United States v. Kenneth Schmitt , 770 F.3d 524 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-2894
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH SCHMITT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:11-cr-48 — Richard L. Young, Chief Judge.
____________________
ARGUED FEBRUARY 18, 2014 — DECIDED OCTOBER 20, 2014
____________________
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
WILLIAMS, Circuit Judge. Law enforcement officers found
drugs and an assault rifle in Kenneth Schmitt’s home while
executing a warrant for his arrest. Because they were found
in plain view in the course of conducting a reasonable pro-
tective sweep, the district court did not err in denying
Schmitt’s motion to suppress evidence of the firearm. Nor
did the district court err in allowing much of the drug evi-
dence that was admitted against Schmitt at trial, including
2 No. 13-2894
his conviction record for possessing marijuana with the in-
tent to distribute it. However, the district court should not
have admitted Schmitt’s conviction for possession of meth-
amphetamine since Schmitt did not open the door to that ev-
idence and it was not relevant at trial except to impeach the
government’s own witness who claimed during direct exam-
ination that the methamphetamine belonged to him. But the
error was harmless because the government’s case would
not have been substantially less persuasive without it. Final-
ly, the district court did not err in enhancing Schmitt’s base
offense level after concluding that he possessed the firearm
in connection with the sale of drugs or in finding that
Schmitt’s eleventh-hour decision to admit guilt—after he
was convicted—was insufficient to qualify him for a reduc-
tion in his offense level for accepting responsibility. There-
fore, we affirm Schmitt’s conviction and sentence.
I. BACKGROUND
In December 2010, Evansville Police Department Detec-
tive Chris Georgen received a tip from his informant, Ken-
neth Hutchinson, that Kenneth Schmitt had recently ac-
quired an AR-15 semi-automatic assault rifle in exchange for
$200 and two grams of methamphetamine. How did
Hutchinson know this? Because he was the middleman who
set up the deal between Schmitt and the seller of the auto-
matic rifle. And Hutchinson, who was Schmitt’s neighbor,
told Det. Georgen that Schmitt was keeping it at home. Det.
Georgen and other officers followed up on the tip by watch-
ing Schmitt’s residence. They saw Schmitt come to the front
door and several other people enter and exit the home.
Armed with a warrant to arrest Schmitt, several SWAT offic-
ers entered Schmitt’s residence the next day and within five
No. 13-2894 3
minutes the officers found Schmitt and Jason Wyatt. They
also found, in plain view, marijuana, methamphetamine,
and pills containing controlled substances. Less than five
minutes after entering the house, SWAT Officer Craig Pierce
went into the basement and saw an AR-15 semiautomatic
rifle and two fully loaded magazines in a black gun case.
Det. Georgen then obtained a search warrant to seize the
drugs, firearm, and related evidence found while executing
the arrest warrant.
Schmitt was indicted for possessing a firearm while be-
ing a felon, in violation of 18 U.S.C. § 922(g)(1). He filed a
pretrial motion to suppress evidence related to the rifle, but
the district judge found that it was seen in plain view during
a protective sweep and denied the motion. Schmitt, who had
pled guilty in state court to possession of the drugs found in
his home, also moved to exclude evidence regarding “any
drug use, drug possession, or drug dealing alleged to have
been engaged in by” him. The government argued that the
drugs that were found in Schmitt’s home, as well as the evi-
dence that he was a drug dealer and used drugs to purchase
the firearm, were relevant to show why Schmitt had the rifle.
Finding that the drug evidence was “inextricably inter-
twined with the charged act,” “put the facts in context, filled
gaps,” and “would be a motive for the defendant to have a
firearm,” the court concluded that the probative value of the
drug evidence outweighed its prejudicial effect. The court
denied Schmitt’s motion and allowed drug evidence to be
admitted at trial, in addition to evidence that Schmitt pled
guilty to possessing the drugs found in his home the day he
was arrested.
4 No. 13-2894
So, at trial, Hutchinson testified that he had on occasion
bought methamphetamine and marijuana from Schmitt in
Schmitt’s home and also saw him sell pills from his home.
Det. Georgen testified about the firearm and ammunition
found in the basement, as well as the methamphetamine,
marijuana, and digital scale that were found in Schmitt’s
home during his arrest. He told the jury that the quarter
gram of methamphetamine found was an amount a user
would have, but that the quarter pound of marijuana was an
amount a drug dealer would keep on hand.
Collectively, Det. Georgen and Hutchinson’s testimony
raised the inference that the drugs in Schmitt’s home were
his and that he bought the rifle to protect his drug dealing
business. But Schmitt’s friend Wyatt, who was the govern-
ment’s witness, offered a different view. He testified that the
drugs found in Schmitt’s residence belonged to him. This
first came up during direct examination in the government’s
case, when Wyatt said that he was present during the arrest
because he “had some meth [and] was getting [Schmitt]
high.” During cross-examination, defense counsel got Wyatt
to admit that the methamphetamine, marijuana, pills, and
digital scale found in Schmitt’s home all belonged to Wyatt.
