PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 08-5098

WALTER RALEIGH JOHNSON, JR.,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Anderson.

Henry F. Floyd, District Judge.

(8:07-cr-00960-HFF-2)

Argued: January 27, 2010

Decided: August 16, 2010

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

Reversed and remanded by published opinion. Judge Gregory

wrote the opinion, in which Judge Michael and Judge Motz

joined.

COUNSEL

ARGUED: Clarence Rauch Wise, Greenwood, South Carolina, for Appellant. Jeffrey Mikell Johnson, OFFICE OF THE

UNITED STATES ATTORNEY, Columbia, South Carolina,

for Appellee. ON BRIEF: W. Walter Wilkins, United States
Attorney, Columbia, South Carolina, Leesa Washington,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Greenville, South Carolina, for

Appellee.

OPINION

GREGORY, Circuit Judge:

Walter Raleigh Johnson, Jr. ("Johnson") appeals his conviction for conspiracy to possess with the intent to distribute

cocaine. He argues that the district court erred in admitting

the testimony of a Drug Enforcement Administration

("DEA") Agent under Federal Rule of Evidence ("Rule") 701

and erred in admitting the testimony of a prior alleged drug

customer under Rule 404(b). Because we find that the court

erroneously admitted testimony under Rule 701 and Rule

404(b), and that the errors were not harmless, we reverse

Johnson’s conviction and remand his case for a new trial.

I.

The Sheriff’s Department of Greenwood County, South

Carolina began conducting the drug investigation at issue in

January 2007. As part of that investigation, a drug informant

collaborated with the Sheriff’s Department and the Greenville, South Carolina DEA office to identify Mayo Pickens

("Pickens") as a source of cocaine in the area. After setting up

phone calls and meetings and observing drug transactions

between the informant and Pickens, the DEA obtained a

court-approved wiretap for Pickens’ cell phone. Although

hundreds of calls were intercepted from Pickens’ phone over

the sixty-day period of the wiretap, only about 109 of those

calls were relevant to the drug investigation. Out of the 109

relevant calls, only eight were intercepted between Pickens

and Johnson, all occurring between June 10, 2007 and July

2 UNITED STATES v. JOHNSON
12, 2007. Based on the eight phone conversations between

Pickens and Johnson, the DEA concluded that Johnson was

one of Pickens’ suppliers of cocaine. Johnson was arrested in

August 2007, indicted in October, and charged with one count

of conspiracy to possess with the intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A) and 846. There were eleven codefendants charged as part of the same conspiracy, including

Pickens, Yusef Lateef Holloway ("Holloway") and Wayne

Edward Hull ("Hull"). Johnson and two other defendants in

this case were the only parties who chose to go to trial. Pickens, Holloway and Hull all pled guilty.

At trial, the government called four main witnesses in its

case against Johnson.1 DEA Agent Randy Smith ("Agent

Smith") presented testimony on the wiretap investigation.

Holloway testified that he purchased cocaine from Johnson

for two years beginning in 2003. Hull, a drug customer of

Holloway’s, testified that Holloway got his drugs from Johnson. Finally, Khalil Timpson ("Timpson") testified that he

purchased drugs from Johnson in 1998.

Agent Smith was permitted to interpret four of the eight

phone calls recorded between Pickens and Johnson during his

testimony. After eliciting Agent Smith’s credentials, which

included eighteen years experience as a DEA agent, the government played excerpts of the various phone calls for the

jury, while referring them to a transcript of the calls.2 The

government’s attorney would then refer Agent Smith to a particular phrase in the conversation and ask him to explain its

meaning. For example: "Special Agent Smith, close to the

beginning of the call there is a line or there’s a phrase that’s

1Although the government called several other witnesses during their

case in chief, the primary evidence against Johnson was elicited from

these four witnesses. 

2The transcripts were not admitted as evidence but merely used as an

aid so the jury could follow along. 

UNITED STATES v. JOHNSON 3
used by Mr. Johnson, ‘I’m going to hit you and let you know

what’s happening.’" J.A. 91.3 Before Agent Smith could offer

his opinion, counsel for Johnson objected on the grounds that

the question called for speculation. The district court asked

the government’s attorney to lay a foundation for testimony

interpreting the calls. The government’s attorney did so in the

following manner:

Q: Special Agent Smith, how long have you been

a DEA agent?

