Appeal from the United States District Court for the District of North Dakota.
The opinion of the court was delivered by: Riley, Chief Judge.
Submitted: February 15, 2011
Before RILEY, Chief Judge, WOLLMAN, Circuit Judge, and KYLE,*fn1 District Judge.
In March 2009, Alphonzo Ervin Williams drove Rodney Booker, a crack cocaine and heroin dealer, from Minneapolis, Minnesota, to Fargo, North Dakota, and shared a motel room with Booker while Booker sold drugs. Booker and Williams were arrested after Booker left Williams in a car during Booker's attempt to consummate a drug deal with an undercover police officer. Booker pled guilty to distributing, and possessing with intent to distribute, crack cocaine and heroin.*fn2
Charged with various drug distribution crimes, Williams argued at trial he did not know Booker was selling drugs. A jury convicted Williams of possessing crack cocaine with the intent to distribute, of conspiring to do the same, and of conspiring in crack cocaine distribution, all in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. The district court granted Williams's post-verdict motion for a judgment of acquittal, and alternatively for a new trial. The government appeals. We affirm in part, reverse in part, and remand for a new trial.
In early 2009, a Cass County, North Dakota, drug task force set up a series of controlled crack cocaine purchases from Booker, also known as "Godzilla." After three such purchases, Officer Allen Schmidt, an undercover police officer, expressed interest in purchasing heroin from Booker. Booker told Officer Schmidt he would contact him when he returned to Fargo. On March 18, 2009, Officer Schmidt called Booker's cell phone. Booker answered the call and told Officer Schmidt he would arrive in Fargo in 30 minutes. Williams was driving Booker's car because Booker "was sick because [he] get[s] high on drugs and things like that and [he] didn't have nobody to drive [him]." Officer Schmidt testified he tried to negotiate a drug deal with Booker during the call, but Booker was unwilling to do so. "Booker testified he did not want Williams to know he intended to sell drugs." United States v. Williams, No. 3:09-CR-55 (D.N.D. Jan. 22, 2010).
Williams paid cash to rent a room at the Grand Inn Motel in Moorhead, Minnesota, across the Red River from Fargo, North Dakota, with money Booker gave Williams for that purpose. While Williams was renting the room, Booker and Officer Schmidt arranged to meet that evening. They then met in the Moorhead True Value parking lot. Williams was driving Booker's car.*fn3 Booker got out of his car and into the back seat of Officer Schmidt's undercover car. Booker agreed to sell Schmidt six grams of heroin and eight grams of crack for $1,900, but Schmidt did not have enough cash on hand to buy the drugs. Surveillance officers followed Williams and Booker from the True Value back to the Grand Inn Motel. Officer Schmidt soon called Booker and set up another meeting, this time at the Big Top Bingo parking lot in Fargo.
Booker and Williams decided to party at a bar/nightclub called The Hub, located directly north of the Big Top Bingo parlor. According to Booker, Williams probably would not have come to Fargo if Williams knew Booker planned to sell drugs there. Booker testified Williams had come to Fargo/Moorhead with him to "hang out with ladies and for a 'fun time.'"
Before the party started, Booker needed to repackage the drugs he was planning to sell to Officer Schmidt to correspond to the amount of money Schmidt was willing and able to pay. Booker says he sent Williams out of the motel room to warm up some soup, and Booker began the repackaging. According to Booker, when Williams returned prematurely, Booker stashed some of the drugs under the pillow of Williams's bed so Williams would not see them. The district court noted Booker's account of events at the motel room was uncontested at trial.
Williams drove Booker to The Hub. Booker got out of the vehicle and walked to the Big Top Bingo parking lot, where he was arrested. Williams was still sitting in the car's driver's seat at The Hub when he was arrested. When searched, Williams had a personal use quantity of crack cocaine (.56 grams) in his pocket. Booker had, among other things, 6.42 grams of heroin, 8.41 grams of crack cocaine, and a key to the Grand Inn motel room. In the motel room, police discovered 8.61 grams of crack cocaine in 25 individually packaged rocks under what Booker said was Williams's pillow, 4.59 grams of crack in eight individually packaged rocks and a digital scale under Booker's pillow, and plastic baggies in a television stand drawer. Booker claims all the drugs found at the motel were his. All the drugs seized from Williams, Booker, and at the motel, were packaged in clear plastic bags.
In June 2009, a grand jury returned a six-count indictment against Booker and Williams. Count 1 charged Booker and Williams with conspiring to distribute and to possess with intent to distribute crack cocaine, in violation of 21 U.S.C. § 846. Counts 2 and 3 charged Booker with distributing crack cocaine on February 19 and March 11, 2009, respectively, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Counts 4 through 6 charged Booker and Williams with possession with intent to distribute 8.97 grams of crack cocaine, 6.42 grams of heroin, and 13.2 grams of crack cocaine, respectively, on March 18, 2009, again in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Booker pled guilty to Counts 3 through 6 in exchange for the government's dismissal of Counts 1 and 2. See Booker, 639 F.3d at 1117. "Booker denied he conspired with anyone and testified in Williams's defense at Williams's trial." Id.
Before trial, the government notified Williams of its intent to introduce Fed. R. Evid. 404(b) evidence, specifically Williams's 2001 conviction for possession with intent to distribute cocaine. Williams objected. The district court deferred ruling on the issue until the evidence was offered at trial, when it overruled the objection and admitted the conviction. The certified judgment of conviction was delivered to the jury, and it stated all the conditions of Williams's supervised release, including not using drugs or associating with felons, which evidence the government argued in its closing. The district court intended that only the portion of the record showing Williams's guilt of the crime be admitted. Throughout trial, and especially during its closing argument, the government repeatedly reminded the jury that Williams did not lack knowledge about the habits of drug dealers because he had been convicted of distributing drugs himself.
The jury convicted Williams on all counts except Count 5, which charged possession with intent to distribute heroin. Williams moved for a judgment of acquittal or, alternatively, for a new trial. The district court granted Williams's motion in full, holding the trial evidence insufficient to support the verdict and suggesting it erred both in admitting the Rule 404(b) evidence, and in allowing the government to use the evidence in the manner it did. The district court believed the verdict was tainted by "poor judicial oversight, improper argument, and unlawful references to evidence admitted in error." The court was therefore "convinced to a moral certainty that ...