United States v. Bell ( 2008 )


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  •                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 08a0075p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    Plaintiff-Appellee, -
    UNITED STATES OF AMERICA,
    -
    -
    -
    No. 06-6248
    v.
    ,
    >
    BRIAN BELL,                                                  -
    Defendant-Appellant. -
    N
    Appeal from the United States District Court
    for the Western District of Tennessee at Memphis.
    No. 04-20265—J. Daniel Breen, District Judge.
    Submitted: October 26, 2007
    Decided and Filed: February 14, 2008
    Before: KEITH and CLAY, Circuit Judges; STEEH, District Judge.*
    _________________
    COUNSEL
    ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. E. Greg Gilluly, Jr.,
    ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
    CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. STEEH, D. J.
    (pp. 12-13), delivered a separate dissenting opinion.
    _________________
    OPINION
    _________________
    CLAY, Circuit Judge. Defendant Brian Bell (“Bell”) appeals his conviction, following a jury
    trial, for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),
    possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and felon
    in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bell argues that the district court
    committed reversible error by admitting into evidence four prior state court drug convictions under
    Federal Rule of Evidence 404(b) for the purpose of proving absence of mistake or accident and
    intent. For the reasons that follow, we REVERSE the conviction and sentence imposed by the
    district court and REMAND the case to the district court for a new trial.
    *
    The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting
    by designation.
    1
    No. 06-6248                  United States v. Bell                                             Page 2
    I. BACKGROUND
    On February 23, 2004, Shelby County Sheriff’s officers responded to 9155 Berry Garden
    Circle in Cordova, Tennessee to investigate a domestic violence complaint concerning Bell and
    Amber Williams (“Amber”), a fourteen-year-old child who lived at that address. Upon arrival,
    Shelby County Deputy Sheriff Walter Blaylock found Bell in a physical altercation with Amber who
    was crying and showed signs of physical injury. Officer Blaylock then arrested Bell whom he
    proceeded to search. The search uncovered a bag of marijuana and $1,852.00 in cash.
    Having secured Bell, Officer Blaylock escorted Amber inside the residence so that she could
    call her mother, April Armstrong (“Armstrong”), who was at school. While accompanying Amber
    to the phone, Officer Blaylock observed marijuana, scales, a cutting board, baggies, and other drug
    paraphernalia on a coffee table located in the house.
    Once Armstrong arrived, Officer Blaylock obtained her consent to search the house. The
    subsequent search uncovered over eleven kilograms of marijuana, packaged in small amounts, over
    ninety grams of crack cocaine, eleven firearms, assorted ammunition, a large digital scale, bags of
    cigar “blunts,” which are commonly used to smoke marijuana, and other tools of the drug trade.
    Based on the evidence discovered during this search, Bell was subsequently charged in the
    United States District Court for the Western District of Tennessee with: (1) possession of 11,071.1
    grams of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) possession
    of 94.6 grams of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and
    (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). On August 18,
    2004, Bell was arraigned on these charges and entered a plea of not guilty. The case proceeded to
    a jury trial on April 10, 2006.
    At trial, Amber testified that she lived at 9155 Berry Garden Circle with her mother and Bell
    who stayed at the house “maybe three or four nights out of the week.” J.A. at 76. According to
    Amber, Bell kept several personal belongings at the house, including his pit bull dogs, his clothes,
    his cologne, and his backpack. Amber also testified that Bell kept his Lexus in the garage at the
    house and that he had his own room where he kept his belongings. Amber further informed the jury
    that no one else lived in the house with her and her mother during February of 2004.
    Armstrong likewise testified that in February of 2004 Bell lived with her and her daughter
    at the residence which she leased at 9155 Berry Garden Circle. Armstrong indicated that Bell
    assisted in paying the bills for the residence and that, although he was “in and out,” he “lived there
    most of the time,” sharing a bedroom with her. J.A. at 141. She also confirmed that Bell had access
    to the entire house, had his own room where he stored his belongings, and occasionally had visitors
    to the house. Armstrong further testified that the drugs and guns found in the house were not hers.
    In response to these witnesses, Deeta Johnson (“Johnson”) testified for the defense that Bell
    was her fiancé, and that he lived with her and her seven-year-old son in Memphis, Tennessee.
    Johnson testified that Bell stayed with her “[b]asically every night” and that he was only gone about
    “two nights out of the week,” in order to, as he informed Johnson, stay “[a]t his aunt’s.” J.A. at 439.
    Bell offered no other witnesses on his behalf.
    In addition to the testimony of these witnesses, the arresting officers, and police drug testing
    experts, the jury was also presented with evidence of Bell’s four prior state court drug convictions:
    (1) an October 16, 1997 conviction for possession of marijuana with intent to distribute; (2) an
    October 16, 1997 conviction for possession of cocaine base with intent to distribute; (3) a June 18,
    1999 conviction for possession of marijuana with intent to distribute; and (4) a June 18, 1999
    conviction for possession of cocaine base with intent to distribute.
    No. 06-6248                   United States v. Bell                                                Page 3
    Prior to trial, the government had filed a motion in limine, seeking the admission of these
    prior convictions, under Federal Rule of Evidence 404(b), for the purpose of demonstrating
    knowledge, intent, and absence of mistake or accident. Bell had opposed the motion and the district
    court deferred ruling on the motion until later in the trial.
