United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 2007 Decided April 13, 2007
No. 05-3027
UNITED STATES OF AMERICA,
APPELLEE
v.
DEON DOUGLAS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00487-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued the
cause for the appellant. A. J. Kramer, Federal Public Defender,
was on brief for the appellant.
Patricia A. Heffernan, Assistant United States Attorney,
argued the cause for the appellee. Jeffrey A. Taylor, United
States Attorney, and Roy W. McLeese III and David B.
Goodhand, Assistant United States Attorneys, were on brief.
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Deon Douglas
(Douglas) was indicted on one charge of possessing with intent
to distribute (PWID) five grams or more of crack cocaine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). The
government moved to admit evidence of Douglas’s prior arrest
for PWID pursuant to Federal Rule of Evidence 404(b) (Rule
404(b)), arguing that it was relevant to Douglas’s knowledge
and intent regarding the pending PWID charge. In response,
Douglas asserted that the prejudicial impact of the evidence
substantially outweighed its probative value, making it
inadmissible under Federal Rule of Evidence 403 (Rule 403).
After conducting two evidentiary hearings, the district court
admitted the prior arrest evidence and a jury convicted Douglas
on the PWID charge. Douglas now appeals. As set forth below,
we affirm the district court’s admission of the Rule 404(b)
evidence.
I.
On November 7, 2002, members of the Metropolitan Police
Department’s (MPD) “Focused Mission Team” drove “between
three and four” unmarked vehicles into the cul-de-sac at 59th
Place in northeast Washington D.C., “a high drug area for sales
of crack cocaine.” 2/19/04 Tr. 155–56, 158.1 As the officers
entered 59th Place they observed Douglas standing in the cul-
de-sac “beside a blue . . . Honda Prelude,” id. at 157, and
“leaning towards” a nearby idling car “to talk to someone in the
car,” 2/20/04 (a.m.) Tr. 6–7. Douglas “looked square, directly
towards” the approaching vehicles “and then immediately took
off running” in the direction of East Capitol Street. 2/19/04 Tr.
47–48; 2/20/04 (a.m.) Tr. 7. In response, three MPD officers
1
The facts are taken from evidence adduced both during the April
24, 2003 in limine hearing on the Rule 404(b) evidence and at trial.
3
exited their vehicles and pursued Douglas. 2/19/04 Tr. 48,
158–59; 2/20/04 (a.m.) Tr. 7–8. The officer leading the pursuit,
Peter Sheldon (Sheldon), followed “about . . . 5 to 10 feet”
behind Douglas as he ran down an alley and past the intersection
of East Capitol Street and Sixtieth Street. 2/19/04 Tr. 48. As
the two men ran through the alley, Sheldon noticed that Douglas
had a clear plastic bag, resembling “[a] sandwich bag,” in his
hand. Id. at 103. Thereafter, Sheldon observed Douglas
“throwing [the plastic bag] into the trash can” at the intersection
of East Capitol Street and Sixtieth Street—where the alley
reconnects with the main roadway—“and then continuing down
the sidewalk.” Id. at 106.2
Sheldon stopped abruptly “to recover whatever [Douglas]
had tossed in the trash can.” Id. at 49. The other officers,
however, rushed past Sheldon and maintained the pursuit
through a wooded area between Sixtieth Street and Southern
Avenue, id. at 161; 2/20/04 (a.m.) Tr. 14, ultimately
apprehending Douglas “crouched down behind some bushes
2
Neither of the other two officers chasing Douglas observed much
of the pursuit through the alleyway. Officer Airey Moore (Moore) ran
past the alley and straight to East Capitol Street and thus lost sight of
both Douglas and Sheldon once they entered the alley. See 2/19/04
Tr. at 159–60; 181–82. Officer James Black (Black) testified that,
because he was “a little bit slower than everybody else,” he was “a
little further back” during the chase through the alley and
consequently lost sight of Douglas. 2/20/04 (a.m.) Tr. 8. Although
Black did see Douglas run within a few feet of the trash can at the
intersection of Sixtieth Street and East Capitol Street, he was too far
away to observe what, if anything, Douglas did as he passed the trash
can. See 2/20/04 (p.m.) Tr. 37–38.
