U.S. v. Johnson

• Decision Date: 12 July 1994
• Docket Number: No. 93-5071,93-5071
• Parties: 40 Fed. R. Evid. Serv. 1405 UNITED STATES of America, Plaintiff-Appellee, v. Timothy Moses JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1186

27 F.3d 1186

40 Fed. R. Evid. Serv. 1405

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Moses JOHNSON, Defendant-Appellant.

No. 93-5071.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 28, 1993.

Decided July 12, 1994.

Daniel A. Clancy, U.S. Atty., Joseph C. Murphy, Jr., Asst. U.S. Atty. (briefed), Christopher E. Cotten, Asst. U.S. Atty. (argued) Memphis, TN, for plaintiff-appellee.

Doris A. Randle-Holt (argued and briefed), Memphis, TN, for defendant-appellant.

Before: KEITH, NELSON, and RYAN, Circuit Judges.

RYAN, Circuit Judge, delivered the opinion of the court, in which KEITH, Circuit Judge, joined. DAVID A. NELSON, Circuit Judge (pp. 1194-96), delivered a separate concurring opinion.

RYAN, Circuit Judge.

When a specific intent is an element of a criminal charge, is intent "in issue" such that the prosecution may introduce evidence of other acts of misconduct by the defendant, under Fed.R.Evid. 404(b), regardless of the crime or the defense asserted? This is the question presented in Timothy Moses Johnson's appeal from his conviction for possession of twenty-five grams of cocaine base with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Johnson contends that the district court erred in admitting, under Rule 404(b), evidence of two prior narcotics sales to a confidential informant. We affirm.

I.

On February 21, 1992, Shelby County, Tennessee sheriff's officers set up a surveillance of a street corner in Memphis, Tennessee, to monitor a drug deal previously arranged by a confidential informant. The officers saw defendant Johnson arrive in a car and walk down the street to a utility pole where he paused, bent over, and moved a concrete block. Johnson then walked across the street to the car in which the confidential informant was seated along with Sammy Jones, an undercover police officer. Johnson told the confidential informant and Jones that he had the drugs and asked if the two men had the money.

The confidential informant got out of the car and walked with Johnson to the utility pole. Johnson bent down, moved an object, and pointed to something. Johnson then asked the confidential informant if he was a police officer, if he was wearing a wire, and if he had the money. The confidential informant returned to the car and told Jones that Johnson had the drugs. At that point, a "take down" signal was given, and the officers arrested Johnson as he attempted to run from the scene. An officer then went to the utility pole and found four bags containing a rock-like substance underneath several pieces of concrete. The substance was later determined to be twenty-five grams of cocaine base.

Before trial, the government informed the district court of its intention to introduce evidence that Johnson had made two other drug sales less than a month earlier. The government argued that evidence of those sales was admissible under Rule 404(b) because "the 404(b) acts go to preparation, plan, motive, intent, all those in this case." The defendant objected, but the district court overruled the objection.

At trial, the confidential informant, testifying concerning the prior drug buys, stated that he bought five grams of cocaine base from Johnson in the first of the prior transactions and twelve grams in the second transaction, two days later. Immediately following the confidential informant's testimony, the district court gave the following limiting instruction:

Ladies and gentlemen of the jury, I will give you detailed instructions later, but I will tell you that any proof as to events that are not alleged in the indictment, and I think as to this [confidential informant] we did have some testimony regarding dates and events unrelated to the indictment, should--may be weighed in some parts in the case but may not--but are not proof of the allegations as to the indictment. In other words, if it was an event that preceded it, it was another event, it may be admissible for some purpose, perhaps to show motive or some other relevant activity, but it is not proof and the government still has to prove beyond a reasonable doubt that the events alleged in the indictment occurred. I will give a more detailed instruction when I give you the final instructions, but I think this is an appropriate time to remind you to listen for that instruction during the final instruction to the jury.

(Emphasis added.)

