United States v. Puckett, Dawon D.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3832
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAWON D. PUCKETT,
Defendant-Appellant.
____________
Appeals from the United States District Court for
the Northern District of Illinois, Western Division.
No. 02-CR-50072—Philip G. Reinhard, Judge.
____________
ARGUED MAY 26, 2004—DECIDED APRIL 22, 2005
____________
Before BAUER, POSNER and COFFEY, Circuit Judges.
COFFEY, Circuit Judge. On July 18, 2002, Dawon Puckett
was convicted before a jury of armed bank robbery, 18 U.S.C.
§ 2113(a) & (d), using a firearm during a violent crime,
18 U.S.C. § 924(c)(1)(A), and possession of 63 grams of co-
caine with intent to distribute, 21 U.S.C. § 841(a)(1). He
was sentenced to a period of confinement of 384 months to
be followed by six years’ supervised release and ordered to
pay restitution in the amount of $27,674. On appeal, Puckett
argues that his convictions should be reversed, alleging that
the trial court erred in: 1) admitting evidence of his prior
2 No. 03-3832
conviction for drug trafficking and thereby unfairly pre-
judicing the jury against him; and 2) refusing to instruct the
jury on the lesser-included offense of simple possession. We
affirm.
I. Background
On October 8, 2002, a branch office of the National City
Bank in Rockford, Illinois, (“Bank”) was robbed at gunpoint
by a man described as wearing a striped “Jamaican-style”
hat, fake dreadlocks, beard and moustache, and dark
glasses. The armed robber, whose image was captured on
the Bank’s surveillance cameras, entered the Bank at about
2 p.m., threatened the Bank’s employees and various
customers with his weapon, and ordered the tellers to fill
the two pillowcases he handed them with money. He also
warned the tellers that if they included any “dye packs”
with the stacks of currency, he would return and kill them.
The armed robber then exited the Bank with some $27,000
as proceeds of the robbery, entered a dark-colored, late model
Ford Expedition sports utility vehicle (“SUV”), and drove
away in the direction of Levings Lake Park, a public rec-
reation area located not far from the Bank.
Detectives from the Rockford Police Department and FBI
agents were called to the scene and proceeded to investigate
the crime scene and interview bank personnel as well as
members of the public and the tellers whom the robber had
threatened during the heist. The suspect was described as a
black male in his mid 20’s, approximately six-foot tall and
weighing about 150 pounds. The witnesses also described
the robber’s disguise—his “Jamaican-style” hat, fake dread-
locks, moustache and beard, and dark glasses—and further-
more informed the detectives that the robber had duct tape
wrapped around his fingertips. The tellers informed in-
vestigators that the offender had fled in a dark colored Ford
Expedition in the direction of Levings Lake Park, and in
No. 03-3832 3
addition supplied the officers with a partial license plate
number on the vehicle. Based on this information, the
Rockford Police Department issued an all points bulletin for
the SUV and its driver. A Rockford patrol officer heard the
bulletin and pursued the vehicle to Levings Lake Park,
where he located the vehicle parked near a picnic area,
unoccupied, and after investigating, determined the vehicle
to have been the stolen Ford Expedition and seized it.
Having the vehicle in custody believed to have been used
in the robbery, but unable to locate the robbery suspect, the
Rockford Police Department issued a press release contain-
ing a general description of the wanted suspect and sought
the community’s help in capturing him. The press release
contained few specific details of the robbery and how it was
carried out and it did not make any mention of the robber’s
disguise, the fact that he used duct tape on his fingertips,
or that he had threatened the Bank’s tellers.
On October 11, 2002, three days after the robbery, the
Rockford police received information from one Antwon Flint,
who identified the robbery suspect as Dawon Puckett. Flint
told the police that he had been playing cards with Puckett
on the evening of October 8, 2002 (the date of the robbery),
and that Puckett had related to him that he had committed
the armed robbery, supplying Flint with some of the details
concerning the crime that were previously unknown to the
public, e.g., that he had worn fake dreadlocks, had used a
Ford SUV as the getaway vehicle, and that he had parked
the vehicle nearby at Levings Lake Park. Flint also relayed
to the police that Puckett had displayed a large amount of
cash, “at least $27,000,” and informed them that Puckett
was currently living in the basement of his grandmother’s
house, at 1916 Knowlton Street in Rockford, a location one to
two minutes walking distance from where the stolen
getaway vehicle was found abandoned in the Levings Lake
Park area. In addition, the police received information from
one Juan Soto, the owner of the Ford Expedition, that a
4 No. 03-3832
SUV matching the description of the one used in the
robbery had been taken by his girlfriend, without his
permission, earlier in the day. Soto also told investigators
that he had seen an individual matching Puckett’s descrip-
tion driving the vehicle, without his consent, in the parking
lot of a Kmart located adjacent to the National City Bank
just hours before the Bank was robbed.1
Pursuant to this information, the Rockford police obtained
a photograph of Puckett from their files and arranged an
array with the photos of five other individuals similar in ap-
pearance, weight, age, height and complexion. The de-
tectives then took this photo array to the Bank, displayed
it to two of the tellers present during the robbery, and both
tellers identified Puckett as the armed individual who had
committed the robbery on the date in question, October 8,
2002. Based on this information, the Rockford Police
Department and the FBI placed Puckett’s grandmother’s
house (1916 Knowlton Street) under surveillance. Shortly
thereafter, the officers observed Puckett exit the house and
enter a vehicle owned and operated by a female (Debra
Harris). Rockford police stopped the car after a short dis-
tance and arrested Puckett on suspicion of bank robbery.
