UNITED STATES OF AMERICA, Plaintiff-Appellee v. ROLAND PULLIAM, Defendant-Appellant.
No. 19-2162
United States Court of Appeals For the Seventh Circuit
Argued May 20, 2020 — Decided September 3, 2020
Before SYKES, Chief Judge, and RIPPLE and KANNE, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16-cr-328 — Sara L. Ellis, Judge.
KANNE,
After Pulliam was sentenced, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), which clarified the elements of a
Pulliam now argues that the erroneous jury instructions and three evidentiary errors require the reversal of his conviction. But none of these alleged errors call for the reversal of Pulliam’s conviction, so we affirm.
I. BACKGROUND
In July 2015, Chicago Police Department Officers Victor Alcazar and Jason Guziec responded to a dispatch call that four black men were selling drugs near a fence a few blocks from the officers’ location. Dispatch received this information from two anonymous 911 callers: the first caller reported seeing two drug transactions, while the other observed the men selling “something.” As the officers drove to the reported sale, they noticed four black men standing together near a fence in a McDonald’s parking lot. Officer Guziec parked the car and both officers approached the men to conduct a field interview.
After Pulliam’s arrest, Officer Alcazar and other officers searched the parking lot for contraband. The officers found no guns (other than the one discarded by Pulliam) or narcotics in the area. Officer Guziec brought Pulliam to the station and searched him. Pulliam was carrying $408 in cash.
Almost one year later, a grand jury charged Pulliam with possessing a firearm as a felon,
The district court prevented the government from presenting an audio recording of the 911 calls but allowed the officers to testify “as to what the dispatcher told them.” The district court also allowed the government to elicit testimony about the $408 found on Pulliam. Finally, the district court held that Pulliam could not elicit testimony from the officers about his “what gun” remark.
At trial, Officers Alcazar and Guziec testified about receiving the dispatch call, arriving at the parking lot, and the chase and investigation that ensued. The government also called Alison Rees—a fingerprint specialist for the Bureau of Alcohol, Tobacco, Firearms and Explosives—to testify that no fingerprints were recovered from the gun Officer Alcazar recovered.
Pulliam called his boss and the owner of K&M Auto, Marlon Reid, to testify that Pulliam was normally paid in cash on Fridays. In response, the government called a K&M Auto employee to testify that he personally was paid on Saturdays, not Fridays.
A jury found Pulliam guilty of being a felon in possession of a firearm,
After Pulliam’s trial and sentencing, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif held that, for the government to secure a conviction under
II. ANALYSIS
Pulliam raises four issues on appeal. First, Pulliam argues that the district court’s jury instructions constitute a plain error in light of the Supreme Court’s decision in Rehaif. His other arguments concern three evidentiary rulings that the district
A. Missing Rehaif Instruction
At Pulliam’s trial, the jury was instructed that the government had to prove three elements beyond a reasonable doubt to convict Pulliam of being a felon in possession of a firearm: “[F]irst, that the defendant knowingly possessed a firearm; second, at the time of the charged act [Pulliam] had previously been convicted of a crime punishable by a term of imprisonment of exceeding one year; and third, … the firearm had been shipped or transported in interstate or foreign commerce.”
The district court gave this instruction based on well-settled law at the time that
Pulliam did not argue in the district court that the jury instructions were missing an element. Still, Pulliam believes the jury instructions constitute plain error, requiring a reversal of his conviction. See
Plain-error review has four elements: (1) an error occurred, (2) that error is plain, and (3) the error affects the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 732–34 (1993). These three elements are limitations on appellate authority, id. at 734; if these elements are satisfied, an appellate court may “then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” Johnson v. United States, 520 U.S. 461, 467 (1997) (alteration in original) (some internal quotation marks omitted) (quoting Olano, 507 U.S. at 732).
Pulliam argues that the district court’s error affected his substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Importantly, he argues that—in assessing the third and fourth plain-error elements—we may only look at evidence actually presented to the jury. To do otherwise, Pulliam reasons, would contravene his Sixth Amendment right to have “each element of a crime be proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 104 (2013).
At the time Pulliam made this argument, we had not yet addressed how plain-error review applies to pre-Rehaif
In Maez, we established the scope of the record we review when applying the third and fourth elements of the plain-error test. In assessing the third element (substantial rights), we look only “to the trial record when a defendant has exercised his right to a trial.” Id. at 961
With the Maez framework in mind, we now turn to Pulliam’s plain-error arguments. First, we agree with Pulliam and the government that there was an “error” that is “plain” in the jury instructions. The jury was not instructed that the government had to prove Pulliam knew he was a felon when he possessed a firearm. After Rehaif, this missing jury instruction amounts to a plain error. Maez, 960 F.3d at 964; see Henderson v. United States, 568 U.S. 266, 279 (2013) (“[W]e conclude that whether a legal question was settled or unsettled at the time of trial, ‘it is enough that an error be “plain” at the time of appellate consideration’ for ‘[the] second part of the [four-part] Olano test [to be] satisfied.’“) (alterations in original) (quoting Johnson, 520 U.S. at 468).
