Seventh Circuit Week in Review, Part I: Use of Prior Convictions

The Seventh Circuit had two new criminal opinions in the past week, including a partial defendant win that broke a string of at least eleven consecutive victories by the government.  The two opinions focus on the admissibility of a defendant’s prior convictions at trial and the application of the crack cocaine sentencing guidelines, respectively.  Because I have a bit more than usual to say about the two cases, I will just cover the prior convictions case here, and leave the crack case (featuring a partial defendant victory) for another post tomorrow.

In United States v. Perkins (No. 07-3383), a jury in the Southern District of Illinois convicted Perkins of various drug trafficking offenses.  During his trial, the prosecutor introduced into evidence Perkins’ three prior convictions for cocaine-related offenses, as well as testimony that Perkins had attempted to hide cocaine in his mouth when he was arrested in connection with one of the earlier convictions.  On appeal, Perkins argued that the evidence should have been excluded under Federal Rule of Evidence 404(b).  Although the Rules do indeed prohibit the use of prior convictions to establish a defendant’s propensity to commit new crimes, the Seventh Circuit (per Judge Bauer) rejected Perkins’ argument.  More specifically, the court held that Perkins’ prior convictions were admissible because they helped to establish “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake” — all acceptable purposes of prior convictions evidence under Rule 404(b).

For what it’s worth, my own view is that propensity evidence actually should be admissible as such.

Given high recidivism rates, a jury’s knowledge of prior convictions can play a useful role in helping to confirm other evidence of a defendant’s guilt.  To the extent there may be a tendency to convict based solely on a defendant’s prior record, judges can help to curb that tendency by excluding truly inflammatory prior convictions under the general “more prejudicial than probative” standard, instructing jurors on the proper use of propensity evidence, and granting directed verdicts when the government really has little else to offer besides prior convictions.  And, of course, defense counsel can also help jurors to see propensity evidence in a proper light.

But, if we are to have a general norm against the use of criminal history, the Seventh Circuit’s conclusion that Perkins’ priors fall into one of the 404(b) exceptions strikes me as less than compelling.  The court reasoned that “[e]vidence of his prior convictions establish[es] that Perkins has knowledge and familiarity with cocaine and crack cocaine.”  But, as far as I can tell, this sort of general knowledge of cocaine was not really at issue in the case.  It seems that Perkins’ story was that the cocaine found in his residence belonged to his girlfriend and he did not know it was there.  Knowledge was at issue, but it was specific knowledge about the cocaine found in Perkins’ house, not general knowledge about how to recognize cocaine when one sees it.  Moreover, there seems to have been no dispute that Perkins knew there was marijuana in the house.  Given that, jurors would not view Perkins as naive about drugs, and could readily infer his ability to identify cocaine when he saw it.

The court further reasoned that the criminal history evidence established “Perkins’ knowledge of the respective value of even small quantities of cocaine, which is evidence of his intent to distribute.”  Again, I see no indication that knowledge of value was at issue in the case.  I also have a hard time believing that the jury really needed to learn about the criminal history in order to draw an inference that Perkins understood that small quantities of cocaine have street value — isn’t this common knowledge?  There is also some difficulty with the suggestion that knowledge of value helps to establish intent to distribute.  As my first-year Criminal Law students know, there is a whole line of classic cases (e.g., People v. Lauria, 59 Cal. Rptr. 628 (Cal. App. 1967)) that establish in a variety of contexts that intent cannot be inferred from knowledge alone.  This strikes me as a perfectly sound epistemological principle.

Simply put, I have a hard time seeing how Perkins’ criminal history was capable of making any more than a very marginal contribution to helping the jury resolve anything at issue in the case — except to the extent it was considered for propensity purposes.  And I have an equally hard time believing that the jury did not use the evidence in precisely that manner, even if subconsciously so.  Thus, if propensity purposes really are forbidden, then courts might do well to demand a stronger showing of probative value as to other purposes than seems to have been offered in Perkins.

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