The United States Court of Appeals for the Eleventh Circuit granted the United States’ Petition for Rehearing, vacating the prior opinion in *United States v. Matthews* and issuing a new opinion. Terrance Matthews was convicted after a jury trial for conspiracy to distribute cocaine and two counts of obstruction of justice through witness intimidation. He received a total sentence of 292 months of imprisonment and additional supervised release. Matthews raised four appeal issues: (1) the exclusion of wiretap evidence due to improper sealing; (2) the admissibility of a telephone conversation involving a non-defendant as hearsay; (3) sufficiency of evidence for witness intimidation convictions and associated sentencing enhancement; and (4) the admission of evidence regarding Matthews’s 1991 arrest under Federal Rule of Evidence 404(b). The court reviewed the proceedings, addressing each claim and concluding that the district court did not commit reversible error. Evidence presented at trial indicated Matthews was part of an informal conspiracy to distribute cocaine, initiated by DEA investigations involving a cooperating courier, Nathaniel King ("Peewee"). The DEA conducted wiretaps on key participants, gathering over 6,300 calls, none of which implicated Matthews directly in the conspiracy.
Alston's phones were monitored for thirty days, resulting in over 2,400 intercepted calls, with 106 identified as relevant. One significant call between Alston and Matthews involved their discussion about selling a kilogram of cocaine. Additionally, during a call with Jason Moore, Alston was informed that Moore would contact Matthews, referred to as "sa-ous," indicating familiarity with Matthews's number. Moore also mentioned needing "power pellets," a term Alston identified as ecstasy pills, and Alston agreed to arrange this.
An hour and a half later, Alston spoke with Matthews, who inquired whether Moore had contacted him and about the price Alston quoted Moore for the cocaine, using "twenty-six street" as code for $26,000. Alston denied the price, and Matthews indicated he wanted the kilogram for resale to Moore. Alston could not recall if he sold that specific kilogram of cocaine.
Subsequently, the DEA arrested multiple members of the conspiracy, including Alston, who later testified against Matthews. Alston admitted to selling over 400 kilograms of cocaine and received sentence reductions due to substantial assistance and acceptance of responsibility, leading to a 135-month sentence instead of a potential 324 to 405 months. His plea agreement also prevented any firearm-related enhancements to his sentence. Alston’s partnership with James Brown in Miami involved sourcing cocaine, while Brown managed connections with buyers in Jacksonville, initially using a courier named Peewee to facilitate transactions.
Peewee's escape from a staged DEA stop led Jacksonville customers to Miami for cocaine purchases. Alston primarily sourced cocaine from George Morales but occasionally bought from Matthews, acquiring five to ten kilograms at prices ranging from $18,000 to $23,000 per kilogram, with a maximum purchase of twenty kilograms on one occasion. He sold Matthews one to three kilograms on about five occasions in 2000 before ceasing business due to receiving poor-quality cocaine.
After Alston's sentencing and incarceration in Miami, Matthews sent him four letters, which he acknowledged writing under pseudonyms. The first letter warned Alston about rumors of him cooperating with authorities, advised him to stop cooperating, and encouraged him to seek spiritual guidance. Matthews referenced the death of a mutual acquaintance, Sleep, to stress the importance of being right with God, which Alston interpreted as a potential threat related to his cooperation with the government.
In the second letter, Matthews reiterated concerns about Alston's cooperation and urged him to clarify Matthews's lack of involvement in Alston's case, suggesting that if roles were reversed, Matthews would assist Alston. The third letter accused Alston of not having faith and emphasized that true friendship would require Alston to help Matthews. Matthews's letters collectively indicate attempts to dissuade Alston from cooperating with authorities and suggest underlying threats regarding their shared criminal past.
Alston received letters from Matthews, which he interpreted as requests to deny Matthews's involvement in a cocaine conspiracy. Matthews referenced a murder victim known as Sleep, implying that Sleep was killed due to perceived cooperation with the Government. Alston expressed concern for another individual, Say Ough, who was allegedly being targeted by authorities and sought Alston's help in clarifying the situation. Alston felt pressured by Matthews's letters to withdraw his cooperation with the Government, fearing repercussions for himself and others involved.
