UNITED STATES

v.

JAMES HARDING

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit No. 23-10479 UNITED STATES OF AMERICA, versus JAMES HARDING, a.k.a. Old School, a.k.a. Shakey, Plaintiff-Appellee, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Alabama D.C. Docket No. 1:21-cr-00165-TFM-MU-1

23-10479 Opinion of the Court 3

I. BACKGROUND

A federal grand jury returned an indictment that charged James Harding and four codefendants with drug offenses. The indictment alleged that Harding participated in a conspiracy to distribute heroin in the Southern District of Alabama that began in early 2018 and ended on or about April 23, 2019. The indictment charged Harding with two counts: conspiracy to possess with intent to distribute heroin, see 21 U.S.C. § 846, and possession with intent to distribute heroin, see id. § 841(a)(1). Before trial, Harding moved to exclude all evidence obtained from a search of his home. While executing a search warrant at Harding's home on September 15, 2021, officers recovered multiple firearms and almost two kilograms of heroin. Prosecutors sought to introduce this evidence under Federal Rule of Evidence 404(b) to establish Harding's intent to participate in the conspiracy. Harding argued that the evidence failed to satisfy Rule 404(b) because it was offered to establish his bad character for drug trafficking. At a pretrial hearing, the United States argued that the evidence was extrinsic evidence admissible under Rule 404(b), but the district court asked whether the evidence could also be intrinsic evidence of the charged conspiracy. The United States responded that the evidence could be "admissible as intrinsic evidence” because the indictment identified Harding “as a source of supply for heroin in the charged conspiracy." The district court ruled that the evidence

23-10479 Opinion of the Court 5 more of it. When shown a picture of a house located at 2700 Ensley Five Points West Avenue in Birmingham, Snowden identified the house as Harding's residence. Snowden explained that he knew where Harding lived because Clark had pointed out Harding's home while driving by it one day. Snowden admitted that he was arrested in 2019 and was in custody for drug crimes, that he had entered into a plea agreement with the United States, and that he hoped to receive a lesser sentence for his cooperation. Keith Kidd also testified for the United States. He explained that for several years he had purchased cocaine from Snowden. During one transaction, Snowden told Kidd that the heroin was coming from "[s]omebody from Birmingham named Ol' School." But according to Kidd, Snowden never identified Ol' School. Kidd testified that, like Snowden, he was in custody at the time of his testimony and had entered into an agreement with the United States in exchange for his cooperation. The United States also called agents to testify about the September 2021 search of Harding's home as part of a separate federal investigation in the Northern District of Alabama. Agents testified that on September 15, 2021, they arrived at Harding's home in Birmingham to execute a drug search warrant. They explained that during the search, they recovered multiple firearms and large quantities of drugs, including two bricks of compressed powder. A

II. STANDARD OF REVIEW

We review for abuse of discretion the admission of evidence. United States v. Troya, 733 F. 3d 1125, 1131 (11th Cir. 2013). A district court abuses its discretion when its ruling "rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact." United States v. Smith, 459 F. 3d 1276, 1295 (11th Cir. 2006) (citation and internal quotation marks omitted). The district court enjoys broad discretion to admit relevant evidence. United States v. Watkins, 42 F. 4th 1278, 1287 (11th Cir. 2022). We also review for abuse of discretion a refusal to give a proposed jury instruction. United States v. Gonzalez, 975 F. 2d 1514,

23-10479 Opinion of the Court 7 1516 (11th Cir. 1992). A district court abuses its discretion by denying a requested jury instruction when the instruction is substantively correct, it was not substantially covered in the charge given to the jury, and the failure to give it seriously impaired the defendant's ability to present an effective defense. Id.

III. DISCUSSION

We divide our discussion into two parts. First, we explain that the district court abused its discretion by admitting the September 2021 search evidence as intrinsic evidence of the charged conspiracy and that the error was not harmless. Second, we explain that although the search evidence was admissible under Rule 404(b), the district court abused its discretion by failing to provide a limiting instruction and that the error was not harmless.

A. The District Court Abused Its Discretion by Admitting the

Evidence from the Search as Intrinsic Evidence of the Charged Conspiracy, and the Error Was Not Harmless. Harding argues that the district court abused its discretion by admitting the evidence seized in the September 2021 search as intrinsic evidence of the charged conspiracy. He contends that the evidence is too temporally remote and is otherwise unrelated to the charged conspiracy. The September 2021 search occurred almost 29 months after the alleged end of the charged conspiracy, and no trial evidence connects the evidence seized during that search to the charged conspiracy. Evidence of criminal activity other than the charged offense may be admissible if it is "intrinsic evidence” of the charged offense.

