United States v. Willie Freeman , 412 F. App'x 735 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0654n.06
Nos. 08-5677, 08-5678
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Oct 19, 2010
LEONARD GREEN, Clerk
No. 08-5677
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
WILLIE A. FREEMAN, No. 08-5677 )
MARION RUSSELL, No. 08-5678 )
)
Defendants-Appellants. )
BEFORE: NORRIS, ROGERS, and WHITE, Circuit Judges.
ROGERS, Circuit Judge. In February 2008, co-defendants Willie A. Freeman and Marion
Russell were each convicted by a federal jury of possession with the intent to distribute more than
five grams, but less than fifty grams, of cocaine base; simple possession of a quantity of cocaine; and
possession with the intent to distribute 369 dosage units of MDMA. Local law enforcement officers
had discovered $20,000 worth of drugs hidden in the defendants’ rental car during a routine traffic
stop in eastern Tennessee in January 2007. On appeal, Freeman and Russell contend that authorities
violated their Fourth Amendment rights during the traffic stop, and that evidence of an incident in
July 2006, when the defendants reported the theft of more than $14,000 in cash from their Johnson
City, Tennessee, hotel room, should not have been admitted to prove their intent to distribute
narcotics. In addition, Freeman argues that evidence of his eleven-year-old drug-trafficking
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conviction was improperly admitted to prove his intent and to impeach his trial testimony. Russell,
moreover, challenges the sufficiency of the evidence to sustain his convictions.
Because the authorities developed reasonable suspicion to detain the defendants during the
January 2007 traffic stop; because evidence of the July 2006 incident is probative of the defendants’
intent, and they have not explained how that evidence was unfairly prejudicial to them; and because
the Government presented sufficient evidence to support a finding that Russell had constructively
possessed the narcotics, we affirm Russell’s convictions. However, because the probative value—if
any—of Freeman’s prior conviction was substantially outweighed by a risk of unfair prejudice, and
because the admission of that prior conviction into evidence was not harmless, we reverse Freeman’s
convictions and remand for a new trial.
I.
This drug-trafficking case originated with the January 17, 2007, traffic stop of Willie A.
Freeman’s rental car, in which Marion Russell was a passenger. After law enforcement officers
discovered cocaine base, cocaine, and MDMA dosage units concealed by the rental car’s headliner,
a federal grand jury indicted Freeman and Russell on three counts each of possession with the intent
to distribute a controlled substance.
Freeman moved to suppress evidence of the narcotics that the Government had seized from
his rental car, asserting that the officer who had stopped the car, allegedly for speeding, had detained
Freeman and Russell for longer than necessary to effectuate the purposes of the stop. Russell
subsequently joined in Freeman’s motion, which the Government opposed.
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At a suppression hearing before a magistrate judge, Freeman moved into evidence a
videotape of the events of January 17, 2007, as recorded by Tennessee Highway Patrol Trooper Joe
Lunceford’s dashboard-mounted camera. Trooper Lunceford testified for the Government that, on
the afternoon of January 17, he had been stationed at the fifty-mile marker on eastbound I-
26—approximately five miles from the Tennessee-North Carolina border. On that afternoon, he had
clocked a vehicle going 74 miles per hour in a 55-mile-per-hour zone. Trooper Lunceford turned
on his emergency equipment, made a U-turn, and drove up behind the vehicle, which had already
pulled off the road. He could see two individuals—whom he identified at the suppression hearing
as Freeman and Russell—in the vehicle’s front seat and, as he approached, he could see that both
had put their hands in the air. As Trooper Lunceford approached, moreover, he “noticed an odor of
marijuana coming from the vehicle.” He asked the driver, Freeman, for a license, registration, and
proof of insurance. Trooper Lunceford then returned to his car and called for a Unicoi County canine
unit, “[j]ust to verify what [he] had smelled.” “Approximately 9, 10 minutes” passed between the
initiation of the stop and when the canine unit arrived; during that time, Trooper Lunceford checked
Freeman’s license and worked on issuing a citation for speeding.
Trooper Lunceford testified that he had not yet finished writing the citation when a canine
officer, Stacy Wigand of the Unicoi County Sheriff’s Department, had arrived. Trooper Lunceford
told Officer Wigand about the marijuana odor and asked Officer Wigand to walk his dog around the
vehicle. After the dog had alerted, the officers searched the vehicle and found $1800 in twenty-
dollar bills over the driver’s side sun visor and a marijuana roach in an empty fruit-juice bottle.
Officer Wigand’s dog then sniffed the vehicle’s interior and alerted on the cash and on the headliner
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near the vehicle’s rear window. Trooper Lunceford testified that Officer Wigand then discovered
bags of what had appeared to be drugs concealed by the vehicle’s rear headliner. After the officers
found the drugs, Freeman and Russell were placed under arrest.
On cross-examination, Freeman’s counsel played the first few minutes of the videotape of
the stop and Trooper Lunceford confirmed that he had said “something ain’t right” with respect to
the rental car paperwork. Although Freeman had signed the paperwork, the rental agreement was
in a third party’s name. Freeman’s counsel then asked whether Trooper Lunceford remembered
telling another officer on the scene that “the rental agreement is what really got me”; Trooper
Lunceford responded, “I remember smelling the marijuana in the vehicle. I’m very adamant about
that.” However, Trooper Lunceford had said nothing about marijuana to Freeman or Russell, nor
had he mentioned the odor to dispatch. Rather, Trooper Lunceford had first mentioned the odor
approximately sixteen minutes after he had initiated the stop. When Freeman’s counsel asked
Trooper Lunceford whether he remembered saying, approximately one hour into the stop, that “you
didn’t know what you were smelling, but it didn’t smell right,” Trooper Lunceford could not
remember having made such a statement.
