United States v. Theodore Howard

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2495
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T HEODORE H OWARD ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07-CR-674—Ronald A. Guzman, Judge.
A RGUED M AY 25, 2012—D ECIDED A UGUST 22, 2012
Before P OSNER, F LAUM, and W OOD , Circuit Judges.
F LAUM, Circuit Judge. In the summer of 2006, Theodore
Howard and Andrea Brown ended their romantic rela-
tionship, and Howard was not pleased. Throughout the
next year, Howard alternated between attempts to recon-
cile with Brown and attempts to harm her. He sent
letters to Brown begging her to take him back and to
allow him to see their son, but he also hired someone
to throw acid in her face, surveilled her house, and alleg-
2 No. 11-2495
edly paid a man named Telly Virgin to shoot at the
METRA train that she operates.
A jury found Howard guilty of hiring Virgin to shoot
at a METRA train in an attempt to murder Brown.
At trial, the government introduced several pieces of
evidence to prove that Howard took repeated actions
between the summer of 2006 and the summer of 2007
that were consistent with a motive and intent to
harm Brown. Howard claims that this evidence was
impermissible under Federal Rule of Evidence 404(b),
which prohibits evidence of a defendant’s prior bad
acts unless the evidence is introduced for a permissible
purpose and is not unfairly prejudicial. The district court
rejected this argument, and Howard now appeals. In
addition, Howard appeals the district court’s denial of
his motion to empanel a new jury. He contends that the
messages from two jurors, which asked the judge why
Howard was taking notes during the voir dire discus-
sion of jurors’ personal information, indicate that the
jury had prejudged him. For the following reasons, we
hold that the district court did not abuse its discretion
by admitting evidence of Howard’s prior bad acts or
by declining to empanel a new jury. We affirm the judg-
ment of the district court.
I. Background
A. Factual Background
Andrea Brown, an engineer for the METRA Electric
Line 601 Train, had dated Howard for many years, begin-
No. 11-2495 3
ning in the mid-1980s. For the final seven or eight years
of their relationship, Howard and Brown lived together
and referred to themselves as husband and wife. Brown
has two sons, the younger one fathered by Howard.
In June 2006, Brown informed Howard that she no
longer wanted to see him and asked him to move out.
Howard reacted poorly—a physical altercation ensued,
and Brown filed charges. Brown obtained a protective
order, which barred Howard from living with or having
any contact with Brown, granted Brown custody of their
son, and restricted Howard’s visitation rights with
their son. In July 2006, Brown obtained a second court
order, which required Brown’s elder son to be present
for any visits between Howard and their son. This
order also prohibited Howard from going to Brown’s
place of employment.
The government put on evidence at trial that Howard
began a string of activities during the summer of 2006
aimed at either reconciling with Brown or harming her.
The first of these incidents occurred on July 28, 2006,
when a man named Ron Windom went to Brown’s
home on the pretext of offering lawn care services.
When Brown opened the door, Windom threw a liquid
on her face, exclaiming, “This is for you, bitch.” The
liquid burned Brown’s face and melted her clothes and
carpet. Brown claims to have recognized the substance
as muriatic acid by its smell, since she and Howard
had previously used that substance on their driveway.
Windom claims that an African-American man with
gray and white hair, whom he had met at a mutual
4 No. 11-2495
friend’s home, hired him to throw the caustic liquid on
Brown in exchange for $50. After receiving a promise
not to prosecute, Windom told the police this story and
identified a picture of Howard as the man who had paid
him to accost Brown. In 2008, Windom again picked
Howard out of a photograph lineup.
A few days after the caustic liquid incident, Brown
saw Howard as she was driving through her neighbor-
hood. According to Brown, Howard told her: “You better
drop them charges or else you know what’s going to
happen to you.” As he said this, he pointed his fingers
at her in the shape of a gun.
Despite this alleged aggression, Howard made several
attempts to reconcile with Brown between August 2006
and January 2007. He sent her several letters, in which
he conveyed his strong feelings for her, requested a
reconciliation, and expressed the hurt he felt at not
having more time with his son. At the end of August, he
placed a call to Brown, which she did not answer. Later
that day, Brown noticed Howard walking in her back-
yard and peeking in her window. Brown also saw
Howard on several occasions standing on METRA plat-
forms as she drove the 601 train past him.
