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

No. 05-4668
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                 v.

TOMAS ORTIZ,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 04 CR 714—Elaine E. Bucklo, Judge.
                          ____________
 ARGUED NOVEMBER 8, 2006—DECIDED JANUARY 31, 2007
                  ____________


  Before CUDAHY, KANNE, and SYKES, Circuit Judges.
  CUDAHY, Circuit Judge. Tomas Ortiz was found guilty,
as a convicted felon, of possessing of a firearm in viola-
tion of 18 U.S.C. § 922(g)(1). He appeals, arguing both
that § 922(g)(1) is unconstitutional and that the district
court erred by admitting two pieces of evidence at his trial:
testimony that Tomas and a government informant had
together robbed a drug dealer six years earlier and a
videotape showing Tomas preparing marijuana for sale.
Because any error was harmless, we affirm.
  The evidence that convicted Tomas Ortiz was primarily
the testimony of FBI informant William Ortiz and record-
ings he made under FBI supervision. William and Tomas
2                                             No. 05-4668

are both members of the Latin Kings street gang—William
was “Inca” or leader of the gang’s Whipple and Wabansia
chapters—but they share no familial relation. (Nonethe-
less, due to their identical surnames, we will refer to the
pair by their first names.)
  In 2003, the FBI offered to get William a reduced
sentence on a drug charge if he would help the Bureau
obtain evidence against other Latin Kings. William ac-
cepted the offer and aided several investigations of Latin
Kings of the Whipple, Wabansia and Spaulding chapters.
He purchased drugs and weapons from the targets,
surreptitiously recorded their acts and conversations
and testified against them.
  William’s first FBI-sponsored interaction with Tomas
was a series of failed drug buys in late 1993 and early
1994. William told his handlers that he could purchase
drugs or weapons from Tomas. With FBI approval and
buy money, he met Tomas on October 19, 2003 and on
January 23, 29 and 30, 2004. Each time William intended
to purchase crack from Tomas, but each time he re-
turned to his handlers with buy money intact and with no
incriminating evidence.
  In February, the FBI and William changed tactics and
sought to have William obtain a gun from Tomas, who as
a convicted felon could not legally possess a gun. They had
reason to believe that Tomas had a gun, in fact, that he
had two. In a conversation the FBI recorded on January
23, Tomas described a time he tried to confront mem-
bers of a rival gang, the Maniac Latin Disciples:
    Tomas:   We came over here and shit. These niggas
             like, “Man Papo, there’s like five cars of
             Maniacs over here. Yo, what the fuck?”
             I came out with two thangs. “Where them
             bitches at.” (laughing)
No. 05-4668                                             3

   William: Uh huh. They were gone?
   Tomas:     Yeah, yeah, they was gone. Got a big-ass
              Ruger. A Ruger . . . a .22 Ruger and a .380.
(Government Ex. 2 at 2.)
  The FBI’s plan reached fruition on February 11, 2004.
That day, William called Tomas three times. FBI Agent
James McDonald recorded the third call, in which William
asked Tomas, “You let me use one of your toys? To do
somethin’?” (Government Ex. 8 at 1.) William later testi-
fied that by “toys” he meant “guns” and that “do
somethin[g]” meant “rob a drug dealer.” Tomas agreed
to meet William in twenty minutes and hung up.
  FBI Agents outfitted William with audio and video
recording equipment, gave him buy money and sent him
to Tomas’s house in his 1987 conversion van. One set of
FBI agents followed William. Another set waited at
Tomas’s house and recorded from a second vantage
point as William entered the house and conversed with
Tomas. At one point, the following exchange occurred
(bracketed segments are in Spanish, translated by Wil-
liam):
   William: Which one you got?
   Tomas:     Uh, the two two.
   William: The two. You got, you got, you got a round
            in it?
   Tomas:     Huh?
   William: You got a round?
   Tomas:     Yeah.
   William: Cool. . . .
   Tomas:     What is it? One of them thangs?
   William: Huh, yeah, probably two.
4                                               No. 05-4668