Testimony from James Brown revealed his extensive involvement in the cocaine conspiracy, having sold hundreds of kilograms and pled guilty to conspiring to distribute between fifteen and fifty kilograms. He received a sentence reduction for substantial assistance due to a 5K1.1 motion, reducing his potential sentence significantly. Brown's account of transactions with Alston aligned with Alston’s testimony, noting a few significant purchases of cocaine from Matthews, including one that was of poor quality, after which he ceased business with Matthews.
Antonio Austin also testified, detailing his role in the conspiracy and his cocaine sales in Jacksonville, with primary suppliers being Alston and Brown. Austin faced a lengthy prison sentence, but a pending Rule 35 motion raised hopes for further sentence reduction.
Austin first purchased cocaine from Matthews in December 2000, buying 1.5 kilograms for $33,000, facilitated by James Brown. In February 2001, he bought an additional kilogram for $22,000 and witnessed Matthews deliver three kilograms to Jason Moore, a key conspirator in Jacksonville. Moore, fearing that his lieutenant Shawn Richardson might cooperate with authorities, had Richardson's house shot up, resulting in injuries to Richardson and his family. Moore later cooperated with the Government and pled guilty to distributing 15 to 50 kilograms of cocaine, receiving a 324-month sentence due to his extensive criminal history.
At Matthews's trial, Moore testified about his own cocaine purchases from Matthews, noting that Matthews had offered lower prices than other suppliers. He described an incident where he attempted to smuggle cocaine back to Jacksonville but was thwarted by his associates. While in federal prison, Moore received a letter from Matthews, which he recognized despite its use of a pseudonym. The letter suggested that Moore was being accused of cooperating with the Government and implied that cooperation could lead to severe consequences, referencing the death of a conspirator named Sleep, allegedly due to his cooperation. Matthews's letter expressed disbelief over his indictment for gambling activities and urged Moore not to cooperate with authorities, warning of betrayal and threats related to their criminal ties.
Rodney Cannon testified as the fifth conspirator, having pled guilty to distributing one kilogram of powder cocaine and 150 to 500 grams of crack cocaine. After receiving a total of five levels in reductions for acceptance of responsibility and his minor role, his guideline range was 120 to 135 months due to a ten-year statutory minimum. However, the Government's motion under 18 U.S.C. 3553(e) for substantial assistance reduced his sentence to 78 months. Cannon reported selling four to six kilograms of cocaine monthly, primarily supplied by his brother, Jason Moore, who sourced cocaine from Miami, initially from Alston and Brown, later from Matthews. Cannon estimated purchasing around fifty kilograms from Matthews between 1999 and 2001 but only had direct contact with Matthews for two specific transactions involving one to two kilograms of cocaine.
Shawn Richardson, the sixth conspirator, faced a similar ten-year mandatory minimum but also benefited from the Government's motions for substantial assistance, resulting in a four-year sentence after receiving reductions for acceptance of responsibility and his minor role. Richardson testified about buying four to five ounces of cocaine weekly from Moore and Smith but ceased dealings with Moore after discovering two kilograms hidden in his rental car without consent. Following this incident, he refused to drive the cocaine back to Jacksonville, leading Moore to transport it himself.
Anthony Wells, the seventh conspirator, initially faced a ten-year minimum but received a reduced sentence of 72 months after the Government's motions for substantial assistance and reductions for his minor role and acceptance of responsibility. Wells sold cocaine and marijuana, sourcing cocaine primarily from Smith and Moore at prices between $650 and $850 an ounce. A Rule 35 motion was also pending for Wells at the time of Matthews’s trial, with hopes for further sentence reduction.
Rodney Cannon informed Wells that Moore obtained cocaine from James Brown, Farrell Alston, and Terrance Matthews. Wells observed Matthews in Miami multiple times but did not interact with him directly. During the trial, Wells recounted an incident in Miami involving two kilograms of cocaine in a rental car's trunk, aligning his testimony with Richardson's account. Matthews allegedly expressed skepticism about the plan for transporting the cocaine back to Jacksonville.
