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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. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  2. I agree. My husband has almost the exact same situation. Age states and all.

  3. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  4. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

  5. Journalism may just be asleep. I pray this editorial is more than just a passing toss and turn. Indiana's old boy system of ruling over attorneys is cultish. Unmask them oh guardians of democracy.

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