* The Honorable Karl S. Fores ter , Chi ef Uni ted St ates Dist ric t Ju dge f

or th e East ern Di str ict of Kent ucky , s it ti ng by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

File Name: 04a03 44p.06 

### UNITED STATES COURTS OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

U NITED S TAT ES OF A MERICA , Plaintiff-Appellee,

v.

J AMES T ERRELL L ATTNER , Defenda nt-Appel lant. X - - - -
> , - - N No. 03-1488

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 01-80640—John Corbett O’Meara, District Judge.

Argued: June 15, 2004
Decided and Filed: October 5, 2004

Before: SIL

ER and ROGERS, Circuit Judges; FORESTER, Chief District Judge. *

_________________ COUNSEL

A RGUED: Paul J. Stablein, STABLEIN, F LOOD & L ANCTOT, Royal Oak, Michigan, for App ellant

. Michael R. Mueller, ASSISTANT UNI TED STATES ATTORNEY, Detroit, Michi gan, for Appellee. ON BRI EF: Paul J. Stablein, STABLEIN, FLOOD & LANC TOT, Roy

al Oak, M ichiga

n, for Ap pellant. Michael R. Mueller, ASSISTANT UNI TED STATES ATTORNEY, Detroit, Michigan, for Appellee.

_________________ OPINION

_________________ FORESTER, Chie f Dist

rict Judge. The Defendant-Appellant James Terre ll Lattner (“L attner”) herein a ppeals hi s convict

ion on one

count of Po ssession w

ithInte nt to Distri

bute Cocaine Base, alleging various trial er

rors. L attner h as been s entence d to a ter m of impris onment of

170 months i

nconnec tion with this crime. We AFFIRM.

BACKGROUND

OnJuly 18, 2001, a

state search

warrant was executed at 2416 Monterey in Detroit, Michigan by

five (5) Detro it po lice o fficer s. Large quantities of what proved to be heroin, cocaine, and c rack cocaine , as well

1No. 03-1488 United States v. Lattner Page 2

1 The parties present varied versions of t he cir cumst ances surroundi ng the exe cuti on of this search warrant. The Ap pellant asserts that

Lattn er was prese nt at 24 16 M onter ey at the tim e of the se arch b ecau se his car broke down and , upon re-start ing the vehicl e, Lattn er tr aveled t o what he i dentif ies as hi s f

rie nd’s house (2416 Monterey) t o make a callfor as sis tance. Lattner’s bad day got worse when, as he was talki ng to his aunt on his cell phone, police officers f rom the Detroit Police Department broke in the front d oor of the re siden ce an d, with guns drawn, ordered Lattner and the other t wo occupants of the building to get on the grou nd. Appellant

contends t

hat, as he was on the ground, he heard th e offi cers ent ering other part s of t he house, incl uding an alleged ly pad locke d no rthwest b edro om w here d rugs we re eve ntually fou nd. The Appellee, on the other h and , indica tes that up on ex ecutio n of the se arch w arran t herein at iss ue, Lattner was f ound in the aforement ioned northwest bedroom, sit tin g on the bed and surrounded by numerous zip-lock bags of what proved to be heroin.

2 This letteri ng, “World Dom a nati on,” shoul d be cont rast ed wit

h th at f ound on t he i nk pads conf

isc ated from 2416 M onter ey, whic h rea d “World Dom i nati on.” as narcoti cs para

phernal ia for cutting, packaging , and distribution, were found in the house. Notable among the seized pa

rapher nalia we re seve ral ink pa ds used for labelin

g drug packets , includin

g one r eading “World Domination.” Lattner was prese ntat 24 16 Mo nt er ey w he n t he se ar ch wa rr an t w as ex ec ut ed , k eys taken from his pocket during the search fit the front door, a nd the home was later found to be titled in the name of his mother. 1 Lattner’s finge

rprint was also found on one of the plastic bags containing narcotics. Subsequently, L attner was charged by way of supe

rseding indictment with three counts relating to the evidenc e seized f

rom 2416 Monterey . These in clude: Cou

nt I: Po ssessi on wi th Int

ent to Dist

ribute Heroin; Count II: Possession with Intent to Distribute Cocaine Base; a nd Count III : Possession with Intent to Distribute Cocaine.

Prior to the jury trial of this matter, Lattner filed a motion to suppress the evidence seized pursuant to the search warrant executed at 2416 Montere y and for a

n evidentiary he aring to challenge the fa ctual allegations contained in the supporting affidavit. Over two (2)days of testimony, eight (8) w

itnesses were called to testify, includin

g four ( 4) Detro it Police O fficers. Following the evidentiary hearing, the district court denied Lattner’ s motion to su ppress a nd ruled t hat the affidavit

insupport of

said war rant was adequa te on its face.