The following day, after the government rested, the de-
fense called Det. Georgen back to the stand. The government
sought to elicit testimony from Det. Georgen during cross-
examination that Schmitt pled guilty to possessing the drugs
that were found on the scene—the same drugs Wyatt testi-
fied belonged to Wyatt. The government also moved to ad-
mit Schmitt’s record of conviction, arguing that the testimo-
ny and conviction record were admissible because the de-
fense “elicit[ed] the testimony that [the drugs] were Wyatt’s
No. 13-2894 5
drugs” and opened the door to admitting evidence of the
drug conviction. Defense counsel objected, asserting that
admission would unfairly prejudice Schmitt in violation of
Rule 403, and because defense counsel doubted the validity
of the document. After defense counsel confirmed that he
planned to talk about Wyatt’s admission to owning the
drugs during his closing argument, the judge allowed the
government to introduce Schmitt’s state conviction record
through Officer Georgen’s testimony.
The jury convicted Schmitt, and the judge at sentencing
applied a four-level enhancement to Schmitt’s base offense
level after finding that he possessed a firearm in connection
with another felony offense. The judge also rejected
Schmitt’s request for a two-point sentencing level reduction
for accepting responsibility. Schmitt was sentenced to 110
months’ imprisonment and three years of supervised re-
lease. He appeals both his conviction and sentence.
II. ANALYSIS
A. No Error in Admitting Firearm Evidence
Schmitt first argues that the district court erred in deny-
ing his motion to suppress the semiautomatic gun, related
exhibits including the gun case and ammunition, and testi-
mony regarding the gun because it was all fruit of an illegal
search. For this claim, “we review the district court’s legal
conclusions de novo, and its factual findings for clear error.”
United States v. Huart, 735 F.3d 972, 974 (7th Cir. 2013).
Schmitt’s position is that the officers had to stop their
search once they apprehended Schmitt because they only
possessed an arrest warrant. But the district court found that
Officer Pierce’s search of the basement, which Schmitt ar-
6 No. 13-2894
gues occurred after the officers apprehended him and Wyatt,
was permissible as a protective sweep. Schmitt now asserts
that the protective sweep doctrine did not give Officer Pierce
the authority to open the locked basement door and search
the basement, where the firearm was found in its case in
plain view, because the door locked from the outside and
anyone inside the basement could not get out to harm the
officers, and so officer safety was not a legitimate concern.
Maryland v. Buie, 494 U.S. 325 (1990), and its progeny
foreclose Schmitt’s arguments. “A ‘protective sweep’ is a
quick and limited search of premises, incident to an arrest,”
and can be conducted without a search warrant if the pur-
pose of the search is “to protect the safety of police officers
or others.” Id. at 327; United States v. Burrows, 48 F.3d 1011,
1015 (7th Cir. 1995). In light of the doctrine’s focus on safety,
this exception to the Fourth Amendment’s warrant require-
ment “is narrowly confined to a cursory visual inspection of
those places in which a person might be hiding.” Buie, 494
U.S. at 327. Therefore, officers may, “without probable cause
or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an at-
tack could be immediately launched.” Id. at 334. But in order
to search beyond the immediate area, the officer must have
“articulable facts which . . . would warrant a reasonably
prudent officer in believing that the area to be swept harbors
an individual posing a danger to those on the arrest scene.”
Id. Whether the exception applies depends on whether the
search was reasonable under the circumstances. Burrows, 48
F.3d at 1015.
The dozen or so officers who entered Schmitt’s residence
fanned out to search for Schmitt and to ensure each other’s
No. 13-2894 7
safety. Officer Pierce testified that he entered the basement
with the same goal in mind—to ensure officers’ safety, or in
the words of the officer in Buie, “in case there was someone
else down there.” Id. at 328. We do not have to decide
whether the basement “immediately adjoin[ed] the place of
[Schmitt’s] arrest,” since the officers had reason to believe
that danger lurked behind the basement door. Specifically,
officers observing Schmitt’s house the previous day saw
several people enter Schmitt’s home. They knew Schmitt had
a violent criminal history, including arrests for resisting law
enforcement, pointing a firearm, and battery by means of a
deadly weapon. And they had information that a firearm
was present in the house. A reasonably prudent law en-
forcement official faced with this combination of facts would
be concerned about his safety when entering the home. See
Burrows, 48 F.3d at 1017 (finding search reasonable where
arrest was made in a violent area, the defendant had a vio-
lent history, and circumstances on the scene suggested that
violence may erupt).
Schmitt’s contention that he and Wyatt were arrested be-
fore Officer Pierce went into the basement does not change
our conclusion. There is no evidence on the record, other
than Schmitt’s word, to establish that he was arrested before
the sweep of his basement. Even if we assume that Schmitt is
right, we cannot say that the officers had identified Schmitt,
or that Officer Pierce was aware that Schmitt had been ap-
prehended before proceeding to the basement. Nor does the
fact that the basement door was locked alter the analysis. A
locked door would not protect the officers if a person with a
gun decided to kick the door down or shoot through it. See
Burrows, 48 F.3d at 1017 (finding protective sweep of four
bedrooms and closet near bathroom where defendant was
8 No. 13-2894
located reasonable even though officers had to force open
four locked doors). Law enforcement officers’ interest in en-
suring their safety “justifies their ensuring that the dwelling
does not harbor another person who is dangerous and who
unexpectedly could launch an attack.” Id. at 1015. Given that
several people were seen in the house the previous day, the
officers were faced with the possibility that someone else
was in the residence who presented a threat to them.