4
kneeling in the dirt,” id. at 14–15.3 While the other officers
continued to chase Douglas, Sheldon looked into the trash can,
which “was almost half-filled with water,” and observed the
clear plastic bag floating with other debris. 2/19/04 Tr. 50. A
crime scene search officer then arrived to photograph the plastic
bag inside the trash can, id. at 109–10, after which Sheldon
removed the plastic bag and discovered that it “contained 54
Ziplocs . . . packaged with a white rock substance,” id. at 55.
Sheldon “conducted a field test” of the white substance, “which
had a positive color reaction for the presence of cocaine,” id.,
and a Drug Enforcement Administration (DEA) chemist
subsequently confirmed that the recovered plastic bag contained
7.4 grams of crack cocaine, 2/23/04 Tr. 99, 103, 104.
Based on these events, Douglas was indicted on one count
of PWID five grams or more of crack cocaine in violation of 21
U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii).4 See Appendix for
Appellant (Appx.) at 20. The government moved in limine to
admit evidence pursuant to Rule 404(b) establishing that, on
August 24, 2001, Douglas was arrested at 58th Street in
3
Upon apprehending Douglas, Officer Black searched him and
recovered a Honda key. See 2/20/04 (a.m.) Tr.16–17; 2/20/04 (p.m.)
Tr. 17. Black then walked Douglas back to 59th Place and opened the
Honda Prelude with Douglas’s key. See 2/20/04 (p.m.) 17. A license
plate check indicated that the Honda was not registered and Officer
Black therefore entered the vehicle in search of evidence of
ownership. See 2/20/04 (a.m.) Tr. 18, 22. Inside the car, Black
discovered documents bearing Douglas’s name as well as a gun
hidden in the car’s sunroof. Id. at 23–24, 33–34.
4
The indictment also charged Douglas with possession of a firearm
by a felon in violation of 18 U.S.C. § 922(g)(1) and using, carrying
and possessing a firearm during a drug trafficking offense in violation
of 18 U.S.C. § 924(c)(1). Appx. at 19–20.
5
northeast Washington, D.C. for selling crack cocaine to an
undercover MPD officer. See id. at 22–23. The government
argued the evidence was admissible under Rule 404(b) because
it “illustrate[d] [Douglas’s] opportunity to possess the cocaine”
found in the trash can upon his arrest on November 7, 2002 as
well as “his motive and intent to distribute it, and the absence of
mistake.” Id. at 24. Douglas responded by asserting that the
probative value of his August 2001 PWID arrest was
substantially outweighed by its unfairly prejudicial impact
because, “[e]ven with a limiting instruction, jurors will have a
difficult time resisting the natural human impulse to make the
impermissible inference that someone who has previously
broken the law is more likely to break the law on a subsequent
occasion,” Appx. at 35, and thus the evidence should be
excluded under Rule 403. Following an evidentiary hearing, the
district court granted the government’s motion in limine,
concluding that the prior arrest evidence was “proffered for
reasons other than to show bad character, specifically, that . . .
Douglas had the intent to commit the crime charged . . . and had
knowledge,” 4/24/03 Tr. 111–12, and, consequently, admissible
under Rule 404(b), id. at 114.5
At trial, the government provided the testimony of Officers
Sheldon, Black and Moore to describe their pursuit and arrest of
Douglas on November 7, 2002. In addition, the government
presented the testimony of an expert in narcotics sales and
distribution in Washington, D.C, 2/20/04 (p.m.) Tr. 73, who
stated that an individual drug user “buy[s] a little bit [of crack]
at a time to satisfy [his] craving,” id. at 97, and thus would not
have purchased the quantity of crack cocaine discovered in the
5
The government’s in limine motion was heard by a different
district judge from the district judge who presided at Douglas’s trial.
6
trash can by Sheldon; instead, the expert opined, such a quantity
was likely intended for sale, id. at 96–98. Douglas sought to
impeach Sheldon, the only witness linking Douglas to the plastic
bag, by noting that Sheldon’s trial testimony regarding the
recovery and field testing of the crack cocaine, see 2/19/04 Tr.
111 (“I conducted the field test.”), differed from his earlier
testimony in support of the government’s in limine motion, id.
at 112–14. Douglas also presented a forensic chemist as an
expert witness, see 2/24/04 Tr. 80–83, to challenge the DEA’s
methodology in testing the substance recovered from the ziplock
bags, id. at 103–04, 117–18. Indeed, Douglas’s expert opined
that the DEA’s method did not “substantiate[]” the conclusion
that the recovered substance was crack cocaine, 2/25/04 Tr. 42,
as opposed to “imitation crack” such as hard soap, id. at 40.
