United States Court of Appeals

For the Eighth Circuit

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No. 14-3141

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Torrance L. Cotton

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: September 23, 2015

 Filed: May 19, 2016

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Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

Torrance Cotton appeals his convictions for conspiracy to distribute and

possession with intent to distribute cocaine. After careful review of the issuesraised,

we find no reversible error and affirm the judgment of the district court.1

The Honorable John A. Ross, United States District Judge for the Eastern 1

District of Missouri.
I. Background

In 2012, the Drug Enforcement Administration (DEA) began an investigation

into the suspected drug trafficking activities of Jeremy Poe. After Poe was arrested

in January 2013 in possession of a kilogram of cocaine, he agreed to cooperate with

the DEA and assist them in their investigation. At a meeting with the DEA on

January 14, 2013, Poe told the DEA that he had received the kilogram of cocaine

from David Frazier, and that he believed that Frazier had gotten the cocaine from

Torrance Cotton. Following that meeting, Poe agreed to meet with Frazier and

arrange further drug transactions while wearing a wire. Poe had two separate

meetings with Frazier on January 17, first at Chilimacks, a courier service where

Frazier and Cotton worked, and second at Frazier’s residence. Poe met again with

Frazier on January 18. Following that meeting, the DEA arrested Frazier and seized

one kilogram of cocaine from a safe in his residence.

As a result of thisinvestigation, Torrance Cotton wasindicted on May 1, 2013,

and charged with one count of conspiracy to distribute cocaine and one count of

possession with intent to distribute cocaine. Cotton was convicted of both counts

following a jury trial on April 3, 2014. On appeal, Cotton contests the admission of

evidence of his prior convictions, admission of a statement made by David Frazier

after his arrest, and denial of his motion for a new trial based on a Brady violation.

II. Discussion

A. Admission of Evidence of Prior Convictions

Cotton asserts that the district court improperly allowed the government to

introduce evidence of his prior convictions for possession of cocaine with intent to

distribute and attempted drug trafficking. Because Cotton did not make a

contemporaneous objection to the introduction of this evidence, our review is for

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plain error unless the district court made a final and definitive pretrial ruling on the

admissibility of this evidence. United States v. Young, 753 F.3d 757, 775 (8th Cir.

2014). The admissibility of the evidence was addressed at two pretrial conferences,

on November 26, 2013, and January 23, 2014. At both pretrial conferences, the

district court made a provisional, non-definitive ruling that the evidence was

admissible, specifically anticipating a contemporaneous objection at trial. However,

before voir dire began on March 31, 2014, the district court again addressed the

admissibility of the evidence of Cotton’s prior convictions, stating “I do think that

there is still a basis to introduce this 404(b) evidence. . . . So the objection will be

overruled. I will, asI say, before that evidence issought to be introduced, want to see

a limiting instruction.” This March 31 ruling was, by its terms, final, definitive, and

non-provisional. Cf. id. (“when the district court reserves its ruling or otherwise

indicates that the ruling is provisional, then the proponent should reintroduce the

court to the issue at the appropriate time”) (emphasis added). The court stated that

the objection “will be overruled,” and referred to an anticipated limiting instruction

with regard to the evidence that would be admitted. At this point, the court’s ruling

on the admissibility of the evidence was clear, and counsel would no longer have had

any reason to doubt whether that ruling was definitive. See id.; Fed. R. Evid. 103(b)

& advisory committee’s note to 2000 amendment. We therefore conclude thatCotton

properly preserved this claim of error, and accordingly review the district court’s

decision to admit the evidence of Cotton’s prior convictions for abuse of discretion. 

Young, 753 F.3d at 767.

Evidence of a defendant’s prior convictions is categorically inadmissible to

prove the defendant’s criminal propensity. Fed. R. Evid. 404(b)(1). Evidence of

prior convictions may, however, be admissible to prove a specific element or aspect

of the charged offense, such as “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid.

