U.S. v. Miller

• Citation: 959 F.2d 1535
• Decision Date: 04 May 1992
• Docket Number: No. 88-8714,88-8714
• Parties: 35 Fed. R. Evid. Serv. 643 UNITED STATES of America, Plaintiff-Appellee, v. Louis MILLER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1535

959 F.2d 1535

35 Fed. R. Evid. Serv. 643

UNITED STATES of America, Plaintiff-Appellee, v. Louis MILLER, Jr., Defendant-Appellant.

No. 88-8714.

United States Court of Appeals, Eleventh Circuit.

May 4, 1992.

William A. Morrison, Atlanta, Ga. (Court-appointed), for defendant-appellant.

Mary Jane Stewart, Asst. U.S. Atty., Atlanta, Ga., Geoffrey Brigham, U.S. Dept. of Justice, Crim. Div., Appellate Section, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, and DUBINA, Circuit Judges, HENDERSON and CLARK, Senior Circuit Judges.

ANDERSON, Circuit Judge:

Louis Miller was convicted of knowing distribution of cocaine in violation of 21 U.S.C. § 841, and conspiracy to knowingly distribute cocaine in violation of 21 U.S.C. § 846. Miller was sentenced to 15 years on each count, to run concurrently. On appeal, Miller challenges his conviction on several grounds. A panel of this court concluded that the district court committed reversible error by admitting extrinsic evidence under Fed.R.Evid. 404(b). 883 F.2d 1540 (11th Cir.1989). The panel opinion was vacated when the case was ordered to be reheard en banc. 923 F.2d 158 (11th Cir.1991). The case was submitted to the en banc court for rehearing on October 7, 1991. We now affirm, concluding that Miller's several claims of error are without merit. We discuss only Miller's claim that the district court erred in admitting extrinsic evidence under Fed.R.Evid. 404(b), finding that the other issues raised by Miller on appeal are without merit and warrant no discussion.

FACTS ¹

The offense charged in the instant indictment occurred on January 7, 1987. The subsequent extrinsic act which was admitted into evidence pursuant to Rule 404(b) occurred on September 3, 1987. The relevant After Miller pulled the Pontiac Grand Am into the driveway in back of Agent Bledsoe's car, Lyons got into Miller's car. The car pulled away, drove around the block, then returned and dropped Lyons off. When Lyons returned, he had an ounce of cocaine.

                facts surrounding the January 7, 1987, offense charged in the instant indictment are as follows.   Acting in an undercover capacity, Special Agent Bledsoe of the Drug Enforcement Administration (DEA) and a confidential informant contacted Labron Lyons at his mother's house in order to buy some cocaine.   Lyons accommodated them by calling the beeper number of his supplier.   Lyons told Agent Bledsoe and the informant that "Louis" would bring the cocaine to him.   Agent Bledsoe then waited in her car in the driveway of the house.   Several minutes later, a blue Pontiac Grand Am pulled in behind her.   Agent Bledsoe identified Miller in court as the driver of the vehicle.   She had observed Miller by looking into her vehicle's rear view mirror, and had recognized him as the person she had met during an earlier undercover investigation in which she and her partner had approached Miller to discuss purchasing cocaine
                

During the trip around the block, Agent Harvey, who was conducting surveillance, observed the Grand Am, observed Lyons in the front passenger seat, and observed Louis Miller driving. At the point when Agent Harvey first saw Miller at the wheel of the car, he was so close that the agent became concerned about being discovered by the targets of the surveillance. Agent Harvey continued the surveillance after Miller returned to Lyons' mother's house and dropped Lyons off. He observed that only Louis Miller was in the car. During this surveillance, Agent Harvey saw Miller stop, get out of the car, and make a telephone call from a pay telephone.

