                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                             File Name: 15a0038p.06

                       UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


 UNITED STATES OF AMERICA,                                        ┐
                                         Plaintiff-Appellee,      │
                                                                  │
                                                                  │         No. 14-5276
            v.                                                    │
                                                                   >
                                                                  │
 JASON ANTHONY CARTER,                                            │
                                      Defendant-Appellant.        │
                                                                  ┘
                              Appeal from the United States District Court
                          for the Eastern District of Tennessee at Greeneville.
                         No. 2:12-cr-00113-2—J. Ronnie Greer, District Judge.
                                         Argued: December 2, 2014

                                    Decided and Filed: March 6, 2015

      Before: BATCHELDER and ROGERS, Circuit Judges; BECKWITH, District Judge.*

                                            _________________

                                                  COUNSEL

ARGUED: David L. Leonard, LEONARD, KERSHAW & HENSLEY, LLP, Greeneville,
Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE,
Knoxville, Tennessee, for Appellee. ON BRIEF: David L. Leonard, LEONARD, KERSHAW
& HENSLEY, LLP, Greeneville, Tennessee, for Appellant. Luke A. McLaurin, UNITED
STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.




        *
           The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern District of Ohio,
sitting by designation.




                                                        1
No. 14-5276                            United States v. Carter                     Page 2

                                        _________________

                                            OPINION
                                        _________________

        ALICE M. BATCHELDER, Circuit Judge. Defendant Jason Carter appeals the judgment
of conviction in this criminal case. We REVERSE and REMAND.

                                                 I.

        On the evening of August 24, 2012, Amanda Steadman was cooking a small batch of
methamphetamine in her apartment kitchen when the cook bottle exploded. The explosion blew
out the apartment windows, sprayed glass outward as much as 25 yards, and set the apartment
ablaze. It also set fire to Amanda, causing third-degree burns over 15% of her body. Her
husband, James Steadman, who had been assisting her, extinguished Amanda but then, while the
apartment burned, collected and hid the materials they had been using for the cook.

        Jason Carter was also present, but immediately fled from the explosion. An alarmed
neighbor called the fire department and took notice of Carter’s fleeing the scene. A different
neighbor later told police that Carter worked at the Haven of Rest shelter. Meanwhile, the fire
department arrived to evacuate the building and extinguish the fire, paramedics airlifted Amanda
to a burn center, and suspicious police questioned James. Eventually, James admitted to the
meth cooking and was decontaminated but not arrested. In fact, police took him to the Haven of
Rest because the apartment building was sealed until it could be decontaminated.

        The   federal     prosecutor   charged   all   three   with   conspiracy   to   manufacture
methamphetamine in violation of 21 U.S.C. § 841(a)(1), possession of the precursors used to
manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6), and creation of a
substantial risk of harm to human life during the manufacture of methamphetamine in violation
of 21 U.S.C. § 858. The prosecutor did not charge them with either distribution or conspiracy to
distribute. James and Amanda Steadman entered into plea agreements, in which they agreed to
testify against Carter.

        Carter entered a not-guilty plea and the case proceeded to a jury trial. Prior to trial, the
prosecutor filed a formal “notice pursuant to [Federal Rule of Evidence] 404(b)” in which she
No. 14-5276                            United States v. Carter                     Page 3

informed defense counsel “that [she] intend[ed] to offer evidence at trial[,] provided through co-
defendant testimony[,] that the defendant [Carter] ha[d] [previously] distributed the controlled
substance buprenorphine (Suboxone or Subutex) at the Haven of Rest, where [Carter] was
employed at the time of the offense.” The prosecutor’s theory was that “[Carter]’s conduct in
distributing controlled substances . . . [wa]s relevant and admissible to prove his opportunity,
intent, plan, knowledge, absence of mistake, or lack of accident in the commission of the acts
alleged in th[e] indictment.” At a hearing prior to trial, the district court considered the issue and
ultimately permitted the testimony. James Steadman testified at trial that he had, on several
occasions, witnessed Carter selling suboxone strips at the Haven of Rest.

       The jury convicted Carter on all three counts and the court sentenced him to 97 months in
prison plus restitution for the damage to the apartment complex. Carter now appeals and the
crux of this appeal concerns the district court’s admission of the 404(b) evidence.

                                                 II.

