                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-2003

USA v. Givan
Precedential or Non-Precedential: Precedential

Docket 01-2788




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PRECEDENTIAL

       Filed February 26, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 01-2788 and 01-2793

UNITED STATES OF AMERICA

v.

YUL DARNELL GIVAN,

       Appellant in No. 01-2788

UNITED STATES OF AMERICA

v.

WAYNE TORRENCE,

       Appellant in No. 01-2793

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 99-00215)
District Judge: Honorable William J. Nealon

Argued November 8, 2002

BEFORE: MCKEE and GREENBERG, Circuit Judges,
and LIFLAND, District Judge*

(Filed: February 26, 2003)

_________________________________________________________________

* The Honorable John C. Lifland, Senior Judge of the United States
District Court for the District of New Jersey, sitting by designation.



       Richard H. Morgan, Jr. (argued)
       47 North Saginaw Street
       Pontiac, MI 48342

        Attorney for Appellant
       Yul Darnell Givan

       Jeffery A. Taylor (argued)
       17515 W. Nine Mile, #720
       Southfield, MI 48075

        Attorney for Appellant
       Wayne Torrence

       Thomas A. Marino
       United States Attorney
       Christopher H. Casey (argued)
       Assistant United States Attorney
       Office of the United States Attorney
       235 North Washington Avenue
       P.O. Box 309
       Federal Building, Suite 311
       Scranton, PA 18510

        Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This criminal case comes on before this court on appeals
from judgments of conviction and sentence entered June
25, 2001. A jury convicted defendants-appellants Yul
Darnell Givan and Wayne Torrence on one count of
conspiring to distribute and possess with intent to
distribute in excess of 100 grams of heroin in violation of
21 U.S.C. SS 846, 841(a)(1), and 841(b)(1)(B) and one count
of possession with intent to distribute in excess of 100
grams of heroin in violation of 21 U.S.C. SS 841(a)(1) and
841(b)(1)(B) and 18 U.S.C. S 2.

On appeal, both defendants argue that the district court
should have granted their motions to suppress the heroin
seized from the vehicle the Pennsylvania state police

                                 2


stopped which Torrence had been driving and in which
Givan had been a passenger. They argue in this regard that
Torrence did not freely and voluntarily give his consent for
the search.

Givan argues that Trooper Jeffrey Taylor violated his
Fourth Amendment rights when he continued to question
the vehicle’s occupants after the initial reason for the stop
had been satisfied. Moreover, he contends that the district
court erred when it applied Fed R. Evid. 404(b) to allow
evidence that Givan had been convicted of a felony drug
offense in Des Moines County, Iowa, on January 25, 1993.
Finally, he contends that the court erred when it allowed
Darryl Morgan to testify as to his drug purchases from the
defendants as Givan contends that Morgan’s testimony was
not relevant to the conspiracy offense charged and was
inadmissible under Fed. R. Evid. 404(b).

Torrence contends that his sentence should be vacated
because the district court clearly erred in calculating his
total offense level in making findings that he was involved
in the distribution of between one and three kilograms of
heroin and that he possessed a firearm in relation to drug
trafficking. Torrence also makes an ineffective assistance of
counsel claim, arguing that when deciding to take the case
to trial rather than plead guilty, he relied on his counsel’s
incorrect calculation of the guideline range that would
apply at sentencing after conviction at trial. Finally,
Torrence argues that he detrimentally relied upon the
government’s statements of what his guideline range would
be after trial. For the reasons set forth below, we will affirm.

I. BACKGROUND

A. Factual History

On September 8, 1999, at 1:30 p.m., Trooper Taylor
pulled over Torrence and his two passengers, John Billings
and Givan, for speeding on Route 80 in Luzerne County,
Pennsylvania, after he clocked their vehicle at 77 miles per
hour in a 65 miles per hour zone. In response to Taylor’s
request for his driver’s license and registration, Torrence
provided a Michigan driver’s license and a rental agreement
which indicated that the car had been rented in Michigan

                                3


less than 24 hours earlier. Taylor asked Torrence to exit the
car and accompany him to the patrol car where he showed
Torrence the radar reading and wrote Torrence a warning
notice for speeding. Taylor then returned Torrence’s license
and rental agreement and informed him that he was free to
leave.

Nevertheless, Taylor then asked Torrence if he would
mind answering a few questions and Torrence agreed. In
response to questions about the destination of his trip,
Torrence told Taylor that he had come from New
Brunswick, New Jersey, where he visited his sister, who
had been in a very bad car accident. By this time a second
trooper, Louis Rossi, had arrived to assist Taylor with the
stop and Taylor asked Rossi to inquire of Givan and Billings
as to from where they had come. Either Givan or Billings
told Rossi that they were coming back from New York.
Taylor then approached the vehicle, and asked Billings and
Givan from where they were coming. Billings, in the front
seat, said they were coming from New York. Taylor then
asked "Anywere else?" and Givan, in the back seat, leaned
forward and said that they came from New York only, where
they had been visiting some friends. After hearing the
inconsistent explanations describing their travels and
observing that Torrence appeared to be nervous, Taylor
asked him for his consent to search the vehicle. Torrence
said he had nothing to hide and consented to the search
whereupon Taylor patted him down.

After obtaining Torrence’s consent to the search, Taylor
asked Billings to step from the vehicle. As Billings exited
the vehicle, Taylor noticed a tourniquet protruding from his
pocket which Taylor then pulled out. Taylor then asked
Billings if he was a heroin addict and Billings responded
that he had been, but that he was not any more. Taylor
asked Billings if he had any needles. Billings responded
"yes" and pulled out a needle and put it on top of the
vehicle. At that point Taylor observed a white piece of paper
protruding from Billings’ front pocket and Taylor pulled the
paper out and opened it up. It was a lottery ticket
containing a brown powder substance that appeared to be
heroin. As Taylor was looking at the substance, Billings
grabbed the ticket and threw the substance into the air.

                                4


The troopers then handcuffed Billings and Torrence. They,
however, did not handcuff Givan though they did place him
on the ground next to Billings and Torrence.

Rossi and Taylor then searched the vehicle and under its
back seat Rossi found a bag of heroin in pellet form.
Subsequent laboratory testing revealed that the bag
contained 113.5 grams of heroin having a purity level of
43%. The DEA was contacted and Torrence, Givan and
Billings were given Miranda warnings and transported to
the state police barracks in Hazleton, Pennsylvania.

B. Procedural History

After Billings agreed to cooperate in the investigation and
entered into a plea agreement, a grand jury returned a two-
count Second Superseding Indictment against Givan and
Torrence on November 30, 1999. Count I charged that on
or about and between a date unknown and September 8,
1999, the defendants conspired to distribute and possess
with intent to distribute in excess of 100 grams of heroin in
violation of 21 U.S.C. SS 846, 841(a)(1) and 841(b)(1)(B).
Count II charged that on or about September 8, 1999, the
defendants possessed with intent to distribute in excess of
100 grams of heroin in violation of 21 U.S.C. SS 841(a)(1),
841(b)(1)(B) and 18 U.S.C. S 2. Both counts added,
pursuant to 21 U.S.C. S 851, an allegation of Givan’s prior
felony drug conviction. Both defendants pleaded not guilty.

