87 F.3d 1405 (D.C. Cir. 1996), 92-3133, United States v. Crowder

Docket Nº:92-3133, 94-3108 and 93-3059.
Citation:87 F.3d 1405
Party Name:UNITED STATES of America, Appellee, v. Rochelle Ardall CROWDER, Appellant. UNITED STATES of America, Appellee, v. Horace Lee DAVIS, Appellant.
Case Date:July 09, 1996
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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87 F.3d 1405 (D.C. Cir. 1996)

UNITED STATES of America, Appellee,


Rochelle Ardall CROWDER, Appellant.

UNITED STATES of America, Appellee,


Horace Lee DAVIS, Appellant.

Nos. 92-3133, 94-3108 and 93-3059.

United States Court of Appeals, District of Columbia Circuit

July 9, 1996

Argued En Banc Sept. 21, 1995.

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Neil H. Jaffee, Assistant Federal Public Defender, Washington, DC, argued the cause for appellant Horace Lee Davis, with whom A.J. Kramer, Federal Public Defender, Lisa B. Wright and Santha Sonenberg, Assistant Federal Public Defenders, were on the brief.

Robert E. Morin, Washington, DC, argued the cause for appellant Rochelle Ardall Crowder, with whom Mary M. Petras was on the brief. Gerald I. Fisher, appointed by the court, entered an appearance for appellant Rochelle Ardall Crowder.

Roy W. McLeese, III, Assistant United States Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Assistant United States Attorney, were on the briefs. Elizabeth Trosman, Mary D. Rodriguez, Karen E. Rhew, Geoffrey Bestor and Gregory A. Gruber (pro hac vice), Assistant United States Attorneys, entered appearances for appellee.


Opinion for the Court filed by Circuit Judge TATEL, in which Chief Judge EDWARDS and Circuit Judges WALD, SILBERMAN, BUCKLEY, WILLIAMS, and ROGERS concur.

Concurring opinion filed by Circuit Judge SILBERMAN, in which Circuit Judges BUCKLEY and WILLIAMS join.

Concurring opinion filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge RANDOLPH, in which Circuit Judges GINSBURG, SENTELLE, and HENDERSON join.

TATEL, Circuit Judge:

In these consolidated cases, we address the recurring question of what effect a defendant's unequivocal offer to concede elements of a crime has on the admissibility of prior bad acts evidence under Federal Rule of Evidence 404(b). Where a defendant offers unequivocally to concede elements of a crime--intent and knowledge in these prosecutions under 21 U.S.C. § 841(a)(1)--and agrees to a jury instruction that the Government need not prove those elements, we hold that bad acts evidence offered solely to prove those elements is inadmissible because the defendant's concession of intent and knowledge deprives the evidence of any value other than what Rule 404(b)'s first sentence unambiguously prohibits: "to prove the character of a person in order to show action in conformity therewith." Because the district court in No. 93-3059 admitted bad acts evidence notwithstanding defendant's unequivocal concession of both intent and knowledge, we reverse and remand for a new trial. In No. 92-3133, in addition to admitting the bad acts evidence to show intent to distribute, which defendant had offered to concede, the district court also admitted the evidence to show knowledge of drug dealing, a fact that defendant had not conceded. We nevertheless remand for another Rule 403 balancing because, in weighing the probative value of the bad acts evidence against its prejudicial effect, the district court improperly took account of the conceded fact--intent to distribute.


The Government charged Horace Lee Davis with possession with intent to distribute and unlawful distribution of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1). The Government relied primarily on an undercover officer who testified that an intermediary directed him to a seller whom he had never met. After giving the seller twenty dollars, the undercover officer waited while the seller acquired the drugs from

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[318 U.S.App.D.C. 399] another individual sitting in a car parked nearby. The seller placed the drugs on a store window ledge, motioning for the officer to retrieve them. After recovering the drugs, the officer left the area and broadcast a "look-out" to the arrest team, describing both the seller and the man in the car. After the arrest team radioed the undercover officer that they had stopped two individuals fitting the descriptions in the broadcast, the officer returned to the scene and identified the two, including Davis as the seller.

