In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3527

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

A RTHUR T. C ONNER,
                                          Defendant-Appellant.


          Appeal from the United States District Court
              for the Western District of Wisconsin.
         No. 3:07-cr-00031-JCS-3—John C. Shabaz, Judge.



   A RGUED S EPTEMBER 15, 2008—D ECIDED O CTOBER 22, 2009




 Before K ANNE, E VANS, and W ILLIAMS, Circuit Judges.
  K ANNE, Circuit Judge. On March 8, 2007, a grand jury
indicted Defendant Arthur T. Conner for distributing
more than five grams of cocaine base (crack cocaine) in a
controlled drug buy on December 20, 2006. During
Conner’s jury trial, the government presented testimonial
evidence regarding Conner’s participation in a drug sale
on January 10, 2007, and his prior history of drug
2                                               No. 07-3527

dealing with co-defendants Michael Hughes and Darrick
Robison. The district court admitted this evidence
because it found that these acts were intricately related
to the charged crime. The court did not address the gov-
ernment’s alternative argument that the evidence was
admissible under Federal Rule of Evidence 404(b). The
jury convicted Conner, who was sentenced to life in
prison. Conner appeals his conviction, arguing that the
district court erred in admitting this evidence, as well as
in providing the jury with an aiding and abetting instruc-
tion. Alternatively, Conner requests a limited remand
for resentencing in light of Kimbrough v. United States, 

(2007). We affirm Conner’s conviction and
remand for resentencing.


                     I. B ACKGROUND
  The facts of the controlled buy for which Conner
was convicted are relatively straightforward. On Decem-
ber 20, 2006, FBI informant Abdul Harriel met with
Officer Aaron Dammen of the Janesville Police Depart-
ment, who searched him, fitted him with a transmitting
device, and gave him money to fund the transaction.
Harriel then called Michael Hughes 1 to arrange for the
purchase of a quarter-ounce of crack cocaine. Hughes
told Harriel that while he did not have that much crack,



1
  Throughout the opinion, “Hughes” refers to Michael Hughes.
His brother Vernon Hughes, who played a more passive role
in the transaction, is referred to by his full name only.
No. 07-3527                                              3

he knew someone who did—Conner. Hughes directed
Harriel to meet him later that day at Connor’s residence,
700 West Grand Avenue in Beloit.
  When Harriel arrived at the location, he got into the
backseat of Hughes’s car. Hughes was seated in the
driver’s seat, and Vernon Hughes, whom Harriel did not
know, was in the passenger’s seat. The three waited for
several minutes before Conner pulled up behind them,
exited his car, and entered Hughes’s car. Harriel gave
cash to Hughes, who passed it to Conner, and Conner
handed a brown paper bag to Harriel. Following the
transaction, Harriel returned to the safe site, where he
turned over the paper bag to Officer Dammen. Later
inspection revealed that the bag contained 5.737 grams
of crack cocaine.
  Throughout the transaction, a police surveillance team,
including Officer Dammen, monitored the activities from
a nearby van. Officer Dammen’s account of events was
consistent with the version presented by Hughes and
Harriel, although Dammen did not mention seeing
another individual in the passenger’s seat of Hughes’s car.
  A few weeks later, on January 10, 2007, Harriel partici-
pated in another controlled buy for Officer Dammen. On
that day, Harriel called Conner to again purchase crack
cocaine. Conner said he could sell Harriel the crack, but
he never called Harriel back with details, so Harriel
then called Michael Hughes. Hughes agreed to supply
the crack, and told Harriel to pick him up at 700 West
Grand Avenue.
4                                             No. 07-3527

  The interactions among Hughes, Conner, and
Robison, who ultimately supplied the crack to Harriel on
January 10, are somewhat unclear from the testimony. In
essence, the record reflects that Robison was holding
three “eight-balls” of crack cocaine for Conner and at
some point, Conner directed Robison to provide
Hughes with the crack. During this time, arrangements
were made for Hughes and Robison to meet at a drug
store on Harrison in Beloit for the exchange.
  Harriel picked up Hughes and they went to the drug
store where the exchange was to take place. When they
arrived, Robison got into the car, where he sold the
crack to Harriel. Harriel then returned to the safe site
and gave the drugs to Officer Dammen.
  On March 8, 2007, a grand jury returned a three-count
indictment against Hughes, Robison, and Conner. Conner
was only named in Count One of the indictment, which
charged Conner and Hughes with distributing more
than five grams of cocaine base on December 20, 2006.
Count Two charged Hughes and Robison with distrib-
uting more than five grams of cocaine base on January 10,
2007, and Count Three charged Hughes with distributing
more than five grams of cocaine base on January 18,
2007. Hughes and Robison pled guilty and agreed to
cooperate with the government, and Conner chose to go
to trial.
  Before Conner’s trial, the government gave notice that
it intended to produce a significant amount of “other
acts” evidence related to Conner’s drug history, including
testimony regarding the January 10 transaction and
No. 07-3527                                               5

