United States v. Moran

FILED
United States Court of Appeals
Tenth Circuit

PU BL ISH
September 25, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 06-2175

D A V ID S. M O RA N ,

Defendant - Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D. Ct. No. CR-05-1547 W PJ)

Dennis J. Candelaria, Assistant Federal Public Defender, Office of the Federal
Public Defender for the District of New M exico, Las Cruces, New M exico,
appearing for Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with her on the brief), Office of the United States Attorney for
the District of New M exico, Las Cruces, New M exico, appearing for Plaintiff-
Appellee.

Before TA CH A, Chief Circuit Judge, BR ISC OE, and GORSUCH, Circuit
Judges.

TA CH A, Chief Circuit Judge.
 A jury convicted Defendant-Appellant David M oran of one count of being a

felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). He appeals

his conviction, arguing that the District Court erred in refusing to grant his

motion to suppress evidence, abused its discretion by admitting evidence of a

prior conviction under Federal Rule of Evidence 404(b), and erred by failing to

instruct the jury on his theory of defense. W e exercise jurisdiction pursuant to 28

U.S.C. § 1291 and AFFIRM .

I. BACKGROUND

On January 8, 2005, W anetta Ferguson, a resident of M ayhill, New M exico,

in Otero County, reported a trespasser on her property on Sleeping Bear Lane. 1

Located in the Sacramento M ountains, M ayhill is a rural comm unity that is not

densely populated. The Fergusons’ property borders a national forest, and the

easiest way to access the public lands of the forest from Sleeping Bear Lane is by

crossing the Fergusons’ property or the neighboring property, which belongs to

the Pattersons. Licensed individuals may hunt on these public lands, and this

particular time of year was bow hunting season.

Sergeant John Braziel of the Otero County sheriff’s office received a

1
Under New M exico law, criminal trespass “consists of knowingly entering
or remaining upon posted private property without possessing written permission
from the owner or person in control of the land,” N .M . Stat. § 30-14-1(A ) (2006),
or “knowingly entering or remaining upon the unposted lands of another knowing
that such consent to enter or remain is denied or withdrawn by the owner or
occupant thereof,” id. § 30-14-1(B). Criminal trespass is a misdemeanor. Id.
§ 30-14-1(E).

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dispatch reporting the trespass complaint at approximately 11:49 a.m. He

responded to M rs. Ferguson’s report and spoke to M rs. Ferguson at her residence.

M rs. Ferguson reported that she saw M r. M oran on her property earlier that day

and that the Fergusons had told him several times that he does not have

permission to be there. Sergeant Braziel did not see M r. M oran on the property,

but told M rs. Ferguson that he would tell M r. M oran to stay off her property the

next time he saw him.

Later that day, at approximately 4:45 p.m., Sergeant Braziel received a

second report that M r. M oran was trespassing on the Fergusons’ property and

again set out for the property. Officer Ty Jackson of the New M exico Department

of Game and Fish heard the call from Otero County dispatch reporting the

trespassing complaint and also responded to the call. 2 Cloudcroft Chief of Police

Gene Green responded as w ell. 3

Sergeant Braziel and Officer Green arrived at the Fergusons’ property at

approximately 5:00 p.m. Officer Jackson arrived shortly thereafter. Sergeant

Braziel and Officer Jackson observed a black SUV parked across the road at

W illiam B arr’s residence. Sergeant Braziel knew that M r. M oran usually drove

2
The Game and Fish officers often handle trespass complaints related to
hunting and have the authority to make arrests for trespassing in conjunction with
violations of state game and fish laws.
3
W e refer to Sergeant Braziel, Officer Jackson, and Chief Green
collectively as “the officers.”

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one of tw o vehicles, a w hite jeep or a black SUV.

Sergeant Braziel spoke with M r. and M rs. Ferguson, who told Sergeant

Braziel that M r. M oran was still on their property or on the hill behind it.

