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

No. 07-3445
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                               v.

FRED T. MOORE,
                                           Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
               for the Southern District of Illinois.
           No. 07 CR 30027—William D. Stiehl, Judge.
                        ____________
        ARGUED MAY 8, 2008—DECIDED JULY 1, 2008
                        ____________


  Before COFFEY, RIPPLE and SYKES, Circuit Judges.
  RIPPLE, Circuit Judge. A jury convicted Fred Moore of
one count of possession with intent to distribute 50 grams
or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 851, one count of using a firearm in
furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c), and one count of being a felon in pos-
session of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The district court sentenced him to 300 months’ imprison-
ment, to be followed by 10 years’ supervised release. On
appeal, he challenges the admission into evidence of a
statement that he allegedly made to a police officer in
2                                              No. 07-3445

which he described his prior possession of crack for
distribution. Because we conclude that the district court
did not abuse its discretion by admitting this evidence,
we affirm.


                             I
                    BACKGROUND
  On January 29, 2007, police officer Lance Reynolds of
Granite City, Illinois, noticed someone driving a stolen
car in East St. Louis. Officer Reynolds signaled for the car
to stop, but the driver sped off into a nearby alley. The
officer followed. He saw the driver and the passenger,
Fred Moore, exit the vehicle and flee, and he ran after
them. The driver escaped, but Officer Reynolds caught up
to Mr. Moore, shortly after observing him throw a bag
onto the ground. Mr. Moore resisted arrest, but he finally
was handcuffed and detained. Officers retrieved the bag
that Mr. Moore had thrown, as well as a .40 caliber Glock
27 handgun found within five feet of the bag. The bag
contained 89.2 grams of powder cocaine, 279.1 grams of
crack cocaine and $4,045 in cash.
  Before trial, the Government gave notice of its intent to
introduce evidence under Federal Rule of Evidence 404(b)
of Mr. Moore’s prior involvement in a drug offense. The
Government proposed introducing evidence that, two
weeks before the date of the charged offense, Mr. Moore
had signed a written statement in which he admitted that
he had thrown another bag of crack cocaine from his car
while attempting to evade police. The Government sub-
mitted that this evidence would establish Mr. Moore’s
knowledge, intent, motive and absence of mistake with
respect to the charged crimes.
No. 07-3445                                                  3

  Mr. Moore objected to the Government’s proposed use
of this evidence. He argued that the evidence in question
was unreliable and unduly prejudicial. In his view, it
was being used improperly to prove his propensity to
commit the crimes charged. He also contended that the
statement that he allegedly had made to police was not
recorded and would confuse the jury.
  The district court overruled Mr. Moore’s objection. First,
the court determined that the evidence was not of the
type that was likely to inflame a jury’s emotions. Therefore,
the court reasoned, an exclusion under Rule 403 for
undue prejudice was unwarranted. The court next held
that the evidence was admissible to show Mr. Moore’s
intent, knowledge, lack of mistake or motive with respect
to the charged crimes. The court noted that a jury instruc-
tion would eliminate any confusion and prevent a “mini-
trial” on the earlier arrest. Finally, the court explained that
cross-examination of the officer who took Mr. Moore’s
statement would resolve any question about the state-
ment’s reliability.
  The uncharged misconduct was admitted at trial
through the testimony of Ontourio Eiland, a detective
sergeant with the East St. Louis Police Department’s
Narcotics Unit. Detective Eiland testified that he had
witnessed Mr. Moore’s statement to the police on Janu-
ary 16, 2007. The Government’s lawyer presented Detec-
tive Eiland with a copy of the written statement, and he
confirmed that it was the same statement that he had
witnessed and that it fairly represented Mr. Moore’s words.
The Detective then read the statement into evidence.
According to the statement, Mr. Moore was driving a
car when the police attempted to pull him over. Mr. Moore
did not pull to the side; he drove quickly to get away
4                                             No. 07-3445

