In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1038
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S HARIFF M ILLER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 629—Virginia M. Kendall, Judge.
A RGUED O CTOBER 25, 2011—D ECIDED M ARCH 12, 2012
Before E ASTERBROOK , Chief Judge, H AMILTON ,
Circuit Judge, and M YERSCOUGH, District Judge.
H AMILTON, Circuit Judge. In April 2008, acting on a tip
from a confidential informant, police obtained a search
warrant and then raided a home where defendant
Shariff Miller and several other people were staying.
The Honorable Sue E. Myerscough of the Central District of
Illinois, sitting by designation.
2 No. 11-1038
After apprehending Miller on his way out the side door,
police searched the house and found several guns and
a quantity of crack cocaine. The cocaine and a pistol
were found close to some of Miller’s personal effects in a
room where he was alleged to be staying. Miller was tried
and convicted of three offenses: possessing more than
five grams of crack cocaine with intent to distribute
in violation of 21 U.S.C. § 841(a)(1), possession of a
firearm in furtherance of a drug crime in violation of 18
U.S.C. § 924(c)(1)(A), and possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). He
was sentenced to a total of twenty years in prison.
Miller appeals his convictions and raises three issues.
First, he asserts that the search warrant was issued with-
out probable cause because it was based on only uncorrob-
orated, bare-bones information from an informant of
unknown reliability. We pass over the issue of probable
cause itself and conclude that the district court did not
err by denying Miller’s motion to suppress. The officers
could rely in good faith on the judge’s issuance of the
search warrant. Second, Miller objects to the introduc-
tion at trial of evidence of his possession, two months
earlier, of the same pistol the police found in the
search. The district court did not abuse its discretion
under Federal Rule of Evidence 404(b) by admitting this
evidence of Miller’s recent prior possession of the
same pistol he was charged with possessing.
The third issue, however, requires reversal of two of
Miller’s convictions and a remand for re-sentencing on
the third. At trial, the prosecution used Rule 404(b) to
No. 11-1038 3
admit evidence that Miller had been convicted in 2000
of felony possession of cocaine with intent to distribute
it. We conclude that admission of the details of Miller’s
prior drug conviction violated the character evidence
prohibition of Rule 404(b) and was an abuse of discretion.
In light of Miller’s defense, details about his prior con-
viction could have served only to suggest to the jury
that Miller possessed drugs with intent to distribute in
2008 because he had possessed drugs with intent to
distribute in 2000. Use of a prior drug distribution con-
viction to prove intent to distribute is often a disguised
use for impermissible propensity purposes, and was so
here. We have often warned about the dangers of ap-
plying the exceptions in Federal Rule of Evidence 404(b)
too loosely to admit prior bad acts, especially in drug
cases, without paying close attention to both the legit-
imacy of the purpose for which the evidence is to be
used and the need for it. See, e.g., United States v. Beasley,
809 F.2d 1273, 1277-80 (7th Cir. 1987). Those admoni-
tions bear repeating here, as we explain in the third part
of this opinion. We reverse Miller’s conviction on the
charge of possessing crack cocaine with intent to dis-
tribute and on the related charge of possessing a firearm
in furtherance of a drug trafficking crime. Miller’s con-
viction for being a felon in possession of firearms is
affirmed because it was supported by separate evidence
and was not tainted by the impermissible propensity
evidence. We remand for a new trial on the drug-
related charges and for re-sentencing on the felon-in-
possession charge.
4 No. 11-1038
I. The Search Warrant
Miller first argues that the warrant to search him and
the house was not supported by probable cause, so that
none of the evidence later used against him was
lawfully obtained. When a judge receives an applica-
tion for a search warrant, the judge’s task is to make a
practical, common-sense decision about whether the
evidence in the record shows a fair probability that con-
traband or evidence of a crime will be found in a partic-
ular place. United States v. Curry, 538 F.3d 718, 729
(7th Cir. 2008); see generally Illinois v. Gates, 462 U.S. 213,
240-41 (1983). A court reviewing an initial finding of
probable cause to support the search warrant does not
decide the question of probable cause de novo but gives
“great deference” to the issuing judge’s determination
so long as the judge had a “substantial basis” for the
finding. Gates, 462 U.S. at 236; accord, United States v.
