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Prior Poss. Convictions Inadmissible to Prove Intent to Distribute

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By Gabriella Khorasanee, JD on August 16, 2013 3:08 PM

Last week the Third Circuit drew a line in the sand, further deepening a circuit split, on the question of whether prior drug possession convictions were admissible under Federal Rule of Evidence 404(b) to prove knowledge or intent to distribute. The Third Circuit held that the prior convictions were not admissible, vacated the defendant's conviction, and remanded to the trial court.

Terrell Davis was arrested and convicted for possession of cocaine with intent to distribute. The government successfully sought to admit evidence of two of Davis' prior convictions for possession of cocaine, and Davis appealed.

FRE 404(b): Evidence of Prior Convictions

FRE 404(b) allows the admission of prior convictions in very limited circumstances, and may be admitted to show knowledge or intent. The evidence must be relevant to those issues, and must not be intended to influence a jury improperly.

Limiting the Use of Federal Rule of Evidence 404(b)

Here, the Third Circuit distinguished between the different forms in which cocaine could be found, and noted that "the government never proved that the cocaine from his past was similar in appearance, quality or form" to the cocaine that was bundled for distribution and found in the Jeep. The court held that the distinction mattered, especially because the jury was not informed about the form of the cocaine that Davis possessed in his prior convictions.

Setting a limit to the broad use of FRE 404(b), the court noted "We acknowledge that some of our cases admitting prior criminal acts under Federal Rule of Evidence 404(b) have been expansive. But our expansiveness is finite, and this case crosses the line."

Circuit Split

This case is significant because we now have seven circuits weighing in on this issue -- with four circuits coming out on one side. The Sixth, Seventh, Ninth and now Third Circuits hold that "a possession conviction is inadmissible to prove intent to distribute," while the Fifth, Eighth and 11th Circuits would allow evidence of the prior possession conviction. We think this issue may be ripe for Supreme Court review. What do you think?

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