Sergeant Braziel looked around the area surrounding the Fergusons’ residence,

but did not see M r. M oran. M eanwhile, Officer Jackson interviewed the

Fergusons’ neighbors, the Pattersons. The Pattersons’ property adjoins the

Fergusons’ and also borders the national forest. M r. Patterson told Officer

Jackson that they had given M r. M oran permission to cross their property to go

hunting in the national forest after he threatened to kill all the deer behind their

property if they refused. After speaking with the Pattersons, Officer Jackson

returned to the Fergusons’ property, where Sergeant Braziel and Chief Green

were waiting. Officer Jackson spoke with M r. Ferguson, who reported having had

several confrontations with M r. M oran about trespassing on his land and indicated

he did not want M r. M oran on his property.

W hile the officers were talking to the Fergusons, the black SUV pulled out

of M r. Barr’s driveway. Sergeant Braziel, Officer Jackson, and Chief Green, all

in separate patrol vehicles, followed the vehicle, and Sergeant Braziel stopped the

SUV approximately one-quarter of a mile from the B arr residence. It was dark

when Sergeant Braziel stopped the vehicle. Sergeant Braziel exited his car and

approached the SUV, shining his flashlight through the w indows to see if there

were any passengers inside the car. W hen he did so, he saw the butt of a rifle

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stock sticking out of an unzipped rifle case on the back seat. On the seat next to

the rifle w ere a bow and arrows. Sergeant Braziel asked M r. M oran, the sole

occupant of the vehicle, to exit the SUV, and M r. M oran complied. Sergeant

Braziel then asked M r. M oran who owned the rifle, and M r. M oran responded that

it belonged to his girlfriend, M elinda Cheek. M s. Cheek also apparently owned

the SUV. M r. M oran explained to the officers that he had been bow hunting.

As Sergeant Braziel and Chief G reen conducted a records check on M r.

M oran, Officer Jackson asked for and received permission to look inside the

SU V. Officer Jackson opened the rear passenger door, removed the rifle case,

and asked M r. M oran if the rifle was loaded. M r. M oran responded that it w as.

Officer Jackson asked M r. M oran why he had the rifle, and M r. M oran responded

that he always had a rifle in his vehicle. The incident ended when Officer

Jackson arrested M r. M oran on an unrelated warrant.

A grand jury returned an indictment against M r. M oran for being a felon in

possession of a firearm on July 21, 2005. On November 1, 2005, M r. M oran filed

a motion to suppress physical evidence and statements, which the D istrict Court

denied. On January 26, 2006, M r. M oran filed a motion in limine to exclude

evidence of his prior convictions, and on February 3, the United States filed a

notice of intent to offer evidence of other crimes or bad acts pursuant to Federal

Rule of Evidence 404(b). The court granted M r. M oran’s motion in part,

excluding all evidence of prior convictions except for a M arch 1994 conviction

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for being a felon in possession of a firearm. M r. M oran’s case went to trial on

February 14, and at the end of the trial, the D istrict Court declined to give M r.

M oran’s requested jury instructions relating to knowledge and possession. A jury

found M r. M oran guilty on February 16, 2006, and he timely filed a notice of

appeal.

II. D ISC USSIO N

A. Reasonable Suspicion to Stop M r. M oran

W hen reviewing the denial of a motion to suppress, “we accept the district

court’s factual findings and determinations of w itness credibility unless they are

clearly erroneous.” United States v. Harris, 313 F.3d 1228, 1233 (10th Cir. 2002)

(quotation omitted). “W e are permitted to consider evidence introduced at the

suppression hearing, as well as any evidence properly presented at trial,” id., and

we view the evidence in the light most favorable to the government, United States

v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004). W e review de novo the ultimate

question of reasonableness under the Fourth Amendment. Id.

The Fourth Amendment protects individuals from “unreasonable searches

and seizures.” U.S. Const. amend. IV. “[S]topping a car and detaining its

occupants [for investigatory purposes] constitute[s] a seizure within the meaning

of the Fourth Amendment.” United States v. Hensley, 469 U.S. 221, 226 (1985).