A: Since April of 1990.

Q: And how many—during the course of that time

you have with DEA how many wiretaps have

you participated in?

A: Approximately ten.

Q: And how many consensual calls have you monitored or participated in with informants?

A: Easily over a hundred.

Q: And how many cooperating defendants have

you debriefed or interviewed?

A: Probably more than a hundred.

Q: Have you interviewed—how many defendants

have you debriefed or interviewed who were

actually involved in this case?

A: At least ten.

3Citations to J.A. __ refer to the Joint Appendix filed by the parties

upon appeal. 

4 UNITED STATES v. JOHNSON
Q: Have most of those interviews occurred before

or after the initiation of the wiretap?

A: Most of them occurred after.

Q: Are you familiar with the street terms

used—and I’m assuming they change from dayto-day, but are you familiar with the street

terms typically used by those involved in the

drug trade?

A: Yes I am.

. . . .

Q: All right. Based on your investigation thus far,

prior to the wiretap and now after the wiretap,

what did—do the terms—what did Mr. Johnson’s part of the conversation midway down the

page when they are talking about "hitting ya",

what did that mean to you?

J.A. 91-93. Over the defense counsel’s renewed objection,

Agent Smith was permitted to answer: "He’s referring [SIC]

that when he is able to obtain cocaine, he’ll let Mr. Pickens

know so they can purchase it or so he can purchase it." J.A.

93. When asked how he knew that cocaine was the subject of

the conversation, Agent Smith replied, "[j]ust based on other

calls." Id. Agent Smith translated "[s]omebody hit me on anything I’ll let you know what’s happening," to mean "when

he’s [Johnson’s] able to get cocaine and drugs, he will call

Mr. Pickens and let him know." J.A. 95. Despite continually

premising Agent Smith’s testimony on his "training and experience," the government never proffered Agent Smith as an

expert witness. Instead, the officer continued to offer his opinion regarding the nature of the phone calls between Pickens

and Johnson. Although he maintained that the conversations

referenced drug deals, Agent Smith admitted that "there was

UNITED STATES v. JOHNSON 5
no information that . . . Mr. Pickens and Mr. Johnson actually

conducted a drug transaction" during the time period that the

phone calls took place. J.A. 104. He further testified that he

was not the officer who conducted the surveillance in the

investigation and could not offer testimony regarding what the

surveillance uncovered.

In addition to Agent Smith’s testimony, the government

called Holloway, a co-defendant with an extensive prior

record who pled guilty to conspiracy in the case, to testify

against Johnson. Holloway testified that he had known Johnson since 1998, and that he began to buy drugs from him in

Anderson, South Carolina in the summer of 2003. Though he

pooled the purchase money with Hull, another drug dealer in

the area, Holloway testified that he went alone to transact

deals because Johnson did not trust Hull. Holloway told the

jury that over the next couple of years he purchased approximately forty to forty-five kilograms of cocaine from Johnson,

half a kilogram to four kilograms per transaction. The drug

deals occurred in Greenville, South Carolina or Atlanta, Georgia and the surrounding area. Holloway testified that the deals

took place at a Wendy’s parking lot on several occasions, as

well as a Red Lobster parking lot and an apartment complex.

During one deal in July 2005, Holloway and Johnson had a

conversation on the quality of the cocaine being supplied and

the price. Holloway alleged Johnson’s drugs were bad

because they did not yield as much product as expected and

that the price per kilogram was too high, thereby harming his

ability to make a profit on it. In December 2005, during the

last deal that took place between the two, Holloway attempted

to get his money back from Johnson for a bad batch of

cocaine but was unable to do so. Holloway testified that he

purchased drugs from a different supplier until his arrest in

August 2006.

Hull, another co-defendant, testified that he was supplied

drugs by Holloway and that Holloway’s source was Johnson.

