U.S. v. Hardy

• Decision Date: 01 August 2000
• Docket Number: 98-4524,98-4529,98-4523,Nos. 98-4500,s. 98-4500
• Citation: 228 F.3d 745
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Marlando Hardy (98-4500), Henry Green (98-4523), Anthony Rouse (98-4524), and Shuron Moore (98-4529), Defendants-Appellants. Argued and Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 745

228 F.3d 745 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Marlando Hardy (98-4500), Henry Green (98-4523), Anthony Rouse (98-4524), and Shuron Moore (98-4529), Defendants-Appellants.

Nos. 98-4500, 98-4523, 98-4524, 98-4529

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued and Submitted: August 1, 2000

Decided and Filed: September 22, 2000

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 97-00099--James L. Graham, District Judge.

Terry Lehmann, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, Gary L. Spartis, Kevin W. Kelley, Assistant United States Attorneys, Columbus, Ohio, for Appellee.

Dennis C. Belli, Columbus, Ohio, for Hardy and Green.

James E.L. Watson, Columbus, Ohio, for Rouse.

Kenneth R. Spiert, Columbus, Ohio, for Moore.

Before: SUHRHEINRICH and DAUGHTREY, Circuit Judges; COLLIER^*, District Judge.

OPINION

CURTIS L. COLLIER, District Judge.

In this consolidated appeal, Defendants Marlando Hardy, Henry Green, Anthony Rouse and Shuron Moore challenge their respective judgments of conviction and/or sentences in this drug conspiracy case. Because the only issue of precedential value is Defendant Rouse's argument concerning admission of other acts evidence pursuant to Fed. R. Evid. 404(b), we address it below. All facts not relevant to Defendant Rouse and all remaining issues with respect to each defendant are addressed in an unpublished appendix to this opinion.

I. RELEVANT FACTS

On October 14, 1997, the Grand Jury for the Southern District of Ohio returned a 154 count superseding indictment against 21 individuals alleging various drug offenses. Defendant Anthony Rouse was charged in count one with conspiracy to possess with intent to distribute and conspiracy to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 846. The indictment charged the conspiracy took place "[f]rom on or about May 1, 1996, through and including the date of the Superseding Indictment [October 14, 1997], the exact dates being unknown to the grand jury." Rouse went to trial along with codefendants Henry Green, Maurice Morris and Dennis Evans.

The government presented evidence at trial that a group of individuals from Gary, Indiana, and from Columbus, Ohio were all involved in a street gang known as the "GI Boys." The government contended this group distributed drugs from various locations in the near east side and west side of Columbus. Several cooperating witnesses testified at trial. The government's key witness was Lee Gill.

At trial Gill testified he went to prison in 1993. When he was released in 1996, he contacted Anthony Rouse who helped him get back into the drug business. Gill sold crack supplied by Rouse out of several locations in Columbus. In the spring of 1996 a confidential informant contacted a Bureau of Alcohol, Tobacco and Firearms ("ATF") agent about the GI Boys' crack operation. ATF and the Columbus Police Department conducted an investigation. Officers installed a video camera at the informant's residence since many of the GI Boys' allegedly frequented the place. When the informant moved, another video camera was installed at the new residence. These cameras captured and recorded various unlawful activities, including distribution and use of crack and powder cocaine by several of the GI Boys. Gill and other cooperating witnesses testified extensively as to Rouse's involvement in the conspiracy.

Before the trial, counsel for Rouse filed a Motion in Limine requesting the district court exclude testimony of other acts outside the time frame of the conspiracy alleged in the superseding indictment. At trial, the government attempted to question Lee Gill about alleged drug transactions involving Defendant Rouse which occurred in 1990, six years before the conspiracy alleged in the indictment even began Defense counsel objected, and the trial judge held a bench conference out of the jury's presence. The government explained it was attempting to show background, that is, how Lee Gill met Anthony Rouse and the development of their relationship. The government also contended this information showed a common scheme or plan between Gill, Rouse, and others which continued in 1996, the alleged starting year of the conspiracy. Defense counsel argued this information was prejudicial and constituted improper character evidence, which should be excluded under Fed. R. Evid. 404.

After hearing arguments of counsel, the trial judge overruled Rouse's objection and allowed the government to develop the evidence. The judge gave the jury a limiting instruction, however, explaining to the jury they could only consider the testimony regarding acts prior to May 1996 as evidence of background information and as an explanation of how certain individuals became acquainted with each other.

