U.S. v. Lewis

• Decision Date: 24 March 1997
• Docket Number: No. 96-2972,96-2972
• Citation: 110 F.3d 417
• Parties: 46 Fed. R. Evid. Serv. 990 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Kenneth LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 417

110 F.3d 417

46 Fed. R. Evid. Serv. 990

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Kenneth LEWIS, Defendant-Appellant.

No. 96-2972.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 7, 1997.

Decided March 24, 1997.

Melanie C. Conour, (argued), Office of the U.S. Atty., Indianapolis, IN, for Plaintiff-Appellee.

James C. McKinley, (argued), Kempf & McKinley, Indianapolis, IN, for Defendant-Appellant.

Before FAIRCHILD, CUMMINGS and KANNE, Circuit Judges.

FAIRCHILD, Circuit Judge.

A jury convicted Kenneth Lewis of conspiring with his cousin Tiawan Lewis and others to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to a mandatory term of life imprisonment under 21 U.S.C. § 841(b)(1)(A)(iii), and appeals. We affirm.

BACKGROUND

When Kenneth Lewis paged Crystal Davenport, a drug runner, on the evening of While Davenport was being interviewed by police, the telephone number 926-6590 was transmitted to her pager. A female officer called the number (as if she were Davenport), and asked if someone had paged. The woman who answered said that "Kenny" had paged, that he would return in about ten minutes, and that the caller should try again. A few minutes later, a different officer, Burgess Ricks, called back and spoke with a man who identified himself as "Kenny." Kenny said he wanted one "onion" (a term referring to an ounce of cocaine base). When Officer Ricks asked if he knew the price, Kenny responded that he did, $1300, and he told Ricks to meet him in the usual place. Ricks asked where the usual place was, and Kenny responded 25th and Guilford.

August 9, 1995, his timing could not have been worse. Davenport had been arrested only moments earlier for attempting to sell an ounce of crack cocaine to an Indianapolis Police Department officer working in an undercover capacity. A firearm was found in Davenport's purse, along with 28 grams (approximately one ounce) of crack, a digital pager which was active and receiving calls at the time of the arrest, and several slips of paper with names and telephone numbers of individuals to whom Davenport had delivered crack cocaine. On an envelope also found in her purse, Davenport had written the name "Kenny" and the telephone number "926-6590."

At trial, Tiawan Lewis, who had made a plea agreement, testified that he and Kenneth Lewis had been distributing crack for approximately two months, that Kenneth gave him most of the $1300 needed, and that Kenneth sent him to buy the ounce.

Officer Ricks picked up Tiawan at the designated location. Ricks, who was equipped with a transmitting device and accompanied by a surveillance team, drove the car for a couple of blocks. Tiawan gave Ricks $1300 for the crack, and then requested another ounce for his cousin. At that point, law enforcement officers converged upon the car. Tiawan bolted out of the car and raced back to his residence at 2508 N. Guilford with officers in pursuit.

Outside the residence, Tiawan met Kenneth. They retreated into the residence and slammed the door, just as one of the pursuing officers reached the porch. Through an open window at the front of the residence, Kenneth aimed a semiautomatic firearm at the officer, who also had his gun drawn, and ordered the officer off the porch. After a short standoff, Tiawan and Kenneth surrendered. Kenneth's firearm was recovered from the residence, along with some cash, a combination safe, and a cartridge clip.

ANALYSIS

On appeal, Kenneth asserts that the district court erred in admitting evidence of his prior convictions for drug felony offenses. He also claims error in the court's decision to admit the proffer letters and plea agreements of codefendants Davenport and Tiawan Lewis. In addition, he argues that the court erred in refusing to allow him to argue to the jury about his possible punishment. Finally, he appeals his sentence, claiming that the evidence was insufficient to establish that the conspiracy involved more than 50 grams of cocaine base so that a life sentence became mandatory.

I. Rule 404(b) Evidence

At the close of trial, the district court took judicial notice, and informed the jury, of the fact that in 1991 and 1993, Kenneth had been convicted of possession of cocaine. Kenneth insists that this evidence constituted inadmissible character evidence improperly admitted under Federal Rule of Evidence 404(b). Rule 404(b) provides that evidence of "other crimes" is inadmissible to show that the defendant has a propensity to commit crime and that he acted consistently with that propensity. United States v. Hernandez, 84 F.3d 931, 935 (7th Cir.1996). However, "other crimes" evidence may be admissible to establish "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b).

