Appeal from the United States District Court for the Western District of Wisconsin. No. 3:07-cr-00031-JCS-3-John C. Shabaz, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
ARGUED SEPTEMBER 15, 2008
Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
On March 8, 2007, a grand jury indicted Defendant Arthur T. Conner for distributing more than five grams of cocaine base (crack cocaine) in a controlled drug buy on December 20, 2006. During Conner's jury trial, the government presented testimonial evidence regarding Conner's participation in a drug sale on January 10, 2007, and his prior history of drug dealing with co-defendants Michael Hughes and Darrick Robison. The district court admitted this evidence because it found that these acts were intricately related to the charged crime. The court did not address the government's alternative argument that the evidence was admissible under Federal Rule of Evidence 404(b). The jury convicted Conner, who was sentenced to life in prison. Conner appeals his conviction, arguing that the district court erred in admitting this evidence, as well as in providing the jury with an aiding and abetting instruction. Alternatively, Conner requests a limited remand for resentencing in light of Kimbrough v. United States, 552 U.S. 85 (2007). We affirm Conner's conviction and remand for resentencing.
The facts of the controlled buy for which Conner was convicted are relatively straightforward. On December 20, 2006, FBI informant Abdul Harriel met with Officer Aaron Dammen of the Janesville Police Department, who searched him, fitted him with a transmitting device, and gave him money to fund the transaction. Harriel then called Michael Hughes to arrange for the*fn1 purchase of a quarter-ounce of crack cocaine. Hughes told Harriel that while he did not have that much crack, he knew someone who did-Conner. Hughes directed Harriel to meet him later that day at Connor's residence, 700 West Grand Avenue in Beloit.
When Harriel arrived at the location, he got into the backseat of Hughes's car. Hughes was seated in the driver's seat, and Vernon Hughes, whom Harriel did not know, was in the passenger's seat. The three waited for several minutes before Conner pulled up behind them, exited his car, and entered Hughes's car. Harriel gave cash to Hughes, who passed it to Conner, and Conner handed a brown paper bag to Harriel. Following the transaction, Harriel returned to the safe site, where he turned over the paper bag to Officer Dammen. Later inspection revealed that the bag contained 5.737 grams of crack cocaine.
Throughout the transaction, a police surveillance team, including Officer Dammen, monitored the activities from a nearby van. Officer Dammen's account of events was consistent with the version presented by Hughes and Harriel, although Dammen did not mention seeing another individual in the passenger's seat of Hughes's car.
A few weeks later, on January 10, 2007, Harriel participated in another controlled buy for Officer Dammen. On that day, Harriel called Conner to again purchase crack cocaine. Conner said he could sell Harriel the crack, but he never called Harriel back with details, so Harriel then called Michael Hughes. Hughes agreed to supply the crack, and told Harriel to pick him up at 700 West Grand Avenue.
The interactions among Hughes, Conner, and Robison, who ultimately supplied the crack to Harriel on January 10, are somewhat unclear from the testimony. In essence, the record reflects that Robison was holding three "eight-balls" of crack cocaine for Conner and at some point, Conner directed Robison to provide Hughes with the crack. During this time, arrangements were made for Hughes and Robison to meet at a drug store on Harrison in Beloit for the exchange.
Harriel picked up Hughes and they went to the drug store where the exchange was to take place. When they arrived, Robison got into the car, where he sold the crack to Harriel. Harriel then returned to the safe site and gave the drugs to Officer Dammen.
On March 8, 2007, a grand jury returned a three-count indictment against Hughes, Robison, and Conner. Conner was only named in Count One of the indictment, which charged Conner and Hughes with distributing more than five grams of cocaine base on December 20, 2006. Count Two charged Hughes and Robison with distributing more than five grams of cocaine base on January 10, 2007, and Count Three charged Hughes with distributing more than five grams of cocaine base on January 18, 2007. Hughes and Robison pled guilty and agreed to cooperate with the government, and Conner chose to go to trial.
Before Conner's trial, the government gave notice that it intended to produce a significant amount of "other acts" evidence related to Conner's drug history, including testimony regarding the January 10 transaction and evidence of Conner's prior drug relationships with Hughes and Robison. The government argued that the evidence was intricately related to the crime charged in the indictment or, alternatively, that the evidence was admissible under Rule 404(b), as it tended to show knowledge, intent, and a common scheme or plan. Over Conner's objection, the district court admitted the evidence under the "intricately related" doctrine. The court did not address the Rule 404(b) issue.
