United States v. Kelley

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 6, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-5040
v. (N.D. Oklahoma)
B OBBY D A LE K ELLEY ,
(D.C. No. 03-CR-154-HDC)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, HOL LOW A Y, and LUCERO, Circuit Judges.
On December 9, 2004, a jury convicted Bobby Dale K elley of conspiracy to
manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii), and 846. In light of his two previous felony drug convictions,
the district court sentenced him to life imprisonment. On appeal, M r. Kelley
challenges (1) the district court’s treatment of the jury’s note indicating it was
deadlocked, (2) the sufficiency of evidence supporting his conviction, and the
admission at trial (3) of evidence of a subsequent criminal conviction and (4)
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
certain rebuttal testimony. W e exercise jurisdiction under 28 U.S.C. § 1291 and
affirm.
I. BACKGROUND
In July 2002, police officers initiated a drug investigation connected to
Kristopher Covey. Officers later obtained a warrant to search for firearms and
ammunition at M r. Covey’s residence in Claremore, Oklahoma. Two houses w ere
located on the property to be searched: a smaller H ouse A and a larger H ouse B.
Police obtained a search warrant only for M r. Covey’s residence, House B. The
warrant did not mention M r. K elley.
On the evening of September 9, 2002, Claremore Police Officer John
Singer and members of the Tw elfth District Drug Task Force executed the search
warrant at House B. Inside the home, police found firearms, surveillance
equipment, and evidence of methamphetamine m anufacture and distribution. In
the living room, officers found several items used to manufacture
methamphetamine, including reagents, solvents, liquid iodine, peroxide, starting
fluid, and plastic gloves. Rec. vol. III, at 36, 38. In the southeast bedroom,
Officer Singer found two guns, methamphetamine residue, cold medicine
containing pseudoephedrine, and precursors and reagents used to manufacture
methamphetamine. Id. at 36-37. In the northeast bedroom, officers discovered a
glass pipe used to smoke methamphetamine, a picture of M r. Kelley inside H ouse
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A, a television monitor connected to a surveillance system, a letter addressed to
M r. K elley, and a bolt-action rifle without any bullets. Id. at 41-45; Rec. vol. IV ,
at 96-97. Police also came across a schoolbook and a few items of clothing in the
northwest bedroom, indicating that M r. Kelley’s daughter had lived there. Rec.
vol. III, at 46.
Prior to the search, Officer Singer had talked to Don Charles, who owned
the property on which both houses were located. M r. Charles gave police
permission to search the metal horse barn located betw een Houses A and B.
D uring the September 9 search, officers searched the barn and discovered two
plastic tack boxes emanating an odor. Officers believed these boxes had been
used to manufacture methamphetamine. M r. Charles did not own the boxes. That
evening, officers obtained an additional search warrant for the boxes and
subsequently found “a complete, large-scale methamphetamine production
laboratory” inside the boxes. Id. at 49. Items in the boxes included red
phosphorus, a flask, pH papers, iodine, sodium hydroxide, drain cleaner, solvents,
rubber tubing, and an electric hot plate. Id. at 49-57.
Following the evening search on September 9, officers waited in the dark
for someone to return to House B. M r. Covey arrived at the residence shortly
after midnight and was taken into custody. He waived his M iranda rights and
spoke to police. M r. Covey stated that M r. Kelley was on his way to the
residence with ephedrine to manufacture methamphetamine. Phone records
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confirm ed that the tw o men had talked at 11:57 p.m. that evening. Rec. vol. IV,
at 83-84, 163. Officers remained at the property until 3 a.m., but M r. Kelley did
not show up. M r. Kelley was eventually arrested for a warrant in Florida on July
30, 2003.
A superceding indictment charged M r. Kelley with conspiracy to
manufacture at least 500 grams of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(viii), and 846. Before trial, the government notified
M r. Kelley of its intent to use two prior felony drug convictions to enhance his
sentence: (1) unlawful possession of a controlled drug (October 1997); and (2)
unlaw ful possession of a controlled dangerous substance with intent to distribute
(February 1998). The government also informed M r. Kelley before trial that it
would introduce evidence of his subsequent methamphetamine conviction in
Florida. The parties stipulated that M r. Kelley was convicted on September 11,
2003 of felony methamphetamine possession. The district court admitted the
evidence and gave a limiting instruction to the jury.
