United States v. Blount, Aja L. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3915
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AJA L. BLOUNT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05-CR-30091—G. Patrick Murphy, Chief Judge.
____________
ARGUED MAY 31, 2007—DECIDED SEPTEMBER 17, 2007
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Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Aja Blount raises two eviden-
tiary challenges to his conviction for possessing a fire-
arm in furtherance of a drug trafficking crime. He first
contends that the district court improperly admitted
evidence of his earlier drug and gun activities—prior bad
acts under Federal Rule of Evidence 404(b)—because the
government provided insufficient notice prior to trial. He
also argues that a police officer impermissibly testified as
to Blount’s motives and supplied legal conclusions, in
violation of Rules 704 and 702. We find that sufficient
notice was given and that the evidence provided by the
officer was properly admitted. Therefore, we affirm.
2 No. 06-3915
I. BACKGROUND
State police arrested Blount in his home in May 2005 on
an outstanding warrant for drunk driving, and while
searching him they discovered a baggie of crack cocaine.
After obtaining a search warrant, they found on Blount’s
bed 40 grams of crack, a digital scale, and a handgun.
During a video-taped interview, Blount admitted that
everything seized was his. He was indicted two weeks
later for possession with intent to distribute crack, 21
U.S.C. § 841(a)(1), and possessing a handgun as a felon, 18
U.S.C. § 922(g)(1).
On January 11, 2006, a week before trial, the govern-
ment filed a “notice of intent to utilize 404(b) evidence,”
which included a proffer by Christopher Gardner, an
acquaintance of Blount’s who also faced federal drug
charges. In the two-page proffer, Gardner stated that in
April 2005 he had sold crack to Blount three times in the
Eagle Park neighborhood of Madison, Illinois; that Blount
frequently visited the neighborhood looking for drugs (both
he and Gardner had relatives living there); and that
Gardner “did see Blount carrying a firearm with him on
one occasion in Eagle Park.” Gardner described the gun as
a black .357 and noted that “Blount had previously
indicated that he also had a 9 mm firearm.”
Also on January 11, the government filed a notice that
it would be examining three expert witnesses who would
“testify to the extensive use of firearms in furtherance
of narcotics trafficking crimes.” The next day the govern-
ment returned a superseding indictment adding a third
charge against Blount: possessing a gun in furtherance of
a drug trafficking crime, 18 U.S.C. § 924(c)(1). On July 14
the government issued a second 404(b) notice, stating that
it wished to introduce evidence that in 2003 Blount was
arrested and convicted in state court for possessing drugs
and a gun.
No. 06-3915 3
On July 17, the day before trial, Blount filed an objec-
tion to the government’s 404(b) notices, contending that
the evidence was stale and that, in light of Blount’s video-
taped confession, evidence of prior bad acts would amount
to “overkill.” The district court agreed and excluded any
evidence of Blount’s 2003 arrest, but allowed the govern-
ment to present Gardner’s testimony, which, the court
said, “goes directly to the issue of intent.” The trial began
the next day, and Gardner eventually took the stand.
During the government’s direct examination, he testified
that once when Blount bought crack from him, Blount
was carrying a black .357 revolver and he showed Gardner
the gun. Over a defense objection that the question called
for speculation, Gardner testified that he thought Blount
was armed “to protect the deal going down with me . . . to
make sure nothing went wrong,” and agreed with the
government’s suggestion that selling drugs is dangerous
and that brandishing a gun “make[s] it known to others:
I’ve got this just in case anything goes wrong.”
Also at trial, Officer Brett Boerm of the Collinsville,
Illinois Police Department testified. An expert on drug
investigations, Officer Boerm opined that in light of the
amount of crack found on Blount’s bed, the drugs were
for distribution rather than personal use. He then was
asked whether in his experience guns were frequently
mixed up in drugs cases; after he answered that they were,
he was asked the purpose of the guns in those cases. The
defense objected, stating that the form of the question
“assumes that the purpose of the firearm in every instance
is the same,” but the objection was overruled. Boerm
answered: “The firearms are used to protect their stash,
their business, and themselves.” Then the following
exchange occurred:
Q: Based on your experience then, what is your expert
opinion as to how the gun found in this case was
being used by the defendant, Aja Blount?
4 No. 06-3915
A: The way that the—all three items on top of the bed
were positioned, I would say that the firearms
were also being—the firearm was being used in the
same way, to protect the business, the drug busi-
ness.
The jury found Blount guilty on all counts and the
district court sentenced him to a total of 181 months’
imprisonment: concurrent sentences of 121 and 120
months on the drugs and felon-in-possession counts, and
a consecutive 5-year sentence for possessing a gun in
furtherance of a drug trafficking crime. On appeal he
challenges only the possession-in-furtherance conviction.
