Submitted: April 7, 2017
from United States District Court for the Southern District
of Iowa - Davenport
SMITH, Chief Judge, SHEPHERD, Circuit Judge, and FENNER,
FENNER, District Judge.
case arises from an investigation into a heroin-distribution
conspiracy in Iowa City, Iowa. On July 21, 2015, a grand jury
sitting in the Southern District of Iowa returned a
superseding indictment charging Alfred Latrell Jackson and
Curtis Lee Kemp, as well as five other individuals, with
conspiracy to distribute heroin, in violation of 21 U.S.C.
§§ 846 and 841(a)(1), and multiple counts of
distribution of heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). Before trial, the
government filed a notice of intent to use Rule 404(b)
evidence. On April 12, 2016, a jury returned guilty verdicts
as to both Jackson and Kemp.
district court sentenced Jackson to 188 months'
imprisonment and sentenced Kemp to 84 months'
imprisonment. Both filed timely notices of appeal. We affirm
the district court's judgment.
in 2012, Iowa City law enforcement witnessed a tremendous
increase in the use and distribution of heroin within the
jurisdiction. In July 2014, investigators identified a man
named Jason Dawson as a source of heroin in the area. With
the goal of ultimately purchasing heroin directly from
Dawson, police began executing controlled purchases in the
city. Those purchases led them to contact with both Dawson,
and appellant Curtis Kemp. In July 2014, an officer was able
to execute a search of Dawson's vehicle during a traffic
stop. The officer discovered a small amount of heroin, $1,097
in United States currency, and two cellular phones. Officers
later obtained warrants to search the contents of those
phones. They identified two numbers Dawson frequently texted
about heroin and large amounts of money. Officers searched
Dawson's residence that same day. During the search, they
discovered additional evidence of an on-going heroin
distribution scheme. Dawson agreed to cooperate with
authorities, and identified appellant Alfred Jackson as his
heroin source. The officers set up a recorded phone call
between Dawson and Jackson, and the two spoke about a pending
transaction. Officers then searched Jackson's residence
and discovered further evidence of a heroin distribution
ring. Among the discovered evidence was a cell phone that
matched the number Dawson frequently texted about heroin
eventually arrested both Kemp and Jackson. The two, along
with five others, were charged with conspiracy to distribute
heroin and several other related crimes. Kemp and Jackson now
appeal their conviction.
Admission of Evidence under Federal Rule of Evidence
Kemp argues that the district court abused its discretion
when it, over Kemp's objection, allowed the government to
present (1) evidence of a 2010 search of Kemp's apartment
that showed Kemp was involved in selling controlled
substances; and (2) testimony from Ricky Jones detailing that
he and Kemp had used heroin together. We review the district
court's admission of evidence under Rule 404(b) for abuse
of discretion. United States v. Wilson, 619 F.3d
787, 791-92 (8th Cir. 2010). We will reverse the district
court's decision "only when such evidence clearly
had no bearing on the case and was introduced solely to prove
the defendant's propensity to commit criminal acts."
United States v. Littlewind, 595 F.3d 876, 881 (8th
Cir. 2010) (quotation omitted).
trial, the government presented testimony from Investigator
Blomgren, a narcotics investigator with the Iowa City Police
Department. Blomgren's testimony covered many aspects of
the investigation that snared Kemp, and included an account
of a 2010 search of Kemp's apartment. In 2010, the police
obtained a search warrant after they executed a
controlled-buy with a different individual inside the unit.
Officers discovered a crack cocaine pipe, crack cocaine
paraphernalia, prescription pills, packaging materials, a
digital scale, and cell phones during the search. The state
of Iowa filed charges against Kemp over the officers'
findings, but the charges were later dismissed. The district
court allowed the government to introduce Blomgren's
testimony about the 2010 search, but contemporaneously
instructed the jury as follows:
Remember if you find that Defendant Kemp was involved in drug
activity prior to the alleged conspiracy, this is not
evidence that he committed the drug crimes alleged in this
case. You may not convict a person simply because he may have
committed similar acts in the past. Defendant Kemp is on
trial only for the crimes charged, and you may consider this
evidence of any prior acts that you find to be supported by
evidence involving drug ...