United States v. Kelley

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 6, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee, No. 05-5040 v. (N.D. Oklahoma) B OBBY D A LE K ELLEY , (D.C. No. 03-CR-154-HDC) Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before H E N RY, HOL LOW A Y, and LUCERO, Circuit Judges.

On December 9, 2004, a jury convicted Bobby Dale K elley of conspiracy to

manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(viii), and 846. In light of his two previous felony drug convictions,

the district court sentenced him to life imprisonment. On appeal, M r. Kelley

challenges (1) the district court’s treatment of the jury’s note indicating it was

deadlocked, (2) the sufficiency of evidence supporting his conviction, and the

admission at trial (3) of evidence of a subsequent criminal conviction and (4)

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. certain rebuttal testimony. W e exercise jurisdiction under 28 U.S.C. § 1291 and

affirm.

I. BACKGROUND

In July 2002, police officers initiated a drug investigation connected to

Kristopher Covey. Officers later obtained a warrant to search for firearms and

ammunition at M r. Covey’s residence in Claremore, Oklahoma. Two houses w ere

located on the property to be searched: a smaller H ouse A and a larger H ouse B.

Police obtained a search warrant only for M r. Covey’s residence, House B. The

warrant did not mention M r. K elley.

On the evening of September 9, 2002, Claremore Police Officer John

Singer and members of the Tw elfth District Drug Task Force executed the search

warrant at House B. Inside the home, police found firearms, surveillance

equipment, and evidence of methamphetamine m anufacture and distribution. In

the living room, officers found several items used to manufacture

methamphetamine, including reagents, solvents, liquid iodine, peroxide, starting

fluid, and plastic gloves. Rec. vol. III, at 36, 38. In the southeast bedroom,

Officer Singer found two guns, methamphetamine residue, cold medicine

containing pseudoephedrine, and precursors and reagents used to manufacture

methamphetamine. Id. at 36-37. In the northeast bedroom, officers discovered a

glass pipe used to smoke methamphetamine, a picture of M r. Kelley inside H ouse

-2- A, a television monitor connected to a surveillance system, a letter addressed to

M r. K elley, and a bolt-action rifle without any bullets. Id. at 41-45; Rec. vol. IV ,

at 96-97. Police also came across a schoolbook and a few items of clothing in the

northwest bedroom, indicating that M r. Kelley’s daughter had lived there. Rec.

vol. III, at 46.

Prior to the search, Officer Singer had talked to Don Charles, who owned

the property on which both houses were located. M r. Charles gave police

permission to search the metal horse barn located betw een Houses A and B.

D uring the September 9 search, officers searched the barn and discovered two

plastic tack boxes emanating an odor. Officers believed these boxes had been

used to manufacture methamphetamine. M r. Charles did not own the boxes. That

evening, officers obtained an additional search warrant for the boxes and

subsequently found “a complete, large-scale methamphetamine production

laboratory” inside the boxes. Id. at 49. Items in the boxes included red

phosphorus, a flask, pH papers, iodine, sodium hydroxide, drain cleaner, solvents,

rubber tubing, and an electric hot plate. Id. at 49-57.

Following the evening search on September 9, officers waited in the dark

for someone to return to House B. M r. Covey arrived at the residence shortly

after midnight and was taken into custody. He waived his M iranda rights and

spoke to police. M r. Covey stated that M r. Kelley was on his way to the

residence with ephedrine to manufacture methamphetamine. Phone records

-3- confirm ed that the tw o men had talked at 11:57 p.m. that evening. Rec. vol. IV,

at 83-84, 163. Officers remained at the property until 3 a.m., but M r. Kelley did

not show up. M r. Kelley was eventually arrested for a warrant in Florida on July

30, 2003.

A superceding indictment charged M r. Kelley with conspiracy to

manufacture at least 500 grams of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(viii), and 846. Before trial, the government notified

M r. Kelley of its intent to use two prior felony drug convictions to enhance his

sentence: (1) unlawful possession of a controlled drug (October 1997); and (2)

unlaw ful possession of a controlled dangerous substance with intent to distribute

(February 1998). The government also informed M r. Kelley before trial that it

would introduce evidence of his subsequent methamphetamine conviction in

Florida. The parties stipulated that M r. Kelley was convicted on September 11,

2003 of felony methamphetamine possession. The district court admitted the

evidence and gave a limiting instruction to the jury.