Moreover, the officers’ right to sweep the premises does
not end the moment the targeted individual is arrested. See
Buie, 494 U.S. at 336 (holding that the authority to conduct a
protective sweep persists as long as it takes to reasonably
complete the arrest and depart the premises); Burrows, 48
F.3d at 1017 (“[O]fficers ha[ve] the right to ensure their safe-
ty and the safety of everyone else in the area not only during
the arrest itself but also during the remainder of the time
that they [are] legally on the premises and its environs.”).
Here, Schmitt does not dispute that the entire incident—the
entry, arrest, sweep, and exit—occurred within five minutes,
and there is no evidence that the officers delayed the arrest
and exit process to further efforts to uncover contraband. See
Burrows, 48 F.3d at 1017 (finding the search reasonable in
part because execution of arrest warrant “took no more than
five minutes, an interval compatible with the officers’ legiti-
mate purpose”). The officers’ quick sweep of Schmitt’s home
and basement was permissible as a protective sweep because
it was conducted to apprehend the suspect and to ensure the
officers’ safety, and lasted no longer than reasonably neces-
sary. See Buie, 494 U.S. at 334-35 (noting that the sweep must
end when the reasonable suspicion of danger has been dis-
pelled); Burrows, 48 F.3d at 1017 (applying the reasonably
prudent officer test to uphold the sweep for safety). As the
No. 13-2894 9
search was reasonable and the gun was found in plain view,
the district court did not err in denying Schmitt’s motion to
suppress the firearm.
B. Admission of Drug Dealing, Conviction, and Drug
Possession Evidence
Schmitt also contests the district court’s denial of his mo-
tion to exclude evidence of his drug possession and drug
dealing under Federal Rule of Evidence 403. We review evi-
dentiary rulings, including the district court’s decision to
admit evidence of other bad acts, under an abuse of discre-
tion standard. United States v. Harris, 587 F.3d 861, 864 (7th
Cir. 2009). Under this standard, we will defer to the district
court unless no reasonable person could adopt its view. See
United States v. LeShore, 543 F.3d 935, 939 (7th Cir. 2008).
Even then, “reversal only follows if admission of the evi-
dence affected the defendant’s substantial rights”; in other
words, if the “average juror would find the prosecution’s
case significantly less persuasive without the improper evi-
dence.” United States v. Garcia-Avila, 737 F.3d 484, 490 (7th
Cir. 2013) (quotations omitted).
Schmitt argued that his alleged drug use, possession, and
dealing were not relevant to the firearm possession charges.
He also argued that “even if the court deems said evidence
to be relevant, the prejudicial effect . . . would greatly out-
weigh any probative value under Rule 403 of the Federal
Rules of Evidence,” and “would tend to confuse [and] in-
flame the jury.” The district court disagreed, finding the evi-
dence relevant. The court also concluded that the probative
value of the evidence that Schmitt was a drug dealer, that he
used drugs to purchase a firearm, and that marijuana, meth-
amphetamine, and pills were found in plain view in his resi-
10 No. 13-2894
dence when he was arrested, outweighed any prejudice
Schmitt would suffer from its admission. Schmitt renews his
arguments on appeal.
We begin our inquiry by focusing on whether the drug
evidence was relevant to an issue at trial and otherwise ad-
missible. Of course, evidence must be relevant to be admis-
sible, but not all relevant evidence is admissible. See Fed. R.
Evid. 402; United States v. Gomez, 736 F.3d 845, 853 (7th Cir.
2014) (en banc). Evidence of a defendant’s other bad acts,
which is introduced only to show his propensity to commit
crimes, is inadmissible under Rule 404(b). Fed. R. Evid.
404(b); Harris, 587 F.3d at 864. But if that evidence is relevant
because it serves another purpose, “such as proving mo-
tive,” Fed. R. Evid. 402, 404(b), then it may be admitted so
long as the district court satisfies that the other purpose is
relevant through a “propensity-free chain of reasoning” at
issue in the case, that the evidence is relevant to that issue,
and that the probative value of the evidence is not substan-
tially outweighed by the evidence’s prejudicial effect. Gomez,
763 F.3d at 852, 856; see also United States v. Chapman, 765
F.3d 720, 722 (7th Cir. 2014) (stating that other-act evidence
“may be admitted for another purpose provided that the evi-
dence is relevant under a theory that does not rely on an in-
ference about the actor’s propensity” (emphasis in original));
United States v. Miller, 673 F.3d 688, 692 (7th Cir. 2012). So
this evidence may not be admitted as a matter of course, but
the court should instead consider “the ‘legitimacy of the
purpose for which the evidence is to be used and the need
for it.’” Gomez, 763 F.3d at 853 (quoting Miller, 673 F.3d at
692).