II. ANALYSIS
A. Sufficient notice of Rule 404(b) testimony was
given
Blount first contends that the district court improperly
admitted Gardner’s testimony, arguing that the govern-
ment provided insufficient notice of the testimony’s
content. Federal Rule of Evidence 404(b) reads:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith. It
may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, prepa-
ration, plan, knowledge, identity, or absence of
mistake or accident, provided that upon request by
the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial,
or during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.
(Emphasis added.) The notice provision emphasized above
was added in 1991, and the Advisory Committee Notes
No. 06-3915 5
that accompany the 1991 amendment state that notice “is
intended to reduce surprise and promote early resolution
on the issue of admissibility,” and that “no specific time
limits are stated in recognition that what constitutes a
reasonable request or disclosure will depend largely on
the circumstances of each case.” Without notice, 404(b)
evidence is inadmissible. See Fed. R. Evid. 404(b) advisory
committee’s note (1991); United States v. Carrasco, 381
F.3d 1237, 1241 (11th Cir. 2004) (per curiam); United
States v. Vega, 188 F.3d 1150, 1152-55 (9th Cir. 1999).
Blount contended in his brief that we should review his
404(b) argument for an abuse of discretion, but at oral
argument he all but conceded that he did not object to
Gardner’s testimony on notice grounds. He did object
that one of the government’s questions called for specula-
tion, but speculation and lack of notice are two different
things, and the objection only preserved the former as an
issue for appeal. See United States v. Swan, 486 F.3d 260,
263-64 (7th Cir. 2007); United States v. Russell, 134 F.3d
171, 179 (3d Cir. 1998). We therefore review this argu-
ment for plain error, and will only reverse if the error is
plain, compromises Blount’s substantial rights, and
seriously affects the fairness, integrity, or public reputa-
tion of judicial proceedings. See United States v. Prude, 489
F.3d 873, 880 (7th Cir. 2007).
It is clear that the government provided some sort of
notice, for it twice sent 404(b) messages to Blount. Arriv-
ing as it did a week before trial, the first notice—the
relevant one—was timely. See United States v. Watson, 409
F.3d 458, 465-66 (D.C. Cir. 2005) (48 hours sufficient);
United States v. Preciado, 336 F.3d 739, 745 (8th Cir.
2003) (several days sufficient). The real question, though,
is whether the notice was adequate. Mindful of Rule
404(b)’s requirement that the government provide the
“general nature” of the evidence, courts have not been
6 No. 06-3915
stringent in this regard. In United States v. Russell, 109
F.3d 1503, 1507 (10th Cir. 1997), for example, the govern-
ment notified the defendant that it might offer “prior
and subsequent conduct involving the distribution of
controlled substances”—not exactly a fountain of de-
tails—and the court found this sufficient notice. Also, in
United States v. Erikson, 75 F.3d 470, 478 (9th Cir. 1996),
a doctor on trial for Medicare fraud was informed that a
former colleague would be testifying about the defendant’s
shady billing practices at another clinic, even though he
“did not know specifically what testimony the govern-
ment planned to use.”
But Blount claims he didn’t know that Gardner would
testify that Blount carried a revolver for protection during
a drug buy in April 2005—which turned out to be key
evidence of his intent to possess the gun in May 2005 in
furtherance of a drug trafficking crime. (Gardner’s testi-
mony showed that the discovery of Blount’s gun on his bed
next to a huge stash of crack was not just a one-off.) Lack
of notice is a difficult argument for Blount to make. After
all, Gardner’s proffer, which was attached to the first
404(b) notice, discussed for ten paragraphs Blount’s many
trips to Eagle Park to buy crack, and then stated in the
last paragraph that Gardner saw Blount “carrying a
firearm with him on one occasion in Eagle Park” (emphasis
added). The natural inference is that he was carrying a
gun during one of the drug-buying trips. Moreover, Blount
probably should have realized that Gardner might link
the gun and the drugs when the government filed, on the
very same day as its 404(b) notice, a list of expert wit-
nesses to testify to “the extensive use of firearms in
furtherance of narcotics trafficking crimes” and then the
next day returned a new indictment with a possession-in-
furtherance count. Rule 404(b) notice needn’t take any
particular form, Fed. R. Evid. 404(b) advisory committee’s
note (1991); see United States v. Gorman, 312 F.3d 1159,
No. 06-3915 7
1163 (10th Cir. 2002) (verbal notice sufficient), and these
other indicators, combined with the 404(b) message, likely
provided actual notice of what was coming. Cf. United
States v. Tringali, 71 F.3d 1375, 1382 (7th Cir. 1995)
(where notice under 21 U.S.C. § 851 was slightly deficient,
contemporaneous 404(b) notice of same prior convictions
supplied actual notice to defendant).
