                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT



                                 No. 13-3155


                           UNITED STATES OF AMERICA

                                           v.

                 JIMMIL HENDERSON a/k/a JAMIL HENDERSON


                               JIMMIL HENDERSON,
                                             Appellant



                   On Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. No. 1-11-cr-00410-001)
                   District Judge: Honorable Joseph H. Rodriguez


                       Submitted under Third Circuit LAR 34.1(a)
                                   on March 7, 2014

               Before: AMBRO, JORDAN and ROTH, Circuit Judges

                                (Filed: August 1, 2014)



                                     OPINION


ROTH, Circuit Judge:

      In this appeal, Jimmil Henderson challenges his conviction following a trial before
the District Court. For the reasons that follow, we will affirm the District Court’s

judgment of conviction.

I. Background

       Because the facts are well known to the parties, we will discuss them only briefly.

       After a foot chase, police arrested Henderson on February 18, 2011. At the time

of arrest, Henderson was carrying five zip lock bags containing marijuana, one zip lock

bag containing five vials of cocaine, and $254 in cash. A gun was also retrieved, which

Henderson discarded during the chase.

       On August 24, 2012, Henderson was indicted on three counts: possession with

intent to distribute marijuana and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C), possession of a firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1)(A)(i), and felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). On January 30, 2013, after a five-day bifurcated trial, a jury found

Henderson guilty on all three counts.

II. Discussion1

       Henderson alleges that the District Court 1) erred and violated his Due Process

Rights by excluding testimony pertaining to his participation in a court diversionary

program, 2) erred in admitting evidence of two of Henderson’s prior convictions for

possession with intent to distribute controlled substances, and 3) erred in refusing his

request for a jury instruction regarding the lesser included offense of possession of a


1
 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291.
                                             2
controlled substance. We see no error in the District Court’s actions.

       A. Evidentiary Rulings

       We review evidentiary rulings for abuse of discretion, though we exercise plenary

review over a district court’s construction of the Federal Rules of Evidence. United

States v. Green, 617 F.3d 233, 239 (3d Cir. 2010). “An abuse of discretion occurs only

where the district court’s decision is arbitrary, fanciful, or clearly unreasonable – in short,

where no reasonable person would adopt the district court’s view.” Id.

              1. Exclusion of Testimony

       Henderson contends that the District Court erred in denying testimony regarding

his participation in a court diversionary program by concluding that it was irrelevant

under Federal Rule of Evidence 401. Relying on Gov’t of Virgin Islands v. Mills, 956

F.2d 443 (3d Cir. 1992), Henderson also contends that the exclusion was a violation of

his Sixth Amendment right to compulsory process.

       Rule 401 instructs that evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” The exclusion of

testimonial evidence amounts to a violation of the Sixth Amendment right to compulsory

process when the testimony is relevant, and when it would have been “both material and

favorable to [the defendant’s] defense.” Mills, 956 F.2d at 446 (emphasis in original).

Here, the District Court neither abused its discretion nor violated Henderson’s right to

compulsory process.

       Henderson sought to admit the testimony of Maria Casado, the custodian of

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records and director of classification at Delaney Hall—a facility which offers court

diversionary programming aimed at changing addictive and criminal behavior by

providing drug treatment, job training, GED preparation, parenting classes, and other

services. Henderson alleges that Ms. Casado’s testimony would show that Henderson

had a drug problem, and thus, support the theory that the drugs in his possession at the

time of arrest were for personal use rather than distribution. However, Ms. Casado’s

testimony was limited to the dates during which Henderson received services at Delaney

Hall. Ms. Casado does not have personal knowledge, nor does Delaney Hall have

records, regarding whether Henderson actually participated in drug treatment or whether

Henderson was referred to Delaney Hall due to a drug problem. Not only is this

testimony not helpful in establishing that Henderson had a drug problem, it also provides

no support for the contention that the drugs in his possession at the time of arrest were for

personal use.2 Therefore, the District Court properly exercised its discretion in excluding

the testimony as irrelevant. Furthermore, because the testimony is irrelevant, it does not

amount to a Sixth Amendment violation.

