The Honorable Robert L. Miller, Jr. of the Northern District



of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1104

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICOLAS GOMEZ,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 10-CR-1055—William J. Hibbler, Judge.

ARGUED JANUARY 16, 2013—DECIDED APRIL 5, 2013

Before BAUER and HAMILTON, Circuit Judges, and

MILLER, District Judge.

MILLER, District Judge. A jury found Nicolas Gomez

guilty of four drug-related crimes following a five-day

jury trial. Mr. Gomez was sentenced to four concurrent

84-month terms. Mr. Gomez contends that the district
2 No. 12-1104

court erred in admitting evidence of his possession of

cocaine a few weeks after the charged crimes, and that

the district judge didn’t specify his perjurious statements

when increasing his sentencing range for obstruction

of justice. We affirm the conviction and sentence. While

the admission of the uncharged cocaine possession was

questionable, it was not an abuse of discretion. We also

hold that given the context of the statements, the district court made a sufficient record. 

I

This investigation was based largely upon interception

of telephone communications between Roberto Romero

and a male referred to as “Guero.” The government

believes Guero was Mr. Gomez. Two dates are important

for today’s discussion; additional facts are set forth as

needed. On September 3, 2010, two agents stopped

and spoke with Mr. Gomez immediately after seeing

Mr. Gomez speaking with Roberto Romero. Mr. Romero

was thought to be Mr. Gomez’s supplier and would

become Mr. Gomez’s co-defendant. Later in the day,

agents searched a car and found a quarter kilogram

of cocaine. The car Mr. Romero had driven from Chicago

to Milwaukee was eventually searched by agents.

Twenty-six days later, agents arrested Mr. Gomez at

his home and searched the residence pursuant to a search

warrant. The agents found a personal use quantity of

cocaine in the pocket of a pair of pants found in a bedroom connected with Mr. Gomez. The district court denied Mr. Gomez’s pretrial motion to suppress evidence
No. 12-1104 3

of the search and its fruits. The admission of that cocaine

into evidence at trial gives rise to the first issue presented

in this appeal.

The government moved for a pretrial determination

of the admissibility of the September 29 cocaine evidence.

The government conceded that the admissibility of the

cocaine depended on what Mr. Gomez argued at trial, but

the evidence would be admissible if Mr. Gomez argued

that he lacked knowledge, he wasn’t the person

involved in the conspiracy, or that this was all just an

accident or mistake. Mr. Gomez argued that the evidence at issue wouldn’t be relevant under any circumstances because he was charged with conspiracy rather

than possession, and the September 29 events happened after the charged conspiracy. The court denied

the government’s request, explaining that while the

sequence of events didn’t defeat admissibility, additional

information was needed to connect Mr. Gomez to the

cocaine found on the day of the arrest.

The government renewed its motion to admit the

cocaine evidence under Rule 404(b) at trial. The government argued that Mr. Gomez had “opened the door

through [his] opening statement and cross-examinations

of two witnesses regarding [his] not possessing or

touching cocaine, implying that [he] was just an

innocent bystander at the wrong place at the wrong

time.” Gov’t Br., at 14. In support of its position, the

government noted that: Mr. Gomez’s counsel had established, through the agent who conducted a patdown of

Mr. Gomez on the street some weeks prior to his arrest,
4 No. 12-1104

that the agent hadn’t found cocaine, cocaine paraphernalia, or large amounts of cash on Mr. Gomez; Mr. Gomez’s

counsel had established, through cross-examination of

an agent who conducted surveillance of Mr. Gomez, that

the agent saw no hand-to-hand transactions or Mr. Gomez

with cocaine; and that Mr. Gomez’s counsel told the jury

in opening statement that it wouldn’t see any evidence

about Mr. Gomez having cocaine on him during the

period of the charged conspiracy. The government told

the court it wanted to respond to the implication that

Mr. Gomez was “basically the unluckiest man in the

world,” in the wrong place at the wrong time. Mr. Gomez

objected to the government’s renewed request, arguing

that no door had been opened and nothing had happened since the pretrial denial of the government’s

request to make the evidence admissible.

The court ruled that while Mr. Gomez might have

opened the door to evidence correcting a misimpression, too little evidence connected Mr. Gomez to the

cocaine found on the day of the arrest:

The implication of [defense counsel’s] questioning

was not simply, [Mr. Gomez] does not have drugs

on him now. The implication of [defense counsel’s]

questioning was, [Mr. Gomez] is not at all associated with drugs. And I think that inference is

what [defense counsel] wanted to get to the jury.

[Mr. Gomez] is an individual who is pure as the

new fallen snow. And they are putting all of the

things on him, for whatever reason, I don’t know.

But that was the implication.
No. 12-1104 5

And the court is not ruling that they can do that

because the court has not heard the evidence as to

what they would expect to be able to — how they are

going to establish that when [Mr. Gomez] was

in the room, whether or not they were his pants,

etc. etc. etc.

So we will do that outside the presence of the

jury. But I am just saying that there have been questions that you have asked, which were proper questions. But they open the opportunity, maybe, for

some response to [those] issues.

Tr. at 379.

Several witnesses later, the government renewed its

request to admit the Rule 404(b) evidence, arguing that

it had established that the address where the cocaine

was found on the day of the arrest was Mr. Gomez’s

residence and the bedroom at issue was Mr. Gomez’s

bedroom. Mr. Gomez again objected, first, because the

evidence was insufficient to support a finding that he

committed a similar act; second, because numerous

people lived in that house so the bedroom could have

belonged to anyone; and, third, because the bedroom

contained “quite a bit of clutter,” it wasn’t clear where

the jeans were found or if he owned them. In reply, the

government specified that the later cocaine evidence

was offered on the issues of identity and absence of

mistake, rather than as propensity evidence. Mr. Gomez’s

counsel rejoined that it was propensity evidence and

that there was too little evidence to support a finding

that Mr. Gomez committed the subsequent act.
6 No. 12-1104

This time, the court agreed with the government and

admitted the evidence on the issues of identity, knowledge, and absence of mistake or accident. The jury

heard the evidence and was told in the final instructions

that it could only consider the September 29 evidence

“on the question of identity, absence of mistake or accident, and knowledge.”

