                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0275n.06

                                        Case No. 16-1182
                                                                                       FILED
                              UNITED STATES COURT OF APPEALS                     May 16, 2017
                                   FOR THE SIXTH CIRCUIT                     DEBORAH S. HUNT, Clerk



UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE WESTERN
CARL LUTHER THOMPSON, II,                             )        DISTRICT OF MICHIGAN
                                                      )
        Defendant-Appellant.                          )
                                                      )
                                                      )                             OPINION


BEFORE:        COLE, Chief Judge; COOK and WHITE, Circuit Judges.

        COLE, Chief Judge.        On this direct appeal of his conviction, Carl Thompson II

challenges the district court’s decisions to admit evidence of his previous drug distribution acts,

deny his motion for a new trial based on newly discovered evidence, join his drug and gun

charges for trial, and deny his motion for judgment of acquittal. We affirm the district court on

all claims.

                                      I. BACKGROUND

        A. Factual Background

        On October 8, 2014, Thompson was charged with two counts of possession of a firearm

as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The indictment charged Thompson

with possession of a revolver on June 11, 2013, and of a semiautomatic pistol on June 12, 2013.
No. 16-1182, United States v. Thompson


       The police arrested Thompson along with Jesse Phillips in Grand Rapids, Michigan, on

October 21, 2014, in the driveway of 2229 Horton Avenue. Officers searched Thompson and

Phillips and then secured them in police vehicles. The searches did not turn up drugs but each

man had about $650 on his person. Officer Mollan, who had followed Thompson and Phillips

prior to the arrest, investigated a prior stop he had witnessed the two men make. He returned

about forty-five minutes later with two U.S. Bureau of Alcohol, Tobacco, Firearms, and

Explosives (“ATF”) agents. At this point, the officers released Phillips. Subsequently, the

officers found four bags of drugs on the lawn within ten feet of the car. Testing after the arrest

determined that two of the bags contained marijuana (11.73 and 1.56 grams respectively), one

contained crack cocaine (7.39 grams), and one contained heroin (3.7 grams).

       B. Procedural Background

       On December 2, 2014, Phillips testified, with immunity, before a grand jury that

Thompson threw the drugs out of the car window after they pulled into the driveway at

2229 Horton Avenue.      After Thompson’s arrest and Phillips’s grand jury testimony, the

government filed a superseding indictment that charged Thompson with possession with intent to

distribute crack cocaine and marijuana. On January 7, 2015, the government filed a second

superseding indictment that added heroin to the drugs Thompson was charged with possessing

with intent to distribute. The second superseding indictment, which was the operative indictment

at trial, charged Thompson with three offenses. Count one charged him with being a felon in

possession of a firearm for the June 11, 2013, possession of a loaded Smith and Wesson

revolver. Count two charged him with being a felon in possession of a firearm for the June 12,

2013, possession of a Hi-Point semiautomatic pistol. Count three charged him with possession

with intent to distribute heroin, cocaine base, and marijuana on October 21, 2014.



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No. 16-1182, United States v. Thompson


        Thompson pleaded not guilty to all of the charges and was detained pending trial. In

pretrial motions the defense sought to exclude evidence of Thompson’s prior marijuana

involvement, which included testimony from Thompson’s ex-girlfriend Diara Saffore and her

mother Erica Nix that he sold marijuana at unspecified times in 2013, his previous marijuana

convictions, and text messages that allegedly discuss drug dealing. The district court waited

until trial to rule on these issues.

        At trial, the government presented twenty-four witnesses. Even after the district court

issued a material witness warrant, Phillips, a government witness, failed to show up for trial.

        To prove count three, the government elicited testimony from ten witnesses. Saffore, a

felon, testified about Thompson’s prior instances of selling marijuana. Thompson’s trial counsel

objected to the relevance of her testimony, but the court allowed the testimony to continue based

on a previous ruling about the admissibility of the evidence because the evidence helped

demonstrate intent for the specific intent crime charged. Nix, another felon, also testified to

previous instances in which she had seen Thompson sell marijuana in the house she shared with

Thompson and her daughter.

        Julie Snyder, a fingerprint examiner with the Grand Rapids Police Department, testified

that she did not find any fingerprints on the bags of drugs retrieved on October 21, 2014, but

noted the bags were of a kind that does not normally retain fingerprints.

