USCA11 Case: 21-12027 Date Filed: 04/06/2022 Page: 1 of 23
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12027
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY LAMON FRAZIER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 1:20-cr-00300-CLM-GMB-1
____________________
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2 Opinion of the Court 21-12027
Before WILSON, BRASHER, and HULL, Circuit Judges.
PER CURIAM:
After a jury trial, Anthony Lamon Frazier appeals his
conviction for possession with intent to distribute 50 grams or
more of methamphetamine, in violation of
21 U.S.C. § 841(a)(1)
and (b)(1)(A). Frazier argues that the district court erred by
admitting video recordings of a drug dog alerting on his truck
during two inspections because the drug-dog inspections were
inadmissible character evidence, in violation of Federal Rule of
Evidence 404(b). After review, we affirm.
I. BACKGROUND
A. Investigation
In 2019, the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) began investigating Frazier for his role in an
organization trafficking firearms and narcotics in Talladega,
Alabama. In the course of the investigation, the Talladega County
Drug Task Force (the “Task Force”) notified ATF Special Agent
Carrie Lane of a confidential informant, Terry Thomas, who said
he could purchase narcotics from Frazier.
Thomas had known Frazier since 2017 or 2018, when
Thomas accompanied a friend who purchased drugs from Frazier
a few times in front of Frazier’s house. Thomas also knew Frazier’s
“business partner,” Jeremy “Block” Rivers, who aided Frazier in
selling methamphetamine. Thomas had recently talked with
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21-12027 Opinion of the Court 3
Frazier about purchasing some methamphetamine. After
interviewing Thomas, Special Agent Lane planned a “controlled
purchase” of methamphetamine between Thomas and Frazier.
Frazier worked for Talladega County and drove a white,
Talladega County work truck with the county seal on the side.
Special Agent Lane contacted the Talladega County Commission
and verified that Frazier was assigned a specific county truck. The
Task Force also knew Frazier was assigned a specific white, four-
door pickup truck, and the Task Force was unaware of Frazier
driving any other truck.
B. Controlled Purchase in Talladega
On October 10, 2019, the ATF and the Task Force met with
Thomas for the controlled purchase. As soon as Thomas arrived,
the agents searched Thomas and his vehicle. The agents found no
contraband in his vehicle or on his person. The agents provided
Thomas with $9,000 to purchase two pounds of
methamphetamine.
The agents instructed Thomas to place a recorded call to
Frazier to confirm the methamphetamine purchase, and he called
the contact in his phone, “Tony.” At trial, both Thomas and
Special Agent Lane—the latter having listened to “hundreds” of jail
calls involving Frazier—confirmed that the voice on the other end
of the call was Frazier’s. Frazier instructed Thomas to pull up
outside “the house,” which Thomas testified meant near the
railroad tracks “by Block’s grandma’s house.”
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4 Opinion of the Court 21-12027
After the call, the agents provided Thomas with a cell phone
that was also an audio and video recording device. The device was
disguised as a cell phone to avoid detection and to make it “safer
for the informant.” Thomas was instructed not to get out of the
car and “not to mess with the device.” The agents then turned on
the recording device.
Thomas placed the recording device in the vehicle in the
seat next to him and departed for the controlled purchase, while
the agents stayed behind at the briefing location. The agents did
not attempt to get closer because Thomas told them that “the
transaction was going to happen [in] a close-knit community” with
“lookouts that stand on the street.” Therefore, the agents would
have stood out and risked endangering themselves or hampering
the operation if they attempted to surveil the transaction.
On the way to the transaction, Thomas stopped at a
convenience store to buy a lighter and brought the recording
device with him to “show[] [his] every move.” Thomas did not
arrange for anyone to put drugs in his car while he was in the store.
After purchasing the lighter, Thomas went to the meeting
spot. Thomas spoke with Block on the cell phone, who told
Thomas to wait by the white house. Thomas waited for several
minutes for Block to “pull up.” At one point, Thomas got out of
the vehicle to talk to a group of people that included his cousin to
“throw[ ] them off.” While waiting, Thomas saw several vehicles
near, and in the yard of, Block’s house, including a white truck.
