                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0788n.06

                                           No. 10-5206

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                 Nov 22, 2011
UNITED STATES OF AMERICA,                                )                  LEONARD GREEN, Clerk
                                                         )
       Plaintiff-Appellee,                               )
                                                         )        ON APPEAL FROM THE
               v.                                        )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE MIDDLE
JASON QUALLS,                                            )        DISTRICT OF TENNESSEE
                                                         )
       Defendant-Appellant.                              )
                                                         )


BEFORE: MARTIN, GUY, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Jason Qualls appeals his convictions for being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1), and for possession with intent to distribute cocaine base, in

violation of 21 U.S.C. § 841(a)(1). He argues that the district court erroneously admitted evidence

regarding two prior drug transactions, and committed plain error in the wording of the limiting

instruction given to the jury after this testimony was admitted. We disagree and therefore affirm.

                                                 I.

       The events giving rise to this case began when Metropolitan Nashville Police Department

Detective Jean McCormack received information that illegal narcotics were being distributed from

the residence at 910 Cahal Avenue in Nashville, Tennessee. Detective McCormack arranged for a

confidential informant to make a controlled buy. The informant called a man known as “Jay” and
No. 10-5206
United States v. Qualls


arranged to meet with him to purchase crack cocaine. Detective McCormack then searched the

informant and the informant’s vehicle for contraband, gave the informant previously photocopied

currency with which to make the controlled buy, and followed the informant to the designated

location.

       In the meantime, Officer Matthew Valiquette staked out the residence at 910 Cahal Avenue.

He observed a white Dodge Intrepid pull into the driveway; saw the front door of the residence open,

but could not tell whether anyone left the house; and then watched the Intrepid drive away. At that

point, Officer Valiquette radioed other officers, who followed the vehicle to the location of the

controlled buy, where Detective McCormack was waiting.

       At the location of the controlled buy, Detective McCormack then observed a white Dodge

Intrepid being driven by a black woman, with a black man riding in the passenger seat, pull up to a

stop sign. She watched the man exit the Intrepid, approach the driver’s-side door of the informant’s

vehicle, and engage in a brief exchange with the informant. Detective McCormack testified at trial

that she recognized the man from the Intrepid as Jason Qualls.

       After the Intrepid drove away, the informant met with Detective McCormack and turned over

a yellow, rock-like substance that tested positive for cocaine base. Detective McCormack searched

the informant and the informant’s vehicle to confirm that the informant did not possess any

additional contraband.

       While the informant was meeting with Detective McCormack, other officers followed the

Intrepid back to 910 Cahal Avenue. Officer Valiquette, who had maintained surveillance of the


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residence during this time, watched the Intrepid pull into the driveway. He observed a black woman

and a black man exit the vehicle and go inside the house.

       A couple of days later, Detective McCormack again met with the informant to arrange a

controlled buy. Following the informant’s phone call to “Jay,” Officer Valiquette observed a black

man and a black woman exit the residence at 910 Cahal Avenue and get into a white Dodge Intrepid.

As before, other officers followed the Intrepid to the designated location, where the informant, under

surveillance by Detective McCormack, was waiting.

       From her vantage point, Detective McCormack observed the Intrepid pull up next to the

informant’s vehicle. She watched the informant approach the passenger side of the Intrepid and

engage in a brief exchange with the man she recognized as Qualls. After the exchange, the informant

met with Detective McCormack and turned over a “yellowish rock” that tested positive for cocaine

base; the informant and the informant’s vehicle were searched; and other officers followed the

Intrepid back to the 910 Cahal Avenue residence.

       Over the next few days, the police determined that the Intrepid was registered to Quantina

Williams of 910 Cahal Avenue. The police also conducted a records check of 977-1807, the phone

number used by the informant to contact “Jay,” and determined that the number belonged to Jason

Qualls. Although Detective McCormack later stated in an affidavit that the number for which the

record check was conducted was 977-1809, she explained at trial that the last digit of the number

listed in the affidavit was a typographical error.




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       Based on the results of this investigation, Detective McCormack obtained a warrant to search

the premises of 910 Cahal Avenue. She executed the warrant with the assistance of other

Metropolitan Nashville Police Department officers and Agent Wayne Kilday of the Bureau of

Alcohol, Tobacco, Firearms, and Explosives. The officers conducted a knock and announce,

received no response, and forcibly entered the residence. Inside, they found Quantina Williams and

three children.

       While the officers conducted the search, Williams telephoned Qualls and asked him to come

to the residence. When Qualls arrived a short time later, the officers placed him in handcuffs and

read him his Miranda rights. Qualls subsequently told the officers that any illegal narcotics they

found in the 910 Cahal Avenue residence were his, not Williams.

