708 F.

2d 606
13 Fed. R. Evid. Serv. 1123

UNITED STATES of America, Plaintiff-Appellee,

v.
Annie Ruth BOVAIN, Willie Alfred Brown, Dean Rickett,
William Laselle Thornton, Charles Finch, William
Clyde Perkins, Alvin R. Heath,
Defendants-Appellants.
No. 81-7350.

United States Court of Appeals,

Eleventh Circuit.
June 27, 1983.

Thomas W. Witcher, Decatur, Ga. (Court appointed), for Bovain.

Douglas N. Peters, Decatur, Ga. (Court appointed), for Brown.
Allan A. Ackerman, Chicago, Ill., for Rickett et al.
P. Bruce Kirwan, Atlanta, Ga. (Court appointed), for Thornton.
Brooks S. Franklin, Atlanta, Ga., for Finch.
Joseph M. Winter, Atlanta, Ga., for Perkins.
Cyril C. Hall, Pontiac, Mich. (Court appointed), for Heath.
William L. Harper, U.S. Atty., Julie E. Carnes, Asst. U.S. Atty., Atlanta,
Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of
Georgia.
Before KRAVITCH, HENDERSON and ANDERSON, Circuit Judges.
ALBERT J. HENDERSON, Circuit Judge:

The appellants were charged in the United States District Court for the
Northern District of Georgia with unlawful distribution of, and conspiracy to
distribute, heroin in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1976).
Three were found guilty only of conspiracy and four were convicted on both
conspiracy and substantive distribution counts. Three other defendants were
acquitted by the jury. Finding no error, we affirm.

In 1977, John Nichols, who later pled guilty and testified for the government,
introduced Charles Finch, a resident of Atlanta, Georgia to Dean Rickett, who
lived in Chicago, Illinois. Thereafter, Finch began traveling to Chicago and
Indianapolis every four or five days to purchase large quantities of heroin from
Rickett. Annie Bovain assisted Finch in cutting and selling the drug in Atlanta.
Willie Brown bought heroin from them for resale to his own customers, one of
whom was an undercover agent. The police learned through a reliable
informant that a major heroin supplier lived at 3255 Chestnut Drive, Apartment
16, the residence of Annie Bovain. The agents set up a surveillance of the
apartment and observed Brown and Finch entering the premises. On May 10,
1977, they obtained a search warrant and entered the dwelling, seizing a
quantity of heroin just as Bovain and Finch were attempting to flush it down the
toilet. Bovain, Brown, and Finch were then arrested in the apartment.

Soon after that time, Brown and Finch were tried and convicted in Florida on
state narcotic charges. For awhile, the drug operation "cooled down," but Finch
soon escaped from custody and by the autumn of 1978, Finch, Nichols, Rickett,
Alvin Heath, William Thornton and William Perkins were all trafficking in
heroin together. Twice in January, 1979, Nichols, accompanied by Finch, sold
to an undercover agent heroin that Thornton and Finch had obtained from
Rickett. Nichols also made several sales to Perkins, whose customers wanted
small quantities. Agents of the Drug Enforcement Administration (DEA)
arrested Nichols on February 28, 1978 and he thereafter began cooperating with
the government.

On August 7, 1979, a grand jury indicted the appellants and several other
defendants. The grand jury returned a superseding indictment on October 5,
1979. Trial began on December 4, 1979, but the district court declared a
mistrial six days later. The second trial--against fewer defendants--did not begin
until February, 1981. Nichols pled guilty and was a key witness for the
prosecution. Three of the indicted participants were acquitted. Of the
appellants, Heath, Perkins, and Brown were convicted only of conspiring to
distribute heroin, whereas Bovain, Finch, Rickett, and Thornton were found
guilty of both conspiracy and substantive distribution charges.