       While we generally review evidentiary issues for abuse of discretion, there is an on-going
dispute in this circuit concerning the proper standard of review of Rule 404(b) evidence.
See United States v. Clay, 667 F.3d 689, 703 (6th Cir. 2012) (Kethledge, J., dissenting) (noting
the “longstanding intra-circuit conflict regarding the appropriate standard of review for
evidentiary decisions under Rule 404(b)”); see also United States v. Chalmers, 554 F. App’x
440, 449 (6th Cir. 2014) (noting the “disagreement in this circuit as to the standard of review for
evidentiary questions under Federal Rule of Evidence 404(b)”). But, because Carter prevails
under either standard, de novo or abuse-of-discretion, we need not resolve this issue here.

       Under Federal Rule of Evidence 404(b), “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular occasion the person
acted in accordance with the character,” but “[t]his evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” In deciding the admissibility of Rule 404(b) evidence,
the district court employs a three-step process in which it must determine whether:
No. 14-5276                            United States v. Carter                    Page 4

       (1)      the “other act” actually occurred,
       (2)      the evidence is offered for a permissible purpose, and
       (3)      its probative value is not substantially outweighed by unfair prejudice.

United States v. De Oleo, 697 F.3d 338, 343 (6th Cir. 2012). One permissible purpose (the one
at issue in this appeal) is proof of specific intent. See United States v. Johnson, 27 F.3d 1186,
1192 (6th Cir. 1994) (explaining that “where the crime charged is one requiring specific intent,
the prosecutor may use 404(b) evidence to prove that the defendant acted with the specific
intent”). But “[t]o determine if evidence of other acts is probative of intent, we look to whether
the evidence relates to conduct that is substantially similar and reasonably near in time to the
specific intent offense at issue.” United States v. Haywood, 280 F.3d 715, 721 (6th Cir. 2002)
(quotation marks omitted); see also United States v. Ray, 549 F. App’x 428, 433 (6th Cir. 2013).

       At the pre-trial hearing in this case, the district court questioned the prosecutor critically
about the proffered 404(b) evidence, eventually homing in on the question: “How does intent to
distribute   [other   drugs]   establish   intent    to   join   a   conspiracy   to   manufacture
[methamphetamine]?”

       Prosecutor:     We just believe that it shows in this situation that he [Carter] did
                       have the requisite intent to join this conspiracy involving
                       controlled substances.
                               As I said earlier, there will be testimony from the witnesses
                       that [Carter] intended to split the proceeds of the, of the
                       methamphetamine that was distributed, although concededly he is
                       not charged with actual distribution, it is a manufacturing charge.
                       So I understand your honor’s concerns.
       Court:          In fact, you told me that the testimony from the coconspirators
                       would be that the motivation for manufacturing it was to obtain it
                       for personal use.
       Prosecutor:     They were each going to obtain one gram of methamphetamine,
                       and Mr. Carter was going to sell the rest of the methamphetamine
                       and split the proceeds with the people involved in this conspiracy.
       Court:          So there will be proof that he distributed methamphetamine?
       Prosecutor:     Yes, Mr. Carter was going to split the methamphetamine and split
                       the money.
       Court:          . . . [E]ven though conspiracy to manufacture methamphetamine is
                       a specific intent crime, Mr. Carter is not charged with any intent to
No. 14-5276                   United States v. Carter                     Page 5

              distribute, nor is the government required to prove any intent to
              distribute; and that’s the troubling thing here.
                      ...
                      [But] there’s a Sixth Circuit case . . . a mail and wire fraud
              case, of all things, where the government was allowed to introduce
              proof of drug dealings to prove specific intent; and the Sixth
              Circuit said, that’s okay, the government can do that because [it]
              has to prove specific intent; and so they admitted evidence of drug
              deals involving the defendant upon a prior occasion for the purpose
              of showing his specific intent in this mail and wire fraud case.
                       ...
                      And the interesting thing about this case, which is United
              States v. Bilderbeck, 163 F.3d 971 [(6th Cir. 1999)], the interesting
              thing about this case is that the defendant offered to stipulate the
              specific intent, and the court said that notwithstanding the fact that
              the defendant didn’t intend to put specific intent at issue – the
              defense in that case was lack of possession – the government still
              had to prove it as an element of the offense, and so the Sixth
              Circuit permitted it . . . and [as for the question of] whether or not
              the probative value of that evidence is substantially outweighed by
              the danger of unfair prejudice, . . . the Sixth Circuit said it was not.
                      ...
                      Given that a conspiracy to manufacture is a specific intent
              crime, the government is required to prove Mr. Carter’s specific
              intent to join this conspiracy willfully, with knowledge of its
              unlawful purpose, so specific intent is something that the
              government has to prove here. Mr. Carter’s specific intent to
              distribute a controlled substance on a prior occasion relatively
              close in time is, therefore, in my view probative on the issue of his
              specific intent in this case.
                      That’s not the end of the inquiry though. Just because the
              government is permitted to introduce the evidence under rule
              404(b) for that purpose does not mean automatically that it will be
              admitted. The court still has to determine whether or not the
              probative value is substantially outweighed by the danger of unfair
              prejudice or confusion of a jury. . . .
                      ...
                      . . . Proof of prior distribution of controlled substances
              other than those charged in the indictment is probative on the issue
              of Mr. Carter’s specific intent to join this conspiracy with
              knowledge of its unlawful purpose; and although it is a close
              question, I find that the probative value of that evidence is not
              substantially outweighed by the danger of unfair prejudice under
              the circumstances of this case, so the evidence of prior acts of
              distribution, which are similar in nature in that they involve drug
No. 14-5276                            United States v. Carter                   Page 6

