United States v. James, Louis ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1411
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
LOUIS JAMES,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 20025—Michael P. McCuskey, Chief Judge.
____________
ARGUED NOVEMBER 9, 2005—DECIDED SEPTEMBER 22, 2006
____________
Before POSNER, ROVNER and WOOD, Circuit Judges.
ROVNER, Circuit Judge. Following a jury trial, Louis
James was convicted of possession of more than fifty grams
of crack cocaine (Count I), possession of and carrying a
firearm in furtherance of a drug trafficking crime (Count
II), and possession of a firearm by a felon (Count III). He
was sentenced to 360 months’ imprisonment. He challenges
the sufficiency of the evidence on the carrying prong of
Count II, complains of a number of errors in the jury
instructions, and charges that the admission of certain
“other bad acts” evidence unfairly prejudiced him. We
affirm.
2 No. 05-1411
I.
In the fall of 2002, Louis James met Bradley Collier, a
Decatur-area drug dealer, when both were living at a local
motel. Collier learned from others at the motel that James
was selling cocaine. Collier began to buy crack cocaine from
James, at first in small quantities but later in larger
quantities. At times, Collier paid cash for the drugs, and at
other times, James fronted the cocaine to him. Collier
typically resold the drugs at a profit, earning several
hundred dollars per day at this trade. This arrangement
continued until January 2004, when Collier moved into
James’ home at 1061 East William Street in Decatur
(hereafter the “William Street house”). James lived there
with his girlfriend, Tiara Woods. During Collier’s two- to
three-week stay at the William Street house, Collier and
James sold marijuana and manufactured and sold crack
cocaine. After Collier moved out, he continued to obtain
cocaine from James.
In early February 2004, Decatur police officers began
surveilling Collier after receiving a tip. On February 2nd,
they observed him visit James’ home where, they later
learned, he purchased an ounce of cocaine. Collier then sold
that ounce and returned to James’ home to purchase two
additional ounces of cocaine. After that second purchase,
Collier proceeded to the Decatur Best Western motel where
the officers then arrested him. The officers searched Col-
lier’s person, car, and motel room and recovered approxi-
mately seventy-four grams of cocaine, plastic baggies and a
digital scale. After the arrest, the officers returned to the
William Street house to conduct further surveillance. They
saw James exit the house with two duffel bags and three
dogs, all of which he loaded into his car. The officers
followed James as he drove in an evasive manner to a house
at 456 East Johnson Street (hereafter the “Johnson Street
house”). James stayed at the Johnson Street house for
approximately thirty minutes, and then drove to two
No. 05-1411 3
separate residences, staying at each for less than half an
hour. James returned to the Johnson Street house for a few
minutes and then proceeded to an alley. In the alley, a man
entered James’ car and exited again a minute later. After
the man drove away, the officers stopped him and recovered
a small amount of cocaine and a cell phone that had been
used to call James shortly before the rendezvous in the
alley.
The officers conducted a traffic stop of James and recov-
ered $100 in cash, two cell phones and a key to the William
Street house. Based on the arrest of Collier, the officers
obtained a search warrant for the William Street house,
where they discovered many items related to drug traffick-
ing. They seized a rock of crack cocaine, marijuana, plastic
baggies, two digital scales, baking soda, two cell phones and
a stun gun. They also recovered two loaded shotguns and
one loaded .25 caliber pistol.
At roughly the same time, two Decatur police officers
approached the Johnson Street house and attempted to
obtain consent to search the house. Tiara Woods was in
the house with her aunt, Evita Boey, who resided at the
house. When the officers knocked on the door, Woods asked
who was knocking but did not open the door. One of the
officers could see into the house and he saw Woods pick up
a shoebox and carry it to the back of the house. After
several more minutes of knocking, Boey opened the door
and consented to a search of the house. During the search,
the officers found the shoebox in a bedroom at the back of
the house. Inside the shoebox was a pair of size 10 sneak-
ers. On top of the sneakers were a small scale, a Crown
Royal bag and a glove. Inside the glove was a loaded .25
caliber handgun. Collier, the main witness against James
at trial, testified that James owned four firearms, including
two rifles and two .25 caliber handguns. Inside the Crown
Royal bag and inside one of the shoes, the officers found a
Newport cigarette wrapper, several plastic baggies contain-
4 No. 05-1411
ing more than eighty grams of crack and fifty grams of
powder cocaine. James’ fingerprint was discovered on one
of the baggies of cocaine found inside the shoe. In addition
to the contents of the shoebox, the officers seized six ounces
of marijuana from a black bag in the living room and $2,375
in cash found in the pocket of a coat. In another pocket of
the same coat, the officers found an identification card for
Woods listing the William Street house as her address.
