Argued May 22, 2013
Appeal from the United States District Court for the Central District of Illinois. No. 10 cr 30058 — Richard Mills, Judge.
Before Flaum, Rovner, and Sykes, Circuit Judges.
Rovner, Circuit Judge.
A jury convicted defendant-appellant Eddie Lee of conspiring to distribute and possessing with the intent to distribute 50 or more grams of a substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court ordered him to serve a prison term of 20 years. Lee appeals, contending that the district court abused its discretion by admitting into evidence at trial proof that he had previously been convicted of possessing cocaine base. See Fed. R. Evid. 404(b). We agree and reverse.
Lee was named in a 2010 indictment along with co-defendants Darin Hurt, Anthony Clardy, and Christopher Holcomb. Hurt was a retail seller of crack cocaine in Springfield, Illinois, who was assisted on occasion by Holcomb and Clardy. It was the government's theory that Lee was one of Hurt's suppliers. Drug enforcement agents were led to Hurt, Holcomb, and Clardy by Roderick Pickett, one of Hurt's customers. Pickett assumed the role of a confidential informant and made two controlled purchases of crack cocaine from Hurt in the Fall of 2009 that were recorded on video. Those purchases, along with the discovery of a distribution-sized quantity of crack cocaine in a car that Lee was driving in December 2009, led to the eventual arrest and indictment of Lee, Hurt, Clardy, and Holcomb.
Of the four defendants, only Lee went to trial. Lee initially pleaded guilty to both the conspiracy and possession charges, on the understanding that the more favorable statutory penalties put into place by the Fair Sentencing Act of 2010, 124 Stat. 2372 ("FSA"), would apply at his sentencing. (The district court in fact had applied the FSA in sentencing Holcomb before Lee pleaded guilty.) But, less than a month after Lee pleaded guilty, this court ruled in United States v. Fisher, 635 F.3d 336 (7th Cir.), reh'g en banc denied over dissent, 646 F.3d 429 (7th Cir. 2011), that the FSA did not apply to offenses committed prior to its enactment. The Supreme Court ultimately ruled otherwise the following year, Dorsey v. United States, 132 S.Ct. 2321 (2012), but by that time Lee had been permitted to withdraw his guilty plea and had proceeded to trial–twice.
Lee's first trial, in June 2011, ended with the district court's declaration of a mistrial after the jury was unable to reach a verdict. When Lee was retried the following month, the jury found him guilty on both counts of the indictment in which he was named: Count One, charging that Lee conspired with Hurt to distribute and to possess, with the intent to distribute, more than 50 grams of crack cocaine, and Count Four, charging Lee with possessing, with the intent to distribute, more than 50 grams of crack cocaine.
With the exception of the Rule 404(b) evidence admitted at Lee's second trial, the proof was essentially the same at both trials. Hurt was the government's principal witness, describing each of the transactions in which he had engaged with Lee. Beyond Hurt's testimony, the evidence against Lee was, in good measure, circumstantial. Phone records established telephonic contact between Lee and Hurt consistent with the timing of the transactions Hurt recounted: for example, Hurt testified that Lee typically called him when he was on his way to Springfield to make a delivery of cocaine, and phone records confirmed that the two men were in telephonic contact prior to the deliveries Hurt described. None of the telephone calls were recorded, however. Moreover, although Pickett was wired during his transactions with Hurt, Lee was not present during those transactions, and no other witness was privy to Hurt's interactions with Lee.
Hurt had begun selling crack cocaine in or about 2006. Hurt was paralyzed from the shoulders down and was otherwise relying on disability payments for his income. Hurt's brother Clardy typically helped him prepare and package cocaine for distribution to his customers; Holcomb, as we have noted, also helped Hurt with the sales. At first, Hurt's supplier was Lee's cousin, Mikey Smith. After Smith was jailed in 2007, Hurt turned to other suppliers. Lee eventually became one of them. Hurt had known Lee since 2002, but so far as the record reveals, Lee had not sold crack cocaine to Hurt prior to the 2009 sales that Hurt recounted at trial.
Hurt described for the jury four transactions with Lee that occurred in the Summer and Fall of 2009. In late July, Lee sold 17 ounces of crack to Hurt at a price of $900 an ounce. Lee fronted the cocaine to Hurt; Hurt then sold the cocaine to customers over the course of a day or two with Holcomb's help; and then Hurt paid Lee from the proceeds. Two weeks later, in early August, Lee provided a 13-ounce quantity to Hurt for the same price per ounce and was again paid after Hurt and Holcomb sold the cocaine to Hurt's customers. Hurt testified that following this second transaction, he turned over to Lee all of the proceeds from his sales, leaving nothing for himself.
