O R D E R
After a two-day trial, a jury convicted Artez L. Johnson of possessing 50 grams or more of methamphetamine with intent to distribute. 21 U.S.C. § 841(a)(1), (b)(1)(A). Johnson appeals, arguing that he is entitled to a new trial because the district court erred when it allowed a witness to testify about prior drug deals Johnson allegedly had executed. See Fed. R. Evid. 404(b). Because the testimony was properly admitted, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
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Background
In February 2023, Johnson was driving with a passenger in Rantoul, Illinois, when a police officer pulled him over for erratic driving. Johnson did not comply with commands to keep his hands on the steering wheel, so the officer ordered Johnson out of his car. Another officer arrived at the scene, went to interview the passenger, and saw a small bag of what appeared to be cocaine on the driver's seat. The officers then arrested Johnson and searched inside his car. In the center console, they found a shopping bag containing three sandwich bags filled with white powder. In an interview at the police station, Johnson told an officer that the bags were his and that they contained drugs for his own use. Lab testing confirmed that the white substance was
331.2 grams of meth. A grand jury returned an indictment charging Johnson with one count of possessing with intent to distribute at least 50 grams of actual meth in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A). In preparation for trial, Johnson filed a trial brief arguing that the "[d]rugs found were for personal use." The brief also listed as witnesses two experts who planned to testify about Johnson having meth, cocaine, and morphine in his system at the time of his arrest and about his "daily" use of meth. The government filed a motion in limine to admit testimony under Rule 404(b) of the Federal Rules of Evidence that Johnson had sold meth on several prior occasions. Dagan Traylor, the purported purchaser, would testify that Johnson was regularly selling meth in the months before his arrest, and this evidence, the government asserted, would be probative of Johnson's intent to sell the meth found in his possession. Johnsons' intent, the government argued, would then be "the only issue" at trial given his personal-use defense, and so evidence of intent would be especially probative. Without much elaboration, Johnson responded that the testimony would be inadmissible hearsay, unreliable, and prejudicial.
The district court granted the government's motion. Using the factors outlined in United States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007), the court concluded that the evidence was admissible for the non-propensity purpose of showing Johnson's intent. The court also determined that, for purposes of Rule 403, the probative value of the evidence was high and that a limiting instruction could cabin the risk of unfair prejudice.
Ahead of jury selection, the court read the parties the jury instruction for Traylor's testimony, and Johnson confirmed he had no objection to it. The government
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notified the court and Johnson that it would refer to Traylor's anticipated testimony in its opening statements, and Johnson responded that he wanted the court to read the limiting instruction right after Traylor's testimony. Johnson also notified the court that the parties had jointly filed a jury instruction that morning about simple possession (though that instruction was later removed).
In its opening statement, the government told the jurors that they would hear from Traylor that he had bought meth from Johnson regularly for months. During the government's case in chief, one of the arresting officers testified that, the night the meth was discovered, Johnson told him that the drugs were his and were for his own personal use. Traylor then testified that he first bought meth from Johnson in May 2022, and beginning in June that year, he purchased two pounds of meth every week from Johnson for two or three months. Traylor was arrested in August 2022, but he said that he continued regularly buying meth from Johnson until then. After Traylor's testimony, the court instructed the jury on how it could consider the evidence, cautioning the jury that it "may not assume that because the defendant committed an act in the past he is more likely to have committed the crime charged in the indictment." Finally, an expert in the field of narcotics investigation testified that he would expect that someone who had over 300 grams of meth intended to sell it. On cross-examination, Johnson clarified with the expert that officers found "none of the things that typically are associated with drug dealing" in the car.