Prior to trial, L attner a

lso moved t

o suppres s the government’s proposed FRE 404(b) evide nce. The motion was denied, and the government introduced e vidence at trial concerning severa l prio r acts , incl udin g: 1) testimony from two police office rs who arrested La

ttner in October of 1 99 9 after observin g him conductingdrug transactions and heroin packets seized during that arres t, which were sta mped “Wor

ld Domanati on;” 2 2) testimony from a police of ficer who, in August of 199 9, assisted other officers in the seizure of heroin from Tremay ne Nowden pursuant to a

search warran t execute d at 4155 We sson Stree t in the City of Detroit; 3) portions of an ea rlier hearing transcript

that wer e read i nto the re cord to establish that Lattner had admitt ed ownership of the property at 4155 Wesson; and 4) testimony from an off icer who seized 89 packe ts of her oin from 4155 Wesson in September of 1999, when Thomas Latham was a rrested for the posse ssion of sa

id packe ts, which were als o stamped “World Domination.” The district court gave both an interlocutory a

nd final limiting instruction on the use of Rule 404(b) evidence.

Lattner was foun

d guilty of one co

unt in the s

upersed ing indic tment - Cou

nt II , Possess i on with Intent to Distribu

te Cocaine Base . He was s ubseque ntly sentenced to a term of imprisonment of 170 mont

hs. Lattner moved for a new trial based on several alleged trial error s, including: 1) comments from the district court judge surrounding L attner’s testimony on his own behalf and the revelation of the fact that he had been previous ly

convicted of two prior drug offenses; 2)instances where jurors observed Lattner in ha ndcuffs and being escorted by

court marshals while getting on or off the e levator; 3) interruptions of defense counsel’s cross-examinationof various witnesses by the district court judge; and

4) statements made by the attorney for the United States in closing argument. L attner’s motion for a new trial was denied.No. 03-1488 United States v. Lattner Page 3

Lattner appeals his conviction, arguing that the drugs and other evidence of na rcotics trafficking activities found during the execution of the search war rant at 2416 Monterey should have been excluded at his trial b ecaus e the af

fidavit up on which s aid warr ant was b ased fa

iled to est ablish pr obable c ause to believe evidenc e of a cr

ime would be found at the stated place. Lattner asserts that his Fourth Ame ndment right to be free from unreasonable s ea rches a nd seizure s was viola

ted when the distri ct court

denied hi s motion to suppress evidence on these grounds. Lattner further contends that the trial court erre d in denying his pre-tri al motion to

suppress evidenc e of othe

r acts ou ts id e those charged. Finally , Lattner claims that the trial court erred in deny ing his motion for a new trial based on theindividual and cumulative effect of alleged trial er rors tha t Latt ner beli eves re sulted in a denial of

his righ t to a fair trial unde

r the Sixth Amendmen

t.

DISCUSSION

A. Motion to

Suppress

Lattner argues that the search

warrant for 2416 Monterey is def ective because the affidavit on which it is based is insufficient. To be sufficient, the affidavit must establish probab le cause t o believe that evidence of nar cotics trafficking would be present at 2416 Monter ey on July

18, 2001. United States v. Davidson, 936 F.2d 856, 859 (6th Cir.1991). Probable cause is defined as “reasona ble grounds for belief, supported by less than prima fa

cie proof but more than mere suspicion,” United Sta tes v. Be nnett, 905 F.2d 931, 934 (6th Cir.1990), and is sa id to exist “when there is a ‘fair probability ,’ given the totality of the circumst ances, that contraband or evidence of a crime will be found

in a particular place.” Davidson, 936 F.2d at 859; see also, e.g., United States v. Johnson, 351 F.3d 254, 258 ( 6th Cir.2003). In reviewing the sufficiency

of a search warrant

affidavit, the “magistrate’sdetermination of probable cause is afforde d great deference,”

and should only be reve

rsed if arbitrarily

made. United

States v. Greene, 250 F.3d 4 71, 478 (6 th Cir.2001) ; United States v. Finch, 998 F.2d 3 49, 352 (6 th Cir.1993 ). To this e nd, “rev iew of an affida vit and search warrant should rely on a ‘totality of the circ

umstances’ determination, rather than a line-by- line scrutiny.” Greene, 250 F.3d at 479. Th e district court’s denial of Lattner’s moti on to suppr ess is reviewed by this Court f

or clea r error with resp ect to tha

t c ourt’s findi ngs of fact and de novo with resp ect to conclusi ons of l aw. United Sta tes v. Mig gins, 302 F. 3d 384 , 397 ( 6th C ir.20 02) (ci ting United States v. Bradshaw, 102 F.3d 204, 209 (6th Cir.1996)).

The affidavit in this case was given by one of the investig atin g officers. After rec ounting the averring officer’s professional history , the affidavit summarizes the factualbasis for the warrant request as follows:

OnJuly 16, 2001, the affiant rece ived a complaint that the location of 2416 Monterey was involved in narcotic trafficking. On July 16, 2001, the affiant went to the location of 2416 Monterey and conducted

a fixed s u rveillan

ce for 3 0 minutes. During this surve illance 3 persons a rrived a t this location, entering the front door and staying

a few minutes and returned with small i

tems in their hands (concealed manner). The affiant was afforded the opportunity to speak with one of the buyers B /M/40's wearing blue jeans and a y ellow shirt, affiant asked buy er “If Marty
was opened f

or busine ss” and buy

er repl ied “y

es” and open[ed his] hand showing affiant one z/l of suspected cocaine.

