                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0623n.06

                                        Case No. 08-2382                                  FILED
                                                                                     Aug 26, 2011
                          UNITED STATES COURT OF APPEALS
                                                                               LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

 UNITED STATES of AMERICA,                            )
                                                      )
        Plaintiff-Appellee,                           )     ON APPEAL FROM THE
                                                      )     UNITED STATES DISTRICT
                v.                                    )     COURT FOR THE EASTERN
                                                      )     DISTRICT OF MICHIGAN
 CHARLES E. ARMSTRONG,                                )
                                                      )
       Defendant-Appellant.                           )
 _______________________________________              )

Before: BATCHELDER, Chief Judge; ROGERS and SUTTON, Circuit Judges.

       ALICE M. BATCHELDER, Chief Judge.                  Charles Armstrong, a federal criminal

defendant, appeals his conviction for possession with intent to distribute cocaine base, carrying a

firearm during a drug trafficking crime, and possession of a firearm by a felon. We AFFIRM.

                                                 I.

       On May 4, 2007, Michigan State Police Troopers Michael Roth and Robert Mossing

identified a Ford pick-up truck with an expired license plate and conducted a routine traffic stop.

Defendant Armstrong was driving the truck, and one Ricky Harvey was the only passenger.

       Trooper Mossing approached the driver side and Trooper Roth approached the passenger

side. When Armstrong could not produce a driver’s licence, Trooper Mossing ordered him to exit

the truck. Trooper Roth shined a flashlight through the passenger side window and saw a gun and

narcotics on the floor on the driver’s side. Trooper Roth then ordered Harvey out of the truck.
No. 08-2382, United States v. Armstrong



        The troopers recovered the gun — a semi-automatic .45 handgun, loaded, with one round in

the chamber — and the narcotics — powdered cocaine base totaling 35.59 grams, separated into

several baggies, inside a larger bag. There were no fingerprints on the gun or the bags of drugs.

Trooper Mossing searched Armstrong but did not discover any contraband on his person. Trooper

Roth searched Harvey and seized a crack pipe and a baggie containing 6.4 grams of marijuana.

        The federal grand jury indicted Armstrong on three counts: one count of possession with

intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1); one

count of carrying a firearm during and in relation to a drug trafficking offense, in violation of 18

U.S.C. § 924(c); and one count of felon in possession of a firearm, in violation of 18 U.S.C. §

922(g). Armstrong entered a plea of not guilty, and the parties prepared for a jury trial. Armstrong’s

defense was that the drugs and gun were not his, but instead belonged to the passenger, Ricky

Harvey.

        Prior to trial, Armstrong’s counsel filed a trial brief, in which he proposed — among other

things — to introduce evidence of prior similar acts by Ricky Harvey, including certified copies of

three separate criminal convictions in which Harvey had “dropped” illegal drugs when the police

approached, as well as testimony by the officers involved in those incidents. The government moved

in limine to exclude all such evidence and the district court heard argument on the motion.

Armstrong’s counsel argued that the evidence was admissible under Federal Rule of Evidence 404(b)

and his constitutional right to present a defense. But the district court, relying on United States v.

Lucas, 357 F.3d 599 (6th Cir. 2004), granted the motion and excluded the evidence.




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No. 08-2382, United States v. Armstrong



        At trial, the Government presented Troopers Roth and Mossing, and a Mt. Morris (Mich.)

Township Police Officer named Donald Urban. Ricky Harvey did not testify. The defense presented

Armstrong, who testified that neither the gun nor the drugs were his and that, just before the

Troopers approached the truck, Harvey reached inside his jacket and dropped something onto the

floor of the truck. The defense also presented defendant’s girlfriend, Yolanda Suarez, who offered

some background and character evidence; and Federal Defender’s Office investigator Cameron

Henke, who had inspected the truck and testified that a person sitting in the driver’s seat would not

be able to see the gun or drugs on the driver’s side floor due to the seat’s blocking the view.

        The jury convicted Armstrong on all three counts. The district court sentenced Armstrong

to 78 months in prison on Count One, 60 months consecutive on Count Two, and 60 months

concurrent on Count Three, for a total of 138 months. Armstrong timely appealed.

                                                 II.

        On appeal, Armstrong challenges his conviction on two bases. He first claims that the district

court erred by excluding the proffered evidence of Harvey’s other similar acts, in contravention of

Federal Rule of Evidence 404(b) and his constitutional right to present a complete defense. This

court reviews a district court’s evidentiary rulings for an abuse of discretion, and reviews an

appellant’s claimed violation of a constitutional right de novo. Lucas, 357 F.3d at 606.

        Armstrong also claims that the evidence was insufficient to sustain the conviction because

the government did not charge or show that the case involved “crack” cocaine, as — he argues —

is now required by United States v. Higgins, 557 F.3d 381 (6th Cir. 2009). Typically, we review de

novo the sufficiency of the evidence to sustain a conviction, see United States v. Gunter, 551 F.3d

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No. 08-2382, United States v. Armstrong



472, 482 (6th Cir. 2009), but Armstrong did not raise this claim at trial, and his basis for the claim

(Higgins) was not decided until after his conviction. Therefore, we review this claim for plain error.