At M r. Kelley’s trial in December 2004, M r. Covey provided extensive
testimony about manufacturing methamphetamine with M r. Kelley and another
individual named M ike Helton. 1 In April 2002, M r. Helton brought M r. Kelley
1
At M r. Kelley’s trial, M r. Covey stated that he had pleaded guilty to felony
possession of a firearm in furtherance of a drug trafficking crime, and he was
testifying in order to cooperate with the government. Rec. vol. IV, at 132.
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over to House B and taught M r. Covey how to cook methamphetamine. Rec. vol.
IV, at 135-36. M r. Covey testified that during this first meeting M r. Helton “was
in control” and M r. Kelley “pretty much just helped him out.” Id. at 137. On the
first night together, they manufactured approximately 100 grams of
methamphetamine and divided it into three portions. Id. at 139. M r. Covey
estimated that the three men subsequently had cooked methamphetamine 15 to 20
times together, producing 60 to 90 grams each time. Id. at 142, 145. Each time,
they equally divided the cooked methamphetamine betw een them. Id. at 145-46.
M r. Covey testified that M r. Kelley and he manufactured methamphetamine
without M r. Helton approximately five times, also producing 60 to 90 grams each
time and equally dividing the product. Id. at 142, 145-46. The cooking was
always done at the Claremore residence, and each of the three men contributed
necessary manufacturing items when they cooked together. Id. at 144. At some
point, M r. Covey and M r. Kelley began cooking without M r. Helton because he
had stopped bringing ingredients. Id. at 151-52. M r. Covey stated that he had
kept equipment used to cook methamphetamine in two boxes in a metal horse
barn. Id. at 161-62.
M r. Covey also testified that, in mid-July 2002, M r. Kelley moved in with
him at House A. The two men moved into House B in August 2002. In House B,
M r. Covey stayed in the southeast bedroom and M r. Kelley stayed in the northeast
bedroom. Id. at 149. W hile M r. Kelley stayed at House B, his girlfriend and
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daughter also stayed there.
M r. Charles, owner of the two rental houses and the barn, testified that he
had rented House A to M r. Covey during the summer of 2002. In August 2002,
M r. Covey moved into the larger of the houses, and an individual named “Uncle
Bobby” lived with him. Id. at 190-91. M r. Charles occasionally saw “Uncle
Bobby” when he visited the property, and he identified after the search a
photograph of M r. Kelley as the man w ho lived with M r. Covey and had been
called “Uncle Bobby.” Id. at 77-78.
M r. Kelley called five witnesses in his defense, and he elected not to testify
during trial. His brother, Bryan Kelley, testified that he visited the Claremore
residence in late August 2002 to pick up his brother’s and niece’s belongings
because M r. Kelley had moved to Tahlequah and his daughter had moved to
Coweta. Rec. vol. IV, at 205-08. David Kelley, the defendant’s father, stated at
trial that his son lived with him in Coweta until early August 2002 and then
moved to Claremore. Id. at 256-57, 259. M r. Kelley later moved to the family’s
Tahlequah farm during Labor D ay weekend in 2002. Id. at 259. Ben Clavet
testified that M r. Kelley was at the Tahlequah farm from early September through
November of 2002. Id. at 254-55.
As rebuttal evidence, the government offered testimony of Gayla Eldridge,
M r. Kelley’s former girlfriend. M r. Kelley objected to the introduction of her
rebuttal testimony, but the court overruled the objection. M s. Eldridge testified
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that M r. Kelley and she started living at M r. Covey’s residence in late July 2002,
and M r. C ovey and M r. K elley cooked methamphetamine there. Id. at 298, 301,
303.
After hearing testimony for three days, the jury began deliberations on the
afternoon of December 8, 2004. The next day, the jury continued deliberations
but M r. K elley’s counsel, Jack Gordon, had to leave for a family emergency.