Puckett was handcuffed and searched, and $1,294.76 in cash
was discovered in the pocket of his trousers. After receiving
permission from Harris, the vehicle’s owner and driver,
officers proceeded to search the interior of the car and
discovered and confiscated a plastic baggie containing what
appeared to be a large stash of powder cocaine, in the glove
compartment. When questioned about the narcotics, Puckett
admitted that the drugs belonged to him, and stated that he
1
On a tip from his friends, Soto went to the parking lot of the
Kmart adjacent to the National City Bank to see if he could locate
his Ford Expedition. While there he spotted the vehicle and was
nearly ran over by the driver, a person who resembled Puckett’s
description.
No. 03-3832 5
knew the cocaine weighed two-and-a-quarter ounces (63
grams) because he had recently “measured it exactly.”
Puckett was subsequently taken to the Public Safety
Building in Rockford, Illinois, advised of his Miranda rights,
and interviewed by Rockford police detectives. When ques-
tioned concerning his whereabouts on the day of the bank
robbery, Puckett claimed he was getting a haircut at the
time of the bank robbery, although he later changed this
story when he was unable to provide the name of the bar-
bershop he had supposedly visited for the haircut. Instead,
Puckett explained that he had obtained the haircut two days
later, during a “shopping spree” on Michigan Avenue in
Chicago, a trip he claimed was funded by a workman’s
compensation insurance settlement. During this interview
Puckett again admitted that the 63 grams of cocaine found
in the glovebox of Harris’s vehicle at the time of his arrest
belonged to him, but then refused to cooperate and provide
any information concerning the armed robbery. However,
Puckett did state that he would “consider” cooperating if
detectives were to tell him what kind of sentence he was
facing. The detectives, in response, informed the suspect
that neither the details of a potential sentence nor a “deal”
would be discussed until he fully disclosed his involvement
in the bank robbery. Puckett refused and, with the ques-
tioning at an impasse, Puckett was taken to a holding cell to
await his subsequent transfer to the Ogle County Jail for
processing and a decision on formal charges against him
relating to the armed robbery.
Shortly after, Puckett was moved to the county jail and he
was assigned to share a cell with Kenneth Johnson, an
associate of Puckett’s from the Rockford area. During a
series of conversations, Puckett subsequently divulged var-
ious details of the robbery to Johnson including information
and facts about the crime that had not been disclosed to the
general public. Specifically, Puckett told Johnson that he
had duct-taped his fingertips before the robbery to avoid
6 No. 03-3832
leaving fingerprints as well as recounting the fact that he
warned the bank tellers not to put dye packs in the pillow-
cases or he would return and kill them. Puckett also stated
that he “just did what he had to do” because he was broke,
and requested Johnson’s help to contact his brother and
instruct him to move the proceeds of the robbery from the
place he had hidden it (the cold-air duct in the basement of
his grandmother’s house) to a different (undisclosed) lo-
cation. Johnson later relayed all of this information to the
police in exchange for a lighter sentence on drug charges
that he was facing. Acting on Johnson’s information, the
Rockford officers searched the basement of Puckett’s
grandmother’s house, with her consent. The officers did not
find the cash proceeds of the robbery in the air duct, al-
though they did discover several bags of new clothes and
shoes in the area of the basement where Puckett had been
staying, and also located a loaded .22 caliber handgun be-
tween the mattress and the boxsprings of Puckett’s bed.2
Nevertheless, based on the evidence that the Rockford
police and the FBI gathered and later submitted to a grand
jury, Puckett was indicted on one count of armed bank rob-
bery, 18 U.S.C. § 2113(a) & (d), one count of using a firearm
during a violent crime, 18 U.S.C. § 924(c)(1)(A), and one
count of possession of 63 grams of cocaine with intent to
distribute, 21 U.S.C. § 841(a)(1). Puckett pleaded not guilty
to all three charges and requested a trial by jury.
