In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1391

United States of America,

Plaintiff-Appellee,

v.

William L. Curtis,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-CR-40026-002-JPG--J. Phil Gilbert, Judge.

Argued January 15, 2002--Decided February 11, 2002



  Before Flaum, Chief Judge, and Coffey and
Easterbrook, Circuit Judges.

  Flaum, Chief Judge. On April 5, 2000,
William Curtis was convicted of
distribution of cocaine base and conspir
acy to distribute cocaine base in
violation of 21 U.S.C. sec.sec. 841(a)(1)
and 846. He filed a motion for a new
trial based on newly discovered evidence
which the district court denied. He now
appeals the denial of that motion, as
well as the district court’s admission at
trial of testimony regarding his prior
drug dealing. For the reasons stated
herein, we affirm the decisions of the
district court.

I.   Background

  At trial, Robert Dueker, the FBI agent
involved in Curtis’s investigation,
testified that between August 1998 and
May 5, 1999, the alleged conspiracy
period, as well as the previous year,
Curtis transported crack cocaine
fromChicago to Carbondale, Illinois, and
supplied several dealers in the area,
including Melissa Boyle, Anthony Hale,
Charles Curry, and Sarah Stephens.
Stephens testified that she assisted
Curtis with the distribution of crack
cocaine, and both traveled to Chicago to
buy narcotics from Curtis, and bought the
drugs while Curtis was in Carbondale.
Another government witness, Lester Barr,
testified that he saw Curtis and Charles
Curry make crack from powdered cocaine
and split the finished product between
them. Barr testified that he also
traveled to Chicago to purchase cocaine
from Curtis. Barr stated that he would
drive around Carbondale with Curtis while
Curtis went to a house from which he was
paged to deliver crack cocaine. The
government produced thirteen additional
witnesses who testified that they had
purchased crack cocaine from Curtis
during the conspiracy dates.

  The government also presented four
witnesses for the purpose of testifying
to Curtis’s drug dealing activities,
including specific controlled purchases,
during 1997 and early 1998--before the
time period of the charged conspiracy:
Eldridge Hardley, David Morales, Derek
Taylor, and Robert McConnell. Curtis
never objected to the introduction of
this evidence.

  Agent Dueker, FBI agent Paula Parkinson,
Boyle, and Hale testified that on May 5,
1999, Boyle and Hale, who lived together
and who were apprehended for drug
distribution, agreed to cooperate with
the police and purchase crack cocaine
from Curtis in a controlled buy. The
police placed a tape recorder inside the
living room of Boyle and Hale’s
residence, and conducted surveillance
from the outside. Boyle paged Curtis who
drove up to the house, went inside, sold
drugs in the bathroom, and drove off. The
law enforcement agents followed Curtis,
who avoided their cars. A high-speed
chase ensued, but the officers were
unsuccessful in stopping Curtis that day.
They returned to Boyle and Hale’s house,
where Hale handed them the crack cocaine
that he had purchased from Curtis in the
bathroom. Contemporaneously, a Carbondale
police officer saw the car that Curtis
had been driving in a parking lot and saw
crack cocaine and a pager on the front
seat. He had the car towed to a police
lot where the evidence was inventoried.
The police found Curtis’s name on the car
rental agreement in the glove
compartment. The FBI arrested Curtis in
November 1999.

  On the first day of his trial, Curtis
told the district court that there should
be a tape from the May 5, 1999 controlled
buy. The government responded that the
recorder was in a different room from the
buy, and that the tape was blank. It
informed the court that there was
nothing, not even a preamble, on the May
5 tape. Agent Parkinson also testified
that the FBI office in Springfield,
Illinois, where the tape was sent,
informed her that the tape placed in the
recorder turned out to be blank. She
stated that tape malfunctions are common.
Curtis’s trial lawyer stated that he
believed the government’s representation
about the tape, and did not need to
obtain it. Curtis, however, told the
court that he did not believe that the
tape was blank and requested that it be
sent to him. The court replied that it
would not delay the trial, but that the
tape should be sent to him as soon
aspossible and if, as he claimed, it
turned out not to be blank, he could file
a motion for a new trial based on newly
discovered evidence. At the trial,
Curtis’s attorney used the absence of a
tape recording of the transaction in his
defense. Despite this argument, Curtis
was convicted on all counts. He received
the tape after the trial, and it was, as
represented, blank. Nevertheless, he
filed a motion for a new trial, arguing
that the blank tape would have been
material in his defense that no drug sale
occurred on May 5, 1999, as there was no
recording of it. The district court
denied his motion, holding that he had
met none of the necessary requirements to
be granted a new trial.


