United States v. Strong, Eddie L. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3557
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDDIE LEE STRONG,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 04 CR 78—John Daniel Tinder, Judge.
____________
ARGUED FEBRUARY 22, 2007—DECIDED MAY 14, 2007
____________
Before CUDAHY, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. A jury found Eddie Strong, a
felon, guilty of possessing ammunition but acquitted him
of possessing a firearm. See 18 U.S.C. § 922(g)(1). He was
sentenced to 62 months’ imprisonment. Evidence was
admitted at trial demonstrating that drugs were sold at
the house where the firearm and ammunition were dis-
2 No. 05-3557
covered.1 Mr. Strong challenges the admission of this
evidence as irrelevant and prejudicial. Because this evi-
dence tended to prove Mr. Strong’s knowing possession of
the drugs and the firearm and because it was not unduly
prejudicial, we affirm his conviction.
I
BACKGROUND
In 2003, police in Muncie, Indiana, began investigating
alleged drug trafficking at a house located at 612 East 5th
Street. This residence belonged to Mr. Strong’s elderly
stepfather. The police had seen Mr. Strong there on numer-
ous occasions. In January 2003, officers sent a confidential
informant into the house to purchase drugs from Mr.
Strong. The informant returned with crack cocaine; on the
same day, the officers obtained and executed a search
warrant for the house. The officers found recorded money
from the controlled buy in Mr. Strong’s pockets. The
officers videotaped the rest of their search in which they
found illegal drugs, two guns and ammunition in the
home.
Police officers returned to the house in April 2004 to
execute an arrest warrant for Mr. Strong. While conduct-
ing surveillance on the house prior to the arrest, the
officers observed “ten people, come up to the residence, go
inside, stay just a few minutes, two to four minutes and
leave the residence.” Tr. I at 220 (May 31, 2005). The
officers then observed Mr. Strong, his stepfather and a
third man step out on the front porch. They eventually
1
Mr. Strong was not charged with any drug-related offenses.
No. 05-3557 3
arrested Mr. Strong and found $810 in his pocket. Because
they smelled “burnt marijuana,” id. at 208, the officers
asked for and received the stepfather’s consent to search
the house. Officers once again videotaped their search and
again found drugs and ammunition.
In May 2004, Mr. Strong was charged in a six-count
indictment with possessing two firearms and four types of
ammunition. See 18 U.S.C. § 922(g)(1). In March 2005, a jury
acquitted Mr. Strong of four of the counts but was unable
to come to a unanimous verdict on Counts 1 and 2.2 Count
1 charged Mr. Strong with possessing an SKS rifle in
January 2003, and Count 2 charged him with possessing
multiple rounds of 9 mm ammunition in April 2004. The
district court scheduled a new trial on those remaining
counts.
In May 2005, the Government gave notice of its intent
to introduce several pieces of evidence related to crimes
that were not charged in Counts 1 and 2: information
relating to the January 2003 controlled buy, details of the
April 2004 surveillance of 612 East 5th Street and the drugs,
ammunition and second gun found in the house on both
occasions. At a pretrial hearing, Mr. Strong’s counsel
objected that this evidence was inadmissible. He contended
that the Government would have “the same problem in
proving that he possessed or sold these drugs that they do
in proving that he possessed the weapon, in that they don’t
have much evidence that he’s the one that possessed it.”
R.84 at 9. Counsel emphasized, for instance, that Mr. Strong
2
The new trial addressed Counts 1 and 3 of the original
indictment. The parties referred to the third count as “Count 2”
throughout this trial. For ease of reading, we shall use the
same terminology throughout this opinion.
4 No. 05-3557
did not live at 612 East 5th Street. Counsel also briefly
commented that the evidence was not admissible under
either Federal Rule of Evidence 404(b) or under the
“inextricably intertwined” doctrine because, in his view,
it was “a real stretch” to connect drug dealing to possessing
the weapons charged in the indictment. Id. The district
court ruled that all of the evidence was admissible under
the “inextricably intertwined” doctrine because the evi-
dence “would go to the question of the defendant’s knowl-
edge, motive, and intent with respect to the [charged
firearm and ammunition] . . . whether, he, in fact, pos-
sessed those things.” Id. at 19. The court then considered
the possibility of prejudice, but concluded that it was “far
outweighed” by the probative value of the evidence. Id.Finally, the court added that it would give the jury a
limiting instruction.3
At trial, the Government’s witnesses recounted each
search in detail. The police officer responsible for managing
3
At trial, when the Government completed its opening state-
ment, the court gave the following instruction:
[Y]ou may hear evidence during this trial about drugs and
guns which are not the subject of charges in the indictment.
