United States v. Nicolas Gomez

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1104

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICOLAS GOMEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10 cr 1055-1 — William J. Hibbler, Judge.

ARGUED SEPTEMBER 11, 2013 — DECIDED AUGUST 18, 2014

Before WOOD, Chief Judge, and BAUER, POSNER, FLAUM,

EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER, and

HAMILTON, Circuit Judges.

SYKES, Circuit Judge. Federal agents suspected Nicolas

Gomez of involvement in a cocaine-distribution ring operating

in Chicago and Milwaukee. A wiretap on the phones of Robert

Romero, a known Chicago supplier, revealed a reseller named

2 No. 12-1104

“Guero” who lived in Milwaukee. The agents believed that

Gomez was Guero. When Romero and Guero scheduled a deal

for September 3, 2010, the agents followed Romero as he drove

from Chicago to Milwaukee and parked his car on a street near

Gomez’s house. The two men had a brief conversation next to

Romero’s car and then left the scene on foot. Later that day the

agents seized Romero’s car—still parked where he had left it—

and found a quarter kilogram of cocaine in the trunk. Gomez

was arrested and charged with conspiracy to distribute cocaine

and related crimes.

At trial the government introduced more than 50 recorded

telephone calls between Romero and Guero detailing their

cocaine transactions in the months leading up to September 3.

The evidence tying the calls to Gomez’s residence was over-

whelming, so his defense was that Guero must have been

Victor Reyes, his brother-in-law who lived in the same house.

In response the government sought to introduce a small

quantity of cocaine found in Gomez’s bedroom at the time of

his arrest. Gomez objected, citing Rule 404(b)(1) of the Federal

Rules of Evidence, which prohibits the admission of evidence

of other crimes, wrongs, or acts for the purpose of showing a

person’s character or propensity to behave in a certain way. So-

called “other act evidence” is admissible for other purposes,

however, see FED. R. EVID. 404(b)(2), and here the district court

admitted the evidence for the purpose of proving Gomez’s

identity as Guero.

Gomez was convicted on all counts. On appeal he primarily

challenged the district court’s decision to admit the other-act

evidence under Rule 404(b)(2). A divided panel affirmed. We

No. 12-1104 3

reheard the case en banc to clarify the framework for admitting

other-act evidence. We now conclude that our circuit’s four-

part test should be replaced by an approach that more closely

tracks the Federal Rules of Evidence. Applying a rules-based

framework here, we hold that the cocaine found in Gomez’s

bedroom should not have been admitted, but the error was

harmless, so we affirm the judgment.

I. Background

In 2010 federal agents were investigating Romero, a

Chicago-based cocaine supplier. A wiretap on his phones

revealed that he was regularly conducting business with a

reseller in Milwaukee, a man he called “Guero” or “Guerito.”

The cell phones Guero used were registered to a residence at

2522 West Mineral Street in Milwaukee where Gomez and his

brother-in-law Reyes lived. (Other people lived in the house

too, although the record doesn’t identify them.) When Romero

and Guero arranged a cocaine sale over the phone, GPS data

tracked Romero driving from Chicago to an alley behind

Gomez’s house on Mineral Street. When several months of

wiretap evidence established this transactional pattern, the

only thing left was to catch the conspirators in the act.

The opportunity came on September 2, 2010, when Romero

and Guero discussed a sale for the following day. On Septem-

ber 3, DEA agents staked out Gomez’s house in Milwaukee,

and a separate group of FBI agents followed Romero. He left

Chicago in a white Mercedes, drove to Milwaukee, and parked

on a street within a block and a half of Gomez’s house. Both

4 No. 12-1104

groups of agents watched and videorecorded a brief

interaction between Gomez and Romero standing next to the

parked Mercedes. After a short conversation, the two men

shook hands, then parted company and walked away in

opposite directions.

Gomez’s route took him past the DEA agents, who stopped

him to confirm his identity. Pretending to be part of an antigun

task force, they patted him down and asked for his name,

address, and telephone number. The number Gomez gave was

the same number Guero used to arrange the sale that day. The

agents let him go and Gomez walked home.

A few minutes later, FBI agents watched as Gomez drove

a green minivan down the street and picked up Romero. The

two men drove to Mercado El Rey, a nearby restaurant and

grocery store, where they met Reyes (Gomez’s brother-in-law

and housemate). An FBI agent followed them into the restau-

rant and photographed the meeting. Surveillance continued as

the three men left El Rey and went their separate ways.

Reyes drove away in a tan Suburban and was stopped and

identified by a DEA agent. Gomez and Romero must’ve been

spooked because neither of them returned to the white

Mercedes—Romero took a taxi all the way back to Chicago.

Later that day the federal agents seized the abandoned

Mercedes. A search of the car at DEA headquarters revealed a

quarter kilogram of cocaine hidden in the trunk.

That evening and the following morning, recorded phone

calls showed Romero and Guero frantically reviewing the

events of September 3. Guero told Romero that the Mercedes

No. 12-1104 5

had been towed and that he was using a new cell phone. (The

number Gomez gave to DEA agents was deactivated that very

day.) When Romero asked Guero what had happened after the

“three of [them]” left El Rey, Guero responded that his brother-

in-law had been stopped by police while driving away from

El Rey—exactly what happened to Reyes. Romero then asked

Guero when he had been stopped and searched by police, and

Guero explained that he was stopped while walking—exactly

what happened to Gomez.

On September 29—almost four weeks later—federal agents

arrested Gomez at his home. On the kitchen table were

Gomez’s wallet and the cell phone Guero had been using since

September 3. When agents searched Gomez’s bedroom, they

found a shoe box filled with documents addressed to Gomez,

including a phone bill for one of the three cell phones Guero

had used up until September 3. Although all three cell phones

were registered under Reyes’s name, records from the cellular-

service provider confirmed that the billing statements were

addressed to Gomez at 2522 West Mineral Street. Agents also

found a small quantity of cocaine in the pocket of a pair of

pants in Gomez’s bedroom.

Gomez was brought directly to the FBI’s prisoner process-

ing center in Chicago where two agents interviewed him. They

played three of the recorded phone calls, including the one

describing the events of September 3. Gomez identified his

own voice as Guero on all three. He was thereafter charged

with conspiracy to possess cocaine with intent to distribute, see

21 U.S.C. § 846, and three counts of using a telephone to

facilitate a drug crime, see id. § 843(b).

6 No. 12-1104

At trial the government introduced more than 50 recorded

phone calls and testimony from various federal agents to

establish the facts we’ve just described. Gomez’s defense was

mistaken identity—he claimed that he was simply in the wrong

place at the wrong time. He also argued that the government

would never be able to show him in possession of cocaine. In

response prosecutors sought to introduce the small quantity of

cocaine found in Gomez’s bedroom at the time of his arrest.

Gomez objected on Rule 404(b)(1) grounds. The trial judge

initially denied the government’s request but ultimately

admitted the evidence to show Gomez’s identity as Guero.1 In

the end Gomez focused his defense on attempting to raise a

reasonable doubt about the government’s contention that he

was Guero, arguing that it was more likely that Reyes was

Romero’s coconspirator. He reminded the jurors that Reyes

lived at the same address and had also met with Romero on

September 3, and that the cell phones used in the conspiracy

were registered in Reyes’s name. The jury convicted Gomez on

all counts.