Thornton, Rickett and Brown contend that the district court erred in denying
their motions for severance. Fed.R.Crim.P. 14 provides for a severance when it
appears that a defendant or the government is prejudiced by a joinder of
defendants or offenses. The grant or denial of a severance is within the
discretion of the trial judge, United States v. Butera, 677 F.2d 1376 (11th
Cir.1982), and will be overturned only upon a showing of an abuse of
discretion. United States v. Badolato, 701 F.2d 915 at 923 (11th Cir.1983);
United States v. Riola, 694 F.2d 670, 672 (11th Cir.1983). The defendants must
demonstrate that the denial of a severance resulted in "specific and compelling
prejudice against which the trial court was unable to afford protection." Id. It is
a generally accepted principle that in conspiracy cases, defendants jointly
indicted should be tried together. United States v. Lippner, 676 F.2d 456, 464
(11th Cir.1982). Only if the jury could not "separate the evidence that is
relevant to each defendant and render a fair and impartial verdict as to him"
should severance be granted. The test is a stringent one. Id.; United States v.
Brock, 669 F.2d 655, 660 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 208,
74 L.Ed.2d 167 (1982).

Willie Brown alleges that he suffered compelling prejudice because he was not
permitted to present his complete defense. The district court refused to admit
testimony that Brown was incarcerated early in the conspiracy after his Florida
conviction. The purpose of this evidence, according to Brown, was to
demonstrate his lack of guilt in the later illegal acts committed by his alleged
coconspirators. The government objected to such testimony on the ground that
Brown would be suggesting to the jury that he was already being punished, and
should not be penalized twice for the same crime. His codefendants claimed
that the "spillover" effect of Brown's admission of guilt would unfairly
prejudice them. The district court carefully weighed the competing interests and
considered whether Brown would be denied equal protection if he were
precluded from explaining his whereabouts from 1977 to 1979, while the other
defendants could try to exculpate themselves. Ultimately, Brown's attorney was
allowed to state to the jury that his client had been in jail during this time and
that the evidence of events occurring after May 10, 1977 did not implicate
Brown. Thus, he had the opportunity to show why he could not have
participated in the illegal drug transactions transpiring after 1977. The fact that
he was not permitted to dwell at length upon his earlier conviction cannot be
said to have prejudiced his case, nor was it an abuse of the district court's
discretion to limit the information on this matter.

William Thornton, on the other hand, insists that he was prejudiced by the
"spillover" effect of Brown's acknowledged guilt despite the district court's
efforts to limit its harmful impact on the other defendants. Consequently, he

asserts that he was entitled to a severance. Both the Eleventh and former Fifth
Circuits1 have emphasized that some bias is inherent in every trial, and only
when "such prejudice appears to be compelling does severance become
warranted." Lippner, 676 F.2d at 464, quoting Brock, 669 F.2d at 660 and
United States v. Perez, 489 F.2d 51, 65 (5th Cir.1973). The well established
test for determining when the spillover effect of one codefendant's guilt results
in compelling prejudice to another is
8
[w]hether
under all circumstances of the particular case ... it is within the capacity of
the jurors to follow the court's admonitory instructions and accordingly to collate
and appraise the independent evidence against each defendant solely upon that
defendant's own acts, statements and conduct. In sum, can the jury keep separate the
evidence that is relevant to each defendant and render a fair and impartial verdict as
to him? If so, though the task be difficult, severance should not be granted.
9

Badolato, at 924, and cases cited therein.

10

The resolution of prejudicial effect depends on the facts of each particular trial.
This court has recently held, in two instances, that the government's
introduction of extrinsic crimes evidence against some defendants did not
prejudice the others. Badolato, at 924; Lippner, 676 F.2d at 465. The case at
bar differs slightly in that the jury became aware of Brown's prior conviction
through his own disclosure rather than through the efforts of the prosecution.
However, as in Badolato and Lippner, the district court took great pains to
instruct the jury that the evidence against each defendant must be weighed
separately. Record, vol. 21 at 4-8. The acquittal of three defendants reinforces
the conclusion that the jury was able to make distinct assessments of each case.
Any possible spillover effect did not result in a tainted, "blanket" guilty verdict.
Moreover, Thornton's drug transactions occurred after Brown's imprisonment,
so there was little, if any, possibility of confusion or harmful overlap of the
evidence. In these circumstances, we do not believe that Thornton suffered
compelling prejudice as a result of the joint trial.

