United States v. Roland Pulliam ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2162
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROLAND PULLIAM,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-cr-328 — Sara L. Ellis, Judge.
____________________
ARGUED MAY 20, 2020 — DECIDED SEPTEMBER 3, 2020
____________________
Before SYKES, Chief Judge, and RIPPLE and KANNE, Circuit
Judges.
KANNE, Circuit Judge. Roland Pulliam was arrested after
fleeing from two Chicago police officers. During the chase,
both officers saw a gun in Pulliam’s hand. Pulliam had previ-
ously been convicted of multiple felonies, making it a federal
crime for him to possess a gun. The government charged him
with possessing a firearm as a felon, 18 U.S.C. § 922(g)(1); Pul-
liam was convicted after a jury trial.
2 No. 19-2162
After Pulliam was sentenced, the Supreme Court decided
Rehaif v. United States, 139 S. Ct. 2191 (2019), which clarified
the elements of a § 922(g) conviction. Now, in addition to
proving that the defendant knew he possessed a firearm, the
government must also prove the defendant belonged to “the
relevant category of persons barred from possessing a fire-
arm.” Id. at 2200. This knowledge-of-status element was not
mentioned in the jury instructions at Pulliam’s trial.
Pulliam now argues that the erroneous jury instructions
and three evidentiary errors require the reversal of his convic-
tion. But none of these alleged errors call for the reversal of
Pulliam’s conviction, so we affirm.
I. BACKGROUND
In July 2015, Chicago Police Department Officers Victor
Alcazar and Jason Guziec responded to a dispatch call that
four black men were selling drugs near a fence a few blocks
from the officers’ location. Dispatch received this information
from two anonymous 911 callers: the first caller reported see-
ing two drug transactions, while the other observed the men
selling “something.” As the officers drove to the reported
sale, they noticed four black men standing together near a
fence in a McDonald’s parking lot. Officer Guziec parked the
car and both officers approached the men to conduct a field
interview.
The four men dispersed as the officers approached. One of
the men—later identified as Roland Pulliam, an employee of
a nearby auto body shop—walked between a parked van and
the fence. When Pulliam emerged from behind the van, both
officers saw a chrome gun in his hand. Officer Guziec yelled
“gun” and drew his weapon. Pulliam then ran away from the
No. 19-2162 3
officers and into a nearby alley. A short way down the alley,
Pulliam threw the gun, raised his hands, and allowed Officer
Guziec to place him in handcuffs. Officer Guziec escorted Pul-
liam back to the squad car. Officer Alcazar, having seen where
Pulliam threw the gun, went to retrieve it. He found the gun
and an ejected magazine near the McDonald’s dumpster.
After Pulliam’s arrest, Officer Alcazar and other officers
searched the parking lot for contraband. The officers found no
guns (other than the one discarded by Pulliam) or narcotics in
the area. Officer Guziec brought Pulliam to the station and
searched him. Pulliam was carrying $408 in cash.
Almost one year later, a grand jury charged Pulliam with
possessing a firearm as a felon, 18 U.S.C. § 922(g). Before trial,
the government filed a motion in limine seeking a ruling on
the admissibility of testimony related to the 911 calls that were
relayed by dispatchers to Officers Alcazar and Guziec. Pul-
liam filed a motion in limine of his own, asking the district
court to bar the officers from testifying about the $408 Pulliam
possessed. Additionally, Pulliam informed the district court
that he planned to elicit testimony from the officers that, dur-
ing an interview, Pulliam responded to a question by saying
“what gun.”
The district court prevented the government from present-
ing an audio recording of the 911 calls but allowed the officers
to testify “as to what the dispatcher told them.” The district
court also allowed the government to elicit testimony about
the $408 found on Pulliam. Finally, the district court held that
Pulliam could not elicit testimony from the officers about his
“what gun” remark.
4 No. 19-2162
At trial, Officers Alcazar and Guziec testified about receiv-
ing the dispatch call, arriving at the parking lot, and the chase
and investigation that ensued. The government also called Al-
ison Rees—a fingerprint specialist for the Bureau of Alcohol,
Tobacco, Firearms and Explosives—to testify that no finger-
prints were recovered from the gun Officer Alcazar recovered.
Pulliam called his boss and the owner of K&M Auto, Mar-
lon Reid, to testify that Pulliam was normally paid in cash on
Fridays. In response, the government called a K&M Auto em-
ployee to testify that he personally was paid on Saturdays, not
Fridays.
