United States v. Kent Morgan , 929 F.3d 411 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2751
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENT MORGAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:16-cr-10031-MMM-JEH-1 — Michael M. Mihm, Judge.
____________________
ARGUED MAY 29, 2019 — DECIDED JULY 1, 2019
____________________
Before RIPPLE, ROVNER, and BARRETT, Circuit Judges.
ROVNER, Circuit Judge. The jury deciding Kent Morgan’s
fate had no trouble concluding that he had possessed the 86.5
grams of methamphetamine that he conceded he tossed over
the heads of inquisitive law enforcement officers in the Peoria
airport on January 7, 2016. But the jury could not come to an
agreement as to whether the government proved that he pos-
sessed that methamphetamine with the intent to deliver it.
They declared themselves deadlocked on that issue—the one
2 No. 18-2751
actually charged in the indictment—but found him guilty of
the lesser included offense of possession of methampheta-
mine. Morgan now argues that his Fifth Amendment right to
be free from double jeopardy was violated by the govern-
ment’s second attempt to convict him of possession with in-
tent to deliver. In the course of making that claim, he also as-
serts other improprieties in his trial. In the end we find only
harmless errors and no violation of double jeopardy resulting
after the deadlocked jury could not come to a conclusion on
the indicted count. We therefore affirm the decision of the dis-
trict court.
I.
Kent Morgan has struggled with methamphetamine ad-
diction since 2006. It was no surprise then that he would con-
tinue to feed his habit while caring for his elderly father and
transitioning him from his family home in Galesburg, Illinois,
to an assisted living facility nearby. During that transition,
Morgan brought his father to live with him in St. George, Utah
for eight months while his father’s health improved. Morgan
was in the process of returning his father to Galesburg when
law enforcement officers stopped him at the Peoria airport
and, in the course of asking him some questions, caught him
throwing a medical glove, stuffed to approximately the size
of a softball with 86.5 grams of pure methamphetamine, over
the heads of the officers. He was arrested and charged with
one count of possession with intent to distribute more than 50
grams of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A). He went to trial on that single
charge on August 15, 2016.
During this first trial, Morgan chose to testify and con-
ceded that he possessed the methamphetamine and that he
No. 18-2751 3
attempted to throw it to avoid arrest but denied that he in-
tended to distribute it to anyone else. To convince the jury, he
testified that he had not lived in Galesburg since 2003, he did
not return often, and he knew no one in Galesburg other than
his parents and an adult son who frequently travelled for his
job with the railroad. As a result, he testified, all of the meth-
amphetamine was for his personal use only. Morgan hoped
to convince the jury that he was just a long-standing metham-
phetamine addict with a hearty appetite and tolerance for
methamphetamine. His counsel followed this tack by arguing
in closing that Morgan had been gone from Galesburg for
years and that “there was no evidence of any kind that he
even knows anybody back here.” R. 131 at 32. Given Morgan’s
concession that he possessed the methamphetamine, the gov-
ernment’s sole task was to convince the jury that Morgan did
not simply possess the methamphetamine for his personal
use, but that he intended to distribute it. It did this largely by
relying on the quantity of methamphetamine that he pos-
sessed. The government’s witnesses included the Drug En-
forcement Administration (DEA) agent who established the
chain of custody for the methamphetamine, three local police
officers who were involved in the arrest, a senior forensic
chemist for the DEA who confirmed the contents of the drug-
stuffed glove, and a special agent with the DEA who provided
background information on methamphetamine as well as ex-
pert testimony on the price, means, and manner of trafficking
methamphetamine.
At the close of evidence, the court instructed the jury on
the indicted charge of possession with intent to distribute. In
addition, the court instructed the jury on the lesser included
offense of possession of a controlled substance. The judge sent
the jury to deliberate with a verdict form that gave the jury
4 No. 18-2751
two choices for its conclusions (The numbers are ours. The
verdict forms were not numbered):
(1) We the jury find the defendant, Kent Mor-
gan, Guilty of the charge of Possession of Meth-
amphetamine with Intent to Distribute as al-
leged in the Indictment.
(2) We the jury find the defendant, Kent Mor-
gan, Not Guilty of the charge of Possession of
Methamphetamine with Intent to Distribute as
alleged in the Indictment, but Guilty of the of-
fense of Possession of Methamphetamine.
R. 45 at 24, 26. 1
During the course of deliberations, the jury sent three
questions out to the judge. The first of these read:
We all agree Kent Morgan is guilty of posses-
sion of meth. However, we are not in agreement
on the charge of intent to deliver. Asking for
clarification, if we are not in agreement on 2nd
charge, what becomes of the case? Does it be-
come hung jury on all counts or is there a way
to convict him of posession [sic] + have a non
decision on 2nd charge.
R. 47 at 1.
1 The jury verdict form which would have allowed the jury to find
Morgan not guilty of either crime was removed from the instructions at
Morgan’s request once he decided to testify and concede possession. R.
131 at 6–9.
No. 18-2751 5
The judge conferred with counsel for both sides and all
agreed that given the language of the verdict forms, there was
no way for the jury to convict Morgan of possession and give
no decision on the issue of possession with intent to distrib-
ute. The judge and counsel agreed to modify the verdict forms
to separate guilt or acquittal on distribution from guilt or ac-
quittal on simple possession. Morgan’s counsel stated that
this was “his first federal jury trial,” and that he was “learning
all kinds of different things.” R. 127 at 195. As a result of the
agreement, the judge collected the old forms and sent the jury
back to deliberate with a new set of verdict forms which gave
them the following four choices (once again, the numbering
is ours):
(1) We the jury find the defendant, Kent Mor-
gan, Guilty of the charge of Possession of Meth-
amphetamine.
(2) We the jury find the defendant Kent Morgan,
Not guilty of the charge of Possession of Meth-
amphetamine.
(3) We the jury find the defendant, Kent Mor-
gan, Not Guilty of the charge of Possession of
Methamphetamine with Intent to Distribute as
alleged in the Indictment.
(4) We the jury find the defendant Kent Morgan,
Guilty of the charge of Possession of Metham-
phetamine with Intent to Distribute as alleged
in the Indictment.
R. 46 at 1–4.
Shortly thereafter, the jury sent another question to the
court which stated:
6 No. 18-2751
We are split on the decision of the intent to de-
liver charge. We have discussed case for a cou-
ple hours + no one has changed their decision of
guilty or not guilty + not likely to change. How
much longer should we deliberate before we ar-
rive at a hung jury? We have arrived at a deci-
sion on the posession [sic] charge.
R. 127 at 200–01; R. 47 at 4. The judge and counsel for the par-
ties discussed the jury’s second question, and the judge sug-
gested two options. He could simply tell the jury to keep de-
liberating, or, he proposed, he could bring them out and ask:
“Is there any one of the 12 of you who believes that there is
any possibility of reaching a verdict on the question of—on
the charge of possession with intent? If anyone says yes, then
I send them back in. If they all say no, then I would declare a
hung jury on the possession with intent and take the other
verdict.” R. 127 at 201. Morgan’s counsel asked the court to
instruct the jury to continue deliberating. The judge and both
counsel agreed that if they did not have a verdict by 4:00 p.m.,
the judge would ask: “Do you wish to continue deliberating,
or do you believe you are … hopelessly deadlocked?” R. 127
at 204–05; R. 47 at 6.
