U.S. v. Sampson

• Decision Date: 27 November 1992
• Docket Number: No. 92-3096,92-3096
• Citation: 980 F.2d 883
• Parties: 37 Fed. R. Evid. Serv. 440 UNITED STATES of America v. Harvey SAMPSON and Rose Sampson Harvey Keith Sampson, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 883

980 F.2d 883

37 Fed. R. Evid. Serv. 440

UNITED STATES of America v. Harvey SAMPSON and Rose Sampson

Harvey Keith Sampson, Appellant.

No. 92-3096.

United States Court of Appeals,

Third Circuit.

Argued Sept. 16, 1992.

Decided Nov. 27, 1992.

Michael R. Cauley (argued), Yochim, Skiba, Moore & Nash, Erie, Pa., for appellant.

Thomas W. Corbett, Jr., U.S. Atty., Michael L. Ivory (argued), Asst. U.S. Atty., Paul J. Brysh, Pittsburgh, Pa., for U.S.

Before STAPLETON, SCIRICA and NYGAARD, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Harvey K. Sampson appeals his conviction for marijuana possession. The question on appeal is whether the district court properly admitted two prior drug convictions into evidence under Federal Rules of Evidence 404(b) and 403. We conclude that it did not, and so will reverse and remand for a new trial.

I.

Before this conviction, Sampson was convicted in Pennsylvania of conspiracy and possession with intent to distribute cocaine and a related firearm offense. His wife was convicted as a coconspirator. Sampson was also convicted in Michigan of possession with intent to distribute marijuana.

While he was serving a twelve year sentence at a federal prison for the Pennsylvania conviction, Sampson and his wife were indicted for marijuana possession under 21 U.S.C. § 844(a), and possession with intent to distribute under 21 U.S.C. § 841(a)(1). She pleaded guilty, but he pleaded not guilty.

Before trial, the government requested the district court to rule on the admissibility of Sampson's two drug convictions. It argued that the Michigan drug conviction was admissible because that offense was "of the similar nature to the controlled substances as charged in the instant case (i.e. marijuana)"; that the Pennsylvania drug conviction was admissible because it shows that the same parties, husband and wife, were once again involved in a drug matter; and that the Pennsylvania conviction demonstrates a concert of action between Sampson and his wife and tends to establish that this was part of a plan or scheme, refuting an accident or mistake defense. At the pre-trial hearing, the government reiterated that the convictions were "relevant and admissible in this case because they show not only one of those exceptions, but I am advocating more than one, intent, motive, scheme, a plan, a design, and certainly shows familiarity of the parties, obviously, and background of the charges."

The district court found the evidence admissible, concluding, "I am inclined to think that this is the kind of incident which does fall within the purview of the exceptions listed in 404(b). So I am going to permit it with respect to the two drug convictions, but not with respect to the rifle or gun or whatever it was."

Trial evidence established that on February 1, 1991, Sampson telephoned his wife from prison. This call was monitored and in it she said, "Got that for you today." Sampson replied, "All right." A few minutes later:

Harvey: "So what color you gonna use?"

Rose: "Yellow."

Harvey: "Okay, that'll work."

The next day she visited her husband for about 6 hours. Before seeing her husband, she was subjected to a limited search. Her outer garments were removed, but her inner garments, including pockets, were not searched. The two were then allowed to spend the entire visit in the visiting area where some physical contact was permitted. The visiting area has a number of vending machines, and inmates are permitted to share food during visits. After the visit, Sampson, following prison policy, was strip searched.

The next day Federal Correctional Officer Christopher Fusco searched Sampson's vacant cell. In a standard issue green prison jacket that Sampson used and which was hanging on the rack closest to Sampson's bed, Fusco discovered three yellow balloons. The balloons, tied off at the tip, were badly stained, stunk of feces, and were later found to contain marijuana. During an interrogation by an FBI agent, Sampson admitted that the jacket was his, but denied knowing the balloons were in it. He also denied that his wife gave him drugs during her visit.

The government based its case upon circumstantial evidence. It suggested that the recorded conversation planned a drug transaction using something that was yellow. Officer Fusco testified that he believed these balloons were ingested, passed in the privacy of the showers, and then hidden in the jacket pocket. Another officer testified that brightly colored balloons are often used to smuggle contraband into prisons because they will "blend in with the food items," making it difficult for supervising officers to "identify the difference between a balloon and a Frito chip or a yellow M & M." Sampson did not testify at trial. His defense was to imply the possibility that the balloons had been planted by another inmate.

