              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                            No. 94-50823

                          Summary Calendar




UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,

                               versus


ROY EDWARD BROWN,
                                           Defendant-Appellant.




           Appeal from the United States District Court
                 for the Western District of Texas


                          December 21, 1995


Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     Roy Edward Brown appeals his conviction of possession with

intent to distribute 50 or more grams of crack cocaine on Fed. R.

Evid. 404(b) grounds.   We reverse.

                                  I

     A grand jury issued a superseding indictment charging Mr.

Brown.   Count One charged Mr. Brown of possession of crack with

intent to distribute, and Count Two alleged distribution of crack.

The possession charge arose out of events occurring on April 15,

1994, and the distribution charge referred to a controlled buy
occurring on April 7 of the same year.    Upon motion, the district

court dismissed Count Two of the indictment because the informant

who made the controlled buy could not identify the crack cocaine

presented at trial as the crack he bought from Mr. Brown.

     The primary witnesses against Mr. Brown in the possession

charge were Kelly Hensley and Officer Dickson.       On direct and

redirect examination, Ms. Hensley testified that around 7:00 on

April 15 she was watching TV in her trailer when a man came running

past the trailer looking scared.     It was light outside.   The man

ran to a distance of 75 feet, dropped a brown paper bag, then

continued on his way.   Ms. Hensley approached the bag and observed

a white substance later found to be crack.     She returned to her

trailer. Fifteen minutes later, the man returned and began walking

around the trailer park in an apparent attempt to find the bag.

The man’s search took him to within a few feet of the window of Ms.

Hensley’s trailer. Ms. Hensley notified the police. She described

the man as having short hair, no beard, and no mustache, and as

wearing a shirt with vertical blue and white stripes, blue jeans,

white socks, and black shoes.    After a short time, the man left.

Ms. Hensley called a neighbor, and the two moved the bag to a bush

outside the neighbor’s apartment.     The neighbor then called the

police again.

     Police officers eventually arrived around 7:45 to 8:00.    They

took statements from Ms. Hensley, recovered the bag, and left.

About a week later, Ms. Hensley went to the police station.      She

viewed six or seven photographs and identified the Mr. Brown.


                                 2
      On cross-examination, Ms. Hensley testified that while she

might have told the police that the man was bald, she meant that he

had very little hair.       She recalled that she had described the man

to the police as midsized, by which she meant 5' 5" to 5' 10".                  She

reiterated her testimony that the man was clean-shaven.                  She also

testified that although there were no street lights or flood lights

in the area other than those in a high school some 400-500 feet

away, it was light outside during the entire incident, including

all   of   the   time   that   the    police    arrived    to    investigate    the

incident.        She    further    testified     that     in    the   picture   she

identified, Mr. Brown was not bald and wore a mustache and hair on

his cheeks.      Throughout the cross-examination she remained quite

certain of the identification.

      On direct examination, Officer Dickson testified that he

responded to a dispatcher’s radio call by driving to the mobile

home park where Ms. Hensley lived.             The dispatcher had advised him

that a citizen had called in regard to a balding black man wearing

a white button-down shirt with blue stripes.                   As Officer Dickson

approached the park, he observed a man fitting that description at

some telephones adjacent to the park.            He stopped the man and asked

for identification. The man orally identified himself as Ray Brown

and provided a date of birth.          Mr. Brown explained that he had come

through the trailer park from a nearby high school to use the phone

to call for a ride home.          After a brief time, a car arrived for Mr.

Brown, and Officer Dickson sent Mr. Brown on his way.                 It was light

throughout this encounter.            After a brief return to the police


                                         3
station, Officer Dickson returned to the trailer park, interviewed

Ms. Hensley, and confiscated the paper bag.

     On cross-examination, Officer Dickson testified that Mr. Brown

was above 6' 1" tall.       He also testified that it was dark at the

time he arrived to speak with Ms. Hensley, and he had to use a

flashlight to see.

     Other state witnesses testified regarding the events of the

evening of April 15. Ms. Hensley’s neighbor generally corroborated

Ms. Hensley’s version of the events, including the fact that it was

daylight throughout the relevant events, including the encounter

with the police.        Officer Chapman generally corroborated the

testimony   of    Officer   Dickson     regarding   the   interview    of   Ms.

Hensley,    the   seizure   of    the   paper   bag,   and    the   subsequent

photographic      lineup.    On    cross-examination,        Officer   Chapman

testified that the paper bag had been tested for fingerprints, and

that the prints found on the bag had not matched those of Mr.

Brown.

     Still other prosecution witnesses testified as to the events

of April 7, which gave rise to the distribution charge.                      In

particular, Stacy Johnson, the person who made the controlled buy

on behalf of the police, testified as to the events of that

evening.

     Mr. Brown called one witness, Ms. Lorene Whitson.               On direct

examination, Ms. Whitson testified that she had received a phone

call from Mr. Brown on the evening of April 15 asking her to pick

him up at a phone booth outside a trailer park.           She testified that


                                        4
at the time Mr. Brown was wearing a blue T-shirt.      She further

testified that for the past several years, Mr. Brown had suffered

from a skin condition requiring him to wear “slithers of hair, not

a beard or anything” as well as a mustache, and that his face was

in this condition on April 15.

