United States of America v. Robin Rochelle Lucas

*The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0046P (6th Cir.)
File Name: 04a0046p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBIN ROCHELLE LUCAS,
Defendant-Appellant.
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No. 02-5399
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 01-10022—James D. Todd, Chief District Judge.
Argued: August 6, 2003
Decided and Filed: February 12, 2004
Before: BOGGS, Chief Judge; RYAN, Circuit Judge; and
ROSEN, District Judge.*
_________________
COUNSEL
ARGUED: Jerald W. Newton, Sedona, Arizona, for
Appellant. Camille R. McMullen, ASSISTANT UNITED
2 United States v. Lucas No. 02-5399
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Jerald W. Newton, Sedona, Arizona, for
Appellant. Camille R. McMullen, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
BOGGS, C. J., delivered the opinion of the court, in which
RYAN, J., joined. ROSEN, D. J. (pp. 20-29), delivered a
separate concurring opinion.
_________________
OPINION
_________________
BOGGS, Chief Judge. On May 18, 2001, Robin Rochelle
Lucas was indicted by a grand jury for knowingly and
intentionally possessing with the intent to distribute 500
grams or more of a mixture containing cocaine, in violation
of 21 U.S.C. § 841(a)(1). In September 2001, Lucas was
convicted by a jury as charged in the indictment and was
subsequently sentenced to 121 months in prison, four years of
supervised release, a $100 special assessment, and a $15,000
fine. Lucas appeals the judgment against her on three
grounds, each of which she claims merits reversal. First, she
argues that the district court abused its discretion in granting
the government’s motion in limine to exclude from the trial
any mention of the fact that Morrell Presley, a person
involved in the events leading to Lucas’s arrest but not a
witness at her trial, had previously been convicted for cocaine
trafficking, when the defense’s theory was that the drugs were
Presley’s and not Lucas’s. Second, Lucas argues that the
district court abused its discretion when it ruled that she could
not introduce evidence, as an explanation of her nervous
behavior during her arrest, that she had been raped by prison
guards in the past. Third, Lucas contends that the court erred
in denying her Batson motion, in which she argued that the
prosecutor exercised a peremptory challenge against a
potential juror in a racially discriminatory manner, in
violation of the Equal Protection Clause. See Batson v.

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No. 02-5399 United States v. Lucas 3
Kentucky, 476 U.S. 79 (1986) (prohibiting the exercise of
race-based peremptory challenges). Lucas also appeals her
sentence and claims that the district court abused its
discretion in not finding that her prior rape by prison guards
and her charitable work for human rights organizations such
as Amnesty International were grounds for a downward
departure. We affirm Lucas’s conviction and sentence.
I
Robin Rochelle Lucas was arrested on May 9, 2001 in
Tennessee. At the time, she was living in California with her
grandmother, her nephew, and two nieces. Lucas testified at
her trial that she was on vacation with two friends, Angelina
Watts and Kimberly Quinney, on her way to visit another
friend, Jackie Parker, who lived in Memphis, and to attend the
“Memphis in May” festival. On May 8, 2001, Lucas, Watts,
and Quinney flew from California to Nashville. At the
Nashville airport, Watts obtained a rental car. As they left the
airport, Lucas says she saw a sign for Knoxville and
Chattanooga (which are over 200 miles away), which she
followed, thinking that Knoxville was only a few minutes
away from Nashville. The three women stopped off at a
liquor store a few minutes down the road and purchased two
bottles of Hennessey. Lucas then paid for a room at a
Residence Inn, which she claims she thought was in
Knoxville, but was actually still in Nashville. The group
decided to go to Walgreens, where Quinney purchased several
items, including food and utensils for cooking dinner in the
room’s small kitchenette. The three went back to the hotel,
prepared food, and drank.
The three women said that they had planned to drive to
Memphis the next morning, May 9, but they got up late and
Lucas wasn’t able to get in touch with her friend, Parker, the
woman she was to meet in Memphis. Lucas then claims to
have called Morrell Presley, a man she claims to have met
twice before (very briefly) through a friend, and asked him for
directions to Memphis. Lucas testified that she told Presley
4 United States v. Lucas No. 02-5399
that she was in Knoxville, and then gave him the address and
name of the hotel. Presley apparently recognized the hotel
and said he would come over to see her, but did not tell her
that she was not in Knoxville. Lucas awakened the other
women, telling them to get dressed because Presley was going
to be visiting them shortly.
Presley came over, they watched a movie, and eventually
the group decided they were hungry. Presley volunteered to
go for food and Quinney prepared a shopping list for him,
including chicken and cooking oil. Presley said he was low
on gas and so Watts allegedly gave him the keys to the rental
car, which he took instead of his own car, leaving the room at
about 2:30 p.m.
Presley returned to the hotel room approximately five hours
later, at about seven-thirty at night, and although he brought
some groceries, he did not return with the chicken or cooking
oil, allegedly the main reason for his trip. Lucas had been
teased by Watts and Quinney, who suggested that Presley had
“made off” with the rental car, leaving his old car behind.
When Presley finally returned, without the chicken, Lucas
testified that she grabbed the keys out of frustration and
started driving towards Memphis. At around eight, Lucas
called Parker and told her that she was on her way to pick her
up in Memphis.
At the hotel, Presley became upset, asking where Lucas had
gone with the rental car. According to Quinney’s testimony
at trial, Presley was ranting and raving, calling everyone
names. Presley urged Quinney and Watts to call Lucas and
convince her to drive back, specifically stating to Quinney
that she should “[c]all that B and tell her to come back” and
that his cell phone was in the car. Quinney called Lucas and
told her “[t]hat she needed to come back because she had . . .
Morell’s cell phone. She needed to bring him his cell phone.”
At some point Presley even got on the phone and started
yelling at Lucas to come back, telling her that “she didn’t
know who he was” and calling her names. Phone records