    Tomas:    Two what? Bricks?
    William: Two bricks.
    Tomas:    Huh?
    William: [They invited me.] I guess I’ll give you half,
             you know. [For loaning it to me, you know.]
    Tomas:    Don’t trip.
    William: You know.
    Tomas:    You know how we do this.
(Government Ex. 10 at 7.)
William later testified that a “brick” was a brick of cocaine,
about one kilogram, and that at the time he believed the
“two two” was the .22 caliber Ruger Tomas had men-
tioned on January 23. (R. 71 at 177-78.)
   Tomas and William then left the house and got into
William’s van to drive to North Avenue and Albany, where
Tomas said “it[ ]” was at. (Government Ex. 10 at 8.)
William drove and Tomas rode in the passenger seat;
Tomas’s brother followed in a car. One set of FBI agents
followed, but the other stayed back. On the way, Tomas
and William continued to discuss the weapon. William
asked if Tomas had only “one pistol.” Tomas responded
that he “could probably get another one.” (Id.) Tomas
said he didn’t intend to sell “it” to William but that
William would “fall in love with it,” and that it “look like
it got a silencer on it.” (Id. at 9.)
  When they arrived at North and Albany, Tomas went
into a house and returned about a minute later. (At this
time, William’s FBI tails left, fearing that they had
been spotted as law enforcement.) William testified that
Tomas brought back a gun and showed it to him. The gun
does not appear on the videotape, but Tomas and William
were recorded discussing it in detail:
No. 05-4668                                                    5

    William: Lemme see it. [Let me see that.] Damn.
    Tomas:     They look at that, that look like a silencer.
    William: Huh?
    Tomas:     There ain’t nothing in the thing. You pull it
               back here you know . . . [unintelligible]
    William: Ah, that’s like a German pistol.
    Tomas:     Yeah. . . . Shit, more will fit in that bitch too.
    William: How many shots is it?
    Tomas:     Like thirteen.
(Id. at 13.)
  The FBI taped the entire conversation, during which
Tomas continued to discuss the gun. William asked to
whom it belonged, to which Tomas responded, “This
pistol? This my cousin’s shit.” (Id. at 14.) Tomas reiterated
that his cousin would be unwilling to sell the gun but
stated that his cousin “can get us a whole bunch of pistols,
dog. He had crates, in the summer we had crates of guns.”
(Id.)
  William dropped Tomas off at the intersection of Divi-
sion and Homan, where Tomas’s brother picked him up.
William testified that when Tomas left the car, he put the
gun under a newspaper between the passenger’s and the
driver’s seats; this is consistent with the tape, in which
Tomas says, “It’s under here. . . . It’s right under here,”
just before leaving the car. (Id. at 17.) Then William drove
to a prearranged location to rendezvous with his FBI
handlers. They searched the car and recovered a .22
caliber Sturm Ruger pistol. The next day, William called
Tomas to tell him a cover story, that he had lost the
pistol when the planned robbery was foiled by police.
 Tomas was charged with violating 18 U.S.C. § 922(g)(1),
which makes it “unlawful for any person . . . who has been
6                                               No. 05-4668

convicted in any court of, [sic] a crime punishable by
imprisonment for a term exceeding one year . . . to . . .
possess in or affecting commerce, any firearm or ammuni-
tion; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign com-
merce.” The government presented the recordings, Wil-
liam’s testimony and the testimony of several law en-
forcement agents (including Bureau of Alcohol, Tobacco
and Firearms Special Agent Michael Casey, who identi-
fied the gun’s make and opined that it had crossed state
lines in moving from Sturm Ruger’s factory in Connecticut
to Illinois). Tomas was convicted.
  Tomas now appeals on two grounds. First, he argues that
Congress lacks power under the Commerce Clause to enact
§ 922(g)(1). This argument is clearly foreclosed by control-
ling precedent. See, e.g., Untied States v. Sidwell, 440 F.3d
865, 870 (7th Cir.), cert. denied, 127 S. Ct. 137 (2006);
United States v. Bell, 70 F.3d 495, 498 (7th Cir. 1995).
Tomas explains that he advances the argument only to
preserve it for possible Supreme Court review, and we will
discuss it no further.
  Second, Tomas argues that his conviction was tainted
by the improper admission of two pieces of evidence during
the prosecution’s redirect examination of William: testi-
mony concerning an earlier drug robbery and a video-
tape of Tomas preparing marijuana for sale. This evidence
allegedly violated the Rule 404(b) ban on using evidence
of other crimes to show action in conformity with char-
acter and had a prejudicial effect that substantially
outweighed its probative value in violation of Rule 403.
“Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
action in conformity therewith. It may, however, be
admissible for other purposes.” Fed. R. Evid. 404(b). In
order to offer evidence of past crimes or acts for “other
purposes,” the prosecution must show that the evidence
No. 05-4668                                             7

