USA. v. Bowie

Decision Date01 December 2000
Docket NumberNo. 99-3060,99-3060
Citation232 F.3d 923,344 U.S. App. D.C. 34
Parties(D.C. Cir. 2000) United States of America, Appellee v. Juan Bowie, Appellant
CourtU.S. Court of Appeals — District of Columbia Circuit

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia(97cr00247-01)

Jonathan Zucker, appointed by the court, argued the cause and filed the briefs for appellant.

Thomas S. Rees, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Alan M. Boyd, Assistant U.S. Attorneys.

Before: Williams, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

Juan Bowie appeals his conviction for possession of counterfeit currency, claiming the district court improperly admitted evidence of his possession of counterfeit currency on an earlier occasion. We find the evidence admissible, though not on all the grounds cited by the district court, and therefore affirm the conviction.

I.

On May 16, 1997, a joint Federal Bureau of Investigation/Metropolitan Police Department narcotics task force executed a search warrant at a southeast Washington, D.C. apartment. During the search, an officer outside noticed Paul Little sitting in the passenger side of a parked green Pontiac with Tennessee plates, drinking a beer and listening to loud music. Little told the officer the car belonged to "Boo" and consented to a search. He also indicated that the driver was upstairs in the apartment building and motioned toward the apartment being searched. Officers found Bowie in the apartment. He identified himself as "Boo" but denied owning the Pontiac.

The search of the Pontiac turned up a large amount of counterfeit currency and several items linking Bowie to the car. More than $3,000 of counterfeit twenty and fifty dollar bills were inside a console between the driver's and passenger's seats, laying underneath a pager activation form signed by Juan Bowie and dated May 16, 1997. In the glove compartment was a Maryland traffic ticket issued ten days earlier. The ticket named Juan Bowie and indicated he was driving a car with the same Tennessee plates. The glove compartment also contained a court document bearing Bowie's printed name and what appeared to be his signature. An additional $90 in counterfeit fifty and twenty dollar bills were inside the pocket of a black leather jacket in the trunk. The serial numbers on the counterfeit bills from the Pontiac's console and from the trunk were identical.

Secret Service agents summoned to the scene recognized the serial numbers on the bills as the subject of an ongoing investigation. They took Bowie to the Secret Service's Washington Office for questioning. Agents testified at trial that Bowie confessed to owning the money and the other items in the Pontiac and admitted that, using his brother Gary as an intermediary, he had paid somebody named Kevin $2,000 in genuine currency for $10,000 in counterfeit bills, $1,000 of which he had already spent. Despite his admission, the Secret Service found none of Bowie's fingerprints on the bills. This was not Bowie's first arrest for possession of counterfeit money. One month earlier, police in Maryland caught Bowie with counterfeit bills identical to those seized on May 16. At 11:30 a.m. on April 17, 1997, Prince George's County police responded to an automobile accident involving Bowie. He was driving a Chevrolet Celebrity owned by a third party; with him was James Toler. The police arrested Bowie on an outstanding warrant and impounded the car because Toler, the passenger, did not have a valid driver's license. An inventory of the car turned up approximately $1,300 in counterfeit currency inside the pocket of a jacket. An officer found an additional $80 in counterfeit bills on Toler, but found none on Bowie. The serial numbers on all of these bills matched those on the counterfeit bills later seized on May 16.Inside the car was a bag containing a pair of Reebok shoes and Reebok socks as well as a receipt issued at 10:52 a.m. that day from a nearby Lady Footlocker store.

Later in the day of April 17, police recovered from the Laurel City Mall Lady Footlocker a $50 counterfeit bill bearing the same serial number as the other $50 bills seized from the Chevrolet Celebrity. According to the manager of the Lady Footlocker, just before 11:00 that morning, a medium-built man wearing a black leather jacket purchased a pair of Reebok running shoes and Reebok socks with a $50 bill and a couple of twenties. The manager could not positively identify Bowie from a photo array as the man who had passed the counterfeit $50 bill. However, when Bowie and Toler were arrested with identical counterfeit bills a short distance away from the Laurel City Mall and only forty minutes after the Lady Footlocker transaction, Bowie was wearing a black leather jacket and Toler a green coat.

