U.S. v. Williams

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 91-1341

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANK WILLIAMS, JR.,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

(April 1, 1992)

Before THORNBERRY, KING, and DEMOSS, Circuit Judges.

THORNBERRY, Circuit Judge:

The defendant appeals his conviction for possession with

intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1).

Finding the district court's errors to be harmless, we affirm the

conviction.

I. Background

On October 31, 1990, DEA Task Force Officer Hughes was in the

Dallas-Fort Worth airport routinely watching passengers deplane

from an American Airlines flight arriving from Los Angeles.

Officer Hughes noticed an individual, later identified as the

defendant, Frank Williams, walk slowly down the jetway. Officer

Hughes later testified that Williams appeared to be nervous and was
looking over his shoulder as he walked. Williams approached the

American Airlines service attendant and asked from which gate the

flight to Baton Rouge was departing. Officer Hughes, believing

that Williams was exhibiting suspicious behavior, approached

Williams, identified himself as a police officer, and asked to see

Williams's ticket. Williams took his ticket out of the airline

ticket folder and handed it to Officer Hughes. Officer Hughes

testified that it was unusual for Williams to take the ticket out

of the folder, as most people he stops merely hand him the entire

folder. He also testified that Williams's hand was shaking as he

handed him the ticket. The ticket had been purchased with cash

that day and was a one-way ticket from Los Angeles to Baton Rouge,

with a connecting flight in Dallas. The passenger name on the

ticket was Frank Williams. Officer Hughes then asked to see

Williams's ticket folder, and Williams handed him the folder, which

had three baggage claim tickets stapled to the inside cover. After

giving Williams his ticket and ticket folder back, Officer Hughes

asked Williams for some identification. Williams showed him a

Louisiana driver's license in the name of Frank Williams, Jr. with

a New Orleans address. Officer Hughes then asked Williams whether

he lived in Los Angeles or Baton Rouge, and Williams replied that

he lived in Baton Rouge. Officer Hughes inquired as to the purpose

of Williams's trip to Los Angeles and Williams stated that he had

been visiting friends for a week or so. Officer Hughes returned

Williams's driver's license and thanked him for his courtesy.

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 Officer Hughes left the terminal and together with his trained

narcotic canine, Wally, drove to the area of the tarmac where the

baggage handlers were loading luggage onto the Baton Rouge flight.

Officer Hughes released Wally near three baggage carts that

contained 60 to 80 pieces of luggage, and instructed Wally to

"fetch the dope." (R., vol. 2 at 155). Wally began biting and

scratching an unlocked suitcase that had a luggage identification

tag with the name Frank Williams on it. Officer Hughes put that

suitcase and two others with Williams's name on them in his car and

drove back to the terminal. He took the suitcase that Wally

alerted to into the terminal and to the gate at which Williams was

waiting for the Baton Rouge flight. Officer Hughes asked Williams

if the suitcase belonged to him, and Williams responded

affirmatively. Officers Hughes testified that Williams's "chest

began heaving up and down" when he asked him whether the luggage

belonged to him. (R., vol. 2 at 123). Officer Hughes then asked

Williams whether he could search the suitcase, and Williams

consented.

Inside the unlocked suitcase, Officer Hughes found a pair of

khaki pants with lumps in the legs and knots tied at the bottom of

the legs. Officer Hughes asked Williams what the lumps were, and

Williams replied that he did not know. From inside the pant legs,

Officer Hughes retrieved two bundles that contained a white powdery

substance, later identified as 2,004 grams of 92% pure cocaine.

Officer Hughes informed Williams that he was under arrest.

Williams was taken to the task force office where he was searched

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by another officer, Officer Munday. Officer Munday testified that

he found a marijuana cigarette in Williams's wallet.

Williams was indicted and convicted of possession with intent

to distribute cocaine in violation of 21 U.S.C. § 841(a)(1).

Williams appeals his conviction on the basis that the district

court improperly admitted, as evidence of substantive guilt,

Officer Hughes's testimony that Williams fit a drug courier

profile, and that the district court improperly admitted evidence

of the marijuana cigarette.