    While the issue came up at various points in the trial, the district judge did not directly return
    to the government’s Rule 404(b) motion in limine until the close of Bell’s case. At that time, the
    government renewed its request to introduce the evidence of Bell’s prior drug convictions to show
    knowledge, intent, and absence of mistake. Bell objected to the admission of such evidence on the
    basis of its highly prejudicial nature. The district judge then proceeded to engage in the three step
    inquiry required for the admission of 404(b) evidence. The district judge determined that the
    certified records of the convictions were sufficient evidence to demonstrate that these other acts had
    occurred. The district judge also examined the government’s purported purposes for introducing
    the evidence:
    The second issue deals not only with whether or not [the convictions] can be
    proved, but whether they – whether the government has articulated an appropriate
    basis under 4004(b) [sic] for the admission of such type – such evidence, in other
    words, whether or not they have submitted sufficient argument and proof to the court
    and based upon the court's review of the record as to whether or not one or more of
    the permitted admissibility bases is present. . . . I think it’s cited in [United States
    v. Ismail, 
    756 F.2d 1253
    (6th Cir. 1985)] and [United States v. Lattner, 
    385 F.3d 947
            (6th Cir. 2004)] that, when the defendant in such a charge enters a plea of not guilty,
    basically he is putting every element, including the intent aspect, to the government's
    proof. And, as well, the court believes that the defendant's position in this case has
    been that he was not aware, he was – he did not know these drugs were there or they
    were planted by someone else, put in there by somebody else, you know, that this
    was simply he just happened to be – he was an innocent person in terms of their
    being present or it was a mistake or an accident or just happened to be there.
    I think under the circumstances of what I've heard from the proof, is that the
    government's submission of this evidence would go towards the issue of intent and
    absence of mistake or accident.
    J.A. at 482-83. Finally, the district judge weighed the probative value of the evidence against its
    prejudicial impact and found that, with a limiting instruction to the jury, the latter would not
    substantially outweigh the former, and, accordingly, permitted the introduction of the evidence.
    When introducing the certified judgments of Bell’s prior convictions, the district court
    cautioned the jury:
    Ladies and gentlemen, the court has permitted the introduction of testimony
    – or evidence, rather, here regarding the defendant, Mr. Bell, about committing – the
    commission of other crimes other than the ones that are charged in the indictment.
    Now if you find that the defendant committed these acts, these crimes, you
    can consider the evidence only as it relates to the government’s claim on the
    defendant’s intent or absence of mistake or absence of accident. You may not
    consider it for any other purpose. And I’ll give this instruction to you again when
    I give you the final instruction. But remember and keep this in mind, that the
    defendant is on trial here only for the offenses that he is charged with in this
    indictment, which again I will read to you. So the burden still remains on the
    government to prove its case beyond a reasonable doubt and, again, the defendant is
    not on trial for any previous act, but only for those that are charged here in this
    indictment.
    No. 06-6248                  United States v. Bell                                               Page 4
    J.A. at 491. After the closing arguments and before dismissing the jury for deliberations, the district
    court repeated a similar instruction:
    Now, you heard testimony that the defendant committed crimes other than
    the ones charged in the indictment. If you find that the defendant did these crimes,
    you can consider the evidence only as it relates to the government’s claim on the
    defendant’s intent, absence of mistake, or absence of accident. You must not
    consider it for any other purpose. Now, remember that the defendant is on trial here
    for only those charges in the indictment and not for the other acts. Do not return a
    guilty verdict unless the government proves the crime charged in the indictment
    beyond a reasonable doubt.
    J.A. at 560.
    On April 13, 2006, the jury found Bell guilty of all three charges. On September 18, 2006,
    the district judge sentenced Bell to sixty months imprisonment on count 1, life imprisonment on
    count 2, and one-hundred-twenty months imprisonment on count 3. The district judge ordered that
    the sentences should run concurrently and be followed by 10 years of supervised release.
    On September 22, 2006, Bell filed his timely notice of appeal.
    II. DISCUSSION
    On appeal, Bell challenges the district court’s admission of the evidence of his prior drug
    convictions under Rule 404(b). We find this Rule 404(b) claim to have merit and hold that the
    district court erred by permitting the government to introduce evidence of Bell’s prior drug
    convictions. Because we also find that the admission of this evidence violated Bell’s right to receive
    a fair trial, we reverse Bell’s conviction and remand the case for a new trial.
    A.     Standard of Review
    We generally review the district court’s admission or exclusion of evidence for abuse of
    discretion. United States v. Ganier, 
    468 F.3d 920
    , 925 (6th Cir. 2006). However, in the specific
    context of Rule 404(b):
    [W]e employ a three-part test, reviewing (1) for clear error the district court’s
    determination that the ‘other act’ took place; (2) de novo the district court’s legal
    determination that the evidence was admissible for a proper purpose; and (3) for
    abuse of discretion the district court’s determination that the probative value of the
    other acts evidence is not substantially outweighed by its unfairly prejudicial effect.
    United States v. Ayoub, 
    498 F.3d 532
    , 547 (6th Cir. 2007). Accord United States v. Rayborn, 
    495 F.3d 328
    , 342 (6th Cir. 2007); United States v. Murphy, 
    241 F.3d 447
    , 450 (6th Cir. 2001); United
    States v. Merriweather, 
    78 F.3d 1070
    , 1074 (6th Cir. 1996). But see United States v. Haywood, 
    280 F.3d 715
    , 720 (6th Cir. 2002) (refusing to apply de novo review to the district court’s determination
    that the contested evidence was admissible for a proper purpose, and applying abuse of discretion
    standard instead). “These standards are not in fact inconsistent, because it is abuse of discretion to
    make errors of law or clear errors of factual determination.” 