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No. 02-5399 United States v. Lucas 5
verified that phone calls were made consistent with this
testimony, although the only evidence presented as to what
was said during the calls and, indeed, of any interaction with
“Presley,” was the testimony of Lucas and her two friends:
Quinney and Watts.
At 9:25 pm, Lucas was pulled over by Trooper Ollie Parker
for speeding at 92 miles per hour near mile marker 104 on I-
40 going west towards Memphis. As Parker was copying
information down for Lucas’s ticket, he realized that her
driver’s license was expired, called it in, and found out that it
was suspended. When Parker went back to Lucas and told
her of his findings, she explained to him that she had “taken
care” of the suspended license, but Parker was unable to
verify this fact.
Trooper Earl Hammett drove up at around 10 pm, and
parked behind Parker’s cruiser, which was behind Lucas’s
rental car. He activated the cruiser’s video camera at 10:03
pm, and this video was played for the jury at trial. About five
minutes later, Lt. Linuel Allen arrived. Both troopers were
filled in on what was going on by Parker.
At some point Lt. Allen retrieved Lucas’s coat from the car,
and found in it $2,855, mostly in twenty-dollar bills. Lucas
volunteered that this was her traveling money and that she
had started off the trip with $3,000. Lucas further explained
that she had been driving for about two hours and was on her
way from Knoxville to Memphis in order to pick up a relative
and take them back to a Knoxville family reunion. It was
obvious to the officers that this was not true, since they were
not two hours from Knoxville.
Prior to being handcuffed, Lucas was told to remove her
belongings from the car, because she was unlikely to get the
car back. Hammett escorted Lucas to the front passenger
door, and she leaned in to gather her things. Lucas walked
back to the trooper’s car with her hands full. Shortly
thereafter, the troopers realized that the car was locked and
6 United States v. Lucas No. 02-5399
that Lucas did not have the keys. Hammett began shining his
flashlight into the vehicle, looking for the keys, when he
spotted two bags wrapped in cellophane and stuck under the
front driver’s seat. The bags were eventually retrieved from
the vehicle and later determined to contain 2.2 kilograms of
cocaine. A number of items were found in the car during a
subsequent search. Three cell phones were seized, registered
to Angelita Watts (Vallejo, California), Robyn McPherson
(Vallejo, California), and Cathy Jefferson (Nashville,
Tennessee) respectively. Thirteen credit cards were
recovered, eleven in Lucas’s name and two in the name of
Robyn McPherson, along with a Visa Gold Card application
in Robyn McPherson’s name and a receipt from Walgreens.
Lucas explained that Robyn McPherson is her niece and that
she had taken her niece’s credit cards and telephone calling
cards because her niece had written over $7000 in insufficient
fund checks, which Lucas had covered, and her niece had run
up a phone bill of $800.
Lucas denied having any knowledge of the cocaine found
in the rental car that night. The defense’s theory at trial was
that Presley was the one who had put the drugs into the car.
Through the testimony of Quinney and Watts, the defense
brought out that Presley was alleged to have been in the car
immediately before Lucas took it on the night that she was
stopped. In addition, according to the testimony of the
women, Presley took the car for several hours, despite the fact
that his errand of grocery shopping should have been a short
trip. When he did arrive back, he did not have the groceries
he was supposed to have gotten, and presumably he had
plenty of time to purchase the drugs, using someone else’s car
for the transaction. Finally, there was testimony verifying the
fact that Presley was furious with Lucas for driving off in the
car and violently insistent that she return immediately, which
makes sense in view of the defense’s theory that Lucas had
unwittingly driven off with Presley’s drugs, worth thousands
of dollars.

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No. 02-5399 United States v. Lucas 7
It was also brought out at trial that Lucas had been
convicted of bank fraud conspiracy in 1994 (when she would
have been about 28 years old), involving approximately
$7,000 worth of traveler’s checks and the use of false
identification. She served a thirty-month sentence, during
which she was raped by prison guards repeatedly. In 1998,
she received a $500,000 settlement based on the sexual
assault she claimed to have experienced while incarcerated,
which she states she invested in real estate, a clothing store,
and a nursing home facility, and which also could explain to
some extent the amount of money found on her at the time of
her arrest. Lucas testified at trial that she was worth
somewhere between $600,000 and $700,000; however, Lucas
filed a statement at sentencing admitting that she was wrong,
claiming that she thought that the appraised value of her
property was the net worth of her property (without
subtracting the amount of her mortgage). Lucas also testified
at sentencing that she has worked with women in prison and
with various international human rights groups since being
released from prison for her prior conviction.
II
A. Presley’s Prior Conviction
Lucas contends that the district court erred in prohibiting
the defense from presenting evidence of Presley’s prior
conviction for possessing and distributing cocaine, on the
basis that it was irrelevant. Lucas claims that not only was
this an erroneous application of the Federal Rules of
Evidence, but that this exclusion unconstitutionally prevented
her from mounting a complete defense.
A few days prior to trial, a certified copy of a conviction of
Morell Presley was obtained, which reflected that Presley had
previously been convicted of possessing cocaine with the
intent to distribute it. Lucas sought to introduce this evidence
and the court denied the request:
8 United States v. Lucas No. 02-5399
Court: You can certainly mention that somebody else
committed this crime, not the defendant; but whether you
can introduce a certified copy of a document to show this
person’s a convicted felon or not, that’s a bit of a stretch.
Let’s wait and see. Don’t mention the certified copy of
the conviction or that he was a convicted felon until
we’ve had an out-of-jury hearing. You can certainly
present the defense that your client didn’t do it. It was
Morrell Presley’s drugs. You can certainly do that. I
guess that’s the defense, isn’t it?
Defense Attorney: Yes, sir, Your Honor.
Later on at the same hearing, the court stated as follows:
You can certainly testify or have evidence about Mr.
Presley, but unless something else develops of which I’m
not now aware, I’m not going to let the prior conviction
in because its probative value is greatly outweighed by
the prejudice.
The government argues that the court’s decision was
correct and further submits that Federal Rule of Evidence
404(b) prohibits the admission of this evidence because it
prohibits introducing evidence of other crimes to prove the
character of a person in order to show action in conformity
therewith. Although the district court did not explicitly rule
that the evidence was inadmissible pursuant to Rule 404(b),
it did address this line of reasoning:
Court: [W]hy is it relevant that he’s been convicted of a
cocaine offense?
Defense Attorney: Because it shows his propensity to
leave the cocaine in the car. He’s the one that had the car
for several hours before Ms. Lucas had the car.
The Court: Aren’t prior convictions inadmissible to
show propensity?