Turning to the third element, we must determine if the error affected Pulliam’s substantial rights. A jury instruction that omits an element of the crime affects a defendant’s substantial rights if “it appeared ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” United States v. Caira, 737 F.3d 455, 464 (7th Cir. 2013) (quoting Neder v. United States, 527 U.S. 1, 15 (1999)). Put another way, if overwhelming evidence presented to the jury proves the omitted element, we can conclude that the omitted instruction did not impact the verdict and therefore did not affect the defendant’s substantial rights. See, e.g., Maez, 960 F.3d at 964; United States v. Groce, 891 F.3d 260, 269 (7th Cir. 2018).
The substantial rights analysis here is a difficult one. Pulliam stipulated to a prior felony conviction. See Maez, 960 F.3d at 964 (“A jury could reasonably think that a felony conviction is a life experience unlikely to be forgotten.“). And the jury heard testimony that Pulliam ran from the police, although for a short period of time. See id. at 965 (noting that testimony concerning the defendant’s attempt to flee from officers relates to the defendant’s knowledge of his status as a felon). This evidence is probative of Pulliam’s knowledge of his felon status, but it may not be overwhelming evidence “on the new Rehaif element of knowledge of status as a felon.” Id. However, we decline to decide if Pulliam’s rights were affected because, even if they were, we would not exercise our discretion to correct this error under the fourth element.
In exercising our discretion under the fourth element, we must ask whether the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732 (alteration in original) (quoting United States v. Young, 470 U.S. 1, 15 (1985)). This element “has been compared to a ‘miscarriage of justice,’ or in other words, ‘a substantial risk of convicting an innocent person.’” Maez, 960 F.3d at 962 (quoting United States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005)). So, if we are confident that the error in the jury instructions does not create the risk of a miscarriage of justice, we may decline to exercise our discretion to remand for a new trial. Maez, 960 F.3d at 965.
Here, undisputed portions of Pulliam’s PSR provide strong circumstantial evidence
Pulliam’s time in prison—serving over a year at a time on at least two occasions—and the “sheer number of his other convictions” impairs his ability to argue ignorance as to his status as a felon. Dowthard, 948 F.3d at 818. We are confident that Pulliam knew he was a felon at the time he possessed a firearm in 2015. So, there is no risk of a miscarriage of justice because the error here does not seriously harm the fairness, integrity, or public reputation of judicial proceedings. See Maez, 960 F.3d at 964 (“Affirmance in this instance protects rather than harms ‘the fairness, integrity or public reputation of judicia proceedings.’“). We therefore decline to exercise our discretion to correct the error in the jury instructions.
B. Evidentiary Rulings
Pulliam next challenges the district court’s denial of his motion for a new trial, which relied in part on three underlying evidentiary rulings. Pulliam argues that the district court erred by (1) excluding the officers’ testimony about his “what gun” remark, (2) admitting the officers’ testimony that Pulliam possessed $408 when he was arrested, and (3) admitting the officers’ testimony about the dispatch call.
We review the district court’s denial of a motion for a new trial, as well as its evidentiary rulings, for an abuse of discretion. United States v. Washington, 962 F.3d 901, 905 (7th Cir. 2020). We give “special deference” to a district court’s evidentiary rulings, Groce, 891 F.3d at 268, and we reverse these rulings “only if no reasonable person could take the judge’s view of the matter,” United States v. Brown, 871 F.3d 532, 536 (7th Cir. 2017).
But even the “[i]mproper admission of evidence does not call for reversal if the error was harmless.” United States v. Chaparro, 956 F.3d 462, 481–82 (7th Cir. 2020); see
We now turn to Pulliam’s arguments concerning the district court’s order denying him a new trial and the underlying evidentiary rulings.
Officers from the Chicago Police Department interviewed Pulliam after his arrest. It is unclear from the record what the investigating officers asked Pulliam during this interview.1 But in response to the officers’ inquiry, Pulliam’s counsel and the district court agreed that Pulliam “denied knowledge [of the gun] and said: ‘What gun?’”