At M r. Kelley’s trial in December 2004, M r. Covey provided extensive

testimony about manufacturing methamphetamine with M r. Kelley and another

individual named M ike Helton. 1 In April 2002, M r. Helton brought M r. Kelley

1 At M r. Kelley’s trial, M r. Covey stated that he had pleaded guilty to felony possession of a firearm in furtherance of a drug trafficking crime, and he was testifying in order to cooperate with the government. Rec. vol. IV, at 132.

-4- over to House B and taught M r. Covey how to cook methamphetamine. Rec. vol.

IV, at 135-36. M r. Covey testified that during this first meeting M r. Helton “was

in control” and M r. Kelley “pretty much just helped him out.” Id. at 137. On the

first night together, they manufactured approximately 100 grams of

methamphetamine and divided it into three portions. Id. at 139. M r. Covey

estimated that the three men subsequently had cooked methamphetamine 15 to 20

times together, producing 60 to 90 grams each time. Id. at 142, 145. Each time,

they equally divided the cooked methamphetamine betw een them. Id. at 145-46.

M r. Covey testified that M r. Kelley and he manufactured methamphetamine

without M r. Helton approximately five times, also producing 60 to 90 grams each

time and equally dividing the product. Id. at 142, 145-46. The cooking was

always done at the Claremore residence, and each of the three men contributed

necessary manufacturing items when they cooked together. Id. at 144. At some

point, M r. Covey and M r. Kelley began cooking without M r. Helton because he

had stopped bringing ingredients. Id. at 151-52. M r. Covey stated that he had

kept equipment used to cook methamphetamine in two boxes in a metal horse

barn. Id. at 161-62.

M r. Covey also testified that, in mid-July 2002, M r. Kelley moved in with

him at House A. The two men moved into House B in August 2002. In House B,

M r. Covey stayed in the southeast bedroom and M r. Kelley stayed in the northeast

bedroom. Id. at 149. W hile M r. Kelley stayed at House B, his girlfriend and

-5- daughter also stayed there.

M r. Charles, owner of the two rental houses and the barn, testified that he

had rented House A to M r. Covey during the summer of 2002. In August 2002,

M r. Covey moved into the larger of the houses, and an individual named “Uncle

Bobby” lived with him. Id. at 190-91. M r. Charles occasionally saw “Uncle

Bobby” when he visited the property, and he identified after the search a

photograph of M r. Kelley as the man w ho lived with M r. Covey and had been

called “Uncle Bobby.” Id. at 77-78.

M r. Kelley called five witnesses in his defense, and he elected not to testify

during trial. His brother, Bryan Kelley, testified that he visited the Claremore

residence in late August 2002 to pick up his brother’s and niece’s belongings

because M r. Kelley had moved to Tahlequah and his daughter had moved to

Coweta. Rec. vol. IV, at 205-08. David Kelley, the defendant’s father, stated at

trial that his son lived with him in Coweta until early August 2002 and then

moved to Claremore. Id. at 256-57, 259. M r. Kelley later moved to the family’s

Tahlequah farm during Labor D ay weekend in 2002. Id. at 259. Ben Clavet

testified that M r. Kelley was at the Tahlequah farm from early September through

November of 2002. Id. at 254-55.

As rebuttal evidence, the government offered testimony of Gayla Eldridge,

M r. Kelley’s former girlfriend. M r. Kelley objected to the introduction of her

rebuttal testimony, but the court overruled the objection. M s. Eldridge testified

-6- that M r. Kelley and she started living at M r. Covey’s residence in late July 2002,

and M r. C ovey and M r. K elley cooked methamphetamine there. Id. at 298, 301,

303.

After hearing testimony for three days, the jury began deliberations on the

afternoon of December 8, 2004. The next day, the jury continued deliberations

but M r. K elley’s counsel, Jack Gordon, had to leave for a family emergency.