    Ganier, 468 F.3d at 925
    (citation and
    internal quotation marks omitted).
    Under the abuse of discretion standard, “we will leave rulings about admissibility
    undisturbed unless we are left with the definite and firm conviction that the district court committed
    a clear error in judgment.” United States v. Dixon, 
    413 F.3d 540
    , 544 (6th Cir. 2005). “Broad
    discretion is given to district courts in determinations of admissibility based on considerations of
    No. 06-6248                  United States v. Bell                                              Page 5
    relevance and prejudice, and those decisions will not be lightly overturned.” United States v.
    Chambers, 
    441 F.3d 438
    , 455 (6th Cir. 2006). “A new trial is not required unless the error affects
    substantial rights.” 
    Id. (citing Fed.
    R. Crim. P. 52).
    B.     Rule 404(b) Analysis
    Federal Rule of Evidence 404(b) states, in relevant part:
    Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
    a person in order to show action in conformity therewith. It may, however, be
    admissible for other purposes, such as proof of motive, opportunity, intent,
    preparation, plan, knowledge, identity, or absence of mistake or accident.
    Fed. R. Evid. 404(b) (emphasis added). Admission of evidence under Rule 404(b) is also subject
    to the requirements of Rule 403 which provides that “[a]lthough relevant, evidence may be excluded
    if its probative value is substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid.
    403.
    Interpreting the requirements of these rules, we have outlined a three-step process for the
    admission of Rule 404(b) evidence:
    First, the district court must make a preliminary determination regarding whether
    there is sufficient evidence that the “other acts” took place. The district court must
    then determine whether those “other acts” are admissible for a proper purpose under
    Rule 404(b). Finally, the district court must determine whether the “other acts”
    evidence is more prejudicial than probative.
    United States v. Lattner, 
    385 F.3d 947
    , 955 (6th Cir. 2004). Accord United States v. Abboud, 
    438 F.3d 554
    , 581 (6th Cir. 2006); United States v. Jenkins, 
    345 F.3d 928
    , 937 (6th Cir. 2003). Once
    the district court decides that the evidence is admissible under Rule 404(b), then it “must carefully
    identify in its instructions to the jury, the specific factor named in the rule that is relied upon to
    justify admission of the other acts evidence, explain why that factor is material, and warn the jurors
    against using the evidence to draw the inferences expressly forbidden [by] Rule 404(b).” United
    States v. Johnson, 
    27 F.3d 1186
    , 1194 (6th Cir. 1994). Accord 
    Abboud, 438 F.3d at 581
    .
    Applying these factors to this case reveals that the district court erred in admitting the
    evidence of Bell’s prior drug convictions for the purpose of demonstrating absence of mistake or
    accident and intent, and abused its discretion in finding that the probative value of this evidence on
    the issue of intent was not substantially outweighed by its prejudicial impact. Because this error was
    not harmless, Bell is entitled to a new trial.
    1.      Sufficient Evidence That Other Acts Occurred
    The first step that the district court must engage in under the Rule 404(b) analysis is to
    determine whether there is sufficient evidence to show that the defendant committed the other acts.
    The Supreme Court has held that the government is not required to demonstrate that the other acts
    occurred by a preponderance of the evidence. Huddleston v. United States, 
    485 U.S. 681
    , 689
    (1988). However, the government cannot introduce evidence of potentially prejudicial similar acts
    without any substantiation. “In the Rule 404(b) context, similar act evidence is relevant only if the
    jury can reasonably conclude that the act occurred and that the defendant was the actor.” 
    Id. In the
    instant case, the evidence of Bell’s prior drug convictions included certified copies of
    the conviction records. At trial, Bell did not contest that these records were accurate or claim he did
    not commit the prior crimes. On appeal, Bell has likewise refrained from arguing that the evidence
    No. 06-6248                  United States v. Bell                                              Page 6
    presented was insufficient to show he committed the prior drug offenses. Accordingly, the district
    court’s conclusion that there was sufficient evidence to show that Bell had committed the prior drug
    offenses was not clearly erroneous.
    2.      Admissible For Legitimate Purpose
    The second step of the district court’s Rule 404(b) analysis is to determine whether the other
    acts evidence is admissible for a legitimate purpose. “To determine whether the proffered evidence
    is admissible for a proper purpose, the trial court must decide ‘whether that evidence is probative
    of a material issue other than character.’” United States v. Carney, 
    387 F.3d 436
    , 451 (6th Cir.
    2004) (quoting 
    Huddleston, 485 U.S. at 686
    )). This requires a three part inquiry. “Evidence of other
    acts is probative of a material issue other than character if (1) the evidence is offered for an
    admissible purpose, (2) the purpose for which the evidence is offered is material or ‘in issue,’ and
    (3) the evidence is probative with regard to the purpose for which it is offered.” 
    Rayborn, 495 F.3d at 342
    (quoting 
    Jenkins, 345 F.3d at 937
    ).
    The district court found and instructed the jury that the evidence of Bell’s prior convictions
    was admissible to show both absence of mistake or accident, and intent. We find this instruction to
    be erroneous.
    Absence of mistake or accident is one of the permissible purposes listed in Rule 404(b).