Robert Ridenour, an Assistant Federal Public Defender, replaced M r. Gordon and
represented M r. Kelley during the remaining jury deliberations. M r. Kelley
agreed to the situation, and M r. G ordon remained available by cell phone.
At 4:20 p.m. on December 9, the jury informed the court that it could not
reach a verdict. The court read the note to counsel and stated “I propose to let
them stay in there until about a quarter till 5:00, and then I propose to call them
into the courtroom . . . and give them . . . a modified Allen charge.” Rec. vol. V ,
at 394. After further discussion with counsel, the district court stated:
W ell, it seems to . . . me we ought to give this Allen charge. W ait until
about a quarter of 5:00, give this, [and] send them home. And this is
one that you give at the end of the day. The other Allen charge is you
send them immediately back to consider, but because it’s this time I
think this probably is more appropriate.
Id. at 400. The court allowed M r. Ridenour to contact M r. Gordon by cell phone
to discuss how to proceed. In the meantime, at 4:36 p.m. the jury sent another
note, indicating it had reached a verdict. The jury announced the verdict at 4:45
p.m. It found M r. Kelley guilty of conspiracy to manufacture 500 grams or more
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of methamphetamine.
On M arch 17, 2005, the district court sentenced M r. Kelley to mandatory
life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(viii) (“[A]fter two or more prior
convictions for a felony drug offense have become final, such person shall be
sentenced to a mandatory term of life imprisonment without release.”).
M r. Kelley timely appeals the judgment and sentence on four separate
grounds. He maintains (1) the district court’s failure to inquire promptly into the
deadlocked jury’s note at 4:20 p.m. led to a coerced verdict; (2) the government
failed to present sufficient evidence to convict him of the conspiracy; (3) the
court improperly allowed the government to offer evidence of his 2003 conviction
for methamphetamine possession; and (4) the court abused its discretion when it
allowed M s. Eldridge to testify as a rebuttal witness for the government. W e
separately examine each challenge below.
II. D ISC USSIO N
A. Challenge to the court’s treatment of the deadlocked jury’s note
The Supreme Court approved of a supplemental jury instruction to a
deadlocked jury in Allen v. United States, 164 U.S. 492, 501-02 (1896). Courts
have subsequently given Allen or “dynamite” charges “to encourage unanimity
(without infringement upon the conscientious views of each individual juror) by
urging each juror to review and reconsider the evidence in light of the views
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expressed by other jurors.” United States v. Smith, 857 F.2d 682, 683-84 (10th
Cir. 1988).
W e generally review a district court’s decision to give an Allen charge for
an abuse of discretion. United States v. Reed, 61 F.3d 803, 805 (10th Cir. 1995).
However, because M r. Kelley did not object below to the district court’s failure to
give an Allen charge, we review this issue for plain error. See United States v.
Olano, 507 U.S. 725, 732 (1993). To establish plain error, a defendant must show
(1) an error (2) that is plain, (3) affects substantial rights, and (4) seriously affects
the fairness, integrity, or public reputation of judicial proceedings. United States
v. Gonzalez-Huerta, 403 F.3d 727, 732-33 (10th Cir. 2005) (en banc).
M r. Kelley contends that the district court should have immediately
questioned the deadlocked jury, and this failure to make a proper inquiry of the
jurors caused a potentially coerced verdict because the jury had no guidance from
the court. W e reject these arguments and conclude the court’s treatment of the
jury’s note was not plain error. “[A] court is not required to accept the judgment
of a jury that is hopelessly deadlocked, and may require it to continue
deliberating.” Gilbert v. M ullin, 302 F.3d 1166, 1174 (10th Cir. 2002) (internal
quotation marks omitted). The note at 4:20 p.m. did not compel the court to issue
an Allen charge or to declare a mistrial immediately, and the court did not abuse
its discretion when it proposed to allow the jury 25 minutes of additional
deliberation while M r. Ridenour contacted M r. Gordon. Even if we construe the
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court’s response–not to advise the jury until 4:45 p.m.–as an implicit instruction
to continue deliberations, the jury was never tainted with an impermissibly
coercive charge that suggested a particular outcome.
