910 F.

2d 154
30 Fed. R. Evid. Serv. 1219

UNITED STATES of America, Plaintiff-Appellee,

v.
Carl SIMPSON, a/k/a Shawn Davidson, Defendant-Appellant.
No. 89-5671.

United States Court of Appeals,

Fourth Circuit.
Argued June 8, 1990.
Decided Aug. 7, 1990.

Charles James Maxfield, argued, Dunn, McCormack, MacPherson &

Maxfield, Fairfax, Va., for defendant-appellant.
Paul George Cassell, argued, Asst. U.S. Atty., Alexandria, Va. (Henry E.
Hudson, U.S. Atty., Marcus J. Davis, Sp. Asst. U.S. Atty., Alexandria,
Va., on brief), for plaintiff-appellee.
Before ERVIN, Chief Judge, HALL, Circuit Judge, and MICHAEL,
United States District Judge for the Western District of Virginia (sitting by
designation).
K.K. HALL, Circuit Judge:

Carl Simpson, a/k/a Shawn Davidson, appeals his convictions for unlawfully
possessing a firearm, in violation of 18 U.S.C. Sec. 922(g), and attempting to
board an aircraft with a concealed weapon, in violation of 49 U.S.C. Sec. 1472(l
). Finding that the trial court committed prejudicial error in admitting certain
evidence, we reverse.

I.
2

On April 22, 1989, Simpson, along with three companions, entered the North
Terminal of Washington National Airport, headed for the gate to the Pan Am
shuttle flight to New York City. To reach the gate, the group had to pass

through a security checkpoint consisting of a magnetometer and an x-ray

machine. The rest of the group passed through the checkpoint without incident;
Simpson, however, was not so fortunate. To get through the magnetometer, he
was forced to empty his pockets, revealing over $450 in cash. An x-ray of two
shopping bags that he was carrying revealed a suspicious looking metallic
object. Security personnel emptied the bags and searched the contents. They
discovered a fully loaded and cocked .25 caliber Beretta pistol wrapped in red
cloth and tucked in the pocket of a pair of pants. Unaware that the gun had been
discovered, Simpson admitted that the shopping bags were his. His companions
quickly left and were eventually located at the departure gate for the New York
shuttle. They were briefly questioned and then released. Simpson was arrested.
3

Besides the currency, a post-arrest search produced a small bottle of amyl

nitrate ("rush"). A later search uncovered a trace amount of suspected
marijuana residue in one of Simpson's jacket pockets.1 Upon questioning,
Simpson told police that his name was Shawn Simpson, that he was born in
Brooklyn, New York, and that he was a juvenile. Shortly thereafter, police
determined his true identity to be Carl Simpson, an adult citizen of Jamaica.

In pretrial proceedings, Simpson sought to exclude from trial, inter alia, his
Jamaican citizenship, the marijuana residue, the bottle of rush, and the
currency. He argued that this evidence had little to do with the crimes charged,
proof of which hinged on his knowing possession of a gun, and its admission
would be unfairly prejudicial. The government contended that the evidence was
highly probative because it would indirectly prove that appellant was in
knowing possession of a gun by showing that he met the drug courier profile2
and that drug couriers frequently carry guns for protection. The district court
excluded the bottle of rush, but ruled that Simpson's Jamaican citizenship, the
money, and the marijuana residue were admissible.

At trial, Simpson's defense was that someone else planted the gun in his
shopping bag and that, even though he was entering the Pan Am shuttle gate
area, he never intended to board a plane. This defense was not without support.
At the time of his arrest, Simpson did not have a plane ticket and, other than the
two shopping bags, he was carrying no luggage. The prosecution successfully
pursued its drug courier theory of the case, introducing all of the disputed
evidence. Over Simpson's renewed objection, an FBI agent offered expert
testimony on the modus operandi of drug traffickers, and his opinion that
Simpson's possession of a relatively large amount of cash, a recreational drug
(marijuana), and, of course, a gun, all fit the drug courier profile. He further
testified that New York was a source city for narcotics, that couriers typically
travel by air, and that they often purchase their tickets with cash. An airport

security officer also testified that shuttle tickets can be purchased at the gate.
On cross-examination, the agent admitted that there was no substantive
evidence of Simpson's having ever engaged in drug trafficking. In its
instructions to the jury, the trial court cautioned that the drug courier evidence
should only be considered as it pertained to the gun charges. Simpson was
convicted on both counts.
6