On appeal Gomez primarily challenged the admission of

the other-act evidence—the cocaine found in his bedroom on

the day of his arrest—and also raised a sentencing issue. A

divided panel of this court affirmed, but the disagreement was

limited to the evidentiary question. United States v. Gomez,

712 F.3d 1146, 1159 (7th Cir. 2013); id. at 1159–63 (Hamilton, J.,

1

The court also allowed the other-act evidence for the purpose of showing

Gomez’s knowledge and the absence of mistake. The government no longer

defends the admission of the evidence for these purposes, so we do not

address them here.

No. 12-1104 7

dissenting). We vacated the panel opinion and granted

rehearing en banc on Gomez’s challenge to the admission of

the other-act evidence under Rule 404(b). We now reinstate the

panel opinion on the sentencing issue and address only the

Rule 404(b) question.

II. Discussion

A. The Admissibility of Other-Act Evidence

Rule 404(b) prohibits the admission of evidence of other

crimes, wrongs, or acts for the purpose of proving a person’s

character or propensity to behave in a certain way, but permits

the use of this evidence for other purposes:

(1) Prohibited Uses. Evidence of a crime,

wrong, or other act is not admissible to prove a

person’s character in order to show that on a

particular occasion the person acted in accor-

dance with the character.

(2) Permitted Uses; … This evidence may be

admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack

of accident.

FED. R. EVID. 404(b).

Our circuit has long used a four-part test to determine

when other-act evidence is admissible:

To determine if such evidence is admissible, the

district court must engage in a four-pronged

8 No. 12-1104

analysis and evaluate 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.

United States v. Zapata, 871 F.2d 616, 620 (7th Cir. 1989) (citing

United States v. Shackleford, 738 F.2d 776, 779 (7th Cir. 1984) for

parts (1), (2), and (4) of the test and Huddleston v. United States,

485 U.S. 681 (1988), for part (3)).

Multipart tests are commonplace in our law and can be

useful, but sometimes they stray or distract from the legal

principles they are designed to implement; over time misappli-

cation of the law can creep in. This is especially regrettable

when the law itself provides a clear roadmap for analysis, as

the Federal Rules of Evidence generally do. We have noted this

problem in the Rule 404(b) context before. Especially in drug

cases like this one, other-act evidence is too often admitted

almost automatically, without consideration of the “legitimacy

of the purpose for which the evidence is to be used and the

need for it.” United States v. Miller, 673 F.3d 688, 692 (7th Cir.

2012); see also United States v. Jones, 455 F.3d 800, 812 (7th Cir.

2006) (Easterbrook, J., concurring) (“Allowing a prosecutor

routinely to introduce drug convictions in the case in chief

No. 12-1104 9

without demonstrating relevance to some concrete dispute

between the litigants creates needless risk that a conviction will

rest on the forbidden propensity inference.”). Moreover, as we

explain here, some aspects of our test lack an adequate basis in

the rules.

Our four-part test for evaluating the admissibility of other-

act evidence has ceased to be useful. We now abandon it in

favor of a more straightforward rules-based approach. This

change is less a substantive modification than a shift in

paradigm that we hope will produce clarity and better practice

in applying the relevant rules of evidence.

1. Rules 401 & 402 (Relevance) and 104 (Relevance Condi-

tioned on a Fact)

All evidentiary questions begin with Rule 402, which

contains the general principle that “[r]elevant evidence is

admissible” and “[i]rrelevant evidence is not.” Rule 401 defines

relevant evidence as that which is both probative (having “any

tendency to make a fact more or less probable than it would be

without the evidence”) and material (the fact must be “of

consequence in determining the action”).

The second and third factors in our four-part test generally

correlate to the basic relevance inquiry under Rules 401 and

402, but the rules do not apply with the rote inflexibility that

the test implies. Step three of the test directs the district court

to evaluate whether the evidence of the proffered other act is

sufficient to support a jury finding that the defendant commit-

ted it. Step two asks if the other act is both recent and similar

10 No. 12-1104

enough to the conduct charged in the case to be relevant (i.e.,

“of consequence in determining the action”). See Zapata,

871 F.2d at 620.

Step three—the “sufficiency” inquiry—flows from

Rule 104(b), which addresses relevance conditioned on a fact:

“When the relevance of evidence depends on whether a fact

exists, proof must be introduced sufficient to support a finding

that the fact does exist.” FED. R. EVID. 104(b).2 In Huddleston v.

United States, the Supreme Court considered whether the

admission of other-act evidence requires a preliminary finding

by the court that the act has been proved by a preponderance

of the evidence. 485 U.S. at 682. The Court held that it does not.

Id. at 689. Relying on the default principle that relevant

evidence is admissible unless a rule specifies otherwise, the

Court concluded that nothing in the text or history of Rules 104

or 404(b) requires the judge to find that the proponent has

proved the other act before the evidence may be admitted. Id.

at 687–89. Although a preliminary finding by the judge is not

required as a condition of admissibility, the Court emphasized

that other-act evidence may not be admitted unless the

evidence is sufficient for the jury to find by a preponderance of

the evidence that the other act was committed. Id. at 689–90.

This requirement remains in full force as a condition of

relevance.

2

The text of Rule 104(b) was slightly different at the time of Huddleston v.

United States, 485 U.S. 681 (1988), but the change to the current language

was intended to be purely stylistic, so we quote the current text. FED. R.

EVID. 104 advisory committee’s notes (2011 amendments).

No. 12-1104 11

Step two of the test, which requires an inquiry into the

similarity and timing of the other act, is loosely connected to

the basic principles of relevance found in Rules 401 and 402.

See United States v. Foster, 652 F.3d 776, 785–86 (7th Cir. 2011)

(explaining that “the comparison of [the defendant’s] prior acts

to the charged crimes” is “directed at establishing the rele-

vancy of the 404(b) evidence”) (citing United States v. Lloyd,

71 F.3d 1256, 1264–65 (7th Cir. 1995)). But the strength of this

inquiry varies depending on the particular theory of admissi-

bility. For example, one permissible purpose for the introduc-

tion of other-act evidence is to prove a defendant’s identity

through a “distinctive manner of operation, or modus operandi.”

United States v. Simpson, 479 F.3d 492, 497–98 (7th Cir. 2007),

abrogated in part on other grounds by United States v. Boone,

628 F.3d 927, 933 (7th Cir. 2010). A prior act will be relevant to

this purpose when it “‘bears a singular strong resemblance to

the pattern of the offense charged’ with the similarities

between the two crimes ‘sufficiently idiosyncratic to permit an

inference of pattern.’” Id. at 498 (quoting United States v.

Thomas, 321 F.3d 627, 634–35 (7th Cir. 2003)). Sometimes the

prior bad act may be too dissimilar to be relevant to show a

distinctive pattern, leaving only the forbidden propensity

inference. Id.

On the other hand, the need to check for similarity and

recency may be substantially diminished or nonexistent

depending on the particular purpose for which the evidence is

offered. See United States v. Torres, 977 F.2d 321, 326 (7th Cir.

1992); United States v. Beasley, 809 F.2d 1273, 1277 (7th Cir.

1987). In some cases the relative similarity of the other act to

12 No. 12-1104

the charged offense may be unimportant as a test of relevance.

See, e.g., Foster, 652 F.3d at 785–86 (holding that the similarity

of the other-act evidence to the charged offense was “of

exceedingly minimal significance” when evidence of a prior

check-cashing scheme was introduced to show a criminal

relationship between the defendant and his accomplice in an

armed bank robbery); United States v. Shriver, 842 F.2d 968, 974

(7th Cir. 1988) (same with respect to motive). Recognizing this,

we have repeatedly said that the “similarity” requirement for

admitting other-act evidence is not “unduly rigid,” Foster,

652 F.3d at 785, but instead is “loosely interpreted and ap-

plied,” United States v. Vargas, 552 F.3d 550, 555 (7th Cir. 2008).