M oreover, we can distinguish the facts here from M r. Kelley’s principal
authority for his argument that the court should have promptly examined the jury
and delivered an Allen charge. In United States v. M ejia, 356 F.3d 470, 473 (2d
Cir. 2004), a jury deadlocked 11 to 1 indicated to the district court at 2:10 p.m.
that it could not reach agreement. W ithout consulting counsel for the parties, the
court sent to the jury a copy of one page of the jury instructions. The court
highlighted the following sentences from the jury instructions: “Do not specify
what the verdict is in the note. . . . If you are divided do not report on how the
vote stands, and if you have reached a verdict, do not report what it is until you
are asked in open court.” Id. The court did not provide further guidance or an
Allen charge. At 3:00 p.m., the jury reached a verdict.
The Second Circuit acknowledged that the court’s failure to respond
directly to the deadlocked message “deprived [the jury] of necessary guidance.”
Id. at 477. In vacating the verdict, however, the circuit focused almost
exclusively on the prejudicial nature of the judge’s ex parte response and the
defense counsel’s inability to request an Allen charge after the deadlocked jury’s
note. Id. The Second Circuit characterized the court’s ex parte response as
“inappropriate, substantially erroneous and prejudicial” to the defendant, and of
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particular concern was “the short span of time between the [court’s ex parte]
response and the verdict.” Id.Here, the district court similarly did not respond to the deadlocked jury
with immediate advice. An important distinction, though, is that the court here
did not communicate ex parte with the jury. It instead informed both parties of
the jury’s note from 4:20 p.m. and proposed to counsel an additional 25 minutes
of jury deliberations. The court also provided time for M r. Ridenour to contact
M r. Gordon to discuss the proposed Allen charge. Sixteen minutes later, the jury
reached its verdict. Such treatment of the jury’s note is not plain error.
B. Challenge to the sufficiency of the evidence
M r. Kelley moved for a judgment of acquittal at the end of the
government’s case, challenging the sufficiency of the evidence under Fed. R. Civ.
P. 29(a). The district court denied the motion. M r. Kelley did not renew the
motion at the conclusion of all the evidence, but he now raises the issue on
appeal. “[I]f no motion for acquittal is made at the close of all evidence, we
nevertheless review [a challenge to the sufficiency of the evidence on appeal] for
plain error under Fed. R. Crim. P. 52(b).” United States v. Bowie, 892 F.2d 1494,
1496 (10th Cir. 1990). For challenges to the sufficiency of evidence, however,
the plain-error standard is “essentially the same as if there had been a timely
motion for acquittal.” Id. at 1497. In both circumstances, we engage in “an
independent review of the legal question of sufficiency.” Id. (quotation marks
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omitted). Therefore, even though we review the issue for plain error, we still
determine “whether, taking the evidence–both direct and circumstantial, together
with reasonable inferences to be drawn therefrom–in the light most favorable to
the government, a reasonable jury could find [the] [d]efendant guilty beyond a
reasonable doubt.” United States v. Bass, 411 F.3d 1198, 1201 (10th Cir. 2005),
cert. denied, 126 S. Ct. 1106 (2006). “W e do not weigh conflicting evidence or
evaluate witness credibility; these are the exclusive province of the jury.” United
States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005).
“Under 21 U.S.C. § 846, the Government must prove beyond a reasonable
doubt: (1) an agreement with another person to violate the law, (2) knowledge of
the essential objectives of the conspiracy, (3) knowing and voluntary
involvement, and (4) interdependence among the alleged conspirators.” United
States v. Delgado-Uribe, 363 F.3d 1077, 1083 (10th Cir. 2004). “A jury may
infer guilt from the surrounding circumstances and presume that a defendant
acting in furtherance of a conspiracy is a knowing participant therein. An
agreement may be inferred from circumstantial evidence that indicates concerted
action.” Id. To be reasonable, however, the inference of an agreement must be
more than mere speculation and conjecture. See U nited States v. Jones, 44 F.3d
860, 865 (10th Cir. 1995).