23-10479 Opinion of the Court 9 1201, 1204, 1214–15 (11th Cir. 2017). The evidence of uncharged conduct involved the same people and pattern of conduct. See id. at 1215. Similarly, in Muscatell, two defendants were charged with conspiracy, fraud, and money-laundering in connection with a land-flip scheme. 42 F. 3d at 628, 631. The scheme was accomplished with inflated appraisals, buyer-rebate schemes, and fraudulent loan applications. Id. at 631. Co-conspirators testified about inflated appraisals, buyer-rebate schemes, and fraudulent loan applications that occurred in the months before and after the crimes charged in the indictment. Id. at 628–30. We upheld the admission of that testimony as intrinsic evidence because the uncharged acts concerned the same series of transactions. Id. at 630. The charged offenses “were not isolated acts,” but were instead “part of a series of transactions involving the same principal actors, in the same roles, employing the same modus operandi.” Id. We explained that other transactions connected with charged offenses “have long been used to show a general pattern, the necessary criminal intent, or the guilty knowledge of the defendant.” Id. at 631 (quoting United States v. Dula, 989 F. 2d 772, 777 (5th Cir. 1993)). Evidence is necessary to complete the story of a crime when the evidence explains the “context, motive, and set-up of the crime" or reveals important details about the criminal scheme. See United States v. Holt, 777 F. 3d 1234, 1261–62 (11th Cir. 2015) (citation and internal quotation marks omitted). In Holt, we held that evidence of drug transactions from 1995 was necessary "to

23-10479 Opinion of the Court 11 circumstances" with the charged crime. See US Infrastructure, 576 F. 3d at 1210. Harding was charged with a conspiracy in the Southern District of Alabama beginning in early 2018 and ending on or about April 23, 2019. The search evidence was seized in the Northern District of Alabama in September 2021-almost 29 months after the alleged end of the conspiracy. The United States failed to prove any link between the search evidence and the charged conspiracy. Harding was not distributing heroin to Snowden in September 2021 because Snowden was arrested in 2019 and remained in custody afterward. See United States v. Postal, 589 F. 2d 862, 888 (5th Cir. 1979) (stating that "[a] coconspirator's participation in a conspiracy ends with his arrest"). The United States provided no evidence of how Harding acquired the heroin and firearms in his home or where they were headed. In contrast, when we have ruled that uncharged acts were “linked in time and circumstances" with a charged crime, the uncharged acts involved the same parties and the same agreement. See, e.g., Horner, 853 F. 3d at 1213–15 (holding that tax returns from 2005 and 2006 were intrinsic evidence of a later conspiracy because the evidence proved that the defendants "had an ongoing plan” to divert business cash into their personal accounts and the older evidence was "part of the same plan" and "used the same modus operandi as the charged offenses—diverted cash receipts"). Nor was the search evidence necessary to complete the story of the charged crime. See Holt, 777 F. 3d at 1262. We have held that evidence of drug transactions from five years before a conspiracy began was necessary to complete the story of a crime because it

23-10479 Opinion of the Court 13 We review evidentiary errors for harmlessness. United States v. Green, 873 F. 3d 846, 866–67 (11th Cir. 2017). A non-constitutional error warrants reversal only if “there is a reasonable likelihood that the error affected the defendant's substantial rights." Id. at 867. When conducting a harmless-error analysis, we ask “whether the error had substantial influence and whether enough evidence supports the result apart from the error." Id. We have held that the erroneous admission of prior-act evidence was harmless when five witnesses gave consistent accounts about a defendant's involvement in a drug-distribution conspiracy. See United States v. Hubert, 138 F. 3d 912, 914 (11th Cir. 1998). By contrast, we held in United States v. Hands that an evidentiary error was not harmless when the United States relied on eight “highly questionable” witnesses who "each testified in the hope of receiving a reduced sentence" and whose testimony the United States was “unable to bolster" with "independent corroborating evidence.” 184 F. 3d 1322, 1330-31 (11th Cir. 1999). We cannot say that "enough evidence supports the result apart from the error,” so the admission of the September 2021 search evidence was not harmless. See Green, 873 F. 3d at 867. As the United States concedes, Snowden was the “central witness” against Harding. Several witnesses testified that someone named Ol' School was involved in drug activity, but Snowden was the only witness who identified Harding as Ol' School. And like the "highly questionable" witnesses in Hands, Snowden testified that he had been involved in drug transactions and that he had entered into an agreement with the United States and cooperated with the hope of

