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

No. 05-4251
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,
                             v.

JON S. HOLT,
                                      Defendant-Appellant.
                       ____________
           Appeal from the United States District Court
              for the Western District of Wisconsin.
      No. 05-CR-049-C-01—Barbara B. Crabb, Chief Judge.
                       ____________
     ARGUED MAY 30, 2006—DECIDED AUGUST 22, 2006
                     ____________


 Before POSNER, KANNE, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. Jon Holt was involved in a conspir-
acy to manufacture methamphetamine. Eventually the
authorities caught up with him, and he was indicted by a
federal grand jury both for the drug conspiracy, see
21 U.S.C. § 846, and for intimidating a witness, see 18
U.S.C. § 1512(b). This appeal concerns a number of eviden-
tiary rulings the district court made during the course of
Holt’s trial, in which the court admitted evidence over
Holt’s objection based on Fed. R. Evid. 404(b). While some
of that evidence might better have been excluded, we
conclude that any error the district court may have commit-
ted was harmless. We therefore affirm.
2                                               No. 05-4251

                             I
  According to Sheila Labo, who was also involved in the
conspiracy, Holt supplied anhydrous ammonia and other
ingredients to the individuals who cooked the drugs. The
actual cooking took place in the garage of another co-
conspirator, Rick Ware. Like many witnesses in drug cases,
Labo was no saint. She was a heavy user of methamphet-
amine herself, she was cooperating with the police, and she
used drugs and alcohol while on parole. Other witnesses
also testified about Holt’s role in the offense, consistent
with Labo’s account. The evidence to which Holt is now
objecting on appeal was about his girlfriend, Nicole
MacLean. At the time of the events charged in the indict-
ment, MacLean had lived with Holt for approximately 10
years. Over defense objections, the trial court permitted the
government to introduce evidence showing that the sexual
relationship between Holt and MacLean had begun when
MacLean was only 14 or 15 years old, and Holt was in his
mid-thirties. The court also admitted evidence showing that
Holt provided MacLean with her first methamphetamine
when she was 15 years old; after that, she became a regular
user and ultimately became addicted to the drug. Finally,
MacLean was permitted to testify that Holt hit her, injuring
her face, approximately three weeks before her testimony
before the grand jury. At the time, both Holt and MacLean
were high on the drug. She also testified that Holt had hit
her before.
  When Holt and MacLean realized that investigators
were looking for MacLean so that they could serve her with
a subpoena to testify before the grand jury, the two tried to
evade service. Eventually, however, the subpoena was
served and MacLean appeared. In spite of the fact that Holt
was under a “no contact” order from a Minnesota court
requiring him to stay away from MacLean, he met her on
the day of the grand jury appearance, drove her to Madison,
and met her afterwards. Holt’s actions with respect to
No. 05-4251                                                 3

MacLean’s grand jury testimony were the basis for the
charge of intimidating a witness.
  The jury convicted Holt on the drug count, but it acquit-
ted him of intimidating a witness; this led to a sentence
of 327 months in prison and three years’ supervised release.
On appeal, Holt complains only about the district court’s
evidentiary rulings relating to his relationship
with MacLean. He has not raised any issue relating to
his sentence.


                             II
  We review the district court’s decision whether to admit
evidence for abuse of discretion. United States v. Redditt,
381 F.3d 597, 600-01 (7th Cir. 2004). Even if there is a
mistake, we will not reverse if the error was harmless.
United States v. Bonty, 383 F.3d 575, 579 (7th Cir. 2004).
We therefore evaluate challenges like Holt’s in light of
all the evidence that was before the jury.
  Before addressing the merits of Holt’s arguments, we
must decide whether he may present them at all, or if (as
the government urges) he waived them. Holt’s brief argues
that the district court admitted the evidence regarding
MacLean in violation of Fed. R. Evid. 404(b). According to
the government, however, Rule 404(b) never entered the
picture, because the district court admitted the evidence as
“inextricably intertwined” with the intimidation count— put
more succinctly, as directly relevant to the charge. Holt’s
opening brief does not separately discuss either the possibil-
ity that this evidence was an integral part of the intimida-
tion count or Fed. R. Evid. 403, which allows a district court
to exclude relevant evidence if its prejudicial impact
substantially outweighs the value of the evidence. Respond-
ing to the government’s position, Holt’s reply brief asserts
that the district court did not rely on the “inextricably
intertwined” rationale. The reply brief also states that the
4                                                No. 05-4251