404(b)(2). Where there is a proper purpose for evidence of a prior conviction, the

conviction may be admitted if it is “(1) relevant to a material issue; (2) similar in kind

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and not overly remote in time to the crime charged; (3) supported by sufficient

evidence; and (4) higher in probative value than prejudicial effect.” United States v.

Trogdon, 575 F.3d 762, 766 (8th Cir. 2009) (quoting United States v. Williams, 534

F.3d 980, 984 (8th Cir. 2008)). This is considered a rule of inclusion, meaning that

if these elements of admissibility are satisfied, the evidence will be excluded only

when it is offered solely to prove criminal propensity. United States v. Foster, 344

F.3d 799, 801 (8th Cir. 2003).

Federal Rule of Evidence 404(b)(2) identifies the purposesfor which evidence

of prior convictions may be admitted, but merely reciting those permissible purposes

without more is not sufficient to render evidence of a prior conviction admissible in

any particular case. Rather, when the defendant raises a timely objection to

admission of the evidence, Rule 404(b) requires a careful inquiry and analysis of the

purpose for which the evidence is offered. The government—as proponent of the

evidence—must identify the permissible non-propensity purpose for the evidence,

and must articulate the relationship between the prior conviction and a material issue

in the case. If the district court, upon consideration of the facts of the case, the

elements of proof required, and the circumstances of the prior conviction, concludes

that a permissible non-propensity purpose existsfor the evidence, the court must then

consider whether the other requirements for admissibility are satisfied. See United

States v. Armstrong, 782 F.3d 1028, 1034 (8th Cir. 2015) (holding that even if

introduced for a proper purpose, to be admissible, prior bad act evidence must be

relevant, supported by sufficient evidence, similar in kind and close in time to the

crime charged, and higher in probative value than prejudicial effect). If, however, the

court concludes that the only purpose for the evidence is to show the defendant’s

criminal propensity, Rule 404(b)(1) prohibits its admission.

Here, there is reason to be concerned that the evidence was not properly

admitted under Rule 404(b). Following Cotton’s pretrial objection to the evidence,

the government generally asserted that Cotton’s prior convictions were admissible to

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prove “knowledge, intent, and motive.” The district court made a similarly general 2

preliminary ruling, stating that the convictions were relevant to prove “lack of

mistake, knowledge, identity, those issuesfor which 404(b) evidence is used.” Thus,

though both the government and the district court correctly recited some of the

purposes for which evidence of prior convictions may be used, the court did not

analyze the purpose for which the evidence was being offered in this case. Mere

recitation of the Rule without an accompanying case-specific analysis risks couching

criminal propensity in terms of knowledge, intent, or lack of mistake. Rule 404(b),

by its own terms, requires more.

Nevertheless, under the particular circumstances of this case, any error in

admitting the evidence of Cotton’s prior convictions was harmless. An evidentiary

error is harmless if it did not substantially influence the jury’s verdict. United States

v. Aldridge, 664 F.3d 705, 714 (8th Cir. 2011). Error may be harmless where “the

government introduced ample competent evidence from which the jury could

conclude beyond a reasonable doubt that the defendant was guilty even without the

evidence that should have been excluded.” Id. (quoting United States v. Falls, 117

F.3d 1075, 1077 (8th Cir. 1997)). Here, the evidence against Cotton included: the

On appeal, the government also asserts that evidence of the convictions was 2

admissible to prove lack of mistake or accident. This argument is based on Cotton’s

assertion at trial that his fingerprints appeared on a plastic shopping bag wrapped

around the cocaine by happenstance. However, Cotton’s argument was not that he

had accidentally touched the bag wrapping the cocaine, but that he had touched the

bag in the ordinary course of business at his workplace before the bag was involved

in the drug packaging. The government’s argument that the prior convictions are

relevant as to mistake or accident therefore ultimately amounts to an argument that

a person with prior drug convictions must have been involved with a drug transaction

when he touched the plastic bag, which is, of course, a non-permissible propensitybased use of the evidence. We further note that the government did not raise this

argument to the district court before trial in support of the admissibility of the

evidence; rather, the argument of lack of mistake or accident arose only in closing

argument.

