U.S. v. Haywood

• Decision Date: 21 February 2002
• Docket Number: No. 99-4488.,99-4488.
• Citation: 280 F.3d 715
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elmer J. HAYWOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 715

280 F.3d 715

UNITED STATES of America, Plaintiff-Appellee, v. Elmer J. HAYWOOD, Defendant-Appellant.

No. 99-4488.

United States Court of Appeals, Sixth Circuit.

Submitted September 14, 2001.

Decided and Filed February 21, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas A. Karol (briefed), Asst. U.S. Attorney, Toledo, OH, for Plaintiff-Appellee.

C. Mark Pickrell (briefed), Nashville, TN, for Defendant-Appellant.

Before: DAUGHTREY, GILMAN, and JOHN R. GIBSON, Circuit Judges.^*

GILMAN J., delivered the opinion of the court, in which DAUGHERTY, J., joined JOHN R. GIBSON, J. (pp. 726-27), delivered a separate dissenting opinion.

GILMAN, Circuit Judge.

Elmer J. Haywood was indicted and convicted on one count of possession with the intent to distribute 18 grams of crack cocaine on August 1, 1997. As part of its proof that Haywood intended to distribute the crack cocaine allegedly in his possession on that date, the government offered evidence that Haywood was subsequently arrested for possessing 1.3 grams of crack cocaine on December 21, 1997. Haywood objected to the admission of this evidence, arguing that it was both irrelevant and unfairly prejudicial. The district court overruled his objection. For the reasons set forth below, we REVERSE Haywood's conviction and REMAND the case for a new trial.

I. BACKGROUND

A. Factual background

This case arises from Haywood's alleged sale of crack cocaine to a government informant on August 1, 1997. The Federal Bureau of Investigation (FBI) orchestrated the crack cocaine purchase as part of its investigation into illegal drug sales at an apartment complex located at 610 South Scott Street in Lima, Ohio. Michael Liles, a friend of Haywood, was the principal target of the investigation.

DeWayne Spears assisted the FBI in its investigation by serving as a confidential informant. Spears was serving in that capacity when, on August 1, 1997, he saw Haywood standing outside of Apartment # 7 at 610 South Scott Street. Aware that Haywood and Liles were friends, Spears told Haywood that he wanted to purchase one ounce of crack cocaine from Liles and asked Haywood to set up the sale. Haywood told Spears to return to Apartment # 7 in 40 minutes.

Spears subsequently informed FBI Agents David Dustin and Carl Spicocchi of the pending crack cocaine sale. Agents Dustin and Spicocchi met with Spears a short time later and equipped him with a monitoring wire and tape-recording device. Spears then departed for Apartment # 7.

Minutes later, Spears met Haywood in front of the apartment. They entered after a brief conversation, with Liles entering shortly thereafter. Spears proceeded to discuss the crack cocaine sale with both Haywood and Liles. Either Haywood or Liles then went to the basement of the apartment and retrieved crack cocaine, weighed it on a scale in the kitchen, and presented it to Spears. Spears purchased the crack cocaine, which totaled 18 grams, for $900.

Once in possession of the crack cocaine, Spears left Apartment # 7 and met a second time with Agents Dustin and Spicocchi. He gave the agents a detailed account of his encounter with Haywood and Liles.

Haywood was arrested nearly a year later for selling the 18 grams of crack cocaine to Spears. In the meantime, Haywood had been arrested for possession of crack cocaine on December 21, 1997. This arrest occurred after Lima Police Officers Michael Bean and Brian Leary, searching for Haywood in regard to a matter unrelated to the present case, saw him riding in a vehicle driven by Liles. In searching Haywood pursuant to a lawful stop, Officer Bean found a rock of crack cocaine weighing 1.3 grams in Haywood's jacket pocket. Haywood was charged in state court with possession of crack cocaine, but the prosecutor later dismissed the charge.

B. Procedural background

In July of 1998, a federal grand jury indicted Haywood on one count of possession of crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a). The count arose from the August 1, 1997 crack cocaine sale. Haywood pled not guilty to the count. The case then proceeded to trial in the United States District Court for the Northern District of Ohio. At trial, the evidence focused on whether it was Haywood or Liles who sold the crack cocaine to Spears on August 1, 1997.

