NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0623n.06 Case No. 08- 2382 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNITED STAT ES of

AMERICA, P laintif f-App ellee,

v. CHARLES E . ARMSTRONG , Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITED STAT ES DIS TRICT COURT F OR THE E ASTERN DISTRICT OF MICHIG AN

Before: BATCHELDER, Chief Judge; ROGERS and S UTTON, Circuit Judges. ALICE M. BATCHEL DER, Chief Judge. C h ar l es Armstrong , a fede ral criminal defe ndant, appea ls his convic t i o n fo r possession with intent to distribute coca ine base, car ry ing a firea rm during a drug

traff icking crime, a

nd possession of a fir ear

m by a fe lon. We AFF I RM. I. On May 4, 2007, Michig an State Police T ro o p ers Michae l Roth and Robert Mossing identified a For d pick-up truck with an ex pired li cense plate and conducte d a routine traff ic s top. Def endant Ar mstrong w as driving the truck, a nd one Ricky

Har vey was the only

passeng er. Trooper Mossing approa ched the driver side an d Trooper Roth approa ched the passeng er side. When A rmstrong could not pr oduce a driver’ s licence , Trooper Mossing order ed him to exit the truck. Trooper Roth shined a flashlig ht throug h the passeng er side window and saw a g un and

narc otics on the floor on the dr iver’s side. T rooper Roth then ordere d Har

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The troopers rec overe d the g un — a semi-automatic .45 handg un, loaded, with one round in the chambe r — and the narc otics — powder ed coca ine base totaling 35.59 g rams, s ep ar at ed i n t o

s everal bag g ies, inside a larg er bag

. There wer e no fing erpr ints on the g un or the b ags o f d ru gs . Trooper Mossing sear ched Armstrong but did not discover any contra band on his person. Trooper Roth searc hed Ha

rvey and seized a c rac k pipe and a bag g ie containing 6.4 g rams of ma rijuana. The fede ral g rand jury indicted Armstrong o n t h re e counts : one count of possession with intent to distribute five gra ms or m o re o f co ca i n e base, in violation of 21 U.S.C. § 841(a) (1); one
count of car

ry ing a firea

rm during and in re l at i o n to a drug traff icking offe nse, in violation of 18 U.S.C. § 924(c) ; and one count of felon in possession of a fi re ar m , i n violation of 18 U.S.C. § 922(g ). Armstrong enter ed a plea of not g uilty , and the parties prepa red for a jury trial. Armstrong ’s defe nse was that the drug s and g un wer e not h i s , but instead belong ed to the passeng er, Ricky Har vey . Prior to tr ial, Armstrong ’s counsel filed a trial brief

, in which he pr oposed — among other things — to introduce evidenc e of prior simil ar acts by Ricky Har vey , including cer

tified copies of three separ ate criminal convictions in which Har vey h ad “droppe d” illega l drug s when the police
approa ched, as well as testimony by the office rs involved in those incidents. The g overnme nt moved
in limine to exclude all such ev i d en ce an d the district court hear d arg ument on the motion. Armstrong ’s counsel arg ued that the evidenc e was admissible under Fe dera l Ru le o f E v id e n c e 4 0 4 (b) and his constitutional right to pre sent a de fense

. But the district court, rely ing on United St ates v. Lucas , 357 F.3d 599 ( 6th Cir. 2004), g rante d the motion and excluded the evidenc e.

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At trial, the Government prese nted Troopers Roth and Moss ing, and a Mt. Morris (Mich.) Township Police Offic er named Donald Urba n. Ricky Har

vey did not testify

. The defe nse prese nted Armstrong , who testified that neither the g un nor the drug s wer e his and that, just before the Trooper s approa ched the truck, Harvey rea che d i n s i d e his jacke t and dropped something onto the floor of the truck. The defe nse also prese nted defe ndant’s g irlfriend, Yolanda Suarez, who offe red

some backg round and char acte r evidenc e; and Fe dera l Def ender ’s Offic e i n v est iga

tor Cameron Henke , who had inspected the truck and testified that a person sitti ng in the driver’ s seat would not be able to see the g un or drug s on the driver ’s side floor due to the seat’s bloc king the view. The jury convicted A rmstrong on all three counts. The district c ourt sentenc ed Armstrong
to 78 months in p ri s o n o n C o u nt One, 60 months consec utive on Count Two, and 60 months

concur rent on Count Three , for a total of 138 months. Armstrong timely appea led. II. On appea l, Armstrong challeng es his conviction on two b ases. He first claims that the district
court err ed by excluding the proff ere d evidenc e of Har

vey ’s other simil ar acts, in c ontrave ntion of Fe dera l Rule of Evidence 404(b) and his const i t u t i o n al rig ht to prese nt a complete defe nse. This

co urt revie ws a district court’s evidentiar y ruling s for an abuse of discretion, and revie ws an appellant’ s claimed violation of a c onstitut ional rig ht de novo