Our discussion thus far should illustrate the problem of

treating the “similarity” and “timing” factors as formal boxes

to check in the admissibility analysis. It’s far too tempting to

stop at superficial comparisons without meaningfully analyz-

ing how the similarity and recency of the prior bad act affect its

relevance in the unique circumstances of the case. And the

similarity and timing of the other act may not bear on the

relevance question at all. We think it best to return to a

framework that weighs the relevance of other-act evidence

directly.

To restate the principle in positive terms: The extent to

which a proffered “other crime, wrong, or act” is close in time

and similar to the conduct at issue in the case may have a

bearing on its relevance, which is the starting point for all

evidence questions, but the importance of testing for similarity

and recency will depend on the specific purpose for which the

other-act evidence is offered. The proponent of the other-act

No. 12-1104 13

evidence should address its relevance directly, without the

straightjacket of an artificial checklist.

2. Rule 404(b)

Rule 404(b) excludes relevant evidence of other crimes,

wrongs, or acts if the purpose is to show a person’s propensity

to behave in a certain way, but other-act evidence may be

admitted for “another purpose” including, but not limited to,

“proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”

FED. R. EVID. 404(b). The rule is straightforward enough, but

confusion arises because admissibility is keyed to the purpose

for which the evidence is offered, and other-act evidence is

usually capable of being used for multiple purposes, one of

which is propensity.3 See Beasley, 809 F.2d at 1279–80 (“Almost

3

A common misconception about Rule 404(b) is that it establishes a rule of

exclusion subject to certain exceptions. That’s not quite right. The text of the

rule does not say that propensity evidence is inadmissible except when it is

used to prove motive, opportunity, intent, etc. Rather, it says that propen-

sity evidence—other-act evidence offered to prove a person’s character and

inviting an inference that he acted in conformity therewith—is categorically

inadmissible. FED. R. EVID. 404(b)(1). But the rule also acknowledges that

there may be “another” use for other-act evidence—i.e., a different, non-

propensity use. FED. R. EVID. 404(b)(2). So it’s technically incorrect to

characterize the purposes listed in subsection (2) as “exceptions” to the rule

of subsection (1). The Rules of Evidence do contain some true exceptions to

the rule against propensity evidence, but they’re found elsewhere—notably

in Rules 412 through 415, which are limited to sexual-assault cases. In

contrast, the purposes enumerated in subsection (2) of Rule 404(b) simply

(continued...)

14 No. 12-1104

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’ … .”). In the criminal context, and espe-

cially in drug cases, few defendants are new to criminal activity

and the range of possible defenses is fairly limited, so at least

three of the permitted purposes listed in the rule—knowledge,

intent, and identity—are routinely in play.

Because other-act evidence can serve several purposes at

once, evidentiary disputes under Rule 404(b) often raise the

following question: Does a permissible ultimate purpose (say,

proof of the defendant’s knowledge or intent) cleanse an

impermissible subsidiary purpose (propensity)? On the surface

the rule seems to permit this. But if subsection (b)(2) of the rule

allows the admission of other bad acts whenever they can be

connected to the defendant’s knowledge, intent, or identity (or

some other plausible non-propensity purpose), then the bar

against propensity evidence would be virtually meaningless.

We have made this point before. See, e.g., United States v.

McMillan, 744 F.3d 1033, 1038 (7th Cir. 2014); Miller, 673 F.3d at

696 (explaining that “if applied mechanically,” the permitted

purposes listed in the rule “would overwhelm the central

principle” of the rule against propensity evidence (quoting

Beasley, 809 F.3d at 1279)).

3

(...continued)

identify situations in which the rule of subsection (1) by its terms does not

apply.

No. 12-1104 15

To resolve this inherent tension in the rule, we have

cautioned that it’s not enough for the proponent of the other-

act evidence simply to point to a purpose in the “permitted”

list and assert that the other-act evidence is relevant to it.

Rule 404(b) is not just concerned with the ultimate conclusion,

but also with the chain of reasoning that supports the non-

propensity purpose for admitting the evidence. United States v.

Reed, 744 F.3d 519, 524–25 (7th Cir. 2014); United States v. Lee,

724 F.3d 968, 976–77 (7th Cir. 2013); Miller, 673 F.3d at 697–98.

In other words, the rule allows the use of other-act evidence

only when its admission is supported by some propensity-free

chain of reasoning. Lee, 724 F.3d at 978 (“When one looks

beyond the purposes for which the evidence is being offered

and considers what inferences the jury is being asked to draw

from that evidence, and by what chain of logic, it will some-

times become clear … that despite the label, the jury is essen-

tially being asked to rely on the evidence as proof of the

defendant’s propensity to commit the charged offense.”);

Miller, 673 F.3d at 697–99; United States v. Jones, 389 F.3d 753,

757 (7th Cir. 2004), vacated on other grounds by Jones v. United

States, 545 U.S. 1125 (2005). This is not to say that other-act

evidence must be excluded whenever a propensity inference

can be drawn; rather, Rule 404(b) excludes the evidence if its

relevance to “another purpose” is established only through the

forbidden propensity inference.

Spotting a hidden propensity inference is not always easy.

See Jones, 389 F.3d at 757. For this reason, although we have

long required the record to reflect a “principled exercise of

discretion” by the district court, Beasley, 809 F.2d at 1279, we

16 No. 12-1104

have more recently emphasized the importance of identifying

the non-propensity theory that makes the other-act evidence

relevant and specifically asking how the evidence tends to

make a particular fact of consequence more or less probable.

For example, in United States v. Ciesiolka, 614 F.3d 347, 355 (7th

Cir. 2010), we noted that it was critical to “delineate precisely

the legitimate ends to which the evidence could be applied.” In

Miller we explained that the court should ask “more specifi-

cally how” the other-act evidence is relevant to a permitted

purpose in order to help expose impermissible uses of other-

act evidence for pure propensity purposes. 673 F.3d at 699. In

United States v. Richards, 719 F.3d 746 (7th Cir. 2013), we said

that the “district court[] must consider specifically how the prior

conviction tends to serve the non-propensity exception.” Id. at

759 (internal quotation marks and alterations omitted). And in

Lee we explained that the court must “consider the chain of

logic by which the jury is being asked to glean the defendant’s

knowledge, intent, etc., from proof of his prior misdeeds.”

724 F.3d at 976–77.

The principle that emerges from these recent cases is that

the district court should not just ask whether the proposed

other-act evidence is relevant to a non-propensity purpose but

how exactly the evidence is relevant to that purpose—or more

specifically, how the evidence is relevant without relying on a

propensity inference. Careful attention to these questions will

help identify evidence that serves no permissible purpose.

No. 12-1104 17

3. Rule 403

Finally, even if other-act evidence is relevant without

relying on a propensity inference, it may be excluded under

Rule 403, which applies “with full force” in this context, Miller,

673 F.3d at 696, and gives the district court discretion to

exclude relevant evidence if its probative value is “substan-

tially outweighed by a danger of … unfair prejudice,” FED. R.

