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

No. 06-2799
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

WILLIAM DENNIS,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
            No. 05 CR 267—John W. Darrah, Judge.
                         ____________
   ARGUED MARCH 30, 2007—DECIDED AUGUST 16, 2007
                   ____________


 Before EASTERBROOK, Chief Judge, and BAUER and
WILLIAMS, Circuit Judges.
  BAUER, Circuit Judge. William Dennis was convicted
of conspiring with David Cruz between March 21 and 22,
2005 to violate federal firearms laws, in violation of 18
U.S.C. § 371. In this appeal, Dennis contends that the
district court improperly admitted evidence of the fact
that he had accompanied Cruz on a gun-trafficking trip
in November of 2004. For the following reasons, we
affirm Dennis’ conviction.
2                                             No. 06-2799

                    I. Background
  In the fall of 2004, the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) began investigating
Cruz, a convicted felon, after receiving information from a
confidential informant (“CI”) that Cruz was trafficking
firearms from Tennessee to Illinois. The ATF, with help
from the CI, introduced Special Agent Christopher
Labno to Cruz as a prospective firearms customer. Labno
claimed to be a drug trafficker who needed to acquire
guns to protect his drug-trafficking business. In November
of 2004, Cruz, Dennis, and the CI traveled from Illinois
to Tennessee where Cruz acquired two firearms for Labno.
  On March 3, 2005, Cruz contacted Labno and stated that
he could acquire additional firearms. He told Labno that
he planned to travel to Tennessee via train or bus with
Dennis, who would help carry the guns back to Illinois.
Labno agreed to purchase train tickets for both Cruz
and Dennis and to drive them to the train station on the
day of their planned departure.
  On March 22, 2005, Labno picked up Cruz and Dennis at
their home. A hidden video camera located in the car
recorded the men as they traveled to the station. During
the drive, Cruz and Dennis discussed the arrangements
they had made with their relatives in Tennessee, the
types of firearms that they were going to obtain, and
their plan to carry the guns back to Illinois taped to
their chests. Before arriving at the station, Labno paid
Cruz $3,000 to purchase and transport the guns, paid
Dennis $100 for assisting Cruz, and gave both men their
train tickets. Once they arrived at the train station, ATF
agents surrounded Labno’s car and arrested both Cruz
and Dennis.
  Following his arrest, Dennis waived his Miranda rights.
He admitted to Labno and ATF Task Force Officer Mat-
thew Gainer that he had agreed to travel to Tennessee
No. 06-2799                                              3

with Cruz to purchase firearms and to transport the guns
back to Illinois. He also acknowledged that he believed
Special Agent Labno was a drug dealer. He further
stated that had he not been arrested, he would have
boarded the train, traveled to Tennessee, and helped
Cruz purchase and transport the firearms.
   Dennis also admitted that he had traveled with Cruz
and the CI to Tennessee in November of 2004, knowing
that the trip’s purpose was to acquire firearms for an
individual to whom Cruz had sold weapons previously.
He explained that he had traveled with Cruz and the CI
on the November trip because he had a valid driver’s
license, unlike Cruz and the CI.
  On June 9, 2005, Dennis was charged in count one of a
twelve-count indictment with conspiring with Cruz to
violate federal firearms laws. Dennis denied his guilt
and proceeded to trial.
  Prior to trial, the government moved in limine to intro-
duce evidence of Dennis’ presence during Cruz’s November
2004 gun-trafficking trip to Tennessee, arguing that the
evidence was intricately related to the charged crime, or
in the alternative, admissible under Federal Rule of
Evidence 404(b). Dennis challenged the motion, claiming
that there was no evidence that Dennis had any role in
acquiring, transporting, or selling guns in November of
2004. The defendant argued that absent any evidence of
wrongdoing, Dennis’ mere appearance on the November
trip failed to demonstrate Dennis’ intent to participate
in the unlawful purpose of the March 2005 trip or to
prove any element of the charged conspiracy.
  In response to the parties’ arguments, the district court
ruled that it would preclude the government from intro-
ducing evidence of Dennis’ role in the November 2004 gun-
trafficking trip because it was not intricately related to
the charged conspiracy, was not admissible under Rule
4                                             No. 06-2799

