                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0075p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                             X
                                        Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                              -
                                                              -
                                                              -
                                                                  No. 06-6248
              v.
                                                              ,
                                                               >
 BRIAN BELL,                                                  -
                                     Defendant-Appellant. -
                                                             N
                               Appeal from the United States District Court
                            for the Western District of Tennessee at Memphis.
                             No. 04-20265—J. Daniel Breen, District Judge.
                                        Submitted: October 26, 2007
                                  Decided and Filed: February 14, 2008
                 Before: KEITH and CLAY, Circuit Judges; STEEH, District Judge.*
                                             _________________
                                                   COUNSEL
ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. E. Greg Gilluly, Jr.,
ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
       CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. STEEH, D. J.
(pp. 12-13), delivered a separate dissenting opinion.
                                             _________________
                                                 OPINION
                                             _________________
         CLAY, Circuit Judge. Defendant Brian Bell (“Bell”) appeals his conviction, following a jury
trial, for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),
possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bell argues that the district court
committed reversible error by admitting into evidence four prior state court drug convictions under
Federal Rule of Evidence 404(b) for the purpose of proving absence of mistake or accident and
intent. For the reasons that follow, we REVERSE the conviction and sentence imposed by the
district court and REMAND the case to the district court for a new trial.


        *
         The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                         1
No. 06-6248                  United States v. Bell                                             Page 2


                                       I. BACKGROUND
        On February 23, 2004, Shelby County Sheriff’s officers responded to 9155 Berry Garden
Circle in Cordova, Tennessee to investigate a domestic violence complaint concerning Bell and
Amber Williams (“Amber”), a fourteen-year-old child who lived at that address. Upon arrival,
Shelby County Deputy Sheriff Walter Blaylock found Bell in a physical altercation with Amber who
was crying and showed signs of physical injury. Officer Blaylock then arrested Bell whom he
proceeded to search. The search uncovered a bag of marijuana and $1,852.00 in cash.
        Having secured Bell, Officer Blaylock escorted Amber inside the residence so that she could
call her mother, April Armstrong (“Armstrong”), who was at school. While accompanying Amber
to the phone, Officer Blaylock observed marijuana, scales, a cutting board, baggies, and other drug
paraphernalia on a coffee table located in the house.
        Once Armstrong arrived, Officer Blaylock obtained her consent to search the house. The
subsequent search uncovered over eleven kilograms of marijuana, packaged in small amounts, over
ninety grams of crack cocaine, eleven firearms, assorted ammunition, a large digital scale, bags of
cigar “blunts,” which are commonly used to smoke marijuana, and other tools of the drug trade.
        Based on the evidence discovered during this search, Bell was subsequently charged in the
United States District Court for the Western District of Tennessee with: (1) possession of 11,071.1
grams of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) possession
of 94.6 grams of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and
(3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). On August 18,
2004, Bell was arraigned on these charges and entered a plea of not guilty. The case proceeded to
a jury trial on April 10, 2006.
        At trial, Amber testified that she lived at 9155 Berry Garden Circle with her mother and Bell
who stayed at the house “maybe three or four nights out of the week.” J.A. at 76. According to
Amber, Bell kept several personal belongings at the house, including his pit bull dogs, his clothes,
his cologne, and his backpack. Amber also testified that Bell kept his Lexus in the garage at the
house and that he had his own room where he kept his belongings. Amber further informed the jury
that no one else lived in the house with her and her mother during February of 2004.
        Armstrong likewise testified that in February of 2004 Bell lived with her and her daughter
at the residence which she leased at 9155 Berry Garden Circle. Armstrong indicated that Bell
assisted in paying the bills for the residence and that, although he was “in and out,” he “lived there
most of the time,” sharing a bedroom with her. J.A. at 141. She also confirmed that Bell had access
to the entire house, had his own room where he stored his belongings, and occasionally had visitors
to the house. Armstrong further testified that the drugs and guns found in the house were not hers.
        In response to these witnesses, Deeta Johnson (“Johnson”) testified for the defense that Bell
was her fiancé, and that he lived with her and her seven-year-old son in Memphis, Tennessee.
Johnson testified that Bell stayed with her “[b]asically every night” and that he was only gone about
“two nights out of the week,” in order to, as he informed Johnson, stay “[a]t his aunt’s.” J.A. at 439.
 Bell offered no other witnesses on his behalf.
       In addition to the testimony of these witnesses, the arresting officers, and police drug testing
experts, the jury was also presented with evidence of Bell’s four prior state court drug convictions:
(1) an October 16, 1997 conviction for possession of marijuana with intent to distribute; (2) an
October 16, 1997 conviction for possession of cocaine base with intent to distribute; (3) a June 18,
1999 conviction for possession of marijuana with intent to distribute; and (4) a June 18, 1999
conviction for possession of cocaine base with intent to distribute.
No. 06-6248                   United States v. Bell                                                Page 3


       Prior to trial, the government had filed a motion in limine, seeking the admission of these
prior convictions, under Federal Rule of Evidence 404(b), for the purpose of demonstrating
knowledge, intent, and absence of mistake or accident. Bell had opposed the motion and the district
court deferred ruling on the motion until later in the trial.