       The search of the residence revealed a .25 caliber pistol, a .32 caliber revolver, two sets of

digital scales, 1.6 grams of cocaine base, and $2,767 in United States currency. Qualls told Agent

Kilday that he purchased the revolver “from a guy” for $30. Qualls also stated that he bought the

pistol for $40 and that he kept both firearms for protection. Much of the currency was found in

Williams’ purse, some of which was linked to the controlled buys.

       Qualls was subsequently indicted for being a felon in possession of a firearm, in violation

of 18 U.S.C. §§ 922(g)(1) and 924, and for possession with intent to distribute cocaine base in

violation of 21 U.S.C. § 841(a)(1). He moved to suppress the evidence found at the 910 Cahal

Avenue residence, as well as his statements to the police. Qualls also moved to exclude evidence




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United States v. Qualls


of the controlled drug buys that lead to the search and his subsequent arrest. The district court

denied both motions.

        At trial, Williams testified that she and Qualls had been involved in a romantic relationship,

and that he often left clothes and other personal items at her residence. She further testified that the

digital scales, crack cocaine, and firearms recovered during the search did not belong to her; that a

hat found resting on one of the guns belonged to Qualls; that some of the money in her purse came

from Qualls; that his nickname was “Jay”; and that, on occasion, she would drive Qualls to meet

people and did not ask the purpose of such meetings.

        The jury found Qualls guilty on both counts. After the verdict was returned, Qualls moved

for judgment as a matter of law or alternatively for a new trial. The district court denied his motion.

Thereafter, the district court sentenced Qualls to 120 months’ imprisonment on each count, to run

concurrently with each other and with existing state sentences, and to three years supervised release

on Count One and six years supervised release on Count Two, also to run concurrently. Qualls

timely appeals his convictions.

                                                  II.

        Qualls argues that his convictions should be vacated for two reasons: (1) the district court

erroneously admitted evidence of the prior controlled drug buys as background evidence and,

alternatively, as “other acts” evidence under Federal Rule of Evidence 404(b); and (2) the district

court plainly erred in the wording of the limiting instruction regarding the drug-buy evidence. We

consider these arguments in turn.


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                                                  A.

         Qualls first contends that the district court erroneously admitted evidence of the prior

controlled buys as background evidence. Pursuant to Federal Rule of Evidence 404(b), “[e]vidence

of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show

action in conformity therewith.” Fed. R. Evid. 404(b). However, “[w]here the challenged evidence

is ‘intrinsic’ to, or ‘inextricably intertwined’ with evidence of, the crime charged, Rule 404(b) is not

applicable.” United States v. Henderson, 626 F.3d 326, 338 (6th Cir. 2010). “Proper background

evidence has a causal, temporal or spacial connection with the charged offense.” United States v.

Hardy, 228 F.3d 745, 748 (6th Cir. 2000). It typically is “a prelude to the charged offense, is directly

probative of the charged offense, arises from the same events as the charged offense, forms an

integral part of a witness’s testimony, or completes the story of the charged offense.”1 Id. We

review a district court’s decision to admit such evidence for an abuse of discretion, id., meaning that

we will affirm unless we are “left with the definite and firm conviction that the district court

committed a clear error of judgment[.]” United States v. Copeland, 321 F.3d 582, 596 (6th Cir.

2003).

         Qualls claims that the district court “did not consider [the] causal relationship or spatial

connection between the prior transactions and the guns and drugs in the indictment.” He emphasizes

that while “the indictment charged [him] with possession of the contraband found in a home, the


         1
        In United States v. Gonzalez, 501 F.3d 630, 639 (6th Cir. 2007), a panel of this court
suggested that a narrative definition of background evidence such as “completes the story” may be
too broad. But we need not, and therefore do not, rely on such an expansive definition of
background evidence in this case.
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controlled buys were drug transactions committed from a car.” Qualls also asserts that “[t]he story

of how officers came to be involved with Jason Qualls begins with the execution of the search

warrant” and that “[t]he jury did not need to know how the police obtained their search warrant.”

We find these arguments unconvincing.

        The district court did consider the connection between the controlled buys and the charged

conduct, concluding that they occurred “very, very close in time” and that the controlled buys

“precede[d] and support[ed] the search.” Qualls’ observation that the controlled buys took place

from a vehicle, while the charged conduct was for possession of drugs at a residence, is a distinction

without a difference. What matters is that both the controlled buys and the conduct charged in the

indictment involved Qualls’ distribution of cocaine base out of the Cahal Avenue residence over the

course of a few days. Moreover, inasmuch as evidence regarding the controlled buys showed Qualls’

intent to distribute the drugs found during the search of the residence, it was directly probative of the

charged offense, and the jury needed to know about it. On this record, we are not left with a definite

and firm conviction that the district court committed a clear error of judgment in admitting evidence

of the controlled buys as background evidence.

