1

PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-1516

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UNITED STATES OF AMERICA,

v.

DURRELL SMITH,

Appellant.

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. Crim. No. 10-704)

District Judge: Honorable Mary L. Cooper

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Argued: May 15, 2013

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Before: SLOVITER, FUENTES, and ROTH, Circuit Judges

(Opinion Filed: August 6, 2013)

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Kevin F. Carlucci, Esq. [ARGUED]

Office of the Federal Public Defender

1002 Broad Street

Newark, New Jersey 07102

Attorneys for Appellant Durrell Smith

Steven G. Sanders, Esq. [ARGUED]

Office of the United States Attorney

970 Broad Street

Newark, New Jersey 07102

Attorney for Appellee United States of America

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OPINION OF THE COURT

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FUENTES, Circuit Judge:

At Durrell Smith’s trial for threatening federal officers

with a gun, the Government sought to establish that two years 

earlier Smith had been observed dealing drugs at the same 

location as the charged assault. Smith objected, arguing that 

the relevance of the drug deal to the gun crime requires an 

inference that because Smith was a drug dealer in the past he 

must have been a drug dealer on the day in question. The 

District Court overruled Smith’s objection and permitted 

evidence about the earlier drug sale. Smith was convicted

and sentenced to 30 years in prison. 

We conclude that the evidence of Smith’s drug 

distribution, two years before the incident for which he was 
3

on trial, violates our long-standing requirement that, when 

seeking to introduce evidence of prior bad acts under Rule 

404(b), the proponent must set forth “a chain of logical 

inferences, no link of which can be the inference that because 

the defendant committed . . . offenses before, he therefore is 

more likely to have committed this one.” United States v. 

Sampson, 980 F.2d 883, 887 (3d Cir. 1992) (emphasis added). 

We therefore reverse the District Court’s evidentiary ruling, 

vacate Smith’s conviction as to Counts 1 and 2 of the 

Indictment, and remand for a new trial.

I. Factual and Procedural Background

A. The September 2010 Incident 

On September 1, 2010, FBI Agent Michael Alerassool 

and three other officers were conducting surveillance in an 

unmarked car with tinted windows on the corner of 

Brunswick and Parkhurst Streets, as part of an ongoing drug 

activity investigation in Newark. Most people in the vicinity 

scattered when the vehicle arrived on the street, but 

Alerassool observed Appellant Durrell Smith through the car 

window, standing his ground across the street and staring into 

the vehicle.

Smith then disappeared from Alerassool’s sight but

returned about one minute later, walking at a regular pace 

towards the car. As Smith passed under a street lamp, 

Alerassool noticed that he had a handgun in his right hand,

“pointing [the gun] kind of at a downward angle,” about 

seven inches from his right thigh. App. 115. Smith then 

began to rotate his shoulder to face the officers as he 

approached the vehicle. Alerassool called out to the others in 
4

the car that Smith had a gun, and Smith was arrested before 

he could get any closer. The officers recovered a CF-380 

semi-automatic handgun from Smith’s person but there is no 

contention that drugs were found on Smith on that day.

The next day, Smith was interviewed by Newark

Police Detective Raul Diaz. Smith waived his Miranda rights 

and confessed that he had been on the corner of Brunswick 

and Parkhurst the night before and that he had a gun. 

However, Smith denied that the gun belonged to him. 

Moreover, Smith claimed that he retrieved the gun in selfdefense because, although he did not know who was in the 

car, he feared for his life given that there had been a shooting 

nearby two weeks prior involving a similar car. 

B. The Government’s Rule 404(b) Motion 

Smith, a convicted felon, was indicted on three counts: 

(1) threatening a federal officer in violation of 18 U.S.C. 

§§ 111(a)(1) & (b); (2) using and possessing a firearm in 

furtherance of a crime of violence, in violation of 18 U.S.C. 

§ 924(c)(1)(A)(ii); and (3) unlawful possession of a firearm 

by a convicted felon, in violation of 18 U.S.C. § 922(g).