McIntire, 516 F.3d 576, 578 (7th Cir. 2008). We do not
defer to the district court’s application of the same stan-
dard of review to the issuance of the warrant. McIntire,
516 F.3d at 578.
Without deciding whether that “great deference” is
enough to save the finding of probable cause here, we
hold that the district court properly denied Miller’s
motion to suppress because the officers executed the
warrant in good-faith reliance on its issuance by the
state court. See United States v. Peck, 317 F.3d 754, 757-58
(7th Cir. 2003), citing United States v. Leon, 468 U.S. 897,
923 (1984). We review de novo a district court’s finding
that the good-faith exception of Leon applies to a particular
No. 11-1038 5
warrant. E.g., United States v. Bell, 585 F.3d 1045, 1052
(7th Cir. 2009).
In Leon, the Supreme Court held that even if a search
warrant was invalid because the supporting affidavit
failed to support a finding of probable cause, evidence
seized in executing the warrant should not be sup-
pressed if the police officers relied in good faith on the
judge’s decision to issue the warrant. 468 U.S. at 922-23.
A police officer’s decision to obtain a warrant is treated
as prima facie evidence that the officer was acting in
good faith. United States v. Garcia, 528 F.3d 481, 487
(7th Cir. 2008). A defendant can defeat the good-faith
exception to the exclusionary rule by showing (1) that
the issuing judge abandoned the detached and neutral
judicial role; (2) that the officer was dishonest or reckless
in preparing the affidavit; or (3) that the warrant was so
lacking in probable cause that the officer could not rea-
sonably rely on the judge’s issuance of it. Id.; see also
Leon, 468 U.S. at 923. There is no indication here that the
issuing judge merely rubber-stamped the affidavit or
that the officer preparing the affidavit was dishonest or
reckless. The question of good faith here turns on
whether the warrant was so facially deficient that an
officer could not reasonably rely on it.
In applying Leon here, it is useful to compare the
affidavit supporting this warrant to the affidavits in
dispute in Garcia and Peck, which were based on similar
information from confidential informants. In Peck, the
informant said that she had been in the defendant’s
apartment in the past two days and had seen “large
6 No. 11-1038
amounts” of substances wrapped for sale, and that the
defendant had told her the packages contained crack
cocaine and marijuana he planned to sell. The informant
told the police that she wanted to punish the defendant
because he was not paying for diapers for their child
and because he was dealing drugs. 317 F.3d at 755. The
affidavit provided no details about where the drugs
were hidden, quantities, how often the defendant sold
drugs, or even the defendant’s appearance. Nor did it
explain how the informant knew the substances were
drugs or why she should be deemed reliable, and the
police did virtually nothing to corroborate her informa-
tion. Id. at 756-57. Like the informant in Miller’s case,
the informant in Peck also appeared before the issuing
judge to swear that the affidavit was true but did not
provide any additional testimony. We found in Peck
that the affidavit failed to establish probable cause for
the search warrant.
In Garcia, an informant told police that he had been
inside the defendant’s apartment in the last 72 hours
and had seen a substance he believed was cocaine in a
plastic bag in the living room. The affidavit explained
that the informant recognized cocaine because he had
sold it in the past, and the informant had provided
reliable information to police in the past. 528 F.3d at 486.
The affidavit lacked many other details that might be
expected, and it used a printed form that included mis-
takes and omitted other information. We concluded
“with some reservation” that the affidavit was suf-
ficient, given the great deference shown to the issuing
judge’s decision. Id.
No. 11-1038 7
The affidavit supporting the search of Miller’s house
here said that the informant (1) had been in the
residence within the 72 hours; (2) had seen four “larger
plastic bags containing several smaller plastic baggies
each with an amount of a white rock-like substance”;
(3) knew that the substance seen was consistent with
the “look, packaging and texture of Cocaine”; (4) had seen
cocaine over a hundred times before; and (5) had seen
cocaine in the same residence on a few occasions over
the last month. Although the affidavit identified and
generally described Miller, it left some ambiguity about
whether that identification was made by the informant
or through other means. There was no indication that
the informant had ever given reliable information to
assist a police investigation before, nor did the police try
to corroborate any details before seeking a warrant.
Regardless of whether one views the affidavit in this
case as closer to the barely sufficient affidavit in Garcia
or to the insufficient one in Peck, the salient point here
is that in both cases, we held that the officers were
entitled to rely in good faith on the judge’s decision to
issue a search warrant. Miller tries to distinguish Peck
by arguing that the informant’s personal relationship to
the defendant in that case added to the reliability of
her information. We are not persuaded. One could say
just as easily that the Peck informant’s personal relation-
ship and her admitted desire to have the defendant
“punished” weighed against her credibility. Returning
to Miller’s case, the officers here sought the warrant
from a neutral, detached judge, creating a presumption
of good faith. The affidavit included enough detail that a
8 No. 11-1038
reasonable officer might rely on the judge’s issuance of
a warrant based on it. Although the details were
generic, they also were recent, were based on firsthand
observation, and were likely against the informant’s
penal interest. The district court did not err in denying
Miller’s motion to suppress.
