In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3832

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAWON D. PUCKETT,

Defendant-Appellant.

____________

Appeals from the United States District Court for

the Northern District of Illinois, Western Division.

No. 02-CR-50072—Philip G. Reinhard, Judge.

____________

ARGUED MAY 26, 2004—DECIDED APRIL 22, 2005

____________

Before BAUER, POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge. On July 18, 2002, Dawon Puckett

was convicted before a jury of armed bank robbery, 18 U.S.C.

§ 2113(a) & (d), using a firearm during a violent crime,

18 U.S.C. § 924(c)(1)(A), and possession of 63 grams of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). He

was sentenced to a period of confinement of 384 months to

be followed by six years’ supervised release and ordered to

pay restitution in the amount of $27,674. On appeal, Puckett

argues that his convictions should be reversed, alleging that

the trial court erred in: 1) admitting evidence of his prior
2 No. 03-3832

conviction for drug trafficking and thereby unfairly prejudicing the jury against him; and 2) refusing to instruct the

jury on the lesser-included offense of simple possession. We

affirm.

I. Background

On October 8, 2002, a branch office of the National City

Bank in Rockford, Illinois, (“Bank”) was robbed at gunpoint

by a man described as wearing a striped “Jamaican-style”

hat, fake dreadlocks, beard and moustache, and dark

glasses. The armed robber, whose image was captured on

the Bank’s surveillance cameras, entered the Bank at about

2 p.m., threatened the Bank’s employees and various

customers with his weapon, and ordered the tellers to fill

the two pillowcases he handed them with money. He also

warned the tellers that if they included any “dye packs”

with the stacks of currency, he would return and kill them.

The armed robber then exited the Bank with some $27,000

as proceeds of the robbery, entered a dark-colored, late model

Ford Expedition sports utility vehicle (“SUV”), and drove

away in the direction of Levings Lake Park, a public recreation area located not far from the Bank.

Detectives from the Rockford Police Department and FBI

agents were called to the scene and proceeded to investigate

the crime scene and interview bank personnel as well as

members of the public and the tellers whom the robber had

threatened during the heist. The suspect was described as a

black male in his mid 20’s, approximately six-foot tall and

weighing about 150 pounds. The witnesses also described

the robber’s disguise—his “Jamaican-style” hat, fake dreadlocks, moustache and beard, and dark glasses—and furthermore informed the detectives that the robber had duct tape

wrapped around his fingertips. The tellers informed investigators that the offender had fled in a dark colored Ford

Expedition in the direction of Levings Lake Park, and in
No. 03-3832 3

addition supplied the officers with a partial license plate

number on the vehicle. Based on this information, the

Rockford Police Department issued an all points bulletin for

the SUV and its driver. A Rockford patrol officer heard the

bulletin and pursued the vehicle to Levings Lake Park,

where he located the vehicle parked near a picnic area,

unoccupied, and after investigating, determined the vehicle

to have been the stolen Ford Expedition and seized it.

Having the vehicle in custody believed to have been used

in the robbery, but unable to locate the robbery suspect, the

Rockford Police Department issued a press release containing a general description of the wanted suspect and sought

the community’s help in capturing him. The press release

contained few specific details of the robbery and how it was

carried out and it did not make any mention of the robber’s

disguise, the fact that he used duct tape on his fingertips,

or that he had threatened the Bank’s tellers.

On October 11, 2002, three days after the robbery, the

Rockford police received information from one Antwon Flint,

who identified the robbery suspect as Dawon Puckett. Flint

told the police that he had been playing cards with Puckett

on the evening of October 8, 2002 (the date of the robbery),

and that Puckett had related to him that he had committed

the armed robbery, supplying Flint with some of the details

concerning the crime that were previously unknown to the

public, e.g., that he had worn fake dreadlocks, had used a

Ford SUV as the getaway vehicle, and that he had parked

the vehicle nearby at Levings Lake Park. Flint also relayed

to the police that Puckett had displayed a large amount of

cash, “at least $27,000,” and informed them that Puckett

was currently living in the basement of his grandmother’s

house, at 1916 Knowlton Street in Rockford, a location one to

two minutes walking distance from where the stolen

getaway vehicle was found abandoned in the Levings Lake

Park area. In addition, the police received information from

one Juan Soto, the owner of the Ford Expedition, that a
4 No. 03-3832

1 On a tip from his friends, Soto went to the parking lot of the

Kmart adjacent to the National City Bank to see if he could locate

his Ford Expedition. While there he spotted the vehicle and was

nearly ran over by the driver, a person who resembled Puckett’s

description.

