Submitted: September 27, 2019
from United States District Court for the Southern District
of Iowa - Des Moines
LOKEN, COLLOTON, and KOBES, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
convicted Samory Monds of possession with intent to
distribute cocaine and cocaine base. See 21 U.S.C.
§ 841(a)(1), (b)(1)(C). The district court sentenced him to
262 months' imprisonment. On appeal, Monds challenges the
admission of evidence that he had sustained three prior
felony drug convictions, and the presentation of testimony
adverting to the fact that Monds was under court supervision
at the time of his arrest. Monds also disputes the district
court's calculation of the advisory guideline range at
sentencing. We conclude that there was no reversible error,
and therefore affirm the judgment.
August 2017, Monds was serving terms of federal supervised
release and state probation. He had violated conditions of
supervised release, and police officers arrived at his home
on August 30 to arrest him for the violation. As officers
arrested Monds at his front door, a man named Tommy Johnson
approached the house, but turned to flee when he saw the
police. Officers caught Johnson and found that he possessed
several baggies of heroin and a pipe for smoking crack
cocaine. Police then obtained a search warrant for
Monds's residence, and they seized cocaine and
paraphernalia used in distributing drugs.
jury charged Monds with possession with intent to distribute
cocaine and cocaine base. Before trial, the government filed
a notice under Federal Rule of Evidence 404(b) to present
evidence of three prior convictions: (1) an August 2017
conviction for possession of marijuana with intent to
deliver; (2) a May 2014 conviction for conspiracy to
distribute cocaine base; and (3) an April 2011 conviction for
possession of a controlled substance with intent to deliver.
The motion asserted that the convictions were relevant to
prove Monds's "motive, opportunity, intent,
preparation, plan, knowledge, and absence of mistake."
Monds moved to exclude the prior convictions. He also sought
to keep out evidence that he was on supervised release and
probation at the time of his arrest.
hearing, the district court ruled that the prior convictions
would be received in evidence. In light of our decision in
United States v. Wright, 866 F.3d 899 (8th Cir.
2017), which reiterated that "a prior conviction for
distributing drugs . . . [is] relevant under Rule 404(b) to
show knowledge and intent to commit a current charge of
conspiracy to distribute drugs," id. at 905
(internal quotation marks omitted), the court determined that
"under the circumstances of this case," it was
"compelled to rule that they are admissible." The
court also ruled that witnesses would be permitted to make
limited reference to the fact that officers appeared at
Monds's residence to arrest him for violating terms of
trial, the court admitted evidence of the three convictions,
and instructed the jury that it could consider the evidence
only to help decide "motive, intent, knowledge, or
absence of mistake or accident." The jury was admonished
that it could not convict Monds simply because he may have
committed similar acts in the past. When witnesses testified
that Monds was under court supervision at the time of the
investigation, the court gave a cautionary instruction about
the limited purpose of the evidence.
argues first that the district court abused its discretion by
admitting the prior convictions. Rule 404(b) is a "rule
of inclusion," United States v. Riepe, 858 F.3d
552, 560 (8th Cir. 2017), that permits evidence of prior
crimes to show a defendant's "motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident." Fed.R.Evid. 404(b)(2).
The evidence must be (1) relevant to a material issue raised
at trial, (2) similar in kind and not overly remote in time
to the crime charged, (3) supported by sufficient evidence to
support a jury finding that the defendant committed the other
act, and (4) of probative value not substantially outweighed
by its prejudicial effect. See United States v.
LeBeau, 867 F.3d 960, 978-79 (8th Cir. 2017); United
States v. Gant, 721 F.3d 505, 509 (8th Cir. 2013).
Evidence is not admissible under Rule 404(b) if it is
introduced solely to show a defendant's propensity to
engage in criminal misconduct. United States v.
Walker, 428 F.3d 1165, 1169 (8th Cir. 2005).
contends that there was no meaningful similarity between his
prior convictions and the charge in this case. Citing
dicta from United States v. Turner, 781
F.3d 374 (8th Cir. 2015), Monds complains that the government
failed to provide a specific non-propensity purpose for
offering evidence of the prior convictions. We explained in
United States v. Harry, 930 F.3d 1000 (8th Cir.
2019), however, that "Turner is inapposite
where a defendant places his knowledge and intent at issue
during trial." Id. at 1006. Monds placed both
elements at issue, by means of a general denial, id.
(quoting United States v. Thomas, 58 F.3d 1318, ...