evidence of Conner’s prior drug relationships with
Hughes and Robison. The government argued that the
evidence was intricately related to the crime charged in
the indictment or, alternatively, that the evidence was
admissible under Rule 404(b), as it tended to show knowl-
edge, intent, and a common scheme or plan. Over Conner’s
objection, the district court admitted the evidence
under the “intricately related” doctrine. The court did not
address the Rule 404(b) issue.
  At trial, the government presented numerous witnesses
who testified to the events of December 20 and January 10.
The government also introduced evidence regarding
Conner’s prior drug dealings with Hughes and Robison.
Hughes testified that he and Conner started dealing drugs
together in 1995, and that Conner dealt crack cocaine out of
his residence at 700 West Grand Avenue. He also described
how Conner would “rock up” or prepare the crack cocaine
and how much money Conner typically received from
these drug sales. Robison testified that he started working
for Conner as a middleman in 2006. Conner directed
Robison to make drug pickups and deliveries of cocaine,
and he supplied Robison with money to buy product to sell
to customers. Robison also testified that because he had a
driver’s license, he drove Conner to Rockford to purchase
cocaine and obtained rental cars to use in their drug
transactions.
  Conner did not present any evidence to rebut the gov-
ernment’s version of events. Instead, Conner’s counsel
attempted to establish reasonable doubt by challenging
the credibility of the government’s witnesses and
6                                               No. 07-3527

arguing that the testimony presented at trial left open the
possibility that Michael or Vernon Hughes, not Conner,
supplied the crack cocaine on December 20, 2006.
  The district court gave the jury the following instruction
regarding aiding and abetting:
    Any person who knowingly aids, abets, counsels,
    commands, induces, or procures the commission of
    a crime is guilty of that crime. However, the person
    must knowingly associate himself with the criminal
    venture, participate in it in trying to make it succeed.
Conner never objected. In fact, during the charging con-
ference Conner expressed his preference for this instruc-
tion. At that conference, the district court reviewed two
potential aiding and abetting instructions, and both
Conner and the government agreed that one would
suffice. The judge chose the above instruction and asked
if there was any objection. Conner’s counsel replied that
this instruction “better states the case.” Until this
appeal, Conner never maintained that it was improper
to instruct the jury on aiding and abetting.
  The jury found Conner guilty, and the court held a
sentencing hearing on October 9, 2007, prior to the Su-
preme Court’s decision in Kimbrough. Conner’s counsel
noted that “[the 100:1 crack-to-powder ratio is] up for
review in the Supreme Court so we do want to
preserve that issue for appeal.” The district court sen-
tenced Conner to life in prison without commenting on
the 100:1 ratio.
No. 07-3527                                              7

                      II. A NALYSIS
  On appeal, Conner argues that the district court erred in
admitting evidence of the January 10 sale and of his
prior drug dealings with Hughes and Robison. He also
asserts that the court erred in instructing the jury on
aiding and abetting. Conner maintains that even if each
of these errors was harmless in isolation, their cumula-
tive effect resulted in severe prejudice, necessitating a
new trial. In the alternative, Conner asks this court to
remand this case to the district court for resentencing in
light of the Supreme Court’s recent decision in
Kimbrough. We address each issue in turn.


A. Evidence of Conner’s “Other Bad Acts”
  At Conner’s trial, the government presented evidence
of Conner’s “other bad acts” under two alternative
theories of admissibility: Rule 404(b) and the “intricately
related” doctrine. The district court admitted the
evidence, concluding that both the January 10 sale and
Conner’s prior drug dealings with Hughes and Robison
were intricately related to the charged crime. The court
did not address the government’s alternative argument
that it was admissible under Rule 404(b). Conner chal-
lenges this ruling, arguing that the evidence was not
intricately related to the December 20 drug transaction,
that it was improper propensity evidence that does not
meet the requirements of Rule 404(b), and that it was
unduly prejudicial.
  We review the district court’s evidentiary rulings for
an abuse of discretion, including its decision to admit
8                                                   No. 07-3527

“other acts” evidence under the “intricately related”
doctrine or Rule 404(b). United States v. Harris, 

, 807 (7th Cir. 2008). We will not, however, grant a
new trial where an error was harmless, that is, where it
did not affect the outcome of the trial. United States v.
Ortiz, 

, 982 (7th Cir. 2007), cert. denied, 

(2007).
  Rule 404(b) provides that evidence of a defendant’s
“other bad acts” is not admissible to show the character
of a defendant or his propensity to commit the charged
crime. United States v. Chavis, 

, 667 (7th Cir.
2005). This evidence may, however, be admissible for
other purposes, such as knowledge, intent, or absence of
mistake. 