In response to Russell’s counsel’s questioning, Trooper Lunceford explained that the odor
had “made [him] want to call for a dog, [that] it [had] give[n] [him] reason to want to investigate that
further.” He insisted that he “was already going to call for the dog before [he had] realized” that the
rental agreement was in a third party’s name; indeed, “the biggest factor” in his decision to call for
a dog “was what [he had] smelled in the car.”
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After counsel had finished, the magistrate judge questioned Trooper Lunceford while
reviewing the videotape. This review revealed that Trooper Lunceford had initiated the stop at 2:46
P .M . and had called in the vehicle’s tag number and requested a canine unit approximately two
minutes later. At around 2:53 P .M ., dispatch advised Trooper Lunceford that Freeman’s license was
valid; roughly two minutes later, Trooper Lunceford learned that there were no outstanding warrants
for Freeman’s arrest. Trooper Lunceford told the magistrate judge that he had not re-approached the
vehicle until after backup had arrived because Freeman and Russell had appeared nervous—it was
“not typical” for individuals to put their hands up during a routine traffic stop—and because of the
marijuana odor. Backup arrived by 2:58 P .M . and the canine officer arrived shortly thereafter.
The Government also called Officer Wigand, who testified that, after his dog had alerted on
the vehicle’s exterior, he had searched the vehicle and found the marijuana roach. The dog also
alerted inside the vehicle, on the roof near the rear window. Having noticed that the rear headliner
was loose, Officer Wigand pulled it down and a bag filled with a white powdery substance hit him
in the face. Officer Wigand testified that the officers had also found currency in the vehicle’s center
console; he did not recall having found the money above the driver’s side sun visor.
Freeman called as a witness Lieutenant David Pauley of the Unicoi County Sheriff’s
Department, who had also responded to Trooper Lunceford’s call for assistance. Lieutenant Pauley
testified that, when he had approached the vehicle after Freeman and Russell’s arrest, he had not
smelled marijuana. He explained, though, that “[o]f course, there was several minutes, several other
people done been up there, [and] doors had been opened” before he had approached the vehicle.
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Following the suppression hearing, the magistrate judge issued a written report
recommending the denial of the defendants’ motions to suppress. The report notes that
Lunceford emphatically testified . . . that he smelled the strong odor of marijuana
when he walked up to the driver’s side of the car. The resolution of the defendants’
motions to suppress depends upon whether Lunceford is believed, i.e., whether he did
or did not smell the odor of marijuana when he first walked up to the car.
The report concludes that Trooper Lunceford’s account of events is credible:
[Trooper Lunceford] unequivocally and emphatically testified under oath before this
Court that he did detect the odor of marijuana. There are portions of the tape that
suggest that he did not smell marijuana; at various times, he mentioned certain things
that caused him to be suspicious of the defendants, and he notably did not mention
an odor of marijuana. For example, at 2:58, he talked about the defendants acting
nervously, and the peculiarities of the rental agreement, yet he said nothing about
smelling marijuana. At 4:24, as events were drawing to a close, Lunceford said that
it was the rental agreement that really seized his attention. But on the other hand, he
does make sporadic references to having smelled marijuana, and the fact that he
requested a K-9 officer almost immediately after the stop tends to corroborate his
testimony.
At 2:58, Lunceford said, “they might be totally legit,” which arguably
suggests he had not smelled marijuana. But at that point all he knew was that he had
smelled marijuana. If things had never progressed beyond the mere odor, these
defendants would have been sent on their way. But the strong odor of marijuana
warranted further investigation, and that further investigation consisted of a K-9
officer and a dog sniff, ultimately leading to the discovery of a cache of drugs in the
head liner of the car and over a $1000 in currency. . . .
....
Ultimately, the issue is rather straightforward: is Lunceford to be believed,
or is he not? The only evidence is Lunceford’s testimony and the videotape.
Recalling that the standard of proof is a preponderance of the evidence, it
preponderates in favor of Lunceford. In short, Lunceford is believed. It follows
therefore that the lapse of twenty-three minutes from the traffic stop to the first sniff
of the drug dog, and then the lapse of an additional twenty-six minutes for the
discovery of the illegal drugs, was not unreasonable under the Fourth Amendment.
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Freeman and Russell filed objections to the magistrate judge’s report and recommendations,
arguing, primarily, that the magistrate judge had erred in finding Trooper Lunceford credible. The
district court overruled their objections, adopted and approved the report and recommendations in
a short order, and denied the motions to suppress.
Other evidentiary issues arose pretrial. For example, the Government gave notice of its intent
to introduce evidence, pursuant to Federal Rule of Evidence 404(b), that, in November 1996,
Freeman had pleaded guilty in a Washington County, Tennessee, court to the sale of a schedule II
controlled substance. The government planned to introduce this evidence, in part, to prove
Freeman’s intent to distribute the narcotics found in the rental car. Freeman objected to the
Government’s proposed use of his prior conviction because of its age, and because, he argued, its
probative value was substantially outweighed by a risk of unfair prejudice. Freeman, moreover,
sought a ruling as to whether the Government could use his prior conviction to impeach his
testimony at trial. The Government related that it did “not intend to use defendant’s 1996 conviction
during cross-examination unless the defendant testifies inconsistently with his prior conviction.”
