United States v. Louis Miller, Jr. , 883 F.2d 1540 ( 1989 )

CLARK, Circuit Judge:

Louis Miller was convicted of conspiracy to knowingly distribute cocaine in violation of 21 U.S.C. § 846 and the knowing distribution of cocaine in violation of 21 U.S.C. § 841. Miller was sentenced to fifteen years on each count to run concurrently. He appeals his sentence on several grounds. Since we find that the district court committed reversible error by admitting extrinsic evidence under Federal Rule of Evidence 404(b), we do not address the other issues.

FACTS

On January 7, 1987, Special Agent Regina Bledsoe of the Drug Enforcement Administration (DEA) and a confidential informant contacted Labron Lyons at his mother’s house in order to buy some cocaine. Lyons accommodated them by calling the beeper number of his supplier. Lyons told Agent Bledsoe and the informant that “Louis” would bring the cocaine to him. Agent Bledsoe then waited in her car in the driveway of the house. Several minutes later, a blue Pontiac Grand Am pulled in behind her. After obtaining the money from Agent Bledsoe, Lyons entered the passenger seat of the Grand Am. The car pulled away, drove around the block, and returned and dropped Lyons off. When Lyons returned he had an ounce of cocaine.

Approximately nine months later, Labron Lyons was arrested on unrelated charges and agreed to cooperate with the government. Although the DEA already had an arrest warrant for Miller for the January transaction, the government set up another drug sale between Lyons and Miller. On September 3, 1987, the government directed Lyons to call Miller to set up a cocaine delivery. Lyons called Miller's beeper number and Miller returned the call. That phone conversation was taped. They agreed that Miller would deliver the cocaine to Lyons at his mother’s house. Several minutes later, a blue Monte Carlo arrived at the house. Miller was in the passenger seat and the car was driven by a third man named Nathan Collins. Lyons entered the vehicle and they drove around for three to four minutes. When they returned to the house, Lyons asked Miller to wait until the buyer approved the drugs. Several minutes later Miller was arrested. A search incident to arrest revealed a quantity of cocaine and eight hundred dollars on Miller’s person.

Miller was charged with the January and September transactions in separate indictments. The district court denied defense counsel’s motion to join the two offenses in a single trial. At the trial for the January offense, the government introduced evidence concerning the September transaction. Over defense counsel’s objection, the district court held it admissible under Fed. R.Evid. 404(b). Both Lyons and Special Agent Bledsoe testified as to the events in September. In addition, the tape of the phone call setting up the delivery was played to the jury. Finally, testimony that Miller was carrying cocaine and eight hundred dollars was also admitted. Miller was convicted and this appeal ensued. This appeal concerns only Miller’s conviction for the January offense; Miller’s appeal from his conviction for the September offense is pending in this court.

DISCUSSION

Miller contends that the trial court committed reversible error when it admitted the evidence concerning the September incident under Fed.R.Evid. 404(b). We agree. The admission of evidence under rule 404(b) is entrusted to the sound discretion of the trial judge. On the unique facts presented in this case, the court abused its discretion in admitting the evidence.

Rule 404(b) states:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, plan, knowledge, identity, or absence of mistake or accident.

The rule codifies the “venerable principle that evidence of extrinsic offenses should not be admitted solely to demonstrate the defendant’s bad character.” United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Beechum created a two part test to determine the admissibility of evidence under rule 404(b). First, the evidence must be relevant to an issue other than the defendant’s character. Relevance is determined by the issue to which the extrinsic evidence is addressed.¹ Second, the probative value must not be substantially outweighed by its undue prejudice. Id.; United States v. Dothard, 666 F.2d 498, 501-02 (11th Cir.1982). Consideration of these factors is left to the discretion of the trial court and is only reversible for an abuse of discretion. Beechum, 582 F.2d at 915; United States v. Dorsey, 819 F.2d 1055, 1060 (11th Cir.1987). There is a third requirement as well. As a predicate to relevance, the government must offer sufficient proof so that the jury could find that the defendant committed the act. Beechum, 582 F.2d at 912-13. That requirement was clearly met in this case.

The government argues that the evidence was relevant to modus operandi. It contends that the two transactions were sufficiently similar to demonstrate the defendant’s modus operandi and to corroborate Lyons’ testimony. This argument misconstrues rule 404(b). Not only does it come dangerously close to admitting that the only purpose for introducing the evidence was to prove that the defendant acted in conformity with a bad character, it also implies that the only purpose for organizing the September transaction was to obtain a conviction for the January offense.