        While the issue came up at various points in the trial, the district judge did not directly return
to the government’s Rule 404(b) motion in limine until the close of Bell’s case. At that time, the
government renewed its request to introduce the evidence of Bell’s prior drug convictions to show
knowledge, intent, and absence of mistake. Bell objected to the admission of such evidence on the
basis of its highly prejudicial nature. The district judge then proceeded to engage in the three step
inquiry required for the admission of 404(b) evidence. The district judge determined that the
certified records of the convictions were sufficient evidence to demonstrate that these other acts had
occurred. The district judge also examined the government’s purported purposes for introducing
the evidence:
           The second issue deals not only with whether or not [the convictions] can be
        proved, but whether they – whether the government has articulated an appropriate
        basis under 4004(b) [sic] for the admission of such type – such evidence, in other
        words, whether or not they have submitted sufficient argument and proof to the court
        and based upon the court's review of the record as to whether or not one or more of
        the permitted admissibility bases is present. . . . I think it’s cited in [United States
        v. Ismail, 756 F.2d 1253 (6th Cir. 1985)] and [United States v. Lattner, 385 F.3d 947
        (6th Cir. 2004)] that, when the defendant in such a charge enters a plea of not guilty,
        basically he is putting every element, including the intent aspect, to the government's
        proof. And, as well, the court believes that the defendant's position in this case has
        been that he was not aware, he was – he did not know these drugs were there or they
        were planted by someone else, put in there by somebody else, you know, that this
        was simply he just happened to be – he was an innocent person in terms of their
        being present or it was a mistake or an accident or just happened to be there.
             I think under the circumstances of what I've heard from the proof, is that the
        government's submission of this evidence would go towards the issue of intent and
        absence of mistake or accident.
J.A. at 482-83. Finally, the district judge weighed the probative value of the evidence against its
prejudicial impact and found that, with a limiting instruction to the jury, the latter would not
substantially outweigh the former, and, accordingly, permitted the introduction of the evidence.
       When introducing the certified judgments of Bell’s prior convictions, the district court
cautioned the jury:
                Ladies and gentlemen, the court has permitted the introduction of testimony
        – or evidence, rather, here regarding the defendant, Mr. Bell, about committing – the
        commission of other crimes other than the ones that are charged in the indictment.
                Now if you find that the defendant committed these acts, these crimes, you
        can consider the evidence only as it relates to the government’s claim on the
        defendant’s intent or absence of mistake or absence of accident. You may not
        consider it for any other purpose. And I’ll give this instruction to you again when
        I give you the final instruction. But remember and keep this in mind, that the
        defendant is on trial here only for the offenses that he is charged with in this
        indictment, which again I will read to you. So the burden still remains on the
        government to prove its case beyond a reasonable doubt and, again, the defendant is
        not on trial for any previous act, but only for those that are charged here in this
        indictment.
No. 06-6248                  United States v. Bell                                               Page 4


J.A. at 491. After the closing arguments and before dismissing the jury for deliberations, the district
court repeated a similar instruction:
               Now, you heard testimony that the defendant committed crimes other than
       the ones charged in the indictment. If you find that the defendant did these crimes,
       you can consider the evidence only as it relates to the government’s claim on the
       defendant’s intent, absence of mistake, or absence of accident. You must not
       consider it for any other purpose. Now, remember that the defendant is on trial here
       for only those charges in the indictment and not for the other acts. Do not return a
       guilty verdict unless the government proves the crime charged in the indictment
       beyond a reasonable doubt.
J.A. at 560.
        On April 13, 2006, the jury found Bell guilty of all three charges. On September 18, 2006,
the district judge sentenced Bell to sixty months imprisonment on count 1, life imprisonment on
count 2, and one-hundred-twenty months imprisonment on count 3. The district judge ordered that
the sentences should run concurrently and be followed by 10 years of supervised release.
       On September 22, 2006, Bell filed his timely notice of appeal.
                                         II. DISCUSSION
         On appeal, Bell challenges the district court’s admission of the evidence of his prior drug
convictions under Rule 404(b). We find this Rule 404(b) claim to have merit and hold that the
district court erred by permitting the government to introduce evidence of Bell’s prior drug
convictions. Because we also find that the admission of this evidence violated Bell’s right to receive
a fair trial, we reverse Bell’s conviction and remand the case for a new trial.
A.     Standard of Review
        We generally review the district court’s admission or exclusion of evidence for abuse of
discretion. United States v. Ganier, 468 F.3d 920, 925 (6th Cir. 2006). However, in the specific
context of Rule 404(b):
       [W]e employ a three-part test, reviewing (1) for clear error the district court’s
       determination that the ‘other act’ took place; (2) de novo the district court’s legal
       determination that the evidence was admissible for a proper purpose; and (3) for
       abuse of discretion the district court’s determination that the probative value of the
       other acts evidence is not substantially outweighed by its unfairly prejudicial effect.
