               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 08a0312n.06
                            Filed: May 30, 2008

                                          07-1007

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                     )
                                              )
       Plaintiff-Appellee,                    )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR THE
JOHN LONDON BRADSHAW,                         )   WESTERN DISTRICT OF MICHIGAN
                                              )
       Defendant-Appellant.                   )




       Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.


       PER CURIAM. The defendant, John London Bradshaw, appeals from the district

court’s judgment, claiming that his convictions for conspiracy to distribute and possess with

intent to distribute five grams or more of cocaine base (Count 1) and possession with intent

to distribute five grams or more of cocaine base (Count 2) should be set aside because the

district court impermissibly admitted “other acts” evidence under Federal Rule of Evidence

404(b). The defendant does not argue that the purported “other act” in this case did not

occur or that it was not relevant to the charges for which he stood trial. He does contend,

however, that the prejudicial effect of the evidence outweighed its probative value, thereby

jeopardizing his right to a fair jury. The government insists, first, that the evidence in

question is not subject to challenge under Rule 404(b); that, alternatively, even if it is
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United States v. Bradshaw

subject to 404(b) analysis, the district court did not abuse its discretion in ruling in favor of

admissibility; and, finally, that any error in the introduction of the evidence was harmless,

at most. We find no reversible error and affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND


       The charges in this case arose from a controlled buy of crack cocaine by Ironwood

(Michigan) police officers who had received a tip that drugs were being sold from Room

201 at the Blue Cloud Motel. A woman named “Rainbow,” later identified as co-defendant

Susan Cook, made the sale. The government’s theory was that Cook, who was sharing

a room with defendant Bradshaw, took the purchase money, exchanged it with Bradshaw

for the cocaine, and passed the cocaine on to the undercover buyer. After the successful

controlled purchase and a positive field test for cocaine, the police placed the motel room

under surveillance for two hours while they obtained a search warrant. When the police

executed the warrant, they found Bradshaw lying face down on a bed trying to stuff a

Crown Royal liquor blue velvet bag between the bed and the wall. The bag turned out to

contain 27 grams of crack cocaine and some of the photocopied money from the controlled

buy. Elsewhere in the room, the officers found additional crack cocaine and digital scales,

as well as a quantity of marijuana in a tan winter jacket. The lining of the jacket also

contained more of the photocopied money from the controlled buy. This jacket, which

police photographed but did not seize, later became the subject of the current 404(b)

challenge.


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United States v. Bradshaw

       Following Bradshaw’s and Cook’s indictment on conspiracy and drug distribution

charges, Bradshaw filed a motion in limine seeking to exclude evidence that less than three

weeks after his arrest in Ironwood, he had been arrested in Milwaukee for possession and

distribution of crack cocaine and had made a statement to police that he had been selling

crack cocaine to support his family. The court reserved ruling on the motion until trial.


       At trial, the district court denied the motion, permitting two Milwaukee police officers

to testify about their interrogation of Bradshaw, although they did not tell the jury that he

had actually been arrested, that he was in possession of crack at the time of his arrest, or

that he was charged with distribution. They did testify that Bradshaw was wearing a tan

jacket that appeared to be the same one depicted in the photograph taken in Ironwood and

that there were plastic baggies in the pocket of the jacket. Moreover, one of the officers

repeated Bradshaw’s statement to police that he had “been selling for about two weeks,

roughly” because “he had to take care of his family . . . and making $6.75 an hour wasn’t

enough to support his two children.” The district court ruled that testimony about the jacket

and about the defendant’s statement to the Milwaukee officers could come in under Rule

404(b) to establish intent – to show whether “he [was] in Ironwood with the intent to sell

crack, or was he there to have sex with Rainbow” – after making an explicit determination

that the probative value of the evidence outweighed its prejudicial effect.




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United States v. Bradshaw

                                      DISCUSSION


       As a general rule, we review a district court’s admission of evidence under Rule

404(b) for abuse of discretion. See United States v. Ganier, 468 F.3d 920, 925 (6th Cir.

2006). In this case, however, we conclude that there was no abuse of discretion because

the testimony in question was not subject to objection on the basis of Rule 404(b).


       The district court characterized the statement given by Bradshaw to the Milwaukee

detective as 404(b) evidence of an “other act,” both because the statement was given while

Bradshaw was under arrest for another act of dealing crack cocaine and because the

statement could refer to other acts of selling crack cocaine in the time period between

Bradshaw’s arrest in Ironwood and his arrest in Milwaukee. But the jury knew only that

Bradshaw had been “interviewed” by a Milwaukee officer who was assigned to drug

enforcement, after being given Miranda warnings. Although testimony about his statement

could be construed as indicating Bradshaw’s status as a suspect in a drug case in

Milwaukee, the jury was told to consider it only to show that Bradshaw had intentionally

been engaged in dealing crack cocaine in Michigan a little over two weeks earlier. In fact,

the statement was relevant as an incriminating admission by the defendant and not as

404(b) evidence. There was, therefore, no error in its introduction.


       Nor do we find any error in connection with the introduction of testimony concerning

the tan coat that Bradshaw was wearing during his interview in Milwaukee. At trial, the



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United States v. Bradshaw

attorneys seemingly agreed it was not a 404(b) issue,1 although the defendant contends

on appeal that testimony concerning the seizure of baggies from the pocket of the coat

could have been taken as evidence of his involvement in a separate offense. However,

his incriminating statement to Milwaukee police about his activities during the preceding

weeks made any such inference a matter of harmless error, at most. Moreover, we

conclude that defendant’s possession of the jacket in Milwaukee was relevant

circumstantial evidence of his involvement in drug-trafficking in Ironwood, based on

testimony concerning the photocopied money from the earlier controlled buy that was

found in the jacket in the Blue Cloud Motel room. The defendant had not identified the

jacket as his at the time of his arrest in Ironwood, giving its discovery in his possession two

weeks later in Milwaukee significant relevance as circumstantial evidence of his

participation in the conspiracy charged in Count 1 of the indictment. As a result, we




       1
        The transcript reveals the following exchange:
       [WITNESS]: It was . . . during his custodial search [that] I pulled several distinct plastic
baggies out of that pocket.
                                            *****
       THE COURT: Okay. We’re talking about the 404(b).
       [DEFENSE ATTORNEY]: We are.
       [PROSECUTOR]: I think I’m just going to stop right there.
       THE COURT: Do you want to stop it right there?
       [PROSECUTOR]: Are you going to object to what he already said [about the
       baggies]?
       [DEFENSE ATTORNEY]: Are you going to stop right there? That’s my choice at
       this point.
       [PROSECUTOR]: I think I’m going to stop right there.
       THE COURT: Okay. Then I guess we really don’t have a 404(b) then.

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United States v. Bradshaw

conclude that the testimony at issue was not actually subject to a 404(b) objection, and its

introduction was not error.


                                      CONCLUSION


       For the reasons set out above, we find no reversible error in connection with the

issues raised on appeal and, therefore, AFFIRM the judgment of the district court.




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