United States v. Lee

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 08-4427
_____________

UNITED STATES OF AMERICA

v.

JOSEPH R. LEE,
Appellant
________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 06-cr-162)
District Judge: Honorable Donetta W. Ambrose
_______________

Argued January 29, 2010

Before: RENDELL and JORDAN, Circuit Judges, and
PRATTER, District Judge.*

(Filed : July 14, 2010)

*Honorable Gene E.K. Pratter, United States District Court
Judge for the Eastern District of Pennsylvania, sitting by
designation.
Renee Pietropaolo [ARGUED]
Federal Public Defender’s Office
1500 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
Counsel for Appellant

Robert L. Eberhardt
Rebecca Ross Haywood [ARGUED]
United States Attorney’s Office
700 Grant Street - #4000
Pittsburgh, PA 15219
Counsel for Appellee
_______________

OPINION OF THE COURT
_______________

JORDAN, Circuit Judge.

Joseph R. Lee was convicted in the United States District
Court for the Western District of Pennsylvania of being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),
and was sentenced as a career offender to 120 months’
imprisonment. He appeals both the conviction and his sentence.
For the following reasons, we will affirm Lee’s conviction but
vacate his sentence and remand for re-sentencing.

2
I. Background

A. The Stop

On June 27, 2005, Lieutenant Kevin Kraus of the City of
Pittsburgh Police Department traveled to the 2400 block of
Webster Avenue in the Hill District of Pittsburgh, Pennsylvania
to investigate a homicide that had occurred there the day before.
Kraus was in an unmarked police car when he observed Lee,
driving a blue Jeep Grand Cherokee, run a stop sign.1

Kraus activated his siren and followed Lee to stop him
for the traffic violation. Lee abruptly pulled over, and,
according to Kraus, began making “rapid, suspicious
movements,” and reaching “down towards his torso area” as
Kraus approached the car on foot. (Id. at 349.) All of the
windows of the Jeep were down and the sunroof was open.
Kraus scanned the car, and noticed a “rather large black heavy
coat ... [with] a distinctive flap on the top” in the backseat of the
Jeep. (Id. at 351.) He also noticed that the coat “appeared to be
partially wrapped around ... a long, narrow object.” (Id. at 351-
52.) He took particular note of the coat because the temperature
was over 90 degrees that day. Kraus further observed that Lee
was wearing a tan bullet-proof vest and was not wearing a shirt.
Lee volunteered that he had been trying to take off the bullet-
proof vest. Kraus ordered him to raise his hands above his head

1
Lee has never been a suspect in the murder investigation, and
“just happened to be driving down the same block” the day after
the murder. (App. at 422.)

3
and place them where Kraus could see them. According to
Kraus, at that moment, he saw what he believed to be a black
semi-automatic pistol lying on Lee’s right thigh. After seeing
the object, Kraus drew his own gun and told Lee: “Get your
hands in the air. Don’t move.” (Id. at 353-54.) In response,
Lee grabbed the steering wheel, said that he had to go, and sped
away from the scene.

Kraus called the police dispatcher, reported that he had
an emergency, and provided a description of Lee and the Jeep.
Shortly thereafter, Kraus learned that another officer had found
a Jeep Grand Cherokee matching the description of Lee’s car.
It was in a parking lot at the rear of the Christopher A. Smith
Terrace Apartments (the “Apartments”), about a tenth of a mile
from where Kraus had stopped Lee. Lee later stipulated that he
abandoned the Jeep where the police found it.

B. The Search

Kraus went to the parking lot at the Apartments and
identified the Jeep as the one that he had earlier stopped and in
which Lee had fled. All the windows were still down and the
sunroof remained open. The bullet-proof vest was lying on the
passenger side of the vehicle. However, the coat and long
slender object that Kraus remembered seeing in the backseat
were no longer there. Four other officers were at the scene to
aid Kraus in the investigation. During a search of the area, one
of them, Kevin Faulds, found an AK-47 assault rifle beside a
fence separating the Apartments from the next door Francis
Court Housing Complex (the “Housing Project”). Kraus joined
Faulds by the fence and observed the AK-47 partially covered

4
in a black coat with a distinctive flap, lying against the fence.
Kraus identified the black coat as the one he had seen in Lee’s
Jeep.

A police bloodhound named Digger and his handler,
Officer Rudolph Harkins, soon arrived at the scene. Kraus
informed Harkins that the other officers had already located the
Jeep, rifle, and coat. Harkins gave Digger the scent of the
Jeep’s driver by wiping the driver’s seat with a swab, offering
the swab for Digger to smell, and giving the dog a command to
track the scent. Digger then went down a flight of steps,
through a parking lot, and came to within ten to fifteen inches of
the rifle and the coat. According to Harkins, Digger then
“veered to the right along the fence, [and] went down the fence
line approximately 20, 25 feet.” (App. at 458.) Digger found an
area of the fence that had been ripped open, went through the
opening, and continued towards the Housing Project on the
other side of the fence. He stopped in front of the door of a
vacant building in the Housing Project, and, at that point, circled
and sat down, indicating that he had lost the scent. The building
was searched, but Lee was not found.

C. The Arrest

Approximately two weeks later, on July 12, 2005, Kraus
learned that fellow police officers had caught sight of and were
pursuing Lee. They finally found him hiding in an apartment.
No weapons or contraband were found on Lee at the time of his
arrest, nor in the apartment where he was found. The police
arrested him, took him to an interview room at the police station,
and gave him Miranda warnings. He signed a form waiving his

5
Miranda rights, and Kraus proceeded to interview him. Lee
denied having any guns in his car when Kraus stopped him.
However, he acknowledged that he had been wearing a bullet-
proof vest. He said that he had started to take off the vest as
Kraus approached the car because he wanted to create a
diversion so that Kraus would not see a bag of marijuana that
was in the car. Lee further explained that he drove away when
Kraus drew his gun because he thought Kraus had drawn the
gun in reaction to seeing the bag of marijuana. Kraus told Lee
that he had not seen any marijuana but rather had seen a black
semi-automatic pistol on Lee’s lap. Lee responded that what
Kraus had seen was actually a “black and silver cell phone flip-
style open and extended on his lap.” (App. at 414.)

According to Kraus, Lee “insisted that he does not
typically own or carry guns. However, he did state that he had
access to a lot of guns and would use them against anyone who
threatens him or his family.” (Id. at 417.) Lee also said that he
had previously shot at a man named Ernest “Pickles” Harris and
that there was a “long time, ongoing violent feud” between their
two families. (Id.) Finally, while Lee insisted that he did not
have any weapons with him during the traffic stop two weeks
earlier, he admitted fleeing when Kraus had tried to stop him on
an earlier occasion in 2000 or 2001 when Lee did have guns in
a vehicle.

D. Procedural History

On May 3, 2006, a grand jury in the Western District of
Pennsylvania returned a one-count indictment charging Lee with
being a felon in possession of two firearms, a rifle and a pistol,

6
in violation of 18 U.S.C. § 922(g)(1).2 The rifle referred to in
the indictment is the AK-47 that was found lying by the fence
under a black coat, near the location of Lee’s abandoned car.
The pistol is what Kraus had allegedly seen on Lee’s lap,
although no such pistol was ever recovered.

Prior to trial, Lee filed several motions, including a
motion to suppress audio tapes of his interviews, a motion to
exclude the bloodhound evidence and for a Daubert hearing to
test the admissibility of that evidence, a motion under Rule
404(b) to exclude the evidence of the bullet-proof vest and Lee’s
interview statements to Kraus, and a motion for judgment of
acquittal with regard to the pistol on the jurisdictional ground
that the pistol was not a firearm in or affecting interstate
commerce. With the exception of a limited portion of the

2
The indictment did not designate separate counts and so
appears in form to be a single count. 18 U.S.C. § 922(g)(1)
provides:

It shall be unlawful for any person ... who has been
convicted in any court of [] a crime punishable by
imprisonment for a term exceeding one year ... to ship or
transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1)

7
404(b) motion that is not relevant to this appeal, the District
Court denied all of Lee’s motions.

At trial, over Lee’s objection, the government introduced
the statements that Lee made during his interview with Kraus
and evidence that Lee was wearing a bullet-proof vest when he
was stopped. Additionally, over objection, the dispatch tapes
were played, and a transcript was provided to the jury. Finally,
over objection, the District Court admitted evidence of Digger’s
efforts to track Lee. However, in light of a dispute over whether
Digger had alerted at the coat and rifle, the Court noted that the
government “agreed to eliminate any reference in the testimony
that Digger paused” when he reached them. (App. at 2.)

At the close of the government’s case, Lee moved for
judgment of acquittal with respect to his alleged possession of
the pistol. Even assuming that what Kraus had seen was a
pistol, Lee argued, there was no evidence that the pistol had ever
traveled in interstate commerce, as is required under 18 U.S.C.
§ 922(g). The Court denied the motion, and denied it again
when defense counsel renewed it at the close of all evidence.

Throughout trial, Lee’s defense with regard to the rifle
was that it had never been in his Jeep and that he was not the
person who disposed of it. Specifically, “[t]he defense (1)
attacked the reliability of [Kraus’s] observations, (2) offered
evidence that others had an opportunity to have hidden the rifle
in that crime-ridden area, ... and (3) stressed the complete
absence of physical evidence tying Lee to the weapon and coat.”
(Appellant’s Op. Br. at 63.)

8
 The District Court instructed the jury that a conviction
could be based on a finding that Lee possessed either a pistol, or
a rifle, or both. The Court and the prosecutor told the jury that
unanimity was required on any finding of possession as to either
weapon, and jury interrogatories treated each weapon as a
separate basis of criminal liability. On June 19, 2008, the jury
found Lee guilty of possessing the rifle but not guilty of
possessing the pistol. The Court subsequently sentenced Lee to
120 months of imprisonment, to be followed by a three-year
term of supervised release, and a special assessment of $100.
Lee filed a timely notice of appeal, challenging both his
conviction and his sentence.

II. Discussion 3

Lee advances six arguments on appeal: first, that “the
rifle charge was prejudicially tainted by evidence offered to
support the improper ... [pistol] charge” 4 (Appellant’s Op. Br.

3
The District Court had subject matter jurisdiction pursuant
to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.
§ 1291 and pursuant to 18 U.S.C. § 3742(a)(1), as this is an
appeal from a final judgment of conviction and sentence.
4
As already noted, Lee was charged in an indictment that did
not separate charges into distinct counts, so the unlawful
possession of both the rifle and pistol were, effectively, part of
a single count. The fact that Lee’s alleged rifle possession and
alleged pistol possession were set forth in a single count would
perhaps be problematic in a spillover context, were it not for the

9
at 19); second, that the District Court erred in allowing the
government to introduce evidence that he was wearing a
bullet-proof vest at the time he was stopped by Kraus; third, that
the District Court erred in allowing Kraus to testify about the
interview statements Lee made regarding prior weapons
possession; fourth, that the prosecutor committed misconduct
during his discussion of Digger, the bloodhound; fifth, that the
District Court erred at sentencing by classifying Lee’s state
misdemeanor conviction for reckless endangerment as a crime
of violence, thereby increasing the length of his sentence; and,

fact that the District Court and the parties consistently treated
the single count indictment as containing two separate charges:
the “rifle charge” and the “pistol charge.” The alleged rifle
possession and the alleged pistol possession were argued
separately before the District Court (for example, Lee moved for
judgment of acquittal with regard to the alleged pistol
possession only), were treated separately by the District Court
throughout trial, and were noted separately in both the jury
charge and the jury interrogatories. Most significantly, the jury
ultimately acquitted Lee of possessing the pistol, but convicted
him of possessing the rifle. Finally, the alleged rifle possession
and the alleged pistol possession continue to be treated as two
separate charges by the parties on appeal. Accordingly, we too
will treat the indictment as setting forth two separate charges for
purposes of assessing whether evidence of the alleged pistol
possession tainted the jury’s consideration of whether Lee
possessed the rifle. Like the parties, we will use the terms “rifle
charge” and“pistol charge” to distinguish the two charges.

10
sixth, that the felon-in-possession statute is unconstitutional.
We address each argument in turn.

