UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Barry KRAMER, Randy Thomas Lanier, Eugene Albert Fischer, and Kay Dee Bell, Jr., Defendants-Appellants.
Nos. 88-3444 to 88-3446, 89-1025 and 89-2752.
United States Court of Appeals, Seventh Circuit.
Argued April 20, 1990. Decided Jan. 30, 1992.
As Amended Feb. 4, 1992. As Amended on Denial of Rehearing and Rehearing En Banc April 14, 1992.
955 F.2d 479
The majority opinion, on the other hand, finds no error, factual or legal, in the FTC order requiring the maintenance of sixty-four hours of showroom operation per week and merely suggests an alternative approach for the Commission to “consider” on remand. There is no warrant for disagreeing with the FTC on this issue when no finding is made that the Commission‘s decision or order was erroneous. To the extent that the majority finds no fault with the Commission‘s findings, but nevertheless remands this matter for reconsideration of the ordered remedies with the suggestion that the court has a better idea, it acts beyond its judicial authority.
For these same reasons, I also disagree with the majority‘s direction to the FTC to consider whether thirty days is sufficient time to investigate a complaint and conduct a hearing. Again, there is no finding of error, no finding of abuse of discretion, and no finding of the lack of substantial evidence. The FTC apparently found thirty days to be sufficient time for these matters. We have no authority—as distinguished from “power“—to question the FTC‘s decision in this regard or to direct the Commission to “rethink” this matter.
It is not the task of this court to instruct the FTC on how to carry out its mission. We sit for the limited purpose of reviewing the legality of the Commission‘s actions, not to advise it on “fairer” results or procedures. For these reasons, I strongly but respectfully dissent from part IV of the majority opinion.
V.
In conclusion, I would enforce the FTC‘s order in its entirety because the Commission‘s findings of fact are supported by substantial evidence and its conclusions of law are not erroneous.
Mary C. Bonner, Fort Lauderdale, Fla., Richard O. Hart, Hart & Hart, Benton, Ill., Albert J. Krieger (argued), Susan W. VanDusen, Miami, Fla., Robert A. Drew, Marion, Ill., J. David Bogenschutz, Fort Lauderdale, Fla., for Benjamin B. Kramer.
Nathan P. Diamond (argued), Miami, Fla., Robert I. Kalina (argued), Edward M. Chikofsky (of counsel), New York City, for Eugene A. Fischer.
Michael Stepanian, Joseph J. Wiseman, San Francisco, Cal., Burton H. Shostak (argued), D.J. Kerns, Moline, Ottsen, Mauzé, Leggat & Shostak, St. Louis, Mo., for Kay D. Bell, Jr.
Jack Carey, Belleville, Ill., Joseph Beeler, Miami, Fla., Robert W. Ritchie (argued), W. Thomas Dillard, David M. Eldridge, Ritchie, Fels & Dillard, Knoxville, Tenn., for Randy T. Lanier.
Before CUMMINGS, CUDAHY and KANNE, Circuit Judges.
KANNE, Circuit Judge.
Appellant Randy Thomas Lanier was a rising star on the auto-racing circuit in the early 1980‘s; indeed, in 1985, he was the rookie of the year at the Indianapolis 500. Lanier apparently did not regard auto racing as a full-time job. Together with appellants Benjamin Barry Kramer, and Eugene Albert Fischer, he directed a vast enterprise which imported several hundred thousand pounds of marijuana into the United States in the 1980‘s. Appellant Kay Dee Bell, Jr. assisted the enterprise in importing two loads of marijuana.
A jury found Lanier, Kramer, Fischer and Bell guilty of conspiring to distribute marijuana in violation of
I.
In 1982, Lanier and Kramer formed a partnership which purchased marijuana from sources in Colombia and imported it to the United States through several locations. Kramer arranged to have marijuana brought from Colombia to Florida on his boat, the “Ursa Major,” while Lanier provided the initial financing for the purchase of the marijuana and distributed it to his customers upon arrival. The enterprise established by Lanier and Kramer imported two boatloads of marijuana on the “Ursa Major” to Melbourne Beach, Florida from Colombia.
