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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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