        Officer Butler, a detective in the vice unit, testified to details about the drug trade. He

testified that the average-use amount of crack cocaine is .1 grams, and that a typical user will

possess between one and five times that amount. He also testified that in his experience he had

never come across a user with that amount of crack cocaine (7.39 grams), which would be valued

at about $1400. He stated that cell phones and cars are often used as tools to distribute drugs.



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No. 16-1182, United States v. Thompson


       Butler testified that the typical consumption amount for heroin is fifty milligrams and that

even the “hardest core user” would not use more than a gram in a day. (Trial Tr., R. 139, PageID

1447.) He further estimated that the 3.7 grams of heroin retrieved on October 21, 2014, would

be worth over a thousand dollars. He testified that of the two bags of marijuana retrieved, the

smaller bag of 1.57 grams is called a nickel bag and is the normal amount sold to street-level

purchasers. The larger bag and the smaller bag combined are about fourteen grams, which is the

normal amount carried for distribution.

       Through Butler’s testimony, the government introduced a series of text messages sent

and received by Thompson that allegedly related to drug dealing. Thompson’s trial counsel

objected to the text messages arguing that they constituted hearsay and were unfairly prejudicial.

Trial counsel also referenced the court’s decision prior to trial about allowing the messages to be

admitted. Butler testified that several of the phrases used in the text messages were shorthand or

slang terms for drugs or drug-distribution-related terms.

       ATF Special Agent Yandl testified that he had interviewed Thompson on multiple

occasions and had been involved in the drug and gun investigations.             Through Yandl’s

testimony, the government introduced several pictures from Phillips’s social media accounts that

showed him and Thompson with guns, marijuana, and wads of cash.

       The government presented two stipulations that Thompson agreed to after the court

overruled his Rule 404(b) objections: (1) police stopped Thompson on June 28, 2012, and found

nine distribution-sized bags of marijuana and $94 on him; and (2) police stopped Thompson on

April 20, 2010, and found him with $116, a digital scale and corner bags, and before the stop his

passenger threw a bag of marijuana from the car. When the government rested, the defense




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No. 16-1182, United States v. Thompson


moved for a judgment of acquittal on all charges, arguing that the government had failed to

produce sufficient evidence to support a conviction. The district court denied the motion.

       The defense then presented its case. It produced five witnesses and attributed the drugs

to Phillips. Phillips’s ex-girlfriend, Sally Hobson, testified that Phillips had been a drug dealer

his whole life and had admitted to her on October 21, 2014, after he and Thompson were stopped

by police, that he had lost his “stuff.” (Trial Tr., R. 140, PageID 1592, 1597.) After the defense

rested, Thompson renewed his motion for judgment of acquittal. The district court again denied

the motion.

       The jury, after about two hours of deliberation, returned a guilty verdict on each count.

The jury specifically found that Thompson possessed with intent to distribute marijuana, heroin,

and crack cocaine.

       On August 5, 2015, after he was convicted, the government notified Thompson’s lawyer

that Phillips had changed his story and now claimed that he and not Thompson had been holding

all the drugs and had thrown them out the window on October 21, 2014. Phillips also claimed

that the drugs, other than the larger bag of marijuana, were in fact his, not Thompson’s.

Thompson moved to vacate his convictions and for a new trial. The district court noted that

Phillips’s statements had “been all over the map” and that he has “said different things at

different times to different people.” (Motion for New Trial Hearing Tr., R. 142, PageID at

1732.) The district court denied the motion reasoning that Phillips’s statements may have been

newly available but were not newly discovered and that there was no “likelihood that Phillips’s

testimony would support an acquittal,” in part because he was too impeachable to “be considered

a credible witness in any context.” (Id. at 1756.)




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No. 16-1182, United States v. Thompson


       The district court sentenced Thompson to ninety-eight months in prison and three years

of supervised release. Thompson appeals the jury verdict and his sentence on the grounds that

the district court wrongly (1) admitted in 404(b) evidence, (2) denied his motion for a new trial

for newly discovered evidence, (3) joined his gun and drug charges, and (4) denied his motion

for a judgment of acquittal.

