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United States of America v. Howard Baker

August 23, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HOWARD BAKER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois. No. 09 CR 20055--Michael P. McCuskey, Chief Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED APRIL 1, 2011

Before EASTERBROOK, Chief Judge, and BAUER and EVANSAà' , Circuit Judges.

A jury convicted defendant-ap- pellant Howard Baker of possession with intent to distrib- ute crack cocaine, in violation of 21 U.S.C. A§§841(a)(1) Aà' Circuit Judge Evans died on August 10, 2011, and did not participate in the decision of this case, which is being resolved by a quorum of the panel under 28 U.S.C. §46(d). and (b)(1)(B), and he was sentenced to 360 months' imprisonment. Baker challenges the district court's admission of evidence under Federal Rule of Evidence 404(b), the sufficiency of the evidence used to prove possession, and his sentence. For the following reasons, we affirm Baker's conviction and sentence.

I. BACKGROUND

On the night of July 24, 2009, Champaign Police Depart- ment Officers Chris Aikman and Heidi Van Antwerp were in the area of a reported battery when they spotted Baker, who matched the description of the battery sus- pect. The uniformed officers parked their marked squad cars and walked into the front yard of 210 East Hill Street, where Baker was talking on a cell phone and eating a plate of food. Officer Aikman asked Baker to come talk to him, and Baker walked over to the officers and voluntarily handed over his identification. Officer Aikman then told Baker that he was going to pat him down and reached for his arm, at which point Baker began running westbound on the sidewalk. Officers Aikman and Van Antwerp chased Baker, with Officer Aikman just a few feet behind Baker and within sight the entire time. Officer Aikman caught up to Baker on the west side of 204 East Hill Street and tackled him onto a fence that runs between 204 East Hill Street and 202 East Hill Street, causing the fence to col- lapse. Baker regained his footing after being tackled and began running east along Hill Street, following the same path as the initial chase. Baker ran back to 210 East Hill Street and started to enter the house when Officer Aikman tackled Baker a second time, this time bringing him down and handcuffing him.

After walking Baker to the squad car, Officer Aikman went back along the chase route to the portion of fence that had collapsed during the struggle and saw two baggies on the ground. The baggies contained 21.9 and 4.4 grams of crack cocaine, later stipulated to be 25.2 grams of crack cocaine. Baker denied that the baggies were his and his fingerprints were not found on them. Baker was charged with possession with intent to distrib- ute crack cocaine, in violation of 21 U.S.C. A§§841(a)(1) and (b)(1)(B).

A. Testimony at Trial

At trial, the government introduced testimony from the arresting officers, an expert witness, and Baker's occasional girlfriend, Trena Keomala, who testified under a grant of immunity. Keomala's testimony can be classified into two categories, one of which is at issue in this appeal and one of which is not. First, Keomala testified that she spoke to Baker on the night of the offense before his arrest and that Baker informed her that he was on the "Hill" (210 East Hill Street) because that was where he "made his money." When Keomala asked whether Baker had any crack cocaine for her to sell, Baker responded that he had only enough crack cocaine for himself. Keomala also testified that the day following Baker's arrest, Baker related the previous eve- ning's events, telling her that right before his arrest he had been standing outside 210 East Hill, "posted up"; Keomala explained that "posted up" is slang for waiting to exchange drugs for money. That part of Keomala's testimony is not at issue on appeal.

Second, Keomala testified that since late 2006, she has routinely received crack cocaine from Baker, which she would sell and Baker would receive the proceeds, and that she had received crack cocaine from Baker to sell just days before Baker's arrest. This testimony is at issue on appeal and is disputed.

B. Rule 404(b) Evidence

Before trial, the government filed a notice of intent to call an informant who would testify that Baker had dis- tributed crack cocaine to him for resale on prior occa- sions. The government did not include Keomala's dis- puted testimony in this notice, even though she too would testify that Baker distributed crack cocaine to her for resale. In response to the notice of intent, defense counsel filed a motion to bar all Rule 404(b) evidence. The judge denied this motion. Subsequently, when Keomala was called as a witness at trial, the judge mis- takenly believed that Keomala had been included in the Rule 404 (b) notice of intent and related defense motion, which had been denied, and he therefore per- mitted her to testify for the limited purpose of proving Baker's intent and knowledge under Rule 404(b). De- fense counsel did not object. The district court then twice gave the jury a limiting instruction on the proper use of the evidence for the limited purpose of intent and knowledge.

C. The Verdict and Sentencing

The jury found Baker guilty of possession with intent to distribute crack cocaine. The district court applied a career offender designation to Baker based on two prior felony convictions for unlawful delivery of a controlled substance. After examining Baker's criminal history and considering the ยง3553 sentencing factors, the dis- trict ...


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