When a prior conviction is admitted to prove something other than propensity the jurors should be given a limiting instruction that specifies the precise purpose for which the evidence was admitted. See [1/12/10 post]. In examining prior convictions and related instructions United States v. Hicks, 635 F.3d 1063, 1069‑1074 (4/4/2011, 7th Cir. No. 09‑3608) may be helpful in identifying and instructing on the purposes for which the jurors may consider the prior conviction.
For example, the government contended that Hicks's prior convictions tended to show that Hicks knew about the "illicit nature" of the drug distributing business. However, the reviewing court rejected this argument 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 relied on United States v. Hatchett, 245 F.3d 625, 643 (7th Cir. 2001) to argue that Hicks was a "knowing participant" instead of an "unwitting bystander" to the drug deal. The Court of Appeal rejected this argument because there was no allegation that Hicks's prior drug deals involved the same alleged buyer and the government did not explain why prior convictions for cocaine possession and distribution made 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." (Hicks, at 1070.)
The government also failed to explain 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?"].
The Seventh Circuit also disagreed with the government's argument that the prior convictions were admissible to show intent. Because unlawful distribution of cocaine is a general intent crime, the defendant must first put his intent at issue before the government may introduce prior bad acts to show intent. (Id. at 1070-71; see also United States v. Moore, 425 F.3d 1061, 1069 n.3 (7th Cir. 2005) ["[U]nlawfully distributing cocaine in violation of 21 USC 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. Gruttadauro, 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 Huddleston v. United States, 485 U.S. 681, 685, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (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."].
Additionally, the Seventh Circuit rejected the government's contention that the convictions were admissible to rebut Hicks's entrapment defense. Prior convictions are admissible to prove predisposition in an entrapment case, but the government may not introduce propensity evidence unless the defendant places the issue of entrapment into controversy. Compare United States v. Goodapple, 958 F.2d 1402, 1407 (7th Cir. 1992) ["When the entrapment defense is clearly raised in the defense's opening statement and the entrapment defense obviously materializes through a defendant's presentation of its own witnesses or through cross‑examination of the government's witnesses, it is not error for the government to present evidence of predisposition in its case‑in‑chief"] with United States v. McGuire, 808 F.2d 694, 696 (8th Cir. 1987) [finding that it was error for the district court to allow the government to introduce rebuttal evidence in its case‑in‑chief in anticipation of an entrapment defense that was proposed in defense counsel's opening statement but that never actually materialized].
Hicks's counsel talked about raising an entrapment defense prior to trial (after the court ruled that Hicks's prior convictions were admissible) but the entrapment defense did not materialize until the defense presented its case. Hicks did not refer to his entrapment defense during an opening statement, which he waived, nor during the government's case‑in‑chief.
Finally, the government's contention that the convictions were admissible to show accomplice liability suffered from the same defect as its theory that the convictions were admissible to rebut Hicks's entrapment defense. The government did not request an accomplice liability instruction until after Hicks testified that he had arranged for the drug sale did the government assert an accomplice theory of the case. As with the entrapment defense, Hicks's intent was only placed at issue after the convictions had already been admitted into evidence.
In sum, “ 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. “ (635 F.3d at 1073.)
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