U.S. v. Willis, 92-2809

• Decision Date: 20 October 1993
• Docket Number: No. 92-2809,92-2809
• Citation: 6 F.3d 257
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Jerome WILLIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 257

6 F.3d 257

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Jerome WILLIS, Defendant-Appellant.

No. 92-2809.

United States Court of Appeals Fifth Circuit.

Oct. 20, 1993.

Rehearing and Suggestion for

Rehearing En Banc

Denied Dec. 2, 1993.

Joseph I. Gonzalez-Falla, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, TX, for defendant-appellant.

Eric J.R. Nichols, Paula C. Offenhauser, Peggy Morris Ronca, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING and BARKSDALE, Circuit Judges, and PARKER, ¹ District Judge.

BARKSDALE, Circuit Judge:

The primary issue before us is the use of prior convictions, pursuant to Fed.R.Evid. 404(b), as part of the proof for the charged offense. Joseph Jerome Willis appeals his drug-trafficking and weapons convictions, contending, inter alia, that his two prior drug convictions were inadmissible, under the rule, to show that he intended to exercise dominion and control over the cocaine base found in the possession of his companion. We AFFIRM.

I.

On the afternoon of March 9, 1992, before executing an unrelated arrest warrant, officers conducted surveillance of Willis. They observed him get into a car with a woman (later identified as America Mercedes Falcon) and a small child. Willis drove in an evasive manner, causing the officers to believe that he was attempting to evade surveillance. They followed the vehicle (driven by Willis) to an apartment complex, where Willis, Falcon, and the child exited the car and entered an apartment. Willis and Falcon returned to the car about 15 minutes later. Officers then followed it to a condominium. Willis and Falcon both got out of the car, but Willis remained near it and appeared to be standing lookout while Falcon entered a condominium; she returned about 15 minutes later. Willis and Falcon then drove to a house that was for sale or lease. Willis was arrested while he and Falcon were standing on its porch.

One of the officers noticed a .25 caliber semi-automatic pistol in plain view in the open ashtray of the car in which Willis and Falcon had been riding. The ashtray was closer to the driver's side of the car than to the passenger's, and the pistol was within easy reach of a person sitting in the driver's seat. The pistol was unloaded, and the officers found no ammunition clip or bullets in the car. Also in the car ashtray were small pieces of pink or coral-colored cardboard with the letters "L.A." (an alias used by Willis) and a telephone number written on them. A cellular telephone and two digital pagers were found during a search of the car. Small manila envelopes containing marijuana, and plastic baggies containing cocaine and cocaine base ("crack" cocaine), were found in Falcon's purse; and another baggie containing 12.4 grams of crack cocaine was found in her pants. Willis was taken to the police station, advised of his rights, and interviewed. During the interview, he admitted that the drugs carried by Falcon belonged to him, but denied owning the pistol.

Willis was charged and convicted (by a jury) for possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1) (count one); possession with the intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B) (count two); and using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1) (count three). He was sentenced, inter alia, to 120 months on count one and 150 months on count two, to run concurrently, and to a consecutive 60-month term on count three.

II.

Willis raises four issues: admissibility of his prior drug convictions pursuant to Rule 404(b); denial of his motion for a mistrial based on an unresponsive answer; prosecutorial misconduct during closing argument; and sufficiency of the evidence on count three (using or carrying a firearm during and in relation to a drug trafficking crime).

A.

Notwithstanding admitting in his post-arrest interview that the drugs found on Falcon were his, Willis reversed course before trial, placing possession in issue for count two--possession with intent to distribute. He contends that, in light of his offer to stipulate to intent to distribute, his two prior drug convictions were not admissible under Rule 404(b), ² asserting that their probative value on, inter alia, his intent to exercise dominion and control over (constructively possess) the drugs was outweighed by unfair prejudice.