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No. 02-5399 United States v. Lucas 9
1The rule does, in the next sentence, explicitly refer to “the accused.”
However, it does so in the context of notice requirements that must be
followed by a prosecutor introducing such evidence against a defendant.
This differential use of “the accused” provides additional evidence that
the first sentence is not intended to apply only to the accused.
. . .
Well, this is an interesting question, gentlemen. I have
never in thirty years had this one come up. It seems to
me though that this is still the type of evidence that is far
more prejudicial than probative. Whether Mr. Presley
had a prior cocaine conviction or not doesn’t mean that
he did or did not put the cocaine in this car. I’m going to
sustain the government’s objection to the testimony that
Mr. Presley was a convicted cocaine dealer.
(emphasis added).
We agree with the government that evidence of Presley’s
prior conviction does come under Rule 404, although it falls
within a subset of such evidence sometimes called “reverse
404(b)” evidence, in which the evidence of a prior act by
another is offered as exculpatory evidence by the defendant,
instead of being used by a prosecutor against a defendant.
See, e.g., United States v. Hill, 322 F.3d 301, 308 (4th Cir.
2003). By its plain terms, Rule 404(b) mandates that
“[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
conformity therewith,” instead of restricting itself to evidence
proving “the character of the accused.” Rule 404(b)
(emphasis added).1
Nevertheless, we recognize, as do several of our sister
circuits, that such evidence when presented by the defense,
requires us to reconsider our standard analysis, as the primary
evil that may result from admitting such evidence against a
defendant -- by tainting his character -- is not present in the
case of 404(b) evidence used against an absent person. See,
10 United States v. Lucas No. 02-5399
e.g., United States v. Stevens, 935 F.2d 1380, 1404 (3d Cir.
1991). See also United States v. Wilson, 307 F.3d 596, 601
(7th Cir. 2002). There is, therefore, some merit in
considering the admissibility of such 404(b) evidence as
depending on a straightforward balancing of the evidence’s
probative value under Rule 401 against Rule 403's
countervailing considerations of “prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence,” as suggested by the Third Circuit in Stevens, 935
F.2d at 1404 . However, in assessing the probative value of
such evidence we must also recall that the Advisory
Committee Notes following Rule 401 explain that rules such
as Rule 404 and those that follow it are meant to prohibit
certain types of evidence that are otherwise clearly “relevant
evidence,” but that nevertheless create more prejudice and
confusion than is justified by their probative value. In other
words, we affirm that prior bad acts are generally not
considered proof of any person’s likelihood to commit bad
acts in the future and that such evidence should demonstrate
something more than propensity.
Lucas’s defense is that Presley committed the crime, and
she did not. The defense wanted to introduce Presley’s
conviction in order to demonstrate that in addition to access
to the car and his strange behavior, Presley had a propensity
for selling cocaine. The defense wants the jury to make the
inferential leap that because Presley sold drugs before, he is
likely to have done so again.
Lucas argues on appeal that, although she specifically
stated before the district court only that she would use the
evidence of Presley’s conviction to prove propensity, this
information should have been admitted on the basis that it
could also have been used to prove knowledge and intent,
which are among several exceptions in Rule 404(b) that are
listed as purposes for which such testimony can be
introduced. This argument is not convincing. Presley’s
knowledge of what cocaine is, or what it looks like, is not at