In Johnson's defense, his aunt testified that he had been addicted to drugs for the past ten years and used drugs "heavily," but she had never known him to sell drugs. Johnson also took the stand and admitted that the bag of cocaine found on the front seat of the car was his, but he testified that only some of the meth was his. He stated that his passenger had purchased the meth but was giving some to Johnson as payment for a ride. Johnson explained that he initially took responsibility for all the meth because he was under the influence of drugs and "was charged with it already." The experts Johnson had disclosed (to testify about his drug use) did not testify. At the close of evidence, the district court read the final jury instructions including, again, the limiting instruction related to Traylor's testimony. The parties then gave their closing arguments. The government argued that Johnson had "admitted the meth was his," and it observed that "the only issue, really, in this case is whether he intended to distribute." The government then told the jury that Traylor's testimony established that he "continuously bought methamphetamine from the defendant until [Traylor's] arrest," demonstrating Johnson's intent to sell the meth in his car.
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Anticipating that Johnson would attack Traylor's credibility, the government remarked on the specificity with which Traylor had described his past drug deals with Johnson. The government conceded that Traylor was also a drug dealer but observed that Johnson "was the bigger fish in the drug pond."
Johnson contended in his closing argument that the lack of money in his car meant that the drugs must have belonged to the passenger, because "[d]rug dealers have hundred-dollar bills." Johnson also called Traylor's reliability into question, observing that the specifics could have been made up and that some of the details about certain alleged drug deals were "ridiculous." The jury found Johnson guilty of possessing 50 grams or more of meth with the intent to distribute.
Analysis
On appeal, Johnson contends that admitting Traylor's testimony was erroneous. The Federal Rules of Evidence prohibit the admission of evidence of other acts "to show that on a particular occasion the person acted in accordance with the character or trait,"
Fed. R. Evid. 404(b)(1)—in other words, that the person had a propensity to do what he is on trial for doing. United States v. Gomez, 763 F.3d 845, 852 (7th Cir. 2014) (en banc). But that evidence is admissible for other purposes, including to prove intent. Id.; Fed. R. Evid. 404(b)(2). In Johnson's view, the district court did not properly assess whether the evidence was relevant to his intent. He further argues that, even if the evidence was probative of intent, its admission was unfairly prejudicial.
A. The District Court Considered Appropriate Factors in Its Rule 404(b) Analysis
Johnson first argues that the district court applied an outdated legal test to determine whether Traylor's testimony was admissible. Absent waiver or forfeiture, this court reviews a district court's decision to admit contested evidence for abuse of discretion. See Burton v. City of Zion, 901 F.3d 772, 776 (7th Cir. 2018). And when a district court applies the wrong legal test, it typically abuses its discretion. See Jackson v. Esser, 105 F.4th 948, 963 (7th Cir. 2024). Here, the court applied a superseded legal framework, but ultimately we find no abuse of discretion because its decision was consistent with our governing law.
In 2014, this court sitting en banc replaced our four-part test for determining the admissibility of prior-acts evidence with a more "straightforward rules-based approach." See Gomez, 763 F.3d at 853. The former test examined: (1) the non-propensity
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purpose of the evidence; (2) the similarity and timing of the other-acts evidence in comparison to the charged conduct; (3) the evidence that the defendant committed the other act; and (4) the probative value of the evidence compared with the risk for unfair prejudice. Id. at 852 (citations omitted). The updated procedure requires the proponent of the evidence to first establish that it is relevant to a permitted purpose through a propensity-free chain of reasoning. Id. at 860. Then, the court must engage in the Rule 403 balancing analysis to consider, given how much the non-propensity purpose is truly at issue, whether the probative value is substantially outweighed by the risk of undue prejudice. See id.
In this case, Johnson's premise is correct: the district court analyzed the admissibility of Traylor's testimony using the old test, including by considering the similarity between, and timing of, the prior and charged conduct. But the court did not consider these factors rotely or uncritically; it used them to establish why Traylor's testimony was probative of intent—in a way that did not rely on an inference of propensity. In deciding to replace the old test, we observed that the mandatory consideration of the disputed evidence's similarity and timing was too often superficial and applied in an unduly rigid fashion. See id. at 854. But we also acknowledged that, depending on the context, the factor may still be relevant to the admissibility of prior- act evidence. Id. When it is, addressing it is permitted under Gomez. See, e.g., Jackson,
105 F.4th at 963. Here, the similarity and timing of the criminal conduct demonstrated that the evidence was probative of intent through a propensity-free chain of reasoning. First, the court acknowledged the similarity between the charged conduct and what Traylor would describe: Johnson was charged with possessing meth with the intent to distribute, and Traylor would describe instances in which Johnson had sold him meth. Further, Traylor was not going to describe just one instance of distributing meth, but a series of deals occurring regularly for months and ending—only because Traylor was arrested— just months before Johnson's arrest.