establishes a matter in issue other than the defendant’s
propensity to commit the charged crime, that the act is
similar enough and sufficiently close in time to be rele-
vant to the matter in issue, that the evidence of the past
crime or act is sufficient to support a jury verdict that
the crime or act occurred and that the evidence has
probative value not substantially outweighed by its
prejudicial effect. United States v. Leahy, 464 F.3d 773,
797 (7th Cir. 2006), quoting United States v. Anifowoshe,
307 F.3d 643, 646 (7th Cir. 2002); United States v.
Chaimson, 760 F.2d 798, 804 (7th Cir. 1985). We review
the district court’s application of this test for abuse of
discretion. Leahy, 464 F.3d at 797; Anifowoshe, 307 F.3d
at 658.
  The robbery evidence was presented for a reason other
than showing action in conformity with character, namely
to show the meaning of the terms in William and Tomas’s
conversations on February 11 and February 12; however,
the probative value of the evidence is not impressive.
During William’s cross examination, defense counsel
emphasized that William had never asked for a gun by
name or used “any word like stick-up, robbery, [or] rip-
off ” in his February 11 and February 12 telephone calls,
but had instead referred obliquely to “toys” and “do[ing]
somethin[g].” The implication was that Tomas might have
understood William to be talking about something other
than armed robbery. On redirect, the government ques-
tioned William about a time in 1998 when William, Tomas
and other Latin Kings robbed a drug dealer.
  The government argued that the prior robbery showed
that William and Tomas might have had a private code
or slang for drug robberies: “The reason why they don’t
use the term ‘stick up’ . . . is because they know, they
both know what they’re going to do because they’ve done it
before.” (R. 26 at 250.) This is a relevant issue distinct
from any propensity of Tomas to commit armed robberies.
8                                               No. 05-4668

It is often relevant whether a criminal defendant under-
stood a conversation, and courts can sometimes prop-
erly admit other-crimes evidence offered to show a de-
fendant’s familiarity with certain unusual linguistic
usage, for example, in drug prosecutions where the
traffickers deliberately use code to hide their transac-
tions from potential surveillance. See, e.g., United States v.
Morgan, 354 F.3d 621, 622-23 (7th Cir. 2003) (upholding
the admission of other-crime evidence, including evi-
dence containing code phrases in drug transactions, to
show that a drug courier acted as agent for the defendant);
United States v. Harris, 271 F.3d 690, 705 (7th Cir. 2001)
(upholding the admission of testimony about uncharged
prior drug deals where the evidence helped explain, among
other things, the defendant’s use of code). But William only
testified that a robbery had occurred, not that the perpe-
trators had used code such as “toy” or “something” in
connection with it. Even assuming that Tomas used code or
slang in 1998, it requires another leap to conclude that he
would quickly pick up on the same terminology six years
later, having for all we know never used a similar expres-
sion in the interim. Cf. United States v. Garcia, 291 F.3d
127, 138 (2d Cir. 2002) (holding that testimony of a prior
cocaine conviction twelve years in the past was not
“meaningfully probative” as to whether the defendant
understood a drug conversation when “[t]here was no
proffer that the earlier transaction used a code or involved
the same people”).
  Tomas also objected to a videotape recorded on January
23, 2004, that shows him preparing marijuana for sale.
While cross-examining William, the defense counsel
established that William told the FBI that he could
purchase drugs from Tomas but repeatedly failed to do
so. William admitted that in February 2004 he knew that
he “had to deliver results for [the FBI] to get [his sen-
tencing] deal,” that he knew the FBI was getting ready
No. 05-4668                                               9