II. Analysis

"We review a trial judge's admission of evidence under an

abuse of discretion standard." United States v. Moye, 951 F.2d 59,

61 (5th Cir. 1992) (citing United States v. Williams, 900 F.2d 823

(5th Cir. 1990)). Although we find that the district court erred

in admitting testimony regarding the drug profile and the marijuana

cigarette, the errors were harmless in light of the other

overwhelming evidence of Williams's guilt. See United States v.

Merida, 765 F.2d 1205, 1222 (5th Cir. 1985).

A. The Drug Courier Profile

The Government concedes that drug courier profiles are not

admissible as substantive evidence of guilt. (Appellee's Br. at

12) (citing United States v. Beltran-Rios, 878 F.2d 1208, 1211 (9th

Cir. 1989); United States v. Hernandez-Cuartas, 717 F.2d 552, (11th

Cir. 1983); United States v. Quigley, 890 F.2d 1019 (8th Cir. 1989)

cert. denied, 493 U.S. 1091, 110 S.Ct. 1163 (1990)). The

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Government maintains that the drug courier profile testimony in

this case was not admitted as substantive evidence of Williams's

guilt, but as background information. The record belies the

government's assertion, however, and demonstrates that the district

court admitted the testimony as evidence of Williams's guilt.

The plain language of the record confirms Williams's

contention that the drug courier profile was admitted to prove his

guilt. First, the district court expressly stated that it admitted

the testimony for its probative value, even after the defendant's

attorney objected to it on the grounds of relevance and unfair

prejudice. (R., vol. 2 at 119-20). Second, in an unrelated bench

conference, the defendant's attorney stated that the court "found

it relevant, to whether or not a person is guilty of possession

with intent to deliver cocaine, whether or not a person fits a drug

courier profile," and the court agreed with this statement. (R.,

vol. 2 at 151-52). Third, the Government argued the profile as

substantive evidence of Williams's guilt in its closing argument.

After discussing each element of the profile that Williams matched,

the Government attorney stated that the criteria of the profile

by themselves do not add up to anything, but once that
white, powdery substance was found and Officer Munday
testified that he performed a field test on it, the drug
courier profile, it proved to be not inaccurate. Nobody
told you that it was a science. But it shows you one
thing, that the defendant is guilty of the offense.

(R., vol. 3 at 28) (emphasis added).

In addition to the plain language of the record, the case law

demonstrates that the profile evidence was admitted as substantive

evidence of guilt. During Officer Hughes's testimony, he described

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the profile itself and then proceeded to list the characteristics

of the profile that Williams displayed. Other circuits have held

that testimony expressly comparing an individual defendant's

actions to a drug profile constitutes substantive evidence of

guilt. See United States v. Quigley, 890 F.2d 1019 (8th Cir. 1989)

("This point by point examination of profile characteristics with

specific reference to [the defendant] constitutes use of the

profile not as background to explain or justify an investigative

stop, but as substantive evidence that [the defendant] fits the

profile and, therefore, must have intended to distribute the

cocaine in his possession.") cert. denied, 110 S.Ct. 1163 (1990);

United States v. Lui, 941 F.2d 844, 847 (9th Cir. 1991) ("As in

Quigley, here [the DEA agent] tied [the defendant's] actions to a

drug courier profile for the purpose of proving [the defendant's]

guilt."). Furthermore, the district court's failure to instruct

the jury to consider the profile testimony only as background

information supports the conclusion that the testimony was admitted

as substantive evidence of Williams's guilt. See United States v.

Gomez-Norena, 908 F.2d 497, 501 (9th Cir.) (finding no plain error

when the district judge twice cautioned the jury to consider the

profile testimony only as background material), cert. denied, 111

S.Ct. 363 (1990).