The partnership‘s first transaction took place in April, 1982 when Lanier and Kramer arranged to bring 15,000 pounds of marijuana from Colombia to Melbourne Beach, Florida. Kramer and Lanier arranged for the load to be picked up in Colombia, unloaded in Melbourne Beach, and then distributed. Lanier purchased boats to ferry the marijuana from the “Ursa Major” to the beach where Kramer coordinated the unloading of the marijuana into waiting vans. A second load of 20,000 pounds of marijuana was imported in the same manner in August, 1982. Some of the marijuana from this load was purchased by a co-conspirator, Conrad Ingold, and was delivered by him to the Staunton, Illinois area.
Fischer joined Lanier and Kramer in orchestrating the next five transactions, in which a tugload and four bargeloads of marijuana, were brought into the United States. In the third transaction, which took place in the spring of 1983, Lanier, Kramer and Fischer imported 30,000 pounds of marijuana into Bridgeport, Connecticut and arranged its distribution. In the fall of 1983, they brought a bargeload of approximately 14,000 pounds of marijuana to New York. Again, Lanier and Kramer set up its importation and distribution. Some of the marijuana from that load was transported to the St. Louis area for distribution.
In the fifth transaction, which took place in 1984, Lanier, Kramer and Fischer brought a bargeload of 147,000 pounds of marijuana to San Francisco. Bell, who owned Harbor Sand and Gravel Yard, located in San Francisco, assisted the enterprise in unloading the barge and transporting its contents to customers. Bell‘s tugboat brought the barge, upon its arrival in San Francisco, to his Sand and Gravel Yard where it was unloaded. Bell also helped Lanier and Kramer arrange the transportation of the marijuana from the Yard. Some of the marijuana imported in the San Francisco load was delivered by customers of Lanier and Kramer to Millstadt, Illinois. Over $50 million was received from the sale of that load of marijuana.
The sixth transaction took place in the spring of 1985. Lanier, Kramer and Fischer imported a bargeload of approximately 152,000 pounds of marijuana to New Orleans. Kramer was responsible for the purchase of the marijuana in Colombia while Fischer rented dock space in New Orleans and arranged to bring the barge to the dock. Lanier directed the unloading of the barge. Customers of the enterprise shipped some of the marijuana in that load to Millstadt, Illinois.
The seventh transaction occurred in November 1986. The appellants imported a bargeload of approximately 130,000 pounds of marijuana to San Francisco.
II.
Lanier, Kramer and Fischer raise two objections to their
First, we consider the appellants’ ex post facto objection to their convictions, under
There are several elements necessary for a conviction under
(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and (2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter—(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (B) from which such person obtains substantial income or resources.
(1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and (2)(A) the violation referred to in subsection (d)(1) of this section involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title, or (B) the enterprise, or any other enterprise in which the defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million in gross receipts during any twelve month period of its existence for the manufacture, importation, or distribution of a substance described in section 841(b)(1)(B) of this title.
To sustain the charge of being a principal administrator, organizer, or leader of a continuing criminal enterprise as charged in Count I, the government must prove, in addition to the fact that the defendant was engaged in a continuing criminal enterprise, the following propositions:
First, that a defendant was the principal administrator, organizer, or leader of the continuing criminal enterprise or was one of several such principal administrators, organizers, or leaders of a continuing criminal enterprise that continued after the effective date of the statute, October 27, 1986;
Second, that after October 27, 1986, a defendant committed a violation of importing marihuana, distributing marihuana or conspiracy to distribute marihuana as charged which involved at least 30,000 kilograms (66,000 pounds) of marihuana[;] or that the enterprise in which a defendant was a principal or one of several principal administrators, organizers, or leaders received $10 million in gross receipts between October 27, 1986, and including February 1987, for the importation or distribution of marihuana.
The district court instructed the jury on the continuing series element of
Thus, you must find beyond a reasonable doubt that the defendant is guilty of conspiracy to distribute more than 1,000 pounds of marihuana as charged in Count II and/or that he is guilty of knowingly and intentionally distributing marihuana or importing marihuana as set forth in paragraphs A through R of Count I of the Indictment and that this conduct, together with any additional violations of the drug laws constituted a total of three or more violations of the federal drug laws committed over the period of time charged in Count I with a single or similar purpose. This will constitute a finding that a defendant engaged in a continuing series of violations.
