                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            Dec. 18, 2009
                             No. 09-12210                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 05-60120-CR-WPD

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

NICOLAS FRANCOIS JEANTY, JR.,
a.k.a. Nicki,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (December 18, 2009)

Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Nicolas Francois Jeanty, Jr. (“Jeanty”) appeals his convictions for

conspiracy and attempt to possess cocaine with intent to distribute. The district

court did not abuse its discretion by admitting evidence of Jeanty’s prior drug

convictions because the evidence was necessary to explain the interaction between

Jeanty and his co-conspirator. Accordingly, we AFFIRM.

                                 I. BACKGROUND

      In May 2005, Jeanty and Vladimir Perodin (“Perodin”) were indicted on one

count of conspiracy to possess cocaine with intent to distribute and one count of

attempt to possess cocaine with intent to distribute. R1-6 at 1-2. In November

2008, in compliance with the discovery order, the government provided a notice

that some of the evidence it intended “to use as evidence at trial to prove its case in

chief” included certain documents. R1-52 at 1. In relevant part, attached to the

government’s filing was a February 2005 summary of an interview of Perodin.

R1-52, Attach. at 72-74. Perodin told an FBI agent that he had been involved in

drug trafficking since 1999. Id. at 72. Jeanty was one of Perodin’s drug

distributors. Jeanty usually bought about one kilogram of cocaine at a time from

Perodin. Id. at 73. Perodin usually gave Jeanty the cocaine, and Jeanty would pay

him for it one to two days later. Id.




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      Three months after the pre-trial notice, at trial in February 2009, Perodin

testified as follows: He and Jeanty were meeting Jean Max Alce (“Alce”) in

February 2005 to purchase five kilograms of cocaine. R5 at 68-69. Perodin and

Jeanty were going to pay for one kilogram immediately and pay for the rest after

they sold it. Id. at 70. Alce was willing to accept less than full payment up front

because Perodin and Jeanty had purchased cocaine from Alce in the past using that

method. Id.

      Jeanty objected to Perodin’s testifying about any prior drug transactions

between himself and Jeanty. Id. at 70-71. The court asked the government

whether it had provided any notice under Fed.R.Evid. 404(b) for the ten separate

transactions the government wanted to address. Id. at 71. The government

responded that it had given Jeanty copies of Perodin’s debriefing, but

acknowledged that it had not filed a notice specifically referencing Rule 404(b).

Id. at 71-72. The court ruled that the evidence was not admissible under Rule

404(b). Id. at 72. The government argued that the evidence was intertwined with

how the charged transaction occurred. The court ruled that the prior transactions

were separate and were not included in the indictment. Id. at 72-73.

      At a break in the trial, the government explained that it had given notice of

the prior bad acts in the November 2008 discovery packet in the form of Perodin’s



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debriefing and in a fax sent five days before trial. Id. at 74-75. In the fax was a

second debriefing in which Perodin stated that he had sold Jeanty one kilogram of

cocaine approximately ten times. Id. at 75. The government argued that Jeanty

had notice that the evidence would be presented, even if no formal notice

referenced Rule 404(b). Id. at 76. The court asked Jeanty what he would have

done differently if he had received notice of the second debriefing in the first

discovery packet, and Jeanty responded that he would have tried to develop alibis

to show that he did not do the drug transactions Perodin described. Id. at 78-80.

The district court decided not to change its ruling. Id. at 82. Later in direct

examination, Perodin testified that Jeanty was babysitting Perodin’s daughter while

Perodin picked up the drugs from Alce for the February 2005 transaction. Id. at

113-14. On cross-examination, Perodin admitted that Jeanty frequently visited his

home and was at his home for a few hours on the morning of the planned drug

transaction with Alce while Perodin went to get the drugs. Id. at 172-73, 187-88.

      The next morning, the district court informed the parties that based on the

holding of United States v. Chavis, 429 F.3d 662 (7th Cir. 2005) – stating that

prior interactions between an informant and a defendant in a drug conspiracy are

frequently inextricably intertwined – it would admit the evidence of the prior drug

transactions between Jeanty and Perodin. R6 at 2. The court explained that it



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would allow the government to present the evidence on re-direct. Id. During the

continued cross-examination, Perodin admitted that he had not seen any money in

Jeanty’s possession in February 2005 on the day of the drug deal with Alce. Id. at

22-23.