To prove that Haywood was the one who sold the crack cocaine on that date, the government relied primarily on testimony from Spears, Agent Dustin, and Agent Spiccochi, as well as on the tape recording of the crack cocaine sale. Spears testified that Haywood retrieved the cocaine from the basement, weighed it, and presented it for sale. He further said that Haywood accepted the $900 payment for the crack cocaine.

Agent Dustin's testimony focused on bolstering Spears's credibility. Dustin said that Spears volunteered as a confidential informant because he was concerned with crime in the community. Spears, according to Dustin, was also timely in meeting with the FBI and never appeared to be under the influence of drugs or alcohol. Agent Spicocchi added that information provided by Spears led to the indictment of 15 individuals on federal drug charges, with 5 other individuals indicted on state and local charges.

Haywood, on the other hand, relied on testimony from Liles and Agent Spicocchi to prove that it was Liles who sold the crack cocaine. Liles testified on direct examination that he was the one who sold the crack cocaine to Spears on August 1, 1997. Agent Spiccochi corroborated Liles's testimony by acknowledging that Spears initially told the agents that the crack cocaine had come from Liles, that the FBI report submitted by himself and Agent Dustin regarding the crack cocaine sale states that Spears purchased the crack cocaine from Liles, and that he had earlier told the grand jury that Spears declined to purchase drugs from Haywood because Spears wanted to buy crack cocaine, which only Liles had to sell. Even though the persuasiveness of Liles's testimony on Spears's behalf was substantially weakened on cross-examination with concessions that his recollection of the sale was vague, that he had pled guilty to making the sale with Haywood, that Haywood typically sold drugs out of Apartment # 7, and that he did not want Haywood to go to jail, the net effect of Liles's testimony was a matter for the jury to determine.

Not all of the evidence at trial, however, directly related to whether Haywood or Liles sold the crack cocaine to Spears on August 1, 1997. The government also offered evidence that it contended was indirectly probative as to whether Haywood intended to distribute the crack cocaine allegedly in his possession on that date. Specifically, the government offered the testimony of Officers Bean and Leary regarding their recovery of crack cocaine from Haywood on December 21, 1997.

Haywood objected to the admission of any evidence regarding his December 1997 crack cocaine possession. He argued that such evidence had "nothing to do with this case" and would cause "unfair prejudice." The government countered that the evidence was admissible under Rule 404(b) of the Federal Rules of Evidence to prove Haywood's intent on August 1, 1997. Agreeing that the testimony was admissible under Rule 404(b), the district court overruled Haywood's objection.

Officer Bean then testified that he recovered 1.3 grams of crack cocaine from Haywood on December 21, 1997. He described the crack cocaine as a single rock, slightly smaller than a golf ball. The district court gave a contemporaneous instruction that the jury could consider Officer Bean's testimony only "with regard to the issue of intent to the extent that it is relevant in this case." After this instruction, Officer Leary took the stand and essentially corroborated the facts as related by Bean. A cautionary instruction similar to that given following Bean's testimony was neither requested by Haywood nor given by the district court.

The jury subsequently found Haywood guilty on the drugtrafficking count. He was later sentenced by the district court to a 115-month term of imprisonment, with an additional 5 years of supervised release. Haywood now appeals, arguing that the district court committed reversible error when it admitted the evidence of his December 1997 possession of crack cocaine.

II. ANALYSIS

A. Framework for analyzing the admission of evidence of other acts under Rule 404(b)

Rule 404(b) provides that evidence of other acts is "not admissible to prove the character of a person in order to show action in conformity therewith...." Such evidence, however, may be admissible for other purposes, including proof of "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." Id.

This court has set forth a three-step process for determining the admissibility of evidence of other acts under Rule 404(b). United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir.1992) (en banc). The first step requires the district court to decide whether there is sufficient evidence that the other act in question actually occurred. Id. at 1261. If so, the district court must decide whether the evidence of the other act is "`probative of a material issue other than character.'" United States v. Johnson, 27 F.3d 1186, 1191 (6th Cir.1994) (quoting Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). Finally, if the evidence is probative of a material issue other than character, the district court must decide whether the "probative value of the evidence is substantially outweighed by its potential prejudicial effect." Johnson, 27 F.3d at 1190.

In the present case, Haywood concedes that the other act at issue — his possession of crack cocaine on December 21, 1997 — actually occurred. The analysis thus focuses on (1) whether the evidence of Haywood's crack cocaine possession on that date is probative of a material issue other than his character and (2)...