A very short while later, the judge received the following
third question:
As in the indictment, does over posession [sic]
50 grams of methamphetamine determine a
user versus a seller? Or does it reflect more into
the sentencing of Kent Morgan.
R. 127 at 205; R. 47 at 2.
No. 18-2751 7
Again, the judge discussed the matter with the respective
counsel, noting that he believed that “it’s a big mistake if we
start trying to make distinctions between using and selling be-
yond what they’ve already been told.” R. 127 at 207. The court
concluded that the proper response would be to re-submit the
following instruction to the jury:
In deciding your verdict, you should not con-
sider the possible punishment for the defendant
who is on trial. If you decide that the govern-
ment has proved the defendant guilty beyond a
reasonable doubt, then it will be my job to de-
cide on an appropriate punishment.
R. 127 at 207; R. 47 at 3.
At 4:00 p.m., as the parties and the court had previously
agreed, the judge sent the note to the jury asking whether they
wished to continue deliberating or were deadlocked. The jury
returned the note stating “unanimously deadlocked.” R. 47 at
6.
The jury then returned a verdict of guilty of possession of
methamphetamine without reaching any verdict on the
charged offense of possession with intent to distribute meth-
amphetamine. The district court did not expressly declare a
“mistrial”—using that word—on the intent to distribute
charge. Nevertheless, after dismissing the jury, the judge did
all of the things a judge would do had he just declared a mis-
trial: he stated that he would schedule a sentencing hearing
on the possession verdict and asked the government “[h]ow
much time will you need to decide whether you’re going to
retry the possession with intent?” R. 127 at 213–14. The court
agreed to the government’s request for sixty days. In the
8 No. 18-2751
meantime, the court set a tentative trial date for the retrial to
which Morgan’s counsel agreed without further comment.
The United States Attorney eventually decided to retry
Morgan for possessing methamphetamine with intent to dis-
tribute, but this time, having heard Morgan’s defense that he
had no contacts in Galesburg, the government came prepared
to defeat it. The government subpoenaed Morgan’s cell phone
records and through these, prosecutors were able to track
down five witnesses who were willing to testify that they had
shared Morgan’s methamphetamine supply with him while
Morgan was visiting his father in Galesburg on previous oc-
casions. One witness, in fact, was waiting in a car outside of
the Peoria airport to give Morgan and his father a ride on the
day he was arrested. Prior to trial, the government filed a no-
tice of intent to offer these witnesses to demonstrate Morgan’s
intent as permitted under Federal Rule of Evidence 404(b).
Morgan’s counsel did not object to the motion other than to
express concern that some of the prior acts were “very remote
in time.” R. 128 at 8. The judge dismissed this time concern
but expressed his own uncertainty about the need for five wit-
nesses. Ultimately the government agreed that it would call
only three witnesses and reserve the other two for rebuttal, if
necessary. Morgan’s counsel had no further objections.
During a pre-trial discussion before the second trial, the
parties also discussed the issue of double jeopardy. The court
noted that the jury had failed to come to a verdict on the
charge of possession with intent to distribute, and therefore
Morgan would be tried on this count of the indictment again.
The government filed a motion asking the court to prohibit
reference to the prior trial. Morgan’s counsel objected noting
his conundrum:
No. 18-2751 9
We are in a situation where if there is no prior—
unless, of course, the judge is going to allow an
instruction on mere possession, we’re going to
be stuck in a situation where the only verdict the
jury has is possession with intent to deliver, and
that basically cuts the trial strategy in half. … I
think the jury needs to know somehow that this
defendant has been convicted in this case be-
fore, but they are seeking to retry him. That’s a
double-edged sword because a possible impli-
cation is that he’s such a bad guy that they’re
going to do it again.
R. 128 at 12–13. Consequently, when it became time to hash
out the jury instructions, the judge asked the government to
propose an instruction on the lesser included offense of pos-
session. Morgan’s counsel argued that he was entitled to ei-
ther that instruction or to have the court instruct the jury that
Morgan had been found guilty of possession in a prior pro-
ceeding. The court concluded:
THE COURT: Right. I’ve ruled that I’m not go-
ing to do that [reference the prior proceeding],
but because of that, I think that you’re entitled
to that instruction. But we’re all aware of the
fact that he’s previously been convicted of that,
which would normally raise double jeopardy is-
sues. I assume for purposes of this trial you’re
waiving any double jeopardy issue? If he
were—for example, if he’s convicted only of
possession in this trial, obviously he’s not going
to be sentenced twice.
MR. HOLMAN: Right.
10 No. 18-2751
THE COURT: I’d only sentence him once. But is
that correct? Are you waiving that issue for our
purposes here?
MR. HOLMAN: Yes, Judge.
R. 133 at 5–6.
In other words, the court decided that it would present to
the jury the issue of simple possession, but that the jury’s find-
ing would have no impact on Morgan. If the jury acquitted
Morgan of simple possession, he would still face sentencing
from the previous trial. If the jury found Morgan guilty of
simple possession, the judge would not sentence him again
for that conduct. 2 This allowed the jury to pick a middle
ground rather than having to choose to find him guilty of the
quite serious crime of intending to distribute methampheta-
mine or letting him off the hook entirely.
Having waived any issue of double jeopardy, the second
trial advanced. 3 Part of the government’s case proceeded as it
had in the first trial with several law enforcement officers,
DEA agents, and a forensic chemist. But the rest of the case
2 We need not decide for purposes of this case the propriety of pre-
senting an issue to the jury upon which the court has no intention to act.
Experts have debated the ethics of other (and more serious) types of
“sham proceedings” brought before a court. See for example, a discussion
of the Greylord cases in which the government brought sham cases before
the Cook County courts to ensnare dishonest judges on charges including
racketeering, mail fraud, conspiracy, and extortion. See E.R. Shipp, What's
Proper In Policing The Judiciary?, N.Y. Times, Jan. 1, 1984.
3 Waiver is intentionally abandoning a known right. Forfeiture occurs
when a party fails to make an argument because of accident or neglect.
Sansone v. Brennan, 917 F.3d 975, 983 (7th Cir. 2019).
No. 18-2751 11
followed a far different path. The government offered the tes-
timony of a law enforcement officer with training in conduct-
ing forensic examination of cell phones who testified about
downloading contacts from Morgan’s phone. Those contacts
led the government to the three witnesses who would ulti-
mately testify at trial about prior drug use and distribution.
Before each of those witnesses testified, the court read the
jury the limiting instruction below. It was presented to the
jury again when the judge instructed the jury just before de-
liberation. The limiting instruction stated:
With this witness, you’re going to hear testi-
mony that the defendant committed a wrong
other than the one charged in the indictment.
