U.S. v. Thomas

Decision Date16 January 1996
Docket NumberNo. 95-1102,95-1102
Citation74 F.3d 676
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Malcolm Earl THOMAS, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Michael Hluchaniuk, Asst. U.S. Atty. (argued and briefed), Bay City, MI, for plaintiff-appellee.

Thomas J. Plachta (argued and briefed), Brady & Plachta, Bay City, MI, for defendant-appellant.

Before: BATCHELDER and MOORE, Circuit Judges; ENSLEN, Chief District Judge. *

MOORE, Circuit Judge.

Appellant Malcolm Earl Thomas appeals his conviction for distribution of crack cocaine, arguing that the district court made three erroneous evidentiary rulings. First, Thomas argues that the district court erred by allowing his co-defendant, Darryl Nicholson, to testify about uncharged drug transactions. Second, Thomas claims that the district court should not have allowed a police officer to testify both as a fact witness and as an expert about the methods and techniques of street level drug dealers. Third, Thomas contends that the district court erred by refusing to allow him to call an expert witness to testify about the incentive for a government witness to lie under oath in order to receive a sentence reduction pursuant to a plea agreement. Because the district court did not abuse its discretion in making any of these three evidentiary rulings, we affirm.

An undercover police officer purchased crack cocaine from Thomas on June 4, 1992. A confidential informant accompanied the officer to an area in Saginaw, Michigan, where they found Thomas immediately in front of Hell Lover's Motorcycle Club ("HLMC"). When they arrived, Thomas approached the vehicle and, after a short conversation, he reached into his pocket and produced a crumpled brown piece of paper which contained approximately twelve "rocks" of crack cocaine.

Detective John Todd observed Thomas, Nicholson, and a third man standing on the sidewalk in the vicinity near HLMC on October 20, 1992. When Todd stopped his police car, Thomas and Nicholson ran toward the Soul Survivors Motorcycle Club, directly across the street from HLMC. As Thomas ran away, he threw to the ground a crumpled piece of brown paper containing approximately thirteen "rocks" of crack cocaine.

Thomas was first indicted in April 1994. On May 11, 1994, Thomas was charged in a superseding indictment with distribution of crack cocaine on or about June 4, 1992, in violation of 21 U.S.C. Sec. 841(a)(1). Also named in the superseding indictment were two co-defendants, Darryl Nicholson ("Nicholson") and Travis Lamar Nicholson, who were charged with a series of drug related crimes. After his co-defendants pleaded guilty, Thomas proceeded to trial and was convicted.

I.

Nicholson testified at Thomas's trial that during the period May through November of 1992 he "fronted" powder cocaine to Thomas, which Thomas converted to crack and sold in front of HLMC almost every day during this period. Nicholson was prepared to testify that Thomas sold crack cocaine in this area from the summer of 1991 to the spring of 1993, but the district court limited his testimony at trial to the six-month period surrounding the sale at issue in order to minimize the prejudicial effect of the evidence.

Thomas contends that the district court erred by allowing Nicholson to testify at all about uncharged drug transactions involving Thomas. Thomas's contentions implicate Federal Rule of Evidence 404(b), which provides that:

Evidence 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....

This provision allows for limited admissibility of other crimes or acts evidence.

The district court first ruled that Nicholson's testimony was not "other acts" evidence under Rule 404(b) because it relates to the source of the cocaine distributed on or about June 4, 1992, and thus is directly related to the charge against Thomas in this case. Alternatively, the district court found that even if Nicholson's testimony were Rule 404(b) evidence, it was admissible to prove the material issue of Thomas's identity. Thomas's identity was a material issue because his primary defense at trial was that the government could not prove that he was the man who sold crack cocaine to the undercover officer on June 4, 1992. Thomas's girlfriend, with whom he had two children, testified that many people at HLMC, including herself, regularly mistook other people for Thomas. Thus, under Rule 404(b) the testimony was relevant to prove identity. Moreover, the district court conducted the balancing test under Federal Rule of Evidence 403, which applies whether or not the testimony constituted "other acts" evidence, and found that the testimony was "so highly probative that any possible prejudice sort of evaporates in comparison to it."

