author: POSNER, Chief Judge.

text:
    Michael N. WILLIAMS, Plaintiff-Appellant, v. BRISTOL-MYERS SQUIBB COMPANY, Defendant-Appellee.
    No. 95-3649.
    United States Court of Appeals, Seventh Circuit.
    Argued April 17, 1996.
    Decided May 29, 1996.
    Rehearing and Suggestion for Rehearing En Banc Denied June 26, 1996.

      Dennis M. White, Edward A. Corcoran, Brennan, Steil, Basting & MacDougall, Madison, WI, for Plaintiff-Appellant.
    James R. Clark, Anita M. Sorensen, Foley & Lardner, Madison, WI, for DefendantAppellee.

      Before POSNER, Chief Judge, and CUMMINGS and COFFEY, Circuit Judges.
   POSNER, Chief Judge.

Michael Williams brought suit under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., against his former employer Bristol-Myers Squibb, the pharmaceutical manufacturer. He charged Bristol-Myers both with discriminating against him on account of his age (late 40s when the acts of alleged discrimination took place) and with retaliating against him for filing charges of discrimination with the EEOC and for giving a deposition in an age discrimination suit brought by a coworker. 29 U.S.C. § 623(d). The district judge granted summary judgment for the defendant after a thorough combing of the evidence of discrimination and retaliation obtained by Williams in pretrial discovery. That evidence, construed as favorably to Williams as reason and the record permit (the proper approach in evaluating a grant of summary judgment), can be summarized as follows:

Williams had worked for many years for the defendant and one of its predecessor companies, E.R. Squibb, in southern Wisconsin as a “detail man,” calling on physicians and trying to persuade them to prescribe drugs manufactured by his employer. The trouble started in the late 1980s when James Dicks, Williams’s supervisor, fired another salesperson, Trudy Lantow. She filed an age discrimination suit in which Williams was deposed. Shortly before he was disposed Dicks told him that he would be accountable for everything in it, a comment that Williams interpreted as a threat. Nevertheless Williams testified in his deposition in Dan-tow’s case that Dicks was rough on the older sales reps and had told Williams that young people could be hired to do Williams’s job for a lot less pay. The deposition was given in 1990, and Dicks, in his annual review of Williams’s performance, wrote that “Mike has not been understanding, considerate or supportive of management in 1990.” Dicks gave him a high rating in 1991 but a much lower rating and a much smaller raise the following year, and placed the only other sales rep who testified in Lantow’s case on a disciplinary “performance improvement program.” Williams complained in a phone call to a superior of Dicks that the company was not being fair to some of the older sales reps. Dicks was heard to say he was not pleased about the phone call.

Late the same year (1992), Bristol-Myers decided to reorganize its sales force and reduce the number of salespersons. With the aid of a consulting firm it redrew territorial boundaries and fired a large number of sales reps in the Squibb division. Williams was not fired. His territory was split up but he was given a similar territory, promoting similar drugs- to mostly the same doctors whom he had called on for Squibb, but drugs manufactured by the defendant’s Mead Johnson division. He protested the transfer, complaining that it would take time for him to build up to the same sales level that he had reached in his previous job; and indeed his commission income, which in his last year at Squibb had amounted to 10.7 percent of his total earnings, fell precipitately in 1993. One of the defendant’s sales directors said to Williams, “So, you’re kicked out of one company and now you’re going to get kicked out of another one, cause trouble in another one,” and asked him why he didn’t retire since he had lots of money. A regional sales manager at Mead Johnson was told by his counterpart at Squibb that Williams was a “management challenge.”

John Voss, Williams’s new supervisor (corresponding to Dicks at Squibb), wrote of Williams: “Older rep. Set in his ways. Works, but does things differently. Be a long process to change things.” Voss put Williams into a “district coaching program.” This required Williams to make special weekly reports and special written sales presentations, even though he had had only a short time to familiarize himself with his new job and it was customary not to put a salesman into such a program until he had been in his new job for at least eight months. Williams was told in writing that “failure to show improvement at any time during the program or in the immediate months after the program may lead to further disciplinary action” (emphasis added), implying, contrary to the defendant’s characterization, that the “coaching” program was disciplinary in nature.

In August of 1993 Williams filed a charge with the EEOC, complaining that his transfer to the Mead Johnson division had been due to his age (47). And in October he amended the charge to add that his employer had retaliated against him for his having assisted Lantow with her age-discrimination suit. He was fired in January of the following year, ostensibly for reasons unrelated to his age or performance or to his assistance to Lantow. Federal law requires a maker of prescription drugs to have a samples control program designed to prevent its salesmen, who frequently give free samples to the physicians they call on, from distributing prescription drugs outside authorized channels. And the manufacturers have their own interest in making sure their salesmen don’t steal samples either for their own consumption or for resale. One of the requirements of Bristol-Myers’ code of conduct, designed to implement the samples control program, is that the receipt of a sample be acknowledged on a card signed by the physician whose name appears on the card. Pursuant to this policy, a salesman who wants to leave a sample with a physician writes the physician’s name on a card, the physician signs it, and the salesman takes it back to the company, which has a file of physicians’ signatures that it can use to verify the signature on the card. The salesman does not have to witness the physician’s signature, however. He can give the card to the nurse and ask her to obtain the physician’s signature and return the card to him. And one physician in a group practice can sign for the whole practice.

The company’s code of conduct provides that “any employee who is found to have committed a serious violation [of the code] or multiple violations will be subject to termination at the sole discretion of the Company.” Examples of serious violations are given, including “falsification of any Company document.” The code explains that “falsification ... includes, but is not limited to ... knowingly accepting a signature on a Call Form or Service Order Form of anyone other than a licensed medical practitioner, or reporting a visit which has not been made.”

As part of a routine review of samples cards, Voss found two cards for a Dr. Tim Donovan which Williams had submitted. The cards had the same date as well as name but the signatures were different. One was Donovan’s; no one knows whose the other was. Voss also discovered that Williams had given a card with Dr. Jane Fossum’s name on it to a partner of Fossum’s, who in Williams’s presence had signed the card “J. Fossum, M.D.” and had assured Williams that this was okay. On the basis of these two incidents Williams was fired, although there is no suggestion that any samples were misapplied. So far as appears, Dr. Donovan and Dr. Fossum duly received the samples recorded on their cards; only someone other than Donovan — possibly another doctor (possibly his brother, Dr. Tom Donovan) — signed one of the Donovan cards, and Fossum’s partner signed Fossum’s card. Bristol-Myers argues that Williams was guilty of “falsification” within the meaning of the code. It points to several instances in which younger sales reps were fired for falsification. But in those cases the reps had forged physicians’ names on the samples cards, or written up a visit that they had never made, or changed dates, or otherwise made a material false statement.

The suit complains about Williams’s transfer from the Squibb division to the Mead Johnson division and about his being fired on purported grounds of “falsification.” We do not think the transfer (or the placement of Williams in the “coaching” program) rises to the level of a materially adverse employment action. That is a threshold requirement of proving a violation of the age discrimination law because, so far as bears on this case, the law forbids only “diseriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment,” 29 U.S.C. § 623(a)(1), or “limit[ing], segregat[ing], or classify[ing] ... employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.” § 623(a)(2). The question whether a change in an employee’s job or working conditions is materially adverse, rather than essentially neutral, is one of fact, as assumed in Dahm v. Flynn, 60 F.3d 253, 257 (7th Cir.1994), and so can be resolved on summary judgment only if the question is not fairly contestable.

The transfer of Williams between divisions was strictly lateral — not a demotion— and while it did require Williams to learn new products, he acknowledges that there is so much innovation in the pharmaceutical industry that had he remained in the Squibb division he undoubtedly would have had to learn new products as well. He had to learn more new products in his new job, and this was likely to depress his sales initially and hence the commission component of his earnings, and did so. But any involuntary transfer, almost by definition, is likely to mean more work, and for a commissioned salesman initially less pay, for the employee who is transferred.

Obviously a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either. Flaherty v. Gas Research Institute, 31 F.3d 451, 456-57 (7th Cir.1994); Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132 (7th Cir.1993); Spring v. Sheboygan Area School District, 865 F.2d 883 (7th Cir.1989). Otherwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial. In our very recent McDonnell v. Cisneros, 84 F.3d 256 (7th Cir.1996), the material adverseness of the transfer was conceded. In Collins v. Illinois, 830 F.2d 692, 704 (7th Cir.1987), the lateral transfer was really a demotion; the plaintiff lost her office and her professional listing as a library consultant. In Dahm v. Flynn, supra, 60 F.3d at 257, the plaintiff’s job underwent “a dramatic downward shift in skill level.” In Goss v. Exxon Office Systems Co., 747 F.2d 885 (3d Cir.1984), the case factually most like this one, a saleswoman was shifted to an inferior territory, and the court found a constructive discharge. The only issue, however, was whether the plaintiff had been constructively discharged, which if so would obviously be a materially adverse employment action. The action that precipitates a constructive discharge, while it must be sufficiently harmful or offensive to make a reasonable employee consider remaining in the job impossible, need not itself be a materially adverse employment action, or indeed an employment action of any kind. If your supervisor tells you that he’ll shoot you unless you resign “voluntarily,” and you do, that’s constructive discharge, though the threat itself is not an employment action of any sort. Williams does not argue that the transfer and the assignment to the “punitive” coaching program amounted to a constructive discharge— and how could he? He didn’t quit.

