           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2     United States v. Lucas                       No. 02-5399
        ELECTRONIC CITATION: 2004 FED App. 0046P (6th Cir.)
                    File Name: 04a0046p.06                                 STATES ATTORNEY, Memphis, Tennessee, for Appellee.
                                                                           ON BRIEF: Jerald W. Newton, Sedona, Arizona, for
                                                                           Appellant. Camille R. McMullen, ASSISTANT UNITED
UNITED STATES COURT OF APPEALS                                             STATES ATTORNEY, Memphis, Tennessee, for Appellee.
                  FOR THE SIXTH CIRCUIT                                      BOGGS, C. J., delivered the opinion of the court, in which
                    _________________                                      RYAN, J., joined. ROSEN, D. J. (pp. 20-29), delivered a
                                                                           separate concurring opinion.
 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -                                                             _________________
                                  -
                                  -   No. 02-5399                                                  OPINION
            v.                    -                                                            _________________
                                   >
                                  ,                                           BOGGS, Chief Judge. On May 18, 2001, Robin Rochelle
 ROBIN ROCHELLE LUCAS,            -                                        Lucas was indicted by a grand jury for knowingly and
         Defendant-Appellant. -                                            intentionally possessing with the intent to distribute 500
                                 N                                         grams or more of a mixture containing cocaine, in violation
      Appeal from the United States District Court                         of 21 U.S.C. § 841(a)(1). In September 2001, Lucas was
    for the Western District of Tennessee at Jackson.                      convicted by a jury as charged in the indictment and was
  No. 01-10022—James D. Todd, Chief District Judge.                        subsequently sentenced to 121 months in prison, four years of
                                                                           supervised release, a $100 special assessment, and a $15,000
                     Argued: August 6, 2003                                fine. Lucas appeals the judgment against her on three
                                                                           grounds, each of which she claims merits reversal. First, she
             Decided and Filed: February 12, 2004                          argues that the district court abused its discretion in granting
                                                                           the government’s motion in limine to exclude from the trial
Before: BOGGS, Chief Judge; RYAN, Circuit Judge; and                       any mention of the fact that Morrell Presley, a person
             ROSEN, District Judge.*                                       involved in the events leading to Lucas’s arrest but not a
                                                                           witness at her trial, had previously been convicted for cocaine
                       _________________                                   trafficking, when the defense’s theory was that the drugs were
                                                                           Presley’s and not Lucas’s. Second, Lucas argues that the
                            COUNSEL                                        district court abused its discretion when it ruled that she could
                                                                           not introduce evidence, as an explanation of her nervous
ARGUED: Jerald W. Newton, Sedona, Arizona, for                             behavior during her arrest, that she had been raped by prison
Appellant. Camille R. McMullen, ASSISTANT UNITED                           guards in the past. Third, Lucas contends that the court erred
                                                                           in denying her Batson motion, in which she argued that the
                                                                           prosecutor exercised a peremptory challenge against a
    *
                                                                           potential juror in a racially discriminatory manner, in
     The Honorable Gerald E. Rosen, United States District Judge for the   violation of the Equal Protection Clause. See Batson v.
Eastern District of Michigan, sitting by designation.

                                   1
No. 02-5399                        United States v. Lucas     3    4    United States v. Lucas                     No. 02-5399

Kentucky, 476 U.S. 79 (1986) (prohibiting the exercise of          that she was in Knoxville, and then gave him the address and
race-based peremptory challenges). Lucas also appeals her          name of the hotel. Presley apparently recognized the hotel
sentence and claims that the district court abused its             and said he would come over to see her, but did not tell her
discretion in not finding that her prior rape by prison guards     that she was not in Knoxville. Lucas awakened the other
and her charitable work for human rights organizations such        women, telling them to get dressed because Presley was going
as Amnesty International were grounds for a downward               to be visiting them shortly.
departure. We affirm Lucas’s conviction and sentence.
                                                                     Presley came over, they watched a movie, and eventually
                               I                                   the group decided they were hungry. Presley volunteered to
                                                                   go for food and Quinney prepared a shopping list for him,
   Robin Rochelle Lucas was arrested on May 9, 2001 in             including chicken and cooking oil. Presley said he was low
Tennessee. At the time, she was living in California with her      on gas and so Watts allegedly gave him the keys to the rental
grandmother, her nephew, and two nieces. Lucas testified at        car, which he took instead of his own car, leaving the room at
her trial that she was on vacation with two friends, Angelina      about 2:30 p.m.
Watts and Kimberly Quinney, on her way to visit another
friend, Jackie Parker, who lived in Memphis, and to attend the        Presley returned to the hotel room approximately five hours
“Memphis in May” festival. On May 8, 2001, Lucas, Watts,           later, at about seven-thirty at night, and although he brought
and Quinney flew from California to Nashville. At the              some groceries, he did not return with the chicken or cooking
Nashville airport, Watts obtained a rental car. As they left the   oil, allegedly the main reason for his trip. Lucas had been
airport, Lucas says she saw a sign for Knoxville and               teased by Watts and Quinney, who suggested that Presley had
Chattanooga (which are over 200 miles away), which she             “made off” with the rental car, leaving his old car behind.
followed, thinking that Knoxville was only a few minutes           When Presley finally returned, without the chicken, Lucas
away from Nashville. The three women stopped off at a              testified that she grabbed the keys out of frustration and
liquor store a few minutes down the road and purchased two         started driving towards Memphis. At around eight, Lucas
bottles of Hennessey. Lucas then paid for a room at a              called Parker and told her that she was on her way to pick her
Residence Inn, which she claims she thought was in                 up in Memphis.
Knoxville, but was actually still in Nashville. The group
decided to go to Walgreens, where Quinney purchased several          At the hotel, Presley became upset, asking where Lucas had
items, including food and utensils for cooking dinner in the       gone with the rental car. According to Quinney’s testimony
room’s small kitchenette. The three went back to the hotel,        at trial, Presley was ranting and raving, calling everyone
prepared food, and drank.                                          names. Presley urged Quinney and Watts to call Lucas and
                                                                   convince her to drive back, specifically stating to Quinney
  The three women said that they had planned to drive to           that she should “[c]all that B and tell her to come back” and
Memphis the next morning, May 9, but they got up late and          that his cell phone was in the car. Quinney called Lucas and
Lucas wasn’t able to get in touch with her friend, Parker, the     told her “[t]hat she needed to come back because she had . . .
woman she was to meet in Memphis. Lucas then claims to             Morell’s cell phone. She needed to bring him his cell phone.”
have called Morrell Presley, a man she claims to have met          At some point Presley even got on the phone and started
twice before (very briefly) through a friend, and asked him for    yelling at Lucas to come back, telling her that “she didn’t
directions to Memphis. Lucas testified that she told Presley       know who he was” and calling her names. Phone records
No. 02-5399                       United States v. Lucas       5    6    United States v. Lucas                      No. 02-5399

