U.S. v. Bell

• Decision Date: 14 February 2008
• Docket Number: No. 06-6248.,06-6248.
• Citation: 516 F.3d 432
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian BELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

516 F.3d 432 UNITED STATES of America, Plaintiff-Appellee,
v.
Brian BELL, Defendant-Appellant. No. 06-6248. United States Court of Appeals, Sixth Circuit. Submitted: October 26, 2007. Decided and Filed: February 14, 2008.

[516 F.3d 436]

ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. E. Greg

[516 F.3d 437]

Gilluly, Jr., Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: KEITH and CLAY, Circuit Judges; STEEH, District Judge.^*

CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. STEEH, D.J. (pp. 448-50), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Defendant Brian Bell ("Bell") appeals his conviction, following a jury trial, for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bell argues that the district court committed reversible error by admitting into evidence four prior state court drug convictions under Federal Rule of Evidence 404(b) for the purpose of proving absence of mistake or accident and intent. For the reasons that follow, we REVERSE the conviction and sentence imposed by the district court and REMAND the case to the district court for a new trial.

I. BACKGROUND

On February 23, 2004, Shelby County Sheriff's officers responded to 9155 Berry Garden Circle in Cordova, Tennessee to investigate a domestic violence complaint concerning Bell and Amber Williams ("Amber"), a fourteen-year-old child who lived at that address. Upon arrival, Shelby County Deputy Sheriff Walter Blaylock found Bell in a physical altercation with Amber who was crying and showed signs of physical injury. Officer Blaylock then arrested Bell whom he proceeded to search. The search uncovered a bag of marijuana and $1,852.00 in cash.

Having secured Bell, Officer Blaylock escorted Amber inside the residence so that she could call her mother, April Armstrong ("Armstrong"), who was at school. While accompanying Amber to the phone, Officer Blaylock observed marijuana, scales, a cutting board, baggies, and other drug paraphernalia on a coffee table located in the house.

Once Armstrong arrived, Officer Blaylock obtained her consent to search the house. The subsequent search uncovered over eleven kilograms of marijuana, packaged in small amounts, over ninety grams of crack cocaine, eleven firearms, assorted ammunition, a large digital scale, bags of cigar "blunts," which are commonly used to smoke marijuana, and other tools of the drug trade.

Based on the evidence discovered during this search, Bell was subsequently charged in the United States District Court for the Western District of Tennessee with: (1) possession of 11,071.1 grams of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) possession of 94.6 grams of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). On August 18, 2004, Bell was arraigned on these charges and entered a plea of not guilty. The case proceeded to a jury trial on April 10, 2006.

At trial, Amber testified that she lived at 9155 Berry Garden Circle with her mother and Bell who stayed at the house "maybe

516 F.3d 438

three or four nights out of the week." J.A. at 76. According to Amber, Bell kept several personal belongings at the house, including his pit bull dogs, his clothes, his cologne, and his backpack. Amber also testified that Bell kept his Lexus in the garage at the house and that he had his own room where he kept his belongings. Amber further informed the jury that no one else lived in the house with her and her mother during February of 2004.

Armstrong likewise testified that in February of 2004 Bell lived with her and her daughter at the residence which she leased at 9155 Berry Garden Circle. Armstrong indicated that Bell assisted in paying the bills for the residence and that, although he was "in and out," he "lived there most of the time," sharing a bedroom with her. J.A. at 141. She also confirmed that Bell had access to the entire house, had his own room where he stored his belongings, and occasionally had visitors to the house. Armstrong further testified that the drugs and guns found in the house were not hers.

In response to these witnesses, Deeta Johnson ("Johnson") testified for the defense that Bell was her fiancé, and that he lived with her and her seven-year-old son in Memphis, Tennessee. Johnson testified that Bell stayed with her "[b]asically every night" and that he was only gone about "two nights out of the week," in order to, as he informed Johnson, stay "[a]t his aunt's." J.A. at 439. Bell offered no other witnesses on his behalf.

