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United States v. Hall

United States Court of Appeals, Fourth Circuit

June 1, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
HAROLD HALL, JR. Defendant-Appellant.

          Argued: January 24, 2017

         Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:14-cr-00629-JFA-1)

         ARGUED:

          Jeffrey Michael Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant.

          Benjamin Neale Garner, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

         ON BRIEF:

          William N. Nettles, United States Attorney, William K. Witherspoon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

          Before WILKINSON, WYNN, and FLOYD, Circuit Judges.

         Reversed, vacated, and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Floyd joined. Judge Wilkinson wrote a dissenting opinion.

          WYNN, Circuit Judge.

         A jury convicted Defendant Harold Hall, Jr., of possession with intent to distribute marijuana, possession of a firearm by a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime based on evidence obtained during law enforcement officers' search of a Columbia, South Carolina, home in which Defendant resided along with, he maintains, three other individuals. The search revealed approximately six kilograms of marijuana and three firearms inside a deadbolt-locked bedroom in the home.

         To establish Defendant's possession of the guns and marijuana, the government relied on a constructive possession theory, under which it had to prove that Defendant "kn[e]w[] of [the contraband's] presence and ha[d] the power to exercise dominion and control over it." United States v. Schocket, 753 F.2d 336, 340 (4th Cir. 1985) (emphasis added). At trial, the government presented no evidence directly linking Defendant to the guns and marijuana or to the locked bedroom in which the contraband was found. The guns and marijuana did not include Defendant's fingerprints, nor was there evidence that he had ever used any of the three guns or the marijuana. Defendant did not have a key to the bedroom's lock. And the remaining items found in the locked bedroom provided no evidence that Defendant had ever been inside that room.

         How then did the government establish, beyond a reasonable doubt, Defendant's constructive possession of the contraband in the locked bedroom? The government successfully sought admission of Defendant's prior convictions-one for possession of marijuana and three for possession with intent to distribute marijuana-under Federal Rule of Evidence 404(b)(1). The district court concluded that these convictions were admissible to establish that Defendant (1) knew, based on his familiarity with the smell of marijuana, that the house contained marijuana; and (2) had the specific intent to distribute the marijuana.

         Rule 404(b)(1) provides that "[e]vidence of a crime, wrong, or other 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." Rule 404(b)'s prohibition is not based on the notion that "character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge." Michelson v. United States, 335 U.S. 469, 475-76 (1948) (footnote omitted).

         To ensure that defendants are protected from the prejudicial effect of their prior convictions, the government must establish that evidence of a defendant's prior bad acts is admissible for a proper, non-propensity purpose, such as "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b)(2). In meeting this burden, the government must prove that the evidence is "relevant to an issue, such as an element of an offense, and [is] not . . . offered to establish the general character of the defendant." United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997). "The more closely that the prior act is related to the charged conduct in time, pattern, or state of mind, the greater the potential relevance of the prior act." United States v. McBride, 676 F.3d 385, 397 (4th Cir. 2012). The government also must demonstrate that the evidence is "necessary in the sense that it is probative of an essential claim or an element of the offense, " that the evidence is "reliable, " and that "the evidence's probative value [is] not . . . substantially outweighed by confusion or unfair prejudice." Queen, 132 F.3d at 997.

         The district court in this case concluded that the government-which simply provided the district court with the name and date of the convictions, but offered no information regarding the facts and circumstances giving rise to those convictions-met its burden to establish that Defendant's prior convictions were admissible under Rule 404(b) as to Defendant's knowledge and intent. In doing so, the district court abused its discretion. In particular, because the government proffered no evidence of any connection between Defendant's prior possession conviction and the instant possession with intent to distribute charge, that possession conviction was not relevant to whether Defendant intended to distribute the marijuana found inside the locked bedroom. Likewise, the absence of factual similarity and temporal proximity between Defendant's prior possession with intent to distribute convictions and the conduct alleged in the present case renders those prior convictions irrelevant to establishing Defendant's intent to distribute the marijuana in the locked bedroom. And although Defendant's prior marijuana possession and distribution convictions were relevant to establishing Defendant's knowledge of the smell of marijuana, the minimal probative value of admitting those convictions for that purpose was substantially outweighed by the likelihood of unfair prejudice, particularly in light of (1) Defendant's decision not to contest his knowledge of the smell of marijuana or its presence in the house; and (2) the absence of evidence linking Defendant to the contraband in the locked bedroom.

