In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3608
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B ILLY L. H ICKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cr-0045-WTL-KPF-1— William T. Lawrence, Judge.
A RGUED A PRIL 13, 2010 — D ECIDED A PRIL 4, 2011
Before W ILLIAMS, S YKES, and T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. A jury found Billy Hicks guilty
of one count of knowingly distributing cocaine base, in
violation of 21 U.S.C. § 841(a)(1). Hicks appeals his convic-
tion, arguing that the district court made several errors
during trial. We find that the district court did not err
when it dismissed a juror for cause based on her relation-
2 No. 09-3608
ship to a witness, admitted tape recordings between Hicks
and a confidential informant, and allowed federal agents
to testify about their personal observations. However,
because we find that the district court improperly allowed
evidence of Hicks’s prior drug convictions in violation of
Federal Rule of Evidence 404(b), we vacate his conviction
and remand for a new trial.
I. BACKGROUND
On July 17, 2006, Billy Hicks had a telephone conversa-
tion with Anthony Hurd about the possibility of Hurd
purchasing a large amount of crack cocaine. What Hicks
did not know was that Hurd was a confidential informant
who called Hicks at the direction of the Federal Bureau of
Investigation (“FBI”). The conversation was recorded, and
the two discussed meeting up the next day for the ex-
change. During the conversation, neither spoke specifically
about drugs; instead, the entire conversation took place in
code (e.g., Hurd: “What’s it looking like, still all good?”
Hicks: “I’m here man, that’s all you gotta do. Done bro,
stop all that talking. Done.”).
On the day of the exchange, Hurd and Hicks had a few
other telephone conversations, all of which were recorded.
During those conversations, Hicks mentioned that he
wanted to meet Hurd at a location closer to where he was
staying because Hicks did not want to “ride through town
with all that shit.” They finally agreed to meet at the home
of a relative of Hicks’s girlfriend, Tanya Lear. Hurd
drove to the location with Kareem Jacox, an FBI agent
acting undercover as a drug dealer, who waited in the car
No. 09-3608 3
during the exchange. There were also other law enforce-
ment surveillance cars and a helicopter monitoring the
area. Hurd had been given $2,500 cash from the FBI to
purchase five ounces of crack cocaine and was wearing a
body wire to record any conversations. He was also
searched to ensure he had no drugs on him. Hurd left the
car and met briefly with Hicks in the front yard of the
house. The two then went inside and discussed price (e.g.
Hurd: “[F]or the 4 . . . you keep sayin’ the 4, then you keep
going back to the 450.” Hicks: “I said 450, 450, ’cause I’m
charging 475, these other niggas who I dealing to . . . 5.”).
Other unidentified persons’ voices were also recorded by
Hurd’s wire. When Hurd returned to the car he had four
ounces of crack cocaine. No law enforcement officer saw
what went on in the house.
After the FBI realized that Hurd had not received the
expected amount of crack cocaine, Jacox called Hicks to
arrange for a pick-up of the remaining ounce. They
planned to meet on August 1 at a local restaurant. Jacox
went to the restaurant at the agreed time and received new
instructions from Hicks to instead meet him at a drugstore.
As Jacox drove from the restaurant to the drugstore, he
believed he was being followed by individuals doing
counter surveillance for Hicks. His suspicions grew
stronger when he arrived at the store and saw a man
who stared at him for approximately fifteen minutes while
talking on a cell phone. Jacox also noticed other people that
he believed were watching him. Fellow undercover FBI
agents monitoring the meeting also noticed that Jacox had
been followed and that there were several individuals
4 No. 09-3608
doing counter surveillance. At some point, the FBI termi-
nated the exchange based on these safety concerns.
In 2008, Hicks was arrested. Hicks told the arresting
agent that he was not a big drug dealer, but only dealt in
ounce quantities of crack cocaine. The government charged
Hicks with one count of distributing more than 50 grams
of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Hicks
pleaded not guilty and went to trial in July 2009.