United States v. Ayoub, 498 F.3d 532, 547 (6th Cir. 2007). Accord United States v. Rayborn, 495
F.3d 328, 342 (6th Cir. 2007); United States v. Murphy, 241 F.3d 447, 450 (6th Cir. 2001); United
States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir. 1996). But see United States v. Haywood, 280
F.3d 715, 720 (6th Cir. 2002) (refusing to apply de novo review to the district court’s determination
that the contested evidence was admissible for a proper purpose, and applying abuse of discretion
standard instead). “These standards are not in fact inconsistent, because it is abuse of discretion to
make errors of law or clear errors of factual determination.” Ganier, 468 F.3d at 925 (citation and
internal quotation marks omitted).
        Under the abuse of discretion standard, “we will leave rulings about admissibility
undisturbed unless we are left with the definite and firm conviction that the district court committed
a clear error in judgment.” United States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005). “Broad
discretion is given to district courts in determinations of admissibility based on considerations of
No. 06-6248                  United States v. Bell                                              Page 5


relevance and prejudice, and those decisions will not be lightly overturned.” United States v.
Chambers, 441 F.3d 438, 455 (6th Cir. 2006). “A new trial is not required unless the error affects
substantial rights.” Id. (citing Fed. R. Crim. P. 52).
B.     Rule 404(b) Analysis
       Federal Rule of Evidence 404(b) states, in relevant part:
       Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
       a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident.
Fed. R. Evid. 404(b) (emphasis added). Admission of evidence under Rule 404(b) is also subject
to the requirements of Rule 403 which provides that “[a]lthough relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid.
403.
       Interpreting the requirements of these rules, we have outlined a three-step process for the
admission of Rule 404(b) evidence:
       First, the district court must make a preliminary determination regarding whether
       there is sufficient evidence that the “other acts” took place. The district court must
       then determine whether those “other acts” are admissible for a proper purpose under
       Rule 404(b). Finally, the district court must determine whether the “other acts”
       evidence is more prejudicial than probative.
United States v. Lattner, 385 F.3d 947, 955 (6th Cir. 2004). Accord United States v. Abboud, 438
F.3d 554, 581 (6th Cir. 2006); United States v. Jenkins, 345 F.3d 928, 937 (6th Cir. 2003). Once
the district court decides that the evidence is admissible under Rule 404(b), then it “must carefully
identify in its instructions to the jury, the specific factor named in the rule that is relied upon to
justify admission of the other acts evidence, explain why that factor is material, and warn the jurors
against using the evidence to draw the inferences expressly forbidden [by] Rule 404(b).” United
States v. Johnson, 27 F.3d 1186, 1194 (6th Cir. 1994). Accord Abboud, 438 F.3d at 581.
        Applying these factors to this case reveals that the district court erred in admitting the
evidence of Bell’s prior drug convictions for the purpose of demonstrating absence of mistake or
accident and intent, and abused its discretion in finding that the probative value of this evidence on
the issue of intent was not substantially outweighed by its prejudicial impact. Because this error was
not harmless, Bell is entitled to a new trial.
       1.      Sufficient Evidence That Other Acts Occurred
       The first step that the district court must engage in under the Rule 404(b) analysis is to
determine whether there is sufficient evidence to show that the defendant committed the other acts.
The Supreme Court has held that the government is not required to demonstrate that the other acts
occurred by a preponderance of the evidence. Huddleston v. United States, 485 U.S. 681, 689
(1988). However, the government cannot introduce evidence of potentially prejudicial similar acts
without any substantiation. “In the Rule 404(b) context, similar act evidence is relevant only if the
jury can reasonably conclude that the act occurred and that the defendant was the actor.” Id.
       In the instant case, the evidence of Bell’s prior drug convictions included certified copies of
the conviction records. At trial, Bell did not contest that these records were accurate or claim he did
not commit the prior crimes. On appeal, Bell has likewise refrained from arguing that the evidence
No. 06-6248                  United States v. Bell                                              Page 6


presented was insufficient to show he committed the prior drug offenses. Accordingly, the district
court’s conclusion that there was sufficient evidence to show that Bell had committed the prior drug
offenses was not clearly erroneous.
       2.      Admissible For Legitimate Purpose
        The second step of the district court’s Rule 404(b) analysis is to determine whether the other
acts evidence is admissible for a legitimate purpose. “To determine whether the proffered evidence
is admissible for a proper purpose, the trial court must decide ‘whether that evidence is probative
of a material issue other than character.’” United States v. Carney, 387 F.3d 436, 451 (6th Cir.
2004) (quoting Huddleston, 485 U.S. at 686)). This requires a three part inquiry. “Evidence of other
acts is probative of a material issue other than character if (1) the evidence is offered for an
admissible purpose, (2) the purpose for which the evidence is offered is material or ‘in issue,’ and
(3) the evidence is probative with regard to the purpose for which it is offered.” Rayborn, 495 F.3d
at 342 (quoting Jenkins, 345 F.3d at 937).
       The district court found and instructed the jury that the evidence of Bell’s prior convictions
was admissible to show both absence of mistake or accident, and intent. We find this instruction to
be erroneous.
