In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-4017

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

JEROME H ARRIS,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 06 CR 828—Amy J. St. Eve, Judge.



   A RGUED JANUARY 12, 2009—D ECIDED N OVEMBER 25, 2009




   Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
S YKES, Circuit Judges.
  W ILLIAMS, Circuit Judge. After Jerome Harris, a con-
victed felon, threw a bag containing drugs to the ground,
he was arrested and read his Miranda rights. Harris told
the officers that he had dropped guns off at his girl-
friend’s home earlier that day and later showed the
officers exactly where to find them. He also acknowl-
edged that he had been holding a bag containing drugs
2                                              No. 07-4017

and then tossed it when he saw the officers, although
he said he was holding the drugs for someone else. Need-
less to say, Harris’s statements did not serve him well at
trial. A jury convicted him of being a felon in possession
of a firearm and of possessing a mixture containing
crack cocaine with the intent to distribute it. In light of
Harris’s statement that he was only holding drugs for
another person, we uphold the admission of testimony
concerning Harris’s prior drug sales as it was relevant to
show that he intended to distribute the drugs he held.
Testimony from Harris’s girlfriend concerning state-
ments he made to her about having guns was harmless
in light of his admission to the officers that he had
stored two guns in her apartment that very morning.
Finally, the district court did not err when it admitted
testimony from a police sergeant even though it might
have suggested Harris’s membership in a gang, as the
testimony helped establish that Harris had possessed
firearms. Therefore, we affirm Harris’s convictions.


                   I. BACKGROUND
  On April 2, 2006, a citizen approached three Chicago
police officers on patrol and told them about suspicious
activity in a nearby alley. The officers drove to the alley
in their unmarked police car. There, the officers saw that
after Jerome Harris noticed their car, he threw a clear
plastic bag to the ground and began to walk away. The
officers picked up the bag and discovered that it had
twelve individual bags inside it. Each contained a
white, rock-like substance. Harris was arrested on the
No. 07-4017                                               3

suspicion, later confirmed, that the substance was
illicit, and he was read his Miranda warnings.
  Harris told the officers that he knew of an apartment
where guns and drugs were kept. Police went to the
address Harris provided and found an inoperable .32
revolver. Harris also told one of the officers that he
had stored two firearms that morning at the residence of
his girlfriend, Porsche Andrews, although he said he
probably should not be saying so. Officers went to An-
drews’s apartment where Andrews’s grandmother, the
leaseholder of the property, consented to a search. After
the officers’ initial search did not yield any guns, the
officers brought a handcuffed Harris into the home.
Harris indicated the location of the guns to the officers,
and the officers recovered a loaded .40 semi-automatic
handgun and a loaded .45 pistol from a storage container
inside Andrews’s bedroom. In response to an officer’s
question of whether the guns were operable, Harris
responded with something along the lines of, “Hell, yeah,
they work. I shot them both on New Year’s Eve.”
  The three arresting officers testified at trial. One of
the officers testified that Harris told him that “he got the
drugs . . . from a shorty, which is a street name for a
child, and that he was holding . . . them because he
knew the child’s mother and he was trying to do the
child a favor.” Andrews’s grandmother testified that the
guns did not belong to her or anyone in her household.
Andrews testified as well. She stated that the guns
found in her bedroom did not belong to her. She also
said that Harris had been in her room on the morning
4                                               No. 07-4017

of his arrest and told her he had left something in her
room. Andrews further testified that she had dated
Harris for the two years leading up to his arrest and that
on at least five occasions while they were dating, she
saw persons give Harris money in exchange for plastic
bags containing a lumpy, off-white form of cocaine. She
also told the jury that on several occasions, Harris
“brag[ged] about what he would do to people and the
weapons he had” and he “would brag how he’d kill
somebody or how he’d shoot them.”
  A jury convicted Harris of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1), and
possession with the intent to distribute a mixture con-
taining cocaine base in the form of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1). He received a sentence
of 120 months’ imprisonment.