verified that phone calls were made consistent with this            that Lucas did not have the keys. Hammett began shining his
testimony, although the only evidence presented as to what          flashlight into the vehicle, looking for the keys, when he
was said during the calls and, indeed, of any interaction with      spotted two bags wrapped in cellophane and stuck under the
“Presley,” was the testimony of Lucas and her two friends:          front driver’s seat. The bags were eventually retrieved from
Quinney and Watts.                                                  the vehicle and later determined to contain 2.2 kilograms of
                                                                    cocaine. A number of items were found in the car during a
  At 9:25 pm, Lucas was pulled over by Trooper Ollie Parker         subsequent search. Three cell phones were seized, registered
for speeding at 92 miles per hour near mile marker 104 on I-        to Angelita Watts (Vallejo, California), Robyn McPherson
40 going west towards Memphis. As Parker was copying                (Vallejo, California), and Cathy Jefferson (Nashville,
information down for Lucas’s ticket, he realized that her           Tennessee) respectively.       Thirteen credit cards were
driver’s license was expired, called it in, and found out that it   recovered, eleven in Lucas’s name and two in the name of
was suspended. When Parker went back to Lucas and told              Robyn McPherson, along with a Visa Gold Card application
her of his findings, she explained to him that she had “taken       in Robyn McPherson’s name and a receipt from Walgreens.
care” of the suspended license, but Parker was unable to            Lucas explained that Robyn McPherson is her niece and that
verify this fact.                                                   she had taken her niece’s credit cards and telephone calling
                                                                    cards because her niece had written over $7000 in insufficient
   Trooper Earl Hammett drove up at around 10 pm, and               fund checks, which Lucas had covered, and her niece had run
parked behind Parker’s cruiser, which was behind Lucas’s            up a phone bill of $800.
rental car. He activated the cruiser’s video camera at 10:03
pm, and this video was played for the jury at trial. About five        Lucas denied having any knowledge of the cocaine found
minutes later, Lt. Linuel Allen arrived. Both troopers were         in the rental car that night. The defense’s theory at trial was
filled in on what was going on by Parker.                           that Presley was the one who had put the drugs into the car.
                                                                    Through the testimony of Quinney and Watts, the defense
  At some point Lt. Allen retrieved Lucas’s coat from the car,      brought out that Presley was alleged to have been in the car
and found in it $2,855, mostly in twenty-dollar bills. Lucas        immediately before Lucas took it on the night that she was
volunteered that this was her traveling money and that she          stopped. In addition, according to the testimony of the
had started off the trip with $3,000. Lucas further explained       women, Presley took the car for several hours, despite the fact
that she had been driving for about two hours and was on her        that his errand of grocery shopping should have been a short
way from Knoxville to Memphis in order to pick up a relative        trip. When he did arrive back, he did not have the groceries
and take them back to a Knoxville family reunion. It was            he was supposed to have gotten, and presumably he had
obvious to the officers that this was not true, since they were     plenty of time to purchase the drugs, using someone else’s car
not two hours from Knoxville.                                       for the transaction. Finally, there was testimony verifying the
                                                                    fact that Presley was furious with Lucas for driving off in the
  Prior to being handcuffed, Lucas was told to remove her           car and violently insistent that she return immediately, which
belongings from the car, because she was unlikely to get the        makes sense in view of the defense’s theory that Lucas had
car back. Hammett escorted Lucas to the front passenger             unwittingly driven off with Presley’s drugs, worth thousands
door, and she leaned in to gather her things. Lucas walked          of dollars.
back to the trooper’s car with her hands full. Shortly
thereafter, the troopers realized that the car was locked and
No. 02-5399                        United States v. Lucas     7    8      United States v. Lucas                        No. 02-5399

   It was also brought out at trial that Lucas had been                Court: You can certainly mention that somebody else
convicted of bank fraud conspiracy in 1994 (when she would             committed this crime, not the defendant; but whether you
have been about 28 years old), involving approximately                 can introduce a certified copy of a document to show this
$7,000 worth of traveler’s checks and the use of false                 person’s a convicted felon or not, that’s a bit of a stretch.
identification. She served a thirty-month sentence, during             Let’s wait and see. Don’t mention the certified copy of
which she was raped by prison guards repeatedly. In 1998,              the conviction or that he was a convicted felon until
she received a $500,000 settlement based on the sexual                 we’ve had an out-of-jury hearing. You can certainly
assault she claimed to have experienced while incarcerated,            present the defense that your client didn’t do it. It was
which she states she invested in real estate, a clothing store,        Morrell Presley’s drugs. You can certainly do that. I
and a nursing home facility, and which also could explain to           guess that’s the defense, isn’t it?
some extent the amount of money found on her at the time of
her arrest. Lucas testified at trial that she was worth                Defense Attorney: Yes, sir, Your Honor.
somewhere between $600,000 and $700,000; however, Lucas
filed a statement at sentencing admitting that she was wrong,      Later on at the same hearing, the court stated as follows:
claiming that she thought that the appraised value of her
property was the net worth of her property (without                    You can certainly testify or have evidence about Mr.
subtracting the amount of her mortgage). Lucas also testified          Presley, but unless something else develops of which I’m
at sentencing that she has worked with women in prison and             not now aware, I’m not going to let the prior conviction
with various international human rights groups since being             in because its probative value is greatly outweighed by
released from prison for her prior conviction.                         the prejudice.

