United States v. Hill

• Citation: 249 F.3d 707
• Decision Date: 14 February 2001
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 00-1699,00-1699
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA,, v. GREGORY HILL, Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 707

249 F.3d 707 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. GREGORY HILL, DEFENDANT-APPELLANT.

No. 00-1699

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: February 14, 2001

Filed: May 1, 2001

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before Richard Sheppard Arnold, Lay, and Hansen, Circuit Judges.

Lay, Circuit Judge.

Gregory Hill appeals his conviction for several crimes, including possession with intent to distribute cocaine, felon in possession of a firearm, and possession of a firearm after a misdemeanor conviction for domestic violence. Hill alleges: (1) the district court's ¹ admission of a past crime under Federal Rule of Evidence 404(b) was erroneous, (2) the prosecutor exercised a peremptory strike against an African- American juror for racially discriminatory reasons, and (3) the evidence was not sufficient to support a conviction. We reject Hill's arguments and affirm his conviction.

I. Background

Belden Coleman, a crack addict and paid informant for the Minneapolis Police Department (MPD), lived in an apartment with another crack user named Angela Ferris. Coleman contacted agents of the MPD, informing them that a drug dealer had stayed the night at Ferris' apartment. Based upon this information, the MPD began surveillance outside the building where Ferris resided and applied for a warrant to search Ferris' apartment. When attempting to execute the warrant, MPD officers saw Hill in the parking lot. Based upon Coleman's identification of Hill as the drug dealer who was staying in Ferris' apartment, the MPD officers arrested Hill. The subsequent search of the apartment revealed a bag containing guns and drugs, which Coleman had identified as Hill's.

Prior to trial, the Government informed Hill that it intended to introduce evidence of Hill's prior drug conviction under Federal Rule of Evidence 404(b). The Government alleged that such evidence was appropriate to show Hill's intent, arguing that intent was at issue because Hill's defense was "basically that the defendant knew nothing of what was in the bedroom." (Pretrial Hearing Tr. at 10.) Hill, relying on a line of cases beginning with United States v. Jenkins, 7 F.3d 803 (8th Cir. 1993), asserted that he would not make his intent an issue in the trial: "We do not intend to put the defendant's thoughts or mental status into contest at all in the case . . . . We intend to limit the scope of our defense so as to not raise any issue concerning mental state." (Pretrial Hearing Tr. at 12.) Eventually, the trial court allowed the introduction of the past crime under Rule 404(b) because Hill's defense was essentially: (1) a general denial, which required the Government to prove all the elements of the crime including intent, and (2) an allegation that his presence in the parking lot was fortuitous - he was in "the wrong place at the wrong time." (Trial Tr. at 455.) The district court believed intent was at issue and admitted the evidence of the past crimes.

II. Discussion

A. Admission of Hill's Past Crime Under Rule 404(b)

When applying Rule 404(b), ² a court must first ask whether the past crime evidence is "probative of a material issue other than character." Huddleston v. United States, 485 U.S. 681, 686 (1988). If the evidence goes to an issue other than character, such as intent, motive, etc., the court then asks whether Federal Rule of Evidence 402's relevancy requirement is met and whether the probative value of the evidence is substantially outweighed by the prejudicial effect under Federal Rule of Evidence 403. See Huddleston, 485 U.S. at 686-87. ³ While we generally review the admission of Rule 404(b) evidence for abuse of discretion, the admission of such evidence that is "premised upon an erroneous interpretation of the law is an abuse of discretion." United States v. Thomas, 58 F.3d 1318, 1321 (8th Cir. 1995).

The issue we face is whether, given Hill's attempt to circumscribe his defense, the district court abused its discretion by admitting the past crime. This is an issue that has divided the circuits and has led to a good deal of confusion. See 2 J. Weinstein & M. Berger, Weinstein's Federal Evidence 404.22(1)(b) n.13 (Joseph M. McLaughlin ed., 2d ed. 2000) (listing the different circuit approaches).