Robert Ridenour, an Assistant Federal Public Defender, replaced M r. Gordon and

represented M r. Kelley during the remaining jury deliberations. M r. Kelley

agreed to the situation, and M r. G ordon remained available by cell phone.

At 4:20 p.m. on December 9, the jury informed the court that it could not

reach a verdict. The court read the note to counsel and stated “I propose to let

them stay in there until about a quarter till 5:00, and then I propose to call them

into the courtroom . . . and give them . . . a modified Allen charge.” Rec. vol. V ,

at 394. After further discussion with counsel, the district court stated:

W ell, it seems to . . . me we ought to give this Allen charge. W ait until about a quarter of 5:00, give this, [and] send them home. And this is one that you give at the end of the day. The other Allen charge is you send them immediately back to consider, but because it’s this time I think this probably is more appropriate.

Id. at 400. The court allowed M r. Ridenour to contact M r. Gordon by cell phone

to discuss how to proceed. In the meantime, at 4:36 p.m. the jury sent another

note, indicating it had reached a verdict. The jury announced the verdict at 4:45

p.m. It found M r. Kelley guilty of conspiracy to manufacture 500 grams or more

-7- of methamphetamine.

On M arch 17, 2005, the district court sentenced M r. Kelley to mandatory

life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(viii) (“[A]fter two or more prior

convictions for a felony drug offense have become final, such person shall be

sentenced to a mandatory term of life imprisonment without release.”).

M r. Kelley timely appeals the judgment and sentence on four separate

grounds. He maintains (1) the district court’s failure to inquire promptly into the

deadlocked jury’s note at 4:20 p.m. led to a coerced verdict; (2) the government

failed to present sufficient evidence to convict him of the conspiracy; (3) the

court improperly allowed the government to offer evidence of his 2003 conviction

for methamphetamine possession; and (4) the court abused its discretion when it

allowed M s. Eldridge to testify as a rebuttal witness for the government. W e

separately examine each challenge below.

II. D ISC USSIO N

A. Challenge to the court’s treatment of the deadlocked jury’s note

The Supreme Court approved of a supplemental jury instruction to a

deadlocked jury in Allen v. United States, 164 U.S. 492, 501-02 (1896). Courts

have subsequently given Allen or “dynamite” charges “to encourage unanimity

(without infringement upon the conscientious views of each individual juror) by

urging each juror to review and reconsider the evidence in light of the views

-8- expressed by other jurors.” United States v. Smith, 857 F.2d 682, 683-84 (10th

Cir. 1988).

W e generally review a district court’s decision to give an Allen charge for

an abuse of discretion. United States v. Reed, 61 F.3d 803, 805 (10th Cir. 1995).

However, because M r. Kelley did not object below to the district court’s failure to

give an Allen charge, we review this issue for plain error. See United States v.

Olano, 507 U.S. 725, 732 (1993). To establish plain error, a defendant must show

(1) an error (2) that is plain, (3) affects substantial rights, and (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings. United States

v. Gonzalez-Huerta, 403 F.3d 727, 732-33 (10th Cir. 2005) (en banc).

M r. Kelley contends that the district court should have immediately

questioned the deadlocked jury, and this failure to make a proper inquiry of the

jurors caused a potentially coerced verdict because the jury had no guidance from

the court. W e reject these arguments and conclude the court’s treatment of the

jury’s note was not plain error. “[A] court is not required to accept the judgment

of a jury that is hopelessly deadlocked, and may require it to continue

deliberating.” Gilbert v. M ullin, 302 F.3d 1166, 1174 (10th Cir. 2002) (internal

quotation marks omitted). The note at 4:20 p.m. did not compel the court to issue

an Allen charge or to declare a mistrial immediately, and the court did not abuse

its discretion when it proposed to allow the jury 25 minutes of additional

deliberation while M r. Ridenour contacted M r. Gordon. Even if we construe the

-9- court’s response–not to advise the jury until 4:45 p.m.–as an implicit instruction

to continue deliberations, the jury was never tainted with an impermissibly

coercive charge that suggested a particular outcome.