II. Evidence of Prior Possession of the Pistol
Police found three guns while searching the house. One
semi-automatic pistol was found, cocked and loaded,
under the mattress in the bedroom where the crack
cocaine was found and where Miller was alleged to be
staying. Two rifles were located in a closet in another
room. The government charged Miller with possessing
all three guns “on or about April 21, 2008,” the day of
the search and his arrest. The jury ultimately convicted
Miller of possessing the pistol and one of the rifles as a
felon, and of possessing the pistol in furtherance of
drug trafficking. At the trial, a witness testified that
she had seen Miller take the same pistol out of his pants
and place it on a table in February, some two months
before his arrest. The witness had seen another person
with the same gun (identified each time by its “dark,
rusty grey color”) in March.
Miller argued at trial and on appeal that this testi-
mony was inadmissible under Federal Rule of Evidence
404(b), which prohibits the use of prior bad acts to
suggest a propensity to have committed such an act on
a particular occasion. According to Miller, the govern-
ment used the testimony that he unlawfully possessed
No. 11-1038 9
a gun in February to suggest to the jury that he is the sort
of person who unlawfully possesses guns, and so likely
possessed a gun in April when charged. The government
counters, and we agree, that the testimony was in fact
circumstantial evidence of the charged crime. It con-
cerned the same gun, and the prior observed possession
was relatively recent. See, e.g., United States v. Lloyd, 71
F.3d 1256, 1267 (7th Cir. 1995). In the language of
Rule 404(b), the government used the evidence for “an-
other purpose” permitted by the rule. Miller’s prior
possession and display of the rusty grey pistol suggest
that he owned or at least had the ability to exercise
control over that rusty grey pistol.
The district court concluded that Miller’s prior posses-
sion of the pistol was “inextricably intertwined” with
the charged crime. Shortly after Miller’s trial, we stated
in United States v. Gorman, 613 F.3d 711, 718-19 (7th Cir.
2010), that “the inextricable intertwinement doctrine
has outlived its usefulness,” and we instructed district
courts to stop using it. “If evidence is not direct
evidence of the crime itself, it is usually propensity evi-
dence simply disguised as inextricable intertwinement
evidence, and is therefore improper, at least if not
admitted under the constraints of 404(b).” Id. In this
case, however, the evidence of Miller’s recent possession
of the same gun was directly relevant evidence of the
charged crime, not propensity evidence. Because the
district court reached the correct result, the court’s use
of the now disfavored rationale does not matter. See,
e.g., United States v. Foster, 652 F.3d 776, 784-86 (7th
Cir. 2011) (evidence that district court admitted as “inex-
10 No. 11-1038
tricably intertwined” before Gorman was still properly
admissible).
Evidence of prior, uncharged gun possessions by
felons has the potential to be used for impermissible
propensity purposes. We have analyzed such evidence
under Rule 404(b) and have allowed it, at least where
the prior possession was recent and involved the same
gun. E.g., United States v. Canady, 578 F.3d 665, 671-72
(7th Cir. 2009) (prior use of the same gun admitted to
show possession); cf. United States v. Cassell, 292 F.3d 788,
792-94 (D.C. Cir. 2002) (prior possessions of a 9-mm
handgun admissible to show knowledge and possession
of a 9-mm handgun). If the prior possession was of a
different gun, then its value as direct or circumstantial
evidence of the charged possession drops and the likeli-
hood that it is being used to show propensity to possess
guns rises considerably. Similarly, as the prior posses-
sion is further removed in time, it becomes less probative
of possession on the date charged. Courts are familiar
with this evidentiary balancing. Determinations under
Rule 404(b) require such an analysis, as when applying
Rule 403. See Fed. R. Evid. 404 advisory committee’s
notes (1972). Here, the witness testified that Miller pos-
sessed a particular gun two months before the date
he was charged with being in possession of the same
gun — found under his mattress. This testimony was
admissible as circumstantial evidence of the charged
crime, and its use for that purpose was not barred by
Rule 404(b).
