United States v. Terrance Matthews

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-15528 JUNE 8, 2005
THOMAS K. KAHN
CLERK
________________________

D. C. Docket No. 02-00109-CR-J-20-TEM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRANCE MATTHEWS,
a.k.a. Jack,
a.k.a. Say Jack,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(June 8, 2005)

Before TJOFLAT and HILL, Circuit Judges, and GRANADE *, Chief District
Judge.

*
Honorable Callie V. Granade, United States Chief District Judge for the Southern
District of Alabama sitting by designation.
TJOFLAT, Circuit Judge:

Following a jury trial in the United States District Court for the Middle

District of Florida, Terrance Matthews was convicted of one count of conspiracy to

distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 846,

841(a)(1) and two counts of obstruction of justice by intimidation of a witness in

violation of 18 U.S.C. § 1512(b)(1). The district court sentenced Matthews to 292

months of imprisonment and ten years of supervised release on the conspiracy

count and imposed concurrent sentences of ten years of imprisonment and three

years of supervised release on each of the witness intimidation counts. On appeal,

Matthews raises four issues:1

• whether wiretap evidence should have been excluded because the recordings

were not sealed in compliance with 18 U.S.C. § 2518(8)(a);

• whether evidence of a telephone conversation not involving Matthews

1
Matthews belatedly sought to challenge the constitutionality of his sentence in light of
Blakely v. Washington, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Briefing in this case was
completed before Blakely was decided, but a little more than four months before oral argument
Matthews sought permission to file a supplemental brief challenging the constitutionality of his
guideline sentence in light of Blakely. That motion was denied, as required by circuit precedent.
See, e.g., United States v. Curtis, 380 F.3d 1308 (11th Cir. 2004) (holding that we will not
permit supplemental briefs raising Blakely claims that were not advanced in defendants’ pre-
Blakely initial briefs notwithstanding the fact that such claims were squarely foreclosed by
circuit precedent prior to Blakely). But see United States v. Levy, 391 F.3d 1327, 1345-1347 &
nn.15-17 (11th Cir. 2004) (Tjoflat, J., dissenting from the denial of rehearing en banc)
(explaining that “this court is truly a minority of one on this issue” and collecting cases).
Because we vacate Matthews’s conviction, this issue is moot.

2
 should have been excluded because it was hearsay, irrelevant, and unfairly

prejudicial;

• whether there is sufficient evidence to sustain the witness intimidation

convictions;

• whether the district court erred by admitting evidence of Matthews’s 1991

arrest under Federal Rule of Evidence 404(b); and

Part I recounts the course of the proceedings in the district court. Parts II-V

address Matthews’s four claims. In Part V, we conclude that the district court

committed error in admitting evidence of Matthews’s 1991 arrest and that this error

cannot be deemed harmless. For this reason, Matthews’s convictions must be

reversed.

I.

At trial, the Government presented evidence that Matthews was part of a

significant, though somewhat informal and irregular, conspiracy to distribute

cocaine in Jacksonville and Miami. DEA Agent Frank Orochena testified that the

DEA began investigating the conspiracy in July 2000 when Nathaniel King, also

known as “Peewee,” offered to cooperate with them. Peewee was involved in the

conspiracy as a courier. His job was to take cash from Jacksonville to Miami and

then return to Jacksonville with cocaine for distribution there. Peewee’s employer

3
was Linwood Smith, a major participant in the Jacksonville end of the conspiracy.

In August of 2000, Peewee and an undercover agent bought five kilograms

of cocaine in Miami with cash provided by Linwood Smith. On the return trip to

Jacksonville, the DEA seized the cocaine in a staged stop. Peewee was allowed to

“escape” so that the investigation would not be compromised. The DEA was then

able to obtain authorization for wiretaps on Linwood Smith’s cell phone and two

cell phones owned by Farrell Alston, a major supplier in Miami. Smith’s phone

was monitored for sixty days. During this time more than 6300 calls were

intercepted, 319 of which were deemed “pertinent,” i.e., related to the conspiracy.

Matthews was not involved or mentioned in any of the pertinent conversations.

Alston’s phones were monitored for thirty days, and more than 2400 calls were

intercepted, 106 of which were deemed pertinent. One of the intercepted

conversations was between Matthews and Alston; Alston testified that he and

Matthews were discussing the sale of a kilogram of cocaine during the call.

Matthews’s name was also mentioned briefly in a conversation between Alston and

Jason Moore, another member of the conspiracy.

The DEA intercepted the Moore-Alston conversation at 5:21 P.M. on March

20, 2001. Near the end of the short call Moore told Alston that he would call “sa-

ous” because he had “the number programmed.” Alston testified that “sa-ous” was

4
one of Matthews’s nicknames; thus, Moore was going to call Matthews because he

had Matthews’s phone number programmed on his phone. Moore also told Alston

that he would “be on your end ’bout Thursday, Friday” and would “need power

pellets.” According to Alston, “power pellets” are ecstasy pills. Alston told Moore

that he would “get that set up for [him] then.”

An hour-and-a-half later, the Government intercepted the Matthews-Alston

call. During their conversation, Matthews asked Alston whether “J” (Jason Moore)

had called him. Alston said that he had. Matthews then asked whether Alston had

“put [Moore] on . . . twenty-six street.” Alston testified that “twenty-six street”

was a code for the price of a kilogram of cocaine; thus, Matthews was really asking

whether Alston had quoted Moore a price of $26,000 for a kilogram of cocaine.

Alston replied, “[H]ell no I wouldn’t give that to him for that.” Matthews said,

“Good. Just give it to me then.” In other words, according to Alston, Matthews

wanted Alston to give him the kilogram so that he could then sell it to Jason

Moore.2 At trial, Alston could not recall whether he actually sold Matthews this

2
The conversation went as follows:
MATTHEWS: “J” call you?
....
ALSTON: Who this, Jack?
MATTHEWS: Yeah.
ALSTON: Yeah he had call me.
MATTHEWS: Oh, you told ’em something?
ALSTON: What, a number?
MATTHEWS: Yeah.

5
particular kilogram of cocaine.

In July and October 2001, the DEA arrested a number of members of the

conspiracy. Among them were Farrell Alston, Anthony Wells, Shawn Richardson,

James Brown, Antonio Austin, Jason Moore, and Rodney Cannon, all of whom

eventually pled guilty and, pursuant to their plea agreements, cooperated with the

Government and testified against Matthews.

Farrell Alston was the first of the conspirators to testify at trial. Alston

testified to having sold more than 400 kilograms of cocaine during the course of

ALSTON: No, no, he ain’t, ah, he ain’t, ah he ain’t ask me nothing
’bout that.
MATTHEWS: Ah, when he ask you a number put him on, ah twenty-six
street.
....
ALSTON: Who gone, who gone, who ah, oh who gone do that?
MATTHEWS: Ah, you said on twenty-six street.
ALSTON: Shit, I a hell no wouldn’t give that to him for that.
MATTHEWS: Good. Just give it to me then.
ALSTON: Alright. I wouldn’t give that to him for that somebody
down with me, dawg.
MATTHEWS: So go more than that?
ALSTON: You goddamn right.
MATTHEWS: Where he at, twenty what?
ALSTON: For him?
MATTHEWS: Seven?
ALSTON: No less.
MATTHEWS: Oh okay, yeah, alright then.
ALSTON: Oh where, where you at, L’s house?
MATTHEWS: Yeah, L’s house.
ALSTON: I’m getting off at the one-o-three right now.
MATTHEWS: Yeah. Come by here.
ALSTON: Alright.
One of Matthews’s nicknames is “Say Jack” or “Jack.”