Givan filed a pretrial motion in limine seeking an order
precluding the government from offering his prior felony
drug conviction into evidence. By Memorandum and Order
dated November 13, 2000, the district court denied Givan’s
motion. Furthermore, both defendants made unsuccessful
pretrial motions to suppress the heroin.

On December 11, 2000, defendants’ joint jury trial began.
The government called, among other witnesses, Darryl
Morgan. Givan objected to Morgan’s testimony, claiming
that it was not relevant to the issue of whether there was
a drug conspiracy and that, in any event, it was more
prejudicial than probative. The prosecutor informed the
court that Morgan would testify that Torrence had
introduced Givan to him as someone from whom Morgan
could buy drugs, and that Morgan had purchased heroin

                                5


from Givan during the time period of the conspiracy alleged
in the Indictment. The court determined that the evidence
was admissible and thus overruled Givan’s objection and
allowed the testimony.
On December 13, 2000, the jury convicted Givan and
Torrence on both Counts of the Second Superseding
Indictment. Torrence objected to the subsequently prepared
presentence report, arguing that his base offense level
should be 26 rather than 32 as proposed in the report, and
that, contrary to the proposals in the report, neither a
firearms enhancement nor a role enhancement should
apply. On June 13, 2001, the district court held a
sentencing hearing. At the hearing, Torrence’s counsel
notified the court that Torrence had been under the
mistaken impression that his likely guideline sentencing
range after trial would be 78 to 97 months, in a"worse case
situation." Torrence’s counsel indicated that this mistaken
impression was based on a conversation he, the counsel,
had had with the prosecutor. The prosecutor confirmed
that there had been a discussion about the possible
guideline range in the context of a proposed plea offer but
that no formal plea offer had been made. After listening to
the arguments, the court overruled Torrence’s objections to
the base offense level and the firearms enhancement but
upheld his objection to the role enhancement. The court
then sentenced Torrence to 151 months imprisonment, to
be followed by four years of supervised release, and
sentenced Givan to 120 months imprisonment to be
followed by eight years of supervised release. Defendants
then appealed.

C. Jurisdiction

We have jurisdiction pursuant to 28 U.S.C. S 1291 and
18 U.S.C. S 3742(a). The district court exercised subject
matter jurisdiction pursuant to 18 U.S.C. S 3231.

II. DISCUSSION

A. Motion to Suppress

The district court denied Torrence’s motion to suppress
as evidence the heroin obtained from the vehicle search.1
_________________________________________________________________

1. Givan also filed a motion to suppress the evidence found in the vehicle
and argues on appeal that he has standing to contest the search of the

                                6


The court based its decision on its findings that (1) the
troopers had probable cause to charge Torrence with
speeding; (2) the troopers had a reasonable suspicion to
believe that Torrence had committed a crime justifying
further investigation; (3) Torrence freely and unqualifiedly
gave consent to the troopers to search the vehicle. We
"review[ ] the district court’s denial of the motion to
suppress for ‘clear error as to the underlying facts, but
exercise[ ] plenary review as to its legality in light of the
court’s properly found facts.’ " United States v. Riddick, 156
F.3d 505, 509 (3d Cir. 1998) (quoting United States v. Inigo,
925 F.2d 641, 656 (3d Cir. 1991)).
Neither defendant contests the district court’s first ruling
that the initial stop clearly was justified inasmuch as Taylor
clocked the vehicle at 77 miles per hour in a 65 miles per
hour zone. After a traffic stop that was justified at its
inception, an officer who develops a reasonable, articulable
suspicion of criminal activity may expand the scope of an
inquiry beyond the reason for the stop and detain the
vehicle and its occupants for further investigation. See
United States v. Johnson, 285 F.3d 744, 749 (8th Cir.
2002). While "reasonable suspicion" must be more than an
inchoate "hunch," the Fourth Amendment only requires
that police articulate some minimal, objective justification
for an investigatory stop. See United States v. Sokolow, 490
U.S. 1, 13, 109 S. Ct. 1581, 1585 (1989). In determining
whether there was a basis for reasonable suspicion, a court
must consider the totality of the circumstances, in light of
the officer’s experience. See United States v. Arvizu, 534
U.S. 266, 273, 122 S. Ct. 744, 750-51 (2002); United States
v. Orsolini, 300 F.3d 724, 728 (6th Cir. 2002). Within the
last year we have noted that in "the Supreme Court’s most
recent pronouncement on the Fourth Amendment
_________________________________________________________________

vehicle. We do not discuss the standing issue because the government
does not contend that Givan does not have standing and, in any event,
even if Givan had a legitimate expectation of privacy in the vehicle,
Torrence’s valid consent would preclude the suppression of the evidence.
Moreover, even if Givan did not have standing Torrence certainly does so
that in any event we are obliged to adjudicate the suppression issue on
the merits.

                                7


reasonable suspicion standard, it accorded great deference
to the officer’s knowledge of the nature and the nuances of
the type of criminal activity that he had observed in his
experience, almost to the point of permitting it to be the
focal point of the analysis." United States v. Nelson, 284
F.3d 472, 482 (3d Cir. 2002).

Even assuming, as the district court seemed to do, that
the brief questioning following the return of Torrence’s
documents occurred while Torrence had been seized for
Fourth Amendment purposes rather than during a
consensual encounter that began once Torrence’s
documents were returned and he was informed that he was
free to leave, Taylor had a reasonable and articulable
suspicion of illegal activity sufficient to extend the stop the
few additional minutes it took to ask the occupants about
their travel destinations. Taylor knew at that time that: (a)
Torrence had been speeding; (b) Torrence was operating a
motor vehicle that had been rented less than 24 hours
earlier in Saginaw, Michigan; (c) the estimated driving time
from Saginaw to New York City and back to the site of
arrest was approximately 17 hours; (d) it is a common
practice of drug dealers from other states to make a non-
stop trip to New York City and back for purchasing drugs;
(e) Torrence appeared nervous and fidgety and was talking
often and shuffling his feet. Furthermore, questions relating
to a driver’s travel plans ordinarily fall within the scope of
a traffic stop. See United States v. Williams , 271 F.3d 1262,
1267 (10th Cir. 2001). After receiving conflicting stories
from Torrence and the passengers about their travel, Taylor
was justified in further extending the stop and asking for
consent to search the vehicle. Thus, the district court did
not err in holding that the further investigation was
justified.