                              II                                      The government argues that the court’s decision was
                                                                   correct and further submits that Federal Rule of Evidence
A. Presley’s Prior Conviction                                      404(b) prohibits the admission of this evidence because it
                                                                   prohibits introducing evidence of other crimes to prove the
  Lucas contends that the district court erred in prohibiting      character of a person in order to show action in conformity
the defense from presenting evidence of Presley’s prior            therewith. Although the district court did not explicitly rule
conviction for possessing and distributing cocaine, on the         that the evidence was inadmissible pursuant to Rule 404(b),
basis that it was irrelevant. Lucas claims that not only was       it did address this line of reasoning:
this an erroneous application of the Federal Rules of
Evidence, but that this exclusion unconstitutionally prevented         Court: [W]hy is it relevant that he’s been convicted of a
her from mounting a complete defense.                                  cocaine offense?

  A few days prior to trial, a certified copy of a conviction of       Defense Attorney: Because it shows his propensity to
Morell Presley was obtained, which reflected that Presley had          leave the cocaine in the car. He’s the one that had the car
previously been convicted of possessing cocaine with the               for several hours before Ms. Lucas had the car.
intent to distribute it. Lucas sought to introduce this evidence
and the court denied the request:                                      The Court: Aren’t prior convictions inadmissible to
                                                                       show propensity?
No. 02-5399                              United States v. Lucas             9    10   United States v. Lucas                     No. 02-5399

  ...                                                                            e.g., United States v. Stevens, 935 F.2d 1380, 1404 (3d Cir.
                                                                                 1991). See also United States v. Wilson, 307 F.3d 596, 601
  Well, this is an interesting question, gentlemen. I have                       (7th Cir. 2002). There is, therefore, some merit in
  never in thirty years had this one come up. It seems to                        considering the admissibility of such 404(b) evidence as
  me though that this is still the type of evidence that is far                  depending on a straightforward balancing of the evidence’s
  more prejudicial than probative. Whether Mr. Presley                           probative value under Rule 401 against Rule 403's
  had a prior cocaine conviction or not doesn’t mean that                        countervailing considerations of “prejudice, confusion of the
  he did or did not put the cocaine in this car. I’m going to                    issues, or misleading the jury, or by considerations of undue
  sustain the government’s objection to the testimony that                       delay, waste of time, or needless presentation of cumulative
  Mr. Presley was a convicted cocaine dealer.                                    evidence,” as suggested by the Third Circuit in Stevens, 935
                                                                                 F.2d at 1404 . However, in assessing the probative value of
(emphasis added).                                                                such evidence we must also recall that the Advisory
                                                                                 Committee Notes following Rule 401 explain that rules such
  We agree with the government that evidence of Presley’s                        as Rule 404 and those that follow it are meant to prohibit
prior conviction does come under Rule 404, although it falls                     certain types of evidence that are otherwise clearly “relevant
within a subset of such evidence sometimes called “reverse                       evidence,” but that nevertheless create more prejudice and
404(b)” evidence, in which the evidence of a prior act by                        confusion than is justified by their probative value. In other
another is offered as exculpatory evidence by the defendant,                     words, we affirm that prior bad acts are generally not
instead of being used by a prosecutor against a defendant.                       considered proof of any person’s likelihood to commit bad
See, e.g., United States v. Hill, 322 F.3d 301, 308 (4th Cir.                    acts in the future and that such evidence should demonstrate
2003). By its plain terms, Rule 404(b) mandates that                             something more than propensity.
“[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in                       Lucas’s defense is that Presley committed the crime, and
conformity therewith,” instead of restricting itself to evidence                 she did not. The defense wanted to introduce Presley’s
proving “the character of the accused.” Rule 404(b)                              conviction in order to demonstrate that in addition to access
(emphasis added).1                                                               to the car and his strange behavior, Presley had a propensity
                                                                                 for selling cocaine. The defense wants the jury to make the
  Nevertheless, we recognize, as do several of our sister                        inferential leap that because Presley sold drugs before, he is
circuits, that such evidence when presented by the defense,                      likely to have done so again.
requires us to reconsider our standard analysis, as the primary
evil that may result from admitting such evidence against a                         Lucas argues on appeal that, although she specifically
defendant -- by tainting his character -- is not present in the                  stated before the district court only that she would use the
case of 404(b) evidence used against an absent person. See,                      evidence of Presley’s conviction to prove propensity, this
                                                                                 information should have been admitted on the basis that it
                                                                                 could also have been used to prove knowledge and intent,
    1
       The rule does, in the next sentence, explicitly refer to “the accused.”   which are among several exceptions in Rule 404(b) that are
However, it does so in the context of notice requirements that must be           listed as purposes for which such testimony can be
followed by a prosecutor introducing such evidence against a defendant.          introduced. This argument is not convincing. Presley’s
This differential use of “the accused” provides additional evidence that
the first sentence is not intended to apply only to the accused.
                                                                                 knowledge of what cocaine is, or what it looks like, is not at
No. 02-5399                             United States v. Lucas         11     12   United States v. Lucas                       No. 02-5399