No. 11-1038 11
III. Evidence of Prior Intent to Distribute Cocaine
The government’s use of Miller’s eight-year-old convic-
tion for possession of cocaine with intent to distribute
was far more problematic, and the admission of that
evidence here requires reversal of his conviction on the
two drug-related charges. Miller was caught in 2000
with crack cocaine and pled guilty to felony possession
with intent to distribute. At that time, the cocaine was
also packaged in small plastic bags inside larger
plastic bags — though Miller was of course not unusual
in packaging drugs for sale in this way. When officers
searched the house on April 21, 2008, they found crack
cocaine packaged in plastic bags on the bed in Miller’s
alleged room. They also found a scale and similarly
packaged cocaine in shoe boxes that also contained
some of Miller’s personal papers. Miller has never
argued that the bags of drugs — some of which had
price tags attached — were not intended for distribution.
His defense at trial was instead that, despite the
proximity to his personal effects, the drugs were not
in fact his and he was not staying in the room where
the drugs and pistol were found.
Because felon status is an element of the felon-in-pos-
session charge, the government needed to prove that
Miller was a convicted felon. The fact of his prior convic-
tion of an unspecified felony was admissible for that pur-
pose. E.g., Old Chief v. United States, 519 U.S. 172, 190-92
(1997). The nature and underlying story of that
prior conviction, however, were not necessary or admis-
sible merely to prove felon status — although they might
12 No. 11-1038
have been admissible for another purpose under
Rule 404(b). Id. The jury would learn that Miller was a
convicted felon, but the government also wanted to use
the details of the prior conviction for possessing co-
caine with intent to distribute. The district court wisely
waited until after opening statements and cross-examina-
tion of a key witness to learn the defense theory before
deciding whether to admit the details under Rule 404(b).
In making the later determination, however, the court
abused its discretion in allowing the prosecution to
present the bad acts evidence to the jury. (After the
court admitted evidence of the details of the prior
arrest, Miller testified about them in his own defense,
and the government then cross-examined him with the
actual conviction for the earlier drug crime.)
Miller contends, and we agree, that the drug crime
evidence from 2000 was substantially more prejudicial
than it was probative. The only purpose for which it
could have been used by the jury here was to draw an
impermissible propensity inference. The arguments
presented in this case suggest that admission of prior
drug crimes to prove intent to commit present drug
crimes has become too routine. Closer attention needs
to be paid to the reasons for using prior drug convic-
tions — to lessen the danger that defendants like Miller
will be convicted because the prosecution invited, and
the jury likely made, an improper assumption about
propensity to commit drug crimes.
Rule 404(b) does not provide a rule of automatic admis-
sion whenever bad acts evidence can be plausibly linked
No. 11-1038 13
to “another purpose,” such as knowledge or intent,
listed in the rule. The Rule 402 requirement of relevance
and the unfair prejudice balancing inquiries of Rule 403
still apply with full force. United States v. Beasley, 809
F.2d 1273, 1279-80 (7th Cir. 1987); United States v. Jones,
455 F.3d 800, 810 (7th Cir. 2006) (Easterbrook, J., concur-
ring); United States v. Seals, 419 F.3d 600, 610-12 (7th
Cir. 2005) (Posner, J., concurring); United States v. Chavis,
429 F.3d 662, 672-73 (7th Cir. 2005) (Cudahy, J., concur-
ring). This must be so because the “list of exceptions
in Rule 404(b), if applied mechanically, would over-
whelm the central principle. Almost any bad act evidence
simultaneously condemns by besmirching character and
by showing one or more of ‘motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident’, not to mention the ‘other purposes’
of which this list is meant to be illustrative.” Beasley, 809
F.2d at 1279 (emphasis in original). Rule 404(b) requires
a case-by-case determination, not a categorical one. The
trial judge must balance the relevance of the proposed
use of the evidence to the case — and the evidence’s
relevance to that proof — against the high risk that the
evidence will also tend to establish bad character and
propensity to commit the charged crime. When, as was
true here, intent is not meaningfully disputed by the
defense, and the bad acts evidence is relevant to intent
only because it implies a pattern or propensity to so
intend, the trial court abuses its discretion by admitting it.