At sentencing, Simpson moved for acquittal on the 49 U.S.C. Sec. 1472(l )

conviction, contending that there was insufficient evidence to show an attempt
to board an aircraft. The district court denied the motion and Simpson was
sentenced to two concurrent 57-month sentences. This appeal followed.

II.
7

Appellant challenges the trial court's admission into evidence of his Jamaican
citizenship, the currency, and the testimony concerning the marijuana residue
and the drug courier profile. He argues that, without any substantive proof of
drug trafficking activity on his part, the government used this evidence to depict
him as a drug courier and to prejudice the jury on the only contested issues of
the case--his knowing possession of the gun and his attempt to board an
aircraft. Appellant also contends that there was insufficient evidence to convict
him of attempting to board an aircraft with a concealed weapon. We take up
these issues in turn.

We analyze appellant's challenge to the admission of the disputed evidence

under Fed.R.Evid. 403:3

Although relevant, evidence may be excluded if its 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.

10

As we have repeatedly held, the decision whether to admit evidence under this
rule is one left to the sound discretion of the trial court. We will not upset such
a decision except under "the most 'extraordinary' of circumstances," where that
discretion has been plainly abused. United States v. Heyward, 729 F.2d 297,
301 n. 2 (4th Cir.1984), cert. denied, 469 U.S. 1105, 105 S.Ct. 776, 83 L.Ed.2d
772 (1985) (quotation omitted), cited in United States v. Tindle, 808 F.2d 319,
327 n. 6 (4th Cir.1986), later appeal, 860 F.2d 125 (4th Cir.1988), cert. denied,
--- U.S. ----, 109 S.Ct. 3176, 104 L.Ed.2d 1038 (1989). Such an abuse occurs
only when it can be said that the trial court acted "arbitrarily" or "irrationally"

in admitting evidence. United States v. Masters, 622 F.2d 83, 88 (4th Cir.1980);
Garraghty v. Jordan, 830 F.2d 1295, 1298 (4th Cir.1987).
11

This broadly deferential standard makes clear that we are reluctant to question a
trial court's judgment under Rule 403, and for good reason. "Trial judges are
much closer to the pulse of a trial than ... [we] can ever be [and] 'broad
discretion' is necessarily accorded them." Tindle, 808 F.2d at 327 n. 6, quoting
United States v. Juarez, 561 F.2d 65, 71 (7th Cir.1977); see also Morley v.
Cohen, 888 F.2d 1006, 1011 (4th Cir.1989) (appellate review of Rule 403
decision demands judicial self-restraint). Nonetheless, when, after review of the
record, we are left with a firm conviction that an abuse of discretion has
occurred that has worked to the prejudice of a defendant, we must reverse. We
find that the trial court's admission of the testimony concerning the drug courier
profile and the marijuana residue ("drug courier" testimony) was such an abuse
of discretion.

12

In reaching this conclusion, we are mindful of the strong preference for

admitting probative evidence, and that, in reviewing the trial court's decision,
we must "look at the evidence in a light most favorable to its proponent,
maximizing its probative value and minimizing its prejudicial effect." Mullen v.
Princess Anne Volunteer Fire Co., Inc., 853 F.2d 1130, 1135 (4th Cir.1988). In
this regard, the government argues that the probative value of the drug courier
testimony is high because it shows that appellant meets the drug courier profile
and, therefore, tends to show that he is a courier. Consequently, the government
maintains it also tends to show that appellant might have had a motive for
carrying a gun. Simply to state this argument reveals its tenuity.