Before using this evidence, you must decide
whether it’s more likely than not that the de-
fendant committed the wrong that is not
charged in the indictment. If you decide that he
did, then you may consider this evidence to
help you decide whether the defendant in-
tended to distribute methamphetamine; that is,
if on January 7, 2016, he possessed methamphet-
amine with intent to distribute. You may not
consider it for any other purpose. Keep in mind
that the defendant is on trial here for possessing
methamphetamine with the intent to distribute
on January 7, 2016, not for the other wrong.
R. 128 at 77.
The first witness, Emily Philbee, testified that she had
known Morgan all of his life, and that while he was visiting
Galesburg in October, 2015 through January, 2016, she
12 No. 18-2751
smoked methamphetamine with him approximately thirteen
times, and, on a handful of occasions, she took methamphet-
amine from Morgan to use later. She testified that he never set
a specific price for the methamphetamine that he gave her,
but she knew the price and would leave money under his key-
board, buy him groceries and household goods, or provide
help around Morgan’s father’s house. Philbee had agreed to
pick Morgan and his father up from the airport on the day of
Morgan’s arrest.
The court reminded the jury of the limiting instruction
once again before the second witness, Emily Hackwith, testi-
fied. Hackwith testified that she was in state custody awaiting
charges for the state crimes of forgery and possessing meth-
amphetamine manufacturing material. Hackwith met Mor-
gan in September 2015, when she bought methamphetamine
from him and after that helped him clean his father’s attic.
Hackwith ultimately testified that she smoked Morgan’s
methamphetamine with him three to four times a week for
four months, for a total of about one hundred times. Morgan
told Hackwith that he was charging $100 per gram for meth-
amphetamine to make “money to help his mom and dad,”
who were elderly and infirm. R. 128 at 128.
The judge reminded the jury of the limiting instruction a
third time before the testimony of Sue McIntire. McIntire’s
testimony echoed much of the other two. She was a childhood
friend, she helped Morgan clean his parent’s attic, and began
using methamphetamine with him, and did so on about four
occasions, with Morgan providing the methamphetamine
each of those times. McIntire also testified that Morgan told
No. 18-2751 13
her he generally could buy the methamphetamine in Las Ve-
gas for $500 per ounce and could sell it in Galesburg for $3,000
per ounce.
Morgan elected not to take the stand at this second trial
and did not call any witnesses. During closing arguments,
Morgan’s counsel emphasized that the jury should focus on
Morgan’s intent on the day he was arrested.
First thing I want to clear the air about is posses-
sion. Kent admits he possessed that crystal
meth, that amount at the Peoria County airport.
There’s no doubt. He admits that it was 98 per-
cent pure. That’s a serious offense; he knows
he’s going to be punished big time for that, but
that’s what he did. The reason we’re at trial to-
day is not because he didn’t—he doesn’t admit
that; it’s because he did not have the intent to
distribute that—all of that at the Peoria County
airport. This case is all about the intent, posses-
sion with intent to deliver. The [government]
must prove beyond a reasonable doubt that
Kent possessed the ice at the Peoria County air-
port, and at that time—not before in Galesburg,
not afterwards —but at that time he intended to
deliver.
R. 133 at 39. The defense’s argument was that Morgan was a
serious addict who used quite a bit of methamphetamine, and
that he had no intention of distributing it to anyone else. The
government argued that on the day he was arrested carrying
drugs, the people to whom he had recently given and sold
methamphetamine were calling him on his phone. The jury
deliberated for just over an hour before reaching a unanimous
14 No. 18-2751
verdict finding Morgan guilty of possession with intent to de-
liver methamphetamine.
A few weeks later, Morgan filed a pro se motion for an
acquittal or new trial, arguing that his counsel had provided
constitutionally ineffective assistance of counsel by failing to
file a motion in limine to exclude the government’s three wit-
nesses to prior bad acts. After appointing new counsel, the
court held a hearing on the motion. Morgan’s initial counsel
testified that he did not object to the witnesses because “Well,
from the statements that I read and the research that I did, I
thought that [the government’s notice of intent to offer evi-
dence pursuant to Federal Rule of Evidence 404(b)] was an
appropriate motion because it was very limited to that issue
of intent, and very narrowly tailored to that issue only.” R.
121 at 19–20. The government argued that the prior-act wit-
nesses presented classic evidence of intent which was exactly
the focus of the trial. The court denied the post-trial motions,
and ultimately sentenced Morgan to 240 months’ imprison-
ment and ten years of supervised release.
On appeal, Morgan argues (1) that the retrial violated his
Fifth Amendment right to not be placed in jeopardy for the
same crime twice, (2) that the introduction of evidence of
prior drug use and drug dealing violated Federal Rules of Ev-
idence 404(b) and 403, and (3) that his counsel was ineffective
for failing to raise objections based on either of these alleged
errors. We address each of these concerns in turn.
II.
A. Double Jeopardy
The Fifth Amendment to the Constitution states that no
person shall “be subject for the same offence to be twice put
No. 18-2751 15
in jeopardy of life or limb.” U.S. Const. amend. V. Morgan al-
leges that the government indicted him on one offense (one
count of possession with intent to distribute), he was con-
victed on that indictment (although for the lesser included of-
fense of possession) and was then retried and reconvicted on
that same indictment in violation of the double jeopardy
clause.
Morgan concedes that his trial counsel did not raise an ob-
jection to Morgan’s retrial and assert a violation of double
jeopardy, and that we must therefore review his claim under
the plain error standard. To reverse for plain error, we must
first find an error; the error must be plain; and third, it must
affect the defendant’s substantial rights. United States v. Olano,
507 U.S. 725, 732–34 (1993).
Morgan appears to object to the entire trial on double jeop-
ardy grounds without distinguishing between the retrial on
possession with intent to distribute and the retrial on simple
possession. We think it more useful to evaluate his claim with
a finer tooth comb—that is to look and see whether there were
any violations of double jeopardy when he was retried for the
possession with intent to distribute and/or when he was re-
tried for simple possession.
We begin with some basic premises around the concept of
double jeopardy. Double jeopardy protects a defendant
against (1) a second prosecution for the same offense follow-
ing an acquittal; (2) a second prosecution for the same offense
following a conviction; and (3) multiple punishments for the
same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). Double
jeopardy only applies, however, if there has been a resolution
of the case, such as an acquittal or verdict.
16 No. 18-2751
[A] trial court’s declaration of a mistrial follow-
ing a hung jury is not an event that terminates
the original jeopardy to which petitioner was
subjected. The Government, like the defendant,
is entitled to resolution of the case by verdict
from the jury, and jeopardy does not terminate
when the jury is discharged because it is unable
to agree.
Richardson v. United States, 468 U.S. 317, 326 (1984); see also
Yeager v. United States, 557 U.S. 110, 121 (2009) (noting that a
jury speaks only through its verdict and thus a hung count is
not a relevant part of the record of the prior proceeding);
Green v. United States, 355 U.S. 184, 188 (1957) (“At the same
time jeopardy is not regarded as having come to an end so as
to bar a second trial in those cases where unforeseeable cir-
cumstances arise during the first trial making its completion
impossible, such as the failure of a jury to agree on a verdict.”)