Although Hull asserted he never went along for drug transac6 UNITED STATES v. JOHNSON
tions, he stated he had met Johnson in the course of dealing

cocaine in Anderson, South Carolina, and even went to a strip

club in Atlanta with Holloway and Johnson. Hull therefore

pooled drug purchase money with Holloway to buy from

Johnson but was not permitted to buy directly from him. Hull

testified that despite complaints regarding the quality of

cocaine Johnson supplied, Holloway continued to purchase

drugs from Johnson because he was the cheapest supplier.4

DEA Agent Jarvis Reeder5 ("Agent Reeder") testified to

further inconsistencies in the testimony given by Holloway

and Hull. Agent Reeder, who conducted a post-arrest interview with Hull, and wrote a report based on that interview,

testified that Hull stated he taught Holloway how to cook

cocaine into crack, whereas Holloway testified that Johnson

taught him how to reduce cocaine to crack. Agent Reeder also

testified that Hull stated in his interview that he and Holloway

met Johnson in Atlanta, but never mentioned meeting him in

Anderson, South Carolina, as Hull related in his testimony.

The final witness the government called against Johnson

was Timpson. Prior to his testimony, defense counsel objected

pursuant to Rule 404(b), arguing that Timpson’s testimony

was inadmissible character evidence. The district court overruled the objection and gave the jury an instruction on the

limited purpose of the prior acts testimony. "For example, this

evidence may be — may properly be considered to prove the

defendant’s motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake or accident. In this

instance the government seeks to offer the testimony to prove

knowledge and intent." J.A. 263.

4This testimony directly contradicts Holloway’s testimony that an

unnamed drug trafficker called "White Boy" was his cheapest supplier.

J.A. 213. 

5Although initially called as a government witness, counsel for Johnson

called Agent Reeder to testify regarding his interview with Hull and the

inconsistencies between the information he collected in the interview and

Hull’s testimony at trial. J.A. 518–547. 

UNITED STATES v. JOHNSON 7
Timpson is currently serving a prison sentence imposed in

2001 in North Carolina for possession of crack cocaine. He

testified that in November of 1998 he purchased a kilogram

of cocaine per week from Johnson. Their drug transactions

followed a pattern. Timpson would deliver the purchase

money to Johnson at his rim shop, East Cost Wheels, in

Greenville, South Carolina. Johnson would then call Timpson

and arrange for delivery of the cocaine at Bailey’s Sports Bar

in Greenville. This alleged pattern lasted for three to four

months, until Johnson moved to Atlanta. Timpson was

arrested in January 2000, and though he cooperated with the

authorities at the time of his arrest, he did not tell the agents

that Johnson had been his drug supplier, and instead gave the

names of two other individuals. After Timpson’s testimony,

the district court ruled his testimony admissible under Rule

404(b).

Johnson called several witnesses to testify regarding his

mode of employment. Mark Rice testified that Johnson was

a broker for his rehab real estate business in Atlanta, and additionally sold household appliances in association with their

business. Gerald Stitton testified that Johnson was a broker

for his car dealership, and would bring him clients on a regular basis for a referral fee. Hansel Little testified that he had

purchased real estate, a car, and several appliances from Johnson over the course of their friendship, and he had even

employed Johnson in his personal training business for several months.

Johnson then took the stand in his own defense and asserted

that not only had he never been involved with drugs before,

but he had no prior record of criminal activity, and further had

been employed as a United States Marine, a South Carolina

State Trooper, and an entrepreneur with several business ventures in the real estate and auto industry. Johnson also called

two close friends, Thorpe Jacob, his dentist, and Alan Forrest,

a Georgia State Trooper, as well as his fiance, Christina

Eschleman, a university administrator, and his mother, who

8 UNITED STATES v. JOHNSON
owned a funeral home in South Carolina, to testify regarding

his lifestyle and character.

The jury convicted Johnson on the sole conspiracy count

and he was sentenced to 220-months’ imprisonment. This

appeal followed.

II.

On appeal, Johnson argues that the district court erred in

admitting the testimony of Agent Smith and Timpson under

Rule 701 and Rule 404(b) respectively. We address each

argument in turn.

A.

This Court reviews a district court’s evidentiary ruling for

abuse of discretion. United States v. Perkins, 470 F.3d 150,

155 (4th Cir. 2006) (citing United States v. Gray, 405 F.3d

227, 238 (4th Cir. 2005)). "A court has abused its discretion

if its decision ‘is guided by erroneous legal principles’ or

‘rests upon a clearly erroneous factual finding.’" Brown v.

Nucor Corp., 576 F.3d 149, 161 (4th Cir. 2009) (quoting

Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.