6
the conspiracy. As part of Alston’s plea agreement, the Government filed a §

5K1.1 motion 3 on his behalf, which led to a five-level sentence reduction for

substantial assistance.4 Alston also received a three-level reduction for acceptance

of responsibility. As part of the plea, the Government also declined to pursue any

sentencing enhancements based on a firearm found on Alston at the time of his

arrest. Alston was sentenced to 135 months in prison for his role in the conspiracy.

Without the aforementioned reductions, his applicable guideline range was 324 to

405 months—235 to 293 months even taking into account in the reduction for

acceptance of responsibility. The Government also filed a Rule 35 5 motion on his

behalf that was pending at the time of Matthews’s trial; Alston was hopeful that it

would result in a further reduction of his sentence.

3
“Upon motion of the government stating that the defendant has provided substantial
assistance in the investigation or prosecution of another person who has committed an offense,
the court may depart from the guidelines.” U.S.S.G. § 5K1.1
4
Throughout the opinion, we speak of various sentencing reductions, by which we mean
reductions from the “base offense level” under the Federal Sentencing Guidelines for the offense
to which the defendant pled guilty.
5
Federal Rule of Criminal Procedure 35(b)(1) provides that “[u]pon the government’s
motion made within one year of sentencing, the court may reduce a sentence if: (A) the
defendant, after sentencing, provided substantial assistance in investigating or prosecuting
another person; and (B) reducing the sentence accords with the Sentencing Commission’s
guidelines and policy statements.” All of the testifying co-conspirators faced ten-year statutory
mandatory minimums. Rule 35(b)(4), however, provides that “[w]hen acting under Rule 35(b),
the court may reduce the sentence to a level below the minimum sentence established by
statute.”

7
 At trial, Alston testified to the following facts regarding the conspiracy.

Alston and James Brown were partners in Miami, and Alston was introduced to

Matthews through Brown. Alston was responsible for getting cocaine, and Brown

had connections with buyers in Jacksonville, including Antonio Austin, Jason

Moore, and Linwood Smith. At first, Alston and Brown used Peewee as a courier.

Peewee would bring cash to Miami, and they would send twenty to forty kilograms

of cocaine at a time back to Jacksonville. After Pewee “escaped” from the staged

DEA stop, however, the Jacksonville customers began traveling to Miami to

purchase the cocaine in person. Alston’s main supplier was George Morales, but

he also bought cocaine from Matthews a few times when Morales didn’t have all

that he needed. Specifically, he purchased cocaine from Matthews—usually five

to ten kilograms, but once as much as twenty, at a price of $18,000 to $23,000 per

kilogram—“no more than about five or ten times” in 1999 and 2000. He also sold

Matthews one to three kilograms of cocaine on about five different occasions in

2000. He and Brown ceased doing business with Matthews, however, after he sold

them some bad cocaine sometime in 2000.

After Alston was sentenced and incarcerated in federal prison in Miami,

Matthews sent him four letters. The letters used pseudonyms, but Matthews

stipulated that he wrote them, and Alston knew that they were from Matthews.

8
The first letter began, “I been hearing some bad things about you old boy and it’s

coming from some people that seems to know you well.” It continued, “[T]he talk

is that you have went bad for those folks and you are lying on anyone to get time

cut . . . . [T]here is anuff brothers in there for nothing on the count of another

brother telling a lie on them.” Matthews also urged Alston not to “be another

sucker for those folks.” Alston understood this to mean that Matthews knew that

he was cooperating with the Government and wanted him to stop. The letter also

encouraged Alston “to seek the lord and pray and read that bible every day and ask

him to show you a way to get closer to him so you could be a better man in christ”;

Alston testified that he and Matthews had never discussed religion before.

The letter next stated:

I know you heard about sleep got killed[;] he got shot up in the car
one night[;] he died in the hospital a month later[;] thats why I say get
your self right with the lord because we don’t know when were
leaving here but we won’t to be right with Jesus.

“Sleep,” also known as “Blind,” owned a house in Miami where Matthews, Alston,

and other members of the conspiracy met to drink, smoke marijuana, shoot dice,

and hold dogfights. Alston understood Matthews to be advising him that he should

get himself “right” with God because “you don’t know when you’re going to die.”

At this point, the Assistant United States Attorney (AUSA) followed up by asking,

“And how did you take that? What did you understand that to mean?” Alston

9
explained, “I was taking it, you know, that I’m cooperating with the government,

so [Matthews] might have been making threatening gestures.” At the end of the

letter, Matthews urged Alston not to “be a ‘Judus.’”

In the second letter, Matthews again wrote that “sleep got shot up about four

times” and urged Alston to keep praying and reading the Bible. He also wrote:

I know you all ready know the talk on the streets is that you are
putting [Matthews] in the mix[.] [W]hats up with that man[?] We all
know that [Matthews] didn’t have anything to do with you’ll other
than gambleing and fighting dogs man[.] I don’t know but that’s crazy
too how that kid got indicted on that case with you all. Your son[6]
say that you aint saying nothing on no one, but why is it so hard for
you to help that man get out of this by just telling the truth to his
attorney[?]

Alston understood Matthews to be asking him why he would not tell the

Government that Matthews was not part of the cocaine conspiracy, since they both

knew that to be the “truth.” The letter then stated, “[I]f it was any one of us on the

one you know it won’t be a problem helping you if they put you in something over

there that you had no business with.” Matthews apparently meant that the people

who hung out at Blind’s house (“the one”) would all be willing to help Alston if he

were ever implicated in a crime he “had no business with.”

In the third letter, Matthews wrote,

[Y]ou don’t have your self together with God on believing in Jesus

6
Alston’s “son” was really a friend of Alston’s known as “Tit.”

10
 Christ his son because if you did you will be trying to do the right
thing and help a brother out . . . [Y]ou say you aint doing nothing to
no one[,] but I don’t need silence from you[.] I need . . . a true friend
to help me out because you know it aint . . . like they are trying to put
it. . . . I’m asking you for your consideration because you know the
truth.

Alston understood this to be yet another request that he tell the Government that

Matthews was not involved in the cocaine conspiracy, i.e., the “truth.” At the end

of the letter, Matthews added, “P.S. Sleep Died too!” and “Say Ough Love You!”

“Say Ough” is one of Matthews’s nicknames.

In the fourth letter, Matthews wrote, “I know you heard about old boy[;] that

junk was mess up.” Alston understood this to be yet another reference to Sleep’s

murder. He then wrote,

[T]hese folks is trying to lock say ough up[.] [W]hat’s up with you[?]
[A]re you doing what they say you are doing[?] . . . [Say ough] say he
been trying to get in touch with you but you won’t write back or
nothing or talk to his lawyer[.] [H]e say the reason he in this mess is
calling your phone and the folk think you’ll are talking about
something[.] [M]an you know that man didn’t have anything to do
with you all so way you not going to help that man out of these
mess[.] [T]hat man sick[;] he don’t know what to do[.] [Y]ou say you
not telling nothing on him but you still not trying to help him by
telling the truth[.] [H]ow will you feel if you got pick up for
something on seven one[7] and you know you don’t do nothing but
gamble round there but the folks say you do something else and no
one on seven one is trying to help you[?] . . . [I]t seems like I’m losing
everyone I love from niggers lying on them[;] you know that’s way
sleep got shot up because a nigger step to him and said he was telling

7
Blind’s/Sleep’s house was also known as the “seven one” because it was on 71st Street.

11
 the folks on him and they had a fight and that same night he got shot
up on the house . . . .

Alston interpreted this passage as yet another request that he cease cooperating and

tell the Government that Matthews had nothing to do with the conspiracy. He

understood the final quoted sentence to mean that Sleep had been killed because

someone thought that he was cooperating with the Government.

After Alston finished going through all four letters line-by-line, the AUSA

asked him what, in general, he understood the letters to be conveying to him.