You may consider this evidence only on the questions of
whether the defendant had knowledge of the firearm and
the ammunition that is charged in the two counts of the
indictment. Whether the defendant had the intention to
possess the firearm and the ammunition charged in those
two counts, and whether the defendant had a motive to
possess the firearm and ammunition charged in those two
counts, you may consider this evidence only for these
limited purposes.
Tr. I at 138-39 (May 31, 2005).
No. 05-3557 5
the informant testified regarding the controlled buy
in January 2003, and the Government introduced both
the crack cocaine sold to the informant and the recorded
buy money found on Mr. Strong.4 Another officer testified
about the April 2004 surveillance and Mr. Strong’s arrest
on the porch. The Government then played the videotapes
of each search for the jury. The videos showed the officers
finding the SKS rifle charged in Count 1 under the bed in
the southwest bedroom; the ammunition charged in Count
2 in both the southwest bedroom and the living room; crack
and powder cocaine, digital scales and other ammunition
in the southwest bedroom and the living room; and a
handgun in the northwest bedroom. The Government then
introduced into evidence the items shown on the video-
tapes.5
The Government also introduced several documents
that tied Mr. Strong to the house. In the southwest bed-
room, officers found mail addressed to Mr. Strong at 612
East 5th Street, his driver’s license (bearing a different
address) and various documents pertaining to his car-
detailing business. A gas bill bearing Mr. Strong’s name
was found in the living room next to more of the charged
9 mm ammunition that formed the basis of Count 2. In
addition, authorities discovered a satellite television bill
bearing Mr. Strong’s name in the kitchen.
4
Immediately after the drugs were introduced, the court gave
a limiting instruction that mirrored the instruction it gave
during opening statements. Tr. I at 157-58.
5
After each piece of evidence was introduced, the court
repeated, on most occasions, its limiting instruction. Tr. I at 170,
208; Tr. II at 97, 99 (June 1, 2005).
6 No. 05-3557
A fingerprint expert then testified that he had found
Mr. Strong’s fingerprint on the SKS rifle.6 Additionally,
John O’Boyle, a special agent with the Bureau of Alcohol,
Tobacco, Firearms, and Explosives, testified that he knew
from his experience that drug dealers often possess fire-
arms “to protect their narcotics” and as a “way of intimida-
tion.” Tr. II at 106-07 (June 1, 2005).7
During his testimony, however, Mr. Strong reiterated that
he did not live at the house and that any possible connec-
tion between drugs and weapons was irrelevant because
none of the items found there belonged to him. His brother
Johnny testified that he had both lived and used drugs in
the southwest bedroom in 2003 and 2004 and that his
6
Mr. Strong responded to the fingerprint evidence by testifying
that the rifle belonged to his brother-in-law who “showed it to
me one day . . . .” Tr. II at 171.
7
The court then interrupted and gave the following instruction:
I will remind the jurors that all of the evidence regarding
drugs and firearms and ammunition not charged in the
indictment was admitted only for a limited consideration
with respect to . . . whether the defendant had knowledge of
the firearm and ammunition charged in the two counts of
the indictment; whether the defendant had the intention to
possess the firearm and ammunition charged in those two
counts; and whether the defendant had a motive to possess
the firearm and ammunition charged in those two counts.
So with respect to Agent O’Boyle’s testimony about those
things, the drugs and ammunition and firearms not charged
in the indictment, they can be considered—his testimony
about that can be considered only for that limited purpose
as well.
Tr. II at 107.
No. 05-3557 7
brother-in-law had “left behind” the SKS rifle before
he passed away. Id. at 129. Mr. Strong, testifying on his
own behalf, explained that he, his wife and their children
were living in a different house, one that he owned, when
the charged events occurred. He further explained that
he had spent time at 612 East 5th Street and had utilities
in his name there only because he was the primary care-
giver for his elderly stepfather. On cross-examination,
however, Mr. Strong admitted that he had told the arrest-
ing officers that his address was 612 East 5th Street. The
jury ultimately acquitted Mr. Strong of possessing the rifle,
but found him guilty of possessing the 9 mm ammunition.