The government’s argument misunderstands the modus operandi exception to rule 404(b)’s ban on character evidence. The modus operandi exception does not allow the government to admit evidence of the defendant’s acts to show that he usually did things a certain way. To allow that would be tantamount to allowing proof that the defendant acted in conformity with his bad character. Instead, evidence demonstrating a modus operandi is admissible for a much more limited purpose. In some cases, a modus operandi might constitute circumstantial proof of identity. See C. Wright & K. Graham, 22 Federal Practice & Procedure: Evidence, § 5246, at 513-14 (1978). In such cases, however, “the physical similarity [of the acts] must be such that it marks the offenses as the handiwork of the accused. In other words, the evidence must demonstrate a modus oper-andi.” Beechum, 582 F.2d at 912 n. 15 (citing United States v. Goodwin, 492 F.2d 1141, 1154 (5th Cir.1974)). Indeed, “a much greater degree of similarity between the charged crime and the uncharged crime is required when the other crime is introduced to prove identity than when it is introduced to prove a state of mind.” Id. (quoting United States v. Myers, 550 F.2d 1036, 1045 (5th Cir.1977)).²

In this case, because defense counsel alluded to an alibi defense in his opening statement, identity clearly was at issue. However, for evidence of the September transaction to be admissible to prove identity, the similarity between the two acts must be so great as to show a distinctive modus operandi. The extrinsic evidence fails this part of the Beechum test. It is true that the two incidents shared similarities, Lyons “beeped” his supplier who drove to the house, picked up Lyons and then drove around the block to transact the deal. There were, however, several important differences between the two transactions. In the January transaction, the seller drove a blue Grand Am. In the September transaction, Miller was driven by a third man in a blue Monte Carlo. Thus the only similarities between the two offenses were the use of a beeper and delivery in a car. But since the government orchestrated both acts, these similarities are attributable to the government’s intervention. Moreover, there is no showing that these facts are unique in any way. See, e.g., Beechum, 582 F.2d at 912 n. 15 (if prior act and charged act both involved white heroin which is extremely rare, the act might be distinctive enough to allow admission of the prior offense) (citing United States v. Baldarrama, 566 F.2d 560 (5th Cir.), cert. denied, 439 U.S. 844, 99 S.Ct. 140, 58 L.Ed.2d 145 (1978)). Rather this is a common method of drug trafficking. Since the transactions were not so distinctive as to illustrate a modus operandi, the evidence was not admissible for the purpose of proving identity. See United States v. Lail, 846 F.2d 1299, 1301 (11th Cir.1988) (admission of evidence of bank robbery reversible error when similarities between robbery and charged robberies were common to most bank robberies); Myers, 550 F.2d at 1045 (same).³

We also reject the argument that the evidence was admissible to corroborate Lyons’ testimony. First, corroboration is not one of the purposes of the rule. Neither the rule nor caselaw supports the government’s argument. Second, the testimony at most showed that Lyons bought drugs in this manner; it shed no light on whether he was being truthful that Miller sold him the drugs in January. There is no doubt that the government’s case concerning the January transaction was weak. Although Agent Bledsoe and Special Agent John Harvey, who was maintaining surveillance of the car, identified the driver as Miller, neither had a good view of the suspect. Agent Bledsoe only saw him briefly through her rearview mirror and Agent Harvey stayed fifty to sixty feet from the car when he was following it and only got one glimpse of the driver’s face. In addition, the car was not under continuous surveillance. Therefore the government’s case relied solely on Lyons. As the government concedes, Lyons was far from a good witness. He had been convicted of cocaine trafficking previously and had a history of drug use. Moreover, he agreed to cooperate in return for the dismissal of the substantive count and the government’s agreement not to prosecute him on other unrelated drug charges. Thus while the government had a legitimate desire to corroborate Lyons’ testimony, this evidence does not do so.

The government also argues on appeal that the evidence is admissible to prove Miller’s intent. Although the government did not advance this justification at the trial level, we note that the district court’s jury instructions contained the pattern jury charge for when extrinsic evidence is introduced to prove intent.⁴ We therefore consider whether the September transaction was properly admissible to prove the defendant’s intent.