         The dissenting opinion would reduce the government's burden under Rule 404(b), allowing admission of evidence that a defendant committed a prior drug offense to establish the defendant's knowledge and intent to commit a later drug offense, even absent any linkage between the prior offense and the charged conduct. But it is well established that the "fact that a defendant may have been involved in drug activity in the past does not in and of itself provide a sufficient nexus to the charged conduct where the prior activity is not related in time, manner, place, or pattern of conduct." United States v. Johnson, 617 F.3d 286, 297 (4th Cir. 2010). In accordance with that principle, we have held on numerous occasions that a district court abuses its discretion by admitting evidence of a defendant's prior drug convictions when those convictions are removed in time from the charged offense and the government fails to establish a sufficient link between those prior convictions and the events giving rise to the charge at issue. This precedent requires that we reach the same conclusion here.[1]

         We turn first to the issue at hand, after which we devote a separate section to responding to our dissenting colleague's protestations.

         I.

         A.

         On June 25, 2012, a confidential informant working on behalf of several law enforcement agencies completed a probable cause purchase of marijuana at a residence on Steadham Road in Columbia, South Carolina (the "residence, " or the "Steadham Road residence"). The confidential informant did not purchase the marijuana from Defendant. Rather, the informant bought the marijuana from an individual referred to only as "Jeezy, " who, the informant testified, was not Defendant. J.A. 394-95. Following the purchase, law enforcement officers obtained a warrant to search the residence.

         On June 27, 2012, law enforcement officers went to the Steadham Road residence to execute the search warrant. Minutes before conducting the search, Officer Brien Gwyn saw two men leave the residence and drive away in a blue Ford SUV. Officer Gwyn followed the SUV and conducted a traffic stop several blocks away. Defendant and his cousin, Gerald Hall ("Gerald"), were in the SUV. When questioned, Defendant told Officer Gwyn that he lived at the Steadham Road residence by himself. Gerald was later charged with simple possession of marijuana arising from the officers' search of the SUV. Although Gerald's arrest report indicated that he had no permanent address, Gerald testified at trial that he had lived at the Steadham Road residence for several years, including at the time of these events.

         While Officer Gwyn conducted the traffic stop, other law enforcement officers searched the Steadham Road residence. Immediately upon entering the residence, the officers smelled an overwhelming odor of unburnt marijuana. In conducting their search, the officers found marijuana residue on the kitchen table. Inside the kitchen, the officers found a utility bill for the residence in Defendant's name, as well as a piece of mail addressed to Defendant. In the living room, the officers found several computers that Defendant used for his work as a truck dispatcher, one of which had a digital scale on top. And inside a closet in the back-left bedroom, officers found a shirt containing Defendant's photo identification and $1, 000 in cash.

         Defendant's uncle, Russell Sulton, testified that he lived in one of the remaining three bedrooms, and Sulton's brother, Robert Hendrix, testified that he lived in another of the bedrooms. Like Defendant and Gerald, neither Sulton nor Hendrix owned the house. The residence's final bedroom, at the back-right side of the house, was secured with a deadbolt lock. After forcing entry into that bedroom, officers found approximately six kilograms of marijuana, packaging material, and three guns, at least one of which was stolen. Defendant's fingerprints were not on any of this contraband. The government also did not introduce evidence that Defendant had previously used or been linked to the guns, or that Defendant had used or sold the marijuana. And none of the other evidence found inside the locked bedroom pointed to Defendant as the bedroom's occupant or as someone who previously had accessed the room.

         Upon learning that officers had entered the Steadham Road residence and discovered the marijuana and guns, Officer Gwyn took Defendant and Gerald into custody and drove them to the residence in his patrol car. Officers later arrested Defendant in connection with the contraband found inside the deadbolt-locked bedroom.

         B.

         A federal grand jury indicted Defendant for (1) knowingly possessing a firearm after being convicted of a crime punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. § 922(g)(1); (2) knowingly or intentionally possessing with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); and (3) knowingly using and carrying firearms during and in relation to, and possessing firearms in furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Because Defendant did not actually possess the guns or marijuana, the government pursued a constructive possession theory, under which the jury could find that Defendant possessed the contraband in the deadbolt-locked bedroom only if it concluded beyond a reasonable doubt that Defendant "[1] kn[e]w[] of [the contraband's] presence and [2] ha[d] the power to exercise dominion and control over it." Schocket, 753 F.2d at 340.