A jury found Pulliam guilty of being a felon in possession
of a firearm, 18 U.S.C. § 922(g)(1). The district court sentenced
Pulliam to 63 months’ imprisonment.
After Pulliam’s trial and sentencing, the Supreme Court
decided Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif
held that, for the government to secure a conviction under
§ 922(g), the government must prove that a defendant knew
he belonged to a category of persons prohibited from pos-
sessing a firearm. Id. at 2200. The jury that found Pulliam
guilty was not instructed about this knowledge-of-status ele-
ment.
II. ANALYSIS
Pulliam raises four issues on appeal. First, Pulliam argues
that the district court’s jury instructions constitute a plain er-
ror in light of the Supreme Court’s decision in Rehaif. His
other arguments concern three evidentiary rulings that the
district court affirmed in its order denying Pulliam a new trial.
No. 19-2162 5
A. Missing Rehaif Instruction
At Pulliam’s trial, the jury was instructed that the govern-
ment had to prove three elements beyond a reasonable doubt
to convict Pulliam of being a felon in possession of a firearm:
“[F]irst, that the defendant knowingly possessed a firearm;
second, at the time of the charged act [Pulliam] had previ-
ously been convicted of a crime punishable by a term of im-
prisonment of exceeding one year; and third, … the firearm
had been shipped or transported in interstate or foreign com-
merce.”
The district court gave this instruction based on well-set-
tled law at the time that § 922(g) “required the government to
prove a defendant knowingly possessed a firearm … but not
that [the defendant] knew he belonged to one of the prohib-
ited classes.” United States v. Williams, 946 F.3d 968, 970 (7th
Cir. 2020). Seven months after Pulliam’s trial, the Supreme
Court in Rehaif reached a different conclusion, holding that
the government must show that “the defendant knew he pos-
sessed a firearm and also that he knew he had the relevant
status when he possessed it.” 139 S. Ct. at 2194.
Pulliam did not argue in the district court that the jury in-
structions were missing an element. Still, Pulliam believes the
jury instructions constitute plain error, requiring a reversal of
his conviction. See Fed. R. Crim. P. 52(b); United States v. Maez,
960 F.3d 949, 956 (7th Cir. 2020) (“We review for plain error
even if the objection would have lacked merit at the time of
trial, before an intervening change in the law.”).
Plain-error review has four elements: (1) an error oc-
curred, (2) that error is plain, and (3) the error affects the de-
fendant’s substantial rights. United States v. Olano, 507 U.S.
6 No. 19-2162
725, 732–34 (1993). These three elements are limitations on ap-
pellate authority, id. at 734; if these elements are satisfied, an
appellate court may “then exercise its discretion to notice a
forfeited error, but only if (4) the error ‘seriously affect[s] the
fairness, integrity, or public reputation of judicial proceed-
ings.’” Johnson v. United States, 520 U.S. 461, 467 (1997) (alter-
ation in original) (some internal quotation marks omitted)
(quoting Olano, 507 U.S. at 732).
Pulliam argues that the district court’s error affected his
substantial rights and seriously affected the fairness, integ-
rity, or public reputation of judicial proceedings. Importantly,
he argues that—in assessing the third and fourth plain-error
elements—we may only look at evidence actually presented
to the jury. To do otherwise, Pulliam reasons, would contra-
vene his Sixth Amendment right to have “each element of a
crime be proved to the jury beyond a reasonable doubt.” Al-
leyne v. United States, 570 U.S. 99, 104 (2013).
At the time Pulliam made this argument, we had not yet
addressed how plain-error review applies to pre-Rehaif
§ 922(g) convictions by jury verdict. See, e.g., United States v.
Dowthard, 948 F.3d 814, 817–18 (7th Cir. 2020) (applying plain-
error review to a pre-Rehaif guilty plea); Williams, 946 F.3d at
971–72 (same). This question has since been resolved by our
decision in United States v. Maez, 960 F.3d 949 (7th Cir. 2020).
In Maez, we established the scope of the record we review
when applying the third and fourth elements of the plain-er-
ror test. In assessing the third element (substantial rights), we
look only “to the trial record when a defendant has exercised
his right to a trial.” Id. at 961 (noting that the Sixth Amend-
ment “mandates this approach”). But in exercising our discre-
tion under the fourth element, we may consider “a narrow
No. 19-2162 7
category of highly reliable information outside the trial rec-
ord[]” that includes “undisputed portions of [a defendant’s]
PSR[].” Id. at 963 (concluding that looking at a prior convic-
tion in a presentence investigation report (“PSR”) does not
“raise the same Sixth Amendment concerns as other facts”).