The September transaction is clearly relevant to intent because it required the same state of mind as the charged offenses. Beechum, 582 F.2d at 911. However, that is only the first step in the Beechum analysis. We must also consider whether the probative value of the evidence is not substantially outweighed by the prejudice. This balancing requires a “commonsense assessment of all the circumstances surrounding the extrinsic offense.” Id. at 914. In determining the probative value of the evidence, the court must consider the strength of the government’s case, whether the issue of intent was contested, the similarity between the charged and extrinsic offenses, and the remoteness of time separating the two acts. Id. at 915; see Dorsey, 819 F.2d at 1060; United States v. Parr, 716 F.2d 796, 805 (11th Cir.1983); United States v. Mitchell, 666 F.2d 1385, 1390 (11th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1340 (1982). These factors are weighed against the danger “that the jury may convict the defendant not for the offense charged but for the extrinsic offense.” Beechum, 582 F.2d at 914. The weighing of these factors is entrusted to the discretion of the trial judge. Id. Applying these factors to the case at hand, we find that the district court abused its discretion in finding that the probative value of the evidence was not outweighed by the prejudice.

Intent was at issue in the case because of Miller’s plea of not guilty. United States v. Elliott, 849 F.2d 554, 558-59 (11th Cir.1988); United States v. Nahoom, 791 F.2d 841, 845 (11th Cir.1986). When the issue dominates the case, the probity of the evidence is apparent. Dorsey, 819 F.2d at 1060. On the other hand, when the government has a strong case on intent, the extrinsic offense adds little and therefore is readily excludable. Beechum, 582 F.2d at 914; see Parr, 716 F.2d at 805 (when government presented a “substantial but not overwhelming case on intent,” additional evidence was not unnecessary).⁵ In this case the government’s case mainly turned on identity not intent.

There are significant factors decreasing the probative value of the extrinsic evidence and increasing the potential for undue prejudice. This extrinsic evidence concerned an act which the government planned and executed approximately nine months after the charged offense. The fact that the act occurred approximately nine months after the charged offense does not render it automatically inadmissible. The remoteness of time, however, may decrease the probative value of extrinsic evidence. Compare United States v. Jimenez, 613 F.2d 1373, 1376 (5th Cir.1980) (one year lapse between charged offense — possession of heroin — and subsequent extrinsic act — possession of cocaine — deprived extrinsic act of any relevance which was not outweighed by prejudice) with United States v. Terebecki, 692 F.2d 1345, 1349 (11th Cir.1982) (fifteen months between extrinsic act and charged act which were similar fraudulent business transactions did not deprive extrinsic act of relevance). The effect of the remoteness of time on the admissibility of the extrinsic evidence depends in part on the similarity between the offenses. As noted above, the only similarity between the transactions was that they involved a similar means of delivering cocaine. But since the government set up the entire September transaction specifically to build a case against Miller, the similarity between these acts is attributable to the government’s intervention and the probative value of the September transaction is lessened considerably.

Moreover, the possibility of prejudice is greatly increased because of the government’s role in creating and executing the September transaction. Although intent was at issue, the key issue at trial was the identity of the supplier in the January transaction. Before the jury could consider the evidence of the September transaction as relevant to the intent of the defendant, it had to find that Miller had committed the January offense. As pointed out above, the government had a weak case on the identity of the January transaction but an almost airtight case against Miller for the September transaction. It is possible that the jury considered the evidence of the September transaction to establish that Miller had committed the January offense. This is especially true since more evidence was admitted relating to the September transaction than the charged offense. In addition, the AUSA asked the jury to consider the evidence as relevant to identifying Miller as the supplier in the January offense.⁶ The possibility of prejudice therefore was overwhelming.

We recognize that the judge instructed the jury that it should only consider the extrinsic evidence as relevant to intent. We conclude, however, on the unique facts of this case, that these instructions were not sufficient to cure the tremendous potential for prejudice. First, we note that the trial court gave these instructions during jury instructions; no limiting instructions were given when the evidence was introduced. Moreover, the AUSA argued that the evidence had been admitted to prove identity and to corroborate Lyons’ identification of Miller and structured her case accordingly.⁷ Finally, this is not a case in which the 404(b) material was just one part of the government’s case. It was the entire case. Since the government’s case with respect to the January transaction was weak, the government focused its efforts on proving the September transaction. We think it clear that the amount of evidence introduced with respect to the September transaction as compared to the charged offense dramatically increased the possibility that the jury convicted the defendant of the September offense rather than the January offense. See Parr, 716 F.2d at 805 (fact that prosecutor did not emphasize extrinsic evidence important to determination that prejudice did not outweigh probative value).⁸