Before the government presented evidence of Douglas’s
August 2001 PWID arrest at trial, Douglas renewed his
objection to its admissibility. See 2/19/04 Tr. 209. The district
court, believing that under Rule 403 “it’s really necessary to
hear [the Rule 404(b) evidence] in order to determine whether
or not that evidence should really come in,” 2/20/04 (a.m.) Tr.
49, heard—in the absence of the jury—the government’s
evidence of Douglas’s prior PWID arrest, namely testimony of
the arresting officers and the undercover officer to whom
Douglas sold the crack cocaine, see 2/23/04 Tr. 5–40. After
hearing further arguments from the parties, the district court
admitted the evidence because Douglas’s August 2001 PWID
arrest “would go to the question of intent to distribute, which is
a required element of the charged offense.” Id. at 64. Indeed,
the district court concluded that “the fact of [prior] distribution
of drugs certainly goes to the fact that the possession of the
drugs [in the charged offense] was, indeed, with the specific
intent to distribute,” id. at 64–65, and that the link to intent “and
7
perhaps . . . knowledge would make this evidence admissible”
under Rule 404(b), id. at 65.
Thus, on the afternoon of February 23, 2004, the government
presented the Rule 404(b) evidence of Douglas’s August 2001
PWID arrest. The following day, the district court instructed the
jury on the proper use of this evidence:
If you consider this evidence, you may use that evidence
only to help you decide whether the government has
proven beyond a reasonable doubt that the defendant
possessed the evidence in this case with the specific
intent to distribute cocaine base, and that he acted
knowingly and intentionally and with knowledge that the
substance in fact was cocaine base.
You may not consider that evidence for any other
purpose. You may not consider the evidence to
conclude that the defendant has a bad character or that
he has a criminal personality. The law does not permit
you to convict a defendant simply because you believe
he has committed other things not specifically charged
in this case.
You may not conclude from this evidence that because
the defendant may have allegedly sold cocaine to an
undercover police officer on August 24, 2001, that he
necessarily committed the acts charged in the indictment
in this case.
You may . . . only consider the evidence for the limited
purpose of showing whether the defendant, if he
possessed cocaine in this case, did so knowingly and
intentionally with the specific intent to distribute.
8
The defendant is on trial only for the crime charged in
this case, and you may only consider the prior alleged
acts on the issue of intent and knowledge.
2/24/04 Tr. 37–38. The district court repeated this instruction
verbatim in its closing charge to the jury. See 2/26/04 Tr.
92–93.6 The jury subsequently convicted Douglas of PWID
crack cocaine on November 7, 2002.7
Douglas moved for a new trial, claiming that the district
court erred in admitting the evidence of his August 2001 PWID
arrest, see Mot. for a New Trial, reprinted in Appx. at 39–45,
which motion the district court denied, see Mem. Order on Mot.
for New Trial at 12, reprinted in Appx. at 66. The district court
emphasized the government’s affirmative duty to prove
Douglas’s knowing possession of, and specific intent to
distribute, the crack cocaine, see id. at 57–58, and again found
the evidence of Douglas’s prior arrest relevant to the permissible
purposes of establishing his knowledge, possession and
intent regarding the drugs discovered on November 7, 2002, id.
at 58–60; see id. at 60 (“In sum, the Court finds that there were
at least three permissible avenues by which the 404(b) evidence
became relevant to this prosecution.”). Because it was relevant
for permissible purposes, the district court turned to “whether
the 404(b) evidence was properly admitted under [Rule 403].”
Id. at 61. The district court found the Rule 404(b) evidence
6
In his closing argument, the prosecutor stated that the evidence
was relevant only to show “that [Douglas] knows what crack cocaine
. . . looks like . . . [a]nd . . . that [Douglas’s] intent was to distribute the
crack cocaine that he had on November 7, 2002.” 2/26/04 Tr. 45–46.
7
The jury acquitted Douglas of the two counts related to the gun
discovered in the Honda Prelude. See Appx. at 67–68.