The relevant facts surrounding the subsequent extrinsic offense, which occurred on September 3, 1987, are as follows. In the interim between January 7, 1987, and September 3, 1987, Labron Lyons had been arrested on unrelated charges and had agreed to cooperate with the government. Pursuant to the plan, Lyons called Miller's beeper number. Miller returned the call, and that telephone conversation was taped. In the taped telephone conversation, Miller agreed to deliver cocaine to Lyons at Lyons' mother's house. Lyons gave Miller no directions as to how to get to Lyons' mother's house. Significantly, the taped telephone conversation referred to the earlier January transaction. In setting up the September 3 transaction, Miller inquired if Lyons would be alone for the drug delivery. Lyons responded that his client would have to ride with them, because she would not leave the money. Then, to reassure Miller, Lyons indicated that the client was the same one they had dealt with before. Lyons had opened the conversation by telling Miller that he had some people from out of town, indicating that they had been there a couple of months before--"I got these people here from out of town ... know about a couple of months back." Later in the conversation, when Lyons was attempting to reassure Miller that the client was one they had dealt with before, Lyons described for Miller the earlier January transaction. Lyons told Miller that this client was the same one who had parked in his mother's driveway, and that Miller had pulled in behind her. Miller's response indicates that he was reassured, and he agreed to meet Lyons and the client at Lyons' mother's house. ² At the trial for the January offense, the government introduced the subsequent extrinsic September transaction. Upon defendant's objection, the government asserted that the extrinsic offense was admissible to prove identity or modus operandi. Miller claims on this appeal that the district court erred in admitting the extrinsic offense evidence.

                Several minutes after the telephone conversation, Miller arrived in a blue Monte Carlo automobile driven by Nathan Collins.    Lyons got into the car with Miller, and they again drove around 3-4 minutes before returning to Lyons' mother's house.   At that time, Lyons asked Miller to wait until the buyer approved the drugs (i.e., two ounces of cocaine);  Miller was then arrested.   A search incident to arrest revealed a quantity of cocaine and $849 on Miller's person
                

DISCUSSION

Fed.R.Evid. 404(a) provides that evidence of a defendant's character is not generally admissible to prove that he acted in conformity therewith on a particular occasion. Rule 404(b) provides that evidence of other crimes is not admissible to prove defendant's character in order to show action in conformity therewith. However, extrinsic crime evidence is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ³

The leading case in this circuit on Rule 404(b) evidence is United States v. Beechum, 582 F.2d 898 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). The Beechum analysis has now been confirmed by the Supreme Court in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). A three-part test has evolved for evaluating the admissibility of Rule 404(b) evidence. First, the evidence must be relevant to an issue other than the defendant's character. Second, as part of the relevance analysis, ⁴ there must be sufficient proof so that a jury could find that the defendant committed the extrinsic act. Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501, citing Beechum, 582 F.2d at 912-13. Third, the evidence must possess probative value that is not substantially outweighed by its undue prejudice, and the evidence must meet the other requirements of Rule 403.

In reviewing the district court's decision admitting Rule 404(b) evidence, we are governed by the abuse of discretion standard. United States v. Edwards, 696 F.2d 1277, 1280 (11th Cir.), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983); United States v. Roe, 670 F.2d 956, 967 (11th Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109 (1982).

The extrinsic offense in this case, i.e., the September 3, 1987, offense, was admitted to prove identity or modus operandi. ⁵ It was admitted to prove that the perpetrator of the January 7, 1987, offense was the same person who committed the extrinsic offense. Of course, it was clear that Miller was the person who committed the extrinsic offense; he was arrested immediately.

Miller's argument on appeal focuses on the first prong of the Beechum test; Miller argues that the extrinsic offense was not relevant to the issue of the identity of the supplier of cocaine in the January offense with which defendant was charged in the instant indictment. Miller argues that the September extrinsic offense was not sufficiently similar to the charged offense to be relevant on the issue of identity.

When extrinsic offense evidence is introduced to prove identity, "the likeness of the offenses is the crucial consideration. The physical similarity must be such that it marks the offenses as the handiwork of the accused. In other words, the evidence must demonstrate a modus operandi." United States v. Beechum, 582 F.2d 898, 912 n. 15 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). United States v. Lail, 846 F.2d 1299, 1301 (11th Cir.1988).

We conclude that the similarity of the two offenses in this case is sufficient to mark the offenses as the handiwork of the accused. This case is unusual in that the circumstances surrounding the extrinsic September transaction include some direct evidence that Miller was the supplier in the earlier January transaction. In the taped September 3 telephone conversation, Lyons referred to and described the earlier January 7 transaction as one in which both Lyons and Miller were involved. There is some indication on the tape that Miller recognized and remembered the earlier January 7 transaction. In addition, there is other evidence demonstrating...