M r. Kelley primarily contends that the government did not present
sufficient evidence that a conspiracy was established to manufacture at least 500
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grams of methamphetamine. He maintains that evidence only showed a suspicion
that he conspired to manufacture the charged amount. In a conspiracy, “the
critical inquiry is whether the circumstances, acts, and conduct of the parties are
of such a character that the minds of reasonable men may conclude therefrom that
an unlawful agreement exists.” United States v. M orehead, 959 F.2d 1489, 1500
(10th Cir. 1992) (internal quotation marks omitted). Because “direct evidence of
a conspiracy is often hard to come by[,] . . . conspiracy convictions may be based
on circumstantial evidence, and the jury may infer conspiracy from the
defendants’ conduct and other circumstantial evidence indicating coordination
and concert of action.” Dazey, 403 F.3d at 1159.
View ed in the light most favorable to the government, the evidence is
sufficient to support the jury’s conviction. Although no government witness
testified about an express agreement between M r. Kelly and M r. Covey or M r.
Helton to manufacture at least 500 grams of methamphetamine, the prosecution
presented ample evidence to allow the jury to infer reasonably that such an
agreement existed. M r. Covey testified that (1) M r. Kelley and he had cooked 60
to 90 grams of methamphetamine approximately five times, and (2) those two
men and M r. Helton had cooked 60 to 90 grams of methamphetamine an estimated
15 to 20 times. Rec. vol. IV, at 142, 145-46. M r. Kelley contributed items such
as ephedrine and iodine when the three men cooked methamphetamine. Id. at
144. The jury also could have believed M r. Covey’s testimony that, when he was
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taken into custody on the night of the search, M r. Kelley was returning to the
Claremore residence with ephedrine to manufacture methamphetamine. Id. at
163.
Further, the jury could have inferred from the evidence that M r. Kelley had
lived at M r. Covey’s residence where the methamphetamine laboratory was
located. Inside House B, officers found numerous items used to manufacture
methamphetamine, along with guns and a surveillance system. M r. Covey
testified that M r. Kelley had stayed in the southeast bedroom, where officers had
discovered two guns, cold medicine containing pseudoephedrine, and several
precursors and reagents used to cook methamphetamine. Rec. vol. III, at 36-37.
M r. Charles, the owner of the rental property, had seen M r. Kelley at the property
occasionally, and M r. Covey had told him that M r. Kelley lived with him. Rec.
vol. IV, at 190-91. Although “[m]ere presence at the scene of a crime does not,
by itself, prove involvement in an existing conspiracy, . . . [it] is a material
factor.” United States v. Hamlin, 986 F.2d 384, 386 (10th Cir. 1993) (internal
quotation marks omitted).
In light of the trial testimony and physical evidence found during the
search, a jury could have reasonably inferred that M r. Kelley conspired to
manufacture at least 500 grams of methamphetamine.
C. Challenge to the admission of evidence of a 2003 drug conviction
Before trial the government filed a notice of intent to offer evidence of M r.
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Kelley’s 2003 conviction for felony possession of methamphetamine. The
government wanted to introduce the evidence in its case-in-chief under Fed. R.
Evid. 404(b) to “prove that [M r.] Kelley was a user of methamphetamine who had
knowledge of methamphetamine, as well as motive, intent, and a plan to
manufacture methamphetamine, in part, to support his habit of use.” Rec. vol. I,
doc. 20, at 2. Rule 404(b) prohibits the admission “of other crimes, wrongs, or
acts . . . to prove the character of a person in order to show action in conformity
therewith.” F ED . R. E VID . 404(b). Such evidence “may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id.M r. Kelley filed a motion in limine to preclude admission of the evidence
of his conviction, arguing that his unrelated conviction for personal-use
possession of methamphetamine did not tend to prove his guilt for the charged
conspiracy offense. The district court denied the motion during a pre-trial
conference. The parties later stipulated at trial that M r. Kelley had pleaded guilty
on September 11, 2003 to felony possession of methamphetamine in Florida.