(internal citation omitted); United States v. Bailin, 977 F.2d 270,
280 (7th Cir. 1992) (explaining that a hung jury does not trig-
ger issue preclusion, and “[t]he powerful double jeopardy
protections that attach to acquitted counts should not be out-
weighed by the inconclusiveness inherent in hung counts.”).
In this case, we have an additional layer to consider. The
jury deadlocked and came to no conclusion on the indicted
charge of “possession of methamphetamine with intent to dis-
tribute,” but was able to come to a verdict of guilty on the
lesser included offense of possession. In addition to the Su-
preme Court holding that “a retrial following a ‘hung jury’
does not violate the Double Jeopardy Clause,” (Richardson,
468 U.S. at 324), there are two other key Supreme Court hold-
ings that guide our consideration. First, if the jury convicts on
No. 18-2751 17
the lesser included offense and acquits on the greater offense,
the defendant cannot be tried again on the greater offense.
“Historically, courts have treated greater and lesser-included
offenses as the same offense for double jeopardy purposes, so
a conviction on one normally precludes a later trial on the
other.” Currier v. Virginia, 138 S. Ct. 2144, 2150 (2018); See also
Jeffers v. United States, 432 U.S. 137, 150–51 (1977); Brown, 432
U.S. at 168–69. Second, if the jury convicts on the lesser in-
cluded offense and is silent on the greater offense, then a court
will construe that silence as an acquittal and the defendant
cannot be retried on the greater offense. Green, 355 U.S. at 191
(“we believe this case can be treated no differently, for pur-
poses of former jeopardy, than if the jury had returned a ver-
dict which expressly read: ‘We find the defendant not guilty
of murder in the first degree but guilty of murder in the sec-
ond degree.’”); Price v. Georgia, 398 U.S. 323, 329 (1970) (“this
Court has consistently refused to rule that jeopardy for an of-
fense continues after an acquittal, whether that acquittal is ex-
press or implied by a conviction on a lesser included offense
when the jury was given a full opportunity to return a verdict
on the greater charge.”).
Because an offense and its lesser included offense are the
same offense for double jeopardy purposes, it is clear that
Morgan could not have been convicted and sentenced for
both possession and possession with intent to distribute
methamphetamine. See Rutledge v. United States, 517 U.S. 292,
297 (1996); Blockburger v. United States, 284 U.S. 299, 304 (1932).
Consequently, giving the jury verdict forms that would have
allowed the jury to find Morgan guilty of both crimes was an
error and started a snowball of confusion that grew as it rolled
downhill.
18 No. 18-2751
The confusion was compounded because the jury dead-
locked on the charge of possession with intent to deliver
methamphetamine. This was not a conviction, an acquittal, or
an acquittal by implication on the charge of possession with
intent to distribute. We cannot say what the jury thought
about Morgan’s intent to distribute, and ordinarily, the gov-
ernment is entitled to one full and fair conclusion with a ver-
dict of guilt or not. Richardson, 468 U.S. at 326. It is clear that
if the jury had acquitted or been silent, the government could
not have retried Morgan for possession with intent to distrib-
ute. The jury, however, clearly stated on the record that it was
deadlocked and could not come to a conclusion on the distri-
bution charge. Because the jury was deadlocked and not silent
on the greater charge, Morgan’s reliance on cases like Green v.
United States, Price v. Georgia, and Brown v. Ohio is misplaced.
In Green and Price, the jury was silent (as opposed to expressly
deadlocked, as is the case here) as to the indicted charge, and
thus the courts interpreted the silence as an implicit acquittal.
Green, 355 U.S. at 191; Price, 398 U.S. at 324. As we noted, it is
unequivocally true that a defendant may not be re-tried after
an acquittal, either implicit or expressed. Green, 355 U.S. at
191; Price, 398 U.S. at 329. And in Brown, the Court held that
the government could not hold a second trial for a greater of-
fense after it has already prosecuted a defendant for the lesser
included offense. Brown, 432 U.S. at 169–70. But the facts in
Brown did not include an earlier mistrial, and ordinarily “a
retrial following a ‘hung jury’ does not violate the Double
Jeopardy Clause.” Sattazahn v. Pennsylvania, 537 U.S. 101, 109
(2003) (citing Richardson, 468 U.S. 317 at 324). Our circuit has
held that cases barring retrial for greater and lesser included
No. 18-2751 19
offenses, “do not apply to retrials after mistrials because mis-
trials do not terminate the original jeopardy.” United States v.
Bailin, 977 F.2d 270, 275 (7th Cir. 1992).
In this situation, the district court could have either de-
clared a mistrial and allowed the government to retry the
whole case, or accepted the guilty plea of possession and
ended the prosecution of Morgan’s crimes. Instead it struck a
legally erroneous middle ground—accepting a guilty verdict
on the lesser included offense of possession and allowing re-
trial on the greater offense of possession with intent to distrib-
ute. This error created the confusing tension between the rule
that states that conviction on a lesser included offense nor-
mally precludes a later trial on the greater offense, on the one
hand, and the rule that states that double jeopardy does not
preclude retrial after a hung jury, on the other. The Supreme
Court’s current state of flux about issue preclusion in criminal
cases, adds to these muddied waters. See Currier, 138 S. Ct. at
2149–50 & Id., 138 S. Ct. at 2158–60 (Ginsburg, J. dissenting)
(majority and dissent struggling with Ashe v. Swenson, 397
U.S. 436 (1970), and issue preclusion in the criminal context).
Luckily we need not wade into these murky areas of double
jeopardy and issue preclusion. Thankfully, the very case that
stirs up the muck, has given us a bridge to resolve this case
without wading into it. Id. 4
In Currier, a divided court struggled with the question of
whether issue preclusion applies in criminal cases and how
issue preclusion intersects with concepts of double jeopardy.
Id. at 2149–50, 2157–63. A majority of the court could not agree
on the issue preclusion question, which is not, in any event,
4 Curiously, neither party pointed us to this case.
20 No. 18-2751
relevant in Morgan’s case. What the Currier court did make
inarguably clear, however, is that once a defendant consents
to a second trial, he no longer may object to the retrial on dou-
ble jeopardy grounds. Currier, 138 S. Ct. at 2151. “[T]he Dou-
ble Jeopardy Clause, which guards against Government op-
pression, does not relieve a defendant from the consequences
of his voluntary choice” to participate in a retrial. Id. (citing
United States v. Scott, 437 U.S. 82, 99 (1978)); see also Jeffers, 432
U.S. at 152.
Moreover, the defendant’s consent to a new trial need not
be explicit. An implicit agreement to a second trial “is enough
to foreclose any double jeopardy complaint about it.” Currier,
138 S. Ct. at 2151. In other words, consent to a new trial, im-
plicit or otherwise, forecloses any later objection to double
jeopardy. And this waiver or forfeiture of a double jeopardy
defense need not be “knowing, voluntary, and intelligent.” Id.
