7th Circuit cautions about propensity inference

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The 7th Circuit Court of Appeals today affirmed a man's drug convictions with intent to distribute, but questioned how a previous drug conviction showed the man had intent or absence of mistake in the instant case.

Titorian Webb appealed his convictions of possessing cocaine, marijuana, and ecstasy with intent to deliver in United States of America v. Titorian O. Webb, No. 08-1338, challenging the admittance of his 1996 conviction of distributing cocaine. The District Court allowed the prosecutor to introduce the 1996 conviction to show Webb's intent and the absence of mistake under Fed. R. Evid. 404(b).

"It is hard to see how the 1996 conviction shows either intent or absence of mistake," wrote Judge Frank Easterbrook.

The charges against Webb had an intent element, but Webb argued he didn't possess the drugs found in his girlfriend's house for any purpose. In terms of the absence of mistake element, Judge Easterbrook questioned how a conviction could show this except by the prohibited inference that a person who had distributed drugs once would do it again. The apparent position of the prosecutor - that a drug conviction can always be used in another drug prosecution, even if the crimes have nothing else in common - was rejected by United States v. Beasley, 809 F.2d 1273 (7th Cir. 1987), and United States v. Simpson, 479 F.3d 492 (7th Cir. 2007).

There are several case holdings showing a district judge hadn't erred in admitting prior convictions to show intent or absence of mistake in drug prosecutions, including United States v. Hurn, 496 F.3d 784, 787 (7th Cir. 2007). None of the opinions explain why a prior conviction shows intent or absence of a mistake, but it could be because the parties assumed the evidence was relevant and didn't present the question in an adversarial manner for decision on appeal, wrote the judge.

But the appellate court decided not to tackle the "tension" between Beasley and Hurn in the instant case because "even the lighter harmless-error standard would require us to affirm Webb's conviction," wrote Judge Easterbrook.

Based on the evidence, the fact Webb had a drug conviction on his record couldn't have affected the jury's verdict.

"The harmless-error rule means that district judges, rather than courts of appeals, are the principal enforcers of limits on other-crime evidence," he wrote. "We trust that district judges will review evidence of this kind carefully to ensure that it really is relevant, and serves a legitimate goal rather than leading to the forbidden propensity inference."


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues