                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0118n.06

                                        Case No. 13-5290
                                                                                      FILED
                                                                                Feb 10, 2014
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE WESTERN
ALBERT CHALMERS,                                      )        DISTRICT OF TENNESSEE
                                                      )
       Defendant-Appellant.                           )
                                                      )
                                                      )                             OPINION



BEFORE: COLE and GRIFFIN, Circuit Judges; and PEARSON, District Judge.

       COLE, Circuit Judge.         Defendant-Appellant Albert Chalmers was arrested at a

Tennessee duplex after police officers executed a search warrant and recovered ninety grams of

marijuana and a firearm. Although Chalmers invoked his right to remain silent at the time of his

arrest, while in transit to the county jail, Chalmers voluntarily communicated to the officers that

he purchased the firearm and that he did not know it had been reported stolen. Chalmers moved

to suppress these statements, and he now appeals the district court’s denial of his motion. He

also argues that the district court erroneously admitted evidence of ten prior drug transactions

and a 2005 conviction for possession of marijuana with intent to distribute.           We affirm


       
        The Honorable Benita Y. Pearson, United States District Judge for the Northern District
of Ohio, sitting by designation.
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United States v. Chalmers

Chalmers’s convictions, holding that the district court did not abuse its discretion in admitting

his statement or testimony regarding his prior marijuana sales, and that the court’s error in

admitting evidence of Chalmers’s 2005 conviction was harmless.

                                      I. BACKGROUND

A. Factual Background

       On December 6, 2008, officers of the Memphis Police Department executed a search

warrant at a duplex residence on Dexter Avenue in Memphis. One side of the duplex was

occupied and the other vacant. Officers found three individuals in the house—Chalmers, Robert

Brinch, and Shuntaye Montgomery.          Officers recovered approximately ninety grams of

marijuana and a firearm, and arrested Chalmers for possession of a firearm and possession of

marijuana with intent to distribute. When officers gave Chalmers his Miranda rights, he invoked

his right to remain silent orally and in writing, in an initialed rights waiver form. Officers

honored his request, and no further questioning occurred.

       Officers Keith Crosby and Jerry Graves then transported Chalmers to the Shelby County

jail. A wire metal grate separated the front and back seats of the car, which enabled Chalmers to

hear the officers’ conversation. Upon arrival at the jail, the officers remained inside the police

cruiser to complete an arrest report and tag evidence retrieved at the residence, while Chalmers

remained in the back seat.

       Officer Crosby, who was in the front passenger seat, noticed that there was no tag on the

firearm, meaning that the officers had not yet verified whether the gun had been stolen. Crosby

testified at a suppression hearing that “whoever had initially found [the gun] should have

[tagged] it, but they probably just forgot.”    Conceding that this was “a mistake,” Crosby

acknowledged that background checks on weapons are usually conducted immediately after a


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weapon is secured. And Graves noted that it was standard police policy to check all firearms

before processing them inside the evidence room.

       To check the weapon’s status, Crosby turned to Station B, the channel officers use to

gather information on warrants and stolen property. Crosby told dispatch that he had a “QG,”

which stands for query gun, and provided dispatch with the make, model, and serial number of

the firearm. Dispatch then asked if the officers’ radio was “secure” to confirm that Chalmers

was not in a position to harm the officers once information about the firearm was communicated.

Because Chalmers was “already handcuffed,” and “already in the squad car,” Crosby told

dispatch that the radio was indeed secure. Using another coded response, dispatch replied that

the weapon was a “Signal W,” meaning that it was wanted or stolen.              Throughout the

conversation, Chalmers could hear the information transmitted through the police cruiser’s

console speaker.

       At this point, neither Graves nor Crosby had spoken to Chalmers. However, both officers

testified that Chalmers initiated a conversation with them after overhearing the exchange with

dispatch, though the officers’ testimony varied slightly. Both officers agree that, upon hearing

the dispatcher report a “Signal W,” Graves asked Crosby from where the gun was stolen, and

Crosby said it was stolen from Mississippi. According to Graves’s testimony, “the defendant

scooted up to the window” separating the front and the back of the vehicle, and “that’s when the

defendant asked . . . ‘is that gun stolen?’” Graves informed Chalmers that it was “stolen out of

Mississippi.” Then Chalmers “just blurt[ed] things out,” saying “I didn’t steal that gun. I paid

$20 for that gun off the street. I didn’t steal nothing.”