Approximately three weeks before trial, the government
filed a motion to introduce evidence of Hicks’s two prior
drug convictions under Federal Rule of Evidence 404(b) to
prove Hicks’s knowledge of the drug industry and his
intent to distribute crack cocaine during the July 2006 sale
to Hurd. One of the convictions was for selling cocaine
in 1998. The other was a 2002 conviction for cocaine
possession. Hicks opposed the motion, but the district
court granted it, finding that the convictions were ad-
missible to show Hicks’s knowledge and lack of mistake.
Three days before the trial was scheduled to commence,
Hicks filed a motion for reconsideration of the court’s
denial of a prior motion to continue the trial and, in con-
nection with a possible entrapment defense, tentatively
stated that, “in light of this Court’s [404(b)] ruling, Hicks
and the undersigned counsel had to consider additional
trial strategies. And, quite frankly, a final decision has not
been made as to which strategy is more effective.” The
government then filed a trial brief in which it stated that
it was “unknown” whether Hicks intended to present an
entrapment defense, but argued that the defense was
unavailable to Hicks. In response, Hicks filed an “entrap-
No. 09-3608 5
ment proffer” in which he again objected to the court’s
Rule 404(b) ruling. Hicks stated, “With the [court’s] 404(b)
ruling, Hicks has little choice but to take the stand, and he
should be permitted to assert whatever defense he
chooses.”
Hicks’s counsel did not make an opening statement and
therefore Hicks did not refer to his entrapment defense at
the beginning of trial. During trial, over defense coun-
sel’s objection, the government introduced several audio
recordings of the telephone conversations between Hicks
and Hurd (who was murdered before trial) and introduced
testimony about the alleged counter surveillance observed
at the drugstore on August 1. The court also allowed the
government to introduce evidence of Hicks’s two prior
drug convictions at the close of its case-in-chief over
Hicks’s renewed objection. The court gave a limiting
instruction explaining to the jury that the prior convictions
could be considered “only on the questions of the [Hicks’s]
knowledge, intent, and lack of mistake.”
The government then rested and the court released the
jury. The court asked Hicks’s attorney to “take the time
necessary to talk with Mr. Hicks and decide on the entrap-
ment” defense. After the recess, defense counsel told the
court, “After a long discussion with my client . . . my client
wishes to take the stand, and we are going to proceed with
the entrapment defense.” Hicks then testified. He acknowl-
edged his previous convictions, but stated that he was
a changed man who worked multiple jobs to provide
for his young son and girlfriend. He testified that Hurd
had been pressuring him to get back into selling drugs
and that Hurd became increasingly aggressive, telling
6 No. 09-3608
Hicks that he “owed some people some money” and
that he was “desperate.” According to Hicks, he finally
relented in July 2006 when he agreed to set up the drug
deal for Hurd. Hicks maintained that he did not sell
Hurd any drugs, but instead claimed to have only set up
the exchange between Hurd and an acquaintance.
Hicks’s girlfriend, Tanya Lear, also testified on his behalf,
describing his hardworking nature and volunteer efforts.
During Lear’s testimony, Juror #9 alerted the court that
she recognized Lear. Outside the presence of the parties,
the juror explained that she had not recognized Lear’s
name during voir dire, but that she immediately identified
Lear’s voice during her testimony because Lear and the
juror spoke on the phone for work-related issues four to
five times per week. The juror stated that she thought Lear
was “friendly” but that she was able to remain objective.
Nonetheless, the court dismissed the juror for cause and
substituted an alternate juror.
After both parties gave their closing statements, the
district court instructed the jury on the offense charged, on
Hicks’s entrapment defense, and on accomplice liability.
The jury found Hicks guilty of distributing more than 50
grams of crack cocaine. Hicks was sentenced to a term
of life imprisonment. He now appeals various aspects of
his conviction and requests a new trial.
II. ANALYSIS
A. Juror Properly Dismissed for Cause
A trial judge may exclude for cause any juror who is
“unable to render impartial jury service.” 28 U.S.C.