Appellants contend on appeal that
The appellants principally rely on United States v. Torres, 901 F.2d 205 (2d Cir.), cert. denied, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990) for the proposition that
It is well settled that the ex post facto clause is not applicable to offenses which began before the effective date of a statute and continue thereafter. See United States v. Baresh, 790 F.2d 392, 404 (5th Cir.1986) (“because conspiracy is a continuing crime, a statute increasing the penalty for a conspiracy beginning before the date of enactment but continuing afterwards does not offend the [ex post facto clause]“); United States v. Ferrara, 458 F.2d 868, 874 (2d Cir.), cert. denied, 408 U.S. 931, 92 S.Ct. 2498, 33 L.Ed.2d 343 (1972); United States v. Pace, 898 F.2d 1218, 1238 (7th Cir.), certs. denied, 110 S.Ct. 3286, 111 L.Ed.2d 795, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990); United States v. Canino, 949 F.2d 928, 951 (7th Cir.1991). The appellants argue that a CCE can only become a continuing offense if the government demonstrates that the defendant engaged in a continuing series of violations after the effective date of
We disagree. In Pace, we held that a CCE, like a conspiracy, is a continuing offense. 898 F.2d at 1238. We noted that a CCE and a conspiracy are similar crimes because both punish agreements to commit crimes and both involve continuing conduct. Id. See also United States v. Johnson, 537 F.2d 1170, 1175 (4th Cir.1976) (holding that the original version of
Torres, in which
The appellants also claim that venue did not lie in the Southern District of Illinois for the offense of violating
III.
Lanier, Kramer and Fischer raise several other objections to their
Lanier, Kramer, and Fischer contend that the jury should have been instructed that it must unanimously agree as to each of the two or more predicate offenses constituting the “continuing series” element of the charge.
Lanier, Kramer and Fischer argue that the district court‘s instructions on the CCE count constructively amended the indictment. The court instructed the jury that it could find that the appellants engaged in a continuing series of violations based upon the various predicate acts set forth in the indictment, “together with any additional violations of the drug laws” (emphasis added). The appellants object to the italicized portion of the instruction on the ground that it subjected them to further controlled substance violations beyond those which were charged in the indictment. See Stirone v. United States, 361 U.S. 212, 215-18, 80 S.Ct. 270, 272-74, 4 L.Ed.2d 252 (1960). The Supreme Court has long held that every defendant has a “‘substantial right to be tried only on charges presented in an indictment returned by a grand jury.‘” United States v. Miller, 471 U.S. 130, 140, 105 S.Ct. 1811, 1817, 85 L.Ed.2d 99 (1985) (quoting Stirone, 361 U.S. at 217, 80 S.Ct. at 273). A constructive amendment of an indictment occurs when the evidence introduced by the prosecution broadens “the possible bases for conviction from that which appeared in the indictment.” Miller, 471 U.S. at 138, 105 S.Ct. at 1816. A constructive amendment of the indictment may also occur if the district court‘s instructions to the jury broaden “the possible bases for conviction.” Id.; United States v. Keller, 916 F.2d 628, 632-36 (11th Cir.1990), cert. denied, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991). It is well settled that “[a] judicial amendment of the indictment, whether implicit or explicit, is per se reversible error.” United States v. Galiffa, 734 F.2d 306, 311 (7th Cir.1984); United States v. Kuna, 760 F.2d 813, 817 (7th Cir.1985).
The appellants contend that the trial court‘s instruction broadened the possible bases for their CCE convictions by including new predicate acts which were not listed in the indictment. They contend that it is possible that the jury found the appellants were principal leaders or administrators of a CCE based on the new predicate acts that were not alleged in the indictment.
We disagree with the appellants’ contention that the trial court‘s instruction broadened “the possible bases for conviction from that which appeared in the indictment,” Miller, 471 U.S. at 138, 105 S.Ct. at 1816 (1985), because the appellants misinterpret the requirements for a conviction under
The appellants contend that Young, Sperling, and Baker are distinguishable because those cases did not involve an amendment of the indictment. We disagree. If the government was not required to allege any of the possible predicate acts in the indictment, there can be no error where it alleged all but a few of the acts. Moreover, we note that the appellants do not contend that they were in fact unable to defend against the CCE charge because they were not notified of the predicate acts that the government would seek to prove at trial. Thus, we do not agree that the indictment was constructively amended by the court‘s instruction. See Canino, at 944 (holding that there was no amendment of the indictment where the jury was instructed that it could rely on a predicate act not mentioned in the indictment to find a continuing series under
Lanier, Kramer and Fischer argue that punishing marijuana trafficking under
IV.