(citing United States v. Dinitz, 424 U.S. 600, 609 n.11 (1976) (col-
lecting cases)). Double jeopardy, therefore, is a defense that
can be forfeited by silence—that is, if it is not affirmatively
raised before or at trial. United States v. Parker, 368 F.3d 963,
969 (7th Cir. 2004); United States v. Wilson, 962 F.2d 621, 626
(7th Cir. 1992); United States v. Buonomo, 441 F.2d 922, 924 (7th
Cir. 1971). And, consequently, it can be waived by counsel.
Dinitz, 424 U.S. at 609 n.11.
The Supreme Court has held that some choices, like the
choice to plead guilty, waive the right to a jury, testify in one’s
own behalf, or take an appeal can only be waived by the de-
fendant himself. Florida v. Nixon, 543 U.S. 175, 187 (2004). The
court has never expanded on these four rights that require the
defendant’s personal waiver. And if that were not evidence
No. 18-2751 21
enough, the court in Dinitz, specifically declared that the de-
fendant’s claim that a waiver of double jeopardy must be
knowing, intelligent, and voluntary ”erroneously treats the
defendant’s interest in going forward before the first jury as a
constitutional right comparable to the right to counsel.” Di-
nitz, 424 U.S. at 609 n.11. See also Currier, 138 S. Ct. at 2151
(2018) (noting that the Supreme Court has “expressly rejected
the contention that the permissibility of a retrial depends on
a knowing, voluntary, and intelligent waiver” of a double
jeopardy defense when a second trial is the result of that de-
fendant’s voluntary choices); Escobar v. O'Leary, 943 F.2d 711,
715 n.2 (7th Cir. 1991) (“[a] defendant can forfeit double jeop-
ardy rights without making a knowing, voluntary, and intel-
ligent waiver of those rights.”)
As the Supreme Court explained:
What suffices for waiver depends on the nature
of the right at issue. Whether the defendant
must participate personally in the waiver;
whether certain procedures are required for
waiver; and whether the defendant’s choice
must be particularly informed or voluntary, all
depend on the right at stake. For certain funda-
mental rights, the defendant must personally
make an informed waiver. For other rights,
however, waiver may be effected by action of
counsel. Although there are basic rights that the
attorney cannot waive without the fully in-
formed and publicly acknowledged consent of
the client, the lawyer has-and must have-full au-
thority to manage the conduct of the trial. As to
many decisions pertaining to the conduct of the
22 No. 18-2751
trial, the defendant is deemed bound by the acts
of his lawyer-agent and is considered to have
notice of all facts, notice of which can be charged
upon the attorney. … Absent a demonstration
of ineffectiveness, counsel’s word on such mat-
ters is the last.
New York v. Hill, 528 U.S. 110, 114–15 (2000) (internal citations
omitted). This assumption protects defendants in a complex
legal system where decisions and arguments often must be
made quickly or lost. As the Supreme Court explained,
Numerous choices affecting conduct of the trial,
including the objections to make, the witnesses
to call, and the arguments to advance, depend
not only upon what is permissible under the
rules of evidence and procedure but also upon
tactical considerations of the moment and the
larger strategic plan for the trial. … In most in-
stances the attorney will have a better under-
standing of the procedural choices than the cli-
ent; or at least the law should so assume.
Gonzalez v. United States, 553 U.S. 242, 249–50 (2008). For this
reason, a lawyer is not required to “obtain the defendant’s
consent to ‘every tactical decision.’” Nixon, 543 U.S. at 187 (cit-
ing Taylor v. Illinois, 484 U.S. 400, 417–18 (1988)).
Morgan’s counsel did not object when, after the jury dead-
locked on the charged offense at the first trial, the court asked
the government how long it would need to decide on a retrial.
Morgan’s counsel did not object when the court scheduled the
retrial. Morgan’s counsel did not object at the start of the sec-
No. 18-2751 23
ond trial or at any time therein. 5 “[A] defendant’s consent dis-
pels any specter of double jeopardy abuse that holding two
trials might otherwise present. This Court’s teachings are con-
sistent and plain: the ‘Clause, which guards against Govern-
ment oppression, does not relieve a defendant from the con-
sequences of his voluntary choice.’” Currier, 138 S. Ct. at 2151
(citing Scott, 437 U.S. at 99). Morgan’s consent “dispels any
specter of double jeopardy abuse that holding the two trials
might otherwise present.” Id.
There is one small wrinkle to consider about the retrial on
possession with intent to distribute. Ordinarily when a jury
cannot reach a verdict, the district court will declare a mistrial
on that particular charge, thus formally releasing the prose-
cution to retry the defendant. In this case the district court
never declared a “mistrial” using that particular word. The
government argues, and we agree, that it would be error to
conclude that there was no mistrial simply because the district
court failed to use that exact term. See, e.g., United States v.
Powers, 978 F.2d 354, 359 (7th Cir. 1992) (“the trial judge when
5 Morgan makes one feeble argument to demonstrate that mistrial due
to a hung jury was not the result of his voluntary choice. He argues that
although his counsel acquiesced to the judge’s timeline of giving the jury
until 4:00 p.m. to reach a verdict before accepting the deadlock, he did so
“out of respect of the district court and not a desire to conclude the pro-
ceedings.” Reply Brief at 5. The court and counsel for both sides had an
extensive conversation about how long the court should require the dead-
locked jury to deliberate. After the judge suggested that he allow the jury
to deliberate until 4:00 p.m., Morgan’s counsel stated on the record, “that’s
fine.” R. 127 at 203. A lawyer cannot acquiesce to a court’s suggested
course of action and then claim later that “I did not mean it and was only
saying it to be polite.” The dangers of accepting such an argument are too
obvious to elaborate upon.
24 No. 18-2751
declaring a mistrial did not use the words ‘manifest neces-
sity,’ but they are neither magic nor necessary when sufficient
justification appears in the record.”). The record was replete
with evidence that the judge and both parties considered the
proceedings to have ended in a mistrial. The judge announced
that the jury was deadlocked, dismissed the jury, and gave
the government sixty days to make a decision about retrying
Morgan.
The next question, then, is whether the court could retry
Morgan for the lesser included offense of possession of meth-
amphetamine for which he was convicted at the first trial. It
could not. This clearly would constitute a second prosecution
for the same offense, and one for which the jury came to a
resolution—a clear violation of double jeopardy. Brown, 432
U.S. at 165 (“The Double Jeopardy Clause … protects against
a second prosecution for the same offense after conviction.”).
Morgan’s counsel, however, clearly and unequivocally
waived this right to be free from double jeopardy. At the be-
ginning of the second trial, the district court judge and Mor-
gan’s counsel had the following exchange:
THE COURT: … we’re all aware of the fact that
he’s previously been convicted of that [posses-
sion], which would normally raise double jeop-
ardy issues. I assume for purposes of this trial
you’re waiving any double jeopardy issue?
