United States v. Kenneth Schmitt

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 13-2894

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH SCHMITT,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Evansville Division.

No. 3:11-cr-48 — Richard L. Young, Chief Judge.

____________________

ARGUED FEBRUARY 18, 2014 — DECIDED OCTOBER 20, 2014

____________________

Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge. Law enforcement officers found

drugs and an assault rifle in Kenneth Schmitt’s home while

executing a warrant for his arrest. Because they were found

in plain view in the course of conducting a reasonable pro-

tective sweep, the district court did not err in denying

Schmitt’s motion to suppress evidence of the firearm. Nor

did the district court err in allowing much of the drug evi-

dence that was admitted against Schmitt at trial, including

2 No. 13-2894

his conviction record for possessing marijuana with the in-

tent to distribute it. However, the district court should not

have admitted Schmitt’s conviction for possession of meth-

amphetamine since Schmitt did not open the door to that ev-

idence and it was not relevant at trial except to impeach the

government’s own witness who claimed during direct exam-

ination that the methamphetamine belonged to him. But the

error was harmless because the government’s case would

not have been substantially less persuasive without it. Final-

ly, the district court did not err in enhancing Schmitt’s base

offense level after concluding that he possessed the firearm

in connection with the sale of drugs or in finding that

Schmitt’s eleventh-hour decision to admit guilt—after he

was convicted—was insufficient to qualify him for a reduc-

tion in his offense level for accepting responsibility. There-

fore, we affirm Schmitt’s conviction and sentence.

I. BACKGROUND

In December 2010, Evansville Police Department Detec-

tive Chris Georgen received a tip from his informant, Ken-

neth Hutchinson, that Kenneth Schmitt had recently ac-

quired an AR-15 semi-automatic assault rifle in exchange for

$200 and two grams of methamphetamine. How did

Hutchinson know this? Because he was the middleman who

set up the deal between Schmitt and the seller of the auto-

matic rifle. And Hutchinson, who was Schmitt’s neighbor,

told Det. Georgen that Schmitt was keeping it at home. Det.

Georgen and other officers followed up on the tip by watch-

ing Schmitt’s residence. They saw Schmitt come to the front

door and several other people enter and exit the home.

Armed with a warrant to arrest Schmitt, several SWAT offic-

ers entered Schmitt’s residence the next day and within five

No. 13-2894 3

minutes the officers found Schmitt and Jason Wyatt. They

also found, in plain view, marijuana, methamphetamine,

and pills containing controlled substances. Less than five

minutes after entering the house, SWAT Officer Craig Pierce

went into the basement and saw an AR-15 semiautomatic

rifle and two fully loaded magazines in a black gun case.

Det. Georgen then obtained a search warrant to seize the

drugs, firearm, and related evidence found while executing

the arrest warrant.

Schmitt was indicted for possessing a firearm while be-

ing a felon, in violation of 18 U.S.C. § 922(g)(1). He filed a

pretrial motion to suppress evidence related to the rifle, but

the district judge found that it was seen in plain view during

a protective sweep and denied the motion. Schmitt, who had

pled guilty in state court to possession of the drugs found in

his home, also moved to exclude evidence regarding “any

drug use, drug possession, or drug dealing alleged to have

been engaged in by” him. The government argued that the

drugs that were found in Schmitt’s home, as well as the evi-

dence that he was a drug dealer and used drugs to purchase

the firearm, were relevant to show why Schmitt had the rifle.

Finding that the drug evidence was “inextricably inter-

twined with the charged act,” “put the facts in context, filled

gaps,” and “would be a motive for the defendant to have a

firearm,” the court concluded that the probative value of the

drug evidence outweighed its prejudicial effect. The court

denied Schmitt’s motion and allowed drug evidence to be

admitted at trial, in addition to evidence that Schmitt pled

guilty to possessing the drugs found in his home the day he

was arrested.

4 No. 13-2894

So, at trial, Hutchinson testified that he had on occasion

bought methamphetamine and marijuana from Schmitt in

Schmitt’s home and also saw him sell pills from his home.

Det. Georgen testified about the firearm and ammunition

found in the basement, as well as the methamphetamine,

marijuana, and digital scale that were found in Schmitt’s

home during his arrest. He told the jury that the quarter

gram of methamphetamine found was an amount a user

would have, but that the quarter pound of marijuana was an

amount a drug dealer would keep on hand.

Collectively, Det. Georgen and Hutchinson’s testimony

raised the inference that the drugs in Schmitt’s home were

his and that he bought the rifle to protect his drug dealing

business. But Schmitt’s friend Wyatt, who was the govern-

ment’s witness, offered a different view. He testified that the

drugs found in Schmitt’s residence belonged to him. This

first came up during direct examination in the government’s

case, when Wyatt said that he was present during the arrest

because he “had some meth [and] was getting [Schmitt]

high.” During cross-examination, defense counsel got Wyatt

to admit that the methamphetamine, marijuana, pills, and

digital scale found in Schmitt’s home all belonged to Wyatt.

