U.S. v. Crowder

• Decision Date: 01 May 1998
• Docket Number: Nos. 92-3133,93-3059 and 94-3108,s. 92-3133
• Parties: , 49 Fed. R. Evid. Serv. 411 UNITED STATES of America, Appellee, v. Rochelle Ardall CROWDER, Appellant. UNITED STATES of America, Appellee, v. Horace L. DAVIS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1202

141 F.3d 1202

329 U.S.App.D.C. 418, 49 Fed. R. Evid. Serv. 411

UNITED STATES of America, Appellee, v. Rochelle Ardall CROWDER, Appellant.

UNITED STATES of America, Appellee, v. Horace L. DAVIS, Appellant.

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

United States Court of Appeals District of Columbia Circuit.

Argued En Banc Jan. 28, 1998.

Decided May 1, 1998.

[329 U.S.App.D.C. 419] Appeals from the United States District Court for the District of Columbia (91cr00353-01 & 91cr00150-01).

Neil H. Jaffee, Assistant Federal Public Defender, Washington, DC, argued the cause, for appellant Horace Lee Davis, and Gerald I. Fisher, Washington, DC, appointed by the court, argued the cause, for appellant Rochelle Ardall Crowder. With them on the joint and supplemental briefs were A.J. Kramer, Federal Public Defender, Santha Sonenberg and Lisa B. Wright, Assistant Federal Public Defenders.

Roy W. McLeese, III, Assistant U.S. Attorney, Washington, DC, argued the causes, for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Attorney at the time the supplemental briefs were filed, and John R. Fisher, Assistant U.S. Attorney.

Before: EDWARDS, Chief Judge, WALD, SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge TATEL, in which Chief Judge EDWARDS and Circuit Judges WALD and SILBERMAN join.

Dissenting opinion filed by Circuit Judge SILBERMAN.

RANDOLPH, Circuit Judge:

The principal question in these cases is whether a criminal defendant may, over the government's objection, offer to concede an element of an offense (such as knowledge or intent) and thereby (1) preclude the government from introducing evidence under Rule 404(b), FED. R. EVID., to prove that element, and (2) obtain an instruction that the jury need not consider or decide that element. When we first heard these cases en banc, a divided court answered the question this way: whenever there is "a defendant's offer to concede knowledge and intent combined with an explicit jury instruction that the Government no longer needs to prove either element," Rule 404(b) renders the bad acts evidence inadmissible. United States v. Crowder (Crowder I), 87 F.3d 1405, 1410 (D.C.Cir.1996). On the government's petition for a writ of certiorari, the Supreme Court granted the writ, vacated our judgment and remanded the cases for reconsideration in light of the intervening decision in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). See United States v. Crowder, --- U.S. ----, 117 S.Ct. 760, 136 L.Ed.2d 708 (1997). We now hold that despite a defendant's unequivocal offer to stipulate to an element of an offense, Rule 404(b) does not preclude the government from introducing evidence of other bad acts to prove that element.

I

A

For ease of reference we will again recount the facts of these cases. In separate jury trials, both defendants were convicted of drug offenses, Crowder for possessing heroin and crack cocaine with intent to distribute, Davis for distributing crack cocaine and for possessing crack with intent to distribute.

Crowder. Police officers driving along the 1300 block of Newton Street, N.W., Washington, D.C., saw Crowder engage in what appeared to be a drug transaction, exchanging a small object for cash. The officers stopped their car and gestured for Crowder to approach. Crowder started to come closer but then turned and ran. During the ensuing chase Crowder discarded a brown paper bag containing 93 ziplock bags of crack cocaine and 38 wax-paper packets of heroin. When the officers caught up with him, they found that he was carrying a beeper and $988 in small denominations.

Crowder's first trial ended in a mistrial. Before the retrial, the government gave notice that it would seek to prove Crowder's knowledge, intent and modus operandi by introducing evidence to show that Crowder sold crack cocaine to an undercover officer on the same block on Newton Street seven months after his arrest in this case. Crowder objected to the evidence, partly on the basis that he was willing to stipulate that the amounts of drugs "seized [by the police in this case] were consistent with distribution" so that "anybody who possessed those drugs possessed them with the intent to distribute." J.A. 178, 203.