Based on the similarity, if a jury believed Traylor, it could reasonably infer that Johnson's distribution of meth was ongoing through his arrest, making it more likely that he intended to continue his pattern and distribute the (large quantity) of meth he possessed in his car. This rationale separates this case from cases where this court has found error in admitting evidence of prior drug-related conduct to show intent because the inference of intent could not be described without a propensity-based chain of reasoning. See, e.g., United States v. Chapman, 765 F.3d 720, 726 (7th Cir. 2014) (evidence
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of 2006 conviction for heroin trafficking should not have been admitted to show defendant possessed heroin with intent to distribute in 2010); United States v. Stacy,
769 F.3d 969, 974 (7th Cir. 2014) (evidence of 2008 arrest for possession of meth should not have been admitted to show defendant intended to use pseudoephedrine pills collected from 2010 through 2012 to make meth). In those cases, the remoteness of the prior acts and the charged conduct made the acts relevant only because of the forbidden inference that the defendant must have had the requisite intent in the charged instance because he had previously engaged in similar criminal conduct. Here, on the other hand, the government was asking the jury to infer that Johnson had been engaged in a course of dealing meth that persisted until he was arrested on the instant charges. This court has affirmed this use of evidence since Gomez. See United States v. Morgan, 929 F.3d 411, 427 (7th Cir. 2019) (concluding that testimony from witnesses that defendant had distributed meth to them shortly before the defendant's arrest was admissible to prove defendant's intent to distribute meth). Johnson does not develop an argument on appeal that the inference the government drew was invalid or improper and argues instead that the evidence had dual purposes of propensity and intent. But evidence need not be excluded whenever a propensity inference is possible—just when its relevance to a permissible purpose comes "only through the forbidden propensity inference." Gomez, 763 F.3d at 856. To reiterate: applying the pre-Gomez four-factor test risks the improper admission of propensity evidence under the guise of "intent," as we explained in our decision. But, contrary to Johnson's argument, the court did not apply the "wrong" law here because its approach—in this case—was consistent with Gomez. It therefore did not abuse its discretion in its Rule 404(b) analysis of Traylor's testimony.
B. Johnson Put Intent at Issue and Traylor's Testimony Was Not Unfairly Prejudicial when Weighed Against Its Probative Value.
Johnson next argues that, because he did not raise the personal-use defense at trial, Traylor's testimony lacked probative value and was unfairly prejudicial and therefore had to be excluded under Federal Rule of Evidence 403. As an initial matter, the government argues that Johnson forfeited or waived this argument because his cursory response to the motion in limine (that the testimony was "prejudicial") did not preserve the specific contention he now raises. Waiver is the intentional relinquishment of a known right and precludes appellate review, while forfeiture is the accidental or neglectful failure to timely assert a right and allows review for plain error. United States
v. Dridi, 952 F.3d 893, 898 (7th Cir. 2020).
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In his reply brief, Johnson concedes a forfeiture, albeit for another reason, but he disputes that he waived his argument. We agree with this view. Johnson's response to the government's motion in limine was general, and he did not assert that Traylor's testimony lacked probative value because Johnson would not contest the element of intent at trial. He therefore at least failed to properly preserve the issue for appeal. See Fed. R. Evid. 103(a). But we have found forfeiture, not waiver, in similar situations. See, e.g., Morgan, 929 F.3d at 427 (defendant forfeited arguments when he objected to admission of evidence only on grounds not raised on appeal); United States v. Echols,
104 F.4th 1023, 1029-31 (7th Cir. 2024) (defendant forfeited argument when his general objection did not raise the specific concern argued on appeal). The same applies here, and so we review for plain error. Fed. R. Evid. 103(e); Morgan, 929 F.3d at 427; see generally Greer v. United States, 593 U.S. 503, 507-08 (2021) (explaining steps of plain- error review).
