Circuit Court orders new trial on Rule 404(b) grounds

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The 7th Circuit Court of Appeals has found an Indiana federal court should not have allowed evidence of a defendant’s prior drug convictions under Federal Rule of Evidence 404(b). As a result of the violation, the judges reversed the man’s drug conviction and ordered a new trial.

In United States of America v. Billy L. Hicks, No. 09-3608, Billy Hicks appealed his conviction of knowingly distributing cocaine base, challenging the dismissal of a juror based on her relationship to his girlfriend, who was a witness; admittance of tape recordings between Hicks and a confidential informant; and the District Court’s allowance of federal agents to testify regarding their personal observations during an arranged drug buy.

Hicks also challenged the trial court’s allowance of two prior drug convictions under Rule 404(b) to prove his knowledge of the drug industry and his intent to distribute crack cocaine during a July 2006 sale to the confidential informant. On this issue, the 7th Circuit ordered Hicks’ conviction be vacated.

The government never explained why the prior convictions were relevant to show that Hicks’ actions were a result of a mistake, wrote Judge Ann Claire Williams, and the Circuit Court was also not persuaded by the government’s argument that the prior convictions were admissible to show intent.

Hicks didn’t put his intent at issue during the government’s case-in-chief. Hicks also didn’t introduce his entrapment defense until after the government’s case-in-chief. The government should have waited until after Hicks’ entrapment defense materialized to offer the convictions, she wrote.

“In our view, 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,” the judge continued. “The government has failed to demonstrate that Hicks’s prior convictions established knowledge, lack of mistake, or intent.”

This error affected Hicks’ substantial rights, so the Circuit Court vacated the conviction and ordered a new trial.

The judges also ruled that the District Court did not err in dismissing for cause the juror who recognized Hicks’ girlfriend’s voice once she began testifying; in admitting the taped recordings between Hicks and the confidential informant, who had died before trial; and in admitting FBI agents’ testimony regarding alleged counter surveillance during an attempted meeting with Hicks.


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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?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  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.

  5. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.