United States v. Patricia Calhoun Cass

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-14606 ELEVENTH CIRCUIT
JUNE 16, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00035-CR-1-LSC-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICIA CALHOUN CASS,
a.k.a. Susan Jones,
a.k.a. Patty Cass,
a.k.a. Patricia Calhoun,
PAUL ANTHONY CASS,
a.k.a. Brown,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(June 16, 2009)
Before DUBINA, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Paul Anthony Cass1 appeals his convictions for conspiracy to distribute and
possess with intent to distribute 50 grams or more of cocaine base in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, distribution and possession with
intent to distribute cocaine base in violation of § 841(a)(1) and § 841(b)(1)(C), and
maintaining a place for the purpose of manufacturing and distributing cocaine base
in violation of 21 U.S.C. § 856(a)(1). On appeal, Cass argues that the government
failed to provide him with reasonable notice of its intention to present evidence of
his prior convictions under Fed.R.Evid. 404(b).
Ordinarily, “[w]e review district court rulings on the admissibility of
evidence under an abuse of discretion standard.” United States v. Perez-Tosta, 36
F.3d 1552, 1560 (11th Cir. 1994). However, where, as here, the claim is raised for
the first time on appeal, we review for plain error. United States v. Smith, 459
F.3d 1276, 1282-83 (11th Cir. 2006). “Under the plain error standard, . . . there
must be (1) error, (2) that is plain, and (3) that affects substantial rights.” Id.
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One of Cass’s codefendants was his wife, Patricia Calhoun Cass. She went to trial and
the jury found her guilty. The district court imposed a 360 months’ sentence, and this court
recently affirmed that judgment. See United States v. Cass, No. 07-14606 (11th Cir. Feb. 26,
2009) (unpublished) (per curiam).
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at 1283 (citation omitted). “If all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citation omitted).
The government must “provide reasonable notice in advance of trial of its
intention to present [Rule] 404(b) evidence, if the accused has requested the
notice.” Perez-Tosta, 36 F.3d at 1560. The policy behind Rule 404(b)’s notice
requirement is “to reduce surprise and promote early resolution on the issue of
admissibility.” Id. at 1561 (citation omitted). The reasonableness of the
government’s disclosure “depend[s] largely on the circumstances of each case.”
Id. (citation omitted). In determining whether the government’s notice was
reasonable, we consider “(1) [w]hen the [g]overnment, through timely preparation
for trial, could have learned of the availability of the [evidence]; (2) [t]he extent of
prejudice to the opponent of the evidence from a lack of time to prepare; and
(3) [h]ow significant the evidence is to the prosecution’s case.” Id. at 1562.
We conclude from the record that the district court did not plainly err by
allowing the government to introduce evidence of Cass’s prior convictions under
Rule 404(b) because the government provided reasonable notice of its intention to
present the evidence prior to trial.
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Cass argues that the district court abused its discretion by denying his
motion in limine and allowing the government to present evidence of his prior
state convictions for unlawful distribution of a controlled substance. He asserts
that this evidence constituted improper character evidence under Rule 404(b) and
that the risk of unfair prejudice substantially outweighed the probative value of the
evidence because the convictions occurred approximately ten years prior to the
beginning of the conspiracy.
We review a district court’s denial of a defendant’s motion in limine for
abuse of discretion. United States v. Thompson, 25 F.3d 1558, 1563 (11th
Cir. 1994). “An abuse of discretion arises when the district court’s decision rests
upon a clearly erroneous finding of fact, an errant conclusion of law, or an
improper application of law to fact.” United States v. Baker, 432 F.3d 1189, 1202
(11th Cir. 2005).
Under Fed.R.Evid. 404(b), “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in
conformity therewith.” Fed.R.Evid. 404(b). Thus, “[e]vidence of extrinsic
offenses is inadmissible to prove that the accused has the propensity to commit the
crime charged.” United States v. Veltmann, 6 F.3d 1483, 1498 (11th Cir. 1993).