         During re-direct examination, Perodin testified that he believed Jeanty when

Jeanty told him that he had the money for the transaction because Perodin had

engaged in previous drug transactions with Jeanty. Id. at 23. Jeanty moved for a

mistrial, arguing that he had not received notice of the evidence and had not had

adequate time to prepare to rebut it. Id. Moreover, the evidence was more

prejudicial than probative. Id. at 23-24. The court reiterated its ruling that the

evidence was inextricably intertwined, explaining that Jeanty had opened the door

while cross-examining Perodin by bringing up Jeanty’s babysitting for Perodin.

Id. at 24. Additionally, the evidence rebutted any defense that there was only a

buy-sell relationship and not a conspiracy. Therefore, the court denied Jeanty’s

motion for a mistrial. Id.

         Perodin testified that he previously sold cocaine to Jeanty about ten times, a

kilogram at a time, starting in 2001. Id. at 27. Perodin stated that he often fronted

the cocaine to Jeanty, allowing him to take the cocaine and pay for it later. Id.

at 33-34. On re-cross examination, Perodin admitted that he could not recall



                                             5
details about the dates of the prior transactions, although they began in 2001. Id.

at 39-40. Later, Jeanty renewed his motion for a mistrial based on the admission of

the evidence about the ten drug transactions, which the district court denied,

explaining that it was not possible “to give an intelligent account of the crime

without mentioning [the prior drug transactions].” Id. at 61-62. Even assuming

that Rule 404(b) applied, the court found that notice was sufficient. Id. at 62. The

court reiterated that the evidence helped rebut the possibility that there was a buy-

sell relationship rather than a conspiracy and that Jeanty had opened the door by

bringing up his babysitting for Perodin. Id. at 62-63. The jury found Jeanty guilty

on both counts. R1-88. The district court sentenced Jeanty to 120 months of

imprisonment. R1-98 at 2. Jeanty filed a notice of appeal. R1-99.

                                 II. DISCUSSION

      On appeal, Jeanty argues that the district court abused its discretion by ruling

that the prior drug transactions were inextricably intertwined with the charged

crimes. Jeanty maintains that the district court’s reference to the evidence being

useful to show a conspiracy rather than a buy-sell relationship was factually

inapplicable in this case because he was not raising that defense. Jeanty asserts

that the government was required to provide notice of intent to use Rule 404(b)

evidence regardless of whether the evidence was presented in the case in chief or in



                                           6
rebuttal. Moreover, Jeanty asserts that the government was the first to raise

Jeanty’s babysitting as an issue.

      Jeanty argues that the district court should have granted a mistrial because

(1) the government’s violation of the Rule 404(b) notice requirement was flagrant,

and (2) the timing of the admission of the evidence, immediately after cross-

examination, reduced the impact of his cross-examination of Perodin. Jeanty

maintains that the evidence improperly invited the jury to convict him based on

propensity. Further, he argues that the lack of notice deprived him of a reasonable

opportunity to investigate the alleged transactions.

      We review admission of prior bad acts evidence for abuse of discretion.

United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008). We review “a

decision not to grant a mistrial for abuse of discretion.” United States v.

Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009). To receive a mistrial, a

defendant “must show that his substantial rights are prejudicially affected.” Id.

(quotation marks omitted).

      Evidence of prior bad acts, which include “crimes, wrongs [and] acts,” may

be admitted only for purposes other than proof of bad character. Fed. R. Evid.

404(b). Rule 404(b) is a rule of inclusion which allows prior bad acts evidence

unless it tends to prove only criminal propensity. United States v. Cohen, 888 F.2d



                                           7
770, 776 (11th Cir. 1998). When evidence of prior bad acts is inextricably

intertwined with evidence of the charged crime, however, the prior bad acts are

admissible as intrinsic, not extrinsic evidence, and Rule 404(b) does not apply.

United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992).