to charge him and that he came up with the idea of
obtaining a gun from Tomas to “help [him]self.” (R. 27 at
238-39.) In apparent response, the government on redirect
elicited testimony that Tomas had told William he was
selling “China white” (i.e., heroin) (R. 27 at 247), and the
government introduced a video showing Tomas prepar-
ing and sealing “dime bags” of marijuana (Government
Ex. 18, R. 27 at 267-71). Tomas objected only to the video.
  The district court admitted the tape on the ground that
defense counsel had put Tomas’s drug habits in issue by
suggesting that William had lied about those habits to
the FBI. (See, e.g., R. 27 at 258 (“If the issue is did you
ever sell drugs . . . we have the defendant on screen
rolling.”).) But while a jury could have concluded that
William lied to the FBI, the defense counsel’s argument
focused instead on the distinct issue of whether William’s
FBI deal gave him an incentive to frame Tomas, especially
in light of his early failures to hold up his end of the
bargain. This was impeachment though a showing of
personal interest in incriminating Tomas, not a showing
of dishonesty, and whether Tomas actually sold drugs
was not directly relevant. Even if William had been
completely honest with the FBI, he might have worried
that the FBI thought he was a liar when he was unable
to buy drugs, or he simply might have thought his FBI deal
would fall through in the absence of some incriminating
evidence.
  Whether the testimony and video were admissible under
the somewhat convoluted theories presented by the
government is a close question. However, we need not
resolve this question, because the admission of the evi-
dence objected to could not possibly have caused Tomas’s
conviction. Errors do not merit reversal when the gov-
ernment proves that they are harmless, that is, that they
did not affect the outcome of the trial. Fed. R. Crim. P.
52(a); United States v. Thomas, 321 F.3d 627, 635 (7th Cir.
10                                             No. 05-4668

2003) (holding that the burden is on the government to
show that the error did not affect the outcome of the
proceedings); see also Alvarez v. Boyd, 225 F.3d 820, 825
(7th Cir. 2000) (addressing “cumulative error”). Courts
have sometimes tried to describe that burden in a dif-
ferent way in the case of a jury trial, saying, for example,
that the government must show that the prosecution’s
case would not have been significantly less persuasive to
the average juror if the improper evidence had been
excluded. United States v. Owens, 424 F.3d 649, 656 (7th
Cir. 2005). However, the basic idea is the same: we must
be convinced that the jury would have convicted even
absent the error.
  Here we have no doubt that the jury would have con-
victed without the robbery testimony and video. There are
three elements to a § 922(g)(1) violation: the prior felony,
the possession of the gun and the gun’s travel in inter-
state commerce (i.e., across state lines) prior to the de-
fendant’s possession of it. United States v. Birk, 453 F.3d
893, 897 (7th Cir. 2006); United States v. Hodges, 315 F.3d
794, 799 (7th Cir. 2003); see also United States v. Lewis,
100 F.3d 49, 52 (7th Cir. 1996) (holding that movement of
a gun across state lines grants Congress power to regulate
its possession under the Commerce Clause). Tomas
stipulated that he had committed a felony, and the evi-
dence of his handgun possession can properly be described
as overwhelming. See Birk, 453 F.3d at 898 (concluding
that error in admitting testimony of a defendant’s past
crimes was harmless in light of “overwhelming evidence”
demonstrating his possession of a gun in violation of
§ 922(g)(1)); United States v. Brown, 328 F.3d 352, 358 n.6
(7th Cir. 2003). In William’s van, Tomas was recorded
repeatedly using demonstratives that make no sense
absent a weapon to demonstrate, referring to “this pistol”
and to “that” shape which “look[s] like a silencer.” At one
point he even indicated that he was operating part of the
No. 05-4668                                             11