Before trial, the Government moved in limine to admit 

evidence under Rule 404(b) of the Federal Rules of Evidence 

that, two years prior to his arrest, Smith had engaged in a 

drug transaction on the same street corner. The Government 

noted that the “case boils down to” Smith’s motivation in 

retrieving the gun because Smith claimed that he retrieved it

in self-defense, and that the evidence would rebut that theory 

by establishing that Smith had a motive to assault the people 

in the vehicle. App. 40. Specifically, the evidence would
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show that Smith “has a history of selling heroin on this 

corner,” which, along with evidence that “drug dealers often 

leave the guns in a stash and the drugs in a different stash” 

and that drug dealers use weapons, would prove that Smith 

wanted to assault the officers to protect “his drug turf . . . that 

particular night.” App. 44, 46. Smith objected, arguing that 

this line of reasoning violated Rule 404(b)’s prohibition on 

evidence about a defendant’s character, used to show his 

propensity to act in accordance with that character. The 

District Court deferred ruling on the motion.

After concluding its initial presentation of the 

evidence, the Government renewed its motion, again arguing 

that the evidence of the 2008 drug deal was necessary to show 

that Smith’s reason to assault the officers was to protect his 

turf. The Government framed its argument as “this defendant 

was seen in the past selling drugs at that particular corner, 

which shows that he sells drugs at that corner.” App. 212. 

Smith again objected, arguing that the evidence was 

impermissible propensity evidence.

The District Court allowed the evidence, explaining 

that it “is important to the Government in order to connect its 

proofs that there was an intentional assault.” App. 217. The 

Court reasoned that because “the issue that the jury ha[d] to 

resolve” was whether Smith’s motivation was “offensive, 

rather than merely defensive,” the evidence was admissible to 

determine whether Smith acted in self-defense. App. 220. 

The Court then correctly recognized that admissibility of Rule 

404(b) evidence requires district courts to follow four steps, 

as set forth in Huddleston v. United States, 485 U.S. 681, 691 

(1988). Analyzing these steps, the District Court concluded 

that the evidence was offered for a proper purpose under Rule 
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404(b), i.e., “to establish motive;” that the evidence was 

relevant under Rule 402; that although the evidence was 

“significantly prejudicial” it was not “unfairly prejudicial”

under Rule 403; and that it would give an appropriate limiting 

instruction to the jury. App. 221-22. 

C. The September 2008 Incident

After this ruling, FBI Agent Michael Brooks testified

that in September 2008 he was conducting an investigation of 

drug activity in the same corner in Newark as the one Smith 

was arrested on in 2010, when he observed Smith engaging in 

a sale of heroin. There were no firearms involved in the 2008 

incident.

The District Court then gave a limiting instruction, 

which it repeated after its final charge, explaining that the 

testimony “was admitted for limited purposes only,” namely 

to “decid[e] whether the defendant had the intent and a 

motive to commit the acts charged.” App. 239. The Court 

asked the jury not to “consider this evidence as proof that the 

defendant has a bad character or any propensity to commit 

crimes.” App. 240.

D. Closing Arguments, Conviction, and 

Sentence

The Government began its summation by painting 

Smith as a drug dealer with “turf” to protect. App. 338. The 

prosecutor twice argued that on the night of September 2010 

Smith meant to threaten the people in the car because, even if 

the jury believed Smith’s statement that there had been a 

shooting two weeks prior, Smith wanted to menace the 
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individuals in the car for “the shoot-up of [his] turf.” App. 

343. In rebuttal, the Government also asked the jury to think: 

“What’s [Smith] doing standing on a corner? There is no 

house there, what’s he doing staring at a car? What’s he doing 

over there? . . . He’s been on that block before, hasn’t he? 

And not just two years ago.” App. 365.

The jury convicted Smith on all counts. He was 

adjudicated a career offender based on the 2008 heroin sale 

that was the subject of the 404(b) motion and an unrelated

drug possession charge, and sentenced to consecutive 

sentences of 240 months on the assault charge, 84 months on 

the use of the gun charge, and 36 months on the felon in 

possession charge, for a total of 360 months’ imprisonment.

