[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 22, 2005
No. 05-11451 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00685-CR-WBH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DESAUSSURE BREWER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 22, 2005)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Desaussure Brewer, a federal prisoner, appeals his conviction for possession
of heroin with intent to distribute, in violation of section 2 of Title 18 and sections
841(a)(1) and (b)(1)(B)(I) of Title 21 of the United States Code. Brewer argues
that the district court committed reversible error under Federal Rule of Evidence
404(b) when it admitted evidence of Brewer’s previous heroin distribution
conviction. Because the evidence of Brewer’s previous conviction was probative
of Brewer’s intent and the probative value of the evidence was not substantially
outweighed by the prejudice to Brewer, the district court did not abuse its
discretion when it admitted Brewer’s previous conviction. We affirm.
I. BACKGROUND
In October 2003, officers of the Atlanta Police Department arrested Henry
Terry when Terry attempted to make a heroin sale to a confidential informant. The
officers found over ten grams of heroin in Terry’s possession. After questioning,
Terry informed the officers that there was more heroin at his home and consented
to a search of the house.
When they approached Terry’s residence, the officers saw Brewer sitting in
a room near the front door. After the officers knocked on the door, Brewer
answered. When asked for identification, Brewer slammed the door on an officer’s
hand. Brewer was arrested for obstructing an officer.
Inside the residence, the officers noticed a strong smell of vinegar and
observed drug packaging materials and what appeared to be heroin. After they had
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obtained a search warrant, the officers searched the house and found approximately
100 grams of heroin, packaging materials, and digital scales. In the room where
Brewer had been sitting, the officers found approximately 62.5 grams of heroin, a
set of scales, a razor blade, small baggies, and mail and other documents addressed
to Brewer. After the search, the officers noted that Brewer appeared to be under
the influence of drugs. Brewer told the officers that he was addicted to heroin and
was taking methadone to end the addiction.
Terry and Brewer were indicted in a two count indictment for possession
with intent to distribute heroin. Brewer’s case proceeded to trial, at which Brewer
presented a “mere presence” defense. Because Brewer’s intent was at issue, the
government sought to introduce evidence of Brewer’s 1991 conviction for
possession of heroin with intent to distribute under Federal Rule of Evidence
404(b) in addition to the offense conduct. The district court admitted the 404(b)
evidence over defense counsel’s objection because the court concluded that the
previous conviction was probative of intent and the probative value was not
substantially outweighed by its prejudicial effect. The district court gave a limiting
instruction and informed the jury that it could consider the age of the previous
conviction to decide whether it showed intent. The jury convicted Brewer on
Count Two of the indictment and acquitted him on Count One.
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After a sentencing hearing, the district court sentenced Brewer to 90 months
of imprisonment and six years of supervised release. The district court also
imposed a monetary assessment of $100 and a fine of $7200. Brewer appeals the
admission of his previous conviction as evidence.
II. STANDARD OF REVIEW
We review the rulings of the district court on the admissibility of evidence
for abuse of discretion. United States v. Abraham, 386 F.3d 1033, 1035 (11th Cir.
2004). We will reverse the district court only if any error was not harmless.
United States v. Church, 955 F.2d 688, 700 (11th Cir. 1992). “An error is harmless
unless there is a reasonable likelihood that [it] affected the defendant’s substantial
rights.” United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (internal
quotation marks and citation omitted).
III. DISCUSSION
Rule 404(b) provides that evidence that the defendant committed other
crimes or bad acts is not admissible to prove that the defendant acted in conformity
with his past behavior. Evidence of other bad acts is admissible for other purposes,
such as to prove motive, opportunity, or intent:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
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identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b).
To be admissible under Rule 404(b), evidence of other crimes or bad acts
must meet a three part test. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.
1992) (en banc). First, the evidence must be “relevant to an issue other than the
defendant’s bad character.” Id. “Second, the act must be established by sufficient
proof to permit a jury finding that the defendant committed the extrinsic act.”
United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). Finally, “the
evidence must possess probative value that is not substantially outweighed by its
undue prejudice, and the evidence must meet the other requirements of Rule 403.”
Miller, 959 F.2d at 1538.
Brewer erroneously argues that the admission of the Rule 404(b) evidence
was erroneous because the evidence was not necessary to prove intent and because
the probative value of the evidence was substantially outweighed by the prejudice
that would result from its admission. The evidence of Brewer’s previous
conviction was relevant to prove Brewer’s intent, which Brewer made a material
issue by pleading not guilty. Delgado, 56 F.3d at 1365. The government may
meet its burden to show intent “with qualifying 404(b) evidence absent affirmative
steps by the defendant to remove intent as an issue.” Id. Brewer did not take
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affirmative steps to remove intent as an issue, and, when Brewer argued a “mere
presence” defense, “the 404(b) evidence . . . was necessary to dispel [Brewer’s]
‘innocent explanation for his presence.’” United States v. Matthews, 411 F.3d
1210, 1227 (11th Cir. 2005).
The 404(b) evidence was not unduly prejudicial. “[T]he greater the
government’s need for evidence of intent, the more likely that the probative value
will outweigh any possible prejudice.” Id. at 1366 (internal quotation marks and
citation omitted). Because Brewer maintained a “mere presence” defense, the
government was forced “to prove [Brewer’s] criminal intent so as to negate any
innocent explanation for his presence.” Id. at 1365. Furthermore, as Brewer
acknowledges, the evidence against him was relatively weak, and his mere
presence at the scene of criminal activity was insufficient to support a finding of
guilt. See United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). The need
for the 404(b) evidence, therefore, was great and its probative value was not
substantially outweighed by its prejudicial effect. “[We have] found that extrinsic
drug offenses do not tend to incite a jury to an irrational decision,” Delgado, 56
F.3d at 1366, and the district court instructed the jury twice on the limited purpose
of the 404(b) evidence and the weight that could be given to its temporal
remoteness.
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IV. CONCLUSION
Because the evidence of Brewer’s previous conviction was relevant to his
intent and the probative value of the evidence was not substantially outweighed by
its prejudicial effect, the district court did not abuse its discretion when it admitted
the evidence at trial.
AFFIRMED.
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