Following the searches, James and Woods moved to 1152
West Ash Street (hereafter the “Ash Street house”) in
Decatur. Throughout February and extending into early
March 2004, Collier continued to obtain crack cocaine
from James, who was manufacturing and distributing crack
from the Ash Street house. The Decatur police surveilled
the Ash Street house and on March 5, 2004, saw several
people leave the house in a gray car. The officers stopped
the car, in which James and Woods were passengers. The
officers searched the car and seized $345 in cash and a
small amount of marijuana from the floorboard under
James’ seat. They then searched the Ash Street house,
recovering a glass dish with white residue, plastic baggies,
baking soda, a Newport cigarette box containing marijuana
and a digital scale. From a dryer vent on the outside of the
house, the officers recovered seven grams of crack and
twenty-seven grams of powder cocaine.
Prior to the start of trial, defense counsel requested that
the government disclose any evidence it intended to present
under Federal Rule of Evidence 404(b). Rule 404(b) pro-
vides:
Evidence of other crimes, wrongs, or acts is not admissi-
ble to prove the character of a person in order to show
action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided
No. 05-1411 5
that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance
of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of
any such evidence it intends to introduce at trial.
Fed. R. Evid. 404(b). The government then notified the
defense that it intended to introduce, among other things,
evidence from the search of the Ash Street house and
evidence seized during the traffic stop of James that same
day. Unfortunately, the government informed the court that
this evidence was seized on February 10, 2004, only a week
after the crimes that were charged in the indictment, and
the government portrayed this evidence as intricately
related to the crime charged. In fact, the traffic stop and
search had taken place on March 4, 2004, more than a
month after the offense charged in the indictment. Without
knowing about the error in the date, the court ruled that
the drugs, drug paraphernalia and cash seized from Ash
Street and from the contemporaneous traffic stop were
admissible as evidence intricately related to the crime
charged. No one noticed the error in the date until shortly
before the trial commenced. On the morning the trial began,
defense counsel filed a motion to exclude the evidence
seized on March 4th on the ground that there was insuffi-
cient foundation for its admission. The government in-
formed the court that it had mistakenly represented in its
previous filing that the evidence was seized on February
10th but maintained that the court should still find that the
evidence was intricately related to the charged conduct. The
court denied the defense motion to exclude the March 4th
evidence because the motion was untimely, not the result of
surprise, and not supported by either fact or law. As we
noted earlier, the jury returned a guilty verdict on all three
counts. James appeals.
6 No. 05-1411
II.
On appeal, James contends that the district court should
have ordered a judgment of acquittal on the “carrying” part
of Count II because there was no evidence that he trans-
ported firearms at any time. He takes issue with the district
court’s wording of the “no adverse inference” jury instruc-
tion. He also maintains that the court erred by denying him
jury instructions related to “mere presence” and “mere
association.” Finally, he charges that the evidence seized on
March 4th should not have been admitted because it was
not intricately related to the charged conduct.
A.
We begin with James’ claim that the district court should
have granted his motion for a judgment of acquittal on the
charge of carrying a firearm in relation to a drug trafficking
crime. We review the district court’s denial of a motion for
judgment of acquittal de novo. United States v. Jones, 371
F.3d 363, 365 (7th Cir. 2004); United States v. O’Hara, 301
F.3d 563, 569 (7th Cir. 2002). Such a motion should be
granted only when the evidence is insufficient to sustain
the conviction. O’Hara, 301 F.3d at 569. In reviewing the
sufficiency of the evidence, we view the evidence in the light
most favorable to the prosecution and overturn a conviction
only if the record contains no evidence from which a
rational jury could have returned a verdict of guilty.