II. Analysis

A. Rule 404(b) and Standard of Review

Smith argues that the District Court violated Rule 

404(b) of the Federal Rules of Evidence in admitting the 

evidence of the 2008 drug deal.

1

 1 The District Court had jurisdiction over this criminal 

case pursuant to 18 U.S.C. § 3231, and we exercise 

jurisdiction pursuant to 28 U.S.C. § 1291.

 Rule 404(b) prohibits 

evidence of a crime “to prove a person’s character in order to 

show that on a particular occasion the person acted in 

accordance with the character.” Fed. R. Evid. 404(b)(1). 

However, “[t]his evidence may be admissible for another 

purpose, such as proving motive.” Fed. R. Evid. 404(b)(2). 

In determining the admissibility of prior bad acts evidence, a 

district court must analyze, under the familiar Huddleston 
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test, whether the evidence: (1) has a proper evidentiary 

purpose under Rule 404(b); (2) is relevant under Rule 402; 

(3) is of such probative value as to outweigh the prejudice to 

the defendant as required by Rule 403; and (4) is 

accompanied by a proper limiting instruction. 485 U.S. at 

691. We normally review evidentiary rulings for abuse of 

discretion, but we exercise plenary review over “whether 

evidence falls within the scope of Rule 404(b).” United 

States v. Green, 617 F.3d 233, 239 (3d Cir. 2010); see also 

United States v. Lee, 612 F.3d 170, 186 (3d Cir. 2010). 

B. Whether the Evidence of the 2008 Drug Sale

Has a Proper Purpose 

To serve a proper Rule 404(b) purpose, evidence must 

be “probative of a material issue other than character.” 

Huddleston, 485 U.S. at 686. The Government argues that 

the evidence of Smith’s 2008 drug deal fits into Rule 404(b)’s 

exception for evidence tending to show a defendant’s motive, 

because Smith’s 2008 drug dealing shows that Smith had a 

motive to threaten individuals at the same corner in 2010: to 

protect his “turf.” We agree that motive was relevant in this 

case and that the evidence of the 2008 drug sale tends to 

establish motive. But that is not the end of the inquiry. 

To meet the first requirement for admissibility, the 

proponents of Rule 404(b) evidence must do more than 

conjure up a proper purpose—they must also establish a chain 

of inferences no link of which is based on a propensity 

inference. United States v. Echeverri, 854 F.2d 638, 644 (3d 

Cir. 1988); Sampson, 980 F.2d at 886-87; see also 22 

CHARLES ALAN WRIGHT & KENNETH W. GRAHAM JR.,

FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5239, at 
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459 (1978) (“[E]vidence of other crimes can be used to prove 

the conduct of a person if the inference to conduct can be 

made without the need to infer the person’s character as a step 

in the reasoning from the other acts to the conduct in issue.”). 

As we explain below, that did not occur here.

“[T]he line between what is permitted and what is 

prohibited under Rule 404(b) is sometimes quite subtle,” 

United States v. Murray, 103 F.3d 310, 316 (3d Cir. 1997), 

and “despite the recurrence of the issue[], the opinions are 

often poorly reasoned and provide little guidance to trial 

judges.” WRIGHT & GRAHAM, § 5239 at 427. The problem 

stems in part from two competing realities that surround most 

Rule 404(b) evidence. On the one hand, proponents of Rule

404(b) evidence will normally be able to conceive of a proper 

purpose other than propensity. But if this were sufficient to 

admit the evidence, the basic idea embodied by Rule 404(b), 

that simply because one act was committed in the past does 

not mean that a like act was again committed, would be 

threatened. On the other hand, all Rule 404(b) evidence is at 

least somewhat prejudicial to the party against whom it is 

admitted and will invite the jury to make inferences about his 

or her character. This alone cannot lead to exclusion. United 

States v. Pettiford, 517 F.3d 584, 590 (D.C. Cir. 2008). We 

resolve this inherent tension by requiring that the purpose of 

the Rule 404(b) evidence be established without an inference 

that the party against whom it is admitted acted in conformity 

with whatever the evidence of the prior act says about his or 

her character. We therefore do not exclude evidence simply 

if it invites character inferences, but only evidence that is 

used to prove a person’s character and that invites the 

inference that the person acted in conformity with that 
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character, and was therefore more likely to have committed 

the charged crime.

