U.S. v. Baker

• Citation: 655 F.3d 677
• Decision Date: 23 August 2011
• Docket Number: No. 10–1446.,10–1446.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Howard BAKER, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

655 F.3d 677

UNITED STATES of America, Plaintiff–Appellee,

v.Howard BAKER, Defendant–Appellant.

No. 10–1446.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 2011.Decided Aug. 23, 2011.

Colin S. Bruce, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, Linda L. Mullen (argued), Attorney, Office of the United States Attorney, Rock Island, IL, for Plaintiff–Appellee.Bruce E. Brandwein, Attorney, David M. Smolin (argued), Brandwein & Smolin, Chicago, IL, for Defendant–Appellant.Before EASTERBROOK, Chief Judge, and BAUER and EVANS ^*, Circuit Judges.BAUER, Circuit Judge.

A jury convicted defendant-appellant Howard Baker of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and he was sentenced to 360 months' imprisonment. Baker challenges the district court's admission of evidence under Federal Rule of Evidence 404(b), the sufficiency of the evidence used to prove possession, and his sentence. For the following reasons, we affirm Baker's conviction and sentence.

I. BACKGROUND

On the night of July 24, 2009, Champaign Police Department Officers Chris Aikman and Heidi Van Antwerp were in the area of a reported battery when they spotted Baker, who matched the description of the battery suspect. The uniformed officers parked their marked squad cars and walked into the front yard of 210 East Hill Street, where Baker was talking on a cell phone and eating a plate of food. Officer Aikman asked Baker to come talk to him, and Baker walked over to the officers and voluntarily handed over his identification. Officer Aikman then told Baker that he was going to pat him down and reached for his arm, at which point Baker began running westbound on the sidewalk. Officers Aikman and Van Antwerp chased Baker, with Officer Aikman just a few feet behind Baker and within sight the entire time. Officer Aikman caught up to Baker on the west side of 204 East Hill Street and tackled him onto a fence that runs between 204 East Hill Street and 202 East Hill Street, causing the fence to collapse. Baker regained his footing after being tackled and began running east along Hill Street, following the same path as the initial chase. Baker ran back to 210 East Hill Street and started to enter the house when Officer Aikman tackled Baker a second time, this time bringing him down and handcuffing him.

After walking Baker to the squad car, Officer Aikman went back along the chase route to the portion of fence that had collapsed during the struggle and saw two baggies on the ground. The baggies contained 21.9 and 4.4 grams of crack cocaine, later stipulated to be 25.2 grams of crack cocaine. Baker denied that the baggies were his and his fingerprints were not found on them. Baker was charged with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

A. Testimony at Trial

At trial, the government introduced testimony from the arresting officers, an expert witness, and Baker's occasional girlfriend, Trena Keomala, who testified under a grant of immunity. Keomala's testimony can be classified into two categories, one of which is at issue in this appeal and one of which is not. First, Keomala testified that she spoke to Baker on the night of the offense before his arrest and that Baker informed her that he was on the “Hill” (210 East Hill Street) because that was where he “made his money.” When Keomala asked whether Baker had any crack cocaine for her to sell, Baker responded that he had only enough crack cocaine for himself. Keomala also testified that the day following Baker's arrest, Baker related the previous evening's events, telling her that right before his arrest he had been standing outside 210 East Hill, “posted up”; Keomala explained that “posted up” is slang for waiting to exchange drugs for money. That part of Keomala's testimony is not at issue on appeal.

Second, Keomala testified that since late 2006, she has routinely received crack cocaine from Baker, which she would sell and Baker would receive the proceeds, and that she had received crack cocaine from Baker to sell just days before Baker's arrest. This testimony is at issue on appeal and is disputed.