Alston answered, “Like when he found out that I was cooperating, he made me

some threatening gestures.”

James Brown testified next. Brown testified that he had sold “hundreds” of

kilograms of cocaine during the course of the conspiracy. He pled guilty to

conspiring to distribute between fifteen and fifty kilograms. After the Government

filed a § 5K1.1 motion on his behalf, Brown received a sentencing reduction for

substantial assistance, and he was sentenced to 168 months in prison. Without the

§ 5K1.1 motion, he was facing 262 to 327 months based on his substantial criminal

history. The Government also filed a Rule 35 motion on his behalf that was

pending at the time of Matthews’s trial; Brown was hopeful that it would result in a

further reduction of his sentence.

Brown’s general description of his partnership with Alston was consistent

12
with Alston’s testimony. According to Brown, he and Alston purchased ten or

more kilograms of cocaine from Matthews “three or four times at the most” in

1998 and 1999. He also bought smaller quantities of cocaine from Matthews on

two other occasions. The cocaine involved in the second purchase turned out to be

bad; this was the same incident Alston testified to, and Brown also ceased doing

business with Matthews thereafter.

The third conspirator to testify was Antonio Austin. Austin was sentenced

to 188 months in prison for his role in the conspiracy. The Government filed a

Rule 35 motion that was pending at the time of Matthews’s trial; Austin was

hopeful that it would result in a reduction of his sentence. At trial, Austin testified

to the following facts concerning the conspiracy. Austin sold cocaine in

Jacksonville at a rate of about two kilograms per week. His primary suppliers were

Farrell Alston and James Brown in Miami. Peewee transported the cocaine from

Miami to Jacksonville until he was stopped in August 2000; after that, Austin

himself would go to Miami to get the cocaine. Austin met Matthews in late 1999

at Sleep’s house and first bought cocaine from him—specifically, 1.5 kilograms for

a price of $33,000—in December 2000 in a deal facilitated by James Brown. He

also bought one kilogram from Matthews in February 2001 for $22,000. He

witnessed Matthews deliver three kilograms of cocaine to Jason Moore on another

13
occasion.

Jason Moore, one of the primary dealers on the Jacksonville end of the

conspiracy, was the fourth member of the conspiracy to testify. Prior to his

indictment, Moore became concerned that Shawn Richardson, his “lieutenant,”

might be cooperating with the Government against him. To convince Richardson

that cooperating was a bad idea, Moore had two associates—“Mullet” and “Bubba

Ray”—“shoot up” Richardson’s house. Richardson, his wife, and his daughter

were all shot, but all three recovered. Eventually, Moore cooperated with the

Government and pled guilty to distributing between fifteen and fifty kilograms of

cocaine. Because of his substantial criminal history, Moore was sentenced to 324

months in prison. The Government filed a Rule 35 motion that was pending at the

time of Matthews’s trial; Moore was hopeful that it would result in a reduction of

his sentence.

At trial, Moore testified to the following facts concerning the conspiracy.

He also purchased cocaine from Alston and Brown and used Peewee as a courier

until August 2000. He met Matthews in 1998 or 1999, and sometime in 1999

Matthews offered to supply him with cocaine at a lower price than Alston and

Brown. He did, in fact, purchase two kilograms or so of cocaine from Matthews at

Matthews’s house several times in 1999, 2000, and 2001. On one of these

14
occasions, Anthony Wells and Shawn Richardson were with him in Miami, and he

tried to transport the cocaine back to Jacksonville by putting it in the trunk of their

rental car without telling them; however, Wells and Richardson discovered the

cocaine before leaving Miami and refused to drive it back to Jacksonville, so

Moore had to drive it back himself.

After Moore was sentenced and incarcerated in federal prison in Miami, he

also received a letter from Matthews. Like the letters Alston received, this letter

used a pseudonym, but Matthews stipulated that he wrote it, and Moore knew that

it was from Matthews. In the letter, Matthews wrote, “I am not trying to call you a

rat[,] . . . [but] those white folks are saying that you and a couple of your homeboys

are going to comeback on my main man.” Moore interpreted this to mean that

although Matthews did not want to call Moore a “snitch,” the Government (the

“white folks”) had told him that Moore was, in fact, cooperating against him. The

letter also stated, “[S]leep got killed because they say he was working too[;] sleep

had a fight with a nigger about that and then the next thing he got shot up in a car

with this girl.” Moore understood this to mean that Sleep had been killed because

he was cooperating with the Government; that is, he understood Matthews to be

suggesting that “if you snitch, you going to get killed sooner or later.” The letter

then asked, “[I]f you would have gotten indicted for something on seven one and

15
you know all you do is gamble around there you will be sick and you will won’t to

know what’s up with those lying nigger wooden you?” In other words, Matthews

wanted to know why he had been indicted when all he did at Sleep’s house (the

“seven one”) was gamble. Matthews then reminded Moore that he had always

treated him well in Miami. He also told Moore that he had a lot of friends in

prison with him and that they had “sent word out about” him, which, according to

Moore, meant that they were telling Matthews that Moore was cooperating against

him. The letter then urged Moore not to cooperate and to “stay strong and read

that bible and start praying.” In closing, Matthews warned, “[W]hen that day come

we will all see who is doing this to that boy because everyone is saying they are

not talking or didn’t put this kid in this[;] time will tell and I will be right there to

see who really is a Judas.”

Rodney Cannon was the fifth conspirator to testify. Cannon pled guilty to

distributing one kilogram of powder cocaine and 150 to 500 grams of crack

cocaine. After receiving a three-level reduction for acceptance of responsibility

and a two-level reduction for his minor role in the offense, Cannon’s guideline

range was still 120 months (because he was facing a ten-year statutory mandatory

minimum) to 135 months in prison. But because the Government then filed a

motion on his behalf under 18 U.S.C. § 3553(e), Cannon also received a three-level

16
reduction for substantial assistance, and the court sentenced him to 78 months in

prison for his role in the conspiracy.8 The Government also filed a Rule 35 motion

that was pending at the time of Matthews’s trial; Cannon was hopeful that it would

result in a further reduction of his sentence.

At trial, Cannon testified to the following facts regarding the conspiracy. He

sold cocaine in Jacksonville at a rate of about four to six kilograms per month.

Jason Moore was his primary supplier. Moore is also Cannon’s brother. Cannon

was aware that Moore got his cocaine from Miami—at first from Alston and

Brown and, later on, from Matthews—and that Moore either brought it up from

Miami himself or used a courier such as Peewee. Cannon estimated that he and

Moore purchased a total of about fifty kilograms of cocaine from Matthews in

1999, 2000, and 2001, although Cannon did not meet Matthews until March 2000.

Cannon’s trial testimony seems to describe only two specific transactions

involving one to two kilograms of cocaine each. On both occasions, Matthews

actually delivered the cocaine to Moore outside of Cannon’s presence.

8
Because Cannon’s substantial assistance reduction put him under an otherwise
applicable statutory mandatory minimum, the Government had to file its motion under 18 U.S.C.
§ 3553(e) (“Upon motion of the Government, the court shall have the authority to impose a
sentence below a level established by statute as a minimum sentence so as to reflect a
defendant’s substantial assistance in the investigation or prosecution of another person who has
committed an offense.”) rather than simply under U.S.S.G. § 5K1.1. The same was true with
respect to Shawn Richardson and Anthony Wells. At trial, however, the parties simply referred
to the Government’s motions as a § 5K1.1 motions.

17
 Shawn Richardson batted sixth for the conspirators. Richardson was

initially subject to a ten-year mandatory minimum sentence for his role in the

conspiracy. The Government then filed a motion on his behalf under 18 U.S.C. §

3553(e), and he received a reduction for substantial assistance. He also received

reductions for acceptance of responsibility and his minor role in the offense, and he

was sentenced to only 48 months in prison. The Government also filed a Rule 35

motion that was pending at the time of Matthews’s trial; Richardson hoped that the

motion would lead to an additional sentence reduction.

