Appeal from the United States District Court for the Middle District of Louisiana
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
A jury found Defendant Joshua Jermaine Kinchen ("Joshua") guilty of knowingly distributing at least 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). Joshua appeals, contending (1) the district court abused its discretion in admitting evidence of a prior possession of a distributable amount of cocaine and his statement during that prior arrest that the only way he knew how to earn a living to support his family was selling drugs; (2) the district court erred in refusing to allow a witness to invoke the Fifth Amendment in the presence of the jury; and (3) the district court abused its discretion by sentencing Joshua to a term of imprisonment above the Guidelines' recommended range. We AFFIRM.
Federal Bureau of Investigation ("FBI") Agent Bret Stiles worked with local police in connection with the investigation of a drug-trafficking organization. The target of the investigation was Roger Brooks ("Roger"), the head of the organization. Stiles paid Quamlisha Brooks ("Quamlisha") for services as a confidential informant. At Stiles' direction, Quamlisha arranged to purchase two and one-quarter ounces of cocaine base from Roger.
Quamlisha contacted Roger to arrange the drug deal. Quamlisha was on the telephone with Roger while driving to a nearby convenience store to purchase the cocaine. She parked her car at a gas pump next to a maroon Ford Expedition with license plate number OIC578. Still on the phone with Roger, the driver of the Expedition got her attention and identified himself as "Lil' Maine, " and Quamlisha asked Roger if he sent this individual to sell her the cocaine instead of coming himself. Quamlisha handed the telephone to the Expedition's driver. Roger verified the seller, and the drug sale occurred.
Leaving the store, Quamlisha called agent Stiles, who was nearby observing the transaction, and told Stiles the driver was not Roger, as they both had expected. Stiles followed the Expedition to Old River Road, the street Joshua lived on with his brother, Nathaniel Kinchen ("Nathaniel"), and then called local police to see if they knew anyone who used the nickname "Little Maine." A detective at the police station believed that Joshua was known as "Little Maine." On the same day as the drug transaction, Stiles showed Quamlisha a photograph of Joshua and asked, "Who is this?" She identified the person in the photograph as the Expedition's driver. Quamlisha also selected the same photograph of Joshua out of a photographic lineup seven months later. A single count indictment charged Joshua with distributing 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Joshua pled not guilty and trial ensued.
Prior to trial, the Government moved to introduce evidence that Joshua had a prior conviction for possession of cocaine. Ten months prior to the charged offense, in a separate incident, a detective, Corporal John Johnson, stopped and searched Joshua and found 21 grams of crack cocaine and $3522 cash in his pocket. Joshua was convicted for that possession in July 2009, a month before the charged offense. The Government also sought to admit a concurrent statement made by Joshua to Johnson. According to Johnson, Joshua said he sold crack cocaine "because he did not know how to do anything else and that he had mouths to feed."
The district court held multiple pre-trial hearings considering the admissibility of Johnson's testimony. The district court held that both the possession and the concurrent statement would be admissible, subject to the condition that the Government make no reference to Joshua's coincident arrest or conviction. The Government agreed that it would not introduce evidence of Joshua's 2009 conviction, but specified that Johnson would testify that he found crack cocaine on Joshua and repeat the statement that Joshua made to him. Over Joshua's objection, the district court ruled that the evidence of Joshua's prior possession and statement was intrinsic to the crime charged. The court alternatively ruled that the evidence was admissible under Rule 404(b) of the Federal Rules of Evidence as evidence of identity, motive, or intent.
At trial, Joshua contended that his brother Nathaniel, who looks similar to him, was the driver of the Expedition. In fact, Roger testified that he knew Nathaniel, not Joshua, as "Lil' Maine" and "Maine Maine." Roger testified that on the day of the transaction, he was leaving town and called Nathaniel with instructions to obtain cocaine for sale to Quamlisha. Roger spoke to both Nathaniel and Quamlisha near the time of the exchange, but Roger admitted that he was not paying attention to whom he was speaking with when Quamlisha handed the telephone to the Expedition's driver. Roger's phone records showed telephone calls to or from Nathaniel's and Quamlisha's numbers, but not to or from Joshua's number, on the day of the transaction. Roger testified that he had never used Joshua to help in a drug transaction, although he had provided cocaine to Joshua on at least nine prior occasions. He usually provided Joshua with about a gram of cocaine. Roger testified that he observed cars arriving and leaving the Kinchens' residence and he inferred they were drug deals, but he never witnessed drugs being exchanged. Roger stated that Joshua took part in whatever business the cars brought to the residence, but he did not believe Joshua was involved in the transaction at issue. On appeal, Joshua does not challenge the admission of any portion of Roger's testimony.
Detective Steven Lovett testified that he knew Joshua to be "Little Maine." Quamlisha testified, identifying Joshua as the Expedition driver and stating that she remembered being very attracted to Joshua, who was wearing a gold grill on his teeth. Roger and Joshua's girlfriend both testified that Joshua sometimes wore a gold grill on his teeth. Roger testified that Nathaniel had four permanent gold teeth, two on the top and two on the bottom. The jury found Joshua guilty; he was sentenced to be imprisoned for 180 months and to be placed on supervised release for five years. Joshua appeals.
We apply an abuse-of-discretion standard in reviewing a district court's evidentiary rulings. United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996). The abuse-of-discretion standard is "heightened" when evidence is admitted under Federal Rule of Evidence 404(b), because "[e]vidence in criminal trials must be strictly relevant to the particular offense charged." United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003) (internal quotation marks omitted). "A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence." United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005)). "Nevertheless, erroneous ...