404(b), this court has long held
that evidence of prior bad acts is admissible when the
acts are so inextricably intertwined with, or intricately
related to, the charged conduct that they help the fact-
finder form a more complete picture of the crime. United
States v. Samuels, 

, 813 (7th Cir. 2008). Courts
admit this evidence because the acts in question are
intrinsic to the charged crime, and are not “other acts”
within the meaning of Rule 404(b). See United States v.
Luster, 

, 556 (7th Cir. 2007). In other words,
evidence admitted under this doctrine “lie[s] outside
the purview of the Rule 404(b) character/propensity
prohibition,” 

not subject to its con-
straints regarding the manner in which the evidence may
be used, see United States v. Bowie, 

, 928 (D.C.
Cir. 2000) (noting that inextricable intertwinement evi-
dence is admissible “for all purposes notwithstanding its
No. 07-3527                                                   9

bearing on character”); see also United States v. Owens, 

, 655 (7th Cir. 2005) (“Evidence of other acts which
are ‘intricately related to the facts of the case’ is admissible
without reference to Rule 404(b) . . . .”). However, as with
any theory of admissibility, evidence admitted under the
“intricately related” doctrine must pass muster under
Rule 403—its probative value must not be substantially
outweighed by its risk of unfair prejudice. 

.
  In recent cases, we have noted that although many
cases recite the “intricately related” formula, the doctrine
is often “unhelpfully vague.” See, e.g., United States v.
Taylor, 

, 734 (7th Cir. 2008), cert. denied, 129 S.
Ct. 190 (2008). Because almost all evidence admitted under
this doctrine is also admissible under Rule 404(b), there is
often “no need to spread the fog of ‘inextricably inter-
twined’ over [it].” 

As a result, we have
recently upheld district court rulings on the basis of
Rule 404(b) without resorting to the “intricately related”
doctrine. See 

; United States v.
Fleming, 290 Fed. App’x 946, 948-49 (7th Cir. 2008).
  As we discuss below, the district court improperly
admitted evidence of Conner’s other acts under the
“intricately related” doctrine. Although evidence of
Conner’s other acts would indeed have been admissible
under Rule 404(b), the district court’s decision to admit
the evidence under the “intricately related” doctrine
raises some concerns in this case that were not present in
our recent decisions. Namely, because evidence
admitted under the “intricately related” doctrine is not
10                                               No. 07-3527

subject to the constraints of Rule 404(b), the court did not
limit the purposes for which the jury could consider
the evidence. Indeed, unlike in Harris, several arguments
in the district court focused on implications of the
evidence that are beyond the scope of the Rule 404(b)
exceptions. Therefore, we must address each theory of ad-
missibility, and apply Rule 403 to balance any risk that
the evidence was used for an improper purpose against
its probative value.


1.   Admissibility Under the “Intricately Related” Doctrine
  Evidence of other bad acts is admissible when those
acts are so intricately related to the charged conduct that
they help the jury form a more complete picture of the
crime. 

. Under this “intricately
related” doctrine, courts have admitted evidence that
is necessary to fill a conceptual or chronological void, or
that is “so blended or connected that it incidentally in-
volves, explains the circumstances surrounding, or tends
to prove any element of, the charged crime.” 

see also, e.g., United States v. McLee, 

, 760 (7th Cir. 2006).
  The district court allowed the government to present
evidence of Conner’s “other bad acts” without limitation
under the “intricately related” doctrine. At trial, the
government not only presented this evidence to the
jury, but it also argued in closing that this evidence
was relevant toward proving that Conner distributed
drugs on December 20. The government maintains this
No. 07-3527                                            11

evidence was relevant to the element of distribution
because it provided the jury with a more complete picture
of the crime. The government contends that Conner’s
prior history of selling crack cocaine with Hughes and
Robison helped the jury to understand the relationships
among the co-conspirators and provided context for the
charged transaction, and that the January 10 sale demon-
strated to the jury that the charged conduct was not
isolated. (See Resp’t Brief 21-22, 24.) This type of use,
the government argues, was proper under the
“intricately related” doctrine. We find these arguments
unpersuasive.
   With respect to Conner’s relationship with Hughes
and Robison, the government relies on several cases in
which we have upheld the admission of evidence under
the “intricately related” doctrine to help explain the
relationship among co-conspirators. See, e.g., 

(holding that the admitted evidence “helped
the jury piece together the contours of the charged con-
spiracy and the relationships among its actors”); 

(“Here, Turner’s testimony helped to
complete the story of how the conspiracy between Turner
and McLee began and filled what would otherwise have
been a chronological and conceptual void in the jury’s
understanding of the genesis and nature of their rela-
tionship.”). But the defendant in each of those cases was
actually charged with conspiracy, see 

; 

, and for the jury to determine
whether a conspiracy existed, it was imperative that
it understood the relationships among the parties.
12                                               No. 07-3527

