RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Lucas No. 02-5399 ELECTRONIC CITATION: 2004 FED App. 0046P (6th Cir.) File Name: 04a0046p.06 STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: Jerald W. Newton, Sedona, Arizona, for Appellant. Camille R. McMullen, ASSISTANT UNITED UNITED STATES COURT OF APPEALS STATES ATTORNEY, Memphis, Tennessee, for Appellee. FOR THE SIXTH CIRCUIT BOGGS, C. J., delivered the opinion of the court, in which _________________ RYAN, J., joined. ROSEN, D. J. (pp. 20-29), delivered a separate concurring opinion. UNITED STATES OF AMERICA , X Plaintiff-Appellee, - _________________ - - No. 02-5399 OPINION v. - _________________ > , BOGGS, Chief Judge. On May 18, 2001, Robin Rochelle ROBIN ROCHELLE LUCAS, - Lucas was indicted by a grand jury for knowingly and Defendant-Appellant. - intentionally possessing with the intent to distribute 500 N grams or more of a mixture containing cocaine, in violation Appeal from the United States District Court of 21 U.S.C. § 841(a)(1). In September 2001, Lucas was for the Western District of Tennessee at Jackson. convicted by a jury as charged in the indictment and was No. 01-10022—James D. Todd, Chief District Judge. subsequently sentenced to 121 months in prison, four years of supervised release, a $100 special assessment, and a $15,000 Argued: August 6, 2003 fine. Lucas appeals the judgment against her on three grounds, each of which she claims merits reversal. First, she Decided and Filed: February 12, 2004 argues that the district court abused its discretion in granting the government’s motion in limine to exclude from the trial Before: BOGGS, Chief Judge; RYAN, Circuit Judge; and any mention of the fact that Morrell Presley, a person ROSEN, District Judge.* involved in the events leading to Lucas’s arrest but not a witness at her trial, had previously been convicted for cocaine _________________ trafficking, when the defense’s theory was that the drugs were Presley’s and not Lucas’s. Second, Lucas argues that the COUNSEL district court abused its discretion when it ruled that she could not introduce evidence, as an explanation of her nervous ARGUED: Jerald W. Newton, Sedona, Arizona, for behavior during her arrest, that she had been raped by prison Appellant. Camille R. McMullen, ASSISTANT UNITED guards in the past. Third, Lucas contends that the court erred in denying her Batson motion, in which she argued that the prosecutor exercised a peremptory challenge against a * potential juror in a racially discriminatory manner, in The Honorable Gerald E. Rosen, United States District Judge for the violation of the Equal Protection Clause. See Batson v. Eastern District of Michigan, sitting by designation.
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Kentucky, 476 U.S. 79 (1986) (prohibiting the exercise of that she was in Knoxville, and then gave him the address and race-based peremptory challenges). Lucas also appeals her name of the hotel. Presley apparently recognized the hotel sentence and claims that the district court abused its and said he would come over to see her, but did not tell her discretion in not finding that her prior rape by prison guards that she was not in Knoxville. Lucas awakened the other and her charitable work for human rights organizations such women, telling them to get dressed because Presley was going as Amnesty International were grounds for a downward to be visiting them shortly. departure. We affirm Lucas’s conviction and sentence. Presley came over, they watched a movie, and eventually I the group decided they were hungry. Presley volunteered to go for food and Quinney prepared a shopping list for him, Robin Rochelle Lucas was arrested on May 9, 2001 in including chicken and cooking oil. Presley said he was low Tennessee. At the time, she was living in California with her on gas and so Watts allegedly gave him the keys to the rental grandmother, her nephew, and two nieces. Lucas testified at car, which he took instead of his own car, leaving the room at her trial that she was on vacation with two friends, Angelina about 2:30 p.m. Watts and Kimberly Quinney, on her way to visit another friend, Jackie Parker, who lived in Memphis, and to attend the Presley returned to the hotel room approximately five hours “Memphis in May” festival. On May 8, 2001, Lucas, Watts, later, at about seven-thirty at night, and although he brought and Quinney flew from California to Nashville. At the some groceries, he did not return with the chicken or cooking Nashville airport, Watts obtained a rental car. As they left the oil, allegedly the main reason for his trip. Lucas had been airport, Lucas says she saw a sign for Knoxville and teased by Watts and Quinney, who suggested that Presley had Chattanooga (which are over 200 miles away), which she “made off” with the rental car, leaving his old car behind. followed, thinking that Knoxville was only a few minutes When Presley finally returned, without the chicken, Lucas away from Nashville. The three women stopped off at a testified that she grabbed the keys out of frustration and liquor store a few minutes down the road and purchased two started driving towards Memphis. At around eight, Lucas bottles of Hennessey. Lucas then paid for a room at a called Parker and told her that she was on her way to pick her Residence Inn, which she claims she thought was in up in Memphis. Knoxville, but was actually still in Nashville. The group decided to go to Walgreens, where Quinney purchased several At the hotel, Presley became upset, asking where Lucas had items, including food and utensils for cooking dinner in the gone with the rental car. According to Quinney’s testimony room’s small kitchenette. The three went back to the hotel, at trial, Presley was ranting and raving, calling everyone prepared food, and drank. names. Presley urged Quinney and Watts to call Lucas and convince her to drive back, specifically stating to Quinney The three women said that they had planned to drive to that she should “[c]all that B and tell her to come back” and Memphis the next morning, May 9, but they got up late and that his cell phone was in the car. Quinney called Lucas and Lucas wasn’t able to get in touch with her friend, Parker, the told her “[t]hat she needed to come back because she had . . . woman she was to meet in Memphis. Lucas then claims to Morell’s cell phone. She needed to bring him his cell phone.” have called Morrell Presley, a man she claims to have met At some point Presley even got on the phone and started twice before (very briefly) through a friend, and asked him for yelling at Lucas to come back, telling her that “she didn’t directions to Memphis. Lucas testified that she told Presley know who he was” and calling her names. Phone records No. 02-5399 United States v. Lucas 5 6 United States v. Lucas No. 02-5399