The following day, after the government rested, the de-

fense called Det. Georgen back to the stand. The government

sought to elicit testimony from Det. Georgen during cross-

examination that Schmitt pled guilty to possessing the drugs

that were found on the scene—the same drugs Wyatt testi-

fied belonged to Wyatt. The government also moved to ad-

mit Schmitt’s record of conviction, arguing that the testimo-

ny and conviction record were admissible because the de-

fense “elicit[ed] the testimony that [the drugs] were Wyatt’s

No. 13-2894 5

drugs” and opened the door to admitting evidence of the

drug conviction. Defense counsel objected, asserting that

admission would unfairly prejudice Schmitt in violation of

Rule 403, and because defense counsel doubted the validity

of the document. After defense counsel confirmed that he

planned to talk about Wyatt’s admission to owning the

drugs during his closing argument, the judge allowed the

government to introduce Schmitt’s state conviction record

through Officer Georgen’s testimony.

The jury convicted Schmitt, and the judge at sentencing

applied a four-level enhancement to Schmitt’s base offense

level after finding that he possessed a firearm in connection

with another felony offense. The judge also rejected

Schmitt’s request for a two-point sentencing level reduction

for accepting responsibility. Schmitt was sentenced to 110

months’ imprisonment and three years of supervised re-

lease. He appeals both his conviction and sentence.

II. ANALYSIS

A. No Error in Admitting Firearm Evidence

Schmitt first argues that the district court erred in deny-

ing his motion to suppress the semiautomatic gun, related

exhibits including the gun case and ammunition, and testi-

mony regarding the gun because it was all fruit of an illegal

search. For this claim, “we review the district court’s legal

conclusions de novo, and its factual findings for clear error.”

United States v. Huart, 735 F.3d 972, 974 (7th Cir. 2013).

Schmitt’s position is that the officers had to stop their

search once they apprehended Schmitt because they only

possessed an arrest warrant. But the district court found that

Officer Pierce’s search of the basement, which Schmitt ar-

6 No. 13-2894

gues occurred after the officers apprehended him and Wyatt,

was permissible as a protective sweep. Schmitt now asserts

that the protective sweep doctrine did not give Officer Pierce

the authority to open the locked basement door and search

the basement, where the firearm was found in its case in

plain view, because the door locked from the outside and

anyone inside the basement could not get out to harm the

officers, and so officer safety was not a legitimate concern.

Maryland v. Buie, 494 U.S. 325 (1990), and its progeny

foreclose Schmitt’s arguments. “A ‘protective sweep’ is a

quick and limited search of premises, incident to an arrest,”

and can be conducted without a search warrant if the pur-

pose of the search is “to protect the safety of police officers

or others.” Id. at 327; United States v. Burrows, 48 F.3d 1011,

1015 (7th Cir. 1995). In light of the doctrine’s focus on safety,

this exception to the Fourth Amendment’s warrant require-

ment “is narrowly confined to a cursory visual inspection of

those places in which a person might be hiding.” Buie, 494

U.S. at 327. Therefore, officers may, “without probable cause

or reasonable suspicion, look in closets and other spaces

immediately adjoining the place of arrest from which an at-

tack could be immediately launched.” Id. at 334. But in order

to search beyond the immediate area, the officer must have

“articulable facts which . . . would warrant a reasonably

prudent officer in believing that the area to be swept harbors

an individual posing a danger to those on the arrest scene.”

Id. Whether the exception applies depends on whether the

search was reasonable under the circumstances. Burrows, 48

F.3d at 1015.

The dozen or so officers who entered Schmitt’s residence

fanned out to search for Schmitt and to ensure each other’s

No. 13-2894 7

safety. Officer Pierce testified that he entered the basement

with the same goal in mind—to ensure officers’ safety, or in

the words of the officer in Buie, “in case there was someone

else down there.” Id. at 328. We do not have to decide

whether the basement “immediately adjoin[ed] the place of

[Schmitt’s] arrest,” since the officers had reason to believe

that danger lurked behind the basement door. Specifically,

officers observing Schmitt’s house the previous day saw

several people enter Schmitt’s home. They knew Schmitt had

a violent criminal history, including arrests for resisting law

enforcement, pointing a firearm, and battery by means of a

deadly weapon. And they had information that a firearm

was present in the house. A reasonably prudent law en-

forcement official faced with this combination of facts would

be concerned about his safety when entering the home. See

Burrows, 48 F.3d at 1017 (finding search reasonable where

arrest was made in a violent area, the defendant had a vio-

lent history, and circumstances on the scene suggested that

violence may erupt).

Schmitt’s contention that he and Wyatt were arrested be-

fore Officer Pierce went into the basement does not change

our conclusion. There is no evidence on the record, other

than Schmitt’s word, to establish that he was arrested before

the sweep of his basement. Even if we assume that Schmitt is

right, we cannot say that the officers had identified Schmitt,

or that Officer Pierce was aware that Schmitt had been ap-

prehended before proceeding to the basement. Nor does the

fact that the basement door was locked alter the analysis. A

locked door would not protect the officers if a person with a

gun decided to kick the door down or shoot through it. See

Burrows, 48 F.3d at 1017 (finding protective sweep of four

bedrooms and closet near bathroom where defendant was

8 No. 13-2894

located reasonable even though officers had to force open

four locked doors). Law enforcement officers’ interest in en-

suring their safety “justifies their ensuring that the dwelling

does not harbor another person who is dangerous and who

unexpectedly could launch an attack.” Id. at 1015. Given that

several people were seen in the house the previous day, the

officers were faced with the possibility that someone else

was in the residence who presented a threat to them.

