United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Argued August 5, 2008

Decided August 28, 2008

Before

RICHARD A. POSNER, Circuit Judge

JOHN L. COFFEY, Circuit Judge

DANIEL A. MANION, Circuit Judge

No.  08‐1601

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

KIMANI L. FLEMING, a/k/a Kamari

Merryweather,

Defendant‐Appellant.

Appeal from the United States District

Court for the Northern District of

Indiana, South Bend Division.

No. 07 CR 91

Robert L. Miller, Jr.,

Chief Judge.

O R D E R

Kimani Fleming was convicted of distributing and possessing with intent to

distribute crack, unlawfully transporting firearms, possessing a firearm in connection with

his drug offenses, and possessing a firearm even though he was a felon, all during August

2007.  At trial, five witnesses testified that Fleming sold crack throughout 2006 and 2007.

Fleming appeals, arguing that the district court should not have admitted this testimony

because it was impermissible evidence of his prior bad acts.  Because the testimony was

relevant to the questions of Fleming’s knowledge and intent, two of the exceptions to the

“prior bad acts” rule, we affirm.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐1601 Page 2

Background

Fleming began selling large amounts of crack in 2006 using three houses in Elkhart,

Indiana as his bases of operation.  He was caught when federal agents, acting through two

of Fleming’s customers who had been apprehended, made four controlled buys from him in

August 2007.  Following the controlled buys, agents obtained a warrant and searched one of

Fleming’s houses, finding Fleming along with two scales, razor blades, baggies, a cell

phone, marijuana, powder cocaine, baking soda (which is used to cook powder cocaine into

crack), and three firearms.  Fleming was charged with one count of possessing with intent to

distribute crack, four counts of distributing crack, one count of possessing a firearm in

connection with the drug crimes, and one count of possessing a firearm despite his prior

felony convictions.  See 18 U.S.C. §§ 922(g)(1), 924(c); 21 U.S.C. 841(a)(1).  

Before trial, the government gave notice of its plan to introduce testimony from

Fleming’s accomplices and customers. They were expected to describe their interactions

with Fleming before August 2007, when the controlled buys were made.  At trial, after

Joetta Penn testified that she bought drugs from Fleming in 2006 and 2007, Fleming objected

to any further similar evidence from additional witnesses, arguing that the proposed

testimony would be unduly prejudicial and would prove only that he was prone to

committing drug crimes.  Notably, however, Fleming did not object to Penn’s testimony or

seek a limiting instruction.  The government countered that the testimony was admissible

because it would establish Fleming’s knowledge and intent to commit the charged crimes.

The district court, noting that the government was entitled to present some evidence

regarding intent, overruled Fleming’s objection.  The next two witnesses relevant to this

appeal—Lindy Aitken and Rachel Gerschoffer—proceeded to testify regarding their drug

purchases in 2006 and 2007 without further objection from Fleming.

Another of Fleming’s customers, Michael Herring, testified that he too purchased

crack from Fleming during 2006 and 2007, but not during August 2007 because he was

incarcerated.  Fleming again objected, and the district court concluded that Herring’s

testimony was admissible to show intent and knowledge, but it agreed to instruct the jury

not to consider the testimony for any other purpose.  Jason Lucas, Fleming’s right‐hand

man, next testified that during 2006 and 2007 he and Fleming usually drove to Detroit once

a week to buy powder cocaine and then, when they returned to Indiana, they used baking

soda to cook the powder cocaine into crack.  He noted, though, that he did not aid Fleming

in his drug operation during the month of August 2007 because he, like Herring, was

incarcerated.  The district court once again instructed the jury that it could consider pre‐

August 2007 evidence only for the limited purposes of intent and knowledge.  This

instruction applied to all the pre‐August 2007 evidence presented at trial. The court
No. 08‐1601 Page 3

repeated this instruction a third time after closing arguments and before the jury began its

deliberation.  Fleming was convicted of all seven counts against him and sentenced to life in

prison.

Analysis

Federal Rule of Evidence 404(b) prohibits the use of prior convictions or other

evidence of bad acts to establish that the defendant is the kind of person who commits

crimes.  See United States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007).  The rule does, however,

permit the government to introduce evidence of prior bad acts to prove other, material,

facts, including intent and knowledge.  Id.  Evidence is admissible under Rule 404(b) if “(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.”  United States v. Dennis, 497 F.3d 765, 768 (7th Cir. 2007) (internal quotation

marks and citation omitted).  When a defendant objects to the admission of evidence at trial,

we review the district court’s Rule 404(b) decision for an abuse of discretion.  See United

States v. Price, 516 F.3d 597, 603 (7th Cir. 2008).  But if the defendant says nothing at trial

(and here Fleming neglected to object to Penn’s testimony), our review is for plain error.  See

United States v. DeSilva, 505 F.3d 711, 717‐18 (7th Cir. 2007).   

