United States v. Smith

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation725 F.3d 340
Docket NumberNo. 12–1516.,12–1516.
PartiesUNITED STATES of America, v. Durrell SMITH, Appellant.
Decision Date06 August 2013

OPINION TEXT STARTS HERE

Kevin F. Carlucci, Esq. [Argued], Alison Brill, Esq., Office of the Federal Public Defender, Newark, NJ, for Appellant, Durrell Smith.

Steven G. Sanders, Esq. [Argued], Office of the United States Attorney, Newark, NJ, for Appellee, United States of America.

Before: SLOVITER, FUENTES, and ROTH, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge:

At Durrell Smith's trial for threatening federal officers with a gun, the Government sought to establish that two years earlier Smith had been observed dealing drugs at the same location as the charged assault. Smith objected, arguing that the relevance of the drug deal to the gun crime requires an inference that because Smith was a drug dealer in the past he must have been a drug dealer on the day in question. The District Court overruled Smith's objection and permitted evidence about the earlier drug sale. Smith was convicted and sentenced to 30 years in prison.

We conclude that the evidence of Smith's drug distribution, two years before the incident for which he was on trial, violates our long-standing requirement that, when seeking to introduce evidence of prior bad acts under Rule 404(b), the proponent must set forth “a chain of logical inferences, no link of which can be the inference that because the defendant committed ... offenses before, he therefore is more likely to have committed this one.” United States v. Sampson, 980 F.2d 883, 887 (3d Cir.1992) (emphasis added). We therefore reverse the District Court's evidentiary ruling, vacate Smith's conviction as to Counts 1 and 2 of the Indictment, and remand for a new trial.

I. Factual and Procedural BackgroundA. The September 2010 Incident

On September 1, 2010, FBI Agent Michael Alerassool and three other officers were conducting surveillance in an unmarked car with tinted windows on the corner of Brunswick and Parkhurst Streets, as part of an ongoing drug activity investigation in Newark. Most people in the vicinity scattered when the vehicle arrived on the street, but Alerassool observed Appellant Durrell Smith through the car window, standing his ground across the street and staring into the vehicle.

Smith then disappeared from Alerassool's sight but returned about one minute later, walking at a regular pace towards the car. As Smith passed under a street lamp, Alerassool noticed that he had a handgun in his right hand, “pointing [the gun] kind of at a downward angle,” about seven inches from his right thigh. App. 115. Smith then began to rotate his shoulder to face the officers as he approached the vehicle. Alerassool called out to the others in the car that Smith had a gun, and Smith was arrested before he could get any closer. The officers recovered a CF–380 semi-automatic handgun from Smith's person but there is no contention that drugs were found on Smith on that day.

The next day, Smith was interviewed by Newark Police Detective Raul Diaz. Smith waived his Miranda rights and confessed that he had been on the corner of Brunswick and Parkhurst the night before and that he had a gun. However, Smith denied that the gun belonged to him. Moreover, Smith claimed that he retrieved the gun in self-defense because, although he did not know who was in the car, he feared for his life given that there had been a shooting nearby two weeks prior involving a similar car.

B. The Government's Rule 404(b) Motion

Smith, a convicted felon, was indicted on three counts: (1) threatening a federal officer in violation of 18 U.S.C. § 111(a)(1) & (b); (2) using and possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).

Before trial, the Government moved in limine to admit evidence under Rule 404(b) of the Federal Rules of Evidence that, two years prior to his arrest, Smith had engaged in a drug transaction on the same street corner. The Government noted that the “case boils down to” Smith's motivation in retrieving the gun because Smith claimed that he retrieved it in self-defense, and that the evidence would rebut that theory by establishing that Smith had a motive to assault the people in the vehicle. App. 40. Specifically, the evidence would show that Smith “has a history of selling heroin on this corner,” which, along with evidence that “drug dealers often leave the guns in a stash and the drugs in a different stash” and that drug dealers use weapons, would prove that Smith wanted to assault the officers to protect “his drug turf ... that particular night.” App. 44, 46. Smith objected, arguing that this line of reasoning violated Rule 404(b)'s prohibition on evidence about a defendant's character, used to show his propensity to act in accordance with that character. The District Court deferred ruling on the motion.