         Prior to Defendant's jury trial, the government sought leave to introduce, as part of its case-in-chief, evidence of four of Defendant's prior convictions: a 2006 conviction for possession of marijuana (the "prior possession conviction"); a 2004 conviction for possession with intent to distribute marijuana; and two 2007 convictions for possession with intent to distribute marijuana (collectively, the "prior possession with intent to distribute convictions"). The government provided the court with the date of each conviction and the statutes Defendant had been convicted of violating, but it did not offer the court any information regarding the circumstances giving rise to the convictions. Emphasizing only the "overwhelming" odor of marijuana at the Steadham Road residence at the time of the search, the government argued that Defendant's prior marijuana convictions were relevant and admissible under Rule 404(b) to establish his knowledge absent mistake that there was marijuana inside the residence, where Defendant had been just minutes before officers executed the search warrant. J.A. 22-23.

         Defendant objected to admission of the prior convictions to establish knowledge of the contraband, arguing that the convictions were "not 404(b) material" because Defendant was "not charged with smelling marijuana, " and "[h]e certainly didn't smell the guns." J.A. 24-25. Defendant further emphasized that the prior convictions had no relevance to the only contested issue in the case-whether Defendant had the power to exercise dominion and control over the contraband in the locked bedroom. Initially, the district court expressed reluctance to admit the prior convictions, questioning the government's theory that the smell of marijuana inside the Steadham Road residence, by itself, rendered Defendant's prior drug convictions admissible under Rule 404(b) to establish Defendant's knowledge. But after the government provided the district court with this Court's unpublished decision in United States v. White, 519 F.App'x 797 (4th Cir. 2013), the district court concluded that White compelled admission of Defendant's prior convictions. Although the district court admitted the prior convictions, the court reaffirmed its belief that the framers of Rule 404(b) did not intend to render such convictions admissible. J.A. 62. ("I don't like [White]. I'm not sure Rule 404(b) was drafted to be that broadly construed, but that is the way it has been construed, and I am bound by my oath to follow the Fourth Circuit law.").

         Notwithstanding that the government argued only that the prior convictions were admissible to establish Defendant's knowledge of the marijuana, the district court admitted the prior convictions to establish both Defendant's knowledge of and intent to distribute the marijuana. To that end, at the conclusion of its case-in-chief, the government read Defendant's prior convictions into evidence before the jury and stated that the convictions were "relevant to [Defendant's] knowledge and intent regarding the crimes which we're here for today." J.A. 64. The district court then provided a limiting instruction, informing the jury that Defendant's prior convictions were "being offered only on the issue of knowledge and intent" and could not "be accepted . . . to show that someone is a bad person . . . [or] had a propensity to commit an offense." J.A. 64-65. The court's instruction did not limit the jury's use of Defendant's prior convictions to the possession with intent to distribute charge. And the absence of other evidence establishing that Defendant had knowledge of the guns inside the locked bedroom indicates that the government-and the jury-relied upon Defendant's prior marijuana convictions to prove that Defendant also knew about the guns.

         Yet in presenting his defense at trial, Defendant did not contest his knowledge of marijuana generally or his knowledge that the Steadham Road residence contained marijuana or guns. Nor did Defendant contest that the marijuana in the locked bedroom was intended for distribution. Rather, Defendant argued that he did not possess the marijuana or guns in the locked bedroom because he lacked the power to exercise dominion and control over them. In particular, the defense sought to establish that Gerald, not Defendant, possessed the contraband. In support of this defense, Defendant called Gerald to the witness stand and elicited testimony that Gerald, not Defendant, resided in and had sole access to the deadbolt-locked bedroom; that Defendant did not live in the residence but stopped by occasionally to dispatch trucks for his work; that Gerald alone possessed the marijuana and guns in the locked bedroom; and that Defendant had no interest in the marijuana or guns. Defendant also elicited testimony from Sulton and Hendrix, who corroborated Gerald's testimony that Defendant did not live in the residence and that Gerald occupied the locked bedroom.[2]

