NOT RECOMMENDED FOR PUBLICATION File Name: 22a0249n.06
No. 21-1316 FILED UNITED STATES COURT OF APPEALS Jun 21, 2022 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE WESTERN DISTRICT OF ) MICHIGAN ROLONDO CLARK, ) Defendant-Appellant. ) OPINION )
Before: BOGGS, MOORE, and GRIFFIN, Circuit Judges.
PER CURIAM. A jury convicted Rolondo Clark of possession with intent to distribute
28 grams or more of cocaine and cocaine base. On appeal, he challenges the district court’s
decision to admit evidence of his prior drug-dealing conviction under Federal Rule of Evidence
404(b). He also argues that the proof presented at trial is not sufficient to support his conviction.
Because the overwhelming evidence of Clark’s guilt forecloses both arguments, we affirm.
I.
In 2016, Clark pleaded guilty to illegal delivery of a controlled substance analogue in
Michigan state court. After serving his prison time, he was released on parole. Clark soon tested
positive for cocaine. Around the same time, his parole officer found a picture of “large stacks
of cash” on his phone. The positive test, coupled with Clark’s apparent wealth despite a lack of
legitimate income, caused the officer to suspect that he might be dealing drugs again. No. 21-1316, United States v. Clark
The parole officer decided to search Clark’s two-bedroom apartment as a “compliance
check” for his parole. Clark’s GPS ankle monitor showed that he had spent most of his time at the
apartment in the previous two days. When agents arrived at Clark’s residence, which he had
previously reported he shared with his mother, they searched the back bedroom first. The bed in
that room had no sheets or pillows. The only other items in the back room were children’s toys,
clothes, and shoes, a single pair of adult shoes, and an empty “corner baggie,” which is commonly
used by drug dealers.
The officers next searched the front bedroom, which was where Clark indicated “all of his
stuff was.” That search turned up distribution quantities of cocaine and cocaine base,1 digital
scales covered in drug residue, Clark’s expired driver’s license, Clark’s clothes in the dresser and
in a bag by the bed, and several pairs of Clark’s shoes. Clark’s parole officer then searched his
phone, finding a drug ledger that was last modified that day, and messages showing that Clark was
actively selling drugs in the days preceding the search.
A federal grand jury indicted Clark on one count of possession with intent to distribute 28
grams or more of a substance containing a detectable amount of cocaine and cocaine base. Before
trial, the government notified Clark and the district court that it intended to introduce evidence of
his 2016 conviction under Rule 404(b). Clark objected, but the district court held that the fact of
his conviction was admissible to show identity and intent. See Fed. R. Evid. 404(b)(2).
Clark’s 2016 conviction was mentioned twice at trial. First, the government began its
substantive examination of Clark’s parole officer with this question: “Was the defendant
previously convicted of a felony on February 26, 2016, for delivery of a controlled substance
1 At trial, the government’s drug expert testified that the drugs seized from Clark’s apartment could create up to 1,250 “user hits” of powder cocaine and up to 368 “user hits” of crack cocaine. -2- No. 21-1316, United States v. Clark
analogue?” The officer responded, “Yes.” Second, the government mentioned the 2016
conviction during its closing argument, while emphasizing that it could be considered only “for
the limited purpose of determining whether the defendant intended to distribute these drugs.”
The district court gave a similar admonition to the jury while reading its jury instructions.
The jury convicted Clark, and he filed this timely appeal. Clark challenges the district
court’s decision to admit the fact of his prior conviction under Rule 404(b), and the sufficiency of
the evidence supporting his conviction.
II.
Under Rule 404(b), evidence of “any other crime, wrong, or act is not admissible to prove
a person’s character in order to show that on a particular occasion the person acted in accordance
with the character.” Fed. R. Evid. 404(b)(1). However, “other-act” evidence may be admissible
as proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
There is a divide in this circuit on how to evaluate whether a district court admitted
other-act evidence for one of the proper purposes outlined in Rule 404(b)(2). United States
v. LaVictor, 848 F.3d 428, 444–45 (6th Cir. 2017). We have sometimes applied a three-tiered
review framework: clear error for whether the other act occurred; de novo for whether the evidence
was offered for an admissible purpose; and abuse of discretion for the determination that the
probative value of the evidence is not substantially outweighed by its unfair prejudicial impact
under Rule 403. Id. At other times, we have applied a single-tiered abuse-of-discretion standard
of review. Id. at 445. We need not choose between these standards here though because both
require affirming the district court’s decision if it committed harmless error in admitting the Rule
404(b) evidence. See id. at 445, 448.