       Crosby generally corroborated this account, indicating that, as the information was being

transmitted from dispatch, “I remember Chalmers . . . saying he didn’t know that gun was stolen,


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he wouldn’t never have bought it had he known that gun was stolen.” In contrast to Graves,

though, Crosby testified that, to his recollection, neither he nor Officer Graves said anything to

Chalmers before he began “just blurting things out.” Crosby testified that once Chalmers began

speaking, Officer Graves “said something back to him” but he could not remember what.

       Chalmers was charged with one count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g), one count of possession with intent to distribute approximately

ninety grams of marijuana in violation of 21 U.S.C. § 841(a)(1), and one count of knowingly

possessing a firearm in furtherance of a drug crime in violation of 18 U.S.C. § 924(c).

B. Procedural History

       Before trial, Chalmers moved to suppress his statements to Graves and Crosby, arguing

that they “were made in response to interrogation” after he invoked his Miranda rights. As

Chalmers recounts it, the officers continued to question him after he asserted his right to remain

silent, and this conduct, Chalmers argues, requires suppressing the statements he made.

       1. Motion to Suppress and Hearing

       Officer Crosby and Renee A. LaMondue, an employee for the Memphis Police

Department Communications Division, testified at a suppression hearing before a magistrate

judge. The magistrate judge recommended denial of Chalmers’s motion to suppress, and the

district court adopted this recommendation. The judge found certain “unrefuted details” in the

record. First, Chalmers “initiated the conversation with Officer Graves and began ‘blurting

things out”’; second, Graves told Chalmers that the gun was stolen; and third, Chalmers made

the following statements: that “he didn’t know that gun was stolen,” that he “bought the gun off

the street for $20.00,” and that “he wouldn’t never have bought it had he known that gun was

stolen.”


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       The magistrate judge concluded that Crosby and Graves neither initiated the

conversation, nor expressly questioned Chalmers. Moreover, the officers did not engage “in

conduct that they should have known was reasonably likely to elicit an incriminating response.”

Classifying Chalmers’s statements as “voluntary” and “not in response to official interrogation,”

the judge found no constitutional violation.

       2. Motion to Reconsider

       Chalmers then filed a motion to reconsider the denial of his suppression motion,

concerned that the record before the court was incomplete without the testimony of Officer

Graves. Against the government’s wishes, the district court determined it would be beneficial

for Graves to testify because he was the officer who responded to Chalmers’s question about the

firearm. Accordingly, the district court conducted a second evidentiary hearing, where Graves

gave the account of the conversation with Chalmers.

       The district court also heard arguments from Chalmers’s counsel, who argued that the

officers’ testimony conflicted as to who initiated the exchange—Chalmers or Graves. At the

first hearing, Crosby stated that Chalmers volunteered his statements after hearing the messages

from dispatch. Graves, on the other hand, said that he asked Crosby where the gun had been

stolen, and after Crosby responded, “Mississippi,” Chalmers asked if the gun had been stolen.

       The district court “affirmed its previous factual finding that Defendant initiated the

conversation with officer Graves.” Following a jury trial, Chalmers was found guilty of all

charges and the district court sentenced him to 48 months of imprisonment as to Counts 1 and 2,

to run concurrently, and 60 months of imprisonment on Count 3, to run consecutively.




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        3. Evidentiary Rulings During Trial

        Prior to trial, the parties exchanged discovery requests pursuant to Federal Rule of

Criminal Procedure 16. Through this process, the government disclosed its plans to introduce

evidence that Chalmers engaged in marijuana sales on November 14 and 22 and December 3,

2008.    The government characterized this evidence as res gestae or intrinsic evidence

“inextricably intertwined” with the events that led to Chalmers’s arrest on December 6, 2008.

Chalmers filed a motion in limine seeking to exclude this and other evidence.