No. 13-2894 11
This determination is case-specific, and involves consid-
ering whether the proffered reason for the evidence is at is-
sue in the trial and whether the proffered evidence is rele-
vant to that permissible purpose. See Miller, 673 F.3d at 696
(recognizing that “Rule 404(b) does not provide a rule of au-
tomatic admission whenever bad acts evidence can be plau-
sibly linked to ‘another purpose’ … listed in the rule”). It is
also helpful for the trial court to “look[] beyond the purposes
for which the evidence is being offered and consider[] what
inferences the jury is being asked to draw” to determine
whether “the jury is essentially being asked to rely on the
evidence as proof of the defendant’s propensity to commit
the charged offense” or on some other logical and important
connection between the other bad act evidence and the
charged criminal conduct. United States v. Lee, 724 F.3d 968,
978 (7th Cir. 2013).
The district court’s conclusion that the drug evidence
was “inextricably intertwined” with the charged act and
“fill[ed] the story” runs counter to our recent precedent and
is not dispositive on the issue of relevance or the ultimate
admissibility of the drug evidence. In the wake of several
cases in which we expressed our “criticism of [such] tongue-
twisting formulas,” see United States v. Edwards, 581 F.3d 604,
608 (7th Cir. 2009); United States v. Harris, 536 F.3d 798, 807
(7th Cir. 2008); United States v. Taylor, 522 F.3d 731, 735 (7th
Cir. 2008) (finding the “inextricably interwoven” test unsat-
isfactory because its “vagueness invites prosecutors to ex-
pand the exceptions to the rule beyond the proper bounda-
ries of the exceptions”), we definitively concluded that “re-
sort to inextricable intertwinement is unavailable when de-
termining a theory of admissibility.” United States v. Gorman,
613 F.3d 711, 719 (7th Cir. 2010). Instead, we focus our analy-
12 No. 13-2894
sis on the government’s argument, and the district court’s
additional reasoning, that the evidence was relevant to es-
tablish Schmitt’s motive for possessing a gun. Because mo-
tive is an “express exception[] to the Rule 404(b) bar[,] there
is no need to spread the fog of ‘inextricably intertwined’
over [it].” Harris, 536 F.3d at 807 (quoting Taylor, 522 F.3d at
735); Taylor, 522 F.3d at 735 (recognizing that “[a]lmost all
evidence admissible under the ‘inextricably interwoven’
doctrine is admissible under one of the specific exceptions in
Rule 404(b)”).
The issue of motive was relevant at trial to establish that
Schmitt possessed the firearm. In order to convict on the fel-
on-in-possession charge, the government had to prove that
(1) Schmitt was a felon, (2) he possessed a firearm, and (3)
the firearm had traveled in interstate commerce. See Harris,
587 F.3d at 866. Schmitt stipulated that he was a felon and
that the firearm traveled in interstate commerce before it
was found in his basement, so the only element at issue was
whether he possessed the firearm. For the purposes of 18
U.S.C. § 922(g)(1), possession can be actual or constructive.
Id. Although there was evidence that Schmitt actually pos-
sessed the gun when he purchased it, he was not caught
with the gun red-handed, so the government’s case was
strengthened by proof that Schmitt constructively possessed
the gun. “Constructive possession is a legal fiction whereby
a person is deemed to possess contraband even when he
does not actually have immediate, physical control of the ob-
ject.” United States v. Griffin, 684 F.3d 691, 695 (7th Cir. 2012).
Establishing that the defendant had exclusive control over
the property where the firearm is found can be sufficient to
show constructive possession, id., but the evidence showed
that Schmitt shared the residence with his girlfriend. In
No. 13-2894 13
proving constructive possession in the context of a joint resi-
dence, “mere proximity to contraband is not
enough. . . . Rather, ‘proximity coupled with evidence of
some other factor—including connection with [an impermis-
sible item], proof of motive, a gesture implying control,
[among others] is enough to sustain a guilty verdict.’” Id. at
696 (quoting United States v. Morris, 576 F.3d 661, 668 (7th
Cir. 2009)) (emphasis added). Since proof of motive is one
way to establish constructive possession in joint residence
cases, motive was at issue in Schmitt’s trial.
And the evidence proffered by the government was rele-
vant to motive. The testimony that Schmitt was a drug deal-
er and that drugs were found in his home when he was ar-
rested was relevant to suggest to the jury why he would
have a firearm. See Fed. R. Evid. 401 (evidence is relevant if it
tends to make a fact that is of consequence in determining
the action more probable than it otherwise would be); United
States v. Elder, 466 F.3d 1090, 1091 (7th Cir. 2006) (recogniz-
ing that “drug dealers often use guns and knives to protect
their operations”). The drug dealing evidence could help
convince a reasonable jury that Schmitt possessed the fire-
arm found in his home, a fact that the government had to
prove to secure his conviction for being a felon in possession
of a firearm. See 18 U.S.C. § 922(g)(1); see also United States v.
