United States of America v. JELANI A. LEE a/k/a C-LO a/k/a OMAR MARTIN Jelani A. Lee

1
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 07-1406, 07-4643
UNITED STATES OF AMERICA
v.
JELANI A. LEE
a/k/a
C-LO
a/k/a
OMAR MARTIN
Jelani A. Lee,
Appellant
On Appeal from the District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-05-cr-00216-001)
District Judge: Honorable Lawrence F. Stengel

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Argued March 10, 2009
Before: FUENTES, CHAGARES, and ALDISERT,
Circuit Judges
(Opinion Filed: July 17, 2009)
Michael N. Huff, Esq. (ARGUED)
1333 Race Street
Philadelphia, PA 19107
Attorney for Appellant
Patrick L. Meehan, Esq.
Mark S. Miller, Esq. (ARGUED)
Robert A. Zauzmer, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
FUENTES, Circuit Judge:
Jelani Lee appeals from his conviction for possession
with intent to distribute cocaine base (“crack”) in violation of 21
U.S.C. § 841. Lee’s principal argument is that the District Court
should have declared a mistrial after the jury discovered an
inculpatory document that was never provided to defense

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counsel. Because we find that Lee’s defense was irredeemably
undermined by this discovery, we conclude that the jury’s
verdict is not one in which we can have confidence.
Accordingly, we will vacate Lee’s conviction and remand for a
new trial.
I.
A.
Early in the evening of January 7, 2005, Lancaster police
officers stopped the car Lee was driving. Co-defendants
Tommie Spurill and James Kollore were also in the car, as was
Linsey Boyer, a woman Spurill met at a bar the previous
evening. The occupants of the car were searched and the
officers found crack cocaine in Boyer’s undergarments. Boyer
claimed that the drugs belonged to Lee and Kollore, and all four
were arrested.
When she was interviewed by the police, Boyer told the
officers that Spurill had called her cell phone earlier in the day
from a local motel. When the officers called the number stored
in Boyer’s phone, a representative from a local Red Carpet Inn
answered. After his arrest, Lee was searched and the officers
found keys with tags reading “34” and “42” in Lee’s pocket.
Lee told the officers that he was from New York, but that his
address in Lancaster was 402 South Queen Street.
The officers went to the Red Carpet Inn and interviewed
Kalpana Patel, one of the franchise owners. She provided the
officers with a registration card for room 42. The front of the
card indicated that the room had been rented to “Omar Martin”
for one night on January 3, 2005, and listed 402 South Queen
Street, Lancaster as Martin’s address. The back of the card
indicated that Martin had extended his stay through January 7,
but the record is silent about whether the officers were aware of
the back of the card. The officers showed Patel a photo array
and she identified Lee as someone she knew. Based on this
information, the officers obtained a warrant to search room 42.

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There, the officers found substantial quantities of crack cocaine,
cash, a digital scale, and plastic baggies.
The Lancaster Police turned the case over to federal
authorities and Lee, Spurill, and Kollore were indicted for
possession of 32.8 grams of crack with intent to distribute. Lee
was also indicted for possession of 200.7 grams of crack with
intent to distribute. The Lancaster Police made photocopies of
the evidence they had obtained for the United States Attorney’s
Office. However, they only photocopied the front of the hotel
registration card, which indicated that “Martin” had rented room
42 for one night on January 3, 2005. The prosecutor then
provided this evidence to defense counsel, which included a
photocopy of only the front of the registration card.
B.
At trial, Lee attempted to show that “Martin”—whether
identified as Lee or someone else—had checked out of the Red
Carpet Inn days before drugs were found. Patel provided the
primary testimony linking Lee to the Red Carpet Inn. She
testified as follows: On about January 7, 2005, Lancaster police
officers came to her hotel with keys to rooms 34 and 42. The
key to room 34 had been missing for a few weeks. Patel
answered affirmatively when asked: “Room 42 on the early
morning when the police came out and interviewed you had that
room been rented at that time?” When asked who was staying
in the room, Patel testified that “I think—maybe—person
staying for two or three days, I don’t remember that.” June
2008 Supp. App. at 386. All Red Carpet Inn guests are required
to fill out a registration card.
After this testimony, counsel for the Government
removed the original—double sided—Red Carpet Inn
registration card from an envelope and handed it to Patel. Patel
identified the card as the registration card for room 42 and
testified that the name on the card was “Omar Martin.” Martin
wrote on the card that his address was 402 South Queen Street