  In contrast, the government here did not need to prove
that Conner had a relationship with Hughes and Robison
to show that Conner distributed drugs on December 20.
Conner was not charged with conspiracy, nor was he
charged with selling the drugs on behalf of one of his co-
defendants. Cf. United States v. Simpson, 

, 501
(7th Cir. 2007) (noting that the justifications for the
“intricately related” doctrine were not applicable when
the defendant was not charged with conspiracy, for a
series of transactions, or for selling drugs on another’s
behalf). It was not necessary for the jury to understand
the relationships among the co-conspirators to deter-
mine if Conner had in fact distributed drugs on that day.
  Similarly, it was unnecessary for the jury to consider
the January 10 sale to understand the events of
December 20. Without this evidence, “it would not
have occurred to [the jurors] that they were missing
anything or have made any of the other evidence in the
case unintelligible.” United States v. Paladino, 

,
475 (7th Cir. 2005). Thus, the government’s comment to
the jury that the January 10 buy helped to corroborate
the December 20 buy did nothing to clarify the jurors’
understanding of the charged conduct.
  Our decision in Simpson is instructive on this point. In
Simpson, we held that evidence of a defendant’s prior
drug transactions was not admissible under the
“intricately related” doctrine when he was on trial for
an isolated drug 

. As we noted
in that case:
No. 07-3527                                              13

    [The defendant] was on trial for only one delivery, on
    one day, to one person. Evidence of any prior unre-
    lated drug sales was simply not necessary to complete
    the story of the single delivery on trial. Nor was it
    needed to avoid a conceptual or chronological void
    in the story of the [charged] delivery.

  The reasoning of that case applies to Conner as well.
The January 10 sale in no way helped to “complete the
story” of the December 20 sale, nor did it provide the jury
with a more complete picture of the charged crime than
it would have had absent the evidence. The govern-
ment simply needed to show that Conner distributed
drugs to Harriel on the day in question. The January 10
drug sale was unnecessary to establish that fact.
   The “complete the story” theory of the “intricately
related” doctrine was not meant to be used, as it was in
this case, to circumvent Rule 404(b) and allow the gov-
ernment to use evidence of other acts to show character
and propensity. Cf. 

(“[T]he ‘com-
plete the story’ definition of ‘inextricably intertwined’
threatens to override Rule 404(b). A defendant’s bad act
may be only tangentially related to the charged crime, but
it nevertheless could ‘complete the story’ or ‘incidentally
involve’ the charged offense or ‘explain the circum-
stances.’ ”); 

(“Such broad exclusions
have no discernible grounding in the ‘other crimes,
wrongs, or acts’ language of the rule. Rule 404(b) . . .
should not be disregarded on such a flimsy basis.”).
14                                              No. 07-3527

  Instead, courts admit this evidence because the acts
in question are intrinsic to the charged crime, and are
not other acts within the meaning of the rule. See 

(explaining that acts that are “inextricably
intertwined” are outside of Rule 404(b), because that rule
applies only to “other” crimes, wrongs, or acts); United
States v. Ramirez, 

, 1102 (7th Cir. 1995)
(“[E]vidence concerning the chronological unfolding of
events that led to an indictment, or other circumstances
surrounding the crime, is not evidence of ‘other acts’
within the meaning of Fed. R. Evid. 404(b).”).
  The way the district court allowed the government to
use this evidence against Conner does not pass muster
under this reasoning. The January 10 drug sale and
Conner’s other drug activities were not intrinsic to the
charged crime. They were separate transactions that
took place at separate times. This falls squarely within
the types of “other acts” contemplated by Rule 404(b). Ac-
cordingly, it was improper for the government to use
these acts to show Conner’s propensity to commit the
charged crime.
  We therefore find that the district court abused its
discretion in allowing the evidence to be admitted for
such a broad purpose under the “intricately related”
doctrine. However, we must determine whether the
evidence could have been properly admitted under
Rule 404(b) in order to determine whether this error
prejudiced the defendant.
No. 07-3527                                               15

2. Admissibility Under Rule 404(b)
  Rule 404(b) provides that evidence of other bad acts is
not admissible to show that a defendant has the
propensity to commit a crime. 