verified that phone calls were made consistent with this that Lucas did not have the keys. Hammett began shining his testimony, although the only evidence presented as to what flashlight into the vehicle, looking for the keys, when he was said during the calls and, indeed, of any interaction with spotted two bags wrapped in cellophane and stuck under the “Presley,” was the testimony of Lucas and her two friends: front driver’s seat. The bags were eventually retrieved from Quinney and Watts. the vehicle and later determined to contain 2.2 kilograms of cocaine. A number of items were found in the car during a At 9:25 pm, Lucas was pulled over by Trooper Ollie Parker subsequent search. Three cell phones were seized, registered for speeding at 92 miles per hour near mile marker 104 on I- to Angelita Watts (Vallejo, California), Robyn McPherson 40 going west towards Memphis. As Parker was copying (Vallejo, California), and Cathy Jefferson (Nashville, information down for Lucas’s ticket, he realized that her Tennessee) respectively. Thirteen credit cards were driver’s license was expired, called it in, and found out that it recovered, eleven in Lucas’s name and two in the name of was suspended. When Parker went back to Lucas and told Robyn McPherson, along with a Visa Gold Card application her of his findings, she explained to him that she had “taken in Robyn McPherson’s name and a receipt from Walgreens. care” of the suspended license, but Parker was unable to Lucas explained that Robyn McPherson is her niece and that verify this fact. she had taken her niece’s credit cards and telephone calling cards because her niece had written over $7000 in insufficient Trooper Earl Hammett drove up at around 10 pm, and fund checks, which Lucas had covered, and her niece had run parked behind Parker’s cruiser, which was behind Lucas’s up a phone bill of $800. rental car. He activated the cruiser’s video camera at 10:03 pm, and this video was played for the jury at trial. About five Lucas denied having any knowledge of the cocaine found minutes later, Lt. Linuel Allen arrived. Both troopers were in the rental car that night. The defense’s theory at trial was filled in on what was going on by Parker. that Presley was the one who had put the drugs into the car. Through the testimony of Quinney and Watts, the defense At some point Lt. Allen retrieved Lucas’s coat from the car, brought out that Presley was alleged to have been in the car and found in it $2,855, mostly in twenty-dollar bills. Lucas immediately before Lucas took it on the night that she was volunteered that this was her traveling money and that she stopped. In addition, according to the testimony of the had started off the trip with $3,000. Lucas further explained women, Presley took the car for several hours, despite the fact that she had been driving for about two hours and was on her that his errand of grocery shopping should have been a short way from Knoxville to Memphis in order to pick up a relative trip. When he did arrive back, he did not have the groceries and take them back to a Knoxville family reunion. It was he was supposed to have gotten, and presumably he had obvious to the officers that this was not true, since they were plenty of time to purchase the drugs, using someone else’s car not two hours from Knoxville. for the transaction. Finally, there was testimony verifying the fact that Presley was furious with Lucas for driving off in the Prior to being handcuffed, Lucas was told to remove her car and violently insistent that she return immediately, which belongings from the car, because she was unlikely to get the makes sense in view of the defense’s theory that Lucas had car back. Hammett escorted Lucas to the front passenger unwittingly driven off with Presley’s drugs, worth thousands door, and she leaned in to gather her things. Lucas walked of dollars. back to the trooper’s car with her hands full. Shortly thereafter, the troopers realized that the car was locked and No. 02-5399 United States v. Lucas 7 8 United States v. Lucas No. 02-5399
It was also brought out at trial that Lucas had been Court: You can certainly mention that somebody else convicted of bank fraud conspiracy in 1994 (when she would committed this crime, not the defendant; but whether you have been about 28 years old), involving approximately can introduce a certified copy of a document to show this $7,000 worth of traveler’s checks and the use of false person’s a convicted felon or not, that’s a bit of a stretch. identification. She served a thirty-month sentence, during Let’s wait and see. Don’t mention the certified copy of which she was raped by prison guards repeatedly. In 1998, the conviction or that he was a convicted felon until she received a $500,000 settlement based on the sexual we’ve had an out-of-jury hearing. You can certainly assault she claimed to have experienced while incarcerated, present the defense that your client didn’t do it. It was which she states she invested in real estate, a clothing store, Morrell Presley’s drugs. You can certainly do that. I and a nursing home facility, and which also could explain to guess that’s the defense, isn’t it? some extent the amount of money found on her at the time of her arrest. Lucas testified at trial that she was worth Defense Attorney: Yes, sir, Your Honor. somewhere between $600,000 and $700,000; however, Lucas filed a statement at sentencing admitting that she was wrong, Later on at the same hearing, the court stated as follows: claiming that she thought that the appraised value of her property was the net worth of her property (without You can certainly testify or have evidence about Mr. subtracting the amount of her mortgage). Lucas also testified Presley, but unless something else develops of which I’m at sentencing that she has worked with women in prison and not now aware, I’m not going to let the prior conviction with various international human rights groups since being in because its probative value is greatly outweighed by released from prison for her prior conviction. the prejudice.