     After direct examination, the prosecution approached the bench

and announced its intention to ask Mr. Whitson whether she knew

that Mr. Brown had previously been convicted of possession with

intent to distribute crack cocaine.   The district court overruled

Mr. Brown’s Rule 404 objection.       The entirety of the cross-

examination of Ms. Whitson was as follows:

     Q: Ms. Whitson, during the last 11 years that you have
     known Mr. Brown, were you aware that he was one and the
     same person that was convicted in Bell County of the
     offense of Possession With --

     [Defense counsel]: Your Honor, is there any need for me
     to restate the objection?

     The Court: No, sir.

     [Defense counsel]: Thank you.

     Q: Are you aware that he is one and the same person that
     was -- during that period of time, in Bell County, Texas,
     was convicted of the felony offense of Possession With
     Intent to Distribute Cocaine and went to the Texas
     Department of Corrections for, I believe, 11 years?

     A: Do I know that he had served time in prison?

     Q: Yes, ma’am.

     A: Yes.

     Q: For that offense, Possession With Intent to Distribute
     Cocaine?

     A: That’s what was told to me, yes.

     [Prosecuting attorney]: That’s all I have, Your Honor.

                                 5
      The Court: I’ll need to instruct the jury.
           Ladies and Gentlemen of the Jury, you can consider
      that evidence as evidence of character or as a propensity
      to commit a crime, but only on the issue of motive or
      opportunity or identity in this case.

      At the charging conference, the prosecution agreed that Ms.

Whitson’s cross-examination testimony was relevant to no issue but

the identity of the man Ms. Hensley saw.           In accordance with this

agreement, the court instructed the jury as follows:

           During the course of this trial, you have heard
      evidence of acts of the defendant, which may be similar
      to those charged in the indictment, but which were
      committed on other occasions. You must not consider any
      of this evidence in deciding if the defendant committed
      the acts charged in the indictment. However, you may
      consider this evidence for other, very limited purposes.
           You may only consider evidence of the similar acts
      allegedly committed on other occasions only to determine
      whether you wish to accept evidence as to the identity of
      the Defendant as the person who committed the acts
      alleged in Count One of the indictment.
           This is the limited purpose for which any evidence
      of other similar acts may be considered.

      At closing, after referencing Stacy Johnson’s testimony that

he   bought   crack   from   Mr.   Brown,1   the   prosecution   stated   the

following:

      When you look at that and you look at that evidence, who
      was there? This man was there. How do we know? Because
      we’ve got several people that are telling us that that’s
      who he was, that that’s where he was and that’s what he
      does. And you look at the thing and you say, “Well, what
      else do we know?     We know that a person, the same
      persons, Roy Edward Brown, that the identity is a
      question in here, was previously convicted of the same
      offense, Possession With Intent to Distribute “Crack”
      Cocaine. Does that help you with the identification? If
      it does, that’s what it’s there for.


      1
        The defense objected to this argument as beyond the scope
of the judge’s charge, an objection we interpret as a reference to
the fact that the judge had dismissed Count Two of the indictment.

                                      6
Defense counsel argued that Mr. Hensley had misidentified Mr. Brown

as the man with the paper bag.

      During deliberations, the jury sent the court the following

note: “We would like to know where Stacy Johnson was on 15 April[.]

Did Stacy Johnson ever have short hair similar to Mr. Roy Brown[?]”

The district court responded, “I cannot answer the question you

have asked.      You must try to make a decision based on the evidence

you have.”       The jury found Mr. Brown guilty.

      The jury found Mr. Brown guilty of the offense charged in

Count One.

                                     II

      The parties agree that Rule 404(b) governs the admissibility

of   the   Ms.    Whitson’s   testimony   regarding   Mr.    Brown’s   prior

conviction.        Rule 404(b) renders inadmissable evidence of the

defendant’s prior convictions designed to show that the defendant

committed the crime charged in the indictment, but allows the

admission of such evidence to prove motive, intent, identity, or

other elements of the case.      In essence, Rule 404(b) prohibits the

jury from inferring that the defendant committed the charged crime

from the fact that he committed a past crime.               The prosecution

conceded below and agrees here that Ms. Whitson’s testimony was

admissible, if at all, as probative only on the issue of Mr.

Brown’s identity.2

      2
         We note initially that the testimony actually introduced
might well have been inadmissable under Rule 403. Even if evidence
of Mr. Brown’s prior conviction were admissible, we are unable to
discern the relevance of the fact that Ms. Whitson knew of the
conviction.

                                     7
       We review the district court’s admission of evidence under

Rule   404(b)   under   a   “careful       application”   of    the   abuse   of

discretion standard.        United States v. Anderson, 933 F.2d 1261,

1268 (5th Cir. 1991).        We will not reverse a conviction on the

grounds of improperly admitted evidence if the admission was

harmless beyond a reasonable doubt.             Chapman v. California, 386

U.S. 18, 24 (1967).