11

Rickett's motion for a severance was based on three reasons. First, he claims
there was a misjoinder because the evidence revealed two conspiracies, not one
as alleged by the government. He urges that the activities prior to the May 10,
1977 arrest were separate from the subsequent drug sales. We disagree. Even if
there were two conspiracies, "[p]roof of multiple conspiracies does not
automatically constitute a fatal variance from a [single] conspiracy charged."
United States v. L'Hoste, 609 F.2d 796, 801 (5th Cir.), cert. denied, 449 U.S.
833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980), quoting United States v. Wayman,
510 F.2d 1020 (5th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67

(1975).
12

Rickett next maintains that his trial should have been severed because he and
Finch asserted inconsistent and antagonistic defenses. This multi-defendant trial
presented many pitfalls, and the trial court was mindful of the potential
prejudice to other defendants because of the impeachment of one witness.
Although there was antagonism among the defendants, their efforts to discredit
one another's testimony did not amount to irreconcilable defenses in the legal
sense. "To cause the type of compelling prejudice that prevents codefendants
from obtaining a fair trial, the defenses must conflict to the point of being ...
mutually exclusive." United States v. Crawford, 581 F.2d 489, 491 (5th
Cir.1978). Reversal is not required unless "the jury, in order to believe the core
of testimony offered on behalf of [one] defendant, must necessarily disbelieve
the testimony offered on behalf of his co-defendant." Badolato, at 923-24,
quoting United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir.1981). A
severance is not necessary every time codefendants with inconsistent defenses
are tried together. 581 F.2d at 491. The decisions of this circuit and the former
Fifth Circuit mandate balancing the possible prejudice to the defendants against
the public's interest in economy of judicial administration. United States v.
Salomon, 609 F.2d 1172, 1176 (5th Cir.1980); Crawford, 581 F.2d at 491. In
this case, Rickett and Finch attempted to malign each other without taking the
witness stand themselves; rather, each elicited harmful information about the
other by questioning the key witness, Thornton. Rickett urges that this tactic
resulted in the defendants' tendency to "dirty up" each other in this joint trial.2
We acknowledge that when codefendants attack their companions by
introducing incriminatory evidence, they carry out the function of the
prosecution viz-a-viz one another. However, they did not assert irreconcilable
defenses. Both denied their participation in the conspiracy and both primarily
attacked Nichols' credibility. The determination of whether their antagonism
resulted in compelling prejudice is committed to the discretion of the trial
judge, and Rickett failed to show a conflict so prejudicial as to warrant separate
trial. United States v. Riola, 694 F.2d 670, 672 (11th Cir.1983); United States
v. Capo, 693 F.2d 1330, 1335 (11th Cir.1982); United States v. Berkowitz, 662
F.2d 1127, 1133 (5th Cir.1981).

13

Rickett finally argues that if he and Finch had been tried separately, or if Finch
had been granted immunity, Finch's testimony would have absolved him of any
guilt. In order to prevail on this assignment of error, the rule announced in
United States v. Rice, 550 F.2d 1364, 1369 (5th Cir.), cert. denied, 434 U.S.
954, 98 S.Ct. 478, 54 L.Ed.2d 312 (1977), requires the defendant to
demonstrate:

14

(1) bona fide need for the testimony;

15

(2) the substance of the desired testimony;

16

(3) its exculpatory nature and effect; and

17

(4) that the designated co-defendant will in fact testify at a separate trial.

18

....
The trial court should

19

(1) examine the significance of the alleged exculpatory testimony in relation to

the defendants' theory of defense;

20

(2) assess the extent to which the defendant might be prejudiced by the absence
of the testimony;

21

(3) pay close attention to judicial administration and economy; and

22

(4) give weight to the timeliness of the motion.

23

United States v. Morrow, 537 F.2d 120, 135 (5th Cir.), cert. denied, 430 U.S.
956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977); United States v. Diez, 515 F.2d
892, 903 (5th Cir.1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 780, 46 L.Ed.2d
641 (1976); United States v. Burke, 495 F.2d 1226, 1234 (5th Cir.), cert.
denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974); United States v.
Martinez, 486 F.2d 15, 22 (5th Cir.1973); Byrd v. Wainwright, 428 F.2d 1017,
1019-22 (5th Cir.1970). Accord, United States v. Butler, 611 F.2d 1066, 1071
(5th Cir.), cert. denied, 449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 35 (1980).