. This
evidence may be admissible for other purposes, however,
such as knowledge, intent, or absence of mistake. 

whether evidence is admissible under
Rule 404(b), we examine whether:
    (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
    evidence has probative value that is not substantially
    outweighed by the danger of unfair prejudice.
United States v. Diekhoff, 

, 617 (7th Cir. 2008).
We find that the evidence of Conner’s other drug
activities and his relationship with Hughes and Robison
satisfies this test and therefore was admissible under
Rule 404(b).
  In drug cases, we have often found a defendant’s
other drug transactions relevant for purposes other than
propensity, such as knowledge, intent, and lack of mis-
take. See, e.g., 

; United States
v. Hatchett, 

, 643 (7th Cir. 2001); United States
v. Wilson, 

, 515 (7th Cir. 1994). In Wilson,
for example, we noted that evidence of other drug
activity “tend[ed] to show that [the defendant] was
16                                               No. 07-3527

familiar with the cocaine business and was not some
innocent bystander mistakenly caught up in an over-
zealous law 

(quotation
omitted).
  Evidence of Conner’s other drug activity is similarly
probative here. Although Conner argued both at trial and
on appeal that he was not present at the scene of the
crime, Conner’s counsel indicated otherwise in his
opening statement:
     Mr. Conner’s presence at the scene of the crime is
     not sufficient to establish his guilt. . . . You will
     learn that the police could not see with their own
     eyes what was going on that day. They were doing
     surveillance but they couldn’t see what Mr. Conner
     gave to Michael Hughes that day.
(Tr. at 105). By arguing that Conner was merely an inno-
cent bystander, Conner’s counsel opened the door to the
government’s introduction of contrary evidence.
  Conner’s relationship with Hughes and his extensive
history of prior drug activities tended to show that
Conner was not simply an innocent bystander. See United
States v. Hurn, 

, 787 (7th Cir. 2007) (“A prior
conviction is also relevant when the defendant concedes
being in the vicinity of drug activity but argues that he
was a ‘clueless bystander.’ ”); United States v. Macedo, 

, 793 (7th Cir. 2005) (allowing evidence of other
drug activity when defendant maintained he had
nothing to do with a drug conspiracy and was only at
the airport by “happenstance”). This evidence has proba-
tive value that fits comfortably within the express ex-
ceptions of Rule 404(b).
No. 07-3527                                                17

  Nonetheless, Conner argues that the evidence of his
other drug transactions is not directed toward a matter
at issue because he does not contest the elements of
knowledge and intent, but instead maintains that he did
not commit the crime at all. We have repeatedly rejected
similar arguments in other cases. See, e.g., 

; United States v. Brown, 

, 573
(7th Cir. 1994); United States v. Mazzanti, 

,
1171 (7th Cir. 1989). For instance, in Mazzanti, we held
that where a defendant conceded that he was near the
location where the cocaine sales occurred but denied any
wrongdoing, the government was free to introduce evi-
dence to establish 

. We reached
this result because, as we have often noted, intent is
automatically at issue for specific intent crimes. Id.; see
also United States v. Best, 

, 1091 (7th Cir.
2001); 

.
  Conner attempts to distinguish his case from those
where we have held that knowledge and intent were
always at issue by noting that he did not argue at trial that
he was merely a bystander to criminal activity, but
claimed that he was not near the scene of the crime at
all. Even if counsel’s remarks during his opening state-
ment did not foreclose Conner’s argument here, we have
frequently held that intent is always at issue in specific
intent crimes even in the absence of an “innocent by-
stander” defense. See, e.g., United States v. Ross, 

(7th Cir. 2007); United States v. Brown, 

, 584
(7th Cir. 2001). Even in cases where the defendant has
offered to stipulate to intent as an element of the crime,
we have held that the government must be allowed to
prove its entire case if it so chooses. See 

                                             No. 07-3527

573 (citing United States v. Chaimson, 

, 805 (7th
Cir. 1985)).
   Furthermore, a blanket denial of wrongdoing is meant
to negate all elements of the crime. See 

. Therefore, it is proper for the government
to overcome an absolute denial by establishing each
element. By pleading not guilty to the charge and denying
any wrongdoing, Conner placed the burden on the gov-
ernment to prove each element of the crime beyond a
reasonable doubt. See United States v. Gougis, 

,
743 n.4 (7th Cir. 2005). The government is not relieved of
its burden of proving an element simply because
Conner did not challenge it. See 

. To
hold otherwise would be to tie the hands of the govern-
ment in meeting its burden of proof where no defense
was presented on an element, or indeed, an entire
charge. Cf. 

n. 4 (noting that the
government retained the burden of proof on all elements
of the crime even where the defendant did not “fully
contest” one of the charged crimes at trial). Thus, we
find that the evidence of Conner’s previous drug trans-
actions was properly directed at an issue other than
his propensity to commit the crime.
  Likewise, Conner’s argument that the evidence was not
sufficiently similar or close in time to qualify under
Rule 404(b) is unavailing. The evidence of Conner’s
relationship with Hughes and Robison shows an ongoing
drug operation used to distribute crack cocaine. Conner
repeatedly used Hughes and Robison to facilitate trans-
actions in the years leading up to the transaction at
issue. The January 10 sale was under similar circum-
No. 07-3527                                              19

