                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     June 24, 2009
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 08-8065
                                             (D.Ct. No. 2:07-CR-00132-CAB-1)
 JEFFREY WAYNE DOLES,                                     (D. Wyo.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, O’BRIEN, and McCONNELL, Circuit Judges.


      Defendant-Appellant Jeffrey Wayne Doles appeals his convictions on three

counts of knowingly and unlawfully selling or offering for sale drug

paraphernalia, in violation of 21 U.S.C. § 863(a)(1) and (b). We have jurisdiction

under 28 U.S.C. § 1291, and we AFFIRM.

                                I. BACKGROUND

      Mr. Doles operated a store called “Hip Hop Hippies” in Gillette, Wyoming.

On August 10, 2005, local police officers obtained a search warrant and



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
confiscated approximately 176 pipes and other items that they considered to be

drug paraphernalia. Although the officers warned Mr. Doles not to continue

selling similar items, on August 12 he reopened his store and was arrested. He

was charged with three misdemeanor counts of delivering or possessing drug

paraphernalia, all in violation of Wyo. Stat. Ann. § 35-7-1056. He was acquitted

after a jury trial.

       Thereafter, Mr. Doles reopened Hip Hop Hippies in Gillette and opened a

new store in Casper, Wyoming. In July 2006, law enforcement officers seized

items from the Casper store. That September, officers seized items from the

Gillette store.

       Mr. Doles was ultimately charged under federal law with three counts of

knowingly and unlawfully selling or offering for sale drug paraphernalia, in

violation of 21 U.S.C. § 863(a)(1) and (b). At trial, Mr. Doles’s counsel asserted

that the items sold at Mr. Doles’s stores were to be used primarily with legal

products such as tobacco and medicinal herbs. The jury convicted Mr. Doles on

all three counts. On appeal, he raises four arguments regarding the district

court’s evidentiary rulings.

                                II. DISCUSSION

A.     Standard of Review

       We review evidentiary rulings for abuse of discretion. United States v.

Curtis, 344 F.3d 1057, 1067 (10th Cir. 2003). Under this standard, we “will not

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disturb an evidentiary ruling absent a distinct showing that it was based on a

clearly erroneous finding of fact or an erroneous conclusion of law or manifests a

clear error in judgment.” United States v. Jenkins, 313 F.3d 549, 559 (10th Cir.

2002).

B.       Prior Acquittal on Similar Charges

         The district court did not abuse its discretion in excluding evidence about

Mr. Doles’s acquittal on similar charges in state court. The district court

excluded the evidence because it was irrelevant, and because its probative value

was substantially outweighed by prejudice to the government and confusion of the

issues. See Fed. R. Evid. 401, 403. Mr. Doles contends that his state-court

acquittal demonstrates that he did not have the necessary mens rea to commit the

federal crimes. Specifically, he argues that the acquittal led him to believe that

he was not selling drug paraphernalia. Under 21 U.S.C. § 863(a), “the

Government must establish that the defendant knew that the items at issue are

likely to be used with illegal drugs.” Posters ‘N’ Things, Ltd. v. United States,

511 U.S. 513, 524 (1994). 1

         The district court made the correct determination under Rule 403 of the

Federal Rules of Evidence. First, the evidence had little probative value.

         1
       Posters ‘N’ Things was decided under 21 U.S.C. § 857, which has been
repealed and replaced by 21 U.S.C. § 863. See Posters ‘N’ Things, 511 U.S. at
516 n.5. The statutes are identical except for their description of the offense. Id.
Both versions forbid selling or offering to sell drug paraphernalia. See id. at 516
& n.5.

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Although the state-court acquittals may have given Mr. Doles a belief about the

legality of selling those items, the test under Posters ‘N’ Things focuses not on

whether he knew that the items were drug paraphernalia under the law but on

whether he knew that the items were “likely to be used with illegal drugs.” Id.

The state-court acquittal had no bearing on Mr. Doles’s belief about the likely use

of the items that he sold.

      In addition, the risk of confusion of the issues was high. The federal jury

could only speculate as to why Mr. Doles was acquitted on state charges because

the state jury used a general verdict form. See Doles v. State, 163 P.3d 819, 823

(Wyo. 2007) (holding that collateral estoppel did not apply to a forfeiture

proceeding against Mr. Doles because “we do not know whether the jury

determined that the seized items were not drug paraphernalia”). In addition to

disallowing the evidence of Mr. Doles’s acquittal, the court did not allow

evidence of a forfeiture proceeding in which a state court found that the very

same items were drug paraphernalia. See id. at 820. If presented with conflicting

verdicts from state court, the jury likely would have been confused and distracted

from the issues of the federal case. The district court thus did not abuse its

discretion in excluding the evidence.

