On Appeal from the United States District Court for the District of New Jersey District Judge: Honorable John W. Bissell, Chief Judge (D.C. Crim. No. 01-00292-2)
Before: Scirica, Greenberg, and Gibson *fn1,
The opinion of the court was delivered by: Greenberg, Circuit Judge
This matter comes on before this court on Luis Wilfredo Cruz's ("Cruz") appeal from a judgment of conviction and sentence entered in this criminal case on June 4, 2002. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.
The circumstances leading to this appeal are as follows. On April 30, 2001, a grand jury charged Cruz and two co-defendants, Eladio Cruz ("Eladio"), Cruz's father, and Efrain Montalvo ("Montalvo"), in a one-count indictment with conspiracy to distribute and possession with intent to distribute more than 50 grams of cocaine base (crack cocaine) in violation of 21 U.S.C. § 846. The indictment arose from an investigation conducted by the Drug Enforcement Administration ("DEA") involving an undercover DEA agent and a confidential source into a narcotics organization Cruz led in Newark, New Jersey. The confidential source assisted the undercover agent in arranging crack cocaine transactions with Cruz's organization which included an April 4, 2001 transaction in which the undercover agent met with Eladio and Montalvo and purchased approximately 100 grams of cocaine base and an April 11, 2001 transaction in which the confidential source met with Cruz to negotiate the purchase of approximately 150 grams of cocaine base, which was delivered later that day to the undercover agent by Montalvo as arranged for by Cruz. Shortly before Montalvo delivered the drugs, the confidential source dropped off Cruz for a meeting with his parole officer. Soon after delivering the drugs, Montalvo met with Cruz and delivered the proceeds of the drug deal to him. On April 26, 2001, the DEA arrested Cruz and the two co-defendants. The two co-defendants pleaded guilty in September 2001 but Cruz went to trial and was found guilty.
In a pretrial in limine ruling, the district court, after having received written submissions from both parties, determined that the government could offer evidence that Cruz was on parole at the time of the conspiracy alleged, stating:
[T]he Government may introduce evidence in a general way to establish that, at the time of the instant offense, [Cruz] was on parole. The Court agrees that this evidence would go to [Cruz's] motive or reasons to deal with and through the co-defendants (or others if so established) rather than risk being busted as a parole violator due to more overt conduct. This evidence is admissible under [Fed. R. Evid.] 404(b), and survives [Fed. R. Evid.] 403 scrutiny. App. at 14.
During the trial the jury heard testimony regarding Cruz's parole status from the undercover agent in that he said that on April 11, 2001, the confidential source had informed him that he "had gone to drop [Cruz] off at probation" prior to meeting the undercover agent in North Newark. App. at 67. The confidential source also testified to the same effect. In addition, parole officer Aretha Hughes, who had supervised Cruz on parole from June 2000 through April 2001, testified. Before Hughes testified, defense counsel requested that the district court revisit its pretrial ruling on the admissibility of evidence of Cruz's parole status. At that time the government stated that it would offer Hughes's testimony that Cruz was on parole at the time of the April 2001 drug transactions because his parole status gave him an incentive to insulate himself from law enforcement scrutiny by using others, such as the co-defendants Montalvo and Eladio, to engage in hand-to-hand street transactions so that he could reduce the risk of being charged with parole violation. The court accepted the government's argument as it ruled that Hughes's testimony *fn2 regarding Cruz's parole status had probative value that was not outweighed by the danger of unfair prejudice. Furthermore, the court found that her testimony would not be "unduly cumulative" of prior testimony. Therefore, the court allowed the government to offer Hughes's evidence and use it in its closing argument in support of its theory that Cruz "had a motive to insulate himself from direct contact with such things as customers." App. at 862.
The only issue raised on this appeal is whether the district court erred when, after applying Fed. R. Evid. 403 and 404(b), it admitted into evidence testimony establishing that Cruz was on parole at the time of the charged conspiracy. We make a de novo determination of whether evidence falls within the scope of Rule 404(b). See United States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003). But if the evidence could be admissible in some circumstances, we review the district court's determination allowing it to be admitted for abuse of discretion. See United States v. Console, 13 F.3d 641, 658-59 (3d Cir. 1993). In making these determinations we agree with the district court that evidence of Cruz's parole status should be considered evidence of other crimes for purposes of Rule 404(b). See United States v. Manarite, 44 F.3d 1407, 1418 (9th Cir. 1995).
Fed. R. Evid. 404(b) provides in relevant part that: "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. . . ." We have recognized that Rule 404(b) is a rule of inclusion rather than exclusion. See United States v. Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994). We favor the admission of evidence of other crimes, wrongs, or acts if such evidence is "relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime." United States v. Long, 574 F.2d 761, 765 (3d Cir. 1978) (quoting United States v. Stirone, 262 F.2d 571, 576 (3d Cir. 1958), rev'd on other grounds, 361 U.S. 212, 270, 80 S.Ct. 270 (1960)).
In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496 (1988), the Supreme Court set out a four-part test for admission of Rule 404(b) evidence: (1) the evidence must have a proper purpose; (2) it must be relevant; (3) its probative value must outweigh its potential for unfair prejudice; and (4) the court must charge the jury to consider the evidence only for the limited purposes for which it is admitted. Id. at 691-92, 108 S.Ct. at 1502. See United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002).
To meet the first requirement and show a proper evidentiary purpose, the government must "clearly articulate how that evidence fits into a chain of logical inferences without adverting to a mere propensity to commit crime now based on the commission of crime then." United States v. Mastrangelo, 172 F.3d 288, 295 (3d Cir. 1999) (internal quotation marks omitted). Here the government articulated the logical inferences that render Cruz's parole status relevant to establishing Cruz's motive, intent and method of concealing his illegal drug activity in order to avoid the risk of parole revocation. A defendant's parole status has been held to be probative of why a defendant would take extra steps to hide his criminal activity. See Manarite, 44 F.3d at 1418-19. Cruz's parole status provided an explanation for why he used the co-defendants to perform the hand-to-hand street ...