Soon after announcing the stipulation, the court provided a limiting instruction to
the jury. It stated that evidence of the 2003 conviction “should be considered by
you solely for limited purposes and considered only as it may assist you in
making a determination as to motive, knowledge, intent, or absence of mistake
when you consider the conduct and actions of the defendant. It is not proof of the
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crime charged itself in the indictment.” Rec. vol. IV, at 202-03. Before entering
into the stipulation, M r. Kelley’s counsel noted that he had “argued a motion in
limine and argued that [evidence of the 2003 conviction] should not be admitted,
and the Court [had] overruled that motion.” Id. at 202.
On appeal, M r. Kelley maintains that the court abused its discretion by
admitting evidence of the earlier crime. The government argues that M r. Kelley
did not renew his objection at trial and we should review the evidentiary ruling
only for plain error. “Generally, a pretrial motion in limine will not preserve an
objection if the objection is not renewed at the time the evidence is introduced.”
United States v. Nichols, 169 F.3d 1255, 1264 (10th Cir. 1999). “[A]n exception
to this rule . . . applies only where the issue (1) is fairly presented to the district
court, (2) is the type of issue that can be finally decided in a pretrial hearing, and
(3) is ruled upon without equivocation by the trial judge.” Id. (internal quotation
marks omitted).
Regarding the first factor, the parties here adequately presented the matter
to the district court. The government filed its notice of intent to offer the Rule
404(b) evidence, and M r. K elley responded with a motion in limine to exclude it.
Second, the decision to admit the evidence “is of the type that can be finally
decided in a pretrial hearing,” as the court decided it was not a “very fact-bound
determination[] dependent upon the character of the evidence introduced at trial.”
United States v. M ejia-Alarcon, 995 F.2d 982, 987 (10th Cir. 1993). Finally, the
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court’s minute sheet indicates that it definitively denied M r. Kelley’s motion in
limine during a pre-trial conference prior to jury selection. Cf. M cEwen v. City of
Norman, 926 F.2d 1539, 1543-44 (10th Cir. 1991) (concluding that a plaintiff
needed to renew an objection at trial where the court had expressly reserved
ruling on a motion in limine until trial). Because all elements of the exception
are satisfied, M r. K elley did not need to renew at trial his objection. W e
consequently review the court’s evidentiary ruling for an abuse of discretion.
United States v. Wenger, 427 F.3d 840, 855 (10th Cir. 2005).
In assessing a challenge to the admission of 404(b) evidence, we determine
whether “(1) the evidence was offered for a proper purpose; (2) the evidence was
relevant; (3) the trial court determined under Fed. R. Evid. 403 that the probative
value of the evidence was not substantially outweighed by its potential for unfair
prejudice; and (4) the trial court gave the jury proper limiting instructions upon
request.” Id. (referencing Huddleston v. United States, 485 U.S. 681, 691-92
(1988)). Though the 2003 conviction occurred after the charged conspiracy
offense, our evaluation under Huddleston is the same. United States v. M ares,
441 F.3d 1152, 1157 (10th Cir. 2006); see also United States v. Anifowoshe, 307
F.3d 643, 646-47 (7th Cir. 2002) (“[B]y its very terms, 404(b) does not
distinguish between ‘prior’ and ‘subsequent’ acts.”).
1. Purpose
W e begin with the first Huddleston factor–whether the evidence was
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offered for a proper purpose. Here, the government sought admission of the 2003
conviction to show M r. Kelley’s knowledge of the methamphetamine, his intent to
enter into a conspiracy to manufacture the drug, and his motive, which the
government maintains was “in part[] to support his habit of use.” Rec. doc. 20, at
2. As a general rule, to prove intent in conspiracy cases, the government may
offer evidence of similar relevant acts; it need not await the defendant’s denial of
intent. See United States v. Harrison, 942 F.2d 751, 760 (10th Cir. 1991); see
also United States v. Youts, 229 F.3d 1312, 1319 (10th Cir. 2000) (approving the
admission of evidence of a prior bad act under Fed. R. Evid. 404(b) to prove
intent in a 18 U.S.C. § 1992 prosecution for w recking a train).