At a hearing just days before trial, the district court ruled that the Government could
introduce Freeman’s prior conviction as evidence of his intent to distribute narcotics. The court
explained that, because Freeman was charged with specific intent offenses, “the [G]overnment must
prove intent” at trial. The court then concluded that, under Sixth Circuit precedent, in particular
United States v. Matthews, 440 F.3d 818 (6th Cir. 2006), Freeman’s prior conviction is probative
of his intent. Although the court characterized the age of the prior conviction as “bothersome,” the
court noted that, under controlling precedent, “there is no absolute maximum number of years that
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may separate a prior act and the act charged in the indictment.” Accordingly, “the only real
question” for the court was whether the probative value of the prior conviction was substantially
outweighed by a risk of unfair prejudice. The district court concluded that “the danger of prejudice”
could “be limited considerably by a cautionary instruction[,] which the court will give.”
As to the use of Freeman’s prior conviction to impeach his trial testimony, the district court’s
consideration of that issue was limited to the following exchange with the Government’s attorney:
The Court: . . . [A]s I recall, Ms. Hebets, you filed a pleading in which you said
that if the evidence is admissible as part of your case in chief,
obviously you wouldn’t intend to impeach Mr. Freeman if he testifies
if it’s already been admitted.
Ms. Hebets: Correct.
The court did not otherwise address the use of the prior conviction for impeachment purposes.
At the same pretrial hearing, the district court also heard argument on the Government’s
notice of its intent to introduce evidence, again pursuant to Rule 404(b), of a July 2006 incident that
had involved both Freeman and Russell. The Government’s notice indicated that, in July 2006, law
enforcement officers had seized $14,430 in cash from Freeman and Russell after a drug dog had
alerted on the money. The Government’s attorney represented that Freeman and Russell had
reported the money stolen from their Johnson City, Tennessee, hotel room, and that authorities had
recovered the money from a hotel maid’s residence. The Government’s attorney further represented
that a drug dog had alerted on the defendants’ rental car, inside of which authorities had found
marijuana residue. Freeman and Russell objected to the use of this evidence because the controlled
substance involved—marijuana—was not a substance charged in the instant indictment. The
Government’s attorney responded that, in January 2007, authorities had found Freeman and Russell
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in possession of more than one controlled substance and that, as to the “$14,000 that was seized in
July of the previous year, that’s an awful lot of marijuana to sell to get that kind of money.”
After the pretrial hearing, the district court issued a written order denying the defendants’
objections, and ruling that evidence of the $14,430 seized in July 2006 would be admissible to prove
the defendants’ intent to distribute narcotics. The district court indicated, however, that it did not
understand the significance of the fact that, in July 2006, the defendants had been driving a car rented
in a third party’s name, or the fact that marijuana had somehow been involved in that incident. The
district court further indicated that it would “give an appropriate limiting instruction” at trial.
Subsequently, in an apparent attempt to expand the scope of the admissible evidence of the
July 2006 incident, the Government proffered the testimony of two law-enforcement officers who
had investigated that incident. Following the Government’s proffer, the district court ultimately
concluded that evidence of the July 2006 incident would be admissible to prove the defendants’
intent to distribute narcotics but not to show a plan, scheme, or pattern. The court reasoned that “the
events clearly support the inference that there was a drug-trafficking offense going on” in July 2006,
and that the Government had presented “a sufficient factual basis for the testimony about the report
of the theft and the seizure of the money and the drug dog hit on the money.”
At trial, Trooper Lunceford and Officer Wigand provided testimony similar to that given at
the earlier suppression hearing.1 The Government introduced Freeman’s prior drug-trafficking
1
Whereas Officer Wigand testified at the suppression hearing that the officers had found cash
in the rental car’s center console, he testified at trial that they had found cash above the driver’s side
sun visor. He explained at trial that, after finding the cash above the sun visor, he had moved it to
the center console for safekeeping.
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conviction, which the district court instructed the jury to consider “only as it relates to the
[G]overnment’s claim that defendant Freeman intended to distribute drugs on January 17, 2007.”
As to the July 2006 incident, the Government called Officers Robert McCurry and Robert Edwards
of the Johnson City Police Department. Officer McCurry testified that he had responded to a theft
call at a Johnson City hotel on the afternoon of July 16, 2006; that a hotel maid had confessed to
taking the defendants’ money; and that a canine officer had gone to the maid’s apartment. Officer
Edwards testified that he and his dog had done a consensual search of the apartment; that his dog had
alerted on a trash can, where the officers had found some minor drug paraphernalia, and on the
corner of a mattress—between the mattress and the box springs—where the officers had found more
than $14,000 in cash; and that his dog was trained to alert at the odor of narcotics but not at the mere
presence of currency. Officer Edwards further testified that each defendant had claimed half of the
recovered sum. The district court instructed the jury that it could consider evidence of the July 2006
incident “only as it relates to the [G]overnment’s claim that the defendants intended to distribute
narcotic drugs on or about January 17, 2007[,] . . . but not for any other purpose.”
The Government read into evidence a stipulation that, during the January 2007 traffic stop,
officers had seized 98.8 grams of cocaine base, 21.5 grams of cocaine, and 396 dosage units of
MDMA from the defendants’ rental car. A Drug Enforcement Administration Task Force Agent
conservatively estimated that the street value of those drugs was approximately $20,000.