        After jury selection, and before the opening statement, the government notified the court

and the defense of its intention to call Shuntaye Montgomery as a lay witness. Montgomery was

present when officers searched the Dexter Avenue residence and would testify that she had been

there on ten prior occasions in order to buy marijuana from Chalmers. The government stated

that it had only recently become aware of the ten prior transactions, and argued that

Montgomery’s testimony would not be subject to Federal Rule of Evidence 404(b) because it

was intrinsic to the offense in question. Defense counsel objected because the evidence was

prejudicial and not probative of Chalmers’s intent to distribute marijuana during the incident at

issue. Ultimately, the court sustained the objection and instructed the government not to refer to

Montgomery’s account in its case-in-chief. The court noted, however, that if defense counsel

“opened the door” through cross-examination or its overall strategy, the court would consider

admitting the evidence.

        At trial, several witnesses were questioned about Chalmers’s connection to the Dexter

residence. Officer Graves testified first and stated that he had engaged in surveillance of the

residence and saw Chalmers enter and leave the house repeatedly. Graves was cross-examined

as to Chalmers’s connection to the house—i.e., whether he was carrying a key to the house when


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he was arrested, whether his clothes were found at the house, and whether he appeared to be

receiving mail at the residence.      Similarly, Officer Crosby, who testified next, answered

questions on cross-examination as to whether he had collected personal items from the house as

evidence. Defense counsel asked a third officer whether any investigation had been conducted to

determine who owned a puppy found at the residence and who paid the electric bill. This officer

also testified on direct examination about his familiarity with “trap houses,” or duplex buildings

in which one of the two attached units is used to sell drugs, and the other is used as a regular

residence.

        The government then asked the court to reconsider its ruling regarding Montgomery’s

testimony as to the ten prior drug sales, arguing that this evidence pertained to intent and that the

defense had “opened the door” with questions designed to undermine Chalmers’s connection to

the residence. In particular, the government emphasized that within the two-week period before

Chalmers’s arrest, Montgomery purportedly bought the same drug, in the same packaging, at the

same residence—evidence that would refute the defense strategy that the prosecution could not

prove Chalmers’s intent to distribute the marijuana found at the address. Defense counsel

objected, arguing that the defense had not received proper notice and that the jury would likely

consider the previous sales as propensity evidence.

        The court admitted Montgomery’s testimony, reasoning that it was intrinsic evidence

pertaining to the offense at issue, and therefore not subject to Rule 404(b). Therefore, the court

held that the government’s notice was sufficient, as it was not required to give advance notice at

all.   The court further explained that the testimony would also be admissible as extrinsic

evidence even if Rule 404(b) did apply. Defense counsel requested, and was granted, a limiting

instruction regarding Montgomery’s testimony.          Montgomery then testified that she met


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Chalmers about two weeks before his arrest, that Chalmers gave her his phone number, and

when she called him, they arranged to meet at the Dexter residence, where she subsequently

purchased marijuana from Chalmers on about ten occasions.

       The other trial witnesses included Joe Hoing and Malinda Hilliard. Hoing, a criminal

investigator for the Drug Enforcement Administration and Shelby County, Tennessee, testified

as to the use of drug paraphernalia, packaging, and firearms in marijuana transactions. Hilliard,

a supervisor for the local utilities company, testified that Chalmers’s name was not associated

with the utilities company account for the Dexter residence, but during the government’s cross-

examination she provided the phone number associated with the account, which was the same

number Montgomery used to reach Chalmers.

       Toward the end of trial, the government requested permission to offer rebuttal testimony

from Officer Errol Freeman concerning Chalmers’s 2005 conviction for possession of marijuana

with intent to distribute. The government argued that the conviction—resulting from a search

warrant executed, again, at the Dexter residence, and also involving the recovery of small,

individually wrapped quantities of marijuana—was probative of Chalmers’s intent at the time of

the 2008 arrest, as it rebutted defense counsel’s suggestion that Chalmers’s purpose for being at

the house was to use marijuana recreationally. Defense counsel countered that Rule 404(b)

excluded the conviction because it was three years old, and therefore of little relevance to intent

in the case at hand, and because admitting it would be unduly prejudicial. The court heard

arguments from both sides and ultimately admitted the evidence with a limiting instruction. The

government’s closing argument included references to Montgomery’s testimony, as well as

Chalmers’s 2005 conviction. Chalmers was convicted of all three counts.




