Argued November 28, 2012
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CR 783 -- Virginia M. Kendall, Judge.
For United States of America, Plaintiff - Appellee: Patty Merkamp Stemler, Attorney, Department of Justice, Washington, DC.
For Marvin Chapman, Defendant - Appellant: Carol A. Brook, Attorney, Daniel J. Hesler, Attorney, Office of The Federal Defender Program, Chicago, IL.
Before WOOD, Chief Judge, and KANNE and SYKES, Circuit Judges.
Sykes, Circuit Judge.
On a foggy night in Chicago, police officers patrolling the west side of the city spotted Marvin Chapman walking down a sidewalk carrying a bag with what looked like the barrel of a rifle protruding from it. As the officers approached, Chapman ducked into an abandoned duplex. One officer followed Chapman into the house and saw him drop the bag in the living room; another caught up with Chapman as he tried to escape through a bedroom window. In the bag they found a distribution quantity of heroin and an assault rifle.
Chapman was charged with three crimes: possessing heroin with intent to distribute, possessing a firearm in furtherance of a drug-trafficking crime, and possessing a firearm as a felon. At trial he claimed that the officers were either mistaken or lying about having seen him carrying the bag. He testified that he did not possess the bag at any time; it was either in the building before he entered or was planted there. His girlfriend, who was present and witnessed these events, also testified that he was not carrying a bag. The jury returned a factually inconsistent verdict, convicting Chapman of possessing the drugs but acquitting him on the two gun-possession counts.
Chapman challenges his conviction on three grounds. First, he contends that the judge erroneously admitted the details of his prior heroin-trafficking conviction under Rule 404(b) of the Federal Rules of Evidence for the purpose of proving that he knew how heroin is packaged and intended to distribute the drugs found in the bag. Second, he argues that the judge erroneously precluded him from explaining his six prior felony convictions. The convictions (though not their factual details) were admitted for impeachment purposes. Chapman wanted to blunt the impact of this evidence by telling the jury that he had pleaded guilty and accepted responsibility in his earlier cases, but the judge wouldn't allow it. Finally, Chapman challenges the judge's refusal to compel the testimony of an eyewitness who might have supported his version of events. The witness was facing drug charges in a separate case and invoked his Fifth Amendment privilege against self-incrimination. Chapman insists that the witness had no legitimate fear of self-incrimination and should have been required to testify.
We agree with Chapman's first claim of error: The judge should not have admitted the details of Chapman's heroin-trafficking conviction under Rule 404(b). As explained in our recent en banc opinion in United States v. Gomez, No. 12-1104, 763 F.3d 845, 2014 WL 4058963 (7th Cir. Aug. 18, 2014) (en banc), evidence of other bad acts is inadmissible to show character or propensity but may be admitted for another purpose provided that the evidence is relevant under a theory that does not rely on an inference about the actor's propensity. See Fed.R.Evid. 404(b)(1). Here, the judge allowed the government to use the specifics of Chapman's prior heroin conviction to prove knowledge and intent, but the relevance of the evidence on those issues depends entirely on a forbidden propensity inference. Even if the evidence was relevant in a nonpropensity way, its probative value was substantially outweighed by the risk of unfair prejudice given that Chapman's defense was that he did not possess the bag at all. See Fed.R.Evid. 403. The jury's inconsistent
verdict shows that the Rule 404(b) error was not harmless.
That alone requires remand for retrial. For completeness, however, we also conclude that the judge wrongly excluded Chapman's rehabilitation testimony but properly accepted the eyewitness's invocation of his privilege against self-incrimination.
Chapman has a long criminal record and has spent much of his adult life incarcerated. When the events in this case transpired, he had been out of jail for only about a month.
On the evening of March 8, 2010, a heavy fog enveloped the City of Chicago. The Chicago Weather Center reported dense fog at 11:06 p.m. Other weather records established that visibility was 0.1 miles or less, causing the cancellation of around 90 flights at Chicago airports. One defense eyewitness described the fog as thick. In contrast the Chicago police officers involved in Chapman's arrest--Officers McHale, Lipka, McGrory, and Bouch--did not remember any fog that night.