from the police, without stopping at stop signs. In the
statement, Mr. Moore also admitted that he had possessed
ten rocks of crack cocaine, which he had thrown out of
the car’s window as the police approached. Mr. Moore
stated that he had purchased the drugs the night before
for $130 and intended to sell them to someone for double
what he had paid for them. During cross-examination,
Detective Eiland admitted that he had not been present
during the police chase and that he only knew of the
events recounted in the statement second-hand. He also
stated that, as far as he knew, Mr. Moore possessed only
about five grams of crack. The Detective agreed that
recording equipment was available in the police station
but had not been used during Mr. Moore’s alleged state-
ment. Finally, he testified that no charges ever were
brought against Mr. Moore in connection with this event.
  The Government then called five other witnesses. Officer
Reynolds testified about the chase and arrest of Mr.
Moore on the night of the charged offense. Wade
Gummersheimer, a DEA task force agent, testified that
he had interviewed Mr. Moore after his arrest for the
charged conduct. He testified that, during this interview,
Mr. Moore had admitted that he had thrown down the
bag after Reynolds caught up to him but that Mr. Moore
had refused to discuss the drugs and the gun. Government
witnesses also testified as to the location of the bag
of drugs and the firearm, inconclusive fingerprint traces
on the gun, the gun’s transfer in interstate commerce and
Mr. Moore’s stipulation that he previously had been
convicted of a crime punishable by more than a year’s
imprisonment.
 Mr. Moore called three witnesses to testify: an East St.
Louis police officer, a police forensic scientist and an
No. 07-3445                                                5

investigator in the Federal Public Defender’s Office.
Through these witnesses, Mr. Moore attempted to cast
doubt on his possession of the handgun by showing that a
man, who had witnessed a previous shooting involving
the same gun, lived near the scene of Mr. Moore’s arrest
and might have put the gun where it was found. However,
this testimony was inconclusive: The forensic scientist
could not determine whether Mr. Moore had ever fired
the gun, and the investigator acknowledged that he had
not spoken with the other man or attempted to learn any
additional information about him. The jury returned a
verdict of guilty on all counts.


                             II
                      DISCUSSION
A. Admission of the Evidence
  Mr. Moore now challenges the district court’s admission
of evidence of his previous arrest, including his prior drug
dealing and his flight from police. He submits that the
evidence did not establish a matter in issue, but was used
only to show that he had a propensity to commit the crime.
  Rule 404(b) prohibits the use of prior convictions or
other evidence of bad acts to establish that the defendant
has a propensity to commit crimes. United States v. Taylor,
522 F.3d 731, 732 (7th Cir. 2008). However, the Rule does
allow such evidence to be introduced to prove other
material facts, including motive, opportunity, intent,
preparation, plan, knowledge, identity and absence of
mistake or accident. See id. We review a district court’s
decision to admit evidence under Rule 404(b) for an abuse
of discretion. United States v. Price, 516 F.3d 597, 603 (7th
6                                                  No. 07-3445

Cir. 2008). Evidence may be admitted under Rule 404(b)
only if four conditions are met:
    (1) the evidence is directed toward establishing a
    matter in issue other than the defendant’s propensity
    to commit the crime charged; (2) the evidence
    shows that the other act is similar enough and close
    enough in time to be relevant to the matter in issue;
    (3) the evidence is sufficient to support a jury finding
    that the defendant committed the similar act; and
    (4) the probative value of the evidence is not substan-
    tially outweighed by the danger of unfair prejudice.
United States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007)
(internal quotation marks and citation omitted).
  Mr. Moore maintains that neither the first nor the fourth
requirement is satisfied. In his view, the district court
erroneously determined that evidence of his bad acts
was probative of intent, knowledge, lack of mistake and
motive. He stresses that the district court should not
have admitted the evidence to prove intent or knowl-
edge because there was no direct evidence that he had
known that the second bag contained cocaine.
  We cannot accept Mr. Moore’s argument. Mr. Moore
was charged with knowingly possessing drugs with intent
to distribute them. The Government therefore had the
burden of proving, beyond a reasonable doubt, that Mr.
Moore had intended to exercise control over the drugs for
distribution and that he knew that the bag indeed con-
tained drugs.1 The evidence of the prior drug buy, which


1
  See United States v. Mendoza, 510 F.3d 749, 752 (7th Cir. 2007)
(“In order to prove Mendoza was guilty of distribution of
                                                   (continued...)
No. 07-3445                                                        7

occurred just two weeks before the charged offense, tended
to prove that Mr. Moore knew about and intended to
control the drugs that he later threw from the vehicle.2
  Indeed, Mr. Moore himself raised the issue of knowl-
edge. His defense, according to his brief and oral argu-
ment, was that he did not knowingly possess the drugs.
Instead, he attempted to show that the driver of the
stolen vehicle, in which he was a passenger, gave
Mr. Moore the bag and told him to toss it, without telling
him what was in it. Given this defense, Mr. Moore’s
prior admission that he had engaged in drug sales sug-
gests that he was not merely an “innocent bystander” to