A

Mr. Gomez claims the admission of evidence of his

subsequent possession of a user amount of cocaine as

Rule 404(b) evidence was an abuse of discretion as the

admission of that evidence fails each prong of the

Rule 404(b) test.

“We review a district court’s admission of evidence

for an abuse of discretion [and] will reverse an evidentiary ruling only when the record contains no evidence

on which the district court rationally could have based

its ruling.” United States v. Gorman, 613 F.3d 711, 717 (7th

Cir. 2010). “We give special deference to the trial judge

regarding these matters because of his first-hand exposure

to witnesses, familiarity with the case, and ability to

gauge the impact of the evidence in the context of the

entire proceeding. Only where no reasonable person

could take the view adopted by the trial court will we

reverse an evidentiary ruling.” United States v. Vargas,

552 F.3d 550, 554 (7th Cir. 2008) (citation omitted);

accord United States v. Santiago, 643 F.3d 1007, 1011 (7th

Cir. 2011).
No. 12-1104 7

When Mr. Gomez was tried in September 2011, Federal

Rule of Evidence 404(b) provided that “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence

of mistake or accident.” For the evidence to be admissible, the non-propensity probative value of the evidence must be sufficient so as not to be substantially

outweighed by the risk that the jury will use the evidence as proof of an improper character inference. FED.

R. EVID. 403; United States v. Ciesiolka, 614 F.3d 347, 355-

56 (7th Cir. 2010).

A court deciding whether to admit evidence under

Rule 404(b) considers whether “(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

substantially outweighed by the danger of unfair

prejudice, as required by Rule 403.” United States v.

Albiola, 624 F.3d 431, 439 (7th Cir. 2010); accord United

States v. Boling, 648 F.3d 474, 479 (7th Cir. 2011).

Mr. Gomez contends that none of these factors supported admission of the September 29 evidence.
8 No. 12-1104

B

The first consideration is whether the evidence was

directed toward establishing a matter in issue other

than the defendant’s propensity to commit the crime

charged. Mr. Gomez points to the district court’s infelicitous comment when discussing the government’s

first in-trial offer of the September 29 evidence:

The implication of [defense counsel’s] questioning

was not simply, [Mr. Gomez] does not have drugs

on him now. The implication of [defense counsel’s]

questioning was, [Mr. Gomez] is not at all associated with drugs. And I think that inference is what

[defense counsel] wanted to get to the jury. [Mr. Gomez]

is an individual who is pure as the new fallen snow. And

they are putting all of the things on him, for whatever

reason, I don’t know. But that was the implication.

Tr. at 379 (emphasis added). At that point in the proceedings, the government sought admission on the theory

that by focusing on the lack of eyewitness testimony that

Mr. Gomez had possessed cocaine during the time of

this conspiracy, the defense had opened the door to

evidence that he possessed cocaine shortly after the conspiracy’s expiration.

Had the district court admitted the evidence at that

point, it would have been error. The principle of “door

opening” “depends on the specific situation in which it

is used and thus calls for an exercise of judicial discretion.” United States v. Villegas, 655 F.3d 662, 672 (7th Cir.

2011). A defendant’s opening statement might increase

the probative value of proof of other acts, see, e.g., United
No. 12-1104 9

States v. Dennis, 497 F.3d 765, 768 (7th Cir. 2007), but the

Rule 404(b) evidence must respond to what is said to

trigger admissibility. Villegas, 655 F.3d at 672. Nothing

about Mr. Gomez’s defense had opened the door to

his possession of cocaine in a time outside the conspiracy, any more than challenging evidence that a defendant robbed a bank on one day opens the door

to evidence that he had robbed a bank on another day.

But the evidence wasn’t admitted at that point in the

trial. The court refused to admit it because too little

evidence tied the post-conspiracy cocaine to Mr. Gomez.

By the time the government offered the September 29

evidence again, the government specified that it was

offering the evidence to prove identity, knowledge, and

absence of mistake. The government said nothing about

rebutting the opening statement or Mr. Gomez’s crossexamination of two agents — nothing about Mr. Gomez

having opened the door. The trial court admitted the

evidence and eventually told the jury the evidence was

admitted on the issues of identity, knowledge, and

absence of mistake.

Whatever theory of admissibility might have been

discussed earlier in the trial, the September 29 evidence

ultimately was admitted for the non-propensity purposes of identity, knowledge, and absence of mistake.

The government satisfied the first prong of the test for

admissibility.
10 No. 12-1104

C

The second prong of the test for admissibility is

whether the evidence is similar enough and close

enough in time to be relevant to the non-propensity

matter in issue on which it is offered — in other words,

whether it is probative of identity or absence of mistake.

Mr. Gomez argues that the September 29 evidence

was not relevant to either point. 

1

Mr. Gomez is correct with respect to absence of mistake. Rule 404(b), at the time of trial and now, specifies

absence of mistake as an illustrative example of the nonpropensity purposes for which evidence of a defendant’s

act on another occasion is permissible. Evidence offered

for that purpose almost invariably goes to whether the

defendant was mistaken, not to whether investigators

were mistaken. See, e.g., United States v. Albiola, 624 F.3d

431, 439 (7th Cir. 2010); United States v. Whitlow, 381 F.3d

679, 686 (7th Cir. 2004). One trial’s facts invariably

differ from the one before, so it would be wrong to

say uncharged misconduct evidence never could be

admissible to prove an absence of mistake on the investigators’ behalf. But Mr. Gomez’s case shows why such

a case would be an outlier.

Mr. Gomez’s primary defense at trial was that the

investigators were mistaken as to whose voice they recorded conspiring with Roberto Romero. Mr. Gomez

pointed out that others (such as Victor Reyes) lived in
No. 12-1104 11

the residence from which calls were made and received,

and, as already noted, Mr. Gomez pointed out the lack

of any eyewitness testimony to his participation. The

investigators, he implied, were mistaken. The government’s September 29 evidence rebutted that implication only by showing precisely what Rule 404(b)

forbids: that Mr. Gomez has a propensity toward involvement with cocaine, making it less probable that the investigators were mistaken. See United States v. Webb,

548 F.3d 547, 548 (7th Cir. 2008) (“As for ‘absence of mistake’: how does a conviction show this except via the

prohibited inference that someone who distributes

drugs once is likely to do it again?”) (emphasis in original). Absence of mistake was not, under the circumstances of this case, a non-propensity purpose for the

September 29 evidence.