9
probative given the impeachment of the government’s witnesses
and the fact that none of the other evidence indicative of
Douglas’s intent and knowledge was “overwhelming.” Id. at
62–63. Moreover, “the jury was instructed on how the 404(b)
evidence should be used,” thereby protecting Douglas from the
danger of unfair prejudice and rendering the evidence admissible
under Rule 403. Id. at 63. Accordingly, the district court denied
Douglas’s new trial motion. Id. at 66. Douglas now appeals.
II.
“A proper analysis under Rule 404(b) begins with the
question of relevance: is the other crime or act relevant and, if
so, relevant to something other than the defendant’s character or
propensity [to commit crime]? If yes, the evidence is admissible
unless excluded under other rules of evidence such as Rule
403.” United States v. Bowie, 232 F.3d 923, 930 (D.C. Cir.
2000). Douglas argues that evidence of his prior PWID arrest
is both irrelevant to any purpose other than his criminal
propensity and unfairly prejudicial under Rule 403. “We review
a claim that a district court improperly admitted evidence under
Rule 404(b) solely to determine whether the court abused its
discretion.” United States v. Pindell, 336 F.3d 1049, 1056–57
(D.C. Cir. 2003); see also United States v. Cassell, 292 F.3d
788, 792 (D.C. Cir. 2002) (district court’s Rule 404(b) ruling
afforded “much deference on review”) (internal quotation
omitted). Moreover, because the “trial court is in the best
position to perform [the] subjective balancing” required by Rule
403, “its decision should be reviewed only for grave abuse.” Id.
at 795–96 (internal quotation omitted).
A.
Rule 404(b) provides 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.” Fed.
10
R. Evid. 404(b). Yet the rule permits such evidence for other
purposes, including proof of motive, intent, knowledge, identity
and absence of mistake. Id. Indeed, “Rule 404(b) is a rule of
inclusion rather than exclusion,” Bowie, 232 F.3d at 929,
“prohibiting the admission of other crimes evidence ‘in but one
circumstance’—for the purpose of proving that a person’s
actions conformed to his character.” United States v. Crowder,
141 F.3d 1202, 1206 (D.C. Cir. 1998) (en banc) (quoting United
States v. Jenkins, 928 F.2d 1175, 1180 (D.C. Cir. 1991)).
“Rule 404(b) thus is not so much a character rule as a special
aspect of relevance” because it “does not prohibit character
evidence generally, only that which lacks any purpose but
proving character.” Bowie, 232 F.3d at 930 (emphasis added).
Accordingly,
[A] Rule 404(b) objection will not be sustained if: 1) the
evidence of other crimes or acts is relevant in that it has
‘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;’ 2) the fact of consequence to which the
evidence is directed relates to a matter in issue other than
the defendant’s character or propensity to commit crime;
and 3) the evidence is sufficient to support a jury finding
that the defendant committed the other crime or act.
Bowie, 232 F.3d at 930 (quoting Fed. R. Evid. 401). Under this
standard, the district court properly admitted evidence of
Douglas’s August 2001 PWID arrest.8
8
Although Douglas contested the third part of the Bowie
test—evidentiary sufficiency—in his new trial motion, see Mot. for a
New Trial at Appx. 65–66, he does not raise this challenge on appeal.
See Appellant’s Br. at 12–30.
11
To support a conviction for PWID, the government had to
prove beyond a reasonable doubt that, on November 7, 2002,
Douglas (1) possessed a controlled substance; (2) knowingly and
intentionally and; (3) with the specific intent to distribute
that controlled substance. See 21 U.S.C. § 841(a)(1) and
841(b)(1)(B). The elements of the charged crime, therefore,
made both intent and knowledge matters of consequence to
Douglas’s case. “Intent and knowledge are also well-established
non-propensity purposes for admitting evidence of prior crimes
or acts.” Bowie, 232 F.3d at 930; see also Fed. R. Evid. 404(b).
Evidence that Douglas previously possessed and distributed
crack cocaine to an undercover police officer “has a tendency to
make” it “more probable,” Fed. R. Evid. 401, both that he knew
the nature of the substance—crack cocaine—he was charged
with possessing on November 7, 2002, and that he intended to
distribute it, see Cassell, 292 F.3d at 793 (“[I]n cases where a
defendant is charged with unlawful possession of something,
evidence that he possessed the same or similar things at other
times is often quite relevant to his knowledge and intent with
regard to the crime charged.” (internal citations omitted)).