But the defendants contend that even if Torrence gave
his consent to search the vehicle at a time Taylor was
justified in extending the stop, Torrence did not give his
consent freely and voluntarily. The Fourth Amendment
protects the "right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures." Pursuant to the Fourth
Amendment, warrantless searches of automobiles

                                8


frequently are prohibited. It is well settled, however, that a
search conducted pursuant to consent is one of the
specifically established exceptions to the search warrant
requirement. Schneckloth v. Bustamonte, 412 U.S. 218,
219, 93 S. Ct. 2041, 2043-44 (1973). In Schneckloth the
Supreme Court stated that voluntariness "is a question of
fact to be determined from the totality of all of the
circumstances." Id. at 227, 93 S.Ct. at 2048. The district
court’s determination that Torrence’s consent was
voluntary was a determination of fact subject to review on
a clear error basis. See United States v. Kelly , 708 F.2d
121, 126 (3d Cir. 1983).

In United States ex rel. Harris v. Hendricks, 423 F.2d
1096 (3d Cir. 1970), we elucidated the critical factors
comprising a totality of the circumstances inquiry as
including the setting in which the consent was obtained,
the parties’ verbal and non-verbal actions, and the age,
intelligence, and educational background of the consenting
individual. See id. at 1099. When we apply the totality of
the circumstances test to the facts adduced at the
suppression hearing, we conclude that the district court’s
determination that Torrence voluntarily gave his consent
rather than did so by reason of duress or coercion, cannot
be said to be clearly erroneous.

The facts in the record supporting the district court’s
determination include: (1) Taylor returned Torrence’s
license and advised Torrence that he was free to leave
before asking Torrence if he would mind answering a few
questions and Torrence said that he did not mind; (2) after
asking Torrence some initial questions Taylor asked
Torrence if he would mind if Taylor looked in the vehicle
and Torrence replied that he had nothing to hide and
Taylor could go ahead and look; (3) Taylor testified that
when he asked Torrence for his consent, he told Torrence
that his consent had to be voluntary and that Torrence did
not have to allow the search; (4) both troopers testified that
Torrence gave consent without any coercion or duress and
this testimony was unrebutted; (5) Torrence gave his
consent while standing on the side of a major highway in
broad daylight, see United States v. Velasquez , 885 F.2d
1076, 1082 (3d Cir. 1989), and prior to being handcuffed.

                                9


There is nothing in the record indicating that Torrence’s
age, intelligence or educational background in any way
limited his ability to consent voluntarily to the search.
Torrence cites the decision of the Court of Appeals for the
Sixth Circuit in United States v. Mesa, 62 F.3d 159 (6th
Cir. 1995), in support of his position that the district court
erred in denying his motion to suppress. But, as the
government points out, Mesa is inapposite because its facts
materially differ from those here. Most notably, Mesa was
locked in the back of a police vehicle when she consented
to a search of the vehicle. See id. at 161. The totality of the
circumstances in this case are more similar to those in
United States v. Velasquez, 885 F.2d at 1081 82, and
indicate that Torrence freely and voluntarily consented to
the search. The district court’s finding of voluntariness was
not clearly erroneous.

B. Evidence of Givan’s Prior Felony Drug Conviction

We next discuss Givan’s argument that the district court
erred when it admitted into evidence under Fed. R. Evid.
Rule 404(b) testimony to the effect that Givan had been
convicted of a felony drug offense in Des Moines County,
Iowa, on January 25, 1993. To the extent that our review
of this ruling requires us to consider the district court’s
interpretation of the rules of evidence our review is plenary.
See United States v. Furst, 886 F.2d 558, 571 (3d Cir.
1989). But, assuming that the evidence could be admissible
in some circumstances, we review the district court’s
decision to admit it on an abuse of discretion basis. See
United States v. Console, 13 F.3d 641, 658-59 (3d Cir.
1993); United States v. Saada, 212 F.3d 210, 223 (3d Cir.
2000).

Fed. R. Evid. 404(b) provides in relevant part that:
"Evidence of other crimes, wrongs or acts is not admissible
to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity or absence of
mistake or accident. . . ." We have recognized that Rule
404(b) is a rule of inclusion rather than exclusion. See
United States v. Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994).
We favor the admission of evidence of other criminal

                                10


conduct if such evidence is "relevant for any other purpose
than to show a mere propensity or disposition on the part
of the defendant to commit the crime." United States v.
Long, 574 F.2d 761, 765 (3d Cir. 1978) (quoting United
States v. Stirone, 262 F.2d 571, 576 (3d Cir. 1958), rev’d on
other grounds, 361 U.S. 212, 270, 80 S.Ct. 270 (1960)). In
Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496
(1988), the Supreme Court set out a four-part test for
admission of Rule 404(b) evidence: (1) the evidence must
have a proper purpose; (2) it must be relevant; (3) its
probative value must outweigh its potential for unfair
prejudice; and (4) the court must charge the jury to
consider the evidence only for the limited purposes for
which it is admitted. Id. at 691-92, 108 S.Ct. at 1502;
United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002).

The government argues that Givan’s 1993 conviction was
proper Rule 404(b) evidence because it was probative of
Givan’s intent, knowledge, and absence of mistake or
accident. The government argues that because it had to
prove that Givan knew, prior to its discovery by the
troopers, that a quantity of heroin was hidden in the back
seat of the rental car and that it had to prove that Givan
possessed the heroin with intent to distribute it,
"knowledge and intent were material and contested issues
at trial." Br. of Appellee at 47. The government also argues
that the evidence was offered to rebut a defense of innocent
association. The district court accepted the government’s
arguments stating that the "circumstances of this case
illustrate the probative value of Givan’s past drug
conviction on the question of whether he had knowledge of
the heroin in the back seat; whether, with such knowledge,
he had intent to secret it; and that the presence of heroin
immediately underneath his body was not there because of
accident or mistake." Givan’s app. at 30.

Knowledge, intent, and lack of mistake or accident are
well-established non-propensity purposes for admitting
evidence of prior crimes or acts. See Fed. R. Evid. 404(b).
Inasmuch as a showing of knowledge, intent and lack of
mistake or accident was essential for the government to
meet its burden of proof in this case, and the 1993 felony
drug conviction was evidence that the jury could consider

                                11


as shedding light on the key issues of whether Givan knew
about the drugs in the vehicle, the court admitted the prior
felony conviction for a proper purpose. See United States v.
Parsee, 178 F.3d 374, 379 (5th Cir. 1999); United States v.
Martino, 759 F.2d 998, 1004-05 (2d Cir. 1985).

