NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 5, 2008
Decided August 28, 2008
Before
RICHARD A. POSNER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐1601
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Indiana, South Bend Division.
v.
No. 07 CR 91
KIMANI L. FLEMING, a/k/a Kamari Robert L. Miller, Jr.,
Merryweather, Chief Judge.
Defendant‐Appellant.
O R D E R
Kimani Fleming was convicted of distributing and possessing with intent to
distribute crack, unlawfully transporting firearms, possessing a firearm in connection with
his drug offenses, and possessing a firearm even though he was a felon, all during August
2007. At trial, five witnesses testified that Fleming sold crack throughout 2006 and 2007.
Fleming appeals, arguing that the district court should not have admitted this testimony
because it was impermissible evidence of his prior bad acts. Because the testimony was
relevant to the questions of Fleming’s knowledge and intent, two of the exceptions to the
“prior bad acts” rule, we affirm.
No. 08‐1601 Page 2
Background
Fleming began selling large amounts of crack in 2006 using three houses in Elkhart,
Indiana as his bases of operation. He was caught when federal agents, acting through two
of Fleming’s customers who had been apprehended, made four controlled buys from him in
August 2007. Following the controlled buys, agents obtained a warrant and searched one of
Fleming’s houses, finding Fleming along with two scales, razor blades, baggies, a cell
phone, marijuana, powder cocaine, baking soda (which is used to cook powder cocaine into
crack), and three firearms. Fleming was charged with one count of possessing with intent to
distribute crack, four counts of distributing crack, one count of possessing a firearm in
connection with the drug crimes, and one count of possessing a firearm despite his prior
felony convictions. See 18 U.S.C. §§ 922(g)(1), 924(c); 21 U.S.C. 841(a)(1).
Before trial, the government gave notice of its plan to introduce testimony from
Fleming’s accomplices and customers. They were expected to describe their interactions
with Fleming before August 2007, when the controlled buys were made. At trial, after
Joetta Penn testified that she bought drugs from Fleming in 2006 and 2007, Fleming objected
to any further similar evidence from additional witnesses, arguing that the proposed
testimony would be unduly prejudicial and would prove only that he was prone to
committing drug crimes. Notably, however, Fleming did not object to Penn’s testimony or
seek a limiting instruction. The government countered that the testimony was admissible
because it would establish Fleming’s knowledge and intent to commit the charged crimes.
The district court, noting that the government was entitled to present some evidence
regarding intent, overruled Fleming’s objection. The next two witnesses relevant to this
appeal—Lindy Aitken and Rachel Gerschoffer—proceeded to testify regarding their drug
purchases in 2006 and 2007 without further objection from Fleming.
Another of Fleming’s customers, Michael Herring, testified that he too purchased
crack from Fleming during 2006 and 2007, but not during August 2007 because he was
incarcerated. Fleming again objected, and the district court concluded that Herring’s
testimony was admissible to show intent and knowledge, but it agreed to instruct the jury
not to consider the testimony for any other purpose. Jason Lucas, Fleming’s right‐hand
man, next testified that during 2006 and 2007 he and Fleming usually drove to Detroit once
a week to buy powder cocaine and then, when they returned to Indiana, they used baking
soda to cook the powder cocaine into crack. He noted, though, that he did not aid Fleming
in his drug operation during the month of August 2007 because he, like Herring, was
incarcerated. The district court once again instructed the jury that it could consider pre‐
August 2007 evidence only for the limited purposes of intent and knowledge. This
instruction applied to all the pre‐August 2007 evidence presented at trial. The court
No. 08‐1601 Page 3
repeated this instruction a third time after closing arguments and before the jury began its
deliberation. Fleming was convicted of all seven counts against him and sentenced to life in
prison.
Analysis
Federal Rule of Evidence 404(b) prohibits the use of prior convictions or other
evidence of bad acts to establish that the defendant is the kind of person who commits
crimes. See United States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007). The rule does, however,
permit the government to introduce evidence of prior bad acts to prove other, material,
facts, including intent and knowledge. Id. Evidence is admissible under Rule 404(b) if “(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.” United States v. Dennis, 497 F.3d 765, 768 (7th Cir. 2007) (internal quotation
marks and citation omitted). When a defendant objects to the admission of evidence at trial,
we review the district court’s Rule 404(b) decision for an abuse of discretion. See United
States v. Price, 516 F.3d 597, 603 (7th Cir. 2008). But if the defendant says nothing at trial
(and here Fleming neglected to object to Penn’s testimony), our review is for plain error. See
United States v. DeSilva, 505 F.3d 711, 717‐18 (7th Cir. 2007).