EVID. 403. Other-act evidence raises special concerns about

unfair prejudice because it almost always carries some risk that

the jury will draw the forbidden propensity inference.4 See Lee,

724 F.3d at 976 (describing the “inherent risk of prejudice that

such evidence poses to the defendant.”). Rule 403 does much

of the heavy lifting in the admissibility analysis by excluding

other-act evidence that may be slightly probative through a

non-propensity theory but has a high likelihood of creating

unfair prejudice by leading a jury to draw conclusions based

on propensity. See Miller, 673 F.3d at 697 (explaining that under

Rule 403 “all bad acts evidence must be balanced for probative

value and unfair prejudice”); United States v. Chapman, 692 F.3d

822, 827 (7th Cir. 2012) (“The admission of [other-act] evidence

always carries with it some risk of unfair prejudice to the

defendant, but the critical issue is whether that risk is suffi-

ciently outweighed by other factors.”).

4

Rule 403 also gives the court discretion to exclude relevant evidence if its

probative value is substantially outweighed by the danger of “confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” FED. R. EVID. 403. Other-act evidence may

implicate these concerns as well, but the more common problem is the risk

of unfair prejudice.

18 No. 12-1104

i. The degree to which a fact is contested

One important issue in Rule 403 balancing in this context is

the extent to which the non-propensity factual proposition

actually is contested in the case. For example, if a defendant

offers to concede or stipulate to the fact for which the evidence

is offered, additional evidence may have little probative value.

See, e.g., Old Chief v. United States, 519 U.S. 172, 191–92 (1997)

(holding that a defendant’s stipulation to a prior felony

conviction removes its probative value in a prosecution for

unlawful possession of a firearm by a felon). Of course, there

are various degrees of factual disagreement in a trial, and

stipulations are at one end of that spectrum. See generally

2 EDWARD J. IMWINKELRIED, UNCHARGED MISCONDUCT EVI-

DENCE §§ 8:10–15 (2004) (reviewing various forms of disagree-

ment and their effect on the admissibility of other-act evi-

dence). Because each case is unique, Rule 403 balancing is a

highly context-specific inquiry; there are few categorical rules.

See Miller, 673 F.3d at 696–97. The general guiding principle is

that the degree to which the non-propensity issue actually is

disputed in the case will affect the probative value of the other-

act evidence. See United States v. Causey, 748 F.3d 310, 318 (7th

Cir. 2014); Lee, 724 F.3d at 976; Miller, 673 F.3d at 696–97.

On the other hand, there are a few discrete circumstances in

which we can say as a categorical matter that other-act evi-

dence is substantially more prejudicial than probative. The

Supreme Court’s decision in Old Chief is one example. There,

the defendant was charged with unlawful possession of a

firearm by a felon and offered to stipulate to his status as a

felon to prevent the jury from learning the details of his prior

No. 12-1104 19

conviction. The government rejected his offer to stipulate, and

the district court permitted the prosecutor to introduce the

prior conviction over the defendant’s Rule 403 objection.

519 U.S. at 177–78.

The Supreme Court reversed. Id. at 192. The Court began by

acknowledging the “familiar, standard rule that the prosecu-

tion is entitled to prove its case by evidence of its own choice,

or, more exactly, that a criminal defendant may not stipulate or

admit his way out of the full evidentiary force of the case as the

Government chooses to present it.” Id. at 186–87. But when a

defendant’s status as a felon is an element of the offense and he

offers to stipulate to that fact, the evidence of his prior convic-

tion loses its probative value, leaving only a substantial risk of

unfair prejudice. Id. at 191–92. In this specific situation, a

district court abuses its discretion in admitting the details of

the prior conviction. Id.

Our circuit also requires special caution when other-act

evidence is offered to prove intent, which though a permissible

non-propensity purpose is nonetheless “most likely to blend

with improper propensity uses.” Miller, 673 F.3d at 698. In

cases involving general-intent crimes—e.g., drug-distribution

offenses (as distinct from drug conspiracies or possession of

drugs with intent to distribute)—we have adopted a rule that

other-act evidence is not admissible to show intent unless the

defendant puts intent “at issue” beyond a general denial of

guilt. See, e.g., United States v. Hicks, 635 F.3d 1063, 1070–71 (7th

Cir. 2011); Shackleford, 738 F.2d at 781, overruled in part on other

grounds by Huddleston v. United States, 485 U.S. 681. Our most

complete explanation of this rule comes from Shackleford:

20 No. 12-1104

We have previously distinguished between

situations in which intent is in issue because the

government must show specific intent as an

essential element of the crime and when intent is

only a formal issue that can be inferred from the

act. When the crime charged requires proof of

specific intent, we have held that, because it is a

material element to be proved by the govern-

ment, it is necessarily in issue and the govern-

ment may submit evidence of other acts in an

attempt to establish the matter in its case-in-

chief, assuming the other requirements of

Rules 404(b) and 403 are satisfied. … On the

other hand, we have stated that when intent is

only a formal issue, so that proof of the proscribed act

gives rise to an inference of intent, then unless the

government has reason to believe that the de-

fense will raise intent as an issue, 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.

738 F.2d at 781 (emphasis added).

The specific-intent/general-intent distinction in the

Rule 404(b) context is sometimes misunderstood. The critical

point is that for general-intent crimes, the defendant’s intent

can be inferred from the act itself, so intent is not “automati-

cally” at issue. The paradigm case involves a charge of distri-

bution of drugs, see Hicks, 635 F.3d at 1070–71, a general-intent

No. 12-1104 21

crime for which the government need only show that the

defendant physically transferred the drugs; the jury can infer

from that act that the defendant’s intent was to distribute them.

Hence our rule that “[b]ecause unlawful distribution [of drugs]

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.” Id.; see also United States v.

Manganellis, 864 F.2d 528, 539 (7th Cir. 1988).

In contrast, we have repeatedly rejected a similar rule for

specific-intent crimes because in this class of cases “intent is

automatically at issue.” United States v. Conner, 583 F.3d 1011,

1022 (7th Cir. 2009) (collecting cases). Unfortunately, this line

of precedent too frequently has been seen as a rule of auto-

matic admission for other-act evidence in cases of specific-

intent crimes. See Lee, 724 F.3d at 981; Miller, 673 F.3d at 698–99.

We firmly rejected that notion in Miller, emphasizing that

other-act evidence is always subject to Rule 403 balancing.

673 F.3d at 696–98. We explained that although “[i]ntent can be

‘automatically at issue’ because it is an element of a specific

intent crime,” other-act evidence offered to prove intent “can

still be completely irrelevant to that issue, or relevant only in

an impermissible way.” Id. at 697–98. We have reiterated these

themes in other recent cases. See, e.g., Lee, 724 F.3d at 976

(“Simply because a subject like intent is formally at issue when

the defendant has claimed innocence and the government is

obliged to prove his intent as an element of his guilt does not

automatically open the door to proof of the defendant’s other

wrongful acts for purposes of establishing his intent.”); United

States v. Earls, 704 F.3d 466, 471 (7th Cir. 2012) (“Rule 404(b)

22 No. 12-1104

does not provide a rule of automatic admission whenever bad

acts evidence can be plausibly linked to another purpose … .

The Rule 402 requirement of relevance and the unfair prejudice

balancing inquiries of Rule 403 still apply with full force.”

(internal quotation marks omitted)).

To summarize then, when intent is not “at issue”—when

the defendant is charged with a general-intent crime and does

not meaningfully dispute intent—other-act evidence is not

admissible to prove intent because its probative value will

always be substantially outweighed by the risk of unfair

prejudice. In contrast, when intent is “at issue”—in cases

involving specific-intent crimes or because the defendant

makes it an issue in a case involving a general-intent crime—

other-act evidence may be admissible to prove intent, but it

must be relevant without relying on a propensity inference,

and its probative value must not be substantially outweighed

by the risk of unfair prejudice. And again, the degree to which

the non-propensity issue actually is contested may have a

bearing on the probative value of the other-act evidence.

