminal disposition.” United States v. Powers, 59 F.3d 1460,

1464 (4th Cir. 1995) (internal quotation marks omitted); see United States v. Briley, 770

F.3d 267, 275 (4th Cir. 2014); United States v. Rooks, 596 F.3d 204, 211 (4th Cir. 2010).

And it is longstanding law in this circuit that “we may sustain the admission of such

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evidence on any viable theory.” United States v. Blauvelt, 638 F.3d 281, 292 (4th Cir.

2011); see, e.g., Cabrera-Beltran, 660 F.3d at 755; United States v. Johnson, 54 F.3d 1150,

1156 (4th Cir. 1995); United States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995); United States

v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986). Evidence of Hall’s prior convictions was

unquestionably relevant and highly probative, not as character evidence, but to establish

knowing possession of marijuana with intent to distribute. It also explained why Hall was

so willing to sacrifice his cousin Gerald in a thinly-veiled attempt to save himself from

more serious punishment.

A.

The majority objects to the Rule 404(b) evidence on two chief grounds: (1) that the

evidence was not relevant; and (2) that even if relevant, its probative value was so slight as

to be outweighed by its prejudicial effect. Neither of these grounds can withstand scrutiny.

I shall examine each in turn.

First as to relevance. Because the officers recognized an overwhelming smell of

marijuana when they entered the house, Hall’s extensive prior involvements with that very

drug were relevant to show that he was aware of its presence and that his actual or

constructive possession was therefore knowing or intentional, even if the contraband was

stored behind a locked door. It matters not that Hall never denied familiarity with the smell

because the government still had the burden to prove that Hall knew there was marijuana

in his home, especially when Hall contested his association with and access to the back

bedroom where the drugs were found. Establishing Hall’s ability to recognize marijuana

became all the more relevant when Hall’s uncles claimed they were unaware any marijuana

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was present at the Steadham Road residence. J.A. 363–64, 373, 380–81. In fact, Robert

Hendrix testified that he could not smell the marijuana right next to him in the courtroom.

J.A. 380–81. Hall’s extensive familiarity with the drug, by contrast, separated him from

those who claimed to share his residence.

In United States v. Rooks, we held that evidence of prior convictions is also

admissible to show a defendant’s “familiarity with the drug distribution business, as well

as his intent to distribute the drugs recovered.” 596 F.3d at 211. Hall’s prior convictions

were thus further relevant to establish his extensive knowledge of marijuana sales and

distribution, and therefore his related intent to engage yet again in just such prohibited

conduct.

Finally, Hall’s three prior convictions for possession with intent to distribute were

relevant to prove he was not just some innocent bystander to the illegal activity occurring

in his home or amongst his family. In United States v. Mark, we affirmed the admissibility

of prior drug activity to show that the defendant was “not an innocent friend of his

codefendants but rather . . . was responsible for the transaction at issue.” 943 F.2d at 448.

When Hall tried to pin sole responsibility for the relevant crime on his cousin, despite

Hall’s own close connection to the illegal activity, Hall’s prior history of committing the

same offense became immediately relevant. The evidence was likewise necessary to place

Hall’s defense in context, exposing further Hall’s transparent ploy to impose a minor

punishment on Gerald rather than suffer his heightened punishment as a recidivist career

offender. This was a routine case for the admission of Rule 404(b) evidence.

B.

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 Even if the evidence were relevant, the majority reasons, its slight probative value

was outweighed by its prejudicial effect. See FED. R. EVID. 403. The probative value of the

evidence, however, was anything but slight. Hall was indicted for knowing possession of

marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On March 5, 2004,

Hall was previously convicted of possession with intent to distribute marijuana. On

November 20, 2006, Hall was also convicted of possession of marijuana. On July 30, 2007,

Hall was again convicted on two separate counts pertaining to two separate instances of

possession with intent to distribute marijuana. The distributional convictions in particular

were three in number, involved the very drug at issue here, and involved the distributional

intent of which Hall stood accused, all of which combined to place the evidence within the

realm of district court discretion. The resemblance and similarity to Hall’s present

conviction are self-evident.

We have consistently held that “[t]he more closely that the prior act is related to the

charged conduct in time, pattern, or state of mind, the greater potential relevance of the

prior act.” United States v. McBride, 676 F.3d 385, 397 (4th Cir. 2012). Hall actually goes

so far as to concede in his brief that “the prior convictions were so similar to the current

charge of marijuana possession that they were arguably not evidence of ‘other crimes’ at

all but evidence tending to show a series of transactions or crimes and, thus, direct evidence

of guilt.” Appellant’s Br. at 33–34. Taking Hall at his word, evidence showing either a

pattern or series of related transactions is not character evidence at all and is per se

admissible. See McBride, 676 F.3d at 396; United States v. Basham, 561 F.3d 302, 326

(4th Cir. 2009). In his attempt to manufacture a distinction, Hall confirms the trial court’s

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ruling.