        Absence of mistake or accident is one of the permissible purposes listed in Rule 404(b).
However, “the government’s purpose in introducing the evidence must be to prove a fact that the
defendant has placed, or conceivably will place, in issue, or a fact that the statutory elements
obligate the government to prove.” Merriweather, 78 F.3d at 1076. Thus, for other acts evidence
to be admissible for the purpose of showing absence of mistake or accident, the defendant must
assert a defense based on some type of mistake or accident. See United States v. Newsom, 452 F.3d
593, 606 (6th Cir. 2006) (finding absence of mistake not to be a permissible purpose, in a felon in
possession case, when the defendant’s only defense was that the gun was not his and that he did not
know that it was under his seat); United States v. Ward, 190 F.3d 483, 489 (6th Cir. 1999) (rejecting
absence of mistake as a permissible purpose for the admission of evidence when the defendant’s
“defense was not that she mistakenly thought she was selling powdered sugar instead of cocaine”);
Merriweather, 78 F.3d at 1077 (noting that “absence of mistake ‘on behalf of the government’ is not
a legitimate basis to admit other acts evidence”).
        The district court erred in concluding that the evidence of Bell’s prior convictions was
admissible for the purpose of demonstrating absence of mistake or accident. This case did not
present an issue of mistake or accident. Bell’s argument was not that he was mistaken about the
narcotic nature of the substances seized by the police, but rather that he never possessed the
marijuana and crack cocaine. The district court recognized that there was “no indication from
[Bell’s] arguments or anything that has been put on that would indicate that Mr. Bell knew
something was there, but didn’t know it was drugs.” J.A. at 472. On the contrary, the district court
believed Bell’s position to be that “he did not know these drugs were there or they were planted by
someone else, put in there by somebody else, [that] he was an innocent person in terms of their being
present or it was a mistake or accident or just happened to be there.” J.A. at 483. In other words,
Bell was claiming that it was a mistake for the police to think that the drugs were his, not that he was
mistaken about the fact that the substances found were drugs. As Bell “never claimed that he was
unknowingly dealing in cocaine or was unwittingly engaging in unlawful activity,” the evidence of
his prior drug convictions could not be properly admitted for the purpose of absence of mistake or
accident. Merriweather, 78 F.3d at 1077.
        Proving intent, however, was a potentially legitimate reason for the government to offer
evidence of Bell’s prior convictions. Rule 404(b) specifically lists demonstrating a defendant’s
intent as a permissible purpose. Moreover, Bell’s intent to possess and distribute was at issue
No. 06-6248                   United States v. Bell                                              Page 7


because it is an element that the government must prove to establish possession with intent to
distribute. See 21 U.S.C. § 841(a)(1) (“[I]t shall be unlawful for any person knowingly or
intentionally to . . . possess with intent to . . . distribute . . . a controlled substance”) (emphasis
added); United States v. Coffee, 434 F.3d 887, 897 (6th Cir. 2006) (“The elements of a charge of
possession with intent to distribute illegal drugs are: (1) the defendant knowingly, (2) possessed a
controlled substance, (3) with intent to distribute.”). By “plead[ing] not guilty to the offense of
possession with intent to distribute, [Bell] put his general intent and specific intent at issue, thereby
giving the government the burden to establish both beyond a reasonable doubt.” Lattner, 385 F.3d
at 957. “[W]here the crime charged is one requiring specific intent, the prosecutor may use 404(b)
evidence to prove that the defendant acted with specific intent notwithstanding that the defense was
lack of possession, not lack of intent to distribute.” United States v. Bilderbeck, 163 F.3d 971, 977
(6th Cir. 1999). See also Lattner, 385 F.3d at 957 (“[W]hen a defendant is charged with a specific
intent crime, such as possession with intent to distribute, 404(b) evidence is admissible to prove
intent, subject to the probative/prejudicial balancing”); Johnson, 27 F.3d at 1192. Accordingly, the
district court properly found that the evidence was being offered for the admissible purpose of intent
and that this purpose was at issue in the case.
        However, whether the evidence of Bell’s prior drug convictions was probative on the issue
of intent is a closer question. “To 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.” Haywood, 280 F.3d at 721 (quoting Blankenship, 775 F.2d
at 739). But see United States v. Ismail, 756 F.2d 1253, 1260 (6th Cir. 1985) (“There is no absolute
maximum number of years that may separate a prior act and the offense charged.”). Thus, we have
drawn a distinction between the probative value of prior acts of personal drug use and prior acts of
drug distribution, finding the former not to be probative of intent to possess and distribute. See
Jenkins, 345 F.3d at 937-38 (“Jenkins’ admission that she is a crack cocaine user does not ipso facto
lead to the conclusion that she was involved in the distribution of crack cocaine.”); Haywood, 280
F.3d at 721-22 (“Acts related to the personal use of a controlled substance are of a wholly different
order than acts involving the distribution of a controlled substance. One activity involves the
personal abuse of narcotics, the other the implementation of a commercial activity for profit.”)
(quoting United States v. Ono, 918 F.2d 1462, 1465 (9th Cir. 1990)).