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in Lancaster. Patel filled in the arrival date of January 3, 2005.
Nothing was written on the line next to “departure date,” but the
numeral “1” was written next to “# of days.” When asked about
the significance of the blank next to “departure date,” Patel
responded, “I just write it down, you know, number of the days,
so I writed [sic] it down, one.” June 2008 Supp. App. at 391.
Martin had previously rented room 34, but Patel did not
remember when. Martin told her that he lost the key to room 34.
In addition, Patel testified that the police came back the
next day and showed her photographs. She picked one of the
photographs as someone she knew.
When Patel was cross-examined by defense counsel, she
repeatedly testified that the registration card indicated that
Martin stayed for only one day, January 3, 2005. Patel
acknowledged that she was the one who filled in the number of
days Martin had stayed. If a guest wanted to stay longer he
would let Patel know: “If they wanted to stay—you
know—longer than one night, they’re telling us.” June 2008
Supp. App. at 409. She would then indicate that a guest had
asked to stay longer and paid for the extra nights by marking it
on the registration card. However, she did not have a
registration card indicating that Martin was staying at the hotel
at the time the drugs were found. Guests did not check out
when they were ready to leave; they paid in advance and simply
left at the end of their stays. By the time of trial, Patel testified
that she did not specifically remember Lee, but she did recall
identifying someone.
The Government also presented evidence that keys
marked “34” and “42” were found when Lee was searched, that
Lee had claimed 402 South Queen Street—an apartment
complex—as his local address, and that Spurill had made a
phone call from the Red Carpet Inn on the afternoon of January
7.
The parties stipulated that two bags of cocaine base were

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recovered from Boyer. The smaller bag contained 7.5 grams of
cocaine base divided into nineteen baggies. The larger bag
contained 25.3 grams of cocaine base divided into forty-five
baggies. The parties also stipulated that 54.1 grams of cocaine
base divided into 100 baggies were recovered from a backpack
in Room 42, and that 146.6 grams of cocaine base were
recovered from bags under the bed in Room 42.
C.
Just before deliberations began, the jury was provided
with the trial exhibits, including the original copy of the hotel
registration card. During its deliberations, the jury asked the
following question: “What is the information on the back of the
registration card in pencil?” June 2008 Supp. App. at 428. This
was the first time the parties, their counsel, or the District Court
realized that the registration card was a double-sided document.
The back of the card contained dates handwritten by an
unidentified person, suggesting that Martin had been registered
in Room 42 when the drugs admitted against Lee were found
there. This information completely undermined Lee’s defense
that he was not in the room on January 4, 5 or 6, 2005.
Lee objected that he was not provided the back of the
card before trial and requested a mistrial. The District Court
denied the motion, finding that “I don’t think that if there is any
problem there, it’s certainly not anything that can’t be cured by
an instruction and—and juries follow these instructions all the
time and the law presume[s] they do.” June 2008 Supp. App. at
434.
The District Court then called the jury into the courtroom
and gave the following instruction:
I have examined the—both sides of the
document and I can instruct you and will instruct
you that there has been no testimony as to the
meaning of the notations on the back of the card.
The testimony only had to do with the document