II The government argues that the court’s decision was correct and further submits that Federal Rule of Evidence A. Presley’s Prior Conviction 404(b) prohibits the admission of this evidence because it prohibits introducing evidence of other crimes to prove the Lucas contends that the district court erred in prohibiting character of a person in order to show action in conformity the defense from presenting evidence of Presley’s prior therewith. Although the district court did not explicitly rule conviction for possessing and distributing cocaine, on the that the evidence was inadmissible pursuant to Rule 404(b), basis that it was irrelevant. Lucas claims that not only was it did address this line of reasoning: this an erroneous application of the Federal Rules of Evidence, but that this exclusion unconstitutionally prevented Court: [W]hy is it relevant that he’s been convicted of a her from mounting a complete defense. cocaine offense?
A few days prior to trial, a certified copy of a conviction of Defense Attorney: Because it shows his propensity to Morell Presley was obtained, which reflected that Presley had leave the cocaine in the car. He’s the one that had the car previously been convicted of possessing cocaine with the for several hours before Ms. Lucas had the car. intent to distribute it. Lucas sought to introduce this evidence and the court denied the request: The Court: Aren’t prior convictions inadmissible to show propensity? No. 02-5399 United States v. Lucas 9 10 United States v. Lucas No. 02-5399
... e.g., United States v. Stevens, 935 F.2d 1380, 1404 (3d Cir. 1991). See also United States v. Wilson, 307 F.3d 596, 601 Well, this is an interesting question, gentlemen. I have (7th Cir. 2002). There is, therefore, some merit in never in thirty years had this one come up. It seems to considering the admissibility of such 404(b) evidence as me though that this is still the type of evidence that is far depending on a straightforward balancing of the evidence’s more prejudicial than probative. Whether Mr. Presley probative value under Rule 401 against Rule 403's had a prior cocaine conviction or not doesn’t mean that countervailing considerations of “prejudice, confusion of the he did or did not put the cocaine in this car. I’m going to issues, or misleading the jury, or by considerations of undue sustain the government’s objection to the testimony that delay, waste of time, or needless presentation of cumulative Mr. Presley was a convicted cocaine dealer. evidence,” as suggested by the Third Circuit in Stevens, 935 F.2d at 1404 . However, in assessing the probative value of (emphasis added). such evidence we must also recall that the Advisory Committee Notes following Rule 401 explain that rules such We agree with the government that evidence of Presley’s as Rule 404 and those that follow it are meant to prohibit prior conviction does come under Rule 404, although it falls certain types of evidence that are otherwise clearly “relevant within a subset of such evidence sometimes called “reverse evidence,” but that nevertheless create more prejudice and 404(b)” evidence, in which the evidence of a prior act by confusion than is justified by their probative value. In other another is offered as exculpatory evidence by the defendant, words, we affirm that prior bad acts are generally not instead of being used by a prosecutor against a defendant. considered proof of any person’s likelihood to commit bad See, e.g., United States v. Hill, 322 F.3d 301, 308 (4th Cir. acts in the future and that such evidence should demonstrate 2003). By its plain terms, Rule 404(b) mandates that something more than propensity. “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in Lucas’s defense is that Presley committed the crime, and conformity therewith,” instead of restricting itself to evidence she did not. The defense wanted to introduce Presley’s proving “the character of the accused.” Rule 404(b) conviction in order to demonstrate that in addition to access (emphasis added).1 to the car and his strange behavior, Presley had a propensity for selling cocaine. The defense wants the jury to make the Nevertheless, we recognize, as do several of our sister inferential leap that because Presley sold drugs before, he is circuits, that such evidence when presented by the defense, likely to have done so again. requires us to reconsider our standard analysis, as the primary evil that may result from admitting such evidence against a Lucas argues on appeal that, although she specifically defendant -- by tainting his character -- is not present in the stated before the district court only that she would use the case of 404(b) evidence used against an absent person. See, evidence of Presley’s conviction to prove propensity, this information should have been admitted on the basis that it could also have been used to prove knowledge and intent, 1 The rule does, in the next sentence, explicitly refer to “the accused.” which are among several exceptions in Rule 404(b) that are However, it does so in the context of notice requirements that must be listed as purposes for which such testimony can be followed by a prosecutor introducing such evidence against a defendant. introduced. This argument is not convincing. Presley’s This differential use of “the accused” provides additional evidence that the first sentence is not intended to apply only to the accused. knowledge of what cocaine is, or what it looks like, is not at No. 02-5399 United States v. Lucas 11 12 United States v. Lucas No. 02-5399
