2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-17-2009

USA v. Lee

Precedential or Non-Precedential: Precedential

Docket No. 07-1406

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 07-1406, 07-4643

 

UNITED STATES OF AMERICA

v.

JELANI A. LEE

a/k/a

C-LO

a/k/a

OMAR MARTIN

Jelani A. Lee,

 Appellant

 

On Appeal from the District Court 

for the Eastern District of Pennsylvania

(D.C. No. 2-05-cr-00216-001)

District Judge: Honorable Lawrence F. Stengel

 
2

Argued March 10, 2009

Before: FUENTES, CHAGARES, and ALDISERT, 

Circuit Judges

(Opinion Filed: July 17, 2009)

Michael N. Huff, Esq. (ARGUED)

1333 Race Street

Philadelphia, PA 19107

Attorney for Appellant

Patrick L. Meehan, Esq.

Mark S. Miller, Esq. (ARGUED)

Robert A. Zauzmer, Esq.

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Attorneys for Appellee

 

OPINION OF THE COURT

 

FUENTES, Circuit Judge:

Jelani Lee appeals from his conviction for possession

with intent to distribute cocaine base (“crack”) in violation of 21

U.S.C. § 841. Lee’s principal argument is that the District Court

should have declared a mistrial after the jury discovered an

inculpatory document that was never provided to defense
3

counsel. Because we find that Lee’s defense was irredeemably

undermined by this discovery, we conclude that the jury’s

verdict is not one in which we can have confidence.

Accordingly, we will vacate Lee’s conviction and remand for a

new trial.

I. 

A.

Early in the evening of January 7, 2005, Lancaster police

officers stopped the car Lee was driving. Co-defendants

Tommie Spurill and James Kollore were also in the car, as was

Linsey Boyer, a woman Spurill met at a bar the previous

evening. The occupants of the car were searched and the

officers found crack cocaine in Boyer’s undergarments. Boyer

claimed that the drugs belonged to Lee and Kollore, and all four

were arrested.

When she was interviewed by the police, Boyer told the

officers that Spurill had called her cell phone earlier in the day

from a local motel. When the officers called the number stored

in Boyer’s phone, a representative from a local Red Carpet Inn

answered. After his arrest, Lee was searched and the officers

found keys with tags reading “34” and “42” in Lee’s pocket.

Lee told the officers that he was from New York, but that his

address in Lancaster was 402 South Queen Street. 

The officers went to the Red Carpet Inn and interviewed

Kalpana Patel, one of the franchise owners. She provided the

officers with a registration card for room 42. The front of the

card indicated that the room had been rented to “Omar Martin”

for one night on January 3, 2005, and listed 402 South Queen

Street, Lancaster as Martin’s address. The back of the card

indicated that Martin had extended his stay through January 7,

but the record is silent about whether the officers were aware of

the back of the card. The officers showed Patel a photo array

and she identified Lee as someone she knew. Based on this

information, the officers obtained a warrant to search room 42.
4

There, the officers found substantial quantities of crack cocaine,

cash, a digital scale, and plastic baggies.

The Lancaster Police turned the case over to federal

authorities and Lee, Spurill, and Kollore were indicted for

possession of 32.8 grams of crack with intent to distribute. Lee

was also indicted for possession of 200.7 grams of crack with

intent to distribute. The Lancaster Police made photocopies of

the evidence they had obtained for the United States Attorney’s

Office. However, they only photocopied the front of the hotel

registration card, which indicated that “Martin” had rented room

42 for one night on January 3, 2005. The prosecutor then

provided this evidence to defense counsel, which included a

photocopy of only the front of the registration card.

B.