. Lucas , 357 F.3d a t 606. Armstrong also claims that the evidenc e wa s insufficient to sustain the conviction beca use the g overnme nt did not charg e or show tha t the case involved “c rac k” coc aine, a s — he ar g ues — is now require d by United States v. Higgins , 557 F.3d 381 (6th Cir. 2009). Ty pically , we revie w de

novo the suffic iency

of the e vidence to sustain a conviction, see United States v. Gunter , 551 F.3d
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472, 482 (6th Cir. 2009) , but A rmstrong did not raise this c laim a t tr ial, and his basis for the claim ( Higgins ) was not decide d until afte r his conviction. There fore , we revie w this claim for plain err or. See Fe d. R. Crim. Pro. 52(b); United States v. Marcus , 560 U.S. --, 130 S. Ct. 2159, 2164 (2010) (holding that “an appellate court may , in its discretion, corr ect an err or not raised at trial only wher e the appella n t d em onstrates that (1) there is an err or; (2) the err or is clea r or obvious, rathe r than subject t o rea sonable disput e; (3) the error affe cted the appellant’ s substantial rights, whic h in the ordinary case means it aff ecte d the outcome of the district court proce eding s; and (4) the err or seriously aff

ects the fairne ss, integ rity or public reputa tion of judicial proce eding s” (quotation and editorial marks omitted))

. A. “Evidenc e of other . . . a cts is not admissibl e . . . to show ac tion in conformity there with.” Fe d. R. Evid. 404(b). There are , howeve r, cer tain identified exceptions, including “proof of motive, opportunity , intent, prepa ration, plan, knowledg e, identity , or absenc e of mistake or acc ident.” Id

. When ev i d en ce is offe red to prove an exception, “the rule does not require that the evidenc e be excluded. No mecha

nical solution is offe red. The deter mination must be made whether the dang er of undue prejudice outweig hs the probative value of the evidenc e in view of the availability of other means of pr oof and othe r fa cts appropr iate for making decision of this kind under Rule 403.” See Fe d. R. Evid. 404, Advisory Comm. Notes, Note to Subdivi sion (b) (1972 Proposed Rules)

. I n Lucas , 357 F.3d at 605, we considere d the conce pt of “re verse 404(b)” evidenc e, “in which the evidence of a prior act by another is offer ed as ex culpatory evidenc e by the defendant, inst ead of being used by a prosec utor ag ainst a defe ndant.” We rea soned that “prior bad acts are g ener ally
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n o t considere d proof of any person’ s likelihood to commit bad acts in the future and th at s u ch evidenc e should demonstrate s o m et h i n g more than propensity .” Id

. (empha sis in orig inal). There fore , we held that the Rule 404(b) analy sis applies even “in case s wher e such evidenc e is used with respec t to an absent third par ty , not char g ed with any

crime.” Id . at 606. The district court analy

zed Armstrong ’s claim under Lucas and conclude d “that Armstrong has not met his burden of establishing that any of th[ e] exceptions to Rule 404(b) apply to this case .” Cons eq u entl y , the district court g rante d the g overnme nt’s motion in limine and excluded any evidenc e of H arve y ’s other similar a cts of dropping illega l drug s when the police approa ched. Armstrong arg

ues that the district cour

t misapplied Lucas , and points to a bit of dictum , in which the pa

nel opined about the “ knowledg e and intent” exceptions to Rul e 404(b) : I f, instead, it w[ere] shown that [t he absent third party ] had borrowe d someone else’s car in which to do the prior drug deal [as Lucas c laims happene d here ] or if he had packa g ed the coca ine in the same way and had left it under the passeng er’ s seat in the same way , the evidenc e of his prior drug deal might have been sufficie ntly probative, but the simple fact that he sold coca ine bef ore is only

minimally

rele vant. Lucas , 357 F3d a t 606. Armstrong arg ues on appe al, base d on the fore g oing, tha t: [T] he propose d testimony is admissibl e for

a proper purpose, i.e., i dentity as in the Lucas example above. Ricky Har vey had, on three separ ate occa sion s, dropped drug s upon being approa ched by the police — just as [Armstrong] alleg es he did here

