                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 13-1847
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                              GREGORY WASHINGTON,
                                                Appellant
                                  _____________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (Crim. No. 2-11-cr-00042-011)
                         District Judge: Hon. Arthur J. Schwab
                                     _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  October 31, 2014
                                  ______________

    BEFORE: McKEE, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges.

                            (Opinion Filed: March 27, 2015)
                                   ______________

                                        OPINION*
                                     ______________


McKEE, Chief Judge.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       A jury convicted Gregory Washington of conspiracy to distribute and to possess

with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846.

He was sentenced to 262 months’ imprisonment followed by a five-year term of

supervised release. Washington appeals both his conviction and his sentence on a

number of grounds. Although we agree that the District Court erred by failing to state its

reasons on the record for denying Washington’s 404(b) motion, we will affirm the

judgment of conviction because the error was harmless and none of Washington’s other

claims have merit.1

                                   I. BACKGROUND

       Gregory Washington was convicted of conspiracy to distribute and to possess with

intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. At

sentencing, the District Court calculated a Guidelines range of 262 to 327 months’

imprisonment, and it imposed a sentence of 262 months’ imprisonment followed by a

five-year term of supervised release based on several sentencing enhancements.

       The evidence at trial included the testimony of Gregory O’Neal, whom the

Government alleged was a co-conspirator in Washington’s large-scale drug distribution



1
  The district court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction of
this timely appeal from the District Court’s judgment of conviction under 28 U.S.C. §
1291. We review a district court’s evidentiary rulings principally for an abuse of
discretion. United States v. Green, 617 F.3d 233, 239 (3d Cir. 2010) (citing Complaint of
Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir. 1997)). However, when the district
court’s rulings are based on a legal interpretation of the Federal Rules of Evidence,
including whether evidence falls within the scope of Rule 404(b), we exercise plenary
review. United States v. Caldwell, 760 F.3d 267, 274 (3d Cir. 2014) (citing Green, 617
F.3d at 239).
                                             2
ring. However, over Washington’s objection, O’Neal also testified about dealings outside

the timeframe of the charged conspiracy.

       The evidence against Washington reflected a relationship whereby Washington

and co-conspirators regularly updated each other about suppliers, availability, and prices

of heroin, as well as feedback from customers. At trial, Washington argued that the

conversations the jury heard were ambiguous, and that they were not actually referring to

heroin. Though the communications were often in code, the jury apparently concluded

that the conspirators were referring to heroin. Washington also argued that the

Government had not met its burden of proving that he was a member of a drug

conspiracy.

       Following his conviction and the imposition of his sentence, Washington brought

this appeal. He makes a number of arguments, including most notably that O’Neal’s

testimony was wrongly admitted in violation of Rule 404(b).2

                                    II. DISCUSSION

                                            A.

       Extrinsic evidence of a prior crime or bad act is properly analyzed under Rule

404(b), while intrinsic evidence need not be. Green, 617 F.3d at 245. Uncharged

2
  Washington raises the following issues on appeal in addition to the 404(b) issue: (1) that
the evidence presented at trial was not sufficient to sustain a conviction for conspiracy;
(2) that the district court erred by finding by a preponderance of the evidence that
Washington had distributed more than one kilogram of heroin; (3) that the district court
erred by increasing Washington’s offense level by two points for obstruction of justice;
and (4) that the court erred by applying the three-point sentencing enhancement after
finding that Washington played a manager/supervisor role in the conspiracy. We
conclude that Washington was unable to demonstrate reversible error with respect to any
of these issues, and we therefore will decline to grant relief on those claims.
                                             3
misconduct that “directly proves” the charged crime, or which both happened

contemporaneously with and facilitated the charged crime, is intrinsic evidence; all other

uncharged misconduct is extrinsic. Id. at 248-49. While O’Neal’s testimony about his

relationship with Washington outside the charged time period may have helped the

Government’s case, it was not “direct proof” of the charged offense.

       “Evidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance

with the character.” FED. R. EVID. 404(b)(1). However, such evidence is admissible for

a non-propensity purpose, such as those listed under Rule 404(b)(2). This court has

developed a four-part test for admissibility under Rule 404(b): “Prior-acts evidence is

admissible only if it is (1) offered for a proper purpose under Rule 404(b)(2); (2) relevant

to that purpose; (3) sufficiently probative under the Rule 403 balancing requirement; and

(4) accompanied by a limiting instruction, if requested.” United States v. Davis, 726 F.3d

434, 441 (3d Cir. 2013) (citing Green, 617 F.3d at 249); see also Huddleston v. United

States, 485 U.S. 681, 691-92 (1988).

