* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in Local Rule

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-50388

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROY EDWARD BROWN,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

( W-94-CR-61 (1))

Febraury 25, 1997

Before POLITZ, Chief Judge, REAVLEY and DENNIS, Circuit Judges.

POLITZ, Chief Judge: *

Roy Edward Brown appeals his conviction of possession with intent to

distribute 50 or more grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1).

Concluding that the distric t court admitted evidence contrary to the strictures of

Federal Rule of Evidence 403, w e reverse the conviction and remand for a new

trial.

Background1 71 F.3d 1158 (5th Cir. 1995). The facts leading up to Brown’s arrest, trial, and

conviction are fully explained in our earlier opinion and we do not repeat them here.

2 This appeal arises out of Brown’s second trial and conviction on the stated

offense. We reversed the first conviction and remanded for a new trial after finding

a violation of F e deral Rule of Evidence 404(b) by the admission of evidence of

Brown’s prior conviction of possession of crack cocaine with the intent to

distribute. 1 At the second trial the prosecutor relied primarily upon the testimony

of two witnesses, Kelly Hensley and Stanley Johnson, to establish Brown’s guilt.

Hensley testified that she saw a man holding a brown paper bag found to contain

117.51 grams of crack cocaine and identified Brown as that man. Johnson testified,

over the objection of Brown, that while working in conjunction with t he Killeen

Police Department, he purchased crack cocaine from Brown o n three separate

occasions. Brown was again convicted and again appeals his conviction.

Analysis

Brown contends that the district court erred in overruling his objection and

admitting evidence of his alleged participation in three drug transact ions. The

district court admitted the evidence as relevant to the critical issue of Brown’s

intent to distribute the 117.51 grams of crack cocaine he allegedly possessed.

Extrinsic evidence of “other wrongs” may be admitted at criminal trials if

this evidence passes a two-part test. First, the evidence must be probative of some

issue other than character. The evidence cannot be used solely to prove that the

defendant is a “bad guy.” Second, the probative value of the evidence must not be2 United States v. Beechum , 582 F.2d 898 (5th Cir. 1978) (en banc), cert

. denied , 440

U.S. 920 (1979).

3 Id. at 914.

3 outweighed by its prejudicial effect. 2

On appeal Brown vigorously maintains that any probative value of the

evidence was outweighed greatly by its prejudicial effect. Assuming a rguendo that

the evidence was probative of intent, to determine its admissibility we must weigh

its probative value against its prejudicial effect.

The probative value of extrinsic evidence introduced to prove intent must be

“determined with regard to the extent to which the defendant’s unlawful intent is

established by other evidence, stipulation, or inf erence.” 3 In this case, the

prosecutor estab lished the intent to distribute crack cocaine element with

overwhe lming and uncontroverted evidence of the quantity involved and the

compelling inference therefrom. Police Officer Patrick Turk, a narcotics

investigator, test ified that one gram of crack cocaine has a street value of

approximately $200 and that 117.51 grams of crack cocaine has a street value of

over $23,000. Turk further testified that crack cocaine is usually sold on the street

in the form of small rocks in quantities of 0.1 to 0.2 grams and that 117.51 grams

of crack cocaine is a “wholesale quantity, a dealer’s quantity.”

This testimony combined to establish affirmatively the element of intent to

distrib ute crack cocaine and was admitted without objection or contradiction by

Brown. Therefore, the extrinsic evidence of the three drug transactions between

Brown and Johnson, had very little, if any , probative value on the issue of intent,4 Chapman v. California , 386 U.S. 18 (1967).

4 whereas the prejud ice resulting from its admission obviously overwhelms. This

evidence was such that the jury likely convicted Brown on the basis of their

perception of him as a drug dealer rather than the evidence actually before them.

Evidence of the three drug transactions was improperly admitted, and this

error was not harmless beyond a reasonable doubt. 4 As in Brown’s first trial, the

evidence in the second trial was not so overwhelming t hat the jury likely

disregarded Johnson’s testimony. Brown’s defense was that Hensley incorrectly

identified him as the man she saw holding the brown paper bag. Hensley was the

only eyewitness, and Brown pointed out significant differences between Hensley’s

descri ption of the man she saw holding the brown paper bag and his own

unchallenged physical appearance. Additionally, the prosecutor produced no

physical evidence whatever linking Brown to the brown paper bag or to the crack

cocaine contained therein.

We also find of considerable import the fa ct that the district court

inadvertently gave conflicting limiting instructions to the jury. Before Johnson was

allowed to testify, the district court instructed the jury that they could consider his

testimony “for the limited purpose of considering

. . . whether or not the Defendant

possessed a controlled substance with the intent to distribute it.” In the final

instructions, however, the distri c t court instructed the jury that they should consider

the evidence “only to determine whether the Defendant had the intent to distribute

the ‘crack’ cocaine as alleged.” In further exacerbation of the situation, the5

prosecutor, during closing arguments, characterized the evidence as propensity

evidence. Specifically, the prosecutor stated that “[t]he question on . . . Johnson is,

is he telling you the truth . . . . There’s absolutely no doubt that he’s into ‘crack’

cocaine, but who does he buy his ‘crack’ c ocaine from? Right there [indicating

Brown], that’s who he told you.”

U nder these circumstances, we cannot say that the erroneous admission of

Johnson’s testimony was harmless beyond a reasonable doubt and we therefore are

compelled to REVERSE Brown’s conviction and REMAND for a new trial.