Thomas attempted to record the vehicles on the device and called
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21-12027 Opinion of the Court 5
out several tag numbers. Agents, however, were unable to link any
of these tag numbers to Frazier.
Either Block or Frazier texted Thomas to tell him that they
were not ready and for Thomas to wait instead at a store called
Benny’s, located around the corner. Thomas left the transaction
destination and parked outside of Benny’s.
Five or ten minutes later, Block arrived at Benny’s, and
Thomas handed Block the $9,000. Block told Thomas to wait for
a minute “so he could get stuff situated” and drove away. Although
Thomas had the recording device in his car, he did not try to record
Block during the money handoff. Block then called, and Thomas
returned to Block’s house, circling the block before pulling up next
to the railroad tracks. Thomas again recorded Block’s house,
pointing out another white truck parked in front. Initially, Thomas
thought this white truck might be Frazier’s “city truck,” but then
realized it was not.
When Thomas stopped and parked on the shoulder of the
road next to the tracks, both Block and Frazier told Thomas to wait
as they readied the methamphetamine. Thereafter, Thomas
spotted Frazier in the driver’s seat of a white “city truck,” clearly
identifying Frazier as the truck approached him. Frazier drove past
Thomas, turned his vehicle around, pulled over to the same
shoulder of the road as Thomas’s vehicle and stopped his vehicle
directly in front of Thomas’s vehicle. Thomas could see that there
was nothing on the shoulder before Frazier pulled over. Thomas
watched Frazier open his driver’s side door and drop a bag on the
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6 Opinion of the Court 21-12027
ground. Thomas did not try to record the city truck or the drop off
with the device because Frazier would have seen him. After
Frazier drove away, Thomas picked up the bag containing “two
bricks” of methamphetamine and showed the drugs to the
recording device as he got back into the car.
Thomas went directly to the agents and gave them the
methamphetamine. An agent from the Task Force searched
Thomas’s vehicle and did not find any other contraband. Tyrone
Shire, a Drug Enforcement Administration (“DEA”) forensic
chemist, analyzed the methamphetamine and found that it
contained 93.3 grams of pure methamphetamine.
C. Positive Drug-Dog Inspections
In August 2020, Chris Rogers, a police officer with the K-9
unit of the Task Force, oversaw two inspections of Frazier’s work
truck using a dog trained to detect narcotics. At trial, Officer
Rogers testified that his drug dog, Quincey, was “the best [Rogers
had] seen” and had a 100% success rate in training situations. Every
time that Quincey made a positive “alert,” narcotics were present
or had recently been present at the location. However, Quincey
could detect the presence of only narcotics in general and could not
tell the difference between drugs, such as marijuana and heroin.
The two drug-dog inspections occurred on August 18 and
30, 2020. Both times, Frazier’s work truck was in a parking lot with
other county trucks that were white and looked the same—four or
five trucks on August 18, and at least three on August 30. On both
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21-12027 Opinion of the Court 7
occasions, Quincey alerted Officer Rogers to the presence of
narcotics (presently or recently) in Frazier’s truck, the same truck
Rogers personally observed Frazier drive. Also on both occasions,
the Task Force made a “tactical” decision not to search the truck to
determine whether drugs were present.
II. PROCEDURAL HISTORY
A. Arrest and Indictment
On September 9, 2020, two months after the drug-dog
inspections, an arrest warrant was issued, and Frazier was arrested.
On September 23, 2020, a grand jury indicted Frazier for possession
with intent to distribute 50 grams or more of methamphetamine,
in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A). Frazier pled not
guilty.
B. Rule 404(b) Motion
Prior to trial, the government provided notice of its intent
to introduce the two positive drug-dog inspections of Frazier’s
county truck as identity evidence under Rule 404(b). The
government argued that Frazier’s identity “is a material issue for
the jury to decide,” and by pleading not guilty, “Frazier put his
identity squarely at issue.”
In response, Frazier filed a motion in limine to exclude the
inspections evidence. Frazier contended that the videos of the
drug-dog inspections were not needed to prove identity because at
trial Thomas was going to identify Frazier as the drug dealer, and
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8 Opinion of the Court 21-12027
the inspections would serve only as inadmissible character
evidence.