OnJuly 17, 2001 the affiant was work

ing in conjunction

with an SOI . On this da

te the affiant met with the SOI to formulate plan to make a c ontrolled purchase from the locationof 2416 Monterey. T he SOI was searc

hed for money

and narcotics with negative results. The aff

iant issue d secre

t service funds and

instructe d the SOI

to attempt a

purchas e of narcotics from the location of 2416 Monterey . The affiant observe d the SOI

go dire ctly to the front door of the location, enter same and stay for a shor

tperiod of time, then to returnNo. 03-1488 United States v. Lattner Page 4

3 “M arty” was th e name give n police by the init ial anonymous comp lainant as the person responsible for t he ongoing drug tra ff icking at 2416 Monterey . J. A. p. 117. directly back to the affia

nt. The SO I ret urn ed a nd s tat ed t hat th e ab ove sel ler to ld hi m (S OI) to come back later because he (seller ) was out o f cocai

ne. ThisSource of Information has been utilized on 6 occasions, resulting in the arrest of over 4 pe rsons, for the violation of the controlled

substance act

and other re lated of

fenses, with at le ast 3 conv ictions an d cases s till pending in the Way

ne County

Circuit Cou

rt and the

36th District Court. Independent investigation has proven that the SOI’ s information is both credible and reliable.

OnJuly 18, 2001, the affiant went back tothe above location to assure that narcotics activity was still in progress. The affiant set up surveillance f or a time period of 30 minutes and observed 2 persons go to the front door of the above location, enter same for a period of time of less than 45 seconds and the[n] leave the location same manner as above. J.A. p. 40.

The affidavit thus contains several different kinds of information in the form of anony mous assertions, direct observations, corroboration of assertions, and valid infer ences from ci rcumstance s. Id. Throu gh independent surveillance of 2416 Monterey , the affiant witnessed

sev eral people visiting the residence, staying a

few minutes, and then leaving with small packag es. This activity, consistent with the affiant’s training and experience, suppor ted th e anonymous complaint of na rcotics trafficking at that location. The anon

ymo us compla

int was fu

rther c onfirmed

by t he affi ant’ s interview of an identified “buyer,” who, when asked if “Marty was opened for business,” 3 stated that he was and revealed in his hand
one zip-lock bag of suspected cocaine. B ased on these direct o

bservat ions, the a

ffiant ut ilized a re liable informant to attempta controlled purchase from 2416 Monterey onJuly 17, 2001. The source entere d the residence, stayed for a

short time, and was informed by the seller that the seller was currently out of cocaine, butto “come back later.” A reasona ble inference can be made from the statement “come back later” that cocaine would ag ain

be avail able in sa

id location within

a short period of time. To confirm this inference, the affiant retur ned to 2416 M onter ey on Jul y 18th, p rior t o obt ainin g a search warrant for the pre mises. The affiant again o bserved conduct t hat, cons istent with

his training, led him to believe narcotics trafficking was ta ki ng pl ac e a t 2 41 6 M on te re y.
The Magistr

ate, bas ed on the b alance

of the inf ormation c ontained

in the supporting affidavit as set forth above, w as clea

rly within his a

uthority to iss ue the search

warran t for 2416 Montere y -there wa s a “‘fair probability,’ g iven the totality of the circumstances,” that contraband or e vidence of narcotics trafficking would be found at that location. United States v. Johnson, 351 F.3d at 258. The government’s evidence s eized during the execution of the search warr ant included heroin, crack cocaine, c ocaine, marijuana, cash, and drug distribution paraph ernali a and p ackagin g - all e viden ce of na rcoti cs tra ffick ing - and this e vidence was prop erly

introduc ed at tria

l.

Inanattempt to discredit the district court’s conclusion that this affidavit was sufficient to support

a search warrant, L attner

herein raises a series of meritless objections. L attner complains that the affiant’s independent

surveilla nce of 24 16 Monter

ey , includin

g his observation of people coming and going from 2416 in a manne

r indica tive of na rcotics t rafficking and subsequent conve rsation w ithone of the buyers, wa s stale because it took

place two (2) day s prior to securing the search warrant. L attner further argues that the affida vit does not c ontain

any evidenc e to suppor

t the aff iant’s conclusion t

hat the su bstance inthe zip-lock bag showed to him by th e “buy er” wa s cocaine and tha

t the desc ription of the substa

nce was insuffic ient.

The affiant’s independent investigation prior to ob taining the search warrant for 2416 Montere y spanned three day s. The affiant conducted surveillance in the manne r described above on the first day, an attempted controlled purchase by

an informant on the second, and further surveillance on the third. TheNo. 03-1488 United States v. Lattner Page 5

investigation

continued up to the hour before the affidavit was made and search warrant obtained, and the informationcould har

dly have been more up-to-the minute. As for the aff iant’s description of his encounter

w ithone of the buye

rs, Lattner focuses on infor mation that is not present, rather than on information tha t is present. The affiant does indicate that he saw the buyer lea ving 2416 Mo nt er ey. He describes what the buyer was wearing. The affia

nt further recounts the conversation between him and the buyer: the af

fiant asked the buyer whe

ther “Marty

was opened for business.” In response, the buy er said “yes,” and opened his hand to reveal what

the affiant referred to as a “ one zl [zip-lock bag] of suspected cocaine.” Based on the affiant’s experience with narcoticsinvestigations and the countless times he has observed cocaine, the affiant’s description of what was observed during the independent surveillance of 2416 Monterey is clear ly sufficient to establish probable cause that drugs we re being sold from that location.

