                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a1038n.06

                                           No. 12-6180

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                                               FILED
UNITED STATES OF AMERICA,                                )               Dec 18, 2013
                                                         )           DEBORAH S. HUNT, Clerk
          Defendant-Appellee,                            )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Western
RODERICK RAY,                                            )   District of Tennessee
                                                         )
          Plaintiff-Appellant.                           )


Before:          BOGGS and SUTTON, Circuit Judges; and CLELAND, District Judge.*

          BOGGS, Circuit Judge. Roderick Ray appeals his conviction, after a jury trial, for

possession of 834 grams of cocaine with intent to distribute. Ray argues that the court erred in

admitting six incidents of prior drug possession and distribution under Federal Rule of Evidence

404(b), both as being inadmissible in their own right for lack of probative value and also because

the admission of this evidence was unfairly prejudicial. For the following reasons, we affirm Ray’s

conviction.




          *
       The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
I




2
       On the night of March 17, 2011, police attempted to stop a speeding car on Interstate 155

in Dyer County, Tennessee. As the vehicle was slowing down but still in motion, the passenger-side

door opened and Ray jumped out carrying a small plastic bag. He fled the scene, climbing a fence

to hide in the grounds of a factory. Upon the arrival of additional officers, the police conducted an

extensive search of the fenced-in area and Ray was eventually discovered hiding atop a storage tank.

No bags or containers were discovered at the time of his detention but the police, with the assistance

of drug dogs, searched the surrounding area, hoping to find the bag that Ray had been observed

carrying. In due course, the dogs led the police to discover a bundle on the roof adjacent to Ray’s

hiding place. It contained two Ziploc bags full of a white, powdery substance later identified as

cocaine.

       On November 14, 2011, a federal grand jury indicted Ray on one count of possession, with

intent to distribute, of approximately 834 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1).

Before the trial, the government filed a notice of intent to introduce “prior acts” evidence under

Federal Rule of Evidence 404(b), followed by a motion in limine seeking the admission of evidence

regarding a number of prior incidents of Ray’s possession and distribution of crack. At the

conclusion of a pre-trial hearing, the court held its ruling in abeyance until trial.

       A three-day jury trial began on June 25, 2012. On the second day of trial, following the

testimony of six witnesses for the prosecution, the court held a hearing, outside the presence of the

jury, to determine the admissibility of the government’s proposed Rule 404(b) evidence, ultimately

granting the government’s motion. On June 27, the jury returned a guilty verdict on the charge in

the indictment. Ray was sentenced to 124 months in prison followed by four years of supervised

release. Ray timely appealed.


                                                   3
                                                 II



       We review a district court’s rulings under Federal Rule of Evidence 404(b), as we review

all evidentiary rulings, for abuse of discretion. See United States v. Allen, 619 F.3d 518, 523 (6th

Cir. 2010).

       Recently, there has been a seeming split within our circuit as to the proper standard to apply

in reviewing Rule 404(b) decisions. The first standard, commanded by the Supreme Court and our

own precedent, is the simple abuse-of-discretion standard we apply here. See General Electric v.

Joiner, 522 U.S. 136, 141–142 (1997) (“We have held that abuse of discretion is the proper standard

of review of a district court’s evidentiary rulings.”); Trepel v. Roadway Exp., Inc., 194 F.3d 708,

718–19 (6th Cir. 1999) (reviewing for abuse of discretion in another context because Joiner’s

“sweeping ‘all evidentiary ruling’ statement rather clearly means what it says.”).

       The second standard, which we decline to follow here, follows a three-step process

employing a different level of deference at each step, mirroring the three steps employed by district

courts in making Rule 404(b) determinations. See United States v. Clay, 667 F.3d 689, 693 (6th Cir.

2012). Recent efforts to cast the three-step 404(b) analysis as the equivalent of abuse-of-discretion

review notwithstanding, heightened standards, no matter how they are characterized, must be

discarded because they “fail[] to give the trial court the deference that is the hallmark of abuse of

discretion review.” Joiner, 522 U.S. at 143. But see United States v. Daniel, 398 F.3d 540, 544 (6th

Cir. 2005) (finding multi-step analysis in accord with Supreme Court mandate because, “it is an

abuse of discretion to make errors of law”).