At a hearing on the motion, Frazier argued that
“identification [was] not at issue” because the government had
conceded that Thomas “can identify Mr. Frazier.” The
government responded that it would need the drug-dog inspection
evidence because Frazier would try to impeach Thomas. Thus,
unless Frazier was willing to stipulate that he was inside the truck
during the controlled buy, the government would need the
inspections to identify Frazier as being in the white truck.
The district court denied Frazier’s motion. The district
court found that “identity is an issue,” Thomas may or may not be
able to prove identity, and the drug-dog inspection evidence was
“an additional piece of evidence the government is trying to
introduce to prove identity.” The district court found that the
evidence could prove identity or modus operandi, “that it was Mr.
Frazier, in other words, it was a signature crime.” The district
court expressly found that the probative value of the drug-dog
inspection evidence outweighed its prejudicial effect. The district
court also stated its intent to issue a limiting instruction to the jury
when the evidence was admitted.
C. Jury Trial
At trial, confidential informant Thomas; ATF Agent Lane;
Blake McGhee, an officer with the Task Force; Tyrone Shire, a
DEA forensic chemist; and Officer Rogers, the Task Force’s K-9
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21-12027 Opinion of the Court 9
handler, all testified to the events as described above. The
government introduced into evidence the audio of the phone call
between Thomas and Frazier before the controlled buy, as well as
the video and audio of the controlled purchase.
Because Thomas left the recording device on the passenger
seat next to him for most of the 50-minute recording, the video
does not show either Block receiving the money from Thomas or
Frazier delivering the drugs to Thomas in his work truck. The
recording briefly shows the outside of Block’s house as Thomas
waits for the drugs and also shows the drugs after Frazier dropped
them on the side of the road and Thomas picked them up. The
audio recorded Thomas calling out license plate numbers of cars
around Block’s house, but recorded only Thomas’s side of cell
phone calls, some of which are unintelligible because Thomas also
was listening to music in his car. During his testimony, however,
Thomas identified Frazier as the individual in the “city truck” who
dropped the methamphetamine on the side of the road.
On cross-examination, defense counsel had Thomas admit
that he was “in trouble” and trying to get a deal with the
government. Thomas also conceded that the recording failed to
describe in real time what Frazier or Block were doing or saying.
Further, Thomas admitted he got out of his car twice, even though
the agents told him not to do so. Thomas also admitted he spoke
with other people who approached his car while he waited for the
drugs, including one person who could be heard in the audio
recording saying he needed to be paid for working hard.
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10 Opinion of the Court 21-12027
Counsel also cross-examined the agents, who conceded that
Frazier, his work truck, and the actual drug transaction did not
appear in Thomas’s recording of the controlled buy. In addition,
the agents admitted they were unable to link Frazier to the phone
number Thomas used to arrange the drug deal or to the tag
numbers Thomas saw at Block’s house on the day of the controlled
buy.
Later in the trial, Officer Rogers, the K-9 handler for the
Task Force, testified about the drug-dog inspections. The
government moved to introduce the two inspection videos—
Exhibits 6 and 7—into evidence, to which Frazier objected. The
district court overruled the objection. Before the videos were
played for the jury, the district court gave this limiting instruction:
Government’s Exhibits 6 and 7 are going to show acts
allegedly done by the defendant on a different
occasion that may be similar to acts with which the
defendant is currently charged. You can only use this
evidence for the limited purpose of[,] if you find that
the defendant committed the allegedly similar act,
that is, the acts in these videos, you may use this
evidence to help you decide whether the similarity
between the acts in the videos and the ones charged
in the indictment in this case suggest that the same
person committed all of the acts. You cannot use this
evidence to consider that the defendant has bad
character, and you cannot use it to convict the
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21-12027 Opinion of the Court 11
defendant simply because you believe he may have
committed the acts shown in this evidence that is not
charged in the indictment.
The two videos show Officer Rogers running his drug dog Quincey
around the outside of three identical white pickup trucks in a
parking lot. In each, Quincey alerts on the third truck by sitting
when he reaches the door of the truck.