This court has set forth a two-part test for determining the propriety of admitting evidence of "bad acts" not alleged in the indictment. First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403. ³

United States v. Dula, 989 F.2d 772, 777 (5th Cir.1993) (citing United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc ), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979)). "The district court's determinations on these matters will not be disturbed absent a clear showing of abuse of discretion". United States v. Robichaux, 995 F.2d 565, 568 (5th Cir.1993) (internal quotation marks omitted); see alsoUnited States v. Dula, 989 F.2d at 778 ("The balancing of probative value against prejudicial effect is committed to the sound discretion of the trial judge, a decision that is final in the absence of abuse of discretion").

Willis stipulated that he was a convicted felon. Prior to trial, the Government gave notice that, pursuant to Rule 404(b), it intended to offer into evidence his state convictions in 1991 (the offense in issue was in March 1992) for possession of cocaine and possession with the intent to distribute cocaine. Willis moved to exclude the convictions, offering to stipulate to intent to distribute if the Government proved possession. Before trial, the district court conducted a hearing regarding the admissibility of the prior convictions. The Government urged that they were relevant not only as to Willis' intent to distribute, but also, noted supra, as to his knowledge and intent to constructively possess the cocaine base found on Falcon. The district court denied Willis' motion, holding that the prior convictions were probative on the issue of his intent to possess and that the probative value was not substantially outweighed by any unfair prejudice. Shortly after trial, the district court, in a very thorough opinion, further explained her ruling.

The two prior convictions were admitted into evidence pursuant to a written stipulation. Immediately after the stipulation was read to the jury, the district court gave a very comprehensive limiting instruction; ⁴ and the charge included a similar instruction. ⁵ Willis does not challenge the form of either. And, before the jury retired to deliberate, the court, at Willis' request, again instructed the jury that the evidence of similar acts could be considered only for the purpose of determining whether the defendant had the state of mind or intent necessary to commit the crime charged in count two (possession with intent to distribute).

In support of his contention that the prior convictions should not have been admitted, Willis relies primarily, if not totally, on United States v. Yeagin, 927 F.2d 798 (5th Cir.1991). Yeagin was convicted for violations almost identical to those charged against Willis: possession with the intent to distribute methamphetamine, use of a firearm in connection with a drug-trafficking offense, and possession of a firearm as a convicted felon. Id. at 799. And, as here, in an effort to prevent the Government from introducing evidence of his nine prior felony convictions, Yeagin offered to stipulate that he had the requisite intent to distribute if the Government proved that he possessed methamphetamine, and that he had prior felony convictions if the government proved that he possessed a firearm. Id. at 800. The Government refused to accept the stipulations, and a list of all nine of the convictions was read to the jury. Id. at 800.

On Yeagin's appeal, the Government conceded that the district court erred in admitting four of the nine convictions, because they were non-drug-related and, therefore, irrelevant. Id. at 801. "[T]o provide guidance to the district court in retrying the case," our court considered the admissibility of Yeagin's other five prior convictions, and concluded that, in light of Yeagin's offer to stipulate to intent to distribute if the Government proved possession, the prior convictions were not relevant to that element. Id. at 801-02.

The Government waited until the appeal in Yeagin to assert that Yeagin's prior drug-related convictions were admissible because they were relevant to the issue of knowledge or intent required for constructive possession. Id. Our court responded:

We agree that constructive possession includes some element of knowledge or intent. We also agree that Yeagin's past drug-related crimes might have been relevant on the issue of whether Yeagin intended at the time of his arrest to exercise dominion or control over the drugs.... This evidence, however, was highly prejudicial to Yeagin. It provided direct support only for the one inference specifically forbidden by rule 404(b): that because Yeagin had committed drug crimes in the past, he had a bad character and a propensity to commit such crimes again.

Other crimes evidence is not admissible merely because the government manages on appeal to identify some broad notion of intent lurking behind the element of possession. A trial judge faced with the problem of admissibility of other crimes evidence should...