United States v. Taylor, Tyreese R. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4112
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYREESE R. TAYLOR,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 CR 105—Barbara B. Crabb, Chief Judge.
____________
No. 07-1939
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAMUEL R. HOGSETT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05-30196-WDS—William D. Stiehl, Judge.
____________
ARGUED JANUARY 24, 2008—DECIDED APRIL 3, 2008
____________
2 Nos. 06-4112, 07-1939
Before POSNER, RIPPLE, and TINDER, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for deci-
sion two appeals presenting overlapping issues under
Fed. R. Evid. 404(b) (admissibility of evidence of previous
crimes or other prior “bad acts”). Tyreese Taylor and
Samuel Hogsett were convicted in separate trials of
distributing crack (Hogsett was also convicted of a gun
offense) and sentenced to 240 and 355 months in prison,
respectively.
Rule 404(b) forbids the use of prior convictions or other
evidence of bad acts to prove that the defendant has a
propensity to commit crimes. But it allows such evid-
ence to be presented (in the discretion of the trial judge,
balancing probative value against prejudice to the de-
fendant under Fed. R. Evid. 403) to prove other, material
facts, including criminal intent, identity, and absence of
mistake. Taylor’s lawyer told the judge before the trial
began that he was going to request an instruction that
would permit the jury to convict his client of the lesser
offense of possession of crack for personal use rather
than for sale. The judge ruled that the request opened the
door to the government’s presenting evidence of Taylor’s
prior conviction of possession of crack with intent to
distribute it. But after the lawyers’ opening statements
to the jury, Taylor’s lawyer withdrew the request for a
lesser-included instruction, and the judge told the pros-
ecutor that he could introduce evidence of prior bad acts,
to rebut an inference that Taylor possessed drugs only
for his personal use, only if the defendant opened the
door to such evidence in some other way during the trial.
The defendant did not do that.
Nos. 06-4112, 07-1939 3
The judge did allow the persons who had bought crack
from Taylor in transactions that he was accused in this case
of having made to testify that they knew from prior
dealings with him that he was indeed a crack dealer. That
evidence, like the prior conviction, related to his intent to
distribute crack rather than to possess it just for personal
use. He did not make an issue of intent, as we have just
seen, but the buyers’ evidence of prior dealings with
him also related to identity; the evidence explained
how they knew and thus could identify him. Although no
one questioned these witnesses’ ability to identify him as
the person from whom they had bought crack in the
transactions charged by the prosecution, we hesitate to
pronounce the admission of their testimony of prior
dealings with him a violation of Rule 404(b). The fact
that a defendant pleads not guilty does not provide
many clues to the specific attacks that he will mount
against the government’s case. Unless the government is
allowed to present some evidence about previous trans-
actions between the government’s witnesses and the
defendant, the transactions alleged in the government’s
current case could be challenged in the defendant’s
closing argument as unworthy of belief, especially since
the buyer witnesses would be criminals who might be
hoping for lenity by testifying for the government. It
would be too late for the government to attempt to re-
habilitate those witnesses. (We shall give another and
clearer example of this sandbagging concern when we
discuss Hogsett’s appeal.)
The evidence that Taylor was known to be a seller
of illegal drugs also explained why the govern-
ment’s informants had identified him as a potential
seller for a controlled buy and how they knew who he
4 Nos. 06-4112, 07-1939
was and what car he drove; the police officer who had
observed the drug scene, being outside the house in
which two of the three controlled buys took place, did not
see Taylor hand over the drugs. The buyers’ previous
knowledge about him related to the accuracy (hence
absence of mistake) of their testimony concerning the
controlled buys that provided crucial evidence for the
government’s case.
But clearly the judge should not have allowed the
officer who arrested Taylor to testify that he had recog-
nized him as a result of having known him “throughout
[the officer’s] career as a police officer and as a drug
and gang officer” (emphasis added). There was no doubt of
the identity of the arrested person.
The government offers two other reasons for the admis-
sion of this damaging testimony, which implied that
Taylor had a long history of drug and gang activity. First,
the officer had arrested him after observing illegal tinting
on his car windows and an illegal tinted cover on his
rear license plate. But the officer testified that he had not
made the decision to arrest for so trivial a traffic offense
until he recognized that it was Taylor’s car. He also
testified that he knew there was an outstanding warrant
for Taylor’s arrest (on what charge the jury was not told).
That evidence was at once irrelevant and damaging, as
was the officer’s testimony about his prior professional
knowledge of Taylor. It is not as if the government had to
try to justify the arrest on the basis not of the traffic of-
fenses but of suspicion that Taylor was a drug dealer.
Not only was the legitimacy of the arrest for the traffic
offenses not questioned; it was an issue for the judge
rather than for the jury to decide. United States v. McKinney,
919 F.2d 405, 414 (7th Cir. 1990); see Jones v. United States,
Nos. 06-4112, 07-1939 5
362 U.S. 257, 264 (1960); United States v. Nunez-Rios, 622
F.2d 1093, 1098-99 (2d Cir. 1980); Fed. R. Crim. P.