         Likewise, while we “have repeatedly recognized that prior drug distribution evidence is
admissible to show intent to distribute,” Ayoub, 498 F.3d at 548 (citing Jenkins, 345 F.3d at 938
(collecting cases)), our cases have only found such evidence 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. See, e.g., United States v. Robinson, 904 F.2d 365, 368 (6th Cir.
1990) (admitting testimony about the defendant’s statements to co-conspirator regarding his intent
to distribute in prior drug transactions to show present intent to distribute in transaction with same
co-conspirator); United States v. Rodriguez, 882 F.2d 1059, 1064-65 (6th Cir. 1989) (admitting
evidence of prior drug transactions with same accomplice as in present case for the purpose of
showing intent, plan, and knowledge). Unless the past and present crime are related by being part
of the same scheme of drug distribution or by having the same modus operandi, the fact that a
defendant has intended to possess and distribute drugs in the past does not logically compel the
conclusion that he presently intends to possess and distribute drugs. See United States v. Bakke, 942
F.2d 977, 983 (6th Cir. 1991) (holding that evidence of the defendant’s arrest in a “totally unrelated
drug transaction” six months after the charged drug conspiracy only showed that the defendant was
a drug dealer at the time of the later transaction and did not prove that the defendant was a member
of the drug conspiracy). Indeed, a person may be a distributor of drugs on one occasion, and a mere
user on another. The only way to reach the conclusion that the person currently has the intent to
possess and distribute based solely on evidence of unrelated prior convictions for drug distribution
is by employing the very kind of reasoning – i.e., once a drug dealer, always a drug dealer – which
404(b) excludes. See Old Chief v. United States, 519 U.S. 172, 180-81 (1997). Thus, to be
No. 06-6248                  United States v. Bell                                               Page 8


probative of a defendant’s present intent to possess and distribute, his prior convictions for drug
distribution must be related in some way to the present crime for which the defendant is on trial.

        Here, Bell’s prior convictions were for unlawful possession of cocaine and marijuana with
intent to distribute, the same type of charges at issue in this case. However, the convictions were
for offenses that occurred several years previously and were not alleged to be part of the same
scheme to distribute drugs or to involve a similar modus operandi. Such evidence of prior
distribution, unconnected to the present charge, is not probative of whether Bell intended to possess
and distribute drugs in the instant case. Accordingly, the district court erred in finding evidence of
these prior convictions admissible for the legitimate purpose of proving Bell’s intent.
       3.      Prejudicial/Probative Balancing
         As the district court erred in finding that evidence of Bell’s prior drug convictions was
admissible for the purpose of demonstrating intent and absence of mistake, our Rule 404(b) analysis
need proceed no further. However, in order to assuage any doubts about the error committed by the
district court in its Rule 404(b) ruling, we address the further mistake committed by the district court
in the final step of its Rule 404(b) analysis.
        This final part of the Rule 404(b) analysis requires the district court to determine whether
the prejudicial impact of the proffered evidence substantially outweighs its probative value. In
Johnson, we explained the rationale for this balancing requirement:
       When jurors hear that a defendant has on earlier occasions committed essentially the
       same crime as that for which he is on trial, the information unquestionably has a
       powerful and prejudicial impact. That, of course, is why the prosecution uses such
       evidence whenever it can. When prior acts evidence is introduced, regardless of the
       stated purpose, the likelihood is very great that the jurors will use the evidence
       precisely for the purpose it may not be considered; to suggest that the defendant is
       a bad person, a convicted criminal, and that if he “did it before he probably did it
       again.” That is why the trial court’s duty is to apply Rule 404(b) correctly and,
       before admitting such evidence, to decide carefully whether it will be more
       substantially prejudicial than probative.
27 F.3d at 1193. The Supreme Court has further clarified that “[t]he term ‘unfair prejudice,’ as to
a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the
factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old
Chief, 519 U.S. at 180. Such improper grounds include “generalizing a defendant’s earlier bad act
into bad character and taking that as raising the odds that he did the latter bad act now charged (or,
worse, as calling for preventive conviction even if he should happen to be innocent momentarily).”
Id. at 180-81. “A limiting instruction will minimize to some degree the prejudicial nature of other
criminal acts; it is not, however, a sure-fire panacea for the prejudice resulting from needless
admission of such evidence.” Haywood, 280 F.3d at 724.
         With regard to the probative value of the evidence, the Supreme Court has suggested that the
district court should consider “the full evidentiary context of the case as the court understands it
when the ruling must be made.” Old Chief, 519 U.S. at 182. The Fifth Circuit has explained:
       Probity in this context is not an absolute; its value must be determined with regard
       to the extent to which the defendant’s unlawful intent is established by other
       evidence, stipulation, or inference. . . . Thus, if the Government has a strong case on
       the intent issue, the extrinsic evidence may add little and consequently will be
       excluded more readily. . . . In measuring the probative value of the evidence, the
No. 06-6248                   United States v. Bell                                               Page 9


        judge should consider the overall similarity of the extrinsic and charged offenses.