If he were—for example, if he’s convicted only
of possession in this trial, obviously he’s not go-
ing to be sentenced twice.
MR. HOLMAN: Right.
No. 18-2751 25
THE COURT: I’d only sentence him once. But is
that correct? Are you waiving that issue for our
purposes here?
MR. HOLMAN: Yes, Judge.
R. 133 at 5–6.
As we explained above, a defendant who explicitly or im-
plicitly consents to a second trial of an offense is foreclosed
from making any complaint about double jeopardy. See Cur-
rier, 138 S. Ct. at 2151. Morgan made a voluntary choice to
have the judge in the second trial instruct the jury on the lesser
included offense of possession. He cannot now use the Dou-
ble Jeopardy clause to forestall that prosecution. See Id. at
2151 (plurality) & 2157 (Kennedy, J., concurring) (“The end
result is that when a defendant’s voluntary choices lead to a
second prosecution he cannot later use the Double Jeopardy
Clause, whether thought of as protecting against multiple tri-
als or the relitigation of issues, to forestall that second prose-
cution.”).
And just as Morgan’s lawyer could waive or forfeit the
right to a double jeopardy defense against retrial for the
greater charged offense, Morgan’s lawyer could also waive
his double jeopardy rights related to retrial of the lesser in-
cluded offense. Currier, 138 S. Ct. at 2151; Dintz, 424 U.S. at
609 n.11. Morgan’s very situation illustrates why allowing a
lawyer to waive double jeopardy defenses as a tactical matter
makes sense. The news has been replete with stories about the
ravages of the methamphetamine epidemic and the lives ru-
ined and lost. A jury, given the choice between letting a pos-
sible methamphetamine dealer go scot free or convicting him
of possession with intent to deliver, might be inclined to do
26 No. 18-2751
the latter. But, given the chance to reach a middle ground and
find him guilty of possession alone, a jury faced with a low-
level dealer trying to make money for his elderly, ailing par-
ents, might feel more comfortable finding him guilty of pos-
session alone. This was the strategy that Morgan’s counsel
chose when he asked for either an instruction that Morgan
had already been found guilty of possession or to present the
place-holding lesser included offense option to the jury. As
Morgan’s trial counsel argued to the judge, “we’re going to be
stuck in a situation where the only verdict the jury has is pos-
session with intent to deliver, and that basically cuts the trial
strategy in half. … I think the jury needs to know somehow
that this defendant has been convicted in this case before, but
they are seeking to retry him.” R. 128 at 12–13.
In sum, Morgan has either forfeited or waived any claims
that he had that his rights under the double jeopardy clause
have been violated.
B. Propensity evidence
Moving from procedure to substance, Morgan alleges that
the use of the three “other act” witnesses who testified about
his prior drug use and drug dealing violated Federal Rule of
Evidence 404(b) and 403, as their testimony was used to
demonstrate his propensity to deal drugs and thus unfairly
prejudiced his case. He did not raise this issue below (other
than to contest that the prior acts were too remote in time—
an issue he does not contest here) and therefore we once again
review this claim for plain error only. United States v. Thomas,
897 F.3d 807, 812 (7th Cir.), cert. denied, 139 S. Ct. 615 (2018),
and cert. denied, 139 S. Ct. 850 (2019).
No. 18-2751 27
1. Rule 404(b) and propensity evidence
At issue here is the testimony of government witnesses
Emily Philbee, Melissa Hackwith, and Sue McIntire, all of
whom frequently exchanged text messages with Morgan in
the few months prior to his arrest, including on the day of his
arrest. Each witness testified that she had both used metham-
phetamine with, and received it from Morgan. On its face,
Rule 404(b) prohibits evidence of wrongs or acts that are not
the ones for which a defendant is on trial.
The relevant parts of Rule 404(b) are as follows:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime,
wrong, or other act is not admissible to prove a
person’s character in order to show that on a
particular occasion the person acted in accord-
ance with the character.
(2) Permitted Uses; … . This evidence may be
admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack
of accident. …
Fed. R. Evid. 404(b). A more colloquial way to state the rule
might be to say that a court may not allow in evidence of prior
acts to show that the defendant is “the kind of person who
would do such a thing.”
The problem, as we have frequently acknowledged, is that
often evidence can be used for both a permitted use—such as
showing intent—and also an impermissible use, such as pro-
pensity. United States v. Gomez, 763 F.3d 845, 855 (7th Cir.
28 No. 18-2751
2014). For this reason, our court has concluded that “the dis-
trict court should not just ask whether the proposed other-act
evidence is relevant to a non-propensity purpose but how ex-
actly the evidence is relevant to that purpose—or more spe-
cifically, how the evidence is relevant without relying on a
propensity inference.” Id. at 856 (emphasis in original).
The government could have introduced the other-act evi-
dence described by the witnesses for impermissible propen-
sity purposes. In this case, however, Morgan conceded that he
possessed the methamphetamine, but contested that he in-
tended to distribute it to others. Evidence of his intent, there-
fore, was clearly relevant for the non-propensity purpose of
proving the required intent.
2. Rule 403: balancing probative value and prejudice
Our evaluation of non-propensity relevance under Rule
404(b) is just the first step. “[E]ven if the other-act evidence is
relevant without relying on a propensity inference, it may be
excluded under Rule 403.” Id. at 856–57. Rule 403 of the Fed-
eral Rules of Evidence allows a court to exclude even relevant
evidence if “its probative value is substantially outweighed
by a danger of … unfair prejudice.” Fed. R. Evid. 403. Courts
must tread carefully before admitting other act evidence be-
cause it almost always creates “some risk that the jury will
draw the forbidden propensity inference.” Gomez, 763 F.3d at
857. And of all the 404(b) permissible uses, “intent” is perhaps
the one most likely to be tangled up with improper propen-
sity uses. Id. at 858.
How then must a court attempt to balance this difficult
question when other act evidence is both relevant for a per-
missible use—for example, to demonstrate intent—but also
No. 18-2751 29
may be used prejudicially by a jury to assume that a defend-
ant has a certain propensity to commit a crime? The Court in
Gomez instructed that “the degree to which the non-propen-
sity issue actually is disputed in the case will affect the proba-
tive value of the other-act evidence.” Id. at 857.
Intent can become a disputed or contested issue in one of
two ways. First, intent is almost always an important issue in
a specific intent crime, but it can also become a hotly contested
issue if the defendant makes it so in a case involving a gen-
eral-intent crime. Id at 858–59. Our Circuit holds that posses-
sion with intent to distribute is a specific intent crime. United
States v. Lopez, 907 F.3d 537, 543 (7th Cir. 2018), cert. denied, 139
S. Ct. 1612 (2019); United States v. Chapman, 765 F.3d 720, 727
(7th Cir. 2014); United States v. Miller, 673 F.3d 688, 697 (7th
Cir. 2012). And even if it were not, Morgan placed it plainly
at issue both in his opening statement, and his closing argu-
ment at the second trial. 6
In opening arguments in the second trial, his counsel said
very little (a mere 152 words), but what he did say placed in-
tent front and center: “[T]he key thing that you need to keep
in mind is, what is his intent? Okay? He’s carrying it, yes. He’s
stopped at the airport, yes. But did he intend to sell all of those
drugs anywhere?” R. 132 at 13. At closing, he reiterated,
[Morgan] did not have the intent to distribute
that—all of that at the Peoria County Airport.