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                                        II. DISCUSSION

A. Chalmers’s Statements

         1. Standard of Review

         When examining a district court’s denial of a motion to suppress, we review the court’s

factual findings for clear error and its legal determinations de novo. See United States v. Pelayo-

Landero, 285 F.3d 491, 494 (6th Cir. 2002). “The district court’s factual findings are overturned

only if the reviewing court has the definite and firm conviction that a mistake has been

committed.” Id. at 494–95 (internal quotation marks and citations omitted). If a district court

has denied a motion to suppress, we review the record “in the light most likely to support the

district court’s decision.” United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009). However,

whether Chalmers initiated a discussion with the officers after invoking his right to remain silent

“is a legal question we review de novo.” United States v. Whaley, 13 F.3d 963, 968 (6th Cir.

1994).

         Several facts are uncontested. The parties agree that Chalmers invoked his right to

remain silent and that he was in custody when officers transported him to the county jail. The

parties also agree that the officers did not expressly question Chalmers.         Therefore, in the

absence of actual questioning, we must determine whether the officers engaged in the functional

equivalent of express questioning.

         We start with Miranda v. Arizona, in which the Supreme Court articulated several

“procedural safeguards . . . to secure the privilege against self-incrimination.” 384 U.S. 436, 444

(1966). When a suspect is in custody and asks to speak with a lawyer, the police must stop

further interrogation until an attorney is present. Id. at 474. If a suspect has invoked his right to

remain silent or his right to counsel, officers must “scrupulously” honor the suspect’s wishes. Id.


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at 479. However, statements uttered “freely and voluntarily” are admissible in evidence; indeed,

Miranda makes clear that “[v]olunteered statements of any kind are not barred by the Fifth

Amendment.” Id. at 478.

       Post-Miranda decisions have clarified that the protections in that case are not confined to

instances of “express questioning.” Rhode Island v. Innis, 446 U.S. 291, 298–99 (1980). The

Miranda Court was troubled by the “interrogation atmosphere” and the potential “evils it can

bring.” Miranda, 384 U.S. at 456. Miranda recognized that “coercion can be mental as well as

physical,” id. at 448, and was concerned that “the interplay of interrogation and custody” might

induce self-incrimination. Innis, 446 U.S. at 299.

       2. Functional Equivalent of Express Questioning

       The safeguards provided in Miranda apply to express questioning and, relevant here, to

“its functional equivalent.”   Innis, 446 U.S. at 301.     The Supreme Court has defined the

functional equivalent of express questioning as “any words or actions on the part of the police

(other than those normally attendant to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response from the suspect.” Pennsylvania v. Muniz,

496 U.S. 582, 600–01 (1990).

       Rhode Island v. Innis applies the definition of functional equivalency in a factual context

nearly indistinguishable from the present case. In Innis, officers arrested a suspect for armed

robbery; however, at the time of his arrest, officers were unable to locate the shotgun allegedly

used in the robbery. 446 U.S. at 294. After the suspect was Mirandized, he indicated that he

wished to speak with a lawyer. Id. Three officers transported the suspect to the police station in

a four-door police car, with a wire screen mesh separating the front and back seats. Id. While in

transit, officers mentioned to one another that a school for handicapped children was located in


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the same area where the suspect had been arrested, and that it may be wise to continue to search

for the shotgun. Id. at 295. At this point, the suspect interrupted the officers’ conversation and

asked them to “turn the car around so he could show them where the gun was located.” Id.

Returning to the scene of the arrest, the officers re-Mirandized the suspect, but he “wanted to get

the gun out of the way” because there was a school nearby. Id.

       Because the suspect’s statements in Innis were spontaneous, there was no reason for the

officers to believe that the suspect would make an unsolicited statement after overhearing their

exchange. Id. at 303. The Court acknowledged that the officers were engaged in a conversation,

“to which no response . . . was invited,” and held that they did not violate the suspect’s Miranda

rights. Id. at 302. The Court further explained:

       A practice that the police should know is reasonably likely to evoke an
       incriminating response from a suspect thus amounts to interrogation. But, since
       the police surely cannot be held accountable for the unforeseeable results of their
       words or actions, the definition of interrogation can extend only to words or
       actions on the part of police officers that they should have known were reasonably
       likely to elicit an incriminating response.

Id. at 301–02 (emphasis omitted).

       Edwards v. Arizona is also instructive. There, the Supreme Court held that if a suspect

invokes his Miranda rights, he is not subject to “further interrogation . . . unless the accused

himself initiates further communication, exchanges, or conversations with the police.” Edwards

v. Arizona, 451 U.S. 477, 484–85 (1981). This rule, called an “Edwards initiation,” offers “clear

and unequivocal guidelines to the law enforcement profession.” Minnick v. Mississippi, 498 U.S.