In preparing for the trial, Puckett’s counsel made a mo-
tion to the court requesting that he be allowed to ask the
prospective jury members at voir dire whether they or their
family members had problems with cocaine addiction. Based
on this request, the government anticipated that Puckett
might attempt to defend against the drug distribution charge
and claim that he possessed the cocaine for personal use
2
Indeed, the missing proceeds of the robbery were never located.
No. 03-3832 7
only, and thus the prosecution, prior to trial, asked leave of
the court to introduce Puckett’s three prior Illinois state
court convictions for drug trafficking in evidence. Puckett
objected to the admission of evidence concerning his con-
victions, arguing that his three previous convictions for pos-
session of crack cocaine with intent to deliver, one dating
from 1993 and two others from 1996, were too remote in
time and dissimilar to his current drug charges to show
anything other than his propensity to commit the charged
offense. Puckett also argued that the convictions’ limited
probative value was outweighed by the danger of unfair
prejudice. After reviewing the briefs submitted and hearing
arguments on the issue, the trial judge ordered that the
government, pursuant to the Federal Rules of Evidence,
would only be allowed to submit evidence of Puckett’s most
recent, 1996, drug trafficking conviction in Winnebago
County, Illinois. The court reasoned that his most recent
prior drug conviction was relevant to proving Puckett’s
knowledge and intent to commit the charged offense of
possession of cocaine with intent to distribute, and that the
contemporaneous nature and similarity between the facts
of that crime and the allegations in the instant case made
the evidence sufficiently probative. The court further
determined that any prejudice that might result from the
admission of Puckett’s prior conviction was outweighed by
its probative value, and advised the parties that a limiting
instruction would be given to the jury in order to cure any
possible undue prejudice.
Accordingly, during Puckett’s trial, the government intro-
duced evidence of his 1996 Winnebago County conviction for
possession of crack cocaine with intent to distribute. In
addition, the government elicited testimony from Sheriff’s
Deputy Dennis Hill, the officer who arrested Puckett in con-
nection with the 1996 drug charge. Hill testified that, after
arresting and transporting Puckett to the police station
following a traffic violation, he discovered two plastic baggies
8 No. 03-3832
that Puckett had left behind containing 51 “rocks” of cocaine
while searching under the back seat of the police vehicle he
used to convey Puckett to the station.3 Hill explained that
Puckett was subsequently charged and convicted in
Winnebago County, Illinois, in 1996 of possession of crack
cocaine with intent to deliver. Following Hill’s testimony,
the judge instructed the jury that it should consider the
evidence of Puckett’s 1996 drug trafficking conviction sub-
mitted only for the limited purpose of intent or knowledge
of the drugs as it related to the charge at issue. The same
instruction was again read to the jury immediately prior to
the time they retired to render a decision.4
The government also presented evidence at trial to dem-
onstrate Puckett’s guilt on the possession of 63 grams of
cocaine with intent to distribute charge in the instant case
in the form of an expert witness, Sergeant Steven Johnson
of the Rockford, Illinois Police Department. Sgt. Johnson
testified that, based on his experience combating drug traf-
ficking in the Rockford, Illinois area,5 the amount of powder
cocaine possessed by Puckett, 63 grams, was known on the
street as “two-and-a-lick,” and had a street value of between
$1200 and $1500. Such quantities of powder cocaine,
Johnson explained, are normally acquired by street-level
dealers who in turn add substances to dilute the cocaine
while still in powdered form in order to increase the drug’s
3
Hill stated that he had inspected his vehicle prior to placing
Puckett in the police vehicle and had not found any contraband.
4
The limiting instruction was taken directly from the Seventh
Circuit’s Pattern Jury Instructions. See Federal Criminal Jury
Instructions of the Seventh Circuit 3.04 (1999).
5
Sgt. Johnson was qualified at trial as an expert witness in the
field of narcotics investigations. Johnson stated that he is a super-
visor with the Rockford Police Department’s Metro Narcotics Unit,
and during his twenty-six years on the force had participated in
and/or supervised approximately 2,000 narcotics investigations.
No. 03-3832 9
volume for distribution. Thereafter the cocaine-base mixture
is converted into crack cocaine and divided into packages
containing approximately two-tenths of a gram which, at
that time, would generally sell for approximately $20 on the
street. Johnson stated further that if the powdered form of
the drug was not converted into a crack cocaine product, a
street-level dealer would generally dilute and divide the
large quantity of powdered cocaine that Puckett possessed
into smaller quantities for resale to street users. Packages
of powdered cocaine weighing between one-tenth of a gram
and a “whole” gram would then be sold for $10 to $70.