Lloyd, 71 F.3d 1256, 1264 (7th Cir. 1995) (finding “motive to
possess a firearm” relevant in felon-in-possession prosecu-
tion “because it ma[de] possession more probable than it
would be without the evidence” (internal quotations, cita-
tions, and alterations omitted)).
Moreover, introducing the evidence as indicative of
Schmitt’s motive provided a “propensity-free chain of rea-
14 No. 13-2894
soning” for the evidence’s admission. See Gomez, 763 F.3d at
856. Looking to the inferences the jury was being asked to
draw, it becomes clear that the government used the other
bad acts evidence to establish why Schmitt would have a
gun, and not simply to suggest that Schmitt engaged in illicit
conduct in the past and so must have had the propensity to
do it again. By introducing evidence that Schmitt was a drug
dealer and had large quantities of drugs in his home when
he was arrested, the government was not asking the jury to
believe that because Schmitt was the type of person who
would break the law once, he must be the type of person
who would break the law again. That is the inference that
Rule 404(b) was designed to prevent. See United States v.
Cunningham, 103 F.3d 553, 556 (7th Cir. 1996). Instead, the
government was asking the jury to use the evidence to find
that Schmitt had a gun because he was a drug dealer; or in
other words, that the gun was intended to further his drug
dealing activities. That is a proper inference for the jury to
draw from other-acts evidence. See United States v. Caldwell,
423 F.3d 754, 759 (7th Cir. 2005) (finding evidence admissible
even if “it portrayed him as a wealthy drug dealer” since
“other act evidence is admissible under 404(b) to establish
proof of motive”); Lloyd, 71 F.3d at 1264 (affirming admis-
sion of evidence of gang affiliation, assassination attempts
made on defendant’s life, and his use of armed guards to
show motive in felon-in-possession prosecution); see also
Cunningham, 103 F.3d at 556 (finding that propensity and
motive evidence do not overlap when the other-act evidence
shows a “desire for pecuniary gain or for some other ad-
vantage to which the crime is instrumental in the sense that
it would not be committed if the advantage could be ob-
tained as easily by a lawful route”). The evidence that
No. 13-2894 15
Schmitt exchanged drugs for the gun is another example of
him dealing in drugs, and was similarly admissible to estab-
lish motive.
The next question is whether Rule 403 applied to keep
the evidence out, because “even if other-act evidence is rele-
vant without relying on a propensity inference, it may be ex-
cluded under Rule 403.” Gomez, 763 F.3d at 856. That rule
allows for the exclusion of relevant evidence when its proba-
tive value is substantially outweighed by the danger of un-
fair prejudice or confusing the jury. See Fed. R. Evid. 403.
“Evidence is unfairly prejudicial if it induces the jury to de-
cide the case on an improper basis rather than on the evi-
dence presented.” United States v. Haldar, 751 F.3d 450, 458
(7th Cir. 2014) (quoting United States v. Conner, 583 F.3d 1011,
1025 (7th Cir. 2009)). The danger of admitting evidence from
which the jury could draw a propensity inference is that, re-
gardless of the reason the evidence was actually admitted,
the jury might still draw that improper inference. See Miller,
673 F.3d at 696 (“Almost any bad act evidence simultaneous-
ly condemns by besmirching character and by showing one
or more” of the purposes listed in Rule 404(b) (quoting Unit-
ed States v. Beasley, 809 F.2d 1273, 1279 (7th Cir. 1987) (em-
phasis in original)). That inherent risk of prejudice against
the defendant is unavoidable, and excluding other-acts evi-
dence on that basis would make it nearly impossible to ever
admit such evidence. But there are steps the district court
can take to minimize the risk. In determining “whether that
risk is sufficiently outweighed by other factors,” as the dis-
trict court must do, see Gomez, 763 F.3d at 857, the court
should consider whether the fact to which the evidence per-
tains is seriously contested and whether a jury instruction
could cure the potential prejudicial effect. Id. at 857, 860;
16 No. 13-2894
Harris, 587 F.3d at 866 (citing United States v. Jones, 455 F.3d
800, 809 (7th Cir. 2006), for its observation that “we have
held that such instructions are effective in reducing or elimi-
nating any possible unfair prejudice from the introduction of
Rule 404(b) evidence”).
The danger of unfair prejudice did not substantially out-
weigh the probative value of the drug evidence in this case
as it was highly probative. The government was required to
prove that Schmitt possessed the firearm, and Schmitt did
not concede the point. Cf. Old Chief v. United States, 519 U.S.
172, 191 (1997) (finding that a defendant’s stipulation to a
fact at issue makes facts that tend to prove the stipulated fact
no longer probative). The judge also instructed the jury of
the limited way that it could consider the drug evidence,
stating that it was relevant only in deciding whether Schmitt
had the intent and “a motive to possess the firearm charged
in the indictment.” And there was not an especially dispro-
portionate risk that “the emotions of the jury [would] be ex-
cited to irrational behavior.” See United States v. Loughry, 660
F.3d 965, 974 (7th Cir. 2011). The evidence of Schmitt’s al-
leged drug dealing and of the drugs found in his home was
admissible under Rule 404(b).