No. 09-3608 7
§ 1866(c)(2). “Our review of the trial judge’s ruling with
respect to a challenge for cause is deferential because the
trial judge had the opportunity to assess the credibility and
demeanor of the potential jurors during voir dire.” United
States v. Brodnicki, 516 F.3d 570, 574 (7th Cir. 2008). “If
the record shows some legitimate basis for the decision to
replace a juror, there is no abuse of discretion.” United
States v. Warner, 498 F.3d 666, 689 (7th Cir. 2007) (internal
quotation marks and citations omitted).
The district court had a legitimate basis for its dismissal
of Juror #9. The juror had informed the court that she
communicated with Lear on an almost daily basis as part
of their work and that she regarded her as “friendly.” We
have found that this sort of familiarity is an appropriate
basis for dismissal. See, e.g., United States v. Sandoval, 241
F.3d 549, 552 (7th Cir. 2001) (during kidnapping trial,
district court properly removed juror after juror informed
judge that she recognized the witness after seeing him on
a previous day). Additionally, Lear was one of Hicks’s
key witnesses and was testifying about his character, one
of the main issues Hicks identified as his defense. Given
the importance of Lear’s testimony and the extent of her
communications with Juror #9, the district court’s decision
to dismiss her falls well within the range of discretion
afforded to trial judges in issues of juror replacement.
B. Tape Recordings Properly Admitted
Because Hicks raises a Sixth Amendment challenge to the
government’s introduction of the recorded conversations,
we review the district court’s ruling de novo. See United
8 No. 09-3608
States v. Nettles, 476 F.3d 508, 517 (7th Cir. 2007) (reviewing
“de novo a ruling that affects a defendant’s Sixth Amend-
ment rights”). Hicks argues that the tape recordings of his
telephone conversations with Hurd contain hearsay. Rule
802 prohibits the admission of hearsay statements, which
are defined as out-of-court statements offered into evi-
dence to prove the truth of the matter asserted. Fed. R.
Evid. 801(c). We find that the recordings do not contain
inadmissible hearsay. It is clear that Hicks’s statements
were admissible as statements of a party opponent, which
do not constitute hearsay. See Fed. R. Evid. 801(d)(2)
(providing that if a “party’s own statement, in either an
individual or a representative capacity” is offered against
the party, the statement is not hearsay).
Hurd’s statements were admissible to contextualize
Hicks’s statements. “When recorded evidence is admitted
in the absence of testimony by an informant who recorded
the conversation, the Confrontation Clause of the Sixth
Amendment is not violated if the statements are
nontestimonial and are not offered for the truth of the
matter asserted. It is well-settled that nonhearsay state-
ments are not testimonial if they are offered to provide
context.” United States v. Van Sach, 458 F.3d 694, 701
(7th Cir. 2006). Hurd’s statements fit squarely into the
“context” exception because, without his part of the
conversation, none of the words uttered by Hicks would
make sense. Moreover, Hicks never attempted to contra-
dict, clarify, or disavow any of Hurd’s statements. We have
repeatedly found that the adoption of an informant’s
statements is also a basis for their admission. See, e.g.,
United States v. Schalk, 515 F.3d 768, 775 (7th Cir. 2008);
No. 09-3608 9
United States v. Woods, 301 F.3d 556, 561 (7th Cir. 2002)
(finding informant’s side of telephone conversations with
defendant admissible because they were adopted
by defendant during the course of the conversation where
defendant either led or responded to each of the infor-
mant’s requests and questions and at no time contradicted
the informant’s comments or questions regarding the
purchase of drugs). Therefore, we find that the district
court properly admitted Hurd’s statements in the record-
ings to contextualize Hicks’s statements.
C. FBI Agents’ Testimony Admissible
Hicks contends that the testimony of Agent Jacox and
other FBI agents concerning the alleged counter surveil-
lance observed at the August 1 attempted meeting was
tantamount to expert testimony. Because Hicks did not
raise this objection at trial, we review for plain error. Fed.
R. Crim. P. 52(b).
Hicks’s argument fails because law enforcement officers
are entitled to render lay opinions concerning criminal or
suspicious activity based on their personal observations.
“A deduction of possible criminality often is warranted
when a law-enforcement officer witnesses suspicious
behavior personally. Perhaps more often, however,
first-hand observation—particularly of a crime like
drug-trafficking, which usually is accomplished profes-
sionally and furtively—is well-nigh impossible . . . .”