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testimony ofJeremyPoe, including David Frazier’s statementsto Poe thatCotton was

his cocaine supplier; recorded conversationsfrom January 17, 2013, in which Frazier

referred to “T” and “Torrance”; testimony from the DEA agents that Cotton arrived

at Chilimacks on January 18, 2013, with a package under his arm; and Cotton’s

fingerprints on the outside wrapping of the cocaine found in Frazier’s safe. This

evidence, if given credence by the jury, is “sufficiently strong for us to conclude that

the conviction[s], even if improperly admitted, did not have ‘a substantial influence

on the jury’s verdict.’” United States v. Donnell, 596 F.3d 913, 921 (8th Cir. 2010)

(quoting United States v. Lupino, 301 F.3d 642, 645 (8th Cir. 2002)). Furthermore,

the district court gave an appropriate limiting instruction stating that the evidence of

Cotton’s prior convictions “[was] not evidence that he committed such acts in this

case,” and could only be used “to help [] decide knowledge, intent, and absence of

mistake or accident.” The presence of a limiting instruction “diminishes the danger

of any unfair prejudice arising from the admission of other acts.” Aldridge, 664 F.3d

at 715 (quoting United States v. Strong, 415 F.3d 902, 906 (8th Cir. 2005)).

We do not underestimate the impact evidence of a prior conviction can have

on a jury’s assessment of a criminal case. The Federal Rules of Evidence limit the

use of evidence of prior convictions for good reason. Fed. R. Evid. 404(b), 403. But

here, given the testimony and physical evidence directly linking Cotton to the

distribution of cocaine, Cotton is unable to show that introduction of the evidence of

prior convictions had a substantial influence on the jury’s verdict. Aldridge, 664 F.3d

at 714. Accordingly, any error associated with the admission of the evidence is not

grounds for reversal.

B. Introduction of David Frazier’s Post-Arrest Statement

At Cotton’s trial, co-conspirator David Frazier did not testify but Jeremy Poe

did. The government presented Frazier’s co-conspirator statements through Poe’s

testimony. Cotton sought to impeach Frazier by introducing a portion of an affidavit

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written and attested by Frazier in July 2013, months after Frazier’s arrest. The

impeachment evidence was initially limited to the following statement in Frazier’s

affidavit: “I never had any drug involvement with Mr. Cotton at all . . . .” The

government then attempted to rehabilitate Frazier by calling the police officer who

interviewed Frazier after he was arrested on January 18, 2013. The officer testified

to Frazier’s statement following his arrest, which—consistent with Frazier’s coconspirator statements introduced through Poe’s testimony—implicated Cotton as

Frazier’s source of cocaine. On sur-impeachment, Cotton introduced the remainder

of Frazier’s affidavit, in which Frazier explained that he made the post-arrest

statement to police on January 18 only “so [he] could get away from them” and

apologized for “involv[ing] Mr. Cotton in this situation at all.” The district court

allowed the introduction of Frazier’s co-conspirator statements pursuant to Federal

Rule of Evidence 801(d)(2)(E), and allowed the introduction of the subsequent

impeachment and rehabilitative evidence pursuant to Federal Rule of Evidence 806. 

Cotton now asserts that the district court erred in allowing the government to

introduce Frazier’s post-arrest statement to rehabilitate the credibility of Frazier’s coconspirator statements.

Cotton first argues that admission of Frazier’s post-arrest statement violated

his rights under the Confrontation Clause. Because the statement was offered for

impeachment and not to prove the truth of the matter asserted, there was no

Confrontation Clause violation in this case. See United States v. Rodriguez, 484 F.3d

1006, 1013–14 (8th Cir. 2007); United States v. Kehoe, 310 F.3d 579, 591 (8th Cir.

2002).