In the circumstances, taking into account our holding
with respect to Rule 404(b), we conclude that the evidence
of Givan’s felony conviction passes the less focused
admissibility threshold in Fed. R. Evid. 401. Under Rule
401 relevant evidence means "evidence having a tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence." The
evidence that Givan had been convicted of distribution of
cocaine makes Givan’s knowledge of the presence of the
heroin more probable than it would have been without the
evidence as it indicates that Givan had knowledge of drugs
and drug distribution, and thus that it was less likely that
he was simply in the wrong place at the wrong time.
Therefore, being relevant the evidence of the prior
conviction was not inadmissible as a matter of law. See
Fed. R. Evid. 402.

Even though we have concluded that evidence of Givan’s
1993 felony drug conviction was not inadmissible on a legal
basis, we must evaluate the evidence against the unfair
prejudice standard of Fed. R. Evid. 403. See Government of
Virgin Islands v. Harris, 938 F.2d 401, 420 (3d Cir. 1991).
Fed. R. Evid. 403 provides that relevant evidence may be
excluded if, inter alia, "its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury. . . ." We review the
district court’s application of Rule 403 on an abuse of
discretion basis. See id. But as we stated in United States
v. Long, 574 F.2d at 767, "[i]f judicial self-restraint is ever
desirable, it is when a Rule 403 analysis of a trial court is
reviewed by an appellate tribunal."

Givan argues that the district court failed to engage in a
Rule 403 balancing of the probative value versus the
prejudicial effect of admitting his prior felony drug
conviction and that this omission requires us to reverse his
conviction. However, in its Memorandum and Order

                                12


denying Givan’s motion in limine requesting the court to
preclude the government from offering into evidence Givan’s
1993 felony drug conviction the district court found that
"the probative value of the prior conviction is not
substantially outweighed by the danger of unfair prejudice
to the defendant." Givan’s app. at 30. While the district
court did not set forth its reasons for concluding that the
scale tipped in favor of admission of the evidence, the court
did provide the jury with a limiting instruction regarding
the prior conviction in which the district court emphasized
the limited purpose for which the evidence was admissible,2
_________________________________________________________________

2. The district court’s instruction to the jury on the Rule 404(b) evidence
included the following:

        [T]he government has offered evidence showing that on a different
       occasion the defendant, Yul Darnell Givan, engaged in conduct
       similar to the charges in this indictment. This evidence concerned
       his conviction in 1993 in Iowa for delivery of cocaine. But Givan is
       not on trial for committing this other act. He is not on trial here for
       that offense. Accordingly, you may not consider this evidence of
       similar act as a substitute for proof in this case that Givan
       committed the crimes charged in the indictment.

        Nor may you consider this evidence as proof that Givan has a
       criminal personality or a bad character. Specifically, you may not
       use this evidence to conclude that because Givan committed the
       other act he must also have committed the acts charged in this
       indictment. The evidence of other similar crimes was admitted for a
       much more limited purpose.

        And in the government’s view it’s evidence which tends to prove
       Givan’s knowledge of the heroin in the car in this case and his
       attempt to distribute it.

        In other words, as has been argued to you, that because of his
       prior drug conviction and his alleged -- or consequently his alleged
       familiarity with the drug, you may consider that in determining
       whether -- as he was seated in the back seat -- whether he had
       knowledge of the heroin that was -- the troopers ultimately found in
       the back seat. You may consider that conviction only for that limited
       purpose.

        And if you determine that he possessed the heroin and that he
       delivered cocaine in Iowa on an earlier occasion, then you may, but
       you need not draw an inference that in possessing the heroin in this
       case he acted knowingly and intentionally and not because of some
       mistake, accident or other innocent reason.

                                13


thereby minimizing any prejudicial effect. Givan does not
claim that the district court’s limiting instruction was
inadequate to prevent unfair prejudice. Overall, we cannot
find that the district court abused its discretion under Rule
403.

In upholding the admission of the Rule 404(b) evidence,
we recognize that Judge McKee in his dissent contends that
"the jury could only have considered the prior conviction to
establish Givan’s criminal propensity," dissent at 26, and
makes much of the circumstance that the prior conviction
involved cocaine and not heroin as here. We note, however,
that it is a basic tenet of our jurisprudence that a jury is
presumed to have followed the instructions the court gave
it, see United States v. Gilsenan, 949 F.2d 90, 96 (3d Cir.
1991), and the court’s instructions did not allow the use of
the evidence in the way that Judge McKee contends that it
used it. If we preclude the use of evidence admissible under
Rule 404(b) because of a concern that jurors will not be
able to follow the court’s instructions regarding its use we
will inevitably severely limit the scope of evidence permitted
by that important rule. Moreover, the distinction Judge
McKee draws between the types of drugs involved is of
limited significance in the context of this case in which the
conviction is germane only with respect to Givan’s
knowledge of the presence of drugs. It is not as if dealing in
cocaine and heroin are mutually exclusive endeavors.
Finally on this point we note that our result is consistent
with that reached by other courts of appeals. See, e.g.,
Parsee, 178 F.3d at 379; Martino, 759 F.2d at 1004-05.
These cases cannot be distinguished reasonably from this
case so that if we reject the Rule 404(b) evidence we will
create a conflict among the circuits.

C. Morgan’s Testimony
Givan also argues that the district court erred when it
allowed the jury to hear the testimony of Darryl Morgan
because his testimony constituted evidence of other
criminal conduct impermissible under Fed. R. Evid. 404(b),
or, alternatively, Morgan’s testimony was not relevant to the
conspiracy count of the indictment. The government argues
that Morgan’s testimony was directly relevant to the
existence of a drug conspiracy involving Torrence and

                                14


Givan and that Morgan’s testimony was proof of the
existence of the drug conspiracy charged in Count I of the
Second Superseding Indictment. We review the district
court’s decision to admit this evidence on an abuse of
discretion basis. See United States v. Sokolow , 91 F.3d 396,
402 (3d Cir. 1996).

The government is correct that Morgan’s testimony was
relevant because it made the existence of a key fact-- that
Torrence and Givan were working together in a conspiracy
to distribute heroin in and around Saginaw, Michigan,
during 1999 -- more probable than it would have been
without his testimony. Morgan testified that he was aware
of a drug conspiracy in Saginaw involving Torrence and
Givan. In particular, he testified that Torrence had
introduced Givan to him as someone from whom he could
buy drugs and that he bought heroin from either Torrence
or Givan on a daily basis from March to September 1999.
Moreover, he testified that Torrence and Givan had split up
the Saginaw area, with Torrence selling on the west side of
town, and Givan on the south side and because he lived
closer to the south side, it was often more convenient for
him to buy from Givan. He also testified that if he paged
Torrence and Torrence was not available, he would page
Givan.

In the circumstances Morgan’s testimony was direct proof
of existence of the drug conspiracy alleged in the
indictment and was not subject to the limitation in Rule
404(b) of the admissibility of evidence of "other crimes,
wrongs, or acts." See United States v. Maynie , 257 F.3d
908, 915 (8th Cir. 2001); United States v. Sriyuth, 98 F.3d
739, 747 (3d Cir. 1996); United States v. Retos , 25 F.3d
1220, 1228, n.10 (3d Cir. 1994); 22 C. Wright & K.
Graham, Federal Practice and Procedure S 5239, at 450
(1978). Thus, the district court did not abuse its discretion
in allowing the jury to hear Morgan’s testimony.

