United States v. Hicks

Citations: 635 F.3d 1063; 85 Fed. R. Serv. 1; 2011 U.S. App. LEXIS 6788; 2011 WL 1226363Docket: 09-3608

Court: Court of Appeals for the Seventh Circuit; April 4, 2011; Federal Appellate Court

Original Court Document: View Document

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Billy Hicks was convicted of distributing cocaine base under 21 U.S.C. § 841(a)(1) and appealed the decision, claiming several trial errors by the district court. The Seventh Circuit Court of Appeals upheld the district court's dismissal of a juror for cause due to her relationship with a witness, the admission of recorded conversations between Hicks and a confidential informant, and the testimony of federal agents regarding their observations. However, the court found that the district court improperly admitted evidence of Hicks's prior drug convictions, violating Federal Rule of Evidence 404(b). Consequently, the court vacated Hicks's conviction and remanded the case for a new trial.

The background of the case revealed that on July 17, 2006, Hicks had a recorded phone conversation with Anthony Hurd, a confidential informant working with the FBI, discussing a potential cocaine transaction in coded language. During the planned exchange, which took place at a relative's home of Hicks's girlfriend, Hurd was equipped with a body wire, had been searched for drugs, and was provided with $2,500 to purchase crack cocaine. After meeting with Hicks, Hurd obtained four ounces of crack cocaine. Later, when a follow-up pickup was arranged, FBI undercover agent Kareem Jacox suspected he was being followed and observed counter-surveillance activities, leading the FBI to terminate the operation for safety reasons.

In 2008, Hicks was arrested and charged with distributing over 50 grams of crack cocaine under 21 U.S.C. 841(a)(1). He pleaded not guilty and proceeded to trial in July 2009. The government sought to introduce evidence of Hicks's two prior drug convictions under Federal Rule of Evidence 404(b) to establish his knowledge and intent in the drug trade. The district court approved this motion despite Hicks's objections. 

Three days before trial, Hicks filed a motion for reconsideration regarding a previous request to continue the trial, suggesting that the 404(b) ruling necessitated a reevaluation of his defense strategy, including a possible entrapment defense. The government contended that it was uncertain whether Hicks would pursue this defense but argued it was unavailable to him. In response, Hicks filed an "entrapment proffer," expressing that the 404(b) ruling compelled him to testify and assert his defense.

During the trial, against defense objections, the government introduced audio recordings of conversations between Hicks and Hurd, a person who was murdered before the trial, and evidence regarding counter-surveillance activities. The court allowed the introduction of Hicks's prior convictions with a limiting instruction for the jury to consider them only for knowledge, intent, and lack of mistake.

After a recess, Hicks's counsel announced his decision to have Hicks testify, who acknowledged his previous convictions but claimed to have reformed. He testified that Hurd pressured him into facilitating a drug deal, asserting he did not actually sell drugs but merely arranged the exchange. Hicks's girlfriend, Tanya Lear, testified in support of his character. A juror recognized Lear during her testimony, leading to her dismissal for cause and replacement by an alternate juror to maintain trial impartiality.

After closing statements, the jury was instructed on the charges against Hicks, his entrapment defense, and accomplice liability. The jury convicted Hicks of distributing over 50 grams of crack cocaine, resulting in a life sentence. Hicks is now appealing his conviction and seeking a new trial.

The district court's dismissal of Juror #9 for cause was justified. The juror had daily communications with a key witness, Lear, who testified about Hicks's character—central to his defense. Such familiarity warranted her dismissal, aligning with precedent that supports juror removal due to potential bias.

Regarding the admission of tape recordings of Hicks's conversations, the court reviewed this matter de novo due to a Sixth Amendment challenge. Hicks contended the recordings included hearsay, but the court found his statements were admissible as non-hearsay since they were statements made by a party opponent. Hurd’s statements were permitted to provide necessary context, as they were not testimonial and did not violate the Confrontation Clause. The court emphasized that Hicks did not dispute or clarify Hurd's statements, further supporting their admissibility based on the context exception.

In the case of United States v. Schalk and United States v. Woods, the Seventh Circuit found that recorded conversations with an informant were admissible as the defendant, Hurd, adopted the informant’s statements during the dialogue without contradiction. The district court's decision to admit Hurd's statements was deemed appropriate for contextualizing Hicks’s statements. 

Hicks challenged the admissibility of FBI agents' testimonies regarding observed counter-surveillance during an attempted meeting, claiming it constituted expert testimony. Since Hicks did not object at trial, the court reviewed for plain error. The court ruled that law enforcement officers can provide lay opinions based on their observations of suspicious activities. The agents did not assert definitively that the individuals observed were part of Hicks's counter-surveillance; they only relayed their observations, which did not qualify as expert opinions.

