*1 objection sence of an or a in- tendered
struction, Pavloski, dooms
this claim.
C. Interstate commerce
Finally, Jackson posses- that his
sion of the firearm did not affect interstate He
commerce. does not dispute evi-
dence that shows that the gun was manu- Brazil,
factured in entered the United in Miami, and then traveled Illi-
nois, and he acknowledges that this move-
ment in interstate commerce is all the
Supreme requires Court under the statute.
Scarborough States, v. United 431 U.S. 97 S.Ct. (1977); L.Ed.2d 582
see United Williams, Rather, he raises preserve issue to the possibility of
further appellate Only review. the Su-
preme itself, Court can reverse so we need
not discuss this contention further.
III. CONCLUSION
For reasons, these judgment
district court is Affirmed.
UNITED America, STATES
Plaintiff-Appellee,
Robert SIMPSON, Defendant-
Appellant.
No. 05-2993.
United States Court of Appeals,
Seventh Circuit.
Argued June
Decided March *2 (argued), Office D. Rubinstein
Daniel IL, Attorney, Chicago, the United Plaintiff-Appellee. for (argued), Schrup O’Rourke Sarah Law, School University Northwestern Defendant-Appellant. IL, Chicago, ROVNER, BAUER, Before WILLIAMS, Judges. Circuit WILLIAMS, Judge. Circuit hung jury, in a trial ended his first After Robert retried Al- cocaine. delivery of crack single for a though on sale, trial single Bradley Emmanuel and directed him to jury heard evidence concerning Simpson’s buy 2 and ounces of crack cocaine 1/4 involvement in prior day. unrelated co- Around afternoon, 3:20 that a white caine transactions. prosecution minivan, re- later determined to registered *3 peated this during closing its wife, ar- to Simpson’s pulled into a park- small gument and also said Simpson had told a area behind 402 North Center Street law agent enforcement he a Joliet, was crack in Illinois where Simpson’s sister dealer and could have done the delivery at lived. Agent FBI Mike Brown testified issue, but that he did not remember that he saw the minivan driver get into whether he had. Over defense counsel’s Bradley’s However, car. Agent Brown objection, the prosecution then told the could not identify the minivan driver as jury that the inference to be drawn from Simpson. Agent Brown subsequently re- these statements was Simpson covered Bradley digital a re- tape done many so crack cocaine deals that corder, he plastic a bag containing grams 61.5 could not remember the deal for which base, he of cocaine and $100 $1600 was on trial. argument, This and the buy evi- provided money Bradley. Agent dence based, on which it was improperly Brown also testified that he Bradley saw appealed Simpson’s propensity to deal make a number telephone day, calls that in crack cocaine. Because we are not as- including one to a telephone number be- sured Simpson trial, received fair a longing to Simpson; he also Bradley saw Simpson’s vacate conviction and re- receive a phone call from that same num- mand his case for a new trial. ber a short time later. Although Bradley had testified at the
I. BACKGROUND first trial and Simpson identified as the A grand federal jury returned a single- person from whom bought crack co- count indictment against Simpson. Robert caine on March Bradley did not testify This indictment charged Simpson with dis- during the second trial. Agent Brown also tributing over 50 grams of a mixture con- did not identify Simpson as the minivan taining cocaine base on March Instead, driver. government present- Joliet, Illinois. trial, Before his first Deputy ed Jim Stadt of the County Will Simpson filed a motion in limine to bar Sheriffs Office only eyewitness as the evidence of acts, his other bad arguing identify Simpson. Deputy Stadt testified that such not admissible to that using while binoculars from 75- about prove a defendant’s propensity to commit a yards away, he saw a person arrive in crime. As represented minivan, enter car Bradley’s for a minute that it had no intention of eliciting two, testimo- then and leave the car. While ny regarding Simpson’s prior acts, bad conducting surveillance, Deputy Stadt court district did not enter a ruling on the did not know name of person motion. The first trial ended in a mistrial saw leave the minivan. After he returned jury after the was unable to office, reach ver- to his he viewed photograph of a dict. person identified to him as Robert Simpson and concluded that Simpson The case was subsequently retried be- he had observed leaving fore a second jury. During the second minivan. trial, introduced evidence on March law enforcement Law enforcement officials waited over a
officials met with confidential informant
year
arresting
before
Simpson.