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as represented on the front of the card.
And there is no evidence before you and
no testimony as to the meaning of the notations on
the back of the card.
And I’m going to direct you to disregard
the notations on the back of the registration card
and not consider that as part of the evidence in the
case when you’re evaluating the evidence and
deliberating on your verdict.
June 2008 Supp. App. at 435.
II.
Lee claims that the Government’s failure to provide the
reverse of the registration card was a violation of Federal Rule
of Criminal Procedure 16, regarding criminal discovery, that
could only be remedied through a new trial. A trial court’s
remedy for a discovery violation under its supervisory powers
is reviewed for abuse of discretion while factual findings upon
which the decision was based are reviewed for clear error.
Gov’t of Virgin Islands v. Fahie, 419 F.3d 249, 258 (3d Cir.
2005).
A.
Rule 16 provides that:
Upon a defendant’s request, the government must
permit the defendant to inspect and to copy or
photograph books, papers, documents, data,
photographs, tangible objects, buildings or places,
or copies or portions of any of these items, if the
item is within the government’s possession,
custody, or control and: (i) the item is material to
preparing the defense; [or] (ii) the government
intends to use the item in its case-in-chief at trial.
Fed. R. Crim. P. 16(a)(1)(E).

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1 The United States Attorney’s Office did not have actual
physical possession of the original registration card until the
time of trial. However, the Government admits that the original
card was sufficiently within its possession to trigger Rule 16’s
disclosure requirements. See United States v. Risha, 445 F.3d
298, 303-06 (3d Cir. 2006) (setting forth test for determining
whether federal prosecutor has constructive possession of
evidence held by local agents). Indeed at a pretrial hearing, the
Government asserted that a Lancaster Police Detective was the
“prosecuting officer” and that “[i]t would be no different than in
any other case where we have a Federal agent who is the case
agent.” June 2008 Supp. App. at 6.
2 “It is ordinarily the responsibility of counsel to check
the exhibits and failure to object in a timely manner can under
some circumstances constitute a waiver.” Gov’t of Virgin
Islands v. Joseph, 685 F.2d 857, 864 (3d Cir. 1982). However,
this rule is generally limited to circumstances in which defense
counsel failed to discover that entire additional documents were
sent to the jury, see, e.g., id., or that known inadmissible
8
The Government does not dispute that Rule 16 required
it to disclose the back of the registration card and that it failed
to do so before trial.1 In fact, the Government concedes that the
reverse of the registration card “would entirely defeat Lee’s
[defense] argument.” Appellee’s Br. at 57. Instead, the
Government argues that it met its Rule 16 obligation by
providing defense counsel with access to the original exhibit
during and after trial. While the Government is correct that
defense counsel could have averted this issue by examining the
original exhibit before it was submitted to the jury, this does not
alter the fact that the Government had a duty to provide an
accurate copy before trial. Although it may be sound practice,
defense counsel is not required to inspect every exhibit at trial
to ensure that documents that appear to conform to the copies
provided by the Government are in fact identical.2 Instead, Rule

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portions of documents were not properly redacted, see, e.g.,
United States v. Strassman, 241 F.2d 784, 785-86 (2d Cir.
1957). Here, in contrast, application of this rule would require
defense counsel to search every exhibit for unknown extraneous
matter never included in copies provided by the Government.
Cf. United States v. Brandenburg, 155 F.2d 110, 113 (3d Cir.
1946) (granting defendant new trial where “[c]asual inspection
by defense counsel before [exhibits marked by the Government
with prejudicial annotations] went into . . . evidence” failed to
reveal the annotations).
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16’s discovery requirements made it reasonable for defense
counsel to rely on the Government to provide, in the first
instance, an accurate copy of the evidence offered at trial.
When a party fails to comply with Rule 16, the district
court is empowered to order that party to comply with the Rule,
grant a continuance, exclude the evidence, or enter other just
relief. Fed. R. Crim. P. 16(d)(2). In determining an appropriate
remedy, a district court should consider the reasons for the
party’s delay in producing the materials, including whether it
acted intentionally or in bad faith, and the degree of prejudice to
the opposing party. United States v. Ganier, 468 F.3d 920, 927
(6th Cir. 2006); see also Fahie, 419 F.3d at 258-59.
Accordingly, we must consider whether Lee was prejudiced by
the discovery violation and, if so, what remedy was required.
B.
On appeal, a new trial is warranted to remedy a discovery
violation where “‘the remedy offered by the district court was
inadequate to provide [the defendant] with a fair trial.’” United
States v. Lopez, 271 F.3d 472, 483 (3d Cir. 2001) (quoting
United States v. Miller, 199 F.3d 416, 420 (7th Cir. 1999))