    However, “the government’s purpose in introducing the evidence must be to prove a fact that the
    defendant has placed, or conceivably will place, in issue, or a fact that the statutory elements
    obligate the government to prove.” 
    Merriweather, 78 F.3d at 1076
    . Thus, for other acts evidence
    to be admissible for the purpose of showing absence of mistake or accident, the defendant must
    assert a defense based on some type of mistake or accident. See United States v. Newsom, 
    452 F.3d 593
    , 606 (6th Cir. 2006) (finding absence of mistake not to be a permissible purpose, in a felon in
    possession case, when the defendant’s only defense was that the gun was not his and that he did not
    know that it was under his seat); United States v. Ward, 
    190 F.3d 483
    , 489 (6th Cir. 1999) (rejecting
    absence of mistake as a permissible purpose for the admission of evidence when the defendant’s
    “defense was not that she mistakenly thought she was selling powdered sugar instead of cocaine”);
    
    Merriweather, 78 F.3d at 1077
    (noting that “absence of mistake ‘on behalf of the government’ is not
    a legitimate basis to admit other acts evidence”).
    The district court erred in concluding that the evidence of Bell’s prior convictions was
    admissible for the purpose of demonstrating absence of mistake or accident. This case did not
    present an issue of mistake or accident. Bell’s argument was not that he was mistaken about the
    narcotic nature of the substances seized by the police, but rather that he never possessed the
    marijuana and crack cocaine. The district court recognized that there was “no indication from
    [Bell’s] arguments or anything that has been put on that would indicate that Mr. Bell knew
    something was there, but didn’t know it was drugs.” J.A. at 472. On the contrary, the district court
    believed Bell’s position to be that “he did not know these drugs were there or they were planted by
    someone else, put in there by somebody else, [that] he was an innocent person in terms of their being
    present or it was a mistake or accident or just happened to be there.” J.A. at 483. In other words,
    Bell was claiming that it was a mistake for the police to think that the drugs were his, not that he was
    mistaken about the fact that the substances found were drugs. As Bell “never claimed that he was
    unknowingly dealing in cocaine or was unwittingly engaging in unlawful activity,” the evidence of
    his prior drug convictions could not be properly admitted for the purpose of absence of mistake or
    accident. 
    Merriweather, 78 F.3d at 1077
    .
    Proving intent, however, was a potentially legitimate reason for the government to offer
    evidence of Bell’s prior convictions. Rule 404(b) specifically lists demonstrating a defendant’s
    intent as a permissible purpose. Moreover, Bell’s intent to possess and distribute was at issue
    No. 06-6248                   United States v. Bell                                              Page 7
    because it is an element that the government must prove to establish possession with intent to
    distribute. See 21 U.S.C. § 841(a)(1) (“[I]t shall be unlawful for any person knowingly or
    intentionally to . . . possess with intent to . . . distribute . . . a controlled substance”) (emphasis
    added); United States v. Coffee, 
    434 F.3d 887
    , 897 (6th Cir. 2006) (“The elements of a charge of
    possession with intent to distribute illegal drugs are: (1) the defendant knowingly, (2) possessed a
    controlled substance, (3) with intent to distribute.”). By “plead[ing] not guilty to the offense of
    possession with intent to distribute, [Bell] put his general intent and specific intent at issue, thereby
    giving the government the burden to establish both beyond a reasonable doubt.” 
    Lattner, 385 F.3d at 957
    . “[W]here the crime charged is one requiring specific intent, the prosecutor may use 404(b)
    evidence to prove that the defendant acted with specific intent notwithstanding that the defense was
    lack of possession, not lack of intent to distribute.” United States v. Bilderbeck, 
    163 F.3d 971
    , 977
    (6th Cir. 1999). See also 
    Lattner, 385 F.3d at 957
    (“[W]hen a defendant is charged with a specific
    intent crime, such as possession with intent to distribute, 404(b) evidence is admissible to prove
    intent, subject to the probative/prejudicial balancing”); 
    Johnson, 27 F.3d at 1192
    . Accordingly, the
    district court properly found that the evidence was being offered for the admissible purpose of intent
    and that this purpose was at issue in the case.
    However, whether the evidence of Bell’s prior drug convictions was probative on the issue
    of intent is a closer question. “To determine if evidence of other acts is probative of intent, we look
    to whether the evidence relates to conduct that is ‘substantially similar and reasonably near in time’
    to the specific intent offense at issue.” 
    Haywood, 280 F.3d at 721
    (quoting 
    Blankenship, 775 F.2d at 739
    ). But see United States v. Ismail, 
    756 F.2d 1253
    , 1260 (6th Cir. 1985) (“There is no absolute
    maximum number of years that may separate a prior act and the offense charged.”). Thus, we have
    drawn a distinction between the probative value of prior acts of personal drug use and prior acts of
    drug distribution, finding the former not to be probative of intent to possess and distribute. See
    
    Jenkins, 345 F.3d at 937
    -38 (“Jenkins’ admission that she is a crack cocaine user does not ipso facto
    lead to the conclusion that she was involved in the distribution of crack cocaine.”); 
    Haywood, 280 F.3d at 721
    -22 (“Acts related to the personal use of a controlled substance are of a wholly different
    order than acts involving the distribution of a controlled substance. One activity involves the
    personal abuse of narcotics, the other the implementation of a commercial activity for profit.”)