2

Nor can we perceive a series of non-propensity inferences that would make Mr. Gomez’s later possession of

cocaine relevant to his knowledge during the conspiracy.

The government did little more, at trial and before this

court, than mention “knowledge” as one purpose for

which the September 29 evidence was offered. Mere

passing reference isn’t enough. “To differentiate between

‘the illegitimate use of a prior conviction to show propensity and the proper use of a prior conviction to prove

intent,’ ‘the government must affirmatively show why

a particular prior conviction tends to show the more

forward-looking fact of purpose, design, or volition to
12 No. 12-1104

commit the new crime.’ ” United States v. Miller, 673

F.3d 688, 699 (7th Cir. 2012) (quoting United States v.

Jones, 389 F.3d 753, 757-58 (7th Cir. 2004)).

3

Mr. Gomez contends the government’s showing was

insufficient to prove identity. He argues that uncharged

acts can prove identity only through a showing of the

defendant’s distinctive manner of operation, or modus

operandi. United States v. Simpson, 479 F.3d 492, 498 (7th

Cir. 2007). He also argues that his possession of cocaine

twenty-six days after the discovery of the cocaine in

Mr. Romero’s car is too remote to be proof of anything.

Mr. Gomez overstates the relationship of modus

operandi and other methods of proving a criminal actor’s

identity. Modus operandi — a criminal’s particular way

of committing a crime — is a common way of proving a

perpetrator’s identity; it requires no inference of

character or propensity to say that because this person

commits crimes in the same peculiar way the charged

crime was committed, proof of another act to show the

person’s peculiar approach doesn’t enlist any inference

about the person’s propensity to commit the crime in

the first place. See, e.g, United States v. Anifowoshe, 307

F.3d 643, 647 (7th Cir. 2002). But modus operandi isn’t

the only way evidence of conduct on another occasion

can be relevant to identity without relying on an inference of character or propensity. See United States v.

Simpson, 479 F.3d 472, 497-98 (7th Cir. 2007) (explaining
No. 12-1104 13

difference between modus operandi and other methods of

proving identity through uncharged conduct).

Mr. Gomez argues that September 29 was too

remote from the conspiracy’s time frame to be relevant.

Mr. Gomez describes the separation as “weeks,” while

the government points to United States v. Dennis, 497 F.3d

765, 768-69 (7th Cir. 2007), in which events that

occurred six months before the charged crime were

considered close enough in time to be relevant. Simply

defining the time period or citing cases that involved greater time periods does not reach the heart of

the remoteness aspect of the relevancy prong. A court

considering admission of evidence governed by

Rule 404(b) must ask whether, under the specific facts

of the case and the string of inferences on which the

proponent of the evidence relies, the uncharged conduct

is close enough in time to be relevant. See, e.g., United

States v. Chapman, 692 F.3d 822, 827 (7th Cir. 2012);

United States v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006);

United States v. Chavis, 429 F.3d 662, 669-70 (7th Cir.

2005). Under the facts of this case, if Mr. Gomez’s later

possession of cocaine is relevant to the identity of the

person on the recorded calls, twenty-six days is not

so remote as to reduce that relevancy.

A defendant’s prior or subsequent possession of

cocaine isn’t always admissible when identity is at issue

in a drug case. United States v. Brown, 471 F.3d 802, 806

(7th Cir. 2006). To satisfy this prong of the Rule 404(b) test,

the uncharged act evidence must make it more probable

that the defendant was the actor in the charged crime.
14 No. 12-1104

More specifically, Mr. Gomez’s possession of cocaine

on September 29 must make it more probable that

Mr. Gomez was the person involved in the drug conspiracy (and captured on the monitored phone calls)

with Mr. Romero.

That anyone in Milwaukee possessed cocaine on September 29, 2010 tells a juror nothing about whether

Nicolas Gomez was involved in a large cocaine distribution operation with Roberto Romero earlier in 2010. That

it was Nicolas Gomez who possessed the cocaine on

September 29 adds nothing to its probative value, unless

the juror reasons that the September 29 possession

shows that Mr. Gomez has a propensity toward involvement with cocaine — but that is the inference Rule 404(b)

forbids. Agents questioned Mr. Gomez near the time

and place Mr. Romero’s abandoned car was found with

a quarter kilogram of cocaine, but six other people

were nearby at the same time, and this all occurred

near Mr. Gomez’s residence.

The government notes, though, that the cocaine was

found in Mr. Gomez’s room in a house associated with

one of the phones involved in the sixty-one recorded

phone calls in which someone arranged cocaine deliveries with Mr. Romero. And the cocaine was found in

Mr. Gomez’s room in that house less than four weeks

after the aborted delivery by Mr. Romero. These additional facts, the government argues, make it more

probable that Mr. Gomez was the person whose voice

was on those recorded calls. In support of its argument,

the government cites United States v. Brown, 471 F.3d
No. 12-1104 15

802, 806 (7th Cir. 2006), in which the defendant claimed

he had never had any dealings with a confederate

named Veal, “who must have picked [Brown’s] name

out of a hat.” Under those circumstances, the government’s evidence that Brown had been dealing with Veal

for years was relevant to prove Brown’s identity as the

person with whom Veal dealt. See also United States v.

Gibson, 170 F.3d 673, 679 (7th Cir. 1999) (“This evidence

helped establish that Agent Banks dealt with Gibson,

not his brother, in the charged 1996 drug transactions

even though Gibson did not confess to the specific undercover sales in this case.”).