The indictment in this case charged Bowie with possessing counterfeit currency only on May 16, not on April 17. The prosecution sought to introduce evidence of the uncharged April 17 incident as prior acts evidence under Fed. R. Evid. 404(b). The district court admitted the evidence over Bowie's objection. As a result, a significant portion of the trial was devoted to Bowie's arrest on April 17, 1997, the discovery of counterfeit notes in the car and on the passenger that day, and the passing of a counterfeit bill at the Lady Footlocker. The jury convicted Bowie of possessing counterfeit obligations and he was sentenced to 41 months incarceration. Bowie's only argument on appeal is that admission of evidence of the April 17 incident violated Fed. R. Evid. 404(b).

II.

Federal Rule of Evidence 404(b) prohibits "evidence of other crimes, wrongs, or acts * * * to prove the character of a person in order to show action in conformity therewith." It permits such evidence for purposes unrelated to the defendant's character or propensity to commit crime, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b). When the government plans to introduce "bad acts" evidence, it must, upon request by the accused, give notice of the "general nature of any such evidence." Id. We review the district court's Rule 404(b) rulings for abuse of discretion. See United States v. Mathis, 216 F.3d 18, 25-26 (D.C. Cir. 2000); United States v. Gaviria, 116 F.3d 1498, 1532 (D.C. Cir. 1997).

The district court admitted evidence of the April 17 incident on alternative grounds. The court first found the evidence not barred by Rule 404(b) on the basis that it was "inextricably intertwined" with Bowie's possession of counterfeit bills on May 16. Because the serial numbers on the bills seized in April tallied with those seized in May, the April evidence was, the court thought, "in some sense really evidence of the same crime." The court also found that the April evidence had permissible non-propensity purposes under Rule 404(b), chiefly to establish Bowie's intent to defraud and his knowledge of the bills' in authenticity but also to corroborate his confession to the Secret Service.

A.

We begin with the district court's ruling that Rule 404(b) did not apply to the April evidence. The court relied on a line of decisions in this and the other circuits holding that Rule 404(b) does not apply to evidence that is "inextricably intertwined" with the crime charged. See, e.g., United States v. Allen, 960 F.2d 1055, 1058 (D.C. Cir. 1992). The theory is that because Rule 404(b) applies only to evidence of a defendant's "other crimes, wrongs, or acts," it creates a dichotomy between crimes or acts that constitute the charged crime and crimes or acts that do not. Professors Wright and Graham explain: "One of the key words in determining the scope of Rule 404(b) is 'other'; only crimes, wrongs, or acts 'other' than those at issue under the pleadings are made inadmissible under the general rule." See 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5239, at 445 (1978). Courts have denominated evidence of the same crime "intrinsic" and evidence of "other" crimes "extrinsic."

As a practical matter, it is hard to see what function this interpretation of Rule 404(b) performs. If the so-called "intrinsic" act is indeed part of the crime charged, evidence of it will, by definition, always satisfy Rule 404(b). The rule bars bad acts evidence only when the evidence is offered solely to "prove the character of a person in order to show action in conformity therewith." Fed. R. Evid. 404(b). Evidence that constitutes the very crime being prosecuted is not of that sort. So far as we can tell, the only consequences of labeling evidence "intrinsic" are to relieve the prosecution of Rule 404(b)'s notice requirement and the court of its obligation to give an appropriate limiting instruction upon defense counsel's request. See Fed. R. Evid. 404(b) advisory committee's note on the 1991 amendment (indicating that the notice requirement does not apply to "intrinsic" evidence); Fed. R. Evid. 105 (mandating, upon request, limiting instruction for multi-purpose evidence); United States v. Lewis, 693 F.2d 189, 197 (D.C. Cir. 1982) (requiring a court to issue a limiting instruction without prior request only if the evidence "has the potential for substantially prejudicing the defendant."); United States v. Miller, 895 F.2d 1431, 1439 (D.C. Cir. 1990).

Bifurcating the universe into intrinsic and extrinsic evidence has proven difficult in practice. Which of a defendant's acts should be considered the charged crime and which should not is often uncertain. In order to brighten the line separating intrinsic and extrinsic evidence, many courts have focused on the connection between a given crime or...

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