    (quoting United States v. Ono, 
    918 F.2d 1462
    , 1465 (9th Cir. 1990)).
    Likewise, while we “have repeatedly recognized that prior drug distribution evidence is
    admissible to show intent to distribute,” 
    Ayoub, 498 F.3d at 548
    (citing 
    Jenkins, 345 F.3d at 938
    (collecting cases)), our cases have only found such evidence probative of present intent to possess
    and distribute when the prior distributions were part of the same scheme or involved a similar modus
    operandi as the present offense. See, e.g., United States v. Robinson, 
    904 F.2d 365
    , 368 (6th Cir.
    1990) (admitting testimony about the defendant’s statements to co-conspirator regarding his intent
    to distribute in prior drug transactions to show present intent to distribute in transaction with same
    co-conspirator); United States v. Rodriguez, 
    882 F.2d 1059
    , 1064-65 (6th Cir. 1989) (admitting
    evidence of prior drug transactions with same accomplice as in present case for the purpose of
    showing intent, plan, and knowledge). Unless the past and present crime are related by being part
    of the same scheme of drug distribution or by having the same modus operandi, the fact that a
    defendant has intended to possess and distribute drugs in the past does not logically compel the
    conclusion that he presently intends to possess and distribute drugs. See United States v. Bakke, 
    942 F.2d 977
    , 983 (6th Cir. 1991) (holding that evidence of the defendant’s arrest in a “totally unrelated
    drug transaction” six months after the charged drug conspiracy only showed that the defendant was
    a drug dealer at the time of the later transaction and did not prove that the defendant was a member
    of the drug conspiracy). Indeed, a person may be a distributor of drugs on one occasion, and a mere
    user on another. The only way to reach the conclusion that the person currently has the intent to
    possess and distribute based solely on evidence of unrelated prior convictions for drug distribution
    is by employing the very kind of reasoning – i.e., once a drug dealer, always a drug dealer – which
    404(b) excludes. See Old Chief v. United States, 
    519 U.S. 172
    , 180-81 (1997). Thus, to be
    No. 06-6248                  United States v. Bell                                               Page 8
    probative of a defendant’s present intent to possess and distribute, his prior convictions for drug
    distribution must be related in some way to the present crime for which the defendant is on trial.
    Here, Bell’s prior convictions were for unlawful possession of cocaine and marijuana with
    intent to distribute, the same type of charges at issue in this case. However, the convictions were
    for offenses that occurred several years previously and were not alleged to be part of the same
    scheme to distribute drugs or to involve a similar modus operandi. Such evidence of prior
    distribution, unconnected to the present charge, is not probative of whether Bell intended to possess
    and distribute drugs in the instant case. Accordingly, the district court erred in finding evidence of
    these prior convictions admissible for the legitimate purpose of proving Bell’s intent.
    3.      Prejudicial/Probative Balancing
    As the district court erred in finding that evidence of Bell’s prior drug convictions was
    admissible for the purpose of demonstrating intent and absence of mistake, our Rule 404(b) analysis
    need proceed no further. However, in order to assuage any doubts about the error committed by the
    district court in its Rule 404(b) ruling, we address the further mistake committed by the district court
    in the final step of its Rule 404(b) analysis.
    This final part of the Rule 404(b) analysis requires the district court to determine whether
    the prejudicial impact of the proffered evidence substantially outweighs its probative value. In
    Johnson, we explained the rationale for this balancing requirement:
    When jurors hear that a defendant has on earlier occasions committed essentially the
    same crime as that for which he is on trial, the information unquestionably has a
    powerful and prejudicial impact. That, of course, is why the prosecution uses such
    evidence whenever it can. When prior acts evidence is introduced, regardless of the
    stated purpose, the likelihood is very great that the jurors will use the evidence
    precisely for the purpose it may not be considered; to suggest that the defendant is
    a bad person, a convicted criminal, and that if he “did it before he probably did it
    again.” That is why the trial court’s duty is to apply Rule 404(b) correctly and,
    before admitting such evidence, to decide carefully whether it will be more
    substantially prejudicial than 
    probative. 27 F.3d at 1193
    . The Supreme Court has further clarified that “[t]he term ‘unfair prejudice,’ as to
    a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the
    factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old
    
    Chief, 519 U.S. at 180
    . Such improper grounds include “generalizing a defendant’s earlier bad act
    into bad character and taking that as raising the odds that he did the latter bad act now charged (or,
    worse, as calling for preventive conviction even if he should happen to be innocent momentarily).”
    
    Id. at 180-81.
    “A limiting instruction will minimize to some degree the prejudicial nature of other
    criminal acts; it is not, however, a sure-fire panacea for the prejudice resulting from needless
    admission of such evidence.” 
    Haywood, 280 F.3d at 724
    .
    With regard to the probative value of the evidence, the Supreme Court has suggested that the
    district court should consider “the full evidentiary context of the case as the court understands it
    when the ruling must be made.” Old 
    Chief, 519 U.S. at 182
    . The Fifth Circuit has explained:
    Probity in this context is not an absolute; its value must be determined with regard
    to the extent to which the defendant’s unlawful intent is established by other
    evidence, stipulation, or inference. . . . Thus, if the Government has a strong case on
    the intent issue, the extrinsic evidence may add little and consequently will be
    excluded more readily. . . . In measuring the probative value of the evidence, the
    No. 06-6248                   United States v. Bell                                               Page 9
    judge should consider the overall similarity of the extrinsic and charged offenses.
