999 F.2d 814 (5th Cir. 1993), 92-3235, United States v. Elwood

Docket Nº:92-3235.
Citation:999 F.2d 814
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gerald ELWOOD, a/k/a Nap, William Barnes, Jr. and Ernest Marrero, Defendants-Appellants.
Case Date:August 23, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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999 F.2d 814 (5th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


Gerald ELWOOD, a/k/a Nap, William Barnes, Jr. and Ernest

Marrero, Defendants-Appellants.

No. 92-3235.

United States Court of Appeals, Fifth Circuit

August 23, 1993

Order Denying Rehearing Oct. 18, 1993.

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Herbert V. Larson, Jr., New Orleans, LA, for Gerald Elwood.

James C. Lawrence, New Orleans, LA, for Barnes.

William Barnes, Jr., pro se.

Martin E. Regan, Regan & Assoc., New Orleans, LA, for Ernest Marrero.

Herbert W. Mondros, Peter Thomson, Asst. U.S. Attys., Harry Rosenberg, U.S. Atty., New Orleans, LA, for U.S.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, DUHE, Circuit Judge, and MAHON, [*] District Judge.

POLITZ, Chief Judge:

On this appeal we consider the Beechum 1 findings made on remand by the trial court, together with a sentencing issue raised by Gerald Elwood which was not reached on the prior appeal because of the remand. The operative facts are detailed in our prior opinion, 993 F.2d 1146 (5th Cir.1993). For present purposes we note merely that Elwood and three other males departed his hotel room in LaPlace, Louisiana with over 2000 grams of cocaine. Two carried the cocaine in a car while Elwood and another, both carrying firearms, followed in an armor-plated pickup truck. When police stopped the car for a traffic violation, Elwood pulled the truck directly behind the police vehicle. All four males were arrested and Elwood was ultimately convicted of possession of cocaine with intent to distribute, conspiracy to possess with intent to distribute, and using and carrying a firearm in relation to the drug trafficking offenses. We now affirm Elwood's convictions but for the reasons assigned vacate his sentences and remand for resentencing.

I. The 404(b) Evidence

Prior to trial the government noticed its intent to introduce certain 404(b) 2 evidence against Elwood to prove his intent to participate in the narcotics offenses and to use firearms in connection therewith. 3 Elwood moved in limine, seeking the exclusion of the evidence and asking the court to make record findings regarding the probative value/prejudicial effect of the proposed evidence as required by United States v. Robinson. 4 The district court admitted the evidence, but the Robinson findings were not made on the record. Tracking United States v. Anderson, 5 we remanded for Beechum /Robinson findings. 6

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In accordance with our instructions, the district court received additional briefing and conducted a hearing on both the admissibility of the evidence and whether any error in its admission improperly affected the outcome of the trial. 7 The court concluded that the evidence was admissible under Rule 404(b) and, alternatively, given the substantial evidence of Elwood's guilt, any error from the admission of the evidence was harmless.

We apply a highly deferential standard to a trial court's evidentiary rulings, reversing only for an abuse of discretion. 8 Beechum details this circuit's procedure for admitting 404(b) evidence: "First, it must be determined that the extrinsic evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Rule 403." 9


Given that his counsel readily conceded during opening statement that Elwood possessed a firearm, the only question was his intent to participate in the cocaine distribution conspiracy. The district court found the 404(b) evidence probative of this fact. "In determining the probative value of extrinsic evidence, the court should consider the overall similarity between the extrinsic and charged offenses, because 'the probative value of the extrinsic evidence correlates positively with its likeness to the offense charged.' " 10 The court a quo deemed important the fact that the Rackert Street evidence consisted of several weapons and ammunition in close proximity to evidence indicative of drug distribution, specifically, a spoon with cocaine residue, a cellular phone, plastic baggies, and a scale. In this respect, the Rackert Street evidence was similar to the evidence supportive of the charged offenses--a scale, plastic baggies, and a cellular phone were found either at the arrest scene or in the hotel room; these items and the drugs were in relative close proximity to the firearms in Elwood's truck. This evidence tends to negate Elwood's assertion that he knew nothing of the drugs and that his possession of a firearm was in no way related to the possession of the two kilos of cocaine in the car he was following closely. We find no error in the district court's determination that this evidence had some relevance to the issue of intent.

403 Balance--Probative Value/Prejudice

We also give great deference to the district court's determination of the second Beechum inquiry--whether the probative value of the evidence is outweighed by the risk of unfair prejudice. 11 In addition to its probative value, the Rackert Street evidence had obvious prejudicial effect. The sheer quantity of weapons and ammunition found at the Rackert Street residence suggested a disturbing level of potential violence. The independent prejudicial effect, however, was diminished by, among other things, Elwood's admissions on the stand that he owned several

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weapons, including ".357s, nine millimeters, ... an AK-47," and a "riot shotgun." In addition, there was significant evidence connecting Elwood to the charged offenses. Finally, the district court properly instructed the jury on three occasions of the limitations in the consideration of the Rackert Street evidence. 12 In light of the other evidence and the limiting instructions, we find no 403 breach in the admission of the 404(b) evidence.

II. Assessment of Adjustment for Leadership Role

Elwood received a two level upward adjustment of the offense level for his leadership role in the criminal activity. He timely objected to the presentence report, contending that there was no evidence at trial supporting the adjustment and that "[w]hile the government will have the opportunity at sentencing to establish that Elwood was an organizer, leader ... of the alleged criminal activity, its mere allegation that he played such a role is not sufficient to warrant the two level adjustment." At sentencing, the government presented no additional evidence in support of the adjustment; the record contains only the probation officer's amendment to the PSR stating: "In discussing the relative roles of the defendants in this case with the government and the DEA, it was determined that Elwood should receive a role adjustment pursuant to Section 3B1.1(c)." Based on the PSR the trial court sentenced Elwood to...

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