D. Base Offense Level and Firearms Enhancement

Torrence contends that the district court clearly erred in
finding that he was involved in the distribution of between
one and three kilograms of heroin and that he possessed a
firearm in relation to drug trafficking. We review the district

                                15
court’s findings of fact on these issues for clear error, see
United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993),
but apply plenary review to its construction of the
Sentencing Guidelines, see United States v. Bethancourt, 65
F.3d 1074, 1080 (3d Cir. 1995). When sentencing a
defendant, the district court only need base its
determinations on the preponderance of the evidence with
which it is presented. See United States v. McDowell, 888
F.2d 285, 291 (3d Cir. 1989). Information used as a basis
for sentencing must have "sufficient indicia of reliability to
support its probable accuracy." U.S.S.G. S 6A1.3(a).

The testimony established by a preponderance of
evidence that Torrence was involved in the distribution of at
least one kilogram of heroin. Billings testified that during
the years of 1995, 1996, and 1997 he and Torrence
traveled to Chicago approximately every three months to
purchase $15,000-$30,000 worth of heroin and cocaine
and that in 1998 and 1999 he and Torrence traveled to
New York approximately every three months to obtain
$30,000 worth of heroin and/or cocaine. Billings testified
that $30,000 would buy eight to nine ounces of heroin in
New York. According to Billings, Torrence made at least five
trips for heroin, each time for eight ounces, for a total of 40
ounces, or one and three tenths kilograms. Billings’
testimony was also consistent with the quantity of drugs
found in the car. Billings testified that he and Torrence
bought two packages of heroin that day but that he did not
know what happened to one of the packages. The fact that
one package was seized from the vehicle, weighing almost
four ounces, supported Billings’ testimony that they bought
eight ounces that day for $30,000.

The heart of Torrence’s argument is that the district
court erred in relying on Billings’ testimony because of his
unreliability. While Billings is a drug addict, his testimony,
in contrast to that considered in United States v. Miele, 989
F.2d at 667, was not internally inconsistent and, also in
contrast to that in Miele, was corroborated by the testimony
of another witness, Darryl Morgan. See id. at 664-65.
Billings’ and Morgan’s testimony was subject to vigorous
cross-examination and at the sentencing hearing the
district court listened to extensive argument on the issue of

                                16


drug quantity. The court, which observed their demeanor
and was in a position to judge their credibility, carefully
considered the estimates based on their testimony and
concluded that the witnesses were reliable. As we have
stated "assessments of credibility by the trial court are
entitled to great deference at the appellate level." United
States v. Brothers, 75 F.3d 845, 853 (3d Cir. 1996).
Because we agree that there was at least a minimal indicia
of reliability to support the court’s reliance on Billings’ and
Morgan’s testimony relating to drug quantity, we conclude
that its drug quantity calculation was not clearly
erroneous.
Torrence also argues that the district court clearly erred
in finding that he possessed a firearm in relation to drug
trafficking. The court took Torrence’s possession of a
firearm into account in adding two points to his offense
level, in accordance with U.S.S.G. S 2D1.1(b)(1).

The government established by a preponderance of
evidence that a firearm was used at the time the offense
was committed. Billings testified that Torrence gave him a
gun to protect them on every trip they took to pick up
drugs and that in particular Torrence gave him a gun on
the September 7, 1999 trip. This testimony was subject to
cross-examination and was not rebutted. The district court,
after listening to arguments from Torrence’s counsel and
the government, and then relying on its own recollection of
the evidence, concluded that Billings was credible on this
point and that the firearms enhancement should apply.
While Torrence makes much of the fact that the troopers
did not recover the firearm from the vehicle or at the scene
of arrest, there is no support for his argument that such
recovery is a prerequisite to the application of the firearms
enhancement. Similarly, there is no support for his
argument that he should not have received the firearms
enhancement because Billings did not receive it. The
district court’s determination that the firearms
enhancement should apply was not clearly erroneous.

E. Ineffective Assistance of Counsel and Due Process

Torrence also claims that his right to effective assistance
of counsel was violated because in deciding to take the case

                                17


to trial rather than plead guilty, he relied upon his
counsel’s incorrect calculations of the guideline range that
would apply at sentencing after a conviction at trial.
However, claims of ineffective assistance of counsel
ordinarily are not cognizable on direct appeal. United States
v. Mustafa, 238 F.3d 485, 497 (3d Cir. 2001); United States
v. Tobin, 155 F.3d 636, 643 (3d Cir. 1998). Rather, the
proper mechanism for challenging the efficacy of counsel is
through a motion pursuant to 28 U.S.C. S 2255. As the
government points out, the record in this case is
inadequate for us to address the issue of ineffective
assistance of counsel for, even if we accept as true all of
Torrence’s factual assertions, the record does not establish
what, if any, prejudice Torrence suffered by reason of the
incorrect calculation of his anticipated guideline range. For
example, for all we know Torrence might have gone to trial
regardless of the calculations supplied. See United States v.
Sandini, 888 F.2d 300, 312 (3d Cir. 1989) ("[C]laims
predicated upon attorney’s error do require a showing of
prejudice and therefore may involve facts not adequately
developed in the record.") (emphasis in original).

Torrence’s last argument is that he detrimentally relied
upon the government’s erroneous statements during plea
discussions before trial of what the applicable guideline
range would be. Citing Santobello v. New York , 404 U.S.
257, 92 S. Ct. 495 (1971), and Virgin Islands v. Scotland,
614 F.2d 360 (3d Cir. 1980), he contends that the
government should have been estopped based on these
statements from asserting that his base offense level was
higher than 26 and that we should vacate his sentence and
require the trial court to accept as binding a base offense
level of 26. The record indicates that the parties’ counsel
had a pretrial discussion concerning the applicable
guideline range, and that they underestimated the base
offense level that would apply after trial. However, in
contrast to the situation in Santobello and Scotland, the
government never made any formal plea offer to Torrence.
In these circumstances there is no support for Torrence’s
argument that the government should have been estopped
from asserting that he was subject to a base offense level
higher than 26.

                                18


III. CONCLUSION

For the foregoing reasons, we will affirm the judgments of
convictions and sentence entered June 25, 2001.

                                19


McKEE, Circuit Judge, concurring in part, and dissenting in
part:

I fully concur in the analysis Judge Greenberg sets forth
in parts II A ("Motion to Suppress"), II C ("Morgan’s
Testimony"), II D ("Base Offense Level and Firearms
Enhancement"), and II E ("Ineffective Assistance of
Counsel") of the majority opinion. However, for the reasons
that follow, I believe the district court’s denial of Givan’s
motion in limine to exclude his prior conviction under Fed.
R. Evid. 404(b) is inconsistent with our caselaw.
Accordingly, I must respectfully dissent from part II B of
the majority opinion affirming that ruling.

