ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal Action No. 91-00020-1E).
Before: Stapleton, Scirica and Nygaard, Circuit Judges.
Harvey K. Sampson appeals his conviction for marijuana possession. The question on appeal is whether the district court properly admitted two prior drug convictions into evidence under Federal Rules of Evidence 404(b) and 403. We conclude that it did not, and so will reverse and remand for a new trial.
Before this conviction, Sampson was convicted in Pennsylvania of conspiracy and possession with intent to distribute cocaine and a related firearm offense. His wife was convicted as a coconspirator. Sampson was also convicted in Michigan of possession with intent to distribute marijuana.
While he was serving a twelve year sentence at a federal prison for the Pennsylvania conviction, Sampson and his wife were indicted for marijuana possession under 21 U.S.C. § 844(a), and possession with intent to distribute under 21 U.S.C. § 841(a)(1). She pleaded guilty, but he pleaded not guilty.
Before trial, the government requested the district court to rule on the admissibility of Sampson's two drug convictions. It argued that the Michigan drug conviction was admissible because that offense was "of the similar nature to the controlled substances as charged in the instant case (i.e. marijuana)"; that the Pennsylvania drug conviction was admissible because it shows that the same parties, husband and wife, were once again involved in a drug matter; and that the Pennsylvania conviction demonstrates a concert of action between Sampson and his wife and tends to establish that this was part of a plan or scheme, refuting an accident or mistake defense. At the pre-trial hearing, the government reiterated that the convictions were "relevant and admissible in this case because they show not only one of those exceptions, but I am advocating more than one, intent, motive, scheme, a plan, a design, and certainly shows familiarity of the parties, obviously, and background of the charges."
The district court found the evidence admissible, concluding, "I am inclined to think that this is the kind of incident which does fall within the purview of the exceptions listed in 404(b). So I am going to permit it with respect to the two drug convictions, but not with respect to the rifle or gun or whatever it was."
Trial evidence established that on February 1, 1991, Sampson telephoned his wife from prison. This call was monitored and in it she said, "Got that for you today." Sampson replied, "All right." A few minutes later:
Harvey: "So what color you gonna use?"
Harvey: "Okay, that'll ...