A. Prejudicial Spillover

Lee argues that the District Court erred in denying his
motion for judgment of acquittal on the pistol charge because
there was insufficient evidence that the pistol, even if he had
one, traveled in interstate commerce, which is a required
element under 18 U.S.C. § 922(g). Although Lee was ultimately
acquitted of the pistol charge, he contends that the District
Court’s error in permitting that charge to go to the jury entitles
him to a new trial on the rifle charge, because the rifle charge
was prejudicially “tainted” by evidence submitted to support the
pistol charge. (Appellant’s Op. Br. at 25.) In other words, Lee
contends that there was prejudicial spillover from one charge to
the other.

i. Standard of Review

The parties begin with a debate about the standard of
review we should apply when evaluating a claim that one
criminal charge has tainted the jury’s consideration of another.
Lee argues that we should apply the test articulated in United
States v. Pelullo, 14 F.3d 881 (3d Cir. 1994), in which we stated
that, “[w]hen confronted with a problem of taint, we must
‘consider whether the presence of the [invalidated] count had
any spillover effect sufficiently prejudicial to call for reversal.’”
Id. at 897-98 (quoting United States v. Ivic, 700 F.2d 51, 65 (2d
Cir. 1983)). We must reverse and allow for a new trial if the
jury was “probably influenced,” id. at 900, or “‘was likely to be

11
confused or relied upon improper evidence’ in its deliberations
on the remaining counts.” United States v. Murphy, 323 F.3d
102, 122 (3d Cir. 2003) (quoting Pelullo, 14 F.3d at 898). Even
though Lee raised the invalidity of the pistol charge at trial, the
government, citing United States v. Wright, 363 F.3d 237 (3d
Cir. 2004), argues that plain error review applies because Lee
did not argue prejudicial spillover before the District Court “in
any relevant pleading, such as in a motion for a new trial.”
(Appellee’s Ans. Br. at 3.)

The debate is misleading, as it seems to proceed from the
mistaken presumption that the test articulated in Pelullo is a
standard of appellate review. It is not. Rather, it is an analytical
approach to assessing whether evidence from one charge
unfairly affected consideration of another charge. In particular,
we are here tasked with assessing whether what happened – an
acquittal on the pistol charge after hearing evidence on it –
means that the jury could not have fairly addressed the rifle
charge. To answer that question, we employ the Pelullo test.

However, acknowledging that Pelullo must be applied to
evaluate a claim of taint still leaves us to determine what
standard of review to employ in a case like this, in which the
issue of taint was never raised before the District Court. This
appears to be an issue of first impression for us, and so we look
to how we address challenges to the sufficiency of evidence as
a guide for the appropriate appellate role in appraising post-hoc

12
complaints about a verdict’s basis.5 Somewhat like an
insufficiency of the evidence argument, an argument of taint
asserts that, once the allegedly tainted material is removed from
the jury’s calculus, there is no sound basis to support the
remaining charge.

When a sufficiency of evidence challenge has first been
made in the District Court, we exercise plenary review on appeal
and ask specifically “whether there is substantial evidence that,
when viewed in the light most favorable to the government,
would allow a rational trier of fact to convict.” United States v.
Bornman, 559 F.3d 150, 152 (3d Cir. 2009) (quotations and
citations omitted). Though plenary, the “standard of review is
highly deferential.” Id. However, where a defendant does not
mount a challenge to the sufficiency of the evidence in the
District Court, we review for plain error.6 United States v.

5
Raising the issue of taint before the verdict may be difficult
as a defense lawyer does not know, pre-verdict, the counts on
which the jury will convict or acquit. Even if a defendant
cannot satisfactorily raise the issue of taint before the verdict,
however, he can do so in a post-verdict motion.
6
The plain error standard is met when “(1) there is an error;
(2) the error is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected the appellant’s substantial rights,
which in the ordinary case means it affected the outcome of the
district court proceedings; and (4) the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Marcus, — S.Ct.—, 2010 WL 2025203, at *1

13
Guadalupe, 402 F.3d 409, 410 n.1 (3d Cir. 2005). Analogizing
to that standard, we hold that, because Lee did not raise the issue
of taint in the District Court, we must evaluate his claim of taint
– through application of the Pelullo test – under a plain error
standard of review.7

(May 24, 2010) (internal quotations and alterations omitted).
7
This holding is not at odds with our reasoning Wright. In
Wright, the defendant filed a motion to dismiss certain counts of
the indictment, which the district court denied. 363 F.3d at 241.
After the jury returned a guilty verdict, the defendant filed a
motion for judgment of acquittal, renewing arguments that he
had made in his motion to dismiss. Id. The district court
granted the defendant’s motion with respect to certain counts but
denied the motion with respect to other counts. Id. On appeal,
the defendant argued that he was entitled to a new trial due to
prejudicial spillover from the evidence that was admitted to
prove the counts on which the district court granted judgment of
acquittal. Id. at 247. We stated that we did not need to reach
the merits of the defendant’s spillover argument, because the
defendant had not raised it before the district court, and Federal
Rule of Criminal Procedure 33 authorizes a new trial only on
grounds raised by the defendant. Id. at 247-48. We reasoned
that the district court could not have erred in not granting a new
trial based on prejudicial spillover when the defendant never
requested a new trial on that ground. Id. at 248. However,
despite stating that we were not reaching the merits, we
proceeded to use the Pelullo factors to explain why the spillover
argument failed in any event. Id. Thus, in Wright, our focus

14
 As discussed below, we conclude that Lee’s claim of
taint fails under Pelullo, even when employing the more
generous plenary standard of review. Accordingly, we have no
difficulty concluding that his claim does not succeed under plain
error review.

ii. The Merits of the Prejudicial Spillover
Argument

The government contends that Lee’s prejudicial spillover
argument fails for two reasons. First, the government says that
the District Court did not err when it denied Lee’s motion for
judgment of acquittal as to the pistol charge because there was
sufficient evidence to allow that charge to go to the jury.
Second, the argument continues, even assuming that the Court
erred in denying Lee’s motion, the rifle conviction can stand
because there was no prejudicial spillover of evidence from the
pistol charge.

The government’s insistence that there was sufficient
evidence to support the pistol charge is not its most persuasive
argument. Indeed, it might have been the better part of wisdom
not to have pressed for that charge to go to the jury. The pistol
was never recovered, and the testimony about its make and, in
turn, about whether it had traveled in interstate commerce,

was on the language of Rule 33 that requires a defendant who
files a motion for a new trial to specify the grounds upon which
he seeks a new trial.

15
turned out to be a bit equivocal.8 However, we need not address
whether it was error to send the pistol charge to the jury
because, even assuming it was, the government is correct that no
prejudicial taint from that charge spilled over into the jury’s
consideration of the rifle charge.

An analysis of whether there was prejudicial spillover
involves two inquiries. See United States v. Cross, 308 F.3d
308, 318 (3d Cir. 2002). First, if “the evidence to prove the
overturned count would have been admissible to prove the
remaining valid count, the defendant was not prejudiced, and
there is no need to consider whether the evidence influenced the

8
For example, the interstate commerce element of the pistol
charge rested first on Kraus, who testified that the gun he saw
on Lee’s lap “appeared” to be a .9 millimeter pistol, based on
the size, shape, and barrel of the gun, but he admitted that he
was not sure. He also testified that the gun “appeared to be
possibly a Beretta [or] possibly a Taurus,” but again he
conceded that he “couldn’t be sure.” (Id. at 392.) The
government also called Mark Willgohs, a special agent with the
Bureau of Alcohol, Tobacco, Firearms & Explosives, who
testified that Beretta firearms are manufactured in Italy and
Taurus firearms are manufactured in Brazil. Willgohs further
testified that there are no commercial manufacturers of firearms
in Pennsylvania. However, he noted that there are some private
manufacturers of firearms in Pennsylvania. Willgohs admitted,
as he had to, that, without examining the gun in question, he
could not determine whether the gun was made by a private
manufacturer or a commercial one.

16
outcome.” Id. In other words, if, in creating a hypothetical trial
as to the valid count only, the evidence of the invalidated count
would have been admissible anyway, the analysis ends there. Id.
If the evidence would not have been admissible, “then we must
consider whether the verdict on the remaining count was
affected adversely by the evidence that would have been
inadmissible at a trial limited to that count.” Id. “Generally,
invalidation of the convictions under one count does not lead to
automatic reversal of the convictions on other counts.” United
States v. Gambone, 314 F.3d 163, 180-81 (3d Cir. 2003) (citing
Pelullo, 14 F.3d at 897).

As to whether evidence regarding the pistol charge would
have been admissible in a trial only about Lee’s possession of
the rifle, Lee asserts that, had the District Court properly granted
him a judgment of acquittal on the pistol charge, evidence
relating to the pistol would have been stricken. According to
Lee, the only reason for allowing evidence of Kraus’s belief that
he saw a pistol “would be to demonstrate Lee’s propensity to
carry firearms ... i.e., a person who carries a pistol on his lap is
the type of person who also transports a rifle in his back seat.”
(Appellant’s Op. Br. at 31.) Admission of such propensity
evidence, Lee argues, is precisely what Rule 404(b) “is intended
to prevent.” 9 Id. However, even if we assume that evidence

9
Rule 404(b) provides the following:

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

17
regarding the pistol would not have been admissible during a
trial on the rifle charge alone,10 Lee has failed to show that there

may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident, provided that upon request
by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial,
or during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.

F ED. R. E VID. 404(b)
10
There is at least a plausible argument that the pistol
evidence could have been admissible in the absence of the pistol
charge because it reveals why Kraus drew his own gun and
yelled to Lee, “[g]et your hands in the air,” and why Lee, in
response, fled the scene. (App. at 353-54.) Kraus testified that
seeing a pistol on Lee’s lap is what caused him to draw his
weapon, which in turn led to Lee’s speeding away. Thus, it
could be argued that the evidence was part of the chronology of
events demonstrating why Kraus took the actions that he did.
See United States v. Ramirez, 45 F.3d 1096, 1102 (7th Cir.
1995) (recognizing the “intricately related doctrine” under
which “evidence of uncharged criminal activity is admissible,
even if it does not satisfy the requirements of ... 404(b), if that
evidence is intricately related to the facts of the case before the
court.” (internal quotations, citations and italics omitted)). But

18
was any prejudicial spillover.

In Pelullo, we established a four-part test to evaluate a
spillover claim. We ask

(1) whether the charges were intertwined with
each other ... so as to create substantial confusion
on the part of the jury;
...

(2) whether the evidence for the different counts
was sufficiently distinct to support the verdict on
other separate counts;
...

(3) whether substantially all the evidence introduced to
support the invalid conviction would have been
admissible to prove other counts, and whether the

cf. Cross, 308 F.3d at 320 n. 19 (stating that “we express no
view on whether ‘other acts’ evidence that does not directly
prove an element of the charged offense may be ‘intrinsic’ (and
thus exempt from Rule 404(b)) if the other acts were
‘inextricably intertwined’ with the events underlying the charge,
so that the evidence is necessary for the jury to understand how
the offense occurred”). We do not need to consider the
admissibility question, however, because Lee’s spillover
argument fails even if we accept arguendo that evidence of the
pistol would not have been admitted in a trial solely about the
rifle.

19
 elimination of the count on which the defendant was
invalidly convicted would have significantly changed the
strategy of the trial;
...

(4) [whether] the charges, the language that the
government used, and the evidence introduced
during the trial ... are of the sort to arouse a jury ...
[and] whether the defendant was branded with
some terms with decidedly pejorative connotation
... so that the prejudicial spillover effect is
palpable.

14 F.3d at 898-99 (internal citations omitted).

The first Pelullo factor asks whether the charges were
sufficiently intertwined to create confusion on the part of the
jury. Id. at 898. Lee argues that the charges did create
confusion because a single-count indictment charged him with
possessing both the rifle and pistol on the same date, and a
single officer described the entire episode. While it is true that
the pistol charge and the rifle charge were set forth together in
the single-count indictment, and that both allegations arose out
of the events of a single day, there was, on this record, no
meaningful risk that the jury was confused when asked to
consider the two charges.

