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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BILLY L. HICKS, Defendant-Appellant.

No. 09-3608.

A jury found Billy Hicks guilty of one count of knowingly distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). However, because we find that the district court improperly allowed evidence of Hicks’s prior drug convictions in violation of Federal Rule of Evidence 404(b), we vacate his conviction and remand for a new trial.


On July 17, 2006, Billy Hicks had a telephone conversation with Anthony Hurd about the possibility of Hurd purchasing a large amount of crack cocaine. What Hicks did not know was that Hurd was a confidential informant who called Hicks at the direction of the Federal Bureau of Investigation (“FBI”). The conversation was recorded, and the two discussed meeting up the next day for the exchange. During the conversation, neither spoke specifically about drugs; instead, the entire conversation took place in code .

On the day of the exchange, Hurd and Hicks had a few other telephone conversations, all of which were recorded. During those conversations, Hicks mentioned that he wanted to meet Hurd at a location closer to where he was staying because Hicks did not want to “ride through town with all that shit.”

Hurd drove to the location with Kareem Jacox, an FBI agent acting undercover as a drug dealer, who waited in the car during the exchange. There were also other law enforcement surveillance cars and a helicopter monitoring the area. Hurd had been given $2,500 cash from the FBI to purchase five ounces of crack cocaine and was wearing a body wire to record any conversations.

When Hurd returned to the car he had four ounces of crack cocaine. No law enforcement officer saw what went on in the house.

After the FBI realized that Hurd had not received the expected amount of crack cocaine, Jacox called Hicks to arrange for a pick-up of the remaining ounce. They planned to meet on August 1 at a local restaurant.

Jacox went to the restaurant at the agreed time and received new instructions from Hicks to instead meet him at a drugstore. As Jacox drove from the restaurant to the drugstore, he believed he was being followed by individuals doing counter surveillance for Hicks. His suspicions grew stronger when he arrived at the store and saw a man who stared at him for approximately fifteen minutes while talking on a cell phone. Jacox also noticed other people that he believed were watching him. Fellow undercover FBI agents monitoring the meeting also noticed that Jacox had been followed and that there were several individuals doing counter surveillance. At some point, the FBI terminated the exchange based on these safety concerns.

The government charged Hicks with one count of distributing more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Hicks pleaded not guilty and went to trial in July 2009.

Approximately three weeks before trial, the government filed a motion to introduce evidence of Hicks’s two prior drug convictions under Federal Rule of Evidence 404(b) to prove Hicks’s knowledge of the drug industry and his intent to distribute crack cocaine during the July 2006 sale to Hurd. One of the convictions was for selling cocaine in 1998. The other was a 2002 conviction for cocaine possession.

Hicks opposed the motion, but the district court granted it, finding that the convictions were admissible to show Hicks’s knowledge and lack of mistake.

During trial, over defense counsel’s objection, the government introduced several audio recordings of the telephone conversations between Hicks and Hurd (who was murdered before trial) and introduced testimony about the alleged counter surveillance observed at the drugstore on August 1. The court also allowed the government to introduce evidence of Hicks’s two prior drug convictions at the close of its case-in-chief over Hicks’s renewed objection.

The court gave a limiting instruction explaining to the jury that the prior convictions could be considered “only on the questions of the [Hicks’s] knowledge, intent, and lack of mistake.”

The government then rested and the court released the jury. The court asked Hicks’s attorney to “take the time necessary to talk with Mr. Hicks and decide on the entrapment” defense. After the recess, defense counsel told the court, “After a long discussion with my client . . . my client wishes to take the stand, and we are going to proceed with the entrapment defense.”

Hicks then testified. He acknowledged his previous convictions, but stated that he was a changed man who worked multiple jobs to provide for his young son and girlfriend. He testified that Hurd had been pressuring him to get back into selling drugs and that Hurd became increasingly aggressive, telling Hicks that he “owed some people some money” and that he was “desperate.” According to Hicks, he finally relented in July 2006 when he agreed to set up the drug deal for Hurd. Hicks maintained that he did not sell Hurd any drugs, but instead claimed to have only set up the exchange between Hurd and an acquaintance.

Hicks’s girlfriend, Tanya Lear, also testified on his behalf, describing his hardworking nature and volunteer efforts.

The jury found Hicks guilty of distributing more than 50 grams of crack cocaine. Hicks was sentenced to a term of life imprisonment. He now appeals various aspects of his conviction and requests a new trial.


Prior Unrelated Drug Convictions Improperly Admitted

Hicks next contends that the district court erred by allowing his prior convictions for cocaine dealing and possession to be admitted during the government’s case-in-chief. We review evidentiary rulings made over a defendant’s objections for abuse of discretion. United States v. Avila, 557 F.3d 809, 819 (7th Cir. 2009).

If such an error has occurred, reversal is required if the error affects a defendant’s “substantial rights.” Fed. R. Crim. P. 52(a). In determining whether a nonconstitutional error affects substantial rights, “our task is to gauge what effect the error had or reasonably may be taken to have had upon the jury’s decision.” United States v. Zapata, 871 F.2d 616, 622 (7th Cir. 1989).