In light of (1) the manner in which the testimony was

admitted; (2) the district court's agreement with Mr. Fleury's

statement that the court admitted the profile evidence because it

was relevant to Williams's guilt; (3) the Government's statements

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in closing argument that encouraged the jury to accept the profile

as evidence of Williams's guilt; (4) the court's allowing the

witness to compare Williams's conduct with the profile

characteristics; and (5) the court's failure to limit the jury's

use of the profile evidence, we cannot accept the Government's

contention that the profile evidence was admitted as background

information. The testimony regarding the drug courier profile was

admitted as substantive evidence of Williams's guilt. This use of

the drug profile was, as the government concedes, error. Quigley,

890 F.2d at 1024. Drug courier profiles have long been recognized

as inherently prejudicial "because of the potential they have for

including innocent citizens as profiled drug couriers." United

States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir. 1983).

The profiles themselves are nothing more than a compilation of

characteristics which aid law enforcement officials in identifying

persons who might be trafficking in illegal narcotics. But the

fact that an individual fits the profile does not necessarily mean

that the evidence in a particular case will show that the person

was carrying drugs. It is the evidence showing the person's

connection to drug trafficking that must form the basis for the

conviction. Id. While the government may introduce evidence that

the defendant exhibited individual behaviors that make up the

profile, it is something entirely different to tell the jury that

all the behaviors together fit a law enforcement model of a drug

courier. Despite the wide latitude district judges have in

determining whether evidence is more probative than prejudicial,

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Moye, 951 F.2d at 61, in our view the probative value of a drug

courier profile is so low in relation to its prejudicial effect

that its admission is error. But see, United States v. Teslim, 869

F.2d 316 (7th Cir. 1989) (holding that drug courier profiles may be

introduced as substantive evidence of guilt); United States v.

Foster, 939 F.2d 445 (7th Cir. 1991) (finding no error in the

admission of profile evidence as evidence of guilt).

Having determined that the admission of the drug profile

testimony was error, we must now determine whether the error was

harmless. "[U]nless there is a reasonable possibility that the

improperly admitted evidence contributed to the conviction,

reversal is not required." Schneble v. Florida, 405 U.S. 427, 92

S.Ct. 1056 (1972); United States v. Lui, 941 F.2d 844, 848 (9th

Cir. 1991); United States v. Jones, 913 F.2d 174 (4th Cir. 1990)

cert. denied, 111 S.Ct. 766 (1991).

At least three other circuits have addressed whether the

admission of a drug courier profile as substantive evidence of

guilt was harmless error. In United States v. Lui, 941 F.2d 844,

848 (9th Cir. 1991) the Ninth Circuit found that despite the

district court's error in allowing the admission of a drug courier

profile as substantive evidence of guilt, other overwhelming

evidence of guilt rendered the error harmless:

The remaining evidence in the record overwhelmingly
demonstrated Lui's guilt. Lui was carrying nearly 28
pounds of high quality heroin in suitcases to which he
had the keys and knew the numbers to the combination
locks. His actions both before and after the discovery
of the drugs were suspicious. Finally, his story for
coming to the United States was completely discredited.
Lui was unable to produce the jade figurines he claimed

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 to be carrying, and his nephew testified at trial that he
did not own a shop and he had no plans to see Lui.

United States v. Lui, 941 F.2d 844, 848 (9th Cir. 1991).

In United States v. Jones, 913 F.2d 174 (4th Cir. 1990), the

Fourth Circuit found that the erroneous admission of profile

evidence to prove guilt was harmless error in light of the other

evidence of Jones's guilt. The evidence showed that an informant

told the police that Jones was selling crack cocaine, and that he

kept the crack cocaine in a brown medicine bottle in his pocket.

The informant's story was corroborated by an undercover agent who

had purchased crack from Jones in an undercover operation. The

police instructed the informant to purchase crack from Jones, and

the informant returned with the crack cocaine. The police searched

Jones's house and seized 10.5 grams of cocaine, $2,173.00 in cash,

and two guns.