I.

Fed. R. of Evid. 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not
       admissible to prove the character of a person in order
       to show action in conformity therewith. It may,
       however, be admissible for other purposes, such as
       proof of motive, opportunity, intent, preparation, plan,
       knowledge, identity, or absence of mistake or accident.
       . . .

Although evidence of a prior "bad act" is admissible if it is
being admitted to establish something other than the
defendant’s character, we have cautioned that such
testimony is not easily divorced from the improper purpose
of suggesting bad character or criminal propensity. Thus,
we have noted that "inquiries of relevance and proper
purpose are intimately intertwined. Evidence that is not
relevant, by definition cannot be offered for a proper
purpose, and evidence that may be relevant for some
purposes may be irrelevant for the purpose for which it is
offered." United States v. Morley, 199 F.3d 129, 133 (3d Cir.
1999).

In order to insure that evidence offered under Rule 404(b)
is being offered for a proper purpose and not merely to
establish a defendant’s criminal propensities, we have held
that the proponent of such evidence must clearly articulate
why it is relevant for something other than establishing

                                20


criminal propensity or character. In United States v.
Himelwright, we declared "[t]he proponent must clearly
articulate how that evidence fits into a chain of logical
inferences, no link of which may be the inference that the
defendant has the propensity to commit the crime charged."
42 F.3d 777, 782 (3d Cir. 1994) (emphasis added) (citing
United States v. Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994)).
That pronouncement is clearly the law of this circuit. Yet,
it is so often honored in the breach that it resonates about
as loudly as the proverbial tree that no one heard fall in the
forest.

Here, the chain of inferences is forged from conclusory
statements such as: "circumstances of this case illustrate
the probative value of Givan’s past drug conviction on the
question of whether he had knowledge of the heroin in the
back seat; whether, with such knowledge, he had intent to
secrete it; and that the presence of heroin immediately
underneath his body was not there because of accident or
mistake." Maj. Op. at 11. That nexus would be tenuous at
best even if the prior conviction involved heroin. However,
Givan’s 1992 conviction involved cocaine, not heroin as is
the case here, and there is absolutely nothing on this
record that would allow the jury to make any meaningful or
relevant comparison of the charged heroin to the prior
cocaine distribution other than Givan’s character. Absent
any testimony about the similarity of cocaine to heroin, the
government simply cannot establish that familiarity with
one is relevant to a defendant’s knowledge of the other.
Rather, the cocaine conviction is only relevant because it
establishes Givan’s character and his propensity for
involvement with illegal drugs. The logical inference
became: "He was guilty in 1992, so he must be guilty here."

When asked, the prosecutor confirmed that the prior
conviction was being admitted to establish "modus
operandi," and the district court accepted that. Trial
Transcript Vol. I., pp.12, 36. The court further noted that
the conviction could be relevant to "knowledge or absence
of mistake," Id. at 33-4. The prosecutor also insisted that
the 1992 incident was admissible under Rule 404(b) by
arguing that "[i]t . . . goes to intent and absence of
mistake." Id. at 13.

                                21


In United States v. Sampson, we stated:"Although the
government will hardly admit it, the reasons proffered to
admit prior bad act evidence . . . is often mixed between an
urge to show some other consequential fact as well as to
impugn the defendant’s character." 980 F.2d 883, 886 (3d
Cir. 1992). The prosecution’s attempt to impugn Givan’s
character, as well as the wisdom of Himelwright ’s
requirement that the proponent articulate a permissible
chain of inferences, both become apparent from a careful
study of this trial transcript.

The prosecutor initially insisted that the prior conviction
was relevant because Givan had been arrested in a car
where cocaine was later found hidden under a seat just as
occurred here. The prosecutor suggested that this detail
was more probative of Givan’s guilt here than the fact of his
prior conviction. He argued:

       The fact is, I called the sergeant [the arresting officer in
       1992], he told me about the circumstances
       surrounding the arrest, and it seemed to me, and
       indeed I’m arguing here today, it is indeed more
       probative of the issue of intent and absence of mistake
       than would be just a piece of paper that says he was
       convicted of a drug offense.

Trial Transcript, Vol. I, p. 13. The prosecutor had
subpoenaed Sgt. Beaird, the arresting officer from Iowa.
Beaird participated in a controlled buy of cocaine from
Givan in April of 1992. A warrant issued for Givan’s arrest
shortly after that buy. However, although Givan was placed
under surveillance following the April distribution, he was
not arrested until September of 1992. His car was searched
following that arrest, and a quantity of cocaine was found
under the driver’s seat. Givan had not been the driver when
arrested, but he was questioned by Sgt. Beaird and
admitted that the cocaine was his.1

Beaird informed the prosecutor of this background when
the prosecutor contacted him about the 1992 conviction
_________________________________________________________________

1. For reasons I will explain infra, Givan was thereafter convicted only of
the April delivery, and charges arising from the discovery of cocaine in
his car and his confession were dismissed.

                                22


before this trial. The prosecutor then tried to admit Givan’s
confession regarding the cocaine in the car in 1992 as well
as the conviction that had been the subject of the motion
in limine. The district court explained,"as I understand, the
government is . . . under 404, claiming . . . there was a
similar modus operandi, if you will, years ago would be
probative of the fact that there was cocaine secreted under
the seat in this instance. Are you going beyond that?" The
prosecutor confirmed that this was the only reason he
wanted to admit the confession. He responded: "No, Judge,
I would just say that it was heroin in this case, cocaine in
that case." Trial Transcript, Vol. I., p 12. The court then
sought further clarification and asked the prosecutor, "is
your basis for seeking admissibility here, not that he was
convicted, but that the drug was secreted in the same
manner as you claim it was secreted here?" Id . The
prosecutor responded: "Yes, that is the basis for it." Id. at
13. The court then noted that the prior incident was
"somewhat similar to the factual situation here, . . .
concealing . . . the drug packet under . . . or between the
. . . back seat." Id. at 19 (emphasis added).

Thus, at this point, one could state the chain of
inferences under Himelwright as follows: Givan was
convicted of distributing cocaine in 1992 and cocaine was
found under the seat of his car when he was arrested for
that distribution. He admitted that the cocaine was his.
Therefore, if one ignores the evidentiary disconnect between
cocaine and heroin (other than its relation to criminal
propensity) one could conclude that the prior conviction
was being offered to show a similar "modus operandi" or
method of hiding the controlled substance. Indeed, this is
exactly why the prosecutor said he wanted to admit Givan’s
1992 confession, and he insisted that he was not"going
beyond that."