146, 151 (1990). An Edwards initiation occurs when, “without influence by the authorities, the

suspect shows a willingness and a desire to talk generally about his case.” Whaley, 13 F.3d at

967. Expressing some limitations on this general proposition, we noted that there may be


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circumstances where “a bare inquiry by either a defendant or by a police officer should not be

held to ‘initiate’ any conversation or dialogue.” Id. at 966–67. Specifically, statements about

“routine incidents of the custodial relationship, will not generally ‘initiate’ a conversation” under

Edwards. Id. It is not the case that every question a suspect asks demonstrates a desire to start a

conversation with police.     See United States v. Soto, 953 F.2d 263, 265 (6th Cir. 1992)

(requesting to keep belongings separate from those of co-defendant is not initiation); Jacobs v.

Singletary, 952 F.2d 1282, 1294 (11th Cir. 1992) (asking officer, “Where are my children?” is

not initiation); Christopher v. Florida, 824 F.2d 836, 845–46 (11th Cir. 1987) (asking question in

response to police officer’s interrogation not initiation) cert. denied, 484 U.S. 1077 (1988).

       Chalmers, like the suspect in Innis, was not expressly interrogated or subject to the

functional equivalent of express questioning because he initiated the conversation with the

officers by “blurt[ing]” out that he purchased the gun off the street for $20. His statements were

“not merely a necessary inquiry arising out of the incidents of the custodial relationship” and

suggest that Chalmers wanted to talk about the current arrest. Whaley, 13 F.3d at 967 (citation

omitted). As the district court correctly held, the “unrefuted evidence . . . remains that the

defendant himself initiated the conversation.” Although Chalmers claims the officers’ testimony

is inconsistent, by both accounts, Chalmers started the conversation and his voluntary

communication cannot form the basis of a Miranda violation. While Chalmers concedes that the

officers did not question him directly, his position is that their exchanges with dispatch should

not have occurred in his presence, as these communications were “designed to elicit an

incriminating response.” The record does not support Chalmers’s argument.

       The officers’ entire conversation, partly conducted using coded signals, was predicated

on ensuring that the evidence recovered during the search warrant could be processed. While


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Chalmers overheard their exchange, as in Innis, “no response from the [suspect] was invited,”

and there was no reason why Crosby or Graves “should have known that their conversation was

reasonably likely to elicit an incriminating response.” 446 U.S. at 302. Additionally, there is no

evidence indicating that the officers tried to solicit incriminating statements from Chalmers,

using the types of psychological ploys that concerned the Miranda Court. Crosby and Graves

were merely completing paperwork before processing evidence when Chalmers asked whether

the gun was stolen. The critical point is that Chalmers’s comments were not made at the

insistence of the authorities. See Arizona v. Mauro, 481 U.S. 520, 529–30 (1987) (“In deciding

whether particular police conduct is interrogation, we must remember the purpose behind our

decisions in Miranda and Edwards: preventing government officials from using the coercive

nature of confinement to extract confessions that would not be given in an unrestrained

environment.”).

       Chalmers characterizes the officers’ conduct as “deliberate, reckless, or at least grossly

negligent” because, in his view, it was improper for Graves and Crosby to run a background

check on the firearm in his presence. But the officers were not attempting to bait Chalmers into

making an incriminating statement, as the record establishes that conducting a background check

on the weapon was part of their police work and attendant to Chalmers’s arrest.

       Viewing the evidence in a light most likely to support the district court’s decision, we

conclude that the officers did not interrogate Chalmers when he uttered statements about the gun.

We affirm the district court’s denial of Chalmers’s motion to suppress.




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B. Prior Acts Evidence

       Chalmers next challenges the admissibility of prior acts evidence, specifically

Montgomery’s testimony regarding the prior marijuana purchases from Chalmers in the two-

week period before Chalmers’s arrest, and Officer Freeman’s testimony as to Chalmers’s 2005

conviction for possession with intent to distribute. The Federal Rules of Evidence prohibit the

admission of evidence of an individual’s prior crimes or other actions if used “to show that on a

particular occasion the person acted in accordance with” their past behaviors. Fed. R. Evid.

