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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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