However, extrinsic evidence may be “admissible for other purposes, such as proof
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of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.” Fed.R.Evid. 404(b). To be admissible under Rule 404(b):
[(1)] the evidence must be relevant to an issue other than the
defendant’s character; [(2)] the act must be established by sufficient
proof to permit a jury finding that the defendant committed the
extrinsic act; [and (3)] the probative value of the evidence must not
be substantially outweighed by its undue prejudice, and the evidence
must meet the other requirements of Rule 403.
United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). “For extrinsic
offenses to be relevant to an issue other than character, they must be shown to be
offenses, and must also be similar to the charged offense.” Veltmann, 6 F.3d
at 1499 (emphasis omitted).
“A defendant who enters a not guilty plea makes intent a material issue
which imposes a substantial burden on the government to prove intent, which it
may prove by qualifying Rule 404(b) evidence absent affirmative steps by the
defendant to remove intent as an issue.” United States v. Edouard, 485
F.3d 1324, 1345 (11th Cir. 2007) (citation omitted). Evidence of prior personal
drug use is admissible to prove intent in a subsequent prosecution for distribution
of narcotics. United States v. Butler, 102 F.3d 1191, 1196 (11th Cir. 1997).
Further, where the extrinsic act involves a conviction, the second prong of the
Rule 404(b) test is established. Delgado, 56 F.3d at 1365. “Whether the probative
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value of Rule 404(b) evidence outweighs its prejudicial effect depends upon the
circumstances of the extrinsic offense.” United States v. Dorsey, 819 F.2d 1055,
1061 (11th Cir. 1987). We consider “whether it appeared at the commencement of
trial that the defendant would contest the issue of intent, the overall similarity of
the charged and extrinsic offenses, and the temporal proximity between the
charged and extrinsic offenses.” Edouard, 485 F.3d at 1345.
We conclude from the record that the district court did not abuse its
discretion by denying Cass’s motion in limine and admitting evidence of his prior
convictions because it was relevant to show his criminal intent under § 841(a)(1),
and its probative value was not substantially outweighed by the risk of unfair
prejudice.
Finally, Cass argues that the district court abused its discretion by allowing
several of the government’s witnesses to testify regarding his drug-dealing
activities prior to the beginning of the conspiracy. He asserts that the evidence
was inadmissible as character evidence under Rule 404(b). He maintains that the
risk of unfair prejudice outweighed the probative value of the evidence because
his drug-dealing activities occurred almost ten years prior to the beginning of the
conspiracy and the government had other available witnesses to testify regarding
his activities during the conspiracy.
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As noted above, we review a district court’s denial of a defendant’s motion
in limine for abuse of discretion. Thompson, 25 F.3d at 1563. Evidence is not
extrinsic under Rule 404(b) where it is “(1) an uncharged offense which arose out
of the same transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably intertwined
with the evidence regarding the charged offense.” Veltmann, 6 F.3d at 1498.
Evidence is inextricably intertwined with the charged offense when it forms an
“integral and natural part of the witness’s accounts of the circumstances
surrounding the offenses for which the defendant was indicted.” Edouard, 485
F.3d at 1344 (citation omitted). Such evidence is admissible so long as it meets
the usual requirements for admissibility under Fed.R.Evid. 401 and 403. United
States v. Richardson, 764 F.2d 1514, 1522 (11th Cir. 1985). Nevertheless, “[t]he
fact that this evidence is inextricably intertwined with other admissible evidence
establishes its relevance under Rule 401.” Id.
We conclude from the record that the district court did not abuse its
discretion by allowing the government’s witnesses to testify regarding Cass’s prior
drug-dealing activities because the evidence was not extrinsic under Rule 404(b),
it was relevant to prove his criminal intent, and its probative value was not
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substantially outweighed by the risk of unfair prejudice. Accordingly, we affirm
Cass’s conviction.
AFFIRMED.
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