Third Circuit Draws The Line On 404(B)
By: Douglas K. Rosenblum
On August 9, 2013 the U.S. Court of Appeals for the Third Circuit rendered a precedential opinion limiting the admissibility of prior criminal convictions under Federal Rule of Evidence 404(b). In this particular case, U.S. v. Terrell Davis, No. 12-1486, the defendant was arrested by Philadelphia Police in the 5100 block of Market Street with nearly a kilogram of cocaine in the backseat of his vehicle. Defendant Davis and his co-defendant, Jamar Blackshear, were charged with possession of a controlled substance with the intent to distribute under 21 U.S.C. 841 (a)(1), possessing a firearm in furtherance of a drug-trafficking crime under 18 U.S.C. 924(c), and aiding and abetting under 18 U.S.C. 2. At trial, a jury found Davis guilty of the drug violation and not guilty of the gun violation.
Among the issues raised on appeal was the admission of Davis’ two prior convictions for possession of cocaine. Under Fed. R. Evid. 404(b), “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” However, prior acts evidence may be admissible for another purpose, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The District Court admitted Davis’ 2007 and 2008 convictions for the limited purpose of demonstrating that the substance found in the back of the vehicle was, in fact, cocaine (although the government argued on appeal that it was also admissible to prove intent). In his Opinion for the Court, Judge Smith noted that “one who possesses a drug might not recognize the same drug when prepared for distribution.” Cocaine comes in different forms and can be packaged in a variety of ways. The jury in the instant case had no way of knowing how the cocaine appeared in the prior convictions.
Rule 404 (b) has led to a four-part test for the admissibility of prior-acts evidence. Such evidence will only be admitted if it is (1) offered for a proper purpose under Rule 404(b)(2); (2) relevant to that purpose; (3) sufficiently probative under the Rule 403 balancing test; and (4) accompanied by a limiting instruction, if requested. Huddleston v. United States, 485 U.S. 681, 691-92 (1988). The Third Circuit held that Davis’ convictions were inadmissible for any purpose, and the Court joined the Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits in holding that a possession conviction is inadmissible to prove intent to distribute. The Court also noted that no instruction could have “eliminated the infirmity at the heart of this case.” Davis’ conviction was overturned, and the case was remanded.
Only time will tell whether the use of prior convictions in prosecutions for other types of alleged criminal violations will be limited moving forward. The full Davis opinion is available at 2013 WL 4035547.