The jury found Rouse guilty of the conspiracy charge. The district court sentenced Rouse to 360 months imprisonment and five years supervised release. Rouse appeals, inter alia, the district court's decision to allow testimony regarding alleged drug activity by Rouse prior to the date of the conspiracy alleged in the superseding indictment. Specifically Rouse claims the district court failed to conduct an on the record balancing of the probative value versus the prejudicial impact of such testimony as directed by our holding in United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir. 1996).

II. DISCUSSION

This case highlights the importance of district courts adhering to the procedural analysis set out in Merriweather regarding admission of Rule 404(b) evidence, or, where Rule 404(b) is not implicated, clearly identifying the evidentiary basis for admission of the evidence and properly analyzing that basis.

In responding to Rouse's objection, the government indicated it wished to introduce the evidence to show essential background circumstances, i.e., how Gill met Rouse, and because it showed a common plan or scheme. On the basis of that representation, the district court allowed the testimony. However, a close review of the evidence reveals it was not proper background evidence, nor was it evidence admissible under Rule 404(b).

A. Background Evidence

This court has previously recognized the propriety of introducing "background" evidence. See United States v. Buchanan, 213 F.3d 302, 311 (6th Cir. 1999); United States v. Paulino, 935 F.2d 739, 755 (6th Cir.), cert. denied, 502 U.S. 914, 112 S. Ct. 315, 116 L. Ed. 2d 257 (1991). Such evidence, often referred to as "res gestae," does not implicate Rule 404(b). 2 Jack B. Weinstein, Margaret A. Berger & Joseph M. McLaughlin, Weinstein's Federal Evidence, § 404.20[2][c]. However, a review of Buchanan and Paulino, and similar cases demonstrates the "background circumstances exception" to the general exclusion of other act evidence is not an open ended basis to admit any and all other act evidence the proponent wishes to introduce. Rather the very definition of what constitutes background evidence contains inherent limitations. Buchanan, Paulino and other cases dealing with this issue teach that background or res gestae evidence consists of those other acts that are inextricably intertwined with the charged offense or those acts, the telling of which is necessary to complete the story of the charged offense. Weinstein, supra at § 404.20[2][c] and [d]; United States v. Weinstock, 153 F.3d 272, 277 (6th Cir. 1998); United States v. Barnes, 49 F.3d 1144. 1149 (6th Cir. 1995); United States v. Townsend, 796 F.2d 158, 162 (6th Cir. 1986); United States v. Cunningham, 103 F.3d 553, 557 (7th Cir. 1996).

Proper background evidence has a causal, temporal or spatial connection with the charged offense. Typically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness's testimony, or completes the story of the charged offense. Jennifer Y. Schuster, Uncharged Misconduct Under Rule 404(b): The Admissibility of Inextricably Intertwined Evidence, 42 U. Miami Law Review 947 (March/May 1998).

The government relies upon United States v. Passarella, 788 F. 2d 377 (6th Cir. 1986), arguing "[e]stablishing the development and background of a drug conspiracy meets the first requirement of admissibility under [Rule] 404(b) as it is a legitimate purpose for admission of evidence of drug dealing between co-conspirators prior to that charged in the indictment." The government overstates the holding in Passarella. In Passarella, the testimony under scrutiny concerned drug deals that took place sometime in 1979. The counterfeiting offenses charged in the indictment in that case were alleged to have begun on or before February 1980. Id. at 383, n.6. In holding admission of this testimony was proper, we said:

In our view, testimony concerning prior drug transactions between Passarella and Parsons, and Passarella and Hudson, was admissible under Rule 404(b) for the legitimate purpose of proving the "existence of a larger continuing plan, scheme or conspiracy, of which the present crime on trial is a part." [citations omitted] This evidence showed that there was an ongoing plan or scheme involving Passarella and others to engage in crimes which were the subject of the indictment. This evidence was therefore relevant to both the existence and the continuing nature of the conspiracy.

Id. at 383. Thus, in Passarella, the evidence was necessary to establish the existence of the charged conspiracy. Moreover, unlike in this case, the disputed evidence in Passarella concerned events closely connected in time to the charged offense.

A review of other cases reveals a similarly close connection between the charged offense and the proffered background evidence. For example, in United States v. Buchanan, 213 F.3d 302 (6th Cir. 2000), the drug organization involved in that case allegedly...