UNITED STATES of America, Plaintiff-Appellee, v. Cortez RHODES, Defendant-Appellant, 229 F.3d 659

EASTERBROOK, Circuit Judge. Two of the three issues raised in Cortez Rhodes’s appellate brief were withdrawn in his reply brief. The only argument still requiring resolution is the claim that the district judge abused her discretion in admitting evidence that Rhodes possessed a pellet gun when arrested and had carried other weapons before. Rhodes stood trial on charges of importing and conspiring to distribute cocaine. Testifying in his own defense, Rhodes denied all important elements of the accusation against him.

On cross-examination the prosecutor asked Rhodes whether he owned the pellet gun found under his bed at the time of his arrest and whether he had carried a .38 semiautomatic handgun shortly before his arrest. After objections to these questions were overruled, Rhodes gave affirmative answers. He contends on appeal that the district judge should have excluded the evidence under Fed.R.Evid. 403 to avoid a risk of prejudice exceeding the probative force of the evidence; his brief also suggests that evidence of weapon possession and ownership was excluda-ble under Fed.R.Evid. 404(

b) as proof of other bad acts offered to show a propensity to commit crimes. But neither Rule 403 nor Rule 404(

b) was mentioned in the district court. Instead Rhodes’s objection was based on Fed.R.Evid. 402: he argued that gun ownership is not relevant to the charges. This is the ground on which his appeal must be evaluated. Fed.R.Evid. 103(a)(1). Evidence is relevant whenever it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Guns are among the tools of the drug trade. See United States v. Wyatt, 102 F.3d 241, 248 (7th Cir.1996).

To make a charge less believable, a person charged with distributing cocaine could offer into evidence the fact that he did not own or carry guns, just as he could offer evidence that he did not own scales or possess any drug paraphernalia. A person who lacks wrenches probably is not a plumber; a person who lacks scales and guns is less likely to be a drug dealer (all other things equal) than one who possesses these items. Evidence relevant to undercut a charge is no less relevant to bolster it; the standard under Rule 401 is symmetric.

This is clear for wrenches; even though most wrench owners are not plumbers, ownership of wrenches still would help a jury decide whether the person is a plumber. Equally so with guns and drugs, even though most gun owners are not drug dealers. That one of Rhodes’s guns fired pellets rather than bullets does not defeat relevance; weapons may be used to intimidate as well as to kill, and the gun found under the bed may have been able to fulfil that function. See McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986).

Evidence of handgun ownership also carries a potential for unfair prejudice and therefore may be excluded under Rule 403 even if it is relevant. (Exclusion of these weapons under Rule 404(

b) would not have been appropriate, however; the evidence was offered to prove that Rhodes committed the crimes with which he was charged, not that he had committed some other crime in the past or had a propensity to violate the law.) Rule 403 permits the district judge to exercise discretion about the likely net effects of the evidence. But in this case the judge was not asked to exercise discretion; she was asked to make a simple relevance decision. Evidence need not be powerful to be relevant; “any tendency” is enough.

The district judge did not abuse her discretion in handling the only question she was asked to decide, and the implicit resolution of the Rule 403 balancing cannot be deemed plain error under Fed.R.Evid. 103(d). Affirmed.