Although our court has not addressed the precise issue here–whether a
subsequent conviction for drug possession in an amount consistent with personal
use could be introduced against a defendant charged in a conspiracy to
manufacture the same drug–we have generally “allow[ed] the introduction of
prior drug transactions to prove intent, knowledge, motive, and absence of
mistake in drug prosecutions.” United States v. Russell, 109 F.3d 1503, 1507
(10th Cir. 1997) (emphasis added). In our view, a subsequent conviction may be
introduced for that same purpose. See Mares, 441 F.3d at 1157 (stating that
“[s]ubsequent acts evidence is particularly relevant when a defendant’s intent is at
issue”).
Case law from other circuits supports this conclusion. In United States v.
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Davidson, 195 F.3d 402, 408 (8th Cir. 1999), a defendant charged with conspiracy
to manufacture methamphetamine tried to exclude evidence at trial of his recent
conviction for possession of methamphetamine. The circuit concluded that
“[e]vidence of a defendant’s prior possession of drugs in amounts consistent with
personal use is admissible to show [his] knowledge and intent when intent is an
element of the offense charged. This evidence is admissible even if the defendant
has not raised a defense based on lack of knowledge or lack of intent.” Id.(citations and quotation marks omitted).
Similarly, the Fifth Circuit held that a district court did not abuse its
discretion in concluding that the defendant’s “prior conviction for possession of
cocaine [was] relevant to his intent in the charged [conspiracy] offense” because a
defendant not pleading guilty to a conspiracy offense “raises the issue of intent
sufficiently to justify the admissibility of extrinsic offense evidence.” United
States v. Gadison, 8 F.3d 186, 192 (5th Cir. 1993) (internal quotations omitted);
see also United States v. Butler, 102 F.3d 1191, 1196 (11th Cir. 1997) (permitting
the introduction of evidence “of prior personal drug use to prove intent in a
subsequent prosecution for distribution of narcotics [because] [i]ntent is clearly at
issue in a conspiracy prosecution”). But see United States v. Vizcarra-M artinez,
66 F.3d 1006, 1015 (9th Cir. 1995) (prohibiting the admission of evidence of
prior personal-use possession of methamphetamine for a defendant charged with
possession of hydriodic acid w ith knowledge that it would be used to manufacture
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methamphetamine, and “hold[ing] that evidence that the defendant used
methamphetamine, or possessed a small amount of the drug, does not tend to
prove that he participated in a conspiracy to manufacture it”).
Based on our precedent and the rationale of most circuits that have
addressed the issue, we conclude that evidence of a defendant’s subsequent
conviction of personal-use possession may be offered to establish knowledge or
intent in a conspiracy prosecution involving the same drug. Use of the conviction
to establish motive was also proper. See, e.g., United States v. Hatfield, 815 F.2d
1068, 1072-73 (6th Cir. 1987) (allowing the introduction of 404(b) evidence to
prove motive in a general-intent crime). Because the evidence was introduced for
a proper purpose, we move on to assess the other Huddleston requirements.
2. Relevance
Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” F ED . R. E VID . 401. Our
court has found a prior bad act “relevant when that conduct is close in time,
highly probative, and similar to the activity with which the defendant is charged.”
United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000) (internal quotation
marks omitted). Here, the 2003 conviction meets this standard. The conviction
occurred only one year after the charged conspiracy, and both offenses involved
the same drug–methamphetamine. Evidence of the subsequent conviction helped
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to refute M r. Kelley’s defense of lack of intent, and it “also helped to explain
[his] motive for entering the conspiracy and to rebut the suggestion of his mere
presence at the scene.” United States v. Rush, 240 F.3d 729, 731 (8th Cir. 2001)
(concluding that a court did not abuse its discretion in admitting evidence of a
prior amphetamine possession in a charged conspiracy to manufacture
methamphetamine); see also Davidson, 195 F.3d at 408 (“A necessary element of
conspiracy to manufacture methamphetamine is knowingly joining such a
conspiracy, and [the defendant’s] recent convictions for possession of
methamphetamine were relevant to prove that.”).