                                         II. ANALYSIS

       A. Admission of 404(b) Evidence

               1. Standard of Review

       Thompson challenges the admission of (1) testimony by his ex-girlfriend and her mother

that they witnessed him sell marijuana, (2) text messages that allegedly alluded to drug sales, and

(3) the fact of Thompson’s arrests in April 2010 and June 2012. Before considering our court’s

standard of review for a decision to admit evidence under Rule 404(b), we address the

government’s contention that admission of Nix’s and Saffore’s testimony, the text messages, and

Thompson’s previous arrests should be reviewed under the plain-error standard because trial

counsel did not preserve the claims for appeal. “Federal Rule of Evidence 103(a) specifies that a

party’s objection to a ruling admitting evidence is preserved only if the party timely objects or

moves to strike and states the specific ground, unless it was apparent from the context.” United

States v. Heflin, 600 F. App’x 407, 411 (6th Cir. 2015) (internal quotation marks omitted).

       The government’s argument fails because trial counsel preserved each objection at issue

here. Trial counsel objected during the direct testimony of Diara Saffore, Thompson’s ex-

girlfriend, when she was asked how Thompson made money. While the government is correct

that the objection made at trial was for relevance, both parties acknowledge that the trial counsel

previously objected and the court made a prior ruling that the testimony was appropriate under



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No. 16-1182, United States v. Thompson


Rule 404(b) “because of the specific intent crime that has been charged.” (Trial Tr., R. 137,

PageID 965.) Therefore, the context makes clear that trial counsel’s objection was on 404(b)

grounds.    See United States v. Haywood, 280 F.3d 715, 725 (6th Cir. 2002) (finding that

objection for relevance and prejudice along with government’s discussion of 404(b) was enough

context to preserve the objection under 404(b)).

        The colloquy between the judge and counsel regarding the text messages also includes a

statement by Thompson’s attorney that she specifically “wanted to make sure the record was

clear. I know the Court has already made its ruling. My objection had been overall to all the text

messages coming in on 404(b) and being unfairly prejudicial to Mr. Thompson.” (Trial Tr.

R.139, PageID 1487.) Further, when the parties discussed the stipulation at the end of the

government’s case, which included the statement about Thompson’s prior arrests, his attorney

stated she agreed to the stipulation “subject to the objections that I had earlier placed on the

record.” (Id. at 1520.) Consequently, Thompson preserved his objections to the Rule 404(b)

evidence at trial.

        We do not have a uniform standard of review for evaluating a district court’s decision to

admit evidence under Rule 404(b). See United States v. Carter, 779 F.3d 623, 625 (6th Cir.

2015) (“[T]here is an ongoing dispute in this circuit concerning the proper standard of review of

Rule 404(b) evidence.”).      Some panels of this court have reviewed the district court’s

determination that the prior act occurred for clear error, the district court’s finding that the

evidence was offered for a permissible purpose de novo, and the court’s determination that the

probative value of the evidence was not outweighed by unfair prejudice under an abuse of

discretion standard. See United States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008); United States v.

Ayoub, 498 F.3d 532, 547 (6th Cir. 2007); United States v. Abboud, 438 F.3d 554, 580 (6th Cir.



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No. 16-1182, United States v. Thompson


2006). Other panels have conducted the entire analysis under an abuse of discretion standard,

which is the standard of review for other evidentiary decisions. See Haywood, 280 F.3d at 720.

Under either standard, there are no grounds for reversal.

               2. The District Court Correctly Admitted the 404(b) Evidence

       Under Federal Rule of Evidence 404(b), “a court may admit evidence of a defendant’s

‘other’ or ‘similar’ bad acts or crimes only if the evidence is probative of a relevant fact, and not

to show the defendant’s ‘character’ or ‘propensity’ to commit bad acts.” United States v. Mack,

258 F.3d 548, 552–53 (6th Cir. 2001) (quoting United States v. Clemis, 11 F.3d 597, 600 (6th

Cir. 1993)). To be admitted, previous “bad acts” evidence may be related to “proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Fed. R. Evid. 404(b)(2). To admit evidence under Rule 404(b), the trial court must

follow three steps: (1) make a preliminary determination that enough evidence exists that the

prior act actually occurred; (2) determine whether the other acts evidence is being offered for a

proper purpose under Rule 404(b); and (3) determine whether the other acts evidence is more

prejudicial than probative under Federal Rule of Evidence 403. See Mack, 258 F.3d at 553.

