United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 2001 Decided July 3, 2001
No. 00-3023
United States of America,
Appellee
v.
Kelo L. King,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 99cr00311-01)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender. Sandra G. Roland and
Valencia R. Rainey, Assistant Federal Public Defenders,
entered appearances.
Roy W. McLeese, III, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Wilma A.
Lewis, U.S. Attorney at the time the briefs were filed, John
R. Fisher, Marian L. Borum and Jacqueline Bussiere-
Burke, Assistant U.S. Attorneys.
Before: Ginsburg, Sentelle and Henderson, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Concurring opinion filed by Circuit Judge Henderson.
Ginsburg, Circuit Judge: Kelo King challenges his convic-
tion and sentence for possession of a firearm by a convicted
felon. See 18 U.S.C. s 922(g)(1). King argues that (1) his
conviction was based upon evidence improperly admitted at
trial and (2) his sentence was unlawful in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). We affirm King's conviction
because, although the district court erred in admitting some
of the challenged evidence, the errors were harmless. We
also affirm King's sentence because it is fully consistent with
Apprendi.
I. Background
While driving in the District of Columbia, King had the
misfortune of being spotted by two officers of the United
States Park Police who both recognized him and noticed that
the BMW he was driving bore Virginia license plates but did
not have the inspection sticker required by Virginia law. See
Va. Code Ann. s 46.2-1163; Russell v. United States, 687 A.2d
213, 215 (D.C. 1997) (unlawful to operate Virginia vehicle in
District of Columbia without valid Virginia inspection sticker,
per D.C. Mun. Regs. tit. 18, s 602.7). After stopping King
the officers determined that his Virginia tags had been issued
for a Ford registered to one Johnny Boston, which was the
name on the license and registration that King produced at
the officers' request. Subsequently, while one of the officers
was speaking with King, the other, looking through the
passenger window, noticed a gun wedged into the back of the
sunroof.
King was arrested and charged with being a felon in
possession of a firearm. See 18 U.S.C. s 922(g)(1). He was
also cited for four motor vehicle violations: driving an unreg-
istered vehicle, proffering a false driver's license, driving
without a valid license, and lacking an inspection sticker. In
securing King's vehicle following his arrest, police found in
the trunk a sheathed knife with a nine-inch notched blade.
The district court denied King's motions in limine to ex-
clude from evidence the knife, the license and registration
King had produced during the traffic stop, and the Virginia
tags. At trial, King called as his only witness Lakiesha
Boulware, who testified that she and an acquaintance called
"D" had borrowed the BMW from King earlier on the day he
was arrested, and that "D" had placed his gun in the sunroof
of the car and forgotten it there. The jury convicted King
and the district court sentenced him to ten years in prison.
In calculating his sentence, the court enhanced the base
offense level under the Sentencing Guidelines because King
had two prior convictions and because the firearm was stolen.
II. Analysis
King appeals both the denial of his motions in limine and
the enhancement of his sentence.
A. Admission of evidence
Rule 404(b) of the Federal Rules of Evidence prohibits the
admission of evidence regarding "crimes, wrongs, or acts,"
other than those charged, for the sole purpose of impugning
the character of the accused. See United States v. Bowie, 232
F.3d 923, 927, 930 (D.C. Cir. 2000). Such evidence may be
admitted under Rule 404(b), however, to "pro[ve] ... motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." See also Bowie, 232 F.3d at
930. Evidence that is admissible under Rule 404 may none-
theless 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." We review
the district court's application of these Rules for abuse of
discretion. See, e.g., United States v. Mathis, 216 F.3d 18,
25-26 (D.C. Cir. 2000).
King argues that having a legal, albeit vicious-looking, knife
in one's trunk is relevant to one's knowledge of an illegal gun
in the passenger compartment only if a person who owns such
a knife might be thought the sort of person who would also
have a gun; the knife is therefore inadmissible under Rule
404(b), or in the alternative, unduly prejudicial and therefore
inadmissible under Rule 403. The district court disagreed
and admitted the knife into evidence because it thought the
knife "tends to prove knowing unlawful possession [of the
gun]." Upon appeal the Government maintains the knife is
relevant to King's "knowledge and intent" regarding the
firearm.
Although the Government did not at trial justify admission
of the knife on the grounds of knowledge and intent, we
reject King's claim that the Government is barred from
asserting those justifications here. The district court admit-
ted the evidence upon those very grounds, and the Govern-
ment has the right to defend its ruling. Cf. Blum v. Bacon,
457 U.S. 132, 137 n.5 (1982) ("It is well accepted ... [that] an
appellee may rely upon any matter appearing in the record in
support of the judgment below").
On the merits, however, we find the district court's admis-
sion of the knife to be an abuse of its discretion. To be sure,
in cases where a defendant is charged with unlawful posses-
sion 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. See
Huddleston v. United States, 485 U.S. 681, 689 (1988) ("In the
Rule 404(b) context, similar act evidence is relevant only if
the jury can reasonably conclude that the act occurred and
that the defendant was the actor"). For example, the courts
of appeals have upheld the district court's exercise of discre-
tion to admit evidence that a defendant charged with unlawful
possession of firearms had previously possessed the same
weapons, United States v. Mills, 29 F.3d 545, 549 (10th Cir.