With the Maez framework in mind, we now turn to Pul-
liam’s plain-error arguments. First, we agree with Pulliam
and the government that there was an “error” that is “plain”
in the jury instructions. The jury was not instructed that the
government had to prove Pulliam knew he was a felon when
he possessed a firearm. After Rehaif, this missing jury instruc-
tion amounts to a plain error. Maez, 960 F.3d at 964; see Hen-
derson v. United States, 568 U.S. 266, 279 (2013) (“[W]e con-
clude that whether a legal question was settled or unsettled at
the time of trial, ‘it is enough that an error be “plain” at the
time of appellate consideration’ for ‘[t]he second part of the
[four-part] Olano test [to be] satisfied.’”) (alterations in origi-
nal) (quoting Johnson, 520 U.S. at 468).
Turning to the third element, we must determine if the er-
ror affected Pulliam’s substantial rights. A jury instruction
that omits an element of the crime affects a defendant’s sub-
stantial rights if “it appeared ‘beyond a reasonable doubt that
the error complained of did not contribute to the verdict ob-
tained.’” United States v. Caira, 737 F.3d 455, 464 (7th Cir. 2013)
(quoting Neder v. United States, 527 U.S. 1, 15 (1999)). Put an-
other way, if overwhelming evidence presented to the jury
proves the omitted element, we can conclude that the omitted
instruction did not impact the verdict and therefore did not
affect the defendant’s substantial rights. See, e.g., Maez, 960
F.3d at 964; United States v. Groce, 891 F.3d 260, 269 (7th Cir.
2018).
8 No. 19-2162
The substantial rights analysis here is a difficult one. Pul-
liam stipulated to a prior felony conviction. See Maez, 960 F.3d
at 964 (“A jury could reasonably think that a felony conviction
is a life experience unlikely to be forgotten.”). And the jury
heard testimony that Pulliam ran from the police, although
for a short period of time. See id. at 965 (noting that testimony
concerning the defendant’s attempt to flee from officers re-
lates to the defendant’s knowledge of his status as a felon).
This evidence is probative of Pulliam’s knowledge of his felon
status, but it may not be overwhelming evidence “on the new
Rehaif element of knowledge of status as a felon.” Id. How-
ever, we decline to decide if Pulliam’s rights were affected be-
cause, even if they were, we would not exercise our discretion
to correct this error under the fourth element.
In exercising our discretion under the fourth element, we
must ask whether the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Olano,
507 U.S. at 732 (alteration in original) (quoting United States v.
Young, 470 U.S. 1, 15 (1985)). This element “has been com-
pared to a ‘miscarriage of justice,’ or in other words, ‘a sub-
stantial risk of convicting an innocent person.’” Maez, 960 F.3d
at 962 (quoting United States v. Paladino, 401 F.3d 471, 481 (7th
Cir. 2005)). So, if we are confident that the error in the jury
instructions does not create the risk of a miscarriage of justice,
we may decline to exercise our discretion to remand for a new
trial. Maez, 960 F.3d at 965.
Here, undisputed portions of Pulliam’s PSR provide
strong circumstantial evidence that Pulliam knew he was a
felon. Pulliam has been convicted of crimes and sentenced to
over a year in prison on several occasions. In 1995, Pulliam
pled guilty to possessing a stolen vehicle; he was sentenced to
No. 19-2162 9
three years in prison. In 1996, Pulliam pled guilty to pos-
sessing a stolen vehicle and was sentenced to four years in
prison, which ran concurrently with his prior sentence. Also
in 1996, Pulliam pled guilty to escape of a felon from a penal
institution; he was sentenced to four years in prison, which
ran concurrently with his prior sentences. Pulliam was re-
leased on parole in 1998, serving over three years of the con-
current four-year sentence. Then, in 1999, he pled guilty to a
narcotics offense and was sentenced to 30 months’ probation.
His probation was revoked in 2001 and he was sentenced to
six years in prison; he served close to two years. See generally
People v. Palmer, 817 N.E.2d 137, 140 (Ill. App. Ct. 2004) (“On
revoking a defendant’s probation, the trial court sentences
him to a disposition that would have been appropriate for the
original offense.”).