Moreover, the officers’ right to sweep the premises does

not end the moment the targeted individual is arrested. See

Buie, 494 U.S. at 336 (holding that the authority to conduct a

protective sweep persists as long as it takes to reasonably

complete the arrest and depart the premises); Burrows, 48

F.3d at 1017 (“[O]fficers ha[ve] the right to ensure their safe-

ty and the safety of everyone else in the area not only during

the arrest itself but also during the remainder of the time

that they [are] legally on the premises and its environs.”).

Here, Schmitt does not dispute that the entire incident—the

entry, arrest, sweep, and exit—occurred within five minutes,

and there is no evidence that the officers delayed the arrest

and exit process to further efforts to uncover contraband. See

Burrows, 48 F.3d at 1017 (finding the search reasonable in

part because execution of arrest warrant “took no more than

five minutes, an interval compatible with the officers’ legiti-

mate purpose”). The officers’ quick sweep of Schmitt’s home

and basement was permissible as a protective sweep because

it was conducted to apprehend the suspect and to ensure the

officers’ safety, and lasted no longer than reasonably neces-

sary. See Buie, 494 U.S. at 334-35 (noting that the sweep must

end when the reasonable suspicion of danger has been dis-

pelled); Burrows, 48 F.3d at 1017 (applying the reasonably

prudent officer test to uphold the sweep for safety). As the

No. 13-2894 9

search was reasonable and the gun was found in plain view,

the district court did not err in denying Schmitt’s motion to

suppress the firearm.

B. Admission of Drug Dealing, Conviction, and Drug

Possession Evidence

Schmitt also contests the district court’s denial of his mo-

tion to exclude evidence of his drug possession and drug

dealing under Federal Rule of Evidence 403. We review evi-

dentiary rulings, including the district court’s decision to

admit evidence of other bad acts, under an abuse of discre-

tion standard. United States v. Harris, 587 F.3d 861, 864 (7th

Cir. 2009). Under this standard, we will defer to the district

court unless no reasonable person could adopt its view. See

United States v. LeShore, 543 F.3d 935, 939 (7th Cir. 2008).

Even then, “reversal only follows if admission of the evi-

dence affected the defendant’s substantial rights”; in other

words, if the “average juror would find the prosecution’s

case significantly less persuasive without the improper evi-

dence.” United States v. Garcia-Avila, 737 F.3d 484, 490 (7th

Cir. 2013) (quotations omitted).

Schmitt argued that his alleged drug use, possession, and

dealing were not relevant to the firearm possession charges.

He also argued that “even if the court deems said evidence

to be relevant, the prejudicial effect . . . would greatly out-

weigh any probative value under Rule 403 of the Federal

Rules of Evidence,” and “would tend to confuse [and] in-

flame the jury.” The district court disagreed, finding the evi-

dence relevant. The court also concluded that the probative

value of the evidence that Schmitt was a drug dealer, that he

used drugs to purchase a firearm, and that marijuana, meth-

amphetamine, and pills were found in plain view in his resi-

10 No. 13-2894

dence when he was arrested, outweighed any prejudice

Schmitt would suffer from its admission. Schmitt renews his

arguments on appeal.

We begin our inquiry by focusing on whether the drug

evidence was relevant to an issue at trial and otherwise ad-

missible. Of course, evidence must be relevant to be admis-

sible, but not all relevant evidence is admissible. See Fed. R.

Evid. 402; United States v. Gomez, 736 F. 3d 845, 853 (7th Cir.

2014) (en banc). Evidence of a defendant’s other bad acts,

which is introduced only to show his propensity to commit

crimes, is inadmissible under Rule 404(b). Fed. R. Evid.

404(b); Harris, 587 F.3d at 864. But if that evidence is relevant

because it serves another purpose, “such as proving mo-

tive,” Fed. R. Evid. 402, 404(b), then it may be admitted so

long as the district court satisfies that the other purpose is

relevant through a “propensity-free chain of reasoning” at

issue in the case, that the evidence is relevant to that issue,

and that the probative value of the evidence is not substan-

tially outweighed by the evidence’s prejudicial effect. Gomez,

763 F.3d at 852, 856; see also United States v. Chapman, 765

F.3d 720, 722 (7th Cir. 2014) (stating that other-act evidence

“may be admitted for another purpose provided that the evi-

dence is relevant under a theory that does not rely on an in-

ference about the actor’s propensity” (emphasis in original));

United States v. Miller, 673 F.3d 688, 692 (7th Cir. 2012). So

this evidence may not be admitted as a matter of course, but

the court should instead consider “the ‘legitimacy of the

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

for it.’” Gomez, 763 F. 3d at 853 (quoting Miller, 673 F.3d at

692).

