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. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

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