Pulliam’s time in prison—serving over a year at a time on
at least two occasions—and the “sheer number of his other
convictions” impairs his ability to argue ignorance as to his
status as a felon. Dowthard, 948 F.3d at 818. We are confident
that Pulliam knew he was a felon at the time he possessed a
firearm in 2015. So, there is no risk of a miscarriage of justice
because the error here does not seriously harm the fairness,
integrity, or public reputation of judicial proceedings. See
Maez, 960 F.3d at 964 (“Affirmance in this instance protects ra-
ther than harms ‘the fairness, integrity or public reputation of
judicia proceedings.’”). We therefore decline to exercise our
discretion to correct the error in the jury instructions.
B. Evidentiary Rulings
Pulliam next challenges the district court’s denial of his
motion for a new trial, which relied in part on three underly-
ing evidentiary rulings. Pulliam argues that the district court
10 No. 19-2162
erred by (1) excluding the officers’ testimony about his “what
gun” remark, (2) admitting the officers’ testimony that Pul-
liam possessed $408 when he was arrested, and (3) admitting
the officers’ testimony about the dispatch call.
We review the district court’s denial of a motion for a new
trial, as well as its evidentiary rulings, for an abuse of discre-
tion. United States v. Washington, 962 F.3d 901, 905 (7th Cir.
2020). We give “special deference” to a district court’s eviden-
tiary rulings, Groce, 891 F.3d at 268, and we reverse these rul-
ings “only if no reasonable person could take the judge’s view
of the matter,” United States v. Brown, 871 F.3d 532, 536 (7th
Cir. 2017).
But even the “[i]mproper admission of evidence does not
call for reversal if the error was harmless.” United States v.
Chaparro, 956 F.3d 462, 481–82 (7th Cir. 2020); see Fed. R. Crim.
P. 52(a). “The test for harmless error is whether, in the mind
of the average juror, the prosecution’s case would have been
significantly less persuasive had the improper evidence been
excluded.” United States v. Buncich, 926 F.3d 361, 368 (7th Cir.
2019) (quoting United States v. Stewart, 902 F.3d 664, 683 (7th
Cir. 2018)). Essentially, an evidentiary error is harmless if it
did not have a substantial influence on the verdict. United
States v. Zuniga, 767 F.3d 712, 717 (7th Cir. 2014).
We now turn to Pulliam’s arguments concerning the dis-
trict court’s order denying him a new trial and the underlying
evidentiary rulings.
1. “What Gun” Statement
Officers from the Chicago Police Department interviewed
Pulliam after his arrest. It is unclear from the record what the
No. 19-2162 11
investigating officers asked Pulliam during this interview. 1
But in response to the officers’ inquiry, Pulliam’s counsel and
the district court agreed that Pulliam “denied knowledge [of
the gun] and said: ‘What gun?’”
Prior to trial, Pulliam informed the district court that he
planned to elicit testimony from the officers about the “what
gun” remark. The government objected to this testimony as
hearsay; Pulliam responded that “what gun” is a question,
not a statement, and is therefore not hearsay. Fed. R. Evid.
801(c) (“‘Hearsay’ means a statement that: (1) the declarant
does not make while testifying at the current trial or hearing;
and (2) a party offers in evidence to prove the truth of the mat-
ter asserted in the statement.”) (emphasis added). The district
court ruled that Pulliam’s remark is inadmissible hearsay,
reasoning “that it was an assertion as opposed to a question
designed to elicit a response.” The district court affirmed this
reasoning in its order denying Pulliam’s motion for a new
trial.
Pulliam argues this ruling was an abuse of discretion. Spe-
cifically, he believes that the district court should have re-
solved the issue in favor of admissibility because of the
“highly ambiguous record.”
A defendant’s out-of-court statement, when offered by the
defense, can be hearsay. See United States v. Sanjar, 876 F.3d
725, 739 (5th Cir. 2017) (“When offered by the government, a
defendant’s out-of-court statements are those of a party op-
ponent and thus not hearsay. When offered by the defense,
1 The district court referred to a report describing this interview, but
that report is not in the record. Pulliam did not object to the district court’s
characterization of the report and did not add the report to the record.
12 No. 19-2162
however, such statements are hearsay … .”). But not all a de-
fendant’s remarks are “statements” for hearsay purposes.
Federal Rule of Evidence 801(a) defines a statement as “a per-
son’s oral assertion, written assertion, or nonverbal conduct,
if the person intended it as an assertion.”
We have held that questions are not statements under Rule
801 and therefore are not hearsay. See United States v. Thomas,
453 F.3d 838, 845 (7th Cir. 2006). Since Thomas we have elabo-
rated on what makes a remark a question rather than a state-
ment. A defendant’s remark is a question if it is “designed to
elicit information and a response.” United States v. Love, 706
F.3d 832, 840 (7th Cir. 2013) (quoting United States v. Summers,
414 F.3d 1287, 1300 (10th Cir. 2005)). If the remark is intended
to assert information, it is a statement rather than a question.