Before moving on, we pause to note a point raised by the

government that one of our recent cases could be read to

suggest a generally applicable rule that other-act evidence may

not be admitted unless the defendant “meaningfully

dispute[s]” the non-propensity issue for which the evidence is

offered. Richards, 719 F.3d at 759 (citing Miller, 673 F.3d at 697).

Richards never actually held that, but for clarity’s sake, we

reiterate that there is no such categorical rule or prerequisite,

and we decline to adopt one now. Nothing in the Rules of

Evidence supports imposing such a universal prerequisite to

No. 12-1104 23

the admission of other-act evidence. Indeed, the advisory

committee explicitly disapproves of any general requirement

of this sort. See FED. R. EVID. 401 advisory committee’s notes

(1972) (“The fact to which the evidence is directed need not be

in dispute. … [T]he ruling should be made on the basis of such

considerations as waste of time and undue prejudice (see

Rule 403), rather than under any general requirement that

evidence is admissible only if directed to matters in dispute.”);

FED. R. EVID. 404 advisory committee’s notes (1972) (“No

mechanical solution is offered.”). Moreover, as we have noted,

the Supreme Court has specifically endorsed “the accepted rule

that the prosecution is entitled to prove its case free from any

defendant’s option to stipulate the evidence away.” Old Chief,

519 U.S. at 189. The Court held in Old Chief that “if … there [is]

a justification for receiving evidence of the nature of prior acts

on some issue other than status (i.e., to prove motive, opportu-

nity, intent, preparation, plan, knowledge, identity, or absence

of mistake or accident … ), Rule 404(b) guarantees the opportu-

nity to seek its admission.” Id. at 190 (internal quotation marks

omitted).

Though not a fixed requirement, we reiterate that the

district court should consider the degree to which the non-

propensity issue actually is contested when evaluating the

probative value of the proposed other-act evidence. Because

other-act evidence almost always carries a risk of unfair

prejudice, sensitivity to the real factual disputes in the case is

critical to meaningful Rule 403 balancing.

24 No. 12-1104

* * *

In sum, to overcome an opponent’s objection to the

introduction of other-act evidence, the proponent of the

evidence must first establish that the other act is relevant to a

specific purpose other than the person’s character or propen-

sity to behave in a certain way. See FED. R. EVID. 401, 402,

404(b). Other-act evidence need not be excluded whenever a

propensity inference can be drawn. But its relevance to

“another purpose” must be established through a chain of

reasoning that does not rely on the forbidden inference that the

person has a certain character and acted in accordance with

that character on the occasion charged in the case. If the

proponent can make this initial showing, the district court

must in every case assess whether the probative value of the

other-act evidence is substantially outweighed by the risk of

unfair prejudice and may exclude the evidence under Rule 403

if the risk is too great. The court’s Rule 403 balancing should

take account of the extent to which the non-propensity fact for

which the evidence is offered actually is at issue in the case.

ii. Jury instructions

Appropriate jury instructions may help to reduce the risk

of unfair prejudice inherent in other-act evidence. See, e.g.,

United States v. Carter, 695 F.3d 690, 702 (7th. Cir. 2012); FED. R.

EVID. 403 advisory committee’s notes (1972) (explaining that

the effectiveness of limiting instructions are a factor in weigh-

ing the danger of unfair prejudice). A limiting instruction must

be given upon request. See FED. R. EVID. 105. But a defendant

No. 12-1104 25

may choose to go without one to avoid highlighting the

evidence. See Jones, 455 F.3d at 811 (Easterbrook, J., concurring).

We caution against judicial freelancing in this area; sua sponte

limiting instructions in the middle of trial, when the evidence

is admitted, may preempt a defense preference to let the

evidence come in without the added emphasis of a limiting

instruction. The court should consult counsel about whether

and when to give a limiting instruction.

Rule 404(b) already requires that the prosecutor notify the

defendant before trial of an intent to use other-act evidence,

provided the defense has requested this notice (though the

judge may excuse a lack of pretrial notice for good cause). See

FED. R. EVID. 404(b)(2)(A)–(B). Motions in limine are common

even in the absence of a defense request for notice. As soon as

it becomes clear that other-act evidence may be part of the

prosecution’s case, the district judge should raise with the

defendant whether the defense wants a limiting instruction

(since Rule 105 requires it to be given on request) and, if so,

what kind.

When given, the limiting instruction should be customized

to the case rather than boilerplate. Id. at 811–12 (“A good

limiting instruction needs to be concrete so that the jury

understands what it legitimately may do with the evidence.”).

In order to “effectively distinguish appropriate from inappro-

priate inferences,” id. at 812, jurors should be told in plain

language the specific purpose for which the evidence is offered

and that they should not draw any conclusions about the

defendant’s character or infer that on a particular occasion the

defendant acted in accordance with a character trait. Our

26 No. 12-1104

circuit’s Pattern Jury Instruction 3.11 is a good starting point,

but it needs customization for the particular case.

Moreover, we see no reason to keep the jury in the dark

about the rationale for the rule against propensity inferences.

Lay people are capable of understanding the foundational

principle in our system of justice that “we try cases, rather than

persons.” People v. Allen, 420 N.W.2d 499, 504 (Mich. 1988); see

also United States v. Linares, 367 F.3d 941, 945 (D.C. Cir. 2004)

(explaining that a component of the presumption of innocence

is that “a defendant must be tried for what he did, not for who

he is”); 1 IMWINKELRIED, supra, § 1:3 (2004) (explaining that the

rule against propensity evidence guards against the illicit

temptation to “penalize the defendant for his or her past

misdeeds”). The court’s limiting instruction would be more

effective if it told the jurors that they must not use the other-act

evidence to infer that the defendant has a certain character and

acted “in character” in the present case because it does not

follow from the defendant’s past acts that he committed the

particular crime charged in the case.

Finally, the instruction would be improved by tying the

limiting principle to the prosecution’s burden of proof. The

jurors should be reminded that the government’s duty is to

prove beyond a reasonable doubt every element of the specific

crime charged, and it cannot discharge its burden by inviting an

inference that the defendant is a person whose past acts

suggest a willingness or propensity to commit crimes.

No. 12-1104 27

B. Application of a Rules-Based Framework

Here, the district court allowed the government to use the

evidence of the user quantity of cocaine found in Gomez’s

bedroom for the purpose of proving his identity as Guero. That

was error, but for reasons we will explain, the error was

harmless.

1. The Evidence Was Relevant Only Through a Propensity

Inference

Because the proponent of the other-act evidence must

explain how it is relevant to a non-propensity purpose, the

government needed a rationale for connecting the cocaine

found in Gomez’s bedroom to his identity as Guero without

relying on the forbidden propensity inference. As we’ve discussed,

one accepted way to use other-act evidence to prove identity

is to argue that the perpetrator had a distinctive modus

operandi. Gomez suggests that we should limit the “identity”

uses of other-act evidence to this theory. We see no reason to

do so. Indeed, we have previously said that modus operandi

is not the exclusive theory for admitting other acts to prove

identity. Simpson, 479 F.3d at 498. Accordingly, we reject

Gomez’s invitation to artificially limit the ways in which other-

act evidence can be admitted to prove identity. At the same

time, however, a defense of mistaken identity does not by itself

give the government a green light to use other-act evidence.

