U.S. v. Merriweather

• Decision Date: 14 March 1996
• Docket Number: No. 93-4217,93-4217
• Citation: 78 F.3d 1070
• Parties: 43 Fed. R. Evid. Serv. 789 UNITED STATES of America, Plaintiff-Appellee, v. Jamal T. MERRIWEATHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1070

78 F.3d 1070

43 Fed. R. Evid. Serv. 789

UNITED STATES of America, Plaintiff-Appellee, v. Jamal T. MERRIWEATHER, Defendant-Appellant.

No. 93-4217.

United States Court of Appeals Sixth Circuit.

Argued April 11, 1995.

Decided March 14, 1996.

On Appeal from the United States District Court for the Northern District of Ohio; Paul R. Matia, Judge.

Ronald B. Bakeman, Asst. U.S. Attorney, Sharon L. Long (argued and briefed), Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee.

Elaine Mittleman (argued and briefed), Falls Church, VA, for Defendant-Appellant.

Before: MARTIN and RYAN, Circuit Judges; GILMORE, District Judge. ^*

RYAN, Circuit Judge.

This case requires that we explain, once again, the close and careful analysis trial courts should undertake before ruling on the admissibility of evidence of "other crimes, wrongs, or acts" under Federal Rule of Evidence 404(b).

Jamal Merriweather appeals from his conviction and sentence for conspiring to distribute cocaine and to possess cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841, 846. Merriweather attacks his conviction and sentence on a number of grounds, but we find merit in only one: Merriweather's claim that Rule 404(b) barred the admission of taped phone conversations between Merriweather and persons involved in a drug conspiracy not charged in this case.

We reverse the conviction.

I.

From 1990 to early 1993, Terry Bender was the central figure in a cocaine trafficking conspiracy in the Cleveland, Ohio, area. In March 1993, a federal grand jury returned a superseding indictment against nineteen persons for conspiring to distribute cocaine and to possess cocaine with the intent to distribute from 1990 through January 1993. Merriweather was among the conspirators named in the indictment's first count.

At Merriweather's trial, Federal Bureau of Investigation Agent Robert Fiatal testified that, in the summer of 1992, a drug task force comprising local, state, and federal law enforcement officers began investigating Terry Bender. The investigators tapped Bender's cellular telephone. Thirteen phone conversations were tape-recorded and introduced at trial against Merriweather. Generally, the tape-recorded conversations were between Bender and other members of the alleged conspiracy, with Bender discussing the purchase, sale, and distribution of cocaine. Merriweather was a participant in only one of the conversations; the one recorded on January 5, 1993. He told Bender that his "clientele" were "back in order now." He also asked Bender to "front" a "whole one"; that is, to provide a kilogram of cocaine for which Merriweather would pay later.

The government also introduced the testimony of Nasir Ahmad, Merriweather's cousin and alleged coconspirator. Ahmad testified that he began buying cocaine from Bender in April 1992, and that Bender began selling to Merriweather sometime before April 1992. Ahmad testified that he once observed Merriweather in possession of cocaine. Ahmad also testified that he and Bender used a pager to communicate regarding cocaine transactions, and that Merriweather had a pager of his own. Finally, Ahmad identified Merriweather's pager number in Bender's phone book, next to the name "Jamal."

The government also attempted to connect Merriweather with the "Bender conspiracy," as the parties have labeled it, through a sheet of paper investigators found in the trunk of a Cadillac that was parked in a storage unit leased by Bender's girlfriend, Donna Gordon. The sheet listed twelve numbers next to twelve names. The number "19,000" was written next to the name "Jamal."

The last direct link between Merriweather and the Bender conspiracy was the testimony of an indicted coconspirator, Antonio Michael Adams. Adams testified that he began to buy cocaine from Bender in late 1990. In 1991, a friend of Adams's, Darryl Rollins, offered Adams the chance to meet Merriweather in the hope that Merriweather would buy cocaine from Adams. Later, Adams mentioned Merriweather to Bender, and Bender said that Merriweather "was a pretty good guy" and that Merriweather "brought him [ (Bender) ] a lot of business."