See Fed. R. Crim. Pro. 52(b); United States v. Marcus, 560 U.S. --, 130 S. Ct. 2159, 2164 (2010)

(holding that “an appellate court may, in its discretion, correct an error not raised at trial only where

the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than

subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the

ordinary case means it affected the outcome of the district court proceedings; and (4) the error

seriously affects the fairness, integrity or public reputation of judicial proceedings” (quotation and

editorial marks omitted)).

                                                   A.

        “Evidence of other . . . acts is not admissible . . . to show action in conformity therewith.”

Fed. R. Evid. 404(b). There are, however, certain identified exceptions, including “proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

When evidence is offered to prove an exception, “the rule does not require that the evidence be

excluded. No mechanical solution is offered. The determination must be made whether the danger

of undue prejudice outweighs the probative value of the evidence in view of the availability of other

means of proof and other facts appropriate for making decision of this kind under Rule 403.” See

Fed. R. Evid. 404, Advisory Comm. Notes, Note to Subdivision (b) (1972 Proposed Rules).

        In Lucas, 357 F.3d at 605, we considered the concept of “reverse 404(b)” evidence, “in which

the evidence of a prior act by another is offered as exculpatory evidence by the defendant, instead

of being used by a prosecutor against a defendant.” We reasoned that “prior bad acts are generally

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No. 08-2382, United States v. Armstrong



not considered proof of any person’s likelihood to commit bad acts in the future and that such

evidence should demonstrate something more than propensity.” Id. (emphasis in original).

Therefore, we held that the Rule 404(b) analysis applies even “in cases where such evidence is used

with respect to an absent third party, not charged with any crime.” Id. at 606.

        The district court analyzed Armstrong’s claim under Lucas and concluded “that Armstrong

has not met his burden of establishing that any of th[e] exceptions to Rule 404(b) apply to this case.”

Consequently, the district court granted the government’s motion in limine and excluded any

evidence of Harvey’s other similar acts of dropping illegal drugs when the police approached.

        Armstrong argues that the district court misapplied Lucas, and points to a bit of dictum, in

which the panel opined about the “knowledge and intent” exceptions to Rule 404(b):

        If, instead, it w[ere] shown that [the absent third party] had borrowed someone else’s
        car in which to do the prior drug deal [as Lucas claims happened here] or if he had
        packaged the cocaine in the same way and had left it under the passenger’s seat in the
        same way, the evidence of his prior drug deal might have been sufficiently probative,
        but the simple fact that he sold cocaine before is only minimally relevant.

Lucas, 357 F3d at 606. Armstrong argues on appeal, based on the foregoing, that:

        [T]he proposed testimony is admissible for a proper purpose, i.e., identity as in the
        Lucas example above. Ricky Harvey had, on three separate occasions, dropped drugs
        upon being approached by the police — just as [Armstrong] alleges he did here. The
        facts of the instant case parallel the modus operandi that Harvey had demonstrated
        repeatedly in the past. [Armstrong] should have been permitted under Rule 404(b)
        to present the officers’ testimony to this effect.

Appellant’s Br. at 16 (footnote omitted, underlining in original).

        Despite his invocation of the word “identity” (in his misunderstanding of the Lucas court’s

topic in the cited dicta), identity was not at issue here — Armstrong does not claim he was


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No. 08-2382, United States v. Armstrong



misidentified, nor does he claim that the government misidentified Harvey. As the government

argues on appeal, “[Armstrong]’s attempt to admit evidence that Harvey had dropped drugs was not

offered to prove Harvey’s identity, but rather that Harvey did it before and therefore when confronted

by police herein he did it again (modus operendi).” Appellee’s Br. at 14-15. To the extent

Armstrong offers evidence of prior acts to demonstrate that Harvey, not Armstrong, possessed the

contraband, the prior acts he seeks to introduce are too generic. To qualify as modus operandi

evidence, the similarity between the prior act and the charged offense must rise to the level of a

“signature,” or a “device so unusual or distinctive as to be like a signature.” United States v.

Hamilton, 684 F.2d 380, 384 (6th Cir. 1982); see, e.g., United States v. Mack, 258 F.3d 548, 553-54

(6th Cir. 2001) (finding that the use of a ski mask with a hooded sweatshirt and the method of

“burst[ing] into the bank and “leap[ing]” over the teller counter constituted a signature). But

dropping contraband, like fleeing the police, is typical of nearly every criminal (who has something

to hide) and is not sufficiently “unusual or distinctive” to constitute a signature. See also United

States v. Thomas, 321 F.3d 627, 635 (7th Cir. 2003) (holding that dropping a handgun and fleeing

on foot upon seeing the police was “garden variety” conduct inadmissible under Rule 404(b)).