At trial, Lee attempted to show that “Martin”—whether

identified as Lee or someone else—had checked out of the Red

Carpet Inn days before drugs were found. Patel provided the

primary testimony linking Lee to the Red Carpet Inn. She

testified as follows: On about January 7, 2005, Lancaster police

officers came to her hotel with keys to rooms 34 and 42. The

key to room 34 had been missing for a few weeks. Patel

answered affirmatively when asked: “Room 42 on the early

morning when the police came out and interviewed you had that

room been rented at that time?” When asked who was staying

in the room, Patel testified that “I think—maybe—person

staying for two or three days, I don’t remember that.” June

2008 Supp. App. at 386. All Red Carpet Inn guests are required

to fill out a registration card. 

After this testimony, counsel for the Government

removed the original—double sided—Red Carpet Inn

registration card from an envelope and handed it to Patel. Patel

identified the card as the registration card for room 42 and

testified that the name on the card was “Omar Martin.” Martin

wrote on the card that his address was 402 South Queen Street
5

in Lancaster. Patel filled in the arrival date of January 3, 2005.

Nothing was written on the line next to “departure date,” but the

numeral “1” was written next to “# of days.” When asked about

the significance of the blank next to “departure date,” Patel

responded, “I just write it down, you know, number of the days,

so I writed [sic] it down, one.” June 2008 Supp. App. at 391.

Martin had previously rented room 34, but Patel did not

remember when. Martin told her that he lost the key to room 34.

In addition, Patel testified that the police came back the

next day and showed her photographs. She picked one of the

photographs as someone she knew. 

When Patel was cross-examined by defense counsel, she

repeatedly testified that the registration card indicated that

Martin stayed for only one day, January 3, 2005. Patel

acknowledged that she was the one who filled in the number of

days Martin had stayed. If a guest wanted to stay longer he

would let Patel know: “If they wanted to stay—you

know—longer than one night, they’re telling us.” June 2008

Supp. App. at 409. She would then indicate that a guest had

asked to stay longer and paid for the extra nights by marking it

on the registration card. However, she did not have a

registration card indicating that Martin was staying at the hotel

at the time the drugs were found. Guests did not check out

when they were ready to leave; they paid in advance and simply

left at the end of their stays. By the time of trial, Patel testified

that she did not specifically remember Lee, but she did recall

identifying someone.

The Government also presented evidence that keys

marked “34” and “42” were found when Lee was searched, that

Lee had claimed 402 South Queen Street—an apartment

complex—as his local address, and that Spurill had made a

phone call from the Red Carpet Inn on the afternoon of January

7.

The parties stipulated that two bags of cocaine base were
6

recovered from Boyer. The smaller bag contained 7.5 grams of

cocaine base divided into nineteen baggies. The larger bag

contained 25.3 grams of cocaine base divided into forty-five

baggies. The parties also stipulated that 54.1 grams of cocaine

base divided into 100 baggies were recovered from a backpack

in Room 42, and that 146.6 grams of cocaine base were

recovered from bags under the bed in Room 42. 

C.

Just before deliberations began, the jury was provided

with the trial exhibits, including the original copy of the hotel

registration card. During its deliberations, the jury asked the

following question: “What is the information on the back of the

registration card in pencil?” June 2008 Supp. App. at 428. This

was the first time the parties, their counsel, or the District Court

realized that the registration card was a double-sided document.

The back of the card contained dates handwritten by an

unidentified person, suggesting that Martin had been registered

in Room 42 when the drugs admitted against Lee were found

there. This information completely undermined Lee’s defense

that he was not in the room on January 4, 5 or 6, 2005.

Lee objected that he was not provided the back of the

card before trial and requested a mistrial. The District Court

denied the motion, finding that “I don’t think that if there is any

problem there, it’s certainly not anything that can’t be cured by

an instruction and—and juries follow these instructions all the

time and the law presume[s] they do.” June 2008 Supp. App. at

434.

The District Court then called the jury into the courtroom

and gave the following instruction: 

I have examined the—both sides of the

document and I can instruct you and will instruct

you that there has been no testimony as to the

meaning of the notations on the back of the card.

The testimony only had to do with the document
7

as represented on the front of the card.

And there is no evidence before you and

no testimony as to the meaning of the notations on

the back of the card.