O’Hara, 301 F.3d at 569-70.
The indictment charged that James knowingly carried
and possessed a firearm in furtherance of a drug trafficking
crime. James does not dispute that the evidence is sufficient
to prove he possessed a firearm in relation to a drug
trafficking crime, but argues that there is nothing more
than speculation in the record to support a charge
of carrying. In defining the term “carry,” we have turned to
the ordinary, dictionary definition of the word and took
No. 05-1411 7
“carry” to mean “to move while supporting: TRANSPORT.”
United States v. Molina, 102 F.3d 928, 930 (7th Cir. 1996)
(citing United States v. Baker, 78 F.3d 1241, 1247 (7th Cir.
1996)). We emphasized that something more than pos-
session of the firearm in relation to the drug trafficking
crime was required to demonstrate carrying. Baker, 78 F.3d
at 1247. For example, a defendant who transports a gun on
his person or within his reach, available for immediate use,
during and in relation to a drug-trafficking crime meets the
definition. Baker, 78 F.3d at 1241. Circumstantial evidence
could suffice to support the charge, and the government
argues here that the circumstantial evidence was compel-
ling, relying on Young v. United States, 124 F.3d 794 (7th
Cir. 1997).
The evidence regarding the guns was thin. Collier
testified that James owned four firearms, two .25 caliber
pistols and two twelve gauge shotguns. Two shotguns and
a pistol were found at the William Street house where
Collier briefly resided with James. A second pistol was
recovered from the Johnson Street house, the home of Evita
Boey. Boey was the aunt of James’ girlfriend, Tiara Woods.
That gun was found in a shoebox along with a bag of
cocaine that was marked with James’ fingerprint. This was
clearly enough evidence to demonstrate that James pos-
sessed a firearm in furtherance of a drug trafficking crime
but we doubt it was enough to demonstrate carrying or
transportation of the gun in relation to a crime of drug
trafficking. Collier never testified where or when he saw the
guns that James owned. Collier had been to Boey’s Johnson
Street house as well as the William Street house and thus
could have seen James with the firearms in either location.
There was no evidence that the firearm had been in one
place and then was found somewhere else. When James
objected at trial to a jury instruction on carrying, the
government represented that there was direct testimony
that James possessed the firearm found at the Johnson
8 No. 05-1411
Street house at his William Street residence. With that
understanding, the court allowed the instruction on carry-
ing to be given because the court believed there was
testimony that the gun had been in one place and then was
found in another place. But the prosecutor was mistaken
and inadvertently misled the court. In fact, Collier had
never testified where he saw the guns that James pos-
sessed. There was no direct testimony that James possessed
all of the guns at the William Street house. There was
literally no evidence that any of the guns had ever been
moved or had ever changed location. There was no evidence
that James ever carried the gun on his person or in his car
while engaged in drug trafficking. The evidence showed
only that he stored the guns near drugs.
The government makes much of the fact that the gun was
found in a shoebox with drugs and that it did not appear at
the Johnson Street house by magic. The same is surely true
of the guns found at William Street; they too did not appear
there by magic. Yet the government makes no argument
about those guns being carried, perhaps acknowledging that
possession is not the same as carrying. To prove the charge
of carrying, the gun must be transported in connection with
a drug trafficking crime. Nothing in this record points to
anything more than possession in connection with a drug
trafficking crime. In Young and in the other carrying cases,
there was evidence that the defendant either carried the
gun on his person or close at hand in his car or moved the
gun from one place to another, while engaged in a drug
trafficking crime. See Young, 124 F.3d at 801 (carrying
requirement met where Young moved the gun from his
apartment to his car and then transported the gun and
drugs in the car to the delivery location); Molina, 102 F.3d
at 932 (carrying requirement met where the defendant was
transporting drugs and a gun in a secret compartment
hidden in his car); Baker, 78 F.3d at 1247-48 (carrying
requirement met where gun and crack cocaine were found
No. 05-1411 9
under driver’s seat of a car being driven by the defendant).
