In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1391

United States of America,

Plaintiff-Appellee,

v.

William L. Curtis,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 99-CR-40026-002-JPG--J. Phil Gilbert, Judge.

Argued January 15, 2002--Decided February 11, 2002

 Before Flaum, Chief Judge, and Coffey and

Easterbrook, Circuit Judges.

 Flaum, Chief Judge. On April 5, 2000,

William Curtis was convicted of

distribution of cocaine base and conspir

acy to distribute cocaine base in

violation of 21 U.S.C. sec.sec. 841(a)(1)

and 846. He filed a motion for a new

trial based on newly discovered evidence

which the district court denied. He now

appeals the denial of that motion, as

well as the district court’s admission at

trial of testimony regarding his prior

drug dealing. For the reasons stated

herein, we affirm the decisions of the

district court. 

I. Background 

 At trial, Robert Dueker, the FBI agent

involved in Curtis’s investigation,

testified that between August 1998 and

May 5, 1999, the alleged conspiracy

period, as well as the previous year,

Curtis transported crack cocaine

fromChicago to Carbondale, Illinois, and

supplied several dealers in the area,

including Melissa Boyle, Anthony Hale,

Charles Curry, and Sarah Stephens.

Stephens testified that she assisted

Curtis with the distribution of crack

cocaine, and both traveled to Chicago to

buy narcotics from Curtis, and bought the

drugs while Curtis was in Carbondale.
Another government witness, Lester Barr,

testified that he saw Curtis and Charles

Curry make crack from powdered cocaine

and split the finished product between

them. Barr testified that he also

traveled to Chicago to purchase cocaine

from Curtis. Barr stated that he would

drive around Carbondale with Curtis while

Curtis went to a house from which he was

paged to deliver crack cocaine. The

government produced thirteen additional

witnesses who testified that they had

purchased crack cocaine from Curtis

during the conspiracy dates.

 The government also presented four

witnesses for the purpose of testifying

to Curtis’s drug dealing activities,

including specific controlled purchases,

during 1997 and early 1998--before the

time period of the charged conspiracy:

Eldridge Hardley, David Morales, Derek

Taylor, and Robert McConnell. Curtis

never objected to the introduction of

this evidence.

 Agent Dueker, FBI agent Paula Parkinson,

Boyle, and Hale testified that on May 5,

1999, Boyle and Hale, who lived together

and who were apprehended for drug

distribution, agreed to cooperate with

the police and purchase crack cocaine

from Curtis in a controlled buy. The

police placed a tape recorder inside the

living room of Boyle and Hale’s

residence, and conducted surveillance

from the outside. Boyle paged Curtis who

drove up to the house, went inside, sold

drugs in the bathroom, and drove off. The

law enforcement agents followed Curtis,

who avoided their cars. A high-speed

chase ensued, but the officers were

unsuccessful in stopping Curtis that day.

They returned to Boyle and Hale’s house,

where Hale handed them the crack cocaine

that he had purchased from Curtis in the

bathroom. Contemporaneously, a Carbondale

police officer saw the car that Curtis

had been driving in a parking lot and saw

crack cocaine and a pager on the front

seat. He had the car towed to a police

lot where the evidence was inventoried.

The police found Curtis’s name on the car

rental agreement in the glove

compartment. The FBI arrested Curtis in

November 1999.

 On the first day of his trial, Curtis

told the district court that there should

be a tape from the May 5, 1999 controlled
buy. The government responded that the

recorder was in a different room from the

buy, and that the tape was blank. It

informed the court that there was

nothing, not even a preamble, on the May

5 tape. Agent Parkinson also testified

that the FBI office in Springfield,

Illinois, where the tape was sent,

informed her that the tape placed in the

recorder turned out to be blank. She

stated that tape malfunctions are common.

Curtis’s trial lawyer stated that he

believed the government’s representation

about the tape, and did not need to

obtain it. Curtis, however, told the

court that he did not believe that the

tape was blank and requested that it be

sent to him. The court replied that it

would not delay the trial, but that the

tape should be sent to him as soon

aspossible and if, as he claimed, it

turned out not to be blank, he could file

a motion for a new trial based on newly

discovered evidence. At the trial,

Curtis’s attorney used the absence of a

tape recording of the transaction in his

defense. Despite this argument, Curtis

was convicted on all counts. He received

the tape after the trial, and it was, as

represented, blank. Nevertheless, he

filed a motion for a new trial, arguing

that the blank tape would have been

material in his defense that no drug sale

occurred on May 5, 1999, as there was no

recording of it. The district court

denied his motion, holding that he had

met none of the necessary requirements to

be granted a new trial.