FBI
purchase
controlled
the March
effected
Hendon
Christopher
Agent
digital recorder worn
using the
9, made
March
that on
told
and
arrest
concluded
Hendon
Bradley. Agent
home
sister’s
2004, went
to be
“seemed”
recording
voice on
Simpson.
looking
at tri-
acknowledged
He
Simpson.
his busi-
Hendon left
Agent
present,
in voice
expert
he was
About
al that
information.
contact
card with
ness
identification,
prosecution
called,
later, Simpson
minutes
forty-five
heard
as such.
him
informed
tender
Hendon
and,
after
transcript
and received
recording
tape
his ar-
a warrant
there was
tying
physical
No
recording.
him.
to meet
agreed
rest, Simpson
*4
introduced.
was
the transaction
Simpson to
and re-
under arrest
placed
was
Simpson
Hendon
Agent
warnings.
ceived Miranda
the evi-
all
jurors had heard
After the
inter-
subsequent
during
that
testified
argued to
dence,
prosecution
of
informed
had been
view,
Simpson
after
you know
“And
argument,
closing
in its
told us
him, “Simpson
against
charge
Yes,
a
I’m
him:
defendant told
what
accord-
specifically,
although he didn’t
...
crack dealer
a
I’ve been
crack dealer.
us,
deliver-
remember
he told
ing what
done
I could have
and
years,
three to four
cocaine
crack
of
ounce
this
ounces,
1/4
of
transaction,
on behalf
this
1/4
possible because
amount,
it was
that
remember,
Hatton,
I don’t
but
Michael
of transactions
type[s]
similar
had done
inference,
in-
my view
an individual
and delivered
defense
point,
this
At
being
ference
—”.
of Mi-
by the name
with
dealt
primarily
objection
over-
was
objected. The
counsel
Hatton.”
chael
“The
continued:
ruled,
prosecutor
and
that he
many
so
he’s done
being
inference
also testified
Hendon
Agent
one.”
couldn’t remember
had been
him he
told
Simpson
and
years
to four
for three
cocaine dealer
sever-
judge
to the
jurors submitted
cocaine
of crack
an ounce
half
purchased
presented.
about the
questions
al
two or
every
approximately
from Hatton
Brad-
why
jurors asked
particular,
up
then
informant)
He
break
would
three
not
weeks.
had
(the confidential
ley
When
to sell.
quantities
into smaller
had
any fingerprints
testified, whether
2 and
said about
Simpson
1/4
cocaine,
asked what
wheth-
bag
from
been lifted
cocaine, Hendon
of crack
had
quantities
ounce
techniques
recognition
any
er
voice
made
“stated
Simpson
recording,
testified
tape
on the
been conducted
Mr.
on behalf
of deliveries
types
tes-
similar
Deputy Stadt’s
transcripts
in crack
being paid
exchange for
Hatton
available
report
FBI
timony and
specifically
not
did
that he
but
cocaine
delibera-
of their
close
At the
to them.
being
he was
this transaction
verdict
guilty
remember
returned
tions,
Agent
interview.”
during the
asked about
in the indictment.
count
sole
read
Simpson
not ask
Hendon
of 188
sentence
received a
Simpson
conversa-
their
he took of
*5
in a subsequent drug prosecution. See,
admission
trial,
of
during
here,
evidence
as
e.g.,
James,
United States v.
699,
464 F.3d
our review of a challenge to the evidence’s
(7th Cir.2006);
711
United States v.
admission is for plain error. United
Wright,
68,
(7th
901 F.2d
70
Cir.1990);
Olano,
States v.
725, 731-35,
507 U.S.
113
United States v. Beasley,
1273,
809 F.2d
1770, 123
S.Ct.
(1993);
L.Ed.2d
James,
508
(7th Cir.1987).
1278
Introducing only pri
709;
464 F.3d at
United States v.
cf.
or drug
acts,
or
convictions
bad
with noth Chavis,
662,
(7th
429
Cir.2005)
F.3d
667
more,
proves nothing but propensity.
(reviewing decision to admit evidence for
Jones,
United States v.
763,
389 F.3d
757
abuse of discretion where timely objection
(7th Cir.2004), vacated,
1125,
545
U.S.
made). Our
plain
review for
error asks
S.Ct.