404(b), and was unfairly prejudicial under Federal Rule of
Evidence 403. However, the district court indicated that
the government could introduce Dennis’ post-arrest
statements at trial as admissions under Federal Rule of
Evidence 801(d)(2)(A). The district court explained that
it would limit the admission of Dennis’ post-arrest state-
ments to those that provided context for the proposed
2005 trip.
  During his opening statement, Dennis’ counsel told the
jury that Dennis lacked the requisite intent necessary to
be convicted of the charged conspiracy. He explained that
on the night before their arrest, Dennis and Cruz agreed
not to travel to Tennessee to purchase guns for Labno
but instead to steal Labno’s money. After opening state-
ments, the government asked the district court to revisit
its Rule 404(b) ruling. The district court indicated that
if Dennis presented his defense on the issue of intent,
the government might be allowed to introduce the evid-
ence of the November 2004 trip in rebuttal.
  When the government first attempted to illicit testimony
from Labno concerning Dennis’ post-arrest statements
relating to the November 2004 trip, the judge intervened
to limit the government’s inquiry. The district court
stated that it would allow testimony indicating that
Dennis had accompanied Cruz on the November 2004 trip
but would not allow testimony suggesting that Dennis
knew the full ramifications of the trip. After Dennis’
counsel indicated to the district court that Dennis would
be testifying that he and Cruz had decided to steal Labno’s
money rather than traveling to Tennessee to purchase
the guns, the district court allowed the government to
present the evidence of the November 2004 gun-trafficking
trip.
  On March 15, 2006, a jury found Dennis guilty. The
district court sentenced Dennis to 60 months’ imprison-
ment, and he now appeals.
No. 06-2799                                               5

                     II. Discussion
  Dennis contends that the district court erred by admit-
ting the evidence of the November 2004 gun-trafficking
trip to Tennessee. We review the district court’s eviden-
tiary rulings for an abuse of discretion. United States v.
Kuzlik, 468 F.3d 972, 974 (7th Cir. 2006).
  Rule 404(b) provides that evidence of prior crimes,
wrongs, or acts is admissible to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident,” but not to prove a defendant’s
character in order to show he acted in conformity with
the charged offense. FED. R. EVID. 404(b). We use a four-
pronged test to determine whether evidence of prior acts
should be excluded pursuant to Rule 404(b) and will find
no error if:
    (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. Sebolt, 460 F.3d 910, 916 (7th Cir. 2006).
  Dennis contends that his trip to Tennessee in November
of 2004 did not establish a matter in issue other than his
propensity to commit the charged conspiracy. We dis-
agree. After Dennis’ counsel indicated that Dennis would
testify that he had no intention to participate in the
charged conspiracy but instead intended to commit a
different crime (stealing Labno’s money), his intent was
at issue. Following his arrest, Dennis admitted that he
had traveled with Cruz to Tennessee in November of 2004
6                                              No. 06-2799

because he had a valid driver’s license and would be
able to drive Cruz around during the trip. Evidence that
Dennis had agreed to travel with Cruz to Tennessee in
the past with intent to assist Cruz during the gun-traffick-
ing trip is relevant to show that he did not enter into the
gun-trafficking agreement with Cruz in March 2005,
planning to steal Labno’s money. In addition to demon-
strating intent, the proof of the November 2004 trip
also demonstrates that Dennis and Cruz had a preexist-
ing plan and the opportunity to acquire weapons in
Tennessee in March of 2005.
   Dennis next contends that the admitted evidence was
not sufficiently similar to the charged crime to be relevant
because the government could not prove that he had
assisted Cruz in acquiring, transporting or selling the
firearms in November of 2004. Rule 404(b) does not
exclude evidence of “other acts” that are not criminal. See
United States v. Krohn, 560 F.2d 293, 296 (7th Cir. 1977).
“[W]hen evidence is offered to prove intent, the degree of
similarity is relevant only insofar as the acts are suffi-
ciently alike to support an inference of criminal intent.”
United States v. Lloyd, 71 F.3d 1256, 1265 (7th Cir. 1995)
(citation omitted). Dennis’ post-arrest admissions that he
knew of the illicit purpose of the November 2004 trip and
that he had traveled with Cruz to Tennessee because he
had a valid driver’s license contradicts his claim that he
did not assist Cruz during the gun-trafficking trip. The
district court reasoned, and we agree, that this conduct
suggests an agreement between Dennis and Cruz that
is similar and relevant to the charged conspiracy.
  Finally, the fourth prong of the Rule 404(b) test subjects
the proposed evidence to the balancing requirement in
Rule 403, which requires a trial court to balance the
probative value of proposed evidence against the risk that
the evidence will be unfairly prejudicial. “Rule 403 was
never intended to exclude relevant evidence simply
because it is detrimental to one party’s case; rather, the
No. 06-2799                                                   7