II.    Discussion

  a.    "Other Acts" Evidence

  Curtis contends that the witnesses’
testimony concerning only uncharged, pre-
indictment activities should not have
been admitted under Federal Rules of
Evidence 403 and 404(b)./1 Curtis did
not object to the admission of this
testimony at trial. Therefore, we
evaluate his claim that the testimony in
question was inadmissible as prior bad
act evidence and that unfair prejudice
outweighed its probative value under a
plain error standard. United States v.
Krankel, 164 F.3d 1046, 1052 (7th Cir.
1998) ("When a defendant fails to timely
and properly object at trial to the
admission of evidence, the issue is
waived by the defendant absent a showing
of plain error.") Under this standard, we
would reverse the district court’s
admission of the evidence only if Curtis
"probably would not have been convicted
but for the erroneously admitted
evidence." United States v. Kellum, 42
F.3d 1087, 1092 (7th Cir. 1994). Only if
Curtis has shown that: 1) the evidence
was wrongly admitted; and 2) the error
likely changed the outcome of the trial,
will we reverse. We find that he has met
neither burden.

  Although prior bad acts testimony is
inappropriate when used to show that the
defendant acted in conformity with such
behavior, it is properly admitted if the
evidence:

i) is directed toward establishing a
matter in issue other than the
defendant’s propensity to commit the
crime charged; ii) shows that the other
act is similar enough and close enough in
time to be relevant to the matter in
issue; iii) is sufficient to support a
jury finding that the defendant committed
the similar act; and iv) has probative
value not substantially outweighed by the
danger of unfair prejudice.

United States v. Green, 258 F.3d 683, 694
(7th Cir. 2001) (citing Untied States v.
Williams, 238 F.3d 871, 874 (7th Cir.
2001); United States v. Moore, 115 F.3d
1348, 1354 (7th Cir. 1997)). Because
Curtis failed to object at trial, the
district judge was not on call to
evaluate the evidence under the above
standards. Curtis’s claim is not waived
altogether, however; because "plain
errors or defects affecting substantial
rights may be noticed although they were
not brought to the attention of the
court," Fed. R. Crim. P. 52(b), we will
review the court’s admission of the
challenged testimony for plain error.
Krankel, 164 F.3d at 1052. Under this
standard of review, we find that Curtis
has failed to show that the district
court committed plain error in admitting
the other act evidence.

  The testimony in question meets all four
prongs of the above-referenced test.
First, conspiracy to distribute narcotics
is, inherently, a specific intent crime.
Therefore, the defendant’s "intent is
automatically in issue, regardless of
whether [he] has made intent an issue in
the case." Kellum, 42 F.3d at 1093
(citing United States v. Monzon, 869 F.2d
338, 344 (7th Cir. 1989)); see also
Green, 258 F.3d at 694 ("we have held on
numerous occasions that when a defendant
is charged with a specific intent crime .
. . evidence of the defendant’s prior
drug transactions may be relevant to show
knowledge and intent--purposes distinct
from simply showing the defendant’s
propensity for drug dealing.") (citations
omitted). Second, where the evidence
regards a defendant’s prior transactions
of similar types of drugs, acts the year
before the charged crime are close enough
in time and similar enough to be
relevant. Green, 258 F.3d at 694 (drug
sales ending 14 months before the charged
crime are relevant to the matter at
issue); see also United States v. Ruiz,
178 F.3d 877, 880 (7th Cir. 1999) (two
years not too long); United States v.
Kreiser, 15 F.3d 635, 640 (7th Cir. 1994)
(seven years not too long). Third,
witnesses’ testimony that they
participated in drug transactions with
the defendant or saw the defendant
selling drugs is sufficient to support a
jury finding that he did engage in that
conduct. Green, 258 F.3d at 694 (citing
United States v. Smith, 995 F.2d 662, 672
(7th Cir. 1993)). Fourth, we find that
the evidence was not unfairly
prejudicial. Curtis contends that the
cumulative prejudicial effect of the four
witnesses’ testimony was unfair,
considering the absence of a limiting
instruction by the court. The defendant
never requested a limiting instruction,
however, or objected to the admission of
the evidence at all; the court’s failure
to give such an instruction, therefore
was not in error. The witnesses’
testimony had probative value as to
Curtis’s intent; that value was not
substantially outweighed by unfair
prejudice.