(2005) (re
Evidence Rather, the sec- automatically admissible. the char- prove not admissible acts is explicitly rule makes sentence ond action to show in order of a acter admissi- “may” be evidence that such clear may, It howev- therewith. conformity See is automatic. admission ble, not that purposes, for other er, admissible be (Easterbrook, J., Jones, motive, opportunity, of proof as such concurring). knowledge, intent, plan, preparation, or acci- mistake hand, turn to identity, or principles absence these With adopted has ... this circuit test four-part dent. should evidence determining whether 404(b) plainly in Rule sentence The first 404(b). have Rule We under admitted introducing prohibits prior a defendant’s said that the to show acts bad require- if four admissible bad acts is awith consistent is character defendant’s met: are ments crime. charged to commit propensity es- (1) directed toward is the evidence Holt, United than other issue tablishing matter Macedo, Cir.2006); commit propensity the defendant’s Cir.2005). As 778, 792-93 (2) the evidence charged; the crime ... it, “Although Breyer put then-Judge is similar act other shows that relevant, the risk is evidence’ ‘propensity to be in time enough enough and close other crimes convict jury will (3) issue; the matter relevant that, uncertain those than —or support sufficient a bad anyway convict it will guilt, *6 committed finding that punishment deserves person —creates (4) has act; the evidence similar ordinary outweighs effect prejudicial substantially that is not value probative Moccia, 681 v. States United relevance.” prej- unfair danger of by the outweighed Cir.1982); (1st also Michel see 61, 63 F.2d udice. 469, 475-76, States, 335 U.S. son United 806; Jones, 455 (1948); United 213, L.Ed. 168 69 S.Ct. Cir.2005). (7th 649, Owens, F.3d (7th 600, Seals, 610-11 419 F.3d case, nei- this that in Simpson maintains Cir.2005) (Posner, J., concurring). requirement fourth nor the the first ther satisfied. been has Rule Exception to Identity a.
404(b) must we First, importantly, most ques- the statements determine that the maintains government establishing a toward directed are tion unrelated Simpson’s evidence to propensity Simpson’s than other matter “identity” un admissible show is sales Although cocaine. sell 404(b) rule 404(b). first a is Rule der Rule only his testimony showed maintains crimes, “[ejvidence of other prohibition: government drugs, to sell propensity prove is not admissible or acts wrongs, to- directed statements argues the to show in order person of a character identity as establishing ward (emphasis conformity therewith” action 6, the March responsible for person exceptions. limited added), subject only delivery. is Rule set forth presumption of a admission allowed we have way One And, emphasize, admissibility. against iden prove acts is prior bad question defendant’s simply dis defendant’s of a through tity motive, identity, or intent, show tends tinctive operation, manner of argument. modus maintains It that because See, operandi. e.g., United States v. Ani Simpson denied that he person was the fowoshe, (7th Cir.2002); who the drugs delivered in question, it Rollins, United States v. 301 F.3d 519 could introduce evidence that he had sold (7th Cir.2002). onlyWe allow evidence to crack cocaine in past, in transactions be admitted under the operandi modus unrelated to the one at issue—evidence theory when the evidence singu bears “a that we would otherwise deem improper lar strong resemblance to pattern of propensity simply because it evidence— the offense charged” with the similarities needed to prove sold the between the two crimes “sufficiently idio drugs on March syncratic to permit an pattern inference of Our decision in United States v. Wright, purposes proof.” United States v. 901 F.2d Cir.1990), is instructive. Thomas, 321 F.3d 634-35 Cir. There, contended that a 2003). The reason we allow the use of wiretapped telephone call containing the other acts to show modus operandi is that defendant’s admission that he participated same probably committed both in other drug deals had properly been the other acts and the charged crime due admitted to show that the defendant com- to their sufficiently idiosyncratic similari mitted the drug sale in question. 901 F.2d ties. See Robinson, United States v. at 68-69. In particular, This reason 404(b) maintained that Rule pro- ing does not require an inference concern hibit the introduction evidence, as it ing 'the defendant’s character. But we contended the evidence was admissible to have cautioned that “[i]f broadly defined identity. show Id. at 69. Soundly reject- enough, operandi modus can eas argument, we wrote that the tele- ily nothing become more than the charac phone question conversation in in Wright ter evidence that Rule prohibits.” “may well show that [the defendant] Smith, United States v. 103 F.3d more likely guilty to be of the crime with (7th Cir.1996); Thomas, see also which he is than the average man (“If at 635 a pattern so generic can estab *7 