On cross examination, Officer Rogers admitted that while
Quincey had a 100% success rate in training situations, the officers
could not verify whether drugs were actually present in Frazier’s
work truck. Further, Officer Rogers did not know whether anyone
else may have driven Frazier’s work truck.
After the government rested, Frazier moved for a judgment
of acquittal. Frazier argued that the government’s case had “all
been innuendo,” and that there was “nothing to show . . . that
[Frazier] was involved with any type of drug transaction. There’s
nothing to show that he was there on that day.”
The district court denied the motion, pointing out that there
was no dispute about the amount of methamphetamine and that
“[t]he question is putting the defendant at the scene in possession
of it.” The district court found that “if you take the confidential
informant, Mr. Thomas’[s] testimony in the light most favorable to
the government, he puts the defendant there.” After the district
court’s ruling, Frazier rested without presenting any witnesses or
evidence.
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12 Opinion of the Court 21-12027
As part of the jury charges, the district court again instructed
the jury that it could use the evidence of “allegedly similar acts . . .
to help [it] decide whether the similarity between those acts and
the one with which the defendant is charged here suggest that the
same person committed all of them.” The district court, however,
warned the jury that Frazier was “currently on trial only for the
charge in the indictment” and the jury could “not convict the
defendant simply because [it] believe[d] that he may have
committed an act in the past or at another time that is not charged
in the indictment.”
Frazier’s entire theory of defense at trial was that Thomas
was lying about Frazier’s involvement in the drug deal and that
Thomas had opportunities during the controlled buy to obtain the
methamphetamine and set Frazier up. During closing arguments,
Frazier’s defense counsel attacked Thomas’s credibility and the
lack of evidence connecting Frazier to the controlled purchase. Of
Thomas, Frazier’s defense counsel said, “He’s a liar. He lied to you
all.” Referring to Thomas’s deal with the government, Frazier’s
defense counsel asked, “Did [Thomas] have a personal interest in
the outcome of this case?” Answering his own question, he said,
“That’s the first thing the government told you, that he has an
interest in the outcome of the case.” Further, as to the evidence
against Frazier, Frazier’s defense counsel said, “Not one piece of
evidence that [the government has] shows that [Thomas] did a
drug deal with my client. Not one. The only thing you have is the
[confidential informant].” Defense counsel pointed out that on the
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21-12027 Opinion of the Court 13
recording, “about a minute and a half” before Thomas showed the
two bricks of methamphetamine to the camera, he could be heard
speaking to somebody outside of his car who said he needed to be
paid. Defense counsel argued that Thomas had lied when he said
he gave $9,000 to Block because “[n]obody gives somebody $9,000
on the street and just walks away.” In other words, defense counsel
implied to the jury that it was this unidentified person, and not
Block and Frazier, who conducted the drug deal with Thomas. As
to the drug-dog inspections, Frazier’s defense counsel emphasized
that the only way to know if a drug dog has made a mistake is to
“find out whether or not drugs are there,” which law enforcement
did not do during the two inspections and that the inspections were
done 10 months later because “they knew they didn’t have a case.”
The jury unanimously found Frazier guilty.
D. Motions for Judgment of Acquittal and New Trial
After the jury verdict, Frazier filed a motion for judgment of
acquittal, arguing that the evidence was insufficient to convict him.
In particular, Frazier pointed out that: (1) the phone number called
before the controlled buy was never verified; (2) Thomas
disobeyed the agents’ orders by getting out of the car; (3) there was
no evidence of Frazier’s truck on the recording; (4) there was no
picture of Frazier dropping off any drugs; and (5) the drug-dog
inspection evidence was unduly prejudicial.
Frazier also filed a motion for new trial. Again, Frazier
argued that the verdict was against the weight of evidence and
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14 Opinion of the Court 21-12027
obtained by false evidence “given by [Thomas] with the intent to
convict [Frazier] to obtain a benefit from the Government.”
Frazier again argued that the videos of the drug-dog inspections
were inadmissible.
