In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1362

United States of America,

Plaintiff-Appellee,

v.

Cortez Rhodes,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 141--Joan B. Gottschall, Judge.


Argued September 25, 2000--Decided October 13, 2000



  Before Flaum, Chief Judge, and Easterbrook and Diane
P. Wood, Circuit Judges.

  Easterbrook, Circuit Judge. Two of the three
issues raised in Cortez Rhodes’s appellate brief
were withdrawn in his reply brief. The only
argument still requiring resolution is the claim
that the district judge abused her discretion in
admitting evidence that Rhodes possessed a pellet
gun when arrested and had carried other weapons
before.

  Rhodes stood trial on charges of importing and
conspiring to distribute cocaine. Testifying in
his own defense, Rhodes denied all important
elements of the accusation against him. On cross-
examination the prosecutor asked Rhodes whether
he owned the pellet gun found under his bed at
the time of his arrest and whether he had carried
a .38 semiautomatic handgun shortly before his
arrest. After objections to these questions were
overruled, Rhodes gave affirmative answers. He
contends on appeal that the district judge should
have excluded the evidence under Fed. R. Evid.
403 to avoid a risk of prejudice exceeding the
probative force of the evidence; his brief also
suggests that evidence of weapon possession and
ownership was excludable under Fed. R. Evid.
404(b) as proof of other bad acts offered to show
a propensity to commit crimes. But neither Rule
403 nor Rule 404(b) was mentioned in the district
court. Instead Rhodes’s objection was based on
Fed. R. Evid. 402: he argued that gun ownership
is not relevant to the charges. This is the
ground on which his appeal must be evaluated.
Fed. R. Evid. 103(a)(1).

  Evidence is relevant whenever it has "any
tendency to make the existence of any fact that
is of consequence to the determination of the
action more probable or less probable than it
would be without the evidence." Fed. R. Evid.
401. Guns are among the tools of the drug trade.
See United States v. Wyatt, 102 F.3d 241, 248
(7th Cir. 1996). To make a charge less
believable, a person charged with distributing
cocaine could offer into evidence the fact that
he did not own or carry guns, just as he could
offer evidence that he did not own scales or
possess any drug paraphernalia. A person who
lacks wrenches probably is not a plumber; a
person who lacks scales and guns is less likely
to be a drug dealer (all other things equal) than
one who possesses these items. Evidence relevant
to undercut a charge is no less relevant to
bolster it; the standard under Rule 401 is
symmetric. This is clear for wrenches; even
though most wrench owners are not plumbers,
ownership of wrenches still would help a jury
decide whether the person is a plumber. Equally
so with guns and drugs, even though most gun
owners are not drug dealers. That one of Rhodes’s
guns fired pellets rather than bullets does not
defeat relevance; weapons may be used to
intimidate as well as to kill, and the gun found
under the bed may have been able to fulfil that
function. See McLaughlin v. United States, 476
U.S. 16 (1986).

  Evidence of handgun ownership also carries a
potential for unfair prejudice and therefore may
be excluded under Rule 403 even if it is
relevant. (Exclusion of these weapons under Rule
404(b) would not have been appropriate, however;
the evidence was offered to prove that Rhodes
committed the crimes with which he was charged,
not that he had committed some other crime in the
past or had a propensity to violate the law.)
Rule 403 permits the district judge to exercise
discretion about the likely net effects of the
evidence. But in this case the judge was not
asked to exercise discretion; she was asked to
make a simple relevance decision. Evidence need
not be powerful to be relevant; "any tendency" is
enough. The district judge did not abuse her
discretion in handling the only question she was
asked to decide, and the implicit resolution of
the Rule 403 balancing cannot be deemed plain
error under Fed. R. Evid. 103(d).
Affirmed
  Diane P. Wood, Circuit Judge, concurring in the
result. While I concur in the result of this
opinion, I cannot agree with the reasoning of the
majority. The record in this case indicates to me
that Rhodes did enough at trial to preserve his
objection under Fed. R. Evid. 404(b). On the
merits, I do not believe the government satisfied
its burden to establish the admissibility of the
gun evidence under that rule. I further believe
that under the circumstances presented here, the
district court’s decision to admit it was an
abuse of discretion. Nonetheless, based on the
other evidence produced at trial and the minor
role played by the gun evidence in the
government’s case, I find that the error
committed by the district court in admitting the
evidence was harmless. I explain these points
briefly below.

  First, I do not read the trial record as
showing that Rhodes failed to preserve the Rule
404(b) objection. He clearly disputed the
government’s "tools of the trade" justification
for the admission of the pellet gun and pistol
evidence. This objection was enough to call to
the district court’s attention rulings like the
one in United States v. Johnson, 137 F.3d 970,
975 (7th Cir. 1998), and the fact that the basis
for the objection was Rule 404(b).

  Second, and more importantly, I do not agree
with the logic of the opinion to the extent it
suggests this evidence was relevant under Rule
402 (and thus usable by the government) because
its absence would have been equally relevant and
usable for the defendant. Just because the
contemporaneous presence of guns might make it
more likely that the person was engaged in drug
dealing (as opposed to simple possession for
personal use, for example), I disagree that the
absence of guns would help to exonerate the
person. In fact, if a drug defendant wanted to
introduce evidence that the police did not find
any guns when they searched his residence as a
way of showing that he was not a participant or
a dealer, I think the government would probably
have a very good Rule 402 objection. Guns are not
like the wrenches the majority mentions for the
plumber. Nor are they like scales and other
paraphernalia specialized to the drug trade. In
my view, a better analogy might be to a knitted
ski mask. If, while investigating a convenience
store robbery (assuming no videotapes or evidence
showing what the robber used), the police found
a ski mask, the government could introduce it to
show that this was something the robber used to
conceal his identity. But it would mean
absolutely nothing if the police searched
someone’s residence and did not find any ski
masks. Lots of people never own a ski mask, and
hence the absence of one tells us nothing. (To
use the language of Rule 401, the absence of a
gun or of a ski mask does not "make the existence
of any fact that is of consequence to the
determination of the action more probable or less
probable than it would be without the evidence.")

  Since I do not agree that the defendant could
use the absence of guns, I do not see this as the
symmetrical situation the majority describes it
to be. This takes me back to the original point,
which is whether this was proper evidence under
Rule 404(b). I believe we can review that point
directly, rather than under the plain error
doctrine, because Rhodes adequately preserved his
objection under Rule 404(b) (even if he did not
preserve the Rule 403 point). On the merits, the
government has shown nothing that persuades me
that it was using the gun evidence to prove
anything other than propensity.

  Even if the admission of the gun evidence was
an abuse of discretion, however, an evidentiary
error like this can be harmless. See, e.g.,
United States v. Jarrett, 133 F.3d 519, 529 (7th
Cir. 1998). Here, I think it was. The prosecution
did not paint Rhodes to be the "gun toting
gangster" that appellate counsel is worried
about. To the contrary, the government took a
fairly low-key approach to this evidence. It
backed off this line of questioning right away
when Rhodes denied carrying a gun during the
conspiracy, and it never returned to the issue
during the presentation of the evidence. Apart
from the gun evidence, the government’s case was
quite strong. On the record as a whole, I am
confident that the error was a harmless one under
the standards of Fed. R. Crim. P. 52(a).

  I therefore concur in the result reached by the
majority.
