                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-1078
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

GREG L. MURRAY,
                                          Defendant-Appellant.
                        ____________
             Appeal from the United States District Court
                 for the Southern District of Illinois.
    No. 3:02-CR-30131-001-GPM—G. Patrick Murphy, Chief Judge.
                        ____________
   ARGUED DECEMBER 6, 2006—DECIDED JANUARY 24, 2007
                        ____________


 Before POSNER, RIPPLE, and WOOD, Circuit Judges.
  POSNER, Circuit Judge. A jury convicted the defendant
of participating in a drug conspiracy in which a gun
was used and a death resulted from that use, and the
judge sentenced him to life in prison. Together with two
other men, Hines and Trice, the defendant had agreed
to rob another cocaine dealer, who two years earlier had
failed to deliver to Trice cocaine that Trice had paid for.
In the course of the robbery, the defendant (according to
the government’s evidence) shot and killed the dealer. The
only issue presented by the appeal that warrants dis-
cussion is whether the judge was right to exclude the
2                                                No. 06-1078

“reverse Rule 404(b) evidence,” as the parties call it (a
more descriptive term would be “nondefendant Rule
404(b) evidence”), that the defendant offered.
   Rule 404(b) of the Federal Rules of Evidence makes
inadmissible “evidence of other crimes, wrongs, or
acts . . . to prove the character of a person in order to show
action in conformity therewith”—to show in other words
that he has a “propensity” to commit crimes. E.g., United
States v. Leahy, 464 F.3d 773, 797 (7th Cir. 2006); United
States v. Irving, 452 F.3d 110, 119 (2d Cir. 2006). The prohi-
bition is generally invoked by defendants to bar evidence
of their other crimes, the fear being that a jury might
convict a person who has a propensity to commit crimes
without worrying too much about whether the govern-
ment has proved his guilt of the crime of which he is
currently accused beyond a reasonable doubt. United States
v. Paladino, 401 F.3d 471, 474-75 (7th Cir. 2005). But the
prohibition is not absolute. Evidence of “other crimes,
wrongs, or acts” (“other crimes” evidence for short) may be
admitted “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, iden-
tity, or absence of mistake or accident,” unless its proba-
tive value is likely to be substantially outweighed by its
prejudicial effect on the jury.
  Occasionally, as in the case before us, the government
rather than the defendant invokes Rule 404(b), in order
to prevent the defendant from using the “other crimes” of
another person to try to shift the blame to that person. Con-
cern with the poisonous effect on the jury of propensity
evidence is minimal in such cases. United States v. Seals, 419
F.3d 600, 606-07 (7th Cir. 2005); United States v. Williams,
458 F.3d 312, 316 (3d Cir. 2006); United States v. Lucas, 357
F.3d 599, 605 (6th Cir. 2004). Since the jury is not being
No. 06-1078                                                 3

asked to judge that other person, “the primary evil that
may result from admitting such evidence against a
defendant—by tainting his character—is not present.” Id.
Even if the evidence causes the defendant to be acquitted,
and the other person is put on trial, his guilt or innocence
will be determined on the basis of the evidence in his
case, and not on the basis of the other crimes he committed.
  In the vast run of such cases, the only serious objection
to the evidence is that its probative value is slight, as it
may just amount to pointing a finger at someone else
who, having a criminal record, might have committed
the crime the defendant is accused of committing. A jury
is unlikely to acquit a defendant even if it thinks there’s
someone else out there who has a propensity to commit
such crimes, so that in such a case Rule 403’s balancing
test (whereby relevant evidence “may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,” etc.)
is all one needs to keep “other crimes” evidence within
bounds. United States v. Seals, supra, 419 F.3d at 606; United
States v. Williams, supra, 458 F.3d at 316; United States v.
Stevens, 935 F.2d 1380, 1384, 1404-06 (3d Cir. 1991). And
unless the other crime and the present crime are suffi-
ciently alike to make it likely that the same person com-
mitted both crimes, so that if the defendant did not com-
mit the other crime he probably did not commit this one,
the evidence will flunk Rule 403’s test. Cf. United States
v. Stevens, supra, 935 F.2d at 1406.
  Some cases pass the test, as explained in United States
v. Aboumoussallem, 726 F.2d 906, 911-13 (2d Cir. 1984):
    In United States v. McClure, 546 F.2d 670 (5th Cir. 1977),
    the trial judge had rejected as irrelevant an accused
    drug dealer’s proposed evidence that a DEA informer
4                                              No. 06-1078