1
   (...continued)
amphetamine, the government had to show that Mendoza
distributed amphetamine to a third party, that he did so
knowingly and intentionally, and that he knew he was dis-
tributing a controlled substance.”); United States v. King, 356
F.3d 774, 779 (7th Cir. 2004) (noting that the Government had
to prove that the defendant distributed methamphetamine
knowingly or intentionally, knowing that substance was a
controlled substance).
2
  See United States v. Mallett, 496 F.3d 798, 801-02 (7th Cir. 2007)
(concluding that evidence of a drug sale eight months before the
charged conduct was properly admitted to show intent and
knowledge in a prosecution for maintaining a crack distribution
place and for possession with intent to distribute); United
States v. Hurn, 496 F.3d 784, 787-88 (7th Cir. 2007) (holding that
evidence of a 10-year-old drug conviction was properly admit-
ted to show intent in a prosecution for possession with intent to
distribute); see also United States v. Blount, 502 F.3d 674, 676 (7th
Cir. 2007) (concluding that evidence of prior drug deals that
had occurred one month before the charged drug offense
was properly admitted).
8                                               No. 07-3445

drug activity. See Taylor, 522 F.3d at 734 (“[I]f a defendant
makes an issue of his criminal intent . . . his previous
activities may become relevant to inferring his state of
mind with regard to the current charges.”); United States v.
Hurn, 496 F.3d 784, 788 (7th Cir. 2007); United States v.
Chavis, 429 F.3d 662, 668 (7th Cir. 2005).


B. Danger of Unfair Prejudice
  Mr. Moore also contends that the district court underesti-
mated the potential for this evidence to influence the
jury to render a decision on an improper basis. He sub-
mits that the district court assessed this danger only
with respect to the emotional impact the challenged
evidence might have on the jury, when it should have
considered other types of unfair prejudice, such as the
possibility that the jury could conclude that the defendant
simply is a bad person deserving of punishment. See
United States v. Simpson, 479 F.3d 492, 497 (7th Cir. 2007).
  Mr. Moore has failed to show that the district court
abused its discretion in determining that any danger of
unfair prejudice did not outweigh substantially the proba-
tive value of the evidence. Knowledge was not only an
element of the crime but also the focus of Mr. Moore’s
defense. Evidence that Mr. Moore had possessed and
intended to distribute drugs just two weeks before the
charged offense was probative of his intent to exercise
control over the drugs in the present transaction and of
his knowledge of the likely contents of the bag. Because
the earlier act was a similar act to the charged offense,
this evidence was certainly “prejudicial” to Mr. Moore in
the sense that it played a role in establishing the case
against him. However, the district court alleviated any
No. 07-3445                                                  9

unfair prejudice by giving a limiting instruction, the con-
tent of which Mr. Moore does not challenge. See United
States v. Denberg, 212 F.3d 987, 994 (7th Cir. 2000)
(“[L]imiting instructions are effective in reducing or
eliminating any possible unfair prejudice from the intro-
duction of Rule 404(b) evidence.”). Thus, the district
court did not abuse its discretion in admitting evidence
of the first arrest under Rule 404(b).


C. Use of the Evidence with Respect to Firearms Charges
  Mr. Moore also contends that the district court errone-
ously ruled that the Rule 404(b) evidence was admissible
with respect to the firearms charges because there was
no evidence that Mr. Moore had possessed a gun during
the earlier arrest. He submits that the district court im-
properly admitted the evidence to prove all three charged
crimes, including the firearms offense.3 We cannot agree.
The evidence was admissible, provided that it met the
requirements of Rule 404(b), even if it was not relevant to
each charge against Mr. Moore. The jury’s use of this
evidence was guided by the court’s cautionary instruc-
tion. Reading the instructions in their totality, we are
unable to see how the jury could have misused this evi-
dence in its consideration of the firearms charges. Notably,
Mr. Moore did not request a further instruction.




3
   The court ruled: “Here, the Court FINDS that this evidence
is admissible to show intent, knowledge, lack of mistake, or
motive, with respect to the charged crimes, and is not unfairly
prejudicial.” R.37 at 3-4.
10                                            No. 07-3445

                       Conclusion
  We hold that the district court did not abuse its discre-
tion when it admitted evidence of Mr. Moore’s prior drug
sale and possession. The challenged evidence satisfies
the demands of Rule 404(b) because it was relevant and
probative on the issue of Mr. Moore’s knowledge of the
contents of the bag, a fact that Mr. Moore himself put at
issue during his trial. We also conclude that the district
court properly balanced the possible unfair prejudice to
Mr. Moore against the probative value of the evid-
ence, and the cautionary instruction given to the jury
adequately guided its deliberations.
  Accordingly, the judgment of the district court is
affirmed.
                                                AFFIRMED




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