Appeal from the United States District Court for the Southern District of Illinois. No. 99-CR-40026-002-JPG--J. Phil Gilbert, Judge.
Before Flaum, Chief Judge, and Coffey and Easterbrook, Circuit Judges.
The opinion of the court was delivered by: Flaum, Chief Judge.
On April 5, 2000, William Curtis was convicted of distribution of cocaine base and conspir acy to distribute cocaine base in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846. He filed a motion for a new trial based on newly discovered evidence which the district court denied. He now appeals the denial of that motion, as well as the district court's admission at trial of testimony regarding his prior drug dealing. For the reasons stated herein, we affirm the decisions of the district court.
At trial, Robert Dueker, the FBI agent involved in Curtis's investigation, testified that between August 1998 and May 5, 1999, the alleged conspiracy period, as well as the previous year, Curtis transported crack cocaine fromChicago to Carbondale, Illinois, and supplied several dealers in the area, including Melissa Boyle, Anthony Hale, Charles Curry, and Sarah Stephens. Stephens testified that she assisted Curtis with the distribution of crack cocaine, and both traveled to Chicago to buy narcotics from Curtis, and bought the drugs while Curtis was in Carbondale. Another government witness, Lester Barr, testified that he saw Curtis and Charles Curry make crack from powdered cocaine and split the finished product between them. Barr testified that he also traveled to Chicago to purchase cocaine from Curtis. Barr stated that he would drive around Carbondale with Curtis while Curtis went to a house from which he was paged to deliver crack cocaine. The government produced thirteen additional witnesses who testified that they had purchased crack cocaine from Curtis during the conspiracy dates.
The government also presented four witnesses for the purpose of testifying to Curtis's drug dealing activities, including specific controlled purchases, during 1997 and early 1998--before the time period of the charged conspiracy: Eldridge Hardley, David Morales, Derek Taylor, and Robert McConnell. Curtis never objected to the introduction of this evidence.
Agent Dueker, FBI agent Paula Parkinson, Boyle, and Hale testified that on May 5, 1999, Boyle and Hale, who lived together and who were apprehended for drug distribution, agreed to cooperate with the police and purchase crack cocaine from Curtis in a controlled buy. The police placed a tape recorder inside the living room of Boyle and Hale's residence, and conducted surveillance from the outside. Boyle paged Curtis who drove up to the house, went inside, sold drugs in the bathroom, and drove off. The law enforcement agents followed Curtis, who avoided their cars. A high-speed chase ensued, but the officers were unsuccessful in stopping Curtis that day. They returned to Boyle and Hale's house, where Hale handed them the crack cocaine that he had purchased from Curtis in the bathroom. Contemporaneously, a Carbondale police officer saw the car that Curtis had been driving in a parking lot and saw crack cocaine and a pager on the front seat. He had the car towed to a police lot where the evidence was inventoried. The police found Curtis's name on the car rental agreement in the glove compartment. The FBI arrested Curtis in November 1999.
On the first day of his trial, Curtis told the district court that there should be a tape from the May 5, 1999 controlled buy. The government responded that the recorder was in a different room from the buy, and that the tape was blank. It informed the court that there was nothing, not even a preamble, on the May 5 tape. Agent Parkinson also testified that the FBI office in Springfield, Illinois, where the tape was sent, informed her that the tape placed in the recorder turned out to be blank. She stated that tape malfunctions are common. Curtis's trial lawyer stated that he believed the government's representation about the tape, and did not need to obtain it. Curtis, however, told the court that he did not believe that the tape was blank and requested that it be sent to him. The court replied that it would not delay the trial, but that the tape should be sent to him as soon aspossible and if, as he claimed, it turned out not to be blank, he could file a motion for a new trial based on newly discovered evidence. At the trial, Curtis's attorney used the absence of a tape recording of the transaction in his defense. Despite this argument, Curtis was convicted on all counts. He received the tape after the trial, and it was, as represented, blank. Nevertheless, he filed a motion for a new trial, arguing that the blank tape would have been material in his defense that no drug sale occurred on May 5, 1999, as there was no recording of it. The district court denied his motion, holding that he had met none of the necessary requirements to be granted a new trial.
Curtis contends that the witnesses' testimony concerning only uncharged, pre-indictment activities should not have been admitted under Federal Rules of Evidence 403 and 404(b).*fn1 Curtis did not object to the admission of this testimony at trial. Therefore, we evaluate his claim that the testimony in question was inadmissible as prior bad act evidence and that unfair prejudice outweighed its probative value under a plain error standard. United States v. Krankel, 164 F.3d 1046, 1052 (7th Cir. 1998) ("When a defendant fails to timely and properly object at trial to the admission of evidence, the issue is waived by the defendant absent a showing of plain error.") Under this standard, we would reverse the district court's admission of the evidence only if Curtis "probably would not have been convicted but for the erroneously admitted evidence." United States v. Kellum, 42 F.3d 1087, 1092 (7th Cir. 1994). Only if Curtis has shown that: 1) the evidence was wrongly admitted; and 2) the error likely changed the outcome of the trial, will we reverse. We find that he has met neither burden.
Although prior bad acts testimony is inappropriate when used to show that the defendant acted in conformity with such behavior, it is properly admitted if the evidence:
i) is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; ii) shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; iii) is sufficient to support a jury finding that the defendant committed the similar act; and iv) has probative value not substantially outweighed by the danger of unfair prejudice. United States v. Green, 258 F.3d 683, 694 (7th Cir. 2001) (citing ...