1999)).6

Evidentiary rulings are subject to harmless error review

under Federal Rule of Criminal Procedure 52, such that "in

order to find a district court’s error harmless, we need only be

able to say ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole,

6The government argues that plain error review applies to these issues

because Johnson’s counsel did not object with sufficient specificity under

Rule 103(a)(1), where she only objected to the agent’s testimony as "speculative" and not on the basis of Rule 701. Resp’t. Br. 11, n. 9. Because

there were many objections throughout Agent Smith’s testimony which

were sufficient to provide the district court with notice of the grounds for

the objection, we decline to apply plain error review. 

UNITED STATES v. JOHNSON 9
that the judgment was not substantially swayed by the error.’"

United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)

(quoting United States v. Heater, 63 F.3d 311, 325 (4th Cir.

1995)).

B.

Johnson argues on appeal that Agent Smith’s testimony

was erroneously admitted by the district court. Because Agent

Smith was not proffered as an expert, Johnson argues that his

testimony was only admissible as lay opinion testimony. Yet,

Johnson asserts that because Agent Smith’s opinions regarding the calls were not based on his own perception, but rather

on his experience and training, his testimony cannot be considered a lay opinion for purposes of Rule 701. We agree.

Rule 701 permits lay opinion testimony where:

if the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences

is limited to those opinions or inferences which are

(a) rationally based on the perception of the witness,

(b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue, and

(c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701. This Court explored the line between Rule

701 and 702 in Perkins. We held "lay opinion testimony must

be based on personal knowledge." Perkins, 470 F.3d at 155-

56. In order to adequately build a foundation for lay testimony, it must be "based on the perception of the witness."

TLT-Babcock Inc. v. Emerson Elec. Co., 33 F.3d 397, 400

(4th Cir. 1994) (citing Fed. R. Evid. 701). "A critical distinction between Rule 701 and Rule 702 testimony is that an

expert witness ‘must possess some specialized knowledge or

skill or education that is not in possession of the jurors.’" Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d

10 UNITED STATES v. JOHNSON
200, 203 (4th Cir. 2000) (citation omitted). Therefore "[a]t

bottom . . . Rule 701 forbids the admission of expert testimony dressed in lay witness clothing." Perkins, 470 F.3d at

156.

Here, we have exactly what Rule 701 forbids. The government called Agent Smith to testify regarding his interpretation

of the wiretapped phone calls between Pickens and Johnson.

In response to the defense’s objection, the government elicited testimony on Smith’s credentials and training, not his

observations from the surveillance employed in this case. Furthermore, Agent Smith admitted that he did not participate in

the surveillance during the investigation, but rather gleaned

information from interviews with suspects and charged members of the conspiracy after listening to the phone calls. His

post-hoc assessments cannot be credited as a substitute for the

personal knowledge and perception required under Rule 701.

The government’s reliance on Perkins to support its argument in this case is misplaced. In Perkins, we found no abuse

of discretion where the district court admitted the testimony

of police officers regarding whether a fellow officer’s use of

force was reasonable at a particular crime scene. Though the

Court acknowledged that "the line between lay opinion testimony under Rule 701 and expert testimony under Rule 702 is

a fine one," 470 F.3d at 155, the basic mandate that Rule 701

testimony be based on personal knowledge remained a guiding principle. In that instance, where the testifying officers

were at the scene in question, their opinions were based on

their "contemporaneous perceptions" and therefore satisfied

the personal knowledge requirement of Rule 701. Id. at 156.

By contrast, other officers who did not witness the officer’s

use of force could not provide lay testimony about whether or

not it was reasonable, as they would be rendering expert opinion based on second-hand information. Id.

One of our sister circuits has considered this issue in an

analogous case. In United States v. Peoples, 250 F.3d 630 (8th

UNITED STATES v. JOHNSON 11
Cir. 2001), the Eighth Circuit found that the officer in question was erroneously permitted to give her opinion regarding

the meaning of plain English words and phrases when she

gave "a narrative gloss that consisted almost entirely of her

personal opinions of what the conversations meant." Id. at

640. Importantly, the Court found that the agent "lacked firsthand knowledge of the matters about which she testified. Her

opinions were based on her investigation after the fact, not on

her perception of the facts." Id. at 641.

Here, Agent Smith did not testify to directly observing the

surveillance or even listening to all of the relevant calls in

question. Instead, much of his testimony was what should

have been considered that of an expert, as he consistently supported his interpretations of the phone calls by referencing his

experience as a DEA agent, the post-wiretap interviews he

conducted, and statements made to him by co-defendants.