stances as the charged crime and was just a few short
weeks later. Even though Conner was not present on
January 10, Robison testified that he sold the eight-balls
pursuant to Conner’s instructions. All of these events
took place within a few years and involved the same
characters and similar activities. Accordingly, we find this
evidence sufficiently similar and close in time to the
December 20 sale to be admissible under Rule 404(b).
  Conner also claims that the government has failed to
satisfy the third prong of our Rule 404(b) test—whether
the evidence was sufficient to support a jury finding that
Conner committed the other acts. We disagree. The testi-
mony of Hughes and Robison was consistent. Both
knew details of Conner’s drug operation, including
where he bought and sold the crack cocaine. Conner
provided no evidence at trial to contradict their testi-
mony. Although he did question their credibility, their
testimony was sufficiently detailed and consistent that
it could certainly support a jury finding that Conner
committed these acts.
  Because the evidence of Conner’s other acts was
directed toward a matter in issue other than propensity,
was sufficiently similar and close in time to the charged
crime, and was sufficient to support a jury finding, it is
admissible under Rule 404(b) unless the risk of unfair
prejudice substantially outweighs its probative value.
This fourth prong of our test recognizes that permissible
uses of other bad acts may have the impermissible side
effect of allowing the jury to infer propensity. See

.
20                                                 No. 07-3527

  We cannot say that, had the evidence been properly
admitted under Rule 404(b) instead of the “intricately
related” doctrine, the probative value of this evidence
would have been substantially outweighed by its risk of
prejudice. As noted above, this evidence is highly proba-
tive of Conner’s claimed innocent bystander status.
Had the district court admitted the evidence under
Rule 404(b), it could have limited the prejudicial impact
by instructing the jury to consider the evidence only for
knowledge and intent. The fact that the district court
did not limit the use of the evidence does create a risk of
unfair prejudice, which we discuss in detail below in the
context of Rule 403. However, as a threshold matter,
nothing about the evidence is so inflammatory that it
would render the evidence inadmissible under Rule 404(b)
altogether.


3.   The Effect of Admitting the Evidence Under the “Intricately
     Related” Doctrine Rather Than Rule 404(b)
  Although the evidence would have been admissible
under Rule 404(b), the district court did not admit it under
that theory. Instead, the court improperly relied on the
“intricately related” doctrine. As previously noted, in
recent cases where either theory was applicable, we have
simply upheld the district court’s decision on Rule 404(b)
grounds instead of resorting to the murky “intricately
related” doctrine. See, e.g., 

;
Fleming, 290 Fed. App’x at 948-49. For example, in
Harris, we noted that evidence of the defendant’s
previous drug activities was necessary for the govern-
No. 07-3527                                              21

ment to show intent to distribute the drugs, his knowl-
edge of the drugs, and the absence of 

. The government also needed to introduce
evidence of the history between the defendant and a co-
conspirator to rebut the defendant’s efforts to downplay
his role in the charged conspiracy. 

court
provided a limiting instruction to the jury, and allowed
it to consider the evidence for only these limited pur-
poses. 

Therefore, we held that this evidence was
admissible under Rule 404(b), and there was no need to
“spread the fog” of the “intricately related” doctrine
over the case. 

   Similarly, in Fleming, we held that the admitted evidence
fit squarely within the intent exception of Rule 404(b). 290
Fed. App’x at 948-49. We noted that the district court
repeatedly instructed the jury that it could not consider
the evidence for any purpose other than intent and knowl-
edge. 

Thus, as in Harris, there was no need
to resort to the “intricately related” doctrine.
  In each of these cases, the government’s use of the
evidence fit squarely within the confines of Rule 404(b).
In some cases, however, the theory of admissibility may
affect the government’s use of the evidence. See 

(“[T]reating evidence as inextricably
intertwined not only bypasses Rule 404(b) and its
attendant notice requirement, but also carries the
implicit finding that the evidence is admissible for all
purposes notwithstanding its bearing on character, thus
eliminating the defense’s entitlement, upon request, to
a jury instruction.”). This is because evidence admitted
22                                               No. 07-3527

under this doctrine “lie[s] outside the purview of the
Rule 404(b) character/propensity prohibition,” 

, and is not subject to its constraints, see

.
  Indeed, the difficulty in Conner’s case is in the way
the district court allowed the jury to consider this evi-
dence. Unlike in Harris and Fleming, the district court did
not limit the jury’s consideration of the evidence to uses
that would have been proper under Rule 404(b). In fact,
the government repeatedly used the evidence in ways
that would be impermissible under the Rule’s charac-
ter/propensity prohibition. For example, when discussing
whether Conner distributed drugs on December 20, the
prosecutor explicitly pointed out to the jurors that
Conner repeated the charged conduct by supervising the
sale of January 10. The prosecutor also used this
evidence to show that the December 20 sale was not an
“isolated incident,” and noted that the second buy cor-
roborated the first buy.
  The implication of the prosecutor’s argument was that
Conner was more likely to have distributed drugs on
December 20 because he had done so on other occasions.
Put differently, the prosecutor was showing that Conner
had a propensity to distribute drugs, which made it
more likely that he was guilty of the charged crime.
Although this may be true, it is nonetheless prohibited by
Rule 404(b). See United States v. Wright, 