    coerced three other individuals into selling drugs to
    undercover DEA agents. The Fifth Circuit reversed.
    The Court held that under Rule 404(b) “evidence of a
    systematic campaign of threats and intimidation
    against other persons is admissible to show lack of
    criminal intent by a defendant who claims to have been
    illegally coerced.” Id. at 672-73. In United States v.
    Robinson, 544 F.2d 110 (2d Cir. 1976), this Court found
    error in the trial court’s refusal to permit an accused
    bank robber to prove mistaken identity by showing
    that a third man, who resembled the accused, had
    committed two other bank robberies six days prior
    to the robbery at issue. . . . What Yagih [in
    Aboumoussallem] sought to prove was that Nazih and
    Pierre had a plan to import narcotics from Lebanon
    into the United States using duped couriers. The
    existence of such a plan would lend some support
    to the inference that Yagih was duped and thereby
    bolster his defense of lack of knowledge.
The common element in these cases is proof of a pattern
of criminal conduct by a third person and that the present
case fits the pattern. Does it in this case?
  Trice and Hines, the defendant’s two coconspirators and
the only eyewitnesses to the shooting, are cousins. In a
previous contretemps that Trice had had over drugs—a
theft of marijuana from him—another cousin of Trice’s
had shot and killed the thief. The defendant argues that
the earlier crime is evidence of a distinctive crime style
or pattern—enlisting a cousin to kill for you to protect
your drug business—that points to Hines as the trigger-
man in the present case and thus fits the mistaken-identity
exception in Rule 404(b). See, e.g., Holt v. United States,
342 F.2d 163, 165-66 (5th Cir. 1965). Now it is true that
No. 06-1078                                                  5

even if the defendant was not the triggerman, his convic-
tion would be unaffected. The Pinkerton doctrine would
make the defendant liable for the killing even though one
of his coconspirators had pulled the trigger, since it is fore-
seeable that an armed robbery of a drug dealer may
result in a death. However, the sentence might be af-
fected. Some judges would give the conspirator who had
pulled the trigger a lighter sentence than the triggerman,
Sellers v. Estelle, 651 F.2d 1074, 1077 (5th Cir. 1981), an
exercise of lenity that was permissible even before the
federal sentencing guidelines were demoted to advisory
status. Sims v. Singletary, 155 F.3d 1297, 1316 (11th Cir.
1998). For even in that bygone era a judge had essentially
unreviewable discretion to move a sentence up or down
within the guidelines range.
  Because the nondefendant Rule 404(b) evidence was
relevant only to the sentence, it should not have been
admitted at the trial, but instead reserved for the sen-
tencing hearing. (Such evidence is relevant to guilt, how-
ever, in cases in which the nondefendant witness was not
a coconspirator of the defendant.)
  The defendant argues that all that the judge should have
considered in deciding whether to admit the evidence of
the murder by the other cousin was whether that crime
was “sufficiently similar” to the crime of which Murray
was accused to be relevant to a determination of his guilt
or innocence. That formula appears in many of the
nondefendant Rule 404(b) cases. But what the judge
said, without intoning the canonical but none too
precise formula of sufficient similarity, was quite sensible:
“What you are looking at is there are some crimes that
they’re distinctive, they’re so distinctive that we can look
at the crimes and somebody’s name comes to mind, so to
6                                              No. 06-1078

speak, or you can connect it with some other crime, or
something special about it. And some defendants are
clever, or unique, or gifted or talented, or particularly
stupid so that they always do it the same way.” The other
crime and the crime of which the defendant is accused
must be sufficiently similar to make it likely that who-
ever committed the other crime committed this crime
as well, and that standard will not be satisfied unless
there is something distinctive about all the crimes that
makes them form a pattern, rather than their having
merely a chance resemblance. Without insistence on
more than mere “similarity,” criminal trials may get out
of hand, as defendants cast for other criminals—fishing
in a vast sea—on whom to pin their crime.
  Our defendant failed to prove a pattern. Violence,
sometimes resulting in death, is not a distinctive method
of resolving disputes over illegal drugs, since the dealers
in those drugs cannot use the legal system to protect
property rights and repair or deter breaches of contract.
For the same reason, it is common to bring family mem-
bers into a conspiracy; they are more trustworthy than
strangers. Trust substitutes for law—the tie of blood for
the tie forged by the availability of legal remedies to make
whole and deter. Moreover, the cousin who committed
the earlier murder had thought he was protecting Trice
from the thief; protection is not an issue in the present
case. Murray’s attorney argued to the district judge that
the evidence of the earlier murder should be admitted
in order to allow the jury “to hear the whole story [of]
exactly what kind of person Trice is.” That would be an
attempt to prove propensity rather than pattern.
  Finally, had there been any error in the exclusion of
the evidence, it would have been harmless, since the
No. 06-1078                                               7

defendant had admitted to several persons that he was the
killer.
                                                AFFIRMED.

A true Copy:
      Teste:

                     ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                  USCA-02-C-0072—1-24-07