United States v. Skinner, 972 F.2d 171, 176 n.4 (7th Cir. 1992).
Here, the FBI agents did not testify that the persons
observed at the restaurant and drugstore were in fact
10 No. 09-3608
counter surveillance persons assigned by Hicks; rather,
they testified as to their observations—that Jacox was
followed from the restaurant to the drugstore, that there
appeared to be suspicious individuals watching Jacox, and
that they believed it most prudent to call off the operation.
Such personal observations do not rise to the level of
expert opinion.
D. Prior Unrelated Drug Convictions Improperly Ad-
mitted
Hicks next contends that the district court erred by
allowing his prior convictions for cocaine dealing
and possession to be admitted during the government’s
case-in-chief. We review evidentiary rulings made over a
defendant’s objections for abuse of discretion. United States
v. Avila, 557 F.3d 809, 819 (7th Cir. 2009). If such an error
has occurred, reversal is required if the error affects a
defendant’s “substantial rights.” Fed. R. Crim. P. 52(a). In
determining whether a nonconstitutional error affects
substantial rights, “our task is to gauge what effect the
error had or reasonably may be taken to have had upon the
jury’s decision.” United States v. Zapata, 871 F.2d 616, 622
(7th Cir. 1989).
Rule 404(b) provides that evidence of other acts is
inadmissible “to prove the character of a person in order to
show action in conformity therewith” but may be admissi-
ble for other purposes, such as proof of motive, opportu-
nity, intent, plan, knowledge, identity, or absence of
mistake or accident. In determining whether evidence was
properly admitted under Rule 404(b), the court considers
No. 09-3608 11
whether: (1) the evidence is directed toward establishing
a matter in issue other than the defendant’s propensity
to commit the crime charged, (2) the evidence shows that
the other act is similar enough and close enough in time
to be relevant to the matter in issue, (3) the evidence
is sufficient to support a jury finding that the defendant
committed the similar act, and (4) the probative value of
the evidence is not substantially outweighed by the
danger of unfair prejudice, as required by Rule 403. United
States v. Harris, 587 F.3d 861, 864-65 (7th Cir. 2009).
We must first determine whether the convictions are
directed toward establishing a matter in issue other than
Hicks’s propensity to sell drugs. The district court admit-
ted the convictions to establish knowledge and lack of
mistake. Whether the prior convictions are relevant to the
issue of knowledge or lack of mistake turns on whether
they “tend to make the existence of any fact that is of
consequence to the determination of the action more
probable or less probable.” Fed. R. Evid. 401.
As to knowledge, the government contends that Hicks’s
prior convictions tend to show that Hicks knew about the
“illicit nature” of the drug distributing business. But
this argument is a non-starter because Hicks never claimed
that he did not know that selling crack cocaine was illegal
or that he did not know how to sell drugs.
The government also contends, relying on United States
v. Hatchett, 245 F.3d 625, 643 (7th Cir. 2001), that the
convictions were admissible to show that Hicks was a
“knowing participant” instead of an “unwitting bystander”
to the drug deal. In Hatchett, the defendant was charged
with distributing crack cocaine to a certain “Riley” and
12 No. 09-3608
with aiding and abetting Riley’s subsequent distribution
of the cocaine to “Panzer” and “Hess.” 245 F.3d at 642-43.
We found that evidence that the defendant had partici-
pated in a prior drug deal was admissible to establish
the defendant’s knowledge because:
Although Hatchett insists that his knowledge was
actually not in issue, because he simply argued that
he did not supply Riley with the cocaine, the
record belies his contention. In fact, Hatchett
specifically denied having any knowledge that
Riley was distributing cocaine to Panzer and Hess.
Under these circumstances, we believe that testi-
mony concerning the [previous] transaction—
which involved both Riley and Panzer’s brother—
was admissible . . . .
Id.