                       offenses as does this case, and relatively close in time in that they
                       occurred within an eight month period prior to the acts alleged in
                       this case, then are admissible.

[R.115 at pp. 17-25.] To summarize: the court established from the prosecutor the evidence that
the other act actually took place, and relying on Bilderbeck, decided both that the evidence was
admissible for a proper purpose and that the probative value was not substantially outweighed by
unfairly prejudicial effect; thus, it declared the evidence admissible.

       However, it bears immediate mention that Bilderbeck was not a “mail and wire fraud
case.” Rather, the government charged Bilderbeck with attempting to possess and distribute
cocaine, and offered evidence of his prior drug deals to show that Bilderbeck had the specific
intent to possess and distribute on the occasion in question. Bilderbeck, 163 F.3d at 977.
Bilderbeck had offered “to stipulate that he intended to attempt to possess the cocaine,” id., and
we held that the prosecutor may introduce 404(b) evidence to prove specific intent even when
the defendant stipulates to that intent. Id. (quoting Old Chief v. United States, 519 U.S. 172
(1997), for the principle that “the prosecution is entitled to prove its case free from a[]
defendant’s option to stipulate the evidence away”). We did not hold that the prosecutor may
introduce “evidence of drug deals involving the defendant []on a prior occasion for the purpose
of showing his specific intent in a mail and wire fraud case.” Bilderbeck does not support that
proposition. In fact, we identified no case that supports that proposition, nor has the government
pointed us to any such case.

       We have, however, held repeatedly that mere possession of a controlled substance is not
sufficiently similar to distribution to be probative of a specific intent to distribute controlled
substances, even though both are obviously controlled-substance offenses. See, e.g., United
States v. Bell, 516 F.3d 432, 443-44 (6th Cir. 2008); Haywood, 280 F.3d at 721-22; United States
v. Miller, 562 F. App’x 272, 284 (6th Cir. 2014). In Bell, we made it clear that “our cases have
only found such [‘other act’] evidence probative of present intent . . . when the prior [acts] were
part of the same scheme or involved a similar modus operandi as the present offense”; to hold
otherwise would be to “employ[] the very kind of reasoning–i.e., once a drug dealer, always a
drug dealer–which 404(b) excludes.” Bell, 516 F.3d at 443-44 (citing cases).
No. 14-5276                           United States v. Carter                    Page 7

       Here, the prosecutor did not charge Carter with distribution or conspiracy to distribute;
she charged him with conspiracy to manufacture. While both crimes require proof of intent, we
find no authority to support the proposition that the intent to distribute suboxone strips, an
entirely different drug from methamphetamine, in an unrelated venture is probative of a specific
intent to join a conspiracy to manufacture homemade methamphetamine. Even accepting that
both criminal acts occurred, these two acts do not involve a similar modus operandi and are not
otherwise sufficiently similar to satisfy Rule 404(b) as we have applied it in our precedent.
Consequently, the district court should not have admitted the “other act” evidence.

       A district court abuses its discretion when it applies the wrong legal standard or
misapplies the correct legal standard, First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647
(6th Cir. 1993), such that we are left with “a definite and firm conviction that the trial court
committed a clear error of judgment,” Harlamert v. World Finer Foods, Inc., 489 F.3d 767, 773
(6th Cir. 2007) (citations omitted). That is the situation here with respect to the admission of the
404(b) evidence.

       While Carter raised two other claims of error on appeal, our decision on this first issue
resolves the appeal. Therefore, we decline to address the other two issues at this time.

                                                III.

       For all of the foregoing reasons, we REVERSE the judgment of conviction and
REMAND to the district court for further proceedings consistent with this opinion.