        If they are dissimilar except for the common element of intent, the extrinsic offense
        may have little probative value to counterbalance the inherent prejudice of this type
        of evidence.
United States v. Beechum, 582 F.2d 898, 914-15 (5th Cir. 1978). We have similarly found that the
district court should consider the government’s alternative sources of proving intent when weighing
the probative value of other acts evidence. See Haywood, 280 F.3d at 723; Merriweather, 78 F.3d
at 1078-79 (“One factor in balancing unfair prejudice against probative value under Rule 403 is the
availability of other means of proof.”).
       Because of the highly discretionary nature of this balancing process, the district court’s
decision is afforded great deference. Chambers, 441 F.3d at 455. Accord United States v. Layne,
192 F.3d 556, 573 (6th Cir. 1999) (“[T]he district court enjoys broad discretion in balancing
probative value against prejudicial impact.”). In reviewing the district court’s balancing of
prejudice and probative value, “we look at the evidence in the light most favorable to its proponent,
maximizing its probative value and minimizing its prejudicial effect.” Chambers, 441 F.3d at 455
(quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993)). Accord United States v.
Maliszewski, 161 F.3d 992, 1010 (6th Cir. 1998).
        Despite the substantial deference that must be afforded a lower court’s Rule 403 balancing
decision, we find that the district court abused its discretion in the instant case. We have already
noted that the evidence of Bell’s prior convictions was not probative of his present intent to possess
and distribute, the only plausibly legitimate purpose for offering this evidence. However, even
assuming that this evidence would have some probative value on the issue of intent, its value would
be slight. Bell’s prior distribution of drugs several years prior to the instant offense does not
necessarily imply that he was intending to possess and distribute drugs on this occasion. The only
way that such evidence would be probative is if the jury were permitted to infer that because Bell
has distributed drugs in the past, it is likely that he was doing so in the present case. Yet, this is the
very kind of propensity reasoning which Rule 404(b) prohibits the jury from using in assessing the
probative value of Bell’s prior convictions and prevents the judge from considering when engaging
in the Rule 403 balancing process. See Old Chief, 519 U.S. at 182.
         Moreover, the government had little, if any, need for such evidence to establish Bell’s intent.
“The government had a number of means available to it to prove [Bell’s] specific intent to distribute
and possess cocaine, without showing that he was involved in” previous drug crimes. Merriweather,
78 F.3d at 1078. The testimony at trial established that the police recovered over twenty pounds of
marijuana, packaged in small amounts, which is consistent with distribution, and over ninety grams
of crack cocaine. These quantities alone were sufficient to demonstrate intent to distribute. See
United States v. Faymore, 736 F.2d 328, 333 (6th Cir. 1984) (finding that intent to distribute may
be inferred from large quantities of drugs). The police also found drug scales, a cutting board,
baggies, cigar “blunts,” and other drug paraphernalia which strongly suggest an intent to distribute.
The government attorney appears to have recognized the powerful weight of this other evidence in
its closing argument when he stated:
        I would submit with regard to the drugs [sic] intent to distribute. Your common
        sense. You heard the testimony. I submit it’s undisputed. It is undisputed that that
        amount of crack cocaine, that amount of marijuana is indicative of an intent to
        distribute. You combine the scales, you combine the packaging materials, you
        combine the cutting board, all of that demonstrates an intent to distribute. I submit
        its not even a contested issue.
No. 06-6248                    United States v. Bell                                               Page 10


J.A. at 515. Tellingly, the government attorney did not even mention the evidence of Bell’s prior
convictions when explaining why the jury should find that he had the requisite intent to distribute.
Indeed, the strength of this other evidence of intent was so overwhelming that the evidence of Bell’s
prior convictions could only have been marginally probative at best.
        In contrast to the weak probative value of the evidence of Bell’s prior convictions, its
prejudicial impact was significant. Evidence of a defendant’s prior crimes “unquestionably has a
powerful and prejudicial impact.” Johnson, 27 F.3d at 1193. Here, the evidence of Bell’s prior
crimes painted a picture of Bell as a repeat drug offender, greatly increasing the chance that the jury
would punish him not for his involvement in the offense at issue, but rather because he appeared to
be a “bad” guy. By “branding [Bell] as a criminal possessing crack cocaine, the evidence had ‘the
natural tendency to elicit the jury’s opprobrium for [Bell].” Jenkins, 345 F.3d at 939 (quoting
United States v. Spikes, 158 F.3d 913, 929 (6th Cir. 1998)). Given the prejudicial nature of this
evidence, “the likelihood [was] very great that the jurors [would] use the evidence precisely for the
purpose [for which] it may not be considered; to suggest that the defendant [was] a bad person, a
convicted criminal, and that if ‘he did it before, he probably did it again.’” Johnson, 27 F.3d at
1193.
         The district court’s limiting instructions to the jury did little to abate this prejudicial impact.
These instructions did remind the jury that Bell was on trial only for the charged offenses and not
for his prior bad acts. However, by directing the jury to consider these acts for the purpose of
ascertaining Bell’s intent, the court was implicitly approving the kind of reasoning which would
suggest that because Bell was a drug distributor in the past, the jury should consider him to have
distributed drugs in the present case. Moreover, the court’s instruction created the possibility for
an even greater prejudicial impact by directing the jury to consider the evidence of Bell’s prior
convictions for the purpose of absence of mistake, a matter which was not even at issue in the case.