In addition to the testimony of these witnesses, the arresting officers, and police drug testing experts, the jury was also presented with evidence of Bell's four prior state court drug convictions: (1) an October 16, 1997 conviction for possession of marijuana with intent to distribute; (2) an October 16, 1997 conviction for possession of cocaine base with intent to distribute; (3) a June 18, 1999 conviction for possession of marijuana with intent to distribute; and (4) a June 18, 1999 conviction for possession of cocaine base with intent to distribute.

Prior to trial, the government had filed a motion in limine, seeking the admission of these prior convictions, under Federal Rule of Evidence 404(b), for the purpose of demonstrating knowledge, intent, and absence of mistake or accident. Bell had opposed the motion and the district court deferred ruling on the motion until later in the trial.

While the issue came up at various points in the trial, the district judge did not directly return to the government's Rule 404(b) motion in limine until the close of Bell's case. At that time, the government renewed its request to introduce the evidence of Bell's prior drug convictions to show knowledge, intent, and absence of mistake. Bell objected to the admission of such evidence on the basis of its highly prejudicial nature. The district judge then proceeded to engage in the three step inquiry required for the admission of 404(b) evidence. The district judge determined that the certified records of the convictions were sufficient evidence to demonstrate that these other acts had occurred. The district judge also examined the government's purported purposes for introducing the evidence:

The second issue deals not only with whether or not [the convictions] can be proved, but whether they — whether the government has articulated an appropriate basis under 4004(b) [sic] for the admission of such type — such evidence, in other words, whether or not they have submitted sufficient argument and proof to the court and based upon the court's review of the record as to whether or not one or more of the permitted admissibility bases is present. . . . I think it's cited in [United States v. Ismail, 756

516 F.3d 439

F.2d 1253 (6th Cir.1985)] and [United States v. Lattner, 385 F.3d 947 (6th Cir. 2004)] that, when the defendant in such a charge enters a plea of not guilty, basically he is putting every element, including the intent aspect, to the government's proof. And, as well, the court believes that the defendant's position in this case has been that he was not aware, he was — he did not know these drugs were there or they were planted by someone else, put in there by somebody else, you know, that this was simply he just happened to be — he was an innocent person in terms of their being present or it was a mistake or an accident or just happened to be there.

I think under the circumstances of what I've heard from the proof, is that the government's submission of this evidence would go towards the issue of intent and absence of mistake or accident.

J.A. at 482-83. Finally, the district judge weighed the probative value of the evidence against its prejudicial impact and found that, with a limiting instruction to the jury, the latter would not substantially outweigh the former, and, accordingly, permitted the introduction of the evidence.

When introducing the certified judgments of Bell's prior convictions, the district court cautioned the jury:

Ladies and gentlemen, the court has permitted the introduction of testimony — or evidence, rather, here regarding the defendant, Mr. Bell, about committing — the commission of other crimes other than the ones that are charged in the indictment.

Now if you find that the defendant committed these acts, these crimes, you can consider the evidence only as it relates to the government's claim on the defendant's intent or absence of mistake or absence of accident. You may not consider it for any other purpose. And I'll give this instruction to you again when I give you the final instruction. But remember and keep this in mind, that the defendant is on trial here only for the offenses that he is charged with in this indictment, which again I will read to you. So the burden still remains on the government to prove its case beyond a reasonable doubt and, again, the defendant is not on trial for any previous act, but only for those that are charged here in this indictment.

J.A. at 491. After the closing arguments and before dismissing the jury for deliberations, the district court repeated a similar instruction:

Now, you heard testimony that the defendant committed crimes other than the ones charged in the indictment. If you find that the defendant did these crimes, you can consider the evidence only as it relates to the government's claim on the defendant's intent, absence of mistake, or absence of accident. You must not consider it for any other purpose. Now, remember that the defendant is on trial here for only those charges in the indictment and not for the other acts. Do...