The government responded that Frazier’s motion for new
trial should be denied because the 404(b) evidence was offered to
prove Frazier’s identity. In particular, the government argued that
“Frazier’s defense presentation, through cross-examination and
closing, called into question the confidential informant and case
agent’s ability to identify Frazier as the one . . . distributing
methamphetamine.”
The district court denied Frazier’s motions. As to the
motion for judgment of acquittal, the district court found that “the
jury had a right to credit the confidential informant’s version of
events,” and when viewing the evidence in the light most favorable
to the government, there was sufficient evidence to convict.
As to the motion for new trial, the district court found, inter
alia, that for the same reasons it denied the motion for judgment of
acquittal, the conviction was not against the weight of the evidence
and that the video evidence of the drug dog alerting to the presence
of narcotics in Frazier’s work truck was properly admitted “to
prove Frazier’s identity.”
As to the 404(b) evidence, the district court found that it was
relevant to prove Frazier’s identity because, “[t]hroughout trial,
Frazier questioned the confidential informant and case agent’s
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21-12027 Opinion of the Court 15
ability to identify him as the person who distributed
methamphetamine during the controlled drug buy.” Further, “the
transportation of drugs in Frazier’s work truck was sufficiently
similar to the distribution of the methamphetamine during the
controlled buy.” The district court stressed that Thomas had
testified Frazier delivered the methamphetamine to him in his
“city” truck and, “[s]everal months later, a drug dog signaled that
narcotics had been present in a Talladega County work truck
belonging to Frazier and matching the description provided by
[Thomas].” The district court found “that the transportation of
drugs in a county work truck is not so ‘commonplace’ that any
individual could have done it.”
The district court also determined that the government had
met its burden to show that the dog accurately detected narcotics
inside Frazier’s truck, pointing to the dog’s training and success
rate. Thus, the district court ruled that “a reasonable jury could
find by a preponderance of the evidence that Frazier committed
the extrinsic act admitted under Rule 404(b).” As to the probative
value of the video evidence, the district court found that Frazier’s
identity was “one of the main issues at trial,” and the evidence was
not unduly prejudicial, especially in light of the two limiting jury
instructions.
III. DISCUSSION
On appeal, Frazier does not challenge the district court’s
denial of his motion for judgment of acquittal or argue that the trial
evidence was insufficient to support his conviction. Rather, Frazier
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argues that the district court erred by admitting the videos of the
two positive drug-dog inspections because the inspections were
inadmissible character evidence, in violation of Federal Rule of
Evidence 404(b).
“We review a district court’s decision to admit evidence
pursuant to Rule 404(b) pursuant to the abuse of discretion
standard.” United States v. Phaknikone,
605 F.3d 1099, 1107 (11th
Cir. 2010) (quoting United States v. Brown,
587 F.3d 1082, 1091
(11th Cir. 2009)).
A. Rule 404(b)
Under Rule 404(b), evidence of other crimes, wrongs, or 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). However, such evidence
may be admissible to show, among other things, identity. Fed. R.
Evid. 404(b)(2). “Rule 404(b) is a rule of inclusion . . . [and] 404(b)
evidence, like other relevant evidence, should not lightly be
excluded when it is central to the prosecution’s case.” Phaknikone,
605 F.3d at 1108 (quotation marks omitted).
Under our three-part Miller test, evidence of other acts is
admissible if: (1) the evidence is “relevant to an issue other than the
defendant’s character”; (2) “as part of the relevance analysis, there
[is] sufficient proof so that a jury could find that the defendant
committed” the other acts; and (3) “the probative value of the
evidence [is not] ‘substantially outweighed by its undue prejudice,
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and the evidence . . . meet[s] the other requirements of Rule 403.’”
Phaknikone,
605 F.3d at 1107 (quoting United States v. Miller,
959
F.2d 1535, 1538 (11th Cir. 1992) (en banc)). Rule 403 permits a
court to “exclude relevant evidence if its probative value is
substantially outweighed by the danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
The application of the Miller test “‘varies depending on the
issue for which it was offered.’” Phaknikone,
605 F.3d at 1108
(quoting United States v. Lail,
846 F.2d 1299, 1301 (11th Cir. 1988)
(alteration omitted)). When admitting extrinsic evidence to prove
identity, the standard is “particularly stringent” and, for purposes
of the first prong of the Miller test, “the likeness of the offenses is
the crucial consideration.”