on street, who is not a drug dealer, but lish operandi modus fairly limited it does in the least show that the man exception to Rule gut would who had plainclothes sold the officers four Rule, rendering it useless aas check on bags of crack [in the transaction at issue] character evidence that would otherwise was correctly identified” as inadmissible.”). defendant. Id. Those words hold true here. That The same caution holds true for identity Simpson allegedly admitted prior crack evidence that is not of a defen- cocaine deals may well show that he was dant’s operandi. modus “Certainly, more likely than an average person who need prove identity be, should not in had never before dealt in drugs to have itself, a ticket to admission.” McCor- sold the drugs question. But it does not mick § on ed.2006). Evidence show that the identity of person who Simply identity because the person of the drugs sold to Emmanuel Bradley on who sold crack cocaine to Emmanuel March 2003 was Robert Simpson. Bradley on March disputed was give does not reign free recognized to We in Wright that evidence introduce evidence about prior any prior crack might crimes tend to show cocaine deal in which Simpson took part. the identity of if, for exam- Yet that seems to government’s be the ple, “the conversation had indicated that one linked defendant with because it selling time case at that was defendant]
[the perpetrator). transac- aliases used of the near where on drugs streets something evidence, then, occurred, help did not establish if he had said This tions propensity those transactions party to other than his only a a matter issue that 69. Neither F.2d at know.” crack cocaine.1 would to sell acknowl- Simpson’s here. scenario exists Furthermore, of the evi- the admission during cocaine crack he sold edgment that unfair significant danger of carried a dence (he admitted period time general the same unfairly prejudicial is prejudice. Evidence years prior drugs for had several sold the case cause the to decide if it will arrest), quantities, and in similar his Chavis, “improper grounds.” contem- similarity we nowhere near Here, invited to at 668. were reality unfortunate Wright. plated drug deals Simpson’s prior conclude that far from the Simpson was is that transaction his proved guilt March during cocaine selling crack person Significantly, charged in indictment. area, Joliet, Illinois greater in the of 2003 too, government’s acknowledgment Simpson’s it was Simpson’s stop help does persons those was one of crack co- delivered the “possible” had respon- identity up clear Instead, additional details at issue. caine Similarly, charged crime. for the sible cocaine Simpson’s prior crack regarding suppli- as his named Hatton testi- Agent revealed. Hendon deals were Simpson was not tend to show er does Simpson thought his involvement fied that Although there crime. guilty of this similar he had possible “because done many one of testimony that Hatton was had “deliv- and he of transactions” type[s] enforce- law part persons who primarily that he an individual ered for into investigation “large scale” ment’s Hat- by the name of Michael dealt with area, has activity Hendon then continued ton.” was involved that Hatton never contended drug-deal- about provide details transaction, that Hatton March jurors that he told the ing past: Bradley, or relationship with any cocaine, had been a dealer said he at issue. drugs supplied Hatton had to four had been a dealer three that he Joseph, States United Cf. half ounce purchased a and that he Cir.2002) (defendant’s years, mail about supplier cocaine from of crack identity in instant helped to establish theft ” which, Gibson, ‘guilt,’ have meant F.3d 673 *8 course, explained in 1999), proper. We (7th to which the is not Cir. specific de court’s pursued "logic the the points, Wright defendant of district that the drugs in had sold the his brother fense that defendant’s ruling evidence of the [to allow There, the defendant’s Id. at 679. question. drug defen drug is that a deals] unrelated dealing distinguished him drug history of drug» admissible prior convictions are dant’s had only contended other from the se, up a clear they help not to per even do if contrast, Here, crime. committed modus or establish question of identification deny except to Simpson put no defense forth particu illuminate operandi or otherwise charged crime responsible for the that he was is ac which lar conduct of government and to maintain cused, take the does and if he even doubt. beyond a proven case reasonable its other use of "[t]his at 70. But stand....” Id. Gibson, And as governs this case. Wright, not propensity commit crimes to establish Simpson’s Wright, evidence of charged use of such is the type of crime identity, to show activity not admissible 404(b) Id. forbids.” evidence that Rule ‘identity’ must '‘[b]y [government] unless 500
every
weeks,
two or three
which he would the evidence is ‘intricately related’ to the
then break up and sell.
facts and circumstances of
McLee,
offense.” United States v.