At the close of the Government’s case, Freeman and Russell each moved for a judgment of
acquittal. The district court noted that “the proof is less convincing, less overwhelming with respect
to Mr. Russell than it is to Mr. Freeman, especially on the issue of whether or not he knowingly
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possessed the, the drugs in question here.” Nevertheless, the district court denied both motions,
finding that the Government had put forth enough evidence to submit the case to the jury.
Each defendant then testified on his own behalf. On the stand, Freeman explained that, in
the early morning hours of January 17, 2007, he had driven from Georgia, to Johnson City,
Tennessee, to deliver some clothes to Russell, who had recently moved. Freeman and Russell had
worked together in the music business for several years; after Freeman got to Johnson City, he and
Russell waited to hear about a recording studio session in Greenville, South Carolina. After waiting
awhile without hearing anything, Freeman started back toward Georgia. When Russell heard that
they could visit the recording studio after all, however, Freeman turned around and headed back
toward Johnson City. Freeman rented a hotel room in Johnson City because, by the time they
returned from Greenville that night, it would be too late for him to drive home to Georgia. Freeman
testified that he had maintained possession of his rental car throughout the day, except for a twenty-
five to thirty minute interval when he had allowed Russell to borrow the car. Freeman and Russell
were on their way to Greenville when Trooper Lunceford pulled them over. Freeman testified that
he had neither put drugs in the rental car nor known that they were there.
Freeman further testified that he had pleaded guilty to an offense in 1996, had served his
time, and had “learn[ed] [his] lesson.” He explained that the money seized in July 2006 “was like
some money we had for investment in our company, money we had from working, just saved up
money; all the money we had in the whole wide world period,” but that none of it was drug money.
On cross-examination, the Government questioned Freeman at length about both his prior conviction
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and the July 2006 incident. Freeman’s counsel never objected to the Government’s lines of
questioning.
For his part, Russell testified that, as of January 17, 2007, he had lived in Johnson City for
“a week and some days.” On the morning of January 17, he met Freeman in the parking lot outside
of Russell’s girlfriend’s house. After Freeman had started back toward Georgia, Russell “called Mr.
Freeman and let him know that it was a go for the studio.” Russell went with Freeman to a hotel,
but while Freeman was renting a room, Russell borrowed the rental car to pick up a notebook and
some blank CDs that he had left at his girlfriend’s house. While there, Russell asked an
acquaintance to take Freeman’s car “to go get a bag of marijuana and a couple of beers.” Russell
testified that he had borrowed the car for twenty to twenty-five minutes total. He and Freeman were
on the road for just thirty minutes or so before Trooper Lunceford stopped them for speeding.
At the close of all evidence, the district court gave the parties an opportunity to review the
jury instructions and entertained their objections. Most relevant for purposes of this appeal, the
district court instructed the jury that
[y]ou have heard testimony that defendant Willie Freeman was convicted of selling
a schedule II drug in the Circuit Court of Washington County, Tennessee[,] on
November 27, 1996. You can consider the evidence only as it relates to the
[G]overnment’s claim that defendant Freeman intended to distribute narcotic drugs
on or about January 17, 2007, or as one way of helping you decide how believable
his testimony was. You must not consider it for any other purpose.
(Emphasis added.) Freeman’s counsel objected to this instruction, arguing that the district court had
addressed the use of Freeman’s prior conviction for impeachment purposes at the pretrial hearing.
The court noted that, when the Government was impeaching Freeman with his prior conviction,
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Freeman’s counsel had “sat there and didn’t make any objection.” The district court ultimately
denied Freeman’s objection, reasoning that “had this matter been contested, I would have found that
the conviction, even though more than ten years old, was more probative than prejudicial, and I
would have admitted it” for impeachment purposes.
The jury found Freeman and Russell each guilty of possession with the intent to distribute
more than five grams, but less than fifty grams, of cocaine base; simple possession of a quantity of
cocaine; and possession with the intent to distribute 369 dosage units of MDMA. Freeman and
Russell now appeal their convictions.
II.
A. Stop and Search of the Rental Car.
The district court properly denied Freeman and Russell’s motions to suppress because
Trooper Lunceford had probable cause to stop their rental car and then developed the requisite
reasonable suspicion to continue their detention. When Trooper Lunceford stopped the defendants’
vehicle, he had probable cause to believe that they had violated state law: he had clocked Freeman
driving 74 miles per hour in a 55-mile-per-hour zone and Tennessee law prohibits speeding,
see United States v. Hill, 195 F.3d 258, 265 (6th Cir. 1999) (citing Tenn. Code Ann. § 55-8-152).
Thus Trooper Lunceford’s initial stop of the defendants’ vehicle comported with the Fourth
Amendment. United States v. Davis, 430 F.3d 345, 352 (6th Cir. 2005).