As to the substance of the argument, Federal Rule of Evidence 403 permits the court to exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice. In Gomez, this court observed that for purposes of prior-acts evidence, the extent to which the parties contest the factual proposition for which admission of the evidence is sought is "important" to Rule 403 balancing. Gomez,
763 F.3d at 857. This is particularly so when the evidence will be used to show intent because it is the permitted purpose "most likely to blend with improper propensity uses." Id. at 858 (quoting United States v. Miller, 673 F.3d 688, 698 (7th Cir. 2012)). Here, Johnson placed his intent at issue by explicitly mounting a personal-use defense, and the court considered this when deciding to admit Traylor's testimony. First, at the time of his arrest, Johnson told officers that the drugs in the car were his but that he intended to use them himself. He echoed this in his trial brief. In ruling on the motion in limine, the district court concluded that, in light of Johnson's insistence that the drugs were for personal use, Traylor's testimony was "highly probative" and would not pose any higher risk of unfair prejudice than Rule 404(b) evidence ordinarily does. And Johnson never signaled to the court that he would concede intent at trial. For example, unlike the defendant in Chapman, 765 F.3d at 727, Johnson did not offer to stipulate that whoever possessed the drugs intended to sell them. And indeed, despite Johnson's argument to the contrary, he continued denying his intent to distribute throughout the trial. The morning of trial, Johnson joined the government in filing a jury instruction about simple possession, the only purpose of which could be to dispute intent. And when the court read the parties its instruction regarding Traylor's
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testimony or when the government disclosed its plans to reference the testimony in its opening statements, Johnson did not speak up to say that he was not arguing intent. Intent to distribute continued to be an issue through the presentation of evidence. An officer who testified before Traylor reported that Johnson said the meth was his for personal use the night of the arrest. And Johnson himself adduced evidence of intent. He asked the government's expert about the lack of paraphernalia associated with drug dealing in his car, presented his aunt to testify that she never knew him to be a drug dealer, and argued in closing that if he were dealing drugs, he would have had more cash on him at the time of his arrest. This evidence pertains to the intent element far more than to the possession element; thus, despite his disclaimers, Johnson put his intent squarely into issue, and so Traylor's testimony had probative value. And there is no argument that the government used Traylor's testimony just as it said it would in its motion in limine: to prove intent to distribute.
Johnson argues that the government leaned into the propensity inference during its closing statements, compounding the prejudice. See United States v. Richards, 719 F.3d 746, 765 (7th Cir. 2013). But the government referenced Traylor's testimony both to illustrate Johnson's intent and to establish Traylor's credibility. And the district court took steps to minimize any unfair prejudice by reading a limiting instruction, which conformed to guidance from this court, after the testimony and again in the final instructions. See Pattern Criminal Jury Instructions of the Seventh Circuit § 3.11 (2023); Gomez, 763 F.3d at 865 (Hamilton, J., concurring in relevant part). Even if there were error here—and we think not—it is not "plain," that is, "clear and obvious." Rosales-Mireles v. United States, 585 U.S. 129, 134 (2018). Rule 403 balancing is inherently discretionary, and we give "special deference" to the trial court. United States v. Johnson, 89 F.4th 997, 1002 (7th Cir. 2024) (quoting United States v. LeShore, 543 F.3d 935, 939 (7th Cir. 2008)). The court here made a decision based on its impression that Johnson was contesting intent, and nothing about that is clearly or obviously wrong.
Admission of the evidence was neither an abuse of discretion for purposes of Rule 404(b) nor a plain error for purposes of Rule 403. Therefore, we AFFIRM.
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