Cotton next argues that Frazier’s statement was inadmissible under the Rules

of Evidence. We begin by analyzing the admissibility of each piece of evidence

offered in the relevant series. First, David Frazier’s co-conspirator statements were

undisputedly admissible as non-hearsay co-conspirator statements pursuant to Rules

402 and 801(d)(2)(E). Fed. R. Evid. 402 (in general, relevant evidence is admissible);

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Fed. R. Evid. 801(d)(2)(E) (statements made by co-conspirators during and in

furtherance of the conspiracy are not hearsay). The parties also agree that the limited

portion of Frazier’s affidavit (“I never had any drug involvement with Mr. Cotton at

all”) was properly admitted as impeachment evidence pursuant to Rule 806. Fed. R.

Evid. 806 (when a co-conspirator statement is admitted pursuant to Rule

801(d)(2)(E), “the declarant’s credibilitymay be attacked, and then supported, by any

evidence that would be admissible for those purposes if the declarant had testified as

a witness. . . . The court may admit evidence of the declarant’s inconsistent statement

or conduct, regardless of when it occurred or whether the declarant had an

opportunity to explain or deny it”). The propriety of admitting these first two pieces

of evidence is not in controversy. 

What is at issue is whether Frazier’s post-arrest statement was admissible as

rehabilitation evidence. Cotton argues that the only Rule of Evidence that could

support admission of Frazier’s post-arrest statement is Rule 801(d)(1)(B). But the

district court did not admit the post-arrest statement under this rule, and neither the

government nor Cotton raised the application of this rule to Frazier’s post-arrest

statement at trial. Rule 801(d)(1)(B), in relevant part, providesthat a prior statement

3

The parties spend a substantial amount of time disputing whether the fact that 3

Frazier’s post-arrest statement did not actually predate the statements presented as

substantive evidence at trial affects the admissibility of the statement. However, the

requirement that the prior consistentstatement predate the alleged motive to fabricate

is a protection premised at least in part on the assumption that the prior consistent

statement may be admitted as substantive evidence. Tome v. United States, 513 U.S.

150, 157–58 (1995). Moreover, the Advisory Committee Notes to Rule 806

recognize the paradox created when a declarant is subject to impeachment by use of

an inconsistent statement, noting that in cases where the declarant is not a live

witness, “the inconsistent statement may well be a subsequent one.” Fed. R. Evid.

806 advisory committee’s note to 1972 proposed rules. In that circumstance, “[t]he

writers favor allowing the subsequent statement.” However, the note only directly

addresses the use of prior inconsistent statements.

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consistent with a declarant’s testimony is not hearsay if the statement is offered to

rebut an accusation that the declarant fabricated his testimony or acted under an 4

improper influence in testifying. Frazier’s post-arrest statement was not offered as

non-hearsay substantive evidence. Rather, the government offered it solely to

rehabilitate Frazier after his testimony had been impeached by the introduction of an

inconsistent statement, and the jury received a limiting instruction to that effect. On

its face, therefore, Rule 801(d)(1)(B) does not apply to Frazier’s post-arrest statement.

Instead, the district court admitted the post-arrest statements “under Rule 806

for the limited purpose of supporting the credibility of the declarant [Frazier], whose

credibility has been attacked by the defendant.” Pursuant to Rule 806, Frazier’s

credibilitywas “attacked, and [could] then [be] supported, by any evidence that would

be admissible for those purposes if [he] had testified as a witness.” Fed. R. Evid.

806.5

The parties also make much of Frazier’s motive to fabricate, each arguing that 4

Frazier had a motive to fabricate different statementsfor different reasons. However,

the parties did not make these arguments at trial, and the district court therefore had

no opportunity to make a finding as to whether there was in fact “an express or

implied charge” of recent fabrication. Fed. R. Evid. 801(d)(1)(B)(i); see United

States v. Hoover, 543 F.3d 448, 453 (8th Cir. 2008). That the parties cannot agree on

what motive to fabricate isin dispute highlightsthe importance of raising these issues

to the district court, rather than waiting to do so on appeal.