Lattner further contends that any prior evidence of nar cotics trafficking at 2416 Monterey was negated when the informant was not able to make a controlled purchase, being told instead to return later because the seller was out

of cocain e. Lattn er argue s that this faile d cont rolle d purc hase i ndica ted th at dru gs were no longer present at the loc ation. However, as the Un ited State s points out : [T]he selle

r did not sa

y, “Don’t co me back. ” He said “Come ba

ck.” Thi s means th at while he was presently out of

cocaine, he would have cocaine later. Further , the seller did not say to come back two days from now, a week from now, or a month from now. He said to come ba ck “l at er .” “La te r” is re as on ab ly i nt er pr et ed as la te r t he sa me da y or th e n ex t d ay.
The indicatio n th at drugs would be available “later” was confirmed with additional surveillance of the property the ne

xt day - immediately

prior to securing the search wa rrant.

Lattner relies on United States v. Weaver, 99 F.3d 1372, 1378 (6 th Cir.1996 ), to support his argument that the search warrant is based only upon the conclusory suspicions of the affiant and, thus, is not sufficient to establish probable cause. Weaver, however, can be easily distinguished onits facts. Therein, the aff idavit found to be

lacking in probab le cause

was desc ribed as follows: [r]eading this affidavit in a “pract ical, co mmon-sen se” manner, the only claim of p ossible wrongdoing

is the averment

that, within three days prior to the affidavit date, the informant
was on the suspect premises and, while there, he saw some quantity of marijuana “expre ssly for the purpo se of unla

wful distr

ibution.” [The aff iant] pres ents no un derlying factual circumstances to support the in forman t’s knowledge regar ding distribution, nor the detective’s own “belief” that these quantities of marijuana were present “for the purpose or with the intention of

unlawful p ossession, sale or transportation,” or even that marijuana would be on the premises when the warrant was e xecuted. . .

. From this affidavit, all other informationthat the government cites as particularized fac ts, that is, t he suspec t’s name, address
, and description of the residence, could arguably be obtained by a

ny person passing the [site of the search]. As presented, the co mbined bo ilerplate language and minimal handwritten

information provide few, if any , particularized facts of an incriminating nature and little more than conclusory state ments of affiant’s belief that probable caus e existe d regarding criminal activity.

Weaver, 99 F.3d a

t 1378-79. Additiona

lly, this cour

t has held

that “ Weaver’s

holding is that the uncorroborated

search warran t was def ective is limited to the facts

of that case.” United States v. Allen , 211 F.3d 970, 974 (6th Cir.2000) ( en banc ).

The affida

vit at is su e here is clearly based on more than hearsay information from a confidential informant and bare conclusions made by the affiant. In Wea ver, the affiant was given a tip by a confidential informant that was never verified. Id. at 1379-80. Here, the affiant verified the initial anonymous complaint of narcoti cs traff

icking t hrough a three -day

independ ent i nvestigation combining surveillance and an attempt at a contro lled purc

hase by an infor mant. The aff

iant f urther made contact with one of the people see nNo. 03-1488 United States v. Lattner Page 6

leavingthe premises and

confirmed that the person was in possession of suspected contraband that had been purchased

fr om th e p er so n a cc us ed by t he an on ymo us co mp la in an t o f s el li ng dr ug s a t 2 41 6 M on te re y. Based on the anonymous compla int, a statement from a person seen leaving the pr emises, and the affiant’s direct observat ions a nd tra ining and exp erienc e, it was sufficiently pr obable that evidence of narcotics trafficking would be found at 2416 Monterey

. B. Rule 404(b) Evidence

Prior to trial, L

attn er m oved to prevent the United States from introducing certa in FRE 404(b) evidence, including: 1) testimony regarding heroin pac

kets stamped “World Domanation” that were seized fromLattner d

uring an October 1999 arrest (the “Junction Evidence”) ; and 2) testimony reg arding three separa te incidents during which drug packets stamped “World Domination” were seized from 4155 Wesson Street in Detroit, a residence later established as belonging to La

ttner (the “Wesson Evidence”). The United States asserted that the eviden ce was be ing offered to show a plan or consistent opera tion and to show identity, in response to L attner’s defenses of lack of knowledg e, mere presence, and ac cidental presence: [b]ecause the name “World Domination” was found on drugs at Wesson and at Junction, as wellas on the stamp pad

in the instant case and [because] defendant was connected by

his testimony to the Wesson dwelling and by h is presenc e with the

drugs a t the Junction addres s, it is more likely that he was conne cted to the drugs in the instant case.

J.A. p. 81. The

district c ourt, based on the foregoing prof fer, denied Lattner ’s motion, finding that there was

a substantial basis for believingthat the prior acts took place, that they were probative of a

proper purpose, and that the probative value outweighed the pre judicial effect.

The district c ourt’s Rul e 404(b)inquiry must consis t of three

parts. F irst, the district court must make

a preliminary dete

rmination regarding

whether there is sufficient evidence that the “other a cts” took place. The district court must then determine whether those “other acts” a re admissible for a proper purpose under Rule 404(b). Finally, the

district court must determine whether the “other acts” e vidence is more prejudicial thanprobative. United States v. Mack, 258 F.3d 5 48, 553 (6 thCir. 2001) . As noted above, the district court, based on the foregoing proffe

r, denied Lattner’s

motion to prevent the United States from introducing the “othe r acts” evidence in question, finding that there wa s a substantial basis for believing the prior act s occurred, th at they wer

e probative of a proper purpose, and that the pr obative value outweighed th e prejudicial effect. This Court reviews the district court’s determination of the admissibility of 404(b) evidence for abuse of discretion. Mack , at 553.

