Evidence - admitting prior conviction for drug possession in later prosecution for drug distribution is reversible error - United States v. Lee.

• Author: Scannell, John T.

Evidence--Admitting Prior Conviction for Drug Possession in Later Prosecution for Drug Distribution is Reversible Error--United State v. Lee, 724 F.3d 968 (7th Cir. 2013)

In a criminal trial, Federal Rule of Evidence 404(b) (FRE 404(b)) prohibits the prosecution from using a defendant's other crimes, wrongs, or bad acts to prove the defendant's propensity to commit the charged offense. (1) Courts, in their discretion, may admit other bad acts to prove something other than propensity, such as knowledge, intent, or absence of mistake. (2) In United States v. Lee, (3) the United States Court of Appeals for the Seventh Circuit considered whether it was an abuse of discretion and reversible error to admit a prior drug possession conviction against a defendant in a trial for drug distribution. (4) The Seventh Circuit held that the federal district court abused its discretion by admitting a prior possession conviction because it was probative "only in the sense that it established his propensity" to commit a similar crime. (5)

In 2010, a federal grand jury indicted Eddie Lee, Darin Hurt, Anthony Clardy, and Christopher Holcomb for their roles in a drug distribution ring. (6) One of Lee's customers, a confidential informant named Roderick Pickett, led narcotics agents to Hurt, Holcomb, and Clardy; Lee himself was subsequently caught when a distribution-sized quantity of crack was found in the car he was driving. (7) The government alleged that Lee supplied Hurt with the distribution-sized amounts of crack cocaine. (8) In the fall of 2009, Pickett videotaped two controlled purchases of crack cocaine from Hurt. (9) The videos did not capture Lee discussing or handling the cocaine sale, and surveillance agents did not see Lee transact narcotics business with Hurt or Pickett. (10)

Then, on December 2, 2009, a sheriff's deputy pulled Lee over for a suspended registration on the car he was driving. (11) After Lee explained the car was not his, deputies searched it at the alert of a drug-detecting dog. (12) Despite a "fairly thorough" search, deputies did not find any drugs; nonetheless, deputies impounded the car for its suspended registration. (13) The same day, narcotics agents stopped Lee again, this time as part of the narcotics investigation. (14) After another unsuccessful search, agents let the men go with a warning, but not before Lee told the agents that deputies pulled him over earlier and impounded his car. (15) The agents searched the impounded car and found a black plastic bag in the trunk of the car filled with 210 grams of crack cocaine divided into distribution quantities. (16)

The government tried Lee twice; the first trial ended in a mistrial when the jury was unable to reach a verdict on both the conspiracy and possession charges. (17) Lee presented no witnesses, arguing that neither the car nor the cocaine was his and that he was, in effect, an innocent bystander. (18) At the second trial, the government moved under FRE 404(b) to admit Lee's prior conviction for cocaine possession. (19) The government argued that the prior conviction was probative of Lee's knowledge, intent, and absence of mistake, and that Lee had placed these matters in dispute at the first trial. (20) The district court granted the government's motion without an on-the-record evaluation of why it admitted the prior conviction against Lee. (21) The Seventh Circuit held that the district court abused its discretion by admitting the prior conviction and also held the error was not harmless, resulting in a new trial for Lee. (22)

The exclusion of a defendant's prior bad acts has a longstanding history in American law. (23) Courts and commentators justify the exclusion because they fear a jury will place too much emphasis on the defendant's past crimes or bad acts, punishing the defendant for those prior misdeeds or overestimating their probative value. (24) The tradition of excluding other bad acts, however, did not result in a complete ban on other acts evidence. (25) Courts will often admit evidence of a defendant's other bad acts so long as it serves a purpose other than proving the defendant's propensity to commit the charged offense. (26)

Before Congress enacted the Federal Rules of Evidence in 1975, federal courts varied in their approach to the rule against other bad acts evidence; some courts used an inclusionary approach, while others used an exclusionary approach. (27) FRE 404(b) seemed to settle the matter, favoring a general exclusion of other bad acts evidence unless used for a specific, nonpropensity purpose. (28) Relatively uncontroversial at the time of its passage, FRE 404(b) became one of the most cited rules of evidence on appeal. (29) Much of the controversy surrounds the problem of defining what is a nonpropensity purpose. (30) Debate continues in the federal appellate courts regarding whether it is correct to admit a prior possession conviction to prove intent to distribute. (31)

In one such appeal, the Seventh Circuit found in United States v. Miller that the district court improperly admitted a defendant's 2000 conviction for possessing cocaine with intent to distribute under FRE 404(b) in a later trial for the same offense where the defendant claimed the drugs were not his. (32) The court rejected the government's contention that the defendant somehow placed his intent at issue during trial because the defendant's argument "that the drugs were not his, has nothing to do with whether he intended to distribute them." (33) In reversing the conviction, the court stated that district courts should pay closer attention to the reasons why a prior drug conviction is offered because the "admission of prior drug crimes to prove intent to commit present drug crimes has become too routine." (34)

In United States v. Lee, the Seventh Circuit held that it is an abuse of discretion and reversible error to admit a prior possession conviction into evidence during trial for possession with intent to distribute when the defense argues complete innocence. (35) The court began its analysis by noting its four-part test for the admission of a defendant's uncharged bad act. (36) After reviewing its previous FRE 404(b) precedent in Miller, the court lamented over the trial...