Hatchett is distinguishable from this case. In Hatchett,
the evidence was relevant to the aiding and abetting
charge—to show that the defendant knew that Riley was
redistributing the drugs and that the drugs would end
up in the hands of Hess and Panzer. Id. What was impor-
tant about the previous drug deal was that the defendant
had sold drugs to Riley and had witnessed Riley
giving half of the drugs to Panzer’s brother. Id. at 629. This
certainly made it more likely that the defendant knew that
Riley was distributing drugs and that he knew all of the
players involved. Here, however, Hicks’s strategy during
the government’s case-in-chief was simply to question the
agents’ ability to witness whether he sold the drugs to
Hurd. There was no allegation that Hicks’s prior drug
No. 09-3608 13
deals involved Hurd. And the government has not ex-
plained why Hurd’s prior convictions for cocaine posses-
sion and distribution make it more likely that he was a
“knowing participant” in this drug deal other than by
drawing the prohibited inference of “once a drug dealer,
always a drug dealer.”
Neither has the government explained why the convic-
tions were relevant to show that Hicks’s actions were
the result of a mistake. Hicks never contended that he did
not know that the substance for sale was crack cocaine or
any other controlled substance. See United States v. Chavis,
429 F.3d 662, 673 (7th Cir. 2005) (Cudahy, J., concurring)
(describing Rule 404(b)’s exception for absence of mistake
as “I thought [the drugs] were cough drops”); United States
v. Webb, 548 F.3d 547, 548 (7th Cir. 2008) (“As for ‘absence
of mistake’: how does a conviction show this except via the
prohibited inference that someone who distributes drugs
once is likely to do it again?”).
We are also unpersuaded by the government’s argument
that the prior convictions were admissible to show intent.
Because unlawful distribution of cocaine is a general intent
crime, in order for the government to introduce prior bad
acts to show intent, the defendant must put his intent at
issue first. United States v. Moore, 425 F.3d 1061, 1069 n.3
(7th Cir. 2005) (“[U]nlawfully distributing cocaine in
violation of 21 U.S.C. § 841(a)(1) is a general intent crime.”);
United States v. Manganellis, 864 F.2d 528, 539 (7th Cir. 1988)
(evidence of prior bad acts is ordinarily not admissible to
prove general intent crimes such as distribution of co-
caine); United States v. Gruttaduro, 818 F.2d 1323, 1328-29
14 No. 09-3608
(7th Cir. 1987) (prior bad acts evidence was inadmissible to
prove intent because defendant was charged with a
general intent crime and defendant did not directly put his
mental state at issue); United States v. Shackleford, 738
F.2d 776, 781 (7th Cir. 1984), modified on other grounds
by Huddleson v. United States, 485 U.S. 681, 685 (1988)
(“[W]hen intent is only a formal issue, so that proof of the
proscribed act gives rise to an inference of intent, then . . .
evidence of other acts directed toward this issue should not
be used in the government’s case-in-chief and should not
be admitted until the defendant raises the issue.”).
The government acknowledged as much in its pretrial
motions. The government initially sought to introduce
the convictions to show intent as well as knowledge and
absence of mistake. But it disclaimed that position after
the district court found that the convictions could only
be used to show knowledge and lack of mistake. The
government stated in its response to Hicks’s motion
for reconsideration:
In granting the United States’ motion, the Court just as
clearly articulated that [knowledge and lack of mis-
take]—and not as a method to prove Defendant Hicks’
intent—were the bases upon which the Rule 404(b)
evidence could be admitted. . . . [T]he United States has
no intention of offering the Rule 404(b) evidence for
[the purpose of showing intent].
(emphasis in original).
And Hicks did not put his intent at issue during the
government’s case-in-chief—he waived his opening
statement and his strategy during the first half of the trial
No. 09-3608 15
was to undermine the agents’ testimony by questioning
their ability to tell who gave Hurd the drugs. This case
is virtually indistinguishable from United States v.
