Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-7-2006

USA v. Lackey
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1486




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"USA v. Lackey" (2006). 2006 Decisions. Paper 1634.
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                                                  NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No: 03-1486


                          UNITED STATES OF AMERICA,


                                             v.

                               CLINTON M. LACKEY

                                            Appellant




                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 01-cr—00515 )
                      District Judge: Honorable Stewart Dalzell


                              Argued December 19, 2003

                Before: ROTH & MCKEE, CUDAHY*, Circuit Judges

                          (Opinion filed February 7, 2006 )


Paul M. Messing, Esquire (Argued)
Kairys, Rudovsky, Epstein & Messing
924 Cherry Street, Suite 500
Philadelphia, PA 19107

                    Counsel for Appellant


       * The Honorable Richard D. Cudahy, Circuit Court Judge for the United States
Court of Appeals for the Seventh Circuit, sitting by designation.
Eric B. Henson, Esquire (Argued)
Office of the United States Attorney
615 Chestnut Street, Suite1250
Philadelphia, PA 19106

                     Counsel for Appellee



                                         OPINION



ROTH, Circuit Judge:

       Following a three-day jury trial, Clinton Lackey was convicted of possession with

intent to distribute crack cocaine within one thousand feet of a school and of carrying a

firearm during a drug trafficking offense. Lackey appealed, contending among other

issues that the District Court improperly admitted evidence under Federal Rule of

Evidence 404(b) of a prior instance when Lackey shared crack cocaine with a friend. The

government argues that Lackey waived any objection to this evidence because he was the

one who first presented testimony concerning the drug sharing during his own direct

testimony. Because we conclude that Lackey waived his objection by introducing the

evidence himself, we will affirm the judgment of conviction. In view of Lackey’s

challenge to the sentence imposed, we will vacate his sentence and remand this case to

the District Court for re-sentencing pursuant to United States v. Booker, 

(2005). See United States v. Davis, 

(3d Cir. 2005).



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                     I. Factual Background and Procedural History

       Two police officers arrested Lackey after seeing him enter and leave a house that

was under surveillance for drug trafficking. The police officers found forty-one packets

of crack cocaine in Lackey’s jacket pocket, as well as a gun in Lackey’s waistband. The

arrest occurred within one thousand feet of a school.

       Lackey’s jury trial lasted three days. Lackey’s defense rested on his claim that the

drugs found on him were for his own use and that he did not intend to distribute them.

Before trial, Lackey made an in limine motion to prohibit the government from asking

him about an incident two years earlier when he had shared a crack-laced “blunt,” a cigar

containing marijuana, with a friend. Fearing that the jury would construe this incident as

indicating that he had a propensity for sharing drugs with others, Lackey argued that its

introduction would be prejudicial and should be disallowed under Federal Rule of

Evidence 404(b). The prosecutor’s argument for admission of the evidence was that it

showed Lackey’s intent – an element of the distribution offense. The District Court

denied Lackey’s in limine motion. Defense counsel then decided to ask Lackey about the

incident during direct examination in order to prevent the prosecutors from bringing up

the incident for the first time on cross.

       Lackey also objected to the testimony of Officer Spicer, a police officer who had

been involved in the surveillance of the house where Lackey purchased his drugs. Spicer

not only testified as to the arrest but also testified as an expert witness on controlled



                                               3
substances. Spicer concluded that in view of the amount of drugs that Lackey was

carrying, of the fact that Lackey had a firearm, and of Lackey’s general appearance, it was

likely that he intended to distribute the cocaine rather than use it himself.

       The jury convicted Lackey and he appealed.

                        II. Jurisdiction and Standards of Review

       We have jurisdiction over Lackey’s appeal from his judgment of conviction

pursuant to 28 U.S.C. §1291 and 18 U.S.C. §3742(a). We review the District Court’s

rulings relating to the admissibility of evidence for abuse of discretion, reversing only

when “clearly contrary to reason and not justified by the evidence.” United States v.

Butch, 

, 175 (3d Cir. 2001) (quoting United States v. Balter, 

,

436 (3d Cir. 1996) (internal citations omitted)).

                                       III. Discussion

       Lackey contends that it was improper under Federal Rule of Evidence 404(b) to

admit evidence of his prior instance of drug sharing. Rule 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident . . ..

Such evidence is never relevant merely to show “propensity or disposition on the part of

defendant to commit the crime.” United States v. Long, 

, 765 (3d Cir. 1978)

(quoting United States v. Stirone, 

, 576 (3d Cir. 1958), rev’d on other



                                               4
grounds, 

, 270 (1960)). We have previously stated that to be admissible

under Rule 404(b): “(1) the evidence must have a proper purpose; (2) it must be relevant;

(3) its probative value must outweigh its potential for prejudice; and (4) the court must

charge the jury to consider the evidence only for the limited purposes for which it is

admitted.” See United States v. Cruz, 

, 395 (3d Cir. 2003) (citing

Huddleston v. United States, 

, 691-92 (1988)).

