In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1362

United States of America,

Plaintiff-Appellee,

v.

Cortez Rhodes,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 141--Joan B. Gottschall, Judge.

Argued September 25, 2000--Decided October 13, 2000

 Before Flaum, Chief Judge, and Easterbrook and Diane

P. Wood, Circuit Judges.

 Easterbrook, Circuit Judge. Two of the three

issues raised in Cortez Rhodes’s appellate brief

were withdrawn in his reply brief. The only

argument still requiring resolution is the claim

that the district judge abused her discretion in

admitting evidence that Rhodes possessed a pellet

gun when arrested and had carried other weapons

before.

 Rhodes stood trial on charges of importing and

conspiring to distribute cocaine. Testifying in

his own defense, Rhodes denied all important

elements of the accusation against him. On crossexamination the prosecutor asked Rhodes whether

he owned the pellet gun found under his bed at

the time of his arrest and whether he had carried

a .38 semiautomatic handgun shortly before his

arrest. After objections to these questions were

overruled, Rhodes gave affirmative answers. He

contends on appeal that the district judge should

have excluded the evidence under Fed. R. Evid.

403 to avoid a risk of prejudice exceeding the

probative force of the evidence; his brief also

suggests that evidence of weapon possession and

ownership was excludable under Fed. R. Evid.

404(b) as proof of other bad acts offered to show

a propensity to commit crimes. But neither Rule

403 nor Rule 404(b) was mentioned in the district

court. Instead Rhodes’s objection was based on
Fed. R. Evid. 402: he argued that gun ownership

is not relevant to the charges. This is the

ground on which his appeal must be evaluated.

Fed. R. Evid. 103(a)(1).

 Evidence is relevant whenever it has "any

tendency to make the existence of any fact that

is of consequence to the determination of the

action more probable or less probable than it

would be without the evidence." Fed. R. Evid.

401. Guns are among the tools of the drug trade.

See United States v. Wyatt, 102 F.3d 241, 248

(7th Cir. 1996). To make a charge less

believable, a person charged with distributing

cocaine could offer into evidence the fact that

he did not own or carry guns, just as he could

offer evidence that he did not own scales or

possess any drug paraphernalia. A person who

lacks wrenches probably is not a plumber; a

person who lacks scales and guns is less likely

to be a drug dealer (all other things equal) than

one who possesses these items. Evidence relevant

to undercut a charge is no less relevant to

bolster it; the standard under Rule 401 is

symmetric. This is clear for wrenches; even

though most wrench owners are not plumbers,

ownership of wrenches still would help a jury

decide whether the person is a plumber. Equally

so with guns and drugs, even though most gun

owners are not drug dealers. That one of Rhodes’s

guns fired pellets rather than bullets does not

defeat relevance; weapons may be used to

intimidate as well as to kill, and the gun found

under the bed may have been able to fulfil that

function. See McLaughlin v. United States, 476

U.S. 16 (1986).

 Evidence of handgun ownership also carries a

potential for unfair prejudice and therefore may

be excluded under Rule 403 even if it is

relevant. (Exclusion of these weapons under Rule

404(b) would not have been appropriate, however;

the evidence was offered to prove that Rhodes

committed the crimes with which he was charged,

not that he had committed some other crime in the

past or had a propensity to violate the law.)

Rule 403 permits the district judge to exercise

discretion about the likely net effects of the

evidence. But in this case the judge was not

asked to exercise discretion; she was asked to

make a simple relevance decision. Evidence need

not be powerful to be relevant; "any tendency" is

enough. The district judge did not abuse her

discretion in handling the only question she was

asked to decide, and the implicit resolution of

the Rule 403 balancing cannot be deemed plain

error under Fed. R. Evid. 103(d).

Affirmed
 Diane P. Wood, Circuit Judge, concurring in the

result. While I concur in the result of this

opinion, I cannot agree with the reasoning of the

majority. The record in this case indicates to me

that Rhodes did enough at trial to preserve his

objection under Fed. R. Evid. 404(b). On the

merits, I do not believe the government satisfied

its burden to establish the admissibility of the

gun evidence under that rule. I further believe

that under the circumstances presented here, the

district court’s decision to admit it was an

abuse of discretion. Nonetheless, based on the

other evidence produced at trial and the minor

role played by the gun evidence in the

government’s case, I find that the error

committed by the district court in admitting the

evidence was harmless. I explain these points

briefly below.

 First, I do not read the trial record as

showing that Rhodes failed to preserve the Rule

404(b) objection. He clearly disputed the

government’s "tools of the trade" justification

for the admission of the pellet gun and pistol

evidence. This objection was enough to call to

the district court’s attention rulings like the

one in United States v. Johnson, 137 F.3d 970,

975 (7th Cir. 1998), and the fact that the basis

for the objection was Rule 404(b).

 Second, and more importantly, I do not agree

with the logic of the opinion to the extent it

suggests this evidence was relevant under Rule

402 (and thus usable by the government) because

its absence would have been equally relevant and

usable for the defendant. Just because the

contemporaneous presence of guns might make it

more likely that the person was engaged in drug

dealing (as opposed to simple possession for

personal use, for example), I disagree that the

absence of guns would help to exonerate the

person. In fact, if a drug defendant wanted to

introduce evidence that the police did not find

any guns when they searched his residence as a

way of showing that he was not a participant or

a dealer, I think the government would probably

have a very good Rule 402 objection. Guns are not

like the wrenches the majority mentions for the

plumber. Nor are they like scales and other

paraphernalia specialized to the drug trade. In

my view, a better analogy might be to a knitted

ski mask. If, while investigating a convenience

store robbery (assuming no videotapes or evidence

showing what the robber used), the police found

a ski mask, the government could introduce it to

show that this was something the robber used to

conceal his identity. But it would mean

absolutely nothing if the police searched

someone’s residence and did not find any ski
masks. Lots of people never own a ski mask, and

hence the absence of one tells us nothing. (To

use the language of Rule 401, the absence of a

gun or of a ski mask does not "make the existence

of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence.")

 Since I do not agree that the defendant could

use the absence of guns, I do not see this as the

symmetrical situation the majority describes it

to be. This takes me back to the original point,

which is whether this was proper evidence under

Rule 404(b). I believe we can review that point

directly, rather than under the plain error

doctrine, because Rhodes adequately preserved his

objection under Rule 404(b) (even if he did not

preserve the Rule 403 point). On the merits, the

government has shown nothing that persuades me

that it was using the gun evidence to prove

anything other than propensity. 

 Even if the admission of the gun evidence was

an abuse of discretion, however, an evidentiary

error like this can be harmless. See, e.g.,

United States v. Jarrett, 133 F.3d 519, 529 (7th

Cir. 1998). Here, I think it was. The prosecution

did not paint Rhodes to be the "gun toting

gangster" that appellate counsel is worried

about. To the contrary, the government took a

fairly low-key approach to this evidence. It

backed off this line of questioning right away

when Rhodes denied carrying a gun during the

conspiracy, and it never returned to the issue

during the presentation of the evidence. Apart

from the gun evidence, the government’s case was

quite strong. On the record as a whole, I am

confident that the error was a harmless one under

the standards of Fed. R. Crim. P. 52(a).

 I therefore concur in the result reached by the

majority.