United States v. Perkins, Demmaro D.

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3383
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AMMARO D. P ERKINS, also known as
D EMARCO D. P ERKINS, also known as
D EMARIO D. P ERKINS, also known as
D EMARIO D. M ORRIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30137—David R. Herndon, Chief Judge.
A RGUED S EPTEMBER 9, 2008—D ECIDED N OVEMBER 13, 2008
Before B AUER, C UDAHY and W OOD , Circuit Judges.
B AUER, Circuit Judge. An Illinois jury convicted
Defendant-Appellant Demmaro D. Perkins (Perkins) (also
known as Demarco D. Perkins, Demario D. Perkins, and
Demario D. Morris) of: (1) possession with intent to
distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B); (2) possession with intent to distrib-
2 No. 07-3383
ute marijuana in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(D); (3) possession of a firearm as a felon in
violation of 18 U.S.C. § 922(g)(1); and (4) possession of a
firearm in furtherance of a drug-trafficking crime in vio-
lation of 18 U.S.C. § 924(c)(1)(A). Perkins appeals his
convictions, claiming evidence from his residence was
unconstitutionally seized and the district court’s decision
to allow evidence of prior bad acts was improper
pursuant to Federal Rule of Evidence 404(b). For the
following reasons, we affirm.
I. BACKGROUND
On September 27, 2004, Perkins was released from the
custody of the Illinois Department of Corrections (IDOC),
subject to a signed Parole or Mandatory Supervised
Release Agreement. Pursuant to this agreement, Perkins
was to comply with various provisions, including, but not
limited to, visits and searches of his person and residence
by IDOC agents. On subsequent occasions, Perkins tested
positive for drug use.
On July 27, 2005, IDOC parole agents and other law
enforcement officers conducted an assigned compliance
check on Perkins’s residence. During the search of one
bedroom, the agents recovered crack cocaine from the top
of a television, a digital scale under the bed, a plastic
bag containing sixteen pieces of crack cocaine, four plastic
bags containing marijuana, a box of plastic bags and
$1,030 in cash. Perkins denies knowledge and ownership
of the crack cocaine found in his residence.
No. 07-3383 3
In a different bedroom, the agents recovered a loaded
.38 caliber revolver (with one round missing), and a box
of .38 caliber and .25 caliber ammunition. Perkins was
arrested. At the St. Clair County Jail, the authorities
recovered crack cocaine from Perkins’s pocket. Perkins
claims that he simply found the crack cocaine near a
jail cell and picked it up.
On September 27, 2006, Perkins moved to suppress
all evidence recovered from the search of his residence;
the district court denied the motion on December 15, 2006.
On May 9, 2007, Perkins was charged in a second super-
seding indictment with: (1) possession with intent to
distribute 5 grams or more of cocaine base, in the form
of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B); (2) possession with intent to distribute less
than fifty kilograms of a mixture or substance con-
taining marijuana in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(D); (3) possession of a firearm by a previously
convicted felon in violation of 18 U.S.C. § 922(g)(1); and
(4) possession of a firearm in furtherance of a drug-traffick-
ing crime in violation of 18 U.S.C. § 924(c)(1)(A).
Perkins filed a motion in limine to exclude evidence that
he was on parole on the date of the offenses charged. The
government responded, and further provided notice
that it might offer the following three convictions for
cocaine-related offenses under Fed. R. Evid. 404(b):
(1) unlawful possession of a controlled substance (less
than fifteen grams of cocaine); (2) unlawful delivery of a
controlled substance (less than one gram of cocaine);
and (3) unlawful possession of a controlled substance (less
4 No. 07-3383
than fifteen grams of cocaine). Perkins objected on the
grounds that the intended use of these convictions
would unduly prejudice the jury by improperly sug-
gesting his propensity to commit the crimes charged, as
prohibited by Fed. R. Evid. 404(b). The district court ruled
that it would allow the prior convictions for the sole
purpose of establishing motive, intent, knowledge, and
absence of mistake or knowledge. To limit any potential
prejudicial effect, the district court took judicial notice
of the prior convictions. The district court instructed the
jury, at the time the evidence was received at trial, that
the convictions could only be used for non-propensity
purposes and must not be used to establish Perkins’s
propensity to commit the crimes charged. The district
court noted that the probative value of the evidence
clearly outweighed the prejudice to Perkins.
On the last day of trial, the government called Madison
County Sheriff’s Deputy Sergeant Dixon to testify regard-
ing a 2002 arrest of Perkins that led to a 2003 conviction,
one of the three prior convictions that had been judicially
noticed by the district court.