SUV matching the description of the one used in the

robbery had been taken by his girlfriend, without his

permission, earlier in the day. Soto also told investigators

that he had seen an individual matching Puckett’s description driving the vehicle, without his consent, in the parking

lot of a Kmart located adjacent to the National City Bank

just hours before the Bank was robbed.1

Pursuant to this information, the Rockford police obtained

a photograph of Puckett from their files and arranged an

array with the photos of five other individuals similar in appearance, weight, age, height and complexion. The detectives then took this photo array to the Bank, displayed

it to two of the tellers present during the robbery, and both

tellers identified Puckett as the armed individual who had

committed the robbery on the date in question, October 8,

2002. Based on this information, the Rockford Police

Department and the FBI placed Puckett’s grandmother’s

house (1916 Knowlton Street) under surveillance. Shortly

thereafter, the officers observed Puckett exit the house and

enter a vehicle owned and operated by a female (Debra

Harris). Rockford police stopped the car after a short distance and arrested Puckett on suspicion of bank robbery.

Puckett was handcuffed and searched, and $1,294.76 in cash

was discovered in the pocket of his trousers. After receiving

permission from Harris, the vehicle’s owner and driver,

officers proceeded to search the interior of the car and

discovered and confiscated a plastic baggie containing what

appeared to be a large stash of powder cocaine, in the glove

compartment. When questioned about the narcotics, Puckett

admitted that the drugs belonged to him, and stated that he
No. 03-3832 5

knew the cocaine weighed two-and-a-quarter ounces (63

grams) because he had recently “measured it exactly.”

Puckett was subsequently taken to the Public Safety

Building in Rockford, Illinois, advised of his Miranda rights,

and interviewed by Rockford police detectives. When questioned concerning his whereabouts on the day of the bank

robbery, Puckett claimed he was getting a haircut at the

time of the bank robbery, although he later changed this

story when he was unable to provide the name of the barbershop he had supposedly visited for the haircut. Instead,

Puckett explained that he had obtained the haircut two days

later, during a “shopping spree” on Michigan Avenue in

Chicago, a trip he claimed was funded by a workman’s

compensation insurance settlement. During this interview

Puckett again admitted that the 63 grams of cocaine found

in the glovebox of Harris’s vehicle at the time of his arrest

belonged to him, but then refused to cooperate and provide

any information concerning the armed robbery. However,

Puckett did state that he would “consider” cooperating if

detectives were to tell him what kind of sentence he was

facing. The detectives, in response, informed the suspect

that neither the details of a potential sentence nor a “deal”

would be discussed until he fully disclosed his involvement

in the bank robbery. Puckett refused and, with the questioning at an impasse, Puckett was taken to a holding cell to

await his subsequent transfer to the Ogle County Jail for

processing and a decision on formal charges against him

relating to the armed robbery.

Shortly after, Puckett was moved to the county jail and he

was assigned to share a cell with Kenneth Johnson, an

associate of Puckett’s from the Rockford area. During a

series of conversations, Puckett subsequently divulged various details of the robbery to Johnson including information

and facts about the crime that had not been disclosed to the

general public. Specifically, Puckett told Johnson that he

had duct-taped his fingertips before the robbery to avoid
6 No. 03-3832

2 Indeed, the missing proceeds of the robbery were never located.

leaving fingerprints as well as recounting the fact that he

warned the bank tellers not to put dye packs in the pillowcases or he would return and kill them. Puckett also stated

that he “just did what he had to do” because he was broke,

and requested Johnson’s help to contact his brother and

instruct him to move the proceeds of the robbery from the

place he had hidden it (the cold-air duct in the basement of

his grandmother’s house) to a different (undisclosed) location. Johnson later relayed all of this information to the

police in exchange for a lighter sentence on drug charges

that he was facing. Acting on Johnson’s information, the

Rockford officers searched the basement of Puckett’s

grandmother’s house, with her consent. The officers did not

find the cash proceeds of the robbery in the air duct, although they did discover several bags of new clothes and

shoes in the area of the basement where Puckett had been

staying, and also located a loaded .22 caliber handgun between the mattress and the boxsprings of Puckett’s bed.2

Nevertheless, based on the evidence that the Rockford

police and the FBI gathered and later submitted to a grand

jury, Puckett was indicted on one count of armed bank robbery, 18 U.S.C. § 2113(a) & (d), one count of using a firearm

during a violent crime, 18 U.S.C. § 924(c)(1)(A), and one

count of possession of 63 grams of cocaine with intent to

distribute, 21 U.S.C. § 841(a)(1). Puckett pleaded not guilty

to all three charges and requested a trial by jury.