              2. Admission of Prior Convictions

       Henderson also contends that the District Court erred in admitting as evidence two

prior convictions for possession with intent to distribute controlled substances. Both

convictions were based on arrests in 2006 that occurred near the area of Lincoln Park in


2
   Henderson contends that Casado’s testimony would show that Henderson underwent
drug treatment because treatment was mandatory for anyone in the program for more
than 21 days. Even so, mandatory drug treatment based on length of program
participation is not probative of whether an individual has a drug problem.
                                              4
Newark, New Jersey. At the time of the first arrest, Henderson was in possession of 23

vials of cocaine, 13 decks of heroin, and $213 in cash. At the time of the second arrest,

Henderson was in possession of 32 vials of cocaine, 46 folds of heroin, and $169 in cash.

Henderson contends that the prior convictions are not “sufficiently similar to the instant

offense as to demonstrate motive or intent” in that the prior convictions did not involve

marijuana and one of the prior convictions involved an accomplice or co-conspirator.

Henderson also contends that the use of both convictions “crossed the line from being

offered for a proper purpose and to improperly demonstrate a propensity to commit the

crime charged.” Id.

       To be admissible under Rule 404(b), evidence of prior crimes must have a proper

evidentiary purpose, be relevant under Rule 401, satisfy the Rule 403 balancing test, and,

when requested, be accompanied by a limiting instruction about the purpose for which

the jury may consider it. United States v. Butch, 256 F.3d 171, 175 (3d Cir. 2001). Here,

the District Court properly exercised its discretion in determining that each requirement

was satisfied.

       Intent and motive are both proper purposes under Rule 404(b)(2) and relevant

under Rule 401 given the defense’s theory that the drugs in Henderson’s possession were

for personal use. With expert testimony, the government established that drugs packaged

for distribution are divided up into small increments and cost substantially more than

when they are sold in bulk. The prior convictions establish that Henderson would have

had knowledge of this fact. In other words, Henderson's prior convictions are at least

minimally relevant to establishing that he was aware that drugs were distributed in small

                                             5
vials of the kind he possessed upon arrest, making it more likely that he intended to

distribute those drugs. The differences Henderson highlights between the present case

and the prior convictions are irrelevant to this consideration.

       Additionally, the District Court determined under Rule 403 that the probative

value of the convictions weighed in favor of admission because the government

established a proper purpose. Contrary to Henderson’s contention, admission of both

convictions, as opposed to just one, neither makes for an improper purpose, nor weighs in

favor of exclusion under Rule 403. As we have previously instructed, Rule 404(b)

operates as a “rule of inclusion rather than exclusion,” where admission is favored if the

evidence is relevant for any purpose other than propensity to commit a crime. See United

States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003).

       The final requirement for Rule 404(b) was satisfied when the District Court

instructed the jury that it could consider the prior convictions only “in deciding whether

the defendant had the plan, knowledge or intent necessary to commit the crime charged in

the indictment,” and “not . . . as proof that the defendant had a bad character or any

propensity to commit crimes.” A1106-07. Accordingly, we find that the District Court

properly exercised its discretion in admitting the prior convictions under Rule 404(b).

       B. Jury Instruction

       Finally, Henderson contends that the District Court erred in denying his request to

give a jury instruction on the lesser included offense of possession of a controlled

substance. In lieu of a jury instruction, the District Court added the lesser included

offense to the verdict form. Because Henderson failed to object to this substitution, we

                                              6
review for plain error.3 See Gov’t of Virgin Islands v. Smith, 949 F.2d 677, 681 (3d Cir.

1991).

         The District Court must provide a jury instruction on a lesser included offense, if it

is supported by the evidence. United States v. Petersen, 622 F.3d 196, 204 (3d Cir.

2010). However, as is the case here, when the lesser offense is included on the special

verdict form this mandate does not apply. Id. at 205. Accordingly, we find no error.

III. Conclusion

         For the foregoing reasons, we will affirm the District Court’s judgment of

conviction.




3
  The Government contends that Henderson waived his right to raise this issue pursuant
to the invited error doctrine. See United States v. Console, 13 F.3d 641, 660 (3d Cir.
1993) (quotations omitted). However, this doctrine is inapplicable because Henderson
neither invited nor induced the District Court to omit the jury instruction.
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