See Summers, 414 F.3d at 1300.
Put simply, the intent behind a remark dictates whether it
is a statement or a question for hearsay purposes. See id. And
the context surrounding the remark may help us ascertain the
declarant’s intent. See Love, 706 F.3d at 840; Summers, 414 F.3d
at 1300. Moreover, the party challenging the admission of the
remark has the burden of demonstrating the declarant’s in-
tent. Fed. R. Evid. 801 advisory committee’s note to 1972 pro-
posed rules. Still, this is a question of fact that “involves no
greater difficulty than many other preliminary questions of
fact.” Id.Here, although the record is ambiguous, it was not unrea-
sonable for the district court to conclude—for purposes of
Rule 801—that the government met its burden in showing
that Pulliam’s “what gun” remark was a statement. This re-
mark was coupled with a statement of denial: “I don’t know
what you’re talking about, and I didn’t throw a gun in the
No. 19-2162 13
bushes.” In this context, it is unlikely that Pulliam was genu-
inely curious as to which specific gun the officers were ques-
tioning him about. See Summers, 414 F.3d at 1300. As the dis-
trict court noted, Pulliam’s remark seems more like a rhetori-
cal question “equivalent to saying: I don’t know what you’re
talking about.” And since “what gun,” in context, reads as a
substantive assertion meant to deny knowledge rather than a
question meant to elicit a response, the district court did not
abuse its discretion in excluding this statement as inadmissi-
ble hearsay.
2. Money in Pulliam’s Possession
Before trial, Pulliam filed a motion in limine asking the dis-
trict court to preclude the government from eliciting testi-
mony concerning the $408 recovered from Pulliam. Pulliam
argued that the testimony “would be significantly more prej-
udicial than probative.” Fed. R. Evid. 403. The government re-
sponded that evidence of the amount of money Pulliam car-
ried would be relevant for the purpose of proving that Pul-
liam had a motive to possess a gun because of his “involve-
ment in the inherently dangerous business of street level drug
sales.” That logic looks something like this: testimony about
the cash was offered for the purpose of showing Pulliam was
dealing drugs at the time of his arrest, which would give him
a reason to have a gun.
The district court ruled that testimony about Pulliam’s
cash is admissible to show his motive for carrying the gun. See
Fed. R. Evid. 404(b) (evidence of crimes, wrongs, or other acts
is not admissible to “prove a person’s character in order to
show that on a particular occasion the person acted in accord-
ance with the character,” but it can be admitted for purposes
14 No. 19-2162
such as motive). The district court affirmed this reasoning in
its order denying Pulliam’s motion for a new trial:
Pulliam argues that this [evidence] was unfairly
prejudicial. However, his own closing arguments
that he had no incentive to possess a gun demon-
strate the significant probative value of this evidence
for it provides a motive for possessing the gun in the
first instance. The Court finds that any unfair preju-
dice did not substantially outweigh that probative
value.
“Federal Rule of Evidence 404(b) prohibits the use of evi-
dence of a defendant’s other bad acts to show his propensity
to commit a crime.” United States v. Norweathers, 895 F.3d 485,
490 (7th Cir. 2018). In this case, the “other bad act” evidence
was the officers’ testimony about Pulliam’s cash, which was
admitted to show that Pulliam was dealing drugs. But this
other-act evidence may be used for a non-propensity purpose
“such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of acci-
dent.” Fed. R. Evid. 404(b)(2).
The problem with other-act evidence is that it may often
be used for a permitted use—like showing motive—and an
impermissible use—like showing a propensity to commit a
crime. United States v. Morgan, 929 F.3d 411, 427 (7th Cir. 2019).
Still, even if the evidence might support a propensity infer-
ence, it may be admitted so long as its admission for a permis-
sible purpose is “supported by some propensity-free chain of
reasoning.” United States v. Gomez, 763 F.3d 845, 856 (7th Cir.
2014) (en banc) (“Rule 404(b) excludes the evidence if its rele-
vance to ‘another purpose’ is established only through the for-
bidden propensity inference.”). Stated another way, the dis-
trict court should “not just ask whether the proposed other-act
No. 19-2162 15
evidence is relevant to a non-propensity purpose but how ex-
actly the evidence is relevant to that purpose.” Id.But even if evidence is “relevant without relying on a pro-
pensity inference,” it may still be excluded under Rule 403. Id.A court may exclude relevant evidence if its “probative value
is substantially outweighed by a danger of … unfair preju-
dice.” Fed. R. Evid. 403. Other-act evidence presents a unique
Rule 403 problem: “it almost always carries some risk that the
jury will draw the forbidden propensity inference.” Gomez,
763 F.3d at 857. Because of that risk, Rule 403 balancing in this
context is difficult and is a “highly context-specific inquiry.”