However, this evidentiary chain does not survive close
scrutiny. "[T]he government has been unable to articulate
any theory that unites these isolated events which occurred
six years apart, without resorting to the kind of character-
based inference prohibited by Rule 404(b)." Government of
the Virgin Islands v. Pinney, 967 F.2d 912, 916 (3d. Cir.
1992).

                                23


       A jury can rationally infer from evidence that the
       defendant committed a prior crime in an unusual and
       distinctive manner and evidence that a second similar
       crime was committed in the same unusual and
       distinctive manner that the defendant committed the
       second crime. This case, however, does not involve
       such signature evidence. The evidence concerning the
       manner in which the two alleged crimes were
       committed here was neither sufficiently detailed nor
       significantly unusual to permit any inference . . . .
       There are similarities between the two alleged incidents
       . . . . But these shared characteristics are not
       sufficiently unique . . . .

Id. at 916; see also McCormick on Evidence S 190, at 559-60
(3rd ed. 1984) ("Much more is demanded than the mere
repeated commission of crimes of the same class. . .. The
pattern and characteristics must be so unusual and
distinctive as to be like a signature.").
The act of hiding illegal drugs under the seat of a car is
hardly so unique as to create an inference that it was the
defendant who hid heroin under the car seat here because
he had hidden cocaine under a car seat seven years before.
Moreover, the court here did not allow any testimony about
Givan’s September 1992 arrest, the subsequent confession,
or the fact that cocaine was found under the car seat when
he was arrested in 1992. After protracted argument by
counsel and after hearing the testimony of Sgt. Beaird
outside the presence of the jury, the district court ruled
that the 1992 confession should not be admitted because it
was obtained illegally,2 and that any probative value of
Givan’s confession was outweighed by the danger of
prejudice and confusion. See Trial Transcript, Vol III, pp
52-3. Nevertheless, the prosecutor was permitted to inform
the jury about Givan’s 1992 conviction even though the
_________________________________________________________________

2. Sgt. Beaird informed the court that the cocaine that was discovered
was later suppressed along with Givan’s confession because the
suppression court determined that the search was not conducted
pursuant to a general policy for inventory searches. See South Dakota v.
Opperman, 428 U.S. 364, 369 (1976). Accordingly, Givan was only
convicted of the earlier distribution of cocaine in April 1992.

                                24


asserted (albeit tenuous) relevance of that conviction
disappeared when the court refused to allow evidence of the
September 1992 seizure and confession into evidence.

Accordingly, I fail to see how the 1992 conviction for
cocaine distribution was probative of anything other than
the fact that Givan was the kind of person who would have
put the heroin under the seat. This is exactly what defense
counsel argued in opposing this evidence. While objecting
to evidence of the 1992 confession defense counsel argued:
"Judge, . . . it’s not showing knowledge or mistake. It’s
showing a propensity. It’s . . . suggesting what this
defendant has a propensity to do. . . . And how do we show
this? Because he’s done this before. . . . And I say, that’s
not probative, that’s prejudicial." Trial Transcript, Vol I, p.
35.

The government relies in part on United States v. Boone,
279 F.3d 163 (3d Cir. 2002), in arguing that Givan’s prior
conviction for cocaine was relevant for the proper purpose
of establishing intent or absence of mistake. See Appellee’s
Br. at 37. However, Boone, proves the contrary. Boone was
charged with numerous offenses including illegal delivery of
cocaine. 279 F.3d at 171. At trial, he attempted to argue
that he was merely an ignorant "go-fer" without any
knowledge of the contents of the bags that he admitted
delivering. Id. at 187. The trial court allowed the
government to introduce evidence of Boone’s two prior
convictions for cocaine distribution to rebut that defense.
Id. We affirmed noting that the evidence of the prior
convictions was "admitted to show that Boone was familiar
with drug trafficking practices. . . ." Id . The probative chain
that bridged the evidentiary gap there is obvious. Boone’s
familiarity with drug trafficking practices and his ability to
recognize cocaine and its packaging was clearly relevant to
determining if he knew what he was doing when he
delivered bags to certain people. Id. The jury was not asked
to swing across any break in the chain of logical inferences
by clinging to an evidentiary vine woven from testimony of
the defendant’s bad character and criminal propensity. Yet,
here the prosecutor never articulated any "chain of logical
inferences," Jemal, 26 F.3d at 1272, relevant to anything
other than propensity. That is all that connected the prior
conviction to the heroin found in the car here.

                                25


The majority correctly notes that the trial court cautioned
the jury not to consider this evidence as evidence of Givan’s
criminal personality or bad character. Rather, the court
told the jury that, based upon Givan’s familiarity with "the
drug," "you may consider that in determining whether -- as
he was seated in the back seat -- . . . he had knowledge of
the heroin . . . . you may consider that conviction only for
that limited purpose." (emphasis added). However, as noted
above, "the drug" involved in the prior conviction was
cocaine, not heroin. Moreover, it can not seriously be
argued that the act of placing drugs under the seat of a car
is so unique as to imprint a defendant’s "signature" upon
the crime. Pinney, 967 F.2d at 916. Absent some
admissible evidence to forge the link required under
Himelwright, the jury could only have considered the prior
conviction to establish Givan’s criminal propensity. 3
Accordingly, I cannot agree that the prior conviction was
relevant and admissible evidence.

My colleagues stress that we must assume that jurors
follow a judge’s instructions. The Majority concludes that
we must therefore assume that the jury only considered the
prior conviction for a proper purpose, and not as evidence
of Givan’s character. See Maj. Op. at 14 (citing United
States v. Gilsenan, 949 F.2d 90, 96 (3d. Cir. 1991)).
However, absent something akin to a "signature crime" or
circumstances showing Givan’s familiarity with the way
cocaine is packaged based upon the six year old conviction,
the jury could hardly have considered this evidence for
anything other than character. Nothing else ties the six
year old cocaine conviction to Givan’s culpability here, and
the district court’s instruction did not change that.

Indeed, the court in Morley also gave a cautionary
charge; one that was much stronger than the one given
here. Yet, we stated, "the court’s charge can not cure the
_________________________________________________________________

3. The gap in the required chain of logical inferences is all the more
egregious here because Beaird was available as a witness and the
prosecutor therefore had an opportunity to question him about the
appearance of the cocaine he purchased in 1992, and establish how it
compared to the heroin taken from the car here that the Troopers would
describe. See Trial Transcript, Vol III, pp. 1-18.

