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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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