        Furthermore, the district court also properly admitted the evidence pursuant to Federal Rule

of Evidence 404(b). Under Rule 404(b), “other acts” evidence is admissible when (1) there is

sufficient evidence that the “other acts” took place; (2) the evidence has a proper purpose identified

in Rule 404(b); and (3) the evidence is not substantially more prejudicial than probative. United

States v. Bell, 516 F.3d 432, 441 (6th Cir. 2008) (citing United States v. Lattner, 385 F.3d 947, 955


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(6th Cir. 2004)). We review a district court’s decision to admit evidence under Rule 404(b) for an

abuse of discretion.2 See United States v. Allen, 619 F.3d 518, 524 n.2 (6th Cir. 2010); United States

v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002).

       In this case, the district court did not abuse its discretion in finding that all three Rule 404(b)

requirements were satisfied. First, there was sufficient evidence that the controlled buys occurred

and that Qualls participated in them. Detective McCormack testified that she recognized Qualls as

the man involved in the controlled buys;3 Officer Valiquette testified that he saw a black man leave

and return to Williams’ house before and after the controlled buys; and Williams testified that Qualls

was the only other adult who stayed at her house and that she sometimes drove him to meet people.

Additionally, the record showed that Williams contacted Qualls during the execution of the search

warrant; that Qualls admitted the narcotics and firearms recovered by police at 910 Cahal Avenue

were his; and that the number called by the informant belonged to Qualls and was answered by a man

known as “Jay,” which was Qualls’ nickname. The district court’s conclusion that there was



       2
         Qualls argues that, per United States v. Gessa, 971 F.2d 1257 (6th Cir. 1992), we should
apply a three-tiered standard of review. However, we need not address this argument because it
makes no difference in this case. The first step of the Gessa framework would require us to review
the district court’s factual finding for clear error, which is consistent with the abuse of discretion
standard “because it is [an] abuse of discretion to make errors of law or clear errors of factual
determination,” Bell, 516 F.3d at 440 (citation omitted); the second step is not in dispute; and the
third step, under either standard, is reviewed for an abuse of discretion.
       3
        Qualls claims that the typographical error in the phone number listed in the affidavit
undermined Detective McCormack’s testimony to the extent that there was insufficient evidence to
find by a preponderance of the evidence that the prior bad acts occurred. However, Detective
McCormack’s explanation was reasonable, and the district court did not clearly err in crediting her
testimony.
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sufficient evidence for the jury to reasonably conclude that the controlled buys took place and that

Qualls participated in them was thus not clearly erroneous. See Bell, 516 F.3d at 440.

       Second, the evidence had a proper purpose under Rule 404(b): to show Qualls’ intent to

distribute the cocaine base recovered from the 910 Cahal Avenue residence. See Fed. R. Evid.

404(b) (explaining that “[e]vidence of other crimes, wrongs, or acts” may be used to prove “motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”). We

have “repeatedly recognized that prior drug-distribution evidence is admissible to show intent to

distribute.” See United States v. Ayoub, 498 F.3d 532, 548 (6th Cir. 2007) (citing United States v.

Jenkins, 345 F.3d 928, 938 (6th Cir. 2003)); see also Bell, 516 F.3d at 444. Here, as Qualls

concedes, the controlled buys tended to show his intent to distribute the cocaine base as charged in

the indictment because the controlled buys occurred close in time to the charged conduct and were

similarly associated with the residence at 910 Cahal Avenue.

       Third, the “probative value” of the drug buy evidence was not “substantially outweighed by

the danger of unfair prejudice.” Fed. R. Evid. 403. To establish that the evidence should have been

excluded, it is not enough that the “legitimate probative force of the evidence” would have resulted

in damage to defendant’s case; rather, the evidence must have “tend[ed] to suggest [a] decision on

an improper basis.” United States v. Newsom, 452 F.3d 593, 603 (6th Cir. 2006) (citation and

internal quotation marks omitted; second alteration in original). In reviewing a district court’s

determination on this issue, we consider: “(1) whether the other act evidence was unduly prejudicial;

(2) the availability of other means of proof; (3) when the other acts occurred; and (4) whether the


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district court gave a limiting instruction.” United States v. Brown, 147 F.3d 477, 483 (6th Cir. 1998)

(citation omitted). We view the evidence “in a light most favorable to its proponent, maximizing

its probative value and minimizing its prejudicial effect.” Allen, 619 F.3d at 525 (quoting United

States v. Perry, 438 F.3d 642, 649 (6th Cir. 2006)).