  We do not advance the position that, in
a drug prosecution, any evidence of
recent drug transactions is automatically
admissible. To the contrary, evidence
should be admitted only if it meets the
four prongs of the above test. That is,
it must be for the purpose of
establishing a matter other than the
propensity to commit the same crime, be
similar and close in time, be sufficient
to support a jury finding, and,
crucially, have probative value not
substantially outweighed by unfair
prejudice. The admission of prior bad
acts evidence must be evaluated on a
case-by-case basis. Because "almost any
bad act evidence simultaneously condemns
by besmirching character and by showing
one or more [of the admissible purposes
under Rule 404(b)]," United States v.
Beasley, 809 F.2d 1273, 1279 (7th Cir.
1987), the rule must not be applied
mechanically, but instead carefully
considered under the given circumstances.

  Even if Curtis could show that the
admission of the prior acts evidence was
erroneous, however, he has not met his
burden of demonstrating that he probably
would not have been convicted but for the
testimony in question. When viewed in the
light most favorable to the government,
the evidence presented by Curtis’s co-
conspirators as well as law enforcement
officers was more than sufficient to
establish that Curtis was a participant
in the conspiracy and distribution of
crack cocaine. No plain error exists as
to the admission of the testimony of the
five witnesses in question.


  b.   Newly Discovered Evidence

  We review the district court’s denial of
Curtis’s motion for a new trial for abuse
of discretion. United States v. Furth, 36
F.3d 649 (7th Cir. 1994). That is, we ask
if a reasonable person could agree with
the decision of the district court.
United States v. Hunt, 272 F.3d 488 (7th
Cir. 2001). We find that one could. A
court may grant a defendant a new trial
based on newly discovered evidence if the
defendant can show that such evidence 1)
came to his knowledge only after trial;
2) could not have been discovered any
sooner had due diligence been exercised;
3) is material--not merely impeaching or
cumulative; and 4) probably would lead to
an acquittal if a new trial were granted.
United States v. Lopeztegui, 230 F.3d
1000, 1002 (7th Cir. 2000). The district
court found that Curtis had met none of
the above requirements and denied his
motion for a new trial. This finding is
not an abuse of discretion. Curtis, the
government, the court, and the jury knew
of the tape and knew that it was
completely blank during the trial.
Moreover, even had it been newly
discovered, it would not have been
material to his defense. Curtis claims
that it would show that the government,
in explaining to the jury why it was not
presenting a tape recording of the
controlled purchase, was lying when it
said that there was no recording because
the transaction took place in another
room--the completely blank tape (with no
preamble) shows that no recording exists
because of machine malfunction or
erasure. If anything, this evidence is
merely impeaching/2--not material to
Curtis’s defense. Whether the machine
malfunctioned or not, the activity in the
bathroom would not have been recorded.
Curtis also contends that if the tape
were not completely blank, it should have
corroborated the government’s version of
events: that Hale and Boyle paged Curtis,
and that Curtis arrived at their home.
Just because the tape does not make the
government’s winning case even stronger
does not mean that it helps Curtis’s
defense. It is not material at all.
Because the tape is immaterial, and
because the jury knew that it was blank--
the defense attorney used the fact that
the government did not present any
recorded corroboration of its version of
events during his argument--it likely
would not lead to Curtis’s acquittal if a
new trial were granted. The district
court did not abuse its discretion in
denying Curtis’s motion for a new trial.

III.   Conclusion

  For the reasons stated above, we AFFIRM
the decisions of the district court.

FOOTNOTES

/1 FRE 403 states that relevant evidence should be
excluded if "its probative value is substantially
outweighed by the danger of unfair prejudice."
FRE 404(b) provides that "[e]vidence of other
crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show
attention in conformity therewith. It may, howev-
er, be admissible for other purposes, such as
proof of motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of
mistake or accident . . . ."

/2 If, in fact, the lack of preamble could have been
used to impeach the government, Curtis had the
information necessary to do so during the trial.
He did not.