Williams is left with arguing that the indirect effect of the transfer on his commission earnings constituted a materially adverse employment action. A cut in base pay not offset by an increase in some other form of compensation would be a demotion, and hence a materially adverse employment action. Cf. Crady v. Liberty Nat’l Bank & Trust Co., supra, 993 F.2d at 136. So would be a cut in the commission rate (subject to the same qualification about offsets). But since commission earnings are proportional to sales, a transfer that has the effect of reducing the employee’s sales and hence commissions is an unlikely candidate for discrimination, since the employer in such a case is hurting the employee by hurting itself, that is, by reducing its sales.

Although the question is close, we conclude that an indirect and minor effect on commission income (minor here because commission income was only a small fraction of the employee’s total income) is not sufficient to transform a lateral transfer into a demotion.' To treat Williams’s transfer as a materially adverse employment action would bring virtually every lateral transfer within the reach of the age discrimination law (and other federal employment discrimination laws), which the courts thus far have refused to do.

So the claim based on the transfer and the coaching program goes nowhere but we have a different reaction to Williams’s termination, which the word “pretextual” might have been coined to describe. The company might have argued that it fired Williams because it didn’t like the color of his eyes. The age discrimination law does not forbid arbitrary discharges, only discharges based directly or indirectly (as in a case of retaliation) on age. Instead the company argued that it fired Williams because he engaged in “falsification” within the meaning of the code and because it had fired other, younger falsifiers. The code is not easily read to support the company’s interpretation. The provision that we quoted defining falsification merely requires, so far as bears on Williams’s offenses, that the samples card be signed by a licensed medical practitioner. We have no reason to suppose that either Donovan card was not signed by a physician or other licensed medical practitioner; and we know that a physician signed Fossum’s card. Williams did violate the provision of the code that requires that the name and signature on the card match, and we suppose that two violations (one Donovan card plus the Fossum card) could be thought “multiple.” But he was not fired for multiple violations of provisions of the code other than that forbidding falsification of company documents; he was fired for falsification. The company explains that failing to match the name and the signature is a species of falsification, and reminds us that the definition of falsification is open-ended (“not limited to”). But it would be a very curious form of draftsmanship for the drafters, having defined falsification, to bury a further example of it, without cross-reference and without characterization as falsification, elsewhere in the code. Nor is “falsification” an entirely apt description for failing to catch an unauthorized signature by someone else. And the company’s insistence that Williams did just what the other employees fired for falsification did is so perverse as to cast additional doubt on its good faith.

Assuming the code did not create a contract between Bristol-Myers and him, which is not alleged, he cannot complain about the company’s misinterpretation as such. But misinterpretation can be evidence of pretext. Against a background rich with suggestion though no conclusive proof that the company was out to get Williams because he was “old” (at least by salesmen’s standards) and set in his ways and had complained about age discrimination against himself and others and had assisted another employee’s age discrimination suit and had just filed not one but two charges of age discrimination with the government on his own behalf against Bristol-Myers, the company’s unpersuasive interpretation of its code and equally unpersuasive comparison of Williams’s offenses to those of the younger people whom it fired cry pretext, creating a triable issue of retaliation.

From what we have said it should be plain that Williams’s discharge may have been due in part to his age, as well as to his complaints about discrimination. Either way, the discharge would be actionable under the age discrimination law.

The judgment for the defendant is affirmed so far as the transfer and coaching program is concerned but is reversed, and the case remanded for trial, with regard to the plaintiffs discharge.

Affirmed in Part, Reversed in Part, and Remanded.


source: Caselaw Access Project

author: ILANA DIAMOND ROVNER, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Salvador ACOSTA, Defendant-Appellant.
    No. 95-2517.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 15, 1996.
    Decided May 29, 1996.

      Rodney Cubbie, Steven Ingraham, argued, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
    Frank M. Tuerkheimer, argued,- University of Wisconsin Law School, Madison, WI, for Defendant-Appellant. •
    Before KANNE, ROVNER, and DIANE P. WOOD, Circuit Judges.
   ILANA DIAMOND ROVNER, Circuit Judge.

Following a bench trial, Salvador Acosta was convicted of one count of possessing heroin with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Acosta was sentenced to 151 months in prison followed by three years of supervised release, and was fined $2,500. In calculating Acosta’s base offense level, the district judge determined that, in addition to the 31.826 grams of heroin confiscated from Acosta’s ear and residence on the day of his arrest, Acosta was also responsible for participating in a series of transactions during which he delivered a total of approximately 7.5 kilograms of cocaine to a government informant. Acosta challenges his sentence on the grounds that the district court did not make an express finding that the cocaine transactions were relevant conduct under U.S.S.G. § lB1.3(a)(2), that the court failed to explain why it rejected a lower estimate of the amount of cocaine Acosta had allegedly delivered to the informant, and that in any event the informant’s testimony concerning the amounts of cocaine involved was internally inconsistent and therefore unreliable. Although we find no error in the district court’s decision to treat the cocaine transactions as relevant conduct for purposes of sentencing, we nevertheless vacate Acosta’s sentence and remand for reconsideration of the amount of cocaine to be attributed to him.

I. BACKGROUND

On the evening of December 17, 1994, members of the Milwaukee County Sheriffs Department stopped Acosta’s car pursuant to a tip by government informant Carlos Johnson, who was Acosta’s passenger at the time. A search of the car uncovered 1,449 packets of heroin containing a total of 29.586 grams of the drug. Each of the heroin packets was labeled “New York Express.” On January 4, 1995, a federal grand jury returned a one-count indictment charging Acosta with possessing with intent to distribute heroin. Acosta waived his right to a jury trial, and a two-day bench trial resulted in his conviction. The district court then ordered the preparation of a presentence report and scheduled a sentencing hearing. The presentence report initially recommended that Acosta be held responsible for a total of 31.826 grams of heroin and 20 kilograms of cocaine, resulting in a base offense level of 34. Prior to the sentencing hearing, Acosta filed several objections to the presentence report, disputing both the inclusion of his alleged cocaine trafficking activities as relevant conduct under U.S.S.G. § lB1.3(a)(2), and the amounts of cocaine attributed to him in those transactions. The government replied to Acosta’s objections in a letter to the court, suggesting that only 7.5 kilograms of cocaine be attributed to Acosta, as this amount was a conservative estimate of the total quantity of cocaine Acosta had delivered to Johnson. The government’s position as to the amount of cocaine attributable to Acosta was noted in a June 14, 1995 addendum to the presentence report. The addendum also contained the response of U.S. Probation Officer Bernadette M. Chesak, in which Chesak stated that she had no additional information to offer the court concerning the cocaine, and that the court would therefore need to resolve the issue of relevant conduct at sentencing.

A sentencing hearing was held on June 15, 1995. Turning to the question of relevant conduct, the district court considered Acosta’s contention that the trial testimony of Johnson was “very ambiguous, very vague,” that it failed to specify dates of transactions or total quantity of cocaine, and that the evidence as a whole failed to provide a sufficient basis for holding Acosta responsible for any amount of cocaine. (Sentencing Tr. at 6-7.) The government submitted that the fact of Acosta’s cocaine dealing was amply corroborated by the statements of Carmen Andujar, Acosta’s wife, who was questioned by police in conjunction with the search of Acosta’s Milwaukee residence on the day of his arrest. (Sentencing Tr. at 8.) In those statements, Andujar admitted that she disposed of a quantity of cocaine when she heard that police were at her door, that she had seen Acosta with cocaine on a number of occasions, and that Acosta had told her that he was selling both heroin and cocaine. (Presentence Report at ¶¶ 21-28.) Andujar also stated that Acosta obtained both drugs from a source in New York City, that she went to New York several times with Acosta to pick up heroin and cocaine, and that she wired money at Acosta’s behest to his drug source in New York on at least two occasions. (Presentence Report at ¶¶ 22-24.) In their search of Acosta’s residence, police confiscated six Western Union money transfer receipts showing that Acosta had sent substantial sums of money from Milwaukee to New York. Police also seized a notebook that appeared to be a drug ledger, which Johnson subsequently identified as reflecting the money he owed Acosta for a number of packages of cocaine Acosta had provided to him for resale. (Presentence Report at ¶¶ 17 — 18.) A dust mask with cocaine residue, a digital scale, and 9.106 grams of cocaine, as well as a total of fifty-two packets of heroin, each bearing the stamp “New York Express,” were also recovered from the residence. (Presentence Report at ¶¶ 14 & 16.)