Lattner argues that the trial court erred because it did not make a f actual determination that Lattner had committed

the alleged misconduct, that the FRE 404(b) evidenc e was not for a proper purpose under the rule, and

that the evidence was more prejudicial than proba tive. “In the Rule 404(b) context, similar act evidence is releva

nt only if the jury ca

n reasonably

conclude that the act

occurred and that the defendant was the actor.” See Huddleston v. United States, 485 U.S. 681, 689 (1988); see also Dowlin g v. Unite d States, 493 U.S.342, 348-49 (1990) (noting that the court need not conclude that the de fendant committed the other act beyond a re asonable doubt to admit the testimony, the standard is whe ther a jury c o uld r easonab ly conclude that the act was committed and that the defendant committed the act). Following L attner’s motions to exclude the proposed FRE 404(b) evidence in this case, J.A. pp. 59-64 & 66-68, the district court took briefs on the issue, J.A. pp.78-89 & 69-74, and heard protracted oral arguments, J.A. pp. 192-207. After the first set of arguments on this issue, the district court issued a

ruling deny

ing without prejudice the motion with respect to the Junction and Wesson Evidence. J.A. p. 206. The Court indicated that the matter could be re-visited at trial and, indeed, heard further argument

on the issue prior to

the introd

uction of saidNo. 03-1488 United States v. Lattner Page 7

4 Lattn er accuses the district co urt of no t utilizing disc retion w ith respe ct to its ruli ng regar ding t he 404(b) eviden ce at i ssue, pointing to statem ents made by the di stri ct court during the second round of oralargument s on thi s motion. The distr ict cour t, in urgi ng the coun sel for the Unit ed States to th ink about the pote nti al draw- backs of i ntr oducin g th e FRE 404(b) e viden ce, s tat ed: “THE CO UR T: A nd ju st let me sa y that - W hile I’m talk ing or [ defen se co unsel’s ] talk in g, I ’m i nvi ti ng y ou , [counsel f or the United States], to think about - I take it if a convict ion result s, thi s might be the basis f or something going on in Cincinnat i, and wheth er you want it or not.” J .A. p. 4 53. L attner m iscon strues the se co mm ents. A review of the r ecord indicates that how the ruling on t

his is sue might hold up on a ppe al was o nly one of many factors considere d by the di str ict court in ma kin g it s ru li ng wi th r espect to t his Rule 404(b) evidence. The stat ement cert ainl y does not dem onstra te tha t t

he cour t f ail ed to e xerci se di scre ti on with resp ect to it s ruling. T he C ourt ind eed expla ined its ru ling in this

manner: “TH E C OU RT : . . . I am de nying it [def ense ’s moti on to suppress the Juncti on and W esson 404(b) Evidence ] without prejudice. I thi nk it ’s poss ible t hat - - I g uess [ that

based on] the background of the evi dence as i t comes i n at t rial , th at that can be rai sed ag ain and maybe succe ssfully. It seem s to me that it is the vario us elem ents of w hat will be o ffered in to evid ence [that] is cer tain ly probat ive, and then the ques tion becomes is i t somewhat unfai rlyprejudici al, and that kind of balancing I t

hink had better be d one with a fuller se t of facts and testimony and ev idence bef ore the c ourt as we would have at trial .” J.A. p. 206. The district co urt’s ruling sh ows a balan cing o f the relev ant facto rs and a definite utilization o f discre tion. evidence. J.A. pp. 449-456. 4 The district court, by de nying Lattner’s motion to suppress after such lengthy exposition of

the issue s, ruled t

hat ther e was a s ubstantia l probabi lity

that the other acts had occurred. Ther e is certainly no abuse

of discretion in this determination.

When considering whether the Junction and Wesson Evidence were introduced for a proper

purpose under Rule 404(b), it must be remembe red that Rule 404(

b) is an inclusionary, ra

ther than exclusionary, rule

. S ee, e.g., United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985). See also, e.g, United States v. Myers , 102 F.3d

227 (6th Cir .1996); United States v. Bakke
, 942 F.2d 9 77, 981 (6 th Cir.1991 ); United States

v. Vance , 871 F.2d 572, 575 (6th Cir.1989), cert

. d en ied , 493 U.S. 9 33 (1989) . Specifi cally , the Rule provides that “ evide nce of o ther cr imes, wrongs or acts” may be admissible for purposes such as “proof of motive, opportunity, intent, prepara tion, plan, knowledge, identity , or absence of mistake or accident.” FRE 404(b). While the law is c lear that evidence of past criminal activity is inadmissible to show criminal pr op en si ty, United Sta tes v. Is mail, 756 F.2d 1253, 1258-1259 (6th Cir.1985), “Rules 401 and 402 estab lish the broad principle that relevant evidence - evidence that makes the existence of any fact at issue more or less probable - is admissible unless the Rules provide otherwise.” Huddleston v. United States, 485 U.S. at 686. See United States v. Feinman, 930 F.2d 495, 499 (6th Cir.1991) (“To determine whether the proffered evidence is admissible for a proper purpose, the trial court must decide, ‘whether the evidenc e is probative of a mat erial issu e othe r than charact er.’”( quot ing Huddleston, 485 U.S. at 686)). The government’s proffer of the 404(b) evidence argue d that the e vidence was nec essary