The government presented testimony from two Miami-Dade Police officers regarding a 1991 incident involving Matthews. On December 31, 1991, officers received a tip about a drug sale occurring from a Chevrolet. They observed Matthews engaging in multiple exchanges involving small packages, leading to his arrest. The officers found 251 grams of cocaine, marijuana, and cash in the vehicle. Matthews described himself as a "worker" in the drug trade, indicating his low-level role.
The officers’ testimony was admitted under Federal Rule of Evidence 404(b) to demonstrate Matthews's intent. The jury was instructed that this evidence should not be used to prove the defendant's actions in the indictment but to assess his state of mind and intent. The government argued during closing that the 1991 incident illustrated Matthews's intent to distribute cocaine, escalating from street-level sales to larger quantities by the time of the charged conspiracy. In contrast, Matthews's counsel contended that the Rule 404(b) evidence was introduced due to the unreliable nature of the prosecution's witnesses. The government rebutted this claim, asserting the evidence was crucial to establishing intent.
The 1991 incident is critical for assessing the defendant's intent to distribute cocaine, contrary to the defense's suggestion that it should be overlooked. The jury convicted Matthews on conspiracy to distribute five or more kilograms of cocaine and two counts of obstruction of justice. Matthews contends that the district court improperly admitted two telephone conversations due to non-compliance with 18 U.S.C. § 2518(8)(a), which mandates that recordings of communications be sealed properly after the expiration of the interception order. The order from March 16, 2001, allowed for interceptions to terminate upon achieving authorized objectives or after thirty days, with the court concluding that the interceptions ceased on April 10, 2001. The recordings were sealed two days later, and the court deemed this delay acceptable due to other court obligations. Precedents from three circuits indicate that sealing within one or two days is compliant with the statute. The court agrees with this interpretation, affirming that sealing within this timeframe constitutes sealing "immediately upon expiration" as required by the law. Thus, the recordings were lawfully admitted as evidence.
The Government contends that the tapes were sealed before the thirty-day period specified in the authorizing order expired. This assertion implicitly disputes the district court's conclusion that the order ended on April 10 and that its objectives were achieved by that date. However, the determination that the tapes were sealed "immediately" renders this argument moot. Consequently, the court does not address the Government's justification for any delay in sealing the tapes, assuming they were not sealed "immediately."
Matthews argues against the admissibility of the Alston-Moore conversation, claiming it constitutes hearsay as it did not occur "during the course and in furtherance of the conspiracy" to distribute cocaine, but rather related to an ecstasy sale, an unrelated conspiracy. He also posits that the conversation is irrelevant under Rule 401 and that the discussion of "power pellets" (ecstasy) poses unfair prejudice, warranting exclusion under Rule 403.
The admission of evidence under Rule 801(d)(2)(E) is reviewed for abuse of discretion, with factual findings evaluated under the clearly erroneous standard. The district court's application of Rules 401 and 403 is similarly scrutinized for abuse of discretion.
During the conversation, Moore indicates he will call Matthews, and shortly after, Matthews contacts Alston, inquiring about Moore's call. Alston testifies that Matthews was inquiring about a potential cocaine sale disguised as a discussion about a different transaction. The court must determine if the conversation was indeed in furtherance of the conspiracy involving Matthews. Despite Matthews' claims, the district court's findings that the conversation related to the cocaine conspiracy are upheld as reasonable, given the context of the discussions and subsequent actions.
Matthews acknowledges that during a call, Moore and Alston discussed ecstasy but argues he was not charged with its distribution. The court finds no reason to believe that this conversation could not pertain to two separate conspiracies, thus dismissing Matthews's hearsay argument. The court clarifies that relevant evidence is defined as having any tendency to make a consequential fact more or less probable, according to Federal Rule of Evidence 401. Statements made during the conspiracy regarding Matthews support the notion of his involvement and connection to Alston and Moore, thus bolstering the trial testimony that they were customers of his.
Matthews’s claim regarding unfair prejudice from the mention of ecstasy in the conversation is rejected. While he argues that this mention unfairly prejudiced him, the court notes that most of the conversation did not involve drugs, and the brief reference to "power pellets" did not outweigh the probative value of the evidence, especially given the context of substantial drug use among conspirators.