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No. 02-5399 United States v. Lucas 11
2In the Advisory Comm ittee Notes to Rule 403, it is explained that
“‘[u]nfair prejudice ’ within its context means an undue tendency to
suggest decisio n on an improper basis, commonly, though not necessarily,
an emotional one.” Here the jury might have made a decision that Presley
was the culp rit simply because of an unfair inference that because he had
sold cocaine before, he had done so here, and not on the basis of actual
evidence linking him to the crime.
issue in this case. And certainly a prior conviction does not
demonstrate Presley’s intent to sell in the future. Such an
argument would turn the exception into the rule. If, instead,
it was shown that Presley had borrowed someone else’s car in
which to do the prior drug deal or if he had packaged the
cocaine in the same way and had left it under the passenger’s
seat in the same way, the evidence of his prior drug deal
might have been sufficiently probative, but the simple fact
that he sold cocaine before is only minimally relevant.
We therefore hold that the standard analysis of Rule 404(b)
evidence should generally apply in cases where such evidence
is used with respect to an absent third party, not charged with
any crime. In this case, not only does the evidence not fall
within the any of the exceptions, even if it did, the district
court did not err in determining that any probative value of
the prior bad act was outweighed by its prejudicial effect.
Introducing evidence of Presley’s prior conviction would
have been prejudicial to fair consideration in that it would
have made it easier for the jury to lay the blame on Presley for
the drug deal despite evidence presented at trial.2 Under the
abuse of discretion standard, we will only reverse if we are
firmly convinced that a mistake has been made. Nida v. Plant
Protection Ass’n Nat’l, 7 F.3d 522, 527 (6th Cir. 1993).
Accordingly, the district court did not abuse its discretion in
excluding this evidence.
In addition, we hold that Lucas was not prevented from
presenting a complete defense, as she is entitled to do under
the Constitution, because of the district court’s decision to bar
the admission of this evidence. See, e.g., Crane v. Kentucky,
12 United States v. Lucas No. 02-5399
476 U.S. 683, 690 (1986) (holding that “the Constitution
guarantees criminal defendants a meaningful opportunity to
present a complete defense.”) (internal quotation marks and
citations omitted). As we have stated previously, a complete
defense does not imply a right to offer evidence that is
otherwise inadmissible under the standard rules of evidence.
Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en
banc). See also Taylor v. Illinois, 484 U.S. 400, 410 (1988).
Lucas was able to explore her theory that Presley was in fact
the culprit and present it to the jury through Quinney’s and
Watts’s testimony, as well as her own, describing his alleged
strange behavior and his alleged access to the car. The
exclusion of Presley’s prior conviction did not violate Lucas’s
constitutional right to present a defense and was instead an
appropriate ruling by the district court in accordance with the
Federal Rules of Evidence.
Finally, we note that Federal Rule of Evidence 609 is not
applicable to this case, though it was mentioned by the
defense in its brief as an alternate ground for admitting
Presley’s prior conviction. However, Rule 609 addresses
only the ability of a party to impeach a witness through the
introduction of prior convictions, specifically for the purpose
of attacking credibility. Because Presley was not a witness
(indeed, he has never been found nor his current existence
established), Rule 609 is not applicable.
B. Prior Sexual Assault
Lucas contends that the district court abused its discretion
in determining that the prejudicial impact of admitting
testimony regarding her prior sexual assault in prison
outweighed any relevance these events had in explaining her
nervous behavior when arrested. We hold that even if the
district court abused its discretion, any error was harmless and
thus nonreversible.
The government, through the testimony of Trooper Earl
Hammett, introduced evidence at trial that Lucas had been

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No. 02-5399 United States v. Lucas 13
3The Presentencing Report states that Lucas “was subjected to sexual
assaults and gang rap e while incarce rated at a men’s jail facility.”
nervous when stopped by the Tennessee Highway Patrol.
Specifically, Trooper Hammett stated in his testimony that
Lucas “got nervous after she found out that we were going to
try to get back in the car after it was locked.” The prosecutor
reiterated this fact in his closing argument to the jury, in
which he stated in relevant part:
Now, once she realized that not only was she going to be
arrested but that the car was going to be towed, that’s
when Trooper Hammett indicated that he had started
noticing some things. He indicated that when she was
asked to remove her items from the vehicle that he tried
to flash the light inside of the car to assist her, and he
indicated that she was dodging the flashlight, his
flashlight. He also told you that she became nervous.
Lucas sought to counter this evidence by explaining that
she had been raped by male guards when she had previously
been in prison for conspiracy to commit bank fraud, and it
was for this reason that she had been nervous when told by
the officers that she was under arrest.3 Furthermore, Lucas
wanted to explain that the federal government had paid her
$500,000 in a settlement, because of the rapes she had
endured while in the prison system. The district court judge
agreed to allow Lucas to testify to the fact that she had
received money in a lawsuit settlement, in order to explain the
source of her money and to counter inferences made by the
prosecution that the money came from drug dealing.
However, the judge determined that she could not testify to
the fact that she had been raped. The following exchange
took place between the judge and Lucas’s lawyer on this
issue:
Defense Counsel: Judge, all these issues have been
raised, and one of the issues has been, Why were you
14 United States v. Lucas No. 02-5399
nervous out there? Why were you nervous out there? I
need to be able to, without - - I fully respect what the
court is saying. We don’t need to talk about exactly what
that was or give them the gruesome specifics, but I need
to ask if her - - Can I ask her a question to the effect, Did
you experience in prison - - you know, she’s actually
been treated for post-traumatic stress syndrome, and I
want to know if I can ask her - -
The Court: You can certainly have her explain that she
was nervous because she was afraid she was about to be
arrested and she didn’t want to be arrested. But that
doesn’t mean she gets to tell about all the intimate
horrible details of prison.
Defense Counsel: Could I mention, I suppose, because
she spent time in prison, the fears that that’s caused her
through the years?
The Court: Well, certainly.
Defense Counsel: Something to that effect?
The Court: There’s absolutely nothing wrong with that.
But we’re not going to turn this into a demonstration that
we’ve got Mother Teresa here, who is a national TV star,
who was sexually abused in prison. None of those things
have anything to do with this case.
We review a district court’s decision to exclude evidence
for abuse of discretion. United States v. Bartholomew, 310
F.3d 912, 920 (6th Cir. 2002). “Under this standard, we will
leave rulings about admissibility of evidence undisturbed
unless we are ‘left with the definite and firm conviction that
the [district] court . . . committed a clear error of judgment in
the conclusion it reached upon a weighing of the relevant
factors or where it improperly applies the law or uses an
erroneous legal standard.’”