Prior convictions, however, are highly prejudicial, and
the district court did not abuse its discretion in initially ex-
cluding evidence of Schmitt’s conviction for possessing the
drugs found in his home. The government initially complied
with that ruling, but it sought to admit testimony and
Schmitt’s conviction record showing that Schmitt pled guilty
to possessing those drugs after Wyatt testified that the drugs
found in the house were his. Schmitt has called foul, but the
government responds that Schmitt “opened the door” to the
No. 13-2894 17
evidence regarding his state court convictions when he
asked Wyatt, on cross-examination, whether the drugs in the
house belonged to Wyatt. A defendant “opens the door” to
otherwise inadmissible evidence when he affirmatively and
“genuinely place[s] at issue the specific matter that the evi-
dence is being offered to establish.” Lee, 724 F.3d at 977; see
United States v. Touloumis, 771 F.2d 235, 241 (7th Cir. 1985)
(“[A] party cannot be permitted on the one hand to intro-
duce evidence that appears favorable to his argument and
then complain, after the circumstances are fully developed,
because the evidence becomes detrimental to his cause.”).
The wrinkle in the government’s argument is that the
implication that some of the drugs found on the scene were
Wyatt’s was first raised during direct examination when
Wyatt was being questioned by the government.
Q: Why would you go over [to Schmitt’s house]?
A: Usually get him high.
…
Q: Okay. Do you recall what you and Mr. Schmitt
were doing just prior to the police coming in?
A: Yeah. I just got there, you know, just got there, had
some meth, so I broke it out, was getting him
high….
Tr. Vol. I – 100-01.
Defense counsel seized on this opportunity during his
cross-examination. Even though the methamphetamine was
the only drug mentioned during direct, defense counsel
asked about the marijuana and pills as well. He pointed to
specific exhibits of the drugs found in the home and secured
18 No. 13-2894
Wyatt’s admission that they all belonged to him. Wyatt even
said that he had told officers the day that he and Schmitt
were arrested that the drugs and scale were his. The gov-
ernment argued that this “opened the door” not only to tes-
timony that Schmitt pled guilty to possession of those same
drugs, but to admitting the record of conviction as well.
Over defense counsel’s Rule 403 objections, the judge al-
lowed both the testimony and admittance of the conviction
record, finding the government “entitled to put that evi-
dence in, considering the defense posture in this case they’re
going to indicate that they were not his drugs, Mr. Schmitt’s
drugs; they were Mr. Wyatt’s drugs …. We are trying to seek
the truth here.”
The door that was opened by Wyatt’s testimony was
cracked open through direct examination of the govern-
ment’s own witness. Government officials dealing with wit-
nesses who may later become uncooperative would be wise
to secure their grand jury testimony while they are still co-
operating. Had the government done so, it would have been
free to impeach Wyatt by introducing evidence of his grand
jury testimony that would have been substantive evidence
under Rule 801(d)(1)(A). See Fed. R. Evid. 801(d)(1)(A) advi-
sory committee note (stating that the rule protects a party
from “the ‘turncoat’ witness who changes his story on the
stand and deprives the party calling him of evidence essen-
tial to his case”). Just because the government fails to pre-
pare for a scenario in which Wyatt would change his story
does not give it free rein to bolster its case by whatever
means possible.
But that is not the end of the story. Although the gov-
ernment cracked open the door, Schmitt swung it wide open
No. 13-2894 19
by giving Wyatt an opportunity to claim that all the drugs
were his, which brought motive into “meaningful[] dispute[]
by the defense.” See Miller, 673 F.3d at 697; Gomez, 763 F.3d
at 858-60. During his testimony as part of the government’s
direct examination, Wyatt only claimed that the metham-
phetamine found on the scene belonged to him. But the
quarter gram of methamphetamine recovered when the pair
was arrested was, as Det. Georgen testified, an amount a us-
er would have, so Wyatt’s admission that those drugs were
his did not contradict the government’s theory that Schmitt
had the gun to protect his drug dealing. The marijuana,
which was found in dealer quantities, established Schmitt’s
motive for having a gun, and it was during Schmitt’s cross-
examination of Wyatt, not on direct examination, that Wyatt
claimed that the marijuana was his as well.
Q: Beside that cellphone is—what’s that … white
thing?
A: It’s probably some of the meth I brought that we
was smoking. …
Q: You brought it there? That’s yours?
A: Yes, sir.
…
Q: You were wearing that coat [where the pills and
scale were found], weren’t you, when you ar-
rived?
A: Yeah, that’s my coat.
…
Q: Now, that marijuana also belonged to you, did it
not?
20 No. 13-2894
A: Yes, sir. I even told the police that day that.
Tr. Vol. I – 107-08.