At trial, Richardson testified to the following facts. He bought cocaine from

Jason Moore and Linwood Smith—about four or five ounces a week at a price of

$750 to $800 an ounce—and then resold it around Jacksonville. He ceased doing

business with Moore, however, after Moore hid two kilograms of cocaine in the

trunk of his rental car without his knowledge or permission. On that occasion,

Richardson let Moore and Matthews borrow his car. When they brought it back,

Moore gave him, Anthony Wells, and a friend of theirs named “Tiger” some gas

money for their drive back to Jacksonville. When the three of them stopped for

gas, however, they discovered the cocaine in the trunk. Richardson then called

Moore and told him that he was not going to drive the cocaine to Jacksonville, so

Moore drove the cocaine to Jacksonville himself. Richardson, Wells, and Tiger

18
then returned to Sleep’s house and got a flight to Jacksonville the next day. At

Sleep’s house, Matthews told Richardson that he had told Moore that “there was

too many of [them], there was too many to drive it back there like that there, man”;

Richardson understood “it” to be the cocaine in the trunk.

Anthony Wells rounded out the Government’s seven-conspirator lineup.

Wells initially faced a statutory mandatory minimum of ten years in prison. The

Government then filed a motion on his behalf under 18 U.S.C. § 3553(e), and he

received a reduction for substantial assistance. He also received reductions for his

minor role in the offense and acceptance of responsibility, and the court imposed a

sentence of only 72 months in prison. The Government also filed a Rule 35

motion that was pending at the time of Matthews’s trial; Wells hoped that it would

lead to a further reduction in his sentence.

Wells sold cocaine and marijuana in Jacksonville. His suppliers were

Linwood Smith and Jason Moore. Wells generally purchased cocaine from Moore

on a consignment basis in ounce quantities at prices ranging from $650 to $850 an

ounce. Rodney Cannon had told Wells that Moore, in turn, purchased cocaine

from James Brown, Farrell Alston, and Terrance Matthews. Wells himself saw

Matthews in Miami on two or three different occasions, although he never dealt

with him directly. At trial, Wells also testified about the incident in Miami

19
involving the two kilograms of cocaine in the trunk of the rental car. His account

of the incident was, in general, consistent with Richardson’s. He testified that after

they returned to Sleep’s house Matthews told him and Richardson that he had “told

Jason it wouldn’t work,” the “it” apparently being Wells, Richardson, and Tiger

driving the cocaine back to Jacksonville.

After the conspirators finished testifying, the Government called two

members of the Miami-Dade Police Department who testified about a 1991

incident involving Terrance Matthews. On December 31, 1991, the first officer

received a tip that there was a black male selling drugs out of the back of a

Chevrolet parked on a specific street corner in Miami. The officer located the car

and three times observed Matthews take a small package out of the trunk, hand it to

another individual, and take something in exchange for it. After the third

exchange, Matthews and the package’s recipient were arrested. The package

contained cocaine, and Matthews had about $2000 cash on his person. The

arresting officers then searched the Chevrolet’s trunk and found 251 grams of

cocaine, some marijuana, about $1500, and three guns. The drugs were all

packaged for street sale. According to the second officer, Matthews was willing to

talk and told them that he had “been in the game a while” but was just a “worker,”

not a “lieutenant.” In other words, he had been involved in street-level drug sales

20
for some time but was still near the bottom of the drug-trade hierarchy. His only

job was to resupply street-level sellers.

The officers’ testimony was admitted under Federal Rule of Evidence 404(b)

as evidence of Matthews’s “intent.” The jury was given the following instruction

(or a substantially similar one) three different times:

You may consider [the Rule 404(b)] evidence not to prove that the
defendant did the acts charged in the indictment, but only to prove the
defendant’s state of mind, that is, that the defendant acted with the
necessary intent or willfulness and not through acts of mistake.
Therefore, if you find, first, that the government has proved beyond a
reasonable doubt that the defendant did, in fact, commit the acts
charged in the indictment, and that the defendant also committed
similar acts at other times, then you may consider those other similar
acts in deciding whether the defendant committed the acts charged
here willfully and intentionally and not through an accident or
mistake.

During its closing argument, the Government argued that the 1991 incident

did, in fact, help to establish Matthews’s “intent”:

The intent in 1991 that the defendant had was to distribute cocaine.
He had those little baggies of cocaine in the trunk of his car and he
was out there distributing it back in 1991. And by the time of this
charged conspiracy in 1999 through June of 2001, the defendant had
that same intent. He had the same intent to distribute cocaine, only
now he was a bigger dealer. He’s dealing in kilograms of cocaine, not
little baggies of cocaine any longer.

In his own closing argument, Matthews’s counsel responded that the Government

had introduced the Rule 404(b) evidence precisely because it recognized the

21
dubious credibility of the witnesses on which its case rested. In rebuttal, the

Government dismissed defense counsel’s suggestion and maintained instead that

the evidence was “important” to the issue of “intent”:

[T]he defense wants you to just kind of breeze over this 1991 incident.
The 1991 incident is important. And it wasn’t because the
government was stretching and didn’t think they had a strong enough
case, that’s what the defense would like you to think. That evidence is
relevant and it’s important for you to consider in determining the
defendant’s intent to distribute cocaine. The evidence shows the
defendant’s intent to distribute cocaine. That’s why that evidence was
introduced and that’s why it was before you for your consideration.

The jury convicted Matthews on all counts—one count of conspiracy to

distribute five or more kilograms of cocaine and two counts of obstruction of

justice by intimidation of a witness.

II.

Matthews first argues that the district court erred in admitting two telephone

conversations—one between Jason Moore and Farrell Alston, and one between

Matthews and Alston—because the recordings were not sealed in compliance with

18 U.S.C. § 2518(8)(a). In relevant part, that subsection provides:

The recording of the contents of any wire, oral, or electronic
communication under this subsection shall be done in such a way as
will protect the recording from editing or other alterations.
Immediately upon the expiration of the period of the order, or
extensions thereof, such recordings shall be made available to the
judge issuing such order and sealed under his directions. . . . The
presence of the seal provided for by this subsection, or a satisfactory

22
 explanation for the absence thereof, shall be a prerequisite for the use
or disclosure of the contents of any wire, oral, or electronic
communication or evidence derived therefrom . . . .

Id. (emphasis added). The relevant order authorizing the interception of wiretap

communications, entered on March 16, 2001, provided that it would terminate

“upon attainment of the authorized objectives or, in any event, at the end of thirty .

. . days.” In its order denying Matthews’s motion to suppress the wiretap evidence,

the district court concluded that the order actually terminated when interceptions

ceased on April 10, 2001, presumably because “authorized objectives” had been

achieved at that time. The tapes were sealed two days later. The district court

concluded that this two-day delay was “not unwarranted” in light of other business

then occupying the court and the time required to package the tapes for sealing.

Three circuits have held that recordings are sealed “[i]mmediately upon the

expiration of the period of the order” if they are sealed within one or two days of

the expiration. United States v. McGuire, 307 F.3d 1192, 1204 (9th Cir. 2002);

United States v. Wilkinson, 53 F.3d 757, 759 (6th Cir. 1995); United States v.

Wong, 40 F.3d 1347, 1375 (2d Cir. 1994). We agree with this interpretation. The

statute requires the Government to provide a “satisfactory explanation” for failing

to seal the recordings “immediately.” See United States v. Ojeda-Rios, 495 U.S.