In December 2006, Brown had the protective court
order against Howard altered to eliminate his visita-
tion rights with their son. Howard nonetheless placed
a greeting card and $50 on her door in January, asking
her to buy herself something nice and to meet up with
him. She did not accept the offer to meet.
In January 2007, Howard was living with his friend,
Linda Tigner. At some point, Tigner observed Howard
No. 11-2495 5
listening to an audio recording of a female. When she
inquired about it, Howard told her that he had tapped
Brown’s phone and was listening to her calls.
In April 2007, Howard met Telly Virgin, a drug addict
and the man who would eventually confess to shooting
at the METRA train that summer. They began spending
most days together. Howard would drive Virgin to
METRA stations where they would sit, as Virgin smoked
crack and Howard waited for his “wife” to arrive. Occa-
sionally, Virgin would drop Howard off at a METRA
station and pick him up later. Virgin claims that Howard
expressed anger toward a man named Chris whom
Howard had paid to shoot his wife but instead only shot
at her truck. Brown reported this incident to the police
after discovering a bullet hole in her car in the movie
theater parking lot.
Virgin claims that in May 2007 Howard asked him
how much he would charge to kill Howard’s wife, to
which Virgin named a price of $500. According to the
government, Howard next obtained a gun and planned
for Brown’s murder. Virgin says that, in early June,
Howard bought him crack (which he smoked) and took
him to the Stewart Ridge METRA station. There,
Howard described his plan. Virgin would wait on the
platform with the gun and a two-way radio. When
Howard notified him that Brown’s train was ap-
proaching, Virgin would shoot at the passing train and
they would escape in Howard’s car. They conducted a
test run.
Virgin claims that on June 6, 2007, Howard gave him a
firearm at the Stewart Ridge METRA station and then
6 No. 11-2495
parked the car where Howard could see the tracks.
When the 503 train pulled up, Howard advised Virgin
that it was not Brown’s train. When the next train
arrived—the 601 train—Howard told Virgin that it was
Brown’s train. Virgin fired several shots (allegedly
aiming high on purpose), which pierced the outer shell
of the train but did not enter the engineer’s cab, and then
fled. Howard gave Virgin fourteen $10 bags of crack and
promised to pay the remainder later. Unbeknownst to
them, Brown had switched assignments with another
worker and was not working that day.
Howard quickly learned that Brown was still alive so,
as Virgin tells it, they tried again. On June 8, 2007,
Howard’s brother drove Howard’s car and took Virgin
to the METRA station. The events of June 6 were repli-
cated: Virgin let the 503 train pass, shot at the 601 train,
missed (perhaps on purpose) again, and received
$20 to $30 worth of crack. Once again, Brown was in-
cidentally absent from her normal train route since she
decided to take the day off. Virgin claims that, when
Howard discovered that Brown was still alive, he asked
Virgin to kill her at her house. Virgin refused.
In July 2007, the car that was allegedly used as the
getaway car was impounded. Virgin says that Howard
asked him to go into the car to retrieve the gun and two-
way radios that were used for the train shootings.
Howard gave Virgin a document to get notarized so that
Virgin could access the impounded car. The document
represented Tigner’s authorization for Virgin to retrieve
the car, though the government claims that her sig-
No. 11-2495 7
nature was forged. Virgin got the document notarized,
accessed the car, and removed the gun and radios.
Howard put the items into his new car. Virgin claims
that he later sold the gun for money and crack.
B. Procedural Background
Howard was indicted by a grand jury on two counts
of each of the following charges: (1) interfering with the
engineer of a passenger train, with the intent to en-
danger the safety of any person and with a reckless
disregard for the safety of human life, while the
engineer was operating a passenger train that was trans-
porting train company employees, in violation of 18 U.S.C.
§§ 1992(a)(6) and (10), 1992(b)(1), and 2 (Counts 1 and 4);
(2) committing and attempting to commit an act,
namely, the use of a firearm, with the intent to cause
serious bodily injury to a train company employee
while such person was inside of a passenger train
located on tracks used in the operation of a mass trans-
portation vehicle, in violation of 18 U.S.C. §§ 1992(a)(7)
and (10), 1992(b)(1), and 2 (Counts 2 and 5); and (3) know-
ingly using and carrying a firearm during and in rela-
tion to a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2 (Counts 3 and 6).