404(b). However, such evidence may be used to prove motive, intent, and identity, and for

purposes other than establishing propensity. Id. When evidence is subject to 404(b), the party

offering the evidence must give “reasonable notice of the general nature” of the evidence, id.,

and the court must ensure that the evidence is admissible for a proper purpose and is not unduly

prejudicial. See United States v. Mack, 258 F.3d 548, 552–53 (6th Cir. 2001). But not all prior-

acts evidence implicates Rule 404(b): “intrinsic acts” that are “part of a single criminal episode”

or “a continuing pattern of illegal activity” are admissible notwithstanding Rule 404(b). United

States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995). Therefore, we must first determine

whether the evidence Chalmers challenges is subject to Rule 404(b), and if so, whether the rule’s

requirements are met.

       1. Standard of Review

       Generally, a district court’s evidentiary rulings are reviewed for abuse of discretion. See,

e.g., United States v. Saadey, 393 F.3d 669, 679 (6th Cir. 2005). Abuse of discretion occurs

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

Allen, 619 F.3d 518, 523 (6th Cir. 2010). However, there is some disagreement in this circuit as




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to the standard of review for evidentiary questions under Federal Rule of Evidence 404(b). The

admissibility of evidence under Rule 404(b) is subject to a three-part analysis:

       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 [so], the district court must decide whether the probative
       value of the evidence is substantially outweighed by its potential prejudicial
       prejudice.

United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012) (quoting United States v. Jenkins, 345

F.3d 928, 937 (6th Cir. 2003)).

       In light of this approach, some panels have applied a different standard of review to each

part of the three-step inquiry. Compare Clay, 667 F.3d at 693 (reviewing for clear error the

determination that other acts occurred; reviewing de novo the legal determination as to whether

the evidence was admissible for a permissible purpose; and reviewing for abuse of discretion the

question of probative value versus prejudice) with United States v. Ray, __ F. App’x __, No. 12-

6180, 2013 WL 6670785 (6th Cir. Dec. 18, 2013) (reviewing entirety of Rule 404(b) analysis for

abuse of discretion); see also United States v. McDaniel, 398 F.3d 540, 544 (6th Cir. 2005)

(reviewing “de novo the court’s conclusions of law, e.g., the decision that certain evidence

constitutes hearsay,” because it is an abuse of discretion to make errors of law). As addressed

below, the facts of this case do not require us to resolve this debate.

       Rule 404(b) also contains a notice requirement. We review for abuse of discretion the

court’s determination as to whether the prosecution gave proper notice under Rule 404(b). See

United States v. Moore, 495 F. App’x 680, 684 (6th Cir. 2012).

       Evidentiary rulings are subject to harmless error review, meaning that a conviction will

not be overturned unless the error affected the defendant’s substantial rights. United States v.


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DeSantis, 134 F.3d 760, 769 (6th Cir. 1998). “[A]n error in admitting evidence is presumed to

be reversible unless [the court] conclude[s], with fair assurance . . . that the judgment was not

substantially swayed by [the] error.” United States v. Davis, 547 F.3d 520, 528 (6th Cir. 2008)

(internal quotation marks omitted).

        2. Prior Drug Transactions

        On appeal, Chalmers argues that Montgomery’s testimony should have been excluded for

the following reasons: (1) Rule 404(b) applied to the evidence because it was not intrinsic to the

offense, (2) the defense did not receive sufficient notice, and (3) the probative value of the

evidence was substantially outweighed by the danger of unfair prejudice. The government

counters that the testimony was intrinsic evidence and therefore not subject to Rule 404(b)’s

restrictions, and also notes that even if 404(b) applies, the government used it to show intent and

identity, in conformity with the rule. Additionally, the government argues that it gave the

defense notice before trial. The district court held that Rule 404(b) did not apply because the

evidence was intrinsic, in other words, that it was indicative of “a continuing pattern of illegal

activity.”

