               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 08a0043n.06
                         Filed: January 14, 2008

                                       No. 06-4127

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
TROY THOMAS,                                   )   SOUTHERN DISTRICT OF OHIO
                                               )
       Defendant-Appellant.                    )




       Before: DAUGHTREY, GILMAN, and COOK, Circuit Judges.


       PER CURIAM. The defendant, Troy Thomas, appeals his conviction of conspiring

to possess with intent to distribute more than 100 grams of heroin, which resulted in the

imposition of a sentence of 120 months in prison. He alleges that the district court

erroneously admitted into evidence a statement by the defendant himself that he had

ingested 12 grams of heroin at the time of his arrest, presumably to conceal that

contraband from the police. He also asserts that the district court erred in failing to offer

the jury an instruction detailing the limited use to which that contested evidence could be

put. We find no reversible error and affirm.
No. 06-4127
United States v. Thomas

                    FACTUAL AND PROCEDURAL BACKGROUND


       In November 2005, the Columbus, Ohio, office of the Drug Enforcement

Administration (DEA) received information that a package containing almost 1000 grams

of heroin sent from New Delhi, India, to 2227 Marcia Drive in Columbus had been

intercepted by authorities. The DEA confiscated the contraband and placed a transmitter

in the package before delivering it. When an individual later identified as James Tinsley

signed for and opened the package at 2227 Marcia Drive, federal agents entered the

dwelling and arrested Tinsley.


       In an attempt to minimize his connection with the contraband, Tinsley initially told

DEA agents that he was merely being paid to accept the package for the defendant.

Tinsley also agreed to assist the law enforcement officials in arresting Thomas and made

a series of three telephone calls to the defendant’s cell phone to set up the transfer of what

was to have been a kilogram of heroin at a gas station the men had previously used as a

meeting place. When Thomas arrived at the agreed-upon location, however, he was

surrounded by officers and arrested. At that time, the defendant was not in possession of

contraband narcotics, but did have with him $800 in cash and a cell phone that contained

various phone numbers for Tinsley.


       At trial, Tinsley explained how he had developed a connection with a Nigerian

prisoner awaiting deportation while Tinsley and the Nigerian were incarcerated in the same

correctional facility. In August 2005, after both men were released from custody, the

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No. 06-4127
United States v. Thomas

Nigerian sent Tinsley a package containing 100 grams of heroin. Tinsley then used a

cutting agent to increase the weight of the heroin from 100 grams to 150 grams and

contacted the defendant, who had previously expressed an interest in joining with Tinsley

to distribute the drug. Through August and September 2005, Thomas re-sold the heroin

to various individuals and met sporadically with Tinsley to transfer the cash proceeds to

him. In September 2005, Tinsley received a second package, this one containing 500

grams of heroin, from his Nigerian source. Again Tinsley contacted the defendant,

transferred the heroin to Thomas, and eventually received the agreed-upon price from him.

After he had been arrested by the authorities, Tinsley contacted the defendant yet again

to arrange for the transfer of the kilogram of heroin.


       Additional trial testimony was offered by Deputy United States Marshal Nicole

Ralston and by inmate Jesse Hosking. Both individuals stated that Thomas complained

on November 29, 2005, the day after his arrest, of abdominal pains resulting from his

ingestion of 12 grams of heroin immediately before his apprehension by the authorities.

Although medical personnel were summoned, an examination of the defendant led the

medical staff to conclude that Thomas did not require hospitalization.      After taking

prescribed medication, the defendant admitted the following day that “he was feeling much

better.”   Hosking also testified that, while incarcerated with Thomas, the defendant

admitted that “he was in on . . . the kilo of heroin and that part of it or something was

supposed to come to him and he was mad that the guy ratted him out.”



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No. 06-4127
United States v. Thomas

       Hearing this evidence, the jury convicted Thomas of the single count of conspiring

to possess with intent to distribute more than 100 grams of heroin between September 1,

2005, and November 28, 2005. After a sentencing hearing, the district court imposed a

prison term of 120 months on the defendant, to be followed by five years of supervised

release. From that judgment, the defendant now appeals.


                                       DISCUSSION


       On appeal, Thomas contends that his conviction must be set aside because the

district court improperly allowed the jury to hear testimony that Thomas may have ingested

12 grams of heroin immediately before his arrest in this matter.            According to the

defendant, such information amounted to evidence of a crime other than that charged in

the indictment; consequently, he argues, the court should have engaged in the analysis

required by this circuit when admitting evidence of other crimes pursuant to the provisions

of Rule 404(b) of the Federal Rules of Evidence. Thomas further submits that the district

judge should have explicitly instructed the jury that the evidence of that other crime was

in no way indicative of guilt of the charged offense.


       Our review of a district court’s determination of the admissibility of evidence at trial

is limited. Indeed, we evaluate such a decision only to determine whether the district judge

abused his or her discretion in allowing the testimony to be presented to the jury. See

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); Trepel v. Roadway Express, Inc., 194

F.3d 708, 716 (6th Cir. 1999). “A district court abuses its discretion, inter alia, ‘when it

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No. 06-4127
United States v. Thomas

applies the incorrect legal standard [or] misapplies the correct legal standard.’” In re Grand

Jury Subpoenas, 454 F.3d 511, 515 (6th Cir. 2006) (quoting Deja Vu of Cincinnati, LLC v.

