United States v. Samory Monds ( 2019 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 18-3000
    ___________________________
    United States of America,
    lllllllllllllllllllllPlaintiff - Appellee,
    v.
    Samory Azikiwe Monds,
    lllllllllllllllllllllDefendant - Appellant.
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Des Moines
    ____________
    Submitted: September 27, 2019
    Filed: December 20, 2019
    ____________
    Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
    ____________
    COLLOTON, Circuit Judge.
    A jury convicted Samory Monds of possession with intent to distribute cocaine
    and cocaine base. See 
    21 U.S.C. § 841
    (a)(1), (b)(1)(C). The district court1 sentenced
    him to 262 months’ imprisonment. On appeal, Monds challenges the admission of
    1
    The Honorable James E. Gritzner, United States District Judge for the
    Southern District of Iowa.
    evidence that he had sustained three prior felony drug convictions, and the
    presentation of testimony adverting to the fact that Monds was under court
    supervision at the time of his arrest. Monds also disputes the district court’s
    calculation of the advisory guideline range at sentencing. We conclude that there was
    no reversible error, and therefore affirm the judgment.
    I.
    In August 2017, Monds was serving terms of federal supervised release and
    state probation. He had violated conditions of supervised release, and police officers
    arrived at his home on August 30 to arrest him for the violation. As officers arrested
    Monds at his front door, a man named Tommy Johnson approached the house, but
    turned to flee when he saw the police. Officers caught Johnson and found that he
    possessed several baggies of heroin and a pipe for smoking crack cocaine. Police
    then obtained a search warrant for Monds’s residence, and they seized cocaine and
    paraphernalia used in distributing drugs.
    A grand jury charged Monds with possession with intent to distribute cocaine
    and cocaine base. Before trial, the government filed a notice under Federal Rule of
    Evidence 404(b) to present evidence of three prior convictions: (1) an August 2017
    conviction for possession of marijuana with intent to deliver; (2) a May 2014
    conviction for conspiracy to distribute cocaine base; and (3) an April 2011 conviction
    for possession of a controlled substance with intent to deliver. The motion asserted
    that the convictions were relevant to prove Monds’s “motive, opportunity, intent,
    preparation, plan, knowledge, and absence of mistake.” Monds moved to exclude the
    prior convictions. He also sought to keep out evidence that he was on supervised
    release and probation at the time of his arrest.
    After a hearing, the district court ruled that the prior convictions would be
    received in evidence. In light of our decision in United States v. Wright, 866 F.3d
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    899 (8th Cir. 2017), which reiterated that “a prior conviction for distributing drugs
    . . . [is] relevant under Rule 404(b) to show knowledge and intent to commit a current
    charge of conspiracy to distribute drugs,” 
    id. at 905
     (internal quotation marks
    omitted), the court determined that “under the circumstances of this case,” it was
    “compelled to rule that they are admissible.” The court also ruled that witnesses
    would be permitted to make limited reference to the fact that officers appeared at
    Monds’s residence to arrest him for violating terms of supervised release.
    At trial, the court admitted evidence of the three convictions, and instructed the
    jury that it could consider the evidence only to help decide “motive, intent,
    knowledge, or absence of mistake or accident.” The jury was admonished that it
    could not convict Monds simply because he may have committed similar acts in the
    past. When witnesses testified that Monds was under court supervision at the time
    of the investigation, the court gave a cautionary instruction about the limited purpose
    of the evidence.
    II.
    A.
    Monds argues first that the district court abused its discretion by admitting the
    prior convictions. Rule 404(b) is a “rule of inclusion,” United States v. Riepe, 
    858 F.3d 552
    , 560 (8th Cir. 2017), that permits evidence of prior crimes to show a
    defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity,
    absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). The evidence must
    be (1) relevant to a material issue raised at trial, (2) similar in kind and not overly
    remote in time to the crime charged, (3) supported by sufficient evidence to support
    a jury finding that the defendant committed the other act, and (4) of probative value
    not substantially outweighed by its prejudicial effect. See United States v. LeBeau,
    
    867 F.3d 960
    , 978-79 (8th Cir. 2017); United States v. Gant, 
    721 F.3d 505
    , 509 (8th
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    Cir. 2013). Evidence is not admissible under Rule 404(b) if it is introduced solely to
    show a defendant’s propensity to engage in criminal misconduct. United States v.