Dixon testified that he witnessed Perkins place a piece
of suspected crack cocaine in his mouth and refuse to
spit it out. Over Perkins’s objection, the district court
allowed Dixon’s testimony as highly probative of
Perkins’s knowledge of crack cocaine, and likewise of
the absence of mistake or knowledge of Perkins’s posses-
sion of crack cocaine at his residence and at the booking
area.
The jury convicted Perkins on all counts. On October 1,
2007, the district court entered judgment and sentenced
No. 07-3383 5
Perkins to 210 months’ imprisonment. This timely
appeal followed.
II. DISCUSSION
First, Perkins, a parolee, argues that the district court
erred in denying his motion to suppress all evidence
recovered from the search of his residence without rea-
sonable suspicion. At oral argument, Perkins raised this
issue and withdrew it in the face of Samson v. California,
547 U.S. 843 (2006); see also People v. Wilson, 228 Ill. 2d 35,
885 N.E.2d 1033 (2008).
Second, Perkins argues that the district court should
not have allowed: (1) evidence concerning his three
prior convictions for possession of cocaine-related
offenses, and (2) Dixon’s testimony regarding his 2002
arrest. The district court overruled Perkins’s motion and
admitted the evidence pursuant to Fed. R. Evid. 404(b).
This court reviews a district court’s decision to allow
Rule 404(b) evidence only for an abuse of discretion.
United States v. Price, 516 F.3d 597, 603 (7th Cir. 2008).
Rule 404(b) prohibits the admission of evidence of other
crimes, wrongs, or acts to prove that a person acted in
conformity with his prior conduct. In other words,
Rule 404(b) plainly prohibits the government from intro-
ducing evidence of prior bad acts to show that the defen-
dant’s character is consistent with a propensity to
commit the charged crime; however, it allows the court
to admit evidence of a defendant’s prior crimes for
other permissible, non-propensity purposes, “such as
6 No. 07-3383
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake.” Fed. R. Evid.
404(b); See also United States v. Emerson, 501 F.3d 804,
812 (7th Cir. 2007).
In determining whether evidence of prior convictions is
admissible, this court has combined the requirements
of Fed. R. Evid. 404(b) and Fed. R. Evid. 403 to create a
four-prong test. The evidence of the other act must: (1) be
directed toward establishing a matter in issue other
than the defendant’s propensity to commit the crime
charged; (2) show that the other act is similar enough
and close enough in time to be relevant to the matter in
issue; (3) be sufficient to support a jury finding that the
defendant committed the similar act; and (4) have proba-
tive value that is not substantially outweighed by the
danger of unfair prejudice. Emerson, 501 F.3d at 812.
On appeal, Perkins maintains that the government fails
to establish the first, second, and fourth requirements.
Perkins does not place the third requirement in issue as
his prior convictions satisfy that prong. See United States
v. Best, 250 F.3d 1084, 1092 (7th Cir. 2001). Perkins first
argues that the Rule 404(b) evidence improperly estab-
lishes his propensity to commit the crimes charged. Next,
Perkins argues that the “similar enough” prong fails as
two of the three prior convictions are for different crimes
than the charges at issue. Perkins also claims that the
second prong fails because the temporal requirement
has not been satisfied. Lastly, Perkins claims that the
Rule 404(b) evidence offered against him unduly preju-
diced the jury and was not substantially outweighed by
its probative value. We disagree.
No. 07-3383 7
First, we conclude that the prior convictions and Dixon’s
testimony are probative of Perkins’s knowledge of
cocaine and crack cocaine, and were not intended to
show a propensity to commit the crimes charged. Perkins
admits to selling the marijuana found in his residence,
but denies any knowledge of the crack cocaine found
adjacent to the marijuana. Evidence of his prior convic-
tions establish that Perkins has knowledge and familiarity
with cocaine and crack cocaine. More importantly,
Perkins’s prior convictions are probative to establish
his absence of mistake or knowledge of the crack cocaine
recovered from his residence. Similarly, Dixon’s testi-
mony of Perkins’s 2002 arrest, where he placed a piece
of suspected crack cocaine in his mouth and refused to
spit it out, is probative to rebut his claim of absence of
knowledge regarding the crack cocaine found next to
the marijuana he admits to selling.