issue in this case. And certainly a prior conviction does not 476 U.S. 683, 690 (1986) (holding that “the Constitution demonstrate Presley’s intent to sell in the future. Such an guarantees criminal defendants a meaningful opportunity to argument would turn the exception into the rule. If, instead, present a complete defense.”) (internal quotation marks and it was shown that Presley had borrowed someone else’s car in citations omitted). As we have stated previously, a complete which to do the prior drug deal or if he had packaged the defense does not imply a right to offer evidence that is cocaine in the same way and had left it under the passenger’s otherwise inadmissible under the standard rules of evidence. seat in the same way, the evidence of his prior drug deal Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en might have been sufficiently probative, but the simple fact banc). See also Taylor v. Illinois, 484 U.S. 400, 410 (1988). that he sold cocaine before is only minimally relevant. Lucas was able to explore her theory that Presley was in fact the culprit and present it to the jury through Quinney’s and We therefore hold that the standard analysis of Rule 404(b) Watts’s testimony, as well as her own, describing his alleged evidence should generally apply in cases where such evidence strange behavior and his alleged access to the car. The is used with respect to an absent third party, not charged with exclusion of Presley’s prior conviction did not violate Lucas’s any crime. In this case, not only does the evidence not fall constitutional right to present a defense and was instead an within the any of the exceptions, even if it did, the district appropriate ruling by the district court in accordance with the court did not err in determining that any probative value of Federal Rules of Evidence. the prior bad act was outweighed by its prejudicial effect. Introducing evidence of Presley’s prior conviction would Finally, we note that Federal Rule of Evidence 609 is not have been prejudicial to fair consideration in that it would applicable to this case, though it was mentioned by the have made it easier for the jury to lay the blame on Presley for defense in its brief as an alternate ground for admitting the drug deal despite evidence presented at trial.2 Under the Presley’s prior conviction. However, Rule 609 addresses abuse of discretion standard, we will only reverse if we are only the ability of a party to impeach a witness through the firmly convinced that a mistake has been made. Nida v. Plant introduction of prior convictions, specifically for the purpose Protection Ass’n Nat’l, 7 F.3d 522, 527 (6th Cir. 1993). of attacking credibility. Because Presley was not a witness Accordingly, the district court did not abuse its discretion in (indeed, he has never been found nor his current existence excluding this evidence. established), Rule 609 is not applicable. In addition, we hold that Lucas was not prevented from B. Prior Sexual Assault presenting a complete defense, as she is entitled to do under the Constitution, because of the district court’s decision to bar Lucas contends that the district court abused its discretion the admission of this evidence. See, e.g., Crane v. Kentucky, in determining that the prejudicial impact of admitting testimony regarding her prior sexual assault in prison outweighed any relevance these events had in explaining her 2 nervous behavior when arrested. We hold that even if the In the Advisory Comm ittee Notes to Rule 403, it is explained that “‘[u]nfair prejudice ’ within its context means an undue tendency to district court abused its discretion, any error was harmless and suggest decisio n on an improper basis, com mon ly, though not necessarily, thus nonreversible. an emo tional one.” Here the jury might have made a decision that Presley was the culp rit simply because of an unfair inference that because he had The government, through the testimony of Trooper Earl sold cocaine before, he had done so here, and not on the basis of actual Hammett, introduced evidence at trial that Lucas had been evidence linking him to the crime. No. 02-5399 United States v. Lucas 13 14 United States v. Lucas No. 02-5399
nervous when stopped by the Tennessee Highway Patrol. nervous out there? Why were you nervous out there? I Specifically, Trooper Hammett stated in his testimony that need to be able to, without - - I fully respect what the Lucas “got nervous after she found out that we were going to court is saying. We don’t need to talk about exactly what try to get back in the car after it was locked.” The prosecutor that was or give them the gruesome specifics, but I need reiterated this fact in his closing argument to the jury, in to ask if her - - Can I ask her a question to the effect, Did which he stated in relevant part: you experience in prison - - you know, she’s actually been treated for post-traumatic stress syndrome, and I Now, once she realized that not only was she going to be want to know if I can ask her - - arrested but that the car was going to be towed, that’s when Trooper Hammett indicated that he had started The Court: You can certainly have her explain that she noticing some things. He indicated that when she was was nervous because she was afraid she was about to be asked to remove her items from the vehicle that he tried arrested and she didn’t want to be arrested. But that to flash the light inside of the car to assist her, and he doesn’t mean she gets to tell about all the intimate indicated that she was dodging the flashlight, his horrible details of prison. flashlight. He also told you that she became nervous. Defense Counsel: Could I mention, I suppose, because Lucas sought to counter this evidence by explaining that she spent time in prison, the fears that that’s caused her she had been raped by male guards when she had previously through the years? been in prison for conspiracy to commit bank fraud, and it was for this reason that she had been nervous when told by The Court: Well, certainly. the officers that she was under arrest.3 Furthermore, Lucas wanted to explain that the federal government had paid her Defense Counsel: Something to that effect? $500,000 in a settlement, because of the rapes she had endured while in the prison system. The district court judge The Court: There’s absolutely nothing wrong with that. agreed to allow Lucas to testify to the fact that she had But we’re not going to turn this into a demonstration that received money in a lawsuit settlement, in order to explain the we’ve got Mother Teresa here, who is a national TV star, source of her money and to counter inferences made by the who was sexually abused in prison. None of those things prosecution that the money came from drug dealing. have anything to do with this case. However, the judge determined that she could not testify to the fact that she had been raped. The following exchange We review a district court’s decision to exclude evidence took place between the judge and Lucas’s lawyer on this for abuse of discretion. United States v. Bartholomew, 310 issue: F.3d 912, 920 (6th Cir. 2002). “Under this standard, we will leave rulings about admissibility of evidence undisturbed Defense Counsel: Judge, all these issues have been unless we are ‘left with the definite and firm conviction that raised, and one of the issues has been, Why were you the [district] court . . . committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors or where it improperly applies the law or uses an erroneous legal standard.’” 3 The Presentencing Report states that Lucas “was subjected to sexual assaults and gang rap e while incarce rated at a men’s jail facility.” No. 02-5399 United States v. Lucas 15 16 United States v. Lucas No. 02-5399