issue in this case. And certainly a prior conviction does not                 476 U.S. 683, 690 (1986) (holding that “the Constitution
demonstrate Presley’s intent to sell in the future. Such an                   guarantees criminal defendants a meaningful opportunity to
argument would turn the exception into the rule. If, instead,                 present a complete defense.”) (internal quotation marks and
it was shown that Presley had borrowed someone else’s car in                  citations omitted). As we have stated previously, a complete
which to do the prior drug deal or if he had packaged the                     defense does not imply a right to offer evidence that is
cocaine in the same way and had left it under the passenger’s                 otherwise inadmissible under the standard rules of evidence.
seat in the same way, the evidence of his prior drug deal                     Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en
might have been sufficiently probative, but the simple fact                   banc). See also Taylor v. Illinois, 484 U.S. 400, 410 (1988).
that he sold cocaine before is only minimally relevant.                       Lucas was able to explore her theory that Presley was in fact
                                                                              the culprit and present it to the jury through Quinney’s and
   We therefore hold that the standard analysis of Rule 404(b)                Watts’s testimony, as well as her own, describing his alleged
evidence should generally apply in cases where such evidence                  strange behavior and his alleged access to the car. The
is used with respect to an absent third party, not charged with               exclusion of Presley’s prior conviction did not violate Lucas’s
any crime. In this case, not only does the evidence not fall                  constitutional right to present a defense and was instead an
within the any of the exceptions, even if it did, the district                appropriate ruling by the district court in accordance with the
court did not err in determining that any probative value of                  Federal Rules of Evidence.
the prior bad act was outweighed by its prejudicial effect.
Introducing evidence of Presley’s prior conviction would                         Finally, we note that Federal Rule of Evidence 609 is not
have been prejudicial to fair consideration in that it would                  applicable to this case, though it was mentioned by the
have made it easier for the jury to lay the blame on Presley for              defense in its brief as an alternate ground for admitting
the drug deal despite evidence presented at trial.2 Under the                 Presley’s prior conviction. However, Rule 609 addresses
abuse of discretion standard, we will only reverse if we are                  only the ability of a party to impeach a witness through the
firmly convinced that a mistake has been made. Nida v. Plant                  introduction of prior convictions, specifically for the purpose
Protection Ass’n Nat’l, 7 F.3d 522, 527 (6th Cir. 1993).                      of attacking credibility. Because Presley was not a witness
Accordingly, the district court did not abuse its discretion in               (indeed, he has never been found nor his current existence
excluding this evidence.                                                      established), Rule 609 is not applicable.
  In addition, we hold that Lucas was not prevented from                      B. Prior Sexual Assault
presenting a complete defense, as she is entitled to do under
the Constitution, because of the district court’s decision to bar               Lucas contends that the district court abused its discretion
the admission of this evidence. See, e.g., Crane v. Kentucky,                 in determining that the prejudicial impact of admitting
                                                                              testimony regarding her prior sexual assault in prison
                                                                              outweighed any relevance these events had in explaining her
    2                                                                         nervous behavior when arrested. We hold that even if the
      In the Advisory Comm ittee Notes to Rule 403, it is explained that
“‘[u]nfair prejudice ’ within its context means an undue tendency to
                                                                              district court abused its discretion, any error was harmless and
suggest decisio n on an improper basis, com mon ly, though not necessarily,   thus nonreversible.
an emo tional one.” Here the jury might have made a decision that Presley
was the culp rit simply because of an unfair inference that because he had     The government, through the testimony of Trooper Earl
sold cocaine before, he had done so here, and not on the basis of actual      Hammett, introduced evidence at trial that Lucas had been
evidence linking him to the crime.
No. 02-5399                           United States v. Lucas         13     14    United States v. Lucas                       No. 02-5399

nervous when stopped by the Tennessee Highway Patrol.                         nervous out there? Why were you nervous out there? I
Specifically, Trooper Hammett stated in his testimony that                    need to be able to, without - - I fully respect what the
Lucas “got nervous after she found out that we were going to                  court is saying. We don’t need to talk about exactly what
try to get back in the car after it was locked.” The prosecutor               that was or give them the gruesome specifics, but I need
reiterated this fact in his closing argument to the jury, in                  to ask if her - - Can I ask her a question to the effect, Did
which he stated in relevant part:                                             you experience in prison - - you know, she’s actually
                                                                              been treated for post-traumatic stress syndrome, and I
  Now, once she realized that not only was she going to be                    want to know if I can ask her - -
  arrested but that the car was going to be towed, that’s
  when Trooper Hammett indicated that he had started                          The Court: You can certainly have her explain that she
  noticing some things. He indicated that when she was                        was nervous because she was afraid she was about to be
  asked to remove her items from the vehicle that he tried                    arrested and she didn’t want to be arrested. But that
  to flash the light inside of the car to assist her, and he                  doesn’t mean she gets to tell about all the intimate
  indicated that she was dodging the flashlight, his                          horrible details of prison.
  flashlight. He also told you that she became nervous.
                                                                              Defense Counsel: Could I mention, I suppose, because
   Lucas sought to counter this evidence by explaining that                   she spent time in prison, the fears that that’s caused her
she had been raped by male guards when she had previously                     through the years?
been in prison for conspiracy to commit bank fraud, and it
was for this reason that she had been nervous when told by                    The Court: Well, certainly.
the officers that she was under arrest.3 Furthermore, Lucas
wanted to explain that the federal government had paid her                    Defense Counsel: Something to that effect?
$500,000 in a settlement, because of the rapes she had
endured while in the prison system. The district court judge                  The Court: There’s absolutely nothing wrong with that.
agreed to allow Lucas to testify to the fact that she had                     But we’re not going to turn this into a demonstration that
received money in a lawsuit settlement, in order to explain the               we’ve got Mother Teresa here, who is a national TV star,
source of her money and to counter inferences made by the                     who was sexually abused in prison. None of those things
prosecution that the money came from drug dealing.                            have anything to do with this case.
However, the judge determined that she could not testify to
the fact that she had been raped. The following exchange                      We review a district court’s decision to exclude evidence
took place between the judge and Lucas’s lawyer on this                     for abuse of discretion. United States v. Bartholomew, 310
issue:                                                                      F.3d 912, 920 (6th Cir. 2002). “Under this standard, we will
                                                                            leave rulings about admissibility of evidence undisturbed
  Defense Counsel: Judge, all these issues have been                        unless we are ‘left with the definite and firm conviction that
  raised, and one of the issues has been, Why were you                      the [district] court . . . committed a clear error of judgment in
                                                                            the conclusion it reached upon a weighing of the relevant
                                                                            factors or where it improperly applies the law or uses an
                                                                            erroneous legal standard.’”
    3
      The Presentencing Report states that Lucas “was subjected to sexual
assaults and gang rap e while incarce rated at a men’s jail facility.”
No. 02-5399                      United States v. Lucas    15    16    United States v. Lucas                       No. 02-5399