In preparing for the trial, Puckett’s counsel made a motion to the court requesting that he be allowed to ask the

prospective jury members at voir dire whether they or their

family members had problems with cocaine addiction. Based

on this request, the government anticipated that Puckett

might attempt to defend against the drug distribution charge

and claim that he possessed the cocaine for personal use
No. 03-3832 7

only, and thus the prosecution, prior to trial, asked leave of

the court to introduce Puckett’s three prior Illinois state

court convictions for drug trafficking in evidence. Puckett

objected to the admission of evidence concerning his convictions, arguing that his three previous convictions for possession of crack cocaine with intent to deliver, one dating

from 1993 and two others from 1996, were too remote in

time and dissimilar to his current drug charges to show

anything other than his propensity to commit the charged

offense. Puckett also argued that the convictions’ limited

probative value was outweighed by the danger of unfair

prejudice. After reviewing the briefs submitted and hearing

arguments on the issue, the trial judge ordered that the

government, pursuant to the Federal Rules of Evidence,

would only be allowed to submit evidence of Puckett’s most

recent, 1996, drug trafficking conviction in Winnebago

County, Illinois. The court reasoned that his most recent

prior drug conviction was relevant to proving Puckett’s

knowledge and intent to commit the charged offense of

possession of cocaine with intent to distribute, and that the

contemporaneous nature and similarity between the facts

of that crime and the allegations in the instant case made

the evidence sufficiently probative. The court further

determined that any prejudice that might result from the

admission of Puckett’s prior conviction was outweighed by

its probative value, and advised the parties that a limiting

instruction would be given to the jury in order to cure any

possible undue prejudice.

Accordingly, during Puckett’s trial, the government introduced evidence of his 1996 Winnebago County conviction for

possession of crack cocaine with intent to distribute. In

addition, the government elicited testimony from Sheriff’s

Deputy Dennis Hill, the officer who arrested Puckett in connection with the 1996 drug charge. Hill testified that, after

arresting and transporting Puckett to the police station

following a traffic violation, he discovered two plastic baggies
8 No. 03-3832

3 Hill stated that he had inspected his vehicle prior to placing

Puckett in the police vehicle and had not found any contraband.

4 The limiting instruction was taken directly from the Seventh

Circuit’s Pattern Jury Instructions. See Federal Criminal Jury

Instructions of the Seventh Circuit 3.04 (1999).

5 Sgt. Johnson was qualified at trial as an expert witness in the

field of narcotics investigations. Johnson stated that he is a supervisor with the Rockford Police Department’s Metro Narcotics Unit,

and during his twenty-six years on the force had participated in

and/or supervised approximately 2,000 narcotics investigations.

that Puckett had left behind containing 51 “rocks” of cocaine

while searching under the back seat of the police vehicle he

used to convey Puckett to the station.3

 Hill explained that

Puckett was subsequently charged and convicted in

Winnebago County, Illinois, in 1996 of possession of crack

cocaine with intent to deliver. Following Hill’s testimony,

the judge instructed the jury that it should consider the

evidence of Puckett’s 1996 drug trafficking conviction submitted only for the limited purpose of intent or knowledge

of the drugs as it related to the charge at issue. The same

instruction was again read to the jury immediately prior to

the time they retired to render a decision.4

The government also presented evidence at trial to demonstrate Puckett’s guilt on the possession of 63 grams of

cocaine with intent to distribute charge in the instant case

in the form of an expert witness, Sergeant Steven Johnson

of the Rockford, Illinois Police Department. Sgt. Johnson

testified that, based on his experience combating drug trafficking in the Rockford, Illinois area,5

 the amount of powder

cocaine possessed by Puckett, 63 grams, was known on the

street as “two-and-a-lick,” and had a street value of between

$1200 and $1500. Such quantities of powder cocaine,

Johnson explained, are normally acquired by street-level

dealers who in turn add substances to dilute the cocaine

while still in powdered form in order to increase the drug’s
No. 03-3832 9

6 During that testimony the officers stated that they found .7

grams of marijuana (user quantity) and some $1,300 in cash on

Puckett following his arrest, but admitted that they did not

discover any paraphernalia indicative of drug trafficking either in

the defendant’s possession when he was arrested nor during a

subsequent search of his grandmother’s residence.

volume for distribution. Thereafter the cocaine-base mixture

is converted into crack cocaine and divided into packages

containing approximately two-tenths of a gram which, at

that time, would generally sell for approximately $20 on the

street. Johnson stated further that if the powdered form of

the drug was not converted into a crack cocaine product, a

street-level dealer would generally dilute and divide the

large quantity of powdered cocaine that Puckett possessed

into smaller quantities for resale to street users. Packages

of powdered cocaine weighing between one-tenth of a gram

and a “whole” gram would then be sold for $10 to $70.