Hicks also argued that his prior unrelated drug convictions should not have been admitted during the government’s case-in-chief. The court reviews evidentiary rulings for abuse of discretion and considers whether any error affected Hicks's substantial rights. Under Rule 404(b), evidence of other acts is generally inadmissible to establish character but may be allowed for purposes like motive or intent. The court must assess if the prior convictions served to establish a matter other than Hicks's propensity to sell drugs, considering their relevance to knowledge and lack of mistake. The admissibility of the prior convictions hinges on their ability to make any consequential fact more or less probable, as outlined in Fed. R. Evid. 401.

The government argues that Hicks’s prior drug convictions indicate he was aware of the illegal nature of drug distribution. However, Hicks has not disputed his knowledge of the illegality of selling crack cocaine. The government references United States v. Hatchett to support its claim that prior convictions show Hicks was a "knowing participant" in drug activities, contrasting it with Hatchett's case where his involvement was directly linked to aiding and abetting. In Hatchett, prior dealings were relevant to establish knowledge of drug redistribution. Conversely, Hicks’s defense focused on challenging the agents' ability to confirm his sale of drugs to Hurd, with no connection to Hurd's past convictions or prior drug dealings. The government fails to justify how Hurd’s convictions indicate Hicks's knowledge or intent, relying improperly on the inference that prior drug dealing implies continued participation. Moreover, since unlawful distribution of cocaine is a general intent crime, prior bad acts are not typically admissible unless the defendant first places their intent at issue, which Hicks did not. Evidence of prior convictions cannot establish intent in the absence of such a claim by Hicks.

In *United States v. Shackleford*, the court ruled that evidence of prior bad acts, including convictions, cannot be used in the government's case-in-chief to establish intent unless the defendant raises that issue. The government initially sought to introduce such evidence to prove intent, knowledge, and absence of mistake but later conceded it could only be used to show knowledge and lack of mistake. Hicks did not assert intent during the government's case-in-chief; he waived his opening statement and focused on challenging the agents' credibility. The court compared this case to *United States v. Manganellis*, where the defendant's denial of the charges did not put intent at issue, thus prohibiting admission of prior misconduct evidence.

The government also argued that prior convictions could rebut Hicks’s entrapment defense. However, such evidence is only admissible if the defendant raises the entrapment issue during their case. While Hicks's counsel had discussed the possibility of an entrapment defense pre-trial, it was not formally raised until after the government rested its case. Hicks did not mention an entrapment defense during the government's case-in-chief or in his waived opening statement, leading the court to conclude that the introduction of prior convictions was inappropriate.

Hicks did not clearly express his intention to use an entrapment defense before his prior convictions were admitted as evidence, weakening the government's argument for their admissibility to show predisposition. Proper procedure would have required the government to introduce the convictions only after Hicks presented his defense. The court determined that the prior convictions were improperly admitted, paralleling cases where cross-examination did not justify their pre-trial admission. Additionally, the government's attempt to introduce an accomplice liability theory was flawed, as it was not raised before trial and only emerged after Hicks testified about his involvement in the drug sale. The government conceded that intent was only in question after Hicks's testimony, contradicting its claim that accomplice liability was its original theory. The relevance of Hicks's prior convictions was limited to improper inferences prohibited by Rule 404(b), suggesting a propensity to commit the crime. The government's opening statement implied that Hicks's prior conduct was being used to establish guilt for the current charges, despite the significant time gap between incidents. Ultimately, the court found that the admission of prior convictions violated Rule 404(b) and affected Hicks's substantial rights, as the government's case would likely have been less persuasive without this evidence.

The test for harmless error, as established in United States v. Blanchard, examines whether the prosecution's case would have been significantly less persuasive to the average juror if improper evidence had been excluded. In the case presented, drugs were not explicitly discussed in the initial conversation between Hicks and Hurd, necessitating the government's use of a witness to interpret the conversation as drug-related, which the jury might not have inferred independently. There was no direct evidence linking Hicks to the sale of crack cocaine to Hurd; while Hicks discussed prices, it remained possible that someone else provided Hurd with the drugs. Additionally, Hicks’s statement to police, made 16 months post-incident regarding past drug deals, did not equate to an acknowledgment of responsibility for the current charge and was admitted in violation of Rule 404(b). The prosecution's introduction of Hicks’s prior drug convictions could lead jurors to draw forbidden propensity inferences, which is particularly concerning given the lack of direct evidence and the weakness of the circumstantial evidence. The court determined that the admission of these convictions affected Hicks’s substantial rights, leading to the reversal of the conviction. Consequently, the conviction is vacated, and the case is remanded for a new trial. The court did not address the final argument regarding jury instructions since the Rule 404(b) violation was sufficient for reversal.