       Because the evidence that may be admitted under Rule 404(b) has a unique

potential to distract the jury, inflame emotions, or arouse prejudices by reflecting

negatively on a defendant’s character, we require that district courts employ “care and

precision” in ruling on the admissibility of such evidence. United States v. Caldwell, 760

F.3d 267, 277 (3d Cir. 2014). If the evidence is admitted, the district court must

thoroughly explain its reasoning as to each step of the four-prong test on the record. See

id. at 276-77. The government must also act with care, explaining how the evidence “fits

                                              4
into a chain of inferences—a chain that connects the evidence to a proper purpose, no

link of which is a forbidden propensity inference.” Davis, 726 F.3d at 442 (citing United

States v. Sampson, 980 F.2d 883, 887 (3d Cir. 1992). “Unfortunately, these requirements

are ‘so often honored in the breach’ that they resonate ‘about as loudly as the proverbial

tree that no one heard fall in the forest.’” Id. (quoting United States v. Givan, 320 F.3d

452, 466 (3d Cir. 2003) (McKee, J., dissenting)). Regrettably, this is yet another example

of the district court ignoring our direction about how such evidence is to be analyzed.

Nevertheless, that does not necessarily entitle Washington to relief.

       As to the first step of the analysis, the government must identify a proper purpose

that the evidence serves, and that purpose must actually be “at issue” in, or relevant to,

the case. See Caldwell, 760 F.3d at 276. In its response to Washington’s motion in

limine, the Government explained that O’Neal’s testimony about his dealings with

Washington in 2008 and 2009 would show “Washington’s opportunity and capacity to

distribute heroin with the same co-conspirators in 2010 and 2011 [(the time period of the

charged conspiracy)] that he conspired to distribute heroin with in 2008 and 2009. The

evidence will explain the existing relationship between Mr. Washington and some of his

co-conspirators . . . .” App. 34-35. We have held that “[a]n additional unenumerated yet

permissible purpose for admitting evidence under Rule 404(b) is to ‘demonstrate a

continuing relationship between an unindicted co-conspirator and the defendant.’”

United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002) (quoting United States v. Scarfo,

850 F.2d 1015, 1019 (3d Cir. 1988)). Thus, the Government identified a proper non-

propensity purpose for the evidence. In denying Washington’s 404(b) motion, the

                                              5
District Court expressly agreed with the Government’s proffered non-propensity purpose,

noting in an entry on the docket that “[t]he Government is allowed to present this

evidence at trial to attempt to prove a continuing relationship between conspirators.”

App. 16.

       However, that was the full extent of the District Court’s explanation of its reasons

for admitting the evidence. The court ignored the fact that we have clearly (and

repeatedly) stated that, when a district court admits 404(b) evidence for a proper purpose,

it “must put a chain of inferences into the record, none of which is the inference that the

defendant has a propensity to commit this crime.” Sampson, 980 F.2d at 888. Rather

than doing that here, the District Court merely stated a proper non-propensity purpose;

that is not sufficient.

       We have also explained that, in some limited situations, it may be clear that the

district court adopted the position proffered by the evidence’s proponent, and we may

therefore properly look to that party’s reasoning to understand the logic of the district

court. See id. (explaining that the district court’s “conclusion may have been sufficient

had the government thoroughly explained its basis for admission”). However, this is not

such a case. Though the Government provided the District Court with ample legal

support for the position that “continuing relationship” evidence is often admitted under

Rule 404(b) in conspiracy cases, the Government failed to thoroughly explain how the

evidence in this case was relevant to the conspiracy charge against Washington. See

Davis, 726 F.3d at 441-42 (explaining that relevance can be an “insurmountable” barrier

to the admission of evidence challenged under Rule 404(b)).

                                              6
       Therefore, there is no way for us to divine the District Court’s reasoning as to the

second step of the 404(b) inquiry, or to know whether the District Court even conducted

the proper analysis. The District Court also erred by not evaluating the evidence under

Rule 403, or at least by not explaining its analysis on the record. Caldwell, 760 F.3d at

277 (“Under the third step of our analysis, the court must evaluate pursuant to Rule 403

whether the evidence is sufficiently probative, such that its probative value is not

outweighed by the inherently prejudicial nature of prior bad act evidence.”).3 Thus, the

District Court erred at the second and third steps of the 404(b) analysis, by not explaining

at all why the admitted evidence was relevant to its identified purpose or why it was

admissible under Rule 403.