. The fac ts of t he instant ca se parallel t he modus opera ndi that Har

vey had demonstrated repe atedly

in the past. [Armstrong] should ha ve been pe rmitted under Rule 404(b) to present the of

fice rs’ testimony

to this effec t. Appellant’s B r. at 16 (f

ootnote omitted, underlining in orig inal). Despite his invocation of the word “identity ” (in his misunderstanding of the Lucas court’s topic i n t h e cited dicta ), identity was not at issue here — Armstrong does not claim he was

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misidentif

i ed , n o r d o es he claim that the g overnme nt misidentified Har vey . As the g overnme nt
arg ues on appea l, “[Armstrong ]’s attempt to admit evidenc e that Har vey had dropped drug s was not offe red to prove Har

vey ’s identity , but rathe r that Har vey did it befor e and there fore when confr onted b y p olice here in he did it ag ain ( modus operendi ).” Appellee ’s Br

. at 14-15. To the exten t Armstrong offe rs evidenc e of prior acts to demonstrate that Ha rvey , not Armstrong , possessed the
contra band, the p ri o r acts he seeks to introduce are too g ener ic. To qualify as modus operandi evidenc e, the simil arity betwee n the prior act and the char g ed offen s e m u s t ri se to the level of a “sig nature ,” or a “devic e so unusual or di s t i n ct i v e as t o be like a signa ture.” United States v. Hamilton , 684 F.2d 380, 384 (6th Cir. 1982); see , e.g. , United States v. Mack , 258 F.3d 548, 553-54 (6th Cir. 2001) (finding that the use of a ski mas k wi t h a hooded swea tshirt and the method of “burst[ing] int o t h e b an k and “lea p[i ng ]” over the teller counter constituted a signa ture). But dropping contra

band, like flee ing the police, is ty pical of near ly ever

y criminal (who has something
to hide) and is not sufficie ntly “unusual or distinctive” to constitute a signa t ure. See also United States v. Thomas , 321 F.3d 627, 635 (7th Cir. 2003) (holding that dropping a handg un and fle eing on foot upon seeing the police wa s “g arde n varie ty ” conduc t inadmissibl e under Rule 404(b)). The district court and g overnme nt are corr ect that Armstron g offe rs this evidenc e only to
prove propensity : Har

vey did it befor e and was there fore more likely to have done it ag ain here

. Or, in Armstrong ’s own words: “Ricky Har vey had, on thre e sepa

rate occa sions, dropped drug s upon being approa ched by the police — just as [Armstrong] alleg es he did here .” Appellant Br

. at 16. But

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propensity evidenc e is not admissible under Rule 404(b), and the district court was proper ly within its discretion to ex clude this evidenc e on this basis pursuant to Lucas

. 1 Armstrong argue s, in the alterna tive, that exclusion of this evidenc e violated his constitutional rig ht to prese nt a complete defe nse even if the evidenc e was inadmissible under Rule 404(b). We reje cted this same arg ument in Lucas , holding that “a complete defe nse does not imply

a rig ht to offe r evidenc e that is otherwise inadmissible under the standard rules of evidenc e.” Lucas , 357 F.3d a t 606. There fore , on its face , this arg ument is meritless. But Armstrong cites Holmes v. South Carolina , 547 U.S. 319 (2006), for the proposition that he is constitutionally entitled to prese nt a complete defe nse. See Appellant Br

. at 16. Be cause the 2 Supreme Court issued Holmes afte r this court’s decision in Lucas , Armstrong implies but does not
arg ue expressly that Holmes might have overr u l ed Lucas ’s rea soning or holding. That would be incorre ct. We have rea ffirme d Lucas in rec ent opinions. See , e.g. , W ynne v. Renico , 606 F.3d 867, 871 (6th Cir. 2010) (“What was true in Lucas is true today .”); United States v. Clark , 377 F. App’x 451, 460 (6th Cir. 2010); see also W ynne , 606 F.3d at 872, 875 (Mar tin, J ., concur

ring ) (writing
separ ately “bec ause I believe that the Lucas opini o n was wrong ly decide d” and “but for Lucas , I would find that t h e ev i d ence was excluded in violation of Wy nne’s constitutional rig hts,” but

T o b e s u r e , i n U n i t e d S t a t e s v
. A l l e n , 6 1 9 F

. 3 d 5 1 8 , 5 2 3

- 2 4 ( 6 t h C i r . 2 0 1 0 ) , w e a l l o w e d t h e g o v e r n m e n t t o 1 i n t r o d u c e m o d u s o

p e r a n d i e v i d e n c e u n d e r s o m e w h a t s i m i l a r c i r c u m s t a n c e s . B u t c o u r t s o f a p p e a l d o n o t d e c i d e e v i d e n t i a r y q u e s t i o n s i n t h e f i r s t i n s t a n c e . T h e p o i n t o f a b u s e - o f