While Hall complains that this evidence was unfairly prejudicial, any prejudice

came not through the impermissible character of the evidence, but from the fact that it was

highly probative as to whether he possessed the knowledge and intent necessary to sustain

a conviction. See United States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997). In an

abundance of caution, the district court even provided a limiting instruction that was

approved by both parties, advising the jury that Hall’s prior convictions were “offered only

on the issue of knowledge and intent.” J.A. 64–65. We have repeatedly held that where, as

here, “the trial judge has given a limiting instruction on the use of Rule 404(b), the fear

that the jury may improperly use the evidence subsides.” Queen, 132 F.3d at 997; see, e.g.,

Rooks, 596 F.3d at 212; United States v. Williams, 461 F.3d 441, 451 (4th Cir. 2006);

United States v. White, 405 F.3d 208, 213 (4th Cir. 2005); United States v. Hodge, 354

F.3d 305, 312 (4th Cir. 2004). Hall’s prior convictions, moreover, could not have been

unfairly prejudicial because they “did not involve conduct any more sensational or

disturbing than the crimes with which [the defendant] was charged.” United States v. Byers,

649 F.3d 197, 210 (4th Cir. 2011) (quoting Boyd, 53 F.3d at 637). Evidence does not

become unfairly prejudicial simply by strengthening the case for conviction.

C.

Finally, the majority attempts to paint this whole case as simply a matter of

“dominion and control,” pivoting not on knowledge and intent, but solely on the question

of whether the defendant actually or constructively possessed the drugs in the back

bedroom. There are, at last count, at least three reasons why the majority is wrong. The

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first is that, as we have noted, Hall’s case squarely put knowledge and intent at issue by

claiming that his cousin Gerald was the only one to possess the necessary mens rea.

The second reason the majority’s argument falters is ironically that it misconceives

the government’s burden of proof. The government had to prove every element of the

offense with which Hall was charged. There was no stipulation or concession to any of

them. Specifically, Hall never stipulated that he was familiar with the smell of the drugs or

would have intended to distribute any marijuana in his possession.

But instead of looking at the case and the government’s burden as a comprehensive

whole, the majority chops it up piecemeal in a typical divide-and-conquer strategy. This

case is all about “possession,” it claims, not distributional intent. It does little good,

however, for the majority to split the elements of this crime and pretend that Hall was tried

on only one of them. The artificial segmentation that the majority attempts here

misperceives not only the government’s burden to prove each element of the offense

beyond a reasonable doubt, but the practical realities of controlled substance cases which

routinely devolve, as here, to disputed questions of mens rea, namely knowledge and intent.

If the government had proven only that Hall had dominion and control over the back

bedroom where the marijuana was found, as the majority would seem to require, Hall

would be here on appeal arguing that the government failed to establish the other elements

of the crime, notably culpable intent.

Third and finally, as I have noted, the majority disregards circuit precedent at every

turn. In fact, we have already rejected the position the majority now takes. As previously

explained, “A plausible interpretation of [Rule 404(b)] holds that evidence of other crimes

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may not be offered when the defendant unequivocally denies committing the acts charged

in the indictment. This circuit has no similar precept.” United States v. Hernandez, 975

F.2d 1035, 1040 (4th Cir. 1992) (citation omitted). While the majority forages for

quotations from other jurisdictions, the law in its immediate vicinity is clear.

III.

By all measures of logic and precedent, this should have been a straightforward case

unless, of course, past unlawful drug distribution is, as a matter of policy, but not of law,

to be discounted. The district court made a routine discretionary call to admit highly

relevant and probative evidence bearing directly on the elements of an alleged crime that

the defendant had directly placed into dispute. I would uphold that ruling. While my fine

colleagues in the majority opine at length about the errors of the trial court, the district

judge ultimately made the sensible decision that is now the subject of our review. What is

jarring here is the juxtaposition of the personal vantage point of an experienced district

judge with the majority’s remote and incorrect dissection of what went on before that

judge’s eyes.

The trial court concluded in the end that the evidence was relevant to knowledge

and intent, and gave a limiting instruction to that effect. And viewed from the broader and

most important perspective, the trial judge conducted a wholly fair trial. The defendant lost

here because his ludicrous effort to pin responsibility for his crimes on his cousin utterly

collapsed. But the district judge gave him every chance to shift the blame.

The dukes and earls of the appellate kingdom should learn to respect a trial court’s

job.

72