W e measure the constitutional validity of an investigatory stop by the standard set

forth in Terry v. Ohio, 392 U.S. 1 (1968), asking whether the stop is “supported

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by a reasonable suspicion of criminal activity.” United States v. Treto-Haro, 287

F.3d 1000, 1004 (10th Cir. 2002). In so doing, “we examine the events that

occurred leading up to the stop to determine whether the ‘historical facts, viewed

from the standpoint of an objectively reasonable police officer, amount to

reasonable suspicion.’” United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.

2004) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). W e have

explained that “an officer with reasonable suspicion need not ‘rule out the

possibility of innocent conduct’ as long as the totality of the circumstances

suffices to form ‘a particularized and objective basis’” for a stop. Id. (quoting

United States v. Arvizu, 534 U.S. 266, 277–78 (2002)).

M r. M oran argues that the District Court should have suppressed physical

evidence obtained after officers unlawfully stopped the SUV he was driving.

Specifically, M r. M oran argues that the stop was unreasonable because the

officers did not have a reasonable suspicion that he was driving the SUV when

they pulled him over. In addition, M r. M oran contends that police may stop an

individual based on suspicion of past criminal activity only when the crime at

issue is a felony offense; because the officers were investigating a completed

misdemeanor, he argues the stop violated the Fourth Amendment. As w e explain

below, we reject both arguments.

1. Reasonable Suspicion that M r. Moran was Driving the SUV

W e first address M r. M oran’s argument that the officers did not have

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reasonable suspicion that he was driving the SUV. M r. M oran does not dispute

that the officers had a reasonable suspicion that he criminally trespassed on the

Fergusons’ property. Instead, he argues that the officers lacked particularized

suspicion that he was driving the black SUV. To the contrary, the totality of

circumstances here is sufficient to lead an objectively reasonable officer to

believe that M r. M oran was driving the black SUV when the officers stopped the

vehicle.

The evidence shows that M rs. Ferguson had encountered M r. M oran in the

past on her property. As a result, M rs. Ferguson could reliably identify him as

the alleged trespasser when she reported the two incidents of trespass to the O tero

County sheriff’s office. See Adams v. W illiams, 407 U.S. 143, 146–47 (1972)

(concluding officer had reasonable suspicion to stop defendant based on

information from a citizen informant); United States v. Tucker, 305 F.3d 1193,

1201 (10th Cir. 2002) (noting that citizen informants known to police are

presumed to be reliable). W hen Sergeant Braziel arrived at the Fergusons’

property at approximately 5:00 p.m., the Fergusons reported that M r. M oran was

still on their property or in the area behind it. Sergeant Braziel observed a black

SU V across the road from the Fergusons’ property and had personal knowledge

that one of the cars M r. M oran drove was a black SUV. Thus, the totality of the

circumstances— the Fergusons’ reliable report that M r. M oran was in the vicinity

of the alleged crime, the fact that Sergeant Braziel saw a black SUV in the

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immediate vicinity of the alleged crime, and his knowledge that M r. M oran drove

a black SUV— is sufficient to establish a reasonable suspicion that M r. M oran was

driving the black SU V .

2. Legality of Stop Based on Suspicion of a Completed M isdemeanor

M r. M oran also argues that the stop violated the Fourth Amendment

because the officers stopped the vehicle to investigate a completed misdemeanor.

In United States v. Hensley, the Supreme Court held that the Fourth Amendment

permits police officers to conduct an investigatory stop if they have a “reasonable

suspicion, grounded in specific and articulable facts, that a person they encounter

was involved in or is wanted in connection with a completed felony.” 469 U.S. at

229. The Court made clear, however, that “[w]e need not and do not decide today

whether Terry stops to investigate all past crimes, however serious, are

permitted.” Id. Despite the Court’s explicit reservation, M r. M oran argues that

Hensley prohibits all investigatory stops based on reasonable suspicion of a

completed misdemeanor. W e note that this is a matter of first impression in our

Circuit and that the Sixth and Ninth Circuits have split on the issue. Com pare

Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004)