257, 262-65, 110 S. Ct. 1845, 1849-50, 109 L. Ed. 2d 224 (1990). If we

23
interpreted “immediately” to mean anything less than one or two days, we would

essentially transform the statute into a requirement that the Government seal the

recordings before, rather than “immediately upon,” the order’s expiration. Indeed,

when, as here, an order expires upon the achievement of “authorized objectives”

rather than on a fixed date, it is technically impossible to seal the recordings before

the expiration of the order; as such, reading “immediately” out of the statute would

effectively extend the “satisfactory explanation” to every such case. Thus, we

must give the term “immediately” some meaning. That being the case, we agree

with the Second, Sixth, and Ninth Circuits that “within one or two days” is a

reasonable, workable interpretation of that term. Accordingly, we conclude that

the recordings at issue here were sealed “immediately upon expiration of the period

of the order” within the meaning of the statute.9

III.

We next address Matthews’s arguments that relate to the Alston-Moore

conversation specifically. Matthews argues that the conversation is inadmissible

9
In its brief, the Government also argues that the tapes were sealed “before expiration of
the thirty-day period described in the authorizing order.” Although it is not framed as such, this
argument necessarily challenges the district court’s determination that the order actually
terminated on April 10 and its implicit finding that the order’s “authorized objectives” had been
achieved at that point. We do not address this contention because we conclude that the tapes
were sealed “immediately” even if the order terminated on April 10. For the same reason, we
also do not address the Government’s argument that it provided a “satisfactory explanation” for
the delay even assuming that the tapes were not sealed “immediately.”

24
hearsay because it was not “during the course and in furtherance of the conspiracy”

to distribute cocaine. Fed. R. Evid. 801(d)(2)(E). His theory is that because

Moore and Alston discussed an ecstasy sale, the conversation was in furtherance of

a different, unrelated conspiracy to distribute ecstasy, of which he was not a

member. On the same basis, he claims that the conversation was irrelevant under

Federal Rule of Evidence 401. Finally, he argues that because Moore and Alston

discussed “power pellets” (ecstasy) the evidence was unfairly prejudicial and

should have been excluded under Rule 403. “We review the admission of

[evidence under Rule 801(d)(2)(E)] for abuse of discretion, and the court’s factual

findings that the requirements of rule 801(d)(2)(E) were met under the clearly

erroneous standard.” United States v. West, 142 F.3d 1408, 1413 (11th Cir.1998),

vacated on other grounds, 526 U.S. 1155, 119 S. Ct. 2042, 144 L. Ed. 2d 211

(1999). We also review the district court’s application of Rule 401 and Rule 403

under an abuse of discretion standard. United States v. Tinoco, 304 F.3d 1088,

1121 (11th Cir. 2002).

Near the end of the Moore-Alston conversation, Moore tells Alston that he

will call Matthews because he has Matthews’s number programmed on his phone.

An hour-and-a-half later, Matthews called Alston. Matthews first asked Alston

whether Moore had called him, and Alston replied that he had. Matthews then

25
asked Alston whether he had told Moore “a number” and, more specifically,

whether he had “put [Moore] on . . . twenty-six street.” At trial, Alston testified

that this was code and that Matthews was really asking whether he had offered to

sell Moore a kilogram of cocaine for $26,000. Alston answered, “hell no I

wouldn’t give that to him for that.” Matthews said, “Good. Just give it to me

then.” Alston agreed.

Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not

hearsay if it “is offered against a party and is . . . a statement by a coconspirator of

a party during the course and in furtherance of the conspiracy.” “[W]hen the

preliminary facts relevant to Rule 801(d)(2)(E) are disputed, the offering party

must prove them by a preponderance of the evidence.” Bourjaily v. United States,

483 U.S. 171, 176, 107 S. Ct. 2775, 2779, 97 L. Ed. 2d 144 (1987). Matthews

argues that the Government did not show that the Moore-Alston conversation was

in “the course and in furtherance of [a] conspiracy” in which he was involved. We

are not convinced, however, that the district court’s finding to the contrary was

error, much less clearly erroneous. To recap, Moore told Alston that he would call

Matthews. When Matthews called Alston shortly thereafter, he asked Alston

whether he had talked to Moore, and Alston said that he had. From the recording

and the testimony at trial, it seems that Matthews then asked Alston whether he had

26
quoted Moore a price on a kilogram of cocaine. Moore said that he had not.

Matthews then asked whether Alston would sell the kilogram to him instead, and

Alston appears to have agreed to do so. In light of all this, it was perfectly

reasonable for the district court to conclude that Moore’s statement to Alston that

he would call Matthews related to the cocaine conspiracy. Matthews is correct that

Moore and Alston also discussed ecstasy during the call. He is also correct that he

was not charged with distributing ecstasy. But we see no reason to think that the

Moore-Alston conversation could not have been “during the course and in

furtherance of” two different conspiracies. Accordingly, we reject the argument

that it was inadmissible hearsay.

For the same reason, we reject Matthews’s claim that the evidence is not

“relevant.” “‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Fed. R. Evid.

401. Clearly, statements regarding Matthews made “during the course of and in

furtherance of the conspiracy” have some tendency to make Matthews’s

participation in the conspiracy more probable. They tend to show a connection

between Alston, Moore, and Matthews, and, therefore, support trial testimony that

Alston and Moore were customers of Matthews and that Matthews was an

27
occasional customer of Alston.

Finally, we reject the argument that this evidence should have been excluded

as unfairly prejudicial. Under Federal Rule of Evidence 403, “relevant[] evidence

may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice.” Matthews argues that he was unfairly prejudiced by the mention

of ecstasy (“power pellets”) in the Moore-Alston conversation. Most of the brief

conversation, however, did not involve drugs. Only at the very end of the call did

Moore tell Alston that he would be in Miami later that week and would “need

power pellets”; Alston responded simply that he would “get that set up for [him]

then.” Given that several of the conspirators testified to substantial personal use of

cocaine, marijuana, and ecstasy, any unfair prejudice resulting from this brief

exchange could not possibly have “substantially outweighed” the probative value

of the conversation. Therefore, the district court did not abuse its discretion by

refusing to exclude the conversation on this ground.

IV.

We next address Matthews’s claim that there was insufficient evidence to

convict him under 18 U.S.C. § 1512(b)(1), which provides in relevant part that

“[w]hoever knowingly uses intimidation, threatens, or corruptly persuades another

person, or attempts to do so, . . . with intent to influence, delay, or prevent the

28
testimony of any person in an official proceeding shall be fined . . . or imprisoned

not more than ten years, or both.”10 The indictment charged that Matthews with

both “intimidation” and “corrupt persuasion”; however, because the jury was

instructed as to intimidation only, we will review the sufficiency of the evidence on

that theory only.11

“We review challenges to the sufficiency of the evidence de novo. In so

doing, we view the evidence in the light most favorable to the Government, taking

all reasonable inferences and credibility determinations reached in the

Government’s favor.” United States v. Maxwell, 386 F.3d 1042, 1050 (11th Cir.

2004) (citation omitted). “The issue whether a communication is a threat is a

question of fact to be left to the jury.” United States v. Taylor, 972 F.2d 1247,

1252 (11th Cir. 1992). “If a reasonable recipient, familiar with the context of the

10
Although we reverse all of Matthews’s convictions for the reasons stated in Part V,
infra, “we must still rule on [his] sufficiency argument because if the . . . evidence presented by
the government was insufficient to carry its burden of proof, then . . . retrial would be prohibited
by the double jeopardy bar.” United States v. Khoury, 901 F.2d 948, 961 (11th Cir. 1990); see
also, e.g., United States v. Palzer, 745 F.2d 1350, 1352 n.4 (11th Cir. 1984) (“[The defendant’s]
argument[] relating to the sufficiency of the evidence . . . would . . . entitle him to a judgment of
acquittal . . . if successful. Because retrial would then violate double jeopardy, we are compelled
to address [his] claim[]. . . .” (emphasis added)).
11
Although the court initially instructed the jury that 18 U.S.C. § 1512(b) made it a crime
“to use intimidation toward and corruptly persuade with intent to influence, delay and prevent
the testimony of a witness,” it then further instructed that the defendant could be found guilty
“only if [the Government] proved beyond a reasonable doubt . . . that the defendant used or
attempted to use intimidation against [Moore and Alston].” The district court never elaborated
on the concept of “corrupt persuasion.”