The district court took the matter under advisement. After the government presented its case-in-chief, Crowder mounted a defense based on the theory that the police had framed him. Through nine witnesses, including his nephew, his father, the mother of his child, and Newton Street neighbors, he tried to show that the officers came looking for him to enlist his aid in a homicide investigation, that the transaction the officers observed consisted merely of the passing of a cigarette, that he had the $988 to pay for repairs to his family's house, and that his child's mother had loaned him the beeper so that he could keep in touch with her.

At the close of the defense case, the government renewed its effort to introduce the evidence of Crowder's other drug offense. As to Crowder's pretrial offer to stipulate, the government argued that Crowder had now contested his intent to distribute, and that the evidence of his other drug deal had legitimate probative value apart from its bearing on intent, which is all the proposed stipulation addressed.

The district court first took up Rule 404(b):

It seems to the court that the first question is whether or not this evidence is probative of anything in the case, and it seems to the court that this evidence is probative, because Mr. Crowder is trying to suggest in his defense and I think, if we look at the evidence in the defense, not just Mr. Crowder's testimony, that all of this was just a coincidence, it was a coincidence that he had the $900 in his possession, it's a coincidence that he had a beeper in his possession, and that everything else took place, presumably, the running away and the officer chasing him, and the officer finding a large quantity of drugs in the alley, had nothing at all to do with Mr. Crowder. So, to me, that raises an issue of intent, raises an issue of knowledge, perhaps raises an issue, as was raised in the Watson case, of his knowledge of even the drug trade. It seems to me, based upon that evidence, that the 404(b) evidence is probative.

J.A. 242-43.

Having found the evidence probative for a proper purpose under Rule 404(b), the court turned to Federal Rule of Evidence 403 and concluded that the probative value of Crowder's other drug crime was not substantially "outweighed by potential undue prejudice to Mr. Crowder." J.A. 248. The court noted the highly probative nature of the evidence to prove intent and knowledge, particularly in view of Crowder's defense that "he doesn't know anything about it ... [and] this is all a setup by the police." J.A. 249. When the court admitted the evidence in the government's rebuttal case, it gave a limiting instruction, which it repeated during its jury charge.

Davis. An undercover officer purchased a rock of crack cocaine from Horace Lee Davis on the 900 block of 5th Street, N.W. Davis had obtained the crack from a man sitting in a nearby car. After the transaction, the undercover officer left the scene and broadcast a description of Davis and the other man. Both were stopped a short time later and positively identified by the undercover officer. The police apprehended Davis as he was opening the door to the car from which he had obtained the rock. A search of the car uncovered more than 20 grams of crack as well as $40 in cash. The cash included pre-recorded bills the officer had used to buy the rock from Davis.

Davis put on a defense of misidentification. He explained that he had purchased a beer from a nearby liquor store and had simply walked out of the store just before his arrest. Before trial, the government gave notice that it intended to introduce evidence of three prior cocaine sales by Davis, all in the vicinity of a shelter at 425 2nd Street, N.W., only a few blocks from the site of the charged offense. The government sought to introduce these prior acts to prove essential elements of Davis's crime--knowledge and intent. Davis objected, in part on the basis of his proposed stipulation "that the person who sold the undercover officer the drugs in this case had the intent to distribute any and all drugs recovered by the police, both through their purchase and through the seizure from [the] car, and that that individual also knew of the drugs recovered from [the] car." J.A. 79 n.1. The district court ruled that the government did not have to accept Davis's concession and could prove the required elements of knowledge and intent through evidence of Davis's prior acts. When the court admitted evidence of the prior acts, it gave a limiting instruction, and reiterated the instruction in its jury charge.

B

While the government's certiorari petition in these cases was pending, the Supreme Court handed down Old Chief v. United States. There the defendant had been charged with violating federal assault and weapons statutes, including 18 U.S.C. § 922(g)(1), which prohibits persons previously convicted of certain felonies from possessing a firearm. The defendant's prior conviction was for "assault causing serious bodily injury." 519 U.S. at ----, 117 S.Ct. at 647. Wanting to keep these details from the jury, the defendant offered to stipulate that he had an unspecified conviction of the sort described in § 922(g)(1). The government refused the defense offer, the trial court admitted the order of judgment and commitment in the assault case, and the court of appeals affirmed.

Dividing five to four, the Supreme Court reversed. The Court first rejected the defendant's argument that his offer to stipulate rendered the evidence of his prior conviction irrelevant and...