Prior to trial, Pulliam informed the district court that he planned to elicit testimony from the officers about the “what gun” remark. The government objected to this testimony as hearsay; Pulliam responded that “what gun” is a question, not a statement, and is therefore not hearsay.
Pulliam argues this ruling was an abuse of discretion. Specifically, he believes that the district court should have resolved the issue in favor of admissibility because of the “highly ambiguous record.”
A defendant’s out-of-court statement, when offered by the defense, can be hearsay. See United States v. Sanjar, 876 F.3d 725, 739 (5th Cir. 2017) (“When offered by the government, a defendant’s out-of-court statements are those of a party opponent and thus not hearsay. When offered by the defense, however, such statements are hearsay … .“). But not all a defendant’s remarks are “statements” for hearsay purposes.
We have held that questions are not statements under Rule 801 and therefore are not hearsay. See United States v. Thomas, 453 F.3d 838, 845 (7th Cir. 2006). Since Thomas we have elaborated on what makes a remark a question rather than a statement. A defendant’s remark is a question if it is “designed to elicit information and a response.” United States v. Love, 706 F.3d 832, 840 (7th Cir. 2013) (quoting United States v. Summers, 414 F.3d 1287, 1300 (10th Cir. 2005)). If the remark is intended to assert information, it is a statement rather than a question. See Summers, 414 F.3d at 1300.
Put simply, the intent behind a remark dictates whether it is a statement or a question for hearsay purposes. See id. And the context surrounding the remark may help us ascertain the declarant’s intent. See Love, 706 F.3d at 840; Summers, 414 F.3d at 1300. Moreover, the party challenging the admission of the remark has the burden of demonstrating the declarant’s intent.
Here, although the record is ambiguous, it was not unreasonable for the district court to conclude—for purposes of Rule 801—that the government met its burden in showing that Pulliam’s “what gun” remark was a statement. This remark
2. Money in Pulliam’s Possession
Before trial, Pulliam filed a motion in limine asking the district court to preclude the government from eliciting testimony concerning the $408 recovered from Pulliam. Pulliam argued that the testimony “would be significantly more prejudicial than probative.”
The district court ruled that testimony about Pulliam’s cash is admissible to show his motive for carrying the gun. See
Pulliam argues that this [evidence] was unfairly prejudicial. However, his own closing arguments that he had no incentive to possess a gun demonstrate the significant probative value of this evidence for it provides a motive for possessing the gun in the first instance. The Court finds that any unfair prejudice did not substantially outweigh that probative value.
”
The problem with other-act evidence is that it may often be used for a permitted use—like showing motive—and an impermissible use—like showing a propensity to commit a crime. United States v. Morgan, 929 F.3d 411, 427 (7th Cir. 2019). Still, even if the evidence might support a propensity inference, it may be admitted so long as its admission for a permissible purpose is “supported by some propensity-free chain of reasoning.” United States v. Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (en banc) (“Rule 404(b) excludes the evidence if its relevance to ‘another purpose’ is established only through the forbidden propensity inference.“). Stated another way, the district court should “not just ask whether the proposed other-act evidence is relevant to a non-propensity
But even if evidence is “relevant without relying on a propensity inference,” it may still be excluded under Rule 403. Id. A court may exclude relevant evidence if its “probative value is substantially outweighed by a danger of … unfair prejudice.”
Pulliam does not seem to contest the district court’s 404(b) analysis. He points out that “[p]roving motive can be a permissible purpose for the introduction of ‘other acts,’ such as alleged drug activity.” Indeed, we have approved of admitting “other-act” evidence of drug dealing to prove the defendant had a motive to possess a firearm. See United States v. Schmitt, 770 F.3d 524, 533–35 (7th Cir. 2014) (admitting testimony that drugs were found in Schmitt’s home for the purpose of proving a motive to possess a gun when possession was disputed at trial). Pulliam instead argues that the district court’s Rule 403 analysis in its order denying Pulliam’s new trial was an abuse of discretion. He also argues that the district court failed to consider all of the unfairly prejudicial effects of this evidence.
Testimony about Pulliam’s cash presents the prototypical “other-act” evidence problem. The jury heard testimony about the cash, which was admitted for the purpose of showing that Pulliam was dealing drugs at the time of his arrest, which would give him a motive to possess a gun. But the jury just as easily could have drawn the inference that Pulliam “was the type of person who would break the law once” by dealing drugs, so “he must be the type of person who would break the law again” by possessing a firearm as a felon. Id. at 534. So, the jury could have used this evidence for an improper propensity purpose, creating a risk of unfair prejudice.
