United States v. Chapman. No. 12-1415.
On a foggy night in Chicago, police officers patrolling the west side of the city spotted Marvin Chapman walking down a sidewalk carrying a bag with what looked like the barrel of a rifle protruding from it. As the officers approached, Chapman ducked into an abandoned duplex. One officer followed Chapman into the house and saw him drop the bag in the living room; another caught up with Chapman as he tried to escape through a bedroom window. In the bag they found a distribution quantity of heroin and an assault rifle.
Chapman was charged with three crimes: possessing heroin with intent to distribute, possessing a firearm in furtherance of a drug-trafficking crime, and possessing a firearm as a felon. The jury returned a factually inconsistent verdict, convicting Chapman of possessing the drugs but acquitting him on the two gun-possession counts. Chapman contends that the judge erroneously admitted the details of his prior heroin-trafficking conviction under Rule 404(b) of the Federal Rules of Evidence for the purpose of proving that he knew how heroin is packaged and intended to distribute the drugs found in the bag.
Chapman challenges the district court’s decision to admit the specifics of his 2006 conviction for possession of heroin with intent to distribute. He argues that this evidence served no purpose other than to show that he had a propensity to deal heroin, in violation of the prohibition in Rule 404(b) against using other-act evidence to prove propensity. Gomez emphasized that even if the proponent of the other-act evidence can establish its relevance to a non-propensity purpose in a propensity-free way, the district court “must in every case assess whether the probative value of the other-act evidence is substantially outweighed by a risk of unfair prejudice and may exclude the evidence under Rule 403 if the risk is too great.”United States v. Gomez, No. 12-1104, 2014 WL 4058963 at 11 (7th Cir. Aug. 18, 2014) (en banc). Rule 403 balancing, we noted, is especially important in the context of other-act evidence, which “raises special concerns about unfair prejudice because it almost always carries some risk that the jury will draw the forbidden propensity inference.”Id. at *8. Accordingly, the trial judge’s Rule 403 balancing of the probative value of the evidence against the risk of unfair prejudice “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.” Id.
Here, the district court permitted the government to introduce the details of Chapman’s 2006 conviction for heroin trafficking for the purpose of proving that he knew the substance found in the bag was heroin (based on familiarity with its packaging) and possessed the drugs with intent to distribute them. There are two problems with this theory of admissibility. First, the details of the prior heroin conviction are relevant to Chapman’s knowledge and intent only through a paradigmatic inference about propensity: because Chapman sold heroin before he must have intended to do so again in this instance.
Second, even if the government had articulated a theory of relevance that does not rely on an impermissible propensity inference (and it did not), the probative value of the heroin-trafficking conviction is substantially outweighed by the risk of unfair prejudice in the specific context of this case. Chapman’s defense rested entirely on his claim that he never possessed the bag at all. His knowledge of heroin packaging was a red herring. He never argued that he didn’t recognize the substance in the bag as heroin; instead, he claimed that he did not possess the bag, period.
We agree with Chapman’s claim of error: The judge should not have admitted the details of Chapman’s herointrafficking conviction under Rule 404(b). As explained in our recent en banc opinion in Gomez evidence of other bad acts is inadmissible to show character or propensity but may be admitted for another purpose provided that the evidence is relevant under a theory that does not rely on an inference about the actor’s propensity. See FED. R. EVID. 404(b)(1).
Here, the judge allowed the government to use the specifics of Chapman’s prior heroin conviction to prove knowledge and intent, but the relevance of the evidence on those issues depends entirely on a forbidden propensity inference. Even if the evidence was relevant in a nonpropensity way, its probative value was substantially outweighed by the risk of unfair prejudice given that Chapman’s defense was that he did not possess the bag at all. See FED. R. EVID. 403.
The jury’s inconsistent verdict shows that the Rule 404(b) error was not harmless. REVERSED.
By: Chicago Federal Criminal Defense Attorney Michael J. Petro