The district court’s initial instinct that there was no
evidence of carrying was correct. The instruction should not
have been given.
That said, the error was harmless. As we noted earlier,
James does not contest the sufficiency of the evidence that
he possessed a firearm in furtherance of a drug trafficking
crime. “The general rule is that when a jury returns a guilty
verdict on an indictment charging several acts in
the conjunctive, as [the defendant’s] indictment did, the
verdict stands if the evidence is sufficient with respect to
any one of the acts charged.” Turner v. United States, 396
U.S. 398, 420 (1970). We have applied this rule to multiple
acts charged under section 924(c). See United States v.
Jones, 418 F.3d 726, 730 (7th Cir.), cert. denied, 126 S. Ct.
817 (2005). The evidence was sufficient as to the possession
prong of section 924(c) and thus the conviction will stand.
B.
James next argues that the district court erred when it
refused to instruct the jury that it could not find him guilty
if he was merely present at a crime scene or if he was
merely associated with a person who committed a crime.
These are referred to respectively as “mere presence” and
“mere association” instructions. According to James, his
main theory of defense was that, although he lived with and
associated with Collier, a cocaine dealer, James himself sold
only marijuana. He also relies on his association with Tiara
Woods, who he contends possessed the shoebox containing
cocaine at her aunt’s house, as an example of his mere
association with wrong-doers. The district court declined to
give these instructions because, having heard the evidence
and defense counsel’s opening statement, the court was
convinced that the instructions would be confusing and
unsupported by the evidence. The court also found that
10 No. 05-1411
these theories of defense were not presented at the outset
of the case and would not be justified based on the evidence
or any defense theory that had been presented up to that
time. The court made this ruling at the close of evidence
and shortly before closing arguments.
We review a district court’s refusal to give a tendered jury
instruction de novo.1 United States v. Fiedeke, 384 F.3d 407,
410 (7th Cir. 2004), cert. denied, 543 U.S. 1079 (2005). A
defendant is entitled to have the jury consider any theory
of defense that is supported by law and fact. Fiedeke, 384
F.3d at 410. That does not mean a defendant is entitled to
a particular jury instruction, however.
1
The government argues that James forfeited this argument
by failing to properly preserve it in the district court and suggests
that we should review this argument for plain error only. Our
review of the record, however, indicates that defense counsel
argued in a timely and specific fashion in favor of the instructions,
citing both the law and the facts in support of the instruction.
Indeed, the government agreed during the extensive argument
that some form of the mere presence instruction would be
appropriate, preferring to err on the side of caution because this
was a theory of defense instruction. After vigorous and complete
argument, the court ruled definitively that it would give neither
a mere presence nor a mere association instruction. Federal Rule
of Criminal Procedure 30(d) requires only that a party who objects
to a failure to give a requested instruction must inform the court
of the specific objection and the grounds for the objection before
the jury retires to deliberate. It is enough that defense counsel
alerted the court and the opposing party to the specific grounds
for the objection in a timely fashion. United States v. Linwood, 142
F.3d 418, 422 (7th Cir. 1998). Defense counsel did so at length.
There is no utility in requiring defense counsel to object again
after the court has made its final ruling. Cf. Wilson v. Williams,
182 F.3d 562, 566-67 (7th Cir. 1999) (en banc) (once a court has
ruled definitively in pretrial proceedings, there is no utility in
requiring another objection during trial). The issue was properly
preserved.
No. 05-1411 11
To be entitled to a particular theory of defense instruc-
tion, the defendant must show the following: 1) the
instruction is a correct statement of the law, 2) the
evidence in the case supports the theory of defense,
3) that theory is not already part of the charge, and 4) a
failure to provide the instruction would deny a fair
trial.
Fiedeke, 384 F.3d at 410. James’ proposed instructions were
correct statements of the law and, arguably, there was some
evidence that James was merely present or merely associ-
ated with other persons who were engaged in criminal
activity, namely Collier and Woods. However, this theory of
defense was intrinsically part of the charge and the failure
to provide these instructions did not deny James a fair trial.