Rule 403 states, “[t]he court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

Fed. R. Evid. 403.

                       a. Prior Acts Actually Occurred

       Thompson challenges only the testimony of Saffore and Nix under this step of the

analysis, which requires the district court to determine whether the prior acts occurred.

Thompson argues that Saffore and Nix never testified to specific times he sold marijuana but



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No. 16-1182, United States v. Thompson


rather to general statements that he was a drug dealer, which is character evidence and

inadmissible under Rule 404(b). However, Nix also testified that she twice saw him bring about

a pound of marijuana to his house while she was present, that he sold her marijuana a few times,

and that she saw him sell marijuana to people that she was with. While Nix did not provide

exact dates and times for these events, she referred to specific events rather than “branding

Thompson as a marijuana dealer.” (Thompson Br. 29.)

       Saffore testified that she helped Thompson bag marijuana and that he sold marijuana

from the house they shared and from his car. She also testified that she saw Thompson sell

“dime and nickel bags” and that she helped him sell those bags on occasion. (Trial Tr., R. 137,

PageID 989.) Again, Saffore did not give dates and times for when these sales took place but

testified to specific events and not just a general impression of Thompson as a drug dealer.

       Thompson further argues that there is insufficient evidence that the prior acts occurred

because Saffore and Nix are both felons and they both were biased against Thompson.

(Thompson Br. 29.) While both of these points undermine Saffore’s and Nix’s credibility, the

sufficiency standard for Rule 404(b) is not rigorous and only requires that the “jury can

reasonably conclude that the act occurred and that the defendant was the actor.” Huddleston v.

United States, 485 U.S. 681, 689 (1988). This court has found that even where a witness is not

completely reliable, the testimony of that witness is enough for a reasonable jury to conclude that

the defendant committed the prior acts. United States v. Sandoval, 460 F. App’x 552, 562 (6th

Cir. 2012). Here, the jury was aware that Saffore and Nix were convicted felons and that they

held strong personal views against Thompson, and the jury could weigh witness credibility and

reasonably conclude that the acts occurred and that Thompson was the actor. Accordingly, the

district court correctly found that there was sufficient evidence that the acts occurred.



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No. 16-1182, United States v. Thompson


                       b. Proper Purpose

       Thompson argues that the government has not shown a proper purpose for the evidence.

Thompson argues that his previous instances of possessing and distributing marijuana cannot

show specific intent for distributing crack cocaine and heroin. Thompson contends that the

other-acts evidence is not sufficiently similar to count three because of the large time-lapse since

the other acts took place.

       “[E]vidence of prior crimes is admissible when specific intent is an element of the crime

charged even though lack of criminal intent was not raised as a defense.” United States v.

Johnson, 27 F.3d 1186, 1192 (6th Cir. 1994). “To be probative of intent, the prior act need not

‘be identical in every detail’ to the charged offense.” United States v. Alkufi, 636 F. App’x 323,

332 (6th Cir. 2016) (quoting United States v. Perry, 438 F.3d 642, 648 (6th Cir. 2006)). “[I]n

drug-distribution cases, this Circuit has ‘only found . . . [past distribution] evidence probative of

present intent . . . when the prior [acts] were part of the same scheme or involved a similar modus

operandi as the present offense.’” Id. at 332 (quoting United States v. Carter, 779 F. 3d 623, 627

(6th Cir. 2015)). “Thus, to be probative of a defendant’s present intent to possess and distribute,

his prior convictions for drug distribution must be related in some way to the present crime for

which the defendant is on trial.” Bell, 516 F.3d at 444.

       In Carter, we found that the “intent to distribute suboxone strips, an entirely different

drug from methamphetamine, in an unrelated venture” was not “probative of a specific intent to

join a conspiracy to manufacture homemade methamphetamine.” 779 F.3d at 627; but see

United States v. Ismail, 756 F.2d 1253, 1259 (6th Cir. 1985) (allowing prior acts testimony of

importation of hashish and cocaine where defendant was charged with importation of heroin).