Cotton argues that the post-arrest statement is inadmissible under Rule 5

801(d)(1)(B), but he offers no other argument for why it is inadmissible as

rehabilitative evidence pursuant to Rule 806. Despite the lack of clarity in his

argument, the nature of his challenge to the admissibility of the rehabilitative

evidence is essentially clear, and we therefore consider whether the evidence was

properly admitted under the applicable rule.

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Use of a prior consistent statement to rehabilitate the credibility of a witness

who has been impeached by a prior inconsistent statement is appropriate when the

statement contextualizes, clarifies, or amplifies the meaning of the witness’s

testimony or inconsistent statement. See Hoover, 543 F.3d at 453; United States v.

Kenyon, 397 F.3d 1071, 1081 (8th Cir. 2005). For example, a prior consistent

statement may be admissible to explain to the jury why a seemingly inconsistent prior

statement elicited on cross-examination was not in fact inconsistent at all. See

Hoover, 543 F.3d at 454. However, “it is not proper to admit ‘all prior consistent

statements simply to bolster the credibility of a witness who has been impeached by

particulars.’” United States v. Ramos-Caraballo, 375 F.3d 797, 803 (8th Cir. 2004)

(quoting United States v. Simonelli, 237 F.3d 19, 28 (1st Cir. 2001)). In other words,

prior consistent statements are not admissible as rehabilitative evidence to the extent

that they are merely cumulative of the testimony already presented; but they may be

admissible to the extent that they explain either the testimony or the impeaching

inconsistent statement, and therefore allow the jury to better assess the substantive

evidence presented.

Whether a witness may be properly rehabilitated by the introduction of a prior

consistentstatement is a fact-based inquiry, and the decision to admit or exclude such

evidence is left to the sound discretion of the district court. Kenyon, 397 F.3d at

1081. The government did not assert that Frazier’s affidavit (the impeaching

inconsistent statement) or co-conspirator testimony was misunderstood or taken out

of context, such that a prior consistent statement might have explained or clarified

either for the benefit of the jury. Yet, for reasons particular to this case, it would be

difficult to conclude that the district court abused its discretion in admitting the postarrest statement. The primary reason is that on sur-impeachment, Cotton was

permitted to introduce the entirety of Frazier’s affidavit, which included both the

impeaching inconsistentstatement and an explanation of why he had not been truthful

in his post-arrest statement. The jury therefore had before it 1) Frazier’s substantive

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testimony, introduced as co-conspirator statements through Poe; 2) the impeaching

inconsistent statement in Frazier’s affidavit; 3) Frazier’s January 18 statement to

police, which was consistent with the substantive testimony; and 4) Frazier’s

explanation of his January 18 statement, contained in the balance of his affidavit. 

Though this is an unusual pattern for the introduction of such evidence, the basic

outcome was that the jury was able to consider the substantive evidence, as well as

the context of prior consistent and inconsistent statements that bore on the truth of

that evidence. The district court gave a limiting instruction—to which neither party

objected—before the evidence was admitted, instructing the jury on the limited

purposes for which it could consider the evidence. Moreover, when the government

was presenting the post-arrest statement via the testimony of the arresting agent, the

district court sua sponte raised the concern that certain questions went beyond the

proper scope of the testimony, and sustained Cotton’s objection on that ground. The

district court’s careful attention to the admission of the rehabilitation evidence

presented supports the conclusion that the court did not abuse its discretion in

admitting all of the proffered evidence for both parties regarding the credibility of

Frazier’s co-conspirator statements.