No. 13-2894 11

This determination is case-specific, and involves consid-

ering whether the proffered reason for the evidence is at is-

sue in the trial and whether the proffered evidence is rele-

vant to that permissible purpose. See Miller, 673 F.3d at 696

(recognizing that “Rule 404(b) does not provide a rule of au-

tomatic admission whenever bad acts evidence can be plau-

sibly linked to ‘another purpose’ … listed in the rule”). It is

also helpful for the trial court to “look[] beyond the purposes

for which the evidence is being offered and consider[] what

inferences the jury is being asked to draw” to determine

whether “the jury is essentially being asked to rely on the

evidence as proof of the defendant’s propensity to commit

the charged offense” or on some other logical and important

connection between the other bad act evidence and the

charged criminal conduct. United States v. Lee, 724 F.3d 968,

978 (7th Cir. 2013).

The district court’s conclusion that the drug evidence

was “inextricably intertwined” with the charged act and

“fill[ed] the story” runs counter to our recent precedent and

is not dispositive on the issue of relevance or the ultimate

admissibility of the drug evidence. In the wake of several

cases in which we expressed our “criticism of [such] tongue-

twisting formulas,” see United States v. Edwards, 581 F.3d 604,

608 (7th Cir. 2009); United States v. Harris, 536 F.3d 798, 807

(7th Cir. 2008); United States v. Taylor, 522 F.3d 731, 735 (7th

Cir. 2008) (finding the “inextricably interwoven” test unsat-

isfactory because its “vagueness invites prosecutors to ex-

pand the exceptions to the rule beyond the proper bounda-

ries of the exceptions”), we definitively concluded that “re-

sort to inextricable intertwinement is unavailable when de-

termining a theory of admissibility.” United States v. Gorman,

613 F.3d 711, 719 (7th Cir. 2010). Instead, we focus our analy-

12 No. 13-2894

sis on the government’s argument, and the district court’s

additional reasoning, that the evidence was relevant to es-

tablish Schmitt’s motive for possessing a gun. Because mo-

tive is an “express exception[] to the Rule 404(b) bar[,] there

is no need to spread the fog of ‘inextricably intertwined’

over [it].” Harris, 536 F.3d at 807 (quoting Taylor, 522 F.3d at

735); Taylor, 522 F.3d at 735 (recognizing that “[a]lmost all

evidence admissible under the ‘inextricably interwoven’

doctrine is admissible under one of the specific exceptions in

Rule 404(b)”).

The issue of motive was relevant at trial to establish that

Schmitt possessed the firearm. In order to convict on the fel-

on-in-possession charge, the government had to prove that

(1) Schmitt was a felon, (2) he possessed a firearm, and (3)

the firearm had traveled in interstate commerce. See Harris,

587 F.3d at 866. Schmitt stipulated that he was a felon and

that the firearm traveled in interstate commerce before it

was found in his basement, so the only element at issue was

whether he possessed the firearm. For the purposes of 18

U.S.C. § 922(g)(1), possession can be actual or constructive.

Id. Although there was evidence that Schmitt actually pos-

sessed the gun when he purchased it, he was not caught

with the gun red-handed, so the government’s case was

strengthened by proof that Schmitt constructively possessed

the gun. “Constructive possession is a legal fiction whereby

a person is deemed to possess contraband even when he

does not actually have immediate, physical control of the ob-

ject.” United States v. Griffin, 684 F.3d 691, 695 (7th Cir. 2012).

Establishing that the defendant had exclusive control over

the property where the firearm is found can be sufficient to

show constructive possession, id., but the evidence showed

that Schmitt shared the residence with his girlfriend. In

No. 13-2894 13

proving constructive possession in the context of a joint resi-

dence, “mere proximity to contraband is not

enough. . . . Rather, ‘proximity coupled with evidence of

some other factor—including connection with [an impermis-

sible item], proof of motive, a gesture implying control,

[among others] is enough to sustain a guilty verdict.’” Id. at

696 (quoting United States v. Morris, 576 F.3d 661, 668 (7th

Cir. 2009)) (emphasis added). Since proof of motive is one

way to establish constructive possession in joint residence

cases, motive was at issue in Schmitt’s trial.

And the evidence proffered by the government was rele-

vant to motive. The testimony that Schmitt was a drug deal-

er and that drugs were found in his home when he was ar-

rested was relevant to suggest to the jury why he would

have a firearm. See Fed. R. Evid. 401 (evidence is relevant if it

tends to make a fact that is of consequence in determining

the action more probable than it otherwise would be); United

States v. Elder, 466 F.3d 1090, 1091 (7th Cir. 2006) (recogniz-

ing that “drug dealers often use guns and knives to protect

their operations”). The drug dealing evidence could help

convince a reasonable jury that Schmitt possessed the fire-

arm found in his home, a fact that the government had to

prove to secure his conviction for being a felon in possession

of a firearm. See 18 U.S.C. § 922(g)(1); see also United States v.