Ibid. (quoting United States v. Haywood, 280 F.3d 715, 720 Fed. R. Evid. 401)). In addition, the risk of undue sympathy (6th Cir. 2002)). could have been managed to some extent by a limiting instruction. However, the Federal Rules of Criminal Lucas argues that the information regarding her rape in Procedure provide that an error “which does not affect prison was crucial to her defense. Lucas contends that the substantial rights shall be disregarded.” Fed. R. Crim. P. 52. “jury would assume she would not be unduly nervous [when To determine whether barring this evidence was harmless arrested] as she had experienced this before,” since she had error, we consider the impact of the error upon the right of the been incarcerated before, and thus she needed to explain her defendant to a fair trial. United States v. Layne, 192 F.3d nervous behavior. Lucas argues that the evidence of her 556, 573 (6th Cir. 1999). having been raped was the only information that could effectively counteract the inferences made by the prosecutor. Lucas’s nervousness upon being faced by the police was Lucas also contends that the information was not especially not crucial to the prosecution’s case. The physical evidence prejudicial, other than potentially producing sympathy for of the drugs in the car she was driving, the cash in her pocket, Lucas, which might have been minimized through a proper and inconsistencies in her testimony as compared to the limiting instruction by the district court. statements she made to the officers the night she was arrested on such issues as the existence of a family reunion, constitute The government argues that Lucas’s rape in prison was not convincing evidence, so that even if barring the evidence of relevant, since “[a] sexual assault that occurred seven years Lucas’s prior sexual assault was done in error, it was harmless earlier than the charged drug offense does not negate any error that does not warrant the grant of a mistrial. elements of cocaine possession.” C. The Batson Challenge Under the Federal Rules of Evidence, all relevant evidence is admissible. See Fed. R. Evid. 402. However, a court may Whether a party exercised its peremptory challenges in a exclude relevant evidence whose “probative value is discriminatory manner is a finding of fact, which we review substantially outweighed by the danger of unfair prejudice, for clear error. United States v. Bartholomew, 310 F.3d 912, confusion of the issues, or misleading the jury, or by 919 (6th Cir. 2002). considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403. The jury venire for this trial included only two African- Americans and the prosecutor exercised a peremptory The fact that Lucas was raped while in prison is technically challenge to exclude one of those jurors, Ms. Green, from the relevant, as it suggests that her behavior, which might jury. Lucas objected to this challenge, noting that there did otherwise be taken as evidence of guilt and was argued as not appear to be any cause for eliminating her from the jury, such by the prosecution, was potentially explainable for other other than the fact that she was black. The prosecutor reasons. See, e.g., Robinson v. Runyon, 149 F.3d 507, 512 represented that he was using a peremptory challenge to (6th Cir. 1998) (noting that the rules regarding relevance are remove Ms. Green because she had given the “impression that “quite liberal,” since “‘evidence having any tendency to make . . . she just didn’t want to be [there],” and “had indicated that the existence of any fact that is of consequence to the she had been divorced before [–] we knew that might be a determination of an action more probable or less probable factor.” The district court found that the Government had than it would be without the evidence’ is relevant.” (quoting No. 02-5399 United States v. Lucas 17 18 United States v. Lucas No. 02-5399
articulated a legitimate nondiscriminatory reason for the authority to depart downward, since there is “no duty on the challenge and permitted Ms. Green’s removal. trial judge to state affirmatively that he knows he possesses the power to make a downward departure, but declines to do A Batson claim is analyzed in three steps. First, the so.” United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995). defendant must make a prima facie showing that the prosecutor removed a potential juror for a discriminatory Lucas argues that the district court should have granted a reason. If the defendants make this showing, the second step downward departure in her sentence on the basis of her rape, requires the prosecutor to articulate a nondiscriminatory and of the charity work that she did for Amnesty International reason for the removal. Assuming that the prosecutor does and Human Rights Watch. The government contends not so, the third step requires the trial court to determine whether only that the district court understood that it was able to grant the opponent of the peremptory strike has proven purposeful a downward departure, but also that doing so would not have discrimination. See, e.g., United States v. Yang, 281 F.3d been reasonable under the circumstances. 534, 548-49 (6th Cir. 2002), cert. denied, 123 S. Ct. 1015 (2003). The district court, in making this ruling, stated as follows:
