Argued November 1, 2013
Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. Nos. 2:09-CR-32-PPS & 2:10-CR-10-PPS — Philip P. Simon, Chief Judge.
Before Posner, Flaum, and Sykes, Circuit Judges.
Flaum, Circuit Judge.
This is a consolidated appeal of two separate, but related, cases against Scot Adkins. In one case, a jury convicted Adkins of atempting to possess heroin with intent to distribute, and of being a felon in possession of a firearm. In the other, Adkins pled guilty to receipt of child pornography. Adkins raises several arguments on appeal. He first atacks his convictions on the heroin and firearm charges, arguing that he is entitled to a new trial due to alleged errors regarding evidentiary decisions, jury instructions, and improper statements by the government. We reject these arguments and affirm Adkins' heroin and firearms convictions. Adkins next argues that we should vacate his sentence on the heroin and firearm convictions because of multiple alleged sentencing errors. We reject these arguments and affirm his sentence as well. Finally, with respect to his child pornography sentence, Adkins contends that one special condition of his supervised release is unconstitutionally vague and overbroad, and that we may review this issue despite the appeal waiver in his guilty plea. We agree. We therefore vacate and remand on this ground alone.
In January 2009, Adkins was living with Nathaniel Jordan and Jordan's two daughters in Gary, Indiana. On January 27, United States customs agents at the UPS facility in Louisville, Kentucky, inspected and opened a package from Canada addressed to Jordan. The package allegedly contained clothing and two heavy stuffed snowmen. Inside the snowmen were pellets that field-tested for narcotics; the government says that the snowmen contained about 300 grams of heroin, a distribution quantity worth $30, 000. Agents then sent the pellets for further testing, and put fake pellets in the snowmen as well as a transmitter that would signal if the snowman was ripped open. Agents re-wrapped the package, which was delivered to Jordan's house on January 29 by a customs agent disguised as a UPS driver.
Jordan signed for the package. One of Jordan's daughters testified that after the "UPS driver" left, Adkins went to Jordan's room, opened the package, said, "We've got some goodies, " and took out a snowman. When the transmitter alerted, agents entered Jordan's home. Agents found an open snowman on the upper shelf of Jordan's bedroom closet, and another snowman on the dresser. In that room, agents also found plastic baggies and two digital scales, both of which are often used in the drug trade. One scale tested positive for heroin and cocaine, the other for heroin and procaine (which is sometimes mixed with narcotics). A search of Adkins' person and of Adkins' basement bedroom revealed no drugs or drug paraphernalia, but did reveal two handguns. In the living room, agents found three items that were admitted at trial: Adkins' passport; an itinerary for a bus trip from Gary to Toronto (via Detroit), for which Adkins was scheduled to depart on the morning of January 21, 2009; and a Western Union receipt from the afternoon of January 21, showing that a Samuel John had wired $75 to Adkins at the Detroit Greyhound bus station.
Agents then interviewed Adkins and Jordan. According to the agents, Adkins admitted receiving and opening the package, said he was surprised that the package got through customs, and thought that it did "not feel like 300 grams." Adkins also allegedly told the agents that he had recently tried to go to Canada to receive heroin from a man named Sam but was denied entry, and that Sam then wired him money through Western Union so he could return by bus to Gary. Adkins allegedly knew how the proceeds from the drugs would be split but did not admit that he would be receiving any of them.
Adkins also allegedly said that the guns in his room belonged to an upstairs tenant. Adkins said that he had been repairing them. He knew the guns worked because he test- fired them in the backyard. The government did not test the guns for DNA or fingerprints.
While the agents were interviewing Adkins, he gave written consent for a search of his computers. The search revealed more than four hours of child pornography videos, including videos depicting sexual conduct with girls who appeared to be between five and seven years old.
In 2009, Adkins was indicted for his alleged drug and gun conduct. In 2010, a separate two-count indictment charged Adkins with receipt of child pornography, and possession of the same. After a jury trial on the heroin and gun conduct, Adkins was convicted of attempting to possess heroin with intent to distribute, and of being a felon in possession of a firearm. Following his conviction, Adkins pled guilty to receipt of child pornography and, in exchange, the government dismissed the possession charge. The district court sentenced Adkins to 210 months in prison for the child pornography conviction, plus a fifteen-year term of supervised release. Adkins also received ninety months' imprisonment for both the heroin and gun charges. Twelve of those months ran consecutively to his child pornography sentence, so Adkins' total term of imprisonment is 222 months. The judge ordered four years of supervised release on the heroin charge and three years on the gun charge, both of which ran concurrently to the fifteen-year term of supervised release for the child pornography conviction.