                      II. ANALYSIS
A. Earlier Drug Sales Admissible
  Harris first contests the admission of Andrews’s testi-
mony that he had sold drugs on at least five occasions
before his arrest in this case. He maintains that this testi-
mony suggested only that he had a propensity to sell
drugs and that Federal Rule of Evidence 404(b) therefore
precluded its admission. We review the admission of
this evidence for an abuse of discretion. See United States
v. Price, 

, 603 (7th Cir. 2008).
 Rule 404(b) provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character
No. 07-4017                                                 5

of a person in order to show action in conformity there-
with. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or acci-
dent . . . .” Harris points to our case law stating that
evidence may be admitted over a Rule 404(b) objection
only when four conditions are met:
    (1) the evidence is directed toward establishing a
    matter in issue other than the defendant’s propen-
    sity 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. Moore, 

, 499 (7th Cir. 2008)
(quoting United States v. Ross, 

, 713 (7th Cir.
2007)). He contends those requirements have not been
met here.
  We turn first to the important question of whether
evidence of Harris’s prior drug sales tended to establish
a matter other than a propensity to deal drugs. The gov-
ernment answers that question in the affirmative, con-
tending it shows Harris’s intent to sell the drugs he
acknowledged possessing. We long ago rejected the
proposition that a drug conviction is always admissible
in a later, different drug prosecution. United States v.
Beasley, 

, 1277-79 (7th Cir. 1987). Nonetheless,
6                                                  No. 07-4017

there is tension in our case law as to whether prior drug
convictions are always admissible in a subsequent drug
prosecution where intent is an element. See United States
v. Webb, 

, 547-48 (7th Cir. 2008) (collecting
cases and discussing the tension). Under the circum-
stances of Harris’s case, however, our cases are in har-
mony. “The most obvious justifiable situation in which
prior convictions are admissible in drug prosecutions on
the issue of intent are in those situations in which the
defendant, while admitting possession of the substance,
denies the intent to distribute it.” United States v. Jones, 

, 808 (7th Cir. 2006); see also, e.g., 

; United States v. Hurn, 

, 787 (7th Cir.
2007). That is the case here.
  Evidence that Harris had sold drugs in the past helped
establish a matter at issue in the case, namely whether
Harris intended to distribute the drugs he acknowledged
he had been holding. Because he admitted holding
the drugs but said he was simply holding them for a
neighborhood child, evidence that he had sold drugs in
the past rebutted his statement and was probative of
whether he intended to sell the drugs he claimed he
was only holding.
  Andrews’s testimony also related drug sales that were
sufficiently similar and close in time to the April 2, 2006
transaction. Andrews testified that she had dated Harris
for the two years prior to his arrest and that she had
watched him sell the same substance (a lumpy, off-white
form of cocaine), in the same packaging (small plastic
bags), in the same area of Chicago, and that he did so on
No. 07-4017                                                 7

five separate occasions. Her testimony also reflects that, at
most, the transactions took place within two years of the
date of the conduct charged in this case, making them
sufficiently close in time. See 

(finding
that acts from five and six years earlier were suf-
ficiently close in time under Rule 404(b) analysis).
  Next, although Harris maintains Andrews’s testimony
was vague, her testimony readily supported a jury
finding that Harris had sold drugs before. Andrews
testified that she was present when Harris sold drugs on
at least five occasions. She explained that she
personally witnessed him give plastic bags of cocaine in
exchange for cash on each of those occasions. She also
testified that she observed Harris sell drugs at least five
but not more than ten times, narrowing the range of times
that she claimed to have witnessed Harris sell drugs. A
jury could have easily concluded from Andrews’s testi-
mony that Harris had sold drugs as she described. See
United States v. Curtis, 