The proof of the jury’s comprehension is that it found
Lee guilty of possessing the rifle but not guilty of possessing the
pistol. Clearly, it was able to separate the issues and the

20
charges, and it did so, in keeping with the District Court’s
instructions. The Court said,

In order to find the defendant guilty, you must
unanimously determine that the defendant
specifically possessed the rifle, or the pistol, or
both. For example, it is not sufficient for six
jurors to agree that the defendant possessed the
rifle and the other six to agree he possessed the
pistol. Rather, the verdict slip indicates that all
jurors must agree on which weapons, if any, the
defendant possessed.

(App. at 601-02.) Questions about the pistol and the rifle were
also set forth separately in the special interrogatories attached to
the verdict form. In addition, in closing argument, the
prosecutor emphasized that the jury needed to consider the pistol
charge and the rifle charge separately, saying,

[Y]ou have to find that the defendant possessed
the rifle or possessed the pistol or possessed both.
That means all of you as a whole. As the Judge
told you, six of you can’t say, we believe that he
possessed the rifle, and the other six say, we
believe he possessed the pistol. That’s not
enough. All twelve final jurors have to determine
that the defendant possessed the rifle or possessed
the pistol or possessed both.

21
(Id. at 615.) In short, by argument, instruction, and the verdict
form, the jury was told to keep the rifle and pistol charges
separate, and their verdict proves that they did.

The second Pelullo factor asks whether the evidence
relating to each charge was sufficiently distinct that a verdict as
to one could be supported without reference to evidence
regarding the other. 14 F.3d at 898. Put differently, we must
ask whether there was enough independent evidence concerning
Lee’s possession of the rifle to support that charge. Lee argues
that the government mixed together the pistol and rifle evidence
by telling the jury that Kraus had already seen a long slender
object concealed on the back seat of Lee’s Jeep, and then by
asking the jury to infer that what Kraus saw in Lee’s lap was a
firearm. Lee points to the prosecutor’s closing argument, where
he asked the jury, “[h]ow about the fact that there was a gun in
the back seat? Does that lend any more credence to the fact that
what was on [Lee’s] lap was a gun and not a squirt gun?” (App.
at 615.)

Leaving aside the fact that Lee’s logic here is that the
rifle evidence was prejudicially spilling over to support the
pistol charge, which is the opposite of the point he is trying to
make, his argument fails because there was sufficient evidence
of his rifle possession that was distinct from any pistol evidence.
Shortly after Lee abandoned his Jeep, the same distinctive black
coat that Kraus had seen in the Jeep covering the long, slender
object on the backseat was located along a fence near the Jeep,
and that coat was covering a rifle. That very potent evidence
stands independent of the allegation that Lee possessed a pistol,

22
as does the evidence of the bloodhound’s tracking his scent from
the Jeep along a path where the rifle was found.

The third Pelullo factor asks us to look at whether the
absence of the pistol charge would have affected the defense’s
strategy in a trial on the rifle charge only. 14 F.3d at 898-99.
Lee argues that the error affected his trial strategy because the
District Court allowed the jury to base a finding of guilt on
probabilities or propensity. In other words, because Lee was
accused of having two firearms, the jury was permitted to
assume that he probably had at least one. Lee argues that this
necessarily influenced his trial strategy, because, if only
possession of the rifle been charged and had the judgment of
acquittal been granted as to the pistol, the jury would not have
needed any instruction about unanimity as to either the rifle or
the pistol or both.

Instead, the defense would have been a
straightforward plea for a weighing of the
evidence ... . Had evidence supporting the
improper handgun charge never been presented or
been stricken, the jury would not have been
authorized to reach a compromise verdict or rely
on propensities but would instead have been
forced to weigh the evidence and make credibility
determinations.

(Appellant’s Op. Br. at 37-38.)

This argument has a crucial factual flaw in its assertion
that the jury was authorized to reach a compromise verdict. The

23
jury was repeatedly and explicitly told that they were not
permitted to do any such thing, as should be clear from the very
instruction that Lee cites.11 Lee does not identify any additional
arguments he would have made or any witness he would have
called – or not called – if the trial had been solely on the rifle
charge, nor does he describe how his questioning of any witness
would have been materially different. In fact, Lee’s strategy
seems to have been exactly what he says it ought to have been,
namely, asking the jury to weigh the evidence and make
credibility determinations, focusing on uncertainty in Kraus’s
testimony, and arguing the paucity of physical evidence. It
appears that the jury did not “rely on propensities” as Lee
suggests they did, but instead was able to “weigh the evidence
and make credibility determinations,” because they ultimately
acquitted him of the pistol charge.

The final Pelullo factor asks whether the pistol charge
and its accompanying evidence was pejorative or inflammatory.
14 F.3d at 899. Lee does not offer an argument on this factor,
probably because the evidence plainly was neither pejorative nor
inflammatory. The evidence was not that Lee threatened Kraus
with the pistol, but simply that Kraus saw what he believed to be
a pistol on Lee’s lap.

Thus, whether or not the District Court erred in denying
Lee’s motion for judgment of acquittal, all of the Pelullo factors
indicate that there was no prejudicial spillover from the pistol
charge to the rifle charge. Accordingly, Lee is not entitled to a
new trial on the rifle charge.

11
The instruction referred to is the District Court’s statement
that “[i]n order to find [Lee] guilty, you must unanimously
determine that ... [he] specifically possessed the rifle, or the
pistol, or both.” (App. at 601.)

24
 B. The Bullet-Proof Vest

Lee next argues that the District Court erred when it
allowed the government to introduce evidence that he was
wearing a bullet-proof vest at the time of the traffic stop, and,
further, when it allowed the government to argue, “what goes
more with a bullet-proof vest than guns?” (App. at 618.) Lee
asserts that this is impermissible propensity evidence under Rule
404(b) and that it is substantially more prejudicial than probative
under Rule 403. The District Court ruled that the bullet-proof
vest was not excludable under Rule 404(b) because it “is
relevant and strong evidence of [Lee’s] alleged possession of
firearms.” (App. at 4.) As a result of the District Court’s ruling,
both the government’s and Lee’s briefs focus on whether the
bullet-proof vest was admissible under Rule 404(b).

In our view, the admissibility of the bullet-proof vest
does not turn on Rule 404(b), because it is not evidence of a
separate wrongful act.12 No one suggested to the District Court
or to the jury that Lee’s possession of the bullet-proof vest was
illegal13 or otherwise wrongful in and of itself; indeed, there was

12
Lee says that the bullet-proof vest evidence is evidence of
a “prior bad act,” but, among other problems with his argument,
he is incorrect as a matter of timing. (Appellant’s Op. Br. at 45.)
His wearing of the vest was not a prior act at all; rather, it was
contemporaneous with the gun possession at issue. More to the
point, though, Rule 404(b) does not focus on when the other
wrongful act may have occurred; it is aimed at keeping out
“[e]vidence of other crimes, wrongs, or acts ... to prove the
character of a person in order to show action in conformity
therewith,” regardless of chronology.
13
While it can be illegal for a felon to possess body armor, see
18 U.S.C. § 931(a) (“[I]t shall be unlawful for a person to

25
no suggestion that there was anything inherently “bad” about
possessing or wearing a bullet-proof vest. Lee’s wearing of the
bullet-proof vest is noteworthy only for what it says about the
nature of the object on the back seat of his Jeep. Thus, the
bullet-proof vest should, in the first instance, be analyzed under
Rules 401 and 402,14 as circumstantial evidence related to a fact
directly in issue, namely, Lee’s alleged possession of a firearm.
Evidence of the bullet-proof vest supports the inference that the
long, slender object beneath the coat on the backseat was a
firearm, in the same manner that the presence of a razor and
small glassine bags found at a crime scene can support the
inference that white powder residue found nearby is cocaine. In
both the case of drug paraphernalia and drugs and the case of a
bullet-proof vest and a firearm, the relationship between the
contraband and the tools sometimes used with contraband

purchase, own, or possess body armor, if that person has been
convicted of a felony that is ... a crime of violence ... .”), no one
has indicated that Lee is the type of felon for whom it would be
illegal, and no one argued that Lee had committed an illegal act
by having the vest.
14
Rule 401 defines relevant evidence as “evidence having 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.” F ED. R.
E VID. 401. Rule 402 states that “[a]ll relevant evidence is
admissible, except as otherwise provided by the Constitution of
the United States, by Act of Congress, by these rules, or by other
rules prescribed by the Supreme Court pursuant to statutory
authority. Evidence which is not relevant is not admissible.”
F ED. R. E VID. 402.
We review a district court’s decision as to the
admissibility of evidence for abuse of discretion. United States
v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).

26
allows a logical inference to be drawn. In other words, a jury
could, after considering Kraus’s description of the object on the
backseat and Lee’s decision to wear a bullet-proof vest, draw an
inference that the object was a firearm. The bullet-proof vest is
therefore circumstantial evidence upon which the jury could
properly move toward a conclusion about gun possession.15

Lee next argues that the bullet-proof vest should have
been excluded under Rule 403, because “any purported
probative value was substantially outweighed by the danger of
unfair prejudice.” 16 (Appellant’s Op. Br. at 44 (original
emphasis).) Specifically, Lee argues that the prosecutor’s
accompanying statement – “what goes more with a bullet-proof

15
The government argues that “the fact that Lee was wearing
a bullet-proof vest and was attempting to take off the vest when
he was approached by Lt. Kraus is admissible because the
absence of this fact would create a ‘chronological or conceptual’
void in the Lt. Kraus’s story ... .” (Appellee’s Ans. Br. at 41.)
However, even without mentioning the bullet-proof vest, there
were enough facts in the chronology for a jury to understand
why Kraus stopped Lee’s Jeep and looked at the backseat,
namely, the traffic violation and the furtive movements Lee was
making when he was pulled over. Thus, the bullet-proof vest
was not necessary to construct a chronology.
16
Rule 403 states that, “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” F ED.
R. E VID. 403.
Lee gives an alternative explanation for having the vest,
namely, that he was wearing it for protection since one day
earlier there had been a homicide in the area.

27
vest than guns? Does it corroborate the fact that there was a gun
in his lap and that there was a gun in the back seat?” – makes the
introduction of the bullet-proof vest even more prejudicial than
it would have been on its own. (App. at 618.)

A district court’s ruling under Rule 403 may be reversed
only if it is “arbitrary or irrational.” See United States v. Univ.
Rehab. Servs. (PA), Inc., 205 F.3d 657, 665, 669 (3d Cir. 2000)
(en banc) (“[We] cannot reverse a District Court’s conclusion
under Federal Rule 403 unless such a conclusion is held to be an
abuse of discretion, which we have defined as ‘arbitrary or
irrational.’” (citing In re Paoli R.R. Yard PCB Lit., 113 F.3d
444, 453 (3d Cir. 1997))). Here, the Court’s ruling was certainly
not so infirm. It, in effect, recognized that the prosecutor was
only providing the jury with the inferential step that he hoped
would be made: that Lee had particular reason to protect
himself against gun violence by wearing body armor because he
was himself carrying a gun. While prejudicial to Lee, it was not
unfairly prejudicial to suggest that bullet-proof vests and guns
often accompany one another.

In addition, while we do not think it helpful to view the
bullet-proof vest as 404(b) evidence, any concern that the jury
might have misinterpreted the relevance of the vest is laid to rest
by the District Court’s instruction that information related to the
vest could only be considered for a limited purpose.17 The Court

17
Limiting instructions are not limited to Rule 404(b)
evidence. They are of assistance in other contexts where the
jury needs to be directed to view a piece of evidence solely as it
pertains to a specific issue. See, e.g., United States v. Jones, 566
F.3d 353, 359 (3d Cir. 2009) (finding that a court’s limiting
instruction was sufficient because it “differentiated [the
defendant’s offenses] from the other offenses connected to his
co-defendant”); United States v. Green, 556 F.3d 151, 155 (3d

28
told the jury, twice, that it should consider the bullet-proof vest
only for “deciding whether the defendant had the state of mind,
knowledge, motive or intent necessary to commit the crime
charged, or did not commit the acts for which he is on trial by
accident or mistake.” (App. at 644-45.) Thus, the Court’s
limiting instruction encouraged the jury to think of the vest only
for what it might imply about whether Lee possessed a firearm
when Kraus confronted him.

Given the high degree of deference we owe when
reviewing a district court’s Rule 403 determination, combined
with the legitimate probative value of the evidence and the
District Court’s limiting instruction, we cannot say that the
decision to admit the bullet-proof vest evidence was arbitrary or
irrational.