24

Rickett did not apprise the court of Finch's possible exculpatory testimony until
the ninth day of the second trial. Record, vol. 19 at 107-08.3 Although the trial
judge expressed reservations as to the timeliness of Rickett's motion, he
conducted a hearing outside the presence of the jury to determine the nature of
the proposed exculpatory evidence. Record, vol. 19 at 110. Finch was then
called to the stand for the limited purpose of establishing what his testimony
would be in a separate trial.4 Finch simply branded as false Nichols' testimony
with respect to one of the trips made by Finch and Rickett to Indiana. The gist

of his proffered testimony was that Nichols had lied about a few of the specific
meetings between Finch and Rickett. Finch's testimony did not exonerate
Rickett. In fact, it amounted primarily to a cumulative impeachment of Nichols.
His statements had virtually no bearing on Rickett's guilt or innocence.
25

Therefore, applying the Rice factors, Rickett failed to demonstrate a bona fide
need for the testimony because he did not show that isolated remarks about a
few transactions would affect his overall portrayal as a key conspirator. Finch's
statements were not significant to Rickett's defense, except as cumulative
attacks on Nichols' veracity. Finch did not attest to Rickett's innocence, but
merely indicated that he and Rickett were not together in Indiana. It is difficult
to see how the absence of such testimony would prejudice Rickett. In addition,
Finch qualified his willingness to testify, stating that he agreed to do so only if
he would not have to incriminate himself. Had the judge granted a severance,
there is no assurance that Finch would have appeared at a later trial.5 Finally,
the factors of judicial economy and timeliness of the motion weigh heavily
against severance. Motions to sever on alternative grounds had already been
denied, the lengthy proceedings were almost completed, and the sudden
discovery of a new reason for severance was simply not compelling enough to
warrant disruption of the ongoing trial. The evidence against Rickett was
overwhelming and he has not demonstrated any prejudice because of the
unavailability of Finch's testimony. The trial judge was sensitive to the
problems inherent in a multi-defendant trial. Having weighed all the conflicting
considerations, we conclude that the district court did not abuse its discretion in
denying the appellants' motions for severance.

26

Finch urges that the trial court erred in allowing Rickett to present evidence of
Finch's prior criminal convictions. Neither Finch nor Rickett testified at the
trial. However, Nichols testified as to out-of-court statements made by Finch
about Rickett's drug activity. Rickett then attempted to impeach Finch's
credibility as a hearsay declarant by introducing certified records of Finch's
1974 conviction for stolen money orders and his 1977 narcotics conviction.
The court admitted that evidence, but refused to allow records of Finch's
convictions for forgery and escape. Finch argues that the admission of his prior
convictions was improper because they constituted character evidence. Since
Finch never injected his character into the case, he maintains that such
evidence was both impermissible and prejudicial. Contrary to Finch's assertion,
the evidence was not admitted as character evidence, but for impeachment
purposes.

27

Fed.R.Evid. 806 provides that when a hearsay statement "has been admitted in
evidence, the credibility of the declarant may be attacked, and if attacked may

be supported, by any evidence which would be admissible for those purposes if

declarant had testified as a witness." (Emphasis added.) This rule is clarified in
the notes of the Advisory Committee on Proposed Rules: "[t]he declarant of a
hearsay statement which is admitted in evidence is in effect a witness. His
credibility should in fairness be subject to impeachment and support as though
he had in fact testified. See Rules 608 and 609 ..." In this instance, the relevant
cross-reference is Fed.R.Evid. 609(a):
28 the purpose of attacking the credibility of a witness, evidence that he has been
For
convicted of a crime shall be admitted if elicited from him or established by public
record during cross-examination but only if the crime (1) was punishable by death or
imprisonment in excess of one year under the law under which he was convicted,
and the court determines that the probative value of admitting this evidence
outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false
statement, regardless of the punishment.
29

(Emphasis added.) Applying these guidelines, the result reached by the district
court is straightforward and logical. Because Finch is a hearsay declarant, his
testimony may be treated like that of a witness (Rule 806), and as a witness, he
can be impeached (Rules 608, 609). Therefore, the certified records of Finch's
prior convictions were admissible for impeachment purposes (Rule 609).