And I’m going to direct you to disregard

the notations on the back of the registration card

and not consider that as part of the evidence in the

case when you’re evaluating the evidence and

deliberating on your verdict. 

June 2008 Supp. App. at 435.

II.

Lee claims that the Government’s failure to provide the

reverse of the registration card was a violation of Federal Rule

of Criminal Procedure 16, regarding criminal discovery, that

could only be remedied through a new trial. A trial court’s

remedy for a discovery violation under its supervisory powers

is reviewed for abuse of discretion while factual findings upon

which the decision was based are reviewed for clear error.

Gov’t of Virgin Islands v. Fahie, 419 F.3d 249, 258 (3d Cir.

2005).

A.

Rule 16 provides that: 

Upon a defendant’s request, the government must

permit the defendant to inspect and to copy or

photograph books, papers, documents, data,

photographs, tangible objects, buildings or places,

or copies or portions of any of these items, if the

item is within the government’s possession,

custody, or control and: (i) the item is material to

preparing the defense; [or] (ii) the government

intends to use the item in its case-in-chief at trial.

Fed. R. Crim. P. 16(a)(1)(E).
1

 The United States Attorney’s Office did not have actual

physical possession of the original registration card until the

time of trial. However, the Government admits that the original

card was sufficiently within its possession to trigger Rule 16’s

disclosure requirements. See United States v. Risha, 445 F.3d

298, 303-06 (3d Cir. 2006) (setting forth test for determining

whether federal prosecutor has constructive possession of

evidence held by local agents). Indeed at a pretrial hearing, the

Government asserted that a Lancaster Police Detective was the

“prosecuting officer” and that “[i]t would be no different than in

any other case where we have a Federal agent who is the case

agent.” June 2008 Supp. App. at 6.

2

 “It is ordinarily the responsibility of counsel to check

the exhibits and failure to object in a timely manner can under

some circumstances constitute a waiver.” Gov’t of Virgin

Islands v. Joseph, 685 F.2d 857, 864 (3d Cir. 1982). However,

this rule is generally limited to circumstances in which defense

counsel failed to discover that entire additional documents were

sent to the jury, see, e.g., id., or that known inadmissible

8

The Government does not dispute that Rule 16 required

it to disclose the back of the registration card and that it failed

to do so before trial.1

 In fact, the Government concedes that the

reverse of the registration card “would entirely defeat Lee’s

[defense] argument.” Appellee’s Br. at 57. Instead, the

Government argues that it met its Rule 16 obligation by

providing defense counsel with access to the original exhibit

during and after trial. While the Government is correct that

defense counsel could have averted this issue by examining the

original exhibit before it was submitted to the jury, this does not

alter the fact that the Government had a duty to provide an

accurate copy before trial. Although it may be sound practice,

defense counsel is not required to inspect every exhibit at trial

to ensure that documents that appear to conform to the copies

provided by the Government are in fact identical.2

 Instead, Rule
portions of documents were not properly redacted, see, e.g.,

United States v. Strassman, 241 F.2d 784, 785-86 (2d Cir.

1957). Here, in contrast, application of this rule would require

defense counsel to search every exhibit for unknown extraneous

matter never included in copies provided by the Government.

Cf. United States v. Brandenburg, 155 F.2d 110, 113 (3d Cir.

1946) (granting defendant new trial where “[c]asual inspection

by defense counsel before [exhibits marked by the Government

with prejudicial annotations] went into . . . evidence” failed to

reveal the annotations).

9

16’s discovery requirements made it reasonable for defense

counsel to rely on the Government to provide, in the first

instance, an accurate copy of the evidence offered at trial. 

When a party fails to comply with Rule 16, the district

court is empowered to order that party to comply with the Rule,

grant a continuance, exclude the evidence, or enter other just

relief. Fed. R. Crim. P. 16(d)(2). In determining an appropriate

remedy, a district court should consider the reasons for the

party’s delay in producing the materials, including whether it

acted intentionally or in bad faith, and the degree of prejudice to

the opposing party. United States v. Ganier, 468 F.3d 920, 927

(6th Cir. 2006); see also Fahie, 419 F.3d at 258-59.