- d i s c r e t i o n r e v i e w i s t o g i v e l a t i t u d e t o d i s t r i c t c o u r t s t o m a k e a r a n g e o f d e c i s i o n s w h e n a d m i t t i n g e v i d e n c e , e v e n d e c i s i o n s t h a t d o n o t n e c e s s a r i l y s q u a r e w i t h t h e p r e c i s e c o n t o u r s o f

a r u l i n g i s s u e d b y a f

e l l o w t r i a l j u d g e . N o r a t a n y r a t e i s i t c l e a r t h a t o u r d e c i s i o n i n A l l e n o n t h i s p o i n t w a s a h o l d i n g , a s t h e c o u r t b e g a n i t s o p i n i o n b y s a y i n g t h a t “ a n y p o t e n t i a l e r r o r w a s c l e a r l y h a r m l e s s . ” S e e i d

. a t 5 2 3

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A r m s t r o n g a l s o r e l i e s o n G a g n e v
. B o o k e r , 5 9 6 F

. 3 d 3 3 5 ( 6 t h C i r . 2 0 1 0 ) , t o s u p p o r t t h i s p r o p o s i t i o n , b u t G a g n e 2
v
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. 3 d 2 7 8 ( 6 t h C i r . 2 0 1 0 )

.

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concluding that “this panel is bound by the decisions of a prior panel, no matter how illogica l, [so] I must concur” ). Ther efor e, Ar mstrong’ s constitutional arg ument is untenable.

B. Armstrong also claims that the evidenc e was insufficient to sustain the convic tion because the gover nment did not charg e or show tha t the case involved “cr ack” coca ine, as — he arg ues —

was then require d by United States v. Higgins , 557 F.3d 381 (6th Cir. 2009). I n Higgins , 557 F.3d at 392, 395, we held that “cr ack coca ine [i s] a specific form of c ocaine base,” and that “the phrase ‘coc aine ba se’ in [21 U.S.C.] § 841 means ‘c rac k coca ine,’” not simply any ty pe of coca ine base. There fore , “under Apprendi [ v. New Jerse y , 530 U.S. 466 (2000)], befor e the enhanc ed penalties of § 841 can apply , the indictment must char g e and the jury must find bey ond a rea sonable doubt that the defe ndant committed a crime involving crack coca ine” not mere ly cocaine base

. Id

. at 395-96 (empha sis added)

. The Supreme Court has since overr uled the fore g oing rea soning and held that “coc aine base” in 21 U.S.C. § 841 means not just “cr ack coca ine” but any coca ine in its chemica lly basic for m. DePie rre v. United States , 564 U.S. --, 131 S. Ct. 2225, 2231-32 (2011). I n any event, Armstrong is mist ak en and Higgins would not apply here , even on its own terms. Armstrong points out that his indictment char g ed only “coc aine ba se,” the court instructe d the jury only as to “coc aine base,” and the jury ’s verdic t form included only “coc aine base” — cra ck

was not specifie d in any of these char g es. Armstrong arg ues, pursuant to his rea ding of Higgins , that the evidenc e was insuffi ci en t to sustain the conviction under § 841 (and the other counts deriva tively ) bec ause the re w as no cha rg e or showing that the ca se involved “c rac k” coc aine.
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Armstrong ’s rea ding of Higgins is i n co rr ec t — Higgins addre sses only the “enha nced penalty ” aspec t of § 841’s sentenc ing provisions, not the criminality provisions of § 841 g ener ally

. T h e indictment char g ed him with possession of “coc aine base,” the court instructed the ju ry t o convict him on a finding that he possessed “coc aine base,” and the jury ’s verdic t form demonstrates that the jury did convict him for possessing “coc aine base.” There fore , the jury proper ly convicted him of possession with intent to distribute coca ine base and he could be sentenc ed acc ording ly

. Higgins proscr ibes sentenc ing under the enhanc ed penalties for cra ck coca ine, but the court did not
sentenc e Armstrong under those enhanc ed penalties, nor does Armstrong claim or even sug g est that it did. I n fac t, Armstrong has not offe red a ny challeng e wha tsoever to his sentenc e in this appea l. III. Be cause Armstrong cannot demonstrate that the district court e rre d by excluding evide nce or that his conviction was imprope r under the cur rent law , we AF F IRM the district court.

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