C. Lee’s Statements Regarding His Prior Possession
of Firearms

Lee next argues that the District Court erred in admitting
into evidence the statements he made to Kraus during their
interview. Specifically, Kraus provided the following testimony
at trial regarding those statements:

Lee insisted he does not typically own or carry
guns. However, he did state that he has access to
a lot of guns and would use them against anyone
who threatens him or his family. He stated that he
shot at an individual named Pickles, who was well

Cir. 2009) (discussing limiting instructions in the context of
admitting a piece of evidence under one of the exceptions to the
hearsay rule); Vazquez v. Wilson, 550 F.3d 270, 279 (3d Cir.
2008) (discussing the use of limiting instructions in the context
of alleged Bruton violations).

29
 known as Ernest Harris, on multiple occasions.
He went on to say that I arrested Pickles, which is
true, in the past, with a firearm. And Mr. Lee
claimed that on that night, that ... Pickles was
arrested, that Pickles was actually on his way with
that gun to kill Mr. Lee. He acknowledged that
and said that there’s a long time, ongoing violent
feud between Mr. Lee’s family and Pickles. ...
Lee continued to insist that he did not have any
weapons in the car when I stopped him on June
27th, but he did compare that to a time when he
stated that he fled from me before in the Hill
District. ... I do remember this. It would have
been probably back in 2001 or 2002. ... He
further told me that if I would have caught him
that night, I would have caught him with guns in
the car, but, again, he continued to insist that he
had no guns in the car on June 27th when I
stopped him.

(App. at 417-18.) In short, Lee admitted that he had access to
guns, that he was willing to use guns, that he had shot at
someone with whom he had an ongoing feud, that that person
had tried to kill him, and that he had possessed a gun at an
earlier time when Kraus tried to stop him. Lee attempted to
exclude those statements as impermissible evidence under Rule
404(b), arguing that they do nothing but show a propensity for
unlawful gun possession. The District Court denied that motion
and held that the statements were “admissible to prove intent,
knowledge and/or the absence of mistake. Defendant has denied
possession of the firearms in question here.” (Id. at 5.)

On appeal, Lee again argues that his statements constitute
impermissible propensity evidence under Rule 404(b). “To the
extent that our review of the district court’s Rule 404(b) ruling
requires us to interpret the rules of evidence our review is
plenary, but, if the evidence could have been admissible in some
circumstances, we would review the district court’s decision to
admit evidence ... for an abuse of discretion.” United States v.
Daraio, 445 F.3d 253, 259 (3d Cir. 2006) (citation omitted).

30
 The Supreme Court has created a four-step test for the
admissibility of evidence covered by Rule 404(b):

(1) the evidence must have a proper purpose
under Rule 404(b); (2) it must be relevant under
Rule 402; (3) its probative value must outweigh
its prejudicial effect under Rule 403; and (4) the
court must charge the jury to consider the
evidence only for the limited purpose for which it
is admitted.

United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992)
(citing Huddleston v. United States, 485 U.S. 681, 691-92
(1988)). Only the first, third, and fourth steps are contested
here, as it is undisputed that, under step two, Lee’s statements
are relevant.18

i. Proper Purpose

If the proffered “evidence only goes to show character,
or that the defendant had a propensity to commit the crime, it
must be excluded. Where, however, the evidence also tends to
prove some fact besides character, admissibility depends upon
whether its probative value outweighs its prejudicial effect.” Id.
at 887 (citing Gov’t of V.I. v. Harris, 938 F.2d 401, 419 (3d
Cir.1991)). If the government offers evidence of other wrongful
acts, “it must clearly articulate how that evidence fits into a
chain of logical inferences, no link of which can be the
inference that because the defendant committed ... [such an act]
before, he therefore is more likely to have committed this one.”
Id. Nevertheless, Rule 404(b) “is inclusive, not exclusive, and
emphasizes admissibility.” Id. at 886 (citation omitted).

The government presents several arguments as to why
Lee’s statements are admissible under Rule 404(b). First, it says
that Lee’s statements are “relevant [to] and admissible regarding

18
At least it is undisputed insofar as Lee’s statements reflected
his motives. See infra n.22 and accompanying text.

31
the key issue[] of knowledge.” (Appellee’s Ans. Br. at 45.)
Lee’s trial, however, was not about whether he knew that he had
a rifle in the back seat of his Jeep. There was no question of
accident or mistake. Rather, Lee’s defense was simply that there
was no rifle in his Jeep and that the rifle recovered at the
Apartments was not his. Thus, the trial was about weighing
Kraus’s credibility against Lee’s, and, as Lee rightly notes, “[i]t
is inconceivable that if the jury believed [Kraus’s] testimony it
would have found that Lee acted by mistake.” (Appellant’s Op.
Br. at 47.)

The government presses the point, however, saying that
knowledge is at issue because Lee did not admit possession of
any firearm. It relies on our decision in United States v. Givan,
320 F.3d 452 (3d Cir. 2003), in which the defendant was
convicted of conspiring to distribute and possess with intent to
distribute heroin. Id. at 455. There, we allowed the government
to introduce into evidence the fact that the defendant had a prior
felony drug conviction. We accepted the government’s
argument that,

because it had to prove that Givan knew, prior to
its discovery by the troopers, that a quantity of
heroin was hidden in the back seat of the rental
car and that it had to prove that Givan possessed
the heroin with intent to distribute it, knowledge
and intent were material and contested issues at
trial.

Id. at 460-61. Unlike in Givan, however, where the defendant
denied knowing that there was heroin in the backseat of his
rental car and that he intended to distribute it, Lee has not put
knowledge at issue. Lee is not arguing that he did not know
there was a rifle in his back seat. His argument is a
straightforward denial that any gun was there.

The government also argues that Lee put his knowledge
at issue when his counsel told the jury, “Yes, the police did find
the rifle in the woods near where Mr. Lee abandoned his Jeep,
but the evidence will show that he did not put it there.” (App.

32
at 334.) But the government’s argument fails again. The quoted
comment does not amount to a statement that Lee did not know
the rifle was in his possession or near his vicinity; it was once
more an out-and-out denial that he had anything to do with the
gun.

The government does far better with motive as a theory
of admissibility. According to the government, the statements
Lee made to Kraus reveal Lee’s motive for possessing firearms
because he admitted that he has no qualms about using such
weapons against anyone who threatens him or his family, and he
stated that he was in a violent feud with Ernest “Pickles” Harris.
See App. at 216 (“The defendant’s statements regarding his
motive for possessing firearms (to use them against anyone who
would threaten Mr. Lee or his family, such as ... ‘Pickles’, with
whom he and his family have had a long standing feud) is
certainly relevant to his motive to possess a firearm in this
matter.”). We agree with that assessment of the statements. Not
only did Lee claim that, at some point in the past, Harris had
planned to shoot him and he had shot at Harris, he also admitted
that the feud he and his family had with Harris was ongoing.
Moreover, Lee conceded that he “has access to a lot of guns and
would use them against anyone who threatens him or his
family.” (Id. at 417.) Those statements reveal that Lee had
reason to possess a weapon on the day in question.19

19
The Dissent questions whether motive is “relevant in a case
such as this ... [because] we are not faced with a situation where
answering ‘why’ would help solve the crime ... .” (Dissent at p.
7-8.) Motive is one of the permissible purposes listed in Rule
404(b) not because the “why” helps solve a crime, but because
it is highly relevant to show that a defendant had a motivation to
commit the crime for which he is being charged. In a case like
this, where Lee is asserting that he never had a gun on the day
in question, it is important to know that he had a personal
motivation to possess a gun. Indeed, someone who is involved
in an ongoing feud – a feud during which guns have been used
– is far more likely to have a gun in his possession than
someone who is not involved in such a feud. See United States
v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002) (“[I]n cases

33
where a defendant is charged with unlawful possession of
something, evidence that he possessed the same or similar things
at other times is often quite relevant to his knowledge and intent
with regard to the crime charged. ... [A] jury could infer
possession from motive, which could in turn be inferred from
intent.”) (quotations omitted).

The Dissent also points out that the District Court did not
cite to motive in its initial ruling on the admissibility of the
statements. (Dissent at pp. 8-9.) However, the District Court
did instruct the jury that it could “consider the evidence ... for
the purpose of deciding whether the defendant had the ... motive
... to commit the crime charged ... .” (App. at 596.) That
decision to instruct on motive is not without meaning. By
offering motive as a basis on which the jury could consider the
evidence, the District Court necessarily concluded that motive
was a proper basis for admission of one or more of the
statements.
Further, the Dissent’s reliance on Sampson, in which we
held that “[t]he district court, if it admits the evidence, must in
the first instance, rather than the appellate court in retrospect,
articulate the reasons why the evidence goes to show something
other than character[,]” 980 F.2d 888, does not account for
language that follows immediately after that quote. We went on
to say that, “Unless the reason is apparent from the record, a
mere list of the purposes found in Rule 404(b) is insufficient.”
Id. (emphasis added). Motive, in this instance, is apparent from
the record, and is an entirely legitimate basis upon which the
jury could consider statements about Lee’s reason for having a
rifle, despite his denials. Lee’s statements to Kraus reveal that
he was afraid of being attacked by a specific person – who had
attempted to kill him in the past – and that he would arm himself
for his and his family’s protection.
In sum, Lee had a compelling reason to arm himself, and
that is directly relevant to the question of whether Lee had a rifle
in his car.

34
 We note that the final part of Lee’s statements to Kraus
– in which Lee admitted that he had possessed firearms on a
prior occasion in 2000 or 2001 when Kraus stopped him – does
not, in isolation, speak to motive in the same way as Lee’s
statements about possessing guns to protect his family and about
his ongoing feud with Harris’s family. Based on the record, we
cannot tell whether, as a factual matter, the statement about
2000 or 2001 was part and parcel of Lee’s first two statements
about protecting his family and his violent feud with Harris.
Moreover, it is not clear to us whether, as a procedural matter,
defense counsel, in argument before the District Court, treated
Lee’s statements as one single conversation, or whether defense
counsel treated the statements as analytically distinct. While
defense counsel did parse the statements in a motion in limine
submitted to the District Court, in the briefing before us, no

35
distinction was drawn between the various admissions.20 (See
App. at 180.)

Assuming that this last statement can, as a factual matter,
be separated from Lee’s first two statements, and assuming
further that this last statement was argued separately to the
District Court and so can be analyzed separately here, it was
error to admit the third statement regarding Lee’s 2000 or 2001
gun possession because that statement is not probative of motive
(or any other permissible ground listed in 404(b)). Unlike the
statements concerning the ongoing feud and his desire and
capability to protect himself and his family with guns, his
comment that he once had a gun years earlier does not, on its

20
The Dissent slices the statement more finely than did the
defendant in his motion in limine. Our dissenting colleague
analyzes Lee’s statement to Kraus by dividing it into six
separate statements (Dissent at pp. 1-4), while Lee had divided
it into three, leaving out certain elements of the statement
altogether (see App. at 180). As an initial matter, the Dissent
separates the statement, “[Lee] shot at an individual named
Pickles” from “[Pickes] was actually on his way with that gun
to kill [Lee] ... [and] there’s a long time, ongoing violent feud
between Mr. Lee’s family and Pickles.” (Id.) The Dissent faults
us for not separating those two statements. (See Dissent p. 4
n.2.) However, Lee never separated that description of the feud
into two separate statements, and rightly so because those
statements, as Kraus recounted them, can appropriately be
viewed as a single statement about the feud. That Lee shot at
Pickles also shows the degree to which the feud between them
was real and violent, and not just a matter of heated words. It
thus shows the high degree of Lee’s motivation to possess a gun.

Moreover, at trial, Lee argued only that the entire
interview with Kraus should be excluded, not that it should be
parsed into six separate statements to be analyzed individually.
The defense argument was simply to keep it all out. We should
be wary of holding district courts to an analytical construct that
was not fairly presented at trial.