Sgt. Johnson, who had some nine years of experience in-
vestigating narcotic offenses, posited that he had never had
any experience with a cocaine user possessing more than
three-and-a-half grams of the powder form of the drug for
personal consumption, and that, based upon his training,
knowledge and experience, the 63 grams possessed by
Puckett would most accurately be referred to as a “distribu-
tion amount.”
While defending against the possession with intent to dis-
tribute charge, Puckett failed to present any evidence or to
take the witness stand in support of his claim that the 63
grams of cocaine was solely for personal use. Instead,
Puckett relied solely on the testimony that his attorney had
elicited upon cross-examination of the Rockford police
officers who discovered the cocaine and later performed a
consent search of Puckett’s grandmother’s house.6
At the close of the evidence, Puckett requested that the
court instruct the jury on the lesser-included offense of sim-
6
During that testimony the officers stated that they found .7
grams of marijuana (user quantity) and some $1,300 in cash on
Puckett following his arrest, but admitted that they did not
discover any paraphernalia indicative of drug trafficking either in
the defendant’s possession when he was arrested nor during a
subsequent search of his grandmother’s residence.
10 No. 03-3832
ple possession of drugs as an alternative to the possession
with intent to deliver cocaine charge. The judge refused to
submit the defendant’s requested instruction to the jury after
reviewing the evidence presented, concluding that Puckett
had failed to submit any evidence “that he possessed [the
cocaine] other than for sale.” The jury returned guilty ver-
dicts on each of the three crimes charged: armed bank rob-
bery, in violation of 18 U.S.C. § 2113(a) & (d), using a firearm
during a violent crime, in violation of 18 U.S.C. § 924(c)(1)(A),
as well as possession of 63 grams of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1).
II. Analysis
On appeal, Puckett does not challenge any aspect of his
convictions for armed bank robbery or using a firearm
during a violent crime. Puckett argues only that he is en-
titled to a new trial because the district court committed a
reversible error pertaining to his conviction under 21 U.S.C.
§ 841(a)(1) for possession with intent to distribute 63 grams
of cocaine. Specifically, Puckett argues that the trial court
erred in: 1) admitting evidence of his previous conviction for
drug trafficking; and 2) refusing to instruct the jury on the
lesser-included offense of simple possession of cocaine.
A. Admission of Puckett’s Previous Conviction
We review the judge’s decision to admit evidence under
Rule 404(b) of the Federal Rules of Evidence for an abuse of
discretion. United States v. Jones, 389 F.3d 753, 756 (7th
Cir. 2004). The trial judge allowed the government to
introduce evidence of Puckett’s prior 1996 conviction for
drug trafficking for the limited purpose of demonstrating
Puckett’s knowledge and intent as it related to the drug
charge. In accordance with Rule 404(b), evidence of a prior
conviction is “not admissible to show that a defendant has
No. 03-3832 11
a propensity to commit crime and that he acted in confor-
mity with that propensity on the occasion in question.”
United States v. Best, 250 F.3d 1084, 1090 (7th Cir. 2001).
Such evidence may be admissible, however, to demonstrate
“motive, opportunity, intent, preparation, plan, knowledge
or identity.” Id. The admissibility of prior convictions under
Rule 404(b) is judged according to a four-part test which
requires the government to demonstrate that:
(1) the evidence is directed toward establishing a matter
in issue other than the defendant’s propensity to com-
mit the crime charged; (2) the evidence shows that the
other act is similar enough and close enough in time to
be relevant to the matter in issue; (3) the evidence is
sufficient to support a jury finding that the defendant
committed the similar act; and (4) the probative value
of the evidence is not substantially outweighed by the
danger of unfair prejudice.
Jones, 389 F.3d at 757. After considering the evidence and
the law applicable thereto, we conclude that the introduc-
tion of evidence concerning the defendant’s prior conviction
is in compliance with the requirements of the four-part test
referred to above.
Puckett argues that the evidence of his prior conviction
demonstrated nothing but his propensity to engage in crim-
inal conduct. We disagree. It is well settled in this circuit
that, “when a defendant is charged with a specific intent
crime, such as possession with intent to distribute . . . evi-
dence of past action is probative if used to establish an
essential element of the crime charged.” United States v.
Macedo, 371 F.3d 957, 967 (7th Cir. 2004), accord United
States v. Long, 86 F.3d 81, 84 (7th Cir. 1996). The crime of
possession of cocaine with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1), is a specific intent crime making
the defendant’s state of mind an element of the crime which
is to be determined by the finder of fact. Long, 86 F.3d at 84.