Through questioning Wyatt about the marijuana, Schmitt
put on affirmative evidence to deny that he possessed the
marijuana. This was relevant to convince the jury that he
was not dealing drugs out of his house at the time that the
gun was found and did not have a motive to have a gun. By
putting on evidence regarding who possessed the drugs in
the house and disputing motive, Schmitt “opened the door”
to evidence that he was convicted of possessing the marijua-
na. See United States v. Miller, 673 F.3d 688, 697 (7th Cir. 2012)
(finding that a permissible purpose for admitting other-acts
evidence “becomes more relevant, and evidence tending to
prove [it] becomes more probative, when the defense actual-
ly works to deny [it], joining the issue by contesting it”);
United States v. Douglas, 408 F.3d 922, 929 (7th Cir. 2005)
(“When a defendant ‘opens the door’ … by offering … tes-
timony inconsistent with the facts underlying an earlier con-
viction, the government may inquire into the details of the
conviction.”); see also United States v. Senffner, 280 F.3d 755,
763 (7th Cir. 2002) (defendant opened the door when he in-
troduced misleading evidence and the government was al-
lowed to rebut it). Before admitting the evidence of Schmitt’s
conviction, the trial judge considered the fact that defense
counsel planned to highlight Wyatt’s admissions in his clos-
ing argument, a fact that strengthened the government’s case
for bringing in the convictions. See Manuel v. City of Chicago,
335 F.3d 592, 597 (7th Cir. 2003) (noting that after the door is
opened, the district court must “weigh the need for and val-
ue of curative admissibility of previously inadmissible evi-
dence against … prejudice”). The district court did not err in
No. 13-2894 21
admitting evidence that Schmitt was convicted of possessing
the drugs in his home in light of Schmitt’s attempt to deny
that he owned the drugs and therefore had a motive to have
the firearm. United States v. Anifowoshe, 307 F.3d 643, 649 (7th
Cir. 2002) (“[W]hen a party questions a witness on a subject,
… the party cannot complain on appeal if the opposing par-
ty subsequently introduces evidence on the same subject.”).
Of course, the government is not free to introduce all
sorts of evidence simply because the defense opened the
door to one piece of evidence. Defense counsel did not open
the door to evidence of who possessed the methampheta-
mine in the house. As we mentioned, Wyatt’s admission to
possessing those drugs came out during the government’s
direct examination. So the government was in no position to
cure a problem that its own witness created on direct exami-
nation by impeaching the witness with Schmitt’s conviction
for the methamphetamine. That would be extremely preju-
dicial to Schmitt, since he was not the one testifying and did
not open the door to that evidence. See Fed. R. Evid. 609 (al-
lowing the government to impeach a witness by evidence of
a criminal conviction, but subject to Rule 403). The defense,
through its questioning of Wyatt, contested motive and
made evidence going to that issue more probative. But the
defense’s questioning did not make the issue of who pos-
sessed the user quantity of methamphetamine that was
found in Schmitt’s home any more relevant. Since infor-
mation that Schmitt was convicted of possessing the meth-
amphetamine was part of the conviction record, but was not
relevant for any purpose other than to impeach the govern-
ment’s witness, the district court should have redacted the
portion of the conviction record pertaining to the metham-
phetamine, or simply allowed the government to read the
22 No. 13-2894
relevant portion of the conviction into the record. But the
prosecution’s case would not have been “significantly less
persuasive had the improper evidence been excluded.”
Loughry, 660 F.3d at 975. There was already ample evidence
before the jury to suggest that Schmitt was a drug dealer,
which could lead a reasonable juror to infer that he had a
reason to have a firearm. Being a user of drugs does not nec-
essarily carry the same connotation, so removing the addi-
tional evidence that Schmitt used methamphetamine and
pills would not have made the government’s case that he
possessed the firearm “significantly less persuasive.” So we
find that the error in admitting it was harmless.
C. No Error in Schmitt’s Sentence
Schmitt’s final argument is that the district court erred in
determining his offense level for sentencing purposes. Our
review of the district court’s application of sentencing guide-
lines is de novo, but we review for clear error when the ap-
plication of a sentencing guideline is based on factual find-
ings. United States v. Meece, 580 F.3d 616, 620 (7th Cir. 2009).
Schmitt argues that the district court erred in applying a
four-level enhancement to his offense level under United
States Sentencing Guideline § 2K2.1(b)(6)(B) because the gun
was not used or possessed “in connection with” another fel-
ony offense because the firearm was only in his home for a
day and was not readily accessible in the basement. “Review
of a district court’s sentencing enhancement under U.S.S.G. §
2K2.1(b)(6) is a mixed question of fact and law that we re-
view for clear error.” Id. at 620-21 (quoting United States v.
Markovitch, 442 F.3d 1029, 1031 (7th Cir. 2006) (internal alter-
ations omitted)).
No. 13-2894 23
United States Sentencing Guideline § 2K2.1(b)(6)(B) calls
for a four-point enhancement to a defendant’s base offense
level if the defendant “[u]sed or possessed any firearm or
ammunition in connection with another felony offense; or
possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be used
or possessed in connection with another felony offense.”