During voir dire, defense counsel warned the venire
that the trial would include evidence of “bad acts” that
were not part of the criminal charges, and the parties
sought to determine whether each prospective juror
could remain impartial in the face of these additional “bad
8 No. 11-2495
acts.” The district court also informed the venire of the
presumption of the defendant’s innocence. Additionally,
during voir dire, jurors were asked several questions
relating to their personal information. Howard was
taking notes during this process. At the conclusion of
voir dire, after fourteen jurors had been chosen, two
jurors passed notes to the judge. The first note stated,
“Our concerns was the defendant was writing note
and watch us all. We did give out a lot of person infor-
mation.” The second note read, “Do we have anything
to fear? I couldn’t see the defendant however was told
that he was taking notes during our interviews, pos-
sibly writing our names, which we had to spell, our
residences, our children and their ages.” Howard argued
to the district court (and maintains on appeal) that
these notes evidence prejudgment by some or all of
the jurors.
In response to the jurors’ notes, the district court ex-
plained that note-taking was meant to help Howard’s
defense, that it is a very common practice, and that
there was no reason for alarm. Both note-writers were
satisfied by this response and confirmed that they did
not have any problems. The court reminded the jury of
the presumption of innocence, asked the jurors if they
had any concerns, and permitted the parties to question
the jurors about whether they were afraid or had pre-
judged Howard. The jurors denied being afraid and
explained that their concerns were general and proce-
dural. The court then asked each of the jurors if they
could be impartial, and the jurors responded in the affir-
No. 11-2495 9
mative. Nevertheless, Howard moved to discharge all
of the jurors, which the district court denied.
At trial, the district court admitted several pieces of
evidence under Federal Rule of Evidence 404(b) that
were offered to prove certain “other acts” committed
by Howard. The evidence, the court explained, was not
admitted to show that Howard had a propensity to
commit bad acts, or any particular bad act, but rather
to prove some other matter at issue in the case, such as a
possible motive for committing the charged crimes. The
court admitted most of the evidence of “other acts.” In
particular, the district court permitted the government
to present evidence of the following: (1) the protective
court orders, (2) the caustic liquid incident, (3) Howard’s
alleged threat to shoot Brown, (4) Howard’s surveillance
of Brown, including his recording of her phone
calls, (5) Howard’s hiring of “Chris” to shoot Brown,
(6) Howard’s supplying crack to Virgin to entice him to
shoot Brown, and (7) Howard’s recruitment of Virgin
to retrieve his gun and two-way radios from the im-
pounded car. The court instructed the jury about the
limited uses of this other-acts evidence during voir dire,
again when each piece of other-acts evidence was in-
troduced, and again as part of the final instructions.
The jury convicted Howard on all counts. The dis-
trict court sentenced Howard to life imprisonment, fol-
lowed by a mandatory consecutive sentence of 35 years’
imprisonment. Howard appeals the district court’s ad-
mission of the “other acts” evidence detailed above, as
well as the district court’s refusal to empanel a new jury.
10 No. 11-2495
II. Discussion
A. Rule 404(b) and the Admission of “Bad Acts” Evi-
dence
We review challenges to the district court’s evidentiary
rulings for an abuse of discretion. United States v. Long,
86 F.3d 81, 83 (7th Cir. 1996). In fact, “[t]he district
court’s evidentiary rulings are afforded special deference
and will be reversed ‘only where no reasonable person
could take the view adopted by the trial court.’ ” United
States v. Reese, 666 F.3d 1007, 1015 (7th Cir. 2012) (altera-
tion omitted) (quoting United States v. Vargas, 552 F.3d
550, 554 (7th Cir. 2008)).
Rule 404(b) bars the admission of “[e]vidence of a
crime, wrong, or other act” that is intended to show the
character of a defendant and thereby suggest conformity
with such character. FED. R. E VID. 404(b)(1); see also
United States v. Montani, 204 F.3d 761, 767 (7th Cir. 2000).