Such confusion of the purpose of this other acts evidence was likely to create more rather than less
prejudice. See Merriweather, 78 F.3d at 1079 (finding that jury instructions which “left the jury free
to consider” the other acts evidence for several impermissible purposes “permitted the jury to draw
the very inference forbidden by Rule 404(b)”). Thus, even if we were to find that the evidence of
Bell’s prior drug convictions was properly admissible to demonstrate his intent to distribute, we are
left with the definite and firm conviction that the district court committed a clear error in judgment
when it found that the highly prejudicial impact of this evidence did not substantially outweigh the
slight, if any, probative value it may have provided.
       As the district court (1) erred in finding that the evidence of Bell’s prior bad acts was
admissible for the purposes of proving intent and demonstrating absence of mistake or accident, and
(2) abused its discretion in finding that the limited probative value of this evidence was not
substantially outweighed by its highly prejudicial impact, we conclude that the district court’s
admission of this evidence under Rule 404(b) was erroneous.
C.      Harmless Error Inquiry
         Even though the district court’s admission of the evidence of Bell’s prior drug convictions
was erroneous, Bell is not entitled to a new trial if this error was harmless. As we have previously
stated, “[a]n error in the admission of evidence does not require granting a criminal defendant a new
trial unless the error affects ‘substantial rights.’” United States v. DeSantis, 134 F.3d 760, 769 (6th
Cir. 1998) (quoting Fed. R. Crim. Proc. 52(a)). Accord Murphy, 241 F.3d at 453. In short, we must
“consider the impact of the error upon the right of the defendant to a fair trial.” Layne, 192 F.3d at
573. “We must take account of what the error meant to [the jury], not singled out and standing
alone, but in relation to all that happened.” Murphy, 241 F.3d at 453 (quoting United States v.
Cowart, 90 F.3d 154, 158 (6th Cir. 1996)). Our concern is not “with whether there was sufficient
evidence on which [the defendant] could have been convicted without the evidence complained of,”
No. 06-6248                  United States v. Bell                                             Page 11


but rather the “question is whether there is a reasonable possibility that the evidence complained of
might have contributed to the conviction.” DeSantis, 134 F.3d at 769 (quoting Fahy v. Connecticut,
375 U.S. 85, 86 (1963); O’Guinn v. Dutton, 88 F.3d 1409, 1461 (6th Cir. 1996)). “We will presume
that the district court’s error was reversible unless we can say, ‘with fair assurance, after pondering
all that happened without stripping the erroneous action from the whole, that the judgment was not
substantially swayed by error.’” Haywood, 280 F.3d at 724 (quoting Kotteakos v. United States, 328
U.S. 750, 765 (1946)). “Whether the jury was ‘substantially swayed’ by the improper admission of
evidence of other acts in a criminal trial generally depends on whether the properly admissible
evidence of the defendant’s guilt was overwhelming.” Id. “When the government presents other
convincing evidence, we may deem the admission of 404(b) evidence mere harmless error.” Layne,
192 F.3d at 573. The “giving of a curative instruction by the trial court [also] occasionally renders
harmless the erroneous admission of prejudicial evidence.” Id.
        In the instant case, there is a reasonable probability that the wrongly admitted evidence of
Bell’s prior drug convictions contributed to his conviction in this case. As already indicated, this
evidence was highly prejudicial and suggested to the jury that Bell was an habitual drug dealer who
should be kept off the streets. The evidence of these prior drug convictions painted a picture of Bell
as a career drug dealer, making it substantially more likely that the jury would convict him, not on
the evidence presented, but rather because of a belief that if Bell dealt drugs in the past, he probably
possessed and intended to distribute the drugs in the present case. Rather than limiting the odds that
the jury would employ this propensity reasoning during its deliberations, the district court’s flawed
instruction, which wrongly permitted the jury to consider the evidence of Bell’s prior drug
convictions for the purposes of intent or absence of mistake, in all likelihood probably increased
them.
        The weak evidence of possession presented in the case further increased the likelihood that
such impermissible reasoning would motivate the jury to convict Bell. While the immense quantity
of drugs found at 9155 Berry Garden Circle (over 11,000 grams of marijuana and 94.6 grams of
crack cocaine) as well as the packaging and distribution paraphernalia present in the home provided
overwhelming evidence of someone’s intent to distribute the drugs, the government’s evidence to
connect Bell to those drugs, and thus demonstrate that Bell was the person who intended to
distribute them, was only circumstantial. The government offered no witnesses who could directly
link Bell to the drugs found at 9155 Berry Garden Circle. Amber and Armstrong did testify at trial
that Bell spent a few nights of each week at 9155 Berry Garden Circle and stored his possessions
there. However, they could not confirm that the drugs found at the apartment belonged to Bell.