36
own, prove anything about a present motive to be armed.
However, any error in admitting that third statement was
harmless in the context of the overall admissions, because it was
“highly probable” that the admission of Lee’s final statement did
not contribute to the conviction, especially considering the fact
that the jury had just heard the previous two statements that
spoke so directly to Lee’s motive.21 See United States v. Ali,
493 F.3d 387, 392 (3d Cir. 2007) (“[T]he test for harmless error
is whether it is highly probable that evidentiary error did not
contribute to conviction.” (citing Gov’t of V.I. v. Toto, 529 F.2d
278, 283-84 (3d Cir.1976))); 2A F EDERAL P ROCEDURE,
L AWYER'S E DITION § 3:8444 (1981) (“[F]ederal appellate courts
are more willing to find harmless error in the area of evidentiary
rulings than they are in other areas of procedure.” (citing
Julander v. Ford Motor Co., 488 F.2d 839, 843 (10th Cir.
1973))).22

21
In discussing harmless error, our dissenting colleague
suggests that the rest of the evidence of Lee’s guilt was not
“overwhelming,” citing to, for example, Digger’s equivocal
actions near the rifle and the lack of forensic evidence. (Dissent
at pp. 19-20.) However, the Dissent is not recognizing that 1)
Lee fled from the original stop; 2) a coat matching what Kraus
said he saw covering a long object in the backseat of Lee’s Jeep
was found with the rifle near the Jeep; 3) Lee admitted that he
had abandoned the Jeep near where the rifle was found; and 4)
Lee continued to be a fugitive until he was found hiding in a
couch. These are not minor facts. They are, particularly in
combination, powerful evidence of guilt, even without the
404(b) statements.
22
The government also contends that Lee’s statements are
admissible evidence of his modus operandi. The prosecution’s
theory is as follows: Lee admitted to fleeing from a traffic stop
conducted by Kraus four years earlier because he had a weapon
in his vehicle. That prior act shows Lee’s method of flight to
avoid conviction for weapons possession. We have held that
“[a] jury can rationally infer from evidence that the defendant
committed a prior crime in an unusual and distinctive manner
and evidence that a second similar crime was committed in the

37
 In conclusion, the government presented a “chain of
logical inferences” between Lee’s prior weapons possession and
the rifle charge that does not suggest a mere propensity to
engage in weapons offenses. Sampson, 980 F.2d at 887. Lee’s
statements about possessing guns to protect his family and about
his ongoing and violent feud with Harris’s family are relevant to
show his motive for possessing a rifle on the day in question.
Thus, the evidence was offered for a proper purpose under Rule
404(b).

ii. Probative Value vs. Prejudicial Effect

Given the relevance of Lee’s statements,23 we next
determine under Huddleston whether, pursuant to Rule 403, the
danger of unfair prejudice substantially outweighs the probative
value of the statements. 485 U.S. at 691. Given the substantial
deference owed to district courts in weighing evidence under
Rule 403, combined with the highly probative value of the
evidence – particularly Lee’s statements about his feud with
Harris and what that revealed about Lee’s motive – the District
Court’s decision to admit those statements was not “arbitrary or
irrational.” See Univ. Rehab. Servs., 205 F.3d at 669 (“[We]
cannot reverse a District Court’s conclusion under Federal Rule
403 unless such a conclusion is ... ‘arbitrary or irrational.’”
(citation omitted)). Indeed, the statements reveal Lee’s motive
to possess weapons on the day in question, which is highly

same unusual and distinctive manner that the defendant
committed the second crime.” Givan, 320 F.3d at 467-68. But
there was nothing unusual or distinctive about Lee driving away
from the police back in 2000 or 2001. As Lee notes, “[t]he act
of fleeing from a traffic stop to avoid being found with
contraband is hardly so unique as to create an inference that Lee
had a rifle in his Jeep here because he had a gun in his vehicle
[before] ... .” (Appellant’s Op. Br. at 51.)
23
See supra n. 18 and accompanying text.

38
probative in a case like this, in which the defendant has denied
possession all together.24

iii. Limiting Instructions

Lastly, Huddleston requires us to ensure that the District
Court charged the jury to consider the evidence only for the
limited purpose for which it was admitted. 485 U.S. at 691-92.
The District Court gave a limiting instruction as follows:

Now, you have heard evidence that the defendant
... made certain statements to Lieutenant Kraus
about his past possession and use of firearms
when he was arrested on July 12, 2005. This
evidence was admitted for a limited purpose only.
You may consider this evidence only for the
purpose of deciding whether the defendant had
the state of mind, knowledge, motive or intent
necessary to commit the crime charged in the
indictment, or did not commit the acts for which
he is on trial by accident or mistake. Do not
consider the evidence for any other purpose.

24
Our dissenting colleague asserts that we “never address[] the
issue of prejudice” (Dissent at p. 15), but we have endeavored
to do so here. To reiterate, it was not an abuse of discretion to
conclude that the danger of unfair prejudice – i.e., that the jury
would wrongly use Lee’s admission of prior gun possession and
use to conclude that he must have been guilty of the crimes
charged here – did not substantially outweigh the relevance of
the statements Lee made to Kraus. Application of the standard
dictated by Rule 403 is, by definition, a judgment call. That the
District Court could usefully have made that judgment call with
a more explicit description of its “probative value vs. prejudicial
effect” weighing of the evidence does not lead us to conclude
that the experienced trial judge failed to apprehend the nature of
the prejudice and the probative values at stake.

39
 Of course, it is for you to determine whether you believe
this evidence, and if you do believe it, whether you
accept it for the purpose offered. You may give it as
much weight as you feel it deserved, but only for the
limited purpose that I described to you.

The defendant is not on trial for committing these
other acts. You may not consider the evidence of
these other acts as a substitute for proof that the
defendant committed the crime charged. You
may not consider this evidence as proof that the
defendant has a bad character or any propensity to
commit crimes. Specifically, you may not use this
evidence to conclude that because the defendant
may have committed the other acts, he must also
have committed the act charged in the indictment.

Remember, the defendant is on trial here only for
possessing a firearm on the date in question, not
for these other acts. Do not return a guilty verdict
unless the government proves the crime charged
in the indictment beyond a reasonable doubt.

(App. at 595-97 (quoting T HIRD C IRCUIT M ODEL J URY
INSTRUCTIONS - C RIMINAL § 4.29 (2009).) At the conclusion of
the District Court’s instructions to the jury, defense counsel
asked the Court to repeat the limiting instruction, which it did.

Now, for the first time, Lee challenges the adequacy of
that instruction. Because he did not object at trial, any review
of the instruction must be for plain error. See United States v.
Olano, 507 U.S. 725, 734-36 (1993); see also United States v.
Pelullo, 399 F.3d 197, 221 (3d Cir. 2005) (“A party generally
may not assign error to a jury instruction if he fails to object
before the jury retires or to ‘stat[e] distinctly the matter to which
that party objects and the grounds of the objection.’” (quoting
Jones v. United States, 527 U.S. 373, 387 (1999))).

Lee has not shown any error in this regard, much less
plain error. Though Lee argues that the District Court’s

40
instruction provided no guidance because it simply repeated the
litany of permissible theories under Rule 404(b), the Court in
fact did more than simply list the 404(b) grounds. The
instruction properly informed the jury of the limited purpose for
considering Lee’s admissions about gun possession.25 To the
extent that Lee is now arguing that the jury could not have
understood the instruction, we have rejected such sweeping and
non-specific assertions before. See Givan, 320 F.3d at 462 (“[I]t
is a basic tenet ... that a jury is presumed to have followed the
instructions the court gave it ... [and i]f we preclude the use of
evidence admissible under Rule 404(b) because of a concern
that jurors will not be able to follow the court’s instructions
regarding its use we will inevitably severely limit the scope of
evidence permitted by that important rule.”). L e e ’ s
statements about possessing guns to protect his family and about
his feud with Harris therefore meet the guidelines for

25
The implication from the Dissent is that the District Court’s
limiting instruction – which followed nearly word-for-word our
Circuit’s model 404(b) instruction – is inherently inadequate.
(See Dissent at p. 13-14.) We disagree. The list of proper
evidentiary purposes set forth in 404(b) and repeated in the
model instruction, which is the list that the District Court used
here, is not made improper solely because the Court was not as
clear as it could have been in articulating why motive was a
proper purpose that the jury could rely on when considering
Lee’s statements to Kraus. We take this opportunity to
encourage district court judges to delineate the specific grounds
for admissibility of 404(b) evidence, even if the entire 404(b)
litany has already been recounted. Our dissenting colleague is
quite right to note that comments to the model jury instructions
encourage that practice. (Dissent at p. 13-14 n.8.) However, the
government argued motive; motive is apparent on the record;
and the District Court instructed on motive. Given the very
deferential standard we are under, the instruction was adequate.
To hold otherwise would be contrary to one of the overarching
principles we referred to in Sampson, namely that “[Rule
404(b)] is inclusive, not exclusive, and emphasizes
admissibility.” 980 F.2d at 886.

41
admissibility articulated in Huddleston. They were admissible
for a proper purpose under Rule 404(b) as evidence of Lee’s
motive for possessing a weapon; they are undisputedly relevant
under Rule 402; the District Court’s finding under Rule 403 that
the danger of unfair prejudicial effect did not substantially
outweigh the probative value of the statements was not arbitrary
and irrational; and the District Court twice charged the jury to
consider the evidence only for the limited purpose for which it
is admitted.26 See Huddleston, 485 U.S. at 691-92.

D. The Prosecutor’s Statements Regarding Digger

Lee next argues that he is entitled to a new trial based on
two instances of prosecutorial misconduct. First, he contends
that, during the government’s closing, the prosecutor improperly
referred to evidence regarding the bloodhound, Digger, that had
been excluded by the District Court. Second, he asserts that the
prosecutor vouched for the credibility of Digger based on his
own personal experience with hunting dogs. That misconduct,
says Lee, deprived him of due process and a fair trial.

i. Background

In a pre-trial motion, Lee sought to exclude the evidence
of Digger’s behavior as irrelevant, or, if relevant, inadmissible

26
The Dissent suggests that Lee’s statements are also
problematic because they were recounted by Kraus, rather than
by Lee himself. (See Dissent pp. 14-15 n. 20.) But virtually
every confession entered into evidence at a criminal trial is made
to someone else and not on the stand by the defendant, and very
often the confessions are made to police officers. We do not
presume a reliability problem in all such cases. Here, Lee
frankly confessed to Kraus his motive for and willingness to
carry a firearm. Further, the defense theory of the case has not
been that Lee never said to Kraus what Kraus claims Lee said.
The dispute instead has consistently been about whether the
statements should be allowed into evidence, not whether they
were made.

42
under Rule 403. Specifically, Lee argued that the evidence
would make the jury believe that Digger “actually identified the
gun and the jacket when, in fact, that’s not what happened.”
(App. at 226.) Lee also attacked the probative value of the
evidence, arguing that the officers searching the area had
contaminated the Jeep and the scene so that the dog could not
have reliably tracked a scent.

The Court held that the evidence of Digger’s tracking
was admissible, “as it tends to prove that [Lee], who had
occupied the front seat of the Jeep, had traveled along the
pathway where the coat and rifle were found and then on to the
apartment complex. This is circumstantial evidence that [Lee]
possessed and removed the coat and rifle from the Jeep.” (Id. at
2.) The Court added, however, that “the Government has agreed
to eliminate any reference in the testimony that Digger paused
at the coat and rifle, thus, further reducing any unfair prejudice
to [Lee].” 27 (Id.)

In light of the Court’s pre-trial ruling, police officer
Harkins, the dog handler, did not mention in his testimony that
Digger “paused” at the coat and the rifle. Rather, he said that
Digger went from the Jeep, “down a flight of steps, through a
very overgrown weeded asphalt parking lot ... slightly to the left
angle of the fence.” (Id. at 458.) He added that Digger “went
down the fence line approximately 20, 25 feet” (id.), and that he
came within “10 to 15 inches” of the rifle and the coat. (Id. at
460.)

Lee argues that, unlike Harkins, the prosecutor
disregarded the Court’s instructions and argued exactly what the
Court had excluded, namely, that Digger paused at the coat and
rifle. The prosecutor said the following:

[W]hat Digger told us from Chief Harkins on the
stand is that the person who was the driver of that

27
The Court’s meaning was plainly that the risk of unfair
prejudice was reduced.

43
 car went straight down the steps, straight across
the parking lot, deposited a gun, went through the
fence ... and then ultimately escaped.
...

