U.S. v. Green

• Decision Date: 19 August 1998
• Docket Number: No. 97-4345,97-4345
• Citation: 151 F.3d 1111
• Parties: UNITED STATES of America, Appellee, v. Andre GREEN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1111

151 F.3d 1111

UNITED STATES of America, Appellee, v. Andre GREEN, Appellant.

No. 97-4345.

United States Court of Appeals,

Eighth Circuit.

Submitted May 15, 1998.

Decided Aug. 19, 1998.

Lawrence L. Pratt, St. Louis, argued, for appellant.

John J. Ware, St. Louis, MO, argued, for appellee.

Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

BOWMAN, Chief Judge.

Andre Green was convicted by a jury of conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994). He appeals his conviction, arguing that the District Court ¹ abused its discretion by admitting into evidence testimony regarding a prior arrest for distribution of cocaine base, and that his constitutional rights were violated by the government's failure to provide defense counsel, before the start of trial, with a copy of the government's trial brief and a transcript of a government witness's grand jury testimony. We affirm.

On May 6, 1997, St. Louis police officers working drug interdiction at a UPS facility identified a suspicious incoming package, obtained a search warrant to open the package after a drug-detecting canine alerted the officers to the presence of narcotics, and discovered inside the package just over 187 grams of cocaine base and 436 grams of marijuana. The officers repackaged a portion of the drugs for use in a controlled delivery but, because the package was addressed to a non-existent location and thus could not be delivered, requested that UPS employees alert the officers should someone inquire at the facility about the package.

Later that day, UPS employees notified police that Juwana Hobson had attempted to retrieve the package. Officers instructed the UPS employees to inform Hobson that the package was on a delivery truck and not available for pick-up at the station that day, but would be returned to the facility that evening for pick-up the following morning.

The next morning Hobson returned to the UPS facility, picked up the package, and was arrested by officers shortly after driving away with the package. Hobson, who began cooperating with police immediately after her arrest, explained that Green had asked her to pick up the package for him. She informed police that Green and Andre Spikes had provided her with the UPS tracking number necessary to identify the package, and that Green and Spikes were waiting for her to deliver the package to a prearranged address. During Hobson's interview at the police station, she received a number of messages from Green on her pager. The officers eventually instructed Hobson to call Green, tell him that she had retrieved the package but that her car had broken down, and ask him to pick her up at a specific location.

Hobson, followed by the officers, drove to the spot where she had told Green her car broke down, raised the car's hood, and waited for Green and Spikes. Shortly thereafter, Green and Spikes arrived and, rather than take the package from the back seat of Hobson's car, Green started the car and instructed Hobson to drive her car (still containing the package) back to her apartment where he and Spikes would meet her.

Upon arrival at Hobson's apartment, Green and Spikes entered the building first, followed by Hobson who was carrying the package, and detectives who were surveilling the transaction. As Hobson approached the door to her apartment, Green and Spikes saw the detectives following Hobson and ran up a flight of stairs, attempting to evade arrest. The officers arrested Green and Spikes on the second floor of the building and Green, while being taken into custody, insisted that he could not be arrested because he had not taken possession of the box.

Green first argues that the District Court erred in allowing the introduction into evidence of a police officer's testimony regarding Green's 1993 arrest for possessing and selling cocaine base. The District Court admitted this testimony under Federal Rule of Evidence 404(b), which allows for the admission of "other crimes" evidence only for limited purposes, such as showing motive, intent, opportunity, or knowledge. Fed.R.Evid. 404(b). This evidence is admissible if (1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value. See United States v. Anderson, 879 F.2d 369, 378 (8th Cir.1989), cert. denied, 493 U.S. 982, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989). Prior bad acts evidence may be admitted "to prove any relevant issue other than the character of the defendant or his propensity toward criminal activity." United States v. McDaniel, 773 F.2d 242, 247 (8th Cir.1985). The district court has broad discretion in determining whether to admit evidence of other crimes, and this Court will overturn its decision only if it can be shown that the " 'evidence clearly had no bearing upon any issues involved.' " United States v. Turner, 104 F.3d 217, 222 (8th Cir.1997) (quoting United States v. Baker, 82 F.3d 273, 276 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 538, 136 L.Ed.2d 423 (1996)).

Green argues that his 1993 arrest for distribution of cocaine base is not close enough in time or similar enough in kind to be admitted as other crimes evidence under Rule 404(b). This Court applies a standard of reasonableness, as opposed to a standard comprising an absolute number of years, in determining whether a prior offense occurred within a relevant time frame for purposes of Rule 404(b). See United States v. Burk, 912 F.2d 225, 228 (8th Cir.1990). Green's prior arrest occurred only three and one-half years prior to his arrest for the charged offense, a separation well within permissible time boundaries for the introduction of Rule 404(b) evidence. See United States v. McCarthy, 97 F.3d 1562, 1573 (8th Cir.1996), cert. denied, --- U.S. ----, ----, 117 S.Ct. 1011, 136 L.Ed.2d 888 (1997) (17 years separating offenses); United States v. Holmes, 822 F.2d 802, 804-05 (8th Cir.1987) (12 years); United States v. Engleman, 648 F.2d 473, 479 (8th Cir.1981) (13 years). Furthermore, Green's prior arrest involved the same narcotic as that involved in the charged crime--cocaine base. See United States v. Sykes, 977 F.2d 1242, 1246 (8th Cir.1992) (noting that evidence of prior offense involving same drug was relevant in showing knowledge and intent for charged offense). Green was arrested in 1993 for possession with intent to distribute cocaine base, a crime similar in kind to the charged offense of conspiracy to possess with intent to distribute cocaine base. See United States v. Bryson, 110 F.3d 575, 583 (8th Cir.1997) (noting that distribution of narcotic is similar to conspiracy to distribute same narcotic); United States v. Wint, 974 F.2d 961, 967 (8th Cir.1992) (noting that evidence of prior arrest for possession of cocaine base sufficiently similar to be admissible in case involving conspiracy to distribute cocaine because "both involved distributable amounts of cocaine"), cert. denied, 506 U.S. 1062, 113 S.Ct. 1001, 122 L.Ed.2d 151 (1993). We conclude that the District Court did not abuse its discretion by admitting pursuant to Rule 404(b) the police officer's testimony regarding Green's prior arrest.

Green likewise contends that the District Court erred in admitting into evidence Hobson's testimony that Green had asked her on a previous occasion, and she had agreed, to pick up a package from the UPS facility. This testimony, according to Green, is irrelevant to the charged crime because the government did not prove that this earlier incident involved a package containing illegal drugs. Defense counsel failed to object to this particular aspect of Hobson's testimony at the District Court's motion in limine hearing, see Trial Transcript Vol. I at 167 ("We have no objection to [Hobson] testifying as to picking up the package."), or at trial. Because Green failed to object to the admission of this testimony, we review only for plain error. See Fed.R.Crim.P. 52(b). Under the plain error standard, this Court lacks authority to consider questions not first raised in the district court "unless (1) the district court committed an error, i.e., deviated from a legal rule, (2) the error is plain, i.e., clear under current law, and (3) the error affected [the defendant's] substantial rights." United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc). Even if the forfeited error meets the above criteria, we will exercise our discretion to order correction only if the error " 'seriously affect[s] the fairness, integrity or public reputation of...