Accordingly, we must consider whether Lee was prejudiced by

the discovery violation and, if so, what remedy was required.

B.

On appeal, a new trial is warranted to remedy a discovery

violation where “‘the remedy offered by the district court was

inadequate to provide [the defendant] with a fair trial.’” United

States v. Lopez, 271 F.3d 472, 483 (3d Cir. 2001) (quoting

United States v. Miller, 199 F.3d 416, 420 (7th Cir. 1999))
3

 In Lopez we declined to specify the parameters of the

prejudice inquiry because the defendant made no effort to show

prejudice. 271 F.3d at 484.

10

(alteration in original).3 To determine whether the district

court’s remedy was adequate, “‘[t]he question is not whether the

defendant would more likely than not have received a different

verdict with the evidence, but whether in its absence he received

a fair trial, understood as a trial resulting in a verdict worthy of

confidence.’” United States v. Mitchell, 365 F.3d 215, 254 (3d

Cir. 2004) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)

(discussing standard for granting a new trial after a Brady

violation)). 

In evaluating the prejudice to Lee, we must consider

whether the discovery violation in this case caused jury

contamination. “[E]xposure to extrinsic information deprives a

criminal defendant of the protections of the Sixth Amendment,

including his right of confrontation, of cross-examination, and

of counsel.” United States v. Ofray-Campos, 534 F.3d 1, 18 (1st

Cir. 2008) (internal quotation marks omitted) (vacating

conviction because district court provided extrinsic information

to the jury during deliberations); see also Farese v. United

States, 428 F.2d 178, 180 (5th Cir. 1970) (stating that jury

“[e]xposure to evidence through discovery of secreted material

is not subject to [Sixth Amendment] safeguards”). Thus, “[i]t is

perfectly plain that the jury room must be kept free of evidence

not received during trial, and that its presence, if prejudicial, will

vitiate the verdict.” Gov’t of Virgin Islands v. Joseph, 685 F.2d

857, 863 (3d Cir. 1982) (internal quotation marks omitted)

(holding that providing jury with a signed confession that was

not admitted into evidence during deliberations violated

defendant’s due process rights). This rule equally applies to

material submitted to the jury through inadvertent attachment to

properly admitted evidence. See, e.g., Farese, 428 F.2d at 182

(finding “strong probability of prejudice” to defendant when
11

jury found cash—undiscovered by the Government or defense

counsel—hidden in a trial exhibit); United States v.

Brandenburg, 155 F.2d 110, 113 (3d Cir. 1946) (granting

defendant new trial where exhibits marked by the Government

with prejudicial annotations were sent to the jury).

The Government argues that Lee cannot demonstrate

prejudice because the reverse of the registration card was

inculpatory rather than exculpatory. If not for the discovery

violation, the Government would have used the reverse of the

registration card in formulating its case against Lee,

strengthening its position. Because the District Court instructed

the jury to ignore the back of the registration card, the

Government believes that it did not obtain the benefit of this

inculpatory evidence and that Lee was not harmed by presenting

a defense that was inconsistent with the reverse of the card.

This argument is based on the assumption that the jury was able

to follow the District Court’s instruction to disregard the reverse

of the registration card. We cannot accept that assumption in

this case. 

We do presume that juries follow their instructions. See,

e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987); United

States v. Bornman, 559 F.3d 150, 156 (3d Cir. 2009). This rule

“is a pragmatic one, rooted less in the absolute certitude that the

presumption is true than in the belief that it represents a

reasonable practical accommodation of the interests of the state

and the defendant in the criminal justice process.” Richardson,

481 U.S. at 211. However, the rule is not absolute; we will not

blindly assume that a jury is able to follow a district court’s

instruction to ignore the elephant in the deliberation room. See,

e.g., United States v. Morena, 547 F.3d 191, 197 (3d Cir. 2008)

(holding that limiting instruction was not sufficient to cure

prejudice resulting from persistent prosecutorial misconduct).