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No. 16-1182, United States v. Thompson


       We have also held that there is no definitive set of years “that may separate a prior act

and the offense charged.” Ismail, 756 F.2d at 1260. In Ayoub, we found proper the admission of

a 2000 drug distribution arrest in a trial for charges incurred in 2004. 498 F.3d at 548; see also

United States v. Love, 254 F. App’x 511, 516 (6th Cir. 2007) (finding an eight-year-old

conviction for cocaine trafficking probative where the current charge was conspiracy to traffic

cocaine).

       While Thompson’s previous associations with possessing and distributing marijuana are

not exactly the same as distributing marijuana, crack cocaine, and heroin, they are similar

enough to allow the admission of the previous acts evidence for the purpose of establishing

intent. The previous acts were temporally close and had other similarities like the use of cars as

a location for distribution, plastic bags for distribution, and similar quantities of marijuana.

We therefore find that the prior marijuana distribution acts are indicative of Thompson’s specific

intent to sell marijuana, crack cocaine, and heroin.

                       c. Whether the Evidence is Substantially More Prejudicial than Probative

       Even once a court has determined that the evidence can be admitted for a proper purpose,

it must determine whether the evidence will be substantially more prejudicial than probative

before admitting the evidence under Rule 404(b). This weighing is particularly important in this

context because “[w]hen jurors hear that a defendant has on earlier occasions committed

essentially the same crime as that for which he is on trial, the information unquestionably has a

powerful and prejudicial impact.” Johnson, 27 F.3d at 1193. We have found that limiting jury

instructions can help mitigate the chance of substantial prejudice. See Ayoub, 498 F.3d at 548.

The Seventh Circuit has held that boilerplate jury instructions where “the government cannot

explain how the prior conviction relates to the question of intent without resorting to a propensity



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No. 16-1182, United States v. Thompson


inference” do not cure the risk of unfair prejudice. United States v. Stacy, 769 F.3d 969, 975 (7th

Cir. 2014) (quoting United States v. Miller, 673 F.3d 688, 702 (7th Cir. 2012)).

       In this case the district court gave a limiting instruction that stated:

       “[i]f you find the defendant did possess those pictures [of Thompson holding
       handguns, marijuana, and stacks of cash], did possess marijuana with intent to
       distribute it before this charge, or sold marijuana before this charge, you can
       consider the evidence only as it relates to the government’s claim on the
       defendant’s intent to distribute the cocaine base, heroin[,] and marijuana in this
       case. You must not consider it for any other purpose including your analysis of
       Counts I and II alleging that the defendant possessed firearms.”

(Trial Tr. R. 140, PageID 1657 (emphasis added).) The limiting instruction here, like in Ayoub,

attempted to minimize the prejudicial impact of the other acts testimony. This instruction, in

contrast to the boilerplate instruction in Stacy, was individualized and the record does not reflect

that the government made propensity arguments at trial.           Therefore, the evidence was not

substantially more prejudicial than probative.       Consequently, we affirm the district court’s

decision to allow the 404(b) evidence.

       B. The District Court’s Denial of a New Trial

               1. Standard of Review

       Thompson moved for a new trial under Rule 33 of the Federal Rules of Criminal

Procedure after Phillips reappeared and recanted part of the testimony he had given at the grand

jury and admitted that the drugs, other than the larger bag of marijuana, were his. This court

reviews a denial of the Rule 33 motion for abuse of discretion. United States v. Glover, 21 F.3d

133, 138 (6th Cir. 1994). “A district court clearly abuses its discretion when it applies the wrong

legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of

fact.” United States v. Turns, 198 F.3d 584, 586 (6th Cir. 2000) (internal quotation marks

omitted).

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No. 16-1182, United States v. Thompson


                 2. The Denial of a New Trial was not an Abuse of Discretion

          A district court can grant a new trial if the “interest of justice so requires.” Fed. R. Crim.

P. 33(a). To succeed on a Rule 33 motion the movant must establish the following elements:

“(1) the new evidence was discovered after the trial; (2) the evidence could not have been

discovered earlier with due diligence; (3) the evidence is material and not merely cumulative or

impeaching; and (4) the evidence would likely produce an acquittal.” United States v. Jones,

399 F.3d 640, 648 (6th Cir. 2005) (quoting United States v. O’Dell, 805 F.2d 637, 640 (6th Cir.

1986)).

