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Ninth Circuit Judges Disagree Over ‘Propensity Evidence’
Majority Says Recordings in Which Defendant Admits That He ‘Sells Drugs’ to ‘Five or Six People’ Were Properly Admitted Without Limiting Instruction, Drawing Dissent Over ‘Manifest’ Error
By Kimber Cooley, associate editor
A divided panel of the Ninth U.S. Circuit Court of Appeals has held that two recorded jail calls, made in September 2020, in which the defendant expressed his surprise at being federally prosecuted by saying that he only “sells drugs” to “five” or “six” people were properly admitted, without a limiting instruction, during a trial at which he was accused of possessing heroin and methamphetamine on July 2, 2020 with an intent to distribute the narcotics.
At issue was whether the unqualified admission violated Federal Rule of Evidence 404(b), which provides:
“Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”
In Thursday’s memorandum opinion, signed by Circuit Judge Michelle T. Friedland and Senior Circuit Judge Danny J. Boggs of the Sixth U.S. Circuit Court of Appeals, sitting by designation, the court held that the defendant’s statements indicating “ongoing” narcotics-sales activities were not evidence of “other acts” in violation of Rule 404(b), saying:
“The jury most likely inferred that Jolly’s statements referred to his conduct on July 2, rather than to other, uncharged drug-dealing offenses.”
Dissenting, Circuit Judge Daniel Aaron Bress argued:
“Michael Jolly’s first trial for possessing drugs with intent to distribute ended in a mistrial after jurors could not reach agreement. The government re-tried Jolly, but this time it introduced incriminating phone calls that Jolly made from jail. The district court admitted these calls without a Federal Rule of Evidence 404(b) limiting instruction…..The calls were key: the jury in Jolly’s second trial found him guilty. In my view, the admission of the calls without clarifying instructions was manifest and prejudicial error. I would vacate Jolly’s conviction.”
Three Arrests
The defendant had been arrested on drug offenses three times in the months leading up to the incriminating phone calls and, at the time, did not yet know which of the encounters formed the basis of the charges against him. During a conversation recorded on September 23, he said:
“I mean, dude, um like I don’t know why [federal prosecutors] would want me, period. Like, I mean dude, it’s like. Like, I sell drugs to five people. You know what I’m saying?”
A few days later, he made similar remarks, exclaiming:
“I sell drugs to six people, bro, that’s it!...I’ll admit to that.”
During the ensuing trial on the charges against him, Jolly objected to the admission of the recordings as improper propensity evidence under Rule 404(b). District Court Judge Mark C. Scarci of the Central District of California overruled his objections and declined to instruct the members of the jury that they were not to consider the statements as evidence of the defendant’s likelihood to commit the charged offenses.
In 2022, a jury found him guilty of the charges, and Scarsi sentenced him to 10 years in prison.
On appeal, Jolly challenges the admission of the tapes, without a limiting instruction, and claims that the federal prosecutors encouraged the panel to consider the tapes for an improper purpose by referring to him as a “drug dealer” and averring that he “has admitted to his crimes.”
Majority’s View
Friedland and Boggs wrote:
“[The] statements are directly relevant to whether [Jolly] possessed with intent to distribute on July 2, 2020, because they evince that Jolly had ongoing drug deals during a time period that included July 2, 2020, making it more probable ‘than it would be without the evidence’ that Jolly possessed with intent to distribute on that date.”
They cited the 1995 Ninth Circuit decision in U.S. v. Moorehead, in which the question before the court was whether testimony—indicating that the defendant, who was charged with illegal possession of a firearm based on police officers finding a loaded firearm in his car, had previously been seen with the weapon in the vehicle—was barred by Rule 404(b).
The Moorehead court held that the testimony was properly admitted, declaring that proof of ongoing criminal conduct that is identical to the actions underlying the charged offenses may be considered as “direct evidence.”
Applying those principles, the jurists opined that the defendant’s statements on the recordings were evidence of ongoing criminal activity in line with the charged offenses, and declared:
“[N]either the September 23 nor September 26 calls is ‘other acts’ evidence under Rule 404.”
In a footnote, they said that Scarci “may have concluded that the calls were direct evidence for a mistaken reason (i.e., that the calls described actual drug sales that occurred on July 2),” but said that “we review de novo whether evidence” runs afoul of Rule 404(b) and so “are not limited to the district court’s reasoning.”
Prosecutor Statements
Addressing the statements by the federal prosecutors, the judges remarked:
“Jolly argues that even if the September 23 and 26 phone calls were admissible, the Government improperly used [them] as propensity evidence. That argument is also unavailing….Although the Government did refer to Jolly as a ‘drug dealer’ at one point, we have held that calling a defendant a ‘dope dealer’ is…permissible…when that defendant is charged with dealing drugs….Even if calling Jolly a drug dealer were improper, ‘a single improper statement’ would not warrant reversal.”
Having found that Rule 404(b) did not preclude the admission of the recordings, the panel considered the defendant’s assertion that the evidence should have been excluded on alternative grounds, based on an argument that the “probative value” of the recordings “is substantially outweighed by a danger of…unfair prejudice,” within the meaning of Rule 403.
Rejecting that contention, they commented:
“Here, the prejudicial material and the probative material are one and the same. What makes the…calls prejudicial is what makes them probative, too. Any prejudice caused by those calls was therefore not unfair, and the district court did not err in admitting the September 23 or September 26 calls under Rule 403.”
Acknowledging that Scarci might have erred as to some other evidentiary rulings, they concluded that “considered in light of all the other evidence in the record,…their combined effect would not have been ‘so prejudicial as to require reversal.’ ”
Bress’ Dissent
Bress wrote:
Citing…the general test for relevant evidence, the majority concludes that Jolly’s statements in the September 23 and 26 calls ‘are directly relevant to whether he possessed with intent to distribute on July 2, 2020, because they evince that Jolly had ongoing drug deals during that time, making it more probable…that Jolly possessed with intent to distribute on July 2, 2020.’ ”
Faulting that logic, he said:
“The majority confuses concepts. Jolly’s jailhouse statements may well make it more probable that Jolly possessed drugs on July 2, 2020. But any evidence of Jolly’s other drug dealing would have that effect, based on the supposition that one who deals drugs is more likely to have done so on a particular occasion. Yet Rule 404(b) steps in to prevent jurors from drawing that very type of inference.”
The judge added:
“Even assuming Jolly’s September 23 and 26 calls encompassed his conduct on July 2, 2020…[,] the statements most naturally refer to a continued pattern of wrongful drug-related conduct. Jolly speaks in the present tense…, connoting a continuous course of conduct. He speaks about a different type of act, ‘selling’ drugs, than the act with which he was charged, possession of drugs. And in context, we know Jolly was referring to more conduct than just July 2, because the calls took place after he had been arrested three times.”
As to the statements by the lawyers with the U.S. Attorney’s Office, he reasoned that the reference to the defendant being a “drug dealer” relied on a “broader range of uncharged conduct” rather than the one arrest at issue. He also took issue with the prosecutors’ characterization that he admitted to committing the crimes, saying that the assertion was inaccurate “unless of course ‘crimes’ refers to a series of other uncharged acts.”
Under those circumstances, Bress reasoned:
“Because these calls contained evidence about Jolly’s other misconduct that exceeded the conduct for which he was charged, and because no Rule 404(b) limiting instruction was provided, Jolly’s conviction should be vacated.”
The case is U.S. v. Jolly, 22-50220.
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