For example, in the context of a jury tainted by extra-record

material, we found that it was not reasonable to assume without

inquiry that the jury would be able to follow an instruction to
12

ignore the external material. Gov’t of Virgin Islands v.

Dowling, 814 F.2d 134, 138 (3d Cir. 1987). In Dowling, we

held that: 

Where there is affirmative reason to believe that

a member or members of the jury may have

learned extra-record information about the

underlying facts of the case . . . that has a

potential for adversely affecting the jury’s ability

to impartially decide the case on the record

evidence alone, the trial court has a duty to

determine whether the trial should be aborted or

whether the jury, with proper instructions, can be

relied upon to judge impartially and to confine its

deliberations to the record evidence. 

Id. at 138. In Dowling, the district court asked the jurors to

identify themselves if they had received extra-record

information that had rendered them incapable of giving a fair

trial to either side. Id. at 141. We held that this question was

inadequate to establish that the jurors would be able to disregard

any extra-record material they had been exposed to, and

remanded for a new trial. Id.

The risk that a jury will be unable to follow the court’s

instruction to ignore information depends on a number of factors

including the strength of the proper evidence against the

defendant, the nature of the information, and the manner in

which the information was conveyed. See Moore v. Morton,

255 F.3d 95, 119-20 (3d Cir. 2001); Dowling, 814 F.2d at 138.

Cf. United States v. Urban, 404 F.3d 754, 778 (3d Cir. 2005)

(listing factors relevant to determining prejudice in a jury

contamination case).

The Government’s evidence connecting Lee to the hotel

room, apart from the reverse side of the hotel registration card,

was relatively weak. Keys marked “34” and “42” were found

when Lee was searched, but it was undisputed that Lee was no
13

longer staying in room 34; someone who was later in a car with

Lee made a phone call from the Red Carpet Inn; and the clerk at

the Red Carpet Inn recognized Lee as someone she knew. In

contrast, the reverse of the registration card strongly supported

an inference that Lee was still renting the room when the drugs

were found. As previously stated, the Government admits that

the reverse of the registration card “would entirely defeat Lee’s

[defense] argument.” Appellee’s Br. at 57.

The nature of the information on the reverse of the

registration card and the manner in which it was conveyed also

would have made it extremely difficult for the jury to ignore.

The registration card itself was a properly admitted piece of

evidence. Unlike information obtained by reading news reports

or overhearing gossip about a defendant, this information would

have had much of the credibility of properly admitted evidence.

The timing of the jury’s discovery of the notations on the back

of the registration card also enhances the significance of the

marks. The jury discovered the card within the first few hours

of its deliberations. The jury had continued access to the reverse

of the card throughout its deliberations.

As to the nature of the information, Patel’s crossexamination focused on the absence of markings on the

registration card indicating that “Martin” extended his stay

through the date on which the drugs were found. Thus, the jury

was primed to see the information on the back of the registration

card as particularly significant; it was the missing link in the

prosecution’s case and was central to the defendant’s trial

strategy.

Under these highly unusual circumstances, we find that

it was clear error for the District Court to assume—at least

without some inquiry—that the jury would be able to follow the

Court’s instruction to disregard the back of the registration card.

The jury had already discovered the back of the registration card

and evidently considered this information to be significant. The

Government suggests that because the jury asked a question
14

about the back of the card, they must not have understood its

significance. To us, however, this question only highlights the

fact that the jury found the information on the reverse of the

card important and recognized that it was inconsistent with the

evidence presented during the trial.

Accordingly, we must consider the prejudicial effect of

the jury’s access to the reverse of the hotel registration card. In

general, a new trial is required where prejudice resulting from

a discovery violation is serious enough to adversely affect a

court’s ability to reach a just conclusion. Cf. United States v.

Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (discussing standard

for Brady violations). One way a discovery violation may do

this is by interfering with the defendant’s ability to prepare for

trial and develop an intelligent defense strategy. See, e.g.,

United States v. Lanoue, 71 F.3d 966, 976 (1st Cir. 1995)

(holding that new trial was required where use of undisclosed

Rule 16 material “unfairly surprised the defense and deprived it

of the opportunity to design an intelligent litigation strategy that

responded to the [undisclosed evidence]”), abrogated on other

grounds by United States v. Watts, 519 U.S. 148 (1997); United

States v. Padrone, 406 F.2d 560, 561 (2d Cir. 1969) (per curiam)

(granting new trial where non-disclosure of defendant’s

statement affected trial strategy); United States v. Noe, 821 F.2d

604, 607 (11th Cir. 1987) (“‘[W]here it is apparent . . . that [the]

defense strategy may have been determined by the failure to

[disclose], there should be a new trial.’” (quoting United States

v. Rodriguez, 799 F.2d 649, 651 (11th Cir. 1986)) (second and

third alterations in original)).

That is not to say that the Government may never

introduce evidence that was not disclosed before trial. Even

undisclosed evidence that upsets a defendant’s trial strategy may

be admissible if the defendant has some opportunity to adjust his

trial strategy and respond to the new evidence. Compare United

States v. Atisha, 804 F.2d 920, 925 (6th Cir. 1986) (holding that

mistrial not required when, on second day of trial, the
15

Government informed defense counsel that it would present

evidence of newly discovered overt acts to prove conspiracy

charge and there was time for counsel to prepare crossexamination; new evidence did not undermine basis of defense

strategy); United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983)

(“No denial of due process occurs if Brady material is disclosed

in time for its effective use at trial.”); and United States v.

Edmonson, 962 F.2d 1535, 1546-47 (10th Cir. 1992) (holding

that grant of a seven day continuance for defense counsel to

evaluate new evidence was a sufficient remedy); with Lanoue,

71 F.3d at 979 (circumstances in which Government used

undisclosed material “precluded [defense] counsel from using it

to any effect”); Padrone, 406 F.2d at 561 (finding prejudice

where Government made use of undisclosed inculpatory

statements after defendant took the stand and testified

inconsistently with statements); and Noe, 821 F.2d at 607

(same).

Here, Lee was deprived of any opportunity to prepare

meaningfully for trial, to design an intelligent trial strategy, or

to address the strongest evidence linking him to the drugs. First,

although the markings on the reverse of the registration card

create a clear inference that Lee extended his stay in Room 42

through the date of his arrest, Lee had no opportunity to

challenge their authenticity or significance because they were

not disclosed until after deliberations began. Second, as set

forth above, Lee’s trial strategy was to question the sufficiency

of the Government’s proof that Lee was connected with Room

42 at the time the drugs were found. The Government’s proof

on this point appeared weak, making this an intelligent strategy

that might have been sufficient to create reasonable doubt as to

Lee’s guilt. Absent the discovery violation, Lee would have

likely crafted a different trial strategy that might have proven

more effective in light of the information on the back of the

registration card. Finally, Lee might have chosen to enter into

plea negotiations with the Government if he had accurate

information about the strength of its case.
4

 Count One related to the drugs in Room 42, and Count

Two apparently related to the drugs in Lee’s car. While the

hotel registration card relates most directly to the drugs in Room

42, we find no basis in the record for distinguishing the

prejudice Lee suffered on each Count.

5 However, because we are vacating Lee’s conviction we

will not discuss Lee’s argument that the District Court erred in

sentencing him. 

16

The prejudice Lee suffered extends beyond his lost

opportunity to prepare an intelligent defense. Lee’s trial

strategy appeared deceptive in light of the information on the

back of the registration card. If Lee had known about the back

of the card, he—and his counsel—would not have been caught

in an apparent deception by the jury during deliberations. 

For these reasons, we find that the Government’s failure

to disclose the reverse side of the registration card interfered

with Lee’s substantial rights. The jury’s verdict is not one in

which we can have confidence. Accordingly, we conclude that

the District Court abused its discretion in failing to grant a

mistrial. The judgment of the District Court will be vacated and

the case remanded for a new trial on both counts.4

III.