         Notwithstanding that the district court admitted Defendant's prior marijuana convictions solely for the purposes of establishing Defendant's knowledge and intent to distribute, during closing arguments the government used Defendant's prior convictions for a third purpose: to discredit Gerald's testimony. Specifically, the government appealed to Defendant's prior convictions to suggest that Gerald-who, unlike Defendant, had no prior felony convictions-lied about solely possessing the guns and drugs because he was likely, according to the government, to receive probation if he were convicted for the offenses related to the contraband, whereas Defendant was at risk of receiving a substantial sentence due to his prior felony convictions. J.A. 143-44 ("[Defendant] knew that he would have been facing substantial[ly] more time in jail [than Gerald] who has no prior convictions. Gerald probably would have gotten probation. So Gerald became the fall guy for the family.").

         The jury convicted Defendant of all three indicted offenses, and the district court sentenced Defendant to 360 months in prison. Defendant timely appealed. On appeal, Defendant argues that the district court (1) reversibly erred in admitting evidence of Defendant's four prior marijuana convictions; (2) improperly sentenced Defendant as a career offender; (3) unconstitutionally increased Defendant's maximum sentence based on his prior convictions, which were not proven to the jury beyond a reasonable doubt; and (4) erroneously imposed a substantively unreasonable sentence.

         For the reasons that follow, we conclude that the district court abused its discretion in allowing the government to introduce evidence of Defendant's prior possession and possession with intent to distribute convictions under Federal Rule of Evidence 404(b) and that this error irreparably tainted each of Defendant's three convictions. Because this error requires that Defendant's convictions be vacated, we decline to rule on the remaining three issues raised on appeal.

         II.

         We generally review a district court's decision to admit a defendant's prior convictions under Rule 404(b) for abuse of discretion. See McBride, 676 F.3d at 395. "Where a party, however, fails to object to the admission of evidence . . . we review the admission for plain error." United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996) (applying plain error review to an unpreserved challenge to admission of prior bad act evidence under Rule 404(b)). The government argues that Defendant failed to properly preserve his argument against admission of the prior convictions because his objections before the trial court lacked sufficient specificity. Accordingly, the government maintains that we must apply "the more rigorous plain error standard." Appellee's Br. at 16. This argument borders on frivolous.[3]

         "To preserve a claim of error under Federal Rule of Criminal Procedure 51(b), a party must only 'inform[] the court . . . of the action the party wishes the court to take.'" United States v. Woods, 710 F.3d 195, 200 n.2 (4th Cir. 2013) (alterations in original). In the case at bar, Defendant objected to the admission of his prior marijuana convictions as "not 404(b) material" immediately after the government notified Defendant and the district court that it intended to introduce those prior convictions. J.A. 25. Defendant's counsel explained that the prior convictions were of minimal relevance to establishing Defendant's knowledge of the marijuana because "he's not charged with smelling marijuana. He's charged with the marijuana that was in that back right room. . . . [and] whether or not he knew it was in there, whether he had exercised dominion or control over it." J.A. 24. Defendant's counsel further argued that, based on the government's theory, the prior convictions could not be relevant to the firearm charges because "[Defendant] certainly didn't smell the guns." J.A. 24. These arguments not only "inform[ed] the court" that Defendant did not believe admission of the prior convictions was proper to establish knowledge under Rule 404(b), but they also "inform[ed] the court" of Defendant's position that the convictions were not relevant to-much less probative of-the only contested issue in the case: whether Defendant had the power to exercise dominion and control over the contraband in the locked bedroom. See Fed. R. Crim. P. 51(b). The district court recognized as much, stating that it "would overrule [Defendant's] objection and allow the 404(b) evidence." J.A. 62 (emphasis added).

         Defendant's arguments, therefore, were more than sufficient to preserve his objection to the district court's admission of his prior convictions under Rule 404(b). But even if Defendant had not cited Rule 404(b) by name-which he did-his arguments would have been adequate to preserve his objection because they were "sufficiently specific to bring into focus the precise nature of the alleged error." United States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012) (internal quotation marks omitted). Accordingly, we now review for abuse of discretion the district court's admission of Defendant's prior marijuana convictions under Rule 404(b) to establish knowledge and intent.