                                              B.

       As with most trial errors, we will only reverse the district court if its errors were

harmful. “Any error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded.” FED. R. CRIM. P. 52(a). Here, the District Court’s error was

that it failed to state its reasoning on the record, as it was required to do. The government

bears the burden of showing that the error was harmless, which it may do by

demonstrating that the defendant was not prejudiced. See United States v. Olano, 507

U.S. 725, 734 (1993).


3
  Though Washington argues that the court also erred by failing to give a limiting
instruction, he did not request one at trial, and the evidence must only be “accompanied
by a limiting instruction, if requested.” Id. at 278 (emphasis added). Where a defendant
does not request a limiting instruction regarding Rule 404(b) evidence at trial, we review
the district court’s jury instructions for plain error, and we find none here. See United
States v. Gibbs, 190 F.3d 188, 217 (3d Cir. 1999).
                                              7
       In the context of Rule 403, we have not hesitated to reverse a district court where

its reasoning regarding Rule 403 “‘is not apparent from the record.’” United States v.

Smith, 725 F.3d 340, 348 (3d Cir. 2013) (quoting Sampson, 980 F.2d at 889). Similarly,

in the context of Rule 404(b), we insist that the district court, “rather than the appellate

court in retrospect, [must] articulate reasons why the evidence also goes to show

something other than character.” Caldwell, 760 F.3d at 276 (quoting Sampson, 980 F.2d

at 888) (internal quotation mark omitted). However, here, it is uniquely clear that

O’Neal’s testimony about his prior dealings with Washington was relevant for the

legitimate purpose of establishing a continuing relationship of trust between two

coconspirators. Moreover, since the jury could certainly hear evidence of drug sales

during the time of the charged conspiracy, O’Neal’s testimony about other drug deals was

not more prejudicial than probative.

       “When evaluating whether a non-propensity purpose is at issue, we consider the

material issues and facts the government must prove to obtain a conviction.” United

States v. Brown, 765 F.3d 278, 291 (3d Cir. 2014) (internal quotation marks omitted). In

a conspiracy case where there is a question of whether a defendant is a part of a drug

conspiracy or merely a buyer or seller of drugs, courts consider: “[1] the length of

affiliation between the defendant and the conspiracy; [2] whether there is an established

method of payment; [3] the extent to which transactions are standardized; [4] and

whether there is a demonstrated level of mutual trust.” United States v. Gibbs, 190 F.3d

188, 199 (3d Cir. 1999) (citing United States v. Hach, 162 F.3d 937, 943 (7th Cir. 1998),

cert. denied, 526 U.S. 1103 (1999)). These considerations were highly relevant at

                                               8
Washington’s trial because his main defense was that the evidence only established that

he was a simple buyer or seller of heroin and not part of a larger conspiracy.

       Throughout his testimony, O’Neal described the interactions between Washington

and a number of his co-conspirators, frequently suggesting that Washington was working

in concert with others. O’Neal also testified about the unique way Washington packaged

his heroin, and the Government ultimately tied Washington to packages of heroin held by

his alleged co-conspirators, based in part on O’Neal’s testimony that Washington had a

long history of packaging heroin in that way.

       Where evidence of a prior bad act “undercut[s a defendant’s] main defense,” it is

quite plainly probative of one of the facts the government must prove to obtain a

conviction. United States v. Cross, 308 F.3d 308, 324 (3d Cir. 2002). Here, the evidence

of a prior relationship is highly probative of a key issue: whether Washington had

continuous, trusting relationships with other alleged co-conspirators, and whether he

worked in concert with them. The second prong of the 404(b) test, relevance, was clearly

met. See Scarfo, 850 F.2d at 1019. Therefore, Washington was not prejudiced and the

District Court’s error was harmless.

       Moreover, as explained above, the evidence was not unfairly prejudicial. Thus,

we are also satisfied that Washington was not prejudiced by the District Court’s failure to

conduct a Rule 403 analysis on the record. See Cross, 308 F.3d at 325 (concluding that

evidence of prior bad acts which was “highly probative” because it addressed the

defendants’ main defense should not be excluded under Rule 403 merely because there

was “some risk” of prejudice). It is apparent from the record, if not the District Court’s

                                             9
own statements, that the prejudicial effect of that evidence does not outweigh its

significant probative value. This error was also harmless.

                                 III.   CONCLUSION

       For the above reasons, we will affirm Washington’s judgment of conviction.




                                            10