To support its identity theory of relevance here, the

government relies on two cases in which other-act evidence

was admitted in response to a defense of mistaken identity:

28 No. 12-1104

United States v. Brown, 471 F.3d 802 (7th Cir. 2006), and United

States v. Gibson, 170 F.3d 673 (7th Cir. 1999). Brown is inapplica-

ble. There, the defendant was alleged to have participated in a

drug transaction that was interrupted by the police. He fled the

scene, but another man involved in the deal was apprehended

and agreed to cooperate with law enforcement. 471 F.3d at 804.

The cooperator identified Brown as the drug buyer who fled

the scene when the police arrived. Brown’s defense was

mistaken identity—he claimed that he had nothing to do with

the cooperator—not on this specific occasion or at any other

time. Id. at 806. In response the government introduced

evidence that Brown had purchased drugs from the cooperator

on many prior occasions. We approved this use of other-act

evidence because it undercut Brown’s claim that the cooperator

was lying. Id.

The basic theory of admissibility in Brown—that evidence

of other transactions between the defendant and a witness is

admissible to bolster the witness’s identification of the defen-

dant as a participant in the charged transaction—is a distinct

and widely acknowledged theory of admissibility under

Rule 404(b). See 1 IMWINKELRIED, supra, § 3:7 (2006). But it has

no application in this case. The other-act evidence here—a user

quantity of cocaine found in Gomez’s bedroom 26 days after

the conspiracy ended—did not serve that purpose.

Gibson is more on point. Gibson was charged with distribut-

ing cocaine in 1996. His defense was that it was not him, but his

brother, who sold the cocaine. In response the government

introduced Gibson’s postarrest statement to the FBI that he

regularly sold cocaine from 1994 to 1997 (he denied involve-

No. 12-1104 29

ment in the particular sale at issue in the case). We upheld the

prosecution’s use of Gibson’s statement about his history of

drug dealing “because his primary defense at trial was that of

mistaken identity.” Gibson, 170 F.3d at 679.

Gibson is hard to square with United States v. Simpson,

479 F.3d 492, a nearly identical case that reached the opposite

conclusion. Simpson was charged with selling cocaine, and as

in Gibson his defense was mistaken identity. The government

introduced Simpson’s statement to the FBI admitting that he

had been dealing cocaine for three or four years leading up to

the charged crime. We held that this evidence was improperly

admitted to prove identity because it could only be relevant to

that issue by way of an impermissible propensity inference. Id.

at 497–98. We distinguished Gibson by highlighting that Gibson

had specifically pointed the finger at an alternative culprit—his

brother—and that Gibson’s history of drug dealing made it

more likely that he—not his brother—was the drug dealer. Id.

at 499 n.1. In contrast, Simpson argued more generally that the

police had the wrong guy. Id.

Here, as in Gibson, Gomez’s mistaken-identity defense

singled out another person—his brother-in-law and housemate

Victor Reyes—as the “real” Guero. The government intro-

duced the user quantity of cocaine found in Gomez’s bedroom

for the purpose of showing that as between the two, it was

more likely that Gomez was Guero. If the distinction drawn in

Simpson is valid, then Gibson controls as the more closely

analogous precedent. But the distinction does not hold up.

Simpson relied on a supposed difference in the probative value

of propensity evidence when a mistaken-identity defense

30 No. 12-1104

focuses on a particular alternative suspect rather than arguing

mistaken identity more generally. But Rule 404(b) does not

allow propensity evidence when it is probative enough; it bars

propensity evidence as a categorical matter. In Gibson, just as

in Simpson, the evidence of the defendant’s history of drug

dealing tended to prove his identity as a participant in the

charged drug deal only by way of a forbidden propensity

inference: Once a drug dealer, always a drug dealer. Gibson

and Simpson cannot be reconciled. We now conclude that

Gibson did not survive our recent decisions in Miller and Lee.

This case is yet another example of the importance of

asking how exactly the proposed other-act evidence is relevant

without relying on propensity. The government maintains that

the cocaine found in Gomez’s bedroom was admissible because

it made it more probable that Gomez—not Reyes—was Guero.

But that is just to say that the evidence is relevant; it doesn’t tell

us how the evidence is relevant in a propensity-free way. On that

pivotal question, the government has little to offer.

If there had been some basis to argue that the cocaine in

Gomez’s bedroom was the product of the conspiracy, then it

might have qualified as direct evidence of Gomez’s participa-

tion in Romero’s drug ring and Rule 404(b) would not apply.

See United States v. Philips, 745 F.3d 829, 833 (7th Cir. 2014);

United States v. Adams, 628 F.3d 407, 414 (7th Cir. 2010); United

States v. Alviar, 573 F.3d 526, 538 (7th Cir. 2009). But the

government doesn’t make that argument, for good reason. The

cocaine in Gomez’s room was a small user quantity; it was half

as pure as the quarter kilogram of cocaine found in Romero’s

No. 12-1104 31

car; and it was recovered almost four weeks after Romero and

Gomez ceased doing business together.

In the end, the government offers no theory other than

propensity to connect the cocaine found in Gomez’s bedroom

to his identity as Guero, Romero’s coconspirator. The govern-

ment’s sole theory is that Gomez’s possession of a user

quantity of cocaine 26 days after the conspiracy ended shows

that he, rather than Reyes, was Guero. That argument is

extraordinarily weak, but the more important point is that it

rests on pure propensity: Because Gomez possessed a small

quantity of cocaine at the time of his arrest, he must have been

involved in the cocaine-distribution conspiracy. The district

court should not have admitted this evidence.

2. The Error Was Harmless

Evidentiary errors are subject to review for harmlessness.

See FED. R. CRIM. P. 52(a); McMillan, 744 F.3d at 1077; United

States v. Vargas, 689 F.3d 867, 875 (7th Cir. 2012). In this context,

“[t]he test for harmless error is whether, in the mind of the

average juror, the prosecution’s case would have been signifi-

cantly less persuasive had the improper evidence been ex-

cluded.” Vargas, 689 F.3d at 875 (citing United States v. Loughry,

660 F.3d 965, 975 (7th Cir. 2011)). The evidence identifying

Gomez as Guero was quite compelling and would not have

been less so had the other-act evidence been excluded.

First, Romero addressed his coconspirator as “Guero” in

numerous recorded phone calls, confirming that it was always

the same person on the other end of the line in the months

32 No. 12-1104

leading up to the September 3 transaction. GPS data showed

Romero driving to the alley behind Gomez’s house after

arranging sales with Guero. On September 2 Romero again

called Guero to arrange a cocaine sale for the next day. Romero

drove to Milwaukee on September 3 as planned and parked his

Mercedes near Gomez’s house, consistent with past practice.

Federal agents observed—and a videorecording captured—a

brief conversation between Gomez and Romero as they stood

next to the Mercedes. Importantly, when the two men parted

company and left on foot in opposite directions, the agents

stopped Gomez, asked for his identification, and he gave them

the same phone number that Guero had used to set up the sale

that day. Later that day the agents seized and searched the

abandoned Mercedes and found a quarter kilogram of cocaine

in the trunk.

Next, the jury heard other evidence corroborating Gomez’s

identity as Guero. The three cell phones Guero used were

registered to the house on Mineral Street that Gomez shared

with Reyes, but the bills were sent to Gomez at that address,

and he had one of the bills in a box in his bedroom. True, the

phones could be linked to Reyes too, and Reyes joined Romero

and Gomez at the meeting at El Rey after Gomez was stopped

and searched by DEA agents. So it’s no wonder Gomez

focused his defense on pointing the finger at Reyes.