But this evidence was also probative of a central issue at trial. Motive to possess a gun—the non-propensity issue—was hotly disputed. Cf. Gomez, 763 F.3d at 857. And the testimony concerning Pulliam’s cash was offered in support of that motive. Pulliam disputed that he possessed a gun and that he had a motive to possess a gun. In his opening statement, Pulliam made his theory of the case clear: “He was arrested frankly for being in the right place, a place he had every right to be, at the wrong time.” Pulliam also cross-examined the officers about whether they had seen Pulliam engage in drug transactions, if they found drugs on him, and if they knew how he got the $408. Additionally, Pulliam’s boss at K&M Auto testified that Pulliam is paid in cash on Fridays, giving him an innocent reason to possess the cash. Pulliam tied this all together in his closing argument: “There were no drugs on him. He had $400 that he got paid that day. What would be the incentive to have a gun? There was no incentive to have a gun.” Pulliam thus made possession, and a motive to possess a gun, “central to the case.” Brewer, 915 F.3d at 416. Evidence about his motive, then, was highly probative. See Gomez, 763 F.3d at 857.
But the specific motive evidence—testimony about cash found on Pulliam’s person—is not strong evidence of drug-dealing activity, and therefore, even more tenuous evidence of motive. The officers
Still, Pulliam’s possession of a gun and his motive for possession were squarely at issue during trial and were heavily contested. So it was not unreasonable, and therefore not an abuse of discretion, for the district court to conclude that the testimony’s probative value was not substantially outweighed by the potential unfair prejudice of the jury assuming that Pulliam was a drug dealer, and thus more likely to commit other crimes. See Brewer, 915 F.3d at 416 (“The evidence of the Ohio and California robberies was of course prejudicial—all other-act evidence is—but given that Brewer put his identity and intent squarely at issue, it was not unfairly so.“); cf. United States v. Foley, 740 F.3d 1079, 1088 (7th Cir. 2014) (“Our role on appeal … is not to apply the Rule 403 balancing test de novo but to review the district court’s decision for an abuse of discretion.“).
Finally, Pulliam takes issue with the district court’s reasoning affirming this evidentiary ruling in its order denying Pulliam a new trial. He argues that the district court failed to consider “the unfairly prejudicial effect of using the innocent act of carrying cash to support the conclusion of criminal drug trafficking.” The district court acknowledged Pulliam’s unfair prejudice argument, but ultimately concluded “that any unfair prejudice did not substantially outweigh” the probative value of the testimony.
A district court’s provided reasoning amounts to an abuse of discretion when the court fails to explain its “bare-bones conclusion that ‘the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.’” United States v. Ciesiolka, 614 F.3d 347, 357 (7th Cir. 2010); see United States v. Eads, 729 F.3d 769, 777 (7th Cir. 2013) (finding the district court’s Rule 403 analysis insufficient where it did not explain the specific probative value or risk of prejudice presented by the evidence). This is because “[a] pro-forma recitation of the Rule 403 balancing test does not allow an appellate court to conduct a proper review of the district court’s analysis.” United States v. Loughry, 660 F.3d 965, 972 (7th Cir. 2011) (finding that the district court’s Rule 403 reasoning amounted to an abuse of discretion when it only explained that “the Court conducted the Rule 403 balancing test and concluded that the probative value of the Government’s evidence was not substantially outweighed by the danger of unfair recitation“).
It is true that the district court could have provided more thorough reasoning concerning its Rule 403 decision. But the district court emphasized the probative value of the testimony concerning Pulliam’s cash: “[Pulliam’s] own closing arguments that he had no incentive to possess a gun demonstrate the significant probative value of this evidence for it provides a motive for possessing the gun in the first instance.” Considering this probative value, the district court reasoned that “any unfair prejudice did not substantially outweigh that probative value.” See United States v. Adkins, 743 F.3d 176, 184 (7th Cir. 2014) (“[T]he district court found the … evidence more probative than prejudicial for the same reasons that it found the evidence to be direct evidence of criminality: the evidence went to [the defendant’s] knowledge, preparation, and intent.“). Essentially, in conducting the Rule 403 analysis, the district court determined that the
This analysis is not “bare-boned” and provides enough reasoning for us to properly review it, especially since the only unfair prejudice Pulliam argues is that he was unfairly depicted as a drug dealer. So, although the district court could have provided more extensive reasoning to support its Rule 403 conclusion, the analysis provided does not amount to an abuse of discretion.