Id. Still, one guiding principle has emerged: we must take into
account “the degree to which the non-propensity issue actu-
ally is disputed in the case.” Id.; see United States v. Brewer, 915
F.3d 408, 415–16 (7th Cir. 2019).
Pulliam does not seem to contest the district court’s 404(b)
analysis. He points out that “[p]roving motive can be a per-
missible purpose for the introduction of ‘other acts,’ such as
alleged drug activity.” Indeed, we have approved of admit-
ting “other-act” evidence of drug dealing to prove the defend-
ant had a motive to possess a firearm. See United States v.
Schmitt, 770 F.3d 524, 533–35 (7th Cir. 2014) (admitting testi-
mony that drugs were found in Schmitt’s home for the pur-
pose of proving a motive to possess a gun when possession
was disputed at trial). Pulliam instead argues that the district
court’s Rule 403 analysis in its order denying Pulliam’s new
trial was an abuse of discretion. He also argues that the dis-
trict court failed to consider all of the unfairly prejudicial ef-
fects of this evidence.
Testimony about Pulliam’s cash presents the prototypical
“other-act” evidence problem. The jury heard testimony
16 No. 19-2162
about the cash, which was admitted for the purpose of show-
ing that Pulliam was dealing drugs at the time of his arrest,
which would give him a motive to possess a gun. But the jury
just as easily could have drawn the inference that Pulliam
“was the type of person who would break the law once” by
dealing drugs, so “he must be the type of person who would
break the law again” by possessing a firearm as a felon. Id. at
534. So, the jury could have used this evidence for an im-
proper propensity purpose, creating a risk of unfair prejudice.
But this evidence was also probative of a central issue at
trial. Motive to possess a gun—the non-propensity issue—
was hotly disputed. Cf. Gomez, 763 F.3d at 857. And the testi-
mony concerning Pulliam’s cash was offered in support of
that motive. Pulliam disputed that he possessed a gun and
that he had a motive to possess a gun. In his opening state-
ment, Pulliam made his theory of the case clear: “He was ar-
rested frankly for being in the right place, a place he had every
right to be, at the wrong time.” Pulliam also cross-examined
the officers about whether they had seen Pulliam engage in
drug transactions, if they found drugs on him, and if they
knew how he got the $408. Additionally, Pulliam’s boss at
K&M Auto testified that Pulliam is paid in cash on Fridays,
giving him an innocent reason to possess the cash. Pulliam
tied this all together in his closing argument: “There were no
drugs on him. He had $400 that he got paid that day. What
would be the incentive to have a gun? There was no incentive
to have a gun.” Pulliam thus made possession, and a motive
to possess a gun, “central to the case.” Brewer, 915 F.3d at 416.
Evidence about his motive, then, was highly probative. See
Gomez, 763 F.3d at 857.
No. 19-2162 17
But the specific motive evidence—testimony about cash
found on Pulliam’s person—is not strong evidence of drug-
dealing activity, and therefore, even more tenuous evidence
of motive. The officers did not find any drugs on Pulliam’s
person or in the parking lot. Instead, the government pre-
sented the cash found on Pulliam and his brief period of flight
as circumstantial evidence of drug dealing. This evidence is
substantially weaker, and so less probative, than the evidence
of drug dealing and motive in Schmitt, which included drugs
found at the defendant’s home. 770 F.3d at 534.
Still, Pulliam’s possession of a gun and his motive for pos-
session were squarely at issue during trial and were heavily
contested. So it was not unreasonable, and therefore not an
abuse of discretion, for the district court to conclude that the
testimony’s probative value was not substantially out-
weighed by the potential unfair prejudice of the jury assum-
ing that Pulliam was a drug dealer, and thus more likely to
commit other crimes. See Brewer, 915 F.3d at 416 (“The evi-
dence of the Ohio and California robberies was of course prej-
udicial—all other-act evidence is—but given that Brewer put
his identity and intent squarely at issue, it was not unfairly
so.”); cf. United States v. Foley, 740 F.3d 1079, 1088 (7th Cir.