The inference on which the government relies in this

case is less compelling than that in Brown; the later possession of cocaine discloses no relationship between

Mr. Gomez and Mr. Romero. Still, evidence is relevant if

it has any tendency to a make a fact of consequence in

determining the action more or less probable than it

would be without the evidence, FED. R. EVID. 401, and the

September 29 evidence has some tendency to make it

more probable that Mr. Gomez, a person living in a

house associated with one of the phones on which drug

deliveries were arranged, was the person recorded in

conversation with Mr. Romero. See United States v. Boros,

668 F.3d 901, 907 (7th Cir. 2012) (“A party faces a significant obstacle in arguing that evidence should be barred

because it is not relevant, given that the Supreme Court

has stated that there is a ‘low threshold’ for establishing that evidence is relevant. We have recently

asserted that ‘[t]he Federal Rules of Evidence do not
16 No. 12-1104

limit the government to the ‘most’ probative evidence;

all relevant evidence is admissible and the Rules define

relevance broadly.’ ”) (quoting United States v. McKibbins,

656 F.3d 707, 711 (7th Cir. 2011)). Assessing the extent

of that tendency is a matter for the fourth prong of the

analysis. See United States v. Beck, 625 F.3d 410, 417 (7th

Cir. 2010) (“While evidence of Beck’s probation could

be admitted to establish his identity, under Rule 404(b),

the judge still has to weigh its appropriateness under

Rule 403.”).

D

Admissibility under Rule 404(b) requires enough evidence to support a jury finding that the defendant committed the other act. United States v. Albiola, 624 F.3d at

439. Mr. Gomez complains that the evidence of his occupancy of the bedroom was ambiguous. Documents

found in the bedroom identified Victor Reyes; Mr. Reyes

had identification showing he lived in the house; and

Mr. Reyes had associated the house with phones in his

name. Further, Mr. Gomez notes, the agents’ testimony

disagreed as to whether the cocaine was found in a

jacket or a pair of jeans, and the chemist’s analysis of

the substance was (as Mr. Gomez saw it) less than convincing.

Mr. Gomez demands greater certainty than does

Rule 404(b). Proof that would allow a factfinder to

connect the uncharged act with the defendant is no

small burden, but the Rule requires no more than that.
No. 12-1104 17

See United States v. Burke, 425 F.3d 400, 410 (7th Cir. 2005).

The district court declined to admit the September 29

evidence until the government laid this foundation.

Ultimately, the evidence showed that Mr. Gomez came

out of the room at 6:00 a.m. when the agents executed

the warrant, and several documents addressed to

Mr. Gomez were found there. From that, a reasonable

juror could infer that the bedroom contained

Mr. Gomez’s belongings. The additional facts to which

Mr. Gomez points would allow a different finding, but

don’t foreclose a finding that Mr. Gomez was the person

who possessed the cocaine on September 29.

The government satisfied the third prong of the fourpart test.

E

Finally, admission is improper if the risk of unfair

prejudice from admission of the uncharged act evidence

substantially outweighs its probative non-propensity

value. The most common risk of unfair prejudice is that

the jury will draw the forbidden propensity inference —

that the defendant is the sort of person who does what

he’s charged with — and Mr. Gomez identifies no other

risk. Admission of the September 29 evidence was improper, then, if the risk that the jury would draw the

forbidden propensity inference substantially outweighed the probative value of the evidence as proof of

the identity of the person who discussed cocaine deliveries on phones associated with the house in which

the cocaine was found on September 29.
18 No. 12-1104

As already noted, the string of inferences on which

the government relies to get from Mr. Gomez’s possession of cocaine on September 29 to Mr. Gomez’s involvement in this cocaine conspiracy is not particularly compelling. Balancing the risk of unfair prejudice against

probative value is done on a sliding scale: the lower the

probative value, the lower the tolerance of the risk

of prejudice. United States v. Earls, 704 F.3d 466, 471 (7th

Cir. 2012). Other judges, including members of this

panel, might well have decided that the risk that the

evidence would be used as proof of propensity substantially outweighed the probative value in that string of

inferences. Today’s issue, though, isn’t admissibility; it

is whether the district court abused its discretion in

admitting the evidence. United States v. Lewis, 641 F.3d

773, 783 (7th Cir. 2011) (“although we might have ruled

differently, the district judge did not abuse her discretion”); accord United States v. Ozuna, 674 F.3d 677, 681

(7th Cir. 2012) (“The district court’s decision to admit

evidence is reviewed for abuse of discretion, given the

judge’s position to assess the impact of the evidence in

the context of the trial witnesses and evidence as a

whole.”). The district court did not abuse its discretion.

First, the district court instructed the jury on the limited

use to which the September 29 evidence could be put.

We assume juries ordinarily follow limiting instructions, United States v. Sanchez, 615 F.3d 836, 842 (7th Cir.

2010), so that instruction reduces the risk that the jury

would consider the September 29 evidence as proof of

Mr. Gomez’s propensity to be involved with drugs. Cf.

United States v. Simpson, 479 F.3d 492, 500 (7th Cir.
No. 12-1104 19

2007) (“[T]he jurors did not receive a relevant limiting

instruction, which can minimize prejudice from the

introduction of Rule 404(b) evidence.”).

Second, a district judge abuses her discretion only if

no reasonable judge would agree with the ruling. Smith

v. Hunt, 707 F.3d 803, 807-08 (7th Cir. 2013); United States

v. Chapman, 692 F.3d 822, 827 (7th Cir. 2012); United

States v. Reese, 666 F.3d 1007, 1015 (7th Cir. 2012). Those

who challenge the district judge’s evidentiary rulings

“are like rich men who wish to enter the Kingdom: their

prospects compare with those of camels who wish to

pass through the eye of the needle.” United States v.

Walton, 217 F.3d 443, 449 (7th Cir. 2000) (quoting Agushi

v. Duerr, 196 F.3d 754, 759 (7th Cir. 1999)). And we have

often said that we give Rule 403 balancing decisions

even wider berth. United States v. Miller, 688 F.3d 322,

327 (7th Cir. 2012) (“we give ‘special deference’ to the

court’s findings under Rule 403”); United States v.

Hosseini, 679 F.3d 544, 556 (7th Cir. 2012) (“We give

special deference to the district court’s assessment of

the balance between probative value and prejudice because that court is in the best position to make such

assessments.”) (quoting United States v. Hale, 448 F.3d

971, 985 (7th Cir. 2006)); Common v. City of Chicago, 661

F.3d 940, 946 (7th Cir. 2011) (same).