In support of its position that a total quantity of 7.5 kilograms of cocaine should be attributed to Acosta for sentencing purposes, the government relied on the trial testimony of Johnson. Johnson testified that he began purchasing cocaine from Acosta in the early summer of 1994 and continued to do so until his arrest in November 1994, when he began cooperating with law enforcement authorities. Johnson stated that he had obtained cocaine from Acosta at least once per week during that period, and at times as frequently as every other day. He further testified that he had made between thirty and fifty purchases of cocaine from Acosta in 1994. To determine the total quantity involved, the district judge considered the following portion of the trial transcript of Johnson’s testimony on direct examination, which the judge read into the record at the sentencing hearing:

Question: Okay. What is the greatest amount of cocaine that you obtained from Salvator Acosta?
Answer: Anywhere from I would say the max would be two and a half kilos.
The court: Are you talking about at one time?
Mr. Cubbie: I will clarify that, Judge.
Question: My question is at one time. I should have asked that way. What’s the most you ever picked up from Salvator Acosta?
Answer: About two and a half kilos at the very most, max.
Question: What’s the smallest amount of cocaine that you obtained from Salvator Acosta at one time?
Answer: Anywhere from a half ounce all the way up to a kilo of cocaine.
Question: Let me ask you a different way. What is the smallest amount — the smallest amount that you got from him at one time?
Answer: I would say nine ounces.

(Sentencing Tr. at 16.)

The district judge then determined that Johnson’s testimony was generally credible, if lacking in precision, and that it constituted sufficient evidence to hold Acosta responsible for thirty deliveries of at least nine ounces of cocaine to Johnson, totaling approximately 7.5 kilograms of the drug. (Sentencing Tr. at 18-20.) With respect to whether Acosta’s cocaine sales to Johnson were “relevant conduct” for purposes of applying U.S.S.G. § lB1.8(a)(2), the judge noted that Johnson’s testimony concerning the transactions was sufficiently corroborated by other evidence in the record to ensure its probable accuracy. He then adopted the factual findings in the presentence report pertaining to that evidence. (Sentencing Tr. at 18-20.) The judge did not, however, expressly state that Acosta’s cocaine sales to Johnson were part of “the same course of conduct or common scheme or plan” (see U.S.S.G. § lB1.3(a)(2)) as Acosta’s heroin trafficking offense. Aggregating the amounts of drugs involved in Acosta’s offense of conviction and the uncharged cocaine sales, the judge determined that a total drug quantity of 31.826 grams of heroin and 7.5 kilograms of cocaine was attributable to Acosta, corresponding to a base offense level of 32 under the Guidelines. The judge then added a two-level enhancement for obstruction of justice on the ground that Acosta had been untruthful with the court concerning his ability to speak and understand English. Acosta’s total offense level was thus set at 34, with a criminal history category of I, yielding a sentencing range of 151 to 188 months. The judge imposed a sentence of 151 months in prison followed by three years of supervised release, and a fine of $2,500.

II. DISCUSSION

In calculating a defendant’s base offense level under the Sentencing Guidelines, a district court is required to take into consideration not only the types and quantities of drugs specified in the offense of conviction, but also any drugs that were “part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see United States v. Howard, 80 F.3d 1194, 1202 (7th Cir.1996); United States v. Beler, 20 F.3d 1428, 1431 (7th Cir.1994); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.1991), cert. denied, 506 U.S. 859, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992). When a defendant in a drug distribution case is sentenced on the basis of uncharged conduct pursuant to section 1B1.3(a)(2), the government’s burden of proof is twofold: it must first prove by a preponderance of the evidence that the uncharged conduct bore the necessary relation to the offense of conviction, see Duarte, 950 F.2d at 1263-64; it must then establish the quantity of drugs involved in that conduct, also by a preponderance of the evidence, see Beler, 20 F.3d at 1431. Given the factual nature of this inquiry, a district court’s determination that uncharged offenses were part of the same course of conduct as the offense of conviction is reviewed only for clear error. United States v. Townsend, 73 F.3d 747, 751 (7th Cir.1996); United States v. Sykes, 7 F.3d 1331, 1335 (7th Cir.1993). Similarly, the court’s calculation of the drug amount attributable to the defendant is a finding of fact that will not be disturbed absent clear error. Townsend, 73 F.3d at 751; Beler, 20 F.3d at 1431.

Acosta first challenges the district court’s implicit determination that the series of cocaine sales to Johnson occurring in the summer and fall of 1994 were relevant conduct. Acosta contends that, contrary to the requirements of Beler and Duarte, the district court never made an express finding that the cocaine sales were “part of the same course of conduct or common scheme or plan” as the later heroin offense, and that the facts alleged in the presentenee report and at the sentencing hearing do not support this finding. Acosta further asserts that the court never resolved his challenge to the factual basis of the uncharged activities, and instead relied on disputed facts, such as Carmen Andujar’s alleged statements to police, in treating the cocaine transactions as relevant conduct under § lB1.3(a)(2). Although conceding that the district judge never expressly stated that the cocaine sales to Johnson were relevant conduct, the government maintains that the facts established in the presentence report, which the judge adopted prior to sentencing Acosta, provide a sound basis for concluding that the cocaine sales bore the necessary relationship to Acosta’s offense of conviction.

This court has held that when a district court aggregates drug quantities stemming from uncharged or unconvicted relevant conduct for the purpose of calculating a defendant’s base offense level, the court should “explicitly state and support, either at the sentencing hearing or (preferably) in a written statement of reasons, its finding that the unconvicted activities bore the necessary relation to the convicted offense.” Duarte, 950 F.2d at 1263. Yet where it is clear from the record that the district court considered and adopted the facts recited in the presentence report, as well as the government’s reasoning concerning the significance of those facts in establishing the defendant’s responsibility for uncharged conduct, we have upheld the court’s decision to treat the uncharged activities as relevant conduct despite the lack of an express finding that the activities were part of “the same course of conduct” or “common scheme or plan” as the convicted offense. See United States v. Thomas, 969 F.2d 352, 355 (7th Cir.), cert. denied, 506 U.S. 896, 113 S.Ct. 274, 121 L.Ed.2d 202 (1992); see also United States v. Taylor, 72 F.3d 533, 548-49 (7th Cir.1995).

The transcript of Acosta’s sentencing hearing reveals that the district judge reviewed the presentence report containing the statements Andujar made to police on the day of Acosta’s arrest, and that he carefully considered whether the information in the report obtained from her statements was reliable. The judge also considered whether Johnson’s testimony was corroborated by the information developed by police in their investigation of Acosta, also as reflected in the presentence report. He then credited Johnson’s testimony, adopted the findings of the presentence report, and calculated the total quantity of drugs attributable to Acosta by including the cocaine transactions. It was thus clear from the proceedings that the judge considered those transactions to be relevant conduct under the applicable Guideline provision. As in Thomas and Taylor, we see no reason to set aside the district court’s implicit determination that the cocaine sales to Johnson constituted relevant conduct solely because the judge did not expressly find that those transactions were part of the same course of conduct as Acosta’s heroin offense. See Thomas, 969 F.2d at 355-56; Taylor, 72 F.3d at 549. We will therefore uphold the district court’s decision to treat the cocaine transactions as relevant conduct under § 1B1.3(a)(2) provided the court had a factual basis supporting that decision.

In examining the court’s factual basis for applying § 1B1.3(a)(2), we observe that the sentencing transcript belies Acosta’s claim that the district judge never resolved the factual dispute surrounding Andujar’s statements to police. Indeed, it is clear from the transcript that the judge regarded Andujar’s denial that she ever made incriminating statements to police as highly suspect. (Sentencing Tr. at 18-19.) Although Acosta has maintained that his wife made no statement to police on the night of his arrest, the district judge was, of course, entitled to credit the police officers’ version of events as described in the presentence report. See United States v. Salinas, 62 F.3d 855, 859 (7th Cir.1995). Moreover, the judge considered the other evidence in the presentence report that pointed to Acosta’s involvement in cocaine trafficking and found it to be reliable, also noting that the evidence corroborated in a general way Johnson’s trial testimony concerning the cocaine he had obtained from Acosta. Although mindful of the fact that Johnson’s testimony was at times quite vague, the judge nevertheless expressly credited it. (Sentencing Tr. at 18.) It is well established that a sentencing court’s credibility determinations are accorded exceptional deference. United States v. Anaya, 32 F.3d 308, 314 (7th Cir.1994); United States v. Kozinski, 16 F.3d 795, 820 (7th Cir.1994). Acosta has failed, moreover, to point to any evidence in the record that would cause us to question the district court’s reliance on Johnson’s testimony for the purpose of establishing that Johnson purchased some quantity of cocaine from Acosta during the latter part of 1994. We thus discern no error in the district court’s determination that Acosta trafficked in cocaine in the months immediately preceding his arrest on the heroin charge.