 

II. Discussion

 a. "Other Acts" Evidence

 Curtis contends that the witnesses’

testimony concerning only uncharged, preindictment activities should not have

been admitted under Federal Rules of

Evidence 403 and 404(b)./1 Curtis did

not object to the admission of this

testimony at trial. Therefore, we

evaluate his claim that the testimony in

question was inadmissible as prior bad

act evidence and that unfair prejudice

outweighed its probative value under a

plain error standard. United States v.

Krankel, 164 F.3d 1046, 1052 (7th Cir.

1998) ("When a defendant fails to timely

and properly object at trial to the

admission of evidence, the issue is
waived by the defendant absent a showing

of plain error.") Under this standard, we

would reverse the district court’s

admission of the evidence only if Curtis

"probably would not have been convicted

but for the erroneously admitted

evidence." United States v. Kellum, 42

F.3d 1087, 1092 (7th Cir. 1994). Only if

Curtis has shown that: 1) the evidence

was wrongly admitted; and 2) the error

likely changed the outcome of the trial,

will we reverse. We find that he has met

neither burden.

 Although prior bad acts testimony is

inappropriate when used to show that the

defendant acted in conformity with such

behavior, it is properly admitted if the

evidence:

i) is directed toward establishing a

matter in issue other than the

defendant’s propensity to commit the

crime charged; ii) shows that the other

act is similar enough and close enough in

time to be relevant to the matter in

issue; iii) is sufficient to support a

jury finding that the defendant committed

the similar act; and iv) has probative

value not substantially outweighed by the

danger of unfair prejudice. 

United States v. Green, 258 F.3d 683, 694

(7th Cir. 2001) (citing Untied States v.

Williams, 238 F.3d 871, 874 (7th Cir.

2001); United States v. Moore, 115 F.3d

1348, 1354 (7th Cir. 1997)). Because

Curtis failed to object at trial, the

district judge was not on call to

evaluate the evidence under the above

standards. Curtis’s claim is not waived

altogether, however; because "plain

errors or defects affecting substantial

rights may be noticed although they were

not brought to the attention of the

court," Fed. R. Crim. P. 52(b), we will

review the court’s admission of the

challenged testimony for plain error.

Krankel, 164 F.3d at 1052. Under this

standard of review, we find that Curtis

has failed to show that the district

court committed plain error in admitting

the other act evidence.

 The testimony in question meets all four

prongs of the above-referenced test.

First, conspiracy to distribute narcotics

is, inherently, a specific intent crime.

Therefore, the defendant’s "intent is

automatically in issue, regardless of
whether [he] has made intent an issue in

the case." Kellum, 42 F.3d at 1093

(citing United States v. Monzon, 869 F.2d

338, 344 (7th Cir. 1989)); see also

Green, 258 F.3d at 694 ("we have held on

numerous occasions that when a defendant

is charged with a specific intent crime .

. . evidence of the defendant’s prior

drug transactions may be relevant to show

knowledge and intent--purposes distinct

from simply showing the defendant’s

propensity for drug dealing.") (citations

omitted). Second, where the evidence

regards a defendant’s prior transactions

of similar types of drugs, acts the year

before the charged crime are close enough

in time and similar enough to be

relevant. Green, 258 F.3d at 694 (drug

sales ending 14 months before the charged

crime are relevant to the matter at

issue); see also United States v. Ruiz,

178 F.3d 877, 880 (7th Cir. 1999) (two

years not too long); United States v.

Kreiser, 15 F.3d 635, 640 (7th Cir. 1994)

(seven years not too long). Third,

witnesses’ testimony that they

participated in drug transactions with

the defendant or saw the defendant

selling drugs is sufficient to support a

jury finding that he did engage in that

conduct. Green, 258 F.3d at 694 (citing

United States v. Smith, 995 F.2d 662, 672

(7th Cir. 1993)). Fourth, we find that

the evidence was not unfairly

prejudicial. Curtis contends that the

cumulative prejudicial effect of the four

witnesses’ testimony was unfair,

considering the absence of a limiting

instruction by the court. The defendant

never requested a limiting instruction,

however, or objected to the admission of

the evidence at all; the court’s failure

to give such an instruction, therefore

was not in error. The witnesses’

testimony had probative value as to

Curtis’s intent; that value was not

substantially outweighed by unfair

prejudice.