          The district court found that the interests of justice do not require a new trial because

even if the evidence was newly discovered it would not lead to an acquittal on the drug charge

because Phillips was already considered an unreliable witness, Hobson (a seemingly credible

witness) had already testified at trial that the drugs belonged to Phillips, and there was evidence

tying Thompson and Phillips together so “Phillips’s statements support that Mr. Thompson

possessed narcotics either actually or constructively.” (Motion for New Trial Hearing Tr.,

R. 142, PageID 1756.) Since none of that evidence provided at trial swayed the jury, it is not

likely that Phillips’s partial recantation would produce an acquittal. The district court did not

abuse its discretion in denying Thompson’s motion for a new trial.

          C. Joinder

                 1. Standard of Review

          Thompson did not object to the joinder of the charges at trial so this court reviews the

district court’s decision to join all of the counts for trial under plain-error review. United States

v. Soto, 794 F.3d 635, 655 (6th Cir. 2015) (holding “that plain-error review applies to claims of

misjoinder raised for the first time on appeal”). For this court to consider something plain error,



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No. 16-1182, United States v. Thompson


(1) there must be an error or defect that has not been affirmatively waived, (2) the error must be

“clear or obvious,” (3) the error must affect the appellant’s substantial rights, and (4) if the first

three prongs are met, this court has the discretion to remedy the error, which should only be

exercised if the “error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id.

               2. Joinder did not Constitute Plain Error

       Rule 8 of the Federal Rules of Criminal Procedure allows the joinder of multiple offenses

if the offenses “are of the same or similar character, or are based on the same act or transaction,

or are connected with or constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a).

We have found that Rule 8(a) is meant to be construed broadly to “promote the goals of trial

convenience and judicial efficiency.” United States v. Graham, 275 F.3d 490, 512 (6th Cir.

2001). To determine whether joinder was proper, we should look only at the allegations on the

face of the indictment. United States v. Locklear, 631 F.3d 364, 368 (6th Cir. 2011). In United

States v. Chavis, we looked to factors such as the temporal proximity of the offenses, whether the

offenses were part of a single overarching criminal scheme, whether the guns charged in the

firearms offenses were used in the drug offense, and whether the indictment alleged in any way

that the firearm and drug charges were related. 296 F.3d 450, 458 (2002).

       Thompson argues that the October 2014 drug offense was not similar in character or

based on the same act or transaction as the June 2013 firearm charges. All of the factors

discussed in Chavis point to a finding of misjoinder in this case. There is temporal proximity

between the two firearms charges but a gap of over a year between those charges and the drug

charge. There is no evidence to suggest that the three offenses were part of the same criminal

scheme or that the drugs involved in the gun charges were connected to the drugs in the



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No. 16-1182, United States v. Thompson


distribution charge. Examining the face of the superseding indictment, there are no allegations

that the firearms charges are related to the drug charge and no allegation that they are part of the

same scheme.

       However, because plain-error review applies, Thompson must show that the error

affected his substantial rights. An error affects the appellant’s substantial rights when “it had

substantial and injurious effect or influence in determining the jury’s verdict.” United States v.

Lane, 474 U.S. 438, 449 (1986) (quotation marks and citations omitted). Thompson argues the

misjoinder affected his substantial rights because trying all three charges together allowed

“substantive evidence for the respective count(s) to also be used as improper and irrelevant

‘other acts’ evidence for the other dissimilar count(s).” (Thompson Br. 53.) The government

argues that the district court acted to mitigate any chance that jurors applied evidence improperly

by warning the jurors that “[i]t is your duty to separately consider the evidence that relates to

each charge and to return a separate verdict for each one,” which prevented any error from

affecting Thompson’s substantial rights. (Trial Tr., R. 140, PageID 1646.) In Chavis, the

government made a similar argument, and we found that limiting instructions “minimize the

danger resulting from improper joinder of offenses.” Chavis, 296 F.3d at 462. In addition, the

instruction from Chavis is almost identical to the instruction given by the district court in this

case. Therefore, we conclude that the district court did not commit plain error when it joined the

gun and drug charges.

