Seventh Circuit vacates and remands for retrial defendant's conviction for knowingly distributing cocaine base after it finds the government had failed to show that the defendant's prior convictions, admitted by the trial judge under FRE 404(b), were not "directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged"; the Circuit demonstrates the need for a careful consideration of whether prior crime evidence is relevant to a proper purpose, in United States v. Hicks, __ F.3d __ (7th Cir. April 4, 2011) (No. 09–3608)
The Federal Evidence Blog has noted before aspects of the Seventh Circuit's careful assessment of cases involving other crimes evidence, see, e.g., Seventh Circuit Overturns “Inextricable Intertwinement Doctrine” And Creates Conflict With Other Circuits. In a recent case the circuit provided a further example of a strict reading of FRE 404(b). Here the circuit focused on the task of assessing whether the prior crime evidence is admitted for "establishing a matter in issue other than the defendant's propensity to commit the crime charged." Only if a proper purpose can be demonstrated may evidence be admitted under FRE 404(b). This requires the proponent of the evidence show a proper purpose for admitting the evidence and this task often requires much more than a buck shot approach.
In the case, defendant Hicks was convicted after a jury trial of knowingly distributing cocaine base after the trial judge, during the government's case in chief, admitted evidence of the defendant's two prior drug convictions under FRE 404(b). In the Seventh Circuit, a four-part test is employed to assess the admission of prior crimes evidence under the FRE. According to the circuit:
Rule 404(b) provides that evidence of other acts is inadmissible “to prove the character of a person in order to show action in conformity therewith” but may be admissible for other purposes, such as proof of motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident. In determining whether evidence was properly admitted under Rule 404(b), the court considers whether: (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 substantially outweighed by the danger of unfair prejudice, as required by Rule 403."Hicks __ F.3d at __ (citing United States v. Harris, 587 F.3d 861, 864–65 (7th Cir.2009))
After identifying this standard, the Seventh Circuit explained that the government had failed to show the first element required for admission of other crimes evidence-- that the evidence be directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged. In doing this, the circuit addressed each theory that the government and the court articulated for admitting the FRE 404(b) evidence. The circuit concluded that none of the reasons given had any other purpose than to show the defendant's propensity to commit the crime charged. The circuit found in the trial record the following purposes articulated for admitting the prior crimes evidence:
Knowledge:
The circuit found that the government was unable to show that the prior crimes evidence was "relevant to the issue of knowledge or lack of mistake" because the government failed to show the prior crime evidence did not make "the existence of any fact that is of consequence to the determination of the action more probable or less probable.” Hicks __ F.3d __ (quoting FRE 401))
The circuit dismissed the argument that the prior crimes tended "to show that Hicks knew about the 'illicit nature' of the drug distributing business. But this argument is a non-starter because Hicks never claimed that he did not know that selling crack cocaine was illegal or that he did not know how to sell drugs." Similarly, the circuit found that the defendant used a careful "strategy during the government's case-in-chief ... simply to question the [testifying] agents' ability to witness whether [defendant] sold the drugs" to the confidential informant Hurd. "There was no allegation that Hicks's prior drug deals involved Hurd," the circuit noted, nor did "the government ... explain[] why H[icks]'s prior convictions for cocaine possession and distribution make it more likely that he was a 'knowing participant' in this drug deal other than by drawing the prohibited inference of 'once a drug dealer, always a drug dealer.'”Hicks __ F.3d __.