Freeman and Russell contend, however, that Trooper Lunceford lacked the justification to
detain them any longer than reasonably required to issue a citation for speeding. This contention is
unavailing because the marijuana odor provided reasonable suspicion for Trooper Lunceford to
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continue the defendants’ detention. “‘Once the purposes of the initial traffic stop [are] completed,
there is no doubt that the officer [can] not further detain the vehicle or its occupants unless
something that occurred during the traffic stop generated the necessary reasonable suspicion to
justify a further detention.’” United States v. Bailey, 302 F.3d 652, 657-58 (6th Cir. 2002) (alteration
in original) (quoting United States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995)). Trooper Lunceford
maintained throughout the suppression hearing that he had smelled marijuana when he had first
approached the defendants’ vehicle. The magistrate judge concluded that Trooper Lunceford was
credible and that the marijuana smell had generated reasonable suspicion to justify the defendants’
continued detention. See United States v. Simpson, 520 F.3d 531, 543 (6th Cir. 2008).
The magistrate judge’s credibility determination, which the district court implicitly adopted
and approved, is not clearly erroneous. Bailey, 302 F.3d at 656 (setting forth the standard of review
for factual findings). The magistrate judge observed, in his written report and recommendation, that
Trooper Lunceford had “unequivocally and emphatically testified under oath . . . that he did detect
the odor of marijuana.” “We are generally reluctant to set aside credibility determinations made by
the trier of fact, who has had the opportunity to view the witness on the stand and assess his
demeanor.” Peveler v. United States, 269 F.3d 693, 702 (6th Cir. 2001). Freeman and Russell
maintain, however, that the videotape belies Trooper Lunceford’s testimony. They emphasize that
Trooper Lunceford (1) said nothing about the odor, either to them or in his initial communications
with dispatch; (2) stated that Freeman and Russell “might be totally legit”; (3) made several
comments about how nervous the men were and about how “something ain’t right” with the rental
agreement; and (4) said, after the officers had discovered the drugs, that he “knew [he had] smelled
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something.” Freeman and Russell also rely heavily upon Trooper Lunceford’s statement that “the
rental agreement is really what got me.” They highlight the fact that none of the other officers
testified to having smelled marijuana in the vehicle.
Freeman and Russell’s arguments are unpersuasive. The fact that Trooper Lunceford said
nothing about the odor does not mean that he did not, in fact, smell marijuana. Even though he did
not mention the odor in his initial communications with dispatch, he did call for a drug dog soon
after returning to his car, which suggests that he had smelled something. Moreover, Trooper
Lunceford’s voicing his suspicions with respect to the defendants’ nerves and the third-party rental
agreement does not mean that he did not also detect marijuana. Nor is this case controlled by the
fact that no one else testified to the smell: they were not on the scene when Trooper Lunceford
initially approached the rental car.
The defendants’ arguments, several of which the magistrate judge explicitly addressed, do
not leave one “‘with the definite and firm conviction that a mistake has been committed.’” Simpson,
520 F.3d at 535 (quoting United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)).
Because the magistrate judge was in the best position to evaluate Trooper Lunceford’s credibility,
Hill, 195 F.3d at 264-65, and because the record provides “no compelling reason to second-guess
the magistrate judge’s decision,” Peveler, 269 F.3d at 702, the credibility determination must stand.
It follows, then, that once Trooper Lunceford had smelled marijuana, he had reasonable suspicion
to continue the defendants’ detention. See Simpson, 520 F.3d at 543.
At that point, Trooper Lunceford “diligently pursued a means of investigation that was likely
to confirm or dispel [his] suspicions quickly.” United States v. Sharpe, 470 U.S. 675, 686 (1985).
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After returning to his car, he asked for a canine officer, who arrived on the scene roughly ten minutes
later. Approximately twenty-three minutes after Trooper Lunceford had initiated the stop, the canine
officer walked his dog around the rental car. This was not an unreasonable amount of time to detain
the defendants in light of Trooper Lunceford’s reasonable suspicion that they were or had been
engaged in criminal activity. See Davis, 430 F.3d at 355 (concluding that taking thirty minutes to
locate drug dog was reasonable where officers reasonably suspected narcotics possession). Once the
dog had alerted, the officers had probable cause to search the vehicle, because a “positive indication
by a properly-trained dog is sufficient to establish probable cause for the presence of a controlled
substance.” United States v. Diaz, 25 F.3d 392, 393-94 (6th Cir. 1994); see Hill, 195 F.3d at 273.
In sum, Trooper Lunceford had probable cause to stop Freeman and Russell initially for
speeding. Once Trooper Lunceford had smelled marijuana, he had reasonable suspicion to justify
the defendants’ further detention. The drug dog’s alert ultimately established probable cause to
search the vehicle. Thus the district court properly denied the defendants’ motions to suppress.
B. Admission into Evidence of Freeman’s Prior Conviction.
It was error to admit Freeman’s prior drug-trafficking conviction pursuant to Federal Rule
of Evidence 404(b). That conviction was neither near in time nor substantially similar to the conduct
at issue here, and its probative value, if any, was substantially outweighed by a risk of unfair
prejudice. Rule 404(b) provides that
[e]vidence 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 . . . .
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A district court considering whether to admit “other acts” evidence pursuant to Rule 404(b) follows
a three-step analysis:
The first step requires the district court to decide whether there is sufficient evidence
that the other act in question actually occurred. If so, the district court must decide
whether the evidence of the other act is “‘probative of a material issue other than
character.’” Finally, if the evidence is probative of a material issue other than
character, the district court must decide whether the “probative value of the evidence
is substantially outweighed by its potential prejudicial effect.”