Lastly, the court addresses Matthews's challenge regarding the sufficiency of evidence for his conviction under 18 U.S.C. § 1512(b)(1) for intimidation. The indictment charged Matthews with both intimidation and corrupt persuasion; however, the jury was instructed solely on the intimidation charge. The court reviews the evidence in favor of the government, emphasizing that the determination of whether a communication constitutes a threat is a factual matter for the jury. If a reasonable recipient, familiar with the context, would interpret the communication as a threat, it should be submitted to the jury for consideration.
The jury was instructed that under 18 U.S.C. § 1512(b), it is a crime to use intimidation or corrupt persuasion to influence a witness's testimony. The court emphasized that the defendant could only be found guilty if the government proved beyond a reasonable doubt that the defendant attempted intimidation against witnesses Moore and Alston. Although the court did not explain "corrupt persuasion," evidence from Matthews's letters indicated he was trying to intimidate them regarding their testimony. The letters discussed the murder of someone named Sleep, with references to Sleep's cooperation with the government, and implied Matthews was aware of Alston's and Moore's cooperation against him. The jury could reasonably infer intimidation from Matthews's communications, rendering his sufficiency of evidence challenge meritless.
Matthews also contested a two-level upward adjustment to his offense level for obstruction of justice, but since the government only needs to establish facts for sentencing enhancements by a preponderance of the evidence, and the district court's findings are reviewed for clear error, this challenge was similarly without merit. Furthermore, Matthews disputed the admission of Rule 404(b) evidence concerning his 1991 arrest, which is generally inadmissible to show character; however, it may be relevant for other purposes. The admissibility of such evidence requires it to be relevant to a non-character issue, sufficiently proven, and not overly prejudicial. The district court's decision to admit or exclude such evidence is reviewed for abuse of discretion.
Appellant's challenge does not address the sufficiency of evidence regarding the extrinsic act, thus the second prong of the test is unnecessary to evaluate. In United States v. Roberts, it was established that a not guilty plea makes the defendant’s intent a material issue in conspiracy cases, allowing for the admissibility of extrinsic evidence relevant to the defendant's state of mind unless intent is affirmatively removed from consideration. Matthews’s not guilty plea maintains intent as a material issue. The relevance of Matthews's 1991 arrest for distribution of cocaine to the current conspiracy charge is examined. The court referenced United States v. Butler, which found prior convictions for drug possession relevant to intent in a conspiracy charge. Prior drug dealings are significantly indicative of intent to distribute, supporting the admissibility of Matthews's 1991 arrest as relevant.
The third prong of the Beechum/Miller test states that prior acts are admissible if their probative value is not substantially outweighed by prejudicial effect. Matthews argues that the prior drug offense is dissimilar to the current conspiracy charge, but circuit precedent considers most prior drug offenses relevant to intent in drug conspiracies, and the district court did not err in dismissing the claim of disproportionate prejudice. Matthews also contends that the 1991 arrest is too temporally remote to be relevant; however, the court has not set a strict rule regarding temporal proximity, as decisions are fact-specific. The district court found the eight-year gap between the 1991 incident and the alleged conspiracy was sufficiently probative, thus upholding its admissibility.
Appellant failed to demonstrate that the trial court abused its discretion in admitting evidence of a prior offense, which the court found relevant and not overly prejudicial. The court rejected the argument that the defendant, Matthews, was too young during the incident in 1991 to have the prior act considered probative of intent. It emphasized that a twenty-year-old can be held accountable for their actions. Despite the Government's strong case on intent, the court maintained that stronger evidence does not warrant the exclusion of relevant extrinsic evidence. The jury had the discretion to assess witness credibility, and it may have concluded that Matthews committed drug offenses without proving he intended to join a conspiracy. The court highlighted the inherent difficulty in proving intent in conspiracies and noted that mere association with co-conspirators does not establish intent to conspire. The district court's decision to admit the 1991 incident was within its discretion, and although the appellate panel might have ruled differently, it found no clear error or wrong application of legal standards. As a result, Matthews's convictions were affirmed. Circuit Judge Tjoflat concurred with the panel's judgment, citing adherence to circuit precedent.