Nevertheless, “[t]his evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, ab-
sence of mistake, or lack of accident.” FED. R. E VID.
404(b)(2).1 We use a four-part test for determining whether
a particular piece of other-acts evidence is admissible:
1
We no longer allow proof of other acts that are “inextricably
intertwined” with the charged crimes. See United States v.
Gorman, 613 F.3d 711, 718-19 (7th Cir. 2010). While the gov-
ernment attempted to use this doctrine at trial, the district
court did not rely on it when admitting the evidence at issue.
Thus, we need not address Howard’s arguments regarding
this theory.
No. 11-2495 11
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propensity
to commit 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 substan-
tially outweighed by the danger of unfair prejudice.
Reese, 666 F.3d at 1015 (quoting United States v. Baker, 665
F.3d 677, 681 (7th Cir. 2011)). The final prong of this test
incorporates Rule 403’s balancing of prejudice and proba-
tive value. See F ED. R. E VID. 403; United States v. Moore,
641 F.3d 812, 824 (7th Cir. 2011).
1. Purpose for the Other-Acts Evidence
The first prong instructs the district court to consider
whether the evidence of the other act is being introduced
for a purpose other than to show the defendant’s propen-
sity to commit the crime charged. See Reese, 666 F.3d at
1015; see also United States v. Jones, 389 F.3d 753, 756
(7th Cir. 2004) (“Evidence of prior convictions 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.”).
Though Howard does not contend that the other-
acts evidence was admitted to show propensity, it is
helpful for us to begin by analyzing the purpose that
each piece of evidence serves so that we may determine
12 No. 11-2495
how probative it is, an important part of the fourth
prong of our test.
The district court correctly observed that the protective
orders, which prevented Howard from seeing his ex-
girlfriend and his son, were strong evidence of a likely
motive to kill Brown. The protective orders therefore
serve a legitimate non-propensity purpose. Similarly, the
caustic liquid incident may aid in proving motive since
Howard’s decision to hire someone to accost Brown
tends to show that he had a reason to harm her. In addi-
tion, since specific intent to harm Brown is an element
of the crimes charged and the caustic liquid incident
is highly probative of Howard’s present intent, this
incident satisfies the non-propensity purpose of intent.
The government met its burden of “affirmatively
show[ing] why a particular prior conviction tends
to show the more forward-looking fact of purpose,
design, or volition to commit the new crime.” Jones,
389 F.3d at 757.
The next prior bad act—Howard’s threat to shoot
Brown unless she dropped the charges against him—is
powerful evidence of his intent to harm Brown and his
motive to kill her. The motive underlying his threat to
shoot her is probative of his motive underlying his
later decision to kill her.2
2
The district court also found the evidence of the caustic
liquid incident and of Howard’s pantomimed threat to be
admissible for the purpose of proving identity. In light of the
(continued...)
No. 11-2495 13
The district court properly deemed Howard’s surveil-
lance of Brown’s home and his recording of her calls
as illustrative of his motive and intent to reconcile
with Brown, which eventually morphed into anger
toward her. Evidence of these other acts is therefore
probative of Howard’s motive and intent to kill Brown.
In addition, the recording of Brown’s calls is relevant
as evidence of Howard’s preparation and planning of
the crimes.
Similarly, Howard’s hiring of “Chris” to shoot and kill
Brown is relevant because it illustrates that Howard
had a reason or motive to kill Brown, an intent to kill
Brown, and a plan for killing Brown. Further, this plan
shares characteristics with the crime charged. Howard’s
provision of crack to Virgin after the shootings is also
probative of the existence of a criminal plan, specifically
to reimburse someone for killing Brown. Finally, we
agree with the district court that Howard’s recruitment
of Virgin to retrieve his gun and radios illustrates
that Howard had the means and opportunity to have
Brown killed, given that he had the tools necessary to
conduct the attempted murder.
Because each piece of other-acts evidence disputed by
Howard serves a permissible (i.e., non-propensity) pur-
pose, the first prong of the 404(b) framework is satisfied.
2
(...continued)
fact that we have already determined that this evidence
was admissible for other purposes, there is no need to discuss
its admissibility for the purpose of proving identity.
