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United States v. Monds

United States Court of Appeals, Eighth Circuit

December 20, 2019

United States of America, Plaintiff- Appellee,
v.
Samory Azikiwe Monds, Defendant-Appellant.

          Submitted: September 27, 2019

          Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before LOKEN, COLLOTON, and KOBES, Circuit Judges.

          COLLOTON, CIRCUIT JUDGE.

         A jury 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[1] 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.

         I.

         In 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.

         A grand 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.

         After a 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 supervised release.

         At 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.

         II.

         A.

         Monds 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).

         Monds 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, ...


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