                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1338

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                v.

T ITORIAN O. W EBB,
                                             Defendant-Appellant.

        Appeal from the United States District Court for the
        Northern District of Indiana, Fort Wayne Division.
        No. 1:07-CR-56-TS—Theresa L. Springmann, Judge.



   A RGUED O CTOBER 15, 2008—D ECIDED N OVEMBER 20, 2008




 Before E ASTERBROOK, Chief Judge, and C OFFEY and
W OOD , Circuit Judges.
  E ASTERBROOK, Chief Judge. When the police arrived
with a warrant to search Kelle Hartman’s house for drugs,
they found Titorian Webb in the driveway, dressed in
workout togs. The police found exercise gear in Hartman’s
basement, along with illegal drugs in plain view. Equip-
ment for packaging drugs was scattered throughout the
house. After these discoveries, Webb was arrested and
charged with drug offenses. Hartman pleaded guilty and
2                                             No. 08-1338

testified against Webb, who was convicted by a jury of
possessing cocaine, marijuana, and ecstasy with intent
to distribute them. He was sentenced to 120 months’
imprisonment.
  After Webb’s lawyer said in an opening statement that
Webb had nothing to do with Hartman’s distribution of
drugs, and was at her house only by chance when the
police arrived, the prosecutor introduced Webb’s 1996
conviction for distributing cocaine. The district judge
overruled an objection under Fed. R. Evid. 404(b), stating
that the conviction would show Webb’s intent and the
absence of mistake, two uses permissible under that
Rule. The judge told the jury that the evidence had
been admitted for specific purposes. Webb does not
contest the terms of the limiting instruction but does
argue that the conviction should not have been admitted
for any purpose.
  It is hard to see how the 1996 conviction shows either
intent or absence of mistake. The crime of which Webb
was convicted—possession of drugs with intent to distrib-
ute them—has an intent element, to be sure, but Webb did
not argue that he possessed the drugs for personal use
rather than for distribution. He contended that he did not
possess the drugs for any purpose. Webb’s conviction
would have been useful only to the extent that it
showed that he had control over the drugs (which is to
say, that he possessed them)—but the prosecutor has not
argued that it tends to show Webb’s knowledge of the
house’s contents, let alone dominion over those contents.
As for “absence of mistake”: how does a conviction show
No. 08-1338                                                   3

this except via the prohibited inference that someone
who distributes drugs once is likely to do it again? The
prosecutor’s position, in short, seems to be that a drug
conviction always may be used in another drug prosecu-
tion, even if the crimes have nothing else in common. That
position was rejected in United States v. Beasley, 809
F.2d 1273 (7th Cir. 1987). See also, e.g., United States v.
Simpson, 479 F.3d 492 (7th Cir. 2007).
  Webb did not, however, contend that the evidence is
irrelevant. His arguments, both in the district court and
this appeal, have been limited to Rule 404(b) itself—and
all that Rule does is specify one prohibited use (the pro-
pensity inference) while disclaiming any effect on other
uses, such as proving knowledge or intent. Whether
particular evidence is relevant on those subjects is a
question outside the scope of Rule 404(b). See United
States v. Jones, 455 F.3d 800, 810–12 (7th Cir. 2006) (concur-
ring opinion). To concentrate on Rule 404(b), when the
real questions are relevance (Rule 402) and whether the
evidence has a potential for prejudice disproportionate
to its valid use (Rule 403), is to misdirect attention.
  It is easy to find cases holding that a district judge does
not err in admitting prior convictions to show intent or
absence of mistake in drug prosecutions. One good exam-
ple is United States v. Hurn, 496 F.3d 784, 787 (7th Cir. 2007),
which held that the district court did not abuse its dis-
cretion in admitting a conviction under circumstances
very much like those of Webb’s prosecution. Hurn
collects other decisions to the same effect. See, e.g., United
States v. Chavis, 429 F.3d 662, 668 (7th Cir. 2005).
4                                           No. 08-1338

Although several of these opinions say that a prior con-
viction shows intent or absence of mistake, none
explains why—perhaps because in those appeals, as in
this one, the parties assumed that the evidence was
relevant and so did not present the question in an ad-
versarial manner for decision on appeal.
  Given Hurn and its predecessors, it cannot be plain
error to admit the conviction in the absence of a
relevance objection. And we need not tackle the tension
between Beasley and Simpson, on the one hand, and
Hurn and Chavis, on the other, because even the lighter
harmless-error standard would require us to affirm
Webb’s conviction.
  Both Hartman and her housekeeper testified that Webb
lived in the house. The housekeeper added that the base-
ment was locked, that she could enter only if Hartman
or Webb let her in to clean, and that she regularly saw
Webb handle cocaine and marijuana. A glazier testified
that Webb was present on both days when he installed
mirrors in the house’s basement. The glazier, like the
housekeeper, testified that Webb unlocked the base-
ment door to admit him.
  Webb had a key to the house when he was arrested; he
was also carrying $3,000 in stacks separated by rubber
bands. His car contained plastic bags of the kind often
used for packaging drugs, plus a large number of air
fresheners—far too many for one car, which implies that
they were used to mask the smell of marijuana. A home
gym had been set up in the basement, where most of the
drugs and packaging materials were found. Anyone who
No. 08-1338                                               5

wanted to use the weights would have had to move some
of the cocaine and marijuana to get at them; marijuana
seeds and stems were found on a treadmill. Webb con-
ceded in an interview with a DEA agent that he and
Hartman were lovers. Although he denied living in
Hartman’s house, the concession (plus the key and his
penchant for exercise) severely undermined Webb’s
assertion that he did not possess any drugs.
  Given this evidence—and there was more—the fact
that Webb had a drug conviction on his record could not
have affected the jury’s verdict. The harmless-error rule
means that district judges, rather than courts of appeals,
are the principal enforcers of limits on other-crime evi-
dence. We trust that district judges will review evidence
of this kind carefully to ensure that it really is relevant,
and serves a legitimate goal rather than leading to the
forbidden propensity inference.
  The judgment is affirmed.




                          11-20-08