to prove Lattner’s specific intent to distri bute, his g uilty knowledge

of the crime, his plan or consistent method of operation, and identity, as well as to re but Lattner’s possible defenses of lack of knowled ge, general an d specific intent, mere presence, accidental presence, or mistaken identity . This Court has held that when a defendant is charged with a specific intent crime, suc h as possession with int ent to distr ibute, 404(b) evi dence is a dmissible to prove intent, subject to the probative/prejudicial balancing. United States v. Johnson

, 27 F. 3d 1186, 1192-93 (6th Cir.1994). Lattner arg ues that the 404(b) evidence should not have been admitted for

this purpose because he did not raise any issue of intent at trial. However, it seems logical that when Lattner pled not g

uilty to the offense of posse ssion with intent to distribut e, he put his general intentand specific int ent at is sue, thereby giving the government the burde n to establish both beyond a reasonable doubt. This Court has held that Rule 404(b) evidence of prior involveme nt in uncharged drug offenses is indeed relevant and admissible on the issue of intent. See United States v. Clemis, 11 F.3d 597, 600 (6th Cir.1993), cert. denied, 511 U.S. 1094 (1994). Furthermore, claims of innocent presence or association, such as that mad e by Lattner’s defense, routinely open the door

to 404(b) evidence of other drug a cts. For instance, in United Sta tes v. Is mail
, 756 F.2d 1253, the defendant was co nvict ed of conspiring to import and distribute heroin based, in part, on evidence that his name, telephone number, address, and a statement of ac count were found in the addre ss book of a known drug dealer. Id. at 1254-56. The defendant attempted to claim innocent association - thatNo. 03-1488 United States v. Lattner Page 8

5 Th e Co urt’s limiting instru ction w as rea d as fo llows:

You have hear d test imony t hat t he defendant

all egedly committe d or was involved in some act si milar to the crimes charged in t

he In dict ment but a t di ff

erent ti mes an d plac es. I’ m ref erri ng t o the inc ident

in f ront of 5186 Juncti on Street

on October

28, 1999; the two a rres ts of Tremay ne Nowden i n or ne ar 4155 Wesson St reet on October 27th and Sep temb er 12 , 199 9; and the arre st of T hom as Lath am a t 415 5 W esson on S eptem ber 1 5, 19 99. You cannot cons ider this as evid ence of the d efend ant’s cha racter to- - to be acting in c onfo rmity with that character

. Inst ead, I ins truct

you th at evi dence was admit ted only for t he li mited purpos e to be consi dered by you on the questions of the defendant’s identit y as one who possessed the contro lled sub stance s, his allege d inten t to commit the crimes, and t o deli ver the controll ed substances, his alleged plan in committing the offenses , and/or the preparation t o deliver the

con trolled substa nces tha t he is now on trial fo r and for no other p urpo se.
J.A. p p. 13 38-1 339

. his ties to the

drug de aler ar

ose only out of his le gitimate

business ventures

wherein he trave led to the United States in order to make bulk sales of precious stones. Id. at 1257. Another panel of this Court upheld the districtcourt’s decision to allow testimony regarding two prior

uncharged hashish and cocaine transactions
as evidence of prior

bad acts under FRE 404(b). Id. at 1258-59. This Court held that the evidence of prior drug transactions could be introduce d to prove a sch eme or pl an to traffic ha shish and t hat provi ng said scheme was probative with respect to evaluating def endant’s defe nse of innocent association. Id. at 1259-60. See also United States v. Bennett, 848 F.2d 1134 (11th Cir.1988) (holding that evidence of a prior conviction and evide nce of a five-y ear-ol d scheme to import cocaine admissible to establish intent given defendant’s innocent explanation that the reason he pulled up to the drug laden vessel was his concern f or the safety

of anyone that migh

t be aboa rd). The “explana tion” set f orth by Lattner with r

espect t o his presence at 2416 Monterey at the time the search

warrant was executed - that he only stopped by

the resid ence be cause hi s vehicle had broken down and the residence was ne arby - i s similar to the “explanation” employed by the defendant in Ismail . The fact that Lattner had be en involved in other drug transactions involving contraband stamped “World Domanation” connects him to the drugtransactions taking place at this residence, w here

a stamp labeled “World Domination” was also f ound, and thus diminishes the lik

elihood that a

jury would believe his innocent “explanation” for being present a t the residence. Perhaps most

persuasive is the government’s proffe r based on the similarity betwe en the defendant’s instantoffense

and the ot her act s. This renders proof of the prior acts admissible under F RE 404(b) to show planand metho d of oper

ation. L attner u sed a “br

and name ” on his he

roin in both 1999 and 2 001. “Worl d Domanation” was stamped on heroin packet s at Wesson and Junction and an in k pad with

“World Domination” on the stamp was found in the instant 2001 search warrant execution. See United States v. Rivera, 971 F.2d 876 (2d Cir.1992) (affirming that evidence of brand logo on seized

heroin c ontribute d to the sufficiency

of the evidence).