A. Evidentiary challenges
Adkins first challenges his heroin and firearms convictions on the ground that the district court should have excluded the evidence relating to his alleged trip to Canada to pick up heroin from "Sam" or "Sonny." This evidence consisted of Adkins' passport; an itinerary for a bus trip from Gary to Toronto (via Detroit), for which Adkins was scheduled to depart on the morning of January 21, 2009; and a Western Union receipt from the afternoon of January 21, showing that Samuel John had wired $75 to Adkins at the Detroit Greyhound bus station.
i. Legal standards and proceedings below
We review a district court's evidentiary rulings for abuse of discretion. United States v. Taylor, 604 F.3d 1011, 1014 (7th Cir. 2010). Adkins' challenges implicate two rules. First, Federal Rule of Evidence 404(b) prohibits evidence of a defendant's prior bad acts to show his propensity for bad behavior, but permits such evidence when offered to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Second, Rule 403 generally prohibits unduly prejudicial evidence.
Before trial, the government moved in limine for the admissibility of the trip-related evidence, and the district court agreed with the government. First, it found that the evidence was not evidence of prior bad acts, but instead was direct evidence of the crime, because it tended to show Adkins' knowledge, preparation, and intent, "all of which are elements of the crime charged." The judge also found the trip-related evidence "to be extremely probative, and not unfairly prejudicial. So any [Rule] 403 balance in here, in my view, militates in favor of admitting the evidence." Second, and in the alternative, the district court found the trip evidence admissible under our test for Rule 404(b) evidence.
In this case, the government needed to prove, among other things, that Adkins "attempted to knowingly or intentionally possess heroin" on or about January 29, 2009. Attempt requires the government to prove specific intent. United States v. Coté, 504 F.3d 682, 687 (7th Cir. 2007). Adkins contends that his alleged conduct a week earlier could not constitute evidence of his state of mind a week later when he received the snowmen; instead, he argues, the evidence of that trip was merely Rule 404(b) "bad acts" evidence. Adkins' argument is unpersuasive. The evidence of Adkins' trip to Canada—his passport, his bus ticket to Canada, his itinerary, and the Western Union receipt—served several legitimate purposes in the government's case. First, it tended to show Adkins' knowledge that the material he and Jordan received on January 29, 2009, was indeed heroin, because it was allegedly the same heroin he had tried to procure eight days earlier from the same supplier. Second, and for the same reasons, the evidence of Adkins' trip to Canada demonstrated his intent to procure heroin. Third, Adkins' failed trip to Canada explains why the heroin-filled package was shipped in a snowman—i.e., the failed trip provides a motive for the package's shipment. Thus, the trip evidence is not evidence of a prior bad act, but of a determined individual to obtain this specific heroin from this supplier at this general time. Thus, Rule 404(b) does not apply here.
Adkins next argues that the district court's Rule 403 analysis was "perfunctory." It is true that the judge's reasoning could have been more extensive. In some cases, a "bare bones" recitation of Rule 403 has led to a reversal. See, e.g., United States v. Ciesiolka, 614 F.3d 347, 357 (7th Cir. 2010). But in this case, the district court provided a sufficiently thorough analysis because it appears, in context, that the district court was relying upon the reasons articulated in its 404(b) analysis. In other words, the district court found the Canada-trip evidence more probative than prejudicial for the same reasons that it found the evidence to be direct evidence of criminality: the evidence went to Adkins' knowledge, preparation, and intent. Moreover, the trip-related evidence was prejudicial to Adkins only because it helped prove his alleged crime. See United States v. Thompson, 359 F.3d 470, 479 (7th Cir. 2004) ("[A]ll probative evidence is prejudicial to the party against whom it is offered.").
Nonetheless, Adkins contends that the evidence was unfairly prejudicial because some jurors might have been unpersuaded that Adkins thought the snowmen contained heroin, but convicted him anyway for trying to travel to Canada a week earlier seeking the heroin. While this is theoretically possible, the much more likely inference is that the jurors convicted Adkins because he took the package, opened it, took out a snowman, said "We've got some goodies, " ripped open a snowman, tried to hide it when agents arrived, and then told the agents afterward that he was surprised that the package made it through customs and it "did not feel like 300 grams."
Adkins makes three final arguments about the Canada- trip evidence, all of which we reject. First, he contends that the district court erred by waiting until the end of trial to give a limiting instruction that the trip evidence should be considered only as to intent and knowledge. We have expressly rejected this argument before, and do so again. See United States v. Akinrinade, 61 F.3d 1279, 1284 (7th Cir. 1995). Second, Adkins argues that the district court erred by giving a generic limiting instruction about the trip-related evidence, rather than customizing that instruction to this case's facts. However, while we "encourage" district courts to give case- specific limiting instructions, we do not require them to do so. United States v. Miller, 673 F.3d 688, 702 n.1 (7th Cir. 2012). Third, Adkins contends that it was erroneous not to limit consideration of the Canada-trip evidence to the heroin charge. But there is no indication that this evidence affected the jury's consideration ...