United States of America, and Cross-Appellant v. Douglas James Hill, and Cross-Appellee

At Appellant Douglas Hill’s trial for conspiracy and attempt to possess with intent to distribute cocaine, testimony was admitted that the appellant had used cocaine with one of the members of the conspiracy five years prior. We conclude the trial court committed reversible error in admitting the evidence of prior cocaine use and that the conviction must be reversed and the case remanded for a new trial. For guidance of the district court on a possible retrial, we also discuss other issues raised by Hill and by the United States in its cross-appeal.

FACTS AND PROCEEDINGS

In June, 1988, a Drug Enforcement Agency (DEA) agent posing undercover as a cocaine smuggler was introduced to Carlos Gutierrez by a confidential informant. Gutierrez was introduced as someone interested in purchasing large amounts of cocaine. During June and July, 1988, the DEA agent met with Gutierrez and attempted to negotiate cocaine deals with him approximately eight times.

Mary Ann Mulhern is the mother of Gutierrez’ child. In mid-July, Gutierrez spoke to Mulhern and asked her to find a financial backer for a cocaine deal he wanted to put together. Mulhern was to receive a “middling fee” for her…