    If they are dissimilar except for the common element of intent, the extrinsic offense
    may have little probative value to counterbalance the inherent prejudice of this type
    of evidence.
    United States v. Beechum, 
    582 F.2d 898
    , 914-15 (5th Cir. 1978). We have similarly found that the
    district court should consider the government’s alternative sources of proving intent when weighing
    the probative value of other acts evidence. See 
    Haywood, 280 F.3d at 723
    ; 
    Merriweather, 78 F.3d at 1078-79
    (“One factor in balancing unfair prejudice against probative value under Rule 403 is the
    availability of other means of proof.”).
    Because of the highly discretionary nature of this balancing process, the district court’s
    decision is afforded great deference. 
    Chambers, 441 F.3d at 455
    . Accord United States v. Layne,
    
    192 F.3d 556
    , 573 (6th Cir. 1999) (“[T]he district court enjoys broad discretion in balancing
    probative value against prejudicial impact.”). In reviewing the district court’s balancing of
    prejudice and probative value, “we look at the evidence in the light most favorable to its proponent,
    maximizing its probative value and minimizing its prejudicial effect.” 
    Chambers, 441 F.3d at 455
    (quoting United States v. Bonds, 
    12 F.3d 540
    , 567 (6th Cir. 1993)). Accord United States v.
    Maliszewski, 
    161 F.3d 992
    , 1010 (6th Cir. 1998).
    Despite the substantial deference that must be afforded a lower court’s Rule 403 balancing
    decision, we find that the district court abused its discretion in the instant case. We have already
    noted that the evidence of Bell’s prior convictions was not probative of his present intent to possess
    and distribute, the only plausibly legitimate purpose for offering this evidence. However, even
    assuming that this evidence would have some probative value on the issue of intent, its value would
    be slight. Bell’s prior distribution of drugs several years prior to the instant offense does not
    necessarily imply that he was intending to possess and distribute drugs on this occasion. The only
    way that such evidence would be probative is if the jury were permitted to infer that because Bell
    has distributed drugs in the past, it is likely that he was doing so in the present case. Yet, this is the
    very kind of propensity reasoning which Rule 404(b) prohibits the jury from using in assessing the
    probative value of Bell’s prior convictions and prevents the judge from considering when engaging
    in the Rule 403 balancing process. See Old 
    Chief, 519 U.S. at 182
    .
    Moreover, the government had little, if any, need for such evidence to establish Bell’s intent.
    “The government had a number of means available to it to prove [Bell’s] specific intent to distribute
    and possess cocaine, without showing that he was involved in” previous drug crimes. 
    Merriweather, 78 F.3d at 1078
    . The testimony at trial established that the police recovered over twenty pounds of
    marijuana, packaged in small amounts, which is consistent with distribution, and over ninety grams
    of crack cocaine. These quantities alone were sufficient to demonstrate intent to distribute. See
    United States v. Faymore, 
    736 F.2d 328
    , 333 (6th Cir. 1984) (finding that intent to distribute may
    be inferred from large quantities of drugs). The police also found drug scales, a cutting board,
    baggies, cigar “blunts,” and other drug paraphernalia which strongly suggest an intent to distribute.
    The government attorney appears to have recognized the powerful weight of this other evidence in
    its closing argument when he stated:
    I would submit with regard to the drugs [sic] intent to distribute. Your common
    sense. You heard the testimony. I submit it’s undisputed. It is undisputed that that
    amount of crack cocaine, that amount of marijuana is indicative of an intent to
    distribute. You combine the scales, you combine the packaging materials, you
    combine the cutting board, all of that demonstrates an intent to distribute. I submit
    its not even a contested issue.
    No. 06-6248                    United States v. Bell                                               Page 10
    J.A. at 515. Tellingly, the government attorney did not even mention the evidence of Bell’s prior
    convictions when explaining why the jury should find that he had the requisite intent to distribute.
    Indeed, the strength of this other evidence of intent was so overwhelming that the evidence of Bell’s
    prior convictions could only have been marginally probative at best.
    In contrast to the weak probative value of the evidence of Bell’s prior convictions, its
    prejudicial impact was significant. Evidence of a defendant’s prior crimes “unquestionably has a
    powerful and prejudicial impact.” 
    Johnson, 27 F.3d at 1193
    . Here, the evidence of Bell’s prior
    crimes painted a picture of Bell as a repeat drug offender, greatly increasing the chance that the jury
    would punish him not for his involvement in the offense at issue, but rather because he appeared to
    be a “bad” guy. By “branding [Bell] as a criminal possessing crack cocaine, the evidence had ‘the
    natural tendency to elicit the jury’s opprobrium for [Bell].” 
    Jenkins, 345 F.3d at 939
    (quoting
    United States v. Spikes, 
    158 F.3d 913
    , 929 (6th Cir. 1998)). Given the prejudicial nature of this
    evidence, “the likelihood [was] very great that the jurors [would] use the evidence precisely for the
    purpose [for which] it may not be considered; to suggest that the defendant [was] a bad person, a
    convicted criminal, and that if ‘he did it before, he probably did it again.’” 
    Johnson, 27 F.3d at 1193
    .
    The district court’s limiting instructions to the jury did little to abate this prejudicial impact.