Ibid. (quoting United States v. Haywood, 280 F.3d 715, 720       Fed. R. Evid. 401)). In addition, the risk of undue sympathy
(6th Cir. 2002)).                                                could have been managed to some extent by a limiting
                                                                 instruction. However, the Federal Rules of Criminal
  Lucas argues that the information regarding her rape in        Procedure provide that an error “which does not affect
prison was crucial to her defense. Lucas contends that the       substantial rights shall be disregarded.” Fed. R. Crim. P. 52.
“jury would assume she would not be unduly nervous [when         To determine whether barring this evidence was harmless
arrested] as she had experienced this before,” since she had     error, we consider the impact of the error upon the right of the
been incarcerated before, and thus she needed to explain her     defendant to a fair trial. United States v. Layne, 192 F.3d
nervous behavior. Lucas argues that the evidence of her          556, 573 (6th Cir. 1999).
having been raped was the only information that could
effectively counteract the inferences made by the prosecutor.      Lucas’s nervousness upon being faced by the police was
Lucas also contends that the information was not especially      not crucial to the prosecution’s case. The physical evidence
prejudicial, other than potentially producing sympathy for       of the drugs in the car she was driving, the cash in her pocket,
Lucas, which might have been minimized through a proper          and inconsistencies in her testimony as compared to the
limiting instruction by the district court.                      statements she made to the officers the night she was arrested
                                                                 on such issues as the existence of a family reunion, constitute
  The government argues that Lucas’s rape in prison was not      convincing evidence, so that even if barring the evidence of
relevant, since “[a] sexual assault that occurred seven years    Lucas’s prior sexual assault was done in error, it was harmless
earlier than the charged drug offense does not negate any        error that does not warrant the grant of a mistrial.
elements of cocaine possession.”
                                                                 C. The Batson Challenge
   Under the Federal Rules of Evidence, all relevant evidence
is admissible. See Fed. R. Evid. 402. However, a court may         Whether a party exercised its peremptory challenges in a
exclude relevant evidence whose “probative value is              discriminatory manner is a finding of fact, which we review
substantially outweighed by the danger of unfair prejudice,      for clear error. United States v. Bartholomew, 310 F.3d 912,
confusion of the issues, or misleading the jury, or by           919 (6th Cir. 2002).
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.             The jury venire for this trial included only two African-
                                                                 Americans and the prosecutor exercised a peremptory
  The fact that Lucas was raped while in prison is technically   challenge to exclude one of those jurors, Ms. Green, from the
relevant, as it suggests that her behavior, which might          jury. Lucas objected to this challenge, noting that there did
otherwise be taken as evidence of guilt and was argued as        not appear to be any cause for eliminating her from the jury,
such by the prosecution, was potentially explainable for other   other than the fact that she was black. The prosecutor
reasons. See, e.g., Robinson v. Runyon, 149 F.3d 507, 512        represented that he was using a peremptory challenge to
(6th Cir. 1998) (noting that the rules regarding relevance are   remove Ms. Green because she had given the “impression that
“quite liberal,” since “‘evidence having any tendency to make    . . . she just didn’t want to be [there],” and “had indicated that
the existence of any fact that is of consequence to the          she had been divorced before [–] we knew that might be a
determination of an action more probable or less probable        factor.” The district court found that the Government had
than it would be without the evidence’ is relevant.” (quoting
No. 02-5399                       United States v. Lucas     17    18    United States v. Lucas                       No. 02-5399

articulated a legitimate nondiscriminatory reason for the          authority to depart downward, since there is “no duty on the
challenge and permitted Ms. Green’s removal.                       trial judge to state affirmatively that he knows he possesses
                                                                   the power to make a downward departure, but declines to do
  A Batson claim is analyzed in three steps. First, the            so.” United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995).
defendant must make a prima facie showing that the
prosecutor removed a potential juror for a discriminatory             Lucas argues that the district court should have granted a
reason. If the defendants make this showing, the second step       downward departure in her sentence on the basis of her rape,
requires the prosecutor to articulate a nondiscriminatory          and of the charity work that she did for Amnesty International
reason for the removal. Assuming that the prosecutor does          and Human Rights Watch. The government contends not
so, the third step requires the trial court to determine whether   only that the district court understood that it was able to grant
the opponent of the peremptory strike has proven purposeful        a downward departure, but also that doing so would not have
discrimination. See, e.g., United States v. Yang, 281 F.3d         been reasonable under the circumstances.
534, 548-49 (6th Cir. 2002), cert. denied, 123 S. Ct. 1015
(2003).                                                              The district court, in making this ruling, stated as follows:

   In reviewing the government’s race-neutral explanation, we        Now, concerning the defendant’s prior incarceration, it is
need not find that the reason given is “persuasive, or even          tragic and unfortunate what happened to Ms. Lucas when
plausible.” Id. at 548. All that is necessary is that the reason     she was in federal custody on her prior conviction. It is
not be inherently discriminatory. Id. at 548-49. It is,              not the purpose of prisons to inflict that sort of injury and
therefore, difficult to conclude in this case that the district      damage upon someone, and I regret seriously that that
court made a clear error in determining that the prosecutor’s        happened to Ms. Lucas. But that’s not a basis for a
peremptory challenge was free of race bias, since there is no        downward departure in this case. I’m sure it was very
other evidence of discriminatory bias and the prosecutor did         distressing to the defendant, but that is not – there’s not
not exercise a peremptory challenge in order to eliminate the        a showing that the mental effect of that tragic incident
other one of two black persons from the jury. United States          affected her responsibility in this case or is – and it’s not
v. Sangineto-Miranda, 859 F.2d 1501, 1520-21 (6th Cir.               a basis for any sort of downward departure.
1990) (holding that the final makeup of the jury is relevant to
a finding of discrimination). We therefore affirm the district          Also, her work for Amnesty International and the other
court’s ruling on this issue.                                        human rights organizations, that’s commendable. That
                                                                     came about as a result of her being a victim, I suspect,
D. Downward Departure                                                It’s good work, but it is not a basis for a downward
                                                                     departure in this case.
  A district court’s failure to grant a downward departure can
only be reviewed by us upon appeal if the lower court              (emphasis added).
erroneously believed that it lacked authority to grant such a
departure as a matter of law. See United States v. Owusu, 199        The district court does not state that it does not have the
F.3d 329, 349 (6th Cir. 2000); United States v. Landers, 39        ability to depart downwards in general. Instead, it states that
F.3d 643, 649 (6th Cir. 1994). Furthermore, the district court     there was no basis for a departure in this case. Therefore, we
need not explicitly state that it is aware of its discretionary    have no jurisdiction to consider this part of the appeal.
No. 02-5399                 United States v. Lucas   19   20       United States v. Lucas                            No. 02-5399