(“Police may . . . make a stop when they have reasonable suspicion of a

completed felony, though not of a mere completed misdemeanor.”), with United

States v. Grigg, — F.3d — , 2007 W L 2379615, at *9 (9th Cir. 2007) (holding

that, in reviewing the reasonableness of a stop to investigate a completed

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misdemeanor, a court “must consider the nature of the misdemeanor offense in

question, with particular attention to the potential for ongoing or repeated danger

. . . and any risk of escalation”). M indful of “the fact-specific nature of the

[Fourth Amendment] reasonableness inquiry,” Ohio v. Robinette, 519 U.S. 33, 39

(1996), we hold that the officers’ investigatory stop of M r. M oran was reasonable

in light of the particular facts and circumstances of this case.

Following the Supreme Court’s approach in Hensley, we determine the

constitutionality of an investigatory stop by balancing “the nature and quality of

the intrusion on personal security against the importance of the governmental

interests alleged to justify the intrusion.” Hensley, 469 U.S. at 228. 4 W e first

evaluate the governmental interests involved in the officers’ stop of M r. M oran.

In Hensley, the Court explained that the governmental interest in crime prevention

4
M r. M oran cites United States v. Halliburton, 966 F.2d 1454, 1992 W L
138433 (6th Cir. 1992), an unpublished Sixth Circuit case, to convince this Court
to adopt the rule that seizure based on suspicion of a completed misdemeanor is
per se unreasonable. W e are not persuaded, however, by the Sixth Circuit’s
reasoning. In Halliburton, the court concluded— based solely on Hensley’s
holding that a stop involving investigation of a completed felony may be
reasonable— that an officer’s seizure of an individual based on suspicion of
misdem eanor indecent exposure was unreasonable. 1992 W L 138433, at *4. The
Sixth Circuit did not balance the nature of the seizure against the governmental
interests implicated under the circumstances to reach this conclusion. Indeed, the
Sixth Circuit has indicated that police may never base reasonable suspicion on a
completed misdemeanor. See Gaddis, 364 F.3d at 771 n.6. This approach is
contrary to the reasoning in Hensley. See Grigg, 2007 W L 2379615, at *5
(concluding “the Supreme Court’s methodology in Hensley applies” to the
reasonableness analysis of a stop based on a completed misdemeanor). As we
explain above, to determine whether a stop based on past criminal activity is
reasonable, w e engage in a fact-specific balancing test.

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and detection, necessarily implicated in a stop to investigate ongoing or imminent

criminal conduct, may not be present when officers are investigating past criminal

conduct. Id. at 228. A stop to investigate past criminal activity may, however,

serve the governmental interest in “solving crimes and bringing offenders to

justice.” Id. at 229. This interest is particularly strong when the criminal activity

involves a threat to public safety. Id. (noting the interest is particularly strong “in

the context of felonies or crimes involving a threat to public safety”); see also

Grigg, 2007 W L 2379615, at *8 (holding a “court reviewing the reasonableness of

an investigative stop must consider the nature of the offense, with particular

attention to any inherent threat to public safety associated w ith the suspected past

violation”).

The circumstances of the present case implicate a strong governmental

interest in solving crime and bringing offenders to justice because the alleged

underlying criminal activity posed an ongoing risk to public safety. First, a

criminal trespass inherently involves some risk of confrontation with the property

owner. Importantly, in this case, the risk of confrontation was not hypothetical.