A court's prior panel decision can only be overruled by the court sitting en banc or the United States Supreme Court. The author critiques the circuit's evolving doctrine regarding the admission of Rule 404(b) evidence in conspiracy cases, arguing it undermines Rule 404(b) by allowing evidence that demonstrates propensity rather than intent. Specifically, the admission of Matthews's 1991 arrest is highlighted as being solely for showing propensity to engage in criminal activity, which Rule 404(b) prohibits. The current doctrine permits this evidence as relevant to intent, incorrectly presuming that intent in small-scale drug transactions is indicative of conspiracy intent. The author contends that if they were to write anew, they would deem Matthews's prior arrest irrelevant to the intent required for admission under Rule 404(b). The discussion references the case of United States v. Beechum, emphasizing the need to distinguish between propensity and intent, as conflating the two could lead to the erosion of the rules against admitting prior bad acts. The author cautions that courts must be vigilant to prevent propensity evidence from being disguised as intent evidence, arguing that if evidence merely indicates criminal intent or prior intention to violate drug laws, it should be excluded as inadmissible propensity evidence.
An inference that is drawn from evidence, which does not pertain to a defendant's character, may be admissible for non-propensity purposes. This is established through a two-step test under Rule 404(b): first, the extrinsic offense evidence must be relevant to an issue aside from the defendant's character; second, its probative value should not be significantly outweighed by the risk of undue prejudice, as outlined in Rule 403. Specifically, if the extrinsic offense requires the same intent as the charged offense and the jury could find that the defendant committed it, the first condition is met. If the defendant's intent is not contested, the extrinsic evidence's probative value is minimal compared to its prejudicial impact, leading to uniform exclusion in such cases. The question of whether a mere not guilty plea allows the introduction of extrinsic evidence in the government’s case in chief remains unresolved in this circuit. In United States v. Roberts, the Fifth Circuit affirmed that in conspiracy cases, a not guilty plea renders intent a material issue, allowing for the admissibility of evidence related to the defendant’s state of mind unless the defendant explicitly removes intent from consideration. The Roberts presumption poses a dilemma for defendants, who must either accept intent to conspire, risking conviction, or challenge intent, which permits the prosecution to introduce extrinsic evidence. Additionally, some critics argue against the creation of "material issues" stemming from the inherent difficulty in proving conspiracy intent, noting that certain actions of conspirators may be lawful in isolation.
Proving intent in conspiracy cases is challenging, leading to the admission of evidence from unrelated but similar crimes when the government's case is weak. This necessity arises from the difficulty in establishing intent, which is essential when a defendant pleads not guilty. Courts have increasingly allowed the use of prior drug-related offenses to demonstrate intent in narcotics distribution cases, indicating a trend towards broader acceptance of propensity evidence. The Roberts case established that if extrinsic offenses require the same intent as the charged offense, their probative value is not significantly outweighed by prejudicial impact. The analysis under Rule 404(b) mandates that prior acts must show a similar state of mind to the charged offense to be relevant. Furthermore, Roberts emphasizes that intent remains a critical issue in conspiracy cases unless the defendant actively contests it. The unique nature of conspiracy charges differentiates them from other criminal prosecutions, warranting a more lenient standard for admitting extrinsic evidence related to intent.
The Roberts court established that for a defendant to be convicted of conspiracy, the prosecution must demonstrate that the defendant knowingly joined a plan to commit a crime. Merely participating in a criminal act or associating with co-conspirators does not suffice to infer voluntary involvement in a conspiracy. Although clear evidence of a substantive offense may suggest intent to commit that offense, it does not inherently indicate agreement or planning with others to conspire. The court highlighted that the mental state necessary for substantive drug offenses diverges from that required for conspiratorial intent.
To address the challenge of proving conspiratorial intent, the Roberts framework allows for the presumption of intent to conspire, enabling the admission of relevant prior acts unless the defendant actively contests this issue. However, if the intent to conspire cannot be inferred from an underlying substantive offense, then prior unrelated offenses may not effectively demonstrate current conspiratorial intent. While prior substantive offenses can be admissible, their relevance must be assessed based on what fact they aim to prove. Evidence of prior offenses may illustrate intent to engage with the conspiracy's criminal objective, particularly when the defendant raises a "mere presence" defense, which puts their intent directly in question.