Lloyd, 71 F.3d 1256, 1264 (7th Cir. 1995) (finding “motive to

possess a firearm” relevant in felon-in-possession prosecu-

tion “because it ma[de] possession more probable than it

would be without the evidence” (internal quotations, cita-

tions, and alterations omitted)).

Moreover, introducing the evidence as indicative of

Schmitt’s motive provided a “propensity-free chain of rea-

14 No. 13-2894

soning” for the evidence’s admission. See Gomez, 763 F.3d at

856. Looking to the inferences the jury was being asked to

draw, it becomes clear that the government used the other

bad acts evidence to establish why Schmitt would have a

gun, and not simply to suggest that Schmitt engaged in illicit

conduct in the past and so must have had the propensity to

do it again. By introducing evidence that Schmitt was a drug

dealer and had large quantities of drugs in his home when

he was arrested, the government was not asking the jury to

believe that because Schmitt was the type of person who

would break the law once, he must be the type of person

who would break the law again. That is the inference that

Rule 404(b) was designed to prevent. See United States v.

Cunningham, 103 F.3d 553, 556 (7th Cir. 1996). Instead, the

government was asking the jury to use the evidence to find

that Schmitt had a gun because he was a drug dealer; or in

other words, that the gun was intended to further his drug

dealing activities. That is a proper inference for the jury to

draw from other-acts evidence. See United States v. Caldwell,

423 F.3d 754, 759 (7th Cir. 2005) (finding evidence admissible

even if “it portrayed him as a wealthy drug dealer” since

“other act evidence is admissible under 404(b) to establish

proof of motive”); Lloyd, 71 F.3d at 1264 (affirming admis-

sion of evidence of gang affiliation, assassination attempts

made on defendant’s life, and his use of armed guards to

show motive in felon-in-possession prosecution); see also

Cunningham, 103 F.3d at 556 (finding that propensity and

motive evidence do not overlap when the other-act evidence

shows a “desire for pecuniary gain or for some other ad-

vantage to which the crime is instrumental in the sense that

it would not be committed if the advantage could be ob-

tained as easily by a lawful route”). The evidence that

No. 13-2894 15

Schmitt exchanged drugs for the gun is another example of

him dealing in drugs, and was similarly admissible to estab-

lish motive.

The next question is whether Rule 403 applied to keep

the evidence out, because “even if other-act evidence is rele-

vant without relying on a propensity inference, it may be ex-

cluded under Rule 403.” Gomez, 763 F.3d at 856. That rule

allows for the exclusion of relevant evidence when its proba-

tive value is substantially outweighed by the danger of un-

fair prejudice or confusing the jury. See Fed. R. Evid. 403.

“Evidence is unfairly prejudicial if it induces the jury to de-

cide the case on an improper basis rather than on the evi-

dence presented.” United States v. Haldar, 751 F.3d 450, 458

(7th Cir. 2014) (quoting United States v. Conner, 583 F.3d 1011,

1025 (7th Cir. 2009)). The danger of admitting evidence from

which the jury could draw a propensity inference is that, re-

gardless of the reason the evidence was actually admitted,

the jury might still draw that improper inference. See Miller,

673 F.3d at 696 (“Almost any bad act evidence simultaneous-

ly condemns by besmirching character and by showing one

or more” of the purposes listed in Rule 404(b) (quoting Unit-

ed States v. Beasley, 809 F.2d 1273, 1279 (7th Cir. 1987) (em-

phasis in original)). That inherent risk of prejudice against

the defendant is unavoidable, and excluding other-acts evi-

dence on that basis would make it nearly impossible to ever

admit such evidence. But there are steps the district court

can take to minimize the risk. In determining “whether that

risk is sufficiently outweighed by other factors,” as the dis-

trict court must do, see Gomez, 763 F.3d at 857, the court

should consider whether the fact to which the evidence per-

tains is seriously contested and whether a jury instruction

could cure the potential prejudicial effect. Id. at 857, 860;

16 No. 13-2894

Harris, 587 F.3d at 866 (citing United States v. Jones, 455 F.3d

800, 809 (7th Cir. 2006), for its observation that “we have

held that such instructions are effective in reducing or elimi-

nating any possible unfair prejudice from the introduction of

Rule 404(b) evidence”).

The danger of unfair prejudice did not substantially out-

weigh the probative value of the drug evidence in this case

as it was highly probative. The government was required to

prove that Schmitt possessed the firearm, and Schmitt did

not concede the point. Cf. Old Chief v. United States, 519 U.S.

172, 191 (1997) (finding that a defendant’s stipulation to a

fact at issue makes facts that tend to prove the stipulated fact

no longer probative). The judge also instructed the jury of

the limited way that it could consider the drug evidence,

stating that it was relevant only in deciding whether Schmitt

had the intent and “a motive to possess the firearm charged

in the indictment.” And there was not an especially dispro-

portionate risk that “the emotions of the jury [would] be ex-

cited to irrational behavior.” See United States v. Loughry, 660

F.3d 965, 974 (7th Cir. 2011). The evidence of Schmitt’s al-

leged drug dealing and of the drugs found in his home was

admissible under Rule 404(b).