Sgt. Johnson, who had some nine years of experience investigating narcotic offenses, posited that he had never had

any experience with a cocaine user possessing more than

three-and-a-half grams of the powder form of the drug for

personal consumption, and that, based upon his training,

knowledge and experience, the 63 grams possessed by

Puckett would most accurately be referred to as a “distribution amount.”

While defending against the possession with intent to distribute charge, Puckett failed to present any evidence or to

take the witness stand in support of his claim that the 63

grams of cocaine was solely for personal use. Instead,

Puckett relied solely on the testimony that his attorney had

elicited upon cross-examination of the Rockford police

officers who discovered the cocaine and later performed a

consent search of Puckett’s grandmother’s house.6

At the close of the evidence, Puckett requested that the

court instruct the jury on the lesser-included offense of sim-
10 No. 03-3832

ple possession of drugs as an alternative to the possession

with intent to deliver cocaine charge. The judge refused to

submit the defendant’s requested instruction to the jury after

reviewing the evidence presented, concluding that Puckett

had failed to submit any evidence “that he possessed [the

cocaine] other than for sale.” The jury returned guilty verdicts on each of the three crimes charged: armed bank robbery, in violation of 18 U.S.C. § 2113(a) & (d), using a firearm

during a violent crime, in violation of 18 U.S.C. § 924(c)(1)(A),

as well as possession of 63 grams of cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1).

II. Analysis

On appeal, Puckett does not challenge any aspect of his

convictions for armed bank robbery or using a firearm

during a violent crime. Puckett argues only that he is entitled to a new trial because the district court committed a

reversible error pertaining to his conviction under 21 U.S.C.

§ 841(a)(1) for possession with intent to distribute 63 grams

of cocaine. Specifically, Puckett argues that the trial court

erred in: 1) admitting evidence of his previous conviction for

drug trafficking; and 2) refusing to instruct the jury on the

lesser-included offense of simple possession of cocaine.

A. Admission of Puckett’s Previous Conviction

We review the judge’s decision to admit evidence under

Rule 404(b) of the Federal Rules of Evidence for an abuse of

discretion. United States v. Jones, 389 F.3d 753, 756 (7th

Cir. 2004). The trial judge allowed the government to

introduce evidence of Puckett’s prior 1996 conviction for

drug trafficking for the limited purpose of demonstrating

Puckett’s knowledge and intent as it related to the drug

charge. In accordance with Rule 404(b), evidence of a prior

conviction is “not admissible to show that a defendant has
No. 03-3832 11

a propensity to commit crime and that he acted in conformity with that propensity on the occasion in question.”

United States v. Best, 250 F.3d 1084, 1090 (7th Cir. 2001).

Such evidence may be admissible, however, to demonstrate

“motive, opportunity, intent, preparation, plan, knowledge

or identity.” Id. The admissibility of prior convictions under

Rule 404(b) is judged according to a four-part test which

requires the government to demonstrate that:

(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.

Jones, 389 F.3d at 757. After considering the evidence and

the law applicable thereto, we conclude that the introduction of evidence concerning the defendant’s prior conviction

is in compliance with the requirements of the four-part test

referred to above.

Puckett argues that the evidence of his prior conviction

demonstrated nothing but his propensity to engage in criminal conduct. We disagree. It is well settled in this circuit

that, “when a defendant is charged with a specific intent

crime, such as possession with intent to distribute . . . evidence of past action is probative if used to establish an

essential element of the crime charged.” United States v.

Macedo, 371 F.3d 957, 967 (7th Cir. 2004), accord United

States v. Long, 86 F.3d 81, 84 (7th Cir. 1996). The crime of

possession of cocaine with intent to distribute, in violation

of 21 U.S.C. § 841(a)(1), is a specific intent crime making

the defendant’s state of mind an element of the crime which

is to be determined by the finder of fact. Long, 86 F.3d at 84.
12 No. 03-3832

7 Puckett did not argue that the trial judge was in err when he

determined that his (Puckett’s) prior conviction was relevant to

demonstrating his knowledge of the drug trade. We note that the

conviction was relevant to demonstrating that Puckett “was

familiar with the cocaine business.” United States v. Kreiser, 15

F.3d 635, 640 (7th Cir. 1994).