6 The government argues that Morgan also placed intent squarely at
issue by raising it in his first trial and taking the stand to concede that he
possessed the methamphetamine but deny that he intended to distribute
it. Appellee’s Brief at 40. We do not think that Morgan placed his intent at
issue in the second trial simply because he raised it in the first trial.
30 No. 18-2751
This case is all about intent, possession with in-
tent to deliver. The [government] must prove
beyond a reasonable doubt that Kent possessed
the ice at the Peoria County Airport, and at that
time—not before in Galesburg, not after-
wards—but at that time, he intended to deliver.
R. 133 at 39.
Juxtaposing this case with United States v. Chapman, 765
F.3d 720 (7th Cir. 2014), demonstrates the importance, when
balancing prejudice and probative value, of considering “the
extent to which the non-propensity factual proposition actu-
ally is contested in the case.” Gomez, 763 F.3d at 857. In Chap-
man, police officers claimed that they had seen the defendant,
Chapman, carrying a bag with the butt of a gun sticking out.
They later stopped and arrested Chapman as he was climbing
out of a nearby window without the bag. The recovered bag,
it turned out, contained a very large quantity of heroin. Chap-
man conceded that the bag contained a distribution-level
quantity of heroin. His defense was simply that the bag was
not his—that is, he never possessed it. Id. at 724. In that case,
we held that the evidence of Chapman’s prior heroin convic-
tions was relevant only through an inference about propen-
sity—because he had sold heroin before, he must have in-
tended to do so again. Id. at 726. The court concluded that
“even if the government had articulated a theory of relevance
that does not rely on an impermissible propensity inference
(and it did not), the probative value of the heroin-trafficking
conviction is substantially outweighed by the risk of unfair
prejudice in the specific context of this case. Chapman’s de-
fense rested entirely on his claim that he never possessed the
bag at all.” Id. at 726–27 (emphasis in original).
No. 18-2751 31
In other words, Chapman disputed possession but con-
ceded intent (that is, that whoever possessed the heroin in-
tended to distribute it). The evidence of his prior heroin sales,
therefore, had almost no probative value free from an imper-
missible propensity inference. In contrast, Morgan disputed
intent but conceded possession, therefore the probative value
of the evidence of intent was high. The government’s intro-
duction of the three 404(b) witnesses in this case was thus a
legitimate response to the sole issue in the case—whether
Morgan intended to distribute the methamphetamine that he
admitted to possessing. The high probative value outweighed
any risk of unfair prejudice.
3. Jury instructions and prejudice
The risk of unfair prejudice can also be reduced by giving
the jury limiting instructions aimed at preventing the use of
the other act evidence for improper purposes. Gomez, 763 F.3d
at 860. The judge in this case issued such limiting instructions
before each of the 404(b) witnesses testified, and again to the
jury at the close of evidence. The jury instructions varied from
the Seventh Circuit’s pattern jury instructions. We compare
them side by side below with the substantive differences in
italics. We also include the government’s proposed instruc-
tion as it will become relevant in our discussion:
Government’s Instruction 13 Pattern instruc-
proposed instruc- given to jury tion
tion 13.
You have heard testi- You have heard tes- You have heard [tes-
mony that the de- timony that the de- timony/evidence]
fendant committed a fendant committed that the defendant
wrong other than the a wrong other than committed acts other
one charged in the the one charged in than the ones
32 No. 18-2751
indictment. Before the indictment. Be- charged in the in-
using this evidence, fore using this evi- dictment. Before us-
you must decide dence, you must de- ing this evidence,
whether it is more cide whether it is you must decide
likely than not that more likely than not whether it is more
the defendant did that the defendant likely than not that
the wrongs that are did the wrongs that the defendant took
not charged in the are not charged in the actions that are
indictment. If you the indictment. If not charged in the
decide that he did, you decide that he indictment. If you
then you may con- did, then you may decide that he did,
sider this evidence to consider this evi- then you may con-
help you decide that dence to help you sider that evidence
on January 7, 2016, decide if on January to help you decide
he possessed metham- 7, 2016, the defendant [describe with par-
phetamine with intent intended to distribute ticularity the pur-
to distribute. You may some or all of the pose for which other
not consider it for methamphetamine he act evidence was ad-
any other purpose. is accused of pos- mitted, e.g. the de-
Keep in mind that sessing. You may not fendant’s intent to
the defendant is on consider it for any distribute narcotics,
trial here for pos- other purpose. Keep absence of mistake
sessing methamphet- in mind that the de- in dealing with the
amine with the in- fendant is on trial alleged victim, etc.].
tent to distribute on here for possessing You may not con-
January 7, 2016, not methamphetamine sider this evidence
for the other wrong. with the intent to for any other pur-
R. 74-1 at 15. distribute on Janu- pose. To be more spe-
ary 7, 2016, not for cific, you may not as-
the other wrong. R. sume that, because the
77 at 11. See also R. defendant committed
128 at 75-76, 116; R. an act in the past, he is
129 at 144; R. 133 at more likely to have
57. committed the crime[s]
charged in the indict-
ment. The reason is
that the defendant is
not on trial for these
No. 18-2751 33
other acts. Rather, he
is on trial for [list
charges alleged in
the indictment]. The
government has the
burden to prove be-
yond a reasonable
doubt the elements of
the crime[s] charged in
the indictment. This
burden cannot be met
with an inference that
the defendant is a per-
son whose past acts
suggest bad character
or a willingness or ten-
dency to commit
crimes.
Pattern Criminal
Jury Instructions of
the Seventh Circuit
(2012 Ed.) (plus
2015-2017 and 2018
changes), §3.11.
Although our court urges district courts to begin with the
Seventh Circuit’s pattern jury instructions, it is only the start-
ing point and the court instructs that instructions “should be
customized to the case rather than boilerplate.” Gomez, 763
F.3d at 860.
In this case, we are troubled by what was omitted from the
instructions. The instructions ordered the jury not to consider
the testimony of the 404(b) witnesses “for any other purpose.”
34 No. 18-2751
But would a lay person on a jury, who would have no reason
to know how or why our judicial system struggles with pro-
pensity evidence, have any idea what the court means by “for
any other purpose?” What it actually means is that the jury
should not use the evidence to infer that the defendant is a
“bad guy” or the “type of guy who would sell methampheta-
mine or commit crimes in general.” These are the exact expla-
nations that were excluded from the pattern instructions.
Without them it almost makes it seem as though the jury may
use the evidence for propensity purposes. In other words,
how was a jury to know that it could not use the other act
evidence to show “Morgan has sold methamphetamine in the
past therefore he must be guilty of doing it this time.” We
think the omissions from the pattern instructions created an
error.