We next consider whether the evidence was sufficient to establish that these uncharged cocaine sales were part of “the same course of conduct or common scheme or plan” as Acosta’s heroin offense. As the commentary accompanying the Guideline explains, “same course of conduct” and “common scheme or plan” are closely related concepts. U.S.S.G. § 1B1.3(a)(2), comment, (n. 9). Two or more offenses are part of a common scheme or plan when they are “substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” Id., comment, (n. 9(A)). Offenses that are not part of a common scheme or plan may nevertheless be part of the same course of conduct if there is a sufficient relationship between them to support the conclusion that they are “part of a single episode, spree, or ongoing series of offenses.” Id., comment, (n. 9(B)). In assessing whether two or more offenses are part of the same course of conduct, we consider factors that point to a strong relationship between the uncharged conduct and the convicted offense, focusing on whether the government has demonstrated a significant “similarity, regularity, and temporal proximity [between] the uncharged acts and the offense of conviction.” Sykes, 7 F.3d at 1336; see United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.1993); Duarte, 950 F.2d at 1264-65; U.S.S.G. § 1B1.3(a)(2), comment, (n. 9(B)). When one of the factors, such as similarity, is relatively weak or absent, a stronger showing of regularity and temporal proximity will support a finding of relevant conduct. See U.S.S.G. § 1B1.3(a)(2), comment. (n. 9(B)) (“When one of the above factors is absent, a stronger presence of at least one of the other factors is required.”); see also Sykes, 7 F.3d at 1336.

We agree with the government that the evidence relied on by the district court in calculating Acosta’s sentence provides ample support for its implicit conclusion that the cocaine sales constituted relevant conduct in this case. Johnson’s testimony and Andujar’s statements to police support the court’s finding that Acosta obtained both heroin and cocaine from a source in New York City, and that he purchased both drugs for resale at the same time. Close geographic and temporal proximity in activities that a defendant undertakes to advance his drug trafficking enterprise are factors that indicate the activities are part of the same course of conduct. See Taylor, 72 F.3d at 548-49. Moreover, although Acosta was not in possession of cocaine when he was arrested, the packets of heroin that were confiscated from him at the time of his arrest were labeled as having originated from New York City. This fact corroborated the testimonial evidence and the presentence report that Acosta regularly obtained all of his drugs from a source in New York. In addition, the physical evidence found at Acosta’s residence, including “tools of the trade” such as a dust mask with cocaine residue and a digital scale, provided further support for the conclusion that Acosta was dealing in cocaine at the time of the heroin offense. Finally, the district court credited Johnson’s testimony that he had obtained cocaine from Acosta in a series of transactions that took place at least once per week over a period of six or seven months prior to Acosta’s arrest, thus indicating that the sales were part of an ongoing pattern of cocaine trafficking that Acosta engaged in at the time of his heroin offense. See United States v. Santiago, 906 F.2d 867, 872 (2d Cir.1990) (nature, number and frequency of acts considered in determining whether pattern of behavior exists). In light of the government’s strong showing of regularity, and the temporal and geographic proximity between the uncharged cocaine sales and Acosta’s heroin offense, the mere fact that two different types of narcotics were involved is of little or no importance. The district court’s implicit conclusion that Acosta’s cocaine sales were relevant conduct for purposes of sentencing thus easily survives our deferential review.

Acosta’s final challenge is to the court’s calculation of the amount of cocaine attributable to him in setting his base offense level. Acosta maintains that the district judge did not base that calculation on evidence having sufficient indicia of reliability as required by due process and the Guidelines themselves. As this court and others have emphasized, the quantity of drugs attributed to a defendant in a narcotics trafficking case is frequently the single most important determinant of the length of the defendant’s sentence under the Guidelines. See Beler, 20 F.3d at 1432; Duarte, 950 F.2d at 1262-63; United States v. Brothers, 75 F.3d 845, 849 (3d Cir.1996); United States v. Sepulveda, 15 F.3d 1161, 1196-97, 1198 (1st Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994); U.S.S.G. § 2D1.1(a)(3). It is therefore crucial that the information the district court relies on in calculating the defendant’s base offense level have “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see Beler, 20 F.3d at 1432; Brothers, 75 F.3d at 848. Given the contradictory nature of the testimony the court relied on to attribute 7.5 kilograms of cocaine to Acosta, and the fact that there was neither an adequate explanation of why the court chose that particular amount, nor any other evidence in the record that specifically corroborated it, we are unpersuaded that Acosta’s sentence was based on reliable information.

The district judge arrived at the figure of 7.5 kilograms by multiplying Johnson’s estimate of the minimum number of cocaine purchases he had made from Acosta, with the quantity the judge apparently believed was the smallest amount of cocaine Johnson had obtained in a single purchase. (Sentencing Tr. at 19-20.) The judge’s general approach in arriving at this conservative estimate of the total amount of cocaine attributable to Acosta is one that courts have considered acceptable. See United States v. Henderson, 58 F.3d 1145, 1151 (7th Cir.1995); United States v. Clay, 37 F.3d 338, 344 (7th Cir.1994); Beler, 20 F.3d at 1434; see also United States v. Hill, 79 F.3d 1477, 1488 (6th Cir.1996) (when choosing between plausible estimates of drug amount, court should “err on the side of caution”); Sepulveda, 15 F.3d at 1198 (same). As Acosta points out, however, Johnson offered plainly inconsistent estimates concerning the size of his smallest purchase of. cocaine. On direct examination, Johnson first testified that the smallest amount of cocaine he obtained from Acosta in a single purchase ranged from one-half ounce to a kilogram. Immediately thereafter, in response to the same question posed in a slightly different manner, Johnson reconsidered his estimate and stated that the smallest amount was nine ounces. (Sentencing Tr. at 16.) The judge then used the nine ounce figure as the minimum quantity of cocaine and multiplied it by thirty, that being the minimum number of purchases Johnson made from Acosta between the early summer and late fall of 1994. On the basis of this calculation, to which the court added the 31.826 grams of heroin that Acosta was convicted of possessing, the judge set Acosta’s base offense level at 32. (Sentencing Tr. at 20.) There was, however, no explanation of why the judge rejected the one-half ounce figure as the smallest amount purchased, a quantity that would have resulted in a significantly lower base offense level of 26, prior to adjustment for obstruction of justice. See U.S.S.G. § 2Dl.l(c) & comment, (n. 10). Yet as we observed in Duarte, “when the court clearly relies upon one of two contradictory statements offered by a single witness, it should directly address the contradiction and explain why it credits one statement rather than the other.” 950 F.2d at 1266.

Nor does the sentencing transcript reveal that the judge considered any corroborating evidence, such as that obtained in the search of Acosta’s home, or that could be inferred from Andujar’s description of Acosta’s cocaine trafficking activities, that would serve to establish the greater plausibility of the nine ounce estimate, as opposed to the one-half ounce estimate. Although, as explained above, this evidence generally corroborated the fact of Acosta’s cocaine sales to Johnson, it did not provide a basis for arriving at a particular quantity of cocaine for purposes of applying U.S.S.G. § 2Dl.l(a)(3). See Beler, 20 F.3d at 1436-37 (fact that defendant made numerous drug sales does not, by itself, corroborate specific estimates of drug quantity); United States v. Miele, 989 F.2d 659, 668 (3d Cir.1993) (same); see also Henderson, 58 F.3d at 1152 (court may not choose random number to establish drug quantity simply because it believed more drugs were involved than that number indicates). In the absence of an explanation or other evidence justifying the judge’s choice of the nine ounce amount, we conclude that the calculation of Acosta’s base offense level rests on an inadequate evidentiary basis, and as such is clearly erroneous.

Relying on United States v. Mustread, 42 F.3d 1097 (7th Cir.1994), and United States v. Isirov, 986 F.2d 183 (7th Cir.1993), the government maintains that we should affirm Acosta’s sentence because Acosta did not meet his burden of producing some evidence to show that the presentence report was unreliable or inaccurate, and instead stood on his bare denial of the facts contained in the presentenee report. See Mustread, 42 F.3d at 1101-02; Isirov, 986 F.2d at 185-86. The government’s reliance on this line of cases is misplaced. As is evident from the June 14, 1994 addendum to the presentence report, the probation office took no position as to the quantity of cocaine attributable to Acosta, and U.S. Probation Officer Chesak specifically noted that the district court would be required to make that determination at sentencing. Moreover, Acosta’s challenge to the court’s calculation does not rest on a bare denial of any facts contained in the presentenee report, but on an inherent contradiction in the testimony that the sentencing court used to determine Acosta’s base offense level. As this court recently explained in United States v. Lanterman, 76 F.3d 158 (7th Cir.1996), because a defendant has a due process right to be sentenced on the basis of reliable information, “unreliable allegations must not be considered.” Id. at 160-61 (emphasis in original). Thus, it is only when the facts alleged in a presentenee report are shown to bear “sufficient indicia of reliability to support [their] probable accuracy” (U.S.S.G. § 6A1.3(a)) that the burden of producing some evidence to demonstrate that those facts are nevertheless incorrect or otherwise unreliable is shifted to the defendant. See id.; see also Townsend, 73 F.3d at 751-52; Salinas, 62 F.3d at 859. Yet evidence that is contradictory on its face is perhaps the prototype of unreliable evidence, and has been repeatedly recognized by this court as providing an inadequate basis for calculating a defendant’s base offense level under the Guidelines. See, e.g., Beler, 20 F.3d at 1436; Duarte, 950 F.2d at 1266. Because the testimony relied on by the sentencing court was inherently inconsistent, and Acosta apprised the court that the testimony contained ambiguities, it is untenable to suggest that Acosta had a further obligation to produce material evidence to show that the estimate used to calculate the total amount of cocaine he delivered to Johnson was inaccurate. We remind the government that on remand, it bears the responsibility of producing some evidence from which the district court may make a reliable estimate of the quantity of cocaine that should be attributed to Acosta for purposes of determining his sentence. See Howard, 80 F.3d at 1205; Beler, 20 F.3d at 1431.

