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UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 3:11cr24/MCR

TELLY J. HILL, a/k/a “Tally,”

ERICK D. SMITH, a/k/a “Tator,”

and ISMAEL A. RODRIGUES,

Defendants.

__________________________/

ORDER

Defendant Erik D. Smith (“Smith”) is charged in a five count indictment (doc. 54) as

follows: (a) Count One - conspiracy to traffic cocaine, (b) Count Two - use of a firearm in

furtherance of a drug trafficking offense, (c) Count Three - possession of a firearm by a

convicted felon, and (d) Counts Four & Five - money laundering. Smith has filed a motion

to sever Count Three of the indictment from his other charges (doc. 44) and an objection

to the Government’s 404(b) evidence (doc. 45). Both motions essentially seek the same

remedy – exclusion of Smith’s two prior convictions for Possession of Cocaine. The

Government opposes the motions (doc. 50). Having reviewed the record and considered

the parties’ arguments, the court determines that both motions are due to be denied. 

Severance of Count Three

Pursuant to Rule 8(a) of the Federal Rules of Criminal Procedure, two or more

offenses can be charged and tried together when the offenses: (1) are of the same or

similar character; (2) are based on the same act or transaction; or (3) are connected with

or constitute parts of a common scheme or plan. Fed. R. Crim. Proc. 8(a). The Rule is

construed “broadly in favor of initial joinder.” United States v. Walser, 3 F.3d 380, 385

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(11th Cir. 1993). When it appears that a defendant is prejudiced by the joinder of offenses,

the court may grant a severance, Fed. R. Crim. Proc. 14, but severance is “not required

merely because defendant's chances for acquittal would have been better if he had been

tried in a separate trial on one count,” United States v. Kabbaby, 672 F.2d 857, 861 (11th

Cir. 1982). In deciding the issue of severance, the “trial judge [is] required to balance the

prejudice to the defendant against the interests of judicial economy,” United States v. Benz,

740 F.2d 903, 911 (11th Cir. 1984), cert. denied, 474 U.S. 817 (1985). Moreover,

severance is justified as a remedy only if the prejudice is clearly beyond the curative

powers of a cautionary instruction. United States v. Baker, 432 F.3d 1189, 1236-37 (11th

Cir. 2005), cert. denied, 547 U.S. 1085 (2006).

Smith moves to sever Count Three, arguing that the initial joinder requirements of

Rule 8(a) are not met, and that unfair prejudice will result from joinder because the jury will

unduly emphasize his prior criminal activity. The court disagrees. All of the counts are

sufficiently related for joinder. Count Three charges Smith with possession of a firearm by

a convicted felon, on or about April 14, 2011. As the Government explains, “[Smith] is

charged in Count Two with possessing a firearm in furtherance of the drug trafficking

offense in Count One, during the same time frame.” (Doc. 50, at 4.) Furthermore, Smith’s

unfair prejudice argument fails because, as discussed in Section B, infra, evidence of

Smith’s prior criminal activity would be admissible for Counts One and Two regardless of

whether Count Three was severed. See United States v. Gabay, 923 F.2d 1536, 1540

(11th Cir. 1991). Therefore, the court concludes that severance of Count Three is not

warranted.

Admission of Fed. R. Evid. 404(b) Materials

Under Rule 404(b) of the Federal Rules of Evidence, a court may admit evidence

of other crimes, wrongs, or acts when used to prove, inter alia, motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. Fed. R. Evid.

404(b). The Eleventh Circuit has articulated a three part test to determine whether

extrinsic evidence of a prior act is admissible under Rule 404(b): (1) the evidence must be

relevant to an issue other than the defendant’s character, (2) there must be sufficient proof

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to permit a jury finding that the defendant committed the extrinsic act, and (3) the probative

value of the evidence must not be substantially outweighed by its undue prejudice. United

States v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005), cert. denied, 549 U.S. 811

(2006). The third requirement comes directly from Federal Rule of Evidence 403, which

states, “relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice,” Fed. R. Evid. 403. However, the remedy

of exclusion pursuant to Rule 403 is an extraordinary one, to be invoked sparingly, and the

balance ordinarily “should be struck in favor of admissibility.” United States v. Dodds, 347

F.3d 893, 897 (11th Cir. 2003) (internal marks omitted). Rule 403 requires the court to

consider all of the circumstances, including the Government’s need for the evidence, the

overall similarity between the extrinsic act and the charged offense, and the temporal

remoteness of the prior act. United States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir.