M r. Ferguson reported that he had previously encountered M r. M oran on his

property and had confronted him about trespassing. See Grigg, 2007 W L

2379615, at *9 (noting police may consider “past altercation with a potential for

violent escalation” as a threat to public safety). The record also shows that the

officers received reliable information that M r. M oran had threatened the

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Pattersons to gain access across their land to the national forest. Furthermore,

because M r. M oran was allegedly crossing the Fergusons’ property to hunt, a

reasonable officer could assume that he was likely carrying a weapon. Finally,

the officers had reason to believe that criminal activity would recur: the officers

received two complaints on the same day that M r. M oran w as trespassing across

private property for the purpose of hunting, and the Fergusons’ reports indicated

that the trespassing was a recurring problem. See id. at *8 (noting law

enforcement interest is stronger when intervention of “investigating officer might

eliminate any ongoing risk that an offending party might repeat the completed

misdemeanor or . . . might stem the potential for escalating violence arising from

such conduct”). In sum, the alleged history of confrontation and threats,

combined with the specific nature of the trespass (i.e., for the purpose of hunting)

and the likelihood that the alleged criminal activity would recur, created a

situation “involving a threat to public safety,” Hensley, 469 U.S. at 229. Under

these circumstances, “it is in the public interest that the crime be solved and the

suspect detained as promptly as possible.” Id.

W e acknowledge that the governmental interest in solving crime may be

weaker w hen police have alternative methods of investigating the crime. See id.

(explaining that, “where police have been unable to locate a person suspected of

involvement in a past crime,” an investigatory stop promotes the strong

governmental interest in solving crimes (emphasis added)). Here, the officers

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knew M r. M oran and could have attempted to locate him at his home or

elsewhere. But because M r. M oran had allegedly committed the criminal trespass

just minutes before the officers stopped him, the governmental interest in solving

the crime was strong. To restrain police action in such a situation would be to

require police to turn their backs on potential criminal activity and to “enable the

suspect to flee,” id. at 229. Indeed, at the time he w as stopped, M r. M oran more

nearly represented an individual in the process of violating the law or a suspect

fleeing from the scene of a crime than “a suspect in a past crime w ho now appears

to be going about his lawful business,” id. at 228. Under these circumstances,

when past criminal activity suggests an ongoing threat to public safety, a stop

may further a strong governmental interest in solving crime.

Recognizing this governmental interest, we next consider whether, balanced

against the nature of the intrusion, the stop was reasonable. An investigatory stop

is by definition “brief” and “non-intrusive.” United States v. Johnson, 364 F.3d

1185, 1188 (10th Cir. 2004); see also Delaware v. Prouse, 440 U.S. 648, 653

(1979) (noting investigatory stop of automobile “is limited [in purpose] and the

resulting detention quite brief”); United States v. Griffin, 7 F.3d 1512, 1516 (10th

Cir. 1993) (explaining Terry stop is “usually characterized as a brief, nonintrusive

detention during a frisk for weapons or preliminary questioning”). Balanced

against the strong governmental interest in solving crime, the relatively limited

intrusion on personal security occasioned by an investigatory stop was warranted

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and the officers’ seizure of M r. M oran was not unreasonable.

To be clear, w e stress the limited and fact-dependent nature of our holding.

W e do not suggest that all investigatory stops based on completed misdemeanors

are reasonable or even that any stop based on a completed criminal trespass is per

se reasonable. Several facts are essential to our holding: the officers had

reasonable suspicion that M r. M oran repeatedly committed the very same crime in

question (criminal trespass on the Fergusons’ property); the officers received a

report of the same crime earlier on the day of the stop; a reasonable officer could

conclude that M r. M oran was likely to repeat the crime in the future; the specific

nature of the trespass and M r. M oran’s reported history with the Fergusons and

Pattersons indicated a threat to public safety; and the officers encountered M r.

M oran just minutes after the crime allegedly occurred. These facts implicate the

governmental interest discussed above, which when balanced against the brief and

nonintrusive nature of an investigatory traffic stop, render the officers’ actions in

seizing M r. M oran reasonable.

B. Admission of 404(b) Evidence

M r. M oran argues that the District Court abused its discretion by admitting

evidence of his M arch 1994 conviction for being a felon in possession of a

firearm under Federal Rule of Evidence 404(b). W e review a district court’s

evidentiary rulings under Rule 404(b) for abuse of discretion. United States v.