14 No. 11-2495
2. Relevance: Time and Similarity
The second prong of our Rule 404(b) test requires that
the other act be “similar enough and close enough in
time to be relevant to the matter in issue.” Reese, 666
F.3d at 1015. Howard briefly argues that none of the
other acts involved hiring a third party to shoot directly
at a person, and thus they are too dissimilar from the
crime charged to be relevant. He also argues that the
other acts are too removed from the crime temporally,
stressing that the chronological beginning of the other-
acts evidence—the protective orders—occurred a full
year before the train shootings.
The similarity requirement does not require the
other acts to be identical to the charged crime. They
need only share common characteristics that “relate to
the purpose for which the evidence is offered.” Long, 86
F.3d at 84 (quoting United States v. Torres, 977 F.2d 321,
326 (7th Cir. 1992)); see also Montani, 204 F.3d at 768
(“[T]he term ‘similarity’ has been loosely interpreted and
loosely applied.”). When evidence is presented to
show intent, “[s]imilarity is relevant only insofar as the
acts are sufficiently alike to support an inference of crimi-
nal intent. . . . The prior acts need not be duplicates of
the one for which the defendant is now being tried.”
Reese, 666 F.3d at 1015 (quoting United States v. Lloyd,
71 F.3d 1256, 1265 (7th Cir. 1995)) (emphasis omitted).
Howard’s payments to Windom to throw acid on
Brown and to “Chris” to shoot Brown are certainly
similar enough to show that Howard had the intent to
harm Brown then and at the time of the train shootings.
No. 11-2495 15
Further, the acts of recording Brown’s phone calls and
surveilling her house are sufficiently similar to the
charged crime because they share the characteristic of
demonstrating Howard’s obsession with Brown.
Where evidence is not introduced to show intent or
knowledge, the similarity inquiry essentially insures
that the crime charged and the other-act evidence are
sufficiently related through the 404(b) purpose for which
the other-acts evidence was introduced. See W EINSTEIN ’S
F EDERAL E VIDENCE § 404.21 (2012) (“To establish that
the defendant is sufficiently connected to the other act
or offense, some circuits expressly require that the
other act or offense be similar and close in time to the
charged offense, especially if the evidence is directed to
the consequential fact of intent or knowledge.”). Because
we determined in the preceding section that the other-
acts evidence were highly probative for the purposes
for which they were introduced, no further analysis is
necessary here.
Howard’s argument that the other acts are not close
enough in time to be relevant also fails. “The analysis of
‘how long is too long’ is a flexible one, and the answer
depends on the theory for which the evidence is of-
fered.” United States v. Ruiz, 178 F.3d 877, 880 (7th Cir.
1999) (citing Torres, 977 F.3d at 326). The mere fact that
some of the other acts are one year apart from the
crime charged does not, by itself, preclude their use. See
United States v. Kreiser, 15 F.3d 635, 640 (7th Cir. 1994)
(determining that seven years is “close enough” to be
relevant). Here, the protective orders are the acts most
16 No. 11-2495
temporally removed from the train shooting. The
district court deemed these relevant because they
remained in effect through the time of the shooting.
Howard nonetheless argues that these acts, along with
several of the other acts, are too far removed because
they do not explain why he would not have attempted
to shoot Brown earlier, closer to the issuance of the pro-
tective orders. The district court rejected this argu-
ment, reasoning that the government had established
Howard’s ongoing obsession with Brown and his vacilla-
tion between wanting Brown back and being violently
angry at her refusal to take him back. Since all of the
other acts mentioned above fit neatly within this nar-
rative, the district court did not abuse its discretion by
deeming those acts sufficiently close in time to be
relevant to the matter at issue.
3. Sufficiency of Evidence
Howard next argues that the evidence used to prove
the other acts at issue was not sufficient for a jury to
find that he was the one who committed those other
acts. Rule 404(b) evidence “is relevant only if the jury
can reasonably conclude that the act occurred and that
the defendant was the actor.” United States v. Heath, 188
F.3d 916, 921 (7th Cir. 1999) (quoting Huddleston v. United
States, 485 U.S. 681, 689 (1988)). We must therefore deter-
mine whether there is enough evidence such that a jury
could have reasonably concluded that the other acts
took place and that they were undertaken by Howard.