The court instructed the members of the jury that in order
to find James guilty of any of the three counts, they must
find that he acted knowingly. The court explained that a
defendant acts knowingly when he “realized what he was
doing and was aware of the nature of his conduct and did
not act through ignorance, mistake, or accident.” Tr. at 591.
For the possession with intent to distribute charge, the
court explained that “[p]ossession of an object is the ability
to control it. Possession may exist even when a person is
not in physical contact with the object but knowingly has
the power and intention to exercise direction and control
over it, either directly or through others.” Tr. at 592. The
instruction on the other counts also required a finding of
knowledge on James’ part. Thus, the jury could not have
found James guilty if it believed that he was merely present
or merely associated with persons committing these crimes.
The “mere association” and “mere presence” instructions are
designed to inform the jury that guilt should not follow from
association with those who commit crimes or from presence
at the scene of a crime. United States v. Scott, 267 F.3d 729,
738 (7th Cir. 2001). Rather, guilt may be found only when
the defendant knowingly participated in the criminal
12 No. 05-1411
activity. Scott, 267 F.3d at 738. The instructions here
adequately apprised the jury of this principle and therefore
it was not error to refuse to give the “mere presence” and
“mere association” instructions.
C.
The court instructed the jury, “The defendant has an
absolute right not to testify. The fact that the defendant did
not testify should not be considered by you in any way in
arriving at your verdict.” Tr. at 590. At the jury instruction
conference, defense counsel informed the court that she
would prefer that the instruction refer to “a defendant”
rather than “the defendant” because the latter called
attention specifically to James. The government agreed to
defense counsel’s wording but the court declined to use it,
noting that “a defendant” was a phrase used only when
there were multiple defendants. On appeal, James argues
that the district court violated James’ right to a complete
Fifth Amendment instruction when it denied the request
that the jury be informed that the Fifth Amendment
privilege applies to all defendants rather than to James in
particular. The precise wording of jury instructions is a
matter left to the discretion of the district court. Scott, 267
F.3d at 738. The notion that the jury somehow concluded
from the court’s use of the phrase “the defendant” that
James was being singled out for the right not to testify is a
frivolous contention. We can think of no reason why the
court would be required to instruct the jury more generally
about the rights of other persons not on trial. Nothing in
the wording drew unusual attention to James. The instruc-
tion was a correct statement of the law and the wording was
certainly not an abuse of the district court’s discretion. See
Carter v. Kentucky, 450 U.S. 288, 300 (1981) (the Fifth
Amendment requires that a criminal trial judge must give a
“no-adverse-inference” jury instruction when requested by
a defendant to do so).
No. 05-1411 13
D.
Finally, James argues that the district court should not
have admitted the evidence that was collected more
than a month after the offense for which he was indicted,
maintaining that this evidence was not intricately related to
the conduct charged and was not admissible under Federal
Rule of Evidence 404(b). James is referring, of course, to the
evidence seized from his person, his car, and the Ash Street
house on March 4, 2004. This evidence consisted of cash,
marijuana, a glass cup with white residue, baking soda,
digital scales and approximately thirty-seven grams of
cocaine. The indictment specified that all of the charged
conduct occurred “on or about February 2, 2004.” As we
noted earlier, prior to trial, defense counsel requested notice
of any Rule 404(b) evidence the government intended to
introduce at trial. The government responded that it
intended to introduce evidence seized from the Ash Street
residence and the traffic stop, but mistakenly told the court
that these searches were conducted on February 10th,
approximately one week after the events charged in the
indictment. In fact, this evidence was seized on March 4th,
more than a month after the February 2nd events. The
government contended that this evidence was intricately
related to the charged conduct. The court, unaware of the
date error, “agree[d] that evidence obtained by law enforce-
ment officers between February 2 and 10, 2004, is either
direct evidence of the crime charged or evidence intri-
cately related to those offenses.” R. 29, at 3-4. The court
therefore found the evidence admissible. Defense counsel
later sought to exclude this evidence on the ground that
there was insufficient foundation for its admission. After
learning that the evidence was seized more than a
month after the events charged in the indictment, the court
nonetheless rejected the motion because it was untimely,
not the result of surprise, and not supported by either fact
or law.