, 70 (7th
Cir. 1990) (“The implication was that a drug dealer is more
likely than someone who is not a drug dealer to sell
drugs . . . . No doubt this is true.”). As we have previously
No. 07-3527                                                23

noted, “[t]he inquiry into previous criminal acts is not
rejected because character is irrelevant; on the contrary, it
is said to weigh too much with the jury and to so
overpersuade them as to prejudge one with a bad
general record and deny him a fair opportunity to
defend against a particular charge.” 

v. United States, 

, 475-76 (1948)). Despite the
fact that the evidence may be relevant, this is precisely
the type of propensity argument that we have rejected
in the context of Rule 404(b). See 

the evidence of Conner’s “other bad
acts” was properly admissible under Rule 404(b), the
district court erred in allowing the government to use
the evidence to show propensity. We must therefore
determine whether the risk of unfair prejudice resulting
from this broad use of the “other acts” evidence out-
weighed its probative value.


4.   Rule 403
   Even otherwise admissible evidence may be excluded
if the danger of unfair prejudice substantially outweighs
its probative value. Fed. R. Evid. 403. Evidence is
unfairly prejudicial if it induces the jury to decide the
case on an improper basis rather than on the evidence
presented. United States v. Pulido, 

, 201 (7th Cir.
1995). Such improper grounds include implying that a
defendant’s other bad act raises the odds that he did the
bad act now charged. Old Chief v. United States, 

, 180 (1997). Thus, there is no question that pro-
24                                              No. 07-3527

pensity is an improper basis of conviction and is subject
to analysis under Rule 403. 

  As we noted above, the district court improperly
allowed the government to use the evidence of Conner’s
other bad acts to imply his propensity to distribute
cocaine on December 20. This created some risk that
the jury inferred that Conner distributed drugs on this
occasion because he had done so in the past. However,
this risk of unfair prejudice is diminished by the fact that
the error was relatively harmless because it is unlikely
to have affected the outcome of the case. See United
States v. Harris, 

, 699 (7th Cir. 2001) (noting
that when assessing the impact of an improper comment
by a prosecutor, a conviction will not be reversed unless
the error likely affected the outcome).
  An error is harmless when the reviewing court is con-
vinced that the jury would have convicted even absent
the error. 

. In Conner’s case, the
jury was provided with ample additional evidence that
Conner distributed drugs on December 20. Both
Hughes and Harriel testified to Conner’s participation
in the drug sale. Furthermore, even though Conner
claimed he was not present at the scene of the crime,
Officer Dammen and the surveillance team witnessed
Conner entering the car. Dammen observed that Hughes
and Harriel had waited in the car for some time before
Conner approached, but drove away after he left. This
leads to the natural inference that Hughes and Harriel
waited for Conner because it was Conner who brought
the drugs.
No. 07-3527                                           25

  Moreover, Conner presented no evidence to rebut the
government’s version of events. While this cannot give
rise to an adverse inference, it is useful in determining
whether the error was harmful. 

(“No adverse inference can be drawn from his failure
to testify, but a defendant’s failure to present any
evidence at all can help support a finding of harmless
error.”). Thus, the jury could easily have concluded that
Conner distributed drugs to Harriel on December 20 even
without the prosecutor’s improper propensity arguments.
Because the error was harmless, any risk of unfair preju-
dice was minimal.
  Furthermore, the evidence was extremely probative.
The government was required to show that Conner know-
ingly and intentionally distributed drugs. As previously
noted, the fact that Conner had a prior relationship with
Hughes and Robison and that he had engaged in
similar transactions showed that he knew a drug trans-
action was occurring and intended to partake in it. Like-
wise, it showed that he was not simply present at the
scene by mistake. Thus, the evidence was highly relevant
and probative to show intent, knowledge, and absence
of mistake.
  Although the district court erred in admitting the
evidence under the “intricately related” doctrine and
allowing the jury to consider the evidence for a broader
purpose, such error was harmless and the risk of
unfair prejudice was minimal. The evidence could have
been admitted under Rule 404(b), and the jury was pre-
sented with ample non-propensity evidence that Conner
26                                                No. 07-3527

distributed drugs on the day in question. Therefore, the
risk of unfair prejudice does not substantially outweigh the
probative value of the evidence and a new trial is not
warranted.


