United States v. Bell

GEORGE C. STEEH, District Judge,

dissenting.

I respectfully dissent. In the context of determining the admissibility of proposed Rule 404(b) evidence, the majority opinion correctly concludes that Bell’s general intent to possess the illegal drugs and firearms, and his specific intent to distribute drugs, were both placed at issue by his not guilty pleas. Majority Op. at 446-48. *449Estelle v. McGuire, 502 U.S. 62, 69-70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Mathews v. United States, 485 U.S. 58, 64-65, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)). Bell’s not guilty pleas put the government to its proofs that Bell knowingly or intentionally possessed the 11 kilograms of marijuana and 94.6 grams of crack cocaine found inside the residence, and that Bell specifically intended to distribute these drugs. 21 U.S.C. § 841(a)(1); United States v. Coffee, 434 F.3d 887, 897 (6th Cir.2006).

*448[T]he prosecution’s burden to prove every element of the crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense. In the federal courts, “[a] simple plea of not guilty ... puts the prosecution to its proof as to all elements of the crime charged.”

*449The majority analysis discusses reasons for refusing admission of Bell’s prior drug convictions to prove the absence of mistake or accident, or to prove specific intent to distribute the drugs, yet generally overlooks the government’s burden of proving Bell knowingly or intentionally possessed the drugs and guns. The district court properly focused its attention on the general intent required to prove the § 841(a)(1) crime of knowingly or intentionally exercising dominion and control over illegal drugs, in response to Bell’s defense that “he did not know these drugs were there or they were planted by someone else[.]” J.A. 482-83. The district court’s inclusion of “absence of mistake” and “absence of accident,” along with “intent,” as purposes for admitting Bell’s pri- or drug convictions, recognized the government’s burden of proving that Bell did not mistakenly or accidentally possess the drugs by simply living at the home where the drugs were found.

The district court also properly relied on United States v. Lattner, 385 F.3d 947 (6th Cir.2004) in deciding to admit Bell’s prior drug convictions under Rule 404(b). As reasoned in Lattner, “it seems logical that when [the defendant] pled not guilty to the offense of possession with intent to distribute, he put his general intent and specific intent at issue, thereby giving the government the burden to establish both beyond a reasonable doubt.” Id. at 957. Citing United States v. Ismail, 756 F.2d 1253 (6th Cir.1985), a case also relied on by the district court, the Lattner court recognized that “claims of innocent presence or association ... routinely open the door to 404(b) evidence of other drug acts.” Lattner, 385 F.3d at 957 (emphasis added).

Logically, Bell’s prior convictions represent compelling probative evidence of his general intent to possess the marijuana and crack cocaine. Bell’s history includes knowing and intentional acts in relation to illegal drugs, making it much less plausible that Bell lacked knowledge on this occasion of the presence of over 11 kilograms of marijuana, 94.6 grams of crack cocaine, eleven firearms, drug packaging materials, and tools of the drug trade inside the home. Bell’s prior acts of drug distribution diminish the likelihood that he innocently overlooked the illegal contraband within the residence, and also diminish the chances that these items were planted or left at the residence by someone else.

In short, the Rule 404(b) evidence of Bell’s four prior drug convictions is powerfully probative of Bell’s general and specific intent. While the prior acts evidence greatly undermines Bell’s opening statement to thé jury that “he had no knowledge whatsoever about the contents that were in that house,” J.A. 72 (emphasis added), the prior acts evidence was not unfairly prejudicial. Bell’s closing argument criticizes the absence of any evidence of actual possession or direct evidence of his constructive possession of the contraband. J.A. 521-526. Just as the $1,800.00 cash in Bell’s pocket at the time of arrest constitutes important circumstantial evidence of his constructive possession, so does the prior acts evidence admitted by the court. The record below includes an accurate analysis of the Rule 403 balancing *450that preceded the decision to admit this evidence. The district judge’s admission of Bell’s prior convictions cannot be said to be an abuse of discretion, and if we truly afford great deference to the trial court’s decision, this conviction should be affirmed.