"Sometimes the prosecution should be careful what it asks for." The panel begins with a bang in this appeal of a drugs-and-guns trial. Issues revolved around constructive possession of the guns and drugs and admission of certain evidence, including evidence of a prior conviction. Jury found defendant guilty. He was sentenced to 180 months.
The defendant was present at the home on the day the drugs and guns were found. He had unlimited access to the residence: he lived there part time; he repeatedly restored electrical service there; his parents testified that he stored personal property there; and a gun, scales, and baggies of marijuana were found with his drivers license and other personal papers in the home’s only bedroom. This evidence permitted the jury to find that the defendant had the power and intention to exercise control over the guns and drugs in the house.
1) The defendant argued that the district court erred in allowing a special agent to testify as an expert about drug-dealer customs without first obtaining specific information regarding his basis for knowledge. The agent, however, testified that he had surveilled drug transactions 300 to 400 times, participated in the execution of search warrants in 50 to 100 drug cases, and been involved in the arrests of several hundred suspected drug dealers. This testimony described an ample basis of knowledge for the opinions offered, so the Court rejected the defendant’s argument.
2) The defendant argued that the trial court should not have admitted 404(b) evidence of his 1998 drug conviction. That conviction was for possession with intent to distribute marijuana. It arose from an incident in front of the same residence as was involved in the instant offense. The government argued that the 1998 conviction was relevant to the defendant’s "knowledge and intent," both of which were elements of the drug offenses. The government argued that the defendant’s possession of marijuana with intent to distribute at the residence in 1998 tended to show that he knowingly possessed marijuana, crack cocaine, and powder cocaine at the same address with the same intent in 2006 (for the instant offense). The defense argued that the evidence merely showed propensity. The trial court admitted the evidence.
* But the issue of knowledge was not at issue in any meaningful sense. Whoever possessed the drugs—laying in plain view throughout the house—did not do so inadvertently. As a practical matter, the issue of knowledge was subsumed by the issue of possession—knowledge did not stand on its own as an issue in the trial. Therefore, the admission of his prior conviction could not be supported on that ground.
* The same is true of intent. The possessor of the drugs likely intended to sell them. Was the prior conviction probative of intent? Court points out conflict in prior case law. Court decides it need not resolve conflict because the evidence was too prejudicial. The other evidence in the case was available to prove this element, so admission of the prior was just piling on. And the prejudicial effect was very great.
* Not harmless error to admit the evidence of the prior conviction. Convictions and sentence vacated. Case remanded for new trial.