Prior convictions, however, are highly prejudicial, and

the district court did not abuse its discretion in initially ex-

cluding evidence of Schmitt’s conviction for possessing the

drugs found in his home. The government initially complied

with that ruling, but it sought to admit testimony and

Schmitt’s conviction record showing that Schmitt pled guilty

to possessing those drugs after Wyatt testified that the drugs

found in the house were his. Schmitt has called foul, but the

government responds that Schmitt “opened the door” to the

No. 13-2894 17

evidence regarding his state court convictions when he

asked Wyatt, on cross-examination, whether the drugs in the

house belonged to Wyatt. A defendant “opens the door” to

otherwise inadmissible evidence when he affirmatively and

“genuinely place[s] at issue the specific matter that the evi-

dence is being offered to establish.” Lee, 724 F.3d at 977; see

United States v. Touloumis, 771 F.2d 235, 241 (7th Cir. 1985)

(“[A] party cannot be permitted on the one hand to intro-

duce evidence that appears favorable to his argument and

then complain, after the circumstances are fully developed,

because the evidence becomes detrimental to his cause.”).

The wrinkle in the government’s argument is that the

implication that some of the drugs found on the scene were

Wyatt’s was first raised during direct examination when

Wyatt was being questioned by the government.

Q: Why would you go over [to Schmitt’s house]?

A: Usually get him high.

…

Q: Okay. Do you recall what you and Mr. Schmitt

were doing just prior to the police coming in?

A: Yeah. I just got there, you know, just got there, had

some meth, so I broke it out, was getting him

high….

Tr. Vol. I – 100-01.

Defense counsel seized on this opportunity during his

cross-examination. Even though the methamphetamine was

the only drug mentioned during direct, defense counsel

asked about the marijuana and pills as well. He pointed to

specific exhibits of the drugs found in the home and secured

18 No. 13-2894

Wyatt’s admission that they all belonged to him. Wyatt even

said that he had told officers the day that he and Schmitt

were arrested that the drugs and scale were his. The gov-

ernment argued that this “opened the door” not only to tes-

timony that Schmitt pled guilty to possession of those same

drugs, but to admitting the record of conviction as well.

Over defense counsel’s Rule 403 objections, the judge al-

lowed both the testimony and admittance of the conviction

record, finding the government “entitled to put that evi-

dence in, considering the defense posture in this case they’re

going to indicate that they were not his drugs, Mr. Schmitt’s

drugs; they were Mr. Wyatt’s drugs …. We are trying to seek

the truth here.”

The door that was opened by Wyatt’s testimony was

cracked open through direct examination of the govern-

ment’s own witness. Government officials dealing with wit-

nesses who may later become uncooperative would be wise

to secure their grand jury testimony while they are still co-

operating. Had the government done so, it would have been

free to impeach Wyatt by introducing evidence of his grand

jury testimony that would have been substantive evidence

under Rule 801(d)(1)(A). See Fed. R. Evid. 801(d)(1)(A) advi-

sory committee note (stating that the rule protects a party

from “the ‘turncoat’ witness who changes his story on the

stand and deprives the party calling him of evidence essen-

tial to his case”). Just because the government fails to pre-

pare for a scenario in which Wyatt would change his story

does not give it free rein to bolster its case by whatever

means possible.

But that is not the end of the story. Although the gov-

ernment cracked open the door, Schmitt swung it wide open

No. 13-2894 19

by giving Wyatt an opportunity to claim that all the drugs

were his, which brought motive into “meaningful[] dispute[]

by the defense.” See Miller, 673 F.3d at 697; Gomez, 763 F.3d

at 858-60. During his testimony as part of the government’s

direct examination, Wyatt only claimed that the metham-

phetamine found on the scene belonged to him. But the

quarter gram of methamphetamine recovered when the pair

was arrested was, as Det. Georgen testified, an amount a us-

er would have, so Wyatt’s admission that those drugs were

his did not contradict the government’s theory that Schmitt

had the gun to protect his drug dealing. The marijuana,

which was found in dealer quantities, established Schmitt’s

motive for having a gun, and it was during Schmitt’s cross-

examination of Wyatt, not on direct examination, that Wyatt

claimed that the marijuana was his as well.

Q: Beside that cellphone is—what’s that … white

thing?

A: It’s probably some of the meth I brought that we

was smoking. …

Q: You brought it there? That’s yours?

A: Yes, sir.

…

Q: You were wearing that coat [where the pills and

scale were found], weren’t you, when you ar-

rived?

A: Yeah, that’s my coat.

…

Q: Now, that marijuana also belonged to you, did it

not?

20 No. 13-2894

A: Yes, sir. I even told the police that day that.

Tr. Vol. I – 107-08.