Fleming rests his argument that the district court erred in admitting the testimony of
Lucas, Penn, Aitken, Gerschoffer, and Herring on the first and last prongs of the four‐prong
test. According to Fleming, their testimony proved only that he had sold drugs in the past
and did nothing to prove that he also sold drugs during the controlled buys. And, Fleming
continues, the testimony unfairly prejudiced him because its only purpose was to “paint
[him] as a big time drug dealer.”
The government correctly replies that portions of Aitken and Gerschoffer’s testimony
are not even governed by Rule 404(b) because both witnesses reported, in part, that they
bought crack from Fleming during August 2007, and that testimony is direct evidence
regarding the charged crimes. See United States v. Lane, 323 F.3d 568, 579 (7th Cir. 2003)
(observing that Rule 404(b) is inapplicable where “bad acts” are direct evidence of charged
offense). The government further contends that Aitken and Gerschoffer’s descriptions of
buying crack from Fleming before August 2007 are not subject to Rule 404(b) because that
testimony was “inextricably intertwined” with their direct evidence that Fleming also sold
them crack during August 2007.
No. 08‐1601 Page 4
We have recently observed, though, that the “inextricably intertwined” formula is
“unhelpfully vague” and that there is no need to tangle with that murky doctrine when one
of the express exceptions to Rule 404(b) applies. United States v. Taylor, 522 F.3d 731, 734‐35
(7th Cir. 2008). And in this case, Aitken and Gerschoffer’s testimony, along with that of
Herring and Lucas, did fall within one of the Rule 404(b) exceptions—it showed Fleming’s
intent. Fleming was charged with specific intent crimes, see United States v. Mallett, 496 F.3d
798, 802 (7th Cir. 2007), and evidence of prior acts of drug trafficking is relevant to whether
a defendant intended to sell drugs or simply intended to use the drugs for personal
consumption, see United States v. Vaughn, 267 F.3d 653, 659 (7th Cir. 2001); United States v.
Griffin, 194 F.3d 808, 820 (7th Cir. 1999); United States v. Allison, 120 F.3d 71, 74‐75 (7th Cir.
1997). Moreover, Lucas’s testimony that Fleming knew how to cook crack from powder
cocaine and baking soda—the ingredients found in his house—showed Fleming’s
knowledge, another of the Rule 404(b) exceptions. See United States v. Jones, 248 F.3d 671,
675 (7th Cir. 2001) (noting that knowledge that substance is a narcotic is often proven
through testimony about prior drug sales). The testimony Fleming challenges therefore
satisfies the first prong of the test.
Fleming contends that our decision in United States v. Beasley, 809 F.2d 1273 (7th Cir.
1987), compelled the district court to exclude the prior bad acts testimony. But in that case,
the district court wrongly thought that evidence showing a pattern of bad acts was
admissible on its own, without evaluating whether the evidence fell within an exception to
404(b)’s general rule of exclusion. Id. at 1278. Moreover, the district court in Beasley failed
to consider the prejudicial effects of the prior bad acts evidence. Id. at 1279. The district
court made no such error in Fleming’s case. It properly considered the prejudicial impact of
admitting evidence that Fleming sold crack in the past and reasonably concluded that the
evidence was relevant to show intent and knowledge. The district court also reduced any
potential prejudice to Fleming by instructing the jury three times that it could not consider
evidence that Fleming sold crack before August 2007 for any purpose other than intent or
knowledge, see United States v. Moore, 531 F.3d 496, 500 (7th Cir. 2008). We may presume
that the jury followed that instruction, which Fleming does not challenge, see United States v.
James, 487 F.3d 518, 525 (7th Cir. 2007). Thus Fleming’s argument that the fourth element of
the test was not met also fails.
Finally, Fleming neglected to object to Penn’s testimony, which was almost identical
to that of Aitken and Gerschoffer, and so we assess the district court’s admission of her
testimony for plain error. See DeSilva, 505 F.3d at 717‐18. But because Fleming has not
shown that the court abused its discretion in admitting evidence of his prior drug sales, he
necessarily cannot succeed under a plain error standard. See United States v. Carter, 530 F.3d
565, 575‐76 (7th Cir. 2008) (noting that plain error review is more stringent than the abuse of
No. 08‐1601 Page 5
discretion standard). The district court therefore properly admitted the testimony of all five
witnesses.
Conclusion
Because the district court did not err in admitting evidence of Fleming’s prior bad
acts, we AFFIRM his conviction.