United States v. Cotton

• Decision Date: 19 May 2016
• Docket Number: No. 14–3141.,14–3141.
• Citation: 823 F.3d 430
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Torrance L. COTTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

823 F.3d 430

UNITED STATES of America, Plaintiff–Appellee

v.Torrance L. COTTON, Defendant–Appellant.

No. 14–3141.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 23, 2015.

Filed: May 19, 2016.

Rehearing and Rehearing En Banc Denied July 13, 2016.

Beau Brian Brindley, argued, Michael James Thompson, on the brief, Chicago, IL, for Defendant–Appellant.

Sirena Miller Wissler, AUSA, argued, Saint Louis, MO, for Plaintiff–Appellee.

Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Torrance Cotton appeals his convictions for conspiracy to distribute and possession with intent to distribute cocaine. After careful review of the issues raised, we find no reversible error and affirm the judgment of the district court.¹

I. Background

In 2012, the Drug Enforcement Administration (DEA) began an investigation into the suspected drug trafficking activities of Jeremy Poe. After Poe was arrested in January 2013 in possession of a kilogram of cocaine, he agreed to cooperate with the DEA and assist them in their investigation.

At a meeting with the DEA on January 14, 2013, Poe told the DEA that he had received the kilogram of cocaine from David Frazier, and that he believed that Frazier had gotten the cocaine from Torrance Cotton. Following that meeting, Poe agreed to meet with Frazier and arrange further drug transactions while wearing a wire. Poe had two separate meetings with Frazier on January 17, first at Chilimacks, a courier service where Frazier and Cotton worked, and second at Frazier's residence. Poe met again with Frazier on January 18. Following that meeting, the DEA arrested Frazier and seized one kilogram of cocaine from a safe in his residence.

As a result of this investigation, Torrance Cotton was indicted on May 1, 2013, and charged with one count of conspiracy to distribute cocaine and one count of possession with intent to distribute cocaine. Cotton was convicted of both counts following a jury trial on April 3, 2014. On appeal, Cotton contests the admission of evidence of his prior convictions, admission of a statement made by David Frazier after his arrest, and denial of his motion for a new trial based on a Brady violation.

II. Discussion

A. Admission of Evidence of Prior Convictions

Cotton asserts that the district court improperly allowed the government to introduce evidence of his prior convictions for possession of cocaine with intent to distribute and attempted drug trafficking. Because Cotton did not make a contemporaneous objection to the introduction of this evidence, our review is for plain error unless the district court made a final and definitive pretrial ruling on the admissibility of this evidence. United States v. Young, 753 F.3d 757, 775 (8th Cir.2014). The admissibility of the evidence was addressed at two pretrial conferences, on November 26, 2013, and January 23, 2014. At both pretrial conferences, the district court made a provisional, non-definitive ruling that the evidence was admissible, specifically anticipating a contemporaneous objection at trial. However, before voir dire began on March 31, 2014, the district court again addressed the admissibility of the evidence of Cotton's prior convictions, stating “I do think that there is still a basis to introduce this 404(b) evidence.... So the objection will be overruled. I will, as I say, before that evidence is sought to be introduced, want to see a limiting instruction.” This March 31 ruling was, by its terms, final, definitive, and non-provisional. Cf. id. (“when the district court reserves its ruling or otherwise indicates that the ruling is provisional, then the proponent should reintroduce the court to the issue at the appropriate time”) (emphasis added). The court stated that the objection “will be overruled,” and referred to an anticipated limiting instruction with regard to the evidence that would be admitted. At this point, the court's ruling on the admissibility of the evidence was clear, and counsel would no longer have had any reason to doubt whether that ruling was definitive. See id.; Fed. R. Evid. 103(b) & advisory committee's note to 2000 amendment. We therefore conclude that Cotton properly preserved this claim of error, and accordingly review the district court's decision to admit the evidence of Cotton's prior convictions for abuse of discretion. Young, 753 F.3d at 767.

