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United States v. Long

June 4, 1996

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

RICARDO J. LONG, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Illinois. No. 94 CR 30116--Paul E. Riley, Judge.

Before FLAUM, MANION, and EVANS, Circuit Judges.

FLAUM, Circuit Judge.

ARGUED APRIL 23, 1996

DECIDED JUNE 4, 1996

Ricardo J. Long appeals his convictions for drug trafficking and using or carrying a firearm in relation to drug trafficking on the ground that the district court improperly admitted "bad acts" testimony about a crack transaction in violation of Federal Rule of Evidence 404(b). We affirm.

I.

On November 13, 1994, a police officer saw Long disobey a railroad crossing signal. Long obeyed the officer's signal to pull over, but sped away after the officer left his vehicle. The officer chased Long, who crashed his car into an apartment building, left the vehicle, and ran among the buildings in the apartment complex. The officer saw Long throw something from his side before he apprehended Long, and he found a .380 caliber semi-automatic handgun in the area in which he had seen Long do the throwing. Long had a holster which fit the gun and $449 on his person. In addition, the officer found a Tylenol bottle containing ten pieces of crack cocaine and a bag containing a small amount of marijuana on the driver's side floorboard of the car. Long later told federal agents that the crack cocaine was not his and that it must have come from a jacket a friend had stored in the car earlier. Further, he said the $449 represented his winnings from gambling at an East St. Louis club the previous night but could not name the club.

Long was charged with four counts. He pleaded guilty to Counts 1 and 2 (felon in possession of a firearm and felon in possession of ammunition in violation of 18 U.S.C. sec. 922(g)(1)) and went to trial on Count 3 (possession of cocaine with intent to distribute in violation of 21 U.S.C. sec. 841(a)(1)) and Count 4 (using or carrying a firearm in relation to drug trafficking in violation of 18 U.S.C. sec. 924(c)(1)). During the trial, the district court (over defendant's Rule 404(b) objections made prior to and during trial) allowed the government to introduce testimony from James Wimberly about a crack transaction that occurred in July, 1994. Long had turned stolen property over to police and filled out a statement that Wimberly had sold him the property for $40. Wimberly, to the contrary, asserted at trial that one of his friends (Warren Wagoner) had asked him to help deliver burglarized goods to Long. According to Wimberly, another man (Eric Williams) drove Wimberly and Wagoner to Long's residence, where Wimberly watched Long pay Wagoner with crack cocaine rocks. Wagoner gave Wimberly three rocks for his assistance and Wimberly gave one of those to Williams. Wimberly also testified that he had bought crack from Long on several occasions. At the end of Wimberly's testimony and in the final jury instructions the court instructed the jury that it was to consider the evidence of this incident only for the purposes of establishing Long's knowledge, motive, and intent regarding the charged conduct.

Long was found guilty on both counts, and he now appeals the admission of Wimberly's testimony about the July 1994 incident.

II.

This court reviews a district court's decision to admit evidence only for an abuse of discretion. United States v. Curry, 79 F.3d 1489, 1494 (7th Cir. 1996). "'The decision to admit evidence will be reversed only when it is clear that the questioned evidence had no bearing upon any of the issues involved at trial.'" Id. at 1494-95 (quoting United States v. Torres, 977 F.2d 321, 327 (7th Cir. 1992)).

"Under Federal Rule of Evidence 404(b), evidence of other misconduct is not admissible to show that the defendant acted in conformity therewith, but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, or identity." United States v. Wilson, 31 F.3d 510, 514 (7th Cir. 1994). Rule 404(b) evidence is properly admitted if the court decides that:

(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Id. at 514-15.

Long concedes that the evidence was directed to a matter in issue other than his propensity to commit the crime charged, but he contends that Wimberly's testimony about the July 1994 incident fails on the remaining ...


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