Union Twp. Bd. of Trustees, 411 F.3d 777, 782 (6th Cir. 2005) (en banc), cert. denied, 546

U.S. 1089 (2006)).


       Generally, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.” Fed. R. Evid.

404(b). That rule additionally provides:


       It may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident, provided that upon request by the accused, the
       prosecution in a criminal case shall provide reasonable notice in advance of
       trial, or during trial if the court excuses pretrial notice on good cause shown,
       of the general nature of any such evidence it intends to introduce at trial.


Id.


       Although Thomas considers his statement that he ingested 12 grams of heroin to

be evidence of a crime other than his involvement in a conspiracy involving the

approximate kilogram of heroin in the controlled delivery of the package that Tinsley

received on November 28, 2005, the defendant misapprehends the scope of the charges

against him. As noted above, the indictment charged conspiracy “[b]eginning on or about

September 1, 2005, and continuing through on or about November 28, 2005 . . . .”

(Emphasis added.)



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No. 06-4127
United States v. Thomas

       Indeed, the district judge found that Thomas’s alleged possession of 12 grams of

heroin at the time of his arrest was relevant to the conspiracy charge. As he noted in his

oral ruling allowing Deputy Marshal Ralston’s testimony, “It may also come in under 404(b)

but I think that the evidence comes in under 801(d)(2) and without a limit[ing] instruction.

I mean it is an admission, it’s almost like a confession.” We agree. The evidence that the

defendant was in possession of 12 grams of heroin (an amount that a trial witness testified

exceeded that usually possessed by a simple user of the drug) on the date of his arrest

was probative of Thomas’s involvement in the ongoing conspiracy that included earlier

distributions of 150-gram and 500-gram shipments of heroin. As a result, the district judge

did not abuse his discretion in concluding that the defendant’s uncoerced statement to a

deputy United States marshal that he was in possession of a substantial amount of heroin

on November 28, 2005, was an admission, see Fed. R. Evid. 801(d)(2), and not evidence

of involvement in another, uncharged criminal offense.


       Moreover, even if the ruling were considered erroneous, any such error was

harmless in this instance. Without Deputy Marshal Ralston’s testimony about Thomas’s

ingestion of heroin at the time of his arrest, the jury still had before it for its deliberations

testimony from James Tinsley concerning the scope and operations of the conspiracy, the

tape-recorded phone calls between Tinsley and Thomas discussing the defendant’s worry

about not hearing from Tinsley and going over plans for meeting for the exchange, and

another inmate’s testimony that Thomas admitted that he was “in on the kilo of heroin” and



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No. 06-4127
United States v. Thomas

that he was ratted out by Tinsley. All this evidence was sufficient to convict the defendant

of the conspiracy charge without reference to his ingestion of 12 grams of heroin.


       Similarly, the district judge did not err in declining to give a limiting instruction to the

jury that the heroin ingested by Thomas “was not the heroin charged in the indictment.”

This allegation of error by Thomas is again premised upon his misapprehension that the

evidence of his ingestion of heroin was Rule 404(b) testimony regarding prior crimes or

acts of the defendant. In fact, however, the testimony of Deputy Marshal Ralston did not

concern “other” crimes committed by the defendant. Although Thomas is correct that the

12 grams of heroin allegedly ingested by the defendant could not have come from the

kilogram of heroin that had been confiscated by DEA agents prior to the controlled delivery

to Tinsley, the crime for which Thomas was on trial was a conspiracy that extended over

a three-month period.        During that time, Thomas was involved in the resale of

approximately 650 grams of heroin received from Tinsley, a sufficiently large amount that

it would not be surprising that the defendant was in possession of some amount of that

heroin at the time of his arrest.


       Again, even if we were to consider the failure to offer a limiting instruction error, any

such error clearly was harmless. The jury had before it sufficient, if not overwhelming,

evidence of the defendant’s complicity in a drug-trafficking conspiracy with Tinsley involving

more than 100 grams of heroin. Thus, “[a]ny error, defect, irregularity, or variance” in this




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No. 06-4127
United States v. Thomas

matter did not affect substantial rights of the defendant and must be disregarded. Fed. R.

Crim. Proc. 52(a).


                                        CONCLUSION


       The trial testimony concerning the defendant’s ingestion of 12 grams of heroin

shortly before his arrest by the authorities was not admitted pursuant to Rule 404(b) of the

Federal Rules of Evidence as evidence of prior crimes or wrongs committed by Thomas.

Instead, the defendant’s statement served as an admission of his possession of narcotics

relevant to the three-month conspiracy with Tinsley to distribute heroin. The district court

did not err in admitting that testimony or in failing to give a limiting instruction to the jury,

and the judgment entered by the court is therefore AFFIRMED.




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