Yesterday, Southern District Judge Paul Engelmayer issued a carefully reasoned and highly instructive opinion holding that a defendant’s prior drug offenses were inadmissible under Fed. R. Evid. 404(b) to prove his intent to distribute crack cocaine. The short opinion, available here, is a must-read.
The defendant in United States v. Robinson, 17-cr-249, is charged with one count of possessing crack cocaine with intent to distribute. He concedes that he possessed an 18-gram rock of crack cocaine, but argues that the possession was for personal use. To rebut this argument, the government sought to introduce the defendant’s four prior, crack-related convictions. Judge Engelmayer determined, however, that these convictions were not sufficiently similar to the charged conduct to be admissible.
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.” 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). However, evidence that would otherwise be admissible under Rule 404(b) must be excluded “if the other act or acts are not sufficiently similar to the conduct at issue.” Slip op. at 3-4 (quoting United States v. Gordon, 987 F.2d 902, 909 (2d Cir. 1993) (quotation marks omitted)).
Here, the government sought to admit the defendant’s convictions for selling crack in 1999, 2004, and 2012; and for possessing crack in 2013. As Judge Engelmayer succinctly puts it, however, “[t]he only similarities identified between Robinson’s four prior narcotics offenses and his [charged] conduct . . . is that each involved crack.” Id. at 5 (paraphrasing United States s. Garcia, 291 F.3d 127 (2d Cir. 2002)). After analyzing the dissimilarities between the defendant’s prior convictions and the conduct at issue, Judge Engelmayer concludes that the convictions lack any of the hallmarks of admissibility under Rule 404(b): the charged possession did not (1) occur “in the same or nearby location to his prior crack offenses,” (2) “involve a common confederate or confederates,” (3) “involve a common modus operandi,” and (4) was not “even remotely close in time.” Id. at 8.
Significantly, Judge Engelmayer rejected the government’s contention that the prior convictions were admissible because they shared certain common features with the charged conduct, including that they occurred in the Bronx, involved “cash and a late hour,” and “included the presence of others.” Id. (alterations omitted). As Judge Engelmayer explained, “[t]hese quotidian and highly generalized commonalities are a far cry from demonstrating a substantial similarly between Robinson’s earlier crack sales and the circumstances of his . . . [charged] possession.” Id. at 6. The judge goes on to observe that “[t]he possession of cash late at night in the presence of others is a phenomenon often observed in the Brox on the part of thousands of persons at once–fans leaving Yankee Stadium.” Id. at 6 n.1
In short, Judge Engelmayer’s opinion provides a framework that will be useful to all parties in evaluating claims of admissibility under Rule 404(b).