SPENCER T. MYERS, PETITIONER V. UNITED STATES OF AMERICA No. 89-7182 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1A-8A) is not reported. JURISDICTION The judgment of the court of appeals was entered on February 9, 1990. The petition for a writ of certiorari was filed on April 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court committed reversible error by failing to make findings on the record balancing the probative value of evidence admitted under Fed. R. Evid. 404(b) against its possible prejudicial effect. STATEMENT Following a jury trial in the United States District Court for the Southern District of West Virginia, petitioner was convicted of conspiracy to possess cocaine with the intent to distribute it, in violation of 21 U.S.C. 846 (Count 1); three counts of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Counts 2, 3 & 5); one count of carrying two firearms during and in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c) (Count 6); and one count of possession of a firearm after conviction for a felony, in violation of 18 U.S.C. 922(g) (Count 7). He was sentenced to 97 months' imprisonment, to be followed by five years of supervised release. 1. The evidence at trial, which is summarized in the opinion of the court of appeals, showed that petitioner was engaged in the distribution of cocaine in Huntington, West Virginia, between October 7, 1988, and January 17, 1989. On October 7 and 11, 1988, petitioner sold cocaine at his residence to a government informant, Beverly Evans. On January 12, 1989, petitioner sold cocaine at his residence to another government informant, Arthur McCloud. McCloud purchased cocaine from petitioner between 10 and 15 times over several months prior to December 1988. Pet. App. 4A. On January 12, 1989, co-defendant Richard Miller provided cocaine to Shawna Heslop, a prostitute. The following morning, Miller took Heslop to petitioner's residence to get more cocaine. Heslop stayed with petitioner at his residence between January 13 and 17, 1989. During that time, petitioner continually provided Heslop with cocaine, and Miller returned to the residence several times. While she stayed at petitioner's residence, Heslop observed petitioner selling cocaine to approximately 20 to 30 people each day. Pet. App. 4A-5A. The evidence at trial also showed that petitioner possessed firearms on the two occasions charged in the indictment. On November 16, 1988, a local police officer stopped petitioner's car after he ran a stop sign. After observing an open paper bag that appeared to contain drug paraphernalia in the back seat, the officer patted down petitioner and found two bullets in his jacket. Inside the car, the officer found a loaded Taurus .38 caliber revolver and a box of ammunition. The officer also found a paper packet, a plastic bag, and eight smaller plastic bags, all of which contained cocaine. Pet. App. 4A. On January 18, 1989, police officers executed a search warrant for petitioner's apartment and arrested him. In petitioner's bedroom, the officers found a .38 Special Derringer, a .22 caliber revolver, and some drug paraphernalia. The officers discovered a small bag of cocaine in petitioner's sock during the search incident to his arrest. Pet. App. 5A-6A. 2. Prior to trial, petitioner filed a motion in limine broadly seeking to exclude any evidence showing that he solicited or forced Heslop to commit acts of prostitution or that he made any threats of physical violence against Heslop, her boyfriend, or her children. Pet. App. 9A-10A. In a second motion in limine, petitioner also sought to exclude any evidence that he carried or used a firearm during and in relation to a drug trafficking crime on any date other than January 18, 1989. Pet. App. 11A-13A. On the first day of trial, the district court denied the motions. Pet. App. 16A-28A. /1/ 3. The court of appeals affirmed. Pet. App. 1A-8A. It rejected petitioner's claim that the evidence that he possessed firearms on occasions other than January 18, 1989, was not admissible under Fed. R. Evid. 404(b). The court observed that, to make out an offense under 18 U.S.C. 924(c), the government "was required to show that the firearms recovered in the raid of (petitioner's) residence (on January 18, 1989,) were used or carried intentionally or knowingly 'during the commission of' his felony drug offense." Pet. App. 5A. The court concluded that, under Fed. R. Evid. 404(b), the evidence that petitioner possessed firearms on occasions other than January 18, 1989, was admissible as tending to show that petitioner "possessed firearms on January 18, 1989, as part of his overall preparation and plan illegally to possess and distribute drugs." Pet. App. 6A. The court also rejected petitioner's claim that the district court committed reversible error by failing to balance the probative value of the evidence against its possible prejudicial effect. The court explained that "the failure of the district court to articulate its reasoning on the record is not reversible error" because "a ruling of admissibility implies that the standards of admissibility have been met." Id. at 6A n.*. /2/ ARGUMENT Petitioner contends (Pet. 10-12) that the district court committed reversible error by failing to make findings on the record balancing the probative value of the "other acts" evidence offered under Fed. R. Evid. 404(b) against any possible prejudicial effect. That contention is without merit. We are not aware of any criminal case in which a court of appeals has reversed a conviction solely because the district court failed to make explicit findings on the record balancing the probative value of evidence offered under Fed. R. Evid. 404(b) against its prejudicial impact. To be sure, the Fifth and District of Columbia Circuits have held that a district court must make such findings when specifically requested to do so by a defendant. /3/ In those circuits, however, a district court's failure to make the findings does not lead to a reversal or remand if "the factors upon which the probative value/prejudice evaluation were made are readily apparent from the record, and there is no substantial uncertainty about the correctness of the ruling." United States v. Robinson, 700 F.2d 205, 213 (5th Cir. 1983). See United States v. Zabaneh, 837 F.2d 1249, 1261-1266 (5th Cir. 1988); United States v. Fortenberry, 860 