We cannot say that admission of the September 29

evidence was an abuse of discretion under these standards. The government articulated a reasonable, if a

bit wobbly, theory of relevance to a non-propensity

matter central to the prosecution and defense. The government presented enough evidence that a factfinder
20 No. 12-1104

could decide the cocaine found on September 29

belonged to Mr. Gomez. Evidence that would support an

additional inference that Mr. Gomez was a conspirator

was especially important in light of Mr. Gomez’s theory

of defense. The district court listened to eloquent argument from Mr. Gomez’s counsel concerning the risk of

unfair prejudice, but ultimately disagreed, admitted

the evidence, and gave a limiting instruction to reduce

that risk.

F

Today’s decision is no retreat from what we said last

year in United States v. Miller, 673 F.3d 688 (7th Cir. 2012):

To differentiate between ‘the illegitimate use of a

prior conviction to show propensity and the proper

use of a prior conviction to prove intent,’ ‘the government must affirmatively show why a particular

prior conviction tends to show the more forwardlooking fact of purpose, design, or volition to

commit the new crime.’ . . . Confusion and misuse of

Rule 404(b) can be avoided by asking the prosecutor

exactly how the proffered evidence should work in

the mind of a juror to establish the fact the government claims to be trying to prove.

673 F.3d at 699 (quoting United States v. Jones, 389 F.3d 753,

757-58 (7th Cir. 2004)). The same reasoning applies regardless of whether the uncharged conduct resulted

in a conviction, regardless of whether it was the

uncharged act or the charged act that happened first,

and regardless of the stated non-propensity purpose.
No. 12-1104 21

Nor do we retreat at all from what we said in

United States v. Albiola, 624 F.3d 431, 438 (7th Cir. 2010):

Because of our general concerns about the prejudicial

nature of this type of evidence, we have emphasized

that ‘there must be a principled exercise of discretion. The district judge must both identify the exception that applies to the evidence in question and

evaluate whether the evidence, although relevant and

within the exception, is sufficiently probative to

make tolerable the risk that jurors will act on the

basis of emotion or an inference via the blackening

of the defendant’s character.’ United States v. Beasley,

809 F.2d 1273, 1279 (7th Cir. 1987). Our recent precedent indicates that a court’s failure to consider the

implications of Rule 404(b) evidence before admitting it may be grounds for reversal.

Analyses such as those set forth in Miller and Albiola

improve the quality of rulings in the district courts and

facilitate review in this court. It is what district courts

should do; had the district court done so with respect

to the September 29 evidence, our analysis could have

been briefer.

Still, this case is not Miller, in which the district court

didn’t conduct the Rule 403 balancing test at all and

found probative value in the “pattern” established by

a drug crime that the defendant committed eight years

earlier. Mr. Gomez’s uncharged conduct involved the

same drug, the same house, and the same calendar

month. A reasonable judge could find that the risk of a

propensity inference didn’t substantially outweigh

the non-propensity probative value.
22 No. 12-1104

Nor is this case Albiola. Mr. Gomez does not claim

the district judge ignored the implications of the

September 29 evidence; he simply contends the judge

got it wrong. “Although the district court might have

better explained the rationale behind its Rule 403 conclusion, it is evident to us that the court’s ultimate

reason for admitting the evidence was that the probative value was not significantly outweighed by the prejudicial impact.” United States v. Gorman, 613 F.3d 711,

720 (7th Cir. 2010).

II

Mr. Gomez argues that the district court erred in calculating the range recommended by the sentencing guidelines. The district judge increased Mr. Gomez’s offense

level by two levels for attempted obstruction of justice.

U.S.S.G. § 3C1.1. Mr. Gomez contends that was error.

A

The enhancement springs from Mr. Gomez’s motion to suppress statements he made to DEA agents on

September 3, 2010. The agents asked Mr. Gomez his

name, address, and telephone number, and he provided

that information to them. Mr. Gomez didn’t testify at

the suppression hearing, but relied on his affidavit in

which he swore that the agents stopped him by

blocking his path with their vehicle as he walked near

his home a bit after noon. Mr. Gomez said one of the

agents got out of the car and pointed a gun at him,

telling him “don’t move,” leaving Mr. Gomez with the
No. 12-1104 23

belief that he was not free to leave or resist the agent’s

commands. Mr. Gomez stated, “under penalty of perjury,” that the agents searched his wallet, removed his

identification, and commanded him to verify the information on the identification and give them his telephone number. Mr. Gomez said the agents then left

the scene. The two agents testified at the hearing;

their testimony was at odds with Mr. Gomez’s affidavit

statement.

At the close of the hearing, the court denied the suppression motion. The judge found that the agents had

used a ruse to stop Mr. Gomez, but there was nothing

improper about their doing so. Special Agents Charles

Amell and Enrique Carlton testified at the hearing

about their encounter with Mr. Gomez, and at the end

of the hearing the judge found that the officers had not

arrested Mr. Gomez. The judge credited the officers’

testimony that they had not blocked Mr. Gomez’s path

with their car and hadn’t drawn any weapons. Instead,

they had employed a ruse, which was permissible, and

had a brief, consensual encounter with Mr. Gomez in

which they collected Mr. Gomez’s name, address, and

phone number. The phone number Mr. Gomez gave the

agents was one of the numbers used during the conspiracy.

At the sentencing hearing, Mr. Gomez’s attorney objected to any enhancement for attempted obstruction

of justice, arguing that Mr. Gomez had given his affidavit nearly a year after the encounter it described, that

conflicting testimony doesn’t always show that someone

is committing perjury, and that the law shouldn’t

punish a defendant for using the opportunity to testify.
24 No. 12-1104

In response, the government argued that Mr. Gomez’s

affidavit was not based on a faulty memory, but,

rather, was designed to prevent the government

from using the phone number to tie him to the conspiracy recordings.