Id. (quotation marks omitted); see also
Miller,
959 F.2d at 1539 (explaining that the charged offense and the
extrinsic offense must be sufficiently similar “to be relevant on the
issue of identity”). Put differently, the evidence must be
sufficiently similar to “mark the offenses as the handiwork of the
accused” and thus “demonstrate a modus operandi.” Phaknikone,
605 F.3d at 1108 (quotation marks omitted); see also United States
v. Whatley,
719 F.3d 1206, 1217-18 (11th Cir. 2013) (explaining that
although the charged and uncharged bank robberies had
similarities common to all bank robberies, they also shared “more
unusual” similarities that “marked the crimes as the handiwork” of
the defendant). The government’s evidence must show more than
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18 Opinion of the Court 21-12027
the fact that the defendant has committed the same “commonplace
variety of criminal act.” Phaknikone,
605 F.3d at 1108 (quotation
marks omitted).
As to the third prong of the Miller test, to determine
whether the evidence is more probative than prejudicial, a district
court must engage in a “common sense assessment of all the
circumstances surrounding the extrinsic offense, including
prosecutorial need, overall similarity between the extrinsic act and
the charged offense, as well as temporal remoteness.” Brown,
587
F.3d at 1091 (quotation marks omitted). The central inquiry is
whether “the evidence is essential to obtain a conviction,” or “the
government can do without such evidence.” United States v.
Pollock,
926 F.2d 1044, 1049 (11th Cir. 1991). In reviewing the third
prong of the Miller test under Rule 403, we “look at the evidence
in a light most favorable to its admission, maximizing its probative
value and minimizing its undue prejudicial impact.” United States
v. Edouard,
485 F.3d 1324, 1344 n.8 (11th Cir. 2007) (quotation
marks omitted).
B. Frazier’s Claim
Here, we cannot say the district court abused its
considerable discretion in admitting the video evidence of the drug-
dog inspections under Rule 404(b). The evidence was relevant to,
and probative of, Frazier’s identity as the person who delivered the
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methamphetamine to Thomas and any potential unfair prejudice
was mitigated by the district court’s limiting instructions. 1
As to the first prong of the Miller test, Frazier’s having
narcotics in his county-issued work truck on two other occasions
within ten months of the controlled buy is relevant to whether
Frazier delivered the methamphetamine to Thomas in his work
truck during the controlled buy. Although Thomas argues that his
possession of some unknown quantity and type of narcotics in his
work truck is not sufficiently similar to his delivery of
methamphetamine to Thomas on the day of the drug deal to be
relevant, we conclude Frazier’s use of his county-issued work truck
provided sufficient similarity “to mark the offenses as the
handiwork of the accused.” See Miller,
959 F.2d at 1539. As the
district court observed, the use of a county work truck to carry
drugs would not be so commonplace that anyone could have done
so. In short, we agree with the district court that the drug-dog
inspection evidence could be used by the government to show a
signature trait—that Frazier used his work truck to carry
narcotics—and therefore Frazier was the person who delivered the
methamphetamine to Thomas during the controlled buy.
1 In a footnote, Frazier encourages this Court to adopt the Seventh Circuit’s
“propensity-free chain of reasoning” analysis for Rule 404(b) purposes. See
United States v. Gomez,
763 F.3d 845, 856 (7th Cir. 2014) (en banc). A passing
reference without reasoned analysis “is insufficient to preserve the argument
on appeal.” United States v. Stein,
846 F.3d 1135, 1151 n.15 (11th Cir. 2017).
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20 Opinion of the Court 21-12027
The second prong of the Miller test is also satisfied. Officer
Rogers testified that his drug dog, Quincey, detected the presence
of narcotics (either current or very recent) in Frazier’s work truck
during two separate inspections occurring twelve days apart.
During each inspection, Quincey picked Frazier’s work truck out
of at least three, and as many as five, work trucks in a parking lot.