, 802 (7th Cir. 2002)
(“[W]itnesses’ testimony that they . . . saw the defendant
selling drugs is sufficient to support a jury finding that
he did engage in that conduct.”).
  Finally, the probative value of Andrews’s testimony
that Harris had dealt drugs in the past outweighed any
danger of unfair prejudice in this case. The evidence
refuted Harris’s contention that he did not have the
intent to distribute the drugs he was holding and coun-
tered his statement to the police that he was only
holding the drugs for another person. In addition, the
district court gave a limiting instruction that helped
8                                              No. 07-4017

reduce the danger of any unfair prejudice from
Andrews’s testimony. See 

(observing
that limiting instructions can be effective in reducing
possible unfair prejudice that could result from the intro-
duction of Rule 404(b) evidence). The court instructed
the jury that it could only consider evidence of Harris’s
acts other than those charged in the indictment “on the
question of intent, knowledge or absence of mistake or
accident. You should consider this evidence only for
this limited purpose.” Accordingly, the district court did
not abuse its discretion when it allowed Andrews to
testify about Harris’s prior drug dealing.


B. Admission of Statements Regarding Gun Ownership
   Harmless
  Harris also contends that Andrews should not have
been allowed to recount his statements about owning and
using guns. Andrews testified that Harris spoke about
guns on several occasions while they were dating, and
that he “would brag about what he would do to people
and the weapons he had” and “would brag how he’d
kill somebody or how he’d shoot them.” She acknowl-
edged on cross examination that she had never actually
seen Harris with a gun.
  One of the counts presented to the jury was the charge
that Harris was a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). A conviction on that
count required the government to prove that Harris was
(1) a felon, (2) who had possessed a firearm, (3) that
had traveled in interstate commerce. See United States v.
No. 07-4017                                               9

Wallace, 

, 784 (7th Cir. 2002). Harris
stipulated that he was a felon and that the firearms at
issue had traveled in interstate commerce, but he denied
that he had possessed any firearms. Therefore, the only
issue at trial on the felon-in-possession count was
whether Harris possessed firearms. The government can
prove either actual or constructive possession to satisfy
the possession requirement in 18 U.S.C. § 922(g)(1).
United States v. Morris, 

, 666 (7th Cir. 2009).
Harris was not caught with firearms on his person, and
the question for the jury was whether he constructively
possessed the guns found in Andrews’s bedroom.
  Constructive possession exists when, although an
individual does not have immediate, physical control of
the object, he “knowingly has the power and intention at
a given time to exercise dominion and control over
the object.” United States v. Kelly, 

, 361 (7th
Cir. 2008). Andrews did not state the exact time during
the course of the two-year relationship that Harris
made the statements bragging about his guns. Harris
therefore contends there was a danger that the jury con-
victed him based on a propensity to possess firearms, not
on whether he actually possessed them on April 2, 2006.
That danger is not present here. The evidence of Harris’s
gun possession was very strong, and it rendered any
potential error concerning the admission of Andrews’s
statements harmless. See United States v. Savage, 

, 762 (7th Cir. 2007) (error harmful only if it
“had a substantial influence over the jury and the
result reached was inconsistent with substantial justice”)
(citation omitted). Harris told a police officer that he had
10                                               No. 07-4017

stored guns in his girlfriend’s bedroom that very morn-
ing. And when the officers could not find the firearms,
Harris personally directed the officers to the storage
container in Andrews’s bedroom where the two guns
were found. Harris stored the guns in Andrews’s bed-
room without her knowledge or the knowledge of An-
drews’s grandmother, which further reflects that he
intended to exercise control over the two guns. Harris
also admitted to the police officers that the guns were
operable and that he had shot them on New Year’s Eve.
All of this uncontested evidence clearly reflected that
Harris had the power and intention to exercise dominion
and control over the two guns. Therefore, any potential
error in the admission of Andrews’s statements re-
garding gun possession does not warrant reversal. See
United States v. Kitchen, 

(7th Cir. 1995) (affirm-
ing 18 U.S.C. § 922(g)(1) conviction where firearms
stored at girlfriend’s residence).


