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United States v. Cotton

United States Court of Appeals, Eighth Circuit

May 19, 2016

United States of America, Plaintiff - Appellee
Torrance L. Cotton, Defendant - Appellant

         Submitted September 23, 2015.

Page 431

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

         For 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.

         For Torrance L. Cotton, Defendant - Appellant: Beau Brian Brindley, Michael James Thompson, Law Offices of Beau Brindley, Chicago, IL.

         Torrance L. Cotton, Defendant - Appellant, Pro se, Texarkana, TX.

         Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges. COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.


Page 432

          KELLY, Circuit Judge.

         Torrance 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 court.[1]

         I. Background

         In 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.

Page 433

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 residence.

         As a 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 Brady violation.

         II. Discussion

         A. Admission of Evidence of Prior Convictions

         Cotton 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,

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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 ...

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