        Definitions of so-called “intrinsic” or “background” evidence abound. The narrower

articulations posit that evidence of prior acts is intrinsic only if it is “part of a single criminal

episode” or “part of a continuing pattern of illegal activity.” Barnes, 49 F.3d at 1149. Broader

definitions encompass evidence that “is a prelude to the charged offense, is directly probative of

the charged offense . . . or completes the story of the charged offense.” United States v. Hardy,

228 F.3d 745, 748 (6th Cir. 2000).         Commentators have criticized these more expansive

definitions as unwisely permitting litigants and courts to avoid the precautions that Rule 404(b)

imposes. See 1 Mueller & Kirkpatrick, Federal Evidence § 4.33 (4th ed. 2009).


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       Cases with analogous facts suggest that Montgomery’s testimony was intrinsic. For

example, in United States v. Gonzalez, the defendant—who was, like Chalmers, charged with

possession with intent to distribute—argued that Rule 404(b) applied to a co-conspirator’s

testimony that, on previous occasions, he had paid Gonzalez to drive him to particular locations,

where he then sold cocaine. See 501 F.3d 630, 633 (6th Cir. 2007). Gonzalez’s attorney

defended the case by suggesting that, on the date of the arrest, his client did not own the car, was

unaware that there were drugs in the car, and had no knowledge that he was facilitating a drug

transaction. Id. Applying plain error review, id. at 638, the court noted that it did not need to

rely on a “broad, narrative-based definition” of Rule 404(b) to conclude that the evidence

“establishe[d] a continuing pattern of illegal activity that is intrinsic to the charged offense,” id.

at 640. Similarly, this court has held that testimony regarding a prior, uncharged exchange of

illegal drugs was admissible as intrinsic evidence where a witness testified that the defendant had

been “shorted” during the first exchange, and that the subsequent exchange, which gave rise to

the criminal charges, was intended to make up the difference. See Barnes, 49 F.3d at 1146.

Conversely, evidence is considered extrinsic—and Rule 404(b) accordingly applies—if there is a

lack of “temporal proximity, causal relationship, or spatial connections . . . between the other

acts and the charged offense.” Hardy, 228 F.3d at 748–50 (finding error, though harmless,

where court admitted evidence that a witness and the defendant had engaged in drug transactions

six years before the charged offense).

       We conclude that the district court did not abuse its discretion in ruling that

Montgomery’s testimony was not subject to Rule 404(b). See Flagg v. City of Detroit, 715 F.3d

165, 175–76 (reviewing for abuse of discretion district court’s determination that evidence was

not intrinsic); United States v. Toney, 161 F.3d 404, 414 (6th Cir. 1998). In doing so, we avoid


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Case No. 13-5290
United States v. Chalmers

using an expansive, “completes the story” definition of intrinsic or background evidence, and we

emphasize the close temporal, spatial, and causal proximity between the ten prior drug deals and

the circumstances surrounding Chalmers’s arrest. See Hardy, 228 F.3d at 748–50. Specifically,

the prior drug deals took place within the two-week period immediately preceding Chalmers’s

arrest; occurred in the same residence where he was arrested and where the drugs leading to his

arrest were found; involved the same type of drug, in similar packaging; and involved

Montgomery, who was also present in the residence at the time of Chalmers’s arrest. See id.

Given these facts, the prior acts establish a pattern of drug deals occurring in the Dexter

residence, which in turn sheds light on Chalmers’s relationship to the residence and to the drugs

found there.   See id.; Gonzalez, 501 F.3d at 640.       We note that slightly different facts—

establishing a weaker temporal, spatial, or causal link—might well lead us to the opposite

conclusion. In this instance, however, the district court did not abuse its discretion in admitting

the evidence without engaging in a Rule 404(b) analysis.

       3. Prior Conviction

       Lastly, we consider the admissibility of Officer Freeman’s testimony regarding

Chalmers’s 2005 conviction for possession of marijuana with intent to distribute.              The

government argued that the evidence was admissible to show that the marijuana recovered

during execution of the search warrant was not intended for personal use, as the prior arrest also

occurred in the Dexter residence, where police again found individually wrapped baggies of

marijuana. Chalmers’s counsel objected that the evidence’s probative value was slight and that it

would be unduly prejudicial. The court considered the three Rule 404(b) factors—whether the

prior act actually occurred, whether it was admissible for a proper purpose, and whether it was

unduly prejudicial—and decided to admit the evidence.