But other evidence convincingly refuted the theory that

Reyes was Guero. During Gomez’s postarrest interview,

federal agents played several of the recorded phone calls for

him, including one that took place after the aborted cocaine

sale on September 3. Gomez admitted that Guero’s voice on

No. 12-1104 33

the recordings was his. This admission is quite powerful on its

own, but because Gomez challenged the agents’ credibility, we

press on with our harmless-error analysis. See United States v.

Robinson, 724 F.3d 878, 888 (7th Cir. 2013).

In a recorded phone call on September 4 retracing the

events of the previous day, Guero describes in the first person

how the police stopped him as he walked away from his

conversation with Romero; we know that happened to Gomez,

not Reyes. Earlier in that same phone call Romero asked Guero

what happened to Reyes, and Guero responded with an

account in the third person about what happened to his brother-

in-law after the three men left El Rey.5 Finally, when Gomez

5

Our dissenting colleagues object that the government did not press this

interpretation of the September 4 phone call before the jury. We disagree.

It’s true that the prosecutor did not specifically contrast the agents’ stop of

Gomez (on foot) and Reyes (in his car). But the prosecutor discussed the

September 4 phone call in some detail in closing argument, explaining that:

[I]n another call, Call 64171, Gomez says—Gomez tells

Romero that Gomez had been stopped when he was

walking and had turned the corner. Now it’s no coinci-

dence that Guero, the man on this phone with Roberto

Romero, is telling Romero about a stop that occurred—that

occurred to him that day exactly the same way it happened

to Nicolas Gomez that day. It’s no coincidence because

Nicolas Gomez is Guero. The context of these calls,

combined with the other evidence, is just one more kind of

proof that Nicolas Gomez was Roberto Romero’s partner

in all of these calls.

After touching on some of the other evidence, the prosecutor returned to

this point, telling the jurors that they could be confident beyond a

(continued...)

34 No. 12-1104

was arrested at his home nearly four weeks after the conspir-

acy ended, his wallet was found on the kitchen table right next

to the phone Guero had used since September 3.

In short, the prosecution’s case was strong and would not

have been any less persuasive had the other-act evidence been

excluded—or at least it would not have been significantly less

persuasive in the mind of the average juror. The link between

the small quantity of cocaine found in Gomez’s bedroom and

his identity as Guero was extremely weak; the government has

never really articulated a coherent theory for why this evi-

dence helped its case. Excluding it would not have seriously

diminished the strength of the prosecution’s case against

Gomez. We’re satisfied that the error was harmless.

AFFIRMED.

5

(...continued)

reasonable doubt that Gomez was Guero “because of the context of the

post-stop phone calls where [Guero] talks about things that only happened

to Nicolas Gomez.”

No. 12-1104 35

HAMILTON, Circuit Judge, joined by WOOD, Chief Judge,

and ROVNER and WILLIAMS, Circuit Judges, concurring in part

and dissenting in part. The en banc court agrees unanimous-

ly that the district court erred by admitting under Rule

404(b) the evidence that Gomez was in possession of a small

amount of cocaine nearly four weeks after the charged con-

spiracy ended. Its admission was not justified on any of the

three grounds accepted by the district court and argued by

the government to the jury. Judge Sykes’ opinion for the

court on the merits of the Rule 404(b) question takes im-

portant and welcome steps to clarify this troublesome area of

evidence law. See generally United States v. Gomez, 712 F.3d

1146, 1159–63 (7th Cir. 2013) (Hamilton, J., dissenting). I

therefore join Parts II-A and II-B-1 of Judge Sykes’ opinion.

Those joining this opinion also take this opportunity to

provide an example of the type of jury instruction that

should be given when evidence is admitted properly under

Rule 404(b). Suppose the facts here had been different. Sup-

pose (1) that Gomez had later possessed a wholesale quanti-

ty of cocaine of the same purity as the cocaine involved in

the conspiracy, (2) that the government had shown that the

cocaine would be probative of Gomez’s identity and not un-

fairly prejudicial, and (3) that the defendant wanted a limit-

ing instruction. A good instruction consistent with our cir-

cuit’s Pattern Instruction 3.11 would be:

You have heard testimony that the defendant

committed acts other than the ones charged in the in-

dictment. Before using this evidence, you must decide

whether it is more likely than not that the defendant

took the actions that are not charged in the indict-

ment. If you decide that he did, then you may consid-

36 No. 12-1104

er that evidence to help you decide whether the de-

fendant was the same person as the one called

“Guero.” You may not consider this evidence for any

other purpose. To be more specific, you may not infer

that, because the defendant committed an act in the

past, he must have committed the crimes charged in

the indictment. The reason is that the defendant is on

trial here for specific charges of conspiracy to possess

cocaine with intent to distribute and using a tele-

phone to facilitate a drug crime. He is not on trial for

those other acts. It is the government’s burden to

prove beyond a reasonable doubt the elements of the

specific crimes charged here. The government cannot

meet its burden by inviting you to infer that the de-

fendant is a person whose past acts suggest he has a

bad character or a tendency to commit crimes.

Nevertheless, after having done so much to improve our

circuit’s law under Rule 404(b), the en banc majority still af-

firms Gomez’s conviction despite the serious Rule 404(b) er-

ror. The majority does so by finding that the Rule 404(b) er-

ror was harmless, in Part II-B-2 of its opinion. From this con-

clusion and the resulting affirmance, I respectfully dissent.

We should reverse this conviction and remand for a new tri-

al without the highly prejudicial evidence admitted errone-

ously under Rule 404(b).

To be sure, the government’s case against the person

called “Guero” was air-tight. But was Gomez “Guero”? The

government offered substantial evidence that he was. But

that evidence is not as clear as the majority contends, partic-

ularly when we keep in view the requirement of proof be-

yond a reasonable doubt. The applicable standard for harm-

No. 12-1104 37

less error is provided by Federal Rule of Criminal Procedure

52(a), which requires the court to disregard an error that

“does not affect substantial rights.” The burden is on the

government to show that the error here was harmless. United

States v. Olano, 507 U.S. 725, 734 (1993); United States v. Patter-

son, 23 F.3d 1239, 1255 (7th Cir. 1994).

To avoid a finding of harmless error, the defendant “need

not show that, on remand, a jury would not convict him a

second time.” United States v. Richards, 719 F.3d 746, 765–66

(7th Cir. 2013). Even where the defendant “probably” still

would have been convicted in the absence of improper pro-

pensity evidence, the error is not necessarily harmless. Id.

The proper question is “whether an average juror would

find the prosecution’s case significantly less persuasive

without the improper evidence.” United States v. Miller, 673

F.3d 688, 700 (7th Cir. 2012); see also Kotteakos v. United

States, 328 U.S. 750, 765 (1946) (in case of non-constitutional

error, question is whether we can say “with fair assurance”

that verdict was not substantially swayed by error).

Because Rule 404(b) evidence can be so powerful and

prejudicial, we have found the improper admission of other-

acts drug evidence harmful despite otherwise quite strong

evidence of guilt. See, e.g., United States v. Lee, 724 F.3d 968,

982–83 (7th Cir. 2013) (Rule 404(b) error was not harmless

although cocaine was found in trunk of car defendant was

driving, cocaine’s packaging had defendant’s fingerprint on

it, witness testified that defendant sold him cocaine, and

phone records connected defendant to witness); Miller, 673

F.3d at 701-02 (erroneous admission of prior drug conviction

was not harmless despite substantial evidence of guilt). Even

when 404(b) evidence is admitted properly but is then used

38 No. 12-1104

improperly to show propensity, we have found the error to

be harmful. See, e.g., Richards, 719 F.3d at 763–66. In this

case, the entire court agrees that the 404(b) evidence should

not have been admitted at all because its only use was to

show propensity.