                      III                                                       ___________________
  For the reasons given above, we AFFIRM Lucas’s                                  CONCURRENCE
conviction and subsequent sentence.                                             ___________________

                                                             ROSEN, District Judge, concurring. I agree with the
                                                          majority and join in affirming Lucas’s conviction and
                                                          sentence. I write separately, however, on the “reverse 404(b)”
                                                          issue discussed in Part II of the majority opinion as I find the
                                                          relevancy/prejudice test and rationale set out by the Third
                                                          Circuit in United States v. Stevens, 935 F.3d 1380 (3rd Cir.
                                                          1991), more compelling than the standard Rule 404(b)
                                                          analysis adopted by the majority where, as here, the prior
                                                          “bad act” is that of an absent third party, not that of the
                                                          defendant, and the evidence is not being used by a prosecutor
                                                          against a defendant, but rather is offered as exculpatory
                                                          evidence by the defendant.
                                                            Lucas’s defense at trial was that Morell Presley, not Lucas,
                                                          committed the crime with which she was charged. To support
                                                          this defense, Lucas sought to admit evidence of Presley’s
                                                          prior conviction for possession with intent to distribute
                                                          cocaine. The district court denied this request finding that it
                                                          was more prejudicial than probative.             Although not
                                                          disagreeing with the district court’s finding, the majority now
                                                          holds that the straightforward relevance/prejudice analysis
                                                          under Rules 401 and 403 is inapplicable in the context of
                                                          “reverse 404(b)” evidence.1 Under the majority’s ruling here,


                                                               1
                                                                To the extent that the majority’s opinion can be read to imply that
                                                          a Rule 403 probative value/prejudice analysis is not part of a traditional
                                                          Rule 404 (b) analysis, that wo uld be an inaccura te statement of the law.
                                                          W ell-settled law clearly provides that a Rule 403 balancing is an essential
                                                          part of a Rule 40 4(b) analysis. See e.g., U nited States v. Largent, 545
                                                          F.2d 103 9, 10 43 (6th Cir.197 6), cert. denied, 429 U.S. 109 8 (1977 );
                                                          United States v. Ring, 513 F.2d 10 01, 1005 (6th Cir. 197 5); United States
                                                          v. Blan kenship, 775 F.2d 735, 739 (6th Cir. 198 5); United States v. Vance,
                                                          871 F.2d 572 , 575 ( 6th Cir. 19 89), cert. denied, 493 U.S. 933 (1989);
                                                          United States v. Blakeney, 942 F.2d 10 01, 1018 (6th Cir. 19 91), cert.
No. 02-5399                       United States v. Lucas    21    22   United States v. Lucas                      No. 02-5399

evidence of “other crimes,” whether offered to incriminate or     litigation -- in particular, the criminal defendant -- from the
to exonerate the defendant, is subject to a straightforward       prejudice of the propensity/character taint danger.
application of Rule 404(b).                                       Rule 404(b)’s basic rule of exclusion -- that evidence of other
                                                                  crimes, wrongs, or acts is not admissible to prove the
  Fed. R. Evid. 404(b) provides:                                  character of a person in order to show action in conformity
                                                                  therewith -- has its source in the common law. The common
  Evidence of other crimes, wrongs, or acts is not                law rule was that “the doing of a criminal act, not part of the
  admissible to prove the character of a person in order to       issue, is not admissible as evidence of the doing of the
  show action in conformity therewith. It may, however,           criminal act charged.” See Wigmore, Code of Evidence, 3d
  be admissible for other purposes such as proof of motive,       ed., p. 81. See also, United States v. Dudek, 560 6th F.2d
  opportunity, intent, preparation, plan, knowledge,              1288, 1295-96 (6th Cir. 1977) (noting that Fed. R. Evid.
  identity, preparation, plan, knowledge, identity, or            404(b) restates the common law). The policy underlying the
  absence of mistake or accident.                                 common law rule was the protection of the criminal
                                                                  defendant. See Wright & Graham, Federal Practice and
  Observing that the Rule is directed to evidence of other acts   Procedure: Evidence, § 5239, pp. 436-439.
of “a person” and not only the other acts of “a defendant,” the
majority finds that the standard Rule 404(b) analysis should         Rule 404(b) continues the policy of the common law. Id.
apply with respect Morell Presley’s prior conviction for          at 439. This is clear from this Court’s observation in United
possession with intent to distribute cocaine. Because Lucas       States v. Phillips, 599 F.2d 134 (6th Cir. 1979). In Phillips,
failed to demonstrate that Presley’s conviction could have        the Court noted that Rule 404(b)’s exclusionary rule
been offered for any purpose other than to prove Presley’s        addresses two main policy concerns:
propensity to commit the crime with which Lucas was
charged, the majority finds admission of the evidence to be         (1) that the jury may convict a “bad man” who deserves
precluded by a straightforward application of Rule 404(b).          to be punished not because he is guilty of the crime
                                                                    charged but because of his prior or subsequent misdeeds;
  Although at first blush, the majority’s “plain language of        and (2) that the jury will infer that because the accused
the rule” approach carries some weight and finds some               committed other crimes, he probably committed the
support in the case law, a closer examination of the policies       crime charged.
underlying Rule 404(b) and the case law addressing the
“reverse 404(b)” evidence issue, persuades me that the Rule       599 F.2d at 136.
404(b) should not be applied in cases where, as here, the
defendant offers prior act evidence of a third party to prove       Professor Weissenberger explained these policy concerns
some fact -- even propensity -- relevant to the defense.          in his treatise as follows:
  First, both the source and policy underlying Rule 404(b)          [E]vidence of the extrinsic act is excluded because it is
demonstrate that the Rule is intended to protect a party to the     thought that the jury might punish an individual for the
                                                                    discrete conduct rather than weighing only the direct
                                                                    evidence of the charged crime. Another policy
                                                                    supporting Rule 404(b) is a recognition of the danger that
denied, 502 U .S. 1035 (199 2).
No. 02-5399                        United States v. Lucas       23    24   United States v. Lucas                       No. 02-5399

