WILLIE HOWARD ROYAL, PETITIONER V. UNITED STATES OF AMERICA No. 90-5115 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. A) is unpublished. JURISDICTION The judgment of the court of appeals was filed on February 16, 1990. A petition for rehearing was denied on April 20, 1990. The petition for a writ of certiorari was filed on July 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court abused its discretion by admitting evidence of prior criminal acts committed by petitioner. STATEMENT After a jury trial in the United States District Court for the Northern District of Alabama, petitioner was convicted of conspiracy to distribute cocaine, in violation of 21 U.S.C. 846, and distribution of cocaine, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 33 months' imprisonment, to be followed by a five-year term of supervised release. The court of appeals affirmed by judgment order. Pet. App. A. 1. The evidence at trial showed that petitioner sold two ounces of cocaine to an undercover officer and an informant. Petitioner agreed to sell the cocaine to informant Melvin Cook as part of an arrangement by which Cook would obtain the return of his car, which petitioner was holding as security for a prior cocaine debt. After several telephone calls, petitioner agreed to deliver the cocaine to a motel room in Fairfield, Alabama. Petitioner gave the cocaine to two women, Wanda Scott and Larrethau Latham, who took it to the motel. When Scott and Latham attempted to complete the sale, they were arrested. Gov't C.A. Br. 4-7. 2. Prior to trial, petitioner filed a motion in limine to exclude evidence that he had previously committed acts similar to those charged in the indictment. After hearing argument, the district court denied the motion. Gov't C.A. Br. 3. At trial, the government introduced evidence of prior cocaine transactions by petitioner. Melvin Cook testified that, two to three years before trial, he had seen petitioner sell ounce and half ounce quantities of cocaine four to five times a month for a year. Larrethau Latham testified that she had met petitioner about five months prior to her arrest and that she had seen him in possession of one or two ounce quantities of cocaine at least two or three times during that period. She also stated that she had seen petitioner distribute cocaine once or twice in the four days before her arrest. Gov't C.A. Br. 7-8. ARGUMENT Petitioner contends (Pet. 11-17) that the district court erred in allowing the government to introduce evidence of prior criminal acts at his trial. Specifically, he argues that the evidence was inadmissible under Federal Rule of Evidence 404(b), because the government did not introduce the evidence for a proper purpose, because there was insufficient evidence from which the jury could infer that the prior criminal acts occurred, and because the prejudice caused by the introduction of the evidence outweighed its probative value. These fact-bound contentions are without merit. Under Federal Rule of Evidence 404(b), evidence of extrinsic acts committed by the defendant is admissible at trial if (1) it is offered for a proper purpose, (2) the government shows by a preponderance of the evidence that the prior acts occurred, and (3) the probative value of the evidence does not outweigh its potential for unfair prejudice. See Huddleston v. United States, 485 U.S. 681, 687-688 & n.5, 691-692 (1988). Contrary to petitioner's claims, the government easily met those requirements in this case. Under Rule 404(b), evidence is admissible for any purpose other than "solely to prove character." Huddleston, 485 U.S. at 687. Petitioner was charged with conspiracy to distribute cocaine. To prove that offense on the facts of this case, the government had to show that petitioner had the intent to join a conspiracy with Scott and Latham to distribute cocaine to Cook. See United States v. Prince, 883 F.2d 953, 957 (11th Cir. 1989); United States v. Pemberton, 853 F.2d 730, 733 (9th Cir. 1988); United States v. Osgood, 794 F.2d 1087, 1094 (5th Cir.), cert. denied, 479 U.S. 994 (1986). Because petitioner did not remove the issue of intent from the case, it was permissible for the government to introduce evidence that petitioner had previously distributed similar amounts of cocaine to customers, in order to establish his intent to participate in the distribution conspiracy charged in the indictment. See United States v. Harrod, 856 F.2d 996, 1000 (7th Cir. 1988); United States v. Tussa, 816 F.2d 58, 68 (2d Cir. 1987); United States v. Nahoom, 791 F.2d 841, 845 (11th Cir. 1986); United States v. Tebha, 770 F.2d 1454, 1457 (9th Cir. 1985); United States v. Bourgeois, 746 F.2d 401, 405 (8th Cir. 1984). The evidence was thus offered for a permissible purpose, not simply to show that petitioner had a bad character and that on the occasion at issue in this case petitioner acted in conformity with his character. Petitioner also contends (Pet. 14-16) that there was insufficient evidence to support the district court's finding that he committed the prior criminal acts. That argument is meritless. Two eyewitnesses testified that they had seen petitioner commit those acts. Based on that evidence, the jury reasonably could have concluded that petitioner was involved in the prior cocaine transactions; the trial court therefore properly allowed the evidence to go to the jury. See Huddleston v. United States, 485 U.S. at 691. Although petitioner claims that those witnesses were unworthy of belief, the witnesses' credibility was for the jury to evaluate; the question of credibility does not undermine the court's decision to admit the evidence. Finally, petitioner argues (Pet. 16-17) that the district court should have excluded the evidence under Rule 403, Fed. R. Evid., because its prejudicial effect outweighed its probative value. Petitioner identifies no particular source of prejudice, however. Instead, he simply asserts that because the prior criminal acts were similar to the acts for which he was on trial, they had a particularly prejudicial effect. In fact, however, the similarity of the prior acts to the crimes for which petitioner was being tried increases the probative value of the prior acts. See United States v. Boon San Chong, 829 F.2d 1572, 1576 (11th Cir. 1987); United States v. Harris, 738 F.2d 1068, 1072 (9th Cir. 1984). Moreover, the prior crimes introduced under Rule 404(b) were not "of such a heinous nature that they are likely to sway the jury irrevocably to a decision of guilt." United States v. Williams, 816 F.2d 1527, 1532 (11th Cir. 1987); see E. Imwinkelreid, Uncharged Misconduct Evidence Section 8:24 (1984). Petitioner has not shown that the district court abused its discretion in admitting the evidence. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General J. DOUGLAS WILSON Attorney SEPTEMBER 1990