Because we find that Lee is entitled to a new trial, the

remaining issues he raises are moot. However, because the

evidentiary issues he raises are likely to occur again at any

subsequent trial, we will discuss them briefly.5

 Lee raises two

evidentiary challenges. First, he maintains that the District Court

erred in denying his motion to suppress physical evidence

obtained during the stop of the car Lee was driving and from his

hotel room. Second, he argues that the Government should not

have been permitted to introduce evidence of one of Lee’s prior

convictions for drug distribution.
17

With regard to the motions to suppress, we find that Lee

did not have a reasonable expectation of privacy in Boyer’s

person. Rawlings v. Kentucky, 448 U.S. 98, 105-06 (1980)

(holding that defendant had no reasonable expectation of

privacy in companion’s purse). The initial stop of the vehicle

was a proper traffic stop. After cocaine base was found on

Boyer and she implicated Lee, the police had probable cause to

arrest Lee, who was also driving with a suspended license. Lee

has not identified any evidence or statements obtained from him

before his arrest, and there is no basis to challenge evidence

collected from Lee following his lawful arrest. Further, we find

that the affidavit supporting the warrant to search Room 42

contained ample evidence to establish probable cause linking

Room 42 to Lee and to narcotics trafficking. See United States

v. Whitner, 219 F.3d 289, 297 (3d Cir. 2000) (holding that

probable cause linking crime and location to be searched may be

established through “normal inferences”).

Next, we find that the District Court did not abuse its

discretion in admitting evidence of Lee’s prior conviction.

Evidence of prior bad acts cannot be admitted to show a

propensity to violate the law. Fed. R. Evid. 404(b). However,

it may be admitted “as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” Id. The Supreme Court has set forth a four-part test

for determining whether other crimes evidence was properly

admitted: (1) the other crimes evidence must have had a proper

purpose as set forth in Rule 404(b); (2) the proffered evidence

must have been relevant; (3) its probative value must have

outweighed its potential for unfair prejudice; and (4) the district

court must have charged the jury to consider the other crimes

evidence only for the limited purpose for which it is admitted.

United States v. Kellogg, 510 F.3d 188, 199 n.10 (3d Cir. 2007)

(citing Huddleston v. United States, 485 U.S. 681 (1988)).

“The parameters of Rule 404(b) are not set by the

defense’s theory of the case; they are set by the material issues
6 We note that “to justify reversal of a District Court’s

balancing of probative and unfairly prejudicial qualities of

evidence under Rule 403, the District Court’s analysis and

resulting conclusion must be ‘arbitrary or irrational.’” Kellogg,

510 F.3d at 197 (internal quotation marks omitted).

7

 Although Lee argues that this instruction “relieved the

Government of its obligation to [prove] the Appellant’s intent

beyond a reasonable doubt” (Appellant’s Br. at 20), the precise

basis for Lee’s objection is not clear. Because this argument

was not raised before the District Court and we remand for a

new trial, we need not discuss it further here.

18

and facts the government must prove to obtain a conviction.”

United States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992). In

this case, Lee’s prior drug trafficking conviction was properly

admitted as evidence that Lee intended to distribute any drugs

in his possession. Thus, the first three prongs of the test are

satisfied.6

After the evidence was admitted, the District Court

explained the limited role of the evidence, instructing the jury

that “the evidence of prior drug convictions is admitted for the

limited purpose of its relevance to you—if you find it

relevant—as to the defendants’ intent or state of mind in the

possession of the drugs on January 7th, 2005, if you find after

your deliberations, that any or all of them were in possession of

drugs.” App. at 142.5. In charging the jury, the District Court

repeated this instruction.7

 Accordingly we find that the District

Court did not abuse its discretion in admitting evidence of Lee’s

prior drug trafficking offense.

IV.

For the reasons expressed above, the judgment of the

District Court will be reversed and the case remanded for a new

trial on both counts.