In the leading Eighth Circuit case on this issue, United

States v. Quigley, 890 F.2d 1019 (8th Cir. 1989) cert. denied, 110

S.Ct. 1163 (1990), the court found that

[i]ndeed, Quigley's conviction is supported by
such substantial evidence that it is somewhat
difficult to understand why the profile
evidence was proffered. Quigley had in his
possession, in plain view, within an arm's
reach in the car, one kilogram of high-quality
cocaine. This, together with the notes on his
person indicating earlier drug transactions,
the frequent trips to Los Angeles with tickets
paid for in cash even though he was unemployed
and the large amount of money in his
possession when arrested provided ample
evidence for Quigley's conviction and also
provides a substantial basis for us to affirm
the conviction.

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Id. at 1024 (citations omitted). Two later Eighth Circuit cases

also held that the use of a drug courier profile as substantive

evidence was harmless error due to the overwhelming evidence of the

defendants' guilt. See United States v. Carter, 901 F.2d 683, 685

(8th Cir. 1990); United States v. Wilson, 930 F.2d 616, 619 (8th

Cir.) cert. denied, 112 S.Ct. 208 (1991).

Excluding the improperly admitted evidence of a drug profile,

the evidence in this case showed that (1) Williams appeared nervous

when deplaning; (2) before handing Officer Hughes his ticket

Williams removed it from the ticket jacket which contained the

baggage claim tickets; (3) Williams's hand was shaking badly as he

handed Officer Hughes the ticket; (4) Williams held a one-way

ticket that had been purchased with cash that day, even though he

said he had been visiting friends for a week or so; (5) the

narcotics dog alerted to a suitcase with Williams's name on it; (6)

Williams admitted that the suitcase belonged to him; (7) Williams's

chest began "heaving up and down" when Officer Hughes asked whether

the suitcase belonged to him; and (8) the officers found cocaine in

the unlocked suitcase. Although there is no direct evidence of

Williams's knowledge that the cocaine was in his suitcase, the

circumstantial evidence is overwhelming. See United States v.

Moye, 951 F.2d 59 (5th Cir. 1992) (noting that a defendant's state

of mind cannot ordinarily be proved by direct evidence). Because

the evidence bearing on Williams's guilt is overwhelming, Officer

Hughes's testimony that Williams's behavior matched a drug courier

profile did not substantially influence the jury. Therefore, the

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error was harmless. United States v. Lui, 941 F.2d 844, 848 (9th

Cir. 1991).

B. The Marijuana Cigarette

Williams also contends that the district court improperly

admitted extrinsic offense evidence under F.R.E. 404(b). The

district court overruled the defendant's objection to Officer

Munday's testimony that he found a marijuana cigarette in

Williams's wallet. Williams argues that the marijuana cigarette

was not relevant to any issue other than his bad character, and

that, even if relevant to an issue other than character, its

probative value was substantially outweighed by the potential for

unfair prejudice.

The admissibility of extrinsic evidence under Rule 404(b)1 is

governed by the two-part test established by this court in United

States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc)

cert. denied, 440 U.S. 920, 99 S.Ct. 1244 (1979). First, the court

must determine whether the extrinsic offense evidence is relevant

to an issue other than the defendant's character. Second, the

probative value of the evidence cannot be substantially outweighed

by its undue prejudice. See United States v. Rocha, 916 F.2d 219,

241 (5th Cir. 1990) cert. denied, 111 S.Ct. 2057 (1991). We review

1
F.R.E. 404(b) provides that "Evidence of other crimes,
wrongs or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident."

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the admission of the marijuana cigarette under the two-part Beechum

test.

1. Relevance of the Marijuana Cigarette

The district court found that Officer Munday's testimony

regarding the marijuana cigarette found in Williams's wallet was

relevant to his "motive, intent, preparation, plan, knowledge and

so on." (R., vol. 2 at 170). We find that the evidence that

Williams was carrying a marijuana cigarette in his wallet bears on

the issue of his knowledge, preparation, plan, or absence of

mistake. "Evidence is relevant if it makes the existence of any

fact at issue more or less probable than it would be without the

evidence." United States v. Williams, 900 F.2d 823, 826 (5th Cir.

1990). Evidence that Williams was carrying a marijuana cigarette

in his wallet makes it slightly more probable that he knew he was

carrying cocaine in his suitcase, and that he, rather than someone

else, placed the cocaine in the unlocked suitcase.

