In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1078

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GREG L. MURRAY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:02-CR-30131-001-GPM—G. Patrick Murphy, Chief Judge.

____________

ARGUED DECEMBER 6, 2006—DECIDED JANUARY 24, 2007

____________

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

POSNER, Circuit Judge. A jury convicted the defendant

of participating in a drug conspiracy in which a gun

was used and a death resulted from that use, and the

judge sentenced him to life in prison. Together with two

other men, Hines and Trice, the defendant had agreed

to rob another cocaine dealer, who two years earlier had

failed to deliver to Trice cocaine that Trice had paid for.

In the course of the robbery, the defendant (according to

the government’s evidence) shot and killed the dealer. The

only issue presented by the appeal that warrants discussion is whether the judge was right to exclude the
2 No. 06-1078

“reverse Rule 404(b) evidence,” as the parties call it (a

more descriptive term would be “nondefendant Rule

404(b) evidence”), that the defendant offered.

Rule 404(b) of the Federal Rules of Evidence makes

inadmissible “evidence of other crimes, wrongs, or

acts . . . to prove the character of a person in order to show

action in conformity therewith”—to show in other words

that he has a “propensity” to commit crimes. E.g., United

States v. Leahy, 464 F.3d 773, 797 (7th Cir. 2006); United

States v. Irving, 452 F.3d 110, 119 (2d Cir. 2006). The prohibition is generally invoked by defendants to bar evidence

of their other crimes, the fear being that a jury might

convict a person who has a propensity to commit crimes

without worrying too much about whether the government has proved his guilt of the crime of which he is

currently accused beyond a reasonable doubt. United States

v. Paladino, 401 F.3d 471, 474-75 (7th Cir. 2005). But the

prohibition is not absolute. Evidence of “other crimes,

wrongs, or acts” (“other crimes” evidence for short) may be

admitted “for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” unless its probative value is likely to be substantially outweighed by its

prejudicial effect on the jury.

Occasionally, as in the case before us, the government

rather than the defendant invokes Rule 404(b), in order

to prevent the defendant from using the “other crimes” of

another person to try to shift the blame to that person. Concern with the poisonous effect on the jury of propensity

evidence is minimal in such cases. United States v. Seals, 419

F.3d 600, 606-07 (7th Cir. 2005); United States v. Williams,

458 F.3d 312, 316 (3d Cir. 2006); United States v. Lucas, 357

F.3d 599, 605 (6th Cir. 2004). Since the jury is not being
No. 06-1078 3

asked to judge that other person, “the primary evil that

may result from admitting such evidence against a

defendant—by tainting his character—is not present.” Id.

Even if the evidence causes the defendant to be acquitted,

and the other person is put on trial, his guilt or innocence

will be determined on the basis of the evidence in his

case, and not on the basis of the other crimes he committed.

In the vast run of such cases, the only serious objection

to the evidence is that its probative value is slight, as it

may just amount to pointing a finger at someone else

who, having a criminal record, might have committed

the crime the defendant is accused of committing. A jury

is unlikely to acquit a defendant even if it thinks there’s

someone else out there who has a propensity to commit

such crimes, so that in such a case Rule 403’s balancing

test (whereby relevant evidence “may be excluded if its

probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues,” etc.)

is all one needs to keep “other crimes” evidence within

bounds. United States v. Seals, supra, 419 F.3d at 606; United

States v. Williams, supra, 458 F.3d at 316; United States v.

Stevens, 935 F.2d 1380, 1384, 1404-06 (3d Cir. 1991). And

unless the other crime and the present crime are sufficiently alike to make it likely that the same person committed both crimes, so that if the defendant did not commit the other crime he probably did not commit this one,

the evidence will flunk Rule 403’s test. Cf. United States

v. Stevens, supra, 935 F.2d at 1406.

Some cases pass the test, as explained in United States

v. Aboumoussallem, 726 F.2d 906, 911-13 (2d Cir. 1984):

In United States v. McClure, 546 F.2d 670 (5th Cir. 1977),

the trial judge had rejected as irrelevant an accused

drug dealer’s proposed evidence that a DEA informer
4 No. 06-1078

coerced three other individuals into selling drugs to

undercover DEA agents. The Fifth Circuit reversed.

The Court held that under Rule 404(b) “evidence of a

systematic campaign of threats and intimidation

against other persons is admissible to show lack of

criminal intent by a defendant who claims to have been

illegally coerced.” Id. at 672-73. In United States v.

