United States v. Harding

104 F.4th 1291

UNITED STATES of America, Plaintiff-Appellee, v. James HARDING, a.k.a. Old School, a.k.a. Shakey, Defendant-Appellant.

No. 23-10479

United States Court of Appeals, Eleventh Circuit

Filed: June 20, 2024

Appeal from the United States District Court for the Southern District of Alabama, D.C. Docket No. 1:21-cr-00165-TFM-MU-1

Christopher John Bodnar, Scott Alan Gray, U.S. Attorney Service - Southern District of Alabama, DOJ-USAO, Southern District of Alabama, Mobile, AL, for Plaintiff-Appellee.

John C. Robbins, Robbins Law Firm, Birmingham, AL, for Defendant-Appellant.

Before William Pryor, Chief Judge, and Jordan and Brasher, Circuit Judges.

William Pryor, Chief Judge:

This appeal requires us to decide whether the district court abused its discretion by admitting evidence of drug trafficking as intrinsic evidence of a charged conspiracy that allegedly ended years earlier in a different federal district. A grand jury in the Southern District of Alabama charged James Harding with conspiracy to possess with intent to distribute heroin and possession with intent to distribute heroin. At trial, the United States introduced evidence that agents, in a separate investigation, found multiple firearms and almost two kilograms of heroin at Harding's home in the Northern District of Alabama over two years after the alleged end of the charged conspiracy. The United States offered no evidence linking the seized evidence to other members of the charged conspiracy. The district court admitted the evidence as intrinsic evidence and ruled, in the alternative, that the evidence was admissible as extrinsic evidence under Federal Rule of Evidence 404(b). But the district court rejected Harding's several requests for a limiting instruction. The jury found Harding guilty of both charges. Because the district court abused its discretion by admitting the evidence as intrinsic and because its alternative ruling that the evidence was admissible under Rule 404(b) cannot be affirmed in the absence of a limiting instruction, we vacate Harding's convictions and sentence and remand for a new trial.

I. BACKGROUND

A federal grand jury returned an indictment that charged James Harding and four codefendants with drug offenses. The indictment alleged that Harding participated in a conspiracy to distribute heroin in the Southern District of Alabama that began in early 2018 and ended on or about April 23, 2019. The indictment charged Harding with two counts: conspiracy to possess with intent to distribute heroin, see 21 U.S.C. § 846, and possession with intent to distribute heroin, see id. § 841(a)(1).

Before trial, Harding moved to exclude all evidence obtained from a search of his home. While executing a search warrant at Harding's home on September 15, 2021, officers recovered multiple firearms and almost two kilograms of heroin. Prosecutors sought to introduce this evidence under Federal Rule of Evidence 404(b) to establish Harding's intent to participate in the conspiracy. Harding argued that the evidence failed to satisfy Rule 404(b) because it was offered to establish his bad character for drug trafficking.

At a pretrial hearing, the United States argued that the evidence was extrinsic evidence admissible under Rule 404(b), but the district court asked whether the evidence could also be intrinsic evidence of the charged conspiracy. The United States responded that the evidence could be "admissible as intrinsic evidence" because the indictment identified Harding "as a source of supply for heroin in the charged conspiracy." The district court ruled that the evidence was intrinsic to the conspiracy. Alternatively, the district court ruled that the evidence was admissible under Rule 404(b).

At trial, the United States called Matthew McCrary, a special agent with the Federal Bureau of Investigation, to explain how agents first learned about Harding, at least under his street name, "Ol' School." McCrary explained that he had received a tip that a person named Kendrick Patrick was trafficking a large quantity of narcotics. After confirming the tip and investigating, McCrary determined that the supplier was Jeremy Snowden. McCrary explained that wiretaps revealed that Snowden and another person, Quantis Clark, were purchasing heroin from someone in Birmingham called Ol' School. But the wiretaps never revealed Ol' School's real name. McCrary also testified that he arrested Harding at 2700 Ensley Five Points West Avenue in Birmingham.