    These instructions did remind the jury that Bell was on trial only for the charged offenses and not
    for his prior bad acts. However, by directing the jury to consider these acts for the purpose of
    ascertaining Bell’s intent, the court was implicitly approving the kind of reasoning which would
    suggest that because Bell was a drug distributor in the past, the jury should consider him to have
    distributed drugs in the present case. Moreover, the court’s instruction created the possibility for
    an even greater prejudicial impact by directing the jury to consider the evidence of Bell’s prior
    convictions for the purpose of absence of mistake, a matter which was not even at issue in the case.
    Such confusion of the purpose of this other acts evidence was likely to create more rather than less
    prejudice. See 
    Merriweather, 78 F.3d at 1079
    (finding that jury instructions which “left the jury free
    to consider” the other acts evidence for several impermissible purposes “permitted the jury to draw
    the very inference forbidden by Rule 404(b)”). Thus, even if we were to find that the evidence of
    Bell’s prior drug convictions was properly admissible to demonstrate his intent to distribute, we are
    left with the definite and firm conviction that the district court committed a clear error in judgment
    when it found that the highly prejudicial impact of this evidence did not substantially outweigh the
    slight, if any, probative value it may have provided.
    As the district court (1) erred in finding that the evidence of Bell’s prior bad acts was
    admissible for the purposes of proving intent and demonstrating absence of mistake or accident, and
    (2) abused its discretion in finding that the limited probative value of this evidence was not
    substantially outweighed by its highly prejudicial impact, we conclude that the district court’s
    admission of this evidence under Rule 404(b) was erroneous.
    C.      Harmless Error Inquiry
    Even though the district court’s admission of the evidence of Bell’s prior drug convictions
    was erroneous, Bell is not entitled to a new trial if this error was harmless. As we have previously
    stated, “[a]n error in the admission of evidence does not require granting a criminal defendant a new
    trial unless the error affects ‘substantial rights.’” United States v. DeSantis, 
    134 F.3d 760
    , 769 (6th
    Cir. 1998) (quoting Fed. R. Crim. Proc. 52(a)). Accord 
    Murphy, 241 F.3d at 453
    . In short, we must
    “consider the impact of the error upon the right of the defendant to a fair trial.” 
    Layne, 192 F.3d at 573
    . “We must take account of what the error meant to [the jury], not singled out and standing
    alone, but in relation to all that happened.” 
    Murphy, 241 F.3d at 453
    (quoting United States v.
    Cowart, 
    90 F.3d 154
    , 158 (6th Cir. 1996)). Our concern is not “with whether there was sufficient
    evidence on which [the defendant] could have been convicted without the evidence complained of,”
    No. 06-6248                  United States v. Bell                                             Page 11
    but rather the “question is whether there is a reasonable possibility that the evidence complained of
    might have contributed to the conviction.” 
    DeSantis, 134 F.3d at 769
    (quoting Fahy v. Connecticut,
    
    375 U.S. 85
    , 86 (1963); O’Guinn v. Dutton, 
    88 F.3d 1409
    , 1461 (6th Cir. 1996)). “We will presume
    that the district court’s error was reversible unless we can say, ‘with fair assurance, after pondering
    all that happened without stripping the erroneous action from the whole, that the judgment was not
    substantially swayed by error.’” 
    Haywood, 280 F.3d at 724
    (quoting Kotteakos v. United States, 
    328 U.S. 750
    , 765 (1946)). “Whether the jury was ‘substantially swayed’ by the improper admission of
    evidence of other acts in a criminal trial generally depends on whether the properly admissible
    evidence of the defendant’s guilt was overwhelming.” 
    Id. “When the
    government presents other
    convincing evidence, we may deem the admission of 404(b) evidence mere harmless error.” 
    Layne, 192 F.3d at 573
    . The “giving of a curative instruction by the trial court [also] occasionally renders
    harmless the erroneous admission of prejudicial evidence.” 
    Id. In the
    instant case, there is a reasonable probability that the wrongly admitted evidence of
    Bell’s prior drug convictions contributed to his conviction in this case. As already indicated, this
    evidence was highly prejudicial and suggested to the jury that Bell was an habitual drug dealer who
    should be kept off the streets. The evidence of these prior drug convictions painted a picture of Bell
    as a career drug dealer, making it substantially more likely that the jury would convict him, not on
    the evidence presented, but rather because of a belief that if Bell dealt drugs in the past, he probably
    possessed and intended to distribute the drugs in the present case. Rather than limiting the odds that
    the jury would employ this propensity reasoning during its deliberations, the district court’s flawed
    instruction, which wrongly permitted the jury to consider the evidence of Bell’s prior drug
    convictions for the purposes of intent or absence of mistake, in all likelihood probably increased
    them.
    The weak evidence of possession presented in the case further increased the likelihood that
    such impermissible reasoning would motivate the jury to convict Bell. While the immense quantity
    of drugs found at 9155 Berry Garden Circle (over 11,000 grams of marijuana and 94.6 grams of
    crack cocaine) as well as the packaging and distribution paraphernalia present in the home provided
    overwhelming evidence of someone’s intent to distribute the drugs, the government’s evidence to
    connect Bell to those drugs, and thus demonstrate that Bell was the person who intended to
    distribute them, was only circumstantial. The government offered no witnesses who could directly
    link Bell to the drugs found at 9155 Berry Garden Circle. Amber and Armstrong did testify at trial
    that Bell spent a few nights of each week at 9155 Berry Garden Circle and stored his possessions
    there. However, they could not confirm that the drugs found at the apartment belonged to Bell.