14 No. 05-1411
The government is correct that James did not object to the
admission of this evidence on Rule 404(b) grounds until this
appeal, and James has therefore forfeited this argument;
our review is thus limited to the correction of plain error.
United States v. Pree, 408 F.3d 855, 868 (7th Cir. 2005).
Before we may correct an error not raised at trial, we must
find (1) that there is error, (2) that it is plain, and (3) that
it affects substantial rights. Pree, 408 F.3d at 868-69. Once
these three conditions have been met, we may exercise our
discretion to correct the error if it seriously affects the
fairness, integrity, or public reputation of judicial proceed-
ings. Pree, 408 F.3d at 869. The defendant bears the burden
of establishing that the error affected substantial rights, by
establishing that the outcome probably would have been
different without the error. Id.Generally, evidence of other bad acts is not admissible
to show a defendant’s propensity to commit a crime, nor
to show that he or she acted in conformity with that
propensity on the occasion in question. United States v.
Jones, 389 F.3d 753, 757 (7th Cir. 2004), vacated, 125 S. Ct.
2948, reinstated in part, 2005 WL 2456605 (7th Cir. Oct. 6,
2005) (reaffirming the decision that rejected challenges to
conviction but vacating and remanding the sentence for
resentencing in conformity with Booker); Fed. R. Evid.
404(b). This evidence may, however, be admitted under
Rule 404(b) to establish proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident. Jones, 389 F.3d at 756; Fed. R. Evid.
404(b). If the evidence of other crimes or bad acts provides
direct or inextricably intertwined evidence (often referred
to as intricately related evidence) of the acts charged, it is
not subject to the constraints of Rule 404(b). United States
v. Lane, 323 F.3d 568, 579 (7th Cir. 2003). Although
intricately related evidence need not satisfy the constraints
of Rule 404(b), it must satisfy the balancing test of Rule
403. Lane, 323 F.3d at 580. The government maintains that
No. 05-1411 15
the evidence collected on March 4th was intricately related
to the charged conduct and that it corroborated the testi-
mony of a government witness. Under the “intricately
related evidence” doctrine, the admissibility of uncharged
conduct turns on whether the evidence is properly admitted
to provide the jury with a complete story of the crime on
trial, whether its absence would create a chronological or
conceptual void in the story of the crime, or whether it is so
blended or connected that it incidentally involves, explains
the circumstances surrounding, or tends to prove any
element of the charged crime. Lane, 323 F.3d at 580; United
States v. Harris, 271 F.3d 690, 705 (7th Cir. 2001); United
States v. Ryan, 213 F.3d 347, 350 (7th Cir. 2000); United
States v. Gibson, 170 F.3d 673, 681 (7th Cir. 1999); United
States v. Akinrinade, 61 F.3d 1279, 1285-86 (7th Cir. 1995);
United States v. Spaeni, 60 F.3d 313, 316 (7th Cir. 1995);
United States v. Ramirez, 45 F.3d 1096, 1102 (7th Cir.
1995); United States v. Hargrove, 929 F.3d 316, 320 (7th
Cir. 1991).
According to the government, the evidence seized on
March 4, 2004, provided the jury with a complete story of
the charged offenses and a chronological unfolding of the
events that led to the indictment. This argument is puzzling
at best. James was charged with possession with intent to
deliver crack cocaine, possession of a firearm in furtherance
of the crack cocaine offense, and possession of a firearm by
a felon. All of these offenses were complete as of February
2, 2004, the date charged in the indictment. There were no
chronological gaps to explain, no conceptual voids in the
story that needed to be filled. The story was complete on
February 2, 2004; the March 4th evidence did nothing to
explain the circumstances of the charged offenses nor did it
tend to prove any element of the charged conduct. The
events of March 4, 2004, were not blended with or con-
nected to the crimes charged; instead, the March 4th
evidence could have formed the basis of a separate count
16 No. 05-1411
against James that the government apparently chose not to
pursue. The only link between the March 4th evidence and
the charged offenses was propensity. In other words, the
evidence seized on March 4th was relevant to the charged
conduct only if the jury was inclined to believe that a person
possessing cocaine in March was likely to have possessed it
in February as well, that a person who broke the law in
March was likely to have broken the same law in February.