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No. 02-5399 United States v. Lucas 15
Ibid. (quoting United States v. Haywood, 280 F.3d 715, 720
(6th Cir. 2002)).
Lucas argues that the information regarding her rape in
prison was crucial to her defense. Lucas contends that the
“jury would assume she would not be unduly nervous [when
arrested] as she had experienced this before,” since she had
been incarcerated before, and thus she needed to explain her
nervous behavior. Lucas argues that the evidence of her
having been raped was the only information that could
effectively counteract the inferences made by the prosecutor.
Lucas also contends that the information was not especially
prejudicial, other than potentially producing sympathy for
Lucas, which might have been minimized through a proper
limiting instruction by the district court.
The government argues that Lucas’s rape in prison was not
relevant, since “[a] sexual assault that occurred seven years
earlier than the charged drug offense does not negate any
elements of cocaine possession.”
Under the Federal Rules of Evidence, all relevant evidence
is admissible. See Fed. R. Evid. 402. However, a court may
exclude relevant evidence whose “probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.
The fact that Lucas was raped while in prison is technically
relevant, as it suggests that her behavior, which might
otherwise be taken as evidence of guilt and was argued as
such by the prosecution, was potentially explainable for other
reasons. See, e.g., Robinson v. Runyon, 149 F.3d 507, 512
(6th Cir. 1998) (noting that the rules regarding relevance are
“quite liberal,” since “‘evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of an action more probable or less probable
than it would be without the evidence’ is relevant.” (quoting
16 United States v. Lucas No. 02-5399
Fed. R. Evid. 401)). In addition, the risk of undue sympathy
could have been managed to some extent by a limiting
instruction. However, the Federal Rules of Criminal
Procedure provide that an error “which does not affect
substantial rights shall be disregarded.” Fed. R. Crim. P. 52.
To determine whether barring this evidence was harmless
error, we consider the impact of the error upon the right of the
defendant to a fair trial. United States v. Layne, 192 F.3d
556, 573 (6th Cir. 1999).
Lucas’s nervousness upon being faced by the police was
not crucial to the prosecution’s case. The physical evidence
of the drugs in the car she was driving, the cash in her pocket,
and inconsistencies in her testimony as compared to the
statements she made to the officers the night she was arrested
on such issues as the existence of a family reunion, constitute
convincing evidence, so that even if barring the evidence of
Lucas’s prior sexual assault was done in error, it was harmless
error that does not warrant the grant of a mistrial.
C. The Batson Challenge
Whether a party exercised its peremptory challenges in a
discriminatory manner is a finding of fact, which we review
for clear error. United States v. Bartholomew, 310 F.3d 912,
919 (6th Cir. 2002).
The jury venire for this trial included only two African-
Americans and the prosecutor exercised a peremptory
challenge to exclude one of those jurors, Ms. Green, from the
jury. Lucas objected to this challenge, noting that there did
not appear to be any cause for eliminating her from the jury,
other than the fact that she was black. The prosecutor
represented that he was using a peremptory challenge to
remove Ms. Green because she had given the “impression that
. . . she just didn’t want to be [there],” and “had indicated that
she had been divorced before [–] we knew that might be a
factor.” The district court found that the Government had

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No. 02-5399 United States v. Lucas 17
articulated a legitimate nondiscriminatory reason for the
challenge and permitted Ms. Green’s removal.
A Batson claim is analyzed in three steps. First, the
defendant must make a prima facie showing that the
prosecutor removed a potential juror for a discriminatory
reason. If the defendants make this showing, the second step
requires the prosecutor to articulate a nondiscriminatory
reason for the removal. Assuming that the prosecutor does
so, the third step requires the trial court to determine whether
the opponent of the peremptory strike has proven purposeful
discrimination. See, e.g., United States v. Yang, 281 F.3d
534, 548-49 (6th Cir. 2002), cert. denied, 123 S. Ct. 1015
(2003).
In reviewing the government’s race-neutral explanation, we
need not find that the reason given is “persuasive, or even
plausible.” Id. at 548. All that is necessary is that the reason
not be inherently discriminatory. Id. at 548-49. It is,
therefore, difficult to conclude in this case that the district
court made a clear error in determining that the prosecutor’s
peremptory challenge was free of race bias, since there is no
other evidence of discriminatory bias and the prosecutor did
not exercise a peremptory challenge in order to eliminate the
other one of two black persons from the jury. United States
v. Sangineto-Miranda, 859 F.2d 1501, 1520-21 (6th Cir.
1990) (holding that the final makeup of the jury is relevant to
a finding of discrimination). We therefore affirm the district
court’s ruling on this issue.
D. Downward Departure
A district court’s failure to grant a downward departure can
only be reviewed by us upon appeal if the lower court
erroneously believed that it lacked authority to grant such a
departure as a matter of law. See United States v. Owusu, 199
F.3d 329, 349 (6th Cir. 2000); United States v. Landers, 39
F.3d 643, 649 (6th Cir. 1994). Furthermore, the district court
need not explicitly state that it is aware of its discretionary
18 United States v. Lucas No. 02-5399
authority to depart downward, since there is “no duty on the
trial judge to state affirmatively that he knows he possesses
the power to make a downward departure, but declines to do
so.” United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995).
Lucas argues that the district court should have granted a
downward departure in her sentence on the basis of her rape,
and of the charity work that she did for Amnesty International
and Human Rights Watch. The government contends not
only that the district court understood that it was able to grant
a downward departure, but also that doing so would not have
been reasonable under the circumstances.
The district court, in making this ruling, stated as follows:
Now, concerning the defendant’s prior incarceration, it is
tragic and unfortunate what happened to Ms. Lucas when
she was in federal custody on her prior conviction. It is
not the purpose of prisons to inflict that sort of injury and
damage upon someone, and I regret seriously that that
happened to Ms. Lucas. But that’s not a basis for a
downward departure in this case. I’m sure it was very
distressing to the defendant, but that is not – there’s not
a showing that the mental effect of that tragic incident
affected her responsibility in this case or is – and it’s not
a basis for any sort of downward departure.
Also, her work for Amnesty International and the other
human rights organizations, that’s commendable. That
came about as a result of her being a victim, I suspect,
It’s good work, but it is not a basis for a downward
departure in this case.
(emphasis added).
The district court does not state that it does not have the
ability to depart downwards in general. Instead, it states that
there was no basis for a departure in this case. Therefore, we
have no jurisdiction to consider this part of the appeal.

