United States v. Jones, Twaine ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-3941
    United States of America,
    Plaintiff-Appellee,
    v.
    Twaine Jones,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 99-CR-30249-WDS--William D. Stiehl, Judge.
    Argued April 6, 2001--Decided April 24, 2001
    Before Flaum, Chief Judge, and Posner and
    Williams, Circuit Judges.
    Flaum, Chief Judge. Twaine Jones
    appeals his convictions for possession
    with intent to distribute various
    controlled substances as well as his
    sentence. He contends that impermissible
    character evidence was introduced at his
    trial and that the judge increased his
    sentence based on quantities of drugs
    that were not presented to the jury nor
    proven beyond a reasonable doubt. For the
    reasons stated herein, we affirm.
    I.   Background
    On August 10, 1998, police executed a
    search warrant at 1120 North 45th Street
    in Washington Park, Illinois. They
    discovered and seized crack cocaine,
    cocaine hydrochloride, marijuana, and
    guns. The police also recovered
    photographs of Twaine Jones and his
    family along with bills, letters, and
    other items addressed to the defendant at
    the house, indicating that Jones lived
    there. The government indicted Jones for
    possessing the narcotics found in the
    North 45th Street home. The counts of the
    indictment relevant on appeal are all
    violations of 21 U.S.C. sec. 841(a)(1):
    possession with intent to distribute
    135.8 grams of cocaine base; possession
    with intent to distribute 75.9 grams of
    cocaine hydrochloride; and possession
    with intent to distribute 2,658.29 grams
    of marijuana.
    Prior to trial, the government filed a
    notice of intent to present testimony
    concerning prior drug dealing by the
    defendant and evidence that was recovered
    from the same home through a previous
    search warrant. The defendant filed a
    motion in limine seeking to exclude any
    testimony regarding his prior acts, which
    was opposed by the government. Applying
    the four-pronged test for admission of
    prior acts evidence under Federal Rule of
    Evidence 404(b), see, e.g., United States
    v. Williams, 
    238 F.3d 871
    , 874 (7th Cir.
    2001), the district court decided that
    the evidence proffered by the government
    could be introduced.
    Jones’s trial began on July 18, 2000.
    The government’s evidence included the
    testimony of three individuals who had
    purchased drugs from Jones in the past.
    Pervis Harris, Rodney Weatherby, and
    Cortez Wooten all testified that they
    repeatedly purchased drugs from Jones at
    the North 45th Street house during the
    late nineteen-nineties. Harris and
    Weatherby also testified that Jones told
    them about the 1998 search warrant and
    what the police recovered from the
    residence. The government also presented
    Terrence Delaney, who testified that he
    had been the captain of a drug and gang
    tactical unit that executed a search
    warrant at 1120 North 45th Street in
    1993. His group seized crack cocaine,
    marijuana, and various personal papers
    belonging to Jones from that home. The
    defendant did not object to any of this
    evidence when it was introduced at trial.
    Jones’s primary defense was that he did
    not reside at the North 45th Street house
    during the time the 1998 search warrant
    was executed and thus any drugs found
    there did not belong to him. At the close
    of evidence, the court instructed the
    jury that they could consider the above
    described prosecution evidence "only on
    the question of identity, knowledge, and
    intent. You should consider this evidence
    only for this limited purpose."
    On July 20, 2000, the jury returned a
    guilty verdict on the three counts of
    possession with intent to distribute. The
    court held a sentencing hearing on
    November 6, 2000. The government argued
    that the drugs sold by Jones to Harris,
    Weatherby, Wooten, and other witnesses
    should be considered relevant conduct and
    added to the amounts seized from 1120
    North 45th Street for sentencing
    purposes. The defendant objected on the
    basis of Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    120 S. Ct. 2348
     (2000), claiming
    that quantities of narcotics not proven
    to the jury could not be used to increase
    his sentence. The court agreed with the
    government and found Jones responsible
    for 1.2 kilograms of cocaine base, more
    than 14 kilograms of cocaine
    hydrochloride, and the amount of
    marijuana alleged in the indictment.
    These extra amounts of drugs translated
    into a two-point increase in Jones’s
    offense level. Jones received concurrent
    sentences on each of the three counts,
    with the longest being thirty years for
    possession with intent to distribute
    cocaine base.
    II. Discussion
    A. Rule 404(b) Evidence
    Under Rule 404(b), evidence of a
    defendant’s other acts may be introduced
    if a four-part test is satisfied. See
    Williams, 
    238 F.3d at 874
    ; United States
    v. Wash, 
    231 F.3d 366
    , 370 (7th Cir.