Through questioning Wyatt about the marijuana, Schmitt

put on affirmative evidence to deny that he possessed the

marijuana. This was relevant to convince the jury that he

was not dealing drugs out of his house at the time that the

gun was found and did not have a motive to have a gun. By

putting on evidence regarding who possessed the drugs in

the house and disputing motive, Schmitt “opened the door”

to evidence that he was convicted of possessing the marijua-

na. See United States v. Miller, 673 F.3d 688, 697 (7th Cir. 2012)

(finding that a permissible purpose for admitting other-acts

evidence “becomes more relevant, and evidence tending to

prove [it] becomes more probative, when the defense actual-

ly works to deny [it], joining the issue by contesting it”);

United States v. Douglas, 408 F.3d 922, 929 (7th Cir. 2005)

(“When a defendant ‘opens the door’ … by offering … tes-

timony inconsistent with the facts underlying an earlier con-

viction, the government may inquire into the details of the

conviction.”); see also United States v. Senffner, 280 F.3d 755,

763 (7th Cir. 2002) (defendant opened the door when he in-

troduced misleading evidence and the government was al-

lowed to rebut it). Before admitting the evidence of Schmitt’s

conviction, the trial judge considered the fact that defense

counsel planned to highlight Wyatt’s admissions in his clos-

ing argument, a fact that strengthened the government’s case

for bringing in the convictions. See Manuel v. City of Chicago,

335 F.3d 592, 597 (7th Cir. 2003) (noting that after the door is

opened, the district court must “weigh the need for and val-

ue of curative admissibility of previously inadmissible evi-

dence against … prejudice”). The district court did not err in

No. 13-2894 21

admitting evidence that Schmitt was convicted of possessing

the drugs in his home in light of Schmitt’s attempt to deny

that he owned the drugs and therefore had a motive to have

the firearm. United States v. Anifowoshe, 307 F.3d 643, 649 (7th

Cir. 2002) (“[W]hen a party questions a witness on a subject,

… the party cannot complain on appeal if the opposing par-

ty subsequently introduces evidence on the same subject.”).

Of course, the government is not free to introduce all

sorts of evidence simply because the defense opened the

door to one piece of evidence. Defense counsel did not open

the door to evidence of who possessed the methampheta-

mine in the house. As we mentioned, Wyatt’s admission to

possessing those drugs came out during the government’s

direct examination. So the government was in no position to

cure a problem that its own witness created on direct exami-

nation by impeaching the witness with Schmitt’s conviction

for the methamphetamine. That would be extremely preju-

dicial to Schmitt, since he was not the one testifying and did

not open the door to that evidence. See Fed. R. Evid. 609 (al-

lowing the government to impeach a witness by evidence of

a criminal conviction, but subject to Rule 403). The defense,

through its questioning of Wyatt, contested motive and

made evidence going to that issue more probative. But the

defense’s questioning did not make the issue of who pos-

sessed the user quantity of methamphetamine that was

found in Schmitt’s home any more relevant. Since infor-

mation that Schmitt was convicted of possessing the meth-

amphetamine was part of the conviction record, but was not

relevant for any purpose other than to impeach the govern-

ment’s witness, the district court should have redacted the

portion of the conviction record pertaining to the metham-

phetamine, or simply allowed the government to read the

22 No. 13-2894

relevant portion of the conviction into the record. But the

prosecution’s case would not have been “significantly less

persuasive had the improper evidence been excluded.”

Loughry, 660 F.3d at 975. There was already ample evidence

before the jury to suggest that Schmitt was a drug dealer,

which could lead a reasonable juror to infer that he had a

reason to have a firearm. Being a user of drugs does not nec-

essarily carry the same connotation, so removing the addi-

tional evidence that Schmitt used methamphetamine and

pills would not have made the government’s case that he

possessed the firearm “significantly less persuasive.” So we

find that the error in admitting it was harmless.

C. No Error in Schmitt’s Sentence

Schmitt’s final argument is that the district court erred in

determining his offense level for sentencing purposes. Our

review of the district court’s application of sentencing guide-

lines is de novo, but we review for clear error when the ap-

plication of a sentencing guideline is based on factual find-

ings. United States v. Meece, 580 F.3d 616, 620 (7th Cir. 2009).

Schmitt argues that the district court erred in applying a

four-level enhancement to his offense level under United

States Sentencing Guideline § 2K2.1(b)(6)(B) because the gun

was not used or possessed “in connection with” another fel-

ony offense because the firearm was only in his home for a

day and was not readily accessible in the basement. “Review

of a district court’s sentencing enhancement under U.S.S.G. §

2K2.1(b)(6) is a mixed question of fact and law that we re-

view for clear error.” Id. at 620-21 (quoting United States v.

Markovitch, 442 F.3d 1029, 1031 (7th Cir. 2006) (internal alter-

ations omitted)).

No. 13-2894 23

United States Sentencing Guideline § 2K2.1(b)(6)(B) calls

for a four-point enhancement to a defendant’s base offense

level if the defendant “[u]sed or possessed any firearm or

ammunition in connection with another felony offense; or

possessed or transferred any firearm or ammunition with

knowledge, intent, or reason to believe that it would be used

or possessed in connection with another felony offense.”