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No. 02-5399 United States v. Lucas 19
III
For the reasons given above, we AFFIRM Lucas’s
conviction and subsequent sentence.
20 United States v. Lucas No. 02-5399
1To the extent that the majority’s opinion can be read to imply that
a Rule 403 probative value/prejudice analysis is not part of a traditional
Rule 404 (b) analysis, that wo uld be an inaccurate statement of the law.
W ell-settled law clearly provides that a Rule 403 balancing is an essential
part of a Rule 40 4(b) analysis. See e.g., U nited States v. Largent, 545
F.2d 103 9, 10 43 (6th Cir.197 6), cert. denied, 429 U.S. 109 8 (1977 );
United States v. Ring, 513 F.2d 10 01, 1005 (6th Cir. 197 5); United States
v. Blan kenship, 775 F.2d 735, 739 (6th Cir. 198 5); United States v. Vance,
871 F.2d 572 , 575 ( 6th Cir. 19 89), cert. denied, 493 U.S. 933 (1989);
United States v. Blakeney, 942 F.2d 10 01, 1018 (6th Cir. 19 91), cert.
___________________
CONCURRENCE
___________________
ROSEN, District Judge, concurring. I agree with the
majority and join in affirming Lucas’s conviction and
sentence. I write separately, however, on the “reverse 404(b)”
issue discussed in Part II of the majority opinion as I find the
relevancy/prejudice test and rationale set out by the Third
Circuit in United States v. Stevens, 935 F.3d 1380 (3rd Cir.
1991), more compelling than the standard Rule 404(b)
analysis adopted by the majority where, as here, the prior
“bad act” is that of an absent third party, not that of the
defendant, and the evidence is not being used by a prosecutor
against a defendant, but rather is offered as exculpatory
evidence by the defendant.
Lucas’s defense at trial was that Morell Presley, not Lucas,
committed the crime with which she was charged. To support
this defense, Lucas sought to admit evidence of Presley’s
prior conviction for possession with intent to distribute
cocaine. The district court denied this request finding that it
was more prejudicial than probative. Although not
disagreeing with the district court’s finding, the majority now
holds that the straightforward relevance/prejudice analysis
under Rules 401 and 403 is inapplicable in the context of
“reverse 404(b)” evidence.1 Under the majority’s ruling here,

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No. 02-5399 United States v. Lucas 21
denied, 502 U .S. 1035 (199 2).
evidence of “other crimes,” whether offered to incriminate or
to exonerate the defendant, is subject to a straightforward
application of Rule 404(b).
Fed. R. Evid. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however,
be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, preparation, plan, knowledge, identity, or
absence of mistake or accident.
Observing that the Rule is directed to evidence of other acts
of “a person” and not only the other acts of “a defendant,” the
majority finds that the standard Rule 404(b) analysis should
apply with respect Morell Presley’s prior conviction for
possession with intent to distribute cocaine. Because Lucas
failed to demonstrate that Presley’s conviction could have
been offered for any purpose other than to prove Presley’s
propensity to commit the crime with which Lucas was
charged, the majority finds admission of the evidence to be
precluded by a straightforward application of Rule 404(b).
Although at first blush, the majority’s “plain language of
the rule” approach carries some weight and finds some
support in the case law, a closer examination of the policies
underlying Rule 404(b) and the case law addressing the
“reverse 404(b)” evidence issue, persuades me that the Rule
404(b) should not be applied in cases where, as here, the
defendant offers prior act evidence of a third party to prove
some fact -- even propensity -- relevant to the defense.
First, both the source and policy underlying Rule 404(b)
demonstrate that the Rule is intended to protect a party to the
22 United States v. Lucas No. 02-5399
litigation -- in particular, the criminal defendant -- from the
prejudice of the propensity/character taint danger.
Rule 404(b)’s basic rule of exclusion -- that evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith -- has its source in the common law. The common
law rule was that “the doing of a criminal act, not part of the
issue, is not admissible as evidence of the doing of the
criminal act charged.” See Wigmore, Code of Evidence, 3d
ed., p. 81. See also, United States v. Dudek, 560 6th F.2d
1288, 1295-96 (6th Cir. 1977) (noting that Fed. R. Evid.
404(b) restates the common law). The policy underlying the
common law rule was the protection of the criminal
defendant. See Wright & Graham, Federal Practice and
Procedure: Evidence, § 5239, pp. 436-439.
Rule 404(b) continues the policy of the common law. Id.
at 439. This is clear from this Court’s observation in United
States v. Phillips, 599 F.2d 134 (6th Cir. 1979). In Phillips,
the Court noted that Rule 404(b)’s exclusionary rule
addresses two main policy concerns:
(1) that the jury may convict a “bad man” who deserves
to be punished not because he is guilty of the crime
charged but because of his prior or subsequent misdeeds;
and (2) that the jury will infer that because the accused
committed other crimes, he probably committed the
crime charged.
599 F.2d at 136.
Professor Weissenberger explained these policy concerns
in his treatise as follows:
[E]vidence of the extrinsic act is excluded because it is
thought that the jury might punish an individual for the
discrete conduct rather than weighing only the direct
evidence of the charged crime. Another policy
supporting Rule 404(b) is a recognition of the danger that

