Seventh Circuit Week in Review: More and More on the Use of Prior Crimes Evidence

The Seventh Circuit had two new opinions in criminal cases in the past week, with the government winning both appeals.  By some coincidence, both cases involved the use of prior crimes evidence at trial, a topic that was also the focus of my last “Week in Review” post.  Indeed, one of this past week’s cases was strikingly similar in its facts to Perkins from the previous week, but was analyzed in a rather different manner.

United States v. Webb (No. 08-1338) was the new case similar to Perkins.  Webb was arrested in connection with the discovery of drugs in the house of his friend Hartman.  At Webb’s trial on drug trafficking charges, the government introduced into evidence Webb’s 1996 conviction for distributing cocaine.  Following his conviction on the new charges, Webb argued on appeal that this evidence violated Federal Rule of Evidence 404(b), which prohibits the use of prior crimes evidence for the purpose of establishing a defendant’s propensity to commit new crimes.  In response, the government argued (precisely as it had in Perkins) that the prior crimes evidence helped to establish intent and absence of mistake, which are two permissible purposes for such evidence.  In last week’s post, I argued that the Seventh Circuit accepted these arguments too uncritically in Perkins; based on the reasoning of that case, it was hard for me to see how prior drug trafficking convictions would ever be kept out of evidence in new drug distribution cases.

But in Webb, the Seventh Circuit (per Chief Judge Easterbrook) correctly recognized how tenuous the government’s intent/mistake theory was.  The court also recognized the “tension” in its prior cases regarding the use of prior drug crimes evidence.

Yet, Webb still lost.  Initially, the court seemed to focus on Webb’s failure to invoke the correct provision of the Rules of Evidence in his appeal.  Where Webb framed the issue as 404(b) violation, he should have invoked Rules 402 and 403:

To concentrate on Rule 404(b), when the real questions are relevance (Rule 402) and whether the evidence has a potential for prejudice disproportionate to its valid use (Rule 403), is to misdirect attention.

Although the court suggested that Webb’s real argument was thereby forfeited (subject only to plain error review), this conclusion would rest (in my view) on an overly technical distinction.  Rules 402, 403, and 404 function as an integrated whole, and have been treated as such in the Seventh Circuit’s four-part test for prior crimes evidence.  See United States v. Shields, 999 F.2d 1090, 1099 (7th Cir. 1993).  (Curiously, the four-part test was discussed in Perkins, but not in Webb.)  Against this backdrop, there is no functional difference between Webb saying, “the prior convictions served no other purpose than to establish propensity, in violation of 404(b),” and “the government’s theory of relevance as to intent and mistake did not satisfy 402 or 403.”

After raising the forfeiture issue, the court found a more satisfactory ground for affirmance, which was that any evidentiary mistake by the district court judge would have been harmless error, given a large body of other evidence supporting Webb’s conviction.

The forfeiture discussion, while seemingly unnecessary to the court’s holding, provided an opportunity for the court implicitly to invite challenges to the intent/mistake theory that are more squarely presented on relevance grounds:

Although several of these [earlier Seventh Circuit] opinions say that a prior conviction shows intent or absence of mistake, none explains why — perhaps because in those appeals, as in this one, the parties assumed that the evidence was relevant and so did not present the question in an adversarial manner for decision on appeal.

Practitioners take note!

This past week’s second case, United States v. Ellis (No. 07-2643), arose from the defendant business owner’s failure to pay taxes she collected from her employees to the government.  Convicted of “willful” tax evasion, Ellis raised a number of issues on appeal, the most interesting of which related to the use at trial of evidence that she had committed a number of other, uncharged tax violations before and during the time period covered by the indictment. 

Like Perkins and Webb, Ellis asserted that this evidence violated Rule 404(b).  In this case, though, the court (per Judge Flaum) seems not to have had any trouble with framing the issue this way, even though the court’s analysis moved into a discussion of the (Rule 403) question of undue prejudice.  Despite the absence of a forfeiture problem, Ellis still lost.

In Ellis, the court’s determination that the prior crimes were probative as to intent seems considerably more persuasive than the same determination in Perkins.  Whereas Perkins seems not to have raised a mistake defense, Ellis’s whole theory of the case was that she was too busy and had forgotten about her tax obligations.  Moroever, the particular state of mind requirement in Ellis (willfullness, that is, disregard of a known legal duty) also differed from the state of mind requirement in Perkins.  Given what was really at issue in Ellis, it is comparatively easy for me to see why it made sense to tell the jury that the defendant’s charged tax violations were not isolated errors and that her accountant had previously alerted her to problems with her tax filings before the period of the charged misconduct.  This strikes me as powerful evidence indeed of willfullness.

In my view, both Webb and Ellis get to the right results, but they follow quite different paths.  The Seventh Circuit would do well to address the tensions identified, but not really resolved, by Webb.

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