The parties debate whether intent is always at issue,
and whether the answer to that question depends on
the “general intent” or “specific intent” nature of the
14 No. 11-1038
crimes charged. We explained in United States v. Hicks,
635 F.3d 1063, 1071 (7th Cir. 2011), citing United States v.
Manganellis, 864 F.2d 528, 532-33 (7th Cir. 1988), that if
a mere claim of innocence were enough to automatically
put intent at issue, the resulting exception would
swallow the general rule against admission of prior
bad acts. The government attempts to distinguish Hicks
as addressing only general intent crimes like actual
drug distribution, not specific intent crimes like posses-
sion with intent to distribute. But the point in Hicks
applies broadly. It is true that the government has a
higher burden to prove the specific intent crime of pos-
session with intent to distribute. The government cites
United States v. Monzon, 869 F.2d 338, 344 (7th Cir. 1989),
in which we stated that “intent is automatically in issue”
in specific intent crimes. But Monzon also clarified
that identifying a Rule 404(b) exception, such as intent,
that is “at issue” is only the first step of the analysis.
Identification of an at-issue, non-propensity Rule 404(b)
exception is a necessary condition for admitting the
evidence, but not a sufficient condition. Whether the
intent element is specific or general for the charged crimes,
all bad acts evidence must be balanced for probative
value and unfair prejudice. Id.; Jones, 455 F.3d at 806-07.
It is helpful to distinguish between two aspects of the
relevance inquiry. The first aspect concerns whether a
Rule 404(b) exception, like intent, is “at issue” — that is,
whether the issue is relevant to the case. For example,
knowledge may not be at issue at all where the charge is
a strict liability offense, so that knowledge is not even
an element of the crime. Similarly, while intent is at
No. 11-1038 15
least formally relevant to all specific intent crimes,
intent becomes more relevant, and evidence tending
to prove intent becomes more probative, when the
defense actually works to deny intent, joining the issue
by contesting it. When, as in this case, the drugs in ques-
tion were clearly a distribution quantity, the packages
had price tags, and the defendant did not deny they
were intended for distribution by someone, intent was
“at issue” in only the most attenuated sense.
The second aspect of relevance is not concerned
with whether the government must prove intent or how
difficult that proof might be. This second inquiry
assumes intent is relevant to the case and asks whether
the bad acts evidence offered is relevant to and
probative of intent, without being too unfairly
prejudicial by invoking a propensity inference. In
other words, can the government fairly use this evidence
to meet its burden of proof on this issue? Intent can be
“automatically at issue” because it is an element of a
specific intent crime, but the prior bad acts evidence
offered to prove intent can still be completely irrelevant
to that issue, or relevant only in an impermissible
way. Here, even though the purpose of proving “intent”
was invoked, the bad acts evidence was not proba-
tive of intent except through an improper propensity
inference.
The government has no answer here for the teaching
of Beasley, requiring that the district court must in every
case make a “principled exercise of discretion” to deter-
mine (a) whether the evidence is actually probative of
16 No. 11-1038
intent, and (b) whether its probative value on that ques-
tion is worth the risk of unfair prejudice. 809 F.2d at 1079
(“The district judge must both identify the exception
that applies to the evidence in question and evaluate
whether the evidence, although relevant and within the
exception, is sufficiently probative to make tolerable the
risk that jurors will act on the basis of emotion or an
inference via the blackening of the defendant’s char-
acter.”). By focusing on whether intent was at issue in
this case, the government overlooked more pertinent
substantive questions about the degree of relevance
and the prejudicial effect of the particular evidence.
The government argues that Miller’s prior conviction
is relevant to prove intent here, but has not satisfactorily
explained why this is true. Miller’s defense, that the
drugs were not his, has nothing to do with whether
he intended to distribute them. He did not argue that he
intended to consume rather than sell the drugs, or that
he lacked knowledge of cocaine or how to sell it. Either
argument would have better joined a genuine issue of
intent or knowledge. Rather, the only conceivable link
between the defense and intent here would also be true
of almost any defense Miller might raise; by pleading
not guilty, Miller necessarily contradicted the govern-
ment’s belief that he intended to distribute the drugs.
But as we said in Hicks, if merely denying guilt opens
the door wide to prior convictions for the same crime,
nothing is left of the Rule 404(b) prohibition.
