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Circuit Court orders new trial on Rule 404(b) grounds

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The 7th Circuit Court of Appeals has found an Indiana federal court should not have allowed evidence of a defendant’s prior drug convictions under Federal Rule of Evidence 404(b). As a result of the violation, the judges reversed the man’s drug conviction and ordered a new trial.

In United States of America v. Billy L. Hicks, No. 09-3608, Billy Hicks appealed his conviction of knowingly distributing cocaine base, challenging the dismissal of a juror based on her relationship to his girlfriend, who was a witness; admittance of tape recordings between Hicks and a confidential informant; and the District Court’s allowance of federal agents to testify regarding their personal observations during an arranged drug buy.

Hicks also challenged the trial court’s allowance of two prior drug convictions under Rule 404(b) to prove his knowledge of the drug industry and his intent to distribute crack cocaine during a July 2006 sale to the confidential informant. On this issue, the 7th Circuit ordered Hicks’ conviction be vacated.

The government never explained why the prior convictions were relevant to show that Hicks’ actions were a result of a mistake, wrote Judge Ann Claire Williams, and the Circuit Court was also not persuaded by the government’s argument that the prior convictions were admissible to show intent.

Hicks didn’t put his intent at issue during the government’s case-in-chief. Hicks also didn’t introduce his entrapment defense until after the government’s case-in-chief. The government should have waited until after Hicks’ entrapment defense materialized to offer the convictions, she wrote.

“In our view, the only apparent relevance of the prior convictions was the very inference that Rule 404(b) prohibits — that is, that Hicks had sold drugs in the past and probably did so this time as well,” the judge continued. “The government has failed to demonstrate that Hicks’s prior convictions established knowledge, lack of mistake, or intent.”

This error affected Hicks’ substantial rights, so the Circuit Court vacated the conviction and ordered a new trial.

The judges also ruled that the District Court did not err in dismissing for cause the juror who recognized Hicks’ girlfriend’s voice once she began testifying; in admitting the taped recordings between Hicks and the confidential informant, who had died before trial; and in admitting FBI agents’ testimony regarding alleged counter surveillance during an attempted meeting with Hicks.

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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