Douglas challenges this conclusion by first arguing that his
prior arrest is not relevant because he did not dispute the
elements of knowledge and intent—the permissible non-
propensity purposes—at trial and, as a result, the only purpose
served by the evidence was to indicate criminal propensity. See
Appellant’s Br. at 10, 18. Yet “[a] defendant’s offer to stipulate
or concede an element of an offense . . . does not deprive the
government’s evidence of relevance,” Crowder, 141 F.3d at
1206 (citing Old Chief v. United States, 519 U.S. 172, 179
(1997)). Even if a defendant concedes an element of an offense,
the government still has the burden of proving that element to
the jury beyond a reasonable doubt. See, e.g., Cassell, 292 F.3d
at 794 (“It is fundamental to the criminal law of the United
12
States that the prosecution must prove every element of the
offense beyond a reasonable doubt.”). Indeed, the “standard rule
[is] that the prosecution is entitled to prove its case by evidence
of its own choice” because the “evidentiary account of what a
defendant has thought and done can accomplish what no abstract
statements [or stipulation] ever could.” Crowder, 141 F.3d at
1207 (quoting Old Chief, 519 U.S. at 187) (alteration added);
see also id. (“[T]he prosecution cannot be forced to stipulate
away the force of such evidence.”). Thus, “ ‘evidentiary
relevance under Rule 401 [is not] affected by the availability of
alternative proofs of the element,’ such as a defendant’s
concession or offer to stipulate.” Id. at 1206 (quoting Old Chief,
519 U.S. at 179) (alteration in original).
Douglas next asserts that, in light of the government’s other
evidence establishing knowledge and intent, his August 2001
PWID arrest did not make the existence of those elements “more
probable,” relying on our decision in United States v. Linares,
367 F.3d 941 (D.C. Cir. 2004). See Appellant’s Br. at 18–22.
The defendant in Linares was convicted of possession of a
firearm by a felon. See Linares, 367 F.3d at 945. At trial, the
government introduced evidence of the defendant’s past
possession of firearms under Rule 404(b). Id. On appeal, we
concluded the evidence was irrelevant under Rule 404(b), id. at
952, because “[g]iven the evidence in th[e] case,” “Linares’s
previous possession of a pistol [did not] make[] it any more
likely that he knowingly possessed a gun” at the time of his later
felon-in-possession arrest. Id. at 946. Specifically, the
government presented direct evidence, in the form of eyewitness
accounts, that Linares possessed the gun and that he knew that
the object was a gun—by testimony that he fired the gun—when
he possessed it. See id. at 946–47. In those circumstances, the
Rule 404(b) evidence provided no additional probative value
and was therefore not relevant. See id. at 952. “Indeed, no
13
reasonable jury could have acquitted Linares based on the belief
that the government proved possession but failed to prove
knowing possession.” Id. at 946–47. Instead, “[i]f the jury
believed the[] eyewitnesses, then Linares possessed the gun
knowingly” and thus the prior possession evidence was
inadmissible because the government could not use it “to prove
an element that the government’s evidence ha[d], by completely
precluding an acquittal based on a failure to prove that element,
effectively (though not formally) eliminated.” Id. at 947.9
9
Douglas misconstrues our holding in Linares in arguing that, in
light of the government’s other evidence establishing his knowledge
and intent, his August 2001 PWID arrest did not make the existence
of those elements “more probable,” thereby rendering the evidence
irrelevant under Rule 404(b). See Appellant’s Br. at 18–22. While
Douglas reads Linares to find prior bad act evidence irrelevant if the
government’s other evidence is sufficient to establish the elements of
the offense, the Supreme Court has made clear that “evidentiary
relevance under Rule 401 [is not] affected by the availability of
alternative proofs of the element.” Old Chief, 519 U.S. at 179.