    Walker, 
    428 F.3d 1165
    , 1169 (8th Cir. 2005).
    Monds contends that there was no meaningful similarity between his prior
    convictions and the charge in this case. Citing dicta from United States v. Turner,
    
    781 F.3d 374
     (8th Cir. 2015), Monds complains that the government failed to provide
    a specific non-propensity purpose for offering evidence of the prior convictions. We
    explained in United States v. Harry, 
    930 F.3d 1000
     (8th Cir. 2019), however, that
    “Turner is inapposite where a defendant places his knowledge and intent at issue
    during trial.” 
    Id. at 1006
    . Monds placed both elements at issue, by means of a
    general denial, 
    id.
     (quoting United States v. Thomas, 
    58 F.3d 1318
    , 1322 (8th Cir.
    1995)), and by suggesting specifically that the drugs may have belonged to Johnson
    and that any drugs that he possessed were for personal use.
    The concern in Turner, moreover, was whether the government failed to
    explain what intent or knowledge the evidence would tend to show, or how the prior
    crimes were relevant to the offense charged. 781 F.3d at 390. Failure to elaborate in
    this way, while discouraged by this court, is “not in itself a basis for reversal.” United
    States v. Mothershed, 
    859 F.2d 585
    , 589 (8th Cir. 1988); see United States v.
    Johnson, 
    439 F.3d 947
    , 953-54 (8th Cir. 2006). Here, moreover, the government did
    more than “simply read the list of issues for which prior bad acts can be admitted
    under Rule 404(b).” Mothershed, 
    859 F.2d at 589
    .
    The government was required to prove that Monds knew that the substance
    found on his dining room table was cocaine or cocaine base, as opposed to an
    innocent item, and the prosecution explained that a prior conviction for conspiring
    to distribute cocaine base was relevant to his knowledge. The government also bore
    the burden to prove that Monds intended to distribute the drugs in his possession,
    rather than hold them for personal use; the jury was given the option to consider the
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    lesser-included offense of simple possession. That Monds was convicted thrice
    before on charges involving the distribution of drugs, the prosecution explained, was
    relevant to whether he intended to distribute the drugs found in his residence. E.g.,
    United States v. Patino, 
    912 F.3d 473
    , 476 (8th Cir. 2019). The proposed uses of
    prior convictions to prove “motive” and “absence of mistake” were not well-
    explained, and might prudently have been omitted, but were consistent with circuit
    precedent. E.g., Wright, 866 F.3d at 905; United States v. Ellis, 
    817 F.3d 570
    , 579
    (8th Cir. 2016); United States v. McGilberry, 
    620 F.3d 880
    , 886-87 (8th Cir. 2010);
    United States v. Shoffner, 
    71 F.3d 1429
    , 1432 (8th Cir. 1995). Where the district
    court is satisfied by the government’s explanation for admissibility under Rule
    404(b), the court not need repeat or augment the analysis.
    Monds objects in particular to admission of the 2011 conviction because it was
    based on conduct occurring almost ten years before the alleged offense conduct in
    this case. The district court allowed that if this conviction were offered “by itself,
    that might be a closer call,” but reasoned that where the two more recent convictions
    were “more significant anyway,” admission of the third conviction did not occasion
    “any particularly additional prejudice.” This was a permissible exercise of discretion.
    The older conviction was within the range of relevance, e.g., United States v.
    Johnson, 
    860 F.3d 1133
    , 1142 (8th Cir. 2017), and in considering prejudicial effect,
    the court was entitled to consider the incremental effect of the evidence in light of the
    record as a whole.
    Monds also complains that the district court failed to conduct an adequate
    balancing of the probative value and prejudicial effect of the evidence. The argument
    seems to be that because the government admitted only the judgments of prior
    convictions, without greater detail about the crimes, the probative value was too small
    to justify admission. Of course, if the government had presented details of Monds’s
    prior drug trafficking, then that evidence would have risked greater prejudicial effect.