F.2d 628, 633-634 & n.11 (5th Cir. 1988) United States v. Manner, 887 F.2d 317, 322-323 (D.C. Cir. 1989); United States v. Lavelle, 751 F.2d 1266, 1279 (D.C. Cir.), cert. denied, 474 U.S. 817 (1985). In a similar vein, the Tenth Circuit has held that "the trial court must specifically identify the purpose for which (the) evidence is (admitted) and a broad statement merely invoking or restating Rule 404(b) will not suffice." United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985), cert. denied, 474 U.S. 1081 (1986). A district court's failure to comply with that requirement, however, is "considered harmless if 'the purpose for admitting the other acts evidence is apparent from the record, and the district court's decision to admit was correct.'" United States v. Porter, 881 F.2d 878, 885 (10th Cir.) (citations omitted), cert. denied, 110 S. Ct. 348 (1989). Other courts of appeals have expressed various degrees of preference for an explicit, on-the-record balancing, but none imposes any strict requirement that the district courts comply with this procedure in all cases in which evidence is admitted under Rule 404(b). United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988); United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987); United States v. DeLuna, 763 F.2d 897, 913 (8th Cir.), cert. denied, 474 U.S. 980 (1985); United States v. Hyman, 741 F.2d 906, 913 (7th Cir. 1984); United States v. Braithwaite, 709 F.2d 1450, 1455-1456 (11th Cir. 1983); United States v. Acosta-Cazares, 878 F.2d 945, 950 (6th Cir.), cert. denied, 110 S. Ct. 255 (1989). The slightly different approaches taken by the courts of appeals do not rise to the level of a conflict warranting this Court's review. In any event, no court of appeals would order reversal and remand for failure of the trial court to conduct on-the-record balancing in this case. The reasons for the admission of the Heslop testimony and the weapons testimony are "apparent from the record," and the district court's decisions to admit that evidence were justified by the probative value of that evidence, under Rules 403 and 404(b), in demonstrating a motive for petitioner's drug-dealing, his method of receiving payment for drugs, and his plan for the use of weapons in the course of his drug operations. See supra at page 5 & note 2. Because the outcome of this case is correct under even the most stringent standard embraced by the courts of appeals, it does not present an appropriate occasion for this Court's consideration of whether Rule 404(b) requires an on-the-record balancing of probative value against prejudicial effect. Contrary to petitioner's contention (Pet. 11-12), the absence of explicit findings by the district court balancing the probative value of evidence admitted under Rule 404(b) against its prejudicial impact hardly allows a court of appeals to abdicate its responsibility for determining whether the lower court abused its discretion in admitting the evidence. As the Fifth, District of Columbia and Tenth Circuits have made clear, the requirement that district courts make such findings is simply a judicially-created rule of convenience designed primarily to facilitate appellate review of challenges to the admission of the evidence. United States v. Fortenberry, 860 F.2d at 634 n.12; United States v. Lavelle, 751 F.2d at 1279; United States v. Kendall, 766 F.2d at 1436-1437. Whether a district court should be required to make such findings whenever evidence is admitted under Rule 404(b) is therefore clearly a matter that may appropriately be left to the respective courts of appeals. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOSEPH C. WYDERKO Attorney JUNE 1990 /1/ At trial, Heslop testified about the period that she stayed with petitioner at his residence between January 13 and 17, 1989. On direct examination by the government, she testified that petitioner drove her to her home in Dunbar, West Virginia, to retrieve her children, who were staying with her boyfriend, but that her children were not at home. She also testified that she did not remain at home because petitioner declared that she was "his woman" and threatened to kill her and her family if she left him. She further testified that she made a second trip to Dunbar with petitioner and Miller during which they went to a police station to seek assistance in retrieving her children from her boyfriend. Gov't C.A. Br. 4-5. Defense counsel cross-examined Heslop about her drug habits and her activities as a prostitute. Following that cross-examination, the district court ruled that it was proper for the prosecutor to question Heslop regarding her reasons for remaining with petitioner, in order to rebut defense counsel's suggestions that Heslop chose to stay with petitioner to escape from her abusive boyfriend. C.A. App. 203-204. Heslop then testified that petitioner and Miller wanted her to work for them as a prostitute. C.A. App. 205. The district court also admitted evidence that petitioner carried or used firearms in connection with his drug-dealing activities on dates other than January 18, 1989. Evans, who had purchased cocaine from petitioner on numerous occasions, testified that she had seen petitioner with a pistol many times and that he carried it "in case he was robbed by somebody for his cocaine." C.A. App. 78-79. McCloud testified that he had never seen petitioner carrying a gun, but that he had seen a Derringer in petitioner's house. C.A. App. 123, 127-129. Heslop testified that petitioner kept one pistol in a box in the bedroom and carried another pistol in his belt during the period she stayed with him. C.A. App. 182-183. /2/ In affirming all judgments of conviction, the court of appeals did not separately address petitioner's contention that Heslop's testimony concerning petitioner's threats and demands that she work for him as a prostitute should have been excluded under Rule 404(b). It is plain, however, that petitioner's contention is unavailing. The testimony in question established the manner in which Heslop was expected to pay for the cocaine that petitioner was providing to her, and also provided a motive for the provision of cocaine to Heslop. Cf. Pet. App. 20A. Rule 404(b) therefore did not require the exclusion of this evidence. /3/ Petitioners do not assert that they ever made such a request to the district court.