M oreover, we can distinguish the facts here from M r. Kelley’s principal

authority for his argument that the court should have promptly examined the jury

and delivered an Allen charge. In United States v. M ejia, 356 F.3d 470, 473 (2d

Cir. 2004), a jury deadlocked 11 to 1 indicated to the district court at 2:10 p.m.

that it could not reach agreement. W ithout consulting counsel for the parties, the

court sent to the jury a copy of one page of the jury instructions. The court

highlighted the following sentences from the jury instructions: “Do not specify

what the verdict is in the note. . . . If you are divided do not report on how the

vote stands, and if you have reached a verdict, do not report what it is until you

are asked in open court.” Id. The court did not provide further guidance or an

Allen charge. At 3:00 p.m., the jury reached a verdict.

The Second Circuit acknowledged that the court’s failure to respond

directly to the deadlocked message “deprived [the jury] of necessary guidance.”

Id. at 477. In vacating the verdict, however, the circuit focused almost

exclusively on the prejudicial nature of the judge’s ex parte response and the

defense counsel’s inability to request an Allen charge after the deadlocked jury’s

note. Id. The Second Circuit characterized the court’s ex parte response as

“inappropriate, substantially erroneous and prejudicial” to the defendant, and of

-10- particular concern was “the short span of time between the [court’s ex parte]

response and the verdict.” Id.

Here, the district court similarly did not respond to the deadlocked jury

with immediate advice. An important distinction, though, is that the court here

did not communicate ex parte with the jury. It instead informed both parties of

the jury’s note from 4:20 p.m. and proposed to counsel an additional 25 minutes

of jury deliberations. The court also provided time for M r. Ridenour to contact

M r. Gordon to discuss the proposed Allen charge. Sixteen minutes later, the jury

reached its verdict. Such treatment of the jury’s note is not plain error.

B. Challenge to the sufficiency of the evidence

M r. Kelley moved for a judgment of acquittal at the end of the

government’s case, challenging the sufficiency of the evidence under Fed. R. Civ.

P. 29(a). The district court denied the motion. M r. Kelley did not renew the

motion at the conclusion of all the evidence, but he now raises the issue on

appeal. “[I]f no motion for acquittal is made at the close of all evidence, we

nevertheless review [a challenge to the sufficiency of the evidence on appeal] for

plain error under Fed. R. Crim. P. 52(b).” United States v. Bowie, 892 F.2d 1494,

1496 (10th Cir. 1990). For challenges to the sufficiency of evidence, however,

the plain-error standard is “essentially the same as if there had been a timely

motion for acquittal.” Id. at 1497. In both circumstances, we engage in “an

independent review of the legal question of sufficiency.” Id. (quotation marks

-11- omitted). Therefore, even though we review the issue for plain error, we still

determine “whether, taking the evidence–both direct and circumstantial, together

with reasonable inferences to be drawn therefrom–in the light most favorable to

the government, a reasonable jury could find [the] [d]efendant guilty beyond a

reasonable doubt.” United States v. Bass, 411 F.3d 1198, 1201 (10th Cir. 2005),

cert. denied, 126 S. Ct. 1106 (2006). “W e do not weigh conflicting evidence or

evaluate witness credibility; these are the exclusive province of the jury.” United

States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005).

“Under 21 U.S.C. § 846, the Government must prove beyond a reasonable

doubt: (1) an agreement with another person to violate the law, (2) knowledge of

the essential objectives of the conspiracy, (3) knowing and voluntary

involvement, and (4) interdependence among the alleged conspirators.” United

States v. Delgado-Uribe, 363 F.3d 1077, 1083 (10th Cir. 2004). “A jury may

infer guilt from the surrounding circumstances and presume that a defendant

acting in furtherance of a conspiracy is a knowing participant therein. An

agreement may be inferred from circumstantial evidence that indicates concerted

action.” Id. To be reasonable, however, the inference of an agreement must be

more than mere speculation and conjecture. See U nited States v. Jones, 44 F.3d

860, 865 (10th Cir. 1995).