We recognize that the weighing of the probative value and prejudicial impact of such evidence is entrusted to the sound discretion of the trial judge. We do not take the prospect of overturning such a discretionary decision lightly. However, in this case, we think the district court abused its discretion by failing to consider the circumstances behind the extrinsic act. The fact that the extrinsic event was orchestrated by the government nine months after the charged offense decreases the probative value of the evidence and dramatically increases the possibility of prejudice.⁹ On the unique facts of this case and especially in light of the fact that the government’s case largely relied on proof that the defendant committed the September transaction, the probative value of the evidence is substantially outweighed by the prejudice. As such, it was an abuse of discretion for the district court to admit the evidence of the September transaction. We therefore reverse the defendant’s conviction.

REVERSED.

1 . Noticeably absent from the dissent is any citation to Beechum. This absence explains why the dissent contends that the law of this circuit is that extrinsic evidence is admissible if it corresponds to the charged offense in "important particulars.” Infra at 1549. The dissent does not acknowledge that Beechum held that “similarity and hence relevancy, is determined by the inquiry or issue to which the extrinsic offense is addressed.” 582 F.2d at 911. Indeed, the case cited for the dissent’s proposition, United States v. Alston, 460 F.2d 48, 55 (5th Cir.), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972), was decided before Beec-hum (indeed it was even decided before the Federal Rules of Evidence were adopted. Pub.L. No. 93-595, 88 Stat. 1926 (1974)). Once this flaw in the dissent’s analysis is recognized, it is clear that the September transaction was not admissible to prove identity.

2 . The flaw in the dissent’s argument is its belief that similarity rather than uniqueness is the predicate for admissibility of extrinsic evidence to prove “identity, method of operations, intent, or anything other than bad character[.]" Infra at 1549. The caselaw establishes that uniqueness rather than similarity is the touchstone of admissibility of extrinsic acts to prove identity because of the danger that the jury will consider the extrinsic acts solely as proof of propensity. As Weinstein explains

There are many instances when details of the crime show an individuality that, if repeated, are highly probative of the conclusion that they were committed by the same person.... Proof of the commission of the same type of crime is not sufficient on this theory unless the particular modus operandi is analyzed. A defendant cannot be identified as the perpetrator of the charged act simply because he has at other times committed the same commonplace variety of criminal acts except by reference to the forbidden inference of propensity. The question for the court is whether the characteristics relied upon are sufficiently idiosyncratic to permit an inference of pattern for purposes of proof.

J. Weinstein & M. Berger, 2 Weinstein's Evidence, ¶ 404[16], at 128-29. There was absolutely no showing in this case that the two transactions were "idiosyncratic.”

3 . This conclusion does not conflict with the holding of a recent panel of this court in United States v. Stubbins, 877 F.2d 42, 44 (11th Cir.1989). In Stubbins, the government introduced testimony that the defendant had attempted to sell "crack” cocaine at a certain address on an occasion prior to the incident for which the defendant was being tried. Id. at 43. The district court held that the evidence was admissible to prove identity because the fact that the offenses were perpetrated at the same place made it distinctive. The panel, however, held the evidence admissible because it helped to explain why the police officer knew that the first address written in its report was incorrect. Id. at 44. The error in the police report had been repeatedly highlighted during cross-examination. Id. at 43. In Stubbins, therefore the evidence was not used as circumstantial evidence to prove identity; it was used as direct evidence to explain the police officer's identification of the dwelling. See generally, 2 Weinstein's Evidence, ¶ 404[15], at 114-15 (discussing use of extrinsic evidence as direct evidence of identity); 22 Federal Practice & Procedure: Evidence, § 5246, at 1515 (same).

4 . The jury instructions stated:

Now, during the course of the trial, you know from the evidence that came in, you heard that at a time other than the time charged in the indictment in this case the defendant committed acts similar to the acts charged here. You may consider such evidence not to prove that the defendant did the facts charged in this case but only to prove the defendant’s state of mind or plan, that is that the defendant acted as charged in this case with the necessary intent and not through accident or mistake.

Therefore, if you find that the government has proved beyond a reasonable doubt that the defendant did, in fact, commit the acts charged in the indictment and that the defendant also committed similar acts at other times, then, you may consider those other acts in deciding whether the defendant committed the acts charged here willfully and not through accident or mistake.