After concluding its initial presentation of the evidence, the Government renewed its motion, again arguing that the evidence of the 2008 drug deal was necessary to show that Smith's reason to assault the officers was to protect his turf. The Government framed its argument as “this defendant was seen in the past selling drugs at that particular corner, which shows that he sells drugs at that corner.” App. 212. Smith again objected, arguing that the evidence was impermissible propensity evidence.

The District Court allowed the evidence, explaining that it “is important to the Government in order to connect its proofs that there was an intentional assault.” App. 217. The Court reasoned that because “the issue that the jury ha[d] to resolve” was whether Smith's motivation was “offensive, rather than merely defensive,” the evidence was admissible to determine whether Smith acted in self-defense. App. 220. The Court then correctly recognized that admissibility of Rule 404(b) evidence requires district courts to follow four steps, as set forth in Huddleston v. United States, 485 U.S. 681, 691, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Analyzing these steps, the District Court concluded that the evidence was offered for a proper purpose under Rule 404(b), i.e., “to establish motive;” that the evidence was relevant under Rule 402; that although the evidence was “significantly prejudicial” it was not “unfairly prejudicial” under Rule 403; and that it would give an appropriate limiting instruction to the jury. App. 221–22.

C. The September 2008 Incident

After this ruling, FBI Agent Michael Brooks testified that in September 2008 he was conducting an investigation of drug activity in the same corner in Newark as the one Smith was arrested on in 2010, when he observed Smith engaging in a sale of heroin. There were no firearms involved in the 2008 incident.

The District Court then gave a limiting instruction, which it repeated after its final charge, explaining that the testimony “was admitted for limited purposes only,” namely to “decid[e] whether the defendant had the intent and a motive to commit the acts charged.” App. 239. The Court asked the jury not to “consider this evidence as proof that the defendant has a bad character or any propensity to commit crimes.” App. 240.

D. Closing Arguments, Conviction, and Sentence

The Government began its summation by painting Smith as a drug dealer with “turf” to protect. App. 338. The prosecutor twice argued that on the night of September 2010 Smith meant to threaten the people in the car because, even if the jury believed Smith's statement that there had been a shooting two weeks prior, Smith wanted to menace the individuals in the car for “the shoot-up of [his] turf.” App. 343. In rebuttal, the Government also asked the jury to think: “What's [Smith] doing standing on a corner? There is no house there, what's he doing staring at a car? What's he doing over there? ... He's been on that block before, hasn't he? And not just two years ago.” App. 365.

The jury convicted Smith on all counts. He was adjudicated a career offender based on the 2008 heroin sale that was the subject of the 404(b) motion and an unrelated drug possession charge, and sentenced to consecutive sentences of 240 months on the assault charge, 84 months on the use of the gun charge, and 36 months on the felon in possession charge, for a total of 360 months' imprisonment.

II. AnalysisA. Rule 404(b) and Standard of Review

Smith argues that the District Court violated Rule 404(b) of the Federal Rules of Evidence in admitting the evidence of the 2008 drug deal. 1Rule 404(b) prohibits evidence of a crime “to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). However, [t]his evidence may be admissible for another purpose, such as proving motive.” Fed.R.Evid. 404(b)(2). In determining the admissibility of prior bad acts evidence, a district court must analyze, under the familiar Huddleston test, whether the evidence: (1) has a proper evidentiary purpose under Rule 404(b); (2) is relevant under Rule 402; (3) is of such probative value as to outweigh the prejudice to the defendant as required by Rule 403; and (4) is accompanied by a proper limiting instruction. 485 U.S. at 691, 108 S.Ct. 1496. We normally review evidentiary rulings for abuse of discretion, but we exercise plenary review over “whether evidencefalls within the scope of Rule 404(b).” United States v. Green, 617 F.3d 233, 239 (3d Cir.2010); see also United States v. Lee, 612 F.3d 170, 186 (3d Cir.2010).

B. Whether the Evidence of the 2008 Drug Sale Has a Proper Purpose

To serve a proper Rule 404(b) purpose, evidence must be “probative of a material issue other than character.” Huddleston, 485 U.S. at 686, 108 S.Ct. 1496. The Government argues that the evidence of Smith's 2008 drug deal fits into Rule 404(b)'s exception for...

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