         III.

         Federal Rule of Evidence 404(b)(1) provides that "[e]vidence of a crime, wrong, or other 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." The government, therefore, "may not introduce evidence of extrinsic offenses to demonstrate the defendant's propensity to commit unlawful acts or to prove that the defendant committed the crime with which he is presently charged." United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995) (internal quotation marks omitted).

         Rule 404(b)'s "purposeful exclusion of such prior 'bad act' evidence is not grounded in its irrelevance." McBride, 676 F.3d at 395. "Instead, the general inadmissibility of such evidence is based on the danger that this type of evidence will overly influence the finders of fact and thereby persuade them 'to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.'" Id. (quoting Michelson, 335 U.S. at 475-76). Additionally, Rule 404(b)'s general exclusion of evidence of a defendant's prior bad acts "reflects the revered and longstanding policy that, under our system of justice, an accused is tried for what he did, not who he is." United States v. Caldwell, 760 F.3d 267, 276 (3d Cir. 2014). To that end, Rule 404(b) "protects against juries trying defendants for prior acts rather than charged acts." Queen, 132 F.3d at 996 (emphasis added).

         Although "other acts" evidence is not admissible to prove criminal propensity, such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b)(2). As the plain language of the rule suggests, this list of proper purposes is not exhaustive. Queen, 132 F.3d at 994-95. Yet to constitute a proper purpose, "there must be some articulable inference for the jury to draw from the previous offense other than that the defendant had [a] bad character and therefore more probably had the intent to commit the crime he is now charged with." United States v. Lynn, 856 F.2d 430, 436 (1st Cir. 1988).

         The government bears the burden of establishing that evidence of a defendant's prior bad acts is admissible for a proper purpose. United States v. Youts, 229 F.3d 1312, 1317 (10th Cir. 2000); United States v. Arambula-Ruiz, 987 F.2d 599, 602-03 (9th Cir. 1993). To satisfy this burden, the government must identify each proper purpose for which it will use the other acts evidence and explain how that evidence "fits into a chain of inferences-a chain that connects the evidence to [each] proper purpose, no link of which is a forbidden propensity inference." United States v. Davis, 726 F.3d 434, 442 (3d Cir. 2013). Even if the government provides a proper purpose for admitting prior bad act evidence, such evidence is still inadmissible if its likely prejudicial effect substantially outweighs its probative value. McBride, 676 F.3d at 396.

         In Queen, we set forth a four-step test for determining when evidence of prior bad acts is admissible under Rule 404(b). 132 F.3d at 997. First, "[t]he evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant." Id. Second, "[t]he act must be necessary in the sense that it is probative of an essential claim or an element of the offense." Id. Third, "[t]he evidence must be reliable." [4] Id. And fourth, "the evidence's probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process." Id.

         Applying this test, we first consider whether the district court abused its discretion in holding that Defendant's prior conviction for simple possession of marijuana was admissible under Rule 404(b). Then, we address whether the district court abused its discretion in admitting Defendant's three prior convictions for possession with intent to distribute marijuana.

         IV.

         A.

         We first address whether Defendant's prior possession conviction was admissible to prove Defendant's intent to distribute the marijuana found inside the locked bedroom of the Steadham Road residence. The first step of the Queen test provides that other acts "evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant." Id. "For evidence to be relevant, it must be 'sufficiently related to the charged offense.'" McBride, 676 F.3d at 397 (quoting United States v. Rawle, 845 F.2d 1244, 1247 n.3 (4th Cir. 1988)). "The more closely that the prior act is related to the charged conduct in time, pattern, or state of mind, the greater the potential relevance of the prior act." Id.; see also Queen, 132 F.3d at 997 ("[T]he more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes."). In the context of prior drug offenses, in particular, we have held that the "fact that a defendant may have been involved in drug activity in the past does not in and of itself provide a sufficient nexus to the charged conduct where the prior activity is not related in time, manner, place, or pattern of conduct." Johnson, 617 F.3d at 297 (emphasis added).