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3 In Lopez we declined to specify the parameters of the
prejudice inquiry because the defendant made no effort to show
prejudice. 271 F.3d at 484.
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(alteration in original).3 To determine whether the district
court’s remedy was adequate, “‘[t]he question is not whether the
defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received
a fair trial, understood as a trial resulting in a verdict worthy of
confidence.’” United States v. Mitchell, 365 F.3d 215, 254 (3d
Cir. 2004) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)
(discussing standard for granting a new trial after a Brady
violation)).
In evaluating the prejudice to Lee, we must consider
whether the discovery violation in this case caused jury
contamination. “[E]xposure to extrinsic information deprives a
criminal defendant of the protections of the Sixth Amendment,
including his right of confrontation, of cross-examination, and
of counsel.” United States v. Ofray-Campos, 534 F.3d 1, 18 (1st
Cir. 2008) (internal quotation marks omitted) (vacating
conviction because district court provided extrinsic information
to the jury during deliberations); see also Farese v. United
States, 428 F.2d 178, 180 (5th Cir. 1970) (stating that jury
“[e]xposure to evidence through discovery of secreted material
is not subject to [Sixth Amendment] safeguards”). Thus, “[i]t is
perfectly plain that the jury room must be kept free of evidence
not received during trial, and that its presence, if prejudicial, will
vitiate the verdict.” Gov’t of Virgin Islands v. Joseph, 685 F.2d
857, 863 (3d Cir. 1982) (internal quotation marks omitted)
(holding that providing jury with a signed confession that was
not admitted into evidence during deliberations violated
defendant’s due process rights). This rule equally applies to
material submitted to the jury through inadvertent attachment to
properly admitted evidence. See, e.g., Farese, 428 F.2d at 182
(finding “strong probability of prejudice” to defendant when

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jury found cash—undiscovered by the Government or defense
counsel—hidden in a trial exhibit); United States v.
Brandenburg, 155 F.2d 110, 113 (3d Cir. 1946) (granting
defendant new trial where exhibits marked by the Government
with prejudicial annotations were sent to the jury).
The Government argues that Lee cannot demonstrate
prejudice because the reverse of the registration card was
inculpatory rather than exculpatory. If not for the discovery
violation, the Government would have used the reverse of the
registration card in formulating its case against Lee,
strengthening its position. Because the District Court instructed
the jury to ignore the back of the registration card, the
Government believes that it did not obtain the benefit of this
inculpatory evidence and that Lee was not harmed by presenting
a defense that was inconsistent with the reverse of the card.
This argument is based on the assumption that the jury was able
to follow the District Court’s instruction to disregard the reverse
of the registration card. We cannot accept that assumption in
this case.
We do presume that juries follow their instructions. See,
e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987); United
States v. Bornman, 559 F.3d 150, 156 (3d Cir. 2009). This rule
“is a pragmatic one, rooted less in the absolute certitude that the
presumption is true than in the belief that it represents a
reasonable practical accommodation of the interests of the state
and the defendant in the criminal justice process.” Richardson,
481 U.S. at 211. However, the rule is not absolute; we will not
blindly assume that a jury is able to follow a district court’s
instruction to ignore the elephant in the deliberation room. See,
e.g., United States v. Morena, 547 F.3d 191, 197 (3d Cir. 2008)
(holding that limiting instruction was not sufficient to cure
prejudice resulting from persistent prosecutorial misconduct).
For example, in the context of a jury tainted by extra-record
material, we found that it was not reasonable to assume without
inquiry that the jury would be able to follow an instruction to