The foregoing resolves this case, which presents a 

somewhat novel fact pattern. The Government insists that the 

evidence of the 2008 drug sale does not say anything about 

Smith’s character, but simply provides his motive for the 

assault in 2010, “a continuing interest in his turf.” Gov’t Br. 

at 30; see also id. at 31 (stating that the Government “never 

argued that Smith likely committed the charged assault 

because he previously sold drugs,” only that the “prior drug 

sale showed [Smith’s] interest in the corner”). The problem 

with this line of reasoning is that, for the evidence of the 2008 

drug sale to speak to Smith’s motives in 2010, one must 

necessarily (a) assume something about Smith’s character 

based on the 2008 evidence (that he was then a drug dealer), 

and (b) infer that Smith acted in conformity with that 

character in 2010 by dealing drugs and therefore had a motive 

to defend his turf. This clearly violates Rule 404(b) because

the Government used the 2008 drug deal “to prove [Smith’s]

character [as a drug dealer] in order to show that on a 

particular occasion [Smith] acted in accordance with th[at] 

character.” Fed. R. Evid 404(b).

2

Had Smith been observed dealing drugs on that street 

corner the morning of the incident, the Government would 

have a much stronger case, as it may have argued that the 

evidence had the proper purpose of showing a “common 

 

 2 The Government cannot explain how or why Smith 

would have “turf” to protect if he were not a drug dealer and 

we reject the unpersuasive attempts to separate the concepts 

of “turf” and “drug dealer.”
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scheme or plan,” see Rule 404(b)(2), or “as background 

information which completes the story of the crime,” Green, 

617 F.3d at 249. But, “ordinarily, when courts speak of 

‘common plan or scheme,’ they are referring to a situation in 

which the charged and the uncharged crimes are parts of a 

single series of events.” Gov’t of V.I. v. Pinney, 967 F.2d 

912, 916 (3d Cir. 1992). Here, there is no contention that the 

2008 drug deal and the 2010 crime were part of a single series 

of events. Nor could there be. Moreover, the temporal 

separation between the two events, the lack of similarity 

between them (in that one involved drugs and no gun and the 

other a gun and no drugs), and the isolated nature of the 2008 

drug deal, all weaken the force of the evidence standing on its 

own, to the point where the jury has to make inferences about 

Smith’s character from his 2008 conduct in order to learn

something about Smith’s 2010 motivations from that conduct. 

See, e.g., Murray, 106 F.3d at 318 (reversing inclusion of 

evidence of a prior uncharged murder in a prosecution for a 

different murder in part because the method of the first 

murder was different than the second); United States v. 

Mayans, 17 F.3d 1174, 1182-83 (9th Cir. 1994) (reversing the 

admission of the Rule 404(b) evidence because there was not 

a close connection between the past drug deals and the 

charged offense).

That the Government did not explicitly make a

propensity argument does not change the outcome, 

particularly given that it did invite the jury to make the

improper inferential leaps at summation with its explicit and 

repeated references to Smith’s “turf,” and with the rhetorical 

questions: “What’s he doing over there? . . . He’s been on that 

block before, hasn’t he? And not just two years ago.” These 

circumstances are reminiscent of United States v. Conner, 
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where the Seventh Circuit held that evidence of a prior drug 

deal was improperly admitted because the Government 

repeatedly invited the jury to infer that the defendant had 

acted in conformity with the past conduct, noting that it “was 

not an ‘isolated incident,’ and not[ing] that the second [act] 

corroborated the first [act].” 583 F.3d 1011, 1024 (7th Cir. 

