Federal Evidence Review

Defendant's 2005 confession to cocaine possession (admitting his continuing drug transactions, how he obtained his drug supply, and that in 2005 he had been caught with five kilograms of cocaine in his car) was not barred as FRE 404(b) other act evidence in his trial on a 2007 charge of conspiracy to distribute cocaine because the confession contained evidence of the charged 2007 crime of conspiracy to distribute cocaine, in United States v. Williams, 612 F.3d 417 (6th Cir. July 8, 2010) (No. 08-2070)

FRE 404(b) precludes a court from admitting evidence of other crimes except when the evidence is presented as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” FRE 404(b). Of course, other crimes evidence is also admissible when the other crime is inextricably intertwined with the charged offense, so that proof of an element of the charged crime entails proof of other crime. In a recent case, the Sixth Circuit succinctly explains how, under circumstances of a drug conspiracy case, an earlier confession to a prior drug crime was not barred as “other crimes” evidence under FRE 404(b).

In the case, defendant Williams was initially arrested in March 2005 by state authorities for possessing five kilograms of cocaine. While in state police custody, the defendant “signed a Miranda waiver and gave an oral statement to the officers. He confessed to buying cocaine regularly from a man named 'Jose,' selling ten to twenty kilograms of cocaine a week for the past two years.” He then wrote a statement addressing what occurred prior to his arrest in 2005, including “I meet Jose in Country Club Hills for five kilo and went to my mom's house to meet Pow-Pow. The police pulled up and took me in. The drugs was in the trunk. It was 18,500 per kilo.” “For reasons of its own,” dryly noted the circuit, the state “did not prosecute Williams” in 2005. Williams, 612 F.3d at 420.

But the defendant fell under federal scrutiny and two years later he was federally indicted in a cocaine conspiracy (rather than just cocaine distribution) and was tried by jury and convicted. A major part of his appeal of the conspiracy conviction involved the court's failure to suppress the confession evidence. The circuit did not find this evidence excludable as there was no constitutional or statutory infirmity associated with it. The circuit similarly rejected the defendant's attempt to exclude the confession by arguing that it was improper FRE 404(b) evidence.

The circuit dismissed this evidentiary challenge. It noted that the challenged confession evidence also served to prove elements of the cocaine conspiracy charge – that is, proof of one of the three elements of a drug conspiracy: “(1) an agreement to violate drug laws; (2) knowledge of and intent to join the conspiracy; and (3) participation in the conspiracy.” Williams, 612 F.3d at 423 (citing United States v. Gunter, 551 F.3d 472, 482 (6th Cir. 2009)). The 2005 confession stood as proof of these elements, including that:

All of the key players in Williams' drug business ... knew each other, many since childhood. It shows that Weaver, one of the principal drug sellers, lived in and conducted his business out of a house owned by Williams. Most critically, it describes a supply chain in which Holmes, if unsuccessful in obtaining cocaine from Weaver, could invariably seek it from Williams. It suggests that Williams had 'more than a buyer-seller arrangement' with Holmes, based on his willingness to sell Holmes drugs on partial credit. And it indicates, based on Holmes' attempt to return a bad batch of cocaine that his customers could not turn into crack, that Williams knew Holmes was re-selling the large amounts of drugs he bought.

Williams, 612 F.3d at 423.

Because the 2005 confession to possession of cocaine was direct proof of the conspiracy charged in 2007, it did not violate FRE 404(b) to admit it:

Even if his confession was voluntary, Williams argues, the district court violated Rule 404(b) of the Federal Rules of Evidence in admitting it. Rule 404(b) prohibits courts from admitting evidence of 'other crimes,' save under certain exceptions. But Williams' confession-detailing his ongoing drug sales, divulging how he obtained his drug supply and admitting that he had been caught with five kilograms of cocaine in his car-was not evidence of other crimes; it was evidence of the charged crime: a conspiracy to distribute cocaine. A conspiracy, to be sure, may entail many acts, and many of them may themselves be criminal, but that does not make them 'other crimes' presumptively barred from admission under Rule 404(b). Otherwise, it would be possible only to charge someone with a drug-trafficking conspiracy, never to prove it. That is not how Rule 404(b) works.

Williams, 612 F.3d at 423.

Not all prior confession evidence will fall outside the ambit of FRE 404(b). In Williams, the confession was admissible evidence because of the breadth of conspiracy evidence. Had a different crime been charged, it is not clear that the prior confession would have been admitted. But given the broadness of the conspiracy charge, the confession constituted direct proof of the charged offense and would not be barred by the rule since, according to the circuit “[t]hat is not how Rule 404(b) works.” Williams, 612 F.3d at 423.