Evidence of a defendant's prior convictions is categorically inadmissible to prove the defendant's criminal propensity. Fed. R. Evid. 404(b)(1). Evidence of prior convictions may, however, be admissible to prove a specific element or aspect of the charged offense, such as “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Where there is a proper purpose for evidence of a prior conviction, the conviction may be admitted if it is “(1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than prejudicial effect.” United States v. Trogdon, 575 F.3d 762, 766 (8th Cir.2009) (quoting United States v. Williams, 534 F.3d 980, 984 (8th Cir.2008) ). This is considered a rule of inclusion, meaning that if these elements of admissibility are satisfied, the evidence will be excluded only when it is offered solely to prove criminal propensity. United States v. Foster, 344 F.3d 799, 801 (8th Cir.2003).

Federal Rule of Evidence 404(b)(2) identifies the purposes for which evidence of prior convictions may be admitted, but merely reciting those permissible purposes without more is not sufficient to render evidence of a prior conviction admissible in any particular case. Rather, when the defendant raises a timely objection to admission of the evidence, Rule 404(b) requires a careful inquiry and analysis of the purpose for which the evidence is offered. The government—as proponent of the evidence—must identify the permissible non-propensity purpose for the evidence, and must articulate the relationship between the prior conviction and a material issue in the case. If the district court, upon consideration of the facts of the case, the elements of proof required, and the circumstances of the prior conviction, concludes that a permissible non-propensity purpose exists for the evidence, the court must then consider whether the other requirements for admissibility are satisfied. See United States v. Armstrong, 782 F.3d 1028, 1034 (8th Cir.2015) (holding that even if introduced for a proper purpose, to be admissible, prior bad act evidence must be relevant, supported by sufficient evidence, similar in kind and close in time to the crime charged, and higher in probative value than prejudicial effect). If, however, the court concludes that the only purpose for the evidence is to show the defendant's criminal propensity, Rule 404(b)(1) prohibits its admission.

Here, there is reason to be concerned that the evidence was not properly admitted under Rule 404(b). Following Cotton's pretrial objection to the evidence, the government generally asserted that Cotton's prior convictions were admissible to prove “knowledge, intent, and motive.”² The district court made a similarly general preliminary ruling, stating that the convictions were relevant to prove “lack of mistake, knowledge, identity, those issues for which 404(b) evidence is used.” Thus, though both the government and the district court correctly recited some of the purposes for which evidence of prior convictions may be used, the court did not analyze the purpose for which the evidence was being offered in this case. Mere recitation of the Rule without an accompanying case-specific analysis risks couching criminal propensity in terms of knowledge, intent, or lack of mistake. Rule 404(b), by its own terms, requires more.

Nevertheless, under the particular circumstances of this case, any error in admitting the evidence of Cotton's prior convictions was harmless. An evidentiary error is harmless if it did not substantially influence the jury's verdict. United States v. Aldridge, 664 F.3d 705, 714 (8th Cir.2011). Error may be harmless where “the government introduced ample competent evidence from which the jury could conclude beyond a reasonable doubt that the defendant was guilty even without the evidence that should have been excluded.” Id. (quoting United States v. Falls, 117 F.3d 1075, 1077 (8th Cir.1997) ). Here, the evidence against Cotton included: the testimony of Jeremy Poe, including David Frazier's statements to Poe that Cotton was his cocaine supplier; recorded conversations from January 17, 2013, in which Frazier referred to “T” and “Torrance”; testimony from the DEA agents that Cotton arrived at Chilimacks on January 18, 2013, with a package under his arm; and Cotton's fingerprints on the outside wrapping of the cocaine found in Frazier's safe. This evidence, if given credence by the jury, is “sufficiently strong for us to conclude that the conviction[s], even if improperly admitted, did not have ‘a substantial influence on the jury's verdict.’ ” United States v. Donnell, 596 F.3d 913, 921 (8th Cir.2010) (quoting United States v. Lupino, 301 F.3d 642, 645 (8th Cir.2002) ). Furthermore, the district court gave an appropriate limiting instruction stating that the evidence of Cotton's prior convictions “[was] not evidence that he committed such acts in this case,” and could only be used “to help [ ] decide knowledge, intent, and absence of mistake or accident.” The presence of a limiting instruction “diminishes the danger of any unfair prejudice arising from the admission of other acts.” Aldridge, 664 F.3d at 715 (quoting United States v. Strong, 415 F.3d 902, 906 (8th Cir.2005) ).

We do not underestimate the impact evidence of a prior conviction can have on a jury's assessment of a criminal case. The Federal Rules of Evidence limit the use of evidence of prior convictions for...