13

When coupled with other corroborating circumstances, the drug courier profile
is a powerful investigative tool used, inter alia, to develop reasonable suspicion
to support a Terry stop (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968)) of a suspected drug trafficker. See Reid v. Georgia, 448 U.S. 438,
439-41, 100 S.Ct. 2752, 2753-54, 65 L.Ed.2d 890 (1980). However, proof that
a person fits the profile, unsupported by evidence of drug trafficking, proves
nothing.4 United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1586, 104
L.Ed.2d 1 (1989). As the Supreme Court has noted, the profile easily fits
innocent travellers as well as drug traffickers. Reid, 448 U.S. at 441, 100 S.Ct.
at 2754; Sokolow, 109 S.Ct. at 1586. Thus, the government's claim as to the
probative value of this testimony is grossly exaggerated. If there were any
evidence linking appellant to the drug trade, the probative value of this
testimony might more closely resemble the government's representations. The
government, however, has come forth with no such evidence.5 Consequently,
the probative value of this evidence in this gun charge trial is indeed limited.

14

This de minimis relevance was substantially outweighed by the highly

prejudicial impact that the insinuation of drug crimes had in this trial. Of
course, all relevant evidence is prejudicial; Rule 403 is concerned only with
limiting "unfair" prejudice. Mullen, 853 F.2d at 1134. In Mullen, we
characterized "unfair prejudice" as "the possibility that the evidence will excite
the jury to make a decision on the basis of a factor unrelated to the issues
properly before it." Id. The drug courier testimony presented precisely this
danger. The relevant issues in dispute at appellant's trial were his knowing
possession of a gun and his intent to board the shuttle to New York. The drug
courier testimony had very little probative value to offer on these issues while
the government made appellant's status as a drug courier the centerpiece of its
case. Under these circumstances, the inherent risk of inflaming the jury, and of
misleading it into focusing on the government's unsubstantiated and uncharged
allegations of drug crimes, was unacceptably high. The government's use of the
drug courier profile at trial transformed this powerful tool of law enforcement
into an instrument of unjust accusation. Our review of the record leaves us
firmly convinced that the trial court abused its discretion in admitting the drug
courier testimony.

III.
15

The government argues that in the face of the convincing evidence of

appellant's guilt and the trial court's limiting instruction, the error in admitting
this evidence was harmless. We disagree. To be sure, errors under Rule 403 are
subject to the harmless error test: "whether it is probable that the error could
have affected the verdict reached by the particular jury in the particular
circumstances of the trial." United States v. Morison, 844 F.2d 1057, 1078 (4th
Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 259, 102 L.Ed.2d 247 (1988).
However, we find such a probability here. The thrust of the government's case
was that appellant was an armed drug courier en route to the source city of New
York. Our ruling under Rule 403 eviscerates this theory of the case entirely.
Appellant's guilt on the gun charges must be determined absent unfounded
accusations of drug trafficking. We have no difficulty concluding that the trial
court's error, which resulted in the entire trial being based on this erroneous and
prejudicial premise, probably had an effect on the jury's verdicts. Accordingly,
we reverse these convictions and remand for further proceedings.

IV.
16

We agree with the government, however, that appellant's challenge to the

evidence of his Jamaican citizenship and the substantial amount of cash he was
carrying at the time of his arrest is meritless. Removed from the drug courier

context in which these facts were originally introduced, they easily pass Rule
403 muster. Both are highly relevant. The money shows that appellant had the
means to purchase a ticket to board the Pan Am shuttle. Appellant's Jamaican
citizenship may show a manifestation of his consciousness of guilt when he lied
about his true identity. United States v. Kalish, 690 F.2d 1144, 1155 (5th
Cir.1982), cert. denied 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983).
Likewise, neither is unfairly prejudicial. There is nothing unfair about showing
that appellant had the financial means to attempt to board the plane or in
showing that he lied about his identity when caught with the gun in his
possession. Upon retrial, if the government again seeks to introduce this
evidence, Rule 403 does not stand in its way.
V.
17