None of this second-hand information qualifies as the foundational personal perception needed under Rule 701. As such,

the district court abused its discretion in admitting Agent

Smith’s testimony as a lay witness under Rule 701.

C.

The government argues that even if the district court erred

in admitting Agent Smith’s testimony under Rule 701, that

error is harmless because (1) the testimony could have been

admitted under Rule 702, and (2) there was sufficient evidence of Johnson’s guilt independent of the Agent’s testimony. We disagree.

1.

Rule 702 permits expert testimony where it "will assist the

trier of fact to understand the evidence or to determine the

fact in issue." Fed. R. Evid. 702. Experts must have specialized knowledge that will assist the trier of fact, and the knowledge, skill, experience, training and education that qualifies

12 UNITED STATES v. JOHNSON
them on the subject of their testimony. Id. The testimony must

be based on sufficient facts or data, and the witness must use

reliable principles and methods, and apply those principles

and methods reliably to the facts of the case. Id. It is well

established that narcotics officers can be appropriately designated as experts on the drug market and drug jargon. See

United States v. Hopkins, 310 F.3d 145, 150-51 (4th Cir.

2002) (affirming introduction of expert testimony about drug

trade).

This Court outlined the appropriate manner by which narcotics officers should be qualified as experts in United States

v. Wilson, 484 F.3d 267 (4th Cir. 2007). In that case, the

defendant objected at trial to a detective being designated an

expert witness where he failed to provide adequate support

and methodology regarding his opinions on drug jargon and

code. The Court found that the detective had adequately stated

his methodology for deciphering the code used by the targets

of the drug investigation. Id. at 277. In affirming the district

court, we noted that the detective pointed to a pattern that

emerged over time regarding certain words that were used out

of the context of their dictionary meanings. Id. Although most

of the detective’s testimony was found to be properly admitted, we cautioned,

[A]lthough the district court erred in failing to

exclude Seabolt’s testimony when that testimony

either interpreted language that needed no interpretation, or when Seabolt did not adequately explain his

methodology in reaching a questionable interpretation, the net effect was harmless because the overwhelming majority of Seabolt’s expert testimony

was properly admitted.

Id. at 278.

In the case at bar, it is clear that Agent Smith had sufficient

expertise to qualify as a person knowledgeable in the field of

UNITED STATES v. JOHNSON 13
narcotics. On two occasions, he enumerated his experience

both as a DEA agent and in conducting wiretap investigations.

However, the Supreme Court has made clear that in addition

to having the requisite specialized knowledge, the expert’s

testimony must "be the reliable product of reliable principles

and methods that are reliably applied to the facts of the case."

Id. at 274 (quoting Fed. R. Evid. 702 advisory committee’s

note); see also, Kumho Tire Co. v. Carmichael, 526 U.S. 137,

141-42 (1999) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Although Agent Smith

repeatedly indicated that he had the expertise to testify regarding drug jargon and the drug trade generally, he provided virtually no methodology or guiding principles that would enable

him to decode the wiretapped phone calls in this case.

As such, we cannot say with any "fair assurance" that

Agent Smith’s testimony would have been admitted as expert

testimony. See Brooks, 111 F.3d at 371. By the government’s

own admission, the phrases Smith interpreted "were not typical drug code" and "did not have common meaning in the

drug world," Resp’t Br. 21 n.15 (internal quotation marks

omitted), which highlights the need for more information as

to how Smith’s experience in drug enforcement would qualify

him as an expert in interpreting uncommon drug-related

slang. In these circumstances, the government has failed to

meet its burden of establishing that the district court would

have admitted this somewhat unique testimony under Rule

702 based on Agent Smith’s general drug-investigation experience alone. See United States v. Curbelo, 343 F.3d 273, 278

(4th Cir. 2003)("[F]or nonconstitutional errors, the Government must demonstrate that the error did not have a substantial and injurious effect or influence in determining the jury’s

verdict.") (internal quotation marks and citation omitted).

2.

Beyond arguing the district court’s error was harmless

under Rule 702, the government argues that there was suffi14 UNITED STATES v. JOHNSON
cient evidence, in addition to Agent Smith’s testimony, which

supported Johnson’s conviction. However, because Agent

Smith’s testimony leant critical credibility bolstering the government’s reliance on the testimony of three convicted drug

dealers (who often contradicted themselves), we cannot agree,

and find the district court’s error was not harmless.