The four officers testified that they were on patrol in an unmarked squad car near the corner of Ohio Street and Ridgeway Avenue on the city's west side when they spotted Chapman walking south on Ridgeway. The officers were driving east on Ohio and observed Chapman from a distance of about 150 feet (at the farthest point) to 25 feet (at the nearest point). They testified that Chapman was carrying a dark-colored bag with a cylindrical object--a rifle, they thought--sticking out of it. When Chapman saw the approaching officers, he fled into an abandoned two-flat building at 619 North Ridgeway.
Chapman's account differs. He testified that he was standing on the street near the intersection of Ohio Street and Ridgeway Avenue with his girlfriend, Damuriel Collier. With them was Derrick Lewis, an alleged drug dealer also known as " D.C." Collier, who also testified at Chapman's trial, admitted that she was talking to Lewis about selling cocaine for him. When they saw the unmarked police car approaching, Chapman and Collier walked into the abandoned flat, and Lewis walked away in another direction. Chapman and Collier both testified that at no time--either before or after entering the building--did Chapman possess a bag.
As Chapman and Collier disappeared into the house, Officers McHale and Lipka jumped from the patrol car and gave chase. McHale ran around the side of the house and down a gangway, while Lipka entered the house through the front door. The building was unlit, but Lipka carried a flashlight. He testified that he saw Chapman drop the bag in the living room and then attempt to jump out of a bedroom window. He also recalled hearing a " thud" as the bag hit the ground. Lipka alerted McHale, who saw Chapman coming through the window and detained him.
Chapman's account again differs. Chapman and Collier testified that a police officer with a flashlight banged on the front door of the house, and Collier opened the door for him. Collier also said she heard breaking glass in the rear of the building. They agreed that Chapman jumped--or tried to jump--from a window.
Chapman also introduced evidence that Officer McHale's account was not physically possible. A photo taken sometime after Chapman's arrest showed a rusted and partially broken fence blocking the gangway that McHale said he used to access the side of the building; a similar photo taken sometime before the arrest also
showed a fence blocking the passageway. Collier testified that the fence was in place on the night of Chapman's arrest. Putting this evidence together, Chapman argued that the fence was blocking the gangway on March 8, 2010, and McHale could not possibly have accessed the passageway as he claimed.
There were other unexplained discrepancies as well. Collier testified that the police handcuffed her at the scene, put her in a police vehicle, questioned her, and eventually let her go. Officer McHale testified that no female witness was taken into custody. Collier is not listed as a witness on any police report.
Officer Lipka searched the bag (on closer inspection, it turned out to be a dark blue laundry bag) and found a loaded AR-15 assault rifle and two plastic bags containing 28 foil packages of heroin, slightly over 10 grams in total weight. No fingerprints were found on the gun, and the few usable prints on the drug packaging did not match Chapman's. One of the officers searched Chapman and found three small bags of marijuana and $9 in cash.
The officers recalled that another female was present in the abandoned house, but only one of them spoke with her. After determining that she was not a safety concern, the officer told her to leave. No police report mentions this woman.
Chapman was indicted for possessing heroin with intent to distribute, 21 U.S.C. § 841(a)(1); possessing a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A); and possessing a firearm as a felon, id. § 922(g)(1). His theory of defense was that he never possessed the bag, let alone the drugs and gun inside it. He claimed that he never physically held the bag, never controlled it, and prior to his arrest had never seen it before. It was either already in the abandoned house when he entered or it was planted.
Before trial the government moved to admit the details of Chapman's 2006 conviction for possessing heroin with intent to distribute for the purpose of proving Chapman's knowledge and intent. The government planned to cross-examine Chapman about his six prior felony convictions for impeachment purposes as permitted under Rule 609, but the motion in limine sought permission to ...