At trial, the government presented numerous witnesses who testified to the events of December 20 and January 10. The government also introduced evidence regarding Conner's prior drug dealings with Hughes and Robison. Hughes testified that he and Conner started dealing drugs together in 1995, and that Conner dealt crack cocaine out of his residence at 700 West Grand Avenue. He also described how Conner would "rock up" or prepare the crack cocaine and how much money Conner typically received from these drug sales. Robison testified that he started working for Conner as a middleman in 2006. Conner directed Robison to make drug pickups and deliveries of cocaine, and he supplied Robison with money to buy product to sell to customers. Robison also testified that because he had a driver's license, he drove Conner to Rockford to purchase cocaine and obtained rental cars to use in their drug transactions.
Conner did not present any evidence to rebut the government's version of events. Instead, Conner's counsel attempted to establish reasonable doubt by challenging the credibility of the government's witnesses and arguing that the testimony presented at trial left open the possibility that Michael or Vernon Hughes, not Conner, supplied the crack cocaine on December 20, 2006.
The district court gave the jury the following instruction regarding aiding and abetting:
Any person who knowingly aids, abets, counsels, commands, induces, or procures the commission of a crime is guilty of that crime. However, the person must knowingly associate himself with the criminal venture, participate in it in trying to make it succeed.
Conner never objected. In fact, during the charging conference Conner expressed his preference for this instruction. At that conference, the district court reviewed two potential aiding and abetting instructions, and both Conner and the government agreed that one would suffice. The judge chose the above instruction and asked if there was any objection. Conner's counsel replied that this instruction "better states the case." Until this appeal, Conner never maintained that it was improper to instruct the jury on aiding and abetting.
The jury found Conner guilty, and the court held a sentencing hearing on October 9, 2007, prior to the Supreme Court's decision in Kimbrough. Conner's counsel noted that "[the 100:1 crack-to-powder ratio is] up for review in the Supreme Court so we do want to preserve that issue for appeal." The district court sentenced Conner to life in prison without commenting on the 100:1 ratio.
On appeal, Conner argues that the district court erred in admitting evidence of the January 10 sale and of his prior drug dealings with Hughes and Robison. He also asserts that the court erred in instructing the jury on aiding and abetting. Conner maintains that even if each of these errors was harmless in isolation, their cumulative effect resulted in severe prejudice, necessitating a new trial. In the alternative, Conner asks this court to remand this case to the district court for resentencing in light of the Supreme Court's recent decision in Kimbrough. We address each issue in turn.
A. Evidence of Conner's "Other Bad Acts"
At Conner's trial, the government presented evidence of Conner's "other bad acts" under two alternative theories of admissibility: Rule 404(b) and the "intricately related" doctrine. The district court admitted the evidence, concluding that both the January 10 sale and Conner's prior drug dealings with Hughes and Robison were intricately related to the charged crime. The court did not address the government's alternative argument that it was admissible under Rule 404(b). Conner challenges this ruling, arguing that the evidence was not intricately related to the December 20 drug transaction, that it was improper propensity evidence that does not meet the requirements of Rule 404(b), and that it was unduly prejudicial.
We review the district court's evidentiary rulings for an abuse of discretion, including its decision to admit "other acts" evidence under the "intricately related" doctrine or Rule 404(b). United States v. Harris, 536 F.3d 798, 807 (7th Cir. 2008). We will not, however, grant a new trial where an error was harmless, that is, where it did not affect the outcome of the trial. United States v. Ortiz, 474 F.3d 976, 982 (7th Cir. 2007), cert. denied, 128 S.Ct. 51 (2007).
Rule 404(b) provides that evidence of a defendant's "other bad acts" is not admissible to show the character of a defendant or his propensity to commit the charged crime. United States v. Chavis, 429 F.3d 662, 667 (7th Cir. 2005). This evidence may, however, be admissible for other purposes, such as knowledge, intent, or absence of mistake. Id.
Notwithstanding Rule 404(b), this court has long held that evidence of prior bad acts is admissible when the acts are so inextricably intertwined with, or intricately related to, the charged conduct that they help the fact-finder form a more complete picture of the crime. United States v. Samuels, 521 F.3d 804, 813 (7th Cir. 2008). Courts admit this evidence because the acts in question are intrinsic to the charged crime, and are not "other acts" within the meaning of Rule 404(b). See United States v. Luster, 480 F.3d 551, 556 (7th Cir. 2007). In other words, evidence admitted under this doctrine "lie[s] outside the purview of the Rule 404(b) character/propensity prohibition," id., and is not subject to its constraints regarding the manner in which the evidence may be used, see United States v. Bowie, 232 F.3d 923, 928 (D.C. Cir. 2000) (noting that inextricable intertwinement evidence is admissible "for all purposes notwithstanding its bearing on character"); see also United States v. Owens, 424 F.3d 649, 655 (7th Cir. 2005) ("Evidence of other acts which are 'intricately related to the facts of the case' is admissible without ...