admissibility question might be addressed more directly
under Rule 403, but that the balancing process is part of
the Rule 404(b) analysis in any event, and so the question
was preserved for appellate review.
   We are satisfied that there was no waiver here. In its
ruling from the bench, the district court did not fully spell
out its reason for admitting the evidence. Holt made his
position clear both there and in this court that he was
objecting to the evidence on the ground that it was highly
prejudicial. Moreover, the court’s ruling did not occur in
a vacuum. Prior to trial, Holt filed a motion in limine
requesting an order that excluded from use at trial any
evidence that he beat up Nicole MacLean in 2003 (on the
ground that the alleged incident was unrelated to the
charged offense), evidence that he had a sexual relationship
with MacLean before she turned 18 (on the ground that this
information was highly prejudicial and inflammatory), and
evidence that he used methamphetamine with MacLean
while she was still a teenager (on the ground that this
evidence was more prejudicial than probative). Shortly
thereafter, the government indicated its intent to offer
evidence that Holt supplied MacLean with methamphet-
amine beginning when she was 14 and throughout their 10-
year relationship. In its filing, the government argued that
this evidence was directly relevant to the crime charged in
Count 2 of the indictment and therefore admissible without
regard to Rule 404(b). In the alternative, the government
argued that even if the court thought that the evidence was
subject to Rule 404(b) analysis, it was admissible to prove
Holt’s intent to intimidate MacLean prior to her grand jury
testimony. In a letter to the court, defense counsel indicated
that Holt objected to the admission of this evidence under
Rules 403 and 404(b), and he took issue with the govern-
ment’s position that it was closely linked to the intimidation
charge. The court then issued a preliminary order in which
it said that the dispute about this evidence was “textbook
No. 05-4251                                                   5

403 and 404(b),” and it said that the parties should be
prepared to discuss the matter further at the final hearing.
Even though, in the end, the district court commented when
it allowed the evidence in that the nature of the relation-
ship between Holt and MacLean was “very critical to
understanding whether she was intimidated,” and the court
did not give a separate Rule 404(b) limiting instruction, we
are satisfied that enough happened at the trial level to
preserve the point for appellate review.
   At this point, we would not reverse unless the evidence
failed all tests of admissibility (otherwise, any error
in citing one rule or another would be harmless). Rule
404(b) says that “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order
to show action in conformity therewith”—in other words,
other-crimes evidence cannot be used to show propensity to
commit the charged crime, although it can be used for other
enumerated purposes. But, if the evidence relates to acts
“concerning the chronological unfolding of events that led to
an indictment, or other circumstances surrounding the
crime,” it is not evidence of “other” acts, as Rule 404(b) uses
the term. United States v. Ramirez, 45 F.3d 1096, 1102 (7th
Cir. 1995). Instead, it is part of the story of the very offense
for which the defendant is on trial, even if it only does
something like completing that story or explaining the
circumstances. United States v. Senffner, 280 F.3d 755, 764
(7th Cir. 2002). Subject to Rule 403, which applies to all
relevant evidence, evidence about these closely linked acts
may be admitted.
  At the time of the trial, of course, the government was
still pursuing the witness intimidation charge. In order to
convict Holt of violating 18 U.S.C. § 1512(b), the govern-
ment had to prove that “1) [MacLean] was a witness or a
prospective witness; 2) [Holt] attempted to persuade
[MacLean] to provide false testimony; and 3) [Holt] acted
knowingly and with the intent to influence [MacLean’s]
6                                               No. 05-4251

