Here is another guest post from Jeffrey A. Shooman, who was then my colleague at Lite DePalma Greenberg, LLC, on an important criminal law decision of the Third Circuit:
United States v. Davis, 726F.3d 434 (3d Cir. 2013). The admission of prior, other act evidence (also referred to as “prior bad act evidence”) is governed by Federal Rule of Evidence 404(b). This is an oft-litigated rule; in fact, in his opinion in this case, issued last Friday, Judge Smith noted that 404(b) is actually the most cited Rule of Evidence on appeal. This opinion providies the latest gloss on Rule 404(b) in the context of a drug distribution case.
Defendants Terrell Davis and Jamar Blackshear were sitting in a Jeep Grand Cherokee in a high-crime area of Philadelphia. Two officers observed Davis and Blackshear engage in body motions that were “consistent with exchanging of narcotics in a narcotics transaction.” When the officers approached the Jeep, Davis and Blackshear both exited quickly. One officer stopped Blackshear, patted him down, and found a wad of cash. The other officer patted down Davis and also found cash. The officers then searched the Jeep for weapons and found a handgun. Then, one officer saw a shopping bag in the back seat. The bag was open and contained a white substance. The officers then requested a drug-detection dog, “which alerted to the presence of drugs.” A warrant was obtained, and about 740 grams of cocaine were found in Ziploc bags.
Davis and Blackshear were charged with possession of a controlled substance with intent to distribute and possession of a firearm in furtherance of a drug-trafficking crime. They filed a suppression motion, which the district court denied. Blackshear then pled guilty but reserved the right to appeal the suppression ruling. Davis went to trial. The Government sought to introduce Rule 404(b) evidence of two prior convictions that Davis had for possessing cocaine –- not, importantly, for distributing it. The district court allowed the evidence, holding that it was admissible to show that Davis recognized the drugs in the Jeep. Davis was convicted of the distribution charge, but acquitted of the gun charge.
After rejecting both defendants’ constitutional argument about the propriety of stopping them, indeed, “seizing” them, in the first instance, the Third Circuit held that the admission of Davis’s prior convictions under Rule 404(b) was error. Judge Smith provided a nice exegesis of Rule 404(b) law and its evolution, and then addressed the admission of Davis’s two prior possession convictions. The Government argued that the convictions both went to Davis’s knowledge and intent, both proper purposes for admission of Rule 404(b) evidence. But the court swiftly rejected those contentions.
As to knowledge, “[p]ossession and distribution are different in ways that matter – something that both the District Court and the government failed to appreciate.” All the jury knew was that Davis had been convicted of possessing cocaine in the past. The jury did not know the packaging or quantity of drugs underlying the convictions. Also problematic was the fact that the cocaine in Davis’s possession cases may have been in a different form, as Judge Smith noted that cocaine may be found in many forms, from liquid cocaine to crack cocaine. Accordingly, the court found the evidence irrelevant as to knowledge.
The court was equally unpersuaded that the prior convictions bore on intent. “A prior conviction for possessing drugs by no means suggests that the defendant intends to distribute them in the future.” One of the guiding principles of Rule 404(b) law is that so-called “propensity” evidence –- evidence that could lead a jury to decide the case before it on the basis of an inference that the defendant is a bad actor, not on the basis of the underlying charged crime –- is inadmissible. Upholding Davis’s conviction would have worked violence on this principle, as there was “an ever-present danger that jurors will infer that the defendant’s character made him more likely to sell the drugs in his possession.”
The court wrapped up the core Rule 404(b) portion by noting that its holding was in accord with most, though not all, Circuits. The court also pointed out that, compounding the admission error, the district court failed to give a limiting instruction and also failed to charge the jury correctly. However, even in the absence of those errors, the court would have reversed.
Judge Smith, in the introduction to the opinion, pithily summarized the import of this case. “We acknowledge that some of our cases admitting prior criminal acts under Federal Rule of Evidence 404(b) have been expansive. But our expansiveness is finite, and this case crosses the line.”