12(b)(3)(C).
The government appeals (in Hogsett’s case as well) to
the principle that bad-act evidence “inextricably inter-
twined” with admissible evidence may be admitted
without regard to the specific exceptions in Rule 404(b),
and argues that all the bad-act evidence in Taylor’s case
was of that character. Although many cases recite the
“inextricably intertwined” formula, see, e.g., United States
v. Luster, 480 F.3d 551, 556-57 (7th Cir. 2007), and cases
cited in United States v. Bowie, 232 F.3d 923, 927-28 (D.C.
Cir. 2000), it is unhelpfully vague. Courts do not agree on
whether it refers to evidence “intrinsic” to the charged
crime itself, in the sense of being evidence of the crime,
or whether though evidence of another crime it may
be introduced in order to “complete the story” of the
charged crime. As explained in the Bowie opinion, neither
formulation is satisfactory: to courts adopting the former,
“inextricably intertwined evidence is intrinsic, and evi-
dence is intrinsic if it is inextricably intertwined,” while
“the ‘complete the story’ definition of ‘inextricably inter-
twined’ threatens to override Rule 404(b). A defendant’s
bad act may be only tangentially related to the charged
crime, but it nevertheless could ‘complete the story’ or
‘incidentally involve’ the charged offense or ‘explain the
circumstances.’ If the prosecution’s evidence did not
‘explain’ or ‘incidentally involve’ the charged crime, it is
difficult to see how it could pass the minimal requirement
for admissibility that evidence be relevant. See Fed. R.
Evid. 401 and 402.” 232 F.3d at 928.
What is true, but irrelevant to this case, is that if a
defendant commits two criminal acts at the same time
6 Nos. 06-4112, 07-1939
and is charged with only one, the evidence of the charged
crime may unavoidably reveal the uncharged one, as in
Ignacio v. People of Territory of Guam, 413 F.2d 513, 519-20
(9th Cir. 1969), and United States v. Persico, 425 F.2d
1375, 1384 (2d Cir. 1970). In such a case—for example
where the defendant assaults a person in the course of
buying illegal drugs from him but is prosecuted only for
possessing drugs with intent to distribute them, or
where he commits an armed robbery but is charged
only with being a felon in possession—the evidence of
the “other” crime can’t be disentangled from the evidence
of the charged crime. Or if a defendant makes an issue of
his criminal intent, as Taylor initially did by his later-
abandoned request for an instruction on simple pos-
session, his previous activities may become relevant to
inferring his state of mind with regard to the current
charges. If in the past he possessed small quantities of
crack with intent to sell rather than merely to consume,
this would be some evidence that his current modest
inventory also was not just for his own consumption.
Moreover, as we said, the fact that a defendant’s buyers
had dealt with him previously could explain how they
were able to identify him, why they picked him for the
controlled buy, and why he was willing to deal with them.
But intent and absence of mistake are express excep-
tions to the Rule 404(b) bar; there is no need to spread the
fog of “inextricably intertwined” over them. Almost all
evidence admissible under the “inextricably interwoven”
doctrine is admissible under one of the specific excep-
tions in Rule 404(b), or under the judge-made “no confu-
sion” exception discussed later in this opinion. The objec-
tion to “inextricably interwoven” is that its vagueness
Nos. 06-4112, 07-1939 7
invites prosecutors to expand the exceptions to the rule
beyond the proper boundaries of the exceptions.
The arresting officer’s testimony about the real reason
for his arresting Taylor does not connect to any of the
exceptions. It was just a way of telling the jury that the
officer knew Taylor to have been a drug offender and
gang member for a long time and that at the time of the
arrest Taylor was a wanted criminal. But the violation of
Rule 404(b) was harmless because the evidence of Taylor’s
guilt was overwhelming. Two confidential informants
testified that they had bought crack from Taylor in con-
trolled buys set up by the police. A third witness saw
one of those drug deals taking place. The informants’
accounts were corroborated by a police officer, while
another officer testified that Taylor had had a bag of
crack in his possession when he was arrested. Taylor
called no witnesses of his own and offered no evidence
of innocence. No adverse inference can be drawn from his
failure to testify, but a defendant’s failure to present any
evidence at all can help support a finding of harmless
error. E.g., United States v. Martin, 391 F.3d 949, 955-56 (8th
Cir. 2004); Bond v. Oklahoma, 546 F.2d 1369, 1376-77 (10th
Cir. 1976).
