F I L E D United States Court of Appeals Tenth Circuit
SEP 22 1997 UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 96-5236 v. (N.D. Oklahoma) RICKY DEAN COLE, (D.C. No. 96-CR-51-BU)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Ricky Dean Cole appeals his jury conviction for possession of PCP with
intent to distribute in violation of 21 U.S.C. § 841(a)(1). He contends that the
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. district court abused its discretion by admitting, without a limiting instruction,
evidence concerning a planned drug transaction for which he was not charged,
and that it committed plain error by allowing other prejudicial testimony. We
affirm.
Sometime in late January or early February 1996, Cole met Reva Akee at a
club in Tulsa, Oklahoma. Appellant’s Br. at 2. During the next few weeks, Cole
told Akee that he had been in prison for drug violations, that “they had made him
work when he was there,” and that he “never wanted to work another day in his
life.” R. Vol. V at 38. Instead, he wanted to borrow money from Akee in order
to set up a drug dealing business through a connection that he had in Dallas,
Texas. Id. at 55-56. When Akee was unable to dissuade Cole from his scheme,
she called the DEA to report his plans. Id. at 56-59. DEA agent Tom Huckabee
answered the call and advised Akee to tell Cole that Huckabee was a friend of
hers who might be interested in a deal. He further advised her to give Cole his
pager number, and to tell him to leave a pager message if he had drugs to sell. Id.
at 59, 102. Thereafter, Cole contacted Huckabee, asked for $5,000 to help set up
a drug business, and proposed that Huckabee go with him on a trip to Dallas to
purchase crack cocaine. Id. at 105-06. Shortly before the planned trip to Dallas,
Cole paged Huckabee and informed him that he had sixteen ounces of PCP which
-2- he had to sell immediately so that his brother could go to California to “re-up” or
purchase more. Id. at 110.
Huckabee and Cole agreed to a meeting at the Ramada Inn parking lot. Id.
at 111-12. DEA agents arrived early to set up to videotape the transaction, and
Huckabee wore an audio transmitter so that his conversation with Cole could be
simultaneously recorded on the videotape. R. Vol. VI at 120-21. Cole arrived
with Akee as planned. Cole showed Huckabee a bottle of PCP which Huckabee
smelled to verify, and, as soon as the two agreed on a price, Huckabee arrested
Cole for attempting to sell PCP to undercover DEA agents. Id. at 130-32. At the
police station Cole made additional inculpatory statements. 1 Id. at 144.
Subsequently, the government obtained a single count indictment which charged
Cole with possession with intent to distribute approximately sixteen ounces of
PCP in violation of 21 U.S.C. § 841(a)(1). R. Vol. I, Tab 1.
A. Evidence of Discussions Regarding Uncharged Activities
Citing Fed. R. Evid. 403, Cole moved for an order barring the government
from introducing any evidence of the conversations concerning the planned trip to
Dallas to purchase crack cocaine or of his felony or prison record. R. Vol. I, Tab
14 at 3-4. The government argued (1) that the conversations were part of the “res
1 Cole does not appeal the denial of his motion to suppress those statements.
-3- gestae” of the charged offense, and (2) alternatively, that they were admissible
under Fed. R. Evid. 404(b) to show motive, knowledge, and intent. Id., Tab 12 at
8-14. The district court took Cole’s motion under advisement, noting that it
would rule “at the time the evidence comes up and [it could] see what context it
comes up in and how it is going to be used.” R. Vol. V. at 31.
Apparently, in her opening statement, Cole’s counsel implied that Akee,
and not Cole, had been the instigator of the PCP sale. 2 Id. at 37-38. In order to
show that Cole had been planning to sell illegal drugs even before he met Akee,
the government asked for a ruling on the introduction of evidence of Cole’s
conversations “from the get-go,” regarding his Dallas connection, his attempts to
borrow money to set up drug deals, and his prison experience. Id. at 37-38, 41.
In a bench ruling immediately prior to the swearing in of the government’s first
witness, the district court granted Cole’s 403 motion to the extent of excluding
evidence of his prison and felony record. However, the court ruled that the
government could introduce testimony about the “Dallas conversation as to what
[Cole’s] activity was.” Id. at 41.
We review a district court's admission of evidence for abuse of discretion.
Old Chief v. United States, 117 S. Ct. 644, 647 n.1 (1997); United States v.
In pretrial filings and hearings, Cole also indicated that he might raise an 2
entrapment defense. R. Vol. I, Tab 12 at 6-8, Tab 14 at 3; R. Vol. III at 8.
-4- DeLuna, 10 F.3d 1529, 1531 (10th Cir. 1993). Initially, we observe that res
gestae evidence and evidence admissible for one of the purposes specified in Fed.
R. Evid. 404(b) “are not always separated by a bright line.” United States v.
Kimball, 73 F.3d 269, 272 (10th Cir. 1995). Although the district court in this
case did not explicitly indicate which rationale governed its admission of the
testimony concerning the Dallas trip, we find no abuse of discretion, since the
evidence would be admissible under either standard.