       D. The District Court’s Denial of the Motion for Judgment of Acquittal

       Thompson argues that the jury’s guilty verdict on count three should be vacated because

the evidence was insufficient as a matter of law to establish guilt. “In considering whether there

was sufficient evidence to sustain a conviction, we must determine ‘whether, after viewing the



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No. 16-1182, United States v. Thompson


evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’” United States v. Harris,

293 F.3d 970, 974 (6th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

       Thompson argues that none of the evidence presented by the government established that

he had the specific intent to distribute any of the drugs found on October 21, 2014. Further, even

if the evidence demonstrated that he had the specific intent to sell marijuana, it did not

demonstrate that he had the specific intent to distribute heroin or crack cocaine. The government

argues that the evidence in the case, when viewed in the light most favorable to the prosecution,

leads to the conclusion that Thompson and Phillips were working “together to deal drugs and

tossed the drugs from the car when the police stopped them.” (Gov’t Br. 69.)

       The properly admitted 404(b) evidence and Butler’s testimony, when viewed in the light

most favorable to the government, are sufficient to support the jury’s finding that Thompson had

the specific intent to sell marijuana, crack cocaine, and heroin. However, even without the Rule

404(b) evidence, there is minimally sufficient evidence on which a rational trier of fact could

find Thompson guilty of count three. Specifically, both Thompson and Phillips were found with

similar amounts of cash and the drugs were found outside the vehicle they were in. In addition,

Butler’s testimony shows that the amount of drugs found is consistent with distribution. With

the additional objected-to Rule 404(b) testimony about Thompson’s drug related history, the

evidence is more than sufficient to show his specific intent to distribute marijuana, heroin, and

cocaine. We affirm the district court’s denial of Thompson’s motion for judgment of acquittal.

                                      III. CONCLUSION

       Because we find no error, we affirm the district court’s rulings.




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       HELENE N. WHITE, Circuit Judge, concurring.

       I write separately because I am not convinced that the 404(b) evidence was properly

admitted to show intent to distribute the heroin and crack cocaine. However, I conclude that any

error in the admission of the prior-acts evidence was harmless.

       There is considerable difference between distributing marijuana on the one hand, and

heroin and crack cocaine on the other. The prior-acts evidence was reflective of intent to do the

former, but not the latter. In United States v. Jenkins, the defendant was charged with possession

of marijuana, cocaine, and crack cocaine with intent to distribute. 593 F.3d 480 (6th Cir. 2010).

This crime allegedly occurred at a house located at 1217 Fair Street. The district court admitted

404(b) intent evidence that eight years earlier the defendant was convicted of possessing

marijuana with intent to distribute, stemming from an arrest at 1217 Fair Street. Id. at 484–85.

We concluded that this evidence, where the common threads were marijuana and location, was at

best “microscopic[ally]” probative of intent to distribute the additional substances, cocaine and

crack cocaine. See id. at 485–86. We found this marginal probative value to be outweighed by

the potential prejudice to Jenkins at trial on the issue of possession, and accordingly vacated his

conviction and remanded the case for retrial. Id. at 487.

       The 404(b) evidence in Thompson’s case is arguably even less probative than in Jenkins.

The Government charged Thompson with possession with intent to distribute marijuana, heroin,

and crack cocaine. The 404(b) evidence was admitted solely as relevant to the issue of intent to

distribute. All of that evidence, however—the prior drug arrests, the photos and text messages,

and the testimony of Saffore and Nix—dealt with intent to distribute marijuana, which was only

one of three substances police found bundled on the ground at 2229 Horton Avenue. Here, the

only common thread between the prior acts and the charged offense is marijuana; in Jenkins, the



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No. 16-1182, United States v. Thompson


past marijuana-distribution offense at least had the additional commonality of allegedly

occurring at the same house.

       Nevertheless, Thompson was not prejudiced by the use of his past marijuana distribution

to prove his intent to distribute all three drugs. The district court made clear to the jury that the

prior acts could only be considered with respect to the issue of intent to distribute. As to that

issue, the drug quantities in the bags, and their street values, provided overwhelming evidence

that the drugs were intended for distribution, rather than for personal use. Thus, any error

regarding the admission of the 404(b) evidence was harmless. 




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