II
DISCUSSION
On appeal, Mr. Strong principally argues that, although
it was appropriate for the district court to permit the
police witnesses to provide a “general discussion” of how
the search warrants were obtained, most of the evidence
about the second gun and drug dealing at 612 East 5th
Street was not inextricably intertwined with the charged
firearm offenses because that evidence did not help
complete the story of the crimes or tend to prove any of
their elements. Appellant’s Br. at 24-25. Without elabora-
tion, Mr. Strong concedes that “some” of the disputed
evidence “was blended” or connected with relevant
evidence, but he asserts that the “vast majority” was
irrelevant and could have been excluded without leaving
a conceptual void at trial. Id.Because Mr. Strong argued at the pretrial hearing that
the inextricably intertwined doctrine did not apply, we
review the district court’s decision to admit the evidence
8 No. 05-3557
under that doctrine for an abuse of discretion. See United
States v. Holt, 460 F.3d 934, 936 (7th Cir. 2006). Acts “inex-
tricably intertwined” with charged crimes are generally
admissible; they are “not evidence of ‘other acts’ within the
meaning of Fed. R. Evid. 404(b)” and are not subject to the
constraints of that rule. United States v. Senffner, 280 F.3d
755, 764 (7th Cir. 2002) (quoting United States v. Ramirez, 45
F.3d 1096, 1102 (7th Cir. 1995)); see also United States v.
James, 464 F.3d 699, 709 (7th Cir. 2006) (“If the evidence of
other crimes or bad acts provides direct or inextricably
intertwined evidence (often referred to as intricately
related evidence) of the acts charged, it is not subject to the
constraints of Rule 404(b).”). An act is “inextricably
intertwined” with the charged crime if it completes the
story of the crime, creates a chronological or conceptual
void in the story if omitted, helps to explain the circum-
stances surrounding the charged crime or tends to prove an
essential element of the charged crime. Senffner, 280 F.3d at
764.
When a defendant has been charged with possession of
a firearm by a felon, we repeatedly have held that evidence
of contemporaneous uncharged drug trafficking is admissi-
ble under the “inextricably intertwined” doctrine because
such evidence tends to prove “knowing possession” of the
firearm. See 18 U.S.C. § 922(g)(1); United States v. Lott, 442
F.3d 981, 985 (7th Cir. 2006); United States v. Murray, 89 F.3d
459, 463 (7th Cir. 1996). As we have explained, “drug
trafficking supplies a motive for having [a] gun . . .
[b]ecause weapons are ‘tools of the trade’ of drug dealers.”
United States v. Stokes, 211 F.3d 1039, 1042 (7th Cir. 2000)
(internal citations omitted).
In this case, the evidence of Mr. Strong’s involvement in
drug trafficking at 612 East 5th Street tended to prove
No. 05-3557 9
his knowing possession of the rifle and ammunition
because the evidence helped tie him to the house (where
those items were found) and helped explain why he
would possess the items.8 The district court, through its
repeated instructions, made it abundantly clear that the
evidence was to be considered solely for those purposes.
See Tr. I at 139, 146, 158-59, 169-70, 208; Tr. II at 97, 99, 107.
The inextricably intertwined doctrine applies despite trial
counsel’s submission that Mr. Strong denied living at 612
East 5th Street. At most, counsel’s contention goes to the
weight, not the admissibility, of the evidence. See United
States v. Price, 418 F.3d 771, 781 (7th Cir. 2005) (weapons
found in house properly admitted to demonstrate defen-
dant’s involvement in drug dealing over his objection that
he did not live in house); United States v. Duran, 407 F.3d
828, 837-38 (7th Cir. 2005) (cash found on defendant
properly admitted even though defendant denied earn-
ing it from charged conspiracy).
Mr. Strong also argues that, even if the drug trafficking
evidence was “inextricably intertwined,” the district court
should have limited the amount of such evidence because,
in the aggregate, it was unduly prejudicial. He contends
that the videotapes only “exacerbated” the prejudicial
effect of the evidence. Appellant’s Br. at 21. Considering
the sheer volume of this evidence, submits Mr. Strong, his
trial ceased to be about his possession of the one firearm
8
Mr. Strong himself raised the issue of motive: He testified that,
when his brother-in-law showed him the rifle, Mr. Strong
responded, “I don’t like guns. My son got shot three times.” Tr.