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ignore the external material. Gov’t of Virgin Islands v.
Dowling, 814 F.2d 134, 138 (3d Cir. 1987). In Dowling, we
held that:
Where there is affirmative reason to believe that
a member or members of the jury may have
learned extra-record information about the
underlying facts of the case . . . that has a
potential for adversely affecting the jury’s ability
to impartially decide the case on the record
evidence alone, the trial court has a duty to
determine whether the trial should be aborted or
whether the jury, with proper instructions, can be
relied upon to judge impartially and to confine its
deliberations to the record evidence.
Id. at 138. In Dowling, the district court asked the jurors to
identify themselves if they had received extra-record
information that had rendered them incapable of giving a fair
trial to either side. Id. at 141. We held that this question was
inadequate to establish that the jurors would be able to disregard
any extra-record material they had been exposed to, and
remanded for a new trial. Id.
The risk that a jury will be unable to follow the court’s
instruction to ignore information depends on a number of factors
including the strength of the proper evidence against the
defendant, the nature of the information, and the manner in
which the information was conveyed. See Moore v. Morton,
255 F.3d 95, 119-20 (3d Cir. 2001); Dowling, 814 F.2d at 138.
Cf. United States v. Urban, 404 F.3d 754, 778 (3d Cir. 2005)
(listing factors relevant to determining prejudice in a jury
contamination case).
The Government’s evidence connecting Lee to the hotel
room, apart from the reverse side of the hotel registration card,
was relatively weak. Keys marked “34” and “42” were found
when Lee was searched, but it was undisputed that Lee was no

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longer staying in room 34; someone who was later in a car with
Lee made a phone call from the Red Carpet Inn; and the clerk at
the Red Carpet Inn recognized Lee as someone she knew. In
contrast, the reverse of the registration card strongly supported
an inference that Lee was still renting the room when the drugs
were found. As previously stated, the Government admits that
the reverse of the registration card “would entirely defeat Lee’s
[defense] argument.” Appellee’s Br. at 57.
The nature of the information on the reverse of the
registration card and the manner in which it was conveyed also
would have made it extremely difficult for the jury to ignore.
The registration card itself was a properly admitted piece of
evidence. Unlike information obtained by reading news reports
or overhearing gossip about a defendant, this information would
have had much of the credibility of properly admitted evidence.
The timing of the jury’s discovery of the notations on the back
of the registration card also enhances the significance of the
marks. The jury discovered the card within the first few hours
of its deliberations. The jury had continued access to the reverse
of the card throughout its deliberations.
As to the nature of the information, Patel’s cross-
examination focused on the absence of markings on the
registration card indicating that “Martin” extended his stay
through the date on which the drugs were found. Thus, the jury
was primed to see the information on the back of the registration
card as particularly significant; it was the missing link in the
prosecution’s case and was central to the defendant’s trial
strategy.
Under these highly unusual circumstances, we find that
it was clear error for the District Court to assume—at least
without some inquiry—that the jury would be able to follow the
Court’s instruction to disregard the back of the registration card.
The jury had already discovered the back of the registration card
and evidently considered this information to be significant. The
Government suggests that because the jury asked a question

