Defending a federal drug charge is tough, particularly if the defendant has one or more prior drug trafficking convictions. Not only are repeat offenders susceptible to enhanced penalties (see 21 U.S.C. §§ 841(b), 851), the evidence rules make it tough to keep out allegations of prior drug trafficking, particularly in possession with intent cases.
In a possession with intent case, the general FRE 404(b) rule is that prior acts of drug trafficking are relevant to prove knowledge and intent. United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982). But see United States v. Bell, 516 F.3d 432, 443-44 (6th Cir. 2008) (prior acts only admissible if part of the same modus operandi). It doesn’t even matter if the prior conviction involved a different kind of drug. In analyzing admissibility under FRE 404(b), the courts “look to the type of activity undertaken, rather than the precise identity of the drugs, as the relevant factor.” United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005).