C.    Advice of Counsel

      The district court also did not abuse its discretion by refusing to allow

testimony about a conversation Mr. Doles allegedly had with Sergeant Andy

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Boisvert of the Gillette Police Department. During cross-examination of Sergeant

Boisvert, Mr. Doles’s counsel sought to have Sergeant Boisvert testify about a

comment Mr. Doles had made to him. Mr. Doles allegedly told Sergeant Boisvert

that Mr. Doles’s attorney had advised him that he could legally operate his store.

Mr. Doles asserts that his purpose in presenting the statement was to show that he

(1) had a good faith belief that he had committed no crime; and (2) did not know

that what he was selling was drug paraphernalia.

      “The advice of counsel defense is only applicable where it may negate

willful violation of the law.” United States v. Ragsdale, 426 F.3d 765 (5th Cir.

2005). Posters ‘N’ Things established, however, that a defendant’s subjective

belief as to the legality of the materials that he was selling is immaterial to any of

the elements necessary to make out a violation under § 863. Rather, the

government need only show that a defendant possesses a knowledge of whether

the materials “are likely to be used with illegal drugs.” Posters ‘N’ Things, 511

U.S. at 524. Cf. United States v. Hamling, 418 U.S. 87 (1974) (statute prohibiting

mailing of obscene materials does not require proof that defendant knew the

materials at issue met the legal definition of obscenity, only that he knew of its

contents, and that its contents were lewd as a matter of law). When a criminal

statute “does not require an intent to violate the law, [a defendant can] not assert

as a defense that he relied on counsel that the materials were not illegal.”

Ragsdale, 426 F.3d at 778. Thus, it was proper to exclude Mr. Doles’s advice of

                                          -5-
counsel defense. See id., 426 F.3d at 777–78 (rejecting argument that lawyer’s

comments were non-hearsay because introduced to show state of mind, on ground

that this was irrelevant to making out an “advice of counsel” defense).

D.       Reference to “4-20”

         The district court did not abuse its discretion in allowing Sergeant Boisvert

to testify that he had heard Mr. Doles answer the phone at Hip Hop Hippies with

the greeting “4-20.” Sergeant Boisvert further testified that, based on his

experience in law enforcement and with investigating narcotics offenses, the

greeting “4-20” is a way for marijuana smokers to identify themselves to each

other.

         Mr. Doles argues that Sergeant Boisvert’s testimony was unduly prejudicial

under Rule 403 and constituted impermissible character evidence under Rule 404.

We disagree. To begin, the testimony is not evidence of Mr. Doles’s character.

Character evidence under Rule 404(b) is extrinsic evidence, meaning evidence

that “involves an act wholly apart from and not intricately related to the asserted

claim.” Elliot v. Turner Constr. Co., 381 F.3d 995, 1004 (10th Cir. 2004).

Evidence that Mr. Doles answered the phone with “4-20” is not extrinsic to the

charges against him. That evidence is relevant to whether Mr. Doles knew that

the pipes sold at Hip Hop Hippies were likely to be used to smoke marijuana,

which undercuts Mr. Doles’s claim that they were used primarily with legal

products. In addition, the probative value of the testimony is not substantially

                                           -6-
outweighed by any prejudice to Mr. Doles. While the evidence was to some

degree prejudicial against Mr. Doles, the evidence also was probative of Mr.

Doles’s knowledge about the use of the items in his store. The district court thus

did not abuse its discretion in allowing the evidence.

E.    Evidence Seized From Store Employee

      The district court was also within its discretion in allowing evidence that a

Hip Hop Hippies employee possessed a grinder containing marijuana. The

government put forth testimony describing this discovery, as well as testimony

that the grinder was identical to grinders sold at the store. On appeal, Mr. Doles

argues that this evidence was improper character evidence and improper evidence

of prior bad acts under Rule 404. We disagree. As with the “4-20” evidence,

evidence of the grinder tended to establish that Mr. Doles knew that the items at

issue were likely to be used to ingest or smoke marijuana. Thus, it was not

“extrinsic evidence” and cannot be defined as character evidence. In addition,

even if the act of another person could be described as “other act evidence” under

Rule 404(b), “other act evidence” is permissible if it “is relevant and tends to

prove a material fact other than the defendant’s criminal disposition . . . .”

United States v. Parker, 553 F.3d 1309, 1314 (10th Cir. 2009) (quotations

omitted). This evidence was relevant to Mr. Doles’s knowledge about the use of

the products sold in his store. The district court therefore did not abuse its

discretion by allowing the evidence.

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                     III. CONCLUSION

Mr. Doles’s convictions are AFFIRMED.

                            ENTERED FOR THE COURT,



                            Deanell Reece Tacha
                            Circuit Judge




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