436
addition,
jurors
In
did not receive a
(7th
751,
Cir.2006).
760
is,
Admission
instruction,
relevant
limiting
which can
course,
of
still contingent
successfully
on
minimize
prejudice
the introduction
passing the balancing test set forth in Fed-
404(b)
of
Jones,
Rule
evidence. See
eral
James,
Rule of Evidence 403.
809; Chavis,
F.3d at
668-69;
b. Related Evidence” bar”). offense at We have also done so Doctrine when the evidence was needed to avoid a isNor this evidence conceptual admissible or chronological void in the nar under the “intricately related evidence” rative of the crime on trial. United States doctrine, only other theory govern Andreas, Cir. ment suggests to supports 2000); its admission. United States v. Hattaway, 740 terms, By its Rule applies to F.2d And we “other” conduct; crimes and it does not have found evidence admissible under the *9 apply to provide acts that proof of the intricately related evidence doctrine when charged conduct. See United States v. it is so blended or connected it inci Lane, 568, (7th Cir.2003). 323 F.3d 579 involves, As dentally explains the circum “[ejvidence result, a of uncharged criminal stances surrounding, or any tends to prove activity implicate does not the charac element of charged crime. United ter/propensity prohibition Rule of if Heath, 535, 447 F.3d case, relat- in that crime on trial Spaeni, v.
Cir.2006); States United drug involvement to 313, 316 F.3d com- form a help more not would here. apply not do rationales These for drug deal the March of plete picture conspiracy charged with not was Simpson trial. Evidence he was on which not was He crack cocaine. to distribute three drugs over last had sold Simpson of a series responsibility charged with he, why as explain not years does or four charged not was He drug transactions. had any other who compared In- behalf. on Hatton’s drugs selling with time, responsi- was drugs at that also sold delivery, only one trial for stead, on he was was on for which he drug sale ble for of Evidence person. to one day, on one trial. simply was drug sales unrelated any prior story of the complete necessary to not otherwise, con- government it needed was trial. Nor delivery on single after Simpson gave tending that “details” void chronological conceptual to avoid had sold he “possible” stating was 6, delivery. of the March story in the “confes- corroborated drugs question in necessary explain not it was And he had sold possible it was sion” that crack cocaine single of circumstances First, no was there drugs on March 6, 2003. delivery on March told Simpson if had Certainly, confession. point government to which the The case he sold cocaine Hendon analogous for an we asked when ed us circum- 2003 under Bradley on March Lott, 442 F.3d v. case, States United wit- matching stances ad First, not involve did Lott inapposite. could testimony, nesses’ drug ac unrelated, uncharged of mission Simpson argued to have single a case where tivity in he was for which the crime admitted James, at issue. delivery was do that. Cf. But charged. drugs seized (finding evidence at 710 he “possible” it was His for which drug offense after one month transac- charged responsible for was intricately re not was indicted defendant remember, does tion, he did but conduct). Lott, offi charged lated to responsibility a confession not constitute vehicle driven from a cers recovered “A con- drug deal. for the March top of pistol a loaded acknowledg- ... oral suspect’s ais fession that turned powder containing a white bag about including details guilt often ment drug. prescription a crushed out Gilbertson, the crime.” defendant at Cir.2006) (quoting 790, 798 a fire possession in being a felon with (8th ed.2004)); Dictionary 317 Law Black’s of evi admission arm, upheld the States, 348 U.S. Opper United see bag of white possessed (1954). dence that L.Ed. 101 158, 99 n. S.Ct. previously dealt that he had powder best, stated he Here, relat intricately drugs” under “dummy time did At no the transaction. remember did so be Id. We doctrine. ed evidence selling guilty of acknowledge he motive explained cause the date Bradley on the drugs to illegal firearm, of a possession the defendant’s whatso- no details provided He question. charged- he was which crime with deal, as —to the March ever about Id. customers. angry himself defend he was if remember not even could engaged he had Lott, Admitting that there. the admitted Unlike making past, drug deals similar story of complete the helped which *10 “possible” his for the responsibility drug intricately doctrine, related evidence issue, deal at falls far short of an acknowl- the evidence’s admission constitutes error edgment responsibility of for plain.2 that was deal. Next, the “details” to which govern- 3. Whether the Erroneous Admission points-