    Moreover, their testimony was refuted by Johnson who reported that Bell stayed at her place almost
    every night. While a reasonable jury could find that Bell possessed the drugs based upon this
    evidence, it would not be compelled to do so. Rather, given this circumstantial and disputed
    evidence, it is reasonably probable that the tipping factor for the jury was the evidence of Bell’s
    prior drug convictions.
    As the record in this case does not provide us with the fair assurance that the jury’s verdict
    was not substantially swayed by the evidence of Bell’s prior convictions, we cannot find that the
    admission of this evidence was harmless. Accordingly, we conclude that Bell is entitled to a new
    trial.
    III. CONCLUSION
    For the foregoing reasons, the conviction and sentence imposed by the district court are
    REVERSED and the case is REMANDED to the district court with instructions to provide Bell
    with a new trial.
    No. 06-6248                  United States v. Bell                                             Page 12
    ______________
    DISSENT
    ______________
    GEORGE C. STEEH, District Judge, dissenting. I respectfully dissent. In the context of
    determining the admissibility of proposed Rule 404(b) evidence, the majority opinion correctly
    concludes that Bell's general intent to possess the illegal drugs and firearms, and his specific intent
    to distribute drugs, were both placed at issue by his not guilty pleas. Majority Op. at 11-12.
    [T]he prosecution’s burden to prove every element of the crime is not relieved by a
    defendant’s tactical decision not to contest an essential element of the offense. In the
    federal courts, “[a] simple plea of not guilty . . . puts the prosecution to its proof as
    to all elements of the crime charged.”
    Estelle v. McGuire, 
    502 U.S. 62
    , 69-70 (1991) (quoting Mathews v. United States, 
    485 U.S. 58
    , 64-
    65 (1988)). Bell’s not guilty pleas put the government to its proofs that Bell knowingly or
    intentionally possessed the 11 kilograms of marijuana and 94.6 grams of crack cocaine found inside
    the residence, and that Bell specifically intended to distribute these drugs. 21 U.S.C. § 841(a)(1);
    United States v. Coffee, 
    434 F.3d 887
    , 897 (6th Cir. 2006).
    The majority analysis discusses reasons for refusing admission of Bell’s prior drug
    convictions to prove the absence of mistake or accident, or to prove specific intent to distribute the
    drugs, yet generally overlooks the government's burden of proving Bell knowingly or intentionally
    possessed the drugs and guns. The district court properly focused its attention on the general intent
    required to prove the § 841(a)(1) crime of knowingly or intentionally exercising dominion and
    control over illegal drugs, in response to Bell's defense that “he did not know these drugs were there
    or they were planted by someone else[.]” J.A. 482-83. The district court's inclusion of “absence of
    mistake” and “absence of accident,” along with “intent,” as purposes for admitting Bell’s prior drug
    convictions, recognized the government’s burden of proving that Bell did not mistakenly or
    accidently possess the drugs by simply living at the home where the drugs were found.
    The district court also properly relied on United States v. Lattner, 
    385 F.3d 947
    (6th Cir.
    2004) in deciding to admit Bell’s prior drug convictions under Rule 404(b). As reasoned in Lattner,
    “it seems logical that when [the defendant] pled not guilty to the offense of possession with intent
    to distribute, he put his general intent and specific intent at issue, thereby giving the government the
    burden to establish both beyond a reasonable doubt.” 
    Id. at 957.
    Citing United States v. Ismail, 
    756 F.2d 1253
    (6th Cir. 1985), a case also relied on by the district court, the Lattner court recognized
    that “claims of innocent presence or association . . . routinely open the door to 404(b) evidence of
    other drug acts.” 
    Lattner, 385 F.3d at 957
    (emphasis added).
    Logically, Bell’s prior convictions represent compelling probative evidence of his general
    intent to possess the marijuana and crack cocaine. Bell’s history includes knowing and intentional
    acts in relation to illegal drugs, making it much less plausible that Bell lacked knowledge on this
    occasion of the presence of over 11 kilograms of marijuana, 94.6 grams of crack cocaine, eleven
    firearms, drug packaging materials, and tools of the drug trade inside the home. Bell’s prior acts of
    drug distribution diminish the likelihood that he innocently overlooked the illegal contraband within
    the residence, and also diminish the chances that these items were planted or left at the residence by
    someone else.
    In short, the Rule 404(b) evidence of Bell’s four prior drug convictions is powerfully
    probative of Bell’s general and specific intent. While the prior acts evidence greatly undermines
    Bell’s opening statement to the jury that “he had no knowledge whatsoever about the contents that
    No. 06-6248                  United States v. Bell                                             Page 13
    were in that house,” J.A. 72 (emphasis added), the prior acts evidence was not unfairly prejudicial.
    Bell’s closing argument criticizes the absence of any evidence of actual possession or direct
    evidence of his constructive possession of the contraband. J.A. 521-526. Just as the $1,800.00 cash
    in Bell’s pocket at the time of arrest constitutes important circumstantial evidence of his constructive
    possession, so does the prior acts evidence admitted by the court. The record below includes an
    accurate analysis of the Rule 403 balancing that preceded the decision to admit this evidence. The
    district judge’s admission of Bell’s prior convictions cannot be said to be an abuse of discretion, and
    if we truly afford great deference to the trial court’s decision, this conviction should be affirmed.