In order for an evidentiary ruling to be harmless, we must

find that the judgment was not substantially swayed by the

error. See Brooks, 111 F.3d at 371. Often in criminal cases

where there is a significant amount of evidence which inculpates a defendant independent of the erroneous testimony, the

error is considered harmless. See United States v. Banks, 482

F.3d 733, 741-42 (4th Cir. 2007). However, in this instance,

the evidence against Johnson cannot be viewed independently

from Agent Smith’s testimony.

Both Holloway and Hull, co-defendants in this case, testified against Johnson. Each of them has a criminal history dating back over ten years, and each sought sentencing

consideration for their cooperation in testifying. Though Holloway offered direct testimony regarding Johnson’s alleged

involvement in the conspiracy, his testimony was contradicted

by Hull on several points. For example, Holloway testified

that he always went alone to meet Johnson and that Johnson’s

prices were expensive. By contrast, Hull testified that he and

Holloway took a trip to Atlanta with Johnson and that Holloway dealt with Johnson because he was the cheapest supplier. Hull also testified that he did not have direct knowledge

of Johnson’s alleged drug involvement because he never witnessed a transaction take place. Furthermore, Agent Reeder’s

testimony highlighted further inconsistencies, such as whether

Hull or Johnson taught Holloway to cook crack, and whether

or not Hull ever met Johnson in Anderson, South Carolina.

Timpson’s testimony was also questionable. Although he

claimed to have cooperated with the authorities regarding his

drug involvement when he was sentenced in 2000, he did not

UNITED STATES v. JOHNSON 15
name Johnson as one of his suppliers. Instead, he named two

other individuals, despite allegedly purchasing drugs from

Johnson on a weekly basis for at least three months.

Furthermore, the government offered no direct evidence

that linked Johnson to the charged conspiracy aside from the

testimony of Holloway. No drugs were found, no financial

evidence was presented and there was no surveillance that

captured Johnson engaging in illicit activity, despite the

extensive investigation mounted by the local DEA.

Thus, where three drug-dealer witnesses had considerable

credibility issues in a case with little additional evidence,

Agent Smith’s testimony leant credence to their claims

because his wiretap interpretations supported their testimony

that Johnson was in fact involved in drug dealing. Had Agent

Smith’s testimony been excluded, the jury would have

weighed the testimony of Johnson, a veteran and former law

enforcement officer with no criminal record, against that of a

convicted drug dealer and two co-defendants with long rap

sheets. Where Agent Smith’s testimony buttressed evidence

against Johnson that was otherwise weak, "we cannot conclude that the evidence was unimportant or was not a substantial factor in the jury’s verdict." United States v. Grinage, 390

F.3d 746, 751 (2nd Cir. 2004); see also Peoples, 250 F.3d at

642 (holding the Rule 701 error was not harmless where the

jury may have found the testimony of a co-conspirator "inadequate to support a guilty verdict beyond a reasonable doubt

had it not been buttressed by [the agent’s] supporting information and opinions.").

We thus cannot find that admission of Agent Smith’s testimony was harmless where it bolstered the scant, conflicting,

and not entirely credible evidence against Johnson.

III.

Johnson next argues that Timpson’s testimony was not

properly admitted under Rule 404(b) because it was not rele16 UNITED STATES v. JOHNSON
vant to nor necessary to prove Johnson’s intent or knowledge

in the case. He further argues that this error was not harmless

due to the paucity of evidence before the court linking him to

the conspiracy. We agree.

A.

Rule Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order

to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident . . . . 

Fed. R. Evid. 404(b). Our Circuit’s jurisprudence concerning

the application of Rule 404(b) has evolved by addressing the

tension in cases involving evidence of prior drug transactions.

Compare United States v. Mark, 943 F.2d 444, 448 (4th Cir.

1991) (holding evidence of prior drug-transaction testimony

admissible under Rule 404(b) to prove knowledge and intent

in drug conspiracy case) with United States v. Hernandez, 975

F.2d 1035, 1040 (4th Cir. 1992) (holding prior drugtransaction testimony inadmissible under Rule 404(b) in drug

conspiracy case). As a result we endeavored to further clarify

"the rule’s [elusive] underlying principles" in United States v.