       We find difficult to grasp the state’s argument that evidence

of Mr. Brown’s prior conviction for the same crime charged in Count

One was probative on the issue of Mr. Brown’s identity on April 15

as the man with the paper bag.              While we at times affirm the

admission of prior bad acts or convictions in order to show that a

defendant acted according to a certain modus operandi, see United

States v. Sanchez, 988 F.2d 1384, 1393-94 (5th Cir.), cert. denied,

114 S. Ct. 217 (1993), the admissibility of such testimony normally

depends upon a factual similarity between the prior act and the act

alleged.     In this case, the jury heard no evidence of the facts

surrounding Mr. Brown’s prior conviction.

       In other circumstances, we have upheld the admission of

evidence of prior bad acts or convictions in order to show a

witness’s opportunity to identify the defendant, see United States

v. King, 703 F.2d 119, 125 (5th Cir.), cert. denied, 464 U.S. 837

(1983), or perhaps to show that the defendant used a certain name,

see United States v. Aguirre, 716 F.2d 293, 299-300 (5th Cir.

1983).     None of these circumstances apply here.             The only way in

which Ms. Whitson’s cross-examination testimony could help identify


                                       8
Mr.   Brown    was   through        the    inference      that    because      Mr.   Brown

committed the crime of possession with intent to distribute before,

he had done so again.               This is the inference that Rule 404(b)

prohibits.     Ms. Whitson’s cross-examination testimony was relevant

to no issue other than Mr. Brown’s character.                    See United States v.

Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc) (stating that

the first step in a Rule 404(b) analysis is to decide whether the

challenged evidence was relevant to an issue other than character),

cert. denied, 440 U.S. 920 (1979).

      The admission of this evidence was not harmless beyond a

reasonable     doubt.         The    evidence        in   this     case      was   not   so

overwhelming that the jury likely disregarded the prior conviction.

Mr. Brown’s theory of the case was that, while he had walked

through the trailer park on that evening to use the phone, Ms.

Hensley had incorrectly identified him as the owner of the paper

bag. Defense counsel was able to point out certain inconsistencies

in Ms. Hensley’s description of Mr. Brown, but could not shake her

certainty that Mr. Brown was the culprit.                          Nevertheless, Mr.

Brown’s fingerprints were not among those found on the paper bag,

and Ms. Hensley was the only eyewitness.

      Most important for our harmless error analysis is the fact

that the      comments   of    the        district    court      and   the    prosecution

exacerbated the possibility that the jury drew the prohibited

inference from the evidence of the prior conviction.                         Immediately

after Ms. Whitson’s testimony, the district court told the jury

that it could “consider that evidence as evidence of character or


                                             9
as a propensity to commit a crime;” in the next breath, the court

added, “but only on the issue of motive or opportunity or identity

in this case.”       This instruction was ambiguous.                 The first half

represented a misstatement of the law that the second half sought

to correct.

       The trial court’s final instructions did represent a correct

statement of the law. But the jury could follow these instructions

only    if   it   realized   that    the    evidence     of    Mr.   Brown’s     prior

conviction had no permissible probative value on the issue of the

identity of the man with the paper bag on the night of April 15.

In   essence,     the   jury   had    to        guess   that   the    evidence    was

inadmissible, and it had to do so in the face of the trial judge’s

instruction that the evidence was relevant to Mr. Brown’s identity.

Under such circumstances, the jury could only have surmised that it

was allowed to consider the fact that Mr. Brown had previously been

found guilty of the offense charged in Count One as evidence that

he was a drug dealer, and that his status as a drug dealer made it

more likely that he was the man Ms. Hensley saw on the night of

April 15.

       In fact, the prosecution argued exactly this theory to the

jury.    After referring to Stacy Johnson’s testimony that Mr. Brown

sold him crack, evidence relevant only to a count of the indictment

the trial judge had already dismissed, the prosecution argued that

Mr. Brown was present at the trailer park, carrying the paper bag

with cocaine, because several witnesses testified that “that’s what

he does.”     The prosecution continued by arguing that the fact that


                                           10
Mr. Brown “was previously convicted of the same offense, Possession

With Intent to Distribute ‘Crack’ Cocaine” could help the jury with

its disposition of the identification issue, an argument that

invited the jury to draw the prohibited inference.

     Finally, we note that the jury’s question to the judge in the

middle of its deliberations suggested that it harbored doubts as to

whether Mr. Brown was the man Ms. Hensley saw on April 15.      The

jury questioned the judge as to Stacy Johnson’s whereabouts on the

night of April 15.   It also asked if he had short hair at the time,

in essence asking if Johnson fit the description Ms. Hensley gave

to the police at the time.    This note suggests that the jury was

concerned about the question of Mr. Brown’s identity and thought

that perhaps Ms. Hensley might have seen Stacy Johnson. Under such

circumstances, we cannot say that beyond a reasonable doubt the

jury did not fall back on the prohibited inference that the judge

and the prosecution had invited it to make.

     We REVERSE Mr. Brown’s conviction and REMAND for a new trial.




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