Lanier, Kramer, Fischer and Bell argue that the trial court‘s instructions to the jury after it began its deliberations and indicated that it was deadlocked improperly coerced the jury to return a guilty verdict. The trial lasted fourteen weeks. After being instructed, the jury began its first day of deliberations at 3:00 p.m. and recessed at 10:05 p.m. On the second day of its deliberations, the jury requested to hear certain portions of the trial testimony. Before the district court could respond to this request, the foreman sent another note stating that though the jury was “still deliberating over the first defendant” it was “at a point of deadlock.” The court then read the requested testimony to the jurors. A later note from the jury asked whether “defendants Lanier, Kramer and Fischer [could] be convicted on the original indictment of 848(a) only and not on 848(b).” Before the jury retired, the court instructed that the jurors “must follow the instructions I have previously given with regard to the superseding indictment filed January 26, 1988 only.”
On the third day of deliberations, the jury sent a note to the court which stated: “... Regarding defendant Bell, Count 2, we‘re deadlocked eleven to one. Regarding defendants Lanier and Kramer, Count 1, we are deadlocked eleven to one. Regarding defendant Fisher [sic], Count 1, we have not taken a final vote.” A short time later, the jury informed the court that: “... We have taken taken the final vote on Fisher [sic], Count 1. It is the same as the others, deadlocked, eleven guilty, one not guilty. If you wish further deliberations, we respectfully request that it begin at 9 a.m. tomorrow....” The district court responded to the note by directing that deliberations would resume the next morning.
The appellants then moved for a mistrial. During the court‘s discussion of the note with counsel, the foreman sent another note requesting that the court give him “two more hours.” The district court denied the motions for a mistrial and sent a note to the jury which stated: “Continue your deliberations. Judge Foreman.”
In denying the motions for mistrial the district court found that although the jury had been in session over the course of four days, it had spent as little as nine hours over five days actually deliberating. The court noted that the jurors often were required to wait while counsel for the government and the appellants debated the proper responses to the jury‘s notes.
Soon afterwards, the jury responded with a note which stated: “Your Honor, we are at a deadlock. Nothing has changed. Thank you....” Appellants once again moved for a mistrial. The district court denied the motions and directed the jury to continue its deliberations. The court found that the jury had not deliberated for an adequate time in relation to the length of the trial for the court to grant a mistrial. On the fifth day of deliberations, the jury returned guilty verdicts against the appellants on all counts.
The appellants maintain that the trial judge‘s instruction to the jury to “continue to deliberate” violated the rule of United States v. Silvern, 484 F.2d 879, 883 (7th Cir.1973). The relevant inquiry, under Silvern, however, is “whether ‘the court‘s communications pressured the jury to surrender their honest opinions for the mere purpose of returning a verdict.‘” United States v. Thibodeaux, 758 F.2d 199, 203 (7th Cir.1985) (quoting United States v. Hamann, 688 F.2d 507, 511 (7th Cir.1982), cert. denied, 460 U.S. 1013, 103 S.Ct. 1255, 75 L.Ed.2d 483 (1983)). On several occasions this court has held that instructions to continue to deliberate were neutral and not coercive. In United States v. D‘Antonio, 801 F.2d 979, 983-84 (7th Cir.1986), we said that an instruction to “continue to deliberate” after the jury had declared that it had reached an impasse is “perfectly content neutral and carrie[s] no plausible potential for coercing the ‘jury to surrender their honest opinions for the mere purpose of returning a verdict.‘” Id. at 984 (quoting Thibodeaux, 758 F.2d at 203). Moreover, in Thibodeaux, the jury notified the court that it had reached a verdict on three counts but was deadlocked on one count. The court instructed the jury to continue deliberations for the time being, but informed the jurors that it would call them out later. See id. This court found that the instruction was “noncommittal” and not coercive. See United States v. Sblendorio, 830 F.2d 1382 (7th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988) (upholding an instruction that differed from that of Silvern where early in the deliberations one juror stated that he believed the evidence insufficient to convict any defendant on any count).
