United States v. Edward B. Betts, Randy J. Lane, and Judy K. Lane

CUDAHY, Circuit Judge,

concurring.

I am reluctant to write separately because I agree without reservation with almost all of the majority’s thoughtful and thorough opinion. But I find the issue of the admissibility of the sixteen pounds of marijuana and related paraphernalia against the Lanes to be perplexing.

The majority concludes that the admission of that evidence is erroneous. If that is the case, I am troubled by the conclusion that the error is harmless. The Supreme Court has, of course, made clear that an appellate court may treat an error as harmless where the evidence of the defendant’s guilt, error aside, is overwhelming. See Milton v. Wainwright, 407 U.S. 371 , 92 S.Ct. 2174 , 33 L.Ed.2d 1 (1972). The point is that where the untainted evidence of guilt is so overwhelming that a jury couldn’t help but convict, it is extremely doubtful that any error that may have been committed made any difference. The majority here finds the independent evidence of guilt to be sufficiently overwhelming to render the error harmless. See Maj.Op. at 760-61. This troubles me, because it seems to me that in certain cases courts are willing to conclude that, as long as they are convinced that the defendant is guilty, any error is harmless. Cf. Stephens v. Miller, 13 F.3d 998, 1001-1002 (7th Cir.1994) (Cudahy, J., dissenting). As a result, the expansive code of rights afforded criminal *766 defendants — designed to assure that they be tried fairly — becomes as elusive as “the grapes of Tantalus, since the equally expansive harmless error rule in most cases prevents a criminal defendant from obtaining any benefit from the code.” United States v. Pallais, 921 F.2d 684 (7th Cir.1990).

Where evidence is erroneously admitted, a new trial is required unless “when all is said and done, the [appellate court’s] conviction is that the error did not influence the jury, or had but very slight effect.” Kotteakos v. United States, 328 U.S. 750, 764 , 66 S.Ct. 1239, 1247 , 90 L.Ed. 1557 (1946). Further, our inquiry “cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Id.

In the context of this case, the stash of marijuana, at least to my mind, is quite probative and lends a solid plus to the prosecutor’s case. But while this is a close question, I ultimately agree with the majority that the independent evidence of guilt was sufficiently overwhelming to find — in this case — that the error was harmless.

But, by the same token, I harbor some doubt whether the introduction of this evidence should even be seen as erroneous in the first instance. The subject of Rule 404 is, of course, character evidence. The purpose of Rule 404(b) is to prohibit the use of other bad acts evidence to prove the bad character of the accused and his or her resulting propensity to do bad things. And the rule excludes the use of evidence of other crimes only where those crimes would be used to prove a person’s character. But such evidence is admissible when introduced in order to prove other facts and propositions, some of which are enumerated in the rule, which do not involve character.

Here the district court admitted the marijuana stash under the omnibus category of “knowledge and intent”. The theory is that the government has the burden of proving that the defendants knew that what they were importing was marijuana. So if criminal defendants are laboring under the misapprehension that the cargo in their speed boats (that they were smuggling into the United States from South America in the still of night) was a giant shipment of oregano, then they lack the requisite “knowledge and intent,” and cannot be convicted of a drug offense of which intent is an element. The circumstances of this case make it similarly obvious that the defendants knew the nature of their cargo, and in any event are not claiming that they lack knowledge or intent. While I have earlier expressed my reservations about this entire theory, especially in cases where “knowledge and intent” are not disputed, see United States v. Kramer, 955 F.2d 479, 492-93 (7th Cir.1992) (Cudahy, J., concurring), cert. denied, — U.S. -, 113 S.Ct. 595 , 121 L.Ed.2d 533 (1992), the law in this circuit clearly embraces it.

Thus, to prove that the defendants knew what marijuana was, the government showed the jury that they had sixteen pounds of it in their house in 1992. The majority opinion concludes that this evidence ought to have been excluded because it came to light such a long time after the charged conspiracy. The majority’s theory is that, unlike prior convictions for drug possession, what the defendants possessed after the conspiracy is not probative (or at least less probative) of what they knew or intended during the conspiracy.

I do not find that distinction compelling. The theory suggests that the defendants may have learned what marijuana was in the eighteen months between the date of the conspiracy and the time the drugs were found in their house. Compare 2 Jack N. Weinstein & Margaret A Berger, Weinstein’s Evidence, ¶ 404[08] (1992) (“It does not matter whether the proffered act occurred prior or subsequent to the charged crime so long as relevancy to the consequential fact is shown.”). But even if the majority is correct in concluding that this evidence is inadmissible to prove knowledge and intent, it is still admissible so long as it is not being used to prove the defendants’ bad character and their resulting propensity to trade in drugs.

On the facts of this case this evidence may tend to show an ongoing business, which at one time involved the charged conspiracy. And it seems to me that evidence that some *767 one’s drug trafficking is his or her principal occupation may be quite probative of whether he or she was a participant in a particular conspiracy, apart from generalized concerns about the person’s “character”. As the Second Circuit noted in United States v. Viserto, 596 F.2d 531, 537 (2d Cir.), cert. denied, 444 U.S. 841 , 100 S.Ct. 80 , 62 L.Ed.2d 52 (1979), “narcotics is a business,” and evidence that the defendants were in the business at one time is relevant to show that they were in it at another. In so holding, the Second Circuit insisted that showing that a defendant is engaged in the drug trade “is not a mere showing of bad character.” Id. See also United States v. Carson, 702 F.2d 351, 369 (2d Cir.), cert. denied, 462 U.S. 1108 , 103 S.Ct. 2456 , 2457, 77 L.Ed.2d 1335 (1983). The majority opinion itself states almost as much, indicating that the Lanes’ possession of the sixteen pounds of marijuana and related paraphernalia “certainly suggests that they may have continued or resumed marijuana distribution through ... channels [other than the charged conspiracy].” Maj.Op. at 758.

The question I would pose then is whether the continuing conduct of the narcotics business is precisely the same thing as having a drug-oriented character and a resulting personal propensity for narcotics trafficking. To my way of thinking there may be a difference between introducing evidence of a prior rape to prove that a person has a propensity to commit rape (which is plainly forbidden by Rule 404(b)), and showing that a person, without particular reference to his character, is engaged in conducting a drug business on a continuing basis, first with one set of conspirators and later with others. While the rule forbids the use of evidence of a defendant’s “character” as a rapist to infer that he committed the rape in question, perhaps it is a different matter to ask the jury to infer from the defendant’s being in a continuing illegal business that he participated in the conspiracy in question. At least, the use of “continuing illegal business” evidence seems to me somehow fairer than a mere showing of character and the resulting propensity to commit a crime.

The distinction between evidence of drugs as a “business” and rank character evidence is admittedly a fine one — and perhaps a nonexistent one. Ultimately, the distinction may be too fine to allow the admission of the marijuana stash in this case. But because I (reluctantly) agree with the majority that any error in this case would have been harmless, I do not feel the need to resolve this question with greater certainty.