No. 11-2495 17
Howard first attacks the sufficiency of the other-acts
evidence by calling into question Virgin’s testimony in
support of Howard’s hiring of “Chris” to shoot at Brown,
Howard’s payment of crack to Virgin for shooting at the
train, and Howard’s request for Virgin to retrieve
his gun from the impounded car. Howard claims that
Virgin’s testimony contains contradictions and is uncorrob-
orated, that Virgin received a plea deal in exchange
for testifying, and that Virgin is a crack addict with a
criminal record. Thus, Howard contends, Virgin’s testi-
mony cannot serve as the foundation for any prior bad
acts. We have previously explained, however, that eye-
witness testimony does provide a foundation for a rea-
sonable finding by the jury. See Long, 86 F.3d at 85.
Virgin’s credibility may not be strong, but “[c]redibility
determinations are left to the jury . . . especially where
the witness was thoroughly cross-examined.” Id. More-
over, Virgin’s testimony was in fact corroborated. His
testimony regarding Howard’s admissions about the
“Chris” incident is corroborated by the fact that there
was a bullet hole in the car and that Brown reported
the incident to the police. Virgin’s testimony about the
exchange of drugs for shooting at the train is cor-
roborated by the absence of any other logical reason
for Virgin to shoot at a random train or at a stranger.
Finally, Virgin’s testimony about being asked by Howard
to retrieve items from the impounded car using a letter
from Tigner is corroborated by the fact that Tigner is the
true owner of Howard’s car. The district court,
therefore, did not abuse its discretion by finding that
a reasonable jury could have relied on Virgin’s testimony
18 No. 11-2495
for the establishment of certain other acts committed
by Howard.
Howard next challenges the testimony of Windom (the
acid-thrower) and Brown. The fact that both Windom
and Brown testified to witnessing some of the other acts
is enough for a reasonable jury to believe that those
acts occurred. Further, there is no reasonable explana-
tion for why Windom would throw acid at a stranger
other than the explanation provided during trial. More-
over, most of Windom’s and Brown’s testimony is cor-
roborated by other evidence. Windom’s testimony is
corroborated by his ability to pick Howard out of a
lineup. Brown’s testimony about the window-peering
incident is corroborated by Howard’s own admissions in
a separate court proceeding. Her testimony about
Howard’s pantomimed threat was corroborated by
Virgin’s testimony, which suggests that Howard did
actually try to have Brown shot.
In sum, the evidence is certainly sufficient for a rea-
sonable jury to find that the other acts at issue occurred,
and thus the district court did not abuse its discretion.
4. Probative Value vs. Prejudicial Effect
The final prong of the Rule 404(b) test requires that “the
probative value of the evidence is not substantially out-
weighed by the danger of unfair prejudice.” Reese, 666
F.3d at 1015. The concern with 404(b) evidence is that
jurors will decide that a defendant is guilty because
they believe that he has a propensity for committing
No. 11-2495 19
the charged crime or that he simply has a bad character,
making him more likely to commit crime in general.
When balancing prejudice against probative value, it is
important to keep in mind that all relevant evidence
is prejudicial and that evidence must be unfairly
prejudicial in order for it to be inadmissible under this
prong. See Long, 86 F.3d at 86. We have explained that
“[e]vidence is unfairly prejudicial only to the extent that
it will cause the jury to decide the case on improper
grounds.” United States v. Chavis, 429 F.3d 662, 668 (7th
Cir. 2005) (quoting United States v. Jones, 248 F.3d 671, 676
(7th Cir. 2001)). One way in which 404(b) evidence can
be unfairly prejudicial is by being cumulative,
thereby negating its probative value while retaining its
prejudicial effect. See United States v. Ciesiolka, 614 F.3d
347, 357-58 (7th Cir. 2010); see also F ED. R. E VID. 403.
Howard argues that the “minimal” probative value of
the 404(b) evidence admitted was substantially out-
weighed by its prejudicial effect. He broadly claims that
the other-acts evidence suggested that he was a drug
dealer, a forger, a vandal, an eavesdropper, a stalker, and
a wife beater, making the jury likely to convict him
based solely on the fact that he is a “bad guy.” We
disagree and conclude that the district court did not
abuse its discretion in determining that the probative
value of the 404(b) evidence was not substantially out-
weighed by any prejudicial effect.