M r. Kelley primarily contends that the government did not present

sufficient evidence that a conspiracy was established to manufacture at least 500

-12- grams of methamphetamine. He maintains that evidence only showed a suspicion

that he conspired to manufacture the charged amount. In a conspiracy, “the

critical inquiry is whether the circumstances, acts, and conduct of the parties are

of such a character that the minds of reasonable men may conclude therefrom that

an unlawful agreement exists.” United States v. M orehead, 959 F.2d 1489, 1500

(10th Cir. 1992) (internal quotation marks omitted). Because “direct evidence of

a conspiracy is often hard to come by[,] . . . conspiracy convictions may be based

on circumstantial evidence, and the jury may infer conspiracy from the

defendants’ conduct and other circumstantial evidence indicating coordination

and concert of action.” Dazey, 403 F.3d at 1159.

View ed in the light most favorable to the government, the evidence is

sufficient to support the jury’s conviction. Although no government witness

testified about an express agreement between M r. Kelly and M r. Covey or M r.

Helton to manufacture at least 500 grams of methamphetamine, the prosecution

presented ample evidence to allow the jury to infer reasonably that such an

agreement existed. M r. Covey testified that (1) M r. Kelley and he had cooked 60

to 90 grams of methamphetamine approximately five times, and (2) those two

men and M r. Helton had cooked 60 to 90 grams of methamphetamine an estimated

15 to 20 times. Rec. vol. IV, at 142, 145-46. M r. Kelley contributed items such

as ephedrine and iodine when the three men cooked methamphetamine. Id. at

144. The jury also could have believed M r. Covey’s testimony that, when he was

-13- taken into custody on the night of the search, M r. Kelley was returning to the

Claremore residence with ephedrine to manufacture methamphetamine. Id. at

163.

Further, the jury could have inferred from the evidence that M r. Kelley had

lived at M r. Covey’s residence where the methamphetamine laboratory was

located. Inside House B, officers found numerous items used to manufacture

methamphetamine, along with guns and a surveillance system. M r. Covey

testified that M r. Kelley had stayed in the southeast bedroom, where officers had

discovered two guns, cold medicine containing pseudoephedrine, and several

precursors and reagents used to cook methamphetamine. Rec. vol. III, at 36-37.

M r. Charles, the owner of the rental property, had seen M r. Kelley at the property

occasionally, and M r. Covey had told him that M r. Kelley lived with him. Rec.

vol. IV, at 190-91. Although “[m]ere presence at the scene of a crime does not,

by itself, prove involvement in an existing conspiracy, . . . [it] is a material

factor.” United States v. Hamlin, 986 F.2d 384, 386 (10th Cir. 1993) (internal

quotation marks omitted).

In light of the trial testimony and physical evidence found during the

search, a jury could have reasonably inferred that M r. Kelley conspired to

manufacture at least 500 grams of methamphetamine.

C. Challenge to the admission of evidence of a 2003 drug conviction

Before trial the government filed a notice of intent to offer evidence of M r.

-14- Kelley’s 2003 conviction for felony possession of methamphetamine. The

government wanted to introduce the evidence in its case-in-chief under Fed. R.

Evid. 404(b) to “prove that [M r.] Kelley was a user of methamphetamine who had

knowledge of methamphetamine, as well as motive, intent, and a plan to

manufacture methamphetamine, in part, to support his habit of use.” Rec. vol. I,

doc. 20, at 2. Rule 404(b) prohibits the admission “of other crimes, wrongs, or

acts . . . to prove the character of a person in order to show action in conformity

therewith.” F ED . R. E VID . 404(b). Such evidence “may, however, be admissible

for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Id.

M r. Kelley filed a motion in limine to preclude admission of the evidence

of his conviction, arguing that his unrelated conviction for personal-use

possession of methamphetamine did not tend to prove his guilt for the charged

conspiracy offense. The district court denied the motion during a pre-trial

conference. The parties later stipulated at trial that M r. Kelley had pleaded guilty

on September 11, 2003 to felony possession of methamphetamine in Florida.