12 No. 03-3832
Puckett’s defense to the drug charge was premised on his
claim that he lacked the requisite intent to distribute the
drugs due to the fact that the cocaine was for personal use
only; thus the government was entitled to introduce evi-
dence of prior drug trafficking convictions in order to prove
this element of the crime, Puckett’s intent. Id. at 84-85. In-
deed, evidence of a prior conviction for possession of narcotics
with intent to distribute is especially relevant and probative
when, as here, Puckett conceded that he was in possession
of an unusually large amount of cocaine, but denied that
the drugs were intended for anything other than personal
consumption. Jones, 389 F.3d at 757-58. Puckett’s prior
(1996) drug trafficking conviction was relevant and pro-
bative as to his intent to distribute the drugs and was not
introduced to establish, as Puckett argued, his criminal
character or “to show [his] action in conformity therewith.”
Fed. R. Evid. 404(b).7
Puckett also argues that his 1996 conviction for posses-
sion with intent to distribute crack cocaine was too remote
in time and dissimilar to the drug charge in this case to be
considered as probative of his intent to distribute the large
amount of cocaine he possessed at the time of his arrest.
This argument is equally without merit. The conviction,
entered in 1996, was close enough in time to the facts of
this case—the arrest in this case took place in October of
2002 and Puckett was indicted on November 5, 2002—to
constitute probative evidence of his intent. We have pre-
viously held that convictions entered as long as thirteen
years prior to subsequent prosecutions which the government
7
Puckett did not argue that the trial judge was in err when he
determined that his (Puckett’s) prior conviction was relevant to
demonstrating his knowledge of the drug trade. We note that the
conviction was relevant to demonstrating that Puckett “was
familiar with the cocaine business.” United States v. Kreiser, 15
F.3d 635, 640 (7th Cir. 1994).
No. 03-3832 13
has sought to introduce are admissible, in spite of the length
of time between the crimes. See United States v. Tringali,
71 F.3d 1375, 1379 (7th Cir. 1995) (nine years); United States
v. Wimberly, 60 F.3d 281, 285 (7th Cir. 1995) (thirteen
years). Puckett’s prior drug trafficking conviction occurred
only six years prior to the charged crimes in this case (2002),
a fact which weighs in favor of admissibility. See Wimberly,
60 F.3d at 285.
Further support for the prior conviction’s admissibility
can be found in the similarity of the nature of the criminal
conduct underlying Puckett’s 1996 conviction and that of
the acts charged here. It is true that Puckett’s 1996 con-
viction involved possession with intent to deliver crack cocaine
and the crime in the instant case involves powder cocaine.
However, this is a distinction without substance. Both crimes
involve the possession with intent to distribute a chemical
composition of cocaine.8 Differences in the form of the drug
involved in a prior crime or even type or category of nar-
cotics is irrelevant to the admissibility of that evidence when
“both incidents concerned distribution amounts of drugs.”
See United States v. Hernandez, 84 F.3d 931, 935 (7th Cir.
1996). Puckett’s 1996 conviction and the crime charged here
each involved possession of large, distribution-level amounts
8
For purposes of our analysis in this case, there is no need to
draw a distinction between powdered cocaine, and its chemically
manipulated counterpart, crack cocaine. This especially true given
the fact that street-level dealers often purchase powder cocaine,
in the amounts on the order of that possessed by Puckett, in order
that they may later reformulate the narcotic into crack cocaine.
See United States v. Edwards, 397 F.3d 570, 573-74 (7th Cir. 2005)
(explaining that crack cocaine is chemically very similar to pow-
dered cocaine and that a simple chemical process can be per-
formed to convert one into the other); United States v. Robinson,
110 F.3d 1320, 1325 (8th Cir. 1997); United States v. Teague, 93
F.3d 81, 84 (2d Cir. 1996); United States v. Wint, 974 F.2d 961,
967 (8th Cir. 1992).
14 No. 03-3832
of narcotics. In 1996 Puckett was arrested while in posses-
sion of 51 “rocks” of crack cocaine, and when arrested in 2002
he admitted to possessing 63 grams of powdered cocaine.
Both of these amounts are far greater than what could be
considered a “small amount” of cocaine and therefore
Puckett’s contention that the form and amount of the drug
seized in both instances creates a dissimilarity in the
crimes is without merit. United States v. Walsh, 231 F.3d
366, 369 (7th Cir. 2000) (holding that 5.4 grams of crack
cocaine could be considered a distribution amount) (citing
Hernandez, 84 F.3d at 935); United States v. Tanner, 941
F.2d 574, 587 (7th Cir. 1991) (55.5 grams of cocaine, in con-
junction with other evidence, sufficient for a jury to infer
that defendant possessed cocaine with intent to distribute).