Puckett’s defense to the drug charge was premised on his

claim that he lacked the requisite intent to distribute the

drugs due to the fact that the cocaine was for personal use

only; thus the government was entitled to introduce evidence of prior drug trafficking convictions in order to prove

this element of the crime, Puckett’s intent. Id. at 84-85. Indeed, evidence of a prior conviction for possession of narcotics

with intent to distribute is especially relevant and probative

when, as here, Puckett conceded that he was in possession

of an unusually large amount of cocaine, but denied that

the drugs were intended for anything other than personal

consumption. Jones, 389 F.3d at 757-58. Puckett’s prior

(1996) drug trafficking conviction was relevant and probative as to his intent to distribute the drugs and was not

introduced to establish, as Puckett argued, his criminal

character or “to show [his] action in conformity therewith.”

Fed. R. Evid. 404(b).7

Puckett also argues that his 1996 conviction for possession with intent to distribute crack cocaine was too remote

in time and dissimilar to the drug charge in this case to be

considered as probative of his intent to distribute the large

amount of cocaine he possessed at the time of his arrest.

This argument is equally without merit. The conviction,

entered in 1996, was close enough in time to the facts of

this case—the arrest in this case took place in October of

2002 and Puckett was indicted on November 5, 2002—to

constitute probative evidence of his intent. We have previously held that convictions entered as long as thirteen

years prior to subsequent prosecutions which the government
No. 03-3832 13

8 For purposes of our analysis in this case, there is no need to

draw a distinction between powdered cocaine, and its chemically

manipulated counterpart, crack cocaine. This especially true given

the fact that street-level dealers often purchase powder cocaine,

in the amounts on the order of that possessed by Puckett, in order

that they may later reformulate the narcotic into crack cocaine.

See United States v. Edwards, 397 F.3d 570, 573-74 (7th Cir. 2005)

(explaining that crack cocaine is chemically very similar to powdered cocaine and that a simple chemical process can be performed to convert one into the other); United States v. Robinson,

110 F.3d 1320, 1325 (8th Cir. 1997); United States v. Teague, 93

F.3d 81, 84 (2d Cir. 1996); United States v. Wint, 974 F.2d 961,

967 (8th Cir. 1992).

has sought to introduce are admissible, in spite of the length

of time between the crimes. See United States v. Tringali,

71 F.3d 1375, 1379 (7th Cir. 1995) (nine years); United States

v. Wimberly, 60 F.3d 281, 285 (7th Cir. 1995) (thirteen

years). Puckett’s prior drug trafficking conviction occurred

only six years prior to the charged crimes in this case (2002),

a fact which weighs in favor of admissibility. See Wimberly,

60 F.3d at 285.

Further support for the prior conviction’s admissibility

can be found in the similarity of the nature of the criminal

conduct underlying Puckett’s 1996 conviction and that of

the acts charged here. It is true that Puckett’s 1996 conviction involved possession with intent to deliver crack cocaine

and the crime in the instant case involves powder cocaine.

However, this is a distinction without substance. Both crimes

involve the possession with intent to distribute a chemical

composition of cocaine.8

 Differences in the form of the drug

involved in a prior crime or even type or category of narcotics is irrelevant to the admissibility of that evidence when

“both incidents concerned distribution amounts of drugs.”

See United States v. Hernandez, 84 F.3d 931, 935 (7th Cir.

1996). Puckett’s 1996 conviction and the crime charged here

each involved possession of large, distribution-level amounts
14 No. 03-3832

of narcotics. In 1996 Puckett was arrested while in possession of 51 “rocks” of crack cocaine, and when arrested in 2002

he admitted to possessing 63 grams of powdered cocaine.

Both of these amounts are far greater than what could be

considered a “small amount” of cocaine and therefore

Puckett’s contention that the form and amount of the drug

seized in both instances creates a dissimilarity in the

crimes is without merit. United States v. Walsh, 231 F.3d

366, 369 (7th Cir. 2000) (holding that 5.4 grams of crack

cocaine could be considered a distribution amount) (citing

Hernandez, 84 F.3d at 935); United States v. Tanner, 941

F.2d 574, 587 (7th Cir. 1991) (55.5 grams of cocaine, in conjunction with other evidence, sufficient for a jury to infer

that defendant possessed cocaine with intent to distribute).