Soon after announcing the stipulation, the court provided a limiting instruction to

the jury. It stated that evidence of the 2003 conviction “should be considered by

you solely for limited purposes and considered only as it may assist you in

making a determination as to motive, knowledge, intent, or absence of mistake

when you consider the conduct and actions of the defendant. It is not proof of the

-15- crime charged itself in the indictment.” Rec. vol. IV, at 202-03. Before entering

into the stipulation, M r. Kelley’s counsel noted that he had “argued a motion in

limine and argued that [evidence of the 2003 conviction] should not be admitted,

and the Court [had] overruled that motion.” Id. at 202.

On appeal, M r. Kelley maintains that the court abused its discretion by

admitting evidence of the earlier crime. The government argues that M r. Kelley

did not renew his objection at trial and we should review the evidentiary ruling

only for plain error. “Generally, a pretrial motion in limine will not preserve an

objection if the objection is not renewed at the time the evidence is introduced.”

United States v. Nichols, 169 F.3d 1255, 1264 (10th Cir. 1999). “[A]n exception

to this rule . . . applies only where the issue (1) is fairly presented to the district

court, (2) is the type of issue that can be finally decided in a pretrial hearing, and

(3) is ruled upon without equivocation by the trial judge.” Id. (internal quotation

marks omitted).

Regarding the first factor, the parties here adequately presented the matter

to the district court. The government filed its notice of intent to offer the Rule

404(b) evidence, and M r. K elley responded with a motion in limine to exclude it.

Second, the decision to admit the evidence “is of the type that can be finally

decided in a pretrial hearing,” as the court decided it was not a “very fact-bound

determination[] dependent upon the character of the evidence introduced at trial.”

United States v. M ejia-Alarcon, 995 F.2d 982, 987 (10th Cir. 1993). Finally, the

-16- court’s minute sheet indicates that it definitively denied M r. Kelley’s motion in

limine during a pre-trial conference prior to jury selection. Cf. M cEwen v. City of

Norman, 926 F.2d 1539, 1543-44 (10th Cir. 1991) (concluding that a plaintiff

needed to renew an objection at trial where the court had expressly reserved

ruling on a motion in limine until trial). Because all elements of the exception

are satisfied, M r. K elley did not need to renew at trial his objection. W e

consequently review the court’s evidentiary ruling for an abuse of discretion.

United States v. Wenger, 427 F.3d 840, 855 (10th Cir. 2005).

In assessing a challenge to the admission of 404(b) evidence, we determine

whether “(1) the evidence was offered for a proper purpose; (2) the evidence was

relevant; (3) the trial court determined under Fed. R. Evid. 403 that the probative

value of the evidence was not substantially outweighed by its potential for unfair

prejudice; and (4) the trial court gave the jury proper limiting instructions upon

request.” Id. (referencing Huddleston v. United States, 485 U.S. 681, 691-92

(1988)). Though the 2003 conviction occurred after the charged conspiracy

offense, our evaluation under Huddleston is the same. United States v. M ares,

441 F.3d 1152, 1157 (10th Cir. 2006); see also United States v. Anifowoshe, 307

F.3d 643, 646-47 (7th Cir. 2002) (“[B]y its very terms, 404(b) does not

distinguish between ‘prior’ and ‘subsequent’ acts.”).

1. Purpose

W e begin with the first Huddleston factor–whether the evidence was

-17- offered for a proper purpose. Here, the government sought admission of the 2003

conviction to show M r. Kelley’s knowledge of the methamphetamine, his intent to

enter into a conspiracy to manufacture the drug, and his motive, which the

government maintains was “in part[] to support his habit of use.” Rec. doc. 20, at

2. As a general rule, to prove intent in conspiracy cases, the government may

offer evidence of similar relevant acts; it need not await the defendant’s denial of

intent. See United States v. Harrison, 942 F.2d 751, 760 (10th Cir. 1991); see

also United States v. Youts, 229 F.3d 1312, 1319 (10th Cir. 2000) (approving the

admission of evidence of a prior bad act under Fed. R. Evid. 404(b) to prove

intent in a 18 U.S.C. § 1992 prosecution for w recking a train).