      Evidence of criminal activity other than the offense charged is intrinsic to

the offense when the evidence is “(1) an uncharged offense which arose out of the

same transaction or series of transactions as the charged offense, (2) necessary to

complete the story of the crime, or (3) inextricably intertwined with the evidence

regarding the charged offense.” Ellisor, 522 F.3d at 1269 (quotation marks and

citations omitted). The intertwined evidence is admissible if it tends to explain the

context, motive, and set-up of the crime and is “linked in time and circumstances

with the charged crime, or forms an integral and natural part of an account of the

crime, or is necessary to complete the story of the crime for the jury.” United

States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985). If the defendant in a

criminal prosecution requests it, the prosecution must provide reasonable notice of

the general nature of any prior bad acts evidence it intends to introduce at trial.

Fed. R. Evid. 404(b). However, this notice provision does not apply when the

prior bad acts are intrinsic to the charged offense. See Fed. R. Evid. 404(b)

advisory committee’s note to 1991 amendments.



                                           8
      In Ellisor, the defendant was charged with mail fraud relating to a scheme to

sell tickets for a Christmas show the defendant asserted he was organizing at the

Doubletree Hotel. 522 F.3d at 1259-1262. The government presented evidence

that the defendant did not pay his room bill at the Doubletree Hotel. Id. at 1269.

Although the defendant was not charged with a crime for the non-payment, we

explained that the evidence was intrinsic to the mail fraud and admissible.

Specifically, “the unpaid bill was a necessary part of the evidence relating to the

charged offense” because the unpaid bill corroborated the prosecution theory that

Ellisor fraudulently diverted funds he had collected in the form of ticket sales to

use for personal expenses rather than on preparations for the show. Id. at 1269-70.

      In Williford, the defendant was charged with conspiracy to import and

possess marijuana and possession of marijuana with intent to distribute. 764 F.2d

at 1496. An informant testified that the defendant was looking to purchase cocaine

and that the informant later helped the defendant unload cocaine and marijuana

from a truck. Id. at 1496-99. The defendant commented at that time that he was

pleased to receive the cocaine and that it was high quality. Id. at 1499. We held

that the evidence regarding the cocaine was admissible as inextricably intertwined

with the marijuana charges because it (1) established the defendant’s desire to

obtain cocaine and marijuana outside the conspiracy, and (2) explained the



                                           9
conversations between the defendant and the informant, which included

information regarding the uncharged cocaine-related conduct and the charged

conduct. Id. We noted that the fact that all of the conduct occurred in the same

time period weighed in favor of admission of the evidence. Id. at 1499-1500.

      Jeanty’s claim that the district court abused its discretion by admitting the

prior bad acts evidence is without merit. The evidence showed that Perodin did not

see Jeanty with any money on the day of the charged crime, but, he testified that he

believed Jeanty’s statement that he had the money for the transaction based on

their prior history of drug transactions. The district court did not abuse its

discretion by determining that the prior transactions were a necessary part of the

story to explain (1) the set-up of the crime (e.g., how the conspirators were using

the same method as they had in the past), (2) Jeanty’s intent to obtain the cocaine

and pay for it later, and (3) the trust between the co-conspirators as evidenced by

Perodin’s agreeing to obtain the cocaine for Jeanty based on Jeanty’s

representation that he had the money.

      In this case, the evidence showed that Perodin trusted Jeanty’s assertion that

he had the money for the drug transaction in part based on their prior history of

drug transactions. Without the evidence of prior transactions between Perodin and

Jeanty, the jury had no reason to infer that Perodin’s belief that Jeanty had money



                                           10
and intended to participate in the transaction was correct. Even though the prior

drug transactions were not contemporaneous with the charged conduct, and the

evidence of those transactions might not have been necessary to prove the elements

of the offense, the prior transactions were part of the story and explained why

Perodin believed Jeanty.

                                III. CONCLUSION

      Appellant challenges the admission of evidence on appeal. We conclude

that the district court did not abuse its discretion by admitting evidence of Jeanty’s

prior drug convictions because that evidence was necessary to explain the inter-

action between Jeanty and his co-conspirator Perodin. Accordingly, we

AFFIRM.




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