What happened with Digger is that Digger came
from the car, went down the steps, across the
parking lot and to the gun. Digger did not go to
the right where the first person to find this firearm
went originally, Digger went in that exact path.
Does this support Lieutenant Kraus or does it
contradict him?

(Id. at 617; 619.) Lee did not object when those statements were
made, but argues on appeal that in making those statements, the
prosecutor was suggesting that Digger paused at the rifle, which
was forbidden by the Court’s earlier ruling. Lee contends that
“it is [] improper for a prosecutor, during closing arguments, to
bring to the attention to the jury any purported facts that are not
in evidence and are prejudicial.” (Appellant’s Op. Br. at 59
(citation omitted).)

The second instance of alleged misconduct is what Lee
calls the prosecutor’s impermissible vouching for Digger, by
“assuring the jury of Digger’s credibility based on [the
prosecutor’s] ... own personal experience hunting and tracking
using dogs.” (Id.) The specific statements Lee points to are as
follows:

I am a hunter. Some of you may be as well. As a
hunter, I’ve had experience with dogs in the past.
I’ve hunted with bird dogs and I’ve hunted with
beagles for the majority of my life. It never
ceased to amaze me when we were out with those
dogs, their abilities.

When I rabbit hunt with my brothers and my
father, we would sometimes see a rabbit, we
would jump a rabbit and it would be running out
front. Our dog, being much smaller than us, he

44
 couldn’t necessarily see the rabbit, so we had a
signal that we would tell the dog where we saw
and what we saw. We would say, here’s the
bunny. That meant to the dog, we saw the rabbit,
here’s where we think it was. And the dog would
come there and start to circle and from just going
to that location, smelling in one direction and then
smelling in the other, that dog could tell which
one of those two tracks was fresher and go in the
direction that the rabbit went to rather than where
the rabbit came from. That never ceased to amaze
me.

Or, when you hunted with bird dogs, that that bird
dog would stop a foot and a half from this
particular bird, a pheasant—

(App. at 615-16.) At that point, Lee’s counsel objected, noting
the “personal nature of the testimony which doesn’t have
anything to do with the evidence.” (Id.) The District Court
sustained defense counsel’s objection, stating that “we should
move from that.” (Id.) The prosecutor complied and did not
return to his reminiscing.

ii. Standard of R eview : P rosecu to r ia l
Misconduct

We review for abuse of discretion a district court’s ruling
on a contemporaneous objection. United States v. Brennan, 326
F.3d 176, 182 (3d Cir. 2003). However, any
non-contemporaneous objections are reviewed for plain error.
Id. While Lee objected to one portion of the prosecutor’s
closing argument – the portion that Lee now claims was
vouching – he did not object to the part of the closing involving
Digger’s behavior near the rifle. It is only here on appeal that he
asserts that the prosecutor committed misconduct by suggesting

45
that Digger paused at the coat and rifle.28 Thus, we review the
ruling on alleged vouching for abuse of discretion, and we
review the prosecutor’s description of Digger’s behavior near
the rifle for plain error.

A prosecutor’s comments can create reversible error if
they “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). “[A] criminal
conviction is not to be lightly overturned on the basis of a
prosecutor’s comments standing alone, for the statements or
conduct must be viewed in context; only by so doing can it be
determined whether the prosecutor’s conduct affected the
fairness of the trial.” United States v. Young, 470 U.S. 1, 11
(1985). Moreover, we “must examine the prosecutor’s offensive
actions in context and in light of the entire trial, assessing the
severity of the conduct, the effect of the curative instructions,
and the quantum of evidence against the defendant.” Moore v.
Morton, 255 F.3d 95, 107 (3d Cir. 2001). “A finding of
prosecutorial misconduct requires reversal unless the error is
harmless.” Brennan, 326 F.3d at 182. “If the error is
constitutional, we will affirm [only] if we determine that the
error is harmless beyond a reasonable doubt.” United States v.
Helbling, 209 F.3d 226, 241 (3d Cir. 2000). “If the error is non-
constitutional, we will affirm when it is highly probable that the
error did not contribute to the judgment.” Id. (quotation
omitted).

28
Lee tries to argue that he preserved the issue by objecting to
the prosecutor’s proposed use of this evidence during a
suppression hearing, reminding the Court of its ruling excluding
the evidence, and noting in his own closing argument that the
prosecutor’s interpretation of the bloodhound evidence was
incorrect. However, those are not objections raising the specific
contention that the prosecutor had alluded to excluded evidence.
In fact, there was no objection to the specific statements which
Lee now argues contained excluded evidence.

46
 iii. The Prosecutor’s Alleged Reliance on
Excluded Evidence

Though silent on the issue before, Lee now contends that
the prosecutor committed misconduct by alluding to excluded
evidence in suggesting that Digger “paused” at the coat and
rifle. (App. at 2.) Lee’s previous silence is understandable,
since the record does not actually support his argument. At no
time did the prosecutor state that Digger paused or hesitated at
the coat and the rifle. While the prosecutor did state that
“Digger came from the car, went down the stairs, across the
parking lot and to the gun” (Id. at 619), and while that comment
arguably comes close to what was prohibited by the District
Court, there was no assertion that the dog paused or alerted at
the gun. Instead, a fair interpretation of the prosecutor’s
argument is that Digger led the police away from the car, down
a path, and to the area where the coat and rifle were located,
before heading to the Apartments. Given Harkins’s testimony
that Digger traced a path from Lee’s car to within inches of
where the police discovered the coat and rifle, the District
Court’s allowing the prosecutor’s argument was not plain error.
We have repeatedly held that a “prosecutor is entitled to
considerable latitude in summation to argue the evidence and
any reasonable inferences that can be drawn from that
evidence.” United States v. Werme, 939 F.2d 108, 117 (3d Cir.
1991) (citation omitted). That latitude encompasses the
argument that the path that Digger tracked was evidence that
Lee had dropped the coat and rifle by the fence.

iv. The “Vouching” Argument

A prosecutor may not vouch for the credibility of a
witness based on the prosecutor’s personal knowledge,
experience, or opinions. See Young, 470 U.S. at 18-19.
Vouching occurs when two criteria are met: “(1) the prosecutor
must assure the jury that testimony of a Government witness is
credible; and (2) this assurance is based on either the
prosecutor’s personal knowledge, or other information not
contained in the record.” United States v. Walker, 155 F.3d 180,
187 (3d Cir. 1998). While Lee says that the prosecutor vouched

47
for the bloodhound evidence, the government argues that there
was no vouching because the prosecutor “merely told an
anecdote about his own experience with Beagles and bird dogs.”
(Appellee’s Ans. Br. at 64.) The government then argues that it
is “common knowledge that dogs have an ability much greater
than humans to detect scent.” (Id. at 65 (quotation omitted).)

Whether something is “common knowledge” to a group
of people largely depends, of course, on the composition of the
group. The amazing abilities of hunting dogs are not the
common ken of all humanity. Perhaps the heightened ability of
dogs to detect scent is well-known, but the prosecutor did not
confine himself to that. Rather, he spoke from his own personal
experience with dogs, dating back to his childhood, and
reflected on the remarkable things he had witnessed. As a
result, the jury may have been influenced by the prosecutor’s
experiences, thinking that the prosecutor’s views bolstered the
credibility of Kraus’s and Harkins’s testimony about Digger.29
This is what the rule against vouching prohibits.

29
The government argues that it “is unclear whether or not a
prosecutor could be guilty for vouching for a police dog, who
was not actually a witness in the matter.” (Appellee’s Ans. Br.
at 64.) To the extent that Lee is complaining not just about the
prosecutor’s vouching for Kraus’s and Harkins’s testimony
about Digger but is also saying that the prosecutor was vouching
directly for Digger, an interesting question is raised. Assuming
the latter problem were the only one at issue and we were not
presented with a classic case of vouching for the credibility of
a testifying witness, it would still be a close cousin of classic
vouching. If the prosecutor was vouching for the reliability of
Digger as an expert on tracking scent, using personal anecdotes
to vouch for Digger’s expertise, that would be impermissible
because “[i]t is well settled that a prosecutor in a criminal case
has a special obligation to avoid improper suggestions,
insinuations, and especially assertions of personal knowledge[,]”
United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998)
(internal quotations omitted), which the I-know-dogs
commentary was here.

48
 However, even though the prosecutor did cross the line
into improper vouching, a new trial is not warranted because it
is highly probable that the error did not contribute to Lee’s
conviction, for several reasons.30 Helbling, 209 F.3d at 241.
First and most significantly, the prosecutor did not continue the
vouching once an objection was raised and the District Court
directed the prosecutor to move on.31 See United States v.
Galloway, 316 F.3d 624, 633 (6th Cir. 2003) (holding that,
while prosecutor’s statement concerning his personal opinion
were improper, the statement did not warrant a reversal because
the defendant objected at trial and the court sustained the
objection and directed the prosecutor to move on). Second, the
acuteness of Digger’s sense of smell was of record through
Harkins’s testimony. Third, the testimony about Digger’s
behavior required no vouching. The dog went within inches of
the rifle on its way to the Apartments. That concrete and
specific evidence, not general praise for the nose on man’s best
friend, is what in all likelihood left an impression on the jury, if
anything about Digger did. Fourth, the Court specifically
instructed the jury that “what the lawyers said is not evidence
and it’s not binding on you.” (App. at 589.)

Thus, despite the wholly unnecessary vouching for the
testimony about Digger and the gratuitous comments about a
dog’s ability to track a scent, a new trial is not warranted
because it is highly probable that the misconduct did not
contribute to the judgment.

30
While Lee describes vouching as a constitutional error, we
have held that “vouching that is aimed at the witness’s
credibility and is based on extra-record evidence is deemed
non-constitutional error.” United States v. Dispoz-O-Plastics,
Inc., 172 F.3d 275, 286 (3d Cir. 1999) (citing United States v.
Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995)).
31
Lee notes that the District Court did not give any curative
instruction after it sustained his objection. However, defense
counsel never requested one, and the prosecutor moved on
immediately after the Court sustained the objection.

49
 E. Reckless Endangerment as a Crime of Violence

Lee challenges his sentence, arguing that the District
Court erred in classifying his misdemeanor conviction for
reckless endangerment as a “crime of violence,” thereby
increasing his offense level under the career offender
enhancement found in § 2K2.1(a)(2) and (a)(4) of the
Sentencing Guidelines.32 The government had argued to the
District Court that Lee’s conviction was a crime of violence
under the Guidelines but, on appeal, concedes that “reckless
conduct, standing alone, is not the type of purposeful conduct
that can constitute a crime of violence ... [and thus, Lee’s]
sentence should be vacated and the case remanded for the
purposes of re-sentencing.” (Appellee’s Ans. Br. at 68 (citation
omitted).)

Lee and the government are correct in their agreement
about the law. Following Lee’s sentencing hearing, the
Supreme Court decided Begay v. United States, 553 U.S. 137
(2008), in which it effectively held that, to qualify as a crime of
violence, the crime at issue must present “a serious potential risk
of physical injury” and be one that “typically involves
purposeful, violent, and aggressive conduct.” 33 Id. at 144-45.
The Court expressly distinguished crimes involving negligence
or recklessness from those involving violence or aggression. Id.
at 146; see also United States v. Johnson, 587 F.3d 203, 208 (3d

32
The District Court employed the 2007 edition of the
Guidelines Manual, effective November 1, 2007.
33
While the Begay Court addressed the definition of “violent
felony” under the Armed Career Criminal Act (“ACCA”), we
have since held that the definition of “violent felony” in the
ACCA and the definition of a “crime of violence” in the
Sentencing Guidelines are “close enough that precedent under
the former must be considered in dealing with the latter.”
United States v. Polk, 577 F.3d 515, 519 n.1 (3d Cir. 2009)
(citations omitted).

50
Cir. 2009). Thus, following Begay, a conviction for mere
recklessness cannot constitute a crime of violence.34

Lee’s earlier-noted conviction for concededly reckless
conduct, standing alone, does not qualify as a crime of violence.
Accordingly, as the parties agree, Lee’s sentence must be
vacated and the case remanded for re-sentencing.