 We do not advance the position that, in

a drug prosecution, any evidence of

recent drug transactions is automatically

admissible. To the contrary, evidence

should be admitted only if it meets the

four prongs of the above test. That is,

it must be for the purpose of

establishing a matter other than the

propensity to commit the same crime, be

similar and close in time, be sufficient

to support a jury finding, and,
crucially, have probative value not

substantially outweighed by unfair

prejudice. The admission of prior bad

acts evidence must be evaluated on a

case-by-case basis. Because "almost any

bad act evidence simultaneously condemns

by besmirching character and by showing

one or more [of the admissible purposes

under Rule 404(b)]," United States v.

Beasley, 809 F.2d 1273, 1279 (7th Cir.

1987), the rule must not be applied

mechanically, but instead carefully

considered under the given circumstances.

 Even if Curtis could show that the

admission of the prior acts evidence was

erroneous, however, he has not met his

burden of demonstrating that he probably

would not have been convicted but for the

testimony in question. When viewed in the

light most favorable to the government,

the evidence presented by Curtis’s coconspirators as well as law enforcement

officers was more than sufficient to

establish that Curtis was a participant

in the conspiracy and distribution of

crack cocaine. No plain error exists as

to the admission of the testimony of the

five witnesses in question.

 b. Newly Discovered Evidence

 We review the district court’s denial of

Curtis’s motion for a new trial for abuse

of discretion. United States v. Furth, 36

F.3d 649 (7th Cir. 1994). That is, we ask

if a reasonable person could agree with

the decision of the district court.

United States v. Hunt, 272 F.3d 488 (7th

Cir. 2001). We find that one could. A

court may grant a defendant a new trial

based on newly discovered evidence if the

defendant can show that such evidence 1)

came to his knowledge only after trial;

2) could not have been discovered any

sooner had due diligence been exercised;

3) is material--not merely impeaching or

cumulative; and 4) probably would lead to

an acquittal if a new trial were granted.

United States v. Lopeztegui, 230 F.3d

1000, 1002 (7th Cir. 2000). The district

court found that Curtis had met none of

the above requirements and denied his

motion for a new trial. This finding is

not an abuse of discretion. Curtis, the

government, the court, and the jury knew

of the tape and knew that it was

completely blank during the trial.

Moreover, even had it been newly
discovered, it would not have been

material to his defense. Curtis claims

that it would show that the government,

in explaining to the jury why it was not

presenting a tape recording of the

controlled purchase, was lying when it

said that there was no recording because

the transaction took place in another

room--the completely blank tape (with no

preamble) shows that no recording exists

because of machine malfunction or

erasure. If anything, this evidence is

merely impeaching/2--not material to

Curtis’s defense. Whether the machine

malfunctioned or not, the activity in the

bathroom would not have been recorded.

Curtis also contends that if the tape

were not completely blank, it should have

corroborated the government’s version of

events: that Hale and Boyle paged Curtis,

and that Curtis arrived at their home.

Just because the tape does not make the

government’s winning case even stronger

does not mean that it helps Curtis’s

defense. It is not material at all.

Because the tape is immaterial, and

because the jury knew that it was blank--

the defense attorney used the fact that

the government did not present any

recorded corroboration of its version of

events during his argument--it likely

would not lead to Curtis’s acquittal if a

new trial were granted. The district

court did not abuse its discretion in

denying Curtis’s motion for a new trial.

III. Conclusion

 For the reasons stated above, we AFFIRM

the decisions of the district court.

FOOTNOTES

/1 FRE 403 states that relevant evidence should be

excluded if "its probative value is substantially

outweighed by the danger of unfair prejudice."

FRE 404(b) provides that "[e]vidence of other

crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show

attention 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 . . . ."

/2 If, in fact, the lack of preamble could have been

used to impeach the government, Curtis had the

information necessary to do so during the trial.

He did not.