September 23, 2015.
from United States District Court for the Eastern District of
Missouri - St. Louis.
United States of America, Plaintiff - Appellee: Sirena Miller
Wissler, Assistant U.S. Attorney, U.S. Attorney's Office,
Eastern District of Missouri, Saint Louis, MO.
Torrance L. Cotton, Defendant - Appellant: Beau Brian
Brindley, Michael James Thompson, Law Offices of Beau
Brindley, Chicago, IL.
L. Cotton, Defendant - Appellant, Pro se, Texarkana, TX.
WOLLMAN, COLLOTON, and KELLY, Circuit Judges. COLLOTON,
Circuit Judge, concurring in part and concurring in the
Cotton appeals his convictions for conspiracy to distribute
and possession with intent to distribute cocaine. After
careful review of the issues raised, we find no reversible
error and affirm the judgment of the district
2012, the Drug Enforcement Administration (DEA) began an
investigation into the suspected drug trafficking activities
of Jeremy Poe. After Poe was arrested in January 2013 in
possession of a kilogram of cocaine, he agreed to cooperate
with the DEA and assist them in their investigation.
At a meeting with the DEA on January 14, 2013, Poe told the
DEA that he had received the kilogram of cocaine from David
Frazier, and that he believed that Frazier had gotten the
cocaine from Torrance Cotton. Following that meeting, Poe
agreed to meet with Frazier and arrange further drug
transactions while wearing a wire. Poe had two separate
meetings with Frazier on January 17, first at Chilimacks, a
courier service where Frazier and Cotton worked, and second
at Frazier's residence. Poe met again with Frazier on
January 18. Following that meeting, the DEA arrested Frazier
and seized one kilogram of cocaine from a safe in his
result of this investigation, Torrance Cotton was indicted on
May 1, 2013, and charged with one count of conspiracy to
distribute cocaine and one count of possession with intent to
distribute cocaine. Cotton was convicted of both counts
following a jury trial on April 3, 2014. On appeal, Cotton
contests the admission of evidence of his prior convictions,
admission of a statement made by David Frazier after his
arrest, and denial of his motion for a new trial based on a
Admission of Evidence of Prior Convictions
asserts that the district court improperly allowed the
government to introduce evidence of his prior convictions for
possession of cocaine with intent to distribute and attempted
drug trafficking. Because Cotton did not make a
contemporaneous objection to the introduction of this
evidence, our review is for plain error unless the district
court made a final and definitive pretrial ruling on the
admissibility of this evidence. United States v.
Young, 753 F.3d 757, 775 (8th Cir. 2014). The
admissibility of the evidence was addressed at two pretrial
conferences, on November 26, 2013, and January 23, 2014. At
both pretrial conferences, the district court made a
provisional, non-definitive ruling that the evidence was
admissible, specifically anticipating a contemporaneous
objection at trial. However, before voir dire began on March
31, 2014, the district court again addressed the
admissibility of the evidence of Cotton's prior
convictions, stating " I do think that there is still a
basis to introduce this 404(b) evidence. . . . So the
objection will be overruled. I will, as I say, before that
evidence is sought to be introduced, want to see a limiting
instruction." This March 31 ruling was, by its terms,
final, definitive, and non-provisional. Cf. id. (" when
the district court reserves its ruling or otherwise
indicates that the ruling is provisional, then the
proponent should reintroduce the court to the issue at the
appropriate time" ) (emphasis added). The court stated
that the objection " will be overruled," and
referred to an anticipated limiting instruction with regard
to the evidence that would be admitted. At this point, the
court's ruling on the admissibility of the evidence was
clear, and counsel would no longer have had any reason to
doubt whether that ruling was definitive. See id.;
Fed.R.Evid. 103(b) & advisory committee's note to 2000
amendment. We therefore conclude that Cotton properly
preserved this claim of error, and accordingly review the
district court's decision to admit the evidence of
Cotton's prior convictions for abuse of discretion.
Young, 753 F.3d at 767.
Evidence of a defendant's prior convictions is
categorically inadmissible to prove the defendant's
criminal propensity. Fed.R.Evid. 404(b)(1). Evidence of prior
convictions may, however, be admissible to prove a specific
element or aspect of the charged offense, such as "
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident."
Fed.R.Evid. 404(b)(2). Where there is a proper purpose for
evidence of a prior conviction, the conviction may be
admitted if it is " (1) relevant to a material issue;
(2) similar in kind and not overly remote in time to the
crime charged; (3) supported by sufficient evidence; and (4)
higher in probative value than prejudicial effect."
United States v. Trogdon, 575 F.3d 762, 766 (8th
Cir. 2009) (quoting United States v.Williams, 534 F.3d 980, 984 (8th Cir. 2008)). This
is considered a rule of inclusion, meaning that if these
elements of admissibility are satisfied, the evidence will ...