II at 171. Mr. Strong repeated this sentiment on cross-examina-
tion, stating, “I’m not fond with guns . . . I’d rather not even be
around a gun.” Id. at 194.
10 No. 05-3557
and ammunition charged in the indictment and instead
became a “mini series” about drug dealing. Id. at 25.
Even inextricably intertwined evidence must withstand
scrutiny under Federal Rule of Evidence 403, which
allows a district court to exclude relevant evidence if its
prejudicial impact substantially outweighs its probative
value. See Fed. R. Evid. 403; United States v. Chavis, 429 F.3d
662, 670 (7th Cir. 2005). Nevertheless, the district court
enjoys a great deal of latitude in determining whether
to admit evidence over a Rule 403 objection. Our review
is for abuse of discretion. See United States v. Williams, 238
F.3d 871, 874 (7th Cir. 2001). Indeed, we have held that
“[t]he court’s admission of evidence under Rule 403 of the
Federal Rules of Evidence is entitled to special deference.
Only in an extreme case are appellate judges competent
to second-guess the judgment of the person on the spot,
the trial judge.” United States v. Gardner, 211 F.3d 1049,
1055 (7th Cir. 2000) (internal citations and quotation
marks omitted).
The district court’s conclusion that the probative value
of the drug trafficking evidence was not outweighed
substantially by the danger of unfair prejudice was not an
abuse of its discretion. “Evidence is unfairly prejudicial
only if it will induce the jury to decide the case on an
improper basis, commonly an emotional one, rather than
on the evidence presented.” United States v. Hicks, 368 F.3d
801, 807 (7th Cir. 2004) (internal citations omitted). Here,
there was nothing inherently emotional or incendiary about
the disputed evidence. See Price, 418 F.3d at 782 (videotape
displaying drug activity that witnesses had previously
described was not unduly prejudicial just because it gave
No. 05-3557 11
the jury a “physical, as opposed to a mental, picture”).9
Nonetheless, the district court remained vigilant about the
possibility of prejudice; as we have noted, it gave many
limiting instructions. See Tr. I at 139, 146, 158-59, 169-70,
208; Tr. II at 97, 99, 107. We consistently have explained
that such instructions minimize the prejudicial effect of this
type of evidence. See United States v. Whitlow, 381 F.3d 679,
686 (7th Cir. 2004); United States v. Rollins, 301 F.3d 511, 520
(7th Cir. 2002). Without an indication to the contrary, we
assume that the jury followed those instructions. See United
States v. Jones, 248 F.3d 671, 676 (7th Cir. 2001). We recog-
nize that a sizeable amount of uncharged conduct was
admitted in this case. However, considering the significant
linkage of drug trafficking and firearms,10 we cannot say
that the district court abused its discretion by determining
that it was proper for the jury to be made aware of the
9
Compare United States v. Chavis, 429 F.3d 662, 671 (7th Cir. 2005)
(“inextricably intertwined” evidence detailing defendant’s
multiple prior drug sales deemed not unduly prejudicial) with
United States v. Hite, 364 F.3d 874, 881-82 (7th Cir. 2004) (evi-
dence that defendant played “Russian roulette” and pointed
gun at witness’ head deemed “inextricably intertwined” as
evidence of knowing possession of gun but excluded as unduly
prejudicial), vacated on other grounds, 543 U.S. 1103 (2005).
10
Agent O’Boyle explained that:
Individuals involved in narcotics trafficking would have
firearms to protect their narcotics from other drug dealers,
thieves. And they also use it as a way of intimidation. An
individual might show up wearing a firearm or have a
firearm at a location to intimidate the person coming to buy
narcotics to show that in case they needed something to use,
they would use the firearm.
Tr. II at 106-07.
12 No. 05-3557
substantial likelihood that drugs were being dealt at 612
East 5th Street. See generally United States v. Thompson, 359
F.3d 470, 479 (7th Cir. 2004) (explaining that “all probative
evidence is prejudicial to the party against whom it is
offered . . . the relevant inquiry is whether there was unfair
prejudice”) (emphasis in original).
Accordingly, Mr. Strong’s conviction is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-14-07