                                  26


danger inherent in the [bad acts] testimony . . . ." 199 F.3d
at 140.4 Similarly, the jury in Pinney was told:

       The defendant is not on trial for committing acts not
       alleged in the Information. The defendant is on trial on
       the single charge in the Information. Therefore, you
       may not consider the evidence of a similar act as a
       substitute for proof that the defendant committed the
       crime charged in the Information, nor may you
       consider such evidence of a similar act as proof that
       the defendant has a criminal personality or a bad
       character. If you determine that the defendant
       committed the act charged in the Information and,
       also, committed one or more similar acts as well, then
       you may, but you need not, draw an inference that in
       doing one or more of them, and in doing the act
       charged in the Information, the defendant acted
       knowingly and intentionally and not because of some
       mistake, accident or other innocent reason. So, too, if
       you find that the defendant did engage in such alleged
       conduct, and if you find that such other conduct has
       sufficiently similar characteristics to that charged in
       the information, you may, but you need not, infer . . .
_________________________________________________________________

4. The court in Morley charged:

       [Y]ou’ve heard evidence of . . . the alleged   act of the defendant
       obtaining notary seals on bonds of . . . Mr.   DeStefano. There are no
       charges pending in this case with respect to   that. You must not
       consider any of that evidence in deciding if   the defendant committed
       the acts charged in the indictment.

       However, you may consider this evidence for other very limited
       purposes. If you find beyond a reasonable doubt from other evidence
       in this case that the defendant did commit the acts charged in the
       indictment, then you may consider evidence of similar alleged
       conduct on another occasion . . . to determine whether the
       defendant had the state of mind or intent necessary to commit the
       crime or crimes charged in the present indictment. .. .

       [Y]ou are only permitted to use that other conduct to show his
       intent . . . in the present indictment. They are not permitted to show
       that he is--his general character. That would be an improper use of
       that evidence.

199 F.3d at 140

                                  27


       that the act charged in the Information and such other
       alleged, similar conduct, were part of a common plan
       or scheme permitted [sic] by the defendant. Evidence of
       similar acts may not be considered by you for any
       other purposes. Specifically, you may not use such
       evidence to conclude that because the defendant
       committed such other act, he must, also, have
       committed the act charged in the Information.

967 F.2d at 915. Finally, in Sampson, the court instructed:

       Now you heard testimony regarding the defendant’s
       prior convictions for drug offenses. You may not
       consider the defendant’s prior convictions as evidence
       tending to establish a tendency to commit the offense
       with which he is charged in this case. In other words,
       you may not infer because the defendant was convicted
       of drug offenses in the past it is any more likely that he
       committed the offense charged in the indictment. You
       may consider the defendant’s prior convictions only as
       they relate to proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of
       mistake or accident, and not for any other purpose.

980 F.2d at 888-9. Yet, we held in Sampson that, "[t]his
instruction does not cure the error. Where the government
has not clearly articulated reasons why the evidence is
relevant to any legitimate purpose, there is no realistic
basis to believe that the jury will cull the proper inferences
and material facts from the evidence." Accordingly, I must
conclude that "there is no realistic basis to believe" that
this jury was somehow able to "cull the proper inferences
and material facts from the evidence" here.5
_________________________________________________________________

5. Of course, "[t]he foregoing discussion . . . seems very much beside the
point to any experienced litigator. The obvious reason the government
wanted [the prior conviction] testimony before the jury was because of
the substantial likelihood that one or more members of the jury would
use this highly inflammatory evidence for exactly the purpose Rule
404(b) declared to be improper. . . ." Pinney , 967 F.2d at 917.

                                28


II.

Moreover, even assuming that the prior conviction was
relevant for a proper purpose, I believe that its probative
value was still outweighed by its potential for prejudice and
it therefore should have been excluded under Rule 403.
Fed. R. Evid. 403 requires that the court balance the
prejudicial impact of admissible evidence to insure that its
probative value outweighs the risk of unfair prejudice.
Jemal, 26 F.3d at 1272. This is, of course, particularly
important when evidence of bad acts is being admitted
under Rule 404(b).

There can be little doubt of the prejudicial impact of
Givan’s prior conviction. Although the testimony of Morgan
and Billings, if accepted, established that Givan was
involved in a conspiracy to distribute heroin, the only
evidence connecting Givan to the heroin in this case is the
testimony of Billings. Of course, Billings was also in the car
and could have placed the heroin under the rear seat
himself. There was, in fact, testimony that could have
raised a reasonable doubt regarding whether Billings placed
the heroin under the seat, or whether Givan did. Trooper
Rossi testified that when he approached the car the
passenger seat where Billings was sitting was reclined and
that at times Billings was turning around facing the rear
passenger. Trial Transcript Vol. II, p 49. He also conceded
on cross examination that he had previously testified that
it appeared to him that Billings seemed to be reaching
backwards "towards the back seat." Id. at 96. Billings
denied this and testified that he did not make any motions
toward the back seat. Id., p. 237. However, the very fact
that Billings disputed the Trooper’s testimony could have
raised a reasonable doubt about Billings’ veracity and the
joint and/or constructive possession of the heroin.

I realize, of course, that the combined testimony of
Morgan and Billings may still have been enough to convince
a jury either that Givan placed the heroin under the seat,
or that he at least possessed it jointly in the course of a
conspiracy to distribute it. However, testimony of Givan’s
1992 conviction creates too substantial a risk that the jury
convicted Givan because of the propensity "evidenced" by
that conviction and not because Billings’ testimony proved

                                29


the case beyond a reasonable doubt. After all, the police
actually found heroin on Billings. This combined with
Billings’ obvious motive to fabricate and attribute the rest
of the heroin in the car to someone else could easily have
raised a reasonable doubt as to Givan’s involvement with
the heroin in the car absent the evidence of Givan’s
conviction. Although one can argue that this is exactly why
evidence of the prior conviction was relevant, that position
flies in the face of the prohibition contained in Rule 404(b).

III.

The evidentiary evil of evidence of bad character is that it
has this visceral relevance that subtly and "logically"
suggests its admissibility absent the kind of careful
scrutiny that Himelwright and its progeny require. We all
assume that one who has previously been convicted of
dealing drugs is more likely to have something to do with
drugs hidden in his vicinity than someone with no prior
drug involvement. However, that logical inference is not one
that Rule 404(b) allows the trier of fact to draw absent
some other proper relationship between the prior conviction
and subsequent illegal conduct he may be charged with. We
addressed this visceral relevance in Himelwright. We
concluded that it is only when the proponent is required to
articulate a proper chain of inferences unconnected to
character or propensity that the trial court can insure that
evidence of bad acts is not being admitted for an improper
purpose. 42 F.3d at 782.

Failure to follow the analysis we set forth there all too
often results in evidence of propensity or bad character
being paraded before the jury with the ever-present refrain
of "intent, common scheme, plan, design, absence of
mistake" that will always accompany an attempt to admit
evidence under Rule 404(b). Absent more of an analysis
than appears on this record, the discipline required under
Rule 404(b) is easily displaced by "logical" but forbidden
inferences that disguise propensity and character as
something else. That is what happened here. Accordingly, I
must dissent from the majority insofar as it concludes that

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Givan’s prior conviction was properly admitted under Rule
404(b).

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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