In addition, both crimes involved the discovery of large

amounts of cocaine in Puckett’s possession. Puckett unpersuasively attempts to distinguish his 1996 conviction from

the offense charged in this case by pointing to the fact that

when arrested in 1996, the crack cocaine he possessed was

discovered underneath the back seat of a squad car after he

was placed there following his arrest on an unrelated charge,

whereas the narcotics in this case (which he admitted ownership of) were found in the glove box of a vehicle in which

Puckett was a passenger. However, “simple differences” in

the conduct “at issue cannot defeat the similarity requirement . . . . ‘[t]he prior acts need not be duplicates of the one

for which the defendant is now being tried.’ ” Long, 86 F.3d

at 84 (quoting United States v. Lloyd, 71 F.3d 1256, 1264-65

(7th Cir. 1995)). The mere fact that Puckett did not attempt

to conceal the drugs in this case in the same manner as he

did in 1996, bears no relation whatsoever to the relevant

issue in this case—whether he intended to distribute this

large amount of narcotics that he freely admitted to
No. 03-3832 15

9 It would be highly illogical for us to conclude that simply

because Puckett was able to successfully conceal the cocaine long

enough in 1996 for him to plant it under the back seat of a police

cruiser, but was caught red-handed here, his prior conviction is

inadmissible.

owning.9 See Long, 86 F.3d at 84 (“when evidence is offered

to prove intent, the degree of similarity is relevant only

insofar as the acts are sufficiently alike to support an

inference of criminal intent”). Accordingly, Puckett’s 1996

Winnebago County conviction was close enough in time and

factually similar enough to the charge in this case to be

relevant evidence of his intent to possess and distribute 63

grams of cocaine.

Puckett also argues that the “marginal” probative value

of his previous conviction was far outweighed by its prejudicial effect. In determining whether the admission of evidence of prior bad acts unfairly prejudiced a defendant, we

begin with the understanding that “ ‘our decisions have emphasized that most relevant evidence is, by its very nature,

prejudicial, and that evidence must be unfairly prejudicial

to be excluded.’ ” Long, 86 F.3d at 86 (quoting United States

v. Curry, 79 F.3d 1489, 1496 (7th Cir. 1996)) (emphasis in

original). Evidence of this nature is only considered to be

unfairly prejudicial if it “induce[s] the jury to decide the case

on an improper basis, commonly an emotional one, rather

than on the evidence presented.” Id. As discussed above, the

evidence of Puckett’s prior conviction for possession and

intent to distribute a large amount of crack cocaine was

highly relevant and probative as to his intent to possess and

distribute cocaine. For this is a matter which constituted an

element of the crime and which Puckett made an issue in

this case when he himself “concede[d] that he possessed the

drugs but denie[d] that he planned to distribute them.”

Jones, 389 F.3d at 757-58. Thus, there is no doubt that the

fact that he had been convicted in 1996 of a strikingly
16 No. 03-3832

similar crime (possession with intent to distribute a large

amount of crack cocaine) somewhat prejudiced Puckett’s

case, but the only legal question is whether Puckett was

unfairly prejudiced. Best, 250 F.3d at 1093.

Puckett contends that the evidence of his prior conviction

unfairly prejudiced his case by influencing the jury’s verdict

against him on the other charged crimes; armed bank robbery

and use of a firearm during a violent crime. Puckett states

that, although the jury had no trouble reaching a unanimous

verdict on the possession with intent to distribute charge,

it reported to the trial judge that it was deadlocked on the

remaining two charges, an impasse that it subsequently

resolved after the judge ordered further deliberations. The

implication being that the jury relied on the prior conviction

for drug trafficking to paint him as a criminal who would

also carry out a bank robbery. However, Puckett’s argument

is based on nothing but pure, self-serving speculation, and

finds no support in the record. Juries frequently encounter

an impasse in their deliberations for reasons that are a

mystery to all but the jurors on the panel, and aside from

his own self-serving intimation and conjecture Puckett proffers no logical basis or factual evidence that would support

a conclusion that the jury ended its impasse and returned

guilty verdicts on all counts, based upon its consideration of

evidence of his prior conviction for drug trafficking. See id.

The court specifically instructed the jury during the trial in

accordance with the approved Seventh Circuit jury pattern

instruction on two separate occasions: once during trial

shortly after the evidence of Puckett’s prior conviction was

offered, that “[you] should consider this evidence only as it

relates to this case for the purpose of intent or knowledge.