We recognize that many of our cases approve the ad-
mission of prior drug-dealing crimes to show intent
No. 11-1038 17
in drug-dealing prosecutions, despite the fact that, of the
Rule 404(b) other purpose exceptions, intent is the excep-
tion most likely to blend with improper propensity
uses. E.g., United States v. Perkins, 548 F.3d 510, 514-15
(7th Cir. 2008) (admitting three prior convictions for
possession or delivery of small amounts of cocaine to
show knowledge and intent with regard to small
amounts of cocaine); United States v. Hearn, 534 F.3d 706,
712-13 (7th Cir. 2008) (admitting prior drug conviction
to rebut defendant’s assertion that the quantity of drugs
was too small to indicate intent to distribute); United
States v. Hurn, 496 F.3d 784, 787-88 (7th Cir. 2007) (admit-
ting prior drug conviction to rebut an innocent by-
stander defense); United States v. Best, 250 F.3d 1084, 1091-
93 (7th Cir. 2001) (admitting prior conviction for posses-
sion in a rented house to show intent, knowledge, and
absence of mistake with regard to a crack house). But in
each of these cases, after discussing relevance of the
evidence to intent, the court balanced the asserted proba-
tive value of the evidence against its potential for
unfair prejudice. We have never approved admission
of bad acts evidence solely because it was formally
relevant to intent and intent was “at issue.”
There may be enough cases affirming such admissions,
however, that in cases charging specific-intent drug
crimes, the admission of prior drug convictions may
have come to seem almost automatic. It is not. We need
to recall first principles. “To meet the test of Rule 404(b),
there must be a showing that an issue has been joined as
to intent, or another of the 404(b) categories, discrete from
a showing of mere propensity.” Chavis, 429 F.3d at 673
18 No. 11-1038
(Cudahy, J., concurring). To differentiate between “the
illegitimate use of a prior conviction to show propensity
and the proper use of a prior conviction to prove intent,”
“the government must affirmatively show why a
particular prior conviction tends to show the more for-
ward-looking fact of purpose, design, or volition to
commit the new crime.” United States v. Jones, 389 F.3d
753, 757-58 (7th Cir. 2004). In every Rule 404(b) case
relying on intent, the court (1) must consider the proba-
tive value of the prior act to prove present intent, and
(2) must weigh that value against the tendency of the
evidence to suggest unfairly a propensity to commit
similar bad acts. The availability of precedent that
balances the relevance of bad acts evidence and decides
to admit it does not excuse prosecutors or courts from
asking in each new case whether and how prior bad acts
evidence might be relevant, probative, and fair.
Confusion and misuse of Rule 404(b) can be avoided
by asking the prosecution exactly how the proffered
evidence should work in the mind of a juror to establish
the fact the government claims to be trying to prove.
Here, Miller claimed that the drugs found in the shoe box
and on the bed were not his, that he was in effect an
innocent bystander. Witnesses told the jury about
Miller’s arrest and conviction for dealing drugs in 2000.
The government defends use of that evidence on the
ground that it showed his intent to distribute drugs in
2008. How, exactly, does Miller’s prior drug dealing
conviction in 2000 suggest that he intended to deal
drugs in 2008? When the question is framed this way,
the answer becomes obvious, even though implicit:
No. 11-1038 19
“He intended to do it before, ladies and gentlemen, so
he must have intended to do it again.” That is precisely
the forbidden propensity inference.
And this is where the district court erred, even as it
undertook the correct Rule 402 relevance and Rule 403
prejudice analysis — and cited some of our cases men-
tioned above. The court focused on whether intent was
at issue based on Miller’s defense and on the govern-
ment’s obligations of proof. Having concluded that
intent was at issue, the court turned to analyze prejudice
and, citing Hurn, simply stated that the evidence was
highly probative of intent. Had the court asked more
specifically how the prior conviction tended to show
intent eight years later, it would have recognized that
it was dealing with propensity evidence all the way
down. Unless there is a persuasive and specific answer
to the question, “How does this evidence prove intent?”
then the real answer is almost certainly that the evi-
dence is probative only of propensity.
Later, in addressing Miller’s post-trial motions,
the district court also suggested that the prior convic-
tion was probative of intent because of the identical
packaging of the drugs at issue. Miller’s prior conviction
cannot be admissible merely because it was for the
same crime or because it also involved drugs in small
plastic bags. Pattern evidence is propensity evidence,
and it is inadmissible unless the pattern shows some
meaningful specificity or other feature that suggests
identity or some other fact at issue. Beasley, 809 F.2d at
1278 (“Unless something more than a pattern and
20 No. 11-1038
temporal proximity is required, the fundamental rule is
gone. This is why ‘pattern’ is not listed in Rule 404(b) as
an exception.”). Crack cocaine in small plastic bags is
far too generic in drug cases to make a pattern of two
acts over eight years probative of anything beyond pro-
pensity. See United States v. Smith, 103 F.3d 600, 603
(7th Cir. 1996) (modus operandi evidence must be “idiosyn-
cratic” and must bear “a singular strong resemblance to
the pattern of the offense charged”). Such facts are no
more probative for a legitimate evidentiary purpose
than evidence that money was stolen (or that bags
were used to carry it) would be in attempting to link
two bank robberies.