We affirm the district court's ruling that the Nicholson testimony was admissible. First, the district court correctly ruled that Nicholson's testimony concerning the source of defendant's supply of cocaine was directly related to the specific crime charged. See United States v. DeClue, 899 F.2d 1465, 1472 (6th Cir.1990) ("Evidence which is probative of the crime charged and does not solely concern uncharged crimes is not 'other crimes' evidence."). Therefore, the district court did not abuse its discretion by finding that the challenged testimony was relevant pursuant to Federal Rule of Evidence 401. 1 See United States v. Hawkins, 969 F.2d 169, 174 (6th Cir.1992) (evidentiary rulings on matters of relevancy are reviewed for abuse of discretion), cert. denied, 506 U.S. 1069, 113 S.Ct. 1021, 122 L.Ed.2d 168 (1993).

Second, even assuming that Nicholson's testimony related only to other crimes or acts, it was admissible under Rule 404(b). Reviewing the admission of Rule 404(b) evidence involves a three-step analysis. United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir.1992) (en banc). First, we review for clear error the district court's factual determination that sufficient evidence exists that the other acts occurred. Id. Second, we review de novo whether the district court correctly determined that the evidence was admissible for a legitimate purpose. Id. Third, we review for abuse of discretion the district court's determination that the "other acts" evidence is more probative than prejudicial under Rule 403. Id. at 1262. Thomas does not dispute that the government introduced Nicholson's testimony for a proper purpose or that the other acts actually occurred; 2 rather, he argues that the testimony should have been excluded under Rule 403. Therefore, we review this aspect of the district court's decision for abuse of discretion.

Pursuant to Rule 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Furthermore, the court reviews the disputed evidence in "the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." United States v. Bonds, 12 F.3d 540, 567 (6th Cir.1993) (citation omitted). "Unfair prejudice does not mean the damage to a defendant's case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis." Id. (citation omitted). A "district court has broad discretion in balancing probative value against potential prejudicial impact." United States v. Feinman, 930 F.2d 495, 499 (6th Cir.1991).

Thomas makes the conclusory argument that the evidence should have been excluded because it "was clearly more prejudicial than probative" without stating how he was prejudiced. See Bonds, 12 F.3d at 573. Since the evidence about the uncharged drug transactions involved the same type of conduct and occurred during the same time frame and in the same location as the offense charged, it was highly probative on the disputed issue of identity. Furthermore, the district court instructed the jury that Thomas was only on trial for the particular crime charged in the indictment:

Remember that the defendant is on trial only for the particular crime charged in the indictment. Your job is limited to deciding whether the government has proved the charges in the indictment.

The district court also instructed the jury that it could not consider "other acts" testimony as direct evidence that Thomas committed the crime charged:

(1) You have heard testimony that could indicate that the defendant did some acts other than the specific one charged in the indictment, such as, for example, the possession or distribution of cocaine at other times.

(2) You cannot consider such testimony as direct evidence that the defendant committed the crime that he is on trial for now. Instead, you can consider it only in deciding whether the person distributing cocaine on June 4, 1992 was the defendant. Do not consider it for any other purpose.

(3) Remember that the defendant is on trial here only for the crime charged in the indictment, not for any other acts. Do not return a guilty verdict unless the government proves the crime charged beyond a reasonable doubt.

See Feinman, 930 F.2d at 499 (finding that limiting instruction minimizes possible prejudicial effect).

Despite their obvious potential for prejudice, uncharged drug transactions are frequently admissible as "other acts" evidence to prove material issues in dispute in criminal narcotics cases. E.g., Gessa, 971 F.2d at 1259-62 (finding no Rule 403 problem in admitting evidence of prior "excursions" to obtain large quantities of cocaine where "probative of defendant's...

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