2009). The court reasoned that “[t]he implication of the 

prosecutor’s argument was that Conner was more likely to 

have [committed the charged crime] because he had done so 

on other occasions.” Id. at 1024-25. See also Murray, 103 

F.3d at 320 (overturning the admission of evidence of a prior 

murder because the prosecutor had asked at closing: “Doesn’t 

[the prior murder] help establish that this defendant was part 

of this conspiracy [for the charged murder]? . . . . [D]oesn’t 

that help establish that this defendant is . . . a killer?”). 

Moreover, the cases cited in the Government’s brief 

contrast sharply with, and are distinguishable from this case, 

as none involved a situation where the jury was required to 

make an assumption about the defendant’s character based on 

the past act, or to elucidate the defendant’s motive by 

assuming that the defendant acted in accordance with that 

character when committing the charged crime. See, e.g., 

Green, 617 F.3d at 249-50 (admitting evidence that a 

defendant on trial for attempting to buy cocaine had 

threatened to kill an informant, as evidence of the informant’s 

motive to cooperate); United States v. Sriyuth, 98 F.3d 739 

(3d Cir. 1996) (admitting evidence the defendant had sexually 

assaulted a kidnapping victim, as it established a motive for 

the charged kidnapping).

3

 3 That Smith may have invited the testimony by making 

an issue of his lack of motive to assault the officers does not 
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The Government also attempts to narrow the scope of 

Rule 404(b) by contending that the “no link” prohibition is 

limited to inferences that the defendant committed “the crime 

charged,” and posits that because the 2008 act (drug dealing) 

is not the same as the act charged (assault), no error occurred. 

Gov’t Br. at 30-31 (citing United States v. Himelwright, 42 

F.3d 777, 782 (3d Cir. 1994)). But Rule 404(b) is not so 

limited. The problem with propensity evidence is that it 

“weigh[s] too much with the jury [because it] overpersuade[s] 

them as to prejudge one with a bad general record and 

den[ies] [the defendant] a fair opportunity to defend against a 

particular charge,” without limitations based on whether the 

charged and uncharged acts are the same. Michelson v. 

United States, 335 U.S. 469, 476 (1948). Limiting the reach 

of the Rule as the Government suggests would curtail these 

protections in a way that, to our knowledge, no court ever 

has. See, e.g., Himelwright, 42 F.3d at 785-86 (holding that 

evidence of purchases of weapons was inadmissible in a trial 

for a different crime, making threats to postal workers).

As a final argument, the Government analogizes this 

case to a hypothetical situation wherein a defendant is 

observed breaking into a vacant lot in order to live there, and 

is later prosecuted for threatening an individual who also 

attempted to enter that lot. The Government contends that in 

 

eliminate the rule that no link in the chain of logical 

inferences may involve a propensity inference. See, e.g., 

Pinney, 967 F.2d at 917 (noting that the “need to dispel an 

exculpatory [explanation] implanted by the defense . . . can 

fulfill the proper purpose requirement of Rule 404(b)” but 

excluding the evidence as a violation of the “no link” 

requirement).
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that situation, evidence of the prior breaking and entering 

would be admissible to explain the defendant’s motive to 

threaten the would-be intruder. But even assuming we agree 

with that legal proposition, the hypothetical only highlights 

what is different, and dispositive, about this case—the 

evidence of the prior breaking and entering does not speak to 

the defendant’s character as someone likely to make threats, 

and the motive does not hinge on an inference that he acted in 

accordance with that character. Additionally, the breaking 

and entering evidence fairly “completes the story [of the 

crime]” without a propensity inference. Green, 617 F.3d at 

249. Here, however, there is no continuous, ongoing conduct

between the 2008 and 2010 acts (that Smith was in jail for 

some of the intervening months explains but does not 

eliminate the lack of continuity between the two acts). 