Lastly, even though we reverse appellant's convictions on Rule 403 grounds, it

is still necessary to reach his claim of insufficient evidence of an attempt to
board an aircraft. As the Supreme Court made clear in Burks v. United States,
437 U.S. 1, 18, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1 (1978), if he were to
prevail on this claim, the double jeopardy clause would bar his retrial on the
charge of violating 49 U.S.C. Sec. 1472(l ). In Lockhart v. Nelson, 488 U.S. 33,
109 S.Ct. 285, 102 L.Ed.2d 265 (1988), the Court held that this bar does not
arise unless all the evidence considered by the jury, both admissible and
inadmissible, is insufficient to support its verdict. See also Palmer v. Grammer,
863 F.2d 588, 593-94 (8th Cir.1988). Thus, in assessing the evidence of
appellant's guilt, we must consider the erroneously admitted drug courier
testimony. Further, we must find the evidence sufficient if any rational trier of
fact could have reached the same conclusion as did appellant's jury. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The
government's case easily passes this test.

18

Even absent the improper drug courier evidence, the government showed that:
appellant is a resident of the New York City area; he was apprehended while en
route to the departure gate for the Pan Am shuttle to New York; he was
carrying sufficient cash to purchase a shuttle ticket; after his arrest, the group he
was travelling with went on to the shuttle's departure area; and appellant lied
about his true identity. Taken in the light most favorable to the government, this
evidence is sufficient to show an attempt to board the shuttle. Thus, there is no
double jeopardy bar to appellant's retrial on the 49 U.S.C. Sec. 1472(l ) charge.

VI.
19

In sum, we find that the trial court erred under Fed.R.Evid. 403 in admitting the

drug courier testimony and that this error was not harmless. Accordingly, we
reverse these convictions and remand for further proceedings.
20

REVERSED AND REMANDED.

The amount of this residue was so small that it could not be field tested. An FBI
agent testified at trial that the residue was "a greenish-brown leafy substance
containing some stems and also some seeds" that was "consistent with residue
of marijuana." The substance itself was not admitted into evidence

"A drug courier profile is 'an informally compiled abstract of characteristics

thought typical of persons carrying illicit drugs.' " United States v. Harrison,
667 F.2d 1158, 1161 n. 4 (4th Cir.), cert. denied, 457 U.S. 1121, 102 S.Ct.
2937, 73 L.Ed.2d 1335 (1982), quoting United States v. Mendenhall, 446 U.S.
544, 547 n. 1, 100 S.Ct. 1870, 1873 n. 1, 64 L.Ed.2d 497 (1980)

Appellant also challenges the admission of the drug courier and marijuana
residue testimony as an abuse of discretion under Fed.R.Evid. 404(b). Because
we find Rule 403 dispositive, we do not reach this issue

Appellant does not argue that this evidence fails to meet the threshold
definition of "relevant evidence" under Fed.R.Evid. 401. Consequently, we
assume that the drug courier testimony meets this liberal requirement

This is a distinguishing point between this case and United States v. Hattaway,
740 F.2d 1419, 1425 (7th Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83
L.Ed.2d 708 (1984); United States v. Harrell, 737 F.2d 971, 977-78 (11th
Cir.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 781 (1985),
the cases relied upon by the government. In both cases, the trial court let in
evidence of the practices and customs of a motorcycle gang in a trial of known
gang members and affiliates. Here there is simply no similar evidence that
appellant is a drug courier or that links him in any way to the drug trade
The government's analogy fails in at least one other respect. Unlike motorcycle
gangs, drug couriers are not a cognizable group with unifying customs and
codes of conduct that guide the way they operate. Thus, even if there were
some corroborative proof that appellant was a drug courier, the government's
reliance on Hattaway and Harrell would be misplaced.