In reviewing the government’s race-neutral explanation, we Now, concerning the defendant’s prior incarceration, it is need not find that the reason given is “persuasive, or even tragic and unfortunate what happened to Ms. Lucas when plausible.” Id. at 548. All that is necessary is that the reason she was in federal custody on her prior conviction. It is not be inherently discriminatory. Id. at 548-49. It is, not the purpose of prisons to inflict that sort of injury and therefore, difficult to conclude in this case that the district damage upon someone, and I regret seriously that that court made a clear error in determining that the prosecutor’s happened to Ms. Lucas. But that’s not a basis for a peremptory challenge was free of race bias, since there is no downward departure in this case. I’m sure it was very other evidence of discriminatory bias and the prosecutor did distressing to the defendant, but that is not – there’s not not exercise a peremptory challenge in order to eliminate the a showing that the mental effect of that tragic incident other one of two black persons from the jury. United States affected her responsibility in this case or is – and it’s not v. Sangineto-Miranda, 859 F.2d 1501, 1520-21 (6th Cir. a basis for any sort of downward departure. 1990) (holding that the final makeup of the jury is relevant to a finding of discrimination). We therefore affirm the district Also, her work for Amnesty International and the other court’s ruling on this issue. human rights organizations, that’s commendable. That came about as a result of her being a victim, I suspect, D. Downward Departure It’s good work, but it is not a basis for a downward departure in this case. A district court’s failure to grant a downward departure can only be reviewed by us upon appeal if the lower court (emphasis added). erroneously believed that it lacked authority to grant such a departure as a matter of law. See United States v. Owusu, 199 The district court does not state that it does not have the F.3d 329, 349 (6th Cir. 2000); United States v. Landers, 39 ability to depart downwards in general. Instead, it states that F.3d 643, 649 (6th Cir. 1994). Furthermore, the district court there was no basis for a departure in this case. Therefore, we need not explicitly state that it is aware of its discretionary have no jurisdiction to consider this part of the appeal. No. 02-5399 United States v. Lucas 19 20 United States v. Lucas No. 02-5399
III ___________________ For the reasons given above, we AFFIRM Lucas’s CONCURRENCE conviction and subsequent sentence. ___________________
ROSEN, District Judge, concurring. I agree with the majority and join in affirming Lucas’s conviction and sentence. I write separately, however, on the “reverse 404(b)” issue discussed in Part II of the majority opinion as I find the relevancy/prejudice test and rationale set out by the Third Circuit in United States v. Stevens, 935 F.3d 1380 (3rd Cir. 1991), more compelling than the standard Rule 404(b) analysis adopted by the majority where, as here, the prior “bad act” is that of an absent third party, not that of the defendant, and the evidence is not being used by a prosecutor against a defendant, but rather is offered as exculpatory evidence by the defendant. Lucas’s defense at trial was that Morell Presley, not Lucas, committed the crime with which she was charged. To support this defense, Lucas sought to admit evidence of Presley’s prior conviction for possession with intent to distribute cocaine. The district court denied this request finding that it was more prejudicial than probative. Although not disagreeing with the district court’s finding, the majority now holds that the straightforward relevance/prejudice analysis under Rules 401 and 403 is inapplicable in the context of “reverse 404(b)” evidence.1 Under the majority’s ruling here,
1 To the extent that the majority’s opinion can be read to imply that a Rule 403 probative value/prejudice analysis is not part of a traditional Rule 404 (b) analysis, that wo uld be an inaccura te statement of the law. W ell-settled law clearly provides that a Rule 403 balancing is an essential part of a Rule 40 4(b) analysis. See e.g., U nited States v. Largent, 545 F.2d 103 9, 10 43 (6th Cir.197 6), cert. denied, 429 U.S. 109 8 (1977 ); United States v. Ring, 513 F.2d 10 01, 1005 (6th Cir. 197 5); United States v. Blan kenship, 775 F.2d 735, 739 (6th Cir. 198 5); United States v. Vance, 871 F.2d 572 , 575 ( 6th Cir. 19 89), cert. denied, 493 U.S. 933 (1989); United States v. Blakeney, 942 F.2d 10 01, 1018 (6th Cir. 19 91), cert. No. 02-5399 United States v. Lucas 21 22 United States v. Lucas No. 02-5399
evidence of “other crimes,” whether offered to incriminate or litigation -- in particular, the criminal defendant -- from the to exonerate the defendant, is subject to a straightforward prejudice of the propensity/character taint danger. application of Rule 404(b). Rule 404(b)’s basic rule of exclusion -- that evidence of other crimes, wrongs, or acts is not admissible to prove the Fed. R. Evid. 404(b) provides: character of a person in order to show action in conformity therewith -- has its source in the common law. The common Evidence of other crimes, wrongs, or acts is not law rule was that “the doing of a criminal act, not part of the admissible to prove the character of a person in order to issue, is not admissible as evidence of the doing of the show action in conformity therewith. It may, however, criminal act charged.” See Wigmore, Code of Evidence, 3d be admissible for other purposes such as proof of motive, ed., p. 81. See also, United States v. Dudek, 560 6th F.2d opportunity, intent, preparation, plan, knowledge, 1288, 1295-96 (6th Cir. 1977) (noting that Fed. R. Evid. identity, preparation, plan, knowledge, identity, or 404(b) restates the common law). The policy underlying the absence of mistake or accident. common law rule was the protection of the criminal defendant. See Wright & Graham, Federal Practice and Observing that the Rule is directed to evidence of other acts Procedure: Evidence, § 5239, pp. 436-439. of “a person” and not only the other acts of “a defendant,” the majority finds that the standard Rule 404(b) analysis should Rule 404(b) continues the policy of the common law. Id. apply with respect Morell Presley’s prior conviction for at 439. This is clear from this Court’s observation in United possession with intent to distribute cocaine. Because Lucas States v. Phillips, 599 F.2d 134 (6th Cir. 1979). In Phillips, failed to demonstrate that Presley’s conviction could have the Court noted that Rule 404(b)’s exclusionary rule been offered for any purpose other than to prove Presley’s addresses two main policy concerns: propensity to commit the crime with which Lucas was charged, the majority finds admission of the evidence to be (1) that the jury may convict a “bad man” who deserves precluded by a straightforward application of Rule 404(b). to be punished not because he is guilty of the crime charged but because of his prior or subsequent misdeeds; Although at first blush, the majority’s “plain language of and (2) that the jury will infer that because the accused the rule” approach carries some weight and finds some committed other crimes, he probably committed the support in the case law, a closer examination of the policies crime charged. underlying Rule 404(b) and the case law addressing the “reverse 404(b)” evidence issue, persuades me that the Rule 599 F.2d at 136. 404(b) should not be applied in cases where, as here, the defendant offers prior act evidence of a third party to prove Professor Weissenberger explained these policy concerns some fact -- even propensity -- relevant to the defense. in his treatise as follows: First, both the source and policy underlying Rule 404(b) [E]vidence of the extrinsic act is excluded because it is demonstrate that the Rule is intended to protect a party to the thought that the jury might punish an individual for the discrete conduct rather than weighing only the direct evidence of the charged crime. Another policy supporting Rule 404(b) is a recognition of the danger that denied, 502 U .S. 1035 (199 2). No. 02-5399 United States v. Lucas 23 24 United States v. Lucas No. 02-5399