          Qualls argues that the drug buy evidence was substantially more prejudicial than probative

because the evidence concerned other crimes and therefore created a risk that the jury “would make

the impermissible leap that Qualls had the propensity to possess narcotics”; because the digital scales

were a “readily available and far less prejudicial” alternative means of proving his intent to sell; and

because, rather than solving the problem, the district court’s limiting instruction “compounded it.”

We are not convinced. Evidence is not unduly prejudicial merely because it involves other crimes.

See, e.g., Ayoub, 498 F.3d at 548; see also Fed. R. Evid. 404(b). Further, although the digital scales

could have shown Qualls’ intent to distribute, Qualls consistently maintained that the digital scales

did not belong to him, rendering the drug buy evidence uniquely probative of his intent. Finally,

Qualls’ assertion that the district court’s limiting instruction weighed against admission of the

evidence is without merit. The instruction provided that the drug buy evidence was only to be

considered for purposes of establishing Qualls’ intent, and, as explained below, that instruction was

proper.

          Because the drug buy evidence was not unduly prejudicial, other proof of intent was not

realistically available, the controlled buys and the charged conduct occurred over the same short

period of time, and there was an appropriate limiting instruction, we conclude that the district court


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United States v. Qualls


did not abuse its discretion in finding that the probative value of the evidence outweighed its

prejudicial effect. Accordingly, the district court’s decision to admit the drug buy evidence under

Rule 404(b) satisfies all three prongs, and Qualls’ assignment of error must be rejected.

                                                   B.

        Qualls also argues that the district court plainly erred in giving a limiting instruction to the

jury regarding the drug buy evidence. To establish plain error, Qualls must show: (1) there is an

error; (2) the error is clear or obvious; (3) the error affected the appellant’s substantial rights, which

in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error

seriously affects the fairness, integrity or public reputation of judicial proceedings. United States

v. Marcus, 560 U.S. ___, 130 S. Ct. 2159, 2164 (2010); see also United States v. Alexander, 543

F.3d 819, 822 (6th Cir. 2008). After the direct examination of Detective McCormack, the district

court instructed the jury:

        Members of the jury, the testimony about the two controlled buys, this defendant is
        not charged with the two controlled buys, that testimony was admitted only for the
        purpose of proving the defendant’s intent to distribute cocaine as charged in the
        indictment. These are not separate crimes and you may not consider them as separate
        crimes. They are only admitted for that purpose.

        Qualls asserts that this instruction was plainly erroneous because it “failed to instruct the jury

that the prior acts are alleged to have occurred and, by their plain meaning, indicate the judge’s belief

that they did occur and were committed by the defendant.” (Emphasis in original.) According to

Qualls, this “create[d] the risk that the jury [would] abdicate its responsibility to evaluate the

evidence in deference to the judge.”          (Appellant’s brief at 22 (quoting United States v.


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United States v. Qualls


Rubio-Villareal, 967 F.2d 294, 299 (9th Cir. 1992))). And, Qualls claims, “[t]his clear error almost

certainly had an effect on the outcome of the proceedings because . . . the whole case hinged upon

the prior act evidence” inasmuch as “[t]he theory of the defense – that everything was Quantina

Williams’ and that Qualls took the blame as an act of protection – had a much higher likelihood of

success if the judge had permitted the jury to conclude that it was not Qualls who participated in the

controlled buys.” We disagree.

        The problem with Qualls’ argument is that it rests on a faulty premise. Contrary to Qualls’

contention, nothing in the limiting instruction conveyed the district court’s view as to whether the

controlled buys took place or whether Qualls participated in them. Instead, the district court’s

instruction correctly and repeatedly referred to the evidence as “testimony” – not as fact – and the

district court previously instructed the jury that it was free to believe or disbelieve testimony. Qualls

has cited no support for his claim that the district court was required to use the word “alleged,” and

we have found none. Furthermore, even if the district court’s failure to include the word “alleged”

had somehow implied its view of the facts, any such exceedingly strained inference would have been

dispelled by the court’s prior instruction to the jury that “[y]ou should not take anything I may say

or do during the trial as indicating what I think of the evidence or what I think your verdict should

be.” Qualls has therefore not shown error, let alone plain error.

                                                  III.

        For these reasons, we affirm the judgment of the district court.




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