    We conclude that the district court’s decision to limit the evidence and to provide a
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    cautionary instruction justified its conclusion that the probative value of the evidence
    on issues such as knowledge and intent was not substantially outweighed by its
    prejudicial effect.
    B.
    Monds next argues that the district court abused its discretion by allowing
    references to the fact that he was serving terms of supervised release and probation
    at the time of his arrest. A police officer testified that he was assigned to arrest
    Monds while he was on “state and federal probation.” Two probation officers
    testified that they supervised Monds on federal supervised release and state probation,
    respectively, and that he reported living alone at the address where police arrested
    him and found drugs. Each time, the district court cautioned the jury that the
    evidence about court supervision was offered “solely to explain why the persons were
    called to the residence at issue,” who lived at the residence, or how the witness was
    familiar with the living situation.
    Monds asserts that the district court abused its discretion by failing to exclude
    the evidence under Rule 403 on the ground that its probative value was substantially
    outweighed by a danger of unfair prejudice. He asserts that because he was willing
    to stipulate that he lived at the residence, the testimony added no probative value but
    created a risk that the jury unfairly would convict him of the charged offense based
    on his prior transgressions.
    Monds understates the probative value of the disputed evidence. Testimony
    from the probation officers tended to establish not only that Monds lived at the
    residence, but that he lived there alone. This fact helped to prove that Monds, not the
    visiting Johnson, possessed the drugs that were found within the residence. The
    testimony of the police officer that he was present to arrest Monds for violating
    conditions of release was admissible to explain the circumstances surrounding the
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    event. See United States v. Orozco-Rodriguez, 
    220 F.3d 940
    , 942 (8th Cir. 2000);
    United States v. Edwards, 
    159 F.3d 1117
    , 1129 (8th Cir. 1998). The court properly
    cautioned the jury to consider it only for that purpose, and the jury already was aware
    that Monds had sustained prior convictions. The district court thus did not abuse its
    discretion under Rule 403.
    III.
    Monds also raises a claim of procedural error at sentencing. He argues that the
    district court erroneously calculated the advisory guideline range by denying him a
    two-level reduction for acceptance of responsibility under USSG § 3E1.1. We review
    the district court’s determination for clear error. United States v. Perry, 
    640 F.3d 805
    ,
    813 (8th Cir. 2011).
    A defendant is entitled to a two-level decrease if he “clearly demonstrates” an
    acceptance of responsibility. USSG § 3E1.1(a). This adjustment generally “is not
    intended to apply to a defendant who puts the government to its burden of proof at
    trial by denying the essential factual elements of guilt.” USSG § 3E1.1, comment.
    (n.2). In “rare situations,” however, a defendant who is convicted after trial may earn
    the adjustment, such as when the defendant “goes to trial to assert and preserve issues
    that do not relate to factual guilt.” Id.; see Perry, 640 F.3d at 814. Given that Monds
    maintained at trial that he was not guilty as a factual matter, the district court ruled
    that it was “compelled to find that he is not entitled” to the two-level reduction.
    Monds argues that he accepted responsibility by submitting to a proffer
    interview before trial and providing details about the charged offense. As it turned
    out, however, the parties did not reach a plea agreement or other pretrial resolution.
    The case proceeded to trial, and Monds denied factual guilt. That he refrained from
    obstructing justice by testifying falsely does not mean that his defense was unrelated
    to factual guilt within the meaning of the guideline commentary. This was not one
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    of the rare situations in which a defendant may receive an adjustment for acceptance
    of responsibility despite putting the government to its burden of proof at trial. Monds
    complains that the district court failed to exercise its discretion when it declared that
    it was “compelled” to deny the adjustment. But the court’s statement simply
    recognized the law: Under the guidelines, a defendant who proceeds to trial and
    presents a defense that denies factual guilt does not clearly demonstrate acceptance
    of responsibility.
    *       *       *
    The judgment of the district court is affirmed.
    ______________________________
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