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No. 02-5399 United States v. Lucas 23
the jury may misestimate the probative value of the
extrinsic act evidence in evaluating its significance . . . .
The natural and inevitable tendency of the tribunal --
whether judge or jury -- is to give excessive weight to the
vicious record of crime thus exhibited, and either to
allow it to bear too strongly on the present charge, or to
take proof of it as justifying a condemnation irrespective
of guilt of the present charge.
Weissenberger’s Federal Evidence, § 404.12 3d. ed. (1998).
The foregoing discussion demonstrates that the principal
policy consideration underlying Rule 404(b)’s exclusionary
rule is to protect the parties in an action, and in particular,
criminal defendants, from the danger of unfair prejudice. The
danger of prejudice to a party -- particularly a criminal
defendant -- however, does not exist in the context of “reverse
404(b)” evidence where, as here, the defendant offers
evidence of other crimes or bad acts of a third party
exculpatorily.
Notwithstanding these policy considerations, because of the
language used in Rule 404(b), i.e., the use of “a person”
instead of “a party”, the courts have not treated “reverse
404(b)” evidence uniformly and the circuits are divided on the
issue of the Rule’s applicability with regard to such evidence.
The Seventh and the Ninth Circuits, like my colleagues on the
panel in this case, have taken a “plain language” approach,
and because Rule 404(b) speaks not of the parties to a case
but of “a person,” have held that Rule 404(b) applies not only
to the extrinsic acts of the parties but also to the acts of absent
third parties. See Agushi v. Duerr, 196 F.3d 754, 759-761
(7th Cir. 1999); United States v. McCourt, 925 F.2d 1229 (9th
Cir. 1991).
However, the First, Second, Third, Fifth and Eleventh
Circuits have taken the opposing view and have all
determined that Rule 404(b) is not applicable to evidence of
acts of third parties. See United States v. Gonzalez, 825 F.2d
24 United States v. Lucas No. 02-5399
572, 582 (1st Cir. 1987), cert. denied, 484 U.S. 989; United
States v. Aboumoussallem, 726 F.2d 906, 911-912 (2nd Cir.
1984); United States v. Stevens, 935 F.3d 1380 (3rd Cir.
1991); United States v. Krezdorn, 639 F.2d 1327, 1332-33
(5th Cir. 1981), cert. denied, 465 U.S. 1066 (1984); United
States v. Morano, 697 F.2d 923, 926 (11th Cir. 1983). These
courts were persuaded by the policy underpinnings of Rule
404(b). The Eleventh Circuit’s explanation in United States
v. Krezdorn, supra, is illustrative:
The extrinsic acts rule is based on the fear that the jury
will use evidence that the defendant has, at other times,
committed bad acts to convict him of the charged
offense. Consequently, where the only purpose served
by extrinsic offense evidence is to demonstrate the
propensity of the defendant to act in a certain way, the
evidence must be excluded. When, however, the extrinsic
offense was not committed by the defendant, the
evidence will not tend to show that the defendant has a
criminal disposition and that he can be expected to act in
conformity therewith. When the evidence will not
impugn the defendant’s character, the policies underlying
Rule 404(b) are inapplicable.
639 F.2d at 1332-1333 (citations omitted).
Courts adopting the policy approach to Rule 404(b) found
that policy considerations were particularly persuasive with
regard to evidence of acts of third parties offered
exculpatorily by criminal defendants. For example, in United
States v. Aboumoussallem, supra, a narcotics trafficking
defendant sought to offer in support of his defense that he had
been duped into transporting the drugs by his cousins
evidence that a few months earlier, another individual had
been similarly duped by these same cousins to transport
narcotics. The district court excluded the evidence as not
relevant, more prejudicial than probative, and not admissible
under Rule 404(b). The Second Circuit disagreed with the
district court’s determination that the defendant’s proffered