United States v. Haywood, 280 F.3d 715, 719-20 (6th Cir. 2002) (citations omitted). Freeman does
not challenge the first step in the admissibility analysis—there is no dispute that he was previously
convicted of a state drug-trafficking offense. “We review a district court’s rulings regarding both
the second and third steps of the Rule 404(b) admissibility analysis to determine whether the district
court abused its discretion.” Id. at 720 (citing United States v. Mack, 258 F.3d 548, 553 & n. 1 (6th
Cir. 2001)); see also United States v. Allen, No. 08-6363, 2010 WL 3419506, at *3 (6th Cir. Aug.
13, 2010).
However, Freeman’s prior conviction is not probative of a material issue other than character.
“Other acts” evidence satisfies this second step in the admissibility analysis where “(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.” Id.(citing United States v. Johnson, 27 F.3d 1186, 1190-91 (6th Cir. 1994)). The Government offered
Freeman’s prior conviction for an admissible purpose: to prove his intent to distribute the narcotics
found in the rental car. Indeed, “Rule 404(b) explicitly includes intent as a proper purpose for which
to offer evidence of other acts.” Id. at 721; see also United States v. Bell, 516 F.3d 432, 442 (6th Cir.
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2008). Moreover, Freeman’s intent is “in issue” because he pleaded not guilty to three counts of
possession with the intent to distribute a controlled substance—a specific intent offense—and the
Government therefore must prove his intent beyond a reasonable doubt. See United States v.
Johnson, 27 F.3d 1186, 1192 (6th Cir. 1994).
In the end, though, Freeman’s prior conviction was not probative of his intent to distribute
here, even assuming any factual issues to be resolved in favor of admission. “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 United States v. Blankenship, 775 F.2d 735, 739 (6th Cir.
1985)). Our precedent suggests that “[t]here is no absolute maximum number of years that may
separate a prior act and the offense charged.” United States v. Ismail, 756 F.2d 1253, 1260 (6th Cir.
1985). However, not only was Freeman’s prior conviction more than ten years old at the time of his
January 2007 arrest, but the Government also failed to show a substantial similarity between the
prior conviction and the conduct at issue here. The only evident similarities between the two are (1)
the fact that Freeman, a resident of Georgia, was arrested in eastern Tennessee in both instances, and
(2) the fact that the prior conviction involved crack cocaine, which was one of three controlled
substances found in the defendants’ rental car. There is no additional information in the record as
to the circumstances underlying Freeman’s earlier conviction.
In Bell, facing a factually analogous situation, we concluded that a defendant’s four prior
drug-trafficking convictions were not probative of his intent to distribute narcotics. 516 F.3d at 444.
The government had alleged neither that the prior convictions were “part of the same scheme to
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distribute drugs,” nor that those prior convictions had involved a modus operandi similar to the
charged conduct. Id. We therefore concluded that “[s]uch evidence of prior distribution,
unconnected to the present charge, is not probative of whether [the defendant] intended to possess
and distribute drugs in the instant case.” Id. Likewise, here, because the Government provided no
evidence that Freeman’s prior conviction was substantially similar, or in any way related, to the
charged conduct, his prior conviction is not probative of his intent to distribute narcotics. Indeed,
as we explained in Bell, “[t]he 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.” Id. Accordingly, it was an abuse of discretion to find Freeman’s
prior conviction probative of his intent to distribute narcotics.
This court’s decision in United States v. Matthews, 440 F.3d 818 (6th Cir. 2006), relied upon
by the district court, is distinguishable from the instant case. In Matthews, the defendant was
convicted of possession with the intent to distribute more than five grams of cocaine base. Id. at 820.
The defendant had asserted, by way of a defense, that he had picked up a clear plastic bag off the
street without knowing that the bag contained crack. Id. at 821. Before trial, the government had
filed a notice of its intent to call a witness who had allegedly purchased crack from the defendant
some years earlier. Id. at 821-22. The government sought to introduce this evidence to prove the
defendant’s knowledge and intent, id. at 821, and the district court ultimately allowed the testimony,
id. at 823. On appeal, this court affirmed. Id. at 830. Because the defense had been “based on [the
defendant’s] claim that he did not know what was in the bag,” the witness’s testimony as to the
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earlier drug sales “obviously had probative value.” Id. Indeed, even though the witness testified to
events remote in time, “[b]ecause one of [the defendant]’s defenses was that he simply did not know
that the bag contained cocaine, the district court properly decided that even eight-year-old drug sales
were probative as to whether [the defendant] could identify the contents of the bag.” Id.Accordingly, the district court had “properly concluded that such prior drug sales were probative on
the issue of whether [the defendant] knew that the clear plastic bag found in his possession contained
cocaine, as well as on the issue of whether [the defendant] intended to distribute the drug.” Id. The
Matthews panel did not further analyze the probative value of the prior drug sales vis-a-vis the
defendant’s intent. Because the government in Matthews used the “other acts” evidence primarily
to prove knowledge and to refute the specific defense presented, the Matthews case is distinguishable
from the case at hand.
Even assuming, though, that Freeman’s prior conviction is probative of his specific intent,
the conviction’s probative value is greatly overshadowed by its potential for unfair prejudice. See
United States v. Jenkins, 593 F.3d 480, 486 (6th Cir. 2010) (describing the prejudicial effect of a
prior conviction as “Kong-like” under similar circumstances). We recognize that “[t]he district court
has broad discretion in balancing probative value against potential prejudicial impact” under Federal
Rule of Evidence 403. Ismail, 756 F.2d at 1259; see Bell, 516 F.3d at 445. However, a district court
“weighing the probative value of other acts evidence” should consider “the government’s alternative
sources of proving intent.” Bell, 516 F.3d at 445; see Jenkins, 593 F.3d at 485-86. In the instant
case, the sheer volume and street value of the drugs suggests that whoever possessed them intended
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to distribute them. See Bell, 516 F.3d at 446. This alternative evidence of intent diminished the
Government’s need to introduce Freeman’s prior conviction at trial. See Haywood, 280 F.3d at 723.