29
communication, would interpret it as a threat, the issue should go to the jury.”

Martin v. United States, 691 F.2d 1235, 1240 (8th Cir. 1982), quoted in Taylor,

972 F.2d at 1251.12

While the evidence was not overwhelming, a number of statements in

Matthews’s correspondence to Alston and Moore convince us that it was more than

sufficient for a reasonable jury to conclude that Matthews was attempting to

intimidate Alston and Moore in order to prevent or influence their testimony. All

five of the letters discuss Sleep’s murder, and two specifically say that Sleep was

killed because he was cooperating with the Government. All of the letters suggest

that Matthews knew that the recipient was cooperating against him. Matthews

reminded Alston that one can never predict exact time of his death. He also

advised Moore that he had a lot of friends in the prison in which Moore was

incarcerated. The jury was, of course, free to infer that Matthews was merely

passing along news of Sleep’s unfortunate demise, reflecting on the fleeting nature

of human existence, and sending greetings to acquaintances on the inside. But they

certainly were not required to do so. Matthews’s sufficiency of the evidence

challenge is, therefore, without merit.

V.

12
Taylor and Martin addressed 18 U.S.C. § 876, which prohibits using the mails to make
threatening communications.

30
 A.

Finally, we turn to Matthews’s claim that the district court erred by

admitting Rule 404(b) testimony regarding his 1991 arrest. Federal Rule of

Evidence 404(b) provides in relevant part that

[e]vidence 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,
identity, or absence of mistake or accident . . . .

In United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc),13 we

explained that

[w]hat the rule calls for is essentially a two-step test. First, it must be
determined that the extrinsic offense evidence is relevant to an issue
other than the defendant’s character. Second, the evidence must
possess probative value that is not substantially outweighed by its
undue prejudice and must meet the other requirements of Rule 403.

Id. at 911.14 Under this framework, we evaluate whether evidence of Matthews’s

1991 arrest was admissible to prove “intent” in the instant case. The Government’s

13
In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
14
Obviously, extrinsic offense evidence is relevant only if the “offense was in fact
committed and the defendant in fact committed it. Therefore, . . . the Government must offer
proof demonstrating that the defendant committed the offense. If the proof is insufficient, the
judge must exclude the evidence because it is irrelevant.” Beechum, 582 F.2d at 912-13. Our
more recent cases have addressed this issue as an independent step in their Rule 404(b) analyses;
thus, the Beechum analysis now has three parts. See, e.g., United States v. Miller, 959 F.2d
1535, 1538 (11th Cir. 1992) (en banc). Matthews, however, does not contest the admission of
the 404(b) evidence on this ground.

31
theory is that “Matthews’s not-guilty plea placed directly at issue his intent to join

the charged conspiracy to distribute cocaine.” It explains that “Matthews’s defense

at trial that he did not participate in the alleged drug dealing focused squarely on

intent” because he “did not attempt to deny that he knew and associated with the

individuals testifying against him.”

The problem with this theory is that is impossible for us to imagine a

scenario under which the jury could have found that Matthews committed any of

the acts described by his accusers and yet lacked the requisite guilty intent. The

Government emphasizes that Matthews was charged with participation in a

conspiracy, which can be difficult to prove. That this is often true, however, is no

basis for admitting prior drug-related arrests whenever a conspiracy is alleged. “In

order to prove a conspiracy to distribute cocaine, the Government must establish

beyond a reasonable doubt: 1) the existence of an agreement among two or more

persons; 2) that the defendant knew of the general purpose of the agreement; and 3)

that the defendant knowingly and voluntarily participated in the agreement.”15

15
The jury in this case was correctly charged on conspiracy as follows:
In order to establish a conspiracy offense, it is not necessary for the government
to prove that all of the people who were members had entered into any kind of
formal agreement.
....
Distribution is the transfer or attempted transfer of possession from one
person to another.
What the evidence in this case must show beyond a reasonable doubt . . .
is: First, that two or more persons in some way or manner came to a mutual

32
United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). Here, the

Government’s witnesses testified to Matthews’s participation in numerous large

cocaine deals in 1999, 2000, and 2001. The quantities involved ranged from a

single kilogram to as much as twenty kilograms at prices of $18,000 to $23,000 per

kilogram. Such conduct is not open to an innocent explanation; that is, there was

no room for Matthews to say, “Well, yes, I did those things, but I did not intend to

conspire to distribute cocaine.” By the time the Government put on its 404(b)

evidence, it should have been clear that the Government’s case would rise or fall

based on whether the jury believed Matthews had committed the charged acts at

all, not on whether he possessed the requisite guilty intent.

The Government argues that it “needed the extrinsic evidence to satisfy its

understanding to try to accomplish a common and unlawful plan [to distribute
cocaine]; and, second, that the defendant knowing the unlawful purpose of the
plan willfully joined in it.
A person may become a member of a conspiracy without full knowledge
of all the details of the unlawful scheme or the names and identities of all the
other alleged conspirators.
So if a defendant has a general understanding of the unlawful purpose of
the plan, including the nature and anticipated weight of the substance involved,
and knowingly and willfully joins in that plan on one occasion, that is sufficient
to convict that defendant for the conspiracy even though the defendant did not
participate before and even though the defendant only played a minor part.
Of course, mere presence at the scene of a transaction or event, or the
mere fact that certain persons may have associated with each other and may have
assembled together and discussed common aims and interests does not standing
alone establish proof of a conspiracy.
Also a person who has no knowledge of a conspiracy but who happens to
act in a way which advances some purpose of one does not thereby become a
conspirator.

33
heavy burden” because its case “rested almost exclusively on the testimony of the

cooperating defendants whose agreements with the United States and . . . own

criminal behavior undercut their credibility—a matter thoroughly explored by

Matthews at trial.” We do not doubt that the Government thought that it needed

the extrinsic offense evidence. But it is clear that they did not need it to prove

intent. We cannot see how a juror would have found the witnesses’ credible to the

extent that they described buying large quantities of cocaine from Matthews on

numerous occasions over a period of more than two years and yet doubted that

Matthews did, in fact, intend to involve himself in conspiracy to distribute cocaine.

The suggestion is preposterous. What the Government really means is that it

“needed the extrinsic evidence to satisfy its heavy burden” because it feared that

the jurors would not believe its witnesses at all. The Government wanted the jury

to infer that Matthews was dealing drugs 1991 and was still dealing drugs in 1999,

2000, and 2001.16 This is precisely the inference the law does not allow. See, e.g.,

16
As noted above, in its closing argument, the Government argued that
[t]he intent in 1991 that the defendant had was to distribute cocaine. He had those
little baggies of cocaine in the trunk of his car and he was out there distributing it
back in 1991. And by the time of this charged conspiracy in 1999 through June
of 2001, the defendant had that same intent. He had the same intent to distribute
cocaine, only now he was a bigger dealer. He’s dealing in kilograms of cocaine,
not little baggies of cocaine any longer.
The Government’s references to “intent” are forced to the point of being ridiculous. If the jury
believed that Matthews was, in fact, “dealing in kilograms of cocaine, not little baggies of
cocaine any longer”—i.e., that he possessed two to forty pounds of cocaine, which he sold for
$20,000 to $400,000—as the Government’s witnesses testified, then there was no room for it to

34
People v. Zackowitz, 172 N.E. 466, 468 (N.Y. 1930) (Cardozo, C.J.) (“If a

murderous propensity may be proved against a defendant as one of the tokens of

his guilt, a rule of criminal evidence, long believed to be of fundamental

importance for the protection of the innocent, must be first declared away.”)