    2000). Jones claims that the 404(b)
    testimony admitted at his trial fails the
    first and fourth prongs of this test: the
    evidence did not establish any matter in
    issue besides propensity, and the danger
    of unfair prejudice substantially
    outweighed the probative value. This
    argument is apparently premised on the
    fact that Jones’s defense at trial was
    that he did not live at the North 45th
    Street residence during the time the 1998
    search warrant was executed and so any
    narcotics found in the house were not
    his. Jones contends that the statements
    of Harris, Weatherby, and Wooten do not
    counter his defense and are thus
    irrelevant because none of the three drug
    purchasers could directly testify that
    Jones stored any controlled substances in
    the house. Similarly, Jones argues that
    Delaney’s testimony also does not cast
    doubt on his defense because Delaney’s
    evidence shows only that drugs were
    stored in the house five years earlier,
    rather than that Jones lived in the house
    and knew of the narcotics in 1998.
    According to Jones, because the Rule
    404(b) evidence was not relevant to
    whether he lived in the house and thus
    possessed the drugs, its only effect was
    to unfairly prejudice him by showing his
    propensity to traffic in controlled
    substances. The government contends that
    the evidence was admissible to show
    Jones’s intent and knowledge and did not
    unduly prejudice him. The parties also
    dispute whether we should review for
    abuse of discretion or plain error,/1
    but we need not address this question
    because under either standard Jones’s
    challenge fails.
    1.   Matter other than propensity.
    The elements of possession with intent
    to distribute under 21 U.S.C. sec.
    841(a)(1) are: (1) possession of a
    controlled substance; (2) knowledge that
    the material is a controlled substance;
    and (3) intent to distribute it. Lanier
    v. United States, 
    220 F.3d 833
    , 840 (7th
    Cir. 2000). Jones argues that because he
    was only disputing the first element,
    possession, the government should not
    have been permitted to present evidence
    on the second and third elements.
    However, this contention misapprehends
    the government’s burden in a criminal
    trial. In all criminal cases, the
    government must prove each element, even
    those that the defendant does not
    specifically contest, beyond a reasonable
    doubt to convict a defendant. Estelle v.
    McGuire, 
    502 U.S. 62
    , 69 (1991) ("[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."); see also Mathews v. United
    States, 
    485 U.S. 58
    , 64-65 (1988) ("A
    simple plea of not guilty puts the
    prosecution to its proof as to all
    elements of the crime charged.")
    (citation omitted). Even though Jones
    focused only on the first element of the
    alleged crime, denying that he possessed
    the drugs contained in the house on North
    45th Street, the government was still
    required to prove both his knowledge that
    the substances were narcotics and his
    intent to distribute by submitting
    evidence on those issues. United States
    v. Kellum, 
    42 F.3d 1087
    , 1093 (7th Cir.
    1994).
    The Rule 404(b) evidence submitted in
    this case aided the prosecution in
    carrying its burden of proving intent and
    knowledge, and so satisfies the first
    prong of the Rule 404(b) test. Jones’s
    transactions with Harris, Weatherby, and
    Wooten showed that Jones in the past had
    sold drugs that he had possessed.
    Evidence that he previously distributed
    narcotics supports a finding that he
    intended to distribute the drugs found
    when the 1998 search warrant was executed
    and that he knew these substances were
    drugs. Indeed, intent to distribute drugs
    and knowledge that a particular substance
    is a narcotic often are proven through
    testimony about prior sales of controlled
    substances. See, e.g., United States v.
    Denberg, 
    212 F.3d 987
    , 993-94 (7th Cir.
    2000); United States v. Tringali, 
    71 F.3d 1375
    , 1379 (7th Cir. 1995). Jones’s
    discussions with Harris and Weatherby
    concerning the search warrant and
    confiscation of Jones’s drugs aided the
    prosecution in establishing that Jones
    knew he was selling a controlled
    substance. Delaney’s testimony furthered
    the government’s case by demonstrating
    that Jones had repeatedly possessed large
    amounts of narcotics, which supports a
    finding that the possessor intended to
    distribute the drugs to others since such
    quantities are unlikely to be consumed by
    a single person. Also, Delaney’s
    testimony supported the proposition that
    Jones had previously been present in the
    house when substantial amounts of drugs
    were present, increasing the probability
    that he knew that the substances in the
    house in 1998 were narcotics.
    2.   Unfair prejudice.
    Evidence is unfairly prejudicial only to
    the extent that it will cause the jury to
    decide the case on improper grounds. See
    Denberg, 
    212 F.3d at 994
    ; United States
    v. Long, 
    86 F.3d 81
    , 86 (7th Cir. 1996).
    As discussed above, the Rule 404(b)
    testimony presented in this case was
    primarily directed toward elements of the
    crime that the prosecution was required
    to establish, namely, Jones’s intent to
    distribute and his knowledge that he
    possessed narcotics. The jury’s use of
    the Rule 404(b) evidence on these legally
    relevant issues of intent and knowledge
    does not constitute unfair prejudice.