The court overruled the objection and applied the twolevel enhancement, explaining:

The court finds that based upon the attempt to

remove himself from the participation in this

offense, the defendant did present a false affidavit

with an attempt to escape responsibility for his actions. The court finds that the obstruction of justice

enhancement is proper and allowable and would

deny the defense motion to modify the court’s determination that the enhancement is proper and would

find that the government has sustained its burden

of explaining to the court and the evidence satisfied

the court that there was an attempt by the defendant

to escape responsibility for his conduct by this

false affidavit.

Sent. Tr. at 16.

B

The government and Mr. Gomez appear to agree that

perjury at a suppression hearing amounts to attempted

obstruction of justice within the meaning of U.S.S.G.

§ 3C1.1. Mr. Gomez complains that the district court’s comments were insufficient to amount to a finding of perjury.

“A defendant commits perjury ‘if she gives false testimony concerning a material matter with the willful
No. 12-1104 25

intent to provide false testimony, rather than as a result

of confusion, mistake, or faulty memory.’ ” United States

v. Grigsby, 692 F.3d 778, 785 (7th Cir. 2012) (quoting

United States v. Dunnigan, 507 U.S. 87, 94 (1993)). “A

false statement is material if it has a natural tendency

to influence, or is capable of influencing, the decision

of the decision-making body to which it was addressed.

The statement need not actually affect the decision.”

Grigsby, 692 F.3d at 785 (emphasis in original; quotation and citation omitted). “For an obstruction of justice

enhancement to apply, the government must establish

by a preponderance of the evidence that the defendant

had the specific intent to obstruct justice.” United States

v. Nurek, 578 F.3d 618, 623 (7th Cir. 2009). “A defendant’s deliberate attempt to mislead the court implicates the basic purpose of the obstruction enhancement,

whether it occurs during a plea hearing, at trial, or at

some other point in the criminal process.” Grigsby, 692

F.3d at 785.

Mr. Gomez contends that the district court did not

identify the statement on which the obstruction finding

was based or explain its materiality. Mr. Gomez doesn’t

dispute the government’s contention that since the only

issue Mr. Gomez raised at the sentencing hearing was

willfulness, this court reviews the sufficiency of the

findings with respect to the other elements of perjury

under a plain error standard. United States v. Galbraith,

200 F.3d 1006, 1013 (7th Cir. 2010).

This record allows no room for doubt about which

statements the sentencing judge had in mind. At the
26 No. 12-1104

sentencing hearing, the government identified two false

statements in Mr. Gomez’s affidavit: (1) that the agents

pulled their vehicle onto the sidewalk where Mr. Gomez

was walking to block his path, and (2) one agent pulled

a weapon and pointed it at Mr. Gomez. At the suppression hearing, the court explicitly found those statements were false: “[T]he court finds specifically that

the officers’ testimony was compelling that they did not

use their vehicle to block his path, they did not have

their weapons drawn.” Supp. Tr. at 76. The government also explained at the sentencing hearing how those

affidavits statements were material: the telephone number that would have been suppressed was one of the

numbers Mr. Gomez used during the period of the conspiracy and was intercepted over the wiretaps.

“[T]o impose the obstruction enhancement, the district

court must make independent findings necessary to

establish all of the three factual predicates for a finding

of perjury (false testimony, materiality, and willful

intent). . . . If the court fails to address each element

clearly, the enhancement will withstand scrutiny if the

court makes a finding that encompasses all of the

factual predicates for the finding of perjury.” United

States v. Savage, 505 F.3d 754, 763 (7th Cir. 2007) (quotation

and citation omitted).

The court found at the sentencing hearing that

Mr. Gomez had tendered a false affidavit in an attempt

“to remove himself from participation in this offense”

and “to escape responsibility for his actions.” Sent. Tr.

at 16. The court also found that the government had
No. 12-1104 27

“sustained its burden” of pointing to evidence establishing that Mr. Gomez’s submission of the false

affidavit supported an obstruction of justice enhancement. Sent. Tr. at 16. “When read in context and in their

entirety, the court’s remarks on the application for

the obstruction enhancement contain an implicit

finding that [Mr. Gomez] intended to obstruct the prosecution. That is enough to sustain the two-level enhancement.” United States v. Nurek, 578 F.3d 618, 624 (7th

Cir. 2009); see also United States v. Savage, 505 F.3d 754,

764 (7th Cir. 2007) (“The lack of more precise findings

on the enhancement does not warrant remand for

resentencing.”).

The district court’s conclusion that Mr. Gomez’s

affidavit statements were false and were intended to

affect the outcome of the case wasn’t clearly erroneous,

and Mr. Gomez hasn’t shown any error that affected

his substantial rights or seriously affected the fairness

or integrity of the proceedings. United States v. Robinson,

663 F.3d 265, 268 (7th Cir. 2011).

III

The district court didn’t abuse its discretion in admitting the September 29 evidence under Rule 404(b) and

didn’t commit plain error in enhancing Mr. Gomez’s

offense level for attempted obstruction of justice. We

affirm Mr. Gomez’s conviction and his sentence. 

AFFIRMED.
28 No. 12-1104

Although I would reverse the convictions and remand for 1

a new trial, I agree with the majority that the district court

did not make a plain error by imposing the enhancement

for obstruction of justice in calculating the applicable Sentencing Guidelines.

HAMILTON, Circuit Judge. I respectfully dissent. The

entire panel agrees that two of the three grounds

the district court relied upon to admit the Rule 404(b)

evidence are without merit. The remaining ground

offered to support its admission was so weak that we

can no longer say that admission was a sound exercise

of discretion. The majority states the applicable law

correctly in general terms, but under Rule 404(b), the

nub of the matter lies in specific applications. I would

reverse and remand for a new trial.1

Defendant Gomez was charged with participating in

a five-month-long conspiracy to distribute several kilograms of cocaine, with deliveries of roughly 250 to 500

grams each. The deliveries went from Chicago to a Milwaukee residence that Gomez and several other

people shared. The government’s evidence from telephone intercepts provided strong evidence against whoever was speaking on the telephone as “Guero.” The

question is who was Guero? The government’s theory

is that Gomez was Guero, while Gomez maintains that

Guero was probably Victor Reyes — a man who also

lived at the Milwaukee residence.