In Jenkins, 7 F.3d 803, this circuit adopted the rule in United States v. Colon, 880 F.2d 650 (2d Cir. 1989), holding that a defendant who "unequivocally" claims not to have "commit[ted] the acts charged against him" has not placed intent into issue such that his past crimes can be admitted to show intent. Jenkins, 7 F.3d at 807. Although, strictly speaking, a plea of not guilty requires the Government to prove the defendant's intent to commit the crime, the rationale for this rule is that "in some circumstances, the nature of a defense put forth by the defendant may reveal that knowledge and intent, while technically at issue, are not really in dispute." Colon, 880 F.2d at 656 (quotations omitted). Past crimes evidence showing intent would be appropriate if the defendant challenges intent, such as when a defendant claims he "did the act innocently or mistakenly," but not where the defendant claims he "did not do the charged act at all." Id. at 657. ⁴

We believe, however, that subsequent Supreme Court decisions may have overruled the Jenkins line of cases. ⁵ In United States v. Crowder, 87 F.3d 1405, 1409 (D.C. Cir. 1996) (Crowder I), the D.C. Circuit, relying on the Second Circuit's approach, held that "a defendant's offer to concede knowledge and intent" eliminates the need for Rule 404(b) past crime evidence offered to prove defendant's intent. The Supreme Court granted the Government's petition for a writ of certiorari on the question of whether a defendant may foreclose Rule 404(b) evidence relevant to intent by stipulating that element of the offense. The Supreme Court reversed and remanded Crowder I for further consideration in light of Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L.Ed.2d 574 (1997). See United States v. Crowder, 519 U.S. 1087 (1997).

The defendant in Old Chief was accused of being a felon in possession of a firearm. Old Chief, 519 U.S. at 174. The defendant sought to avoid the Government's introduction of his past assault felony by stipulating to his felon status. Id. at 175. The Government refused to stipulate and the evidence of the past crime was admitted. On appeal, the Supreme Court had to determine whether the evidence of the past crime was properly admitted in the face of defendant's offer to stipulate to his status as a felon. Old Chief's holding rested on Federal Rule of Evidence 403, which authorizes trial courts to exclude evidence if its "probative value is substantially outweighed by the danger of unfair prejudice." Before discussing Rule 403, however, the Court had to deal with the defendant's argument that his offer to stipulate to the past crime made any evidence of the past crime irrelevant, and thus inadmissible under Rule 402. See Fed. R. Evid. 402 ("Evidence which is not relevant is not admissible."). The Supreme Court rejected this argument. The Court held the relevance of evidence does not depend on whether the "fact to which the evidence is directed" is in dispute. Old Chief, 519 U.S. at 179 (quotations omitted).

Despite the relevance of the evidence, the Supreme Court ruled that it was inadmissible under Rule 403. The Court explained that the district court was presented with two pieces of evidence: the defendant's offer to stipulate to his status as a felon, and the official record of defendant's conviction that the prosecution sought to introduce. The Court noted that each piece of evidence had nearly identical probative value - each was an abstract statement of defendant's status as a felon. See id. at 190. But unlike the stipulation, the official record of defendant's conviction included a substantial risk that the jury would be prejudiced by knowing the defendant was involved in a past assault. See id. at 185. Since the probative value of each piece of evidence was identical, and the prejudicial effect of the official record was much greater than the stipulation, the Supreme Court held that the record of the defendant's past conviction could not be introduced in the face of the defendant's offer to stipulate. Id. at 186, 191-92.

The majority recognized, however, that its decision was a narrow one and did not eliminate the standard rule that "a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it." Id. at 186-87. The key distinction between the facts of Old Chief and the general rule was that Old Chief involved "an abstract premise, [i.e., defendant's status as a felon,] whose force depends on going precisely to a particular step in a course of reasoning." Id. at 187. Unlike an abstract status as a felon, conventional evidence "tells a colorful story with descriptive richness . . . . [T]hus [it] has a force beyond any linear scheme of reasoning." Id.

On remand, the D.C. Circuit believed that the original holding of Crowder I was overruled by Old Chief. See United States v. Crowder, 141 F.3d 1202, 1206 (D.C. Cir. 1998) (en banc) (Crowder II). As the court explained, Rule 404(b) acts as a theory of admissibility, enunciating permissible inferences for which past crimes can be admitted, such as intent or motive. Id. Since Old Chief squarely holds that evidence does not lose its relevance under Rule 401 simply because a defendant offers to stipulate to the fact at issue, it follows that Rule 404(b) evidence does not lose its relevance toward a permissible inference simply because the defendant offers to stipulate to that inference. Id. Crowder II also held the evidence could not be excluded on Rule 403 grounds. Each of the Justices agreed in Old Chief that a...