Finally, the government introduced taped telephone conversations relating to the "Lee Jones conspiracy," as the parties have named it. The government, using Ahmad as the foundation-laying witness, introduced five taped conversations recorded in December 1992. Ahmad identified the voices in each conversation and recalled that the conversations occurred in December 1992. Generally, the conversations related to cocaine purchases by Ahmad and Merriweather from a cocaine supplier, Lee Jones, as part of a drug trafficking conspiracy for which Merriweather was separately indicted, but which was not part of the alleged conspiracy for which Merriweather was on trial in this case. It is these tapes that Merriweather claims were received in evidence, in violation of Fed.R.Evid. 404(b).

Ahmad identified the participants in one conversation recorded on the tapes as himself, Merriweather, and Jones. Ahmad and Merriweather were speaking from Ahmad's house. The government read a sentence from the transcript of the tape recording: "My main man, I need to get on, man, what's up?" Neither the prosecutor nor Ahmad identified the person who spoke the sentence. Ahmad testified that the expression "I need to get on" in drug vernacular means, I need to "[g]et some cocaine." In another taped conversation played for the jury, Ahmad told Jones that Merriweather was in the back room of the house "[c]ooking cocaine into crack." Finally, in still other conversations, Jones reported to Merriweather that Jones's cocaine inventory had dwindled so much that Jones had none to sell to Merriweather.

Merriweather's counsel objected to the admission of these conversations as prohibited by Fed.R.Evid. 404(b). The trial court held a hearing and the objection was overruled. The jury found Merriweather guilty, and the district court sentenced him to 276 months imprisonment.

II.

A.

In reviewing a district court's decision to admit evidence of "other crimes, wrongs, or acts" under Rule 404(b), we first review for clear error the district court's factual determination that the "other ... acts" occurred. Second, we examine de novo the district court's legal determination that the evidence was admissible for a legitimate purpose. Finally, we review for abuse of discretion the district court's determination that the probative value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect. United States v. Johnson, 27 F.3d 1186, 1190 (6th Cir.1994) (citing United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir.1992) (en banc )), cert. denied, --- U.S. ----, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995).

B.

Rule 404(b) provides in relevant part:

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....

Fed.R.Evid. 404(b). We discussed the application of Rule 404(b) in circumstances similar to the present case in Johnson, 27 F.3d 1186. In Johnson, the defendant was charged with possession of cocaine base with the intent to distribute. Before trial, the government notified the district court that it intended to introduce evidence showing that the defendant had made two prior drug sales within a month of the charged possession. The government asserted that the evidence was admissible under Rule 404(b) to show "preparation, plan, motive, intent, all those in this case." Id. at 1189.

In the course of the trial, the court instructed the jurors three times concerning the purpose for which the uncharged prior drug sales might be considered. In the first instruction, the court told the jurors that the evidence "may be admissible for some purpose, perhaps to show motive or some other relevant activity." Id. at 1190 (emphasis omitted). In the second instruction, the court told the jurors they might consider the prior sales as "proof as to method of operations." Id. (emphasis omitted). Finally, at trial's end, the court instructed: "[Y]ou can only consider [the prior acts] 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." Id. (emphasis omitted).

We explained in Johnson that none of the six or seven reasons identified by the trial court for admitting the prior acts evidence was "in issue" in the case, with the possible exception of "intent." We explained that in ruling on the admissibility of uncharged misconduct evidence submitted under Rule 404(b), the district court must always 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.

Id.

We concluded, in Johnson, "that it was likely that the three substantially incorrect and thoroughly contradictory instructions on the permissible use of the [other acts] evidence ... confused the jurors and even unwittingly encouraged them to use the evidence for the purpose expressly forbidden in the [first sentence of Rule 404(b) ]." Id. at 1194.

We ultimately held in Johnson that the trial court's mishandling of the 404(b) evidence in that case was harmless, primarily because there was no objection by the defendant and because the properly admitted evidence of the defendant's guilt was overwhelming. Id.

Johnson is instructive not only because there we were at pains to explain the analysis trial courts should...