To help show that Gomez was the one involved in

the conspiracy, the government offered the Rule 404(b)

evidence: that just 14 grams of cocaine were in a clothes
No. 12-1104 29

pocket in Gomez’s bedroom nearly four weeks after

the end of the charged conspiracy. This evidence had

virtually no genuine probative value and was unfairly

prejudicial. Every theory for its admission either

dissolves upon scrutiny or reduces to a pure propensity

theory. The district judge was right the first two

times when he ruled that the government had not

yet shown grounds for admitting it, once before trial

and once during trial.

The first time the government offered the evidence

in trial, the district judge indicated that the defense

had opened the proverbial door to the evidence by pointing out in cross-examination that the government had

no evidence showing that Gomez was in possession

of any cocaine during the charged conspiracy. That

was the context of the judge’s comment that the defense had opened the door by implying that the defendant was “pure as the new fallen snow.” The

majority gently calls the remark “infelicitous.” It clearly

indicates an inclination toward propensity that is prohibited by Rule 404(b). Yet the district judge refused

to admit the evidence at that time because the government had not yet offered sufficient evidence that the

user quantity of cocaine in the pocket actually belonged

to Gomez. The district court was not troubled at that

point by the lack of a legitimate purpose. But the

majority recognizes that it would have also been error

to admit the evidence at this point for the lack of a legitimate Rule 404(b) reason to admit it, slip op. at 8, and

on this point, I agree.
30 No. 12-1104

The government eventually cured this insufficient

evidence problem (or at least the district judge did not

clearly err by finding that the evidence of the later possession of the user quantity was sufficient). When

the government again offered the evidence, the district court tried to identify legitimate Rule 404(b) purposes. The court accepted the government’s vague arguments and identified three non-propensity uses for the

evidence: identity, absence of mistake, and knowledge.

The majority explains correctly, in my view, that the

Rule 404(b) evidence here had nothing to do with

absence of mistake or knowledge. Slip op. at 10-11. The

absence-of-mistake theory was wrong precisely because

it was really a propensity theory in disguise. The

cocaine could rebut the idea that the government was

mistaken about Gomez only by showing that he has a

propensity toward involvement with cocaine. Slip op.

at 11. And in any event, the absence-of-mistake

theory for Rule 404(b) evidence refers to the absence of

a mistake on the part of the defendant, not the government investigators. The knowledge theory of admission

was never developed and has no real basis here. So

the majority and I agree that two of the three

grounds given by the district court for exercising

its discretion to admit the evidence were in fact erroneous.

The only remaining leg of the district court’s now

unstable three-legged stool for admitting this evidence

is that it tended to show identity — that Gomez was

the voice of “Guero” in the telephone intercepts. The

majority describes the chain of inferences to show

identity as “not particularly compelling.” Slip op. at 18.
No. 12-1104 31

That’s an understatement. The identity rationale for

admitting the user quantity evidence is itself just a thin

veil over what is really just propensity evidence. Neither

the district court, the government, nor the majority

has articulated that chain of inferences in a persuasive

way that does not include sheer propensity. This use

has the same flaw as the absence-of-mistake theory. It

boils down to a pure propensity theory.

The best argument that can be made for the district

court’s admission of the evidence is that the cocaine

was found in a house associated with one of the intercepted telephones used in arranging cocaine deliveries

rather than in an unrelated location. The logic appears

to be that because Gomez possessed the cocaine in a

house associated with the conspiracy rather than in

an unrelated location, the fact of possession becomes

probative of identity rather than mere propensity. The

majority seems to adopt this distinction when it recognizes that possessing cocaine at the same time in a

location removed from the conspiracy would tell a

juror nothing about whether Gomez was involved in

the conspiracy. Slip op. at 14.

The problem is that the user quantity of cocaine discovered almost four weeks later simply has not been linked

to the earlier distribution conspiracy by anything except

that location. For the sake of argument, one can speculate

that perhaps the user quantity was a leftover from an

earlier delivery, but the same could be said of any user

quantity. Possession of this small quantity says nothing

probative about whether the possessor had any role in
32 No. 12-1104

the upstream large-scale distribution conspiracy. Without a closer link between the user quantity in the

pocket and the earlier conspiracy, the only inference

that could be made to suggest that Gomez rather than

Victor Reyes was on the phone calls is that it was

Gomez because he was involved in some way with

drugs. This is a pure propensity inference that Rule

404(b) forbids. A person’s possession of a small user

quantity of cocaine provides no useful information about

that person’s involvement in large-scale distribution,

except through the prohibited inference of propensity.

United States v. Brown, 471 F.3d 802 (7th Cir. 2006),

discussed in the majority opinion, is a good example of

when evidence of other involvement with drugs may

be probative of identity without depending on propensity inferences, but it is readily distinguishable on

decisive grounds. Brown’s defense at trial was that he

did not know the seller from whom he was charged

with buying drugs and that the police had mistakenly

identified him. The prosecution used Rule 404(b) evidence of Brown’s prior drug dealings with the same seller

to show that the identification of Brown was correct.

This use of other drug activity was probative of

identity because it showed that Brown had actually

dealt with the person he claimed to have nothing

to do with. The drug activity showed that Brown had

a drug-dealing relationship with the seller and allowed

the jury to draw an inference of identity based on

Brown’s relationship with the seller rather than the

more general fact that Brown had some earlier involvement with illegal drugs. There is no comparable link
No. 12-1104 33

between the user quantity of cocaine here and the

charged offenses or the issue of identification.

This would be a very different case if the police had

found in Gomez’s room a larger quantity of cocaine

suitable only for distribution, or if they had found other

evidence tied to distribution, such as scales, packaging

material, etc. With such evidence from a later search

indicating that Gomez was involved in cocaine distribution at the location where the large-scale deliveries

had been made, the chain of inferences to show identity

would be much shorter and more reasonable and

would not depend solely on propensity. (In fact, the

police did find distribution materials at the house, but

they were in someone else’s bedroom. That evidence

could not be linked to Gomez.) Without a clearer link

to cocaine distribution, as opposed to mere use, the

Rule 404(b) evidence used against Gomez was simply

too tenuous and too prejudicial to admit.