We also note that Cotton was permitted to introduce all the evidence he sought

to introduce on this issue. Only because the post-arrest statement was admitted was

Cotton allowed to introduce Frazier’s full affidavit, which ostensibly exculpated

Cotton of any drug-related involvement with Frazier. Furthermore, Frazier’s postarreststatement was not substantively different orsignificantlymore harmful than the

statements originally admitted through Poe’s testimony as co-conspiratorstatements,

making it unlikely that the statement had any prejudicial effect. Cf. Kenyon, 397 F.3d

at 1082. Under these somewhat complex and unusual circumstances, the district

court did not abuse its discretion in allowing the post-arrest statement to be admitted.

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C. Brady Evidence

After Jeremy Poe was arrested on January 14, 2013, he identified Cotton in a

photograph shown to him by DEA agents. At trial, the government introduced a

photograph of Cotton into evidence as Government’s Exhibit 1. Several government

witnesses, including Poe, were shown Exhibit 1 and identified it as the photograph

that had been shown to Poe in order to identify Cotton in January 2013. However,

the photograph shown at trial (Exhibit 1) had been taken on November 1, 2013. 

Cotton asserts that the government suppressed the earlier photograph—the one

actually shown to Poe in January 2013—in violation of his Brady rights.

A Brady violation occurs when the government suppresses evidence that is

favorable to a defendant and is material as to either guilt or punishment. Brady v.

Maryland, 373 U.S. 83, 87 (1963). For evidence to be material as to guilt, there must

be a reasonable probability that the result ofthe proceeding would have been different

had the evidence been disclosed. Youngblood v. West Virginia, 547 U.S. 867, 870

(2006) (per curiam). Here, the district court concluded that there was no Brady

violation because

the evidence was not material. Poe’s identification of Defendant Cotton

was not central to the evidence in this case . . . . Moreover, the case

agents and Poe were fully cross-examined and impeached at trial on the

issue of Government Exhibit 1. At most, this evidence would be

cumulative impeachment evidence.

We agree with the district court. There is no reasonable probability that the

result of the proceeding would have been different had the earlier photograph been

disclosed to Cotton. Accordingly, there was no Brady violation associated with the

government’s failure to disclose the photograph, and the district court did not abuse

its discretion in denying Cotton’s motion for a new trial.

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III. Conclusion

For the foregoing reasons, we affirm the judgment of the district court.

COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.

I concur in all but Parts II.A and III of the court’s opinion. In my view, the

district court did not abuse its discretion in admitting evidence of Torrance Cotton’s

prior convictions, and I do not join the court’s dicta concerning the application of

Federal Rule of Evidence 404(b).

Rule 404(b) provides that evidence of a crime, such as a prior conviction, may

be admissible for several enumerated purposes. Cotton had sustained prior

convictions for possession with intent to distribute cocaine and attempted trafficking

in drugs. The district court ruled that these prior convictions were admissible to

prove “knowledge, intent, and absence of mistake or accident.” These are among the

purposes enumerated in the rule. The district court explained that Rule 404(b) “is a

rule of inclusion,” that there was “sufficient temporal proximity” to admit the prior

convictions, that the prior convictions were “particularly relevant, because the drug

involved is cocaine,” and that the court would give “a limiting instruction to the jury

to try to limit any prejudice that there might be, because it is important to balance the

probative value with the prejudice.” R. Doc. 713, at 24-25. 

In this case, Cotton was charged with conspiracy to distribute cocaine and

possession with intent to distribute cocaine. The conspiracy charge required proof

that Cotton voluntarily and intentionally joined an agreement, and that he knew the

purpose of the agreement. On the substantive count, the government was required to

prove that Cotton knew that what he possessed was cocaine, as opposed to some other

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substance, and that he intended to distribute the cocaine, rather than use it, store it,

or otherwise dispose of it. Cotton’s prior convictions were relevant on the issues of

knowledge or intent. It was more probable with the evidence of prior convictions

than without it, for example, that Cotton knew the substance he possessed was

cocaine and that he intended to distribute it. See United States v. Crowder, 141 F.3d

1202, 1209 (D.C. Cir. 1998) (en banc). The evidence of prior convictions likewise

made it more probable that Cotton knew that he joined a conspiracy to distribute

cocaine and did not participate unwittingly. United States v. Robinson, 809 F.3d 991,

997-98 (8th Cir. 2016); United States v. Brown, 956 F.2d 782, 787 (8th Cir. 1992).