the jury may misestimate the probative value of the 572, 582 (1st Cir. 1987), cert. denied, 484 U.S. 989; United extrinsic act evidence in evaluating its significance . . . . States v. Aboumoussallem, 726 F.2d 906, 911-912 (2nd Cir. The natural and inevitable tendency of the tribunal -- 1984); United States v. Stevens, 935 F.3d 1380 (3rd Cir. whether judge or jury -- is to give excessive weight to the 1991); United States v. Krezdorn, 639 F.2d 1327, 1332-33 vicious record of crime thus exhibited, and either to (5th Cir. 1981), cert. denied, 465 U.S. 1066 (1984); United allow it to bear too strongly on the present charge, or to States v. Morano, 697 F.2d 923, 926 (11th Cir. 1983). These take proof of it as justifying a condemnation irrespective courts were persuaded by the policy underpinnings of Rule of guilt of the present charge. 404(b). The Eleventh Circuit’s explanation in United States v. Krezdorn, supra, is illustrative: Weissenberger’s Federal Evidence, § 404.12 3d. ed. (1998). The extrinsic acts rule is based on the fear that the jury The foregoing discussion demonstrates that the principal will use evidence that the defendant has, at other times, policy consideration underlying Rule 404(b)’s exclusionary committed bad acts to convict him of the charged rule is to protect the parties in an action, and in particular, offense. Consequently, where the only purpose served criminal defendants, from the danger of unfair prejudice. The by extrinsic offense evidence is to demonstrate the danger of prejudice to a party -- particularly a criminal propensity of the defendant to act in a certain way, the defendant -- however, does not exist in the context of “reverse evidence must be excluded. When, however, the extrinsic 404(b)” evidence where, as here, the defendant offers offense was not committed by the defendant, the evidence of other crimes or bad acts of a third party evidence will not tend to show that the defendant has a exculpatorily. criminal disposition and that he can be expected to act in conformity therewith. When the evidence will not Notwithstanding these policy considerations, because of the impugn the defendant’s character, the policies underlying language used in Rule 404(b), i.e., the use of “a person” Rule 404(b) are inapplicable. instead of “a party”, the courts have not treated “reverse 404(b)” evidence uniformly and the circuits are divided on the 639 F.2d at 1332-1333 (citations omitted). issue of the Rule’s applicability with regard to such evidence. The Seventh and the Ninth Circuits, like my colleagues on the Courts adopting the policy approach to Rule 404(b) found panel in this case, have taken a “plain language” approach, that policy considerations were particularly persuasive with and because Rule 404(b) speaks not of the parties to a case regard to evidence of acts of third parties offered but of “a person,” have held that Rule 404(b) applies not only exculpatorily by criminal defendants. For example, in United to the extrinsic acts of the parties but also to the acts of absent States v. Aboumoussallem, supra, a narcotics trafficking third parties. See Agushi v. Duerr, 196 F.3d 754, 759-761 defendant sought to offer in support of his defense that he had (7th Cir. 1999); United States v. McCourt, 925 F.2d 1229 (9th been duped into transporting the drugs by his cousins Cir. 1991). evidence that a few months earlier, another individual had been similarly duped by these same cousins to transport However, the First, Second, Third, Fifth and Eleventh narcotics. The district court excluded the evidence as not Circuits have taken the opposing view and have all relevant, more prejudicial than probative, and not admissible determined that Rule 404(b) is not applicable to evidence of under Rule 404(b). The Second Circuit disagreed with the acts of third parties. See United States v. Gonzalez, 825 F.2d district court’s determination that the defendant’s proffered No. 02-5399 United States v. Lucas 25 26 United States v. Lucas No. 02-5399
evidence was not relevant and inadmissible under Rule The absence of prejudice in the context of “reverse 404(b)” 404(b), explaining: evidence was similarly emphasized by the Third Circuit in Stevens, supra, 935 F.2d at 1404, and by the New Jersey We believe the standard of admissibility when a Supreme Court in State v. Garfole, 76 N.J. 445, 388 A.2d 587 criminal defendant offers similar acts evidence as a (1978), which both the Stevens court and the Aboumoussallem shield need not be as restrictive as when a prosecutor court cited with approval: uses such evidence as a sword. The prosecution, in the Anglo-American tradition, may not ordinarily offer . . .[O]ther-crimes evidence submitted by the evidence of a defendant’s prior wrongdoing for the prosecution has the distinct capacity of prejudicing the purpose of persuading the jury that the defendant has a accused. Even instructions by the trial judge may not propensity for crime and is therefore likely to have satisfactorily insulate the defendant from the hazard of committed the offense for which he stands trial. As Dean the jury using such evidence improperly to find him Wigmore points out, the evidence is objectionable not guilty of the offense charged merely because they believe because it has no appreciable probative value but because he has committed a similar offense before. . . . But when it has too much. Presumably, the “too much” argument the defendant is offering that kind of proof exculpatorily, means that a guilty person, and, of far more serious prejudice to the defendant is no longer a factor, and concern, an innocent person, may be convicted primarily simple relevance to guilt or innocence should suffice as because of the jury’s willingness to assume