30

The district court was careful to instruct the jury that evidence of Finch's
convictions could be used to discredit the accuracy of his out-of-court
statements, but that the prior crimes could not be considered as evidence of
Finch's guilt on the charges contained in the indictment.6 In a conspiracy case,
the trial judge has the difficult task of balancing the countervailing interests of
all the codefendants. Decisions on the admissibility of evidence are committed
to the sound discretion of the district court, and will not be overturned on
appeal absent a clear abuse of that discretion. United States v. Cuni, 689 F.2d
1353 (11th Cir.1982). This situation was unusual in that both Rickett and Finch
were defendants, but neither testified, and one sought to impeach the other
during cross-examination of a third party. The trial judge evaluated the rights
and interests at stake from many perspectives and ruled that the probative value
of the evidence outweighed the risk of prejudice to Finch. Based on the
applicable policy considerations and rules, the admission of the prior crimes
evidence did not constitute an abuse of the court's discretion.

31

We have carefully reviewed the record and have duly considered each of the
remaining assignments of error, including the sufficiency of the evidence, the
denial of a motion to suppress seized heroin, the admission into evidence of a
taped conversation and the testimony of coconspirators, the limitations on

cross-examination, and the government's use of its peremptory challenges to

dismiss black jury veniremen. Having evaluated each contention, we find them
to be without merit.
32

Accordingly, the judgment of the district court is AFFIRMED.

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), this circuit
adopted as binding precedent all decisions of the former Fifth Circuit rendered
before October 1, 1981

Brief of Appellant-Rickett at 30

Rickett's counsel submitted his own affidavit, dated February 7, 1981, stating
that Finch would offer exculpatory testimony in a separate trial. Specifically, he
stated that Finch "would tell the Court that the entire Nichols 'story' as
regarding Rickett giving Finch some 50 ounces of heroin in Indiana is totally
false. Further, Finch would tell this Court that many of the conversations
wherein Nichols said that Finch told him different things as regarding Rickett
are false." Affidavit of Allan A. Ackerman, Brief of Appellant-Rickett, Group
Appendix A

The relevant portions of Finch's testimony are:

THE COURT: Let me ask you a question first, Mr. Finch, you have heard
counsel for Mr. Jones, as well as counsel for Rickett, tell me that they had your
assurance that you would testify and give evidence that would be favorable to
Len Jones and favorable to Dean Rickett if you were allowed to do so in an
independent trial, that is as opposed to this trial where you are still a Defendant,
do you understand?
THE WITNESS: Yes, sir.
THE COURT: What do you say about that?
THE WITNESS: I had talked to both of them about it and I told them that I
would testify as long as I wouldn't be testifying against myself.
THE COURT: What would you testify, simply that what John Nichols has
testified here in this trial is not true?
THE WITNESS: Yes, sir.

THE COURT: That's all?

THE WITNESS: No, if he asked me about the matter about Jones, and about
the part that we went to Bolden's, which would be true, we went to Bolden's
house. But the thing about it, what he said about Jones was there, I never seen
Jones before we come to this Court.
THE COURT: So your testimony would be that you didn't see anybody named
Jones there or a man you know to be Jones?
THE WITNESS: Right.
THE COURT: What about as far as Mr. Rickett is concerned, would you stand
up and say he didn't do it, I did it.
THE WITNESS: Do what?
THE COURT: That's what I'm asking you.
THE WITNESS: That I knew Mr. Rickett, yeah, I knew Mr. Rickett.
THE COURT: What are you going to say?
THE WITNESS: All these occasions he is saying that I went to Chicago and
met with Mr. Rickett on some drug transactions, that is not true.
THE COURT: You mean what Nichols has testified is not true?
THE WITNESS: Right, but I have been to Chicago and I do know Mr. Rickett.
MR. ACKERMAN: Your Honor, would you ask him specifically about
Indiana? Remember there is an allegation from Nichols that there was-THE COURT: So you would say that when Mr. Nichols said that you had gone
to Indiana to be with Mr. Rickett that is not true?
THE WITNESS: I have never been to Indiana in my life.
THE COURT: Never been to Indiana. What else, do you have anything further?
CROSS-EXAMINATION
BY MR. ACKERMAN:
Q. To satisfy something from Your Honor, was the first time I spoke to you

about this Wednesday of last week in this Courtroom?