         The government makes no effort to argue that the district court properly admitted Defendant's prior marijuana possession conviction as relevant to his intent to distribute marijuana. For good reason. "Possession and distribution are distinct acts-far more people use drugs than sell them-and these acts have different purposes and risks." Davis, 726 F.3d at 444; see also United States v. Ono, 918 F.2d 1462, 1465 (9th Cir. 1990) ("Acts related to the personal use of a controlled substance are of a wholly different order than acts involving the distribution of a controlled substance."). Fundamentally, "[o]ne activity involves the personal abuse of [illegal drugs], " whereas the other involves "the implementation of a commercial activity for profit." Ono, 918 F.2d at 1465. "[I]f the act of possessing or using marijuana is to be admissible to prove intent to transport and sell marijuana, . . . then there is no reason why participation in any drug-related crime could not be used to prove intent to engage in any other drug-related crime, or why any robbery could not be used to prove the requisite intent with respect to any other robbery. A rule allowing such evidence would eviscerate almost entirely the character evidence rule." David P. Leonard, The New Wigmore, A Treatise on Evidence: Evidence of Other Misconduct & Similar Events § 7.5.2.

         Moreover, the mens rea requirements for possession and distribution offenses are fundamentally different. For example, the Georgia possession statute under which Defendant was convicted prohibits "any person to purchase, possess, or have under his or her control any controlled substance"-regardless of what the person intends to do with the controlled substance. Ga. Code Ann. § 16-13-30(a). By contrast, to convict Defendant of possession with intent to distribute marijuana, the government had to prove Defendant's specific intent to distribute the marijuana found inside the locked bedroom. See 21 U.S.C. § 841(a)(1), (b)(1)(D). Because Defendant's prior possession conviction did not require a finding of specific intent, the only relevance that conviction could have to his intent to distribute marijuana on a later, unrelated occasion is that it tends to suggest that Defendant is, in general, more likely to distribute drugs because he was involved with drugs in the past. This is precisely the propensity inference Rule 404(b) prohibits. See Johnson, 617 F.3d at 297.

         For this reason, several of our sister circuits have held that evidence of a defendant's prior conviction for possession of drugs for personal use is inadmissible under Rule 404(b) to prove a defendant's intent to distribute a controlled substance on a later, unrelated occasion. See, e.g., Davis, 726 F.3d at 445 ("[A] possession conviction is inadmissible to prove intent to distribute."); United States v. Haywood, 280 F.3d 715, 721 (6th Cir. 2002) (finding no "compelling rationale" for the idea that "a defendant's possession of drugs for personal use is relevant to prove his intent to distribute drugs found in his possession on another occasion"); Ono, 918 F.2d at 1465 (discussing the fundamental differences between possession and distribution crimes); United States v. Monzon, 869 F.2d 338, 344 (7th Cir. 1989) (finding that a defendant's possession of marijuana was not relevant to his intent to distribute). But see, e.g., United States v. Butler, 102 F.3d 1191, 1196 (11th Cir. 1997) ("[T]he logical extension of our current jurisprudence is to admit evidence of prior personal drug use to prove intent in a subsequent prosecution for distribution of narcotics.").

         We agree, and therefore hold, that a defendant's prior conviction for possession of a drug is not relevant to establishing the defendant's intent to distribute a drug at a later time, absent some additional connection between the prior offense and the charged offense. Because the government proffered no evidence of any connection between Defendant's prior possession conviction and the instant possession with intent to distribute charge, we find that Defendant's prior possession conviction is not relevant to whether Defendant intended to distribute the marijuana found inside the locked bedroom of the Steadham Road residence.

         B.

         Next, we consider whether the district court abused its discretion in permitting the government to introduce Defendant's prior possession conviction to establish Defendant's knowledge of the marijuana inside the locked bedroom. Again, we first must determine whether Defendant's prior possession conviction was relevant, i.e., "related in time, manner, place, or pattern of conduct, " to his knowledge that the marijuana was inside the locked bedroom. Johnson, 617 F.3d at 297.

         A defendant's prior conviction for possession of a particular drug will not always be relevant to establishing the defendant's knowledge of "the same drug when prepared for distribution." Davis, 726 F.3d at 443. For example, distribution quantities of a drug are often packaged differently than quantities possessed for personal use, rendering a defendant's knowledge of the packaging of a personal use amount of a drug irrelevant to his knowledge of how a distribution amount of the same drug might be packaged. Id. Likewise, a single drug may be sold in multiple forms, rendering a defendant's past possession of one form of the drug irrelevant to his knowledge of a different form of the same drug. Id.