The district court found that the evidence of Kenneth's prior convictions was admissible under Rule 404(b) because it showed knowledge, intent, and the absence of mistake In determining whether the district court abused its discretion in admitting the above evidence, we consider whether (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows the "other act" is similar enough and close in time to be relevant to the matter in issue; (3) there is sufficient evidence to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Hernandez, 84 F.3d at 935.

and the court admonished the jury to consider the evidence for that purpose only. Judge Barker also determined that the probative value of that evidence was not substantially outweighed by the danger of unfair prejudice. See Fed.R.Evid. 403. We review the admission of the evidence only for an abuse of discretion. United States v. Smith, 103 F.3d 600, 602 (7th Cir.1996).

Kenneth focuses primarily on the first factor. He argues that evidence of his prior possession of cocaine is irrelevant to his purported intent in the present case to distribute cocaine base. However, "when a defendant is charged with a specific intent crime, the government may present other acts evidence to prove intent." United States v. Long, 86 F.3d 81, 84 (7th Cir.1996) (citations and internal quotations omitted). Kenneth was charged under 21 U.S.C. § 846 with conspiring to violate § 841(a)(1), which criminalizes "knowingly or intentionally" possessing cocaine with intent to distribute; thus, Kenneth was charged with a specific intent crime, and the admission of the other crimes evidence for the limited purpose of proving knowledge or intent was proper. Furthermore, the fact that Kenneth had twice previously possessed cocaine tends to establish his knowledge of the product and to corroborate Tiawan's testimony that it was cocaine base Kenneth sent him to obtain.

The remaining three factors are readily satisfied. Regarding the second factor, the 1991 and 1993 convictions were for crimes similar in time and manner to the 1995 offense; the crimes all related to cocaine possession and all occurred within four years of each other. United States v. Tringali, 71 F.3d 1375, 1379 (7th Cir.1995) (nine-year lapse between drug offenses is sufficiently close in time), cert. denied, --- U.S. ----, 117 S.Ct. 87, 136 L.Ed.2d 43 (1996). As for the third factor, Kenneth's convictions establish that he possessed cocaine previously.

With respect to the fourth factor, the court acknowledged that the prior convictions were "prejudicial--obviously," but added that "the prejudice does not outweigh its probative value." The court continued:

[T]he probative value does go to explain the defendant's intent and his knowledge and his absence of mistake with respect to the facts in issue in this case, that when the cocaine conspiracy was unfolding the defendant's knowledge about that conspiracy and the nature of the transaction ... that he had set in motion and agreed to commit with Tiawan was not a mistake perpetrated by Tiawan Lewis or somebody else. And in view of his involvement in the prior cases, it does show that.

(Tr. II-163-64.)

Trial judges faced with the problem of admissibility of other crimes evidence should cautiously approach the weighing of probative value against prejudicial effect of prior convictions. In this case, we have some question whether the government needed to introduce Kenneth's prior convictions in light of the dramatic circumstances surrounding the standoff outside Tiawan's residence and the obvious prejudicial impact presented by evidence of Kenneth's other crimes. We acknowledge, however, that other proof of Kenneth's knowing involvement in obtaining cocaine depended on (1) inferences from the officers' telephone calls answering the page and conversing with "Kenny" and (2) testimony of his accomplices. In this context, the probative value of the prior convictions in establishing his familiarity with cocaine could be significant. We find no abuse of discretion in Judge Barker's conclusion that the probative value was not outweighed by danger of unfair prejudice.

Moreover, after taking judicial notice of the two prior convictions, the judge provided jurors with limiting instructions, cautioning

                them that they could consider the evidence of those convictions "only on the question of intent, knowledge, and absence of mistake or accident."  (Tr. II-165.)   We presume that the jurors followed their instructions.   Hernandez, 84 F.3d at 935;  United States v. Curry, 79 F.3d 1489, 1497 (7th Cir.1996)
                

II. Bolstering

Kenneth next argues that the district court erred in admitting the codefendants' proffer letters and plea agreements into evidence. He contends that these documents, which referred to the codefendants'...