  the jury may misestimate the probative value of the                 572, 582 (1st Cir. 1987), cert. denied, 484 U.S. 989; United
  extrinsic act evidence in evaluating its significance . . . .       States v. Aboumoussallem, 726 F.2d 906, 911-912 (2nd Cir.
  The natural and inevitable tendency of the tribunal --              1984); United States v. Stevens, 935 F.3d 1380 (3rd Cir.
  whether judge or jury -- is to give excessive weight to the         1991); United States v. Krezdorn, 639 F.2d 1327, 1332-33
  vicious record of crime thus exhibited, and either to               (5th Cir. 1981), cert. denied, 465 U.S. 1066 (1984); United
  allow it to bear too strongly on the present charge, or to          States v. Morano, 697 F.2d 923, 926 (11th Cir. 1983). These
  take proof of it as justifying a condemnation irrespective          courts were persuaded by the policy underpinnings of Rule
  of guilt of the present charge.                                     404(b). The Eleventh Circuit’s explanation in United States
                                                                      v. Krezdorn, supra, is illustrative:
Weissenberger’s Federal Evidence, § 404.12 3d. ed. (1998).
                                                                          The extrinsic acts rule is based on the fear that the jury
  The foregoing discussion demonstrates that the principal              will use evidence that the defendant has, at other times,
policy consideration underlying Rule 404(b)’s exclusionary              committed bad acts to convict him of the charged
rule is to protect the parties in an action, and in particular,         offense. Consequently, where the only purpose served
criminal defendants, from the danger of unfair prejudice. The           by extrinsic offense evidence is to demonstrate the
danger of prejudice to a party -- particularly a criminal               propensity of the defendant to act in a certain way, the
defendant -- however, does not exist in the context of “reverse         evidence must be excluded. When, however, the extrinsic
404(b)” evidence where, as here, the defendant offers                   offense was not committed by the defendant, the
evidence of other crimes or bad acts of a third party                   evidence will not tend to show that the defendant has a
exculpatorily.                                                          criminal disposition and that he can be expected to act in
                                                                        conformity therewith. When the evidence will not
   Notwithstanding these policy considerations, because of the          impugn the defendant’s character, the policies underlying
language used in Rule 404(b), i.e., the use of “a person”               Rule 404(b) are inapplicable.
instead of “a party”, the courts have not treated “reverse
404(b)” evidence uniformly and the circuits are divided on the        639 F.2d at 1332-1333 (citations omitted).
issue of the Rule’s applicability with regard to such evidence.
The Seventh and the Ninth Circuits, like my colleagues on the           Courts adopting the policy approach to Rule 404(b) found
panel in this case, have taken a “plain language” approach,           that policy considerations were particularly persuasive with
and because Rule 404(b) speaks not of the parties to a case           regard to evidence of acts of third parties offered
but of “a person,” have held that Rule 404(b) applies not only        exculpatorily by criminal defendants. For example, in United
to the extrinsic acts of the parties but also to the acts of absent   States v. Aboumoussallem, supra, a narcotics trafficking
third parties. See Agushi v. Duerr, 196 F.3d 754, 759-761             defendant sought to offer in support of his defense that he had
(7th Cir. 1999); United States v. McCourt, 925 F.2d 1229 (9th         been duped into transporting the drugs by his cousins
Cir. 1991).                                                           evidence that a few months earlier, another individual had
                                                                      been similarly duped by these same cousins to transport
  However, the First, Second, Third, Fifth and Eleventh               narcotics. The district court excluded the evidence as not
Circuits have taken the opposing view and have all                    relevant, more prejudicial than probative, and not admissible
determined that Rule 404(b) is not applicable to evidence of          under Rule 404(b). The Second Circuit disagreed with the
acts of third parties. See United States v. Gonzalez, 825 F.2d        district court’s determination that the defendant’s proffered
No. 02-5399                     United States v. Lucas     25   26   United States v. Lucas                        No. 02-5399