III. CONCLUSION

For the foregoing reasons, we Vacate Acosta’s sentence and Remand for resentencing.

      . We note that at certain points in the record on appeal, Acosta’s first name is spelled "Salvator.”

      . Acosta does not appeal the obstruction of justice enhancement.

      . Although Acosta also challenged the estimate of the minimum number of times Johnson obtained cocaine from him during the summer and fall of 1994 because Johnson gave a wide-ranging estimate of thirty to fifty purchases, we note that the minimum of thirty purchases is fully consistent with Johnson's testimony concerning the frequency of purchases he made during that time frame. (Sentencing Tr. at 17-18.) As such, it was not clear error for the judge to consider that estimate sufficiently reliable to use as a basis for calculating the total drug amount.

      . As was pointed out at oral argument, nine grams (rather than ounces) is equal to approximately one-third of an ounce, which is closer to Johnson's low estimate of one-half ounce as the smallest amount of cocaine he ever obtained from Acosta in a single purchase. The district court may wish to explore this possibility on remand.

      . In this respect, Lanterman is, of course, fully consistent with Mustread and Isirov. These cases provide no support whatsoever for weakening or dispensing with the requirement that a defendant be sentenced only on the basis of reliable information. See Mustread, 42 F.3d at 1102 (district court’s close examination of facts recited in presentence report established that they were not "naked or unsupported charge[s]”); Isirov, 986 F.2d at 186 (district court determined that facts in presentence report were reliable before rejecting defendant’s bare denial of those facts).


author: CUDAHY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Daniel L. GRIFFITH, Defendant-Appellant.
    No. 95-2244.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 17, 1996.
    Decided May 29, 1996.

      Norman R. Smith, Stephen Clark (argued), W. Charles Grace, Offiee of the U.S. Atty., Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.
    Lawrence J. Fleming, St. Louis, for Defendant-Appellant.
    Before POSNER, Chief Judge, and CUDAHY, and FLAUM, Circuit Judges.
   CUDAHY, Circuit Judge.

For more than ten years, Defendant Daniel Griffith worked in a managerial capacity for the Hal Lowrie entertainment organization. Lowrie’s organization ran a large network of nightclubs, which included country-western clubs, topless nightclubs and, beginning in 1985, brothels (“massage parlors”). In 1993, a federal grand jury returned indictments against several persons involved with the Lowrie enterprise. In a three-count indictment, Griffith was charged with violating the RICO statute (Racketeering Influenced and Corrupt Organizations), 18 U.S.C. § 1962(c), conspiracy to violate the RICO statute, 18 U.S.C. § 1962(d), and conspiracy to commit money laundering, 18 U.S.C. §§ 1956 and 371. On February 13, 1995, Griffith entered a plea of guilty to all three charges.

On appeal, Griffith raises three issues: First, he contests the district court’s denial of his motion to dismiss the money laundering count of the indictment. Second, he argues that the district court misapplied the Sentencing Guidelines in computing his sentence. Third, he disputes the district court’s rejection of his motion to invalidate the Sentencing Guidelines on constitutional and statutory grounds. We affirm the district court’s judgment in all three respects.

I. Factual Background

Griffith was employed by the Hal Lowrie organization for many years. Beginning in 1985, his primary duties were as National Director of a chain of topless nightclubs known as P.T.’s. However, he maintained involvement with the “massage parlors” which are the subject of this case. Griffith lived and worked in Denver, Colorado, while the “massage parlors” were located in Illinois in the St. Lords, Missouri, metropolitan area.

In late 1985 and early 1986, though residing in Denver, Griffith directed the remodeling of one of the houses of prostitution in Illinois and helped to select its manager. Griffith also was one of five individuals who received weekly cash payments of $2000, which were skimmed from the proceeds of the prostitution operations. These cash payments were often sent via Federal Express. However, Griffith sometimes hand-carried both his own and Lowrie’s shares of the skimmed cash back to Denver. Griffith knew that these funds were deiived from the prostitution businesses and was aware of the way in which the finances of that business were conducted, including the fact that the prostitutes made interstate telephone calls to secure approval of charge card payments for prostitution services.

The prostitution enterprises were aided in their endeavor to escape law enforcement efforts by widespread official corruption. Members of the Lowrie organization bribed various local government and law enforcement officials including the mayor of the Village of Brooklyn, an alderman, police officers and a state liquor control inspector. Griffith admitted in his guilty plea to having participated in the decision to pay the mayor of the Village of Brooklyn $250 per week in order to influence him not to take action against the Lowrie prostitution enterprise.

II. Motion to Dismiss the Money Laundering Count

Griffith moved to dismiss the money laundering count on two grounds, only one of which he presses on appeal. Specifically, he contends that his conviction of money laundering required the court to make a chain of statutory linkages which was so tenuous as to render the laundering statute’s application to his case constitutionally infirm. The chain of statutes invoked by the indictment leads from money laundering back to RICO and thence to the Travel Act. State prostitution offenses are predicate offenses for the Travel Act. Griffith argues that these statutes are ambiguous in their application to his conduct and, hence, that the rule of lenity demands that the money laundering count be dismissed. On appeal, Griffith adds the new argument that, in light of the Supreme Court’s recent Lopez decision, Congress lacks the authority to punish his participation in a crime, such as prostitution, which has traditionally been a matter of local concern. United States v. Lopez, — U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

Returning to Griffith’s statutory argument, we note that the federal money laundering statute reads, in relevant part:

(a)(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity—
(A)(i) with the intent to promote the carrying on of specified unlawful activity;
shall be sentenced [to a fine or a term of imprisonment].

18 U.S.C. § 1956.

The money laundering count of Griffith’s indictment alleged the use of various bank accounts in Illinois and Missouri, carrying the names of several legitimate or legitimate-appearing businesses, to handle the proceeds of the prostitution; the maintenance of various credit card merchant accounts in the same names for the same purposes; the use of interstate telephone calls to obtain approval of credit card transactions in payment for prostitution services; the use of Federal Express for the interstate transport of skimmed cash proceeds for Griffith and Lowrie in Denver; and Griffith’s personal carriage of skimmed cash to Denver for his personal benefit and for delivery to Lowrie.

Griffith objects to the statutory analysis which brings his state prostitution offenses within the ambit of the “specified unlawful activity” forming the basis of a money laundering charge. The money laundering statute elaborates “specified unlawful activity” in some detail. State prostitution offenses are not among the specified crimes. However, according to the statute,

(7) the term “specified unlawful activity” means—
(A) any act or activity constituting an offense listed in section 1961(1) of this title [with various exceptions];

18 U.S.C. § 1956(c)(7).

Turning to 18 U.S.C. § 1961(1) (which defines the predicate acts for a RICO violation), we note that the offenses listed there include “any act which is indictable under any of the following provisions of title 18, United States Code: ... section 1952 (relating to racketeering).... ” 18 U.S.C. § 1961(1)(B).

Section 1952 is the Travel Act, which provides:

(a) Whoever travels in interstate, or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to—
(1) distribute the proceeds of unlawful activity; or ...
(3) otherwise promote, manage, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform [any of the acts specified in sub-paragraphs (1), (2), and (3), shall be fined or imprisoned].

18 U.S.C. § 1952(a). The Travel Act provides its own definition of “unlawful activity,” which includes “any business enterprise involving ... prostitution offenses in violation of the laws of the State in which they are committed....” 18 U.S.C. § 1952(b).

Griffith’s state prostitution offenses, which involved the use of facilities of interstate commerce, seem to meet the definition of “unlawful activity” under the Travel Act. Travel Act violations are among the list of predicate offenses for a RICO charge. Any of these violations can, in turn, constitute the “specified unlawful activity” covered by the money laundering statute. Thus, Griffith, in using interstate facilities to conduct RICO affairs involving prostitution, and in carrying out financial transactions furthering the prostitution enterprise, subjected himself to a money laundering prosecution.

Griffith complains, however, that the indictment employed a sequence of tenuous statutory connections to convert a minor state offense into a major violation of federal law. In that respect, the breadth of the federal money laundering statute has engendered some criticism. While we have upheld convictions based on a stacking of statutes very much like that challenged here, we have voiced concern that these cases “demonstrate[] how an aggressive United States Attorney can use the money laundering statute as a means to take over from state prosecutors the prosecution of long-established state crimes and, in the process, secure more draconian sentences and increase the population of the already overcrowded federal prisons.” United States v. Mon tague, 29 F.3d 317, 318 (7th Cir.1994). See also United States v. Campione, 942 F.2d 429 (7th Cir.1991). Thus, Griffith’s complaint is not novel and has earlier evoked concern.