Robinson, 544 F.2d 110 (2d Cir. 1976), this Court found

error in the trial court’s refusal to permit an accused

bank robber to prove mistaken identity by showing

that a third man, who resembled the accused, had

committed two other bank robberies six days prior

to the robbery at issue. . . . What Yagih [in

Aboumoussallem] sought to prove was that Nazih and

Pierre had a plan to import narcotics from Lebanon

into the United States using duped couriers. The

existence of such a plan would lend some support

to the inference that Yagih was duped and thereby

bolster his defense of lack of knowledge.

The common element in these cases is proof of a pattern

of criminal conduct by a third person and that the present

case fits the pattern. Does it in this case?

Trice and Hines, the defendant’s two coconspirators and

the only eyewitnesses to the shooting, are cousins. In a

previous contretemps that Trice had had over drugs—a

theft of marijuana from him—another cousin of Trice’s

had shot and killed the thief. The defendant argues that

the earlier crime is evidence of a distinctive crime style

or pattern—enlisting a cousin to kill for you to protect

your drug business—that points to Hines as the triggerman in the present case and thus fits the mistaken-identity

exception in Rule 404(b). See, e.g., Holt v. United States,

342 F.2d 163, 165-66 (5th Cir. 1965). Now it is true that
No. 06-1078 5

even if the defendant was not the triggerman, his conviction would be unaffected. The Pinkerton doctrine would

make the defendant liable for the killing even though one

of his coconspirators had pulled the trigger, since it is foreseeable that an armed robbery of a drug dealer may

result in a death. However, the sentence might be affected. Some judges would give the conspirator who had

pulled the trigger a lighter sentence than the triggerman,

Sellers v. Estelle, 651 F.2d 1074, 1077 (5th Cir. 1981), an

exercise of lenity that was permissible even before the

federal sentencing guidelines were demoted to advisory

status. Sims v. Singletary, 155 F.3d 1297, 1316 (11th Cir.

1998). For even in that bygone era a judge had essentially

unreviewable discretion to move a sentence up or down

within the guidelines range.

Because the nondefendant Rule 404(b) evidence was

relevant only to the sentence, it should not have been

admitted at the trial, but instead reserved for the sentencing hearing. (Such evidence is relevant to guilt, however, in cases in which the nondefendant witness was not

a coconspirator of the defendant.)

The defendant argues that all that the judge should have

considered in deciding whether to admit the evidence of

the murder by the other cousin was whether that crime

was “sufficiently similar” to the crime of which Murray

was accused to be relevant to a determination of his guilt

or innocence. That formula appears in many of the

nondefendant Rule 404(b) cases. But what the judge

said, without intoning the canonical but none too

precise formula of sufficient similarity, was quite sensible:

“What you are looking at is there are some crimes that

they’re distinctive, they’re so distinctive that we can look

at the crimes and somebody’s name comes to mind, so to
6 No. 06-1078

speak, or you can connect it with some other crime, or

something special about it. And some defendants are

clever, or unique, or gifted or talented, or particularly

stupid so that they always do it the same way.” The other

crime and the crime of which the defendant is accused

must be sufficiently similar to make it likely that whoever committed the other crime committed this crime

as well, and that standard will not be satisfied unless

there is something distinctive about all the crimes that

makes them form a pattern, rather than their having

merely a chance resemblance. Without insistence on

more than mere “similarity,” criminal trials may get out

of hand, as defendants cast for other criminals—fishing

in a vast sea—on whom to pin their crime.

Our defendant failed to prove a pattern. Violence,

sometimes resulting in death, is not a distinctive method

of resolving disputes over illegal drugs, since the dealers

in those drugs cannot use the legal system to protect

property rights and repair or deter breaches of contract.

For the same reason, it is common to bring family members into a conspiracy; they are more trustworthy than

strangers. Trust substitutes for law—the tie of blood for

the tie forged by the availability of legal remedies to make

whole and deter. Moreover, the cousin who committed

the earlier murder had thought he was protecting Trice

from the thief; protection is not an issue in the present

case. Murray’s attorney argued to the district judge that

the evidence of the earlier murder should be admitted

in order to allow the jury “to hear the whole story [of]

exactly what kind of person Trice is.” That would be an

attempt to prove propensity rather than pattern.

Finally, had there been any error in the exclusion of

the evidence, it would have been harmless, since the
No. 06-1078 7

defendant had admitted to several persons that he was the

killer.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-24-07