Queen, 132 F.3d 991, 995 (4th Cir. 1997). We held that evidence of prior bad acts under Rule 404(b) is admissible when

the following criteria are met:

(1) The evidence must be relevant to an issue, such

as an element of an offense, and must not be offered

to establish the general character of the defendant. In

this regard, the more similar the prior act is (in terms

of physical similarity or mental state) to the act

being proved, the more relevant it becomes. (2) The

UNITED STATES v. JOHNSON 17
act must be necessary in the sense that it is probative

of an essential claim or an element of the offense. (3)

The evidence must be reliable. And (4) the evidence’s probative value must not be substantially

outweighed by confusion or unfair prejudice in the

sense that it tends to subordinate reason to emotion

in the factfinding process.

Queen, 132 F.3d at 997.

Johnson argues that Timpson’s testimony is not admissible

under Rule 404(b) because the alleged prior drug transaction

is not sufficiently related to the conspiracy charged such that

it could be considered probative of intent or knowledge or

necessary to prove those elements of the offense. The government counters that not only does Timpson’s testimony satisfy

the four criteria outlined in Queen, but the district court also

provided a limiting instruction in this case, which provided

"additional protection against the pitfalls" of admitting the

character evidence that the rule seeks to exclude. See Id. The

meager protection afforded by the court’s limiting instruction,

however, cannot outweigh the prejudice incurred by evidence

that does not meet the mandate of the rule in the first instance.

In order for evidence of prior drug transactions to be admissible in a drug conspiracy case, the prior acts must be relevant

to the charged offense. Thus, we have repeatedly found that

the prior act which is alleged to be probative of an element of

the crime must be "sufficiently related to the charged

offense." Mark, 943 F.2d at 448 (internal quotation marks

omitted) (quoting United States v. Rawle, 845 F.2d 1244,

1247 n.3 (4th Cir. 1988)); Hernandez, 975 F.2d at 1039.

Therefore, the more closely the prior act is related to the

charged conduct—either in time, pattern, or state of

mind—the more probative it is of the defendant’s intent or

knowledge in relation to the charged conduct. See Rawle, 845

F.2d at 1247; Mark, 943 F.2d at 448; Hernandez, 975 F.2d at

1039. The fact that a defendant may have been involved in

18 UNITED STATES v. JOHNSON
drug activity in the past does not in and of itself provide a sufficient nexus to the charged conduct where the prior activity

is not related in time, manner, place, or pattern of conduct.

In Rawle, we held that the prior bad act evidence was

"properly introduced to show knowledge, common scheme or

plan," where the defendant had transported marijuana on I-95

in empty tractor trailers in the past and was charged in a similar scheme. 845 F.2d at 1245-46. Because similar methods

were used, such as placing paper products in the back of the

trailer and creating false bills of lading to conceal the contraband, "there was sufficient similarity between these prior bad

acts and the alleged acts of the defendant in the case at bar."

Id. at 1248. In Mark, we found the character testimony was

necessary to link the defendant to the co-defendants by showing he "was not an innocent friend of his codefendants but

rather was a major cocaine distributor responsible for the

transaction at issue." 943 F.2d at 448. The witness testifying

against Mark corroborated another witness’ testimony by

detailing how the defendant was able to obtain the drugs

which he later sold to his codefendants. Id. Mark’s prior drug

transactions occurred in the same state and during the same

year he was arrested. Id. at 446. Because Mark testified on his

own behalf regarding his innocuous relationship to the codefendants, the "extrinsic act evidence . . . was sufficiently

related to the charged offense and clearly relevant" to prove

his intent and knowledge in the case. Id. at 448 (emphasis

added).

In both Rawle and Mark the prior bad act evidence was

related to the charged drug crimes in time and manner. By

contrast, the testimony offered in Hernandez only bore a

"slight relationship to the acts charged in the indictment,"

where the witness testified regarding the defendant’s prior

statements about a recipe for cooking drugs and then selling

them in New York six months prior. 975 F.2d at 1038, 1040.

Hernandez was charged with conspiracy to distribute drugs in

the Washington, D.C. area and testified that she was in no

UNITED STATES v. JOHNSON 19
way involved in the conspiracy. The testimony in Hernandez,

therefore, did not illustrate anything regarding the defendant’s

intent to sell drugs in Washington nor was it closely related

in time or place to the charged offense. Id. at 1039 ("Evidence

to show intent is not admissible when the unrelated bad act is

tenuous and remote in time from the charges in the indictment.").