evidence was not relevant and inadmissible under Rule             The absence of prejudice in the context of “reverse 404(b)”
404(b), explaining:                                             evidence was similarly emphasized by the Third Circuit in
                                                                Stevens, supra, 935 F.2d at 1404, and by the New Jersey
    We believe the standard of admissibility when a             Supreme Court in State v. Garfole, 76 N.J. 445, 388 A.2d 587
 criminal defendant offers similar acts evidence as a           (1978), which both the Stevens court and the Aboumoussallem
 shield need not be as restrictive as when a prosecutor         court cited with approval:
 uses such evidence as a sword. The prosecution, in the
 Anglo-American tradition, may not ordinarily offer                 . . .[O]ther-crimes evidence submitted by the
 evidence of a defendant’s prior wrongdoing for the               prosecution has the distinct capacity of prejudicing the
 purpose of persuading the jury that the defendant has a          accused. Even instructions by the trial judge may not
 propensity for crime and is therefore likely to have             satisfactorily insulate the defendant from the hazard of
 committed the offense for which he stands trial. As Dean         the jury using such evidence improperly to find him
 Wigmore points out, the evidence is objectionable not            guilty of the offense charged merely because they believe
 because it has no appreciable probative value but because        he has committed a similar offense before. . . . But when
 it has too much. Presumably, the “too much” argument             the defendant is offering that kind of proof exculpatorily,
 means that a guilty person, and, of far more serious             prejudice to the defendant is no longer a factor, and
 concern, an innocent person, may be convicted primarily          simple relevance to guilt or innocence should suffice as
 because of the jury’s willingness to assume his present          the standard of admissibility, since ordinarily, and
 guilt from his prior misdeed.                                    subject to rules of competency, an accused is entitled to
                                                                  advance in his defense any evidence which may
    Wigmore also identifies objections based on the risk          rationally tend to refute his guilt or buttress his innocence
 that the jury will convict because the defendant may not         of the charge made.
 have been punished for his prior offenses and the
 injustice of requiring the defendant to defend against a       Id., 76 N.J. at 452-53, 388 A.2d at 591 (footnote omitted).
 series of accusations. These possibilities of prejudice
 must be assessed even in cases where the prosecutor              It was precisely because of the absence of prejudice to the
 offers similar acts evidence, not to prove the character of    defendant that the Third Circuit held in Stevens that
 the accused, but to prove one of the permissible               admissibility of “reverse 404(b)” evidence was governed by
 subsidiary facts listed in Rule 404(b), such as intent or      the relevancy/prejudice considerations of Fed. R. Evid. 401
 plan. However, risks of prejudice are normally absent          and 403:
 when the defendant offers similar acts evidence of a
 third party to prove some fact pertinent to the defense.         We agree with the reasoning of Garfole and with its
 In such cases the only issue arising under Rule 404(b)           holding that the admissibility of “reverse 404(b)”
 is whether the evidence is relevant to the existence or          evidence depends on a straightforward balancing of the
 non-existence of some fact pertinent to the defense.             evidence’s probative value against considerations such as
                                                                  undue waste of time and confusion of the issues.
726 F.2d at 911-912 (citations and footnotes omitted;             Recasting this standard in terms of the Federal Rules of
emphasis added).                                                  Evidence, we therefore conclude that a defendant may
                                                                  introduce “reverse 404(b)” evidence so long as its
No. 02-5399                      United States v. Lucas     27    28       United States v. Lucas                             No. 02-5399

  probative value under Rule 401 is not substantially             Presley, whose character would be tainted, is not a party.
  outweighed by Rule 403 considerations. . . . [Thus], a          Therefore, the more rigidly constructed constraints of Rule
  defendant must demonstrate that the “reverse 404(b)”            404(b) need not and should not apply. Instead, this should be
  evidence has a tendency to negate his guilt, and that it        treated as a simple relevance issue and, since the proffered
  passes the Rule 403 balancing test.                             evidence has a tendency to negate Lucas’s guilt, it passes
                                                                  Rule 401 relevancy muster.
935 F.2d at 1404-05 (footnote omitted).
                                                                     This leaves only the Rule 403 part of the analysis. The
   I agree with the reasoning of the Second and Third Circuits.   disputed evidence is especially probative here because the
In my view, the simple fact that proffered evidence involves      Defendant testified and her credibility was, in the absence of
somebody’s prior bad act -- not the defendant’s -- does not       much other independent evidence showing her involvement
automatically bring it under the Rule 404(b) rubric and           with the drugs, an important element for the jury to weigh.
admission standard. The entire 404(b) paradigm is intended        Unlike the district court, I would have found that the
to protect a party to the litigation from the prejudice of the    probative value of the evidence of Presley’s prior conviction
propensity/character taint danger. The danger of prejudice to     was not substantially outweighed by the dangers of prejudice
a party, -- particularly a criminal defendant -- however, does    or confusion, particularly with the availability of a limiting
not exist in the context of “reverse 404(b)” evidence; indeed,    instruction, and would have admitted the evidence. But, the
it is that party which the Rule is intended to protect who is     standard of review is abuse of discretion, and although I
offering the evidence.                                            believe this presents a close question, the fact that I would
                                                                  have admitted the evidence does not mean that the trial judge
  I find the Third Circuit’s reasoning particularly persuasive    here abused his discretion in excluding it. I am particularly
and would apply the relevancy/prejudice test established in       persuaded that there is no abuse of discretion here since the
Stevens here because, where the character interests and           issue is a close one and there is a split in the circuits as to the
inferences of a party are not implicated, there is simply no      appropriate standard to apply to reverse 404(b) evidence --
evidentiary policy or purpose served by precluding a              and, I agree with the majority that the only use of the
propensity consideration by the jury that is not already          evidence here would have been for the propensity inference,
addressed by the traditional Rule 401/403 evidentiary             and that is not permitted by the straightforward Rule 404(b)
analysis. (For example, any concerns about prejudice to a         analysis applied by the majority and the other circuits that
party -- here, the Government -- or confusion of the issues, by   have adopted this test.2 Accordingly, with respect to the
admission of the evidence would be adequately dealt with in
the context of a Rule 403 analysis.)
                                                                       2
  In this case, there seems little doubt that Presley’s prior           I have somewhat the same view about the jail rape evidence offered
conviction for cocaine distribution would tend to negate          by way of explanation for Defendant’s nervousness. The rather
Lucas’s guilt by corroborating her defense that the drugs were    circum scribed, limited testimony she was allow ed to give -- that she was
                                                                  afraid of going to jail (as would be most people) hardly gives the same
Presley’s, not hers, albeit through the propensity inference,     texture and context to her nervous reaction as does the purported real
and there can be no serious question, therefore, that such        reason (i.e., the rape experience). Indeed, taken alone, the limited “afraid
evidence is relevant. Further, the danger of character taint      of going to jail” reason she was allowed to testify to seems to be a weak
posed by the propensity inference is not present here because     one and the jury might well have been misled by it. But again, although
                                                                  I might have allowed Defendant to testify that she was rap ed while in jail,
No. 02-5399                          United States v. Lucas         29

reverse 404(b) issue, I concur in the result reached by
majority although not in its analysis. With respect to all of
the other issues presented, I join in the majority opinion.




I cannot say that the trial judge abused his discretion in keeping that
testimony out.