A. Yes, it was. I think it was Wednesday.
Q. And was I sitting right over there when your lawyer was present?
A. I think so.
Q. Do you remember sending me a letter about February or March of 1980?
A. Right.
Q. Did I send a letter back to you, tell the Court what I said to you in that letter.
A. I can't remember exactly, but I think it was something about get in touch
with my attorney and my attorney talk to you, because it was some kind of
violation or something.
Q. That I couldn't talk to you even if I wanted to?
A. Right.
Q. And the first time from then until Wednesday is when I started talking to
you then?
A. Right.
Q. Was it Wednesday or Thursday when you told me that if you were
separated, if your guilt or innocence was finished, that you would tell the Court
that there was no Indiana transaction?
A. That's right.
Q. And you also told me that at least half the things that Nichols said about
things that you said to Nichols about Rickett were false.
A. That's right.
MR. ACKERMAN: That's what I learned.
THE COURT: Suppose you were found guilty-MR. ACKERMAN: Your Honor, just to complete it, because Your Honor
asked me about timeliness.
Q. (By Mr. Ackerman) In December, 1979, when we were in that other Court

building and during that hearing, six or seven days of hearings, there was still a
possibility that you were going to end up making some deal with the
Government, wasn't that?
A. Some kind of talk, but I never understood it.
Q. Well, the fact of the matter is, in fact, that you were visiting with either Mr.
Sutton or Mr. Smith, I don't know which, and there was talk of you being a
Government witness.
A. Mr. Smith talked to my attorney and came out a couple of times with him to
the jail and talked to me.
Q. That was when you were in Fulton County Jail, during the last trial, which
was December, '79.
A. Right.
MR. ACKERMAN: That is the reason I can't tell you much earlier, Judge.
THE COURT: It's my understanding then, that even if you should be found
guilty in this trial, that you would be willing to testify subsequently, that is,
after this trial is over with, in an independent action involving either Mr. Jones
or Mr. Rickett, and would give the kind of testimony that you have just
described?
MR. FINCH: Yes, sir.
THE COURT: All right, anything else?
MR. SUTTON: May I ask him a couple of questions?
THE COURT: Yes, sir.
CROSS-EXAMINATION
BY MR. SUTTON:
Q. Mr. Finch, if I understand you correctly, your testimony with regard to Mr.
Rickett would be that you were not involved with him in heroin dealings at all?
MR. ACKERMAN: That is objected to, that was not the question. I asked that
man a specific instance in Indiana.
THE COURT: I was trying to read Martinez when you asked some of the

questions and I may have missed it.

MR. SUTTON: No, Your Honor, I'm asking a question asked by Your Honor
initially of this individual, and it is very relevant to determine if his testimony
would be exculpatory.
THE COURT: I don't think I asked him whether or not he was ever involved in
any drug dealings in Indiana, I asked him whether he had been to Indiana with
Mr. Rickett. His testimony was he had never been to Indiana.
MR. SUTTON: That's not exculpatory enough
THE COURT: I know it.
MR. SUTTON: --to warrant a severance at all.
THE COURT: It's just somebody taking the stand and saying, you know, I
didn't do it, everything somebody else has said. If he feels that strong about it,
he can take the stand during this trial.
....
MR. TETRICK: No, Your Honor, that's really all it is.
THE COURT: Let me read Martinez, and I think as far as Mr. Rickett is
concerned, the motion to sever is denied, Mr. Ackerman.
5

Finch's own conviction and pending appeal might well have diminished his
earlier willingness to testify favorably for his codefendants at a subsequent trial

The government contends on appeal that the evidence of Finch's prior drug
conviction could have been offered as part of the prosecution's case-in-chief, to
show intent, and thus, it was admissible for that reason alone. Because Finch is
a defendant, as well as a hearsay declarant, evidence of his prior drug
conviction would be admissible to show motive, intent, common plan or
scheme. Fed.R.Evid. 404. That argument, however, is peripheral and needs not
be addressed here because the government did not offer the evidence for that
purpose