The majority correctly points out that we apply a deferential standard of review to Rule 404(b) questions and

the related Rule 403 balancing inquiry, asking only

whether the district court abused its discretion by admitting the evidence. In this troublesome area of the

law, however, we have emphasized that we need to see

“a principled exercise of discretion” by the district court.

United States v. Albiola, 624 F.3d 431, 438 (7th Cir.

2010), quoting United States v. Beasley, 809 F.2d 1273,

1279 (7th Cir. 1987) (reversing convictions affected by

Rule 404(b) evidence). The majority and I agree that

two of the three grounds given by the district court for
34 No. 12-1104

exercising its discretion to admit the evidence were in

fact erroneous. When two of the three grounds relied

upon for admission collapse under minimal scrutiny

and the court has difficulty articulating a basis for the

third, that ought to be a strong signal that the district

court’s exercise of discretion was not sound. Moreover,

when the district court fails to show that it engaged in

the Rule 403 balancing inquiry — here not mentioning

the word “prejudice” even once — the record does

not show a sound exercise of discretion to which we

should defer.

In an effort to minimize the prejudice from the evidence, the majority also relies on the district court’s

limiting instruction. The court told the jury it could

consider the later discovery of the user quantity of

cocaine only “on the question of identity, absence

of mistake or accident, and knowledge.” As a general

matter, one can question how useful such limiting instructions are when a jury might easily slide toward

the forbidden propensity inference in its use of

Rule 404(b) evidence. See generally Bruton v. United

States, 391 U.S. 123, 135 (1968) (limiting instruction

could not cure problems presented by defendant’s

inability to cross-examine declarant when co-defendant’s

confession is admitted; “there are some contexts in

which the risk that the jury will not, or cannot, follow

instructions is so great, and the consequences of failure

so vital to the defendant, that the practical and human

limitations of the jury system cannot be ignored”). In

fact, the advisory note to Rule 403 expressly instructs
No. 12-1104 35

courts to consider “the probable effectiveness or lack

of effectiveness of a limiting instruction.”

It is true that in Rule 404(b) cases, we have often

trusted the effectiveness of limiting instructions, though

without necessarily giving the question close empirical

attention. E.g., United States v. Denberg, 212 F.3d 987, 994

(7th Cir. 2000) (“this court has held many times

that limiting instructions are effective in reducing or

eliminating any possible unfair prejudice from introduction of Rule 404(b) evidence,” and collecting cases);

see also United States v. Vargas, 552 F.3d 550, 557 (7th

Cir. 2008); United States v. Moore, 531 F.3d 496, 500 (7th Cir.

2008).

In fact, however, there is good reason to question

the effectiveness of limiting instructions when it comes

to Rule 404(b) evidence, particularly in a case like this.

Social science experiments using mock jurors find that

jurors are more likely to convict when they have heard

evidence of a prior conviction and that limiting instructions are often ineffective at guiding jurors’ use of

such evidence. E.g., Edith Greene & Mary Dodge, The

Influence of Prior Record Evidence on Juror Decision Making,

19 L. & Hum. Behav. 67, 76-77 (1995) (finding that

judge’s limiting instructions were ineffective in guiding

jurors’ use of prior record evidence, and collecting

prior research reaching similar conclusions); Kerri L.

Pickel, Inducing Jurors to Disregard Inadmissible Evidence: A

Legal Explanation Does Not Help, 19 L. & Hum. Behav. 407

(1995) (finding varied juror responses to limiting instructions, including instructions where explanation “back-
36 No. 12-1104

fired”); see also J. Alexander Tanford, The Law and Psychology of Jury Instructions, 69 Neb. L. Rev. 71, 86-87 (1990)

(citing earlier experiments that “all show similar results”);

Amos Tversky & Daniel Kahneman, Judgment Under

Uncertainty: Heuristics and Biases, 185 Sci. 1124, 1124-25

(1974) (concluding that individuals do not properly

adjust their probability estimates upon receiving

new information, especially when original information

resembles issue in question). Particularly troubling for

this case are studies that show jurors are especially influenced by evidence of other bad acts that resemble

the case before them. See Joel D. Lieberman & Jamie

Arndt, Understanding the Limits of Limiting Instructions:

Social Psychological Explanations for the Failures of Instructions to Disregard Pretrial Publicity and Other Inadmissible

Evidence, 6 Psychol. Pub. Pol’y & L. 677, 686-87 (2000),

citing R. L. Wissler & M. J. Saks, On the Inefficacy of

Limiting Instructions, 9 L. & Hum. Behav. 37 (1985). Limiting instructions work best when the instructions arouse

jurors’ suspicions as to the problems with considering

such evidence (e.g., reliability). Id. at 688.

This research about limiting instructions in general

and Rule 404(b) limiting instructions in particular

should at least make us cautious about putting too

much confidence in those instructions. At a minimum,

though, for limiting instructions to work the jury must

be able to understand the instruction. To return to

the specific problems in this case, the limiting instruction the court gave was surely a confusing mystery to

the jury. The majority and I agree that two-thirds of the

instruction was simply wrong. The Rule 404(b) evidence
No. 12-1104 37

had no relevance to any supposed absence of mistake or

to Gomez’s knowledge. Even the identity theory that

the majority uses to salvage this conviction was itself

“not particularly compelling” and invited the prohibited

propensity inference. We have said that a good test for

Rule 404(b) evidence is to see if the district judge can

actually explain its permissible use without leaning on

sheer propensity. United States v. Miller, 673 F.3d 688, 701-

02 (7th Cir. 2012). Where the district judge, the prosecution, and the majority have had so much trouble articulating how the Rule 404(b) evidence related to the legitimate issue of identity, we should not assume that

jurors would have managed to do so. Under these circumstances, we should not take any comfort from the

usual limiting instruction.

In his comments on the Rule 404(b) evidence, the

district judge simply never came to grips with how the

presence of a user quantity of cocaine in Gomez’s

room nearly four weeks after the end of the large-scale

distribution conspiracy made his participation in the

conspiracy any more likely without relying on general

propensity. I would find that the admission of the

Rule 404(b) evidence was an abuse of discretion and

would reverse and remand for a new trial.

4-5-13