But, it is not our function to critique statutes — either alone or in combination. Congress, which, of course, is the statutory font, recently rejected an attempt by the Sentencing Commission to tie sentences for money laundering to sentences for the underlying criminal conduct. This approach would have reduced the sentences imposed in cases like this one. This refusal by Congress to adopt an ameliorative measure indicates an intent to impose strict punishment for money laundering, even when it is associated with relatively minor underlying offenses.

In any event, Griffith’s suggestion that the money laundering statute is either vague or ambiguous as applied to the facts of this case is simply unfounded. The statutory structure involved is admittedly somewhat complicated — it takes three steps to get from state prostitution to federal money laundering. But complication is not tantamount to unconstitutional vagueness. Here, each step in the statutory analysis is well-defined. The link between statutes is provided by the definitions of prerequisite unlawful activity in the respective statutes. In combination, these linked statutes provide a clear path from prostitution to money laundering. When each intermediate step in an analytical chain is clear and unambiguous, the final step, though perhaps a surprise, is clear and unambiguous as well.

In this case, Griffith’s involvement with the Lowrie organization exposed him to federal prosecution and this is not even surprising. Griffith’s criminal activity lies near the core of longstanding congressional concerns. Congress has been concerned with the operation of interstate prostitution enterprises at least since its passage of the Mann Act, now at 18 U.S.C. §§ 2421-24, in 1910. Bribery of local law enforcement and government officials is just the sort of corruption connoted by the term “racketeering” and targeted by various federal statutes. Most pertinently, the Lowrie organization commingled funds from its legitimate and its illegal businesses and funneled proceeds of illegal activities through legitimate financial channels. This process concealed the source of the funds and coincided quite well with popular images of “money laundering.” The extensive, multi-state nature of the illegal activities of the Lowrie enterprise thus suggests that the spirit, as well as the letter, of the money laundering statute was properly served in this case.

Further, we reject Griffith’s argument that the relationship of his activities to interstate commerce is too tenuous to support federal jurisdiction under Lopez. One can imagine a scenario where a local prostitution offense might lack a federal dimension. Here, however, unlike the gun possession near a school in Lopez, Griffith’s actions in their essence involved interstate commerce.

III. Application of the Sentencing Guidelines

Griffith argues that the district court misapplied the Sentencing Guidelines. He was sentenced using a base offense level of 29 for the RICO counts. Because of the Guideline multiple-count sentencing provisions, this base offense level was actually derived from the money laundering guideline. On the money laundering count itself, Griffith was sentenced at the statutory maximum of five years (which was less than his sentence as finally computed at level 29). He contends that it is unfair that he should receive a sentence, calculated from the money laundering guideline, which is longer than the statutory maximum for money laundering.

Griffith’s sentence was computed using the grouping provisions of the Sentencing Guidelines. USSG §§ 3D1.1, 3D1.2, 3D1.3. These provisions dictate the extent to which multiple convictions result in concurrent, rather than consecutive, sentences. The basic philosophy of the grouping provisions is to assign sentences based on the harm inflicted, rather than on the way in which the prosecutor framed the indictment.

Because all three counts of which Griffith was convicted involved “substantially the same harm” they were all appropriately included in a single group. Following the mandate of the Guidelines, the sentencing court then used “the offense guideline that produces the highest offense level” to determine the appropriate “total punishment” for all of Griffith’s criminal conduct. USSG § 3D1.3. The highest offense level among Griffith’s three counts of conviction corresponded to the money laundering count. Griffith’s “total punishment” was based on this offense level of 29.

Once the total punishment has been determined according to the grouping rules, the Guidelines require the imposition of an aggregate sentence corresponding to the total punishment. The Guidelines specify precisely how the total punishment is to be allocated to the counts of conviction. Ordinarily, when a single offense level is assigned to a group of counts, “except as otherwise required by law (see § 5Gl.l(a), (b)), the sentence imposed on each ... count shall be the total punishment ...” and the sentences run concurrently. USSG § 5G1.2(b).

Because, in Griffith’s ease, the total punishment corresponding to offense level 29 was greater than the statutory maximum for the money laundering count, the “except as otherwise required by law” proviso was invoked. According to USSG § 5Gl.l(a), “[w]here the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.” Following these explicit guideline instructions, the sentencing court imposed the total punishment on each of the RICO counts and the statutory maximum on the money laundering count.

The Guideline text leaves no doubt as to the correctness of this interpretation of the multiple-count sentencing provisions. The Commentary to § 5G1.2 (which is, of course, binding on the federal courts) reiterates that “[t]o the extent possible, the total punishment is to be imposed on each count.”

Griffith maintains that, in spite of this, the sentencing court’s interpretation should be rejected because it “deprive[s] him [of] a sentencing limited by the statutory maximum set by Congress.” Def. Br. at 27 n. 3. He argues basically that, since the offense level which dictated his total punishment original ed with the money laundering guideline, he is, in effect, being subjected to a sentence for money laundering in excess of the statutory maximum (even though the sentence was technically imposed on the RICO counts). This argument, while seemingly plausible, is fallacious. Griffith was not convicted solely of money laundering. The sentence imposed upon him, while it corresponds to the base offense level for the money laundering count, is imposed as a total punishment for all of his criminal conduct.

The aggregate computation of this sentence as higher than the statutory maximum for money laundering follows directly from the fact that the money laundering guideline imposes base offense levels which frequently exceed the statutory maximum for the offense. As noted, Congress has explicitly rejected a recent proposal by the Sentencing Commission to reduce the money laundering offense levels to correspond more closely to those assigned to the underlying criminal activity. Since the current, relatively high offense levels come into play only when a defendant has, as here, been convicted of multiple, related offenses, one can only infer from the Congressional action that high sentences for money laundering are consistent with Congressional intent in these multiple-count circumstances.

Thus, the sentences imposed by the district court follow from a correct application of the Sentencing Guidelines, were within the statutory maximum for each offense and were, so far as we can discern, in accord with the intent of Congress.

IV. Constitutionality of the Sentencing Guidelines as Applied to Griffith

Griffith’s final argument on appeal is that the Sentencing Commission’s actions in promulgating the Sentencing Guidelines are invalid in various respects: that the Sentencing Commission’s actions have, in practice, violated the separation of powers; that the Commission’s failure to promulgate rules for its proceedings violates the due process clause; that the Guidelines violate the bicameral passage and presentment requirements; and that the Guidelines are inconsistent with the statutory mandates which dictate the powers of the Commission.

A. Separation of Powers

The Supreme Court upheld the Sentencing Guidelines and the Commission in the face of a separation of powers argument in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Griffith argues, however, that the functioning of the Commission since that decision mandates that the separation of powers question be reevaluated in two respects. First, he claims that, in practice, the functioning of the Sentencing Commission has undermined its characterization as a rulemaking body within the judiciary and revealed the Commission to be a “Junior Varsity Congress.” Second, he contends that the executive branch, through its prosecutors, exercises undue sway over the Sentencing Commission’s activities.

1. The Sentencing Commission as “Junior Varsity Congress”

Griffith’s argument that the Commission is inappropriately engaged in the promulgation of legislation is not significantly different from the proposition advanced and rejected in Mistretta. While Griffith seeks to distinguish his argument on the grounds that it is addressed to the actual functioning of the Sentencing Commission rather than to its inherent structure, he does not succeed in showing that there is some aspect of the current situation that would render the reasoning of Mistretta no longer applicable.

Griffith repeats the argument that the Sentencing Commission exercises powers properly preserved to the legislature. He does not, however, demonstrate that its exercise of legislative power is more extensive than already acknowledged by the Supreme Court in Mistretta. The Court was well aware, when it decided Mistretta, that the promulgation of Sentencing Guidelines was not entirely analogous to the promulgation of rules of procedure and, further, that the Commission’s work would be “significantly political.” Mistretta, 488 U.S. at 393, 109 S.Ct. at 666. However, the Court noted that “[o]ur separation-of-powers analysis does not turn on the labeling of an activity as ‘substantive’ as opposed to ‘procedural’, or ‘political’ as opposed to ‘judicial.’ ” Id.

Instead, the Court based its ruling on its conclusion that “locating the Commission within the Judicial Branch pose[s] no threat of undermining the integrity of the Judicial Branch or of expanding the powers of the Judiciary beyond constitutional bounds by uniting within the Branch the political or quasi-legislative power of the Commission with the judicial power of the courts.” Id. This conclusion was based, in large degree, on the fact that the power to determine sentences had always resided in the judicial branch and on the extent of Congressional oversight of the Commission’s activities.

Griffith’s arguments do not call into question the Court’s conclusion that the Commission would not tread on the toes of the Congress. Specifically, he argues that, because the Commission has been unresponsive to the concerns of the judiciary and because Sentencing Guidelines eases now compose a substantial fraction of the federal court docket, the expectations upon which the Mistretta decision rested are now exposed as unrealistic. We fail to see how either of these specific criticisms advances Griffith’s argument.