Indeed, Douglas’s reading of Linares appears to combine Rule 403’s
balancing of probative value against unfairly prejudicial impact with
the Rule 404(b) relevance inquiry. See Appellant’s Br. at 21 (given
the government’s other evidence of intent and knowledge, “the
introduction of the [Rule 404(b) evidence] offered little, if any,
probative value beyond its tendency to show that Douglas was a drug
dealer”); see also id. at 19–21 (describing Linares and asserting “this
case is controlled by Linares”); cf. Linares, 367 F.3d at 947 (“[T]rial
judges should not . . . allow the government to introduce 404(b)
evidence to prove an element that the government’s evidence has, by
completely precluding an acquittal based on the failure to prove that
element, effectively (though not formally) eliminated.”). But both the
Supreme Court and we have repeatedly kept separate the relevance
and prejudice inquiries: “If . . . relevant evidence is inadmissible in the
presence of other evidence related to it, its exclusion must rest not on
14
Yet Linares carefully distinguished the factual scenario
presented here. The Linares decision rested largely on the
conclusion that the government’s eyewitness evidence already
established Linares’s possession of the gun and that no
reasonable jury could believe that he possessed the gun without
knowing that it was a gun. Id. Linares distinguished cases such
as Crowder—a PWID case—in which specific intent constitutes
an element of the crime. See id. at 948, 951–52. In those cases,
“a reasonable jury could . . . conclude[] that although [the
defendant] possessed the crack . . . , the government had failed
to prove beyond a reasonable doubt that he intended to
distribute it.” Id. at 952. Indeed, proof of intent is one of the
core bases for admitting evidence of other crimes or bad acts.
See Huddleston v. United States, 485 U.S. 681, 685 (1988).
Consequently, Linares’s relevance analysis is unsuitable to
assess the relevance of Douglas’s prior PWID arrest to his intent
regarding the crack cocaine he was charged with possessing on
November 7, 2002.
In addition, on the element of knowledge, Linares
distinguished possession of firearms from cases involving
possession of drugs. See Linares, 367 F.3d at 951. While a
reasonable jury could not believe that a defendant possessed a
firearm “without recognizing the nature of the object in his
hand,” a reasonable jury could conclude that a defendant
the ground that the other evidence has rendered it ‘irrelevant,’ but on
its character as unfairly prejudicial, cumulative or the like, its
relevance notwithstanding.” Old Chief, 519 U.S. at 179; see also
Crowder, 141 F.3d at 1206 (quoting Old Chief, 519 U.S. at 179). To
the extent that Douglas reads Linares to hinge relevance under Rule
404(b) on the “availability of alternative proofs,” Old Chief, 519 U.S.
at 179, that interpretation is plainly foreclosed by Old Chief and
Crowder.
15
charged with PWID possessed—and knew that he possessed—a
“white powdery substance,” but nonetheless believed it to be
some “innocuous substance” such as “flour.” Id. Thus, Linares
is also distinguishable on the element of knowledge in a drug
possession case because a person may possess, unlike a gun, a
drug without realizing that it is an illegal substance.
Still, Douglas relies on Linares to challenge the relevance of
his prior arrest, arguing that the government’s evidence—absent
the Rule 404(b) evidence—already established the elements of
intent and knowledge, thereby making the Rule 404(b) evidence
relevant only to criminal propensity. See Appellant’s Br. at
20–22. With respect to knowledge, Douglas claims that,
because Sheldon testified that Douglas carried the crack cocaine
in clear plastic bags, “no reasonable jury could have acquitted
him on the basis that the government had proved possession
but not knowing possession.” Appellant’s Br. at 20. But, as
Linares noted in distinguishing drug possession cases, “a
reasonable jury could . . . conclude[] that [the defendant]
thought the white powdery substance was flour (or some other
innocuous substance).” Linares, 367 F.3d at 951 (emphasis
added). Although Douglas did not assert a lack of knowledge
defense at trial, the government was not thereby relieved of its
burden of proving knowledge beyond a reasonable doubt. See
Crowder, 141 F.3d at 1209 (Rule 404(b) evidence admissible
even if defendant offers to stipulate to relevant elements).10
10
While the government argues that Douglas “contended at trial
that the recovered substance was not crack cocaine and his expert
testified that it could have been hard soap,” Appellee’s Br. at 40, that
contention relates not to Douglas’s knowledge, but to his expert’s
assertion that the DEA’s method of analyzing the recovered crack
cocaine was faulty, see 2/25/04 Tr. 40; see also 2/24/04 Tr. 102–04,
117–18. That Douglas did not expressly claim that he believed the
16
Because the evidence of Douglas’s prior arrest for PWID made
it more probable that he knew the substance he was charged
with possessing on November 7, 2002 was indeed crack cocaine,
the evidence is relevant to the permissible Rule 404(b) purpose
of proving Douglas’s knowledge.
