Federal Evidence Review

Sixth Circuit notes evidence about the defendant’s involvement in a prior marijuana transaction may have been admissible under FRE 404(b) to show intent or identity but trial court “fail[ed] to convey that distinct purpose to the jury” in its limiting instruction, resulting in reversal of conspiracy count, in United States v. Davis, __ F.3d __ (6th Cir. Nov. 13, 2008) (No. 05-2465)

A recent Sixth Circuit case demonstrates the importance of proper limiting instructions in admitting prior act evidence under FRE 404(b). The circuit noted the prior act evidence may have been admissible under FRE 404(b). The defendant did not seek a limiting instruction. The trial court gave one, but the instruction told the jury it could consider the evidence for an improper purpose.

In the case, defendant Davis and his cousin McIntosh were arrested after selling crack cocaine to a paid government informant. Defendant McIntosh pled guilty to conspiring to distribute crack cocaine before trial. He agreed to testify at the trial of defendant Davis, who was charged with conspiracy and possession with the intent to distribute crack cocaine. During the trial, McIntosh described a prior uncharged transaction involving the sale of marijuana with defendant Davis. As he testified:

“A guy came over to my house looking for some weed, and I went around the corner to my uncle’s house, my uncle Jeffrey, and I talked to [Davis] about it. And he went to his house and got it. He came back with it and I gave it to the guy, the guy gave me the money, they both went separate.”

Davis, __ F.3d at __. No limiting instruction was requested or given during the admission of this prior act evidence. However, the trial court gave a limited purpose instruction at the end of the case to guide the jury’s consideration of the evidence. The trial court instructed that the prior act evidence could be consider for the limited purpose to show either “preparation” or a “pattern of related conduct”:

“You have heard the testimony that the defendant committed some act other than the ones charged in the indictment. You cannot consider this testimony as direct evidence that the defendant committed the crimes that he is on trial for now. Instead, you can only consider it in deciding whether the other act was committed in preparation for the offenses he is on trial for, or as part of the pattern of related conduct. Do not consider it for any other purpose.”

Id. at __. After the jury convicted the defendant, he was sentenced to 121 months’ imprisonment.

On appeal, the Sixth Circuit agreed with the defendant that the prior act evidence was admitted for an improper purpose to show “preparation for the instant offense.” The circuit explained that the issue of preparation for the charged crime “was not at issue” and “it is difficult to see how the perpetration” of the marijuana sale “was necessary for the completion” of the charged crime of conspiring to distribute crack. The other act evidence was inadmissible as a “pattern of related conduct,” which was not a recognized exception under FRE 404(b) and did not apply in the case.

The circuit noted that the marijuana evidence may have been admitted to show the defendant’s intent under FRE 404(b) and to show “that Davis and McIntosh intentionally worked together to distribute crack cocaine.” Id. at __. While the defendant denied having the requisite criminal intent to distribute, the prior act evidence was inadmissible since the trial court’s instruction to the jury regarding the receipt of the evidence failed to “adequately” identify or explain this to the jury. In fact, proof of a “pattern” was similar to showing “propensity,” an impermissible purpose under FRE 404(b). The failure to properly instruct and guide the jury was error. The error was harmless with regard to the distribution charge because the evidence of the defendant’s guilt was “overwhelming.” However, on the conspiracy charge, “the evidence of the prior drug sale provide[d] the strongest suggestion of an agreement to distribute between the two men, it was highly likely to sway the jury.” Id. at __.

In a concurring opinion, Circuit Judge McKeague indicated that he “would have voted to affirm Davis's drug-conspiracy conviction had the issue of identity been raised on appeal.” However, the government “did not argue on appeal … the identity of the person who sold cocaine.”

In Davis, ironically, the defense did not request a limiting instruction. Generally, the trial court is not required to provide a limiting instruction where one is not requested. As the Davis court noted, “a specific instruction may not be necessary if such an instruction is not requested,” however “[t]hat issue” was not presented in the case. Id. at __ n.2. However, the role of the limiting instruction to guide the jury’s proper consideration of the evidence was defeated when the jury was told it could consider the evidence for impermissible purposes. While the marijuana transaction may have been admissible to show intent or, possibly, identity, the instruction given failed to convey a proper purpose to the jury.