Griffith’s argument is that the Commission (which is part of the judicial branch) is exercising legislative authority properly reposed in Congress. Any failure of the Commission to respond to judicial criticism of the Guidelines is not a separation-of-powers matter, however, since both the Commission and the Judiciary reside in the same branch. In any event, at least without further elaboration, the argument that the Commission does not respond to judicial concerns seems plainly untenable, given the fact that three of the Commission’s seven members are federal judges.

The observation that federal judges now expend a substantial amount of effort interpreting the Sentencing Guidelines is true but immaterial. The thrust of this argument is apparently that the frequency with which the Guidelines are litigated reveals their importance. This is not a new insight. The sentencing decision has always been of great importance and has always been made by the judiciary. In the past, sentencing decisions were rarely litigated due to their highly discretionary nature. The frequent litigation of Sentencing Guidelines issues does not indicate that the judiciary has invaded a field formerly occupied by Congress or that Congress has improperly delegated its own legislative authority to the judiciary. Indeed, Congress now exercises more authority over sentencing decisions, through its ability to reject the Commission’s proposals, than it did in the pre-Guidelines era.

In sum, Griffith has not succeeded in advancing any persuasive arguments for departing from the Supreme Court’s prior analysis of the separation of powers issue as applied to the “legislative” power of the Commission. Id. at 380-97, 109 S.Ct. at 659-68.

2. Prosecutorial Influence on Sentencing

Griffith also argues that the executive branch, through its prosecutors, holds inappropriate sway over the Sentencing Commission, and, hence, over the judicial branch. Griffith did not raise this argument in the district court and the government argues that it is forfeited on appeal. A successful allegation of prosecutorial intrusion into the sentencing process might survive plain error review, however. In any event, though he raises an interesting and important issue, which has been the subject of much scholarly comment, Griffith’s particular arguments in this regard cannot prevail.

Griffith first complains that the Guidelines have, on the whole, increased the severity of criminal sentences and alleges that “the Commission has come to be widely perceived as closely identified with the Department of Justice, and as little more than an arm of that department.” Def. Br. at 41. While it may be the case that prosecutors on the whole favor increased sentences, Griffith presents us with no rationale nor anything beyond a supposed public perception that links the higher sentences resulting from the Guidelines to that prosecutorial preference.

Next, Griffith points to USSG § 5K1.1, which requires a motion from the government before a downward departure for “substantial assistance to authorities” may be granted. He argues that the result of this guidelines provision is that “[without the ‘permission’ of the U.S. Attorney, the courts are required to apply the rigid criteria set out in the guideline manual and impose the often draconian sentences provided therein.” Def. Br. at 42. However, the departure for substantial assistance is only one of a number of provisions which allow judges to depart from the rigid application of the guidelines and it is the only type of departure which the government must approve. We might agree that the Guidelines, taken as a whole, constrain the discretion to depart in an undesirable manner. However, the decision to condition a departure for substantial assistance to the government on a prosecutorial motion does not necessarily indicate undue prosecutorial influence on the framing of the Sentencing Guidelines. How else would a court determine whether a defendant had “substantially assisted” the government if not to ask the government’s representative? Thus, the existence of this departure provision does not support Griffith’s argument that the Sentencing Commission is dominated by the executive branch.

B. Procedural Due Process

Griffith next argues that the failure of the Commission to adopt written rules and regulations governing its procedures violates due process. This argument was not specifically raised below, Griffith having raised merely a broad due process challenge and the government argues that the argument has been forfeited. In any event, the argument fails on the merits.

Griffith contends that the failure of the Commission to enact rules or regulations has allowed it to be arbitrary and capricious in fashioning the Guidelines and that he, in particular, has suffered from the Commission’s failure to follow the statutory directive to “insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense....” 28 U.S.C. § 994(j).

Griffith’s contention that the Sentencing Reform Act requires the Commission to promulgate rules and regulations governing its procedure is simply unsupported. He refers, in this regard, to 28 U.S.C. § 994(o). Nowhere does that subsection mandate the adoption of procedural rules by the Commission. As the government points out, the Commission is authorized to adopt such rules, 28 U.S.C. § 995(a)(1), if necessary. The Commission has apparently not found it necessary to do so. The Congressional approval requirement closely cabins the discretion of the Commission in designing the Guidelines. Thus, the Commission need not promulgate rules for its proceedings in order to provide due process.

In any event, while the Sentencing Reform Act directs that sentences other than imprisonment are appropriate for first offenders who have committed relatively minor crimes, Congress’ rejection of the money laundering guideline amendment demonstrates that it apparently does not view money laundering as one of these minor crimes. Act of October 30,1995, P.L. 104r-38 (1995).

C. Bicameral Passage and Presentment Challenges

The argument that the Sentencing Guidelines violate the Presentment Clause has been previously rejected by this court as inconsistent with Mistretta. United States v. Macias, 930 F.2d 567 (7th Cir.1991). In light of this prior precedent, Griffith’s argument on this point is patently meritless.

D. Statutory Challenges

Lastly, Griffith argues that the Guidelines violate various statutory mandates intended to limit the Commission’s discretion. These include: the requirement that the Guidelines be formulated to minimize the likelihood that prison capacity will be exceeded, 28 U.S.C. § 994(g); the requirement that first offenders who have committed relatively minor offenses receive non-prison sentences, 28 U.S.C. § 994(j); the requirement that sentences be no greater than necessary to comply with the purposes of punishment, 18 U.S.C. § 3553(a); the requirement that no limitation be placed on the information about an offender which may be considered by a court in imposing sentence, 18 U.S.C. § 3661.

As the government points out, Griffith fails to explain how he has been specifically injured by any of these alleged failings of the Commission and thus lacks standing to pursue them. The suggestion that the money laundering guideline violates 28 U.S.C. § 994(j) by not prescribing a sentence other than a term of imprisonment for cases such as his is, as already noted, contradicted by Congress’ rejection of the Commission’s attempts to provide lower sentences for that offense.

V. Conclusion

In conclusion, we affirm Griffith’s conviction and sentence. The district court correctly refused to dismiss the money laundering count, since the statutes involved were neither vague nor ambiguous. The court also correctly applied the grouping provisions of the Guidelines in calculating Griffith’s aggregate sentence and the sentences imposed on the respective counts were proper. Finally, we reject, as inconsistent with Mistretta, Griffith’s arguments that the Sentencing Guidelines are unconstitutional as applied to Ms case.

Affirmed.

      . More specifically, Counts 1 and 2 were first grouped according to § 3D 1.2(a) and then that group was further grouped with Count 3 according to § 3D 1.2(d).

      . If, as was not the case here, the maximum allowable penalty for the count carrying the highest statutory maximum is insufficient, sentences are to be imposed consecutively to the extent necessary to achieve the required total punishment. USSG § 5G1.2(d). Griffith makes reference, as apparently the government did in the course of the sentencing proceedings, to this subsection. However, this subsection has no application to this case, since the statutory maximum for the RICO count was sufficient to encompass the calculated total punishment.

      . He does not argue that the Commission usurps the judicial authority to impose sentence.


author: FLAUM, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Trance L. BURSEY, Defendant-Appellant.
    No. 95-2654.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 5, 1996.
    Decided May 30, 1996.

      Thomas Edward Leggans (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.
    Brian D. Lewis (argued), Marion, IL, for Defendant-Appellant.
    Before CUDAHY, FLAUM, and RIPPLE, Circuit Judges.
   FLAUM, Circuit Judge.

On December 6, 1994, a jury convicted Trance Bursey of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Bursey was sentenced to 36 months imprisonment. He appeals his conviction, claiming that the jury was improperly allowed to hear certain testimony and that, at a minimum, a limiting instruction should have been provided regarding this testimony. We affirm the conviction.

I.

Around 4:00 p.m. on August 30, 1994, police officers James Temple and Lynn Trella were on patrol in their squad car in the 400 block of East Chestnut in Carbondale, Illinois, an area known for drug trafficking. As they emerged from an old alley in the area, they observed one man walking toward another man. Officer Temple testified that he immediately recognized the first man as Trance Bursey, whom he knew by name. Both officers testified that when this man looked up and realized that they were there watching, he threw what looked like a white piece of paper or a white object to the ground and took off. Officer Temple then pursued the man on foot, while Officer Trella went over and recovered the white object, which turned out to be seven individually-packaged rocks of crack cocaine wrapped up in white paper. Although Officer Temple was unable that day to find the man who threw down the white package, a warrant was issued for the arrest of Trance Bursey, based upon Temple’s identification of him as the man who threw down the cocaine package.

The main issue at trial was Officer Temple’s identification of Bursey. Temple testified on direct examination that at the time of the encounter, he’d had over 20 previous contacts with Bursey, including custodial contacts. When defense counsel objected to the government’s question about what was meant by a “custodial contact,” the district court responded as follows:

Okay. The Court’s going to overrule the objection, but the Court’s going to instruct the jury that the testimony that Officer Temple, I believe, is about to give about the custodial contacts with the defendant is being admitted for a limited purpose only to show his knowledge of the defendant and for purposes of identification and is not to be construed as a propensity by this defendant to have committed this crime or any other crimes....