       From our review of the record, we can find no proper purpose for admitting this

evidence. In order to demonstrate a proper purpose, we have required the government to

“proffer a logical chain of inference consistent with its theory of the case.” United States

v. Sampson, 

, 888 (3d Cir. 1992). After the government has specified such a

purpose, the District Court must, unless it is plainly obvious, “articulate reasons why the

evidence also goes to show something other than character” by putting this “chain of

inferences into the record.” Id.; see also United States v. Mastrangelo, 

, 295

(3d Cir. 1999). Such a chain is completely lacking in this case. The government stated

only that Lackey’s prior sharing of drugs would go to his state of mind – i.e., intent –

without further specificity. In ruling on the matter, the District Court failed to articulate

any reasons why one instance of Lackey’s prior drug sharing with a friend would go to

prove that in this case Lackey intended to distribute the drugs.

       Our precedent requires that “[w]here the government has not clearly articulated

reasons why the evidence is relevant to any legitimate purpose, there is no realistic basis



                                               5
to believe that the jury will cull the proper inferences and material facts from the

evidence.” 

. Because no logical chain of inferences was ever

established on the record before us, the evidence should not have been admitted.1

       This conclusion, however, is not the end of our consideration of this issue. The

government argues that, because Lackey first introduced the prior bad act evidence on

direct examination, he waived any objection to it. Prior to trial, Lackey lost the in limine

motion to exclude the evidence. The government contends that the denial of the in limine

motion would be appealable only if Lackey had not introduced the evidence first but had

waited for the prosecution to introduce it. The government likens the case to Ohler v.

United States, 

(2000), where the Supreme Court held that “a defendant who

preemptively introduces evidence of a prior conviction on direct examination may not on

appeal claim that the admission of such evidence was error.” Ohler v. United States, 

, 759 (2000). Ohler followed the general rule of evidence that “a party

introducing evidence cannot complain on appeal that the evidence was erroneously

admitted.” Ohler v. United States, 

, 830 (2000) (citing 1 J. Weistein & M.




       1
        We also note that, even if a proper purpose had been given, the jury was not given
any limiting instruction that they could not infer that Lackey was going to distribute the
drugs in question just because he had shared other drugs in the past. The District Court’s
only instruction to the jury with regard to this issue was in response to a question from the
jury about the definition of the term distribution, and simply stated that “[i]ntent must be
in connection with the drugs charged.” This instruction did not give the jury adequate
guidance or in any way “limit the government to the theories it proffered in support of the
admission of the evidence.” 

.

                                              6
Berger, Weinstein’s Federal Evidence §103.14, 103-30 (2d ed. 2000)); see also United

States v. Saunders, 

, 877 (7 th Cir. 2004) (holding that by testifying on direct

examination of prior conviction of murder, defendant waived objection to admission

under Rule 403 of evidence of this prior conviction).

       Ohler concerned the admission of evidence of prior convictions which was

introduced only for impeachment purposes under Rule 609. In the case before us,

although the government in opposing the in limine motion stated that the evidence went to

intent, the evidence was not introduced in the government’s case-in-chief. It was

introduced only after Lackey testified himself as to his lack of intent to distribute and in

effect then served as impeachment evidence in response to Lackey’s testimony rather than

as direct evidence of an element of the offense.

       Although we are reluctant to extend Ohler to Rule 404(b) evidence, we are not

convinced under the facts of this case that we are dealing with a Rule 404(b) situation

rather than an impeachment situation governed by Rule 609. We conclude therefore that

under Ohler, Lackey waived his objection to the drug sharing testimony.

       We find Lackey’s further contentions about being questioned as to his subsequent

conviction and the testimony by a police officer both as a fact and as an expert witness to

be without merit. We note that generally we have no concern about police officers

testifying as both fact and expert witnesses. See United States v. Feliciano, 

,

121 (2d Cir. 2000) (noting that “[s]uch dual testimony is not objectionable in principle”).



                                              7
      Finally, Lackey contends that his sentence was improperly imposed under Blakely

v. Washington, 

(2004) and now United States v. Booker, 

(2005).   We agree and will vacate his sentence and remand this case to the District Court

for re-sentencing. See United States v. Davis, 

(3d Cir. 2005).

                                     IV. Conclusion

      For the reasons stated above, we will affirm the judgment of conviction and vacate

the judgment of sentence and remand this case for re-sentencing.




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