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about the back of the card, they must not have understood its
significance. To us, however, this question only highlights the
fact that the jury found the information on the reverse of the
card important and recognized that it was inconsistent with the
evidence presented during the trial.
Accordingly, we must consider the prejudicial effect of
the jury’s access to the reverse of the hotel registration card. In
general, a new trial is required where prejudice resulting from
a discovery violation is serious enough to adversely affect a
court’s ability to reach a just conclusion. Cf. United States v.
Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (discussing standard
for Brady violations). One way a discovery violation may do
this is by interfering with the defendant’s ability to prepare for
trial and develop an intelligent defense strategy. See, e.g.,
United States v. Lanoue, 71 F.3d 966, 976 (1st Cir. 1995)
(holding that new trial was required where use of undisclosed
Rule 16 material “unfairly surprised the defense and deprived it
of the opportunity to design an intelligent litigation strategy that
responded to the [undisclosed evidence]”), abrogated on other
grounds by United States v. Watts, 519 U.S. 148 (1997); United
States v. Padrone, 406 F.2d 560, 561 (2d Cir. 1969) (per curiam)
(granting new trial where non-disclosure of defendant’s
statement affected trial strategy); United States v. Noe, 821 F.2d
604, 607 (11th Cir. 1987) (“‘[W]here it is apparent . . . that [the]
defense strategy may have been determined by the failure to
[disclose], there should be a new trial.’” (quoting United States
v. Rodriguez, 799 F.2d 649, 651 (11th Cir. 1986)) (second and
third alterations in original)).
That is not to say that the Government may never
introduce evidence that was not disclosed before trial. Even
undisclosed evidence that upsets a defendant’s trial strategy may
be admissible if the defendant has some opportunity to adjust his
trial strategy and respond to the new evidence. Compare United
States v. Atisha, 804 F.2d 920, 925 (6th Cir. 1986) (holding that
mistrial not required when, on second day of trial, the

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Government informed defense counsel that it would present
evidence of newly discovered overt acts to prove conspiracy
charge and there was time for counsel to prepare cross-
examination; new evidence did not undermine basis of defense
strategy); United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983)
(“No denial of due process occurs if Brady material is disclosed
in time for its effective use at trial.”); and United States v.
Edmonson, 962 F.2d 1535, 1546-47 (10th Cir. 1992) (holding
that grant of a seven day continuance for defense counsel to
evaluate new evidence was a sufficient remedy); with Lanoue,
71 F.3d at 979 (circumstances in which Government used
undisclosed material “precluded [defense] counsel from using it
to any effect”); Padrone, 406 F.2d at 561 (finding prejudice
where Government made use of undisclosed inculpatory
statements after defendant took the stand and testified
inconsistently with statements); and Noe, 821 F.2d at 607
(same).
Here, Lee was deprived of any opportunity to prepare
meaningfully for trial, to design an intelligent trial strategy, or
to address the strongest evidence linking him to the drugs. First,
although the markings on the reverse of the registration card
create a clear inference that Lee extended his stay in Room 42
through the date of his arrest, Lee had no opportunity to
challenge their authenticity or significance because they were
not disclosed until after deliberations began. Second, as set
forth above, Lee’s trial strategy was to question the sufficiency
of the Government’s proof that Lee was connected with Room
42 at the time the drugs were found. The Government’s proof
on this point appeared weak, making this an intelligent strategy
that might have been sufficient to create reasonable doubt as to
Lee’s guilt. Absent the discovery violation, Lee would have
likely crafted a different trial strategy that might have proven
more effective in light of the information on the back of the
registration card. Finally, Lee might have chosen to enter into
plea negotiations with the Government if he had accurate
information about the strength of its case.

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4 Count One related to the drugs in Room 42, and Count
Two apparently related to the drugs in Lee’s car. While the
hotel registration card relates most directly to the drugs in Room
42, we find no basis in the record for distinguishing the
prejudice Lee suffered on each Count.
5 However, because we are vacating Lee’s conviction we
will not discuss Lee’s argument that the District Court erred in
sentencing him.
16
The prejudice Lee suffered extends beyond his lost
opportunity to prepare an intelligent defense. Lee’s trial
strategy appeared deceptive in light of the information on the
back of the registration card. If Lee had known about the back
of the card, he—and his counsel—would not have been caught
in an apparent deception by the jury during deliberations.
For these reasons, we find that the Government’s failure
to disclose the reverse side of the registration card interfered
with Lee’s substantial rights. The jury’s verdict is not one in
which we can have confidence. Accordingly, we conclude that
the District Court abused its discretion in failing to grant a
mistrial. The judgment of the District Court will be vacated and
the case remanded for a new trial on both counts.4
III.
Because we find that Lee is entitled to a new trial, the
remaining issues he raises are moot. However, because the
evidentiary issues he raises are likely to occur again at any
subsequent trial, we will discuss them briefly.5 Lee raises two
evidentiary challenges. First, he maintains that the District Court
erred in denying his motion to suppress physical evidence
obtained during the stop of the car Lee was driving and from his
hotel room. Second, he argues that the Government should not
have been permitted to introduce evidence of one of Lee’s prior
convictions for drug distribution.