U.S.S.G. § 2K2.1(b)(6)(B). The second clause of the provision

refers to a defendant’s actions which facilitate another per-

son’s commission of a felony offense, see United States v.

Lang, 537 F.3d 718, 721 (7th Cir. 2008), which is not at issue

here. So we are left to consider whether Schmitt used or pos-

sessed the AR-15 assault rifle in connection with another fel-

ony offense.

There are two ways to approach this question. The en-

hancement would be proper if Schmitt “used or possessed”

the firearm in connection with (1) his general drug dealing

activities in his home or (2) the purchase of the firearm,

which he allegedly bought with drugs. Because we find that

Schmitt possessed the gun in connection with the drug deal

he allegedly executed to buy the firearm, we need not decide

whether the firearm was close enough in proximity to the

drugs or in a readily accessible place sufficient to raise the

inference that Schmitt had the firearm “in connection with”

his general drug dealing activities. See U.S.S.G. §

2K2.1(b)(6)(B), application note 14 (clarifying that the subsec-

tion applies “in the case of a drug trafficking offense in

which a firearm is found in close proximity to drugs, drug-

manufacturing materials, or drug paraphernalia”).

24 No. 13-2894

The district court did not clearly err in applying the en-

hancement because the preponderance of the evidence sup-

ported a finding that Schmitt possessed the firearm in con-

nection with another felony offense, namely selling drugs to

obtain the firearm. There was unrebutted evidence that

Schmitt intentionally purchased the firearm in exchange for

cash and methamphetamine. While that conduct does not

constitute “use” under the provision, see Lang, 537 F.3d at

720-21 (finding that exchanging a gun for drugs was proper-

ly characterized as “use” of firearm for purposes of §

2K2.1(b)(6)(B) enhancement, but clarifying that buyer of gun

does not “use” the firearm in conducting the transaction),

the district court did not err in finding Schmitt’s actions con-

stituted “possession” of the firearm in connection with a fel-

ony offense.

We have previously looked to 18 U.S.C. § 924(c)(1) to

guide our understanding of § 2K2.1(b)(6)(B), see Lang, 537

F.3d at 720 (to define “use”); Wyatt, 102 F.3d at 247 (to define

“in connection with”), and it is similarly illustrative here.

That statute prescribes an increased penalty for “any person

… who, in furtherance of” a drug trafficking crime or crime

of violence “possesses a firearm.” 18 U.S.C. § 924(c)(1). In

that context, we have said that “when a defendant receives a

gun for drugs, he takes possession of the firearm in a way

that furthers, advances, or helps forward the distribution of

drugs.” United States v. Doody, 600 F.3d 752, 755 (7th Cir.

2010) (internal quotations and alterations omitted). So too

here. When Schmitt exchanged the gun for drugs, he took

control of it in a way that was intentionally related to the

drug trafficking offense. See Wyatt, 102 F.3d at 247 (the gov-

ernment must only prove “by a preponderance of the evi-

dence that the firearm served some purpose with respect to

No. 13-2894 25

the felonious conduct” to meet the provision’s “in connec-

tion with” requirement); see also Smith v. United States, 508

U.S. 223, 224 (1993) (interpreting § 924(c)(1)’s “in relation to”

language to require that the firearm’s presence “cannot be

the result of accident or coincidence”). The evidence sug-

gests that Schmitt’s entire purpose in meeting with

Hutchinson and his friend was to purchase the firearm, so

the firearm’s presence was not “merely coincidental to [felo-

nious] conduct.” See Wyatt, 102 F.3d at 247. Schmitt’s sale of

illicit drugs facilitated his purchase and possession of the

AR-15 rifle, and we cannot say that the court’s determination

that the enhancement applied was clearly erroneous.

Schmitt ends with his argument that the district court

erred in rejecting his request for a two-level sentence reduc-

tion for accepting responsibility. Schmitt fails to meet his

burden of showing that the district court’s decision was er-

roneous. See Meece, 580 F.3d at 620-21. In asking for leniency,

Schmitt admitted at sentencing that he possessed the gun and

used drugs, and suggested that he only went to trial because

the government did not give him a good plea deal. Though

it is to Schmitt’s credit that he admitted to some of his ac-

tions, “[o]rdinarily a defendant who chooses to go to trial

and force the government to prove his guilt is not eligible to

receive a sentence reduction for acceptance of responsibil-

ity.” United States v. Williams, 202 F.3d 959, 962 (7th Cir.

2000). We see no reason to treat this as an extraordinary case.

See id. (finding that the “Guidelines contemplate an excep-

tion for defendants who proceed to trial solely to challenge

… the constitutionality of a statute” or other question of

law). Schmitt’s admission was too little too late and the court

did not err in denying his request for a reduction based on

acceptance of responsibility. See U.S.S.G. § 3E1.1, application

26 No. 13-2894

note 1(H) (noting that a factor in determining if defendant

qualifies for the reduction is “the timeliness of the defend-

ant’s conduct in manifesting the acceptance of responsibil-

ity”).

III. CONCLUSION

Kenneth Schmitt’s conviction and sentence are AFFIRMED.