According to Officer Rogers, Quincey had a 100% success rate in
training situations and was “the best” drug detection dog Rogers
had ever seen. The two videos show Officer Rogers leading
Quincey around the outside of three trucks and Quincey sitting—
his alert to the presence of narcotics—at the door of the third truck.
From this evidence, a jury could find that Frazier possessed
narcotics in his truck on two occasions in August 2020.
Finally, as to the third prong, we cannot say the probative
value of the drug-dog inspection evidence is “substantially
outweighed” by unfair prejudice. The two positive drug-dog
inspections had probative value as to the primary contested issue
at trial—whether it was Frazier who delivered the drugs to Thomas
during the controlled buy. Because the government lacked other
strong evidence of Frazier’s identity as the delivery person, the
government’s case rested almost exclusively on the testimony of
Thomas.
Frazier’s trial strategy was to discredit Thomas’s testimony
through vigorous cross-examination that highlighted the
inconsistencies in his testimony, his failure to follow the agents’
instructions in conducting the controlled buy, and the lack of
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corroborating evidence on the video recording of the controlled
buy. During closing argument, Frazier argued, based on these
weaknesses, that Thomas’s claim that Frazier brought him the
drugs in his “city truck” was not credible and instead Thomas had
set Frazier up for his own benefit. In light of Frazier’s defense, the
drug-dog inspection evidence—indicating that on at least two
other occasions roughly ten months after the controlled buy,
Frazier had possessed narcotics in his work truck—was an
important component of the government’s case. Indeed, on appeal
Frazier admits the government needed the evidence, stating that at
trial there was “no evidence, independent of [Thomas’s] testimony,
that anyone in any white municipal work vehicle dropped off the
drugs.” See United States v. Delgado,
56 F.3d 1357, 1366 (11th Cir.
1995) (explaining that the greater the government’s need for the
Rule 404(b) evidence, “the more likely that the probative value will
outweigh any possible prejudice”).
Frazier contends that whether he was the driver of the white
“city truck” who dropped off the drugs was “not even a question”
at trial, and instead the “real question” was whether Thomas was
telling the truth or had “falsely attribut[ed]” the drug deal to
Frazier. But this argument ignores the fact that “[t]he jury was
entitled to believe as much or as little of the witnesses’ testimony
as it found credible.” See United States v. Matthews,
431 F.3d 1296,
1312 (11th Cir. 2005) (concluding the probative value of a prior
drug arrest on the issue of intent was not substantially outweighed
by undue prejudice because, although government witnesses
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22 Opinion of the Court 21-12027
testified that the defendant intended to join the drug conspiracy,
the jury could have disbelieved those witnesses). In other words,
the jury could have found that someone delivered the
methamphetamine to Thomas in a county work truck without
believing Thomas’s testimony that it was Frazier. Therefore, the
drug-dog inspection evidence was necessary to prove to the jury
Frazier’s identity as the driver of the work truck.
As for prejudice, this Court has found that “extrinsic drug
offenses do not tend to incite a jury to an irrational decision.” See
Delgado,
56 F.3d at 1366. Moreover, the district court twice gave
the jury a limiting instruction that mitigated the risk of undue
prejudice. See United States v. Zapata,
139 F.3d 1355, 1358 (11th
Cir. 1998) (explaining that a district court’s jury instruction as to
the limited purpose of other-acts evidence diminishes its prejudicial
effect). Specifically, the district court instructed the jury to
consider the video evidence of the drug-dog inspections only to
determine whether Frazier was the person who committed the
charged offense and not to determine Frazier’s bad character. It
further warned the jury that it could convict Frazier of only the
offense charged in the indictment and could not find Frazier guilty
merely because he may have committed the other acts of drug
possession established by the drug-dog inspections. We must
presume the jury followed the district court’s limiting instructions.
See United States v. Pon,
963 F.3d 1207, 1238 (11th Cir. 2020).
In sum, all three prongs of the Miller test are satisfied.
Accordingly, we cannot say the district court abused its discretion
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21-12027 Opinion of the Court 23
in admitting the drug-dog inspection evidence to prove Frazier’s
identity as the person who delivered the methamphetamine to
Thomas during the controlled buy.
AFFIRMED.