Davis's defense was mistaken identity. According to his theory of the case, he had been in a nearby liquor store at the time of the drug sale and had simply walked out of the store immediately before his arrest. At trial, the liquor store clerk confirmed that Davis had been in the store until just before the arrest. Further supporting the defense theory, one of the arresting officers testified that Davis had a beer in his hand when arrested. The defense attacked the undercover officer's identification of Davis, noting the officer's inexperience (he had been undercover only three weeks at the time of the incident); his inability to identify the intermediary; his broadcast of the look-out on an unrecorded police channel; and his failure to prepare the "buy report," the only other evidence of his description of the seller, until after Davis's arrest.

Prior to trial, the Government notified Davis that it would introduce evidence of three prior cocaine sales to prove knowledge and intent. In a written opposition and again orally at trial, Davis offered to stipulate to both knowledge and intent--in other words, he offered to concede that the person who possessed the drugs both knew that they were drugs and intended to sell them--arguing that in view of this concession, the Government wanted to use the prior incidents only to show his character in violation of Rule 404(b). Davis's attorney reiterated both to the judge and to the jury that the only disputed issue in the case was whether the Government had proven possession beyond a reasonable doubt. After balancing the bad acts evidence's probative value against its prejudicial effect pursuant to Rule 403, the district court admitted the evidence to show intent and knowledge. The jury convicted Davis on both counts.

In the second case before us, the Government charged Rochelle Ardall Crowder with possession with intent to distribute both crack and heroin. According to the Government's witnesses, three police officers in a marked car observed Crowder exchange a small object for cash with another man. Seeing one of the officers motion to him, Crowder fled. According to the pursuing officer, Crowder removed a brown object from his pocket, dropping it as he scaled a fence. The officer testified that the object was a brown paper bag containing ninety-three "ziplock" bags of crack and thirty-eight glassine packets of heroin. After placing Crowder under arrest and searching him, the arresting officer recovered a pager and $988 in currency.

Acknowledging that the chase and arrest had occurred as described by the Government's witnesses, Crowder contended at trial that he had possessed neither the paper bag nor the drugs. According to his theory of the case, the police officers came to his neighborhood looking for information about an unrelated, unsolved murder. He claimed that when he refused to talk, the police beat him and falsely accused him of possessing drugs. Defense witnesses confirmed that a detective investigating a murder had previously questioned Crowder. They also testified that they saw the same detective at the scene of Crowder's arrest, that the police beat him during the arrest, and that the officer who first motioned to Crowder from the marked car called him by name. To refute the Government's claim that he was selling drugs at the time, Crowder's witnesses testified that the object he passed to the other man was a cigarette, that the large amount of cash was for home repair materials, and that, having no telephone, he had borrowed the beeper from the mother of his eight-year-old daughter to communicate when their daughter was with him.

Crowder's first trial ended in a mistrial. Prior to the second trial, the Government advised Crowder that it would introduce evidence that he sold drugs to an undercover officer five months after the first trial. Objecting in writing and orally, Crowder offered

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[318 U.S.App.D.C. 400] to concede every element of the crime except whether he possessed the drugs on the day of arrest. At a conference prior to trial, the district court reserved decision on the admission of the evidence. After the defense rested, the Government filed a second motion to introduce the evidence. Over Crowder's continued objection and willingness to concede all the elements of the offense except possession, the district court admitted the evidence to show intent to distribute and knowledge of drug dealing. The jury convicted Crowder on both counts.

Both defendants appealed. After separate panels heard oral argument, the court on its own initiative consolidated the cases, hearing them en banc to resolve the question of the admissibility of prior bad acts evidence when criminal defendants offer to concede the element of a crime for which the Government seeks to introduce the evidence.


The first sentence of Federal Rule of Evidence 404(b) is unambiguous: "[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." Such evidence, however, may be admissible under the second sentence of Rule 404(b) if introduced "for other purposes," such as showing "knowledge" or "intent." Intent and knowledge are two of the three elements--the third is possession--of a "possession with intent to distribute" charge under 21 U.S.C. § 841(a)(1), the crime charged in these cases. Thus, under the second sentence...

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