relevant inquiry is whether any unfair prejudice from
the evidence substantially outweighs its probative value.”
Lloyd, 71 F.3d at 1265 (internal quotation and citation
omitted). Dennis argues that the admission of his post-
arrest statements regarding the November 2004 trip
created an unfair risk that the jury would (1) find Dennis
guilty because of his association with Cruz or (2) assume
that Dennis had trafficked guns before and therefore
was likely to do it again. He also argues that the court
erred in allowing the evidence of the November 2004
trip because it initially found the evidence to be substan-
tially more prejudicial than probative.
  The district court initially excluded the evidence of the
November 2004 trip pursuant to Rule 404(b). However,
this ruling occurred before the district court learned that
Dennis was contesting his intent. After Dennis denied
his intent to commit the charged offense, the probative
value of the evidence of the gun-trafficking trip increased
and was no longer substantially outweighed by unfair
prejudice. The district court then reassessed its initial
ruling and determined that the evidence in question
should not be excluded by Rule 404(b) because it was now
being offered to show Dennis’ intent to commit the charged
offense. The district court also mitigated any risk of
prejudice by instructing the jury to consider evidence of
Dennis’ uncharged conduct only on the question of his
knowledge, opportunity, plan, and intent, and we presume
that the jurors followed this limiting instruction. See
Kuzlik, 468 F.3d at 975. Because Rule 404(b) does not
exclude the evidence of the November 2004 trip, we find
that the district court did not abuse its discretion in
admitting the evidence.1


1
  Dennis also argues that the district court erred in admitting
his post-arrest statements as party admissions after determin-
ing that the evidence of the November 2004 trip was unfairly
                                                  (continued...)
8                                                  No. 06-2799

  Even had we found error, we still would affirm Dennis’
conviction. “Error in admitting Rule 404(b) evidence may
be deemed harmless ‘if we are convinced that the error did
not influence the jury, or had but very slight effect, and
can say with fair assurance . . . that the judgment was
not substantially swayed by the error.’ ” United States v.
Torres, 977 F.2d 321, 328 (7th Cir. 1992) (quoting United
States v. Shackleford, 738 F.2d 776, 783 (7th Cir. 1984)).
  The government presented overwhelming evidence of
Dennis’ guilt. The evidence presented by the government
at trial included recorded conversations between Labno
and Cruz in which Cruz identified Dennis as his co-
conspirator in the planned March 2005 gun-trafficking
trip; a recorded videotape of Labno driving Dennis and
Cruz to the train station on March 22, 2005 in which
Dennis and Cruz accepted payment, accepted train tickets
to Tennessee, and discussed their plan to transport the
guns back to Illinois taped to their chests; and testimony
from Labno and Officer Gainer regarding Dennis’ post-
arrest statement in which he told the agents that had he
not been arrested, he would have boarded the train,


1
  (...continued)
prejudicial. Federal Rule of Evidence 801(d)(2)(A) provides that
a party’s own statement, when offered against him, is not
hearsay. See FED. R. EVID. 801. Here, Dennis’ post-arrest
statements are not hearsay and therefore not excluded by
Federal Rule of Evidence 802. However, such statements may
still be excluded by other Federal Rules of Evidence. See Aliotta
v. AMTRAK, 315 F.3d 756, 763 (7th Cir. 2003) (noting that
even if evidence is not hearsay, courts are still constrained by
Rule 403). The district court admitted Dennis’ post-arrest
statements at trial only after the probative value of the evid-
ence of the November 2004 trip had increased and the evidence
was no longer unfairly prejudicial. Thus, the district court
did not abuse its discretion in admitting Dennis’ post-arrest
statements.
No. 06-2799                                            9

traveled to Tennessee, and helped Cruz acquire and
transport firearms for Labno. This evidence undermined
Dennis’ defense that he intended to steal Labno’s money
rather than participate in the charged gun-trafficking
conspiracy. We are convinced that the jury’s decision
would have been no different had the evidence in question
been excluded. Therefore, any error in admitting the
evidence would have been harmless.


                   III. Conclusion
    For the foregoing reasons, we AFFIRM Dennis’ convic-
tion.

A true Copy:
      Teste:

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




                  USCA-02-C-0072—8-16-07