B. The Jury Instruction Regarding Aiding and Abetting
  Conner next argues that the district court erred in
instructing the jury on aiding and abetting even though
he was not charged with conspiracy or aiding and
abetting the commission of a crime. He argues that this
instruction was so confusing and misleading that it de-
prived him of his right to due process and constituted
plain error.
  Conner incorrectly assumes that we can review the
district court’s determination for plain error. He
neglects to address the fact that our ability to address
this issue hinges on the difference between waiver and
forfeiture:
     Waiver occurs when a criminal defendant inten-
     tionally relinquishes a known right. Forfeiture
     occurs when a defendant negligently fails to assert
     a right in a timely fashion. Waiver of a right extin-
     guishes any error and precludes appellate review,
     whereas forfeiture of a right is reviewed for plain error.
United States v. Brodie, 

, 530 (7th Cir. 2007)
(citations omitted).
  Here, Conner did not merely fail to object to the court’s
instruction regarding aiding and abetting. During the
charging conference, Conner’s counsel expressly stated
No. 07-3527                                              27

that she preferred this aiding and abetting instruction over
the alternative. At no time in this discussion did she
indicate that she objected to instructing the jury on
aiding and abetting at all. We addressed this precise
issue in United States v. Griffin, 

(7th Cir.
1996). In that case, we noted that “[t]he district court
made it clear that it contemplated offering one of the
two proposed instructions and asked the defendants
for their input. At this point, it was incumbent upon
counsel to voice any objections to either or both of the
proposals.” 

We then held that a statement of
preference for one jury instruction amounted to a volun-
tary affirmative waiver and extinguished all appellate
review. 

is indistinguishable from Griffin. Conner’s
counsel expressed a clear preference for this aiding
and abetting jury instruction without indicating any
objection whatsoever. As in Griffin, this constitutes
an affirmative waiver and extinguishes all error. Thus,
Conner has no right to seek appellate relief and we cannot
review the district court’s decision for plain error or
otherwise.


C. Cumulative effect
  Even errors that are individually harmless, when
taken together, can prejudice a defendant and violate
his right to due process of law. United States v. Allen,

, 847 (7th Cir. 2001). Conner argues that
the cumulative effect of admitting the other bad acts
testimony and instructing the jury on aiding and
28                                              No. 07-3527

abetting was so prejudicial that he was unable to get a
fair trial.
  In order for the cumulative effect doctrine to apply,
the plaintiff must first show that more than one error
occurred. 

analysis, courts consider errors that
were preserved for appellate review and plain errors.
Alvarez v. Boyd, 

, 825 (7th Cir. 2000). Conner’s
argument fails because only one error applies to this
analysis: the district court’s admission of the “other
acts” evidence under the “intricately related” doctrine.
The issue of the aiding and abetting jury instruction
was neither preserved for appellate review nor plain error.
  As we noted above, Conner did not preserve his argu-
ment regarding the aiding and abetting jury instruction
for appellate review. Conner affirmatively expressed his
preference for this particular jury instruction, thus
waiving his argument that it was altogether improper
to instruct the jury on aiding and abetting liability. More-
over, even if the district court erred in its instruction,
any potential error was not plain. We cannot say that
“but for the [instruction], the outcome of the trial
probably would have been different.” See 

heard first-hand testimony that Conner himself distrib-
uted drugs on December 20, and did not need to resort
to the aiding and abetting theory to find Conner guilty.
Thus, it is unlikely that this instruction had any effect on
the jury’s verdict, and giving the instruction did not
constitute plain error. Because there was only one error,
there can be no cumulative error, and we reject Conner’s
argument.
No. 07-3527                                            29

D. Resentencing in light of Kimbrough
  After Conner’s sentencing, the Supreme Court in
Kimbrough held that like the rest of the Sentencing Guide-
lines, the 100:1 crack-to-powder ratio is advisory, not
mandatory. 552 U.S at 575. Both parties agree that
this case should be remanded to the district court for
resentencing in light of Kimbrough.
  At trial, Conner’s attorney requested that the court
depart from the 100:1 ratio and consider forthcoming
amendments to the Sentencing Guidelines. The
prosecutor responded that a district court errs when it
constructs a sentencing range based on a crack-to-powder
ratio other than 100:1. The district court did not
comment on the 100:1 ratio. It is unclear from the
record whether the district court judge would have
given the same sentence were he aware that the
Guidelines were discretionary. See United States v.
Clanton, 

, 659 (7th Cir. 2008). Therefore, we
must remand this case for resentencing, so that the
district court can, in its discretion, consider Conner’s
arguments regarding the 100:1 ratio. See 

                    III. C ONCLUSION
  We A FFIRM Conner’s conviction. Although the court
erred in admitting the evidence under the “intricately
related” doctrine, the evidence was admissible under
Rule 404(b), and the prejudice resulting from the gov-
ernment’s broader use of the evidence did not substan-
tially outweigh its probative value. Furthermore, Conner
waived his challenge to the aiding and abetting jury
30                                         No. 07-3527

instruction. We V ACATE Conner’s sentence, and R EMAND
for resentencing in light of Kimbrough.




                        10-22-09