his present the standard of admissibility, since ordinarily, and guilt from his prior misdeed. subject to rules of competency, an accused is entitled to advance in his defense any evidence which may Wigmore also identifies objections based on the risk rationally tend to refute his guilt or buttress his innocence that the jury will convict because the defendant may not of the charge made. have been punished for his prior offenses and the injustice of requiring the defendant to defend against a Id., 76 N.J. at 452-53, 388 A.2d at 591 (footnote omitted). series of accusations. These possibilities of prejudice must be assessed even in cases where the prosecutor It was precisely because of the absence of prejudice to the offers similar acts evidence, not to prove the character of defendant that the Third Circuit held in Stevens that the accused, but to prove one of the permissible admissibility of “reverse 404(b)” evidence was governed by subsidiary facts listed in Rule 404(b), such as intent or the relevancy/prejudice considerations of Fed. R. Evid. 401 plan. However, risks of prejudice are normally absent and 403: when the defendant offers similar acts evidence of a third party to prove some fact pertinent to the defense. We agree with the reasoning of Garfole and with its In such cases the only issue arising under Rule 404(b) holding that the admissibility of “reverse 404(b)” is whether the evidence is relevant to the existence or evidence depends on a straightforward balancing of the non-existence of some fact pertinent to the defense. evidence’s probative value against considerations such as undue waste of time and confusion of the issues. 726 F.2d at 911-912 (citations and footnotes omitted; Recasting this standard in terms of the Federal Rules of emphasis added). Evidence, we therefore conclude that a defendant may introduce “reverse 404(b)” evidence so long as its No. 02-5399 United States v. Lucas 27 28 United States v. Lucas No. 02-5399
probative value under Rule 401 is not substantially Presley, whose character would be tainted, is not a party. outweighed by Rule 403 considerations. . . . [Thus], a Therefore, the more rigidly constructed constraints of Rule defendant must demonstrate that the “reverse 404(b)” 404(b) need not and should not apply. Instead, this should be evidence has a tendency to negate his guilt, and that it treated as a simple relevance issue and, since the proffered passes the Rule 403 balancing test. evidence has a tendency to negate Lucas’s guilt, it passes Rule 401 relevancy muster. 935 F.2d at 1404-05 (footnote omitted). This leaves only the Rule 403 part of the analysis. The I agree with the reasoning of the Second and Third Circuits. disputed evidence is especially probative here because the In my view, the simple fact that proffered evidence involves Defendant testified and her credibility was, in the absence of somebody’s prior bad act -- not the defendant’s -- does not much other independent evidence showing her involvement automatically bring it under the Rule 404(b) rubric and with the drugs, an important element for the jury to weigh. admission standard. The entire 404(b) paradigm is intended Unlike the district court, I would have found that the to protect a party to the litigation from the prejudice of the probative value of the evidence of Presley’s prior conviction propensity/character taint danger. The danger of prejudice to was not substantially outweighed by the dangers of prejudice a party, -- particularly a criminal defendant -- however, does or confusion, particularly with the availability of a limiting not exist in the context of “reverse 404(b)” evidence; indeed, instruction, and would have admitted the evidence. But, the it is that party which the Rule is intended to protect who is standard of review is abuse of discretion, and although I offering the evidence. believe this presents a close question, the fact that I would have admitted the evidence does not mean that the trial judge I find the Third Circuit’s reasoning particularly persuasive here abused his discretion in excluding it. I am particularly and would apply the relevancy/prejudice test established in persuaded that there is no abuse of discretion here since the Stevens here because, where the character interests and issue is a close one and there is a split in the circuits as to the inferences of a party are not implicated, there is simply no appropriate standard to apply to reverse 404(b) evidence -- evidentiary policy or purpose served by precluding a and, I agree with the majority that the only use of the propensity consideration by the jury that is not already evidence here would have been for the propensity inference, addressed by the traditional Rule 401/403 evidentiary and that is not permitted by the straightforward Rule 404(b) analysis. (For example, any concerns about prejudice to a analysis applied by the majority and the other circuits that party -- here, the Government -- or confusion of the issues, by have adopted this test.2 Accordingly, with respect to the admission of the evidence would be adequately dealt with in the context of a Rule 403 analysis.) 2 In this case, there seems little doubt that Presley’s prior I have somewhat the same view about the jail rape evidence offered conviction for cocaine distribution would tend to negate by way of explanation for Defendant’s nervousness. The rather Lucas’s guilt by corroborating her defense that the drugs were circum scribed, limited testimony she was allow ed to give -- that she was afraid of going to jail (as would be most people) hardly gives the same Presley’s, not hers, albeit through the propensity inference, texture and context to her nervous reaction as does the purported real and there can be no serious question, therefore, that such reason (i.e., the rape experience). Indeed, taken alone, the limited “afraid evidence is relevant. Further, the danger of character taint of going to jail” reason she was allowed to testify to seems to be a weak posed by the propensity inference is not present here because one and the jury might well have been misled by it. But again, although I might have allowed Defendant to testify that she was rap ed while in jail, No. 02-5399 United States v. Lucas 29
reverse 404(b) issue, I concur in the result reached by majority although not in its analysis. With respect to all of the other issues presented, I join in the majority opinion.
I cannot say that the trial judge abused his discretion in keeping that testimony out.