-3- No. 21-1316, United States v. Clark
Clark challenges whether admission of his prior conviction was proper. We are skeptical
that the government offered evidence of Clark’s 2016 conviction for a proper purpose under Rule
404(b)(2). But even if we assume without deciding that the district court’s admission of Clark’s
2016 conviction was error, he is not entitled to a new trial unless “it is more probable than not that
the error materially affected the verdict.” Id. at 448 (quoting United States v. Mack, 729 F.3d 594,
603 (6th Cir. 2013)). “Admission of other acts evidence constitutes harmless error ‘if the record
evidence of guilt is overwhelming, eliminating any fair assurance that the conviction was
substantially swayed by the error.’” Id. (quoting United States v. Hardy, 643 F.3d 143, 153 (6th
Cir. 2011)). “In reaching this determination, this Court must take into account what the error
meant to the jury, ‘not singled out and standing alone’ but in relation to all that happened.” Id.
(quoting United States v. Murphy, 241 F.3d 447, 453 (6th Cir. 2001)).
Here, the evidence of Clark’s guilt is overwhelming, and it is improbable that the district
court’s error, if any, materially affected the verdict. A conviction for possession with intent to
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NOT RECOMMENDED FOR PUBLICATION File Name: 22a0249n.06
No. 21-1316 FILED UNITED STATES COURT OF APPEALS Jun 21, 2022 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE WESTERN DISTRICT OF ) MICHIGAN ROLONDO CLARK, ) Defendant-Appellant. ) OPINION )
Before: BOGGS, MOORE, and GRIFFIN, Circuit Judges.
PER CURIAM. A jury convicted Rolondo Clark of possession with intent to distribute
28 grams or more of cocaine and cocaine base. On appeal, he challenges the district court’s
decision to admit evidence of his prior drug-dealing conviction under Federal Rule of Evidence
404(b). He also argues that the proof presented at trial is not sufficient to support his conviction.
Because the overwhelming evidence of Clark’s guilt forecloses both arguments, we affirm.
I.
In 2016, Clark pleaded guilty to illegal delivery of a controlled substance analogue in
Michigan state court. After serving his prison time, he was released on parole. Clark soon tested
positive for cocaine. Around the same time, his parole officer found a picture of “large stacks
of cash” on his phone. The positive test, coupled with Clark’s apparent wealth despite a lack of
legitimate income, caused the officer to suspect that he might be dealing drugs again. No. 21-1316, United States v. Clark
The parole officer decided to search Clark’s two-bedroom apartment as a “compliance
check” for his parole. Clark’s GPS ankle monitor showed that he had spent most of his time at the
apartment in the previous two days. When agents arrived at Clark’s residence, which he had
previously reported he shared with his mother, they searched the back bedroom first. The bed in
that room had no sheets or pillows. The only other items in the back room were children’s toys,
clothes, and shoes, a single pair of adult shoes, and an empty “corner baggie,” which is commonly
used by drug dealers.
The officers next searched the front bedroom, which was where Clark indicated “all of his
stuff was.” That search turned up distribution quantities of cocaine and cocaine base,1 digital
scales covered in drug residue, Clark’s expired driver’s license, Clark’s clothes in the dresser and
in a bag by the bed, and several pairs of Clark’s shoes. Clark’s parole officer then searched his
phone, finding a drug ledger that was last modified that day, and messages showing that Clark was
actively selling drugs in the days preceding the search.
A federal grand jury indicted Clark on one count of possession with intent to distribute 28
grams or more of a substance containing a detectable amount of cocaine and cocaine base. Before
trial, the government notified Clark and the district court that it intended to introduce evidence of
his 2016 conviction under Rule 404(b). Clark objected, but the district court held that the fact of
his conviction was admissible to show identity and intent. See Fed. R. Evid. 404(b)(2).
Clark’s 2016 conviction was mentioned twice at trial. First, the government began its
substantive examination of Clark’s parole officer with this question: “Was the defendant
previously convicted of a felony on February 26, 2016, for delivery of a controlled substance
1 At trial, the government’s drug expert testified that the drugs seized from Clark’s apartment could create up to 1,250 “user hits” of powder cocaine and up to 368 “user hits” of crack cocaine. -2- No. 21-1316, United States v. Clark
analogue?” The officer responded, “Yes.” Second, the government mentioned the 2016
conviction during its closing argument, while emphasizing that it could be considered only “for
the limited purpose of determining whether the defendant intended to distribute these drugs.”
The district court gave a similar admonition to the jury while reading its jury instructions.
The jury convicted Clark, and he filed this timely appeal. Clark challenges the district
court’s decision to admit the fact of his prior conviction under Rule 404(b), and the sufficiency of
the evidence supporting his conviction.
II.