The 404(b) e

vidence herein a t issue is probative on a wide array of relevant

issues, a nd no facts exist to show why

this evide

nce shou ld be seen as more prejudicial than the evidence at issue in numerous other
cases wherein

this Court has upheld the admissibility of prior drug conduct. See, e. g., Ismai l
, 756 F.2d at 1258. Although, as with all admitted evidence of prior bad acts, this Court may assume that some pre judice potentia lly inhered in the testimony conc erning prior drug transac tions, the distri ct court gave a strong cautionary instruction about the limited permissible use of the other acts evidence during the g eneral jury instructi ons. J.A. pp. 1338-1339. 5 In so doing, “ the distri ct court

helped to insure th at the ap

pellant w ould notbe prejudiced by

the introductionof [evidence of prior drug transactions].” Ismail , 756 F.2d at 1258. See also United States v. Ring, 513 F.2d 1001, 1004 (6th Cir.1975). Thus, the other acts evidence was admissible

for a proper purpose and the district court did not abuse its discretion in balancing its probative value against the p otential prejudic ial impact.No. 03-1488 United States v. Lattner Page 9

C. Appellant’s Motion for New Trial Following the jury

verdic t in this c ase, Lattner moved for a new trial based on the individual and cumulative effect

of multiple

alleged trial errors which Lattner argues resulted in a denial of his right to a fair trial under the Fifth Amendment. Thedistrict court’s denial of a motion for new trial is reviewed under an abuse of discretion standard. United States v. Gaitan-Acevedo, 148 F.3d 577, 589 (6th Cir.1998).

The claimed errors include: 1) a statement by the district court judge in front of the jury intimating that a portion of

the Lattner’stestimony

was untru

e; 2) an e ncounter in which se

veral ju rors saw Lattner in handcu ffs and be ing escorted onto an elevator by U.S. Marshals during the pendency of the trial; 3) excessive interference by

the d istrict court judge in the pr esentation of Lattner’s c ross-examination and direct examination; 4) statements by counse l for the Unite d States du

ring re buttal ar gument t hat ref erence d facts notin evidence; and 5) failure to give the jury the option of convicting Lattner of possession with the intent to distribute

less than50 grams of cocaine base. This Court finds that the denia l of Lattner’s motion for new trial was a proper exercise of the district court’s discre tion because neither indi vi du al ly n or cumula tively do Lattner’s acc

usations warrant a new trial.

It is true that a trial judge should exercise self-restraint and preserve an

atmosphe

re of impa

rtiality and that the appearance

of impartiality is as important as the fact of impartiality. United States v. Whitman, 209 F.3d 619, 625 (6th Cir.2000). The district court judge indeed upheld this duty, and did not, as Lattner implies, say that L

attner’s testimony was un true. The f

ollowing statemen ts, of whic

h Lat tner com plains,
were made at t

he beg inning of

the redi rect exa mination of

the defe ndant af ter he a dmitted und

er cros sexamination to having

prior fe lony

convicti ons:
RE DIRE CT EXA MINA TION BY M R. ROY AL: Q. How did tho se convic tions come

about? A. Some lies. I just got caug ht in a Catch-22 and some lies, some police office rs. Q. The - D id y ou go to tri al in oneof the ca se s? A. No. I-I had a law ye r who - who told me tha

t every thing wa s going

to be all right, just take a bench trial and the judge found me g uilty then. He said the only

way I co uld go ho me if I

pled gu ilty to the other one, and of course, I wanted to go homeTHE COURT: I’m not going to have any

explanation of t his nature here. I take it, um, there were g uilty pleas in b oth case s? MR . R OYA L: No, that’s - THE COURT: We’re no t going to attack those gu ilty pleas. MR . R OYA L: Iunderstand it, but what I understoo d hi m to say there wa s a

bench trial in one case and a guilty plea in the other. THE COURT: He was trying to say that he g ot pressured into the guilty plea too, and that very likely

is not true. But whether it’s true or not, we’re not going to have testimony

about it here. MR . R OYA L: All right. Very good. I have no f

urther questions, Your Honor. THE COURT: Mr. Mueller? MR. MUEL

LER: No. Your Honor. THE COURT: All right. Mr. Lattner, y ou’re excused. Thank y

ou.
J. A. pp. 1202-1203. The defense made no immediate objection or re quest for an immediate ins truction

. Furthermore, Lattner’s testimony about which the court commented did not concern his guilt or innocence withrespe ct to the crimes charged, but rather concerned only

his motive for pleading guilty to one of th e prior convictions. This stat ement by the distri ct court

judge d id not unfa

irly prejudic e La

ttner, a nd, thus, he is not e

ntitled to a

new tria l on this ba sis.No. 03-1488 United States v. Lattner Page 10

Likewise, Lattner is not entitled to a new trial simply because seve

ral jurors briefly

observe d him in handcuffs while he was being escor ted o nto an elevator. Such brief juror observation does not cre ate the level of prejudice to the defendant as was contemplate d in Illinois v. Allen, 397 U.S. 337 (1970) (discussing impact of defe ndant bei n g sh ackled d

uring e ntire tri al), and , theref

ore, this Court has held that ju

rors’ observation

of a defendant in handcuffs is not grounds for a new trial. See United States v. Chipman, 513 F.2d 1262, 1263 (6th Cir.1 975); United States v. Crane, 499 F.2d 1 385, 1389 ( 6th Cir.197 4). Othe r circu its have held similarly. See United States v. Halliburton, 870 F.2d 5 57, 562 (9 th Cir.1989 ); Boswell v. Alabama, 537 F.2d 100, 104 (5th Cir.1976).