Rule 404(b) provides that evidence of other acts is inadmissible “to prove the character of a person in order to show action in conformity therewith” but may be admissible for other purposes, such as proof of motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident.

In determining whether evidence was properly admitted under Rule 404(b), the court considers 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, as required by Rule 403. United States v. Harris, 587 F.3d 861, 864-65 (7th Cir. 2009).

We must first determine whether the convictions are directed toward establishing a matter in issue other than Hicks’s propensity to sell drugs.

The district court admitted the convictions to establish knowledge and lack of mistake. Whether the prior convictions are relevant to the issue of knowledge or lack of mistake turns on whether they “tend to make the existence of any fact that is of consequence to the determination of the action more probable or less probable.” Fed. R. Evid. 401.

As to knowledge, the government contends that Hicks’s prior convictions tend to show that Hicks knew about the “illicit nature” of the drug distributing business. But this argument is a non-starter because Hicks never claimed that he did not know that selling crack cocaine was illegal or that he did not know how to sell drugs.

The government also contends, relying on United States v. Hatchett, 245 F.3d 625, 643 (7th Cir. 2001), that the convictions were admissible to show that Hicks was a “knowing participant” instead of an “unwitting bystander” to the drug deal.

Hatchett is distinguishable from this case. In Hatchett, the evidence was relevant to the aiding and abetting charge—to show that the defendant knew that Riley was redistributing the drugs and that the drugs would end up in the hands of Hess and Panzer.

Here, however, Hicks’s strategy during the government’s case-in-chief was simply to question the agents’ ability to witness whether he sold the drugs to Hurd.

There was no allegation that Hicks’s prior drug deals involved Hurd. And the government has not explained why Hurd’s prior convictions for cocaine possession and distribution make it more likely that he was a “knowing participant” in this drug deal other than by drawing the prohibited inference of “once a drug dealer, always a drug dealer.”

Neither has the government explained why the convictions were relevant to show that Hicks’s actions were the result of a mistake.

Hicks never contended that he did not know that the substance for sale was crack cocaine or any other controlled substance. See United States v. Chavis, 429 F.3d 662, 673 (7th Cir. 2005) (Cudahy, J., concurring) (describing Rule 404(b)’s exception for absence of mistake as “I thought [the drugs] were cough drops”); United States v. Webb, 548 F.3d 547, 548 (7th Cir. 2008) (“As for `absence of mistake’: how does a conviction show this except via the prohibited inference that someone who distributes drugs once is likely to do it again?”).

We are also unpersuaded by the government’s argument that the prior convictions were admissible to show intent.

Because unlawful distribution of cocaine 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. United States v. Moore, 425 F.3d 1061, 1069 n.3 (7th Cir. 2005) (“[U]nlawfully distributing cocaine in violation of 21 U.S.C. § 841(a)(1) is a general intent crime.”); United States v. Manganellis, 864 F.2d 528, 539 (7th Cir. 1988) (evidence of prior bad acts is ordinarily not admissible to prove general intent crimes such as distribution of cocaine); United States v. Gruttaduro, 818 F.2d 1323, 1328-29 (7th Cir. 1987) (prior bad acts evidence was inadmissible to prove intent because defendant was charged with a general intent crime and defendant did not directly put his mental state at issue); United States v. Shackleford, 738 F.2d 776, 781 (7th Cir. 1984), modified on other grounds by Huddleson v. United States, 485 U.S. 681, 685 (1988) (“[W]hen intent is only a formal issue, so that proof of the proscribed act gives rise to an inference of intent, then . . . 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.”).

In our view, the only apparent relevance of the prior convictions was the very inference that Rule 404(b) prohibits—that is, that Hicks had sold drugs in the past and probably did so this time as well. And the government’s opening statement implies that its theory of the case from the outset was propensity.

We also find that the Rule 404(b) error affected Hicks’s “substantial rights.” See Fed. R. Crim. P. 52(a).

Although the evidence may have been sufficient to convict Hicks, we conclude that an average juror would have found the government’s case significantly less persuasive without the prior convictions. See United States v. Blanchard, 542 F.3d 1133, 1151 (7th Cir. 2008) (the test for harmless error is whether, in the mind of the average juror, the prosecution’s case would have been significantly less persuasive had the improper evidence been excluded).

Without the propensity evidence, an “average” juror may very well have concluded that the government did not prove beyond a reasonable doubt that Hicks supplied Hurd with crack cocaine.

“Allowing a prosecutor routinely to introduce drug convictions in the case in chief without demonstrating relevance to some concrete dispute between the litigants creates needless risk that a conviction will rest on the forbidden propensity inference.” United States v. Jones, 455 F.3d 800, 812 (7th Cir. 2006) (Easterbrook, J., concurring).

Given the lack of direct evidence and the relative weakness of the government’s circumstantial case, we find that the admission of the convictions affected Hicks’s substantial rights, and we therefore reverse.[2]


The defendant’s conviction is VACATED, and the case is REMANDED to the district court for a new trial

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