This is pure propensity evidence. Moreover, the March 4th
evidence does not fall within one of the exceptions to the
404(b) exclusion.
The cases on which the government relies are inapposite.
In Lane, we affirmed the admission of evidence related
to a number of debts the defendant held in order to ex-
plain his financial situation in a case where the defen-
dant was charged with defrauding banks by obtaining loans
without revealing his true financial situation. 323 F.3d at
580-81. In Ryan, the defendant was charged with bank
fraud, a specific intent crime, and we therefore upheld the
admission of evidence that the defendant failed to report
kickbacks he received fraudulently on his tax returns
because this failure demonstrated that the defendant was
aware his conduct was wrongful. 213 F.3d at 350. In Harris,
we affirmed the admission of evidence of prior drug transac-
tions between the defendant and his buyer because they
explained the defendant’s modus operandi, including his
use of code language that would have been confusing to the
jury without the context of these prior transactions. 271
F.3d at 705. Akinrinade was a drug conspiracy case where
the other bad acts evidence consisted of acts committed
during the early days of the conspiracy, which fell outside
the period specified in the indictment. This evidence was
admitted to show the relationships between the conspira-
tors and their methods of operating. 61 F.3d at 1286. In
Ramirez, we agreed that the admission of marijuana seized
from the defendant in a cocaine conspiracy case was
No. 05-1411 17
relevant to rebut his defense that he was an innocent
bystander rather than a member of the conspiracy. 45 F.3d
at 1102-03. And in Hargrove, we affirmed the admission of
testimony that, at the time of the defendant’s arrest, which
occurred ten months after the charged drug conspiracy, the
arresting officers found a large amount of cash and pagers
in the defendant’s truck, and that a drug-sniffing dog had
alerted to two areas of the truck although no drugs were
found. In each case, the interrelated nature of the evidence
admitted to the conduct charged is self-evident. There is no
such connection here.
The government’s final argument in support of the
admission of this evidence is that it corroborated Collier’s
testimony that James lived at and sold cocaine from the Ash
Street house. As such, the evidence was relevant to Collier’s
veracity. This argument begs the question, however,
because Collier’s testimony that James was selling drugs
out of the Ash Street house a month after the charged
offense suffers the same infirmities as the physical evidence
collected from the Ash Street house on March 4th. It was,
in short, error to admit evidence of a separate, similar crime
that served no purpose other than to show that James had
a propensity to engage in drug trafficking crimes. But we
are reviewing for plain error only and James cannot meet
his burden of establishing that the error affected substan-
tial rights. To meet that burden he must demonstrate that
the outcome probably would have been different without the
error. Pree, 408 F.3d at 869. We cannot say that the jury
would have reached a different conclusion if it had not been
exposed to the March 4th evidence. Unlike the gun evi-
dence, the evidence against James on the drug trafficking
charge was quite strong. The jury almost surely would have
reached the same conclusion given the fingerprint on the
bag of cocaine found at Boey’s house after James visited
there, Collier’s detailed testimony about his drug trafficking
activities with James, and the evidence that police seized
18 No. 05-1411
cocaine from a person who met with James for one
minute in an alleyway. Moreover, the court instructed the
jury on the limited use of evidence of other acts not charged
in the indictment. The court informed the jury that it could
consider these other acts “only on the question of the
defendant’s knowledge, intent, and absence of mistake,” and
that it could not consider the acts for any other purpose.
The court continued, “Acts other than those charged in the
indictment . . . [are] not evidence of the defendant’s guilt of
any crime for which the defendant is now charged.” Tr. at
590. We assume the jury followed these instructions, United
States v. Della Rose, 403 F.3d 891, 905 (7th Cir. 2005), cert.
denied, 126 S. Ct. 2044 (2006), thus lessening the impact of
the erroneously admitted evidence. Because James failed to
establish that the admission of the March 4th evidence
affected substantial rights, Pree, 408 F.3d at 868-69, we
affirm.
III.
For all of the reasons stated above, the judgment of the
district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-22-06