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United States v. Chalmers

        Chalmers argues, first, that he was given insufficient notice of the government’s plan to

introduce the evidence, and second, that the evidence’s probative value was substantially

outweighed by the risk of unfair prejudice. Chalmers’s attorney did not object to a lack of notice

at trial, so we review the district court’s (implicit) determination that notice was sufficient under

the plain error standard. See Moore, 495 F. App’x at 684. Here, the government disclosed

Chalmers’s conviction during discovery and sought the court’s permission to admit that evidence

during trial, but before placing Officer Freeman on the stand. Additionally, the government

argued—and the court agreed—that Freeman’s testimony would be relevant to rebut the theory

defense counsel had pursued throughout trial. Under these circumstances, we decline to find that

the court clearly erred in excusing the lack of pretrial notice. Fed. R. Evid. 404(b)(2).

        Regardless of whether we apply abuse of discretion or de novo review, Chalmers’s 2005

conviction is at least minimally relevant to intent to distribute. Chalmers also placed intent at

issue during the course of the trial. See United States v. Bell, 516 F.3d 432, 441–43 (6th Cir.

2008) This court has found evidence regarding prior drug distributions “probative of present

intent to possess and distribute when the prior distributions were part of the same scheme or

involved a similar modus operandi as the present offense.” Id. at 443 (citations omitted). Such

is the case here.

        The last step of the Rule 404(b) inquiry directs us to determine whether the district court

abused its discretion in concluding that the evidence was not unduly prejudicial. Federal Rule of

Evidence 403 permits a court to exclude evidence “if its probative value is substantially

outweighed by a danger of . . . unfair prejudice.” When a court finds that evidence of a prior act

is admissible under Rule 404(b), it must then undertake this balancing inquiry. See, e.g., Clay,

667 F.3d at 693 (“Third . . . the district court must decide whether the probative value of the


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United States v. Chalmers

evidence is substantially outweighed by its potential prejudicial effect.”). In doing so, the court

should consider the similarities between the prior act and the present offense, the likelihood that

the jury will draw impermissible conclusions from the evidence, and the government’s ability to

prove intent through other means. See Bell, 516 F.3d at 445; United States v. Haywood, 280

F.3d 715, 723 (6th Cir. 2002).

       Although Rule 403 balancing is “highly discretionary,” Bell, 516 F.3d at 445, the district

court abused its discretion in admitting evidence of this conviction. Officer Freeman’s testimony

was introduced near the end of trial. At that point, jurors had already heard ample testimony

establishing intent to distribute, including Montgomery’s testimony that she had come to the

Dexter residence to purchase marijuana from Chalmers at the time of his arrest, just as she had

done ten previous times over the past fourteen days. Montgomery’s testimony firmly established

intent and was significantly more probative than evidence of the 2005 conviction, given the close

temporal proximity between the ten sales and Chalmers’s arrest. Moreover, jurors had also

already heard that Chalmers’s phone number was associated with the house’s utility company

account, that the residence fit the description of a “trap house” used to sell drugs, and that the

drugs recovered during execution of the search warrant were packaged in such a way as to

indicate that they were intended for distribution. Simply put, the evidence of Chalmers’s 2005

conviction was superfluous—it had minimal value in light of the other evidence presented at

trial, but increased the risk that jurors might convict Chalmers for the wrong reasons. The

district court should have excluded it.

       Nevertheless, we do not vacate a conviction if the trial court’s error was harmless. An

error in admitting Rule 404(b) evidence is presumed to be reversible “unless we can say, ‘with

fair assurance,’” and upon considering all that occurred at trial, ‘“that the judgment was not


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United States v. Chalmers

substantially swayed by the error.’” Haywood, 280 F.3d at 724 (quoting Kotteakos v. United

States, 328 U.S. 750, 765 (1946)). Harmless error typically applies where there is overwhelming

admissible evidence of a defendant’s guilt. See United States v. Mack, 729 F.3d 594, 603 (6th

Cir. 2013). As addressed above, the evidence against Chalmers was compelling, particularly

Montgomery’s testimony.       While jurors could have drawn problematic inferences from

Chalmers’s prior conviction, the weight of the improperly admitted evidence was slight in the

context of the trial as a whole. We doubt that the jury was substantially swayed by Officer

Freeman’s testimony, given all the evidence that had already been presented. Accordingly, the

admission of this evidence constituted harmless error.

                                      III. CONCLUSION

       For the foregoing reasons, Chalmers’s convictions are hereby affirmed.




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