ment he had sold crack co- —-that of Evidence Warrants a New Trial before, caine years, number at Testimony concerning Simpson’s past quantity times the same only de- —were drug sales justified cannot thus tails about under prior uncharged drug deals and 404(b) either identity any light question exception shed on the Rule responsible or under March 6 the intricately related evidence sale. “details” prior These about unrelat- doctrine. To succeed on a plain error drug ed deals unknown dates with un- challenge, a defendant must also demon- persons known not arise out of the strate that the error in admission affected same transaction or series of transactions his substantial rights, meaning as the March 6 transaction for which he error “affected the outcome of the district was on trial. Evidence of prior unrelated Olano, court proceedings.” 507 U.S. at drug deals “intricately is not related” to 734, 113 so, S.Ct. 1770. If may correct the transaction on trial simply because the error if it seriously affects the “fair- knowledge of the other gained deals was in ness, integrity, public or reputation judi- the same interview. cial proceedings.” Id. at 113 S.Ct. The testimony about Simpson’s prior acts did nothing more than cloak him be- Simpson urges that we look simply not fore the prior his crack cocaine at the erroneous admission of evidence short, deals. had the heard about past his drug deals when we consid- nothing Simpson’s prior sales, about drug er whether he should receive a new “it trial. would have occurred them that Rather, he they contends that the inference the missing or anything have made any of the his closing argument other evidence drew in the case unin- telligible.” Paladino, See regarding United States v. sales, crack cocaine Admis- with along
sion of the evidence of Simpson’s prior erroneous admission evidence, of this de- justified sales cannot be under the prived him of a fair trial. 2. agent's dissent Micke, maintains that the testi- 859 F.2d 478-79 mony concerning Simpson gave Cir.1988) details about (recognizing testimony re- past involvement deals counting constituted qualified defendant's statement as against Simpson's admissions party interest. Such hearsay, admission and was not but statements are not hearsay. stating Fed.R.Evid. inquiry” not end "does our before 801(d)(2)(A). That a hearsay, statement is not analyzing whether statement admissible however, separate does not answer ques- 404(b)); under Rule see also United States v. tion Godinez, precluded as Cir.1997) 110 F.3d 454-55 evidence, improper propensity question (analyzing first whether statement constituted Oberle, issue in case. See United States v. hearsay, inadmissible then whether Rule (10th Cir.1998) ("Al- 404(b) precluded admission). govern- its though party the statements are admissions ment offered us two theories in support of the 801(d) under Rule hearsay, they evidence, thus admissibility of this intricately must analyzed nevertheless also be for admis- related proof evidence doctrine and of identi- sibility Rule they 404(b), under ty reveal under Rule and we conclude that suggest conduct."); prior criminal justifies neither its admission.
503 misconduct.” “prosecutorial Closing Argu- framework Prosecution’s The B. Bowman, at 550. When See ment com prosecutor’s that a evaluating claims government the case, reason In this prosecu- to the level jury to a rise ments nu- Simpson’s testimony of introduced misconduct, first determine torial transactions cocaine prior crack merous im conduct was prosecutor’s whether clos- prosecution’s during the clear became Hale, 448 F.3d v. United States proper. and the first Throughout argument. ing (7th Cir.2006); see also United 986 closing argument trials, its until second Wesley, F.3d v. States suggested trial, second Cir.2005). so, If we next assess Hen- to Simpson’s statements that the defendant. prejudiced conduct During a confession. don constituted 986; Hale, United States sought argument, closing prosecution’s Cir. Washington, 417 F.3d pro- to show Simpson’s statements to use 2005). “The inference stating: explicitly pensity, many that he couldn’t so he’s done being Closing Argu- Impropriety one.” remember ment the inference to introducing evidence Just as jury dur- for the drew explicitly prosecutor too is improper, so propensity is show that asked one closing argument, convict a that it jury to a should arguing an based on fate to decide pro on the defendant’s based defendant many” drug “so had done that he inference Bowman, See a crime. to commit pensity one not remember the he could deals maintains F.3d at 551. trial, prose- constituted for which stood that Simpson prosecutor’s inference ar- misconduct. cutorial many drug so transactions had done appeal on of review that our gues standard the one remember past that could error, the plain be for this claim should nothing trial amounts stood which de- a criminal appropriate when standard drug “once deal prohibited than a more in the pros- challenges statements fendant We er, argument. always dealer” first for the closing argument ecution’s agree. v. Bow- States appeal. See United time on (7th Cir.2003).