Manganellis. 864 F.2d at 529-31. In that case, the defendant
was charged with distributing cocaine to an undercover
agent and to a friend. Id. The defendant denied making the
sales and claimed he was mistakenly identified by the
agent and that the friend was lying. Id. We found that the
defendant’s claim that he did not commit the alleged acts
did not suffice to put his intent at issue and that, as a
result, evidence of his prior bad acts involving the sale of
drugs on other occasions should not have been admitted
into evidence. Id. at 539. As in Manganellis, finding that
Hicks put his intent at issue by merely claiming innocence
would “create an exception that would virtually swallow
the rule against admission of evidence of prior miscon-
duct” in general intent cases. See id. at 532-33; Shackleford,
738 F.2d at 781 (finding that defendant charged with
general intent crime did not place his intent at issue by
maintaining throughout trial that he never committed
the acts alleged).
Neither are we persuaded by the government’s conten-
tion that the convictions were admissible to rebut Hicks’s
entrapment defense. Evidence of prior convictions is
admissible to prove predisposition in an entrapment case,
but, again, the government may not introduce propensity
evidence unless the defendant places the issue of entrap-
ment into controversy. Compare United States v. Goodapple,
958 F.2d 1402, 1407 (7th Cir. 1992) (“When the entrapment
defense is clearly raised in the defense’s opening statement
and the entrapment defense obviously materializes
through a defendant’s presentation of its own witnesses
16 No. 09-3608
or through cross-examination of the government’s wit-
nesses, it is not error for the government to present evi-
dence of predisposition in its case-in-chief”), with United
States v. McGuire, 808 F.2d 694, 696 (8th Cir. 1987) (finding
that it was error for the district court to allow the govern-
ment to introduce rebuttal evidence in its case-in-chief in
anticipation of an entrapment defense that was proposed
in defense counsel’s opening statement but that never
actually materialized).
Although Hicks’s counsel discussed the possibility of
raising an entrapment defense prior to trial (after the court
ruled that Hicks’s prior convictions were admissible), the
entrapment defense did not materialize until the defense
presented its case. Hicks did not refer to his entrapment
defense during an opening statement, which he waived,
nor during the government’s case-in-chief. In fact, it was
not until after the convictions came in at the close of the
government’s case-in-chief, over Hicks’s renewed objec-
tion, and after the government rested, that Hicks defini-
tively informed the court that he would be raising an
entrapment defense. Had Hicks clearly communicated his
intention to present an entrapment defense before the
convictions were allowed into evidence, the government’s
contention that the convictions were admissible to show
predisposition would have more force. But Hicks did not
do so. The proper course of action would have been for
the government to offer the convictions after Hicks’s
entrapment defense materialized, either during cross-
examination or during its rebuttal case. Under the circum-
stances presented here, however, we cannot conclude
that Hicks’s prior convictions were properly admitted
No. 09-3608 17
to rebut his entrapment defense. See United States v.
Pineda-Torres, 287 F.3d 860, 865-66 (9th Cir. 2002) (defen-
dant’s cross-examination of government witness did not
open the door to evidence which the district court errone-
ously determined was admissible before trial because the
defendant was simply responding to the district court’s
pre-trial order); United States v. Higham, 98 F.3d 285, 292
(7th Cir. 1996) (finding that prior convictions, which the
district court found were not admissible during the govern-
ment’s case-in-chief, should have been allowed into
evidence during cross-examination after the defendant
presented an entrapment defense because “the landscape
had changed”).
The government’s contention that the convictions were
admissible to show accomplice liability suffers from the
same defect as its theory that the convictions were admissi-
ble to rebut Hicks’s entrapment defense. The government
did not request an accomplice liability instruction before
trial began nor did it ever indicate during its case-in-chief
that accomplice liability was an alternative basis for
Hicks’s guilt. Only after Hicks testified that he had ar-
ranged for the drug sale did the government assert an
accomplice theory of the case. As with the entrapment
defense, Hicks’s intent was only placed at issue 1 after the
convictions had already been admitted into evidence.
1
See United States v. Nacotee, 159 F.3d 1073, 1076 (7th Cir. 1998)
(“To be liable under an aiding an abetting theory for the crime
itself . . . a defendant must have had the specific intent to aid in
the commission of the crime . . . .”).