At oral argument, the Government essentially argued that evidence of prior

drug dealing is admissible whenever a defendant pleads not guilty to conspiracy

distribute drugs. The position taken seemed to be that the plea itself renders such

evidence automatically admissible—subject, perhaps, to exclusion under Rule

403—regardless of the theory of the defense or the other evidence presented by the

Government. This cannot be the law, and we take this opportunity to hold

emphatically that it is not the law.

The Government’s argument relies primarily on some expansive dicta from

United States v. Diaz-Lizaraza, 981 F.2d 1216 (11th Cir. 1993). In Diaz-Lazaraza,

the defendant (Diaz) and Frank Posada were arrested after Posada took delivery of

two kilograms of cocaine from an undercover agent. Diaz drove Posada to the

meeting place, but Posada and the agent then drove to the final transaction site in

the agent’s car, and Diaz drove off alone in the other direction. Diaz was arrested

in a nearby convenience store parking lot shortly after Posada was arrested. At

conclude that he lacked the intent to distribute cocaine.

35
trial, the agent testified that he recognized Diaz’s voice from an earlier telephone

conversation setting up the sale, and the beeper the agent called to set up the

meeting was found in the truck Diaz was driving. Diaz, however, claimed that he

had simply driven Posada to the meeting place and was not involved in any drug-

related activities. Id. at 1219-20 & 1224-25. Under these circumstances, we

upheld admission of Diaz’s prior arrest for possession of marijuana with the intent

to distribute:

In this case, far from stipulating to the requisite intent, Diaz’s “non-
participation” defense focused squarely on intent. The question in this
case was not whether Diaz was present at the shopping center during
the cocaine transaction with Agent Jordan; he clearly was. The
question was why Diaz was at the shopping center during the
transaction. Was he there in order to observe or supervise the
transaction, or merely by coincidence? This is a question of Diaz’s
intent.
However, even if Diaz’s “non-participation” defense had not
involved a question of intent, it still would not preclude the admission
of evidence of Diaz’s 1988 arrest to show criminal intent. A
defendant’s strategic decision not to focus the defense on the intent
issue falls far short of a stipulation that the defendant possessed the
requisite intent. Focusing the defense on an issue other than intent
does not reduce the prosecution’s burden to prove intent beyond a
reasonable doubt. Likewise, it should not prohibit the prosecution
from meeting that burden with otherwise admissible evidence.

Id. at 1225 (citation omitted).

The second quoted paragraph is dicta in the truest sense of the term, as it

addresses a hypothetical case that was not before the court. See, e.g., United States

36
v. Eggersdorf, 126 F.3d 1318, 1322 n.4 (11th Cir. 1997) (defining “dicta” as

language “not necessary to decide the case before us”). As such, it is not binding.

E.g., Dantzler v. IRS, 183 F.3d 1247, 1251-52 (11th Cir. 1999). Nor is it

persuasive.17 To the extent that Diaz-Lizaraza suggests that even when intent is not

realistically at issue it is necessary for the defendant to specifically stipulate to

intent in order to avoid the introduction of Rule 404(b) evidence, see 981 F.2d at

1224-25, we do not agree. On one hand, if the defendant’s intent is legitimately in

issue, we doubt that he can avoid Rule 404(b) evidence simply by offering some

abstract stipulation.18 See Old Chief v. United States, 519 U.S. 172, 190, 117 S.

Ct. 644, 655, 136 L. Ed. 2d 574 (1997). On the other hand, a formal stipulation in

this case would have required an awkward and unnecessary jury instruction—for

example, “You are instructed that the defendant denies conspiring to distribute

cocaine; the parties have stipulated, however, that if the defendant did conspire to

distribute cocaine, he did so knowingly and willingly.” Such an instruction would

17
As Judge Carnes has observed,
Somewhat like statements in a law review article written by a judge, or a judge’s
comments in a lecture, dicta can be used as a vehicle for offering to the bench and
bar that judge’s views on an issue, for whatever those views are worth. The
persuasiveness of the rationale given can increase the weight accorded those
views, but the fact that the views are formed and put forward in a context of a
case in which they do not matter will always subtract from the weight given them.
McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes, J., specially
concurring).
18
This issue is not before us and this statement is not necessary to decide this case.

37
almost certainly confuse the jury and prejudice the defendant to at least some

extent, and there is simply no need for it in a case such as this where the obvious

issue is whether the defendant committed the acts alleged, not whether he had the

requisite intent.

The Government also relies heavily on United States v. Delgado, 56 F.3d

1357 (11th Cir. 1995). In Delgado, we stated that

[a] defendant who enters a not guilty plea makes intent a material
issue, imposing a substantial burden on the government to prove
intent; the government may meet this burden with qualifying 404(b)
evidence absent affirmative steps by the defendant to remove intent as
an issue. Hernandez presented a “mere presence” defense, forcing the
government to prove his criminal intent so as to negate any innocent
explanation for his presence. The other crimes evidence went to
intent, not character.

Id. at 1365 (citation omitted). Thus, just as in Diaz-Lazaraza, the 404(b) evidence

in Delgado was necessary to dispel the defendant’s “innocent explanation for his

presence.” The other cases cited by the Government are similarly inapposite. See,

e.g., United States v. Calderon, 127 F.3d 1314, 1330 (11th Cir. 1997) (“The trial

judge admitted the evidence for the limited purpose of establishing . . . intent . . .

which he found had been put in issue by [the defendant’s] not guilty plea and by

his defense that he was merely present at the scene of the drug activity in order to

give his brother . . . a ride.”); United States v. Pollock, 926 F.2d 1044 (11th Cir.

1991) (theory of the defense: defendant did not know there was cocaine in his

38
rented car); United States v. Cardenas, 895 F.2d 1338, 1342-44 & nn.3-4 (11th Cir.

1990) (holding that extrinsic offense evidence was admissible to prove intent

where “the prosecutor stated that she anticipated [the defendant] would deny his

intent to be involved in the charged offense” and “defense counsel did not even

mention that he would refrain from contesting the intent issue”);19 United States v.

Hicks, 798 F.2d 446, 447-48, 450-52 (11th Cir. 1986) (“intent was clearly at issue”

where defendant and a former co-defendant were stopped on a boat carrying five

pounds of cocaine); United States v. Wyatt, 762 F.2d 908, 909 (11th Cir. 1985)

(“Wyatt asserted in defense that he was acting in his capacity as honorary deputy

for the county Sheriff’s Department. He argues that all of his . . . involvement in

the conspiracy [was] directed toward enticing the conspirators to land a plane laden

with marijuana at . . . a public airstrip run by Mr. Wyatt. Wyatt contends that,

19
When pressed at oral argument, the Government cited Diaz-Lizaraza and Delgado as
the best cases for its position, but Cardenas is probably better. In Cardenas, a Government
witness testified that the defendant, Cardenas, had delivered cocaine to him at a Gainesville,
Florida, health club on a single occasion. Cardenas denied any involvement in the transaction.
Prior to trial, the Government apparently argued that it should be allowed to introduce 404(b)
evidence to prove intent because it anticipated that Cardenas would dispute his intent to
distribute cocaine even if the transaction were proved. See Cardenas, 895 F.2d at 1340-43. In
response, the “defendant took no affirmative steps to indicate that lack of intent would not be a
defense in the case.” Id. at 1343. Given that the charged conduct involved only a single
delivery, it is possible that it would have been open to an innocent explanation, i.e., the
defendant did not realize that the substance he delivered was cocaine. See id. at 1343-44. In
such a case, if the defendant does not even suggest that he will “refrain from contesting the
intent issue,” id. at 1342 n.4, then it is not an abuse of discretion for the district court to admit
the evidence. But this is not such a case. Matthews’s accusers testified that he sold large
quantities of cocaine for hundreds of thousands of dollars over a period of several years. Such
conduct simply is not open to any plausible innocent explanation.