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With regard to the motions to suppress, we find that Lee
did not have a reasonable expectation of privacy in Boyer’s
person. Rawlings v. Kentucky, 448 U.S. 98, 105-06 (1980)
(holding that defendant had no reasonable expectation of
privacy in companion’s purse). The initial stop of the vehicle
was a proper traffic stop. After cocaine base was found on
Boyer and she implicated Lee, the police had probable cause to
arrest Lee, who was also driving with a suspended license. Lee
has not identified any evidence or statements obtained from him
before his arrest, and there is no basis to challenge evidence
collected from Lee following his lawful arrest. Further, we find
that the affidavit supporting the warrant to search Room 42
contained ample evidence to establish probable cause linking
Room 42 to Lee and to narcotics trafficking. See United States
v. Whitner, 219 F.3d 289, 297 (3d Cir. 2000) (holding that
probable cause linking crime and location to be searched may be
established through “normal inferences”).
Next, we find that the District Court did not abuse its
discretion in admitting evidence of Lee’s prior conviction.
Evidence of prior bad acts cannot be admitted to show a
propensity to violate the law. Fed. R. Evid. 404(b). However,
it may be admitted “as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id. The Supreme Court has set forth a four-part test
for determining whether other crimes evidence was properly
admitted: (1) the other crimes evidence must have had a proper
purpose as set forth in Rule 404(b); (2) the proffered evidence
must have been relevant; (3) its probative value must have
outweighed its potential for unfair prejudice; and (4) the district
court must have charged the jury to consider the other crimes
evidence only for the limited purpose for which it is admitted.
United States v. Kellogg, 510 F.3d 188, 199 n.10 (3d Cir. 2007)
(citing Huddleston v. United States, 485 U.S. 681 (1988)).
“The parameters of Rule 404(b) are not set by the
defense’s theory of the case; they are set by the material issues

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6 We note that “to justify reversal of a District Court’s
balancing of probative and unfairly prejudicial qualities of
evidence under Rule 403, the District Court’s analysis and
resulting conclusion must be ‘arbitrary or irrational.’” Kellogg,
510 F.3d at 197 (internal quotation marks omitted).
7 Although Lee argues that this instruction “relieved the
Government of its obligation to [prove] the Appellant’s intent
beyond a reasonable doubt” (Appellant’s Br. at 20), the precise
basis for Lee’s objection is not clear. Because this argument
was not raised before the District Court and we remand for a
new trial, we need not discuss it further here.
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and facts the government must prove to obtain a conviction.”
United States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992). In
this case, Lee’s prior drug trafficking conviction was properly
admitted as evidence that Lee intended to distribute any drugs
in his possession. Thus, the first three prongs of the test are
satisfied.6
After the evidence was admitted, the District Court
explained the limited role of the evidence, instructing the jury
that “the evidence of prior drug convictions is admitted for the
limited purpose of its relevance to you—if you find it
relevant—as to the defendants’ intent or state of mind in the
possession of the drugs on January 7th, 2005, if you find after
your deliberations, that any or all of them were in possession of
drugs.” App. at 142.5. In charging the jury, the District Court
repeated this instruction.7 Accordingly we find that the District
Court did not abuse its discretion in admitting evidence of Lee’s
prior drug trafficking offense.
IV.
For the reasons expressed above, the judgment of the
District Court will be reversed and the case remanded for a new
trial on both counts.

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