ELECTRONIC CITATION: 1995 FED App. 0096P (6th Cir.)
File Name: 95a0096p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________ UNITED STATES OF AMERICA,
JAMES N. BARNES (93-6120) and
DOYLE R. PATE, JR. (93-6149),
ON APPEAL from the United States District Court for the Western District of Kentucky
Decided and Filed March 17, 1995
__________________ Before: MILBURN, DAUGHTREY, and WEIS,[*] Circuit Judges.
WEIS, Circuit Judge. In this appeal, defendants contend that the prosecution failed to give advance notice of its intention to produce evidence of other crimes or wrongs as
required by Fed. R. Evid. 404(b). We conclude that the government has a continuing obligation to give such notice, but in this instance, the challenged evidence was "intrinsic" to the crime charged and thus was not within the scope of the Rule. Accordingly, we will affirm the defendants' convictions for drug trafficking.
In March 1992, defendants James Barnes and Doyle Pate drove a pickup truck to the United Parcel Service facility in Owensboro, Kentucky to claim a package. Upon their arrival, Pate got out of the truck and was seen placing a pistol on the seat. Pate then walked into the building and was arrested as he left with a parcel containing methamphetamines. Barnes, also armed with a pistol, had waited in the truck, and he, too, was taken into custody at that time.
Pate filed a pretrial motion for discovery requesting a list of witnesses the government might call and their anticipated testimony. In a pretrial memorandum, the government stated that it was "unaware of any specific trial problems which should be anticipated by the Court."
One evening while the trial was in progress, the government learned that Pate had made incriminating statements in a discussion with his former cell mate, witness Samuel Watson. In that conversation, Pate commented that on the day of his arrest, he was expecting the UPS package to make up for a shortage in an earlier drug shipment.
At a chambers conference the following morning, before the trial resumed for the day, the prosecutor discussed with defense counsel and the trial judge evidence that might be used to impeach Watson. The Assistant U.S. Attorney, however, did not disclose the content of Pate's statements to Watson about the earlier underweight drug shipment.
Later that morning, while Watson was on the witness stand, the prosecutor asked about the conversation with Pate. Watson responded, "We was talking about drugs coming through the UPS and that it was hard to trust
people that was far away sending you drugs, and he stated that the last package he'd received was short. It was supposed . . ." At that point, the trial judge called counsel to the bench. Defense counsel then objected to the testimony as involving "other crimes or wrongs" evidence about which it had received no prior notice from the government.
The trial judge reprimanded the Assistant U.S. Attorney for attempting to introduce evidence under Fed. R. Evid. 404(b) without giving advance notice to the court in accordance with local practice. The judge questioned, however, whether defense counsel had properly requested notice as required by the Rule. After making various findings, the trial judge ruled that the evidence was "intrinsically related" to the acts charged in the indictment and also that the evidence was admissible under Rule 404(b), although he was troubled by the government's failure to give notice of its intention to introduce Pate's admission to Watson.
Barnes was convicted of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and of carrying a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Pate, too, was convicted on the drug charge but was acquitted on the count alleging possession of a firearm during the commission of a drug trafficking offense. However, Pate was convicted on an additional count asserting that he violated 18 U.S.C. § 922(g)(1) (possession of a firearm by a convicted felon).
Barnes was sentenced to consecutive sentences aggregating 181 months. Because of his prior conviction for a felony narcotics offense, Pate received the mandatory minimum sentence of 240 months on the drug possession charge. Additionally, Pate received a concurrent sentence of 120 months on the count charging firearm possession by a convicted felon.
Both defendants have appealed the trial court's ruling on Watson's testimony. Pate has also appealed his sentence,