Even if the 404(b) evidence left the jury with the impres-
sion that Howard wanted to kill Brown, had a plan to
kill Brown, or had the intent to kill Brown, that effect
20 No. 11-2495
stems from proper uses for the evidence and thus
enhances its probative value. The jury’s conclusions
flow logically from the admissible purposes of the other-
acts evidence, rather than from an abstract belief that
Howard is a bad person who commits crimes and thus
must have committed this attempted murder.
Further, the district court minimized the danger of
unfair prejudice by implementing several prophylactic
measures. During voir dire, the court emphasized that
“[t]he defendant is charged with certain crimes and it is
those crimes and those crimes only that you are to
consider in deciding whether he’s guilty or innocent.
What kind of person he is doesn’t matter.” Before trial,
the district court also cautioned the jury that if it is in-
structed that some item of evidence is received for a
limited purpose only, it must follow that instruction
and consider the evidence only for that limited purpose.
The court repeated this limiting instruction when each
piece of other-acts evidence was presented and once
more during the court’s final instructions prior to the
deliberation. Absent evidence to the contrary, “we
assume that limiting instructions are effective in
reducing or eliminating unfair prejudice.” Vargas, 552
F.3d at 557. Here, there is no indication that the jury
could not or did not follow the limiting instructions.
We therefore hold that the district court did not abuse
its discretion in admitting the other-acts evidence
under Rule 404(b).
No. 11-2495 21
B. The Denial of Howard’s Motion to Empanel a
New Jury
We review a district court’s decisions concerning jury
impartiality for an abuse of discretion. United States v.
McClinton, 135 F.3d 1178, 1186 (7th Cir. 1998). “The deci-
sion whether to dismiss any or all jurors lies in the
sound discretion of the trial judge,” and we will only
reverse that decision if “manifest injustice resulted from
the judge’s refusal to dismiss all of the jurors.” United
States v. Lott, 442 F.3d 981, 984 (7th Cir. 2006) (quoting
United States v. Jones, 696 F.2d 479, 492 (7th Cir. 1982)).
Howard argues that the two juror notes, relaying the
jurors’ concern about Howard’s note-taking during voir
dire, indicate that the jury was afraid of Howard and
thus prejudged him. Though Howard acknowledges that
remedial measures were taken, he suggests that more
should have been done, especially since one juror
still seemed “angry” when asked about her note. He
concedes that the jurors claimed to be impartial, but he
contends that their actions suggested otherwise. We
cannot accept Howard’s claims.
As an initial matter, neither note conveyed that
anyone was afraid of the defendant: one note simply
expressed “concerns,” and the other asked whether
the jurors should be afraid. In United States v.
McAnderson, a juror asked if the jurors taking public
transportation could be walked to the bus depot, given
the severe accusations in the case. 914 F.2d 934, 943 (7th
Cir. 1990). We held that the note “does not in any
way demonstrate that the defendants’ jury was less
22 No. 11-2495
than fair and impartial,” and we observed that the use
of the term “accusations” instead of “crimes” indicated
that the jurors were sufficiently impartial. Id. Similarly,
the jurors in this case all confirmed that they had not
prejudged the defendant, and the jurors who had
written the notes clarified that they were concerned
with the procedure and were not afraid of the defen-
dant. Further, the district court took several remedial
steps to insure that the jury had not prejudged Howard.
The court explained the importance of note-taking, ques-
tioned the jurors individually, asked the notes’ authors
whether they were afraid of Howard, and allowed the
parties to question the jurors. The jurors individually
confirmed that they had not prejudged Howard. “[W]e
credit jurors’ affirmation of impartiality, [a]bsent any
reasons to suspect as untrue the jurors’ claims of ability
to remain impartial . . . .” Lott, 442 F.3d at 984 (quoting
United States v. Moutry, 46 F.3d 598, 603 (7th Cir. 1995)).
Finding no reason to question the jurors’ claims of im-
partiality, we hold that the district court acted well
within its “sound discretion” when it denied Howard’s
motion to empanel a new jury.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
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