18 No. 09-3608
When asked about this during oral argument, the govern-
ment at one point conceded that intent became an issue
only after Hicks testified, but later claimed that “this was
always an accomplice case.” But if accomplice liability was
always the government’s theory of the case, it would not
have initially disavowed intent as a basis for the admission
of the convictions.
In our view, the only apparent relevance of the prior
convictions was the very inference that Rule 404(b) prohib-
its—that is, that Hicks had sold drugs in the past and
probably did so this time as well. And the government’s
opening statement implies that its theory of the case from
the outset was propensity. The first words uttered by the
government to the jury were:
When the Defendant was initially arrested in this case
in March 2008, he told police that he was a drug dealer.
He admitted that he dealt in cocaine, and he admitted
that he dealt in ounce quantities of crack cocaine.
Ladies and gentlemen of the jury, that is exactly going
to be our evidence as to what occurred on July 18, 2006,
that the Defendant dealt crack cocaine, ounce quanti-
ties of crack cocaine to a confidential informant, who
was working at the direction of the DEA.
The government’s statement suggests that Hicks’s other
crimes—i.e., that “he was a drug dealer”—could be a
basis for the jury to convict him for the charged offense,
despite the fact that sixteen months separated Hicks’s
statement and the charged conduct. The government
has failed to demonstrate that Hicks’s prior convictions
established knowledge, lack of mistake, or intent. Ac-
No. 09-3608 19
cordingly, we find that admitting the prior convictions
violated Rule 404(b).
We also find that the Rule 404(b) error affected Hicks’s
“substantial rights.” See Fed. R. Crim. P. 52(a). Although
the evidence may have been sufficient to convict Hicks, we
conclude that an average juror would have found the
government’s case significantly less persuasive without
the prior convictions. See United States v. Blanchard, 542
F.3d 1133, 1151 (7th Cir. 2008) (the test for harmless error
is whether, in the mind of the average juror, the prosecu-
tion’s case would have been significantly less persuasive
had the improper evidence been excluded). Drugs were
not explicitly mentioned during the initial conversation
between Hicks and Hurd. Instead, the government had to
“translate” that conversation for the jury using a “de-
coder,” who testified that Hicks and Hurd were discussing
drugs—a conclusion the jury may not have reached on its
own and could have discredited. There was also no
direct evidence that Hicks himself sold the crack cocaine to
Hurd. While Hicks’s discussion with Hurd about prices
when the two were in the house suggests that Hicks could
have sold Hurd the drugs, no one witnessed the drug
deal and it is possible that one of the other people
whose voices were picked up by the recording gave Hurd
the cocaine. Lastly, Hicks’s statement to the police sixteen
months after the charged deal to the effect that he
had engaged in other drug deals was not an acknowledg-
ment of responsibility for this deal. See United States
v. Simpson, 479 F.3d 492, 501-02 (7th Cir. 2007), abrogated
in part on other grounds by United States v. Boone, 628 F.3d
927, 933 (7th Cir. 2010) (defendant’s admission that he
20 No. 09-3608
had engaged in similar drug deals in the past and had
been dealing drugs for several years making “possible” his
responsibility for the drug deal charged was not tanta-
mount to an acknowledgment of responsibility for
the charged deal and was admitted in violation of Rule
404(b)). Without the propensity evidence, an “average”
juror may very well have concluded that the government
did not prove beyond a reasonable doubt that Hicks
supplied Hurd with crack cocaine. “Allowing a prosecutor
routinely to introduce drug convictions in the case in chief
without demonstrating relevance to some concrete dispute
between the litigants creates needless risk that a conviction
will rest on the forbidden propensity inference.” United
States v. Jones, 455 F.3d 800, 812 (7th Cir. 2006)
(Easterbrook, J., concurring). Given the lack of direct
evidence and the relative weakness of the government’s
circumstantial case, we find that the admission of the
convictions affected Hicks’s substantial rights, and we
therefore reverse.2
III. CONCLUSION
The defendant’s conviction is V ACATED , and the case is
R EMANDED to the district court for a new trial.
2
Because the Rule 404(b) grounds are sufficient for reversal, we
do not reach Hicks’s final argument concerning the jury instruc-
tions.
4-4-11