3. Dispatch Call
The district court, over Pulliam’s objection, allowed the government to elicit testimony from the officers concerning the dispatch call they received. The district court reasoned:
The government argues that the [anonymous 911 calls] provide the jury with the context for why the police officers were in the McDonald’s parking lot and why they approached Mr. Pulliam. There’s no suggestion that the officers listened to the 911 calls before arriving at the McDonald’s parking lot and seeing Mr. Pulliam there. The officers were responding to a report from their dispatcher. Therefore, for these purposes it would be appropriate for the officers to testify as to what the dispatcher told them, which may include that the emergency response center had received two calls of suspected drug sales.
(emphasis added). And in its order denying Pulliam a new trial, the district court declined to alter this decision: “The court finds again that the dispatch information was relevant to the officers’ state of mind to explain their actions when they attempted to approach the group of men including Pulliam.”
Pulliam argues that testimony concerning the dispatch call was highly prejudicial, had little probative value, and the district court abused its discretion by not excluding this evidence under Rule 403. The government argues that—like the testimony concerning Pulliam’s cash—the testimony about the dispatch call was admitted to show that Pulliam had a motive to possess a firearm because he was dealing drugs. And since motive and possession were disputed, the probative value of testimony about the dispatch calls outweighs its potential for unfair prejudice.
We disagree with the government’s characterization of the district court’s reason for admitting this testimony. The district court, in both its rulings on the testimony about the dispatch call, does not explicitly tie this evidence to motive. Instead, in admitting this evidence and affirming this decision, the district court emphasized the testimony’s relevance to provide context for why the officers approached Pulliam. So, the district court did not allow the officers to testify about the dispatch call to prove that Pulliam had a motive to possess a gun because he was dealing drugs; it instead admitted this evidence to provide context for why the officers approached Pulliam prior to his arrest.
And considering the purpose for which the evidence was actually admitted, the dispatch call had minimal probative value. The reason why the officers showed up at the parking lot was not disputed at trial. Importantly, it also had “nothing to do with the charge[] in this case,” possessing a gun. United States v. Cooper, 591 F.3d 582, 589 (7th Cir. 2010). It is hard to see how this evidence could have any probative value when it had no relation to the offense charged or the disputed issues. See United States v. Nelson, 958 F.3d 667, 670 (7th Cir. 2020) (expressing concerns “about
This testimony also had a potential for unfair prejudice. The dispatch call informed the officers of a potential narcotics sale in the parking lot where they found Pulliam. The jury could have drawn the same inference from this evidence as it could have from testimony about the cash on Pulliam’s person: Pulliam “was the type of person who would break the law once” by dealing drugs, so “he must be the type of person who would break the law again.” Schmitt, 770 F.3d at 534. But unlike the testimony about the cash found on Pulliam, the testimony about the dispatch call has almost no probative value; this makes it hard to accept almost any risk of prejudice, United States v. Boros, 668 F.3d 901, 909 (7th Cir. 2012). So, the question of whether the district court abused its discretion in its rulings related to this evidence is a close call.
But we need not answer this question because, even if this evidence was improperly admitted, its admission was harmless.2 See United States v. Miller, 954 F.3d 551, 560–64 (2d Cir. 2020) (analyzing an evidentiary error for harmlessness when there was also a Rehaif error in the jury instructions that did not “rise to the level of reversible plain error“).
Both officers testified in detail about the events leading to Pulliam’s arrest. The officers testified that as they approached the group of men in the parking lot, Pulliam began to walk away and disappeared behind a van. When he emerged from behind the van, both officers saw a chrome gun in Pulliam’s hand. Officer Guziec yelled “gun” and drew his own weapon; Pulliam ran from the officers and into a nearby alley. Officer Alcazar testified that, at this point, he was a few feet away from Pulliam and did not lose sight of him during the entire chase. Pulliam then raised his hands, turned around, and threw the gun toward the McDonald’s dumpster. Officer Alcazar testified that he saw Pulliam throw the gun and saw approximately where the gun landed. Officer Guziec also testified that he saw Pulliam throw the gun.
Officer Guziec then escorted Pulliam back to the squad car. Officer Alcazar testified that he split from Officer Guziec and went to retrieve the gun Pulliam had just thrown. When Officer Alcazar got to the area where the gun landed—near the McDonald’s dumpster—he saw only one, chrome gun. Officer Alcazar testified that he retrieved this gun within one minute of Officer Guziec detaining Pulliam.
The officers provided extensive testimony proving that Pulliam knowingly possessed a firearm, the only issue disputed at trial. We are therefore convinced that excluding the officers’ brief testimony concerning the dispatch call would not have made the government’s case significantly less persuasive. See Buncich, 926 F.3d at 368–69. Any error in admitting this evidence, then, would be harmless.
III. CONCLUSION
Because the error in the jury instruction does not seriously affect the fairness, integrity,