39
pursuant to a prior agreement with Sheriff Gunnells, if he provided information to

the Sheriff’s Department leading to the seizure of an airplane containing

contraband, the proceeds from the sale of the airplane would be used to buy a

helicopter. Wyatt would then be retained to maintain and fly the helicopter for the

Sheriff’s Department. At trial, Sheriff Gunnells corroborated Wyatt’s claim about

a prior agreement.”).

“Where intent . . . is a necessary conclusion from the act, and the act charged

is not equivocal, proof of other offenses, even though similar in nature, will not be

permitted.” M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41

Iowa L. Rev. 325, 328-29 (1956) (citing People v. Lonsdale, 81 N.W. 277 (Mich.

1899)), cited in Fed. R. Evid. 404(b) advisory committee’s notes. Put simply, if

the conduct charged is not open to a plausible innocent explanation, then extrinsic

offense evidence is not admissible to show intent. At a minimum, the Government

must be able to give the court a scenario in which the jury might find that the

defendant committed some or all of the acts alleged and yet lacked the requisite

criminal intent. If it cannot do so, its case must, as it should, rise or fall on the

strength of its evidence that the defendant committed the charged acts. In the

instant case, there is no way that a jury could have doubted that Terrance Matthews

knowingly and willfully entered into a conspiracy to distribute cocaine if it found

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beyond a reasonable doubt that he did what his alleged co-conspirators said he did.

Accordingly, evidence of Matthews’s 1991 arrest could have served no purpose

other than to prove a criminal propensity, and its admission was an abuse of

discretion.20

B.

The Government urges that we should nevertheless affirm Matthews’s

conviction because any error in admitting evidence regarding his 1991 arrest was

20
Our holding can be stated either of two ways. First, given that the charged conduct
simply was not open to an innocent explanation, the 404(b) evidence was not plausibly
“relevant” to the issue of intent. Relevant evidence is “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Fed. R. Evid. 401. If Matthews
committed the acts alleged, then he obviously intended to conspire to conspire distribute
cocaine; conversely, if he did not commit those acts, it is equally clear that he did not intend to
conspire to distribute cocaine. As such, the 404(b) evidence added nothing on the issue of
intent—i.e., it does nothing to make it “more probable” that Matthews intended to conspire to
distribute cocaine. It may well be that the evidence makes it more likely that Matthews actually
did distribute cocaine. But it is relevant in this sense only because it tends to show criminal
propensity and to suggest conformity therewith. This is precisely the (arguably relevant)
purpose and inference the rule forbids, and it was, therefore, an abuse of discretion for the
district court to admit the evidence.
Second, even starting with the abstract proposition that past instances of drug dealing
may be relevant to show whether a defendant intended to conspire to distribute drugs on a later
occasion, when, as here, the charged conduct is not open to an innocent explanation, the
“incremental probity” of the past drug dealing is virtually nil. In Beechum, we emphasized that
[p]robity in this context is not an absolute; its value must be determined with
regard to the extent to which the defendant’s unlawful intent is established by
other evidence, stipulation, or inference. It is the incremental probity of the
evidence that is to be balanced against its potential for undue prejudice.
582 F.2d 898, 914 (footnote omitted). Here, because logic compels that intent be inferred from
any or all of the acts alleged, the 404(b) evidence’s incremental probity was zero. In contrast,
the danger of unfair prejudice was considerable. Accordingly, the evidence’s admission was
also an abuse of discretion under the Rule 403 stage of the Beechum analysis. See Beechum,
582 F.2d at 911, 914-17; see also United States v. Jackson, 339 F.3d 349, 354-57 (5th Cir. 2003).

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harmless. See 28 U.S.C. § 2111; Fed. R. Crim. P. 52(a); Fed. R. Evid. 103(a).

“[E]videntiary and other nonconstitutional errors do not constitute grounds for

reversal unless there is a reasonable likelihood that they affected the defendant’s

substantial rights; where an error had no substantial influence on the outcome, and

sufficient evidence uninfected by error supports the verdict, reversal is not

warranted.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990). If,

however, we “cannot 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, it is impossible to conclude that substantial

rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct.

1239, 1248, 90 L. Ed. 1557 (1946). The question is not “merely whether there was

enough to support the result, apart from the phase affected by the error.” Id. The

question is “whether the error itself had substantial influence. If so, or if one is left

in grave doubt, the conviction cannot stand.” Id. The Government bears the

burden of persuasion on this issue. See United States v. Olano, 507 U.S. 725, 734,

113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993).

The error committed here cannot be deemed harmless. There is at least a

“reasonable likelihood” that it had an effect on the jury verdict. Consequently, we

are “left in grave doubt” as to whether the error influenced the jury, and we

42
certainly “cannot say, with fair assurance,” that it did not. As noted above, the

Government itself argues that it “needed the extrinsic offense evidence to satisfy its

heavy burden” because its case “rested almost exclusively” on the dubious

credibility of its witnesses.

As described in Part I, most of the testifying co-conspirators had already

received significant sentence reductions for substantial assistance, and all had Rule

35 motions hanging over their testimony. On cross-examination, Matthews’s

counsel also brought out the fact that all these witnesses had been incarcerated in

close proximity to one another for several months at the same small county jail. In

his closing argument, he used this fact to argue that surely this was enough time for

them to “get 15, 20, 30, 40 minutes’ worth of story together” for trial. The

Government’s suggestion that they had not even discussed their testimony all those

months because they had been instructed not to was, he argued, “almost laughable,

. . . an insult.”

For the Government to prove its case beyond a reasonable doubt, it needed

some glue to hold its witnesses’ stories together. It had Matthews’s phone call to

Alston.21 The two seem to be discussing a drug deal, and Alston testified that they

21
The Government also introduced the Alston-Moore conversation in which Moore said
that he would call Matthews because he had Matthews’s number programmed on his phone.
This call does show that Moore, Alston, and Matthews knew one another, but Matthews did not
contest this much at trial. Consequently, this call did relatively little to support the testimony of

43
were, in fact, discussing the sale of a kilogram of cocaine—although he could not

remember at trial whether that deal ever actually took place. However, this single

call and the testimony of Matthews’s alleged co-conspirators were essentially all

the Government had to rely on. This might have been enough to solidify the

Government’s case. But we cannot know whether it was enough because the

Government itself was concerned that it was not and thus sought to introduce

evidence of Matthews’s 1991 arrest. Despite the district court’s limiting

instruction, it seems fairly likely to us that the Government’s witnesses seemed

credible to the jury only because Matthews had been caught dealing drugs once

before. Indeed, despite her strained references to intent, this is essentially the

inference the AUSA suggested to the jury when, during her closing argument, she

argued,

The intent in 1991 that the defendant had was to distribute cocaine.
He had those little baggies of cocaine in the trunk of his car and he
was out there distributing it back in 1991. And by the time of this
charged conspiracy in 1999 through June of 2001, the defendant had
that same intent. He had the same intent to distribute cocaine, only
now he was a bigger dealer. He’s dealing in kilograms of cocaine, not
little baggies of cocaine any longer.

Considering all the remaining evidence without the taint of the evidence that was

erroneously admitted, it is impossible for us to say with any degree of confidence

the testifying co-conspirators regarding Matthews’s involvement in the conspiracy.

44
that the error did not substantially influence the jury’s decision.

VI.

For the foregoing reasons, Matthews’s convictions are

REVERSED.

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