2003). In reviewing issues under Rule 403, “we look at the evidence in a light most

favorable to its admission, maximizing its probative value and minimizing its undue

prejudicial impact.” U.S. v. Tinoco, 304 F.3d 1088, 1120 (11th Cir. 2002), cert. denied,

538 U.S. 909 (2003).

There is “[a]mple precedent . . . in this circuit finding that a not guilty plea in a drug

conspiracy case . . . makes intent a material issue and opens the door to admission of prior

drug-related offenses as highly probative, and not overly prejudicial, evidence of a

defendant’s intent.” United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997), cert.

denied, 523 U.S. 1033 (1998); see also United States v. Edouard, 485 F.3d 1324, 1345

(11th Cir. 2007); Matthews, 431 F.3d at 1311; United States v. Cardenas, 895 F.2d 1338,

1342 (11th Cir. 1990). This is true even when the prior conviction is many years old. See

United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (finding admissible

evidence of approximately 15 year old marijuana dealings); United States v. Pollock, 926

F.2d 1044, 1048 (11th Cir.) (noting that courts have upheld the admission of rule 404(b)

evidence that “occurred ten and thirteen years earlier than the charged offense”), cert.

denied, 502 U.S. 985 (1991); see also Matthews, 431 F.3d at 1311 (stating that the

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Eleventh Circuit “has refrained from adopting a bright-line rule with respect to temporal

proximity because decisions as to impermissible remoteness are so fact-specific that a

generally applicable litmus test would be of dubious value” (internal marks omitted)). 

Furthermore, the Eleventh Circuit has explicitly held that evidence regarding the prior

possession of illegal drugs is admissible at a subsequent distribution/conspiracy trial. See

United States v. Butler, 102 F.3d 1191, 1196 (11th Cir.), cert. denied, 520 U.S. 1219

(1997); see also Matthews, 431 F.3d at 1318 (Tjoflat concurring) (noting that under 11th

Circuit precedent there is a presumption that “virtually all prior drug offenses are relevant

and almost automatically admissible in all drug conspiracy cases”).

Smith contends that evidence of his prior convictions for Possession of Cocaine are

in no way relevant to his current charges. However, the Government has indicated that the

evidence will be used in order to prove knowing intent, and, as Calderon makes clear, a

not guilty plea in a drug conspiracy case makes intent a material issue and opens the door

to admission of prior drug-related offenses as highly probative evidence of the defendant’s

intent. 127 F.3d at 1332. Additionally, it is important to note that the prior convictions were

for possession of cocaine – the same drug involved in the instant conspiracy. See United

States v. Green, 40 F.3d 1167, 1174 (11th Cir. 1994), cert. denied, 514 U.S. 1089 (1995). 

Finally, although Smith’s prior convictions occurred approximately six and ten years before

the start of the alleged conspiracy, in light of Eleventh Circuit precedent, the court

concludes that the prior convictions are not too temporally remote to be sufficiently

probative. See Lampley, 68 F.3d at1300 (finding admissible evidence of approximately 15

year old marijuana dealings); Pollock, 926 F.2d at 1048 (noting that courts have upheld the

admission of rule 404(b) evidence that “occurred ten and thirteen years earlier than the

charged offense”).

Smith also argues that, “because the case against him is arguably weak, . . . should

the evidence be admitted, the prejudice will clearly outweigh any probative value.” (Doc.

45, at 3.) The court has been directed to no authority that supports the proposition that a

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weak case justifies the exclusion of 404(b) evidence. To the contrary, the weaker the 1

government’s case, the stronger the argument is for admitting the evidence. See Pollock,

926 F.2d at 1049 (explaining that if “the Government has a strong case on the intent issue,

the extrinsic offense may add little and consequently will be excluded more readily”). Thus,

the court concludes that the probative value of the evidence of the prior felony drug

convictions is not substantially outweighed by prejudice to Smith. 

For the foregoing reasons, it is hereby ORDERED that Defendant’s motion to sever

Count Three (doc. 44) and his motion to exclude evidence of prior convictions (doc. 45) are

DENIED. 

DONE AND ORDERED on this 16th day of June, 2011.

 s/ M. Casey Rodgers

M. CASEY RODGERS

United States District Judge

For support, the defense cites United States v. Gonzalez, 2011 W L 200136 (11th Cir. 2011), petition

1

for cert. filed (U.S. Apr. 24, 2011) (No. 10-10288), which merely explains that when there is overwhelming

evidence of guilt, appellate courts need not decide whether the district court abused its discretion in admitting

404(b) evidence. Defense also cites United States v. Larios-Trujillo, 403 Fed.Appx. 442 (11th Cir. 2010), and

United States v. Darling, 396 Fed.Appx. 607 (11th Cir. 2010), neither of which addresses the issue of prior

convictions under 404(b).

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