Miller’s prior conviction for possession of cocaine
with intent to distribute shows he once had an intent to
distribute drugs. When intent is an essential element of
the charged crime, prior bad acts evidence directed to
intent can easily be nothing more than propensity evi-
dence. This is why cases so often look to the nature of
the defense to seek a possible justification for use of the
evidence. In 2008, Miller’s defense was that someone
else possessed the drugs and intended to distribute
them. The only logical rebuttal that could be based on
the prior conviction is that Miller was the one who had
intended to distribute before. The relevance of the
prior conviction here boils down to the prohibited “once
a drug dealer, always a drug dealer” argument. See
Hicks, 635 F.3d at 1073 (“In our view, the only apparent
relevance of the prior convictions was the very in-
ference that Rule 404(b) prohibits — that is, that Hicks had
sold drugs in the past and probably did so this time as
No. 11-1038 21
well.”). A prosecutor who wants to use prior bad
acts evidence must come to court prepared with a
specific reason, other than propensity, why the evidence
will be probative of a disputed issue that is permissible
under Rule 404(b). Mere recitation that a permissible
Rule 404(b) purpose is “at issue” does not suffice.
For these reasons, we conclude that the admission of
the details of Miller’s 2000 conviction was an abuse of the
district court’s discretion. The government argues in
the alternative that the error was harmless. We disagree
as to the two drug-related charges, though the evidence
of Miller’s guilt in this case was strong. Police found a
scale suitable for measuring drugs, and crack cocaine
packaged for distribution, both in shoe boxes containing
Miller’s personal papers. Miller initially tried to flee the
scene and later wrote a letter to a witness asking her to
lie (assuming that the government’s theory of the
evidence was correct) about where he was staying in the
house. Miller presented a vigorous defense, and the
government attacked the credibility of his defense wit-
nesses. That does not mean the error here was harmless.
In deciding whether the non-constitutional error was
harmless, we do not try to guess what the jury might
have decided if it had not known that Miller had been
convicted of this same crime eight years earlier. We
instead ask whether an average juror would find the
prosecution’s case significantly less persuasive without
the improper evidence. See Hicks, 635 F.3d at 1073-74
(“Although the evidence may have been sufficient to
convict Hicks, we conclude that an average juror would
22 No. 11-1038
have found the government’s case significantly less
persuasive without the prior convictions.”); United States
v. Jenkins, 593 F.3d 480, 486 (6th Cir. 2010) (admission of
prior conviction not harmless, despite “ample evidence
to convict,” because of disputed issue of possession at
trial); see generally Kotteakos v. United States, 328 U.S. 750,
765 (1946) (“But if one cannot say, with fair assurance,
after pondering all that happened without stripping
the erroneous action from the whole, that the judg-
ment was not substantially swayed by the error, it is
impossible to conclude that substantial rights were not
affected.”).
We do not agree with the government that its evidence
was overwhelming. Nor do we agree that the strength
of the other evidence is the sole relevant factor. Our role
in deciding whether an error was harmless is not to
“become in effect a second jury to determine whether
the defendant is guilty.” See Neder v. United States, 527
U.S. 1, 19 (1999). The Supreme Court explained our role
in Kotteakos:
And the question is, not were they right in their
judgment, regardless of the error or its effect upon
the verdict. It is rather what effect the error had or
reasonably may be taken to have had upon the jury’s
decision. The crucial thing is the impact of the
thing done wrong on the minds of other men, not
on one’s own, in the total setting.
This must take account of what the error meant
to them, not singled out and standing alone, but in
relation to all else that happened. And one must
judge others’ reactions not by his own, but with
No. 11-1038 23
allowance for how others might react and not be
regarded generally as acting without reason. This is
the important difference, but one easy to ignore when
the sense of guilt comes strongly from the record.
328 U.S. at 764 (citations omitted). In a case of non-consti-
tutional error like this, the question is whether we can
say “with fair assurance” that the verdict was not sub-
stantially swayed by the error. Id. at 765.
This analysis calls for consideration of additional
factors beyond the strength of the other evidence, such
as how prejudicial the bad acts evidence was, how it was
used by the government at trial, and if there are any
such indications from the verdict, how the jury likely
received and considered the impermissible evidence.