man, nothing about which argument said This objected por- to the Simpson’s counsel But on March in the minivan arrived person chal- he now closing argument of the tion person which nothing about It said immediately after he did so lenges, Bradley Emmanuel with the car entered words, “the infer- uttered the prosecutor nothing about And it said day. on that argument. closing in his being- ence the crack cocaine sold —” which objected at Simpson’s counsel Because argu closing prosecution’s Bradley. made, our review time the remarks asked improperly, simply, and ment court’s decision overrule district to prior that his admission conclude of discretion. objection for an abuse for the guilt deals demonstrated Sandoval, See United Bowman, transaction. March Cf. 627, (finding prosecutorial no F.3d at 551 used facts where prose misconduct claims have evaluated We purposes” permissible “for trial adduced constituted argument closing cutor’s jury to draw “ask[] propensi appeal to a defendant’s improper had admit- Bowman inference under certain conduct ty engage in *12 law, ted problems abiding by the he must remember the sale for which he guilty question”). of the crime in Be- trial because he had many” done “so cause the by prosecu- inference made the past insignificant is no matter.
tor
jurors
instructed
the
to convict
Moreover,
jurors
did not receive an
Simpson
prior uncharged
based on his
limiting
instruction
the conclusion that
deals,
improper.3
inference was
they could permissibly make from the
prosecutor’s
comments,
improper
an in-
Prejudice
struction that might have limited the im-
question
We turn next to the
pact of the
statement. Nor did
prejudice. Our assessment of whether a
invite
prosecutor’s
propensity infer-
prosecutor’s improper
prejudiced
conduct
And,
ence.
although Simpson’s counsel’s
a defendant includes an examination of six
closing argument
followed the prosecu-
(1)
factors:
mis
comments,
tion’s improper
Simpson could
(2)
evidence;
stated the
whether the re
any
introduce
good
charac-
marks implicated
specific
rights of the
point,
ter at that
and the damage from the
accused; (3) whether the defense invited
prosecutor’s inference was already done.
(4)
response;
the trial court’s instruc
Next, although
(5)
tions;
weight
of the evidence
prosecution’s
closing arguments
defendant;
(6)
against the
the defen
did not
evidence,
misstate admitted
in-
Hale,
dant’s opportunity to rebut.
jury
vited the
to make an improper infer-
986;
Washington,
Our examination of the record as a his prior drug omitted, deals the circum- whole leads us to conclude that the preju- stantial presented govern- dicial impact of prosecution’s closing ment was far from overwhelming. Nota- argument, which the dissent does not bly, even confidential Bradley informant mention, was significant. In a testify case where at the second trial. though Even circumstantial against jurors at the first trial had the benefit close, prosecution’s ex- of Bradley’s testimony that pur- he had plicit instruction to the to draw the chased crack cocaine from Simpson on inference that Simpson 6, 2003, had conducted “so March did not convict many” crack cocaine deals that he could Simpson. addition, In jurors’ ques- not remember the deal for which he stood during tions the second trial illustrate that trial powerful was a argument. Telling jurors trial, like the in the first they too jury to conclude that a defendant cannot had doubts about Simpson’s guilt. The finding way, although precedent our tor’s remarks in this case were made with the misconduct,” "prosecutorial labels this claim suggest intent to improper propensity in- suggest do not mean to prosecu- that the jury. ference to the I BAUER, dissenting. Judge, Circuit any fingerprints asked whether cocaine, dissent. respectfully wheth- bag of lifted from been techniques had recognition any voice er unnecessary verbiage, the of all Stripped recording, and tape on the conducted been *13 it position the that was majority takes testified, ques- all not Bradley had why (because was not its admission plain error of evidence the relating to amount tions fact, at trial —in not either objected to crime the to Simpson linked that trial) the FBI to relate the agent for the had physical no evidence where in a case defendant, delivered of the vol- statement him to the connecting introduced been he received the Miranda untarily after transcripts of to see They also asked deal. majority agree, the state- warning. As the FBI re- testimony and an Deputy Stadt’s exchange ment was based on between produced. was but neither port, essentially as agent and the Although the circumstantial asked what the The defendant follows: a uphold enough to case