It may not be considered as evidence of anything else, and

[may only be considered] for the purpose of knowledge or

intent as related to a charge here against the defendant”;

and then again before the jury began deliberating, that

“[y]ou have heard evidence of acts of the defendant other
No. 03-3832 17

10 At oral argument, Puckett’s counsel contended that the limiting

instructions given by the trial judge were confusing and added to,

rather than dispelled the prejudicial effect of admitting evidence

of his prior conviction. Puckett did not develop this argument in

his briefs however, so it is waived. United States v. Collins, 361

F.3d 343 (7th Cir. 2004). Moreover, we also note that Puckett

failed to object to this jury instruction at trial.

than those charged in the indictment. You may consider this

evidence only on the question of the defendant’s knowledge

and intent as to Count 3 [the drug charge]. You should only

consider this evidence for these limited purposes.” We are

convinced that this limiting instruction given to a jury

(especially when taken nearly verbatim from the Seventh

Circuit Pattern Jury Instructions) is most “effective in

reducing or eliminating any possible unfair prejudice from

the introduction of [evidence of prior bad acts].”10 Id. We

presume “that jurors, conscious of the gravity of their task,

attend closely the particular language of the trial court’s

instructions in a criminal case and strive to understand,

make sense of, and follow the instruction given them.”

United States v. Linwood, 142 F.3d 418, 426 (7th Cir. 1998)

(quoting Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985)).

And this presumption can “only [be] overcome if there is an

‘overwhelming probability’ that the jury was unable to

follow the instruction as given.” Id. (quoting Doe v. Johnson,

52 F.3d 1448, 1458 (7th Cir. 1995)). Based on this record

“we are confident that the jury diligently assumed their

duty and obligation under the law and followed the court’s

instructions” to consider the evidence of Puckett’s prior

conviction for the limited purposes of his knowledge and

intent as it related to the drug charge, Gregory-Bey v.

Hanks, 332 F.3d 1036, 1049 (7th Cir. 2003). Puckett has

failed to demonstrate that the jury disregarded the judge’s

instructions, or that the admission of the evidence of his
18 No. 03-3832

11 The government presented a wealth of evidence to demonstrate

Puckett’s guilt on both the armed robbery and use of a firearm

during a violent crime charges. See supra at pp. 3-6.

prior conviction “induce[d] the jury to decide the case on an

improper basis . . . rather than on the evidence presented.”11

Long, 86 F.3d at 86. Accordingly, he has failed to demonstrate that the admission of the evidence was unfairly

prejudicial.

Because evidence of Puckett’s prior conviction for possession and distribution of crack cocaine was probative,

relevant and not unfairly prejudicial pursuant to Rule 404(b),

we conclude that the district court did not abuse its discretion in admitting the evidence of his prior conviction.

B. Refusal to Instruct on the Lesser-Included

Offense

Puckett argues that the trial judge erred when he refused

to instruct the jury on the lesser included offense of simple

possession. Puckett requested that the court give the jury

an alternate instruction stating that: “If you find the

defendant not guilty of the crime of possession of 63 grams of

cocaine with intent to distribute charged in the indictment

(or if you cannot unanimously agree that the defendant is

guilty of that crime), then you must proceed to determine

whether the defendant is guilty or not guilty of the lesser

offense of simple possession of 63 grams of cocaine.” See

Federal Criminal Jury Instructions of the Seventh Circuit

7.02 (1999). “To be entitled to an instruction regarding a

lesser-included offense, a defendant must establish that (1)

the offense on which he seeks an instruction is a lesser-included offense of the one charged, and (2) a rational jury

could find him guilty of the lesser offense but not guilty of
No. 03-3832 19

12 At oral argument, Puckett’s counsel claimed that the defendant

was a “producer” in the music business, and that because some

individuals in this line of business are notorious for their prodigious drug use, a rational jury could have concluded that Puckett

did possess the drugs for personal use. Counsel argued that Puckett

possessed such a large amount because he had bought in “bulk

quantity” in order to “get a better deal.” However, Puckett did not

(continued...)

the greater offense.” United States v. McCullough, 348 F.3d

620, 624 (7th Cir. 2003). “We review the first prong of that

test de novo and the second prong for an abuse of discretion.” Id.

As the government concedes, and our case law makes

clear, “simple possession is indeed a lesser included offense

of possession with intent to distribute.” United States v.

Hill, 196 F.3d 806, 808 (7th Cir. 1999). However, that fact

alone does not mean that Puckett was “entitled to a lesserincluded-offense instruction ‘as a matter of course’.”

United States v. Hernandez, 330 F.3d 964, 972 (7th Cir.