M ares, 441 F.3d 1152, 1156 (10th Cir. 2006). “W e will not reverse a district

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court’s ruling if it falls within the bounds of permissible choice in the

circumstances and is not arbitrary, capricious or whimsical.” Id. (quotations and

alteration omitted).

Under Rule 404(b), evidence of other acts may be admissible for purposes

other than proof of a defendant’s bad character or general propensity to commit

crime. The rule provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .

Evidence is admissible under Rule 404(b) if the four factors identified in

Huddleston v. United States are satisfied: (1) the evidence must be offered for a

proper purpose; (2) it must be relevant; (3) its probative value must not be

substantially outweighed by its potential for unfair prejudice under Rule 403; and

(4) the court must give a proper limiting instruction, if it is requested by the

defendant. 485 U.S. 681, 691–92 (1988).

In the case before us, evidence of the conviction was offered for proper

purposes under Rule 404(b). The G overnment introduced evidence of M r.

M oran’s prior conviction to prove the only challenged element of the felon-in-

possession offense: that M r. M oran “knowingly possessed” the firearm. See

United States v. Ledford, 443 F.3d 702, 705 (10th Cir. 2005) (setting forth

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elements of crime of felon in possession). 5 M r. M oran claimed that he did not

know the rifle, which belonged to his girlfriend, was in the SUV, his girlfriend’s

car. Thus, the Government presented, and the district court admitted, evidence of

the prior conviction to show “knowledge, intent, and absence of mistake or

accident,” proper purposes under Rule 404(b). 6

In addition, the conviction is relevant under Huddleston’s second factor

because it is probative to demonstrate that M r. M oran “knowingly” possessed the

firearm. See United States v. M ills, 29 F.3d 545, 549 (10th Cir. 1994) (affirming

district court’s admission of prior gun possession to show knowledge). M r.

M oran denied knowledge of the rifle in the car, and the government had the

burden of proving knowing possession of the firearm. To prove the knowledge

element of the offense, the government offered evidence that M r. M oran

knowingly possessed a firearm at another point in time. Because the prior

conviction required the same know ledge, evidence of the conviction had a

5
To obtain a conviction for felon in possession, the government must prove:
“(1) the defendant was previously convicted of a felony; (2) the defendant
thereafter knowingly possessed a firearm; and (3) the possession was in or
affecting interstate commerce.” Ledford, 443 F.3d at 705. The parties stipulated
to the first and third elements.
6
The District Court concluded that the conviction was admissible to show
knowledge, intent, and absence of mistake or accident. W e note that the crime of
felon in possession under 18 U.S.C. § 922(g)(1) is a general intent crime. See
Ledford, 443 F.3d at 716. The government need not prove any particular “intent,”
but must show only that a felon possessed a firearm “knowingly.” Id. Thus,
“knowledge” and “intent” are equivalent here.

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“tendency to make the existence of” M r. M oran’s knowledge of the rifle in the

present case “more probable . . . than it would be without the evidence.” Fed. R.

Evid. 401; see also M ares, 441 F.3d at 1157 (noting that, when admitted to show

knowledge, prior acts must be similar to the charged offense). In other words, the

fact that M r. M oran knowingly possessed a firearm in the past supports the

inference that he had the same knowledge in the context of the charged offense.

See United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (“Evidence that

a defendant possessed a firearm on a previous occasion is relevant to show

knowledge and intent.”); United States v. Jernigan, 341 F.3d 1273, 1281 (11th

Cir. 2003) (“[T]he caselaw in this and other circuits establishes clearly the logical

connection between a convicted felon’s knowing possession of a firearm at one

time and his knowledge that a firearm is present at a subsequent time (or, put

differently, that his possession at the subsequent time is not mistaken or

accidental).”); United States v. Cassell, 292 F.3d 788, 795 (D.C. Cir. 2002) (“A

prior history of intentionally possessing guns, or for that matter chattels of any

sort, is certainly relevant to the determination of whether a person in proximity to

such a chattel on the occasion under litigation knew what he was possessing and

intended to do so.”).