We cannot say with fair assurance that the evidence of
the particulars of Miller’s prior drug conviction did not
contribute to the jury’s verdict.
Apart from the Rule 404(b) evidence, the govern-
ment’s case was certainly strong. But the Rule 404(b)
evidence can be “very prejudicial.” Fed. R. Evid. 404
advisory committee’s notes (1972). By piling Miller’s
prior drug conviction on top of what was otherwise a
strong case, the government distracted the inquiry from
what happened in April 2008 and invited the jury to
decide guilt for the wrong reasons. Miller put on a vigor-
ous defense. The government attacked the credibility of
the defense witnesses and the defense theory. If we were
sitting as jurors, we might well have voted to convict in
the absence of the Rule 404(b) evidence, but as the
Court explained in Kotteakos, that is not the question.
24 No. 11-1038
We do not act as a second jury. We must try to evalu-
ate the case from the perspective of the jurors, based
on their likely reactions, and not our own. Doubts — a
lack of “fair assurance” — call for a new trial. In this case,
the prejudicial power of the Rule 404(b) evidence, the
prominent play it received in the government’s case, and
its effects on the defense strategy combine to require
a new trial. The error was not harmless.
The danger that the jury would unfairly rely on Miller’s
prior drug dealing to suggest his current guilt was not
cured in this case by the court’s limiting instruction to
the jury: “You may consider this evidence only on
the questions of knowledge, intent and in deciding
whether the defendant’s testimony is truthful in whole,
in part, or not at all.” A considerable literature argues
for and against, and attempts to measure empirically,
the effectiveness of this sort of pattern jury instruc-
tion. Some have suggested that such instructions are
incoherent even to bright laypeople. We leave the
broader questions for another day. For this case, it is
enough to note that when the government cannot
explain how the prior conviction relates to the question
of intent without resorting to a propensity inference, it
would be unfair to expect the jury to do so based only
on this instruction.1
1
Rather than leaving juries to decode for themselves how
they may properly consider admissible bad acts evidence “on
the questions of knowledge and intent,” we encourage
district judges to add to the pattern instruction a case-specific
(continued...)
No. 11-1038 25
This reasoning requires us to reverse Miller’s convic-
tions for possession of cocaine with intent to distribute
and the closely related possession of a firearm in further-
ance of a drug trafficking crime. Miller’s conviction
for being a felon in possession of a firearm, however,
stands on sufficiently independent evidence that we
are satisfied, with “fair assurance,” that the govern-
ment’s case on that charge was not substantially affected
by the improper Rule 404(b) evidence. There was undis-
puted evidence that Miller’s fingerprint was on one of
the rifles, and he admitted handling it. Propensity
evidence may be harmless with regard to unrelated
1
(...continued)
explanation of the permissible inference — with the requisite
care not to affirmatively credit that inference. For example,
suppose Miller had actually disputed intent to distribute and
suggested the drugs were for his personal use. The pattern
instruction could be adapted to be specific: “The defense
has argued that the defendant intended to use the drugs
personally rather than distribute them. You have heard evi-
dence that the defendant was convicted in 2000 of possessing
cocaine with intent to distribute it. You may consider the evi-
dence concerning the circumstances of that conviction,
along with all other relevant evidence, in deciding whether
the government has proven beyond a reasonable doubt that
the defendant intended to distribute the drugs as charged in
the indictment, and to evaluate the defendant’s credibility.
You may not consider the evidence of the earlier conviction
for any other purposes.” If a suitable explanation cannot be
drafted without invoking a propensity inference, the evidence
may not in fact be admissible.
26 No. 11-1038
counts while requiring reversal of others. See, e.g., Beasley,
809 F.2d at 1280. The Rule 404(b) error was harmless
with respect to the felon-in-possession charge.
IV. Conclusion
Miller’s convictions for possession with intent to dis-
tribute and for possession of a firearm in furtherance
of that crime are R EVERSED. Miller’s conviction for being
a felon in possession of a firearm was not tainted by the
Rule 404(b) error and is A FFIRMED, but the sentence on
that charge is V ACATED so that the district court can re-
sentence Miller on that charge once the other charges
are resolved. The case is R EMANDED for new sentencing
on the felon-in-possession charge and a new trial on
the other charges consistent with this opinion. Circuit
Rule 36 shall not apply on remand; the case shall be
returned to Judge Kendall.
3-12-12