Lack Of Mistake:
The circuit made a similar quick assessment as to whether the prior crime evidence was related to a lack of mistake. There circuit found no there had been no claim of mistake on which to base this admission. Noting that the defendant "never contended that he did not know that the substance for sale was crack cocaine or any other controlled substance," the circuit concluded this could not be a reason for admitting the prior crime evidence. ” Hicks __ F.3d __ (citing United States v. Chavis, 429 F.3d 662, 673 (7th Cir. 2005) (Cudahy, J., concurring) (describing Rule 404(b)'s exception for absence of mistake as “I thought [the drugs] were cough drops”); United States v. Webb, 548 F.3d 547, 548 (7th Cir. 2008) (“As for ‘absence of mistake’: how does a conviction show this except via the prohibited inference that someone who distributes drugs once is likely to do it again?”))Intent:
While the government did not initially urge it at trial, the record disclosed that trial judge stated that the prior crimes evidence was admissible to show the defendant's intent to commit the charged crime. The circuit found little basis for this as a purpose of admitting the evidence. This was particularly because the charged crime, "unlawful distribution of cocaine is a general intent crime, in order for the government to introduce prior bad acts to show intent, the defendant must put his intent at issue first. Hicks __ F.3d __ (citing United States v. Moore, 425 F.3d 1061, 1069 n. 3 (7th Cir .2005) (“[U]nlawfully distributing cocaine in violation of 21 U.S.C. § 841(a)(1) is a general intent crime.”); United States v. Manganellis, 864 F.2d 528, 539 (7th Cir. 1988) (evidence of prior bad acts is ordinarily not admissible to prove general intent crimes such as distribution of cocaine); United States v. Gruttaduro, 818 F.2d 1323, 1328–29 (7th Cir. 1987) (prior bad acts evidence was inadmissible to prove intent because defendant was charged with a general intent crime and defendant did not directly put his mental state at issue); United States v. Shackleford, 738 F.2d 776, 781 (7th Cir. 1984), modified on other grounds by Huddleson v. United States, 485 U.S. 681, 685 (1988) ( “[W]hen intent is only a formal issue, so that proof of the proscribed act gives rise to an inference of intent, then ... evidence of other acts directed toward this issue should not be used in the government's case-in-chief and should not be admitted until the defendant raises the issue.”)).
Because the defendant "did not put his intent at issue during the government's case-in-chief — he waived his opening statement and his strategy during the first half of the trial was to undermine the agents' testimony by questioning their ability to tell who gave [informant] Hurd the drugs." A defendant's "claim that he did not commit the alleged acts" was insufficient to "put his intent at issue" and therefore was not a basis for admission of prior crime evidence. Otherwise, "finding that Hicks put his intent at issue by merely claiming innocence would 'create an exception that would virtually swallow the rule against admission of evidence of prior misconduct' in general intent cases." Hicks __ F.3d __ (citing United States v. Manganellis, 864 F.2d at 522-33; Shackleford, 738 F.2d at 781 (finding that defendant charged with general intent crime did not place his intent at issue by maintaining throughout trial that he never committed the acts alleged)
Entrapment:
There was no ground for introducing the other crime evidence based on the defendant raising an entrapment defense. The defendant did not pursue this issue until the trial judge had admitted the challenged FRE 404(b) evidence. The government "may not introduce propensity evidence unless the defendant places the issue of entrapment into controversy," noted the circuit. It rejected this basis for admitting the prior crimes evidence in Hicks case. Hicks __ F.3d __ (citing United States v. Goodapple, 958 F.2d 1402, 1407 (7th Cir. 1992) (“When the entrapment defense is clearly raised in the defense's opening statement and the entrapment defense obviously materializes through a defendant's presentation of its own witnesses or through cross-examination of the government's witnesses, it is not error for the government to present evidence of predisposition in its case-in-chief”), with United States v. McGuire, 808 F.2d 694, 696 (8th Cir. 1987) (finding that it was error for the district court to allow the government to introduce rebuttal evidence in its case-in-chief in anticipation of an entrapment defense that was proposed in defense counsel's opening statement but that never actually materialized)).
Accomplice Liability:
Finally, the circuit did not credit that admission of the prior crimes evidence was based on accomplice liability. The problem with this basis was the same as the problem with alleging the basis was to rebut a defendant's entrapment defense. "Only after Hicks testified that he had arranged for the drug sale did the government assert an accomplice theory of the case. As with the entrapment defense, Hicks's intent was only placed at issue after the convictions had already been admitted into evidence." Hicks __ F.3d __ (footnote omitted))
After rejecting the various proffered reasons for admitting evidence of the defendant's prior crimes, the circuit, in effect, declared a strike-out. The circuit concluded that the error in admitting the prior crimes evidence was not harmless and so the conviction would have to be vacated. The evidence presented at trial was certainly sufficient to convict, but the verdict had to be vacated because the circuit concluded "that an average juror would have found the government's case significantly less persuasive without the prior convictions." Hicks __ F.3d __ (citing United States v. Blanchard, 542 F.3d 1133, 1151 (7th Cir.2008) (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).
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