Moreover, their testimony was refuted by Johnson who reported that Bell stayed at her place almost
every night. While a reasonable jury could find that Bell possessed the drugs based upon this
evidence, it would not be compelled to do so. Rather, given this circumstantial and disputed
evidence, it is reasonably probable that the tipping factor for the jury was the evidence of Bell’s
prior drug convictions.
       As the record in this case does not provide us with the fair assurance that the jury’s verdict
was not substantially swayed by the evidence of Bell’s prior convictions, we cannot find that the
admission of this evidence was harmless. Accordingly, we conclude that Bell is entitled to a new
trial.
                                        III. CONCLUSION
        For the foregoing reasons, the conviction and sentence imposed by the district court are
REVERSED and the case is REMANDED to the district court with instructions to provide Bell
with a new trial.
No. 06-6248                  United States v. Bell                                             Page 12


                                          ______________
                                             DISSENT
                                          ______________
         GEORGE C. STEEH, District Judge, dissenting. I respectfully dissent. In the context of
determining the admissibility of proposed Rule 404(b) evidence, the majority opinion correctly
concludes that Bell's general intent to possess the illegal drugs and firearms, and his specific intent
to distribute drugs, were both placed at issue by his not guilty pleas. Majority Op. at 11-12.
       [T]he prosecution’s burden to prove every element of the crime is not relieved by a
       defendant’s tactical decision not to contest an essential element of the offense. In the
       federal courts, “[a] simple plea of not guilty . . . puts the prosecution to its proof as
       to all elements of the crime charged.”
Estelle v. McGuire, 502 U.S. 62, 69-70 (1991) (quoting Mathews v. United States, 485 U.S. 58, 64-
65 (1988)). Bell’s not guilty pleas put the government to its proofs that Bell knowingly or
intentionally possessed the 11 kilograms of marijuana and 94.6 grams of crack cocaine found inside
the residence, and that Bell specifically intended to distribute these drugs. 21 U.S.C. § 841(a)(1);
United States v. Coffee, 434 F.3d 887, 897 (6th Cir. 2006).
        The majority analysis discusses reasons for refusing admission of Bell’s prior drug
convictions to prove the absence of mistake or accident, or to prove specific intent to distribute the
drugs, yet generally overlooks the government's burden of proving Bell knowingly or intentionally
possessed the drugs and guns. The district court properly focused its attention on the general intent
required to prove the § 841(a)(1) crime of knowingly or intentionally exercising dominion and
control over illegal drugs, in response to Bell's defense that “he did not know these drugs were there
or they were planted by someone else[.]” J.A. 482-83. The district court's inclusion of “absence of
mistake” and “absence of accident,” along with “intent,” as purposes for admitting Bell’s prior drug
convictions, recognized the government’s burden of proving that Bell did not mistakenly or
accidently possess the drugs by simply living at the home where the drugs were found.
         The district court also properly relied on United States v. Lattner, 385 F.3d 947 (6th Cir.
2004) in deciding to admit Bell’s prior drug convictions under Rule 404(b). As reasoned in Lattner,
“it seems logical that when [the defendant] pled not guilty to the offense of possession with intent
to distribute, he put his general intent and specific intent at issue, thereby giving the government the
burden to establish both beyond a reasonable doubt.” Id. at 957. Citing United States v. Ismail, 756
F.2d 1253 (6th Cir. 1985), a case also relied on by the district court, the Lattner court recognized
that “claims of innocent presence or association . . . routinely open the door to 404(b) evidence of
other drug acts.” Lattner, 385 F.3d at 957 (emphasis added).
        Logically, Bell’s prior convictions represent compelling probative evidence of his general
intent to possess the marijuana and crack cocaine. Bell’s history includes knowing and intentional
acts in relation to illegal drugs, making it much less plausible that Bell lacked knowledge on this
occasion of the presence of over 11 kilograms of marijuana, 94.6 grams of crack cocaine, eleven
firearms, drug packaging materials, and tools of the drug trade inside the home. Bell’s prior acts of
drug distribution diminish the likelihood that he innocently overlooked the illegal contraband within
the residence, and also diminish the chances that these items were planted or left at the residence by
someone else.
        In short, the Rule 404(b) evidence of Bell’s four prior drug convictions is powerfully
probative of Bell’s general and specific intent. While the prior acts evidence greatly undermines
Bell’s opening statement to the jury that “he had no knowledge whatsoever about the contents that
No. 06-6248                  United States v. Bell                                             Page 13


were in that house,” J.A. 72 (emphasis added), the prior acts evidence was not unfairly prejudicial.
Bell’s closing argument criticizes the absence of any evidence of actual possession or direct
evidence of his constructive possession of the contraband. J.A. 521-526. Just as the $1,800.00 cash
in Bell’s pocket at the time of arrest constitutes important circumstantial evidence of his constructive
possession, so does the prior acts evidence admitted by the court. The record below includes an
accurate analysis of the Rule 403 balancing that preceded the decision to admit this evidence. The
district judge’s admission of Bell’s prior convictions cannot be said to be an abuse of discretion, and
if we truly afford great deference to the trial court’s decision, this conviction should be affirmed.