Thus, “[e]vidence of other crimes should not be suppressed when those
facts come in as res gestae--‘as part and parcel of the proof of the [charged]
offense.’” Id. (further noting that evidence is admissible when it provides the
context for the crime, is essential to fully present the case, or is appropriate to fill
out the story of the crime on trial) (internal quotations omitted); see also Old
Chief, 117 S. Ct. at 653-654 (generally approving the “use of witnesses to
describe a train of events naturally related”); United States v. Record, 873 F.2d
1363, 1372 (10th Cir. 1989) (noting that evidence of other acts is intrinsic if the
witness’ testimony would be incomplete or confusing without it).
Free access — add to your briefcase to read the full text and ask questions with AI
F I L E D United States Court of Appeals Tenth Circuit
SEP 22 1997 UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 96-5236 v. (N.D. Oklahoma) RICKY DEAN COLE, (D.C. No. 96-CR-51-BU)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Ricky Dean Cole appeals his jury conviction for possession of PCP with
intent to distribute in violation of 21 U.S.C. § 841(a)(1). He contends that the
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. district court abused its discretion by admitting, without a limiting instruction,
evidence concerning a planned drug transaction for which he was not charged,
and that it committed plain error by allowing other prejudicial testimony. We
affirm.
Sometime in late January or early February 1996, Cole met Reva Akee at a
club in Tulsa, Oklahoma. Appellant’s Br. at 2. During the next few weeks, Cole
told Akee that he had been in prison for drug violations, that “they had made him
work when he was there,” and that he “never wanted to work another day in his
life.” R. Vol. V at 38. Instead, he wanted to borrow money from Akee in order
to set up a drug dealing business through a connection that he had in Dallas,
Texas. Id. at 55-56. When Akee was unable to dissuade Cole from his scheme,
she called the DEA to report his plans. Id. at 56-59. DEA agent Tom Huckabee
answered the call and advised Akee to tell Cole that Huckabee was a friend of
hers who might be interested in a deal. He further advised her to give Cole his
pager number, and to tell him to leave a pager message if he had drugs to sell. Id.
at 59, 102. Thereafter, Cole contacted Huckabee, asked for $5,000 to help set up
a drug business, and proposed that Huckabee go with him on a trip to Dallas to
purchase crack cocaine. Id. at 105-06. Shortly before the planned trip to Dallas,
Cole paged Huckabee and informed him that he had sixteen ounces of PCP which
-2- he had to sell immediately so that his brother could go to California to “re-up” or
purchase more. Id. at 110.
Huckabee and Cole agreed to a meeting at the Ramada Inn parking lot. Id.
at 111-12. DEA agents arrived early to set up to videotape the transaction, and
Huckabee wore an audio transmitter so that his conversation with Cole could be
simultaneously recorded on the videotape. R. Vol. VI at 120-21. Cole arrived
with Akee as planned. Cole showed Huckabee a bottle of PCP which Huckabee
smelled to verify, and, as soon as the two agreed on a price, Huckabee arrested
Cole for attempting to sell PCP to undercover DEA agents. Id. at 130-32. At the
police station Cole made additional inculpatory statements. 1 Id. at 144.
Subsequently, the government obtained a single count indictment which charged
Cole with possession with intent to distribute approximately sixteen ounces of
PCP in violation of 21 U.S.C. § 841(a)(1). R. Vol. I, Tab 1.
A. Evidence of Discussions Regarding Uncharged Activities
Citing Fed. R. Evid. 403, Cole moved for an order barring the government
from introducing any evidence of the conversations concerning the planned trip to
Dallas to purchase crack cocaine or of his felony or prison record. R. Vol. I, Tab
14 at 3-4. The government argued (1) that the conversations were part of the “res
1 Cole does not appeal the denial of his motion to suppress those statements.
-3- gestae” of the charged offense, and (2) alternatively, that they were admissible
under Fed. R. Evid. 404(b) to show motive, knowledge, and intent. Id., Tab 12 at
8-14. The district court took Cole’s motion under advisement, noting that it
would rule “at the time the evidence comes up and [it could] see what context it
comes up in and how it is going to be used.” R. Vol. V. at 31.
Apparently, in her opening statement, Cole’s counsel implied that Akee,
and not Cole, had been the instigator of the PCP sale. 2 Id. at 37-38. In order to
show that Cole had been planning to sell illegal drugs even before he met Akee,
the government asked for a ruling on the introduction of evidence of Cole’s
conversations “from the get-go,” regarding his Dallas connection, his attempts to
borrow money to set up drug deals, and his prison experience. Id. at 37-38, 41.
In a bench ruling immediately prior to the swearing in of the government’s first
witness, the district court granted Cole’s 403 motion to the extent of excluding
evidence of his prison and felony record. However, the court ruled that the
government could introduce testimony about the “Dallas conversation as to what
[Cole’s] activity was.” Id. at 41.