2003) (quoting United States v. Wright, 131 F.3d 1111, 1112

(4th Cir. 1997)). Instead, in order to satisfy the second

prong of the inquiry into whether he was entitled to an instruction on the lesser-included offense of simple possession,

Puckett needed to produce sufficient evidence at trial so that

“a jury could rationally find him [guilty] of the lesser offense

yet acquit him of the greater.” Schmuck v. United States,

489 U.S. 705, 716 n.8 (1989).

Puckett offers only his self-serving assertion that the drugs

were intended for personal use only. Indeed, Puckett failed

to present any direct evidence whatsoever at trial that he

was a cocaine user or possessed the drug because he had any

intention of consuming it himself, and also failed to offer

any explanation as to how such a large amount of cocaine

(63 grams) could rationally be considered consistent with

personal use.12 Instead, Puckett’s defense to the govern
20 No. 03-3832

12 (...continued)

present this argument to the district court, nor did he even refer

to it in his opening brief. Accordingly, it is waived. See Hottenroth

v. Village of Slinger, 388 F.3d 1015, 1033 (7th Cir. 2004); Collins,

361 F.3d 343.

ment’s charge that he possessed the drugs solely for distribution was based upon negative inferences only. He argues

that because no trappings of the drug trade—such as cutting agents, beepers, cell phones, or scales—were found on

his person at the time of his arrest or during a later search

of his grandmother’s residence, and because the officers who

arrested him also found him in possession of a “user quantity”

of marijuana (.7 grams), the jury could have rationally

inferred that he possessed the drugs solely for personal use.

These circumstantial details of his arrest fall far short of

constituting convincing evidence supporting Puckett’s claim

of simple possession, and fail to create a question for the

jury on the issue of whether he possessed such a large

quantity of drugs strictly for personal use. The absence of

any drug dealer’s paraphernalia is inconclusive of personal

use. See Wright, 131 F.3d at 1113. It may be that Puckett

had a separate venue which he used to process the cocaine

for distribution or that he was a mid-level drug runner,

either scenario is irrelevant for each would constitute possession with intent to deliver. Furthermore, we attach no

significance to Puckett’s self-serving assertion that the relatively small amount of marijuana he possessed demonstrated

that he was a user rather than a dealer of that drug, when

the narcotic at issue here is cocaine, and not marijuana.

Even if Puckett was a recreational marijuana user, that fact

alone falls far short of establishing that he was not also a big

time cocaine dealer. It would be antithetical to conclude

that simply because an individual uses drugs, they are not

also involved in the drug trade in a distribution capacity as

well.
No. 03-3832 21

Conversely, the government introduced overwhelming

evidence establishing that the quantity of drugs Puckett

possessed could only be intended for distribution. The government’s evidence included testimony from its expert witness Sgt. Johnson and evidence of the defendant’s prior

conviction for possession of 51 “rocks” of crack cocaine with

intent to deliver, to establish conclusively that Puckett

intended to distribute the cocaine for profit rather than

retain it for personal use. The amount of cocaine Puckett

admitted to possessing, 63 grams, is in excess of what one

would possess for personal use, and is in and of itself sufficient evidence to compel an inference that he intended to

distribute the drug. See United States v. Breland, 356 F.3d

787, 792 (7th Cir. 2004) (“intent to distribute can be inferred

from the possession of a quantity of drugs larger than needed

for personal use”) (quoting United States v. Maholias, 985

F.2d 869, 879 (7th Cir. 1993)); United States v. Turner, 93

F.3d 276, 288 (7th Cir. 1996) (same); Wright, 131 F.3d at

1113; but cf. Hill, 196 F.3d at 807. Puckett’s near-certain

status as a dealer rather than a user was further confirmed

by the expert testimony of Sgt. Johnson, a twenty-six-year

veteran of the police force, who described the precise quantity

of powdered cocaine Puckett possessed—“two-and- a-lick” in

street vernacular—as a “distribution amount” commonly

purchased by street-level dealers to reformulate into crack

or resell in powder form in much smaller quantities.

Sgt. Johnson further stated that, based upon his knowledge

and experience with narcotic interdiction in the Rockford

area, he had never come across any cocaine user who possessed more than three-and-a-half grams of cocaine for

personal use—Puckett was in possession of 18 times this

much cocaine at the time of his arrest, i.e., for even a

severely addicted user it would take approximately 18 days

to exhaust a 63 gram supply. In addition, the government

also introduced the evidence of Puckett’s conviction for drug

trafficking just six years earlier when he was found with

another, similar large stash of cocaine, which, as discussed
22 No. 03-3832

above, was highly probative (and admissible) evidence of his

intent to distribute the cocaine he possessed.

Because there is no evidence in the record to support

Puckett’s theory that the 63 grams of cocaine found in his

possession in 2002 were for personal use, see Hernandez,

330 F.3d at 972, the district court also did not abuse its discretion in refusing to instruct the jury on the lesser-included

offense.

III. Conclusion

The decision of the district court is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-22-05