Hogsett, our second appellant, was also arrested in his
car for a minor traffic offense. His passenger testified
that he’d told her they were on their way to “hit a lick”
when they were stopped. When asked at trial what that
meant, she said it meant that Hogsett was going to
sell drugs. That part of her testimony is admittedly rele-
vant to his intent with regard to the crack cocaine found in
the car. But she added that the reason she knew what “hit
a lick” means is that she had been with the defendant on
previous “licks.” Again the government invokes the
8 Nos. 06-4112, 07-1939
“inextricably intertwined” doctrine, and this time
decorates it with reference to the importance of filling
“conceptual void[s]” and tells us that “the proffered
evidence [how she knew what ‘hit a lick’ means] form[ed]
an integral part of the witness’s account of the circum-
stances surrounding the offenses of which the defendant
was indicted.” These windy formulas do no work. The
justification for asking the witness how she knew what
“hit a lick” means is that otherwise the defense lawyer
in his closing argument could have challenged the
accuracy of her definition of the term—could have said to
the jury how could she know what the term meant
when no foundation for her knowledge had been laid? It
would have been too late for the government to recall her
to the stand to answer the defense lawyer’s rhetorical
query. So the prosecutor’s asking her on direct examina-
tion how she knew was proper to show absence of mistake.
The list of permissible uses of bad-acts evidence in
Rule 404(b) is introduced by “such as,” and so is not
exhaustive. United States v. Cruz-Garcia, 344 F.3d 951, 955
(9th Cir. 2003); Udemba v. Nicoli, 237 F.3d 8, 15 (1st Cir.
2001); United States v. Miller, 895 F.2d 1431, 1435 (D.C. Cir.
1990). The aim of the rule is simply to keep from the jury
evidence that the defendant is prone to commit crimes
or is otherwise a bad person, Huddleston v. United States,
485 U.S. 681, 687-89 (1988), implying that the jury needn’t
worry overmuch about the strength of the government’s
evidence. No other use of prior crimes or other bad acts
is forbidden by the rule, and the draftsmen did not try
to list every possible other use.
This point is pertinent because a legitimate item to add
to the list, which does not have the vice of indefiniteness,
Nos. 06-4112, 07-1939 9
is the need to avoid confusing the jury. In both Taylor’s
and Hogsett’s cases, had no reason been given for the
arrests the jurors might be scratching their heads and
might even think that the police had been violating the
defendants’ rights, by arresting them without cause,
and maybe should be punished by an acquittal. But in
neither case was the legality of the arrest questioned. And
if it had been, the judge should simply have instructed
the jury that the arrest had been proper for reasons that
it should not concern itself with; for the legality of the
arrest (and hence of the seizure of the drugs found in
Hogsett’s car when he was arrested) was, as we have
noted, an issue for the judge rather than for the jury.
Hogsett raises an additional issue that is unrelated to
Rule 404(b). The defense learned before trial that the
passenger in Hogsett’s car—a key witness for the prosecu-
tion to whom we referred previously—had had outstand-
ing state warrants that had been quashed before the trial.
Hogsett’s lawyer wanted to cross-examine her about them
to see whether she might have thought that a federal
criminal investigator with whom she had dealt had
gotten them quashed, perhaps in implied exchange for
her testifying favorably to the prosecution. The judge
refused to permit this line of cross-examination after
conducting a hearing at which the witness testified that
she did not know why the warrants had been quashed;
the investigator testified that he had neither promised to
help her get them quashed nor done anything to get them
quashed, nor so much as hinted to her that he might help
her out with them; and the prosecutor assured the judge
on the record that the federal government had had no
involvement with the warrants.
The judge did not abuse his discretion in barring this
line of questioning. You are not permitted to cross-examine
10 Nos. 06-4112, 07-1939
a witness about a particular topic without a good-faith
belief that the answers will be helpful to your case, as
distinct from hoping that the question alone will insinuate
a helpful answer (“are you not testifying against the
defendant because you believe the prosecutor helped to
quash the state warrants against you?”). United States v.
Adames, 56 F.3d 737, 745 (7th Cir. 1995); United States v.
Guay, 108 F.3d 545, 552-53 (4th Cir. 1997). If there is an
objection at trial to a question asked on cross-examination,
on the ground that there is no good-faith basis for it, and
at a sidebar the judge so finds, he must sustain the ob-
jection. That in effect is what the judge did here, when the
hearing revealed the shot-in-the-dark nature of the pro-
posed cross-examination.
Taylor also raises an issue unrelated to Rule 404(b). He
was given the statutory mandatory minimum sentence
for possession with intent to distribute more than 50
grams of crack, 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and
argues that the statutory minimum works a denial of
equal protection. But he has given us no reason to reexam-
ine our decisions rejecting the argument. United States v.
Spencer, 160 F.3d 413, 413-14 (7th Cir. 1998); United States v.
Westbrook, 125 F.3d 996, 1010 (7th Cir. 1997); United States
v. Lawrence, 951 F.2d 715, 753-56 (7th Cir. 1991); see also
United States v. Garcia-Carrasquillo, 483 F.3d 124, 134 (1st
Cir. 2007); United States v. Burgos, 94 F.3d 849, 876-77 (4th
Cir. 1996) (en banc).
AFFIRMED.
USCA-02-C-0072—4-3-08