Lattner further argues that the trial court inter fered with the pre sentation of hi s defens e by excessive ly interrupting his counsel, while the counsel for the United States wa s rarely

interrupted. L attner provides a string of cites t

o the tra nscript o f this tria

l wherei nthe distr

ict cour t judge a lleged ly in appropr iately interrupted

Lattner’s counsel. See J.A. pp. 281, 286, 293-94, 296-97, 299, 306-309, 313, 321, 363, 365, 367, and 369. Reference to these c itations r evealsconduct by the district cour t judge that, contrary

to Lattner’s assertions, did notundermine the defense but rather directed the course of the litigation in an expeditious
manner benefic ial to all

parti es inv olved . A dis trict court judge has the authority to control the c ourtroom procee dings, United States v. Warner, 971 F.2d 1189, 1197-98 (6th Cir.1992), and both the prosecution and defense were subject to the cour t’ s intercession in the conduct of examination of witnesses and the presentation of evidence when warr anted.

Neither was Lattner’s due pr

ocess right

to a fair trial affected by

a statement made by

counsel for

the United States in rebuttal argume

nt. The c ounsel sta

ted: “Use you r common s ense. Yo

u’re sitt ing in the City of Detro it. There are hundreds and thousands of g uilty drug dea

lers within eight

miles of you right now.” J.A. p. 13 28 . La tt ne r c la im s t ha t t hi s s ta te me nt wa s “ a m ea ns by t he go ve rn me nt to fu rt he r i nf la me th e j ur y, to do something about saving the community in whichthey

live through the act of convicting the def endant before them.” Lattner, howeve r, takes this statement out of context. The statemen t, while in poor taste and likely not suppor

ted by facts in evidence, was part of a larg er direct response to the defense’s a rgument that the police of

ficers i nvolved in

the case were mot

ivated to convict t he defe ndant des pite his innocence i n order to sat isfy thei r war on drugs. For in stanc e, in c losi ng, Lattne r’s counsel stated “[d]uring y our deliber ations, please don’t ask y

ourself what is reasonable, what is logical, wha t makes sense. We have to be fair. That’s wha

t the whole

court sy stem, the c

riminal ju stice sy

stem is all a

bout, and when evi dence is embellished, exaggerated or cha nged around by

police officers, it makes it very difficul tfor a jury to r

each a fair decision.” J.A. p. 1311. The argument clearly was warranted by

the summation of the defense, and the district court mitigated any possible prejudice

with appropriate instructions to the jury regar ding the role of attorney ar

gument in the trial of the case. For example, in United States v. Young, 470 U.S. 1 (1985), the Supreme C ourt held

that: [i]nappropr

iate prosecu

torial comments, standing alone, would not justify a reviewing

court to reverse a criminal conviction obtained in an otherwise f air proceeding. I

ns tead, . . . th e remarks must be exa

mined with

in the con

text of the t

rial to de

te rmine whether the prosecutor’s behavior

amounted

to prejud icial er ror. I n other w ords, the Court must consider the probable effect the prosecutor' s re s ponse would have on the jury's ability to judge the evidence fairly. I

n this context, defense counsel's conduct, as well as the nature of th e prosecutor's response, is relevant.

Id. at 11-12. Thus, this a rgumen t fails as well.
Next, Lattner’s arg

uments that the trial court

erred in failing to give the jury the option of

convicting him of possession with the intent to distribute less than 50 grams of coca ine base an d furthe r erre d in permitting Latt

ner to be impeach ed under

FRE 609 wi

th two prior narco tics-re lated convictions also fail

. There w as no evi dence, and none is cited by Lattner, that the amount of cra ck cocaine was fifty

grams or less. Theref

ore, the court pr operly ruled that the jury should not be allowed to consider such a verdict. The court also p roperly a

llowed impeachment of Lattner’ s credibility by the introduction of evidence of two priorNo. 03-1488 United States v. Lattner Page 11

felony drug c onviction s. FRE609(a)( 1) permit s evidence of prior convictions when the court deter mines that the probative v alue of admi tting the evidence outweighs its prejudicial eff ect. See United States v. Gaitan-Acevedo, 148 F.3d at 591-92. The pro bat ive value of this evidence is high in the instant matter, where the assessment by the jury of which witnesse s to believe was crucial to the outcome of the case. On the other hand, the prejudicial effect of the e vidence was minimal, as the prosecution had alread y pr operly introduced, under FRE 4 04( b), evidence of La ttner’s prior involvement in drug transactions. As the government

points out in its brief, “[t]he only new thing brought to the jurors when the impeachment was introduced was the idea that they could use the evidence to assess credibility .”

As there ha s been no

single error found, there is no cumulative effec t of error rising to the level of prejudice warranting a new trial.

AFFIRMED.