                                                 4
       Accordingly, we review the trial court’s evidentiary decisions for abuse of discretion which,

“is evident when the reviewing court is firmly convinced that a mistake has been made.” Ross v.

Duggan, 402 F.3d 575, 581 (6th Cir. 2004). A court abuses its discretion when it, “relies on clearly

erroneous findings of fact, or when it improperly applies the law.” Ibid. Under the abuse-of-

discretion standard, “[b]road discretion is given to district courts in determinations of admissibility

based on considerations of relevance and prejudice, and those decisions will not be lightly

overruled.” United States v. Chambers, 441 F.3d 438, 455 (6th Cir. 2006). Accordingly, we “will

leave rulings about admissibility of evidence undisturbed unless we are left with the definite and

firm conviction that the district court committed a clear error of judgment.” United States v. Dixon,

413 F.3d 540, 544 (6th Cir. 2005) (internal alteration marks omitted).



                                                  III



       Ray claims that the trial court improperly admitted “prior acts” evidence under Rule 404(b).

Specifically, Ray contests the admission of evidence of six prior instances of possession and

distribution of crack cocaine. His appeal boils down to two arguments. First, Ray claims that the

prior-acts evidence was inadmissible in its own right under Rule 404(b) because the only potentially

legitimate reason for its admission, to show intent, was barred because the prior acts were too

dissimilar in quantity and type of drug from the charged offense to be admissible. Appellant Br.

25–26. Second, Ray argues that, in any event, the 404(b) evidence should not have been admitted

because the prejudicial effect of the evidence substantially outweighed its probative value.

Appellant Br. 25–26.


                                                  5
       District courts follow a three-step process in evaluating the admissibility of prior-acts

evidence under Fed. R. Evid. 404(b):

       First, the district court must decide whether there is sufficient evidence that the other
       act in question actually occurred. Second, if so, the district court must decide
       whether the evidence of the other act is probative of a material issue other than
       character. Third, if the evidence is probative of a material issue other than character,
       the district court must decide whether the probative value of the evidence is
       substantially outweighed by its potential prejudicial effect.

Clay, 667 F.3d at 693. We review each step of this process for abuse of discretion. Because Ray

concedes step one for the purpose of this appeal, we need only review the district court’s decisions

at the second and third steps. Appellant Br. 22.



                                                   A



       In the second step of its analysis, the district court explicitly admitted the prosecution’s prior-

acts evidence under Rule 404(b) to show motive, opportunity, intent, plan, absence of mistake, and

lack of accident. Ray claims that the district court erred because the evidence was not probative of

any material issue. In doing so, he advances two complementary theories. First, Ray relies on our

statement in United States v. Bell, 516 F.3d 432, 442 (6th Cir. 2008), that the prosecution can only

introduce evidence that the defendant “has placed, or conceivably will place, in issue” to argue that

the court admitted the 404(b) evidence in error because he did not offer a defense, but instead rested

at trial. Appellant Br. 22–23. Second, he argues that the evidence could not be admitted to prove

intent because the acts admitted under 404(b) (the possession and distribution of small quantities of

crack) and the crime charged (the possession of a significant quantity of cocaine with the intent to

distribute) are insufficiently similar to satisfy the requirements of Clay, 667 F.3d at 696.

                                                   6
        As to Ray’s first argument, he is correct to suggest that Bell (a case that dealt solely with

404(b) evidence showing absence of mistake and lack of accident and intent) restricts the admission

of 404(b) evidence to that found probative of a material issue. Bell, 516 F.3d at 442. He appears,

however, to read Bell’s holding to mean that 404(b) evidence can only be admitted either to

demonstrate an element of a charged offense or to disprove a defense that has already been asserted.

Appellant Br. 19. According to this reading, Ray claims that Bell protects him from the introduction

of any 404(b) evidence for any purpose other than to show intent (an admitted element of

possession) simply because he “did not put on a defense, he merely rested his case as soon as the

government finished putting on its case.” Appellant Br. 23.