The appellants claim that this case is different from D‘Antonio and Thibodeaux because the district court knew that there was one holdout juror when it instructed the jury to continue its deliberations. We are unable to see how that makes any difference; the instruction simply did not influence the jurors to find the appellants guilty or not guilty. Indeed, the holdout juror remained free to persuade the other jurors to acquit the appellants. See United States v. Warren, 594 F.2d 1046, 1049-50 (5th Cir.1979) (holding that the trial judge did not err when he instructed the jury to continue its deliberations even though he was aware of a divided preliminary vote by the jurors); United States v. Robinson, 560 F.2d 507, 516-18 (2d Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). Thus, we conclude that the trial judge‘s instructions to the jury to “continue your deliberations” were entirely proper and not in error.
V.
Fischer argues that the district court erred under
To determine whether evidence of other crimes, wrongs, or acts is admissible under
We noted in Jackson that if the evidence of other crimes, wrongs, or acts is “relevant and offered for a proper purpose under 404(b), ‘the evidence is subject only to general strictures limiting admissibility such as ... [Rule] 403.‘” Id. at 846-47 (quoting Huddleston, 485 U.S. at 687, 108 S.Ct. at 1500). We held in Jackson that the key factor in the
In reviewing decisions to admit evidence, the district court‘s “[d]iscretion, when exercised, will rarely be disturbed....” United States v. Beasley, 809 F.2d 1273, 1279 (7th Cir.1987). We will reverse a trial court‘s admission of evidence under 403 or 404(b) “‘only upon a showing of abuse of discretion.‘” United States v. Chaimson, 760 F.2d 798, 808 (7th Cir.1985) (quoting Brown, 688 F.2d at 1117); United States v. Zapata, 871 F.2d 616, 621 (7th Cir.1989); United States v. Liefer, 778 F.2d 1236, 1244 (7th Cir.1985). We note finally, that “[o]ur role on review is not to second-guess the results reached by the trial court in applying the Shackleford standards.” United States v. Hudson, 843 F.2d 1062, 1065 (7th Cir.1988).
We believe that there was an exercise of principled discretion by the district court. The district court admitted Stewart‘s testimony concerning Fischer‘s shrimp boat shipment of marijuana on the ground that it showed that Fischer intended to conspire with the other appellants to distribute more than 1,000 pounds of marijuana. See Liefer, 778 F.2d at 1242-43 (the defendant‘s specific intent to distribute was an essential element of the crime of conspiracy to distribute more than 1,000 pounds of marijuana). This satisfied the first part of the Huddleston analysis. Moreover, the district court did not abuse its discretion in concluding that Fischer‘s 1981 importation of marijuana was similar enough to the activities for which he was on trial—conspiracy to distribute in excess of 1,000 pounds of marijuana—and close enough in time—1981 as opposed to 1983-87—to be relevant evidence. The evidence was more than adequate to show that Fischer directed the importation of the 15 tons of marijuana on the shrimp boat, thus satisfying the second part of the Huddleston analysis. See 485 U.S. at 689, 108 S.Ct. at 1499. Third, the district court did not abuse its discretion in concluding that the prejudicial effect of Stewart‘s testimony, if any, did not substantially outweigh its probative value. The district court did not abuse its discretion in admitting Stewart‘s testimony concerning Fischer‘s importation of 15 tons of marijuana in 1981.
Bell contends that the district court abused its discretion in denying Bell‘s motion to admit in evidence certain portions of the proffered testimony of William Palumbo. Bell contends that the government stipulated that Bell could introduce Palumbo‘s testimony. Palumbo was a front man for the enterprise, who helped reserve dock space in San Francisco and New Orleans. Before trial, Palumbo, a co-defendant of Lanier, Fischer, Kramer and Bell, agreed to give a proffer of his testimony to the government apparently because he wanted to demonstrate to the government that he would be a cooperative witness. Davis, an FBI agent who took the proffer from Palumbo, testified that Palumbo “told me that Kay Bell was unaware of any illegalities.” At a pre-trial hearing on whether Palumbo‘s trial should be severed from that of the other defendants, counsel for the government stated that “I‘ll stipulate that the statement that was made by Mr. Palumbo in Mr. Bell‘s behalf can be introduced for Mr. Bell.” The government made the offer to stipulate because it hoped to prevent the severance of Palumbo‘s trial from that of the other appellants. Counsel for Bell, who had not previously participated in the discussion, responded: “We will accept that stipulation, Your Honor.” The district court stated “okay.” The hearing concluded without further discussion of the stipulation. Shortly after the hearing, Palumbo‘s motion for a separate trial was granted.