2014) (“Our role on appeal … is not to apply the Rule 403 bal-
ancing test de novo but to review the district court’s decision
for an abuse of discretion.”).
Finally, Pulliam takes issue with the district court’s rea-
soning affirming this evidentiary ruling in its order denying
Pulliam a new trial. He argues that the district court failed to
consider “the unfairly prejudicial effect of using the innocent
act of carrying cash to support the conclusion of criminal drug
trafficking.” The district court acknowledged Pulliam’s unfair
18 No. 19-2162
prejudice argument, but ultimately concluded “that any un-
fair prejudice did not substantially outweigh” the probative
value of the testimony.
A district court’s provided reasoning amounts to an abuse
of discretion when the court fails to explain its “bare-bones
conclusion that ‘the probative value of the evidence is not sub-
stantially outweighed by the danger of unfair prejudice.’”
United States v. Ciesiolka, 614 F.3d 347, 357 (7th Cir. 2010); see
United States v. Eads, 729 F.3d 769, 777 (7th Cir. 2013) (finding
the district court’s Rule 403 analysis insufficient where it did
not explain the specific probative value or risk of prejudice
presented by the evidence). This is because “[a] pro-forma
recitation of the Rule 403 balancing test does not allow an ap-
pellate court to conduct a proper review of the district court’s
analysis.” United States v. Loughry, 660 F.3d 965, 972 (7th Cir.
2011) (finding that the district court’s Rule 403 reasoning
amounted to an abuse of discretion when it only explained
that “the Court conducted the Rule 403 balancing test and
concluded that the probative value of the Government’s evi-
dence was not substantially outweighed by the danger of un-
fair recitation”).
It is true that the district court could have provided more
thorough reasoning concerning its Rule 403 decision. But the
district court emphasized the probative value of the testimony
concerning Pulliam’s cash: “[Pulliam’s] own closing argu-
ments that he had no incentive to possess a gun demonstrate
the significant probative value of this evidence for it provides
a motive for possessing the gun in the first instance.” Consid-
ering this probative value, the district court reasoned that
“any unfair prejudice did not substantially outweigh that pro-
bative value.” See United States v. Adkins, 743 F.3d 176, 184 (7th
No. 19-2162 19
Cir. 2014) (“[T]he district court found the … evidence more
probative than prejudicial for the same reasons that it found
the evidence to be direct evidence of criminality: the evidence
went to [the defendant’s] knowledge, preparation, and in-
tent.”). Essentially, in conducting the Rule 403 analysis, the
district court determined that the evidence had significant
probative value, and that the unfair prejudice Pulliam argued
he suffered as a result of this testimony would not substan-
tially outweigh that probative value.
This analysis is not “bare-boned” and provides enough
reasoning for us to properly review it, especially since the
only unfair prejudice Pulliam argues is that he was unfairly
depicted as a drug dealer. So, although the district court could
have provided more extensive reasoning to support its Rule
403 conclusion, the analysis provided does not amount to an
abuse of discretion.
3. Dispatch Call
The district court, over Pulliam’s objection, allowed the
government to elicit testimony from the officers concerning
the dispatch call they received. The district court reasoned:
The government argues that the [anonymous 911
calls] provide the jury with the context for why the
police officers were in the McDonald’s parking lot
and why they approached Mr. Pulliam. There’s no
suggestion that the officers listened to the 911 calls
before arriving at the McDonald’s parking lot and
seeing Mr. Pulliam there. The officers were respond-
ing to a report from their dispatcher. Therefore, for
these purposes it would be appropriate for the officers
to testify as to what the dispatcher told them, which
20 No. 19-2162
may include that the emergency response center had
received two calls of suspected drug sales.
(emphasis added). And in its order denying Pulliam a new
trial, the district court declined to alter this decision: “The
court finds again that the dispatch information was relevant
to the officers’ state of mind to explain their actions when they
attempted to approach the group of men including Pulliam.”
Pulliam argues that testimony concerning the dispatch call
was highly prejudicial, had little probative value, and the dis-
trict court abused its discretion by not excluding this evidence
under Rule 403. The government argues that—like the testi-
mony concerning Pulliam’s cash—the testimony about the
dispatch call was admitted to show that Pulliam had a motive
to possess a firearm because he was dealing drugs. And since
motive and possession were disputed, the probative value of
testimony about the dispatch calls outweighs its potential for
unfair prejudice.