Fleming rests his argument that the district court erred in admitting the testimony of

Lucas, Penn, Aitken, Gerschoffer, and Herring on the first and last prongs of the four‐prong

test.  According to Fleming, their testimony proved only that he had sold drugs in the past

and did nothing to prove that he also sold drugs during the controlled buys.  And, Fleming

continues, the testimony unfairly prejudiced him because its only purpose was to “paint

[him] as a big time drug dealer.”

The government correctly replies that portions of Aitken and Gerschoffer’s testimony

are not even governed by Rule 404(b) because both witnesses reported, in part, that they

bought crack from Fleming during August 2007, and that testimony is direct evidence

regarding the charged crimes. See United States v. Lane, 323 F.3d 568, 579 (7th Cir. 2003)

(observing that Rule 404(b) is inapplicable where “bad acts” are direct evidence of charged

offense).  The government further contends that Aitken and Gerschoffer’s descriptions of

buying crack from Fleming before August 2007 are not subject to Rule 404(b) because that

testimony was “inextricably intertwined” with their direct evidence that Fleming also sold

them crack during August 2007.  
No. 08‐1601 Page 4

We have recently observed, though, that the “inextricably intertwined” formula is

“unhelpfully vague” and that there is no need to tangle with that murky doctrine when one

of the express exceptions to Rule 404(b) applies.  United States v. Taylor, 522 F.3d 731, 734‐35

(7th Cir. 2008).  And in this case, Aitken and Gerschoffer’s testimony, along with that of

Herring and Lucas, did fall within one of the Rule 404(b) exceptions—it showed Fleming’s

intent.  Fleming was charged with specific intent crimes, see United States v. Mallett, 496 F.3d

798, 802 (7th Cir. 2007), and evidence of prior acts of drug trafficking is relevant to whether

a defendant intended to sell drugs or simply intended to use the drugs for personal

consumption, see United States v. Vaughn, 267 F.3d 653, 659 (7th Cir. 2001); United States v.

Griffin, 194 F.3d 808, 820 (7th Cir. 1999); United States v. Allison, 120 F.3d 71, 74‐75 (7th Cir.

1997).  Moreover, Lucas’s testimony that Fleming knew how to cook crack from powder

cocaine and baking soda—the ingredients found in his house—showed Fleming’s

knowledge, another of the Rule 404(b) exceptions.  See United States v. Jones, 248 F.3d 671,

675 (7th Cir. 2001) (noting that knowledge that substance is a narcotic is often proven

through testimony about prior drug sales).  The testimony Fleming challenges therefore

satisfies the first prong of the test.

Fleming contends that our decision in United States v. Beasley, 809 F.2d 1273 (7th Cir.

1987), compelled the district court to exclude the prior bad acts testimony.  But in that case,

the district court wrongly thought that evidence showing a pattern of bad acts was

admissible on its own, without evaluating whether the evidence fell within an exception to

404(b)’s general rule of exclusion.  Id. at 1278.  Moreover, the district court in Beasley failed

to consider the prejudicial effects of the prior bad acts evidence.  Id. at 1279.  The district

court made no such error in Fleming’s case.  It properly considered the prejudicial impact of

admitting evidence that Fleming sold crack in the past and reasonably concluded that the

evidence was relevant to show intent and knowledge.  The district court also reduced any

potential prejudice to Fleming by instructing the jury three times that it could not consider

evidence that Fleming sold crack before August 2007 for any purpose other than intent or

knowledge, see United States v. Moore, 531 F.3d 496, 500 (7th Cir. 2008). We may presume

that the jury followed that instruction, which Fleming does not challenge, see United States v.

James, 487 F.3d 518, 525 (7th Cir. 2007).  Thus Fleming’s argument that the fourth element of

the test was not met also fails.

Finally, Fleming neglected to object to Penn’s testimony, which was almost identical

to that of Aitken and Gerschoffer, and so we assess the district court’s admission of her

testimony for plain error.  See DeSilva, 505 F.3d at 717‐18.  But because Fleming has not

shown that the court abused its discretion in admitting evidence of his prior drug sales, he

necessarily cannot succeed under a plain error standard.  See United States v. Carter, 530 F.3d

565, 575‐76 (7th Cir. 2008) (noting that plain error review is more stringent than the abuse of
No. 08‐1601 Page 5

discretion standard).  The district court therefore properly admitted the testimony of all five

witnesses.

  

Conclusion

Because the district court did not err in admitting evidence of Fleming’s prior bad

acts, we AFFIRM his conviction.