Moreover, to reach the “motive” purpose from the evidence 

of the 2008 drug sale, an inference about Smith’s character 

(that he was a drug dealer) and an inference that he acted in 

conformance with that character in 2010, are required before 

the jury may determine that Smith committed the charged 

crime. As a matter of law, then, the evidence of the 2008 

drug sale did not have a proper Rule 404(b) purpose.

C. The Balancing Required By Rule 403

We also conclude that the District Court’s balancing of 

the prejudicial nature of the evidence against its probative 

value warrants reversal. To start, the District Court stated 

that the effect of the 2008 drug deal evidence was 

“significantly prejudicial” to Smith. App. 221. After this 

statement, however, the District Court merely said that “given 

the issues in this case, it is not unfairly prejudicial.” App. 

222. In light of the significantly prejudicial nature of the 
15

prior acts evidence, we find this recitation of the third 

Huddleston factor insufficient. In particular, the District 

Court did not address the diminished probative value of the 

evidence of the 2008 drug deal in light of the fact that the 

transaction did not involve firearms, or of the fact that the 

charged 2010 offense did not involve narcotics. Thus, we 

also reverse Smith’s conviction because the District Court’s 

Rule 403 reasoning “is not apparent from the record.” United 

States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992).

4

The Government finally contends that any error was 

harmless because: (1) Smith confessed that he retrieved the 

gun to protect himself; (2) his counsel conceded at closing 

that Smith carried the gun “in such a way as to discourage the 

occupants of the car from ‘messing’ with him”; and (3) Smith 

returned to the corner “instead of simply walking away.” 

D. The Error Was Not Harmless

 4 We also find unpersuasive the contention that the 

prejudicial effect of the 2008 drug sale evidence is diminished 

because the crime charged was more serious. If that was the 

proper rubric of analysis, defendants on trial for the most 

serious crimes would be exposed to a broader universe of

Rule 404(b) evidence than defendants on trial for mundane 

offenses, a result we cannot square with the text or purpose of 

the Rule. United States v. Gilbert, a case which the 

Government contends supports a contrary conclusion, only 

spoke of the comparative prejudicial effect of two sets of 

proffered Rule 404(b) evidence, it did not involve weighing 

the prejudicial effect of Rule 404(b) evidence against the 

crime charged based on their relative seriousness. 229 F.3d 

15 (1st Cir. 2000).
16

Gov’t Br. at 37. We disagree. Smith’s counsel’s statements 

at summation are not evidence. More importantly, evidence 

that Smith returned to the street corner rather than walking 

away and that he wanted to protect himself, while certainly 

probative of Smith’s motives, is hardly enough to convince us 

that “it is highly probable that the error did not contribute to 

the judgment.” United States v. Helbling, 209 F.3d 226, 241 

(3d Cir. 2000) (internal quotation omitted). Indeed, the 

District Court characterized the totality of the evidence

without the 2008 drug sale as establishing “fairly innocent . . .

circumstances.” App. 219. Accordingly, the error was not

harmless.5

For the foregoing reasons, we reverse the District 

Court’s admission of the evidence of the 2008 drug sale,

vacate Smith’s conviction as to Counts 1 and 2 and his 

sentence in its entirety,

III. Conclusion

6 and remand the case for a new trial.7

 5 Nor are we convinced that the curative instruction is 

sufficient to permit us to overlook the error. We credit 

Smith’s contention that, had the District Court tailored the 

instruction to the specific facts of this case, it would have 

discovered that the “motive” purpose of the 2008 evidence 

was infused with improper propensity inferences.

6 We vacate Smith’s sentence in its entirety so that the 

District Court may “reconstruct the sentencing architecture 

upon remand.” United States v. Davis, 112 F.3d 118, 122 (3d 

Cir. 1997).

 
17

 7 Smith also moved to strike from the Indictment 

reference to the fact that the gun retrieved in 2010 had an 

obliterated serial number, and the District Court denied the 

motion. We have carefully considered Smith’s arguments 

with respect to this motion on appeal, and conclude that they 

are meritless. Accordingly, we affirm the District Court’s 

evidentiary ruling with respect to that motion.