Snowden testified as the United States's key witness against Harding. Snowden explained that he asked Clark to help him find a heroin supplier. Clark referred Snowden to someone named Ol' School, who also went by "Shaky." Snowden identified Harding as Ol' School and explained that he met with Harding and Clark in Birmingham to discuss entering the heroin business together. During that meeting, Harding provided Snowden with two ounces of heroin and directed him to obtain future shipments through Clark. Snowden explained that after the initial meeting, he received regular heroin shipments from Harding and that Harding also supplied heroin on consignment. Snowden testified that Harding taught Clark, who then taught Snowden, how to cut the heroin to make more of it. When shown a picture of a house located at 2700 Ensley Five Points West Avenue in Birmingham, Snowden identified the house as Harding's residence. Snowden explained that he knew where Harding lived because Clark had pointed out Harding's home while driving by it one day. Snowden admitted that he was arrested in 2019 and was in custody for drug crimes, that he had entered into a plea agreement with the United States, and that he hoped to receive a lesser sentence for his cooperation.

Keith Kidd also testified for the United States. He explained that for several years he had purchased cocaine from Snowden. During one transaction, Snowden told Kidd that the heroin was coming from "[s]omebody from Birmingham named Ol' School." But according to Kidd, Snowden never identified Ol' School. Kidd testified that, like Snowden, he was in custody at the time of his testimony and had entered into an agreement with the United States in exchange for his cooperation.

The United States also called agents to testify about the September 2021 search of Harding's home as part of a separate federal investigation in the Northern District of Alabama. Agents testified that on September 15, 2021, they arrived at Harding's home in Birmingham to execute a drug search warrant. They explained that during the search, they recovered multiple firearms and large quantities of drugs, including two bricks of compressed powder. A forensic drug analyst testified that the two bricks amounted to nearly two kilograms of heroin.

Harding objected to this evidence. But the district court ruled again that the evidence was admissible "evidence of [the] conspiracy itself" and, in the alternative, that the evidence would have "come in as 404(b) evidence." Before and during each day of trial, Harding requested that the district court give the jury a limiting instruction under Rule 404(b) about the evidence from the September 2021 search of his home, but the district court declined to do so because it ruled the evidence to be "part and parcel" of the charged conspiracy.

The jury found Harding guilty of both charges. The district court sentenced Harding to 960 months of imprisonment, by imposing consecutive sentences of the statutory maximum punishment. Harding appealed.

II. STANDARD OF REVIEW

We review for abuse of discretion the admission of evidence. United States v. Troya, 733 F.3d 1125, 1131 (11th Cir. 2013). A district court abuses its discretion when its ruling "rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact." United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006) (citation and internal quotation marks omitted). The district court enjoys broad discretion to admit relevant evidence. United States v. Watkins, 42 F.4th 1278, 1287 (11th Cir. 2022). We also review for abuse of discretion a refusal to give a proposed jury instruction. United States v. Gonzalez, 975 F.2d 1514, 1516 (11th Cir. 1992). A district court abuses its discretion by denying a requested jury instruction when the instruction is substantively correct, it was not substantially covered in the charge given to the jury, and the failure to give it seriously impaired the defendant's ability to present an effective defense. Id.

III. DISCUSSION

We divide our discussion into two parts. First, we explain that the district court abused its discretion by admitting the September 2021 search evidence as intrinsic evidence of the charged conspiracy and that the error was not harmless. Second, we explain that although the search evidence was admissible under Rule 404(b), the district court abused its discretion by failing to provide a limiting instruction and that the error was not harmless.

A. The District Court Abused Its Discretion by Admitting the Evidence from the Search as Intrinsic Evidence of the Charged Conspiracy, and the Error Was Not Harmless.

Harding argues that the district court abused its discretion by admitting the evidence seized in the September 2021 search as intrinsic evidence of the charged conspiracy. He contends that the evidence is too temporally remote and is otherwise unrelated to the charged conspiracy. The September 2021 search occurred almost 29 months after the alleged end of the charged conspiracy, and no trial evidence connects the evidence seized during that search to the charged conspiracy.

Evidence of criminal activity other than the charged offense may be admissible if it is "intrinsic evidence" of the charged offense. United States v. Joseph, 978 F.3d 1251, 1263 (11th Cir. 2020) (citation and internal quotation marks omitted). Evidence is intrinsic if it arises out of the same transaction or series of transactions as the charged...