On the other side of the scale, the prior conviction “unquestionably ha[d] a powerful and
prejudicial impact” on the jury. Johnson, 27 F.3d at 1193. “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.’” Id. In light of the
limited probative value—if any—of the prior conviction, the availability of other evidence of intent,
and the substantial likelihood that the jury viewed the conviction as proof of a propensity to
distribute drugs, it was an abuse of discretion to admit the prior conviction into evidence. See
Haywood, 280 F.3d at 720, 723; Allen, 2010 WL 3419506, at *3 (both setting forth the standard of
review). Even though the district court gave a limiting instruction, that instruction was not “a sure-
fire panacea for the prejudice resulting from the needless admission of such evidence.” Haywood,
280 F.3d at 724.
The improper admission of Freeman’s prior conviction, moreover, was reversible error. The
district court’s erroneous admission of “other acts” evidence is “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 the error.’” Id. (quoting Kotteakos v.
United States, 328 U.S. 750, 765 (1946)). An assessment of “[w]hether the jury was ‘substantially
swayed’ by the improper admission of [‘other acts’] evidence . . . generally depends on whether the
properly admissible evidence of the defendant’s guilt was overwhelming.” Id. Although the sheer
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volume and street value of the drugs in this case provided highly persuasive, if not overwhelming,
evidence of an intent to distribute, the evidence of Freeman’s possession, relative to Russell, is fairly
weak.2 “[T]his was, after all, a case of only constructive possession.” Jenkins, 593 F.3d at 486.
Absent evidence of Freeman’s prior conviction, the jury may have believed that he did not know
about the drugs. Indeed, it is certainly possible that Russell put the drugs in the car during the twenty
or so minutes when he borrowed it from Freeman. In light of the presumption that favors reversal,
and because we cannot say that the jury was not substantially swayed, it was reversible error to admit
Freeman’s prior conviction into evidence.3
Freeman also attacks the district court’s jury instruction on the use of his prior conviction for
impeachment purposes. Because Freeman’s convictions are reversed on other grounds, we do not
reach the impeachment issue.
C. Admission of Evidence of the July 2006 Incident.
Both Freeman and Russell challenge the district court’s admission of evidence, again
pursuant to Rule 404(b), that they had reported the theft of thousands of dollars in cash from their
Johnson City, Tennessee, hotel room roughly six months before their arrests in this case. The district
court properly admitted the evidence, which supported an inference that the defendants had
2
The district court, in denying the defendants’ motions for judgments of acquittal, did note,
however, that “the proof is less convincing, less overwhelming with respect to Mr. Russell than it
is to Mr. Freeman, especially on the issue of whether or not he knowingly possessed the, the drugs
in question here.”
3
One might argue that if the erroneous admission of Freeman’s prior conviction infected the
jury’s verdict as to him, then that same error also infected the jury’s verdict as to Russell. However,
Russell does not advance that argument on appeal and, therefore, we need not decide the issue.
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previously trafficked in drugs in eastern Tennessee. The district court, moreover, properly instructed
the jury to consider the evidence only as it related to the defendants’ intent.
The district court did not clearly err in finding that the Government had presented sufficient
evidence that the July 2006 incident had occurred. See Matthews, 440 F.3d at 828 (setting forth the
standard of review). When the government seeks the admission of “other acts” evidence pursuant
to Rule 404(b), “the government is not required to demonstrate [for the court] that the other acts
occurred by a preponderance of the evidence.” Bell, 516 F.3d at 441. However, “‘similar act
evidence is relevant only if the jury can reasonably conclude that the act occurred and that the
defendant was the actor.’” Id. (quoting Huddleston v. United States, 485 U.S. 681, 689 (1988)). By
presenting the testimony of Officers McCurry and Edwards, the Government put forth sufficient
evidence for the jury to conclude that the July 2006 incident had occurred. Based on evidence that
(1) the defendants had kept thousands of dollars in cash in a hotel room; (2) a drug dog had alerted
on the money, albeit at a different location; and (3) each defendant had claimed half of the recovered
sum of more than $14,000, the jury could have reasonably inferred that the defendants, together, had
recently trafficked in drugs.
The Government’s evidence of the July 2006 incident is probative of a material issue other
than character. The Government offered this evidence to prove Freeman and Russell’s intent to
distribute narcotics—a proper purpose for the admission of “other acts” evidence under Rule 404(b).