    The jury might also have been tempted to
    use the Rule 404(b) evidence to infer a
    propensity of Jones to engage in drug
    trafficking activities, which would have
    been unfairly prejudicial. However, any
    such potential prejudice was ameliorated
    by the limiting instruction given by the
    trial court. Williams, 
    238 F.3d at 876
    ;
    Denberg, 
    212 F.3d at 994
    . We assume that
    juries follow a court’s instructions,
    United States v. Wilson, 
    237 F.3d 827
    ,
    835 (7th Cir. 2001), which means in this
    instance that we assume the jury used the
    evidence only for intent and knowledge
    and not to infer a propensity for
    committing illegal acts. Therefore, Jones
    was not unfairly prejudiced by the Rule
    404(b) evidence.
    B.   Apprendi
    Jones argues that the trial court
    improperly increased his sentence on the
    basis of drug quantities that were
    notalleged in the indictment or proven to
    the jury. The court did this by
    attributing the drugs Jones sold to
    Harris, Weatherby, Wooten, and others as
    relevant conduct under the Sentencing
    Guidelines, increasing Jones’s offense
    level under the Guidelines by two and
    thus lengthening his sentence. In
    support, Jones relies on a number of
    cases holding that drug quantities must
    be proven to increase a defendant’s
    sentence under sec. 841(b).
    Apprendi holds that "[o]ther than the
    fact of a prior conviction, any fact that
    increases the penalty for a crime beyond
    the prescribed statutory maximum must be
    submitted to a jury, and proved beyond a
    reasonable doubt." 
    120 S. Ct. at 2362-63
    .
    The jury found that the government had
    proven the charges listed in the
    indictment, one of which was that Jones
    possessed with the intent to distribute
    135.8 grams of cocaine base, beyond a
    reasonable doubt. The statutory maximum
    for possession with intent to distribute
    50 or more grams of cocaine base is life
    imprisonment. 21 U.S.C. sec.
    841(b)(1)(A)(iii). Since the thirty-year
    sentence that Jones received is less than
    the statutory maximum of life
    imprisonment, Apprendi is not implicated.
    The principal thrust of Jones’s argument
    is that relevant conduct under the
    Sentencing Guidelines must be proven to
    the jury beyond a reasonable doubt before
    it can be used to increase a defendant’s
    sentence. We have squarely rejected this
    argument. "[P]ursuant to the sentencing
    guidelines, district courts may still
    determine a drug offender’s base level
    offense by calculating quantities of
    drugs that were not specified in the
    count of conviction but that the court
    concludes, by a preponderance of the
    evidence, were a part of the defendant’s
    relevant conduct, as long as that
    determination does not result in the
    imposition of a sentence that exceeds the
    statutory maximum penalty for that
    crime." United States v. Jones, No. 00-
    2531, 
    2001 WL 294306
    , at *5 (7th Cir.
    Mar. 28, 2001); see also Talbott v.
    Indiana, 
    226 F.3d 866
    , 869 (7th Cir.
    2000) ("Apprendi does not affect
    application of the relevant-conduct rules
    under the Sentencing Guidelines to
    sentences that fall within a statutory
    cap."). Because the district court’s
    reliance on Jones’s relevant conduct in
    applying the Guidelines did not result in
    a sentence exceeding the statutory
    maximum of life imprisonment, the court
    did not violate the rule of Apprendi.
    III.   Conclusion
    The evidence regarding Jones’s prior
    drug sales and having a large quantity of
    drugs in his alleged residence was
    probative of his intent to distribute
    narcotics and knowledge that the
    substances he possessed were controlled.
    The evidence was not unfairly prejudicial
    given its probative value and the trial
    court’s limiting instruction. Because the
    jury found beyond a reasonable doubt
    facts that made Jones eligible for a
    statutory maximum sentence of life
    imprisonment, the district court did not
    violate Apprendi in enhancing Jones’s
    offense level under the Sentencing
    Guidelines by including uncharged drug
    sales as relevant conduct. Therefore,
    Jones’s convictions and sentence are
    Affirmed.
    1/ The standard of review issue centers around
    whether the district court’s denial of Jones’s
    pre-trial motion to exclude the Rule 404(b)
    evidence was conditional or definitive. If the
    pre-trial denial was definitive, then Jones did
    not need to object during the trial to preserve
    the issue and so we would review for abuse
    ofdiscretion; if the pre-trial denial was condi-
    tional, objections during the trial would be
    necessary and Jones’s failure to make those would
    cause us to review only for plain error. See
    Wilson v. Williams, 
    182 F.3d 562
    , 567 (7th Cir.
    1999) (en banc). Because the standard of review
    does not affect the outcome, we need not decide
    whether the trial court’s denial of the motion in
    limine was definitive or conditional.