W e acknowledge that the use of M r. M oran’s prior conviction to prove

knowledge involves a kind of propensity inference (i.e., because he knowingly

possessed a firearm in the past, he knowingly possessed the firearm in the present

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case). But the inference is specific and does not require a jury to first draw the

forbidden general inference of bad character or criminal disposition; rather, it

rests on a logic of improbability that recognizes that a prior act involving the

same knowledge decreases the likelihood that the defendant lacked the requisite

knowledge in committing the charged offense. See United States v. Queen, 132

F.3d 991, 996 (4th Cir. 1997) (explaining that similar prior act decreases the

likelihood that the charged offense was committed with innocent intent).

M oreover, when other-act evidence is admitted for a proper purpose and is

relevant, it may be admissible even though it has “the potential impermissible

side effect of allowing the jury to infer criminal propensity.” United States v.

Cherry, 433 F.3d 698, 701 n. 3 (10th Cir. 2005) (quotation omitted). That is,

such evidence may be admissible under Rule 404(b) as long as it tends to prove

something other than criminal propensity. See United States v. Tan, 254 F.3d

1204, 1208 (10th Cir. 2001) (“Rule 404(b) is considered to be an inclusive rule,

admitting all evidence of other crimes or acts except that which tends to prove

only criminal disposition.” (quotation omitted)); United States v. Esch, 832 F.2d

531, 535 (10th Cir. 1987) (“Evidence of other acts is not admissible solely to

prove a defendant’s criminal disposition.” (emphasis added)).

Although the evidence’s potential to lead the jury to an impermissible

inference does not automatically prevent its admission, this potential prejudicial

effect is part of a court’s balancing determination under the third Huddleston

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factor. Evidence that is otherwise admissible under Rule 404 may nonetheless be

excluded under Rule 403 “if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury.” Fed.

R. Evid. 403. “Unfair prejudice in the Rule 403 context ‘means an undue

tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.’” Tan, 254 F.3d at 1211 (quoting Fed. R. Evid.

403 advisory committee’s note). Here, the District Court explicitly considered

the probative value of the evidence and its potential prejudicial effect and

determined that “the potential prejudice to the defendant does not outweigh the

highly probative nature of such evidence.” A s we explain below , none of M r.

M oran’s arguments convince us that the court abused its discretion. Cherry, 433

F.3d at 702 (noting we give district courts broad discretion in making Rule 403

balancing decisions).

M r. M oran argues that the court abused its discretion because the prior

conviction was not similar in nature or close enough in time to the charged

offense. But as we explain above, the prior act was sufficiently similar to have

probative value in proving knowledge. In addition, the passage of time does not

diminish the prior act’s probative worth in this case. The determination of

whether a period of time diminishes a prior act’s probative value “will necessarily

depend on the unique facts of each case’s proffered evidence.” M ares, 441 F.3d

at 1159. Here, because M r. M oran denied he had knowledge of the rifle, the prior

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conviction had clear probative value in rebutting this defense. M orever, based on

M r. M oran’s arguments, we have no reason to conclude that the evidence was

unduly prejudicial because it “had substantial potential to cause the jury to decide

the case on an emotional basis.” United States v. Higgins, 282 F.3d 1261, 1274

(10th Cir. 2002). Hence, in balancing the evidence’s probative value against the

danger of unfair prejudice, the district court did not abuse its discretion. See

United States v. Bonnett, 877 F.2d 1450, 1461 (10th Cir. 1989) (“The closeness in

time and the similarity in conduct were matters left to the trial court, and [its]

decision will not be reversed absent a showing of abuse of discretion.”).

Finally, the court satisfied the fourth Huddleston factor by giving a limiting

instruction, which cautioned the jury to consider the evidence “only as it bears on

the defendant’s intent, knowledge, absence of mistake or accident, and for no

other purpose.” See 10th Cir., Criminal Pattern Jury Instructions (2005 ed.), No.

1.30. Because all four Huddleston factors are satisfied, the district court did not

abuse its discretion by admitting evidence of M r. M oran’s prior conviction under

Rule 404(b).

