In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1338

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TITORIAN O. WEBB,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 1:07-CR-56-TS—Theresa L. Springmann, Judge.

ARGUED OCTOBER 15, 2008—DECIDED NOVEMBER 20, 2008

Before EASTERBROOK, Chief Judge, and COFFEY and

WOOD, Circuit Judges.

EASTERBROOK, Chief Judge. When the police arrived

with a warrant to search Kelle Hartman’s house for drugs,

they found Titorian Webb in the driveway, dressed in

workout togs. The police found exercise gear in Hartman’s

basement, along with illegal drugs in plain view. Equipment for packaging drugs was scattered throughout the

house. After these discoveries, Webb was arrested and

charged with drug offenses. Hartman pleaded guilty and
2 No. 08-1338

testified against Webb, who was convicted by a jury of

possessing cocaine, marijuana, and ecstasy with intent

to distribute them. He was sentenced to 120 months’

imprisonment.

After Webb’s lawyer said in an opening statement that

Webb had nothing to do with Hartman’s distribution of

drugs, and was at her house only by chance when the

police arrived, the prosecutor introduced Webb’s 1996

conviction for distributing cocaine. The district judge

overruled an objection under Fed. R. Evid. 404(b), stating

that the conviction would show Webb’s intent and the

absence of mistake, two uses permissible under that

Rule. The judge told the jury that the evidence had

been admitted for specific purposes. Webb does not

contest the terms of the limiting instruction but does

argue that the conviction should not have been admitted

for any purpose.

It is hard to see how the 1996 conviction shows either

intent or absence of mistake. The crime of which Webb

was convicted—possession of drugs with intent to distribute them—has an intent element, to be sure, but Webb did

not argue that he possessed the drugs for personal use

rather than for distribution. He contended that he did not

possess the drugs for any purpose. Webb’s conviction

would have been useful only to the extent that it

showed that he had control over the drugs (which is to

say, that he possessed them)—but the prosecutor has not

argued that it tends to show Webb’s knowledge of the

house’s contents, let alone dominion over those contents.

As for “absence of mistake”: how does a conviction show
No. 08-1338 3

this except via the prohibited inference that someone

who distributes drugs once is likely to do it again? The

prosecutor’s position, in short, seems to be that a drug

conviction always may be used in another drug prosecution, even if the crimes have nothing else in common. That

position was rejected in United States v. Beasley, 809

F.2d 1273 (7th Cir. 1987). See also, e.g., United States v.

Simpson, 479 F.3d 492 (7th Cir. 2007).

Webb did not, however, contend that the evidence is

irrelevant. His arguments, both in the district court and

this appeal, have been limited to Rule 404(b) itself—and

all that Rule does is specify one prohibited use (the propensity inference) while disclaiming any effect on other

uses, such as proving knowledge or intent. Whether

particular evidence is relevant on those subjects is a

question outside the scope of Rule 404(b). See United

States v. Jones, 455 F.3d 800, 810–12 (7th Cir. 2006) (concurring opinion). To concentrate on Rule 404(b), when the

real questions are relevance (Rule 402) and whether the

evidence has a potential for prejudice disproportionate

to its valid use (Rule 403), is to misdirect attention.

It is easy to find cases holding that a district judge does

not err in admitting prior convictions to show intent or

absence of mistake in drug prosecutions. One good example is United States v. Hurn, 496 F.3d 784, 787 (7th Cir. 2007),

which held that the district court did not abuse its discretion in admitting a conviction under circumstances

very much like those of Webb’s prosecution. Hurn

collects other decisions to the same effect. See, e.g., United

States v. Chavis, 429 F.3d 662, 668 (7th Cir. 2005).
4 No. 08-1338

Although several of these opinions say that a prior conviction shows intent or absence of mistake, none

explains why—perhaps because in those appeals, as in

this one, the parties assumed that the evidence was

relevant and so did not present the question in an adversarial manner for decision on appeal.

Given Hurn and its predecessors, it cannot be plain

error to admit the conviction in the absence of a

relevance objection. And we need not tackle the tension

between Beasley and Simpson, on the one hand, and

Hurn and Chavis, on the other, because even the lighter

harmless-error standard would require us to affirm

Webb’s conviction.

Both Hartman and her housekeeper testified that Webb

lived in the house. The housekeeper added that the basement was locked, that she could enter only if Hartman

or Webb let her in to clean, and that she regularly saw

Webb handle cocaine and marijuana. A glazier testified

that Webb was present on both days when he installed

mirrors in the house’s basement. The glazier, like the

housekeeper, testified that Webb unlocked the basement door to admit him.

Webb had a key to the house when he was arrested; he

was also carrying $3,000 in stacks separated by rubber

bands. His car contained plastic bags of the kind often

used for packaging drugs, plus a large number of air

fresheners—far too many for one car, which implies that

they were used to mask the smell of marijuana. A home

gym had been set up in the basement, where most of the

drugs and packaging materials were found. Anyone who
No. 08-1338 5

wanted to use the weights would have had to move some

of the cocaine and marijuana to get at them; marijuana

seeds and stems were found on a treadmill. Webb conceded in an interview with a DEA agent that he and

Hartman were lovers. Although he denied living in

Hartman’s house, the concession (plus the key and his

penchant for exercise) severely undermined Webb’s

assertion that he did not possess any drugs.

Given this evidence—and there was more—the fact

that Webb had a drug conviction on his record could not

have affected the jury’s verdict. The harmless-error rule

means that district judges, rather than courts of appeals,

are the principal enforcers of limits on other-crime evidence. We trust that district judges will review evidence

of this kind carefully to ensure that it really is relevant,

and serves a legitimate goal rather than leading to the

forbidden propensity inference.

The judgment is affirmed.

11-20-08