         Nonetheless, a prior possession conviction may be relevant to establishing a defendant's knowledge of the same type of drug for purposes of a later offense if the particular characteristic of the drug used to establish knowledge does not materially vary based on quantity, form, or packaging, for example. Of particular relevance here, an individual's prior experience with the smell of unburnt marijuana, as evidenced by a prior marijuana-related conviction, is relevant to establishing that the defendant knew, based on smell, of the presence of unburnt marijuana on a later occasion. See United States v. Jara, 474 F.3d 1018, 1022-23 (8th Cir. 2007) (holding that defendant's prior experience with marijuana was admissible to establish that he knew, based on smell, that the car he was driving contained marijuana); United States v. Espinoza-Durazo, 253 F.App'x 677, 680 (9th Cir. 2007) ("[Defendant]'s prior experience with marijuana makes it unlikely that she could have sat in the car with 147 pounds of it without recognizing the smell, and therefore the prior act tends to prove knowledge."). Accordingly, we conclude that Defendant's prior possession conviction was relevant to his knowledge that the Steadham Road residence contained marijuana.

         Although we conclude that Defendant's prior possession conviction was relevant to establishing his knowledge that marijuana was inside the residence, the prejudicial effect of admitting that prior conviction for this purpose far outweighed the evidence's probative value, rendering the conviction inadmissible under Queen's fourth prong. That vital prong requires the trial judge to "balance the relevance of the proposed use of the evidence to the case-and the evidence's relevance to that proof-against the high risk that the evidence will also tend to establish bad character and propensity to commit the charged crime." United States v. Miller, 673 F.3d 688, 697 (7th Cir. 2012). Absent such balancing of the prior bad act evidence's probative value against its prejudicial effect, "the list of exceptions in Rule 404(b), if applied mechanically, would overwhelm the central principle. Almost any bad act evidence simultaneously condemns by besmirching character and by showing one or more of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, not to mention the other purposes of which this list is meant to be illustrative." Id. at 696-97 (internal quotation marks omitted).

         Defendant's prior possession conviction had minimal probative value for several reasons. First, "the probative value of prior act evidence is diminished where the defendant does not contest the fact for which supporting evidence has been offered." Caldwell, 760 F.3d at 283 (emphasis added); Miller, 673 F.3d at 697 (finding that, although "intent is at least formally relevant to all specific intent crimes" and, accordingly, at issue in every case in which the defendant pleads not guilty, "intent becomes more relevant, and evidence tending to prove intent becomes more probative, when the defense actually works to deny intent, joining the issue by contesting it" (emphasis added)). Indeed, "[t]he prejudicial effect of extrinsic evidence substantially outweighs its probative value when the relevant exception [under which the government seeks admission of an extrinsic offense] is uncontested, because the incremental probative value of the extrinsic offense is inconsequential when compared to its prejudice." United States v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013) (emphasis added). Here, Defendant did not contest that he knew, based on his knowledge of the odor of marijuana or otherwise, that there was marijuana inside the Steadham Road residence. Accordingly, evidence of Defendant's knowledge of the odor of marijuana, as established by his prior possession conviction, was of "minimal" probative value. Caldwell, 760 F.3d at 283-84.

         Second, even if Defendant had contested his knowledge of the odor of unburnt marijuana or of the presence of marijuana inside the residence, Defendant's knowledge of the odor of marijuana was minimally probative of the crucial issue regarding his knowledge: whether Defendant knew that there was marijuana inside the locked bedroom. Under the government's constructive possession theory-requiring proof both of Defendant's knowledge of the contraband and his ability to exercise dominion and control over it-such localized knowledge would have been particularly relevant. But the officers' undisputed testimony at trial was that they smelled a strong odor of unburnt marijuana upon entering the Steadham Road residence and that this odor pervaded the house. The government did not offer any evidence that the odor of marijuana specifically emanated from the locked bedroom. To the contrary, the government argued that Defendant's prior marijuana conviction was relevant to establishing that he knew "there [wa]s marijuana in his house." J.A. 23 (emphasis added). That the officers found marijuana residue on the dining room table further reinforced that the odor of marijuana was not localized to the locked bedroom. Accordingly, Defendant's knowledge that ...


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