C. No Error in Admitting Harris’s Post-Arrest Statements
  Finally, Harris challenges the admission of Sergeant
Eric Olson’s testimony that recounted Harris’s post-arrest
statements. He argues that Sergeant Olson’s testimony
suggested Harris was involved with a gang and that
the prejudicial effect of the testimony substantially out-
weighed its probative value so that the testimony
should have been excluded under Federal Rule of Evi-
dence 403. We review the district court’s admission of
this testimony over Harris’s objection for an abuse of
discretion. See 

.
No. 07-4017                                              11

  Sergeant Olson testified that after Harris had received
Miranda warnings, Olson “conducted a general ques-
tioning regarding gang and drug activity and asked Mr.
Harris if—he could provide any information.” Sergeant
Olson said that Harris agreed to do so, and that Harris
directed the officers to an address where he said there
were guns in a bedroom. Sergeant Olson continued:
   A: In talking to Mr. Harris at the station, I asked
      Mr. Harris, again, about gang information in
      the Englewood community.
   Q: And what did he say?
   A: Mr. Harris related to me, in essence, that he
      was having a dispute with a group of individu-
      als from approximately 59th and Sangamon,
      I believe it was; that that was why he had the
      firearms, but, he moved out of the Englewood
      community because, as he quoted, it was too
      hot and there were too many police out there.
  Evidence of gang membership can be inflammatory,
with the danger being that it leads the jury to “attach a
propensity for committing crimes to defendants who
are affiliated with gangs or that a jury’s negative
feelings toward gangs will influence its verdict. Guilt
by association is a genuine concern whenever gang evi-
dence is admitted.” United States v. Montgomery, 

, 1018 (7th Cir. 2004) (quoting United States v.
Irvin, 

, 865 (7th Cir. 1996)). For that reason,
we have asked district courts to consider carefully
whether to admit evidence of gang membership and gang
activity in criminal prosecutions. See Montgomery, 390
12                                                 No. 07-4017

F.3d at 1018; 

; United States v. Butler, 

, 251 (7th Cir. 1995). The record reflects that the
district court did just that here. It discussed the issue
with both parties during a pre-trial hearing and then
took several steps in an attempt to reduce the prejudicial
impact of Harris’s admitted gang membership. Pursuant
to the judge’s directions, Sergeant Olson’s testimony at
trial did not recount the much stronger statement
Harris had made at the station, which was that he was
“a GD [Gangster Disciple] for life and we’re at war
with the GD Renegades on 59th and Sangamon. That’s why
I got [the] guns but it’s too hot in Englewood so I moved
[the] guns out. There [are] too many police out there.”
At trial, Sergeant Olson did not directly state that
Harris was a member of a gang. The judge also directed
that the conversation at trial between Sergeant Olson
and Harris be called “the interview” instead of the “gang
gun interview,” and the judge allowed the government
to lead its witness during the testimony that might
mention gangs. The result was testimony at trial that
was far less inflammatory than it would have been had
Harris’s own words been used.
  Of course, “toning down” testimony is not always
enough. In 

, for example, we held
that although the district court did not allow the jury
to hear all of the government’s proposed evidence that
connected the defendant to a gang, it did not go far
enough. In that case, we concluded that evidence that
a defendant was a member of a motorcycle gang
should not have been admitted to show that he was
more likely to have distributed drugs, as there was a
No. 07-4017                                                13

missing link between the gang and the criminal activity
at issue. 

& n.4. Here, in contrast,
Sergeant Olson’s testimony reflected a direct link to the
charged crime. The testimony was evidence of Harris’s
possession of the guns named in the indictment, as Harris
acknowledged to Sergeant Olson that he “had the fire-
arms.” The testimony also reflected Harris’s motive for
possessing these particular firearms. See 

(finding evidence of a defendant’s gang
membership admissible to show his motive for carrying
a gun when the defendant stated he had brought a gun
to a festival in light of the possibility of confrontation
with a rival gang); see also United States v. Lloyd, 

, 1265 (7th Cir. 1995); 

; United
States v. Sargent, 

, 328-29 (7th Cir. 1996); United
States v. Lewis, 

, 1372 (7th Cir. 1990). As a
result, the district court did not abuse its discretion
when it allowed Sergeant Olson’s testimony.


                    III. CONCLUSION
  The judgment of the district court is A FFIRMED.




                           11-25-09