2. Probative Value of the Marijuana Cigarette

Although evidence of the marijuana cigarette is relevant, we

find that its probative value was slight. "The probative value of

extrinsic evidence correlates positively with its likeness to the

offense charged." Beechum, 582 F.2d at 915. As in United States

v. McDonald, 905 F.2d 871, 875 (5th Cir.), cert. denied, 111 S.Ct.

566, (1990), there is a "large leap" from evidence that Williams

was carrying a single marijuana cigarette in his wallet to an

inference that he was knowingly carrying 2,004 grams of cocaine in

his suitcase with intent to distribute it.

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 We need not determine, however, whether the probative value of

this evidence was substantially outweighed by the prejudicial

effect because any error that the district court may have committed

in admitting the evidence was harmless. In a harmless error

examination, "[w]e must view the error, not in isolation, but in

relation to the entire proceedings." United States v. Brown, 692

F.2d 345, 350 (5th Cir. 1982). As discussed in the previous

section, the evidence of Williams's guilt is overwhelming. Any

error in admitting the evidence of the marijuana cigarette would

not have substantially influenced the jury's verdict, and

therefore, was harmless. United States v. Bernal, 814 F.2d 175,

184 (5th Cir. 1987) (issue in harmless error inquiry is whether the

error itself had a substantial impact).

Although we base our holding on harmless error analysis, we

note that the district court never required the government to

articulate a basis for which the testimony regarding the marijuana

cigarette could be admitted. This court has stated that "a trial

judge faced with the problem of admissibility of other crimes

evidence should exercise caution and require the government to

explain why the evidence is relevant." United States v. Yeagin,

927 F.2d 798, 803 (5th Cir. 1991). Additionally, the court did not

carefully weigh the probative and prejudicial value of the

cigarette, but perfunctorily stated "I think that the possession of

the marijuana cigarette is some evidence bearing on motive, intent,

13
preparation, plan, knowledge, and so on."2 (R., vol. 2 at 170).

This case represents a situation in which the district court should

have carefully considered the probative and prejudicial weight of

the evidence.

2
Although the defense filed a pre-trial motion in limine
in an attempt to prevent the Government from introducing evidence
of the marijuana cigarette during the trial, the district court
refused to rule on the motion before trial. (R., vol. 2 at 92).
The district court ruled on the admissibility of the marijuana
cigarette during a bench conference:

MR. ABLE (ATTORNEY FOR THE GOVERNMENT): The only thing
I wanted to get into now was the fact he
searched the defendant and found a marijuana
cigarette inside the defendant's wallet,
. . . .
THE COURT: Okay.
MR. FLEURY: And, of course, we had that motion in
limine regarding that particular evidence.
THE COURT: And we have already dealt with that on the
motion in limine.
MR. FLEURY: I thought you had said to wait until the
context of the case.
THE COURT: Come on back up here, Mr. Able. What rule
were we talking with about, 404(b)?
MR. FLEURY: Yes, sir. And I have a brief on it.
THE COURT: Do you want to show me some authority real
quick?
MR. ABLE [sic]: It is in the brief that is filed with
the court.
THE COURT: I looked at that. I thought maybe you
meant something else.
MR. FLEURY: Nothing other than the brief in support of
my motion.
THE COURT: Okay. Well, I am going to overrule your
objection because I think that the possession
of the marijuana cigarette is some evidence
bearing on motive, intent, preparation, plan
knowledge and so on. And to whatever extent
it has any, what might be viewed as, unfair
prejudice, I think its probative value and
probative weight outweighs that.
MR. FLEURY: As to what? As to which of those is
it being offered for?
THE COURT: Pardon me. We've already made the ruling.
Let's go on. As to all of them.

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 III. Conclusion

We find that in light of the overwhelming evidence of

Williams's guilt, any error in admitting the drug courier profile

as evidence of guilt or evidence of the marijuana cigarette, did

not have a substantial effect, and therefore was harmless. For

this reason, we AFFIRM the conviction.

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