In a drug trafficking prosecution, evidence of a prior drug conviction is nearly

always relevant to show a defendant’s knowledge or intent in committing the charged

offense. See, e.g., United States v. Armstrong, 782 F.3d 1028, 1034 (8th Cir. 2015);

United States v. Horton, 756 F.3d 569, 579-80 (8th Cir. 2014); United States v.

Gipson, 446 F.3d 828, 831 (8th Cir. 2006); United States v. Frazier, 280 F.3d 835,

847 (8th Cir. 2002); United States v. Williams, 895 F.2d 1202, 1205 (8th Cir. 1990). 

Admission of prior convictions to prove absence of mistake in a drug case is perhaps

less common, but it is also supported by circuit precedent. United States v. Ellis, No.

15-2243, 2016 WL 1077131, at *7 (8th Cir. Mar. 18, 2016) (“Ellis’s prior conviction

was for delivering heroin—the very drug he was charged with distributing in this

case, which made the prior conviction particularly relevant to knowledge, intent, and

absence of mistake.”); United States v. McGilberry, 620 F.3d 880, 886-87 (8th Cir.

2010); United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995) (“Shoffner’s

prior involvement in marijuana dealing also tends to prove motive, knowledge, and

absence of mistake to rebut Shoffner’s claim that he was merely present and unaware

of the conspiracy.”). The district court here gave a cautionary instruction to the jury,

explaining the limited purposes for which the evidence of prior convictions was

received. This instruction “diminishe[d] the danger of any unfair prejudice arising

from the admission of other acts.” United States v. Franklin, 250 F.3d 653, 659 (8th

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Cir. 2001). The district court did not abuse its discretion in concluding that the

probative value was not substantially outweighed by a danger of unfair prejudice. See

Fed. R. Evid. 403; Ellis, 2016 WL 1077131, at *7; United States v. Halk, 634 F.3d

482, 488 (8th Cir. 2011).

The court does not conclude that there was error, but sees a “reason to be

concerned,” because “Rule 404(b), by its own terms, requires more” explanation for

admissibility than what the government and the district court provided. Ante, at 4-5. 

Not so. The terms of the rule speak only to the purposes for which evidence is

admissible; they do not address what the prosecution or the district court must specify

on the record. Our decisions encourage the government and the district court to

articulate a theory of admissibility to facilitate appellate review, but even where the

government simply reads a list of issues for which prior bad acts can be admitted

under Rule 404(b), that “is not in itself a basis for reversal.” United States v.

Mothershed, 859 F.2d 585, 589 (8th Cir. 1988). The reviewing court must examine

the material issues from the trial and determine whether the evidence of prior

convictions was relevant for the purposes specified. Id.

The evidence at issue here was clearly relevant to the limited issues on which

it was admitted—knowledge, intent, and absence of mistake. We have said before

in the context of Rule 404(b) that “[j]udges need not explain the obvious, even

briefly.” United States v. Burk, 912 F.2d 225, 229 (8th Cir. 1990) (internal quotation

marks omitted). As in Burk, “the prosecution made clear enough the purpose for

which it wished to elicit the evidence,” and “further explanation from the court was

unnecessary.” Id. Likewise, “the factors upon which the probative value/prejudice

evaluation were made are readily apparent from the record, and there is no substantial

uncertainty about the correctness ofthe district court’s ruling.” Id. (internal quotation

marks omitted).

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The evidence ofCotton’s prior convictions was properly admitted. The district

court may have erred by not sustaining Cotton’s objection to the government’s

closing argument that the prior convictions tended to prove the absence of a “cosmic

accident,” because the argument did not address a true “accident,” see ante, at 5 n.2,

but I agree with the court that any error in that respect was harmless.

For these reasons, I concur in the judgment.

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