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

No. 03-2513
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.
PHILIP D. JONES,
                                       Defendant-Appellant.

                       ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
        No. 02-20014-001—Michael P. McCuskey, Judge.
                       ____________
    ARGUED JUNE 8, 2004—DECIDED NOVEMBER 24, 2004
                     ____________



  Before EASTERBROOK, KANNE, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. Like many people who wind up as
defendants in criminal cases, Philip D. Jones’s problems
began when the police stopped his car for a traffic violation.
He was arrested after police discovered that he or his
passenger had tossed two bags from his car that turned out
to contain a substantial amount of cocaine. Jones was
charged and convicted of possession of more than 500 grams
of cocaine with intent to distribute. At the trial, Jones had
unsuccessfully sought to exclude evidence of two prior con-
victions. The correctness of this ruling is the only remaining
issue we must resolve in this appeal. Although we conclude
that the admission of this evidence was problematic, as it
2                                               No. 03-2513

seems to show only Jones’s propensity to commit drug
offenses, we nonetheless also find that on this record any
error was harmless. We therefore affirm the judgment
against him.


                             I
  Jones was driving south from Chicago to Decatur, Illinois,
on February 5, 2002, when he was pulled over for speeding
by Illinois State Police Trooper Darren Devine. As Jones
brought the car to a halt, he began apologizing repeatedly
to his passenger, Anita Gray, telling her, “I’m sorry. I
[screwed] up. I’m sorry.” As Devine was walking toward
Jones’s car, Jones suddenly pulled back onto the highway
and sped away; as he did so, someone tossed two brown
paper bags out of the passenger window onto the shoulder.
Devine’s on-board video camera captured the toss on film.
Devine immediately pursued Jones’s car.
  As Jones drove off, Devine radioed Trooper Robert Swift
for assistance. He told Swift that he thought he saw Jones
toss something out of the car when he initially pulled over.
Devine continued to follow Jones; a few minutes later Jones
pulled over onto the shoulder again. Devine caught up to
him this time, questioned him, and initially arrested him
for driving with a suspended license. Swift then arrived,
took Gray into custody in his car because there was an out-
standing warrant for her from Tazewell County, and then
went back to the site of the first stop. There he located the
brown bags that had been flung from the window. Those
bags turned out to contain almost 750 grams of cocaine. At
that point both Jones and Gray were arrested for possession
of cocaine.
  Gray pleaded guilty in state court to possession of 15
grams of cocaine and received probation and a fine. Jones
was less fortunate: he soon faced federal charges of pos-
No. 03-2513                                                 3

session of more than 500 grams of cocaine with the intent
to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(2)(B).
  Gray testified against Jones at trial, as did two of Jones’s
fellow drug dealers, Duramis Lovelace and Brian Cole.
Lovelace and Cole testified that they had supplied Jones
with cocaine on numerous occasions, sometimes on consign-
ment, and sometimes for payment. Both also testified that
Jones told them that he often traveled to Chicago to buy
kilogram quantities of cocaine from a supplier named Dre.
Three months after his arrest, Jones confided to Lovelace
that he had been arrested on his way back from Chicago
with cocaine that he had purchased from Dre, and that he
had intended to sell the cocaine in order to pay back
another drug dealer who had fronted Jones cocaine before.
  The government also presented the testimony of the two
troopers and an expert. The expert testified that it was
becoming common practice to toss drugs onto the shoulder
while the car was still in motion before halting for a traffic
stop, in the hope that the driver would receive only a ticket.
Later, the idea went, the driver could return to the spot and
retrieve his drugs. The government also introduced evi-
dence of Jones’s two prior convictions—an April 1999
conviction for possession of cannabis with intent to deliver
and an October 1994 conviction for attempted delivery of a
controlled substance, both from Macon County, Illinois.
Jones had moved in limine to exclude the prior convictions,
but the district court denied both that motion and Jones’s
renewed motion, which he advanced just before trial. The
jury found Jones guilty, and he was sentenced to 360 months’
imprisonment and eight years of supervised release. Ini-
tially, Jones appealed the admission of his prior convictions,
the admission of the plea and cooperation agreements be-
tween the government and Cole and Lovelace (respectively),
and a statement made by the prosecutor during closing. At
oral argument, Jones abandoned his arguments on the
4                                               No. 03-2513

latter two points and chose instead to focus on the allegedly
erroneous admission of his prior convictions.