testimony.” United States v. LaShay, 417 F.3d 715, 718 (7th
Cir. 2005). Direct evidence of intent, we have noted before,
is usually unavailable. United States v. Johnson, 903 F.2d
1084, 1087 (7th Cir. 1990). The government therefore had
to present circumstantial evidence that would satisfy this
part of its burden of proof. See also Old Chief v. United
States, 519 U.S. 172, 190 (1997) (reaffirming the general
rule that “the prosecution with its burden of persuasion
needs evidentiary depth to tell a continuous story,” while
ruling that this rule does not apply when the only issue is
one of legal status independent of the concrete events of the
criminal behavior).
  By itself, the fact that Holt gave MacLean a ride to the
grand jury proceeding seems innocuous. Only in the context
of the abusive relationship that began when MacLean was
just 14 years old and Holt was in his mid-thirties does it
begin to take on a more sinister tone. The evidence showed
that Holt beat and threatened MacLean within weeks of her
grand jury appearance, against a backdrop of years of that
kind of behavior. The sexual relationship also provided
background for the jury, as it might have explained the hold
that Holt had over a woman twenty years or so his junior.
The district court did not abuse its discretion in deeming
this evidence relevant to prove an element of the charged
crime. See United States v. Heath, 447 F.3d 535, 539 (7th
Cir. 2006).
  We also see no abuse of discretion in the court’s assess-
ment that the probative value of this evidence outweighed
its prejudicial impact, though we recognize that the prejudi-
cial impact could have been considerable. We have already
explained how it might have helped the jury to understand
the intimidation charge; we add only that there is often an
overlap between highly relevant and highly “prejudicial”
evidence. The kind of prejudice that Rule 403 is designed to
address is that which would cause the jury to decide on a
basis other than the facts put before it. Similarly, part of
No. 05-4251                                                 7

the analysis required under Rule 404(b) is the question
whether “the probative value of the evidence is not substan-
tially outweighed by the danger of unfair prejudice.” United
States v. Zapata, 871 F.2d 616, 620 (7th Cir. 1989). Which-
ever rule applies, the inquiry and the outcome are the
same. The government was not using this evidence to show
Holt’s propensity to beat MacLean; it was using it to prove
his intent in driving her to the place where the grand jury
was meeting.
  Finally, even if we were to conclude that the district court
should have excluded at least some of this
evidence—perhaps the evidence of the origins of the sexual
relationship and Holt’s role in making MacLean a metham-
phetamine addict—any error it committed was harmless.
The court carefully instructed the jury that it was
to consider this evidence only in connection with the
intimidation count, and the jury acquitted Holt on that
charge. The chance that this evidence affected the jury’s
evaluation of the drug conspiracy count is low to none,
given the strength of the government’s case. As we noted
earlier, Labo testified at trial that Holt agreed to provide
anhydrous ammonia to her in order to make the metham-
phetamine. She also testified that she obtained a tank for
the ammonia from Holt, as well as pills. Holt put her
in touch with the people who were able to cook the metham-
phetamine and told her that he wanted half of the “cook.”
Witnesses Douglas Mudek and Wendy Phillips corroborated
some of Labo’s testimony. Mudek testified that Labo
obtained the supplies (the anhydrous ammonia and pills)
from Holt. He admitted that he agreed to cook the drugs for
Holt and Labo. He also corroborated Labo’s claim that Holt
wanted half of the “production run.” Another witness,
Sharmin Hanson, also supported Labo’s account. In the face
of this testimony, we are satisfied that the evidence about
MacLean could not have had an effect on the jury’s verdict
on the methamphetamine charges.
8                                               No. 05-4251

    The judgment of the district court is AFFIRMED.

A true Copy:
        Teste:

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




                    USCA-02-C-0072—8-22-06