Moreover, the only evidence—aside from the Rule 404(b)
evidence—the government presented to establish Douglas’s
intent to distribute crack cocaine was a narcotics expert who
testified that the quantity of drugs discovered on November 7,
2002 was consistent with an intent to distribute. See 2/20/04
(p.m.) Tr. 96–98. Yet this evidence “mentioned only some
hypothetical drug dealer.” Crowder, 141 F.3d at 1208. In
contrast, “the prosecution’s evidence of [Douglas’s] prior crack
cocaine sales—sales close in time and place to those charged
in the indictment—was not meant to show that someone had
intent” but rather “that [Douglas] had the intent to distribute the
crack.” Id. (emphasis in original). Indeed, the expert’s
testimony regarding a hypothetical drug dealer “could not
possibly have substituted for such proof” since “[i]t did not even
mention [Douglas] by name.” Id. With merely hypothetical
expert testimony, the “concrete evidence of [Douglas’s] actions”
when he was earlier arrested for PWID makes it more probable
that he intended to distribute the crack cocaine as alleged in the
white substance to be “imitation crack,” 2/25/04 Tr. 40, does not
render Linares applicable here given that Linares distinguished PWID
cases, specifically Crowder, based on what a reasonable jury “could”
conclude about a defendant’s knowledge. Linares, 367 F.3d at 951.
Indeed, Crowder involved a defendant who stipulated to—rather than
simply failed to challenge—knowledge, see Crowder, 141 F.3d at
1209, a circumstance that, according to Linares, could permit a
reasonable jury to infer a lack of knowledge, see Linares, 367 F.3d at
951.
17
indictment. Id. After all, “[o]n the other occasion when he had
crack cocaine in his possession, he sold it.” Id. at 1209.
Accordingly, the evidence of Douglas’s prior PWID arrest is
relevant to the permissible Rule 404(b) purpose of establishing
his intent to distribute crack cocaine on November 7, 2002.
In sum, because the prior arrest evidence makes it more
probable that Douglas knew that he possessed crack cocaine on
November 7, 2002 and that he intended to distribute it, the
evidence is relevant to non-propensity purposes. And “if
[relevant] evidence is offered for a purpose Rule 404(b) permits,
such as proving knowledge or intent, Rule 404(b) does not
require that the evidence be excluded” simply because it may
also suggest criminal propensity. Id. (internal quotation
omitted). Accordingly, the district court did not abuse its
discretion in admitting Douglas’s August 2001 PWID arrest
under Rule 404(b).
B.
Yet it is “the opportunity to seek . . . admission,” rather than
admission itself, that Rule 404(b) guarantees. Crowder, 141
F.3d at 1206. Although evidence of a prior bad act is relevant
to a non-propensity purpose, it is nonetheless inadmissible “if its
probative value is substantially outweighed by the danger of
unfair prejudice.” Fed. R. Evid. 403. But “Rule 403 ‘tilts, as do
the rules as a whole, toward the admission of evidence in close
cases,’ even when other crimes evidence is involved.” Cassell,
292 F.3d at 795 (quoting United States v. Moore, 732 F.2d 983,
989 (D.C. Cir. 1984)). Indeed, in adopting the Federal Rules of
Evidence, the Congress was concerned “with ensuring that
restrictions would not be placed on the admission” of other
crimes evidence. Crowder, 141 F.3d at 1210. Consequently, “it
is a sound rule that the balance should generally be struck in
favor of admission when the evidence indicates a close
18
relationship to the event charged.” Cassell, 292 F.3d at 795
(internal quotation omitted). Moreover, because “the trial court
is in the best position to perform this subjective balancing . . .
its decision should be reviewed only for ‘grave abuse.’ ” Id. at
795–96 (quoting United States v. Washington, 969 F.2d 1073,
1081 (D.C. Cir. 1992) (internal quotation omitted)).11
As with his relevance challenge to the Rule 404(b) evidence,
Douglas challenges the probative value of his prior PWID arrest
in light of the government’s other evidence. See Appellant’s Br.
at 25–28. The other evidence, however, was not without holes.