Just as the informant’s testimony was "tenuous and remote"

in Hernandez, so too was the evidence presented by Timpson’s testimony. The drug transactions that Timpson alleged

he conducted with Johnson occurred in 1998, nearly five

years before the charged conspiracy allegedly began in this

case. Not only was the testimony remote in time, but Timpson

did not link Johnson to any of the other co-defendants. "In

Mark, the trial court pointed out that the evidence of prior bad

acts disclosed how the defendant got the drugs that he was

charged with selling." Hernandez, 975 F.2d at 1040. No such

nexus can be found in Timpson’s testimony. Instead, Timpson

merely described the transactions he alleged that he conducted

with Johnson, which were neither directly nor indirectly

related to the charged conspiracy. Even the description of the

nature of the drug transaction—exchanging money at Johnson’s rim shop before meeting at a bar to exchange the

drugs—did not relate to the manner in which Holloway

described transacting business with Johnson, such that this

case could be said to fit within the circumstance described in

Rawle. We therefore cannot find that Timpson’s testimony

was sufficiently related to the charged offense to render it

adequately relevant to prove intent or knowledge. When, as

here, the proponent of Rule 404(b) evidence cannot demonstrate that the evidence satisfies our four-part test for admissibility, we must notice error; in such circumstances, the Rule

has been administered impermissibly "to convict a defendant

on the basis of bad character, or to convict him for prior acts,

or to try him by ambush." Queen, 132 F.3d at 997.

20 UNITED STATES v. JOHNSON
B.

Thus, we find that the district court erred in admitting Timpson’s testimony under Rule 404(b), despite the district

court’s limiting instruction. Furthermore, we cannot say that

this error was harmless, given the overall weakness of the

government’s case against Johnson, and the fact that Johnson

testified in his own defense as well as called numerous witnesses to support his innocence.

As stated above, the government had scant evidence against

Johnson in this case. Agent Smith translated four vaguelyworded phone calls which led to Johnson’s arrest. Hull and

Holloway told conflicting stories regarding the nature of their

dealings with Johnson. Agent Reeder further illustrated the

discrepancies between Hull and Holloway’s accounts, discrediting the government’s already weak case against Johnson. In addition, Johnson called seven witnesses to testify

about his legitimate source of income, both in the form of

employers and clients. Moreover, his fiance, a university

administrator, and his mother, who ran a family funeral home

in South Carolina, testified that Johnson was not and had

never been involved in drugs. When viewed in light of the

paucity of evidence the government presented, and the

strength of the case Johnson presented, Timpson’s testimony

cannot be said to be harmless where it provided a powerful

allegation linking Johnson to a totally unrelated drug-dealing

conspiracy that took place several years before the investigation that led to Johnson’s indictment.7

 In sum, the government

7

It also cannot be said that the 404(b) error is harmless because Johnson

"opened the door" to character evidence by taking the stand and disavowing any involvement in drug activity. Because Timpson was called in the

government’s case in chief, the error occurred prior to Johnson taking the

stand, making it impossible to make a post-hoc assessment as to whether

Johnson would have testified without the damaging, inculpatory testimony

of Timpson. The record further supports this inference. See J.A. 578-607:

The government was allowed a stretch with Timpson, who’s been

incarcerated so long, with what he thought he knew from way

UNITED STATES v. JOHNSON 21
has failed to carry its burden of demonstrating — let alone

advance any argument at all—that the Timpson testimony

"did not have a substantial and injurious effect or influence on

the result." United States v. Lynn, 592 F.3d 572, 585 (4th Cir.

2010) (internal quotation marks omitted). Consequently, we

must reverse.

IV.

For the foregoing reasons, Johnson’s conviction is reversed

and the case is remanded for proceedings consistent with this

opinion.

REVERSED AND REMANDED

back in the day and we’re not allowed the same latitude with

respect to us being able to offer a credible defense for Mr. Johnson who’s sitting back here fighting for his life. 

J.A. 586 (Att’y. for Johnson). 

. . . 

Well, I think I need to testify to show my character. 

J.A. 606 (Johnson Testimony). 

22 UNITED STATES v. JOHNSON