3. Weighing probative value and prejudice
As to the third factor, the district court did not explicitly state the probative
value of the 2003 conviction outweighed its prejudice. However, when the
evidence was admitted, the court clarified to the jury that the 2003 conviction
should be considered only to determine “motive, knowledge, intent, or absence of
mistake” in the charged offense. Rec. vol. IV, at 202-03. W e owe the district
court “substantial deference in 403 rulings,” United States v. Shumway, 112 F.3d
1413, 1422 (10th Cir. 1997) (internal quotation marks omitted), and we cannot
say the court abused its discretion here when it implicitly determined the evidence
was probative to the charged offense and not unduly prejudicial.
4. Limiting instruction
Finally, under the fourth factor, the district court provided a limiting
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instruction to the jury after it admitted the evidence.
Accordingly, the district court did not abuse its discretion in admitting
evidence of M r. K elley’s 2003 possession conviction.
D. Challenge to the admission of rebuttal evidence by M r. Kelley’s girlfriend
“Rebuttal evidence may be introduced to explain, repel, contradict or
disprove an adversary’s proof. The fact that testimony would have been more
appropriately offered during the proponent’s case-in-chief does not preclude its
admission as rebuttal evidence.” United States v. LiCausi, 167 F.3d 36, 52 (1st
Cir. 1999). “Rather, the decisions as to what constitutes proper rebuttal evidence
and the order in which the parties present their evidence lie within the sound
discretion of the trial judge and are subject to substantial deference.” Id.The government called M r. Kelley’s former girlfriend, M s. Eldridge, as a
rebuttal witness. An officer handling the case had information about M s.
Eldridge from M r. Covey one year earlier, but he first learned of her last name a
few days before trial. The officer found M s. Eldridge, subpoenaed her, and
interviewed her during the first day of trial. During the third day of testimony,
she testified that M r. Kelley and she began living with M r. Covey in Claremore
on July 28, 2002, and during that time the tw o men cooked methamphetamine.
M r. Kelley’s counsel objected to M s. Eldridge’s testimony as a rebuttal
witness, but the court overruled the objection and allowed her to testify. The
court later commented on the admission of the testimony:
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[O]ne of the reasons that I permitted the evidence to be presented is
because the evidence was not available during the time that the
Government was putting on its principal evidence.
From the evidence that has been presented, it’s apparent that the
first interviews occurred when this trial was already in being. The
second interview was the second day, and this is the third day, and I
was a little more lenient that I might otherwise have been because of the
fact that the Government had not had the opportunity and that there was
no claim of surprise or prejudice other than the evidence itself.
Rec. vol. IV, at 323.
W e review the court’s admission of rebuttal testimony for an abuse of
discretion. United States v. M agallanez, 408 F.3d 672, 680 (10th Cir. 2005). “A
district court possesses considerable discretion in governing the presentation of
evidence, and its decisions will not be disturbed absent manifest injustice to the
parties.” Comcoa, Inc. v. NEC Telephones, Inc., 931 F.2d 655, 663 (10th Cir.
1991). M r. Kelley maintains that M s. Eldridge’s evidence should have been
presented in the government’s case-in-chief because (1) it was repetitive of the
evidence already presented and (2) M r. Kelley had not contested on cross-
examination that he had cooked methamphetamine with M r. Covey.
W hile M s. Eldridge’s testimony “would have been more appropriately
offered during the [government’s] case-in-chief,” LiCausi, 167 F.3d at 52, the
admission of her rebuttal testimony did not cause manifest injustice to M r.
Kelley’s defense. No evidence in the record suggests bad faith by the prosecution
to withhold M s. Eldridge’s testimony until rebuttal, and M r. Kelley still had an
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adequate opportunity to cross-examine her. Given the unusual temporal
circumstances leading to M s. Eldridge’s rebuttal testimony, the court did not
abuse its discretion in admitting it.
III. C ON CLU SIO N
Accordingly, we AFFIRM M r. Kelley’s conviction and sentence.
Entered for the Court,
Robert H. Henry
Circuit Judge
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