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).
14
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.
58
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
62
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.
63
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,
65
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
66
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
67
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
70
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.
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United States v. Harold Hall, Jr.
Court: Court of Appeals for the Fourth Circuit
Date filed: 2017-06-01
Citations: 858 F.3d 254
Copy CitationsCombined Opinion