F. The Constitutionality of the Felon-In-Possession
Statute

Finally, Lee argues that the felon-in-possession statute is
unconstitutional. He recognizes, however, that we are bound by
our decision in United States v. Singletary, 268 F.3d 196, 198-
205 (3d Cir. 2001), in which we confirmed the constitutionality
of the felon-in-possession statute, and he acknowledges that he
presents this issue only “to preserve a challenge to the
constitutionality of [the felon-in-possession statute] for Supreme
Court review.” (Appellant’s Op. Br. at 80.) We therefore reject
that argument without further discussion.

34
Other circuits addressing the issue have similarly held that,
after Begay, reckless conduct does not qualify as a crime of
violence. Johnson, 587 F.3d at 211 n. 8. See, e.g., United States
v. Baker, 559 F.3d 443, 453 (6th Cir. 2009) (holding that
Tennessee’s reckless endangerment statute does not qualify as
a crime of violence); United States v. Smith, 544 F.3d 781,
786-87 (7th Cir. 2008) (finding that Indiana’s criminal
recklessness statute is not a crime of violence); United States v.
Gray, 535 F.3d 128, 131-32 (2d Cir. 2008) (holding that New
York’s reckless endangerment statute is not a crime of
violence).
Pennsylvania’s reckless endangerment statute, under
which Lee was convicted, states that “[a] person commits a
misdemeanor of the second degree if he recklessly engages in
conduct which places or may place another person in danger of
death or serious bodily injury.” 18 P A. C ONS. S TAT. § 2705.

51
III. Conclusion

For the reasons discussed above, we will affirm Lee’s
conviction but will vacate his sentence and remand for re-
sentencing.

52
RENDELL, Circuit Judge, dissenting.

I respectfully dissent because I conclude that the District
Court should not have admitted Officer Kraus’s testimony
concerning Lee’s post-arrest statements regarding Lee’s prior
experiences with guns, violent feuds, and past experiences with
Officer Kraus, and that this error was not harmless. I
acknowledge that this is a close case and that our standard is
deferential, but I submit that when it comes to guns, we must be
careful, for the prejudicial impact on the jury of this type of
character evidence is very real indeed.

The majority opinion refers to salient portions of Kraus’s
testimony but it is worth including it in its totality. I number
distinct points for ease of reference. Kraus testified that, in a
post-arrest interview:1

1. Lee insisted he does not typically
own or carry guns. However, he
did state that he has access to a lot
of guns and

1
Although the District Court and the majority opinion refer
to, respectively, “Defendant’s statements made by him at the
time of his arrest,” App. 5, and “Lee’s Statements Regarding His
Prior Possession of Firearms,” Majority Op. 29, the evidence in
question is actually Officer Kraus’s testimony regarding his
report of statements Lee purportedly made to him post-arrest.
These were not transcribed statements, nor were they statements
in Lee’s own words, and the report was not made part of the
record as far as I can tell.
2. would use them against anyone
who threatens him or his family.

3. He stated that he shot at an
individual named Pickles, who was
well known as Ernest Harris, on
multiple occasions.

4. He went on to say that I arrested
Pickles, which is true, in the past,
with a firearm. And Mr. Lee
claimed that on that night, that
Ernest Harris, Pickles was arrested,
that Pickles was actually on his way
with that gun to kill Mr. Lee. He
acknowledged that and said that
there’s a long time, ongoing violent
feud between Mr. Lee’s family and
Pickles. . . .

5. Lee continued to insist that he
did not have any weapons in the car
when I stopped him on June 27th,
but he did compare that to a time
when he stated that he fled from me
before in the Hill District. He
asked me if I remembered the time
that I chased him and lost the car
that started on Morgan Street in the

2
hill. As I was remembered, he
stated that I pulled behind him, I
had my — at that time in a marked
police car, when I was in uniform
in patrol in the Hill District, I guess
I was behind him, according to him,
and I had my white illumination
lights, which are like spotlights
contained on the light bar of the car
which we can access, and when he
saw those lights, he claimed that he
thought I was preparing to pull him
over. So he stopped, motioned me
alongside of him to ask for
directions to Chauncey Street. I did
remember that. He went on to say
that he had — I had gotten out of
the car because I had smelled
marijuana and as I approached, the
car he took off. And I do
remember this. It would have been
probably back in 2001 or 2002. I
didn’t know at the time it was Mr.
Lee. There was no connection at
that point, but I did remember that.

6. He further told me that if I would
have caught him that night, I would
have caught him with guns in the
car, but, again, he continued to
insist that he had no guns in the car

3
 on June 27th when I stopped him.

App. 417-18. The majority concludes that the initial references
to the facts that Lee had access to guns and would use them to
protect his family (statements 1 and 2), and that he had an
ongoing violent feud with Ernest “Pickles” Harris (statement 4),
were admissible as probative of Lee’s “motive,” 2 and that this
outweighed the prejudice caused by the reference to his prior
gun possession. It reasons that the rest of the passage
(statements 5 and 6) should not have been admitted but that its
admission does not require a new trial because it was “highly
probable” that the offending statements did not contribute to the
verdict. I respectfully disagree.

As a trial court judge, I was always concerned about
references to past possession or use of guns in gun cases, and
references to past possession or use of drugs in drug cases.
While often admissible as going to a proper purpose under Rule

2
The majority does not explicitly discuss the admission of
statement 3, the statement that Lee “shot at an individual named
Pickles, who was well known as Ernest Harris, on multiple
occasions,” instead folding this statement into its analysis
regarding the “violent feud” between Lee and Harris. Majority
Op. 30. This is significant, given that perhaps the most grave
prior bad act evidence introduced is that Lee supposedly stated
that he had shot at Harris. It is not clear how the fact that Lee
shot at Harris ‘adds’ anything relevant to Lee’s motive for
possessing a gun, once it is established that Lee and Harris are
engaged in an ongoing violent feud.

4
404(b), from an evidentiary standpoint, this type of evidence
makes the jury’s job (i.e. to avoid using this type of evidence as
branding the defendant as a gun or drug criminal) very difficult,
as a practical matter.

While the potential impact of this type of evidence can
nonetheless be contained by specific instructions to the jury, the
prejudice resulting from evidence of guns and drugs is immense.
As the Advisory Committee’s Note to Rule 404(a) indicates, this
type of character evidence epitomizes what “prejudice” is all
about:

Character evidence is of slight
probative value and may be very
prejudicial. It tends to distract the
trier of fact from the main question
of what actually happened on the
particular occasion. It subtly
permits the trier of fact to reward
the good man and to punish the bad
man because of their respective
characters despite what the
evidence in the case shows actually
happened.

Fed. R. Evid. 404(a) Advisory Committee’s Note. I submit that
the potential for such “distraction” is especially great in gun and
drug cases.

Prior bad act evidence is governed by Rule 404(b),
which, as the majority notes, involves a four-step test requiring

5
courts to assess proper purpose and relevance, to weigh
prejudice against probative value under Rule 403, and to offer
an appropriate limiting charge to the jury. Huddleston v. United
States, 485 U.S. 681, 691-92 (1988). The Advisory Committee
Notes to Rule 404(b) state that, while evidence of other wrongs
or acts is “not admissible to prove character as a basis for
suggesting the inference that conduct on a particular occasion
was in conformity with it,” such evidence “may be offered for
another purpose, such as proof of motive, opportunity, and so
on, which does not fall within the prohibition.” None of the
statements here were admitted for a proper purpose.

First of all, the part of the statement that the majority has
held is probative of motive, regarding Lee’s willingness to use
guns to protect his family and the ongoing feud in which he is
engaged, is only a small part of what the jury heard. As noted
above, the jury also heard Officer Kraus testify that Lee told him
that he had access to “a lot of guns,” that he has shot at Ernest
“Pickles” Harris “on multiple occasions,” that he has previously
fled from Officer Kraus because Officer Kraus smelled
marijuana coming from his car, and that he did have guns in his
car during this previous encounter with Officer Kraus. None of
these other, very colorful, statements—which I have labeled 1,
3, 5, and 6—go to Lee’s motive for possessing guns in general,
let alone to his motive for possessing a rifle on this particular
occasion. The majority rightly criticizes the “proper purpose”
theories offered by the Government other than motive
(knowledge, intent, absence of mistake, modus operandi),
recognizing that the only statements that may have been
properly admitted are those that could be relevant to motive.
The other statements from Officer Kraus’s testimony have no

6
probative value and fail the ‘relevance’ test of Huddleston
entirely. They should have been excised from what the jury
heard.3

The other two portions of Officer Kraus’s testimony,
referencing the facts that Lee would use guns to protect his
family and that he is in an ongoing violent feud with Ernest
“Pickles” Harris, present closer calls. The majority found these
statements admissible as probative of Lee’s “motive.” I am less
sure.

First, it is questionable that “motive” is relevant in a case
such as this. Lee did not contend that he had no reason to
possess a gun, and we are not faced with a situation where
answering “why” would help solve the crime of possession.
There is no suggestion in the record that Lee was on his way to
a confrontation with Ernest “Pickles” Harris, or to protect his
family, or to do anything else with a gun at that particular
moment. If relevant at all, Lee’s family feud is not of great
probative value with respect to the question of whether he in

3
The majority takes me to task for parsing the statements in
a way the defense did not, Majority Op. n.20, since the defense
urged total exclusion. But I urge total exclusion as well. And
the statements are parsed only for ease of reference and in order
to follow the majority’s analysis which distinguishes among
them.

7
fact was in possession of a gun on this particular occasion.4

Second, and perhaps most importantly, the District Court
did not rule that these statements were admissible as relevant to
motive. Instead, the District Court ruled that the statements
were “admissible to prove intent, knowledge and/or the absence
of mistake.” 5 App. 5. The majority quite properly rejects the
“knowledge” theory of admissibility, but concludes that the
“government does far better with motive as a theory of
admissibility,” Majority Op. 33, in effect substituting its own
theory as to why some of the statements might have been
permissibly admitted. The majority’s conclusion as to relevance
to motive is undermined by the fact that we are to review the
ruling of the District Court, which held that “[e]vidence that
Defendant had knowingly possessed firearms at other times is
proper to prove knowledge and intent and not excludable under
Rule 404(b).” App. 5. This is the ruling that we are to
review—not some hypothetical alternative ruling that the
District Court might have made. It is true that the Government
argued the motive theory, briefly, before the District Court, and
it advances that theory before us as well. The District Court did

4
We have noted that the probative value of prior bad acts
evidence “is significantly less” when the defense is that the
defendant did not perform the charged act at all. United States
v. Daraio, 445 F.3d 253, 265 (3d Cir. 2006) (quoting United
States v. Jemal, 26 F.3d 1267, 1273 n.3 (3d Cir. 1994)).
5
The District Court did refer to “state of mind, knowledge,
motive or intent” in its instructions to the jury. App. 596.

8
not admit the statements as relevant to Lee’s motive. Indeed,
the fact that this theory was advanced by the Government, but
not relied upon by the District Court in its ruling, actually
suggests that the District Court rejected this rationale.6
Accordingly, we must consider the District Court’s stated
rationale for admitting the statements: that “[e]vidence that
Defendant had knowingly possessed firearms at other times is
proper to prove knowledge and intent.” App. 5.

As the majority convincingly argues, the knowledge and
intent rationales for admitting the statements do not hold water:

Lee’s trial . . . was not about
whether he knew that he had a rifle

6
The majority writes: “By offering motive as a basis on
which the jury could consider the evidence, the District Court
necessarily concluded that motive was a proper basis for
admission of one or more of the statements.” Majority Op. 34
n.19. Although this inference might make sense in theory, it is
not appropriate here. The District Court instructed the jury that
it could consider the statements for state of mind, knowledge,
motive, intent, or absence of accident or mistake. App. 596.
But there is no reason to suppose that the District Court
concluded that, for example, absence of accident or mistake was
a proper basis for admission. Rather, it seems that the District
Court was simply reciting the litany of potentially proper
purposes. More to the point, if the District Court concluded that
motive was a proper basis for admission, it should have said so.

9
 in the back seat of his Jeep. There
was no question of accident or
mistake. Rather, Lee’s defense was
simply that there was no rifle in his
Jeep and that the rifle recovered at
the Apartments was not his. . . .
Lee has not put knowledge at issue.
Lee is not arguing that he did not
know there was a rifle in his back
seat. His argument is a
straightforward denial that any gun
was there.

