concurring.
Although I join the court’s opinion, a few extra words are in order about the introduction of Jones’s prior drug conviction.
Rule 404(b) provides that evidence of prior bad acts (including convictions) is inadmissible to show character or propensity but may be admissible to show intent, motive, or some other subject material to the trial. In this prosecution, as in quite a number of others we have seen in recent years, the parties and district judge alike treated the rule’s second sentence as if it were a rule of admissibility. It is not; it says that evidence “may” be admissible for a given purpose, not that it is automatically admissible. Allowing the jury to learn about the defendant’s criminal history, with or without a pro forma limiting instruction, invites the impermissible inference. Whether a conviction (or other bad act) is admissible depends not on Rule 404(b) but on whether it is relevant (Rule 402) and whether its probative value outweighs the considerable potential for prejudice (Rule 403). See, e.g., United States v. Beasley, 809 F.2d 1273 (7th Cir.1987); United States v. Seals, 419 F.3d 600, 610-*81112 (7th Cir.2005) (Posner, J., concurring); United States v. Chavis, 429 F.3d 662, 672-73 (7th Cir.2005) (Cudahy, J., concurring).
Although intent always is at issue in a drug-distribution ease — for a plea of not guilty puts the prosecution to its proof on every element of the offense — a conviction or other bad act may or may not be relevant to that topic. I have grave doubts about the prosecution’s theory of relevance in this prosecution. Jones argued that he did not own the distribution-size cache of drugs that investigators found; he admitted only to the personal-use-size cache that was in a different location. According to the prosecutor Jones’s conviction shows that he had learned to separate stocks of drugs in order to throw the hounds off the scent. Yet koto does the conviction show this? Is it that every drug dealer knows this trick of the trade? Of that there is no evidence, and it is not something that a jury could find without proof. Is it that Jones’s conviction shows that his former strategy had flopped, so he hit upon this as something new? Of that there is no evidence either; we don’t know the facts underlying the 1994 conviction. Thus the prosecutor’s theory boils down to a belief that a drug conviction always is relevant in any later drug prosecution, and Beasley disapproves that perspective.
Maybe the prosecutor could have supplied the subsidiary facts needed to make this theory of relevance fly. We will never know, because in the district court neither the litigants nor the district judge discussed this subject on the record. The defense’s objection was based not on Rule 402 but on a theory that the conviction was old and therefore “stale” — as if convictions were breakfast pastries left too long in a shop’s display ease. That’s a bad objection: if Jones’s prior acts do imply something about his intent or method of operation, it is unlikely that he would have forgotten his knowledge of the drug trade during his time behind bars. Jones’s counsel confused Rule 609(b), which makes the passage of time pertinent when a conviction is used for impeachment, with Rules 402 and 403. Because the objection was off target, the judge never concentrated on what really matters to the proper use of convictions under the Rules of Evidence.
Prosecutors sometimes argue that we need not worry because district judges give limiting instructions. Most of these are formulaic, however, and of little help— and they may make things worse. Telling juries not to infer from the defendant’s criminal record that someone who violated the law once is likely to do so again is like telling jurors to ignore the pink rhinoceros that just sauntered into the courtroom. Often judges just recite the language of Rule 404(b), instructing jurors that the conviction may be used “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”. Jurors are likely to hear this as so much mumbo-jumbo. The Federal Rules of Evidence speak to the bench and bar; for jurors, translation is essential.
Here the district judge avoided that pitfall by using instruction 3.04 from the Pattern Criminal Federal Jury Instructions for the Seventh Circuit. This pattern instruction is:
You have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of _You should consider this evidence only for this limited purpose.
The judge filled in. the blank with “intent.” That’s a good start but leaves the jury at sea. How would a conviction show “intent”? The prosecutor’s argument on appeal is that it shows not intent but knowledge of an avoidance technique (sep*812arating commercial from personal supplies). This “limiting” instruction is so general that it does not effectively distinguish appropriate from inappropriate inferences. A good limiting instruction needs to be concrete so that the jury understands what it legitimately may do with the evidence.
The risk that jurors will draw the forbidden propensity inference from prior convictions makes it prudent for the court to exclude them under Rule 403 unless in opening argument the defendant’s lawyer makes an argument (such as the defendant’s supposed inability to recognize a white powder as cocaine) that highlights intent, knowledge, or some other appropriate use of bad acts. If the evidence is excluded during the opening presentation, and something unexpected comes up during the defense case, the prosecutor can wheel out the conviction during rebuttal; by then its relevance (or irrelevance) should be apparent. 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.