On the morning of September 1, 2009, Lee dropped off a nine-ounce quantity of crack to Hurt at his home. Within a day, Hurt and Holcomb had sold the cocaine and paid Lee. Among Hurt's customers that day was Pickett, who recorded his purchase in his capacity as a confidential informant. When Pickett asked Hurt when his supply had arrived, Hurt told him he had gotten it that morning. Pickett purchased a half-ounce of crack from Hurt at a price of $600; Clardy assisted Hurt with the sale. Hurt testified that after he had disposed of all of the cocaine supplied by Lee, he once again turned all of the proceeds over to Lee, with no profit remaining for himself.
Pickett made another controlled purchase of cocaine from Hurt on September 17. Pickett tried to make the purchase a day earlier, but Hurt told him he had no drugs on hand to sell him. On the following morning (the 17th), Lee delivered four ounces of crack cocaine to Hurt. Hurt and Holcomb again disposed of that quantity in a day's time. Pickett was among their customers: he purchased an ounce of crack for a nominal price of $1200, and then Hurt then kicked back $100 of the purchase price to him. Although Lee was not present in Hurt's home, where Pickett made the purchase, the camera that Pickett was wearing captured Lee sitting in the yard of another house that Hurt owned just down the alley from Hurt's residence; and Lee's Ford Taurus was also parked in the vicinity. Hurt acknowledged on the witness stand that Lee's cousin Poncho was renovating the other house for Hurt (Lee, in fact, was Hurt's contact for Poncho); and no surveillance agent was ever able to see, let alone photograph, Lee transacting narcotics business with Hurt. As he walked back to his own vehicle following the transaction with Hurt, Pickett had a brief on-camera conversation with Lee during which chess and house-siding, but not narcotics, were mentioned.
On December 2, Lee was on his way to Springfield when he was pulled over on U.S. Interstate 55 by McLean County Sheriff's Deputy Jason Tuttle. The traffic stop was not preplanned and had nothing to do with the investigation of Hurt and Lee; Tuttle stopped Lee because the registration on the Honda Accord he was driving had been suspended. Lee told Tuttle that the car belonged to his goddaughter. The deputy led a drug-detecting dog around car, and the dog alerted at the passenger door. On the strength of the dog's alert, the deputy and backup officers proceeded to conduct a fairly thorough search of the car. While looking through the trunk, which Tuttle described as "loaded down" with "just a lot of junk, really, " R. 179 at 74, one of the deputies lifted the spare tire, without going so far as to remove it, but did not see anything there. The search produced no drugs. The car was impounded due to the suspended registration; and Lee was dropped off at a highway rest area. Lee called Hurt to advise him that he had been pulled over and asked him for a ride.
Lee was stopped a second time later that same day. This stop was made as part of the narcotics investigation. After Lee called Hurt, Hurt had called Pickett and asked Pickett to pick up Hurt and then Lee. Before he picked up Hurt, Pickett called drug enforcement agents and told them he was on his way to pick up Hurt and Hurt's supplier. After Pickett had picked up both men, an officer stopped the car on the premise of a vehicle code violation and, after confirming the identities of the men, searched the car. He found no drugs in the car and let the men go with a warning. In the course of the stop, however, Lee volunteered that he had been stopped earlier that day and that his car had been towed. That disclosure led agents to the tow yard where the Honda Accord had been taken.
A second search of the car at the tow yard proved more fruitful than the first. At the yard, agents walked a narcotics dog around the car and, once again, the dog alerted to the passenger door. Officers then obtained a warrant to search the vehicle. The ensuing search, which took place more than eight hours after Lee first was stopped on the Interstate, produced a wrinkled black plastic bag that was located behind the spare tire. A latent fingerprint matching Lee's would later be discovered on the outside of that bag. Inside of the black plastic bag was a clear Ziploc bag containing eight smaller bags, seven of which contained one-ounce quantities of crack cocaine and the last of which contained a smaller quantity of powder cocaine. Collectively, the bags contained 210 grams of crack cocaine, worth approximately $21, 000. It was that cocaine which was the basis for the charge in Count Four of the indictment alleging that Lee possessed with the intent to distribute in excess of 50 grams of crack cocaine.
Lee presented no witnesses, but through cross-examination and argument, the defense did manage to poke holes in the government's case. Naturally, Lee's counsel pointed out to the jury that, in the absence of evidence verifying Hurt's testimony as to his transactions with Lee, the prosecution's case depended to a significant degree upon the believability of Hurt's testimony. Hurt had credibility issues: besides being a cocaine dealer who stood to benefit from his testimony against Lee, Hurt was a regular and substantial user of marijuana who smoked four to five "blunts" daily, and in fact could be seen sharing a blunt with Pickett on the video recording of the September 1 transaction. Hurt also helped the defense when he agreed on cross-examination that he "d[id]n't remember much of anything at all about th[e] supposed occasions" on which he had purchased cocaine from Lee and that "it was the government that helped [him] remember those occasions … ." R. 180 at 143. Pickett had issues of his own: aside from being a paid informant, he disclosed on the witness stand that he had decided to expose Hurt's drug-dealing after he surmised that Hurt had told police where to find him on an outstanding warrant. The discovery of ...