would be this agent The told charge against him was. challenge to verdict under jury’s guilty that: The agent then testified him. The supporting sufficiency of the the although ... he didn’t “told us defendant say that verdict, enough to it is not such ounce of delivering this remember 2-1/4 have been would probably outcome possible ... had crack was improper prosecutor’s without same around types transactions” done similar the evidence inference and propensity charged crime. place of the the time and drug deals. Simpson’s past unrelated defendant, had been a And, said the here, where trial at issue the second four for three or cocaine dealer crack of the the benefit not have jurors did years. in- testimony, the informant’s confidential statement, obviously Quibbling over this Simpson that of evidence troduction otherwise, interest, as penal and against for several cocaine dealer a crack been full confession or not it was a Simpson’s con- risk that created the years admission of the point; misses of the “forbid- the result would be viction error, it plain statement was Jones, 455 inference.” See propensity den of an in the face even was admissible (Easterbrook, J., concurring). F.3d at 812 tactic was trial objection. The defense told explicitly And when made, not was deny the inference to draw evidence. that it wasn’t admissible drug deals many so had done doing not remember that he could past trial, govern- of the beginning In the con- one, would the risk that agreed ment as a history on his Simpson based vict course, the convic- meaning, of crimes— only compounded. cocaine dealer was robbery aggravated armed tions for Thus, are not assured not be ref- battery with firearm —would trial, remand and we a fair received unless the de- erenced trial. for new case defendant’s volun- fendant testified. statement, virtually amounted which tary III. CONCLUSION in the true sense to a confession It was dis- word, not in contention. district court judgment of the opening objection cussed without is remanded and this matter VaCated, statement, by the defense at- referred grant with instructions district court proposed testi- acknowledging torney trial. a new mony pooh-poohing but its existence in his
opening considered, statements and was
together with the other evidence such as
the tape recording of the defendant negoti-
ating witness, a sale with a confidential evidence, by
and other jury. The de-
fendant’s statement “might have certainly
committed the crime” was rele-
vant and his memory fog reason explained by the fact that the transac- *14 just many
tion was one of similar transac-
tions, crack, all distributing saying
that, year later, an exact recollection of
every sale was more that he could muster.
I why know of no reason the defendant’s inadmissible,
statement was nor do I know
how it could have used using been without entirely. defendant not
deny crime, he acknowledged pos- undeniable;
sibility was he was in the busi-
ness, area, and in the span. time To
rule the defy inadmissible is to
logic.
I would affirm. America,
UNITED STATES of
Plaintiff-Appellee, NEWBERN,
Jamell C. Defendant-
Appellant.
No. 05-4709.
United States of Appeals, Court
Seventh Circuit.
Argued July
Decided March notes verify years’ su- and five imprisonment months’ take FBI did tion, stating that release, appeals. now and he pervised if an suspects statements written ANALYSIS less II. subject had been agent believed than candid. making only for tried was Simpson on March base delivery of cocaine single later, Hendon days two About partic- with charged 2003. He recording of tape listen to asked ipation in a conspiracy to illegal distribute involvement in unrelated deals was drugs. And he was not with dis- admitted in violation of Federal Rule tribution of cocaine any base on 404(b). occasion Evidence Evidence that he had other than March With back- sold crack past, cocaine mind, drop in turn to Simpson’s argu- argues, could show his propensity to ment that the admission of evidence that cocaine, sell crack not that he was the Simpson had engaged unrelated person responsible for selling crack co- deals, crack cocaine as well as the infer- caine to a confidential informant on March ence the drew his closing 6, 2003. The government, however, con- argument, improperly suggested to the tends that this evidence was admissible had a propensity to act either under the “identity” exception to as a drug dealer thereby denied him a Rule or pursuant to the “intricately fair trial. related evidence” doctrine. It should be clear now that evidence that a defendant had engaged in Standard of other Review drug transactions is not always admissible When a defendant object fails to