        This is a misreading of Bell. Understanding Bell’s holding requires a brief examination of

the case upon which Bell was based: United States v. Merriweather, 78 F.3d 1070 (6th Cir. 1996).

The Merriweather court, in elucidating the notice requirements placed on the government by Rule

404(b), stated that in order to admit Rule 404(b) evidence, a trial court is bound to “determine

whether the identified purpose, whether to prove motive or intent or identity or some other purpose,

is ‘material’; that is, whether it is ‘in issue’ in the case.” Merriweather, 78 F.3d at 1076–77.

        But the Merriweather court appreciated the complexities faced by trial judges weighing

evidentiary decisions, stating that whether 404(b) evidence is admissible, “will sometimes be unclear

until late in the trial because . . . [it] often depends on the defendant’s theory and the proofs as they

develop.” Id. at 1076. It is for this reason that the court restricted the admissibility of 404(b)

evidence only by requiring that it be relevant to “a fact that the defendant has placed, or conceivably

will place, in issue, or a fact that the statutory elements obligate the government to prove.” Ibid.

(emphasis added).


                                                   7
        Thus, Merriweather allows the government, under the watchful eye of the trial judge, to offer

evidence necessary to anticipate a defendant’s tactics at trial. It does not, as Ray would have us

believe, restrict the prosecution’s evidence in its case-in-chief to only that evidence necessary to

prove elements of the crime or to address material issues that the defendant has himself already put

in issue. The defense cannot immunize itself from the introduction of relevant 404(b) evidence by

the simple expedient of silence. In fact, this very case demonstrates why such latitude must be

afforded the prosecution. The first (and only) time the defense raised the issue of mistake (by

implying that Ray might not have known the contents of the bag), was in its closing argument.

Under Merriweather, once the prosecution had anticipated such a tactic, it was permitted under Rule

404(b) to admit the evidence necessary to counteract the effects of a potential eleventh-hour

introduction by the defense because it was “conceivable” that the defendant could have employed

those tactics.

        The court did not abuse its discretion by admitting the other-acts evidence under Rule 404(b)

for purposes other than to show intent.

        Ray’s second argument fares even worse. He concedes, as he must, that because he was

charged with a specific-intent crime the prosecution may submit other-acts evidence in order to

demonstrate intent. Appellant Br. 22. He offers two arguments, however, as to why this particular

404(b) evidence is inadmissible, despite the fact that prior acts of drug distribution have been found

to be probative of a defendant’s intent to commit drug crimes. See United States v. Matthews, 440

F.3d 818, 830 (6th Cir. 2006).

        First, Ray highlights the disparate quantities of drugs involved in the charged offense (834

grams) and in the 404(b) evidence (less than 5 grams in each incident). Citing Clay, Ray hopes to


                                                  8
persuade us that the possession of a large amount of cocaine a matter of days after several attempts

to sell smaller amounts of crack is, “too unrelated and too far apart in time to be probative of

[specific intent].” United States v. Clay, 667 F.3d 689, 696 (6th Cir. 2012). There can be no doubt

that the acts brought in under Rule 404(b) were close enough in time to be admissible—all were

committed within several weeks of the charged offense. As to the dissimilarity in quantity, the

government is quite right to point to our earlier holding that a “conviction for trafficking at least .5

grams of cocaine is substantially similar to the current charge . . . regardless of the difference in the

quantity of cocaine underlying the two charges.” United States v. Love, 254 F. App’x 511, 516 (6th

Cir. 2007). See also United States v. Hicks, 798 F.2d 446, 451 (6th Cir. 1986) (“Although the

amounts . . . were substantially smaller . . . the extrinsic and charged offenses show a similar

willingness to traffic in cocaine.”). The difference in quantity is not sufficiently material to render

the other-acts evidence inadmissible.