In addition, both crimes involved the discovery of large
amounts of cocaine in Puckett’s possession. Puckett unper-
suasively attempts to distinguish his 1996 conviction from
the offense charged in this case by pointing to the fact that
when arrested in 1996, the crack cocaine he possessed was
discovered underneath the back seat of a squad car after he
was placed there following his arrest on an unrelated charge,
whereas the narcotics in this case (which he admitted own-
ership of) were found in the glove box of a vehicle in which
Puckett was a passenger. However, “simple differences” in
the conduct “at issue cannot defeat the similarity require-
ment . . . . ‘[t]he prior acts need not be duplicates of the one
for which the defendant is now being tried.’ ” Long, 86 F.3d
at 84 (quoting United States v. Lloyd, 71 F.3d 1256, 1264-65
(7th Cir. 1995)). The mere fact that Puckett did not attempt
to conceal the drugs in this case in the same manner as he
did in 1996, bears no relation whatsoever to the relevant
issue in this case—whether he intended to distribute this
large amount of narcotics that he freely admitted to
No. 03-3832 15
owning.9 See Long, 86 F.3d at 84 (“when evidence is offered
to prove intent, the degree of similarity is relevant only
insofar as the acts are sufficiently alike to support an
inference of criminal intent”). Accordingly, Puckett’s 1996
Winnebago County conviction was close enough in time and
factually similar enough to the charge in this case to be
relevant evidence of his intent to possess and distribute 63
grams of cocaine.
Puckett also argues that the “marginal” probative value
of his previous conviction was far outweighed by its preju-
dicial effect. In determining whether the admission of evi-
dence of prior bad acts unfairly prejudiced a defendant, we
begin with the understanding that “ ‘our decisions have em-
phasized that most relevant evidence is, by its very nature,
prejudicial, and that evidence must be unfairly prejudicial
to be excluded.’ ” Long, 86 F.3d at 86 (quoting United States
v. Curry, 79 F.3d 1489, 1496 (7th Cir. 1996)) (emphasis in
original). Evidence of this nature is only considered to be
unfairly prejudicial if it “induce[s] the jury to decide the case
on an improper basis, commonly an emotional one, rather
than on the evidence presented.” Id. As discussed above, the
evidence of Puckett’s prior conviction for possession and
intent to distribute a large amount of crack cocaine was
highly relevant and probative as to his intent to possess and
distribute cocaine. For this is a matter which constituted an
element of the crime and which Puckett made an issue in
this case when he himself “concede[d] that he possessed the
drugs but denie[d] that he planned to distribute them.”
Jones, 389 F.3d at 757-58. Thus, there is no doubt that the
fact that he had been convicted in 1996 of a strikingly
9
It would be highly illogical for us to conclude that simply
because Puckett was able to successfully conceal the cocaine long
enough in 1996 for him to plant it under the back seat of a police
cruiser, but was caught red-handed here, his prior conviction is
inadmissible.
16 No. 03-3832
similar crime (possession with intent to distribute a large
amount of crack cocaine) somewhat prejudiced Puckett’s
case, but the only legal question is whether Puckett was
unfairly prejudiced. Best, 250 F.3d at 1093.
Puckett contends that the evidence of his prior conviction
unfairly prejudiced his case by influencing the jury’s verdict
against him on the other charged crimes; armed bank robbery
and use of a firearm during a violent crime. Puckett states
that, although the jury had no trouble reaching a unanimous
verdict on the possession with intent to distribute charge,
it reported to the trial judge that it was deadlocked on the
remaining two charges, an impasse that it subsequently
resolved after the judge ordered further deliberations. The
implication being that the jury relied on the prior conviction
for drug trafficking to paint him as a criminal who would
also carry out a bank robbery. However, Puckett’s argument
is based on nothing but pure, self-serving speculation, and
finds no support in the record. Juries frequently encounter
an impasse in their deliberations for reasons that are a
mystery to all but the jurors on the panel, and aside from
his own self-serving intimation and conjecture Puckett prof-
fers no logical basis or factual evidence that would support
a conclusion that the jury ended its impasse and returned
guilty verdicts on all counts, based upon its consideration of
evidence of his prior conviction for drug trafficking. See id.The court specifically instructed the jury during the trial in
accordance with the approved Seventh Circuit jury pattern
instruction on two separate occasions: once during trial
shortly after the evidence of Puckett’s prior conviction was
offered, that “[you] should consider this evidence only as it
relates to this case for the purpose of intent or knowledge.