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No. 02-5399 United States v. Lucas 25
evidence was not relevant and inadmissible under Rule
404(b), explaining:
We believe the standard of admissibility when a
criminal defendant offers similar acts evidence as a
shield need not be as restrictive as when a prosecutor
uses such evidence as a sword. The prosecution, in the
Anglo-American tradition, may not ordinarily offer
evidence of a defendant’s prior wrongdoing for the
purpose of persuading the jury that the defendant has a
propensity for crime and is therefore likely to have
committed the offense for which he stands trial. As Dean
Wigmore points out, the evidence is objectionable not
because it has no appreciable probative value but because
it has too much. Presumably, the “too much” argument
means that a guilty person, and, of far more serious
concern, an innocent person, may be convicted primarily
because of the jury’s willingness to assume his present
guilt from his prior misdeed.
Wigmore also identifies objections based on the risk
that the jury will convict because the defendant may not
have been punished for his prior offenses and the
injustice of requiring the defendant to defend against a
series of accusations. These possibilities of prejudice
must be assessed even in cases where the prosecutor
offers similar acts evidence, not to prove the character of
the accused, but to prove one of the permissible
subsidiary facts listed in Rule 404(b), such as intent or
plan. However, risks of prejudice are normally absent
when the defendant offers similar acts evidence of a
third party to prove some fact pertinent to the defense.
In such cases the only issue arising under Rule 404(b)
is whether the evidence is relevant to the existence or
non-existence of some fact pertinent to the defense.
726 F.2d at 911-912 (citations and footnotes omitted;
emphasis added).
26 United States v. Lucas No. 02-5399
The absence of prejudice in the context of “reverse 404(b)”
evidence was similarly emphasized by the Third Circuit in
Stevens, supra, 935 F.2d at 1404, and by the New Jersey
Supreme Court in State v. Garfole, 76 N.J. 445, 388 A.2d 587
(1978), which both the Stevens court and the Aboumoussallem
court cited with approval:
. . .[O]ther-crimes evidence submitted by the
prosecution has the distinct capacity of prejudicing the
accused. Even instructions by the trial judge may not
satisfactorily insulate the defendant from the hazard of
the jury using such evidence improperly to find him
guilty of the offense charged merely because they believe
he has committed a similar offense before. . . . But when
the defendant is offering that kind of proof exculpatorily,
prejudice to the defendant is no longer a factor, and
simple relevance to guilt or innocence should suffice as
the standard of admissibility, since ordinarily, and
subject to rules of competency, an accused is entitled to
advance in his defense any evidence which may
rationally tend to refute his guilt or buttress his innocence
of the charge made.
Id., 76 N.J. at 452-53, 388 A.2d at 591 (footnote omitted).
It was precisely because of the absence of prejudice to the
defendant that the Third Circuit held in Stevens that
admissibility of “reverse 404(b)” evidence was governed by
the relevancy/prejudice considerations of Fed. R. Evid. 401
and 403:
We agree with the reasoning of Garfole and with its
holding that the admissibility of “reverse 404(b)”
evidence depends on a straightforward balancing of the
evidence’s probative value against considerations such as
undue waste of time and confusion of the issues.
Recasting this standard in terms of the Federal Rules of
Evidence, we therefore conclude that a defendant may
introduce “reverse 404(b)” evidence so long as its

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No. 02-5399 United States v. Lucas 27
probative value under Rule 401 is not substantially
outweighed by Rule 403 considerations. . . . [Thus], a
defendant must demonstrate that the “reverse 404(b)”
evidence has a tendency to negate his guilt, and that it
passes the Rule 403 balancing test.
935 F.2d at 1404-05 (footnote omitted).
I agree with the reasoning of the Second and Third Circuits.
In my view, the simple fact that proffered evidence involves
somebody’s prior bad act -- not the defendant’s -- does not
automatically bring it under the Rule 404(b) rubric and
admission standard. The entire 404(b) paradigm is intended
to protect a party to the litigation from the prejudice of the
propensity/character taint danger. The danger of prejudice to
a party, -- particularly a criminal defendant -- however, does
not exist in the context of “reverse 404(b)” evidence; indeed,
it is that party which the Rule is intended to protect who is
offering the evidence.
I find the Third Circuit’s reasoning particularly persuasive
and would apply the relevancy/prejudice test established in
Stevens here because, where the character interests and
inferences of a party are not implicated, there is simply no
evidentiary policy or purpose served by precluding a
propensity consideration by the jury that is not already
addressed by the traditional Rule 401/403 evidentiary
analysis. (For example, any concerns about prejudice to a
party -- here, the Government -- or confusion of the issues, by
admission of the evidence would be adequately dealt with in
the context of a Rule 403 analysis.)
In this case, there seems little doubt that Presley’s prior
conviction for cocaine distribution would tend to negate
Lucas’s guilt by corroborating her defense that the drugs were
Presley’s, not hers, albeit through the propensity inference,
and there can be no serious question, therefore, that such
evidence is relevant. Further, the danger of character taint
posed by the propensity inference is not present here because
28 United States v. Lucas No. 02-5399
2I have somewhat the same view about the jail rape evidence offered
by way of explanation for Defendant’s nervousness. The rather
circum scribed, limited testimony she was allowed to give -- that she was
afraid of going to jail (as would be most people) hardly gives the same
texture and context to her nervous reaction as does the purported real
reason (i.e., the rape experience). Indeed, taken alone, the limited “afraid
of going to jail” reason she was allowed to testify to seems to be a weak
one and the jury might well have been misled by it. But again, although
I might have allowed Defendant to testify that she was rap ed while in jail,
Presley, whose character would be tainted, is not a party.
Therefore, the more rigidly constructed constraints of Rule
404(b) need not and should not apply. Instead, this should be
treated as a simple relevance issue and, since the proffered
evidence has a tendency to negate Lucas’s guilt, it passes
Rule 401 relevancy muster.
This leaves only the Rule 403 part of the analysis. The
disputed evidence is especially probative here because the
Defendant testified and her credibility was, in the absence of
much other independent evidence showing her involvement
with the drugs, an important element for the jury to weigh.
Unlike the district court, I would have found that the
probative value of the evidence of Presley’s prior conviction
was not substantially outweighed by the dangers of prejudice
or confusion, particularly with the availability of a limiting
instruction, and would have admitted the evidence. But, the
standard of review is abuse of discretion, and although I
believe this presents a close question, the fact that I would
have admitted the evidence does not mean that the trial judge
here abused his discretion in excluding it. I am particularly
persuaded that there is no abuse of discretion here since the
issue is a close one and there is a split in the circuits as to the
appropriate standard to apply to reverse 404(b) evidence --
and, I agree with the majority that the only use of the
evidence here would have been for the propensity inference,
and that is not permitted by the straightforward Rule 404(b)
analysis applied by the majority and the other circuits that
have adopted this test.2 Accordingly, with respect to the

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No. 02-5399 United States v. Lucas 29
I cannot say that the trial judge abused his discretion in keeping that
testimony out.
reverse 404(b) issue, I concur in the result reached by
majority although not in its analysis. With respect to all of
the other issues presented, I join in the majority opinion.

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