Johnson testified and denied possessing any drugs on February 21, 1992. On cross-examination, the government asked Johnson about the prior drug sales. The defendant objected. The court overruled the objection and gave a second instruction to the jury:

Ladies and gentlemen of the jury, proof of what happened or may have happened on a date other than the date in the indictment is not proof as to what happened on the date of the indictment. Now, it may be proof as to method of operations, but it is not proof of what happened on that date. So you may only consider it for a limited purpose. It does not prove the events of February the 21st which are the subject of the indictment. I will give you a more detailed instruction at the end of the case.

(Emphasis added.)

At the close of all proofs, the court gave a third instruction to the jury:

You cannot consider this testimony as evidence that the defendant committed the crime that he is on trial for now. Instead, you can only consider it for deciding whether the defendant had the necessary intent to commit the crime charged or as evidence of preparation, plan and knowledge in the commission of the crime charged.

(Emphasis added.)

The jury returned a verdict of guilty on May 12, 1992. The district court then sentenced Johnson to 262 months in prison. Johnson now appeals, alleging that the evidence of the two prior drug sales was inadmissible under Rule 404(b), and even if admissible for one of the purposes named in Rule 404(b), or some other purpose, should nonetheless have been excluded under Fed.R.Evid. 403 as more substantially prejudicial than probative.

II.

We review the district court's admission of Rule 404(b) prior acts evidence under the three step analysis we announced in United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir.1992)(en banc ). First, we review for clear error the district court's factual determination that a prior act occurred. Second, we review de novo whether the district court made "the correct legal determination" that the evidence was admissible for a legitimate purpose. Id. at 1262. And third, we review for abuse of discretion the district court's determination that the "other acts" evidence is more probative than prejudicial. Id.

Rule 404(b) provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

In ruling on the admissibility of evidence submitted under Rule 404(b), the district court must determine whether one of the factors justifying the admission of "other acts" evidence is material, that is, "in issue," in the case, and if so, whether the "other acts" evidence is probative of such factors. The court must also determine whether the probative value of the evidence is substantially outweighed by its potential prejudicial effect. Fed.R.Evid. 403; United States v Acosta-Cazares, 878 F.2d 945, 948-49 (6th Cir.) (per curiam ), cert. denied, 493 U.S. 899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989).

A.

The government argues that Johnson's past drug sales were relevant to show his intent to distribute cocaine on February 21, 1992. The Supreme Court held in Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988), that "[t]he threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character." Thus, before 404(b) evidence may be admitted as probative of the defendant's intent, intent must be a material issue in the case. See United States v. Bakke, 942 F.2d 977, 982 (6th Cir.1991); United States v. Zelinka, 862 F.2d 92, 98 (6th Cir.1988).

Of course, the difficulty is in determining when intent is a "material issue" for purposes of Rule 404(b) admissibility. Is intent always a "material issue" within the meaning of Rule 404(b), as the government argues, when a defendant is charged with a specific intent crime like possession of cocaine with intent to distribute? The answer varies from circuit to circuit. At least one circuit holds that where intent (not even specific intent) is an element of the crime charged, evidence of other acts tending to establish intent is admissible. See, e.g., United States v. Rivera-Sola, 713 F.2d 866, 871 (1st Cir.1983). Several other circuits hold that where specific intent is an element of the crime charged, intent is always in issue regardless of whether the defendant has made it an issue. See, e.g., United States v. Suntar Roofing, Inc., 897 F.2d 469, 479-80 (10th Cir.1990); United States v. Weddell, 890 F.2d 106, 107-08 (8th Cir.1989); United States v. Mazzanti, 888 F.2d 1165, 1171 (7th Cir.1989), cert. denied, 495 U.S. 930, 110 S.Ct. 2167, 109 L.Ed.2d 497 (1990); United States v. Williams, 816 F.2d 1527, 1531 (11th Cir.1987). Other circuits, however, recognize a distinction between cases in which a defendant claims that he did not do the charged act at all, and then makes no issue of intent, and those in which the defense theory is that the defendant acted mistakenly or innocently, with only the latter raising a genuine issue of intent for Rule 404(b) purposes. In these circuits, the materiality of intent depends, not on the statutory definition of the offense, but on the facts of the case and the nature of the defense asserted. Simply put, these...