                             II
  Jones objects to the admission of his two prior convictions
on the ground that they were not relevant to any per-
missible issue. That is to say, he argues, the government
failed to meet the test for admissibility established by
Fed. R. Evid. Rule 404(b), under which it had to demon-
strate that the convictions demonstrated “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.” We review a district
court’s decision to admit evidence under Rule 404(b) for
abuse of discretion. United States v. Whitlow, 381 F.3d 679,
686 (7th Cir. 2004).
   Evidence of prior convictions is not admissible to show a
defendant’s propensity to commit a crime, nor to show that
he or she acted in conformity with that propensity on the
occasion in question. See United States v. Wash, 231 F.3d
366, 370 (7th Cir. 2000) (citation omitted). Propensity and
intent are two different things, however, even if only a fine
line sometimes distinguishes them. The government is en-
titled to introduce evidence of other acts to show intent if
the defendant has been charged with a specific intent crime.
United States v. Macedo, 371 F.3d 957, 967 (7th Cir. 2004);
United States v. Best, 250 F.3d 1084, 1091 (7th Cir. 2001);
United States v. Long, 86 F.3d 81, 84 (7th Cir. 1996). The
prior convictions cannot substitute for direct evidence of
guilt, but they may be used by the jury as one piece of the
government’s case. In order to ensure that evidence is ad-
mitted for a purpose recognized as proper by Rule 404(b),
and not for the impermissible purpose of suggesting pro-
pensity to commit the crime, the government must prove
that:
No. 03-2513                                                  5

    (1) the evidence is directed toward establishing a mat-
    ter 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 in time to be
    relevant to the matter in issue; (3) the evidence is suf-
    ficient to support a jury finding that the defendant
    committed the similar act; and (4) the probative value
    of the evidence is not substantially outweighed by the
    danger of unfair prejudice.
Id. at 83.
  In its brief, the government argues that Jones’s prior
convictions demonstrate intent to possess the cocaine in
this case because they show that he has, in the past, pos-
sessed other illegal drugs with the intent to distribute. But
this argument fails to shed any light on the difference
between propensity and intent. Propensity, according to
Webster’s Third International Dictionary, refers to “a nat-
ural inclination; innate or inherent tendency.” Intent, in
contrast, has a volitional overtone to it: synonyms in common
usage include purpose, design, or plan. Our prior decisions
have not always distinguished carefully between these two
meanings. It is possible, on some facts, that prior convic-
tions may reveal a common method of operation, an economic
incentive, or other facts that might permit an inference that
the same purpose or design motivated the current transac-
tion. In Macedo, supra, for example, the prior conviction
was used to show intent to possess distribution amounts of
the drug. In many situations, however, the existence of prior
drug convictions will show nothing more than a propensity
to deal in drugs. If that is all that can be inferred, then the
evidence is inadmissible.
  It will be difficult, if not impossible, to know on which
side of the line any particular past conviction falls without
both specific evidence about the prior conviction and a well
articulated theory of the legitimate purpose that it allegedly
6                                                No. 03-2513

serves for the present case. Here, unfortunately, the
government did not introduce any facts or details associated
with Jones’s prior convictions. The Assistant U.S. Attorney
then repeatedly told the jury that Jones’s prior convictions
showed that he was a drug dealer, and that they should,
therefore, find that he intended to deal drugs in this case.
This looks, walks, and sounds like the argument “once a
drug dealer, always a drug dealer.”
   The government has tried to salvage its position by
noting, correctly enough, that all crimes charging intent to
distribute are specific intent crimes and that this evidence
was admissible to show intent. It also notes correctly that
it has the burden of proving the specific intent element be-
yond a reasonable doubt. But these observations do nothing
to help us tell the difference between the illegitimate use of
a prior conviction to show propensity and the proper use of
a prior conviction to prove intent. To do that, the gov-
ernment must affirmatively show why a particular prior
conviction tends to show the more forward-looking fact of
purpose, design, or volition to commit the new crime. A
prior conviction may be relevant to show intent if the
defendant concedes that he possessed the drugs but denies
that he planned to distribute them, or if he denies knowing
that the substance was contraband. Merely introducing
prior convictions without more, however, can prove nothing
but propensity, which is not enough to take the evidence out
of the exclusionary principle established by Rule 404(b).
  What is even more troubling in this case is the govern-
ment’s assertion at oral argument that it wanted to use the
prior convictions to show that Jones was familiar with the
drive-and-toss technique that Jones used. No evidence
exists that Jones’s prior convictions involved any such
technique, nor that they were the result of traffic stops. The
government thus failed to show that the priors were
relevant at all for the purpose to which it wanted to put
them. In the absence of such a foundation, the prior con-
victions were wrongly admitted.
No. 03-2513                                                7

  As usual, however, it is not enough to find that there was
error in a decision to admit (or decline to admit) evidence.
A finding of this kind of error simply takes us to the next
step, which is to ask whether that error “affect[ed] substan-
tial rights.” Fed. R. Crim. P. 52(a). Despite our concerns
with admission of Jones’s prior convictions on the present
record, we conclude that any error was harmless, as there
was overwhelming evidence of Jones’s guilt. Devine’s on-
board video camera recorded the bags being thrown out of
Jones’s car. Gray testified that as soon as Devine signaled
Jones to pull over, Jones started apologizing and telling her
that he had messed up. She also testified that he threw the
bags out of the window. Lovelace and Cole both testified
about their repeated sales of cocaine to Jones, and Lovelace
told the jury that Jones had admitted that he was on his
way back from the purchase of cocaine at the time he was
arrested. That evidence is more than sufficient to uphold
Jones’s conviction despite the improper admission of his
prior convictions.
  For these reasons, we AFFIRM the judgment of the district
court.

A true Copy:
      Teste:

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




                   USCA-02-C-0072—11-24-04