Although our court has not addressed the precise issue here–whether a

subsequent conviction for drug possession in an amount consistent with personal

use could be introduced against a defendant charged in a conspiracy to

manufacture the same drug–we have generally “allow[ed] the introduction of

prior drug transactions to prove intent, knowledge, motive, and absence of

mistake in drug prosecutions.” United States v. Russell, 109 F.3d 1503, 1507

(10th Cir. 1997) (emphasis added). In our view, a subsequent conviction may be

introduced for that same purpose. See Mares, 441 F.3d at 1157 (stating that

“[s]ubsequent acts evidence is particularly relevant when a defendant’s intent is at

issue”).

Case law from other circuits supports this conclusion. In United States v.

-18- Davidson, 195 F.3d 402, 408 (8th Cir. 1999), a defendant charged with conspiracy

to manufacture methamphetamine tried to exclude evidence at trial of his recent

conviction for possession of methamphetamine. The circuit concluded that

“[e]vidence of a defendant’s prior possession of drugs in amounts consistent with

personal use is admissible to show [his] knowledge and intent when intent is an

element of the offense charged. This evidence is admissible even if the defendant

has not raised a defense based on lack of knowledge or lack of intent.” Id.

(citations and quotation marks omitted).

Similarly, the Fifth Circuit held that a district court did not abuse its

discretion in concluding that the defendant’s “prior conviction for possession of

cocaine [was] relevant to his intent in the charged [conspiracy] offense” because a

defendant not pleading guilty to a conspiracy offense “raises the issue of intent

sufficiently to justify the admissibility of extrinsic offense evidence.” United

States v. Gadison, 8 F.3d 186, 192 (5th Cir. 1993) (internal quotations omitted);

see also United States v. Butler, 102 F.3d 1191, 1196 (11th Cir. 1997) (permitting

the introduction of evidence “of prior personal drug use to prove intent in a

subsequent prosecution for distribution of narcotics [because] [i]ntent is clearly at

issue in a conspiracy prosecution”). But see United States v. Vizcarra-M artinez,

66 F.3d 1006, 1015 (9th Cir. 1995) (prohibiting the admission of evidence of

prior personal-use possession of methamphetamine for a defendant charged with

possession of hydriodic acid w ith knowledge that it would be used to manufacture

-19- methamphetamine, and “hold[ing] that evidence that the defendant used

methamphetamine, or possessed a small amount of the drug, does not tend to

prove that he participated in a conspiracy to manufacture it”).

Based on our precedent and the rationale of most circuits that have

addressed the issue, we conclude that evidence of a defendant’s subsequent

conviction of personal-use possession may be offered to establish knowledge or

intent in a conspiracy prosecution involving the same drug. Use of the conviction

to establish motive was also proper. See, e.g., United States v. Hatfield, 815 F.2d

1068, 1072-73 (6th Cir. 1987) (allowing the introduction of 404(b) evidence to

prove motive in a general-intent crime). Because the evidence was introduced for

a proper purpose, we move on to assess the other Huddleston requirements.

2. Relevance

Evidence is relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” F ED . R. E VID . 401. Our

court has found a prior bad act “relevant when that conduct is close in time,

highly probative, and similar to the activity with which the defendant is charged.”

United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000) (internal quotation

marks omitted). Here, the 2003 conviction meets this standard. The conviction

occurred only one year after the charged conspiracy, and both offenses involved

the same drug–methamphetamine. Evidence of the subsequent conviction helped

-20- to refute M r. Kelley’s defense of lack of intent, and it “also helped to explain

[his] motive for entering the conspiracy and to rebut the suggestion of his mere

presence at the scene.” United States v. Rush, 240 F.3d 729, 731 (8th Cir. 2001)

(concluding that a court did not abuse its discretion in admitting evidence of a

prior amphetamine possession in a charged conspiracy to manufacture

methamphetamine); see also Davidson, 195 F.3d at 408 (“A necessary element of

conspiracy to manufacture methamphetamine is knowingly joining such a

conspiracy, and [the defendant’s] recent convictions for possession of

methamphetamine were relevant to prove that.”).