By stating that the crack cocaine found in his residence
could be his girlfriend’s, Perkins impliedly denies his
intent to distribute the drug. However, possession with
intent to distribute cocaine base is a specific intent crime
and this court has repeatedly held that “when a
defendant is charged with a specific intent crime, the
government may present other acts evidence to prove
intent.” United States v. Curry, 79 F.3d 1489, 1495 (7th Cir.
1996). Here, Perkins’s three prior convictions and
Dixon’s testimony establish Perkins’s knowledge of the
respective value of even small quantities of cocaine,
which is evidence of his intent to distribute. His 1998
and 2003 convictions for possession of less than fifteen
grams of cocaine are probative of his knowledge that
8 No. 07-3383
even one gram has value. The 1.1 grams recovered at the
St. Clair County Jail confirms his knowledge of the drug’s
distribution value in small quantities. This intent to
distribute is further supported by Perkins’s other 1998
conviction for delivery of less than one gram of cocaine.
Delivering less than one gram is clearly probative to
establish his intent to distribute the sixteen individual,
one gram chucks of crack cocaine recovered from his
bedroom. Although Perkins’s conviction for unlawful
delivery of cocaine involved less than one gram, evi-
dence of that conviction is “probative with respect to the
defendant’s knowledge of the commercial value of even
smaller amounts of the drug and therefore his intent to
sell the lesser amount.” United States v. Jones, 455 F.3d
800, 809 (7th Cir. 2006).
Next, we conclude that two convictions for possession
of cocaine and one conviction for delivery of cocaine
were substantially similar to the charged crime of posses-
sion with intent to distribute crack cocaine. See United
States v. Puckett, 405 F.3d 589, 597 (7th Cir. 2005) (a
prior conviction for distribution of crack cocaine is ad-
missible where the charged act involves distribution of
cocaine, as the distinction between the two is a dis-
tinction without substance); See also United States v.
Hernandez, 84 F.3d 931, 935 (7th Cir. 1996) (a prior con-
viction for possession of marijuana was “similar enough”
for Rule 404(b) purposes to charged crimes of distributing
cocaine and heroin, even though different drugs were
involved).
We also conclude that the prior convictions were
close enough in time to be relevant to the charges in this
No. 07-3383 9
case as Perkins was convicted twice in 1998 and once
in 2003. Perkins had routinely tested positive for
narcotics in 2004 and 2005, and was ultimately arrested in
2005. The evidence does not suggest an isolated encounter
with narcotics. Rather, it reflects on ongoing interaction
between Perkins and narcotics for over seven years.
When viewed in this light, the evidence of his knowl-
edge with narcotics, in particular cocaine or crack
cocaine, is sufficiently close in time to the charged
conduct for purposes of Rule 404(b). See United States v.
Kreiser, 15 F.3d 635, 640 (7th Cir. 1994) (seven years is
close enough for purposes of Rule 404(b)).
Lastly, we conclude that the probative value of the
evidence was not substantially outweighed by the
danger of unfair prejudice. Since the prior convictions
were similar to the charged offenses, this evidence was
certainly prejudicial to Perkins in the sense that it played
a role in establishing the case against him. However,
“Rule 403 was never intended to exclude relevant
evidence simply because it is detrimental to one party’s
case; rather, the relevant inquiry is whether any unfair
prejudice from the evidence substantially outweighs
its probative value.” United States v. Dennis, 497 F.3d 765,
769 (7th Cir. 2007) (citing United States v. Lloyd, 71 F.3d
1256, 1265 (7th Cir. 1995). Here, the district court
carefully and repeatedly instructed the jury of the evi-
dence’s limited purpose. See United States v. James, 487
F.3d 518, 525 (7th Cir. 2007) (absent any showing that
the jury could not follow the court’s limiting instruction,
this court presumes that the jury limited its considera-
tion of the testimony in accordance with the court’s
10 No. 07-3383
instruction). As the record states, the district court read
cautionary instructions to the jury prior to and after
Perkins’s convictions were introduced by judicial
notice, instructing that the Rule 404(b) evidence could
not be used to show propensity.
The district court prevented further danger of unduly
prejudicing the jury by merely reciting the fact that the
convictions have been entered against Perkins, along
with their respective case number. Nothing more was
judicially noticed.
Notably, the government properly states that the
Rule 404(b) evidence was not presented at the trial’s onset
so as to risk unduly enticing the jury with prejudicial
facts. Rather, the evidence concluded the government’s
case-in-chief only in a brief manner.
III. CONCLUSION
The district court did not abuse its discretion in taking
judicial notice of the prior convictions and allowing
testimony of Perkins’s 2002 arrest. Accordingly, we
A FFIRM the district court.
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