## Facts

- Erick D. Smith was charged in the Northern District of Florida with conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
- Smith pleaded not guilty and proceeded to a jury trial.
- The government sought to introduce evidence of Smith’s two prior state convictions for cocaine possession.
- The government offered the prior convictions as Federal Rule of Evidence 404(b) evidence to show Smith’s knowledge and intent, not to show that he acted in conformity with a bad character.
- Smith objected, arguing the convictions were improper propensity evidence and that any probative value was substantially outweighed by unfair prejudice under Rule 403.
- The district court admitted the prior convictions and instructed the jury on the limited, non-propensity uses of the evidence.
- The jury found Smith guilty of the cocaine-conspiracy charge.
- At sentencing, the district court considered conduct related to charges on which Smith had been acquitted, finding the conduct proved by a preponderance of the evidence and using it in calculating the advisory Guidelines range.
- Smith appealed, challenging (1) admission of the prior convictions under Rule 404(b) and (2) the use of acquitted conduct at sentencing as a Sixth Amendment violation.

## Issues

1. Did the district court abuse its discretion under Rule 404(b) and Rule 403 by admitting Smith’s prior cocaine-possession convictions to prove knowledge and intent in a cocaine-conspiracy trial?
2. Did the district court violate the Sixth Amendment by considering acquitted conduct at sentencing when calculating Smith’s advisory Guidelines range, based on a preponderance-of-the-evidence finding and a sentence within the statutory maximum?

## Decision

- The Eleventh Circuit affirmed Smith’s conviction and sentence.
- The court held the district court did not abuse its discretion by admitting the two prior cocaine-possession convictions under Rule 404(b) because they were relevant to intent and knowledge, were supported by sufficient proof, and were not substantially more prejudicial than probative under Rule 403.
- The court held the district court did not violate the Sixth Amendment by considering acquitted conduct at sentencing, so long as the court found the conduct by a preponderance of the evidence and the resulting sentence did not exceed the statutory maximum authorized by the jury’s verdict.

## Legal Principles

- Rule 404(b) allows evidence of other crimes, wrongs, or acts for non-character purposes such as proving knowledge and intent, subject to Rule 403.
- In the Eleventh Circuit, extrinsic-act evidence is admissible under Rule 404(b) if: (1) it is relevant to an issue other than character; (2) there is sufficient evidence for a jury to find the defendant committed the extrinsic act; and (3) the probative value is not substantially outweighed by unfair prejudice under Rule 403.
- In a drug-conspiracy prosecution, a defendant’s not-guilty plea generally places intent and knowledge in dispute, permitting the government to use qualifying prior drug offenses to prove those mental-state elements.
- Certified judgments of conviction may provide sufficient proof that the defendant committed the prior acts for Rule 404(b) purposes.
- A limiting instruction directing the jury to use other-acts evidence only for a permitted purpose reduces the risk of unfair prejudice in the Rule 403 analysis.
- After Booker made the Sentencing Guidelines advisory, a district court may consider acquitted conduct at sentencing if the judge finds the conduct by a preponderance of the evidence and the sentence imposed remains within the statutory maximum authorized by the verdict.

## Conclusion

United States v. Smith affirmed a cocaine-conspiracy conviction where the district court admitted two prior cocaine-possession convictions under Rule 404(b) to show knowledge and intent and gave a limiting instruction, and it also affirmed the sentence, holding that the Sixth Amendment permits a sentencing judge to consider acquitted conduct proved by a preponderance of the evidence so long as the sentence stays within the statutory maximum.


United States v. Smith, 741 F.3d 1211 (2013)