See supra pp. 12–13. Specifically, Douglas sought to impeach
the only witness—Sheldon—who observed the plastic bags in
his hand during the chase, see 2/19/04 Tr. 111–14; Douglas’s
expert witness contested the government’s methodology in
determining that the recovered plastic bags contained crack
cocaine, see 2/24/04 Tr. 80–83, 103–04, 117–18; and the
government’s only other evidence of intent consisted of the
testimony of a narcotics expert regarding the likely intent of a
11
As Douglas points out, the district court did not expressly
perform the Rule 403 balancing until his new trial motion. See Mem.
Order on Mot. for New Trial at Appx. 61–63. But “[w]e do not . . .
prescribe any specific form this balancing must take, and will not
reverse for failure to make a formal Rule 403 finding if the applicable
considerations are apparent from the record.” Bowie, 232 F.3d at 931.
Here, the district court, specifically “looking at [Rule] 403,”
conducted a hearing on the admissibility of the Rule 404(b) evidence
during the trial, believing that under Rule 403 “it’s really necessary to
hear [the evidence] in order to determine whether or not that evidence
should really come in.” 2/20/04 (a.m.) Tr. 49. Moreover, the district
court’s disposition of Douglas’s new trial motion manifests careful
consideration of the required Rule 403 balancing. See Mem. Order on
Mot. for New Trial at Appx. 61–63.
19
hypothetical crack cocaine dealer, see 2/20/04 (p.m.) Tr. 96–98.
In this context, the concrete evidence of Douglas’s prior arrest
was highly probative, particularly regarding intent where “some
hypothetical individual was not on trial, [Douglas] was.” Bowie,
232 F.3d at 932; see also Crowder, 141 F.3d at 1208. Further,
the probative value of another crime is significant “when the
evidence indicates a close relationship to the event charged,”
Cassell, 292 F.3d at 795, as it does here where Douglas’s prior
arrest involved sale of the same substance in almost the same
neighborhood. In light of the record, the district court’s
conclusion that the Rule 404(b) evidence had significant
probative value, see Mem. Order on Mot. for New Trial at Appx.
62–63, was not a “grave abuse” of discretion, Cassell 292 F.3d
at 796.
With regard to the unfairly prejudicial impact of admitting
evidence of Douglas’s August 2001 PWID arrest, such evidence
almost unavoidably raises the danger that the jury will
improperly “conclude that because [Douglas] committed some
other crime, he must have committed the one charged in the
indictment.” Crowder, 141 F.3d at 1210. This danger, however,
“cannot give rise to a per se rule of exclusion.” Id.; see also
Cassell, 292 F.3d at 796. Indeed, the district court instructed the
jury of the permissible and impermissible uses of the evidence
and the record indicates no other “compelling or unique
evidence of prejudice in th[e] case.” United States v. Mitchell,
49 F.3d 769, 777 (D.C. Cir. 1995) (internal quotation omitted).
Here, the district court carefully instructed the jury on the proper
use of the Rule 404(b) evidence both on the morning after
introduction of the evidence, see 2/24/04 Tr. 37–38, and in its
final charge to the jury, see 2/26/04 Tr. 92–93, cautioning that
it “may only consider the evidence for the limited purpose of
showing whether the defendant, if he possessed cocaine in this
case, did so knowingly and intentionally with the specific intent
20
to distribute,” 2/24/04 Tr. 38. Indeed, the district court
emphasized its limiting instructions in finding no unfair
prejudice in the admission of Douglas’s prior PWID arrest. See
Mem. Order on Mot. for New Trial at Appx. 63. Moreover,
“[g]iven the likeness of the [two] allegations” of PWID and “the
coincidence of the locations involved . . . , there is ‘no
compelling or unique evidence of prejudice in this case that
warrants upsetting the trial court’s determination.’ ” United
States v. Burch, 156 F.3d 1315, 1324 (D.C. Cir. 1998) (quoting
United States v. Washington, 969 F.2d 1073, 1081 (D.C. Cir.
1992)). On this record, the district court’s conclusion that the
Rule 403 balancing tilted in favor of admission, see Mem. Order
on Mot. for New Trial at Appx. 63, was not a “grave abuse” of
discretion, Cassell, 292 F.3d at 796.
For the foregoing reasons, we affirm the district court’s
admission of the evidence of Douglas’s August 2001 PWID
arrest.
So ordered.