        The district court and government are correct that Armstrong offers this evidence only to

prove propensity: Harvey did it before and was therefore more likely to have done it again here. Or,

in Armstrong’s own words: “Ricky Harvey had, on three separate occasions, dropped drugs upon

being approached by the police — just as [Armstrong] alleges he did here.” Appellant Br. at 16. But




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No. 08-2382, United States v. Armstrong



propensity evidence is not admissible under Rule 404(b), and the district court was properly within

its discretion to exclude this evidence on this basis pursuant to Lucas.1

         Armstrong argues, in the alternative, that exclusion of this evidence violated his

constitutional right to present a complete defense even if the evidence was inadmissible under Rule

404(b). We rejected this same argument in Lucas, holding that “a complete defense does not imply

a right to offer evidence that is otherwise inadmissible under the standard rules of evidence.” Lucas,

357 F.3d at 606. Therefore, on its face, this argument is meritless.

         But Armstrong cites Holmes v. South Carolina, 547 U.S. 319 (2006), for the proposition that

he is constitutionally entitled to present a complete defense. See Appellant Br. at 16.2 Because the

Supreme Court issued Holmes after this court’s decision in Lucas, Armstrong implies but does not

argue expressly that Holmes might have overruled Lucas’s reasoning or holding. That would be

incorrect. We have reaffirmed Lucas in recent opinions. See, e.g., Wynne v. Renico, 606 F.3d 867,

871 (6th Cir. 2010) (“What was true in Lucas is true today.”); United States v. Clark, 377 F. App’x

451, 460 (6th Cir. 2010); see also Wynne, 606 F.3d at 872, 875 (Martin, J., concurring) (writing

separately “because I believe that the Lucas opinion was wrongly decided” and “but for Lucas, I

would find that the evidence was excluded in violation of Wynne’s constitutional rights,” but



         1
          To be sure, in United States v. Allen, 619 F.3d 518, 523-24 (6th Cir. 2010), we allowed the government to
introduce modus operandi evidence under somewhat similar circumstances. But courts of appeal do not decide
evidentiary questions in the first instance. The point of abuse-of-discretion review is to give latitude to district courts
to make a range of decisions when admitting evidence, even decisions that do not necessarily square with the precise
contours of a ruling issued by a fellow trial judge. Nor at any rate is it clear that our decision in Allen on this point was
a holding, as the court began its opinion by saying that “any potential error was clearly harmless.” See id. at 523.

         2
         Armstrong also relies on Gagne v. Booker, 596 F.3d 335 (6th Cir. 2010), to support this proposition, but Gagne
v. Booker has since been vacated for en banc rehearing, 606 F.3d 278 (6th Cir. 2010).

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No. 08-2382, United States v. Armstrong



concluding that “this panel is bound by the decisions of a prior panel, no matter how illogical, [so]

I must concur”). Therefore, Armstrong’s constitutional argument is untenable.



                                                 B.

        Armstrong also claims that the evidence was insufficient to sustain the conviction because

the government did not charge or show that the case involved “crack” cocaine, as — he argues —

was then required by United States v. Higgins, 557 F.3d 381 (6th Cir. 2009). In Higgins, 557 F.3d

at 392, 395, we held that “crack cocaine [is] a specific form of cocaine base,” and that “the phrase

‘cocaine base’ in [21 U.S.C.] § 841 means ‘crack cocaine,’” not simply any type of cocaine base.

Therefore, “under Apprendi [v. New Jersey, 530 U.S. 466 (2000)], before the enhanced penalties of

§ 841 can apply, the indictment must charge and the jury must find beyond a reasonable doubt that

the defendant committed a crime involving crack cocaine” not merely cocaine base. Id. at 395-96

(emphasis added). The Supreme Court has since overruled the foregoing reasoning and held that

“cocaine base” in 21 U.S.C. § 841 means not just “crack cocaine” but any cocaine in its chemically

basic form. DePierre v. United States, 564 U.S. --, 131 S. Ct. 2225, 2231-32 (2011).

        In any event, Armstrong is mistaken and Higgins would not apply here, even on its own

terms. Armstrong points out that his indictment charged only “cocaine base,” the court instructed

the jury only as to “cocaine base,” and the jury’s verdict form included only “cocaine base” — crack

was not specified in any of these charges. Armstrong argues, pursuant to his reading of Higgins, that

the evidence was insufficient to sustain the conviction under § 841 (and the other counts

derivatively) because there was no charge or showing that the case involved “crack” cocaine.

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No. 08-2382, United States v. Armstrong



        Armstrong’s reading of Higgins is incorrect — Higgins addresses only the “enhanced

penalty” aspect of § 841’s sentencing provisions, not the criminality provisions of § 841 generally.

The indictment charged him with possession of “cocaine base,” the court instructed the jury to

convict him on a finding that he possessed “cocaine base,” and the jury’s verdict form demonstrates

that the jury did convict him for possessing “cocaine base.” Therefore, the jury properly convicted

him of possession with intent to distribute cocaine base and he could be sentenced accordingly.

Higgins proscribes sentencing under the enhanced penalties for crack cocaine, but the court did not

sentence Armstrong under those enhanced penalties, nor does Armstrong claim or even suggest that

it did. In fact, Armstrong has not offered any challenge whatsoever to his sentence in this appeal.

                                                III.

        Because Armstrong cannot demonstrate that the district court erred by excluding evidence

or that his conviction was improper under the current law, we AFFIRM the district court.




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