C. Jury Instructions

M r. M oran argues that the District Court erred by refusing to give his

requested jury instructions on knowledge and fleeting possession. W e review the

District Court’s refusal to give requested instructions for abuse of discretion.

United States v. Crockett, 435 F.3d 1305, 1314 (10th Cir. 2006). To assess

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whether the court properly exercised its discretion, “w e review the jury

instructions de novo to determine whether, as a whole, they accurately state the

governing law and provide the jury with an accurate understanding of the relevant

legal standards and factual issues in the case.” Id.

To convict a defendant for being a felon in possession of a firearm, the jury

must find that the defendant knowingly possessed a firearm. See 18 U.S.C.

§ 924(a)(2). The jury instructions explained: “The w ord ‘knowingly,’ as that term

has been used from time to time in these instructions, means that the act was done

voluntarily and intentionally, not because of mistake or accident.” M r. M oran

requested the following instruction, which he contends the court erroneously

refused to provide:

It is the government’s burden to prove, beyond a reasonable doubt,
that M r. M oran “knowingly” possessed the firearm. M r. M oran has
told you that although the firearm was found in the truck he was
driving, he did not know it was there. If you determine that the
government has not proved beyond a reasonable doubt that M r.
M oran knew the gun was in the truck, then you must find M r. M oran
not guilty.

M r. M oran argues that this instruction was required because it states his

theory of the case. But although M r. M oran may be entitled to jury instructions

on the law underlying his theory of the case, he is not entitled to instructions

stating the specific facts of this theory. Crockett, 435 F.3d at 1314 (“A defendant

is entitled to an instruction on his theory of the case if the instruction is a correct

statement of the law, and if he has offered sufficient evidence for the jury to find

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in his favor.” (emphasis added)). Indeed, such an instruction could lead “the jury

to believe that the district court was putting its imprimatur on [the] [d]efendant’s

factual theory of the case.” United States v. Grissom, 44 F.3d 1507, 1513 (10th

Cir. 1995). Here, the given knowledge instruction correctly explained “knowing”

possession, and the instructions elsewhere provided that the government must

prove the defendant’s guilt beyond a reasonable doubt. W e therefore conclude

that the District Court adequately informed the jury of the relevant law and did

not err in refusing to give M r. M oran’s fact-specific instruction.

M r. M oran also contends that the District Court erred by failing to instruct

the jury on the theory of fleeting possession. A “court need only give a fleeting

possession instruction when the evidence at trial supports a possible finding that

the defendant only momentarily possessed the [firearm], and in so doing, lacked

either knowledge he possessed [the firearm] or criminal intent to possess it.”

United States v. Adkins, 196 F.3d 1112, 1115 (10th Cir. 1999). The court clearly

did not err in the present case because M r. M oran presented no evidence

indicating that he possessed the firearm only “momentarily.”

Despite this deficiency, he argues that the instruction was necessary

because the evidence allowed the jury to infer that he possessed the gun

ignorantly or accidentally and therefore lacked criminal intent to possess it. This

argument is without merit because the District Court’s knowledge instruction

adequately addressed this theory. See U nited States v. Alonso, 790 F.2d 1489,

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1496 (10th Cir. 1986) (“It is not error to refuse to give a requested instruction if

the same subject matter is adequately covered in the general instructions.”

(quotation and alteration omitted)). The court instructed the jury that an act is

done “knowingly” if “the act was done voluntarily and intentionally, not because

of mistake or accident.” (emphasis added). As a w hole, therefore, the jury

instructions adequately informed the jury of the governing law and M r. M oran’s

theory of defense. Cf. Alonso, 790 F.2d at 1496–97 (holding district court did not

err in refusing to give “mere presence” instruction in aiding-and-abetting

narcotics violation because instructions stated that government was required to

prove willful association and willful participation).

III. C ON CLU SIO N

For the foregoing reasons, we A FFIRM the D istrict Court’s rulings and M r.

M oran’s conviction.

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