        Second, Ray challenges the admission of the evidence because, he claims, cocaine and crack

are not the same narcotic. We have allowed the introduction of evidence of crack possession to

show intent with regard to cocaine in the past. See, e.g., United States v. Myers, 123 F.3d 350 (6th

Cir. 1997). In addition, the government introduced the evidence of crack sales specifically to

demonstrate Ray’s intent to employ the large quantity of cocaine in the manufacture and sale of

small quantities of crack. The evidence was, therefore, properly admitted to show intent.

        Even if Ray were correct in his reading of Bell, and the court should not have introduced

evidence under Rule 404(b) for reasons other than to show intent, it does not affect the ultimate

admissibility of the evidence. If the trial court admitted evidence for a single legitimate reason, the

court’s articulation of additional erroneous reasons is of no consequence. See United States v.


                                                   9
Garcia-Meza, 403 F.3d 364, 368 (6th Cir. 2005). Put another way: “[w]here a single, legitimate

purpose supports the admission of the evidence under Rule 404(b), a trial court’s admission of that

evidence for additional reasons allowed under the rule does not constitute plain error.” United States

v. Stevens, 303 F.3d 711, 716 (6th Cir. 2002). In this case, the evidence was correctly admitted to

show intent. Therefore, even if Ray were correct that it should not have been admitted for other

Rule 404(b) purposes, the trial court did not abuse its discretion since it was admitted for at least one

legitimate purpose.

        Because the district court admitted the government’s 404(b) evidence, at the very least

correctly admitting it to demonstrate intent, the court did not abuse its discretion at the second step

of its Rule 404(b) analysis.



                                                   B



        In the third step, the court weighed the probative value of the 404(b) evidence against its

potential unfair prejudice according to the requirements of Rule 403, according to which “[t]he court

may exclude relevant evidence if its probative value is substantially outweighed by the danger of . . .

unfair prejudice, confusing the issues, [or] misleading the jury . . . .” Fed. R. Evid. 403(a). In

weighing the other-acts evidence, the court explicitly found that the prejudicial effect of the

evidence did not outweigh its probative value. Ray argues that the court was in error, and that the

probative value of the evidence was outweighed by unfair prejudice.

        Reviewing courts grant “very broad” discretion to the trial court in making this

determination. United States v. Vance, 871 F.2d 572, 576 (6th Cir. 1989). Additionally, the effect


                                                   10
of the evidence must not simply be prejudicial, but it must be “unfairly” prejudicial: “[u]nfair

prejudice does not mean the damage to a defendant’s case that results from the legitimate probative

force of the evidence; rather it refers to evidence which tends to suggest decision on an improper

basis.” United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993) (internal quotation marks omitted).

       Here, the evidence was clearly probative. The government presented details of six earlier

incidents of Ray’s possession and distribution of small quantities of crack in order to demonstrate

Ray’s intent to convert the large quantity of cocaine he was charged with possessing into small

batches of crack for sale.

       There is no doubt that this litany of earlier acts caused a great deal of prejudice to Ray.

However, the prejudice was not unfair. Cf. United States v. Gibbs, 182 F.3d 408 (6th Cir. 1999)

(finding that, although admission of violent, gang-related t-shirts to demonstrate relevant gang

membership, “might be prejudicial, we do not believe it constituted unfair prejudice”) The

government followed the proper procedure in attempting to enter its proposed 404(b) evidence and

the court complied with the correct procedure by ruling on the admissibility of the evidence. In

addition, the judge provided a limiting instruction to the jury to mitigate any possible unfair

prejudice to the defendant, requiring jurors to consider the 404(b) evidence only as to “the

defendant’s intent, motive, opportunity, plan or lack of accident.”

       Ray attributes prejudicial effect to the volume of evidence presented under Rule 404(b).

Appellant Br. 27–29. Despite some intuitive appeal to Ray’s claim, however, a large volume of

otherwise legitimately admitted 404(b) evidence does not, in itself, constitute unfair prejudice. See

United States v. Poulsen, 655 F.3d 492, 509 (6th Cir. 2011).




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       The trial court did not abuse its discretion in finding that the probative value of the 404(b)

evidence outweighed its potential unfair prejudice.



                                                IV



       For the reasons stated above, we AFFIRM the district court’s judgment of conviction.




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