United States v. Elzie

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-30306 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRAD ELZIE,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (94-CR-150) _________________________________________________________________ November 16, 1995

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Brad Elzie was convicted by jury of attempt to possess with

intent to distribute five kilograms of cocaine. Before trial,

Elzie moved for discovery of other similar acts or convictions that

the government planned to introduce at trial under Federal Rule of

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. Evidence 404(b)1 and argued that, even if admissible, the danger of

unfair prejudice required exclusion under Rule 403. The government

responded with its notice of intent to introduce evidence relating

to Elzie's conviction on June 15, 1993, for possession of cocaine

and marijuana for the purpose of proving Elzie's intent to

distribute in the present offense. The government outlined the

testimony it intended to introduce to prove the previous

conviction. Elzie did not object to any alleged insufficiency in

the government's notice.

The district court ruled that the government, having given

proper notice, was entitled to offer the Rule 404(b) evidence

because Elzie disputed that he held the requisite intent to commit

the crime charged and the probative value of the evidence was not

substantially outweighed by any prejudicial effect.

At trial, Elzie made a general objection to the introduction

of the Rule 404(b) evidence. The district court read its previous

ruling into the record and overruled the general objection. The

government introduced documentary evidence of Elzie's previous

arrest through one of the arresting officers, Lester Marshal, and

elicited testimony relating to the events leading to the arrest.

Elzie did not object to the scope or content of the testimony. The

1 "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. . . ." Fed. R. Evid. 404(b).

-2- district court gave the jury a limiting instruction after the

evidence was introduced and in the general charge directing the

jury to consider the evidence of Elzie's prior acts only for the

limited purpose of proving state of mind, intent, motive,

opportunity, or a plan.

After conviction and sentencing, Elzie timely appealed his

conviction.

I

NOTICE OF RULE 404(b) EVIDENCE

Elzie argues that the government's notice to introduce

evidence of Elzie's previous conviction for possession of cocaine

did not provide adequate notice that it intended to elicit

testimony from Marshal relating to the specific events leading to

the arrest. Elzie contends that the testimony of Lester Marshal,

one of the arresting officers, implied that Elzie distributed

cocaine at the time of his arrest and on other occasions. Elzie

contends that because the notice related only to introduction of

evidence of a previous conviction for possession of cocaine, it was

insufficient to provide notice of introduction of evidence of

previous distribution of cocaine. Elzie contends that he was

surprised at trial and did not have adequate time to prepare

rebuttal. As such, Elzie argues that the district court erred in

admitting the evidence.

To preserve error for review regarding the admission of

evidence, a party must state a specific ground of objection, unless

-3- the specific ground is apparent from the context of the record.

Fed. R. Evid. 103(a)(1). At trial, Elzie raised a general

objection to the government's introduction of evidence of his

previous conviction, without stating the specific grounds for his

objection. Based on Elzie's objection in his motion for discovery

and the context of the court's ruling, the objection appears to

have been premised on Elzie's argument that the Rule 404(b)

evidence was too prejudicial under Rule 403 to allow admission.

Further, Elzie failed to object during Marshal's testimony

regarding inadequate notice of the scope of the testimony.

Therefore, Elzie failed to object to the admission of the Rule

404(b) evidence based on insufficient notice. See Rule 103(a)(1).

Under Fed. R. Crim. P. 52(b), we may correct forfeited errors

only when the appellant shows the following factors: (1) there is

an error, (2) that is clear or obvious, and (3) that affects his

substantial rights. United States v. Calverley, 37 F.3d 160, 162-

64 (5th Cir. 1994)(en banc), cert. denied, 115 S.Ct. 1266 (1995)

(citing United States v. Olano, 113 S.Ct. 1770, 1776-79 (1993)).

If these factors are established, the decision to correct the

forfeited error is within the sound discretion of the court, and

the court will not exercise that discretion unless the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Olano, 113 S.Ct. at 1778.

Elzie's argument fails at the first step of the Olano analysis

because he has failed to show clear or obvious error affecting his

-4- substantial rights. Rule 404(b) requires notice of "the general

nature" of any anticipated evidence. See Fed. R. Evid. 404(b).

The notice provided by the government satisfied such requirement by

specifying the prior conviction it intended to introduce and

alerting Elzie to the fact that "testimony about defendant's prior

acts will come from a New Orleans police officer who investigated

the defendant for violating Louisiana drug laws." The government's

notice established that its purpose in introducing the previous

conviction of possession of cocaine was to "show [Elzie's] numerous

contacts in the drug world gained by past experience in drug

dealing and a readiness to deal in a variety of controlled

substances, for example, marijuana and cocaine."

The district court did not commit plain error in admitting the

government's Rule 404(b) evidence in relation to the notice issue.

II

PREJUDICE

In the alternative, Elzie argues that the district court

should not have admitted Marshal's testimony under Federal Rule of

Evidence 403 because the testimony's prejudicial effect

substantially outweighed any probative value.

Elzie contends that during the events leading to his previous

arrest, Marshal was not in a position to witness whether Elzie

bought or sold cocaine and, thus, his testimony was unreliable in

relation to the issue whether Elzie previously distributed drugs.

However, Elzie's argument is irrelevant in relation to the purpose

-5- for which the testimony was offered: to establish that his previous

possession was probative of his disputed intent to distribute in

the charged offense.2 See, e.g., Ponce, 8 F.3d at 994; Gadison, 8

F.3d at 192; Willis, 6 F.3d at 262. As an arresting officer,

Marshal was in a position to testify to Elzie's previous arrest and

conviction for possession of cocaine and marijuana.

The district court did not abuse its discretion in admitting

the Rule 404(b) evidence.

III

LIMITATION OF CROSS-EXAMINATION

Elzie argues that the district court erred by limiting his

cross-examination of Marshal, denying him due process and his right

to confront witnesses. Elzie contends that such limitation misled

the jury because it never learned that Elzie was previously charged

with only possession of cocaine and marijuana, not distribution.

Elzie contends that the district court also improperly limited his

cross-examination relating to Marshal's bias and interest.

Elzie's argument is without merit. During cross-examination,

Elzie elicited from Marshal testimony that Elzie was previously

charged and convicted only of possession, not distribution, and the

district court limited further cross-examination on this subject

only on the basis of repetitive and argumentative questioning. The

2 At trial, Elzie disputed whether he possessed the requisite intent to commit the charged offense by claiming he was tricked into committing the offense and did not know he was carrying money to purchase drugs.

-6- district court denied Elzie's cross-examination of Marshal relating

to Marshal's previous partner's drug conviction for the purpose of

showing Marshal's bias and lack of credibility.

The district court restricted Elzie's cross-examination of

Marshal based on the nature of the previous conviction because the

questions had already been asked and answered. Thus, Elzie's

cross-examination was not limited in any manner. The district

court restricted cross-examination relating to Marshal's partner's

conviction because it was irrelevant to his own credibility. A

reasonable jury would not have received a significantly different

impression of Marshal's credibility had Elzie pursued his proposed

line of cross-examination. See United States v. Baresh, 790 F.2d

392, 400-01 (5th Cir. 1986).

The district court's restriction of Elzie's cross-examination

was not an abuse of discretion.

A F F I R M E D.

-7-