It may not be considered as evidence of anything else, and
[may only be considered] for the purpose of knowledge or
intent as related to a charge here against the defendant”;
and then again before the jury began deliberating, that
“[y]ou have heard evidence of acts of the defendant other
No. 03-3832 17
than those charged in the indictment. You may consider this
evidence only on the question of the defendant’s knowledge
and intent as to Count 3 [the drug charge]. You should only
consider this evidence for these limited purposes.” We are
convinced that this limiting instruction given to a jury
(especially when taken nearly verbatim from the Seventh
Circuit Pattern Jury Instructions) is most “effective in
reducing or eliminating any possible unfair prejudice from
the introduction of [evidence of prior bad acts].”10 Id. We
presume “that jurors, conscious of the gravity of their task,
attend closely the particular language of the trial court’s
instructions in a criminal case and strive to understand,
make sense of, and follow the instruction given them.”
United States v. Linwood, 142 F.3d 418, 426 (7th Cir. 1998)
(quoting Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985)).
And this presumption can “only [be] overcome if there is an
‘overwhelming probability’ that the jury was unable to
follow the instruction as given.” Id. (quoting Doe v. Johnson,
52 F.3d 1448, 1458 (7th Cir. 1995)). Based on this record
“we are confident that the jury diligently assumed their
duty and obligation under the law and followed the court’s
instructions” to consider the evidence of Puckett’s prior
conviction for the limited purposes of his knowledge and
intent as it related to the drug charge, Gregory-Bey v.
Hanks, 332 F.3d 1036, 1049 (7th Cir. 2003). Puckett has
failed to demonstrate that the jury disregarded the judge’s
instructions, or that the admission of the evidence of his
10
At oral argument, Puckett’s counsel contended that the limiting
instructions given by the trial judge were confusing and added to,
rather than dispelled the prejudicial effect of admitting evidence
of his prior conviction. Puckett did not develop this argument in
his briefs however, so it is waived. United States v. Collins, 361
F.3d 343 (7th Cir. 2004). Moreover, we also note that Puckett
failed to object to this jury instruction at trial.
18 No. 03-3832
prior conviction “induce[d] the jury to decide the case on an
improper basis . . . rather than on the evidence presented.”11
Long, 86 F.3d at 86. Accordingly, he has failed to demon-
strate that the admission of the evidence was unfairly
prejudicial.
Because evidence of Puckett’s prior conviction for pos-
session and distribution of crack cocaine was probative,
relevant and not unfairly prejudicial pursuant to Rule 404(b),
we conclude that the district court did not abuse its dis-
cretion in admitting the evidence of his prior conviction.
B. Refusal to Instruct on the Lesser-Included
Offense
Puckett argues that the trial judge erred when he refused
to instruct the jury on the lesser included offense of simple
possession. Puckett requested that the court give the jury
an alternate instruction stating that: “If you find the
defendant not guilty of the crime of possession of 63 grams of
cocaine with intent to distribute charged in the indictment
(or if you cannot unanimously agree that the defendant is
guilty of that crime), then you must proceed to determine
whether the defendant is guilty or not guilty of the lesser
offense of simple possession of 63 grams of cocaine.” See
Federal Criminal Jury Instructions of the Seventh Circuit
7.02 (1999). “To be entitled to an instruction regarding a
lesser-included offense, a defendant must establish that (1)
the offense on which he seeks an instruction is a lesser-in-
cluded offense of the one charged, and (2) a rational jury
could find him guilty of the lesser offense but not guilty of
11
The government presented a wealth of evidence to demonstrate
Puckett’s guilt on both the armed robbery and use of a firearm
during a violent crime charges. See supra at pp. 3-6.
No. 03-3832 19
the greater offense.” United States v. McCullough, 348 F.3d
620, 624 (7th Cir. 2003). “We review the first prong of that
test de novo and the second prong for an abuse of discre-
tion.” Id.As the government concedes, and our case law makes
clear, “simple possession is indeed a lesser included offense
of possession with intent to distribute.” United States v.
Hill, 196 F.3d 806, 808 (7th Cir. 1999). However, that fact
alone does not mean that Puckett was “entitled to a lesser-
included-offense instruction ‘as a matter of course’.”
United States v. Hernandez, 330 F.3d 964, 972 (7th Cir.
2003) (quoting United States v. Wright, 131 F.3d 1111, 1112
(4th Cir. 1997)). Instead, in order to satisfy the second
prong of the inquiry into whether he was entitled to an in-
struction on the lesser-included offense of simple possession,
Puckett needed to produce sufficient evidence at trial so that
“a jury could rationally find him [guilty] of the lesser offense
yet acquit him of the greater.” Schmuck v. United States,
489 U.S. 705, 716 n.8 (1989).
Puckett offers only his self-serving assertion that the drugs
were intended for personal use only. Indeed, Puckett failed
to present any direct evidence whatsoever at trial that he
was a cocaine user or possessed the drug because he had any
intention of consuming it himself, and also failed to offer
any explanation as to how such a large amount of cocaine
(63 grams) could rationally be considered consistent with
personal use.12 Instead, Puckett’s defense to the govern
12
At oral argument, Puckett’s counsel claimed that the defendant
was a “producer” in the music business, and that because some
individuals in this line of business are notorious for their prodi-
gious drug use, a rational jury could have concluded that Puckett
did possess the drugs for personal use. Counsel argued that Puckett
possessed such a large amount because he had bought in “bulk
quantity” in order to “get a better deal.” However, Puckett did not
(continued...)