A jury found Sampson guilty, and the district court sentenced him to a nine month term of incarceration. Sampson appeals, contending that the district court erred under Federal Rules of Evidence 404(b) and 403 when it admitted his drug convictions into evidence.

II.

The trial court must consider two issues when deciding whether to admit prior convictions: first, whether the conviction is logically relevant under Rules 404(b) and 402 to any issue other than the defendant's propensity to commit the crime; second, if relevant, whether under Rule 403 the probative value of the evidence outweighs its prejudicial effect. The trial court has "considerable leeway" in both the Rule 404(b) relevancy determination and the balancing test under Rule 403. 2 Weinstein & Berger, Weinstein's Evidence, p 404 at 404-75 (1992). We review for an abuse of discretion. United States v. Traitz, 871 F.2d 368, 389 (3d Cir.1989).

A.

Rule 404(b), the basic rule governing the admissibility of character evidence, provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted 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.

This rule is inclusive, not exclusive, and emphasizes admissibility. Government of Virgin Islands v. Edwards, 903 F.2d 267, 270 (3d Cir.1990) (citing United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir.1988)).

The Supreme Court gives four guidelines on the admissibility of prior bad act evidence: (1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the evidence only for the limited purpose for which it is admitted. Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988).

Character evidence is not rejected because it is irrelevant. On the contrary, "it is said to weigh too much with the jury and to so overpersuade them as to prejudice one with a bad general record and deny him a fair opportunity to defend against a particular charge." Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218, 93 L.Ed. 168 (1948). The government knows this, and we do too. Although the government will hardly admit it, the reasons proffered to admit prior bad act evidence may often be potemkin village, because the motive, we suspect, is often mixed between an urge to show some other consequential fact as well as to impugn the defendant's character. ¹

Hence, where the evidence only goes to show character, or that the defendant had a propensity to commit the crime, it must be excluded. Where, however, the evidence also tends to prove some fact besides character, admissibility depends upon whether its probative value outweighs its prejudicial effect. Government of Virgin Islands v. Harris, 938 F.2d 401, 419 (3d Cir.1991). ²

There is no question that, given a proper purpose and reasoning, drug convictions are admissible in a trial where the defendant is charged with a drug offense. See for example, United States v. Simon, 842 F.2d 552, 553-54 (1st Cir.1988) (drug conviction admissible to show intent and knowledge that package defendant carried contained drugs and not books); United States v. Terry, 702 F.2d 299, 316 (2d Cir.1983) (20 year drug conviction admissible to show intent and knowledge that telephone conversation concerned drugs and not gambling); United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir.1986) (presence on vessels in which drugs were hidden admissible to show absence of mistake in prosecution for violation of drug laws in high sea); United States v. Percy, 765 F.2d 1199, 1204 (4th Cir.1985) (prior drug transactions admissible to show that defendant's acts were "not inadvertent, accidental, unintentional or without guilty knowledge"); United States v. Logan, 949 F.2d 1370, 1379-80 (5th Cir.1991) (state conviction for growing marijuana admissible to show intent, knowledge, and absence of mistake in prosecution for drug conspiracy); United States v. French, 965 F.2d 67, 73-74 (6th Cir.1992) (drug transactions admissible in prosecution for drug possession and conspiracy); United States v. Chaidez, 919 F.2d 1193, 1202-03 (7th Cir.1990) (10 year old drug conviction pertaining to transactions unrelated to the charge admissible since defendant denied knowingly possessing drugs); United States v. Haynes, 881 F.2d 586, 590 (8th Cir.1989) (operation of "weed house" admissible to show knowledge and intent in prosecution for operation of "crack house"); United States v. Rocha, 553 F.2d 615, 616 (9th Cir.1977) (evidence of prior transportation of marijuana, which resulted in acquittal, admissible to show intent in prosecution for possession of marijuana with intent to distribute); United States v. Poole, 929 F.2d 1476, 1481 (10th Cir.1991) (cocaine sale was admissible to show defendant knew that...