In United States v. Dorsey, the defendant asserted that he was merely an unwitting observer with no intent to engage in criminal activity. The court outlined the elements of conspiracy as: 1) an agreement between two or more persons, 2) knowledge of the agreement's general purpose, and 3) knowing and voluntary participation. It indicated that the prosecution anticipated a lack of intent defense based on entrapment but clarified that the relevant intent is to commit a substantive offense rather than to conspire. The admissibility of extrinsic evidence to prove intent is analyzed through the Beechum framework, which is not influenced by the Roberts presumption that applies to conspiratorial intent. The prosecution must demonstrate that extrinsic acts are relevant to the conspiracy's intent to invoke the Roberts presumption. The Roberts case established that prior acts indicating intent to conspire can be admitted even without a direct challenge to that intent. Examples of such prior acts include past conspiracies related to drug distribution and participation in similar illegal operations. Ultimately, in conspiracy cases, extrinsic evidence can serve two purposes: to show intent to commit an underlying offense or to demonstrate intent to conspire, the latter being supported by the Roberts presumption unless the defendant negates it.
Extrinsic acts introduced in conspiracy cases must be more relevant to the intent to conspire than the substantive acts of the charged conspiracy; the irrelevance of these substantive acts led to the Roberts presumption. Current precedents have diverged from the Roberts analysis and contradicted the purposes of Rule 404(b), allowing admission of prior substantive offenses to establish intent when a defendant pleads not guilty. Cases such as Costa and Maxwell show that pleading not guilty places intent at issue, justifying the admission of prior offenses. However, the district court erred by admitting evidence without demonstrating its relevance and necessity, as prior drug offenses, even if indicative of intent, should not automatically prove participation in a conspiracy. The Roberts doctrine has evolved into a presumption that virtually all prior drug offenses are relevant and admissible in drug conspiracy cases, unless the defendant removes intent from issue, subject to Rule 403 balancing. This broad approach is problematic as it risks admitting propensity evidence and fails to consider the specific circumstances of each case. Evidence of activities not directly related to the charged conspiracy, such as alcohol production in a marijuana-related case, is inadmissible under Rule 404(b) due to lack of probative value regarding intent to engage in the conspiracy. Relevance should be determined on a case-specific basis, rather than applying a universal rule.
The excerpt argues that the prior conviction of the defendant cannot be used to imply intent to conspire, as it did not involve conspiracy and is only relevant for demonstrating propensity. This use of prior convictions contradicts legal principles that protect against prejudicial inferences based on past behavior, particularly in conspiracy cases. The passage cites the ruling in *People v. Zackowitz* to emphasize that allowing propensity evidence undermines the integrity of criminal evidence rules. The critique highlights that courts often bypass the restrictions of Rule 404(b) by assuming intent is always relevant in conspiracy cases, effectively treating propensity as valid evidence.
In the specific case discussed, the government seeks to admit evidence of the defendant Matthews's prior arrest for drug trafficking to establish intent in a current conspiracy charge. However, the author contends that this is not permissible under established legal precedents and that Matthews's not-guilty plea does not put his intent at issue because he denies the truthfulness of the co-conspirators' claims. The relevant legal question is whether Matthews voluntarily joined a conspiracy, and the prior arrest does not clarify this issue, serving only to suggest a pattern of illegal behavior without directly linking it to the current charges. Thus, the implication is that the evidence of past wrongdoing serves merely to paint Matthews as consistently "bad," rather than proving relevant intent regarding the conspiracy charge.
Evidence of prior acts should not automatically imply intent, as stated by the Government in its argument regarding the defendant's past distribution of cocaine. The defendant, Matthews, was charged with conspiracy to distribute cocaine but pled not guilty, which means his intent was not an issue in the case. In this circuit, any prior drug-related act can be admissible to establish intent in conspiracy cases where the defendant contests that intent, regardless of the specifics of the charge. Matthews had a prior drug arrest, making that evidence admissible under Rule 403. The author expresses concern over the evolution of the Roberts doctrine, suggesting that it has strayed from its original principles and calls for reconsideration of its application in legal proceedings. The author acknowledges the constraints of the prior panel rule, which requires adherence to earlier circuit precedent unless explicitly overruled, but argues that the current interpretation of the doctrine is flawed and should be reevaluated.