Not only do we think that it was in error, but it seems as
though the district court judge did too. When he first consid-
ered the proposed jury instruction he stated,
I looked at your proposed jury instructions [on
propensity evidence] … but it doesn’t accu-
rately state the instruction. It does in part. But
your jury instruction does not tell them what the
specific reason, motive, intent, design or what-
ever that its being offered.
The way I read your instruction, it just sounds
like—almost like a propensity instruction
which, of course, is not permitted.
I assume you intended to fill in there with
whether the defendant intended to distribute
methamphetamine; is that right? His intent?
No. 18-2751 35
Rawle 128 at 9. In response, the government agreed to “tighten”
the instruction. Id. But the only change it made was not sub-
stantive and certainly did not address the judge’s prior con-
cern about propensity. The government changed “you may
consider this evidence to help you decide that on January 7,
2016, the defendant possessed methamphetamine with intent
to distribute,” to “you may consider this evidence to help you
decide if on January 7, 2016, the defendant intended to dis-
tribute some or all of the methamphetamine he is accused of
possessing.” Compare R. 74-1 at 15 (Government’s proposed
instruction) to R. 77 at 11 (instruction submitted to jury). 7
Nevertheless, Morgan’s counsel affirmatively agreed to
this instruction, not just once, but twice. R. 128 at 75–76; R. 133
at 4. First, during a pretrial proceeding as the judge and coun-
sel were reviewing jury instructions and limiting instructions.
The judge read the instruction and then asked, “Are we all
agreed that that would be the proper instruction?” R. 128 at
76. Morgan’s counsel responded, “Yes, Judge.” Id. And then,
again, when reviewing the instructions just before submitting
them to the jury, the judge suggested that the word “that”
should be changed to “if.” He then stated, “Any objection to
that as amended?” R. 133 at 4. Morgan’s counsel replied “No,
Judge.” Id. Thus any objection was unequivocally waived.
When a defendant negligently fails to object to a jury instruc-
tion before the jury retires to deliberate, the defendant may
later attack that instruction only for plain error. United States
v. Natale, 719 F.3d 719, 729 (7th Cir. 2013). A defendant who
waives—rather than forfeits—his objection as Morgan did
7 The Judge also changed the word “that” to “if.” See R. 133 at 4 and
compare R. 74-1 at 15 to R. 77 at 11.
36 No. 18-2751
here however, “cannot avail himself of even the demanding
plain error standard of review. He has no recourse and gen-
erally must live with his earlier decision not to press the er-
ror.” Id.
We note for future trials that we think a jury instruction
that does not inform the jury what “other purposes” means is
not sufficient to explain forbidden propensity purposes to ju-
rors. Our court has explained the import of including the ra-
tionale in the propensity instruction.
[W]e see no reason to keep the jury in the dark
about the rationale for the rule against propen-
sity inferences. Lay people are capable of under-
standing the foundational principle in our sys-
tem of justice that we try cases, rather than per-
sons. The court’s limiting instruction would be
more effective if it told the jurors that they must
not use the other-act evidence to infer that the
defendant has a certain character and acted “in
character” in the present case because it does
not follow from the defendant’s past acts that he
committed the particular crime charged in the
case. Finally, the instruction would be im-
proved by tying the limiting principle to the
prosecution’s burden of proof. The jurors
should be reminded that the government’s duty
is to prove beyond a reasonable doubt every el-
ement of the specific crime charged, and it cannot
discharge its burden by inviting an inference
that the defendant is a person whose past acts
suggest a willingness or propensity to commit
crimes.
No. 18-2751 37
Gomez, 763 F.3d at 86. The government’s proposed jury in-
structions and the one used at trial omitted this rationale. Jury
instructions on propensity should include the rationale ex-
plained in Gomez and in the pattern instructions. Morgan,
however, twice waived his right to object to the instructions
as submitted.
C. Ineffective assistance of counsel
Finally, Morgan asks us to evaluate his claim of ineffective
assistance of counsel. His brief, in a footnote, recognizes that
“in some cases, this Court has suggested that ineffective assis-
tance of counsel claims are more appropriately reserved for
proceedings under 28 U.S.C. § 2255.” Appellant’s Brief at 44,
n.8. We have done more than suggest; we have warned
against the near-certain folly that will arise, not just in “some
cases” but in nearly every situation in which ineffectiveness
of counsel claims are reviewed on direct appeal. We have
counseled that such claims of ineffective assistance of counsel
are “’invariably doomed’ on direct review because they often
require augmentation of the record with extrinsic evidence,
which cannot be considered.” Delatorre v. United States, 847
F.3d 837, 844 (7th Cir. 2017) (citing United States v. Gilliam, 255
F.3d 428, 437 (7th Cir. 2001)). And we have even noted in one
opinion that as of that date, this Court had never reversed a
conviction on direct appeal because of ineffective assistance
of counsel. See United States v. Trevino, 60 F.3d 333, 339 (7th
Cir. 1995). We have documented our concerns and warnings
again and again. See United States v. Harris, 394 F.3d 543, 557
(7th Cir. 2005) (compiling cases with warnings against pursu-
ing ineffective assistance claims during direct appeal). See
also Massaro v. United States, 538 U.S. 500, 506 (2003).
38 No. 18-2751
It is true that in this case there was indeed some factual
development that would be helpful for an ineffective assis-
tance claim. After the second trial, Morgan filed a pro se mo-
tion for an acquittal or, in the alternative, a new trial. After the
district court appointed a new attorney, his trial counsel sub-
mitted an affidavit and testified at a subsequent hearing on
the motion. R. 101-1; R. 121. Morgan’s brief alleges that this is
a sufficient record with which to proceed with respect to the
ineffectiveness of Morgan’s first trial counsel. We disagree.
There is no record at all in the post-trial hearing of counsel’s
strategy regarding double jeopardy. And his strategy regard-
ing the 404(b) witnesses is only addressed in a limited man-
ner. Furthermore, Morgan agrees that the record is not suffi-
ciently developed to assess the effectiveness of his second
lawyer, who took over during the post-trial motions, and asks
to preserve any claim Morgan raises as to his second lawyer’s
performance for collateral review. We would then be placed
in a position of assessing ineffectiveness of counsel in a piece-
meal fashion, which, for judicial economy, we decline to do.
See West v. Louisville Gas & Elec. Co., 920 F.3d 499, 503 (7th Cir.
2019) (“permitting multiple, piecemeal appeals from a single
action in the district court will have a debilitating effect on the
efficient administration of justice.”).
Moreover, if we were to consider Morgan’s claim here, our
decision will be binding on the district court on post-convic-
tion review and Morgan will have lost the opportunity for a
true full review of the matter. Harris, 394 F.3d at 558. Conse-
quently, we decline to review Morgan’s claim of ineffective
assistance of counsel in this direct appeal. See, e.g., United
States v. Stork, 487 F. App’x 295, 296 (7th Cir. 2012).
No. 18-2751 39
The judgment of the district court is AFFIRMED in all re-
spects.