B. Rule 404(b) Evidence

Before trial, the government filed a notice of intent to call an informant who would testify that Baker had distributed crack cocaine to him for resale on prior occasions. The government did not include Keomala's disputed testimony in this notice, even though she too would testify that Baker distributed crack cocaine to her for resale. In response to the notice of intent, defense counsel filed a motion to bar all Rule 404(b) evidence. The judge denied this motion. Subsequently, when Keomala was called as a witness at trial, the judge mistakenly believed that Keomala had been included in the Rule 404(b) notice of intent and related defense motion, which had been denied, and he therefore permitted her to testify for the limited purpose of proving Baker's intent and knowledge under Rule 404(b). Defense counsel did not object. The district court then twice gave the jury a limiting instruction on the proper use of the evidence for the limited purpose of intent and knowledge.

C. The Verdict and Sentencing

The jury found Baker guilty of possession with intent to distribute crack cocaine. The district court applied a career offender designation to Baker based on two prior felony convictions for unlawful delivery of a controlled substance. After examining Baker's criminal history and considering the § 3553 sentencing factors, the district court sentenced Baker at the bottom of the Guidelines range to 360 months' imprisonment.

II. DISCUSSION

A. Rule 404(b) Evidence

When the government introduced evidence of Baker's prior drug distributions to Keomala to prove intent and knowledge, Baker objected on the grounds of lack of foundation. On appeal, Baker raises an objection for the first time under Federal Rule of Evidence 404(b). We review the issue for plain error. Johnson v. United States, 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); see Fed.R.Crim.P. 52(b). Under this standard of review, we determine whether there was (1) an error, (2) that was plain, (3) that affected the defendant's substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings. Johnson, 520 U.S. at 467, 117 S.Ct. 1544. An error occurs if a legal rule has been violated during the district court proceedings. United States v. Gibson, 170 F.3d 673, 678 (7th Cir.1999). Plain error affects the substantial rights of the defendant if the error was prejudicial, meaning that the error “affected the outcome of the district court proceedings.” Id. at 678 (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The defendant bears the burden of persuasion with respect to showing prejudice. Id. The decision to correct an error lies within the sound discretion of this court, and we do not exercise that discretion unless the error seriously affects the fairness, integrity, or public reputation of the judicial proceeding. Id.

We first determine whether the admission of Keomala's testimony about Baker's prior bad acts constituted error under Rule 404(b). We conclude no such error occurred.

Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence ... more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Rule 402 then states that all relevant evidence is generally admissible unless there is a reason for its exclusion. Fed.R.Evid. 402.

The relevance of Keomala's testimony is apparent. Following his arrest, Baker denied that he knowingly possessed the baggies of crack cocaine on the night he was arrested and also denied that he possessed the crack cocaine with intent to deliver it. Testimony regarding other instances in which Baker possessed crack cocaine with the intent to deliver it is relevant to Baker's intent and knowledge. See United States v. Conner, 583 F.3d 1011, 1021–22 (7th Cir.2009) (“In drug cases, we have often found a defendant's other drug transactions relevant for purposes other than propensity, such as knowledge, intent, and lack of mistake.”); United States v. Curry, 79 F.3d 1489, 1495–96 (7th Cir.1996) (finding that in a case where the defendant denied possessing a baggie containing crack cocaine that was dropped into a bush, evidence from witnesses who had previously purchased crack cocaine from the defendant was relevant and properly admitted); United States v. Wilson, 31 F.3d 510, 515 (7th Cir.1994) (finding that evidence of prior drug transactions showed that the defendant “was familiar with the cocaine business and was not some innocent bystander ‘mistakenly caught up in an overzealous law enforcement’ ”).

Rule 404(b) is a rule of exclusion. It states that evidence of a defendant's prior bad acts is not admissible if entered simply to show the defendant's propensity to commit the crime with which he is charged. Fed.R.Evid. 404(b). The evidence may, however, be admissible to establish “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” We employ a four-part test to determine whether evidence of prior conduct is admissible under Rule 404(b), taking into consideration the following factors: (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v....