Thursday, December 31, 2009
What Are Your Intentions?: Seventh Circuit Finds Prior Drug Crimes Admissible To Prove Intent Under Rule 404(b) In New Year's Eve Related Case
Federal Rule of Evidence 404(b) provides that
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
So, can the prosecution present evidence of a defendant's prior drug conviction(s) in a subsequent drug prosecution where intent is an element? That was the question faced by the Seventh Circuit in its recent opinion in United States v. Harris, 587 F.3d 861 (7th Cir. 2009). The court's answer? There is tension in its case law on the issue in general, but evidence of a defendant's prior drug conviction is always admissible in cases in which the defendant, while admitting possession of a drug, denies the intent to distribute it.
a citizen approached three Chicago police officers on patrol and told them about suspicious activity in a nearby alley. The officers drove to the alley in their unmarked police car. There, the officers saw that after Jerome Harris noticed their car, he threw a clear plastic bag to the ground and began to walk away. The officers picked up the bag and discovered that it had twelve individual bags inside it. Each contained a white, rock-like substance. Harris was arrested on the suspicion, later confirmed, that the substance was illicit...Harris told the officers that he knew of an apartment where guns and drugs were kept. Police went to the address Harris provided and found an inoperable .32 revolver. Harris also told one of the officers that he had stored two firearms that morning at the residence of his girlfriend, Porsche Andrews....Officers went to Andrews's apartment....After the officers' initial search did not yield any guns, the officers brought a handcuffed Harris into the home. Harris indicated the location of the guns to the officers, and the officers recovered a loaded .40 semi-automatic handgun and a loaded .45 pistol from a storage container inside Andrews's bedroom. In response to an officer's question of whether the guns were operable, Harris responded with something along the lines of, "Hell, yeah, they work. I shot them both on New Year's Eve."
Harris was thereafter convicted of being a felon in possession of a handgun and possession with the intent to distribute a mixture containing cocaine base in the form of crack cocaine. Harris subsequently appealed, claiming, inter alia, that the district court erred in allowing the prosecution to present evidence at trial that he had sold drugs on at least five occasions before his arrest.
The Seventh Circuit disagreed, finding that the evidence of these prior drug crimes was admissible to prove Harris' intent under Federal Rule of Evidence 404(b). The court did acknowledge that "there is tension in our case law as to whether prior drug convictions are always admissible in a subsequent drug prosecution where intent is an element." The court found, however, that it did not need to resolve this tension because tension because Harris admitted that he possessed cocaine and simply denied that intended to distribute it. According to the court,
Under the circumstances of Harris's case, however, our cases are in harmony. "The most obvious justifiable situation in which prior convictions are admissible in drug prosecutions on the issue of intent are in those situations in which the defendant, while admitting possession of the substance, denies the intent to distribute it.
I'm not sure that I agree with this conclusion because I think that jurors will use this evidence to conclude, "Once a drug dealer, always a drug dealer." But, as things stand, the Seventh Circuit will always find this evidence admissible.