Temple then testified that the custodial contacts were when Bursey had been either briefly detained or arrested and that he had been personally involved in four arrests of Bursey. Temple emphasized his opportunity to view Bursey closely during these arrests. Temple also testified to various other personal contacts with Bursey during his police work, including times when Bursey was a victim.

Temple acknowledged on cross examination that he was 30 to 40 feet away when he first spotted the man with the white package and that he only observed his face for about 10 seconds. Officer Temple maintained, however, that he had known Bursey for four to five years and that there was no doubt in his mind that Trance Bursey was the man he observed throwing down the white package that day. Later in this cross examination, defense counsel posed the following question to Temple: “Would you consider [Trance Bursey] to be street smart.” Temple responded affirmatively. Defense counsel acknowledged at oral argument that it was his theory, and that he argued to the jury, that someone who was “street smart” wouldn’t just drop his drugs right in front of the cops, especially if he suspected he’d been recognized.

The government began its redirect by asking, “Officer Temple, upon what do you base your assessment that the defendant is street smart?”. When Officer Temple started to testify about various police investigations of Bursey for criminal activities, defense counsel made a hearsay objection. The court determined, however, that the defense had “opened the door” and overruled the objection. Temple then testified that the police department had received information that Bursey was involved in selling drugs and that he was a member of a group called “the blunt squad,” whose members were involved in drug distribution and some of whom were being prosecuted in federal court. Temple also stated that he had investigated a number of shooting cases in which Bursey was “involved” and that Bursey was a victim in at least one of these shootings. Finally, Temple testified that on one occasion when he stopped Bursey, Bursey identified himself as a member of the Black Gangster Disciples. Temple concluded by saying that all of these contacts combined led him to believe that Bursey was “street smart.” Defense counsel did not offer any further objection during this testimony.

Bursey later testified that he was not the man Temple saw and that he had spent the entire day in the home of Quillia Gould. Ms. Gould testified that she saw Bursey at her home at 12:30 p.m. and again at 5:00 p.m., but she could not account for his whereabouts during the intervening hours. Bursey also testified that he had never sold crack cocaine and that there were other kids in the neighborhood who looked like him. Bursey was 18 years old at the time of the incident.

II.

On appeal Bursey challenges only Officer Temple’s testimony in response to the government’s inquiry into why he believed Bursey was “street smart.” Bursey claims that 1) the testimony was inadmissible hearsay; 2) it was unduly prejudicial; and 3) at a minimum, a limiting instruction should have been given regarding the testimony.

We review a district court’s admission of evidence under an abuse of discretion standard. United States v. Henderson, 58 F.3d 1145, 1150 (7th Cir.1995). “Hearsay” under Rule 801 “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801. Temple’s testimony about his personal observations of and encounters with Bursey during his police work do not qualify as out-of-court “statements” under the hearsay rules. What he saw during these episodes involved neither “(1) an oral or written assertion or (2) nonverbal conduct of a person ... intended by the person as an assertion.” Id.

Furthermore, statements that are offered not to prove “the truth of the matter asserted,” but for some other legitimate purpose, do not qualify as hearsay. Id.; United States v. Robinzine, 80 F.3d 246, 252 (7th Cir.1996). The context of the government’s “street smart” question reveals that it was asked in order to understand the basis for Officer Temple’s conclusion — elicited during defense counsel’s cross-examination — that Bursey was “street smart.” The Court concluded that defense counsel had opened the door to this inquiry by bringing up the issue. We cannot conclude that the trial court abused its discretion by allowing questioning on the factual basis of Temple’s opinion, although the Rules of Evidence do not simply evaporate when one party “opens the door on an issue.” Cf. United States v. Haywood, 70 F.3d 507, 510 (7th Cir.1995) (affirming finding that party had “opened the door”). In this case, however, the potential evidentiary problem with Temple’s damaging testimony was not its “hearsay” nature. Because the testimony was offered not for its “truth value,” but for a distinct and legitimate purpose, i.e., to establish the basis for Officer Temple’s conclusion that Bursey was “street smart,” the testimony was not hearsay. Id.

Bursey also claims that the “street smart” testimony consisted of inadmissible “prior bad acts” testimony under Rules 403 and 404(b). Fed. R. Evid. 403, 404(b). Admission of such testimony is appropriate under these Rules if:

(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’s 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. Tylkowski, 9 F.3d 1255, 1261 (7th Cir.1993) (quoting United States v. Zapata, 871 F.2d 616, 620 (7th Cir.1989)). Bursey did not make either objection at trial, however, so we evaluate his claims under the plain error standard. United States v. Penny, 60 F.3d 1257, 1264 (7th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996). Under this standard Bursey must demonstrate “that there was error, that the error was plain, that the error affected his substantial rights, and that the error seriously affected the fairness, integrity or public reputation of the judicial proceedings.” Id. (citing United States v. Olano, 507 U.S. 725, 730-37, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993)) (other citations omitted). Because Bursey makes no argument regarding the second and third Tylkowski factors, we assume that he concedes these factors were met, and we do not address them further.

As noted earlier, the challenged testimony was elicited in response to a specific question about why Officer Temple thought Bursey was “street smart.” The district court’s ruling that the defense had opened the door on this issue reveals that the evidence was admitted for the purpose of probing the factual basis of Temple’s opinion. Thus the evidence was properly directed toward a matter in issue other than Bursey’s propensity to commit crimes. Parts of this testimony were also highly relevant to the major issue in dispute at trial: whether Bursey was the person observed by Temple dropping a package of crack cocaine on that August afternoon. Temple’s “street smart” testimony farther substantiated his testimony on direct about his previous personal contacts with Bursey. Rule 404(b) specifically provides that evidence of prior crimes may be admissible for the purpose of “identity”; and Temple’s contacts with Bursey while investigating certain shootings and when he stopped him on the street are highly probative regarding Temple’s ability to accurately identify Bursey.

Bursey’s Rule 403 argument that at least some parts of Temple’s “street smart” testimony were substantially more prejudicial than probative is probably his strongest argument. Temple’s testimony about how Bursey was “involved in” certain shootings and that Bursey had once identified himself as a gang member, as well as Temple’s vague statements about how the police department had received information about Bursey being involved in drug dealing and his membership in a group whose members included drug dealers who were being federally prosecuted — when the state could produce no direct evidence of any previous connection between Bursey and drug selling — could well be found by a district court to be unfairly prejudicial under Rule 403. Bursey’s counsel never objected under Rule 403, however, and we cannot say that it was plain error for the court to allow the testimony. Bursey essentially argues that the testimony affected his right to a fair trial, but he has provided no specific argument how any potential error in allowing the testimony “seriously affected the fairness, integrity or public reputation of the judicial proceedings.” Penny, 60 F.3d at 1264 (citing Olano, 507 U.S. at 732-37, 113 S.Ct. at 1776-79). We find that it did not. The main issue at trial was whether the man that Officer Temple saw dropping the crack cocaine was indeed Trance Bursey. The evidence was undisputed that Temple was very familiar with Bursey’s appearance at the time and knew him by name. Bursey himself acknowledged more than six (and perhaps as many as 20) prior contacts with Officer Temple. With this powerful evidence of Temple’s ability to accurately recognize Bursey, we cannot say that any unduly prejudicial remarks made by Temple seriously affected the fairness or integrity of the trial, particularly when it was Bursey’s own counsel who brought up the “street smart” theme. Thus we conclude that it was not plain error to allow the testimony, and the district court did not abuse its discretion in doing so.

Finally, Bursey challenges the district court’s failure to give a limiting instruction to the jury explaining the limited purposes for which the evidence was admitted. Bursey’s counsel did not propose any such limiting instruction, however, and he specifically consented to all of the instructions offered by the court. Thus we review his jury instruction challenge for plain error only. United States v. Baker, 78 F.3d 1241, 1246 (7th Cir.1996) (citation omitted). We find that for the same reasons that it was not plain error for the court to allow the “street smart” testimony, it was not plain error for the court to fail to give a limiting instruction on the testimony.

For the foregoing reasons, Bursey’s conviction is

Affirmed.

      . The other issue at trial was whether the recovered cocaine base, which totalled only 1.5 grams, was for distribution purposes. The defendant, however, makes no challenge to his conviction on this basis.

      . When defendant Bursey took the stand, he admitted that he could remember “over six” previous contacts with Officer Temple. He acknowledged that he had earlier said there were 20 prior contacts, but stated that if there were 20 he no longer remembered all of them.

      . Defense counsel could have requested the trial court to admonish the jury that the testimony was being offered only for the limited purpose of establishing the basis of Temple’s inference that Bursey was street smart. The trial court's instruction to the jury during Officer Temple’s initial testimony regarding "custodial contacts”— that the testimony was being admitted only as evidence of Temple's knowledge of the defendant and that it could not be considered as demonstrating any sort of criminal propensity on the part of the defendant — strongly suggests that the trial court would have provided such an admonition if requested to do so.

      . Under Rule 403, relevant evidence can be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." Under Rule 404(b), “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, preparation, plan, knowledge, identity, or absence of mistake or accident...."