Record, Vol. 2, at 186.

5 . The dissent contends that the evidence of the January transaction was "substantial, perhaps overwhelming,” infra at 1548. This argument, however, cuts against the government's position in this case. The strength of the government’s case is an important factor in determining the probative value of the extrinsic evidence. Extrinsic evidence is only relevant if it has a tendency to prove a fact that is at issue; thus, if the government’s case is strong, there is no need for the evidence. Beechum, 582 F.2d at 915 (“Probity in this context is not an absolute; its value must be determined with regard to the extent to which the defendant's unlawful intent is established by other evidence, stipulation, or inference. It is the incremental probity of the evidence that is to be balanced against its potential for undue prejudice.’’) (emphasis added). If the evidence was as overwhelming as the dissent contends, there was no need for the government to use the evidence of the September transaction at trial. The fact that the government relied so heavily on the evidence of the September transaction to convict the defendant of the January sale, therefore, reflects the weakness of the government’s case.

6 . During rebuttal argument, AUSA Stewart stated

Although he is not charged with an offense occurring in September, it is appropriate for you to look at that. Consider it in terms of the modus operandi, how it shows intent, how it shows doing the same thing again, how it helps to identify that the person who got the cocaine on the 7th was, indeed, Mr. Miller, who arrived in September and the deal was done virtually in the identical manner. Mr. Lyons calls up, orders it up, they get in the car, they drive around, he gets the cocaine in the car, he comes back, he delivers it to the agent, and then in September there's an arrest, and Mr. Miller is arrested with the cocaine.

Record, Vol. 2, at 174.

7 . During closing argument, AUSA Stewart told the jury that it should believe Lyons' testimony because of the September transaction. She said:

... I submit to you that the best way in which Mr. Lyons' testimony that the cocaine came from Mr. Miller is corroborated is from the other actions of Mr. Miller himself. From January to September, you heard the tape, both Agent Bledsoe who had listened to Mr. Miller talk before, and Mr. Lyons, who had obviously talked to Mr. Miller before on several occasions, said that was his voice on the tape. What were they talking about? Ordering up some cocaine.

... And where did they meet? At Labron Lyons' mamma’s house over on Avon Avenue, the place the first deal was. How does the deal take place? The same way the first deal took place. Car drives up. This time he’s not alone; he’s got somebody with him. Labron hops in the car. They drive around the area. They come back. Labron has got two ounces of cocaine that he did not have when he got into that car....

The arrest signal was given. Mr. Lyons and Agent Bledsoe are arrested, too, to make it look like Mr. Miller is arrested. And what does Agent Dolan find on his person? Another package of cocaine stuffed down in the sock.

Ladies and Gentlemen, I submit to you that corroborates and reinforces exactly what La-bron Lyons said happened the first day. Why? It happened the second day, too, and he was arrested at the scene the second day.

Record, Vol. 2, at 158-59.

8 . Implicit in our holding is a determination that the error in admitting the extrinsic evidence was not harmless. The dissent faults us for impermissibly evaluating the credibility of the witnesses. The dissent misunderstands the role of this court in determining the harmlessness of a trial court’s error. An error is only harmless if "the error had no substantial influence on the verdict and there was sufficient evidence to support the verdict apart from the error. United States v. Martinez, 700 F.2d 1358, 1367 (11th Cir.1983); United States v. Heller, 625 F.2d 594, 599 (5th Cir.1980) (error harmless "if reviewing court is sure, after viewing the entire record, that the error did not influence the jury or had a very slight effect on its verdict.”) Because the September transaction was the linchpin of the government’s case on identity, we cannot say that the extrinsic act did not affect the jury’s verdict. The dissent's contrary conclusion relies on pure speculation. See infra, at 1549 ("the jury may well have found believable [Lyons’] testimony of the events of January 7, 1987.”)

9 . We do not mean to suggest that the government may not use a cooperating individual to build a case against a suspected drug dealer or that the government is required to charge separate acts in a single indictment. The problem in this case is that the government used the second act, for which it had an airtight case, to prove that the defendant committed a similar offense several months earlier. While in some cases, it may be appropriate for the government to introduce extrinsic evidence of subsequent acts, in this case, the probative value of the evidence was substantially outweighed by the potential for undue prejudice.