23-10479 Opinion of the Court 15 charges" against Harding. The prosecutor asked the jury to consider “all the[] firearms” and the "[two] kilograms of heroin” found in Harding's home when deciding Harding's guilt. And the prosecutor explained that if the jury found Harding guilty of conspiracy, then it should consider "the [two] kilograms [of heroin] that were seized from his house" when determining the quantity of heroin for which Harding was accountable. These invitations to rely on the erroneously admitted evidence as evidence of Harding's guilt likely had a "substantial influence” on the jury's verdict. See Green, 873 F. 3d at 867. So the error was not harmless. The United States argues that any taint to the conspiracy offense should not affect the distribution charge. But our precedents make clear that evidence of multiple firearms and a large quantity of drugs in a defendant's home can lead to inferences about one's intent to distribute. See United States v. Madera-Madera, 333 F. 3d 1228, 1233 (11th Cir. 2003) (explaining that federal law “permits an inference of intent to distribute from a defendant's possession of a significantly large quantity of drugs"); United States v. Terzado- Madruga, 897 F. 2d 1099, 1120 (11th Cir. 1990) (“It is uniformly recognized that weapons are often as much 'tools of the trade' as the most commonly recognized narcotics paraphernalia.” (citation omitted)). The erroneously admitted evidence could have improperly influenced the jury on both charges.

23-10479 Opinion of the Court 17 argument in terms of whether the evidence was admissible under Rule 404(b), and our precedent too frames the limiting instruction as a requirement for admissibility. See United States v. Costa, 947 F. 2d 919, 925 (11th Cir. 1991) (“Extrinsic evidence of past bad acts is admissible to establish intent, provided the judge offers a limiting instruction to the jury to the effect that the evidence may not be used to establish that the defendant acted in conformity with the past behavior." (emphasis added)). Harding explains that the district court denied his request for a limiting instruction, and he argues, with a citation to supporting authority, that a limiting instruction would have reduced the risk of unfair prejudice. Extrinsic evidence of uncharged bad acts is not admissible “to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” FED. R. EVID. 404(b)(1). But the same evidence might be admissible for other purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. R. 404(b)(2). To be admissible under Rule 404(b), the evidence "must be introduced for a proper purpose, be supported by sufficient evidence, and have probative value that is not substantially outweighed by unfair prejudice." Horner, 853 F. 3d at 1215. Rule 404(b) is a "rule of inclusion," and Rule 404(b) evidence "should not lightly be excluded when it is central to the prosecution's case." United States v. Jernigan, 341 F. 3d 1273, 1280 (11th Cir. 2003) (citation and internal quotation marks omitted), abrogated in part on other grounds by Rehaif v. United States, 139 S. Ct. 2191 (2019). Nevertheless, when the district court admits extrinsic evidence

23-10479 Opinion of the Court 19 become less probative as time passes, but we have allowed the introduction of drug-related convictions to prove intent, even when the prior conviction “is many years old.” Smith, 741 F. 3d at 1225. The extrinsic acts in Smith occurred six and ten years before the charged crimes. Id. at 1226. And in United States v. Dickerson, this Court affirmed the introduction of drug-distribution evidence that occurred almost two years after the charged conspiracy. 248 F. 3d 1036, 1046-47 (11th Cir. 2001). Here, the September 2021 search occurred almost 29 months after the alleged end date of the conspiracy alleged in the indictment. The probative value was not substantially outweighed by a risk of unfair prejudice. Nevertheless, the district court abused its discretion by denying Harding's request for a limiting instruction. Our precedent is clear: when a district court admits extrinsic evidence under Rule 404(b), the district court “must provide a limiting instruction.” Tokars, 95 F. 3d at 1537 (emphasis added). The failure to provide a limiting instruction is an abuse of discretion if the omission “seriously impaired the defendant's ability to present an effective defense.” Gonzalez, 975 F. 2d at 1516. We have held that the absence of a limiting instruction seriously impaired a defendant's ability to present an effective defense when it “opened the door for the jury to consider th[e] evidence in an improper light.” Id. at 1517. Here, the jury was permitted to consider the search evidence only for a limited purpose. See FED. R. EVID. 404(b). The jury was not permitted to consider the evidence as “evidence of [Harding's] character” or as proof "that on a particular occasion [Harding] acted in accordance with [that] character.” See id. R. 404(a)(1). But the jury was never

IV. CONCLUSION

We VACATE Harding's convictions and sentence and REMAND for a new trial.