Nevertheless, we note that the prosecutor may not have
been entirely clear that Gardner was going to testify to
more than drug sales. During the pretrial hearing on July
17, the government didn’t say that Gardner would testify
to Blount’s gun possession, let alone during a drug sale—it
just said that “on three separate occasions, Chris Gardner
sold 2 ounces of crack to this defendant.” To the extent
that these mixed signals prevented notice to Blount of the
extent of Gardner’s testimony, we will analyze whether
any error was plain. We conclude that it was not. A
significant amount of other evidence showed that the gun
on Blount’s bed “advanced and promoted” Blount’s drug
activities. See United States v. Castillo, 406 F.3d 806, 813-
19 (7th Cir. 2005). Blount concedes that he was a convicted
felon, so the gun was illegal; that he possessed the gun and
the drugs; that the gun was loaded; that it was discovered
right next to distribution levels of crack as well as drug
paraphernalia (the scale); and that it was a handgun
rather than some dusty musket displayed over a fireplace
next to a moose. Also, even though he said it was not his
practice to sell drugs out of his house and that he bought
the gun for protection from a “hostile acquaintance,” he
admitted that he had sold drugs from home in the past,
and he occasionally kept the gun by the door in case “I got
to go outside and run back in the house . . . . Some bullshit
comes up.” Given these factors, a jury could have found
that Blount possessed the gun “in furtherance of ” his drug
activity even in the absence of Gardner’s testimony. See id.8 No. 06-3915
B. Rule 704 and 702 expert testimony was prop-
erly admitted
Blount next contends that the district court violated
Federal Rules of Evidence 704(b) and 702 when it allowed
Officer Boerm to testify “concerning Mr. Blount’s mental
state” by offering his expert opinion that the gun was
used in furtherance of Blount’s drug activities. Again, since
Blount did not object on these grounds, we review for plain
error.
Rule 704(b) is an exception to Rule 704(a), which allows
opinion testimony that “embraces an ultimate issue to be
decided by the trier of fact.” Part (b) reads:
No expert witness testifying with respect to the
mental state or condition of a defendant in a
criminal case may state an opinion or inference as
to whether the defendant did or did not have the
mental state or condition constituting an element
of the crime charged or a defense thereto. Such
ultimate issues are matters for the trier of fact
alone.
This exception to 704(a) addresses a concern that testi-
mony by a psychiatrist or other mental health expert
could extend beyond medical conclusions into legal con-
clusions and unduly influence the jury. See United States
v. Lipscomb, 14 F.3d 1236, 1241-42 (7th Cir. 1994); United
States v. Smart, 98 F.3d 1379, 1388 (D.C. Cir. 1996). But
when the rule is applied to law enforcement experts
testifying about the criminal nature of a defendant’s
actions, it takes on a more limited role. “[S]uch testimony
should not be excluded under Rule 704(b) as long as it
is made clear, either by the court expressly or in the
nature of the examination, that the opinion is based on
the expert’s knowledge of common criminal practices,
and not on some special knowledge of the defendant’s
mental processes.” Lipscomb, 14 F.3d at 1242; see also
No. 06-3915 9
United States v. Glover, 479 F.3d 511, 516-17 (7th Cir.
2007).
Officer Boerm’s testimony did not transgress Rule
704(b)’s limitations. No juror could have believed that
Boerm was using special personal knowledge of Blount
rather than assisting the jury to infer Blount’s motives
from a general trend linking guns and drugs. He expressly
gave his “expert opinion” as a policeman who had
worked dozens of drug cases before; he never referred to
Blount’s “intent” or “intentions”; and he based his con-
clusion on the way the drugs and gun were discovered, not
on what he knew of Aja Blount. See United States v.
Mancillas, 183 F.3d 682, 706 (7th Cir. 1999). Moreover, the
district court cautioned the jury that it could take
Boerm’s opinion or leave it, further reducing any fear of
inappropriate influence. See United States v. Brown, 7 F.3d
648, 655 (7th Cir. 1993).
Finally, Blount contends that Boerm’s testimony was a
mere legal conclusion and as such was unhelpful to the
jury. Federal Rule of Evidence 702, which governs expert
testimony, only allows expert evidence that “will assist
the trier of fact to understand the evidence or to deter-
mine a fact in issue.” The average juror does not know how
a drug business is run, United States v. Allen, 269 F.3d
842, 846 (7th Cir. 2001); Brown, 7 F.3d at 652, and to
that extent Boerm’s testimony was useful in showing the
link between crack and guns. Moreover, Boerm did not
couch his testimony in legal terms by saying he believed
Blount “possessed” the gun “in furtherance” of a drug
trafficking crime; rather, he stated that the gun was used
“to protect the business, the drug business.” See United
States v. Perkins, 470 F.3d 150, 158 (4th Cir. 2006). There
is a difference between stating a legal conclusion and
providing concrete information against which to meas-
ure abstract legal concepts. Id. at 158-59. We do not be-
10 No. 06-3915
lieve the district court plainly erred in allowing Boerm’s
testimony.
III. CONCLUSION
For these reasons, we AFFIRM Blount’s conviction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-17-07