The agents never did catch the conspirators in the act, as

they sought to do on September 3, 2010. So let’s consider the

government’s evidence indicating that Guero was Gomez

rather than his brother-in-law Victor Reyes, who lived in the

same house and who was also observed meeting with the

supplier, Romero, on September 3.

An FBI agent and a linguist testified that they played

three recorded phone calls for Gomez when they inter-

viewed him after his arrest, and that he identified his own

voice as Guero on those calls. That testimony depends en-

tirely on the credibility of the federal agents, however. They

did not record this critical admission by Gomez orally or in

writing. Such testimony from federal law enforcement offic-

ers is substantial evidence, of course, but the jury was not

required to believe it.

As between Gomez and Reyes, the physical evidence

found in the search was ambiguous. The agents found one of

the cell phones Guero had used. The billing statements for

all three phones Guero had used were addressed to Gomez,

but the phones were registered under Reyes’s name. That

evidence does not really help decide which one was Guero.

The majority’s strongest evidence that Gomez was Guero

comes from telephone calls between Romero and Guero after

the September 3 seizure of Romero’s car with the cocaine

hidden in it. In a September 3 phone call at 9:27 p.m., Guero

No. 12-1104 39

described someone other than himself being stopped by po-

lice, but the exchange is ambiguous:

Romero: But were they following you as well or not?

Guero: Not me, cousin, not any more. The only one

they stopped was – since I saw that my

brother-in-law left. They stopped him there

at the school.

Romero: Him too?

Guero: Yes.

Romero: What did they ask him or what?

Guero: Eh, that if he had something, if he had

weapons or something, because they were

supposedly looking for someone who had a

weapon.

Doc. 72 at 184–85 (Call No. 34800). The agents stopped both

Gomez and Reyes on September 3. Each could describe the

other as his brother-in-law, so this exchange does not resolve

the issue.

The majority finds more support from a call at 9:29 a.m.

on September 4 but describes the conversation as including

more specific details than it actually did. According to the

majority:

In a recorded phone call on September 4 retracing

the events of the previous day, Guero describes in the

first person how the police stopped him as he walked

away from his conversation with Romero; we know

that happened to Gomez, not Reyes. Earlier in that

same phone call Romero asked Guero what happened

to Reyes, and Guero responded with an account in the

40 No. 12-1104

third person about what happened to his brother-in-

law after the three men left El Rey.

Ante at 33. Guero did not actually give Romero such explicit

information about timing. Although he may well have been

referring to a stop of himself on the previous day, he did not

say so. And although Romero also may well have been ask-

ing Guero about Reyes being stopped (which would of

course indicate that Guero was not Reyes), the name Reyes

was never mentioned between them. As translated from

Spanish in the official transcript, the key exchange went like

this:

Romero: It seems like your brother – your brother-in-

law – what happened when he came from

over there? He had another car from that

guy, right?

Guero: Yes. He was stopped by a sheriff.

Romero: What did they tell him or what?

Guero: They – just that he was – they wanted him

to give them permission to search his car.

They – that they had seen him come out of

El Rey over here. They asked him if he had

gone to the – to get tacos or what. What did

he go there for?

Romero: Is that they seen the three of us come out

here?

Guero: Uh-huh.

Romero: And to you, if they saw us all together, why

– I don’t understand why. How did it hap-

pen to you also?

No. 12-1104 41

Guero: I beg your pardon?

Romero: You also said that when you came over to

the little village, you were searched. I don’t

understand why.

Guero: Well, when I was turning the corner –

Romero: You were walking, right?

Guero: Yes.

Doc. 72 at 189 (Call No. 64171). A moment later in the same

call, however, Romero seemed to treat the car as Guero’s.

Reyes was driving the car when it was stopped and taken by

the agents. The context is difficult to interpret, but Romero

and Guero were still talking about the events of September 3

and the seizure of the car:

Romero: Those guys see each other every once in a

while. How were they doing over there?

What are they doing? They have plates.

They have personal plates from over there.

But that’s how those guys are doing it.

Guero: Then from what I understand, they – when

they bring those plates is when they bring

someone from over there. Supposedly to

get a person, that’s when they come out.

Romero: Imagine. It can’t be. I don’t understand. It’s

strange, not this dude. What did they want?

What were they expecting? I don’t know

what the fuck. They wanted to maybe stop

you also since you also went in there in the

shops and that?

Guero: I beg your pardon?

42 No. 12-1104

Romero: I mean, I don’t know. Maybe they were

waiting for you to go in, in some house or

something. I don’t know. If not that they have

taken your car just like this, dude.

Id. at 190–91.

The first passage referring to Guero being stopped while

walking now seems to be the strongest evidence that Guero

was Gomez. While that seems to be the most likely reading

of the exchange, I am not persuaded that it renders the seri-

ous Rule 404(b) error harmless.

First, and most important, the government never made

the argument that the majority makes about the significance

of the phone calls. Its appellate briefs presented only the

most perfunctory harmless error argument and made no

mention of the September 4 phone call. Nor did the govern-

ment make this point at trial. Yes, the government pointed

out that Guero described being stopped on foot in one of the

calls, which is something that happened to Gomez. See Doc.

75 at 14–15. But the prosecutor did not draw the contrast be-

tween the stop of Reyes and the stop of Gomez. The majority

is therefore finding harmless error on an interpretation of

the evidence that the government did not press before the

jury.

If the majority’s new interpretation of the phone calls had

been presented at trial, Gomez would have had occasion to

challenge it. As it was, there was no need. And if this evi-

dence were decisive, surely the prosecutors would have tak-

en full advantage of it. They did not, so we do not know

whether the majority’s interpretation would have withstood

the adversarial test of trial. The government’s failure to make

No. 12-1104 43

this argument on appeal also means that Gomez never had

an occasion to rebut it in this court.

Rather than making the majority’s argument, at trial the

government tried to prove identity by emphasizing the erro-

neously admitted Rule 404(b) evidence. Doc. 75 at 32–33. The

prosecutor finished the opening segment of the closing ar-

gument by telling the jury that possession of this user quan-

tity of cocaine, much less pure than the conspiracy ship-

ments, and nearly four weeks after the charged conspiracy

ended, showed Gomez’s identity, as well as knowledge and

absence of mistake. Id. And of course, the district judge told

the jury that the evidence could be used for all three of those

unwarranted purposes. This emphasis by both the govern-

ment and the trial judge is another reason the error in admit-

ting the evidence was not harmless.

The prosecutors clearly thought the cocaine evidence was

more powerful than the majority’s new theory. I think they

were right. Evidence of cocaine possession in a cocaine con-

spiracy case is especially damning, even if it is not actually

probative of any issue in dispute. In deciding whether an er-

ror was harmless, we do not act as a second jury or try to

guess how the jury would have decided. We ask “whether

an average juror would find the prosecution’s case signifi-

cantly less persuasive without the improper evidence.” Mil-

ler, 673 F.3d at 700.

Accordingly, while the majority’s treatment of the Rule

404(b) issue is a welcome improvement on our circuit’s law, I

respectfully dissent from the finding that the serious Rule

404(b) error was harmless. I would reverse Gomez’s convic-

tion and remand for a new trial.