U.S.S.G. § 2K2.1(b)(6)(B). The second clause of the provision
refers to a defendant’s actions which facilitate another per-
son’s commission of a felony offense, see United States v.
Lang, 537 F.3d 718, 721 (7th Cir. 2008), which is not at issue
here. So we are left to consider whether Schmitt used or pos-
sessed the AR-15 assault rifle in connection with another fel-
ony offense.
There are two ways to approach this question. The en-
hancement would be proper if Schmitt “used or possessed”
the firearm in connection with (1) his general drug dealing
activities in his home or (2) the purchase of the firearm,
which he allegedly bought with drugs. Because we find that
Schmitt possessed the gun in connection with the drug deal
he allegedly executed to buy the firearm, we need not decide
whether the firearm was close enough in proximity to the
drugs or in a readily accessible place sufficient to raise the
inference that Schmitt had the firearm “in connection with”
his general drug dealing activities. See U.S.S.G. §
2K2.1(b)(6)(B), application note 14 (clarifying that the subsec-
tion applies “in the case of a drug trafficking offense in
which a firearm is found in close proximity to drugs, drug-
manufacturing materials, or drug paraphernalia”).
24 No. 13-2894
The district court did not clearly err in applying the en-
hancement because the preponderance of the evidence sup-
ported a finding that Schmitt possessed the firearm in con-
nection with another felony offense, namely selling drugs to
obtain the firearm. There was unrebutted evidence that
Schmitt intentionally purchased the firearm in exchange for
cash and methamphetamine. While that conduct does not
constitute “use” under the provision, see Lang, 537 F.3d at
720-21 (finding that exchanging a gun for drugs was proper-
ly characterized as “use” of firearm for purposes of §
2K2.1(b)(6)(B) enhancement, but clarifying that buyer of gun
does not “use” the firearm in conducting the transaction),
the district court did not err in finding Schmitt’s actions con-
stituted “possession” of the firearm in connection with a fel-
ony offense.
We have previously looked to 18 U.S.C. § 924(c)(1) to
guide our understanding of § 2K2.1(b)(6)(B), see Lang, 537
F.3d at 720 (to define “use”); Wyatt, 102 F.3d at 247 (to define
“in connection with”), and it is similarly illustrative here.
That statute prescribes an increased penalty for “any person
… who, in furtherance of” a drug trafficking crime or crime
of violence “possesses a firearm.” 18 U.S.C. § 924(c)(1). In
that context, we have said that “when a defendant receives a
gun for drugs, he takes possession of the firearm in a way
that furthers, advances, or helps forward the distribution of
drugs.” United States v. Doody, 600 F.3d 752, 755 (7th Cir.
2010) (internal quotations and alterations omitted). So too
here. When Schmitt exchanged the gun for drugs, he took
control of it in a way that was intentionally related to the
drug trafficking offense. See Wyatt, 102 F.3d at 247 (the gov-
ernment must only prove “by a preponderance of the evi-
dence that the firearm served some purpose with respect to
No. 13-2894 25
the felonious conduct” to meet the provision’s “in connec-
tion with” requirement); see also Smith v. United States, 508
U.S. 223, 224 (1993) (interpreting § 924(c)(1)’s “in relation to”
language to require that the firearm’s presence “cannot be
the result of accident or coincidence”). The evidence sug-
gests that Schmitt’s entire purpose in meeting with
Hutchinson and his friend was to purchase the firearm, so
the firearm’s presence was not “merely coincidental to [felo-
nious] conduct.” See Wyatt, 102 F.3d at 247. Schmitt’s sale of
illicit drugs facilitated his purchase and possession of the
AR-15 rifle, and we cannot say that the court’s determination
that the enhancement applied was clearly erroneous.
Schmitt ends with his argument that the district court
erred in rejecting his request for a two-level sentence reduc-
tion for accepting responsibility. Schmitt fails to meet his
burden of showing that the district court’s decision was er-
roneous. See Meece, 580 F.3d at 620-21. In asking for leniency,
Schmitt admitted at sentencing that he possessed the gun and
used drugs, and suggested that he only went to trial because
the government did not give him a good plea deal. Though
it is to Schmitt’s credit that he admitted to some of his ac-
tions, “[o]rdinarily a defendant who chooses to go to trial
and force the government to prove his guilt is not eligible to
receive a sentence reduction for acceptance of responsibil-
ity.” United States v. Williams, 202 F.3d 959, 962 (7th Cir.
2000). We see no reason to treat this as an extraordinary case.
See id. (finding that the “Guidelines contemplate an excep-
tion for defendants who proceed to trial solely to challenge
… the constitutionality of a statute” or other question of
law). Schmitt’s admission was too little too late and the court
did not err in denying his request for a reduction based on
acceptance of responsibility. See U.S.S.G. § 3E1.1, application
26 No. 13-2894
note 1(H) (noting that a factor in determining if defendant
qualifies for the reduction is “the timeliness of the defend-
ant’s conduct in manifesting the acceptance of responsibil-
ity”).
III. CONCLUSION
Kenneth Schmitt’s conviction and sentence are AFFIRMED.