3. Weighing probative value and prejudice

As to the third factor, the district court did not explicitly state the probative

value of the 2003 conviction outweighed its prejudice. However, when the

evidence was admitted, the court clarified to the jury that the 2003 conviction

should be considered only to determine “motive, knowledge, intent, or absence of

mistake” in the charged offense. Rec. vol. IV, at 202-03. W e owe the district

court “substantial deference in 403 rulings,” United States v. Shumway, 112 F.3d

1413, 1422 (10th Cir. 1997) (internal quotation marks omitted), and we cannot

say the court abused its discretion here when it implicitly determined the evidence

was probative to the charged offense and not unduly prejudicial.

4. Limiting instruction

Finally, under the fourth factor, the district court provided a limiting

-21- instruction to the jury after it admitted the evidence.

Accordingly, the district court did not abuse its discretion in admitting

evidence of M r. K elley’s 2003 possession conviction.

D. Challenge to the admission of rebuttal evidence by M r. Kelley’s girlfriend

“Rebuttal evidence may be introduced to explain, repel, contradict or

disprove an adversary’s proof. The fact that testimony would have been more

appropriately offered during the proponent’s case-in-chief does not preclude its

admission as rebuttal evidence.” United States v. LiCausi, 167 F.3d 36, 52 (1st

Cir. 1999). “Rather, the decisions as to what constitutes proper rebuttal evidence

and the order in which the parties present their evidence lie within the sound

discretion of the trial judge and are subject to substantial deference.” Id.

The government called M r. Kelley’s former girlfriend, M s. Eldridge, as a

rebuttal witness. An officer handling the case had information about M s.

Eldridge from M r. Covey one year earlier, but he first learned of her last name a

few days before trial. The officer found M s. Eldridge, subpoenaed her, and

interviewed her during the first day of trial. During the third day of testimony,

she testified that M r. Kelley and she began living with M r. Covey in Claremore

on July 28, 2002, and during that time the tw o men cooked methamphetamine.

M r. Kelley’s counsel objected to M s. Eldridge’s testimony as a rebuttal

witness, but the court overruled the objection and allowed her to testify. The

court later commented on the admission of the testimony:

-22- [O]ne of the reasons that I permitted the evidence to be presented is because the evidence was not available during the time that the Government was putting on its principal evidence.

From the evidence that has been presented, it’s apparent that the first interviews occurred when this trial was already in being. The second interview was the second day, and this is the third day, and I was a little more lenient that I might otherwise have been because of the fact that the Government had not had the opportunity and that there was no claim of surprise or prejudice other than the evidence itself.

Rec. vol. IV, at 323.

W e review the court’s admission of rebuttal testimony for an abuse of

discretion. United States v. M agallanez, 408 F.3d 672, 680 (10th Cir. 2005). “A

district court possesses considerable discretion in governing the presentation of

evidence, and its decisions will not be disturbed absent manifest injustice to the

parties.” Comcoa, Inc. v. NEC Telephones, Inc., 931 F.2d 655, 663 (10th Cir.

1991). M r. Kelley maintains that M s. Eldridge’s evidence should have been

presented in the government’s case-in-chief because (1) it was repetitive of the

evidence already presented and (2) M r. Kelley had not contested on cross-

examination that he had cooked methamphetamine with M r. Covey.

W hile M s. Eldridge’s testimony “would have been more appropriately

offered during the [government’s] case-in-chief,” LiCausi, 167 F.3d at 52, the

admission of her rebuttal testimony did not cause manifest injustice to M r.

Kelley’s defense. No evidence in the record suggests bad faith by the prosecution

to withhold M s. Eldridge’s testimony until rebuttal, and M r. Kelley still had an

-23- adequate opportunity to cross-examine her. Given the unusual temporal

circumstances leading to M s. Eldridge’s rebuttal testimony, the court did not

abuse its discretion in admitting it.

III. C ON CLU SIO N

Accordingly, we AFFIRM M r. Kelley’s conviction and sentence.

Entered for the Court,

Robert H. Henry Circuit Judge

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