20 No. 03-3832
ment’s charge that he possessed the drugs solely for distri-
bution was based upon negative inferences only. He argues
that because no trappings of the drug trade—such as cut-
ting agents, beepers, cell phones, or scales—were found on
his person at the time of his arrest or during a later search
of his grandmother’s residence, and because the officers who
arrested him also found him in possession of a “user quantity”
of marijuana (.7 grams), the jury could have rationally
inferred that he possessed the drugs solely for personal use.
These circumstantial details of his arrest fall far short of
constituting convincing evidence supporting Puckett’s claim
of simple possession, and fail to create a question for the
jury on the issue of whether he possessed such a large
quantity of drugs strictly for personal use. The absence of
any drug dealer’s paraphernalia is inconclusive of personal
use. See Wright, 131 F.3d at 1113. It may be that Puckett
had a separate venue which he used to process the cocaine
for distribution or that he was a mid-level drug runner,
either scenario is irrelevant for each would constitute pos-
session with intent to deliver. Furthermore, we attach no
significance to Puckett’s self-serving assertion that the rela-
tively small amount of marijuana he possessed demonstrated
that he was a user rather than a dealer of that drug, when
the narcotic at issue here is cocaine, and not marijuana.
Even if Puckett was a recreational marijuana user, that fact
alone falls far short of establishing that he was not also a big
time cocaine dealer. It would be antithetical to conclude
that simply because an individual uses drugs, they are not
also involved in the drug trade in a distribution capacity as
well.
12
(...continued)
present this argument to the district court, nor did he even refer
to it in his opening brief. Accordingly, it is waived. See Hottenroth
v. Village of Slinger, 388 F.3d 1015, 1033 (7th Cir. 2004); Collins,
361 F.3d 343.
No. 03-3832 21
Conversely, the government introduced overwhelming
evidence establishing that the quantity of drugs Puckett
possessed could only be intended for distribution. The gov-
ernment’s evidence included testimony from its expert wit-
ness Sgt. Johnson and evidence of the defendant’s prior
conviction for possession of 51 “rocks” of crack cocaine with
intent to deliver, to establish conclusively that Puckett
intended to distribute the cocaine for profit rather than
retain it for personal use. The amount of cocaine Puckett
admitted to possessing, 63 grams, is in excess of what one
would possess for personal use, and is in and of itself suf-
ficient evidence to compel an inference that he intended to
distribute the drug. See United States v. Breland, 356 F.3d
787, 792 (7th Cir. 2004) (“intent to distribute can be inferred
from the possession of a quantity of drugs larger than needed
for personal use”) (quoting United States v. Maholias, 985
F.2d 869, 879 (7th Cir. 1993)); United States v. Turner, 93
F.3d 276, 288 (7th Cir. 1996) (same); Wright, 131 F.3d at
1113; but cf. Hill, 196 F.3d at 807. Puckett’s near-certain
status as a dealer rather than a user was further confirmed
by the expert testimony of Sgt. Johnson, a twenty-six-year
veteran of the police force, who described the precise quantity
of powdered cocaine Puckett possessed—“two-and- a-lick” in
street vernacular—as a “distribution amount” commonly
purchased by street-level dealers to reformulate into crack
or resell in powder form in much smaller quantities.
Sgt. Johnson further stated that, based upon his knowledge
and experience with narcotic interdiction in the Rockford
area, he had never come across any cocaine user who pos-
sessed more than three-and-a-half grams of cocaine for
personal use—Puckett was in possession of 18 times this
much cocaine at the time of his arrest, i.e., for even a
severely addicted user it would take approximately 18 days
to exhaust a 63 gram supply. In addition, the government
also introduced the evidence of Puckett’s conviction for drug
trafficking just six years earlier when he was found with
another, similar large stash of cocaine, which, as discussed
22 No. 03-3832
above, was highly probative (and admissible) evidence of his
intent to distribute the cocaine he possessed.
Because there is no evidence in the record to support
Puckett’s theory that the 63 grams of cocaine found in his
possession in 2002 were for personal use, see Hernandez,
330 F.3d at 972, the district court also did not abuse its dis-
cretion in refusing to instruct the jury on the lesser-included
offense.
III. Conclusion
The decision 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—4-22-05