Intrinsic Evidence & Georgia Cocaine Convictions: United States v. Daise as a Dual-Holding on Rule 404(b) and Career-Offender Predicate Status

Introduction

United States v. Barry Kiya Daise, No. 23-13240 (11th Cir. Aug. 4 2025), is a non-published but precedentially significant decision in which the Eleventh Circuit squarely addresses two recurring questions:

• When evidence of uncharged drug activity (here, distribution of “flakka”) is “intrinsic” to the charged offense and therefore exempt from the notice and purpose requirements of Federal Rule of Evidence 404(b).
• Whether Georgia cocaine convictions under O.C.G.A. § 16-13-30(b) categorically qualify as “controlled substance offenses” for purposes of the federal career-offender guideline, U.S.S.G. § 4B1.1.

The defendant, Barry Daise, was convicted in the Middle District of Georgia of (1) possession with intent to distribute cocaine, and (2) maintaining a drug premises. He challenged both his conviction and his enhanced 240-month sentence. The Eleventh Circuit affirmed on all grounds, thereby reinforcing the limits of Rule 404(b) and clarifying that Georgia’s statutory framework imports the federal drug schedules, foreclosing the “conformational isomer” overbreadth argument.

Summary of the Judgment

The Eleventh Circuit, in a per curiam opinion (Judges Luck, Lagoa, and Wilson), reached two principal conclusions:

1. Admission of Flakka Testimony. Testimony describing the manufacture and distribution of flakka was “inextricably intertwined” with evidence of Daise’s cocaine operation, making it intrinsic evidence not subject to Rule 404(b) notice. Even if error had occurred, it would have been harmless because of overwhelming evidence and a limiting instruction.
2. Career-Offender Enhancement. Daise’s prior Georgia convictions for cocaine offenses are predicate “controlled substance offenses.” Georgia defines “controlled substance” as a drug listed on both state and federal schedules; thus, any hypothetical reach to “conformational isomers” not found on the federal schedules cannot expand the statute’s scope beyond the federal definition. Under the categorical approach, the Georgia statute is no broader than the federal guideline definition.

The panel therefore affirmed Daise’s conviction and 240-month sentence.

Analysis

1. Precedents Cited and Their Influence

• United States v. Estrada, 969 F.3d 1245 (11th Cir. 2020) – Articulated the three-part test for intrinsic evidence (same transaction, completes story, inextricably intertwined). The court repeatedly quotes Estrada to justify treating the flakka testimony as intrinsic.
• United States v. Edouard, 485 F.3d 1324 (11th Cir. 2007) – Provided the seminal “integral and natural part” language and endorsed limiting instructions as a cure for prejudice; relied upon to find no Rule 404(b) violation and harmlessness.
• United States v. Ford, 784 F.3d 1386 (11th Cir. 2015) – Allowed uncharged conduct using the same modus operandi to be treated as intrinsic; bolstered the conclusion that the flakka dealings were part of the same trafficking scheme.
• United States v. Dubois, 94 F.4th 1284 (11th Cir. 2024), cert. granted, j. vacated, 145 S. Ct. 1041 (2025), reinstated, 139 F.4th 887 (11th Cir. 2025) – Establishes that state law governs which substances are controlled if the prior conviction is a state offense. Daise sought to invoke Dubois’ requirement of categorical analysis.
• C.W. v. Dep’t of Human Services, 836 S.E.2d 836 (Ga. Ct. App. 2019) – Georgia Court of Appeals decision interpreting O.C.G.A. § 16-13-21(4) to require a substance to appear on both the Georgia and federal schedules; crucial to rejecting the overbreadth argument.

2. Legal Reasoning

a. Intrinsic Evidence Determination

1. Same Series of Transactions. Flakka and cocaine sales stemmed from a single supplier–distributor relationship between Smith and Daise.
2. Integral to the Narrative. Items used for both drugs (dish soap, headache powder) were found together. Smith’s explanation of those items could not be surgically separated without rendering his testimony incomprehensible.
3. Rule 404(b) Inapplicable. Because the evidence was intrinsic, the government owed no written pre-trial notice. Even if Rule 404(b) applied, Daise had advance discovery of Smith’s interview and a limiting instruction mitigated potential prejudice.

b. Controlled Substance Offense Analysis

1. Categorical Approach. The court examined the least culpable conduct criminalized by O.C.G.A. § 16-13-30(b).
2. Georgia’s Incorporation Clause. O.C.G.A. § 16-13-21(4) limits “controlled substances” to those listed on both Georgia and federal schedules. Therefore, the statute cannot reach substances not on the federal schedule.
3. No Overbreadth. Because the broader “conformational isomer” language is neutralized by the “both schedules” requirement, Georgia’s statute is not categorically larger than the federal definition, and Daise’s convictions match § 4B1.2(b).

3. Impact on Future Litigation

• Rule 404(b) Intrinsic-Evidence Boundary. Prosecutors now have Eleventh Circuit backing for introducing evidence of uncharged-but-related drug activity without Rule 404(b) notice where the activity shares resources, location, or participants with the charged conduct.
• Georgia Drug Offenses as Predicates. Defense challenges premised on the “conformational isomer” overbreadth theory will likely fail in the Eleventh Circuit. The decision harmonizes Georgia cocaine convictions with federal predicate requirements post-Dubois.
• Sentencing Consistency. District courts inside the circuit have clearer guidance: Georgia cocaine convictions categorically qualify, streamlining sentencing and reducing litigation over guideline enhancements.

Complex Concepts Simplified

• Intrinsic vs. Extrinsic Evidence. Intrinsic evidence is part of the story of the charged crime—it completes the narrative. Extrinsic evidence describes separate, unrelated acts and normally triggers Rule 404(b) safeguards.
• Rule 404(b) Notice. When the government plans to introduce prior bad-act evidence to show motive, intent, etc., it must give written notice before trial unless the evidence is intrinsic.
• Categorical Approach. Courts compare the text of the predicate statute to the federal guideline definition, focusing on what the statute covers, not what the defendant actually did.
• Controlled Substance Offense (Guidelines). Under U.S.S.G. § 4B1.2(b), it is any offense prohibiting manufacture, distribution, or possession with intent to distribute a controlled substance.
• Isomers. Chemical compounds with the same formula but different structures. “Optical” and “geometric” isomers are specifically listed in federal schedules; “conformational” isomers are not, which occasionally yields overbreadth arguments.

Conclusion

United States v. Daise fortifies two important doctrines. First, it underscores that evidence describing uncharged drug activity integrated with the charged offenses is intrinsic and falls outside the scope of Rule 404(b). Second, it settles—at least in the Eleventh Circuit—that Georgia cocaine convictions are valid predicate offenses under the career-offender guideline because Georgia law cannot sweep more broadly than federal schedules by virtue of its dual-listing requirement. The decision streamlines both trial practice (limiting Rule 404(b) disputes) and sentencing (foreclosing categorical overbreadth challenges to Georgia drug statutes), thereby exerting substantial influence on drug-related prosecutions within the circuit.