We review a district court's admission of evidence for abuse of discretion.
Old Chief v. United States, 117 S. Ct. 644, 647 n.1 (1997); United States v.
In pretrial filings and hearings, Cole also indicated that he might raise an 2
entrapment defense. R. Vol. I, Tab 12 at 6-8, Tab 14 at 3; R. Vol. III at 8.
-4- DeLuna, 10 F.3d 1529, 1531 (10th Cir. 1993). Initially, we observe that res
gestae evidence and evidence admissible for one of the purposes specified in Fed.
R. Evid. 404(b) “are not always separated by a bright line.” United States v.
Kimball, 73 F.3d 269, 272 (10th Cir. 1995). Although the district court in this
case did not explicitly indicate which rationale governed its admission of the
testimony concerning the Dallas trip, we find no abuse of discretion, since the
evidence would be admissible under either standard.
Thus, “[e]vidence of other crimes should not be suppressed when those
facts come in as res gestae--‘as part and parcel of the proof of the [charged]
offense.’” Id. (further noting that evidence is admissible when it provides the
context for the crime, is essential to fully present the case, or is appropriate to fill
out the story of the crime on trial) (internal quotations omitted); see also Old
Chief, 117 S. Ct. at 653-654 (generally approving the “use of witnesses to
describe a train of events naturally related”); United States v. Record, 873 F.2d
1363, 1372 (10th Cir. 1989) (noting that evidence of other acts is intrinsic if the
witness’ testimony would be incomplete or confusing without it). Especially in
light of Cole’s insistence that Akee induced him to sell the PCP, we conclude that
the evidence of Cole’s contemporaneous conversations regarding his plans and
activities was not only naturally related to the crime charged, but also provided its
structure and context and was essential to a full presentation and proof.
-5- Moreover, the evidence would also be admissible under Fed. R. Evid.
404(b). As set forth in Huddleston v. United States, 485 U.S. 681, 691-92 (1988),
evidence of other wrongs or acts is properly admitted under Rule 404(b) if: (1) it
is offered for a proper purpose under the Rule; (2) it is relevant; (3) the trial court
makes a Rule 403 assessment that the probative value is not substantially
outweighed by the potential for unfair prejudice; and (4) the trial court, upon
request, instructs the jury that the evidence is to be considered only for the proper
purpose for which it was admitted.
Contrary to Cole’s contention, no limiting instruction is required in the
absence of a request pursuant to Fed. R. Evid. 105. Id. Additionally, the district
court need not identify the purposes for admitting other acts testimony, so long as
the purpose is apparent from the record. United States v. Porter, 881 F.2d 878,
885 (10th Cir. 1989). In this case, the evidence clearly goes to show Cole’s
intent, preparation, plan, and knowledge. Furthermore, the court’s express
consideration of the testimony’s admissibility in relation to the context in which it
was offered, R. Vol. V at 31, evinces a proper Rule 403 balancing of its probative
value against its potential for prejudice. 3
3 This balancing was further demonstrated by the court’s simultaneous exclusion of any felony or prison record evidence.
-6- B. Other Testimony -- Plain Error
Although Cole did not object at trial, he now contends that the government
elicited testimony concerning a number of matters which were irrelevant to the
charged criminal act, and which were so prejudicial that they constitute plain
error which must be corrected. The complained-of testimony includes Akee’s
statements that Cole explained the use of PCP in combination with other drugs,
that Cole told her his parents kept drugs on their property, that he told her he
wanted to “rip-off” his brother by telling him Akee had been “busted” before they
had been able to complete the PCP sale, and that he threatened her with harm if
anything went wrong. Cole further complains of plain error on the admission of
Huckabee’s testimony implying that Cole used “too much of his product” and that
dope dealers are “greedy.” Appellee’s Br. at 11-13.
Before an appellate court can correct an error that was not raised at trial
there must be (1) an “error,” (2) that is “plain” or obvious, and (3) that “affect[s]
substantial rights.” Johnson v. United States, 117 S. Ct. 1544, 1549 (1997)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). An error affects
substantial rights if it is prejudicial, i.e. if it affected the outcome of the
proceedings. Olano, 507 U.S. at 734. In all cases, the defendant bears the burden
to show prejudice from plain error. Id. Additionally, after all other criteria are
satisfied, an appellate court may exercise its discretion to notice a forfeited error
-7- only if the error “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Johnson, 117 S. Ct. at 1549 (quoting Olano, 507 U.S. at
732).
In this case, the government presented overwhelming evidence of Cole’s
guilt of the crime charged, including the audio/video tape of the transaction, and
Cole’s own subsequent inculpatory statements. Under the circumstances, Cole
has not carried his burden of demonstrating prejudice. Consequently, we lack
authority to correct any error he now claims. See Olano, 507 U.S. at 732.
Accordingly, we AFFIRM.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge
-8-