Majority Op. 32. Thus, evidence going to either knowledge or
intent is not “relevant” as required by Huddleston’s second
prong, a fact the majority implicitly recognizes in a footnote.
Majority Op. 31 n.18. I conclude, therefore, that the two
statements were admitted for an improper purpose.

We might be able to somehow justify the admission of
these statements, albeit for the wrong reason, were it not for the
importance we have placed on having the trial court draw the
jury’s attention to the specific aspect of the case to which the
particular evidence relates. In United States v. Sampson, the
Government urged the admissibility of a prior drug conviction
as demonstrating “plan or scheme” and “refuting an accident or
mistake” defense. 980 F.2d 883, 885 (3d Cir. 1992). The trial
court indicated that the evidence “fall[s] within the purview of
the exceptions listed in 404(b),” and instructed the jury that
“[y]ou may consider the defendant’s prior convictions only as
they relate to proof of motive, opportunity, intent, preparation,

10
plan, knowledge, identity, or absence of mistake or accident, and
not for any other purpose.” Id. at 888-89. We reversed and
remanded, after concluding that both the ruling and the
instructions were flawed, and, furthermore, that the Rule 403
balancing required under Rule 404(b) was not apparent from the
record. Id. Regarding the trial court’s ruling, we said:

The district court, if it admits the
evidence, must in the first instance,
rather than the appellate court in
retrospect, articulate reasons why
the evidence also goes to show
something other than character.
Unless the reason is apparent from
the record, a mere list of the
purposes found in Rule 404(b) is
insufficient. The district court must
put a chain of inferences into the
record, none of which is the
inference that the defendant has a
propensity to commit this crime.

Id. at 888.7 As to the instruction to the jury, we said:

7
Contrary to the majority’s contention that the reason for
admission would have been apparent from the record, Majority
Op. 34 n.19, I submit that the jury would not readily understand
that the gun feud evidence was relevant to, and only to, Lee’s
motive.

11
 This instruction does not cure the
error. Where the government has
not clearly articulated reasons why
the evidence is relevant to any
legitimate purpose, there is no
realistic basis to believe that the
jury will cull the proper inferences
and material facts from the
evidence. By simply repeating the
entire litany of permissible theories
under Rule 404(b), the judge’s
instruction gave the jury inadequate
guidance. It also failed to limit the
government to the theories it
proffered in support of admission
of the evidence.

Id. at 889. As to the balancing of probative value versus
prejudice, we noted:

When a court engages in a Rule
403 balancing and articulates on the
record a rational explanation, we
will rarely disturb its ruling.
Where, however, the court failed to
perform this analysis, or where its
rationale is not apparent from the
record, there is no way to review its
discretion.

12
Id. at 889 (citation omitted). We concluded:

In sum, we are not holding that the
evidence of Sampson’s prior drug
convictions is not relevant to a
proper purpose. We simply hold
that a legitimate relevance has not
been properly demonstrated and
that the record does not show that
the court conducted a Rule 403
balancing. In the new trial, if the
government again tries to introduce
the evidence, it must carry the
burden of proffering a rational
chain of inferences and the district
court must then evaluate the given
reasons in the context of the
developing case and give the
rationale for its ruling. We will
reverse and remand for a new trial.

Id. Thus, we held in Sampson that the district court must
identify the proper purpose and instruct the jury as to exactly
how it should use the evidence.8 That did not occur here.

8
The Third Circuit Manual of Model Jury Instructions makes
this same point, instructing judges to “describe the precise
purpose or purposes for which the other act evidence was
admitted,” and to “[p]ick those of the following, or other
reasons, that apply,” followed by a list of example reasons,

13
Instead, the District Court instructed the jury reciting the litany
of possible proper purposes: “You may consider this evidence
only for the purpose of deciding whether the defendant had the
state of mind, knowledge, motive or intent necessary to commit
the crime charged in the indictment, or did not commit the acts
for which he is on trial by accident or mistake.” App. 596. The
Rule 403 balancing was a single statement in the District
Court’s ruling: “Additionally, such evidence is highly probative
and not excludable under Rule 403 as its prejudicial effect does
not outweigh its probative value.” App. 5.

including state of mind, knowledge, intent, motive, opportunity,
preparation, planning, modus operandi, absence of accident or
mistake, and identity. Third Circuit Mod. Crim. Jury Instr. 4.29
(emphasis added). The Comment to the Model Instructions also
stresses that the “instruction should not merely include a laundry
list of permitted uses of other act evidence. Rather, it should
specifically state the limited purpose for which the other act
evidence is admitted.” Third Circuit Mod. Crim. Jury Instr. 4.29
cmt. (citing Michael H. Graham, Handbook of Federal
Evidence, § 404.5 n.56 (5th ed. 2001)).
The majority suggests that the District Court’s instruction
“followed nearly word-for-word our Circuit’s model 404(b)
instruction.” Majority Op. 40 n.25. Although it is true that the
words the District Court used are found in our Circuit’s model
instruction, the District Court failed to do as the manual advises,
namely, to “describe the precise purpose” for which the other act
evidence was admitted, and to “pick” the reasons that apply.

14
 Although our review standard is extremely deferential,9
we should be hard-pressed to approve of the District Court’s
ruling as to the admissibility of even the motive evidence when
the District Court failed to identify the correct purpose, conduct
the Rule 403 balancing with reference to the correct purpose, or
draw the jury’s attention to the purpose that even the majority
concludes was the only permissible purpose, namely, motive. I
conclude that, in light of the plain language of Rule 404 and our
ruling in Sampson, the District Court did err here because the
reasoning, instructions, and balancing were inadequate as to the
“motive” statements. I also conclude that, even if arguably
relevant to some proper purpose, the extremely prejudicial
nature of these statements outweighed any probative value under
the Rule 403 prong. The majority never addresses the issue of
prejudice, but as I noted above, when the crime pertains to guns
I suggest that painting the defendant’s character and past as
effectively gun-filled is prejudicial indeed. As to the rest of the
statements, they did nothing other than reinforce the notion that
Lee is the type of person who possesses guns, shoots them at
people, carries them in his car, and has run-ins with, and evades,
law enforcement. This testimony had no proper purpose or
probative value whatsoever.

9
While we are to be deferential to the trial court and review
for abuse of discretion, here the District Court did not admit any
of the statements for a proper purpose under Rule 404, and
violation of the Rule is an abuse of discretion. “A district court
by definition abuses its discretion when it makes an error of
law.” Koon v. United States, 518 U.S. 81, 99 (1996).

15
 Given the damning nature of these statements, I think it
very difficult to conclude that the introduction of these
statements was harmless. The majority correctly notes that the
appropriate test for ‘harmlessness’ is “whether it is highly
probable that evidentiary error did not contribute to conviction.”
Majority Op. 36 (citing United States v. Ali, 493 F.3d 387, 392
n.3 (3d Cir. 2007) (citing Gov’t of V.I. v. Toto, 529 F.2d 278,
283-84 (3d Cir. 1976))). But, we have also stated that an
appropriate standard for “errors affecting nonconstitutional trial
rights,” as in this case, is “whether the error ‘had substantial and
injurious effect or influence in determining the jury’s verdict.’”
United States v. Toliver, 330 F.3d 607, 612 (3d Cir. 2003)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
These two statements of the test are both borne of the Supreme
Court’s reasoning in Kotteakos. In Government of the Virgin
Islands v. Toto, the case from which the majority draws its test,
we noted that “[w]e are thus required to apply in this case the
test of Kotteakos. We must decide ‘whether the error itself had
substantial influence (on the minds of the jury.) [sic] If so, or if
one is left in grave doubt, the conviction cannot stand.’” 529
F.2d at 283 (citing Kotteakos, 328 U.S. at 765). We also noted
that “stating the test is easier than applying it,” id., which
remains true even if we focus only on the question of whether it
is highly probable that evidentiary error did not contribute to
conviction. It is worth returning to Kotteakos for guidance, as
the Supreme Court eloquently expounded on the proper way in
which we, the reviewing court, should assess whether an error
was “harmless” in the context of determining the effect of errors
in a criminal case:

[I]t is not the appellate court’s

16
function to determine guilt or
innocence. Nor is it to speculate
upon probable reconviction and
decide according to how the
speculation comes out. Appellate
judges cannot escape such
impressions. But they may not
make them sole criteria for reversal
or affirmance. Those judgments
are exclusively for the jury, given
always the necessary minimum
evidence legally sufficient to
sustain the conviction unaffected
by the error.

But this does not mean that
the appellate court can escape
altogether taking account of the
outcome. To weigh the error’s
effect against the entire setting of
the record without relation to the
verdict or judgment would be
almost to work in a vacuum. In
criminal causes that outcome is
conviction. This is different, or
may be, from guilt in fact. It is
guilt in law, established by the
judgment of laymen. And the
question is, not were they right in
their judgment, regardless of the
error or its effect upon the verdict.

17
It is rather what effect the error had
or reasonably may be taken to have
had upon the jury’s decision. The
crucial thing is the impact of the
thing done wrong on the minds of
other men, not on one’s own, in the
total setting.

This must take account of
what the error meant to them, not
singled out and standing alone, but
in relation to all else that happened.
And one must judge others’
reactions not by his own, but with
allowance for how others might
react and not be regarded generally
as acting without reason. This is
the important difference, but one
easy to ignore when the sense of
guilt comes strongly from the
record.

If, when all is said and done,
the conviction is sure that the error
did not influence the jury, or had
but very slight effect, the verdict
and the judgment should stand,
except perhaps where the departure
is from a constitutional norm or a
specific command of Congress.
But if one cannot say, with fair

18
 assurance, after pondering all that
happened without stripping the
erroneous action from the whole,
that the judgment was not
substantially swayed by the error, it
is impossible to conclude that
substantial rights were not affected.
The inquiry cannot be merely
whether there was enough to
support the result, apart from the
phase affected by the error. It is
rather, even so, whether the error
itself had substantial influence. If
so, or if one is left in grave doubt,
the conviction cannot stand.

328 U.S. at 763-65.

Accordingly, we are not to look solely at the quality or
quantum of the evidence of guilty (“whether there was enough
to support the result,” id. at 765), but “even so” did the error
have “substantial influence.” Here, the other evidence of guilt
was not overwhelming; every aspect was a judgment call: Was
Digger’s reaction a clear identification that the rifle in the woods
was Lee’s rifle? Was what Officer Kraus saw in Lee’s car,
during the brief time it was stopped, a rifle? Lee was never seen
in the woods; he was found in an apartment, hiding in a couch,
two weeks later. There was no forensic evidence or eyewitness
who ever saw Lee with the gun in question, or who could
identify the gun as Lee’s. If the jury knew nothing about Lee,
would it have been more likely to have had reasonable doubt

19
and acquit? Did the statements detailing Lee’s extensive
experience with guns, and prior criminal activity known to
Officer Kraus, sway or influence the jury? 10 “If, when all is said
and done, the conviction is sure that the error did not influence
the jury, or had but very slight effect, the verdict and the
judgment should stand.” Id. at 764. In light of the nature of the
other evidence, and the nature of the statements, I do not have
this “conviction,” and am left in “grave doubt.” I would thus
conclude that the error was not harmless and that a new trial is
warranted.

10
It is worth noting that, since the statements were presented
as coming from Lee himself, additional concerns arise. In a
different context, the Supreme Court has stated “admissions of
a defendant come from the actor himself, the most
knowledgeable and unimpeachable source of information about
his past conduct. Certainly, confessions have profound impact
on the jury, so much so that we may justifiably doubt its ability
to put them out of mind even if told to do so.” Arizona v.
Fulminante, 499 U.S. 279, 296 (1991) (citation omitted).
Fulminante dealt with the admission of a coerced confession;
here, we have no issue of coercion. However, because it was
reported by Kraus (whose credibility was a central concern in
the case), and it was not committed to writing or acknowledged
by Lee, we arguably face similar concerns as to reliability: “the
risk that the confession is unreliable, coupled with the profound
impact that the confession has upon the jury, requires a
reviewing court to exercise extreme caution before determining
that the admission of the confession at trial was harmless.” Id.

20