We disagree with the government’s characterization of the
district court’s reason for admitting this testimony. The dis-
trict court, in both its rulings on the testimony about the dis-
patch call, does not explicitly tie this evidence to motive. In-
stead, in admitting this evidence and affirming this decision,
the district court emphasized the testimony’s relevance to
provide context for why the officers approached Pulliam. So,
the district court did not allow the officers to testify about the
dispatch call to prove that Pulliam had a motive to possess a
gun because he was dealing drugs; it instead admitted this
evidence to provide context for why the officers approached
Pulliam prior to his arrest.
And considering the purpose for which the evidence was
actually admitted, the dispatch call had minimal probative
No. 19-2162 21
value. The reason why the officers showed up at the parking
lot was not disputed at trial. Importantly, it also had “nothing
to do with the charge[] in this case,” possessing a gun. United
States v. Cooper, 591 F.3d 582, 589 (7th Cir. 2010). It is hard to
see how this evidence could have any probative value when
it had no relation to the offense charged or the disputed is-
sues. See United States v. Nelson, 958 F.3d 667, 670 (7th Cir.
2020) (expressing concerns “about overuse of the ‘complete-
the-story’ theory of relevance”).
This testimony also had a potential for unfair prejudice.
The dispatch call informed the officers of a potential narcotics
sale in the parking lot where they found Pulliam. The jury
could have drawn the same inference from this evidence as it
could have from testimony about the cash on Pulliam’s per-
son: Pulliam “was the type of person who would break the
law once” by dealing drugs, so “he must be the type of person
who would break the law again.” Schmitt, 770 F.3d at 534. But
unlike the testimony about the cash found on Pulliam, the tes-
timony about the dispatch call has almost no probative value;
this makes it hard to accept almost any risk of prejudice,
United States v. Boros, 668 F.3d 901, 909 (7th Cir. 2012). So, the
question of whether the district court abused its discretion in
its rulings related to this evidence is a close call.
But we need not answer this question because, even if this
evidence was improperly admitted, its admission was harm-
less.2 See United States v. Miller, 954 F.3d 551, 560–64 (2d Cir.
2 Pulliam asks us to apply a cumulative error analysis because he ar-
gues the district court committed multiple errors. To demonstrate cumu-
lative error, Pulliam must show that at least two errors occurred and that
he was denied a fundamentally fair trial. Groce, 891 F.3d at 270. True, if we
find an evidentiary error occurred in addition to the error in the jury
22 No. 19-2162
2020) (analyzing an evidentiary error for harmlessness when
there was also a Rehaif error in the jury instructions that did
not “rise to the level of reversible plain error”).
Both officers testified in detail about the events leading to
Pulliam’s arrest. The officers testified that as they approached
the group of men in the parking lot, Pulliam began to walk
away and disappeared behind a van. When he emerged from
behind the van, both officers saw a chrome gun in Pulliam’s
hand. Officer Guziec yelled “gun” and drew his own weapon;
Pulliam ran from the officers and into a nearby alley. Officer
Alcazar testified that, at this point, he was a few feet away
from Pulliam and did not lose sight of him during the entire
chase. Pulliam then raised his hands, turned around, and
threw the gun toward the McDonald’s dumpster. Officer Al-
cazar testified that he saw Pulliam throw the gun and saw ap-
proximately where the gun landed. Officer Guziec also testi-
fied that he saw Pulliam throw the gun.
Officer Guziec then escorted Pulliam back to the squad
car. Officer Alcazar testified that he split from Officer Guziec
and went to retrieve the gun Pulliam had just thrown. When
Officer Alcazar got to the area where the gun landed—near
the McDonald’s dumpster—he saw only one, chrome gun.
Officer Alcazar testified that he retrieved this gun within one
minute of Officer Guziec detaining Pulliam.
instructions, there would be at least two errors. But even if we were to
consider the cumulative effect of these errors, it would not change the out-
come here. We have already decided that the jury-instruction error did not
affect the fairness of Pulliam’s trial proceedings. And one harmless evi-
dentiary error would not then make Pulliam’s trial fundamentally unfair.
No. 19-2162 23
The officers provided extensive testimony proving that
Pulliam knowingly possessed a firearm, the only issue dis-
puted at trial. We are therefore convinced that excluding the
officers’ brief testimony concerning the dispatch call would
not have made the government’s case significantly less per-
suasive. See Buncich, 926 F.3d at 368–69. Any error in admit-
ting this evidence, then, would be harmless.
III. CONCLUSION
Because the error in the jury instruction does not seriously
affect the fairness, integrity, or public reputation of judicial
proceedings, and because the only potential evidentiary error
would be harmless, we AFFIRM Pulliam’s conviction.