During the trial, when Bell moved for the admission of the stipulation, the government opposed the admission of Palumbo‘s testimony. Although the record is not entirely clear, it appears that the district court concluded that the government had entered into a stipulation with counsel for Bell. The district court, however, noted that the government‘s offer to stipulate had been made with the assumption that Palumbo was to be tried with the other
We agree with the district court that the government did initially stipulate to the admission of the testimony of Palumbo, which was helpful to Bell. Even so we cannot find that the district court abused its discretion when it declined to enforce the stipulation. “As with other matters of trial management, the district court has ‘broad discretion’ to decide whether to hold a party to its stipulations; the district court‘s decision will be overturned on appeal only where the court has clearly and unmistakably abused its discretion.” Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1206 (7th Cir.1989); Cates v. Morgan Portable Bldg. Corp., 780 F.2d 683, 690-91 (7th Cir.1985). Here, the government stipulated with the assumption that Palumbo would be tried with the appellants. The circumstances underlying the offer to stipulate were altered when the district court granted the motion to sever Palumbo‘s trial. The district court acted within its discretion to void the stipulation.
Bell also argues that the trial court abused its discretion in not enforcing the stipulation because the stipulated testimony tended to exculpate him by contradicting proof which tended to show that Bell understood that the other appellants were engaged in a conspiracy to import marijuana. The government points out in response that Palumbo‘s statement was not subject to cross-examination and that the other evidence of Bell‘s guilt was substantial. We agree and conclude that the admission of the stipulation, while possibly helpful to Bell, would not have made a difference in the outcome of the trial. Therefore, we conclude that the district court did not abuse its discretion in denying Bell‘s motion to enforce the stipulation.
VI.
The other arguments raised by appellants are without merit.
For the foregoing reasons, we AFFIRM the convictions of Lanier, Kramer, Fischer and Bell.
CUDAHY, Circuit Judge, concurring.
I agree that the law of this circuit supports the affirmance of these convictions. I write separately to discuss this circuit‘s law on an issue touched on only tangentially in the opinion for the panel: the admissibility of other-crimes evidence on the issue of intent when intent is not disputed. Fischer‘s intent was apparently in issue in this case, so I agree that evidence of his 1981 marijuana-importation activities was admissible. However, since the government has argued that Fischer‘s intent was “necessarily in issue” because Fischer was charged with a specific-intent crime, Gov‘t Br. at 110, I think it appropriate to express my concerns regarding this circuit‘s rule on this matter.
The general rule throughout the circuits has been that in order for evidence of other crimes to be admissible to establish intent under
This circuit has carved out an exception to the general rule, holding that where the crime includes specific intent as an element, other-crimes evidence is admissible even though intent is not in dispute (or, put another way, intent is “automatically in issue.“). United States v. Monzon, 869 F.2d 338, 344 (7th Cir.), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989); United States v. Liefer, 778 F.2d 1236, 1242-43 (7th Cir.1985). The line of cases applying this exception extends back to United States v. Weidman, 572 F.2d 1199, 1202 (7th Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978).
In questioning the defensibility of this circuit‘s rule, I wrote in United States v. Chaimson, 760 F.2d 798, 813 (7th Cir.1985):
[T]he rule should not be so understood as to make the admissibility of other-crimes evidence automatic where the crime is one of specific intent. Even if we adopt the fiction that intent is always in question in such cases, such evidence is only admissible if it is really introduced to show intent. The government ... cannot simply flood the courtroom with other-crimes evidence on the grounds that the crime was one of specific intent.
I am afraid that over the years this circuit‘s bright-line exception has resulted in a great deal of prejudicial extrinsic evidence finding its way into many criminal trials. In my view, intent ought to be an issue in dispute in order for evidence of other crimes to be admissible for the purpose of establishing intent; when intent is not contested, evidence of other crimes is likely to be used simply for the prohibited purpose of showing criminal propensity. But the mere fact that a crime includes specific intent as an element does not make the issue of intent disputed. Rather, our specific-intent exception has effectively swallowed the rule providing that, as evidence of intent, other crimes are not admissible unless intent is disputed or called into question. I believe that we should return to that fundamental rule.