Haywood, 280 F.3d at 721; see also Bell, 516 F.3d at 442. Because both Freeman and Russell
pleaded not guilty to the charged offenses, their intent is “in issue” and the Government therefore
must prove their intent beyond a reasonable doubt. See Johnson, 27 F.3d at 1192. Finally, the
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Government’s evidence is probative of intent because, in July 2006, the defendants engaged in
“conduct that [wa]s ‘substantially similar and reasonably near in time’ to the specific intent
offense[s] at issue” here. Haywood, 280 F.3d at 721 (quoting United States v. Blankenship, 775 F.2d
735, 739 (6th Cir. 1985)). As mentioned, the July 2006 incident occurred just months before, and
geographically near to where, Freeman and Russell were arrested in connection with this case. In
addition, in July 2006, a drug dog alerted on the thousands of dollars in cash that the defendants had
reported stolen, suggesting that the money had recently been in close proximity to narcotics. Just
six months later, in January 2007, local law-enforcement authorities discovered a stash of narcotics,
worth $20,000, hidden in the defendants’ rental car. Most importantly, Freeman and Russell were
traveling together both when they reported the theft from their hotel room in July 2006 and when
they were stopped for speeding in January 2007. Accordingly, because the July 2006 incident
occurred reasonably near in time and involved conduct substantially similar to the conduct at issue
here, evidence of the July 2006 incident is probative of the defendants’ intent to distribute narcotics.
Indeed, evidence suggesting that Freeman and Russell had previously collaborated to sell drugs goes
directly to the question of whether either defendant was innocently in the presence of the other’s
drug-sale activity when their rental car was stopped in January 2007.
Having properly concluded that evidence of the July 2006 incident was probative of the
defendants’ intent to distribute narcotics, the district court further determined that the evidence was
“not unduly prejudicial when you do the [Rule] 403 balancing test.” The district court, moreover,
gave the jury appropriate limiting instructions as to the use of the evidence, both immediately after
the Government had presented its evidence and after the close of all evidence at trial. See United
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States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir. 1996). Because neither Freeman nor Russell
makes a persuasive argument on appeal as to why the July 2006 incident’s probative value is
substantially outweighed by a risk of unfair prejudice, there is no basis to conclude that the district
court abused its discretion in admitting this “other acts” evidence. See Bell, 516 F.3d at 445 (noting
the “highly discretionary nature of th[e] balancing process”).
D. Sufficiency of the Evidence to Convict Russell.
Although the evidence against Russell is not overwhelming, it does support a guilty verdict
on each count. Russell’s sufficiency of the evidence argument appears to focus on the jury’s finding
that he “knowingly possessed” the narcotics found in the rental car. The Government, relying on a
theory of constructive (rather than actual) possession, put forth sufficient evidence to support the
jury’s finding. “[C]onstructive possession exists when a person . . . knowingly has the power and
the intention at a given time to exercise dominion and control over an object, either directly or
through others.” United States v. Hunter, 558 F.3d 495, 504 (6th Cir. 2009); see also United States
v. Bailey, 553 F.3d 940, 944-45 (6th Cir. 2009) (noting “that the theory of constructive possession
requires ‘specific intent’”). “Physical proximity to drugs, or mere presence in an area where drugs
are found, is not sufficient” to support a finding of possession. United States v. White, 932 F.2d 588,
589 (6th Cir. 1991).
The evidence in this case allows the inference that Russell was not merely physically present
in the rental car, but rather knew that he had the power—and, in fact, intended at some point—to
exercise dominion and control over the contraband. In deciding claims such as this one, the court
considers “the evidence in the light most favorable to the prosecution to determine whether any
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rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008); see Jackson v. Virginia, 443
U.S. 307, 319 (1979). At trial, both Trooper Lunceford and Officer Wigand testified that the
narcotics had been concealed at the rear center of the vehicle’s headliner. This testimony, viewed
in the light most favorable to the Government, suggests that both Freeman, the driver, and Russell,
in the front passenger seat, had access to the drugs. Trooper Lunceford further testified that both
Freeman and Russell had spontaneously put “their hands up in the air” when he had stopped their
vehicle; that gesture is “nothing [he] see[s] normally on a routine traffic stop.” The jury could infer,
then, that both Freeman and Russell had guilty knowledge of the presence of the narcotics at that
time. Russell himself testified that he had borrowed the rental car for twenty to twenty-five minutes
to drive to his girlfriend’s house while Freeman had rented a hotel room. This testimony provided
a basis for the jury to infer that Russell, not Freeman, had put the drugs in the vehicle’s headliner.
Even if the jury concluded that Freeman had hidden the drugs sometime earlier in the day, the jury
could infer from Freeman’s entrusting the car to Russell that Freeman and Russell were working
together to possess and distribute the drugs. Finally, the Government presented evidence that, after
police had recovered more than $14,000 from a hotel maid in July 2006, Freeman and Russell had
each claimed half of the money. The jury could infer from this evidence that Freeman and Russell
had shared the proceeds of drug distribution previously and that they had intended to do so again,
before they were apprehended. This was sufficient for the jury to find that Russell had developed
the specific intent to exercise dominion and control over the contraband, as required to establish
constructive possession. See Bailey, 553 F.3d at 944-45.
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The Government presented additional evidence that Freeman and Russell had intended to
distribute the drugs. Most notably, the sheer volume of drugs suggests an intent to distribute.
Indeed, one of the Government’s witnesses estimated that the drugs had a street value of $20,000.
Although the evidence against Russell is circumstantial, on the whole, and when viewed in
the light most favorable to the Government, the evidence is sufficient to sustain his convictions. See
United States v. Welch, 97 F.3d 142, 150-51 (6th Cir. 1996).
III.
Although we affirm as to Russell, we reverse Freeman’s convictions because it was error to
admit evidence of his prior drug-trafficking conviction to prove his intent to distribute narcotics. We
therefore vacate Freeman’s sentence and remand to the district court for proceedings consistent with
this opinion.
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