Evidence — other acts — propensity evidence

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United States Court of Appeals For the Seventh Circuit

Criminal

Evidence — other acts — propensity evidence

Where the government improperly relied on other acts evidence to argue propensity during closing argument, the conviction must be reversed.

“The government instead insists that the district court properly admitted the evidence and, as a result, it was free to “weave the statement into its theory of the case.” Bell, 624 F.3d at 812; see also United States v. Bowman, 353 F.3d 546, 551 (7th Cir. 2003). Fair enough, but Rule 404(b) prohibits the government’s theory of the case from resting on the propensity inference. Here, the government did precisely that, placing the propensity inference at the center of its closing argument. Prosecutors never explained to the jury specifically how Richards’s conversations with a man known as Pelon showed his knowledge of drug dealing at the Pelon ranch. For example, the government could have explained that Richards’s drug conversations with a man known as Pelon suggested Richards knew of drug trafficking originating from the Pelon ranch, thereby showing Richards knew the bags contained drugs. It did not. Instead, the government simply used the California calls to label Richards a cocaine trafficker and rested its case there. That is the propensity inference that Miller, Jones, and Simpson prohibit. See Miller, 673 F.3d at 699 (‘[T]he government must affirmatively show why a particular prior conviction tends to show the more forward-looking fact of purpose, design, or volition to commit the new crime.’ (quoting Jones, 389 F.3d at 757-58)). Neither Bowman nor Bell suggests otherwise. Both cases found the challenged statements devoid of “propensity aspects” or submitted for a non-propensity purpose, such as challenging the defendant’s credibility after he had testified. Bell, 624 F.3d at 811-12; Bowman, 353 F.3d at 551 (noting prosecutor never ‘asked the jury to draw the inference that because Bowman had admitted problems abiding by the law, he must be guilty’).”

“Reduced to its core, the government’s closing argument revolved around the propensity inference with the California calls as its centerpiece. The government paid scant attention to the knowledge rationale that justified admitting the tapes and instead deployed the tapes as evidence of Richards’s propensity for drug trafficking. That argument was improper, and we conclude that the district court abused its discretion in concluding otherwise.”

Reversed and Remanded.

12-2790 U.S. v. Richards

Appeal from the United States District Court for the Northern District of Illinois, Shadur, J., Flaum, J.