gun’s mechanism, saying “you pull it back here, you know.”
It is also clear that he was familiar with the gun before-
hand, since he knew in advance that the gun “look[s] like
it got a silencer on it,” and had said that he used the
same type of gun, a .22 Ruger, on a previous occasion.
There are only two reasons why Tomas would have said
such things to William: either Tomas was deliberately
framing himself for possession of the gun (quite implausi-
ble), or Tomas had retrieved a gun from his cousin’s house
and brought it to William so that William could rob a
drug dealer.
  Knowing that he cannot show prejudicial error with
respect to his possession of the pistol, Tomas instead
argues that the error affected the jury’s verdict as to the
third element of the crime, the gun’s travel across state
lines. This argument fails as well. Agent Casey testified
that Sturm Ruger manufactured its guns in Connecticut
and that he had “no knowledge” of Ruger’s ever subcon-
tracting to an Illinois manufacturer, including “basement
manufacturers” and “low-cost individuals.” (R. 71 at 310-
12.) This was easily enough to support the verdict. Cf.
United States v. Groves, 470 F.3d 311, 324-25 (7th Cir.
2006) (holding that testimony that there were no “major
manufacturers” of firearms in Indiana was insufficient
to link an unidentified gun to interstate commerce). Tomas
presented no evidence in rebuttal and it seems unlikely,
given Casey’s testimony about his efforts to keep up with
gun manufacturers’ practices (R. 71 at 307-08), that any
jury would have been inclined to suspect that Ruger had
subcontracted its pistol manufacture to an Illinois manu-
facturer without Casey’s knowledge.
  At any rate, leaving the strength of Casey’s testimony
aside, the evidentiary link between Tomas’s prior crimes
and the interstate commerce issue is weaker than tenuous.
Even thoroughgoing criminals do not care much where
their guns come from so long as they function. If they
12                                              No. 05-4668

care at all, it is probably because they are familiar with
federal law and want a gun that has not crossed state
lines.
   Tomas argues that the robbery and videotape “drew the
jury’s attention away from the weakness in the evidence”
(Br. of Def.-Appellant at 22) by “focusing the jury’s atten-
tion on the fact that Tomas was a criminal” (Reply Br. of
Def.-Appellant at 5). The idea seems to be that Tomas’s
robbery and drug dealing so inflamed the jurors that
they disregarded their instructions and convicted Tomas
even though they were not convinced that the gun
crossed state lines. See, e.g., Owens, 424 F.3d at 657, citing
Estelle v. Williams, 425 U.S. 501, 503-05 (1976) (finding
that an inflammatory photograph of a defendant in a
prison jumpsuit “constant[ly] remind[ed]” the jury of past
criminality and “undermine[d] the fairness of the fact-
finding process”); United States v. Green, 548 F.2d 1261,
1271 (6th Cir. 1977) (holding that irrelevant evidence of
intent to distribute drugs was a “highly inflammatory
trial tactic which innately prejudiced Appellants’ rights to
a fair trial”). This argument cannot succeed because, in
addition to the reasons already discussed, the jury already
knew from other, admissible evidence that Tomas was a
robber and drug dealer. Overwhelming evidence showed
that Tomas got William a pistol; he did it to help William
rob a drug dealer in exchange for half of the promised
haul, a brick of cocaine. That is clear not only from Wil-
liam’s testimony about the meaning of his February 11
telephone conversation, but also from the February 12
telephone conversation in which Tomas expressed no
surprise at William’s description of an attempted rob-
bery (Government Ex. 12 at 3-4) and from Tomas’s in-
quiry into whether William was after two “bricks.” And
weighing in at one kilogram, a brick of cocaine is not
something one can consume entirely by oneself; Tomas’s
only use for that much cocaine would have been to sell it.
No. 05-4668                                               13

See United States v. Smith, 34 F.3d 514, 523-24 (7th Cir.
1994) (holding that intent to sell drugs can be inferred
from “possession of a quantity of drugs larger than needed
for personal use,” and noting that one kilogram of cocaine
is more than is needed for personal use); see also United
States v. Wash, 231 F.3d 366, 371 (7th Cir. 2000) (describ-
ing witness testimony that more than five grams of crack
cocaine suggests an intent to sell); United States v. Tanner,
941 F.2d 574, 587 (7th Cir. 1991) (describing witness
testimony that possession fifty-five grams of pure powder
cocaine was indicative of distribution). The jury thus
already had evidence from which to conclude that Tomas
was not one to shrink from orchestrating armed rob-
beries and selling drugs. If the jury was improperly
inflamed against Tomas, it was not the fault the of chal-
lenged evidence.
  We are therefore convinced that the jury would not have
acquitted if the district court had sustained Tomas’s
objections below. Consequently, any errors were harm-
less, and we affirm the judgment of the district court.

A true Copy:
      Teste:

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




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