Under Rule 404(b), evidence of “any other crime, wrong, or act is not admissible to prove
a person’s character in order to show that on a particular occasion the person acted in accordance
with the character.” Fed. R. Evid. 404(b)(1). However, “other-act” evidence may be admissible
as proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
There is a divide in this circuit on how to evaluate whether a district court admitted
other-act evidence for one of the proper purposes outlined in Rule 404(b)(2). United States
v. LaVictor, 848 F.3d 428, 444–45 (6th Cir. 2017). We have sometimes applied a three-tiered
review framework: clear error for whether the other act occurred; de novo for whether the evidence
was offered for an admissible purpose; and abuse of discretion for the determination that the
probative value of the evidence is not substantially outweighed by its unfair prejudicial impact
under Rule 403. Id. At other times, we have applied a single-tiered abuse-of-discretion standard
of review. Id. at 445. We need not choose between these standards here though because both
require affirming the district court’s decision if it committed harmless error in admitting the Rule
404(b) evidence. See id. at 445, 448.
-3- No. 21-1316, United States v. Clark
Clark challenges whether admission of his prior conviction was proper. We are skeptical
that the government offered evidence of Clark’s 2016 conviction for a proper purpose under Rule
404(b)(2). But even if we assume without deciding that the district court’s admission of Clark’s
2016 conviction was error, he is not entitled to a new trial unless “it is more probable than not that
the error materially affected the verdict.” Id. at 448 (quoting United States v. Mack, 729 F.3d 594,
603 (6th Cir. 2013)). “Admission of other acts evidence constitutes harmless error ‘if the record
evidence of guilt is overwhelming, eliminating any fair assurance that the conviction was
substantially swayed by the error.’” Id. (quoting United States v. Hardy, 643 F.3d 143, 153 (6th
Cir. 2011)). “In reaching this determination, this Court must take into account what the error
meant to the jury, ‘not singled out and standing alone’ but in relation to all that happened.” Id.
(quoting United States v. Murphy, 241 F.3d 447, 453 (6th Cir. 2001)).
Here, the evidence of Clark’s guilt is overwhelming, and it is improbable that the district
court’s error, if any, materially affected the verdict. A conviction for possession with intent to
distribute requires proof beyond a reasonable doubt that the defendant “(1) knowingly,
(2) possessed a controlled substance, (3) with intent to distribute it.” United States v. Russell,
595 F.3d 633, 645 (6th Cir. 2010) (citation omitted).2 The officers found distribution quantities of
drugs and drug paraphernalia next to Clark’s driver license, in the bedroom in which Clark kept
his belongings, in an apartment that that he had not left for most of two days. The location of the
drugs clearly establishes at least that Clark constructively possessed them. See United States
v. Hill, 142 F.3d 305, 312 (6th Cir. 1998). And the drug amount plus the presence of scales, a drug
ledger, stacks of money, and text-message conversations where Clark arranged drug sales more
2 To the extent that the government had to prove that the amount of drugs was equal to or greater than 28 grams, the parties stipulated below that the officers found roughly 125 grams of cocaine and roughly 36 grams of cocaine base. -4- No. 21-1316, United States v. Clark
than suffice to establish an intent to distribute. Id. at 311–12. This overwhelming evidence of
intent is particularly important because intent was the primary reason why this Rule 404(b)
evidence was admitted at trial. See United States v. Layne, 192 F.3d 556, 573 (6th Cir. 1993)
(“When the government presents other convincing or overwhelming evidence, [this Court] may
deem the admission of 404(b) evidence mere harmless error.”).
Taking into account what the alleged error meant to the jury, the impact of Clark’s 2016
conviction pales in comparison to the evidence of his guilt. The existence of the conviction was
merely confirmed by Clark’s parole officer and mentioned—almost as an afterthought—in the
government’s closing argument. Moreover, before trial, Clark agreed that some mention of this
conviction was necessary for the jury to understand the basis for a search of the apartment. Thus,
the existence of a prior conviction “was properly put before the jury,” which counsels against the
conclusion that any error in the district court’s 404(b) ruling “undermined the integrity of [Clark’s]
conviction.” LaVictor, 848 F.3d at 448.
In all, the record eliminates “any fair assurance that the conviction was substantially
swayed by the [alleged] error.” Id. Accordingly, even if there was error in the district court’s Rule
404(b) ruling, such error was harmless.
III.
Clark also challenges the sufficiency of the evidence underlying his conviction. Our
harmless-error discussion decides this issue. As explained above, the evidence of Clark’s guilt
was overwhelming. “[A]fter viewing the evidence in the light most favorable to the prosecution,”
we must affirm if “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Accordingly, we
reject Clark’s sufficiency-of-the-evidence challenge.
-5- No. 21-1316, United States v. Clark
IV.
For these reasons, we affirm the judgment of the district court.
-6-