1994); United States v. Davis, 792 F.2d 1299, 1305 (5th Cir.
1986), or that the defendant simultaneously possessed other
firearms for which he was not charged, United States v.
Brown, 961 F.2d 1039, 1042 (2d Cir. 1992). The courts of
appeals have also held it within the discretion of the district
court to admit evidence regarding similar acts of possession
that suggest "repetitive involvement in the same kind of
criminal activity" even if they do not involve the same objects.
United States v. Lego, 855 F.2d 542, 546 (8th Cir. 1988)
(evidence of subsequent possession of firearms relevant to
earlier possession of same); see also Bowie, 232 F.3d at 930
(evidence of earlier possession of counterfeit notes relevant to
later possession of similar notes); United States v. Gomez,
927 F.2d 1530, 1534 (11th Cir. 1991) (evidence of earlier
conviction for possession of firearms relevant to new charge
of same because it tends to rebut defense that possession was
"mere accident or coincidence"); cf. United States v. Brooks,
670 F.2d 625, 629 (5th Cir. 1982) (marijuana found with
cocaine relevant to defendant's knowledge and intent in pos-
sessing the cocaine).
The Government, citing several of these precedents, argues
that whether King possessed a knife, which may after all be
used as a weapon, is therefore probative of whether he
knowingly possessed the gun in the same vehicle. We dis-
agree. Unlike a gun, possession of which is unlawful for
innocents and felons alike in the District of Columbia, even a
felon may lawfully possess a knife; a knife with a notched
blade has licit and nonviolent uses, as in hunting and fishing;
and stored in the locked trunk of King's car, the knife was out
of his reach while he was in passenger compartment where
the gun was found. We do not think learning that there was
a knife locked in the defendant's trunk could have affected
the jury's view of whether he knew about the gun in the
sunroof unless the jurors reasoned that someone who has one
object that could be used as a weapon is more likely to have
another that is an undoubted weapon, the gun -- which is
precisely the sort of reasoning that Rule 404(b) is meant to
obviate.* Compare, e.g., People of Territory of Guam v.
__________
* Our concurring colleague suggests that whether the knife is a
weapon is a question of fact properly left to the jury. See Concur-
ring Op. at 2 n.*. So to hold would eviscerate Rule 404(b) by
making evidence of other crimes, wrongs, and acts generally admis-
Shymanovitz, 157 F.3d 1154, 1158-59 (9th Cir. 1998) (posses-
sion of lawful erotic literature inadmissible under Rule 404(b)
because irrelevant to whether defendant engaged in unlawful
sexual conduct with minors).
Nonetheless, we do not disturb King's conviction because
admission of the knife into evidence was a harmless error.
See, e.g., United States v. Johnson, 216 F.3d 1162, 1166 n.4
(D.C. Cir. 2000) ("[N]onconstitutional error is harmless if it
did not have 'substantial and injurious effect or influence in
determining the jury's verdict' ") (quoting Kotteakos v. Unit-
ed States, 328 U.S. 750, 776 (1946)). The knife was at most
tangential to the Government's case -- that King had stashed
a gun within easy reach in the passenger compartment of his
car -- and the prosecution treated it accordingly. Although
the prosecutor asked both arresting officers to describe and
identify the knife for the jury, and to recount its placement
into the chain of custody, she made at most one substantive
reference to the knife, an ambiguous comment in her closing
statement that King claims, and we will assume, related to
the knife. In these circumstances we are fully confident that
the jury's assessment of the basic facts was not "substan-
tial[ly] and injurious[ly]" affected by its knowledge of the
knife in the trunk. Nor could the knife have had a substan-
tial effect upon the jury's refusal to credit the testimony of
King's friend, Ms. Boulware. Knife or no, a reasonable jury
could not seriously entertain the tale of the elusive "D,"
whose first and last names Boulware denied knowing. Ac-
cording to Boulware, this D had driven his own fully function-
al automobile to meet King, borrowed King's car to run an
errand, and stashed in its sunroof a stolen and loaded firearm
__________
sible as long as the jury was instructed to disregard the evidence if
it determines the evidence is relevant only to the defendant's
character. Rule 404(b) takes a different approach: it requires the
judge to screen evidence in order to avoid exposing the jury to
matters that bear only upon the defendant's character. Contrary to
our colleague's suggestion, the protection of Rule 404(b) supple-
ments the promise of Rule 403 that evidence the "probative value
[of which] is substantially outweighed by the danger of unfair
prejudice [or] confusion of the issues" will be excluded.
which, his errand accomplished, he then absentmindedly left
behind.
King also argues that the evidence of his motor vehicle
violations admitted by the district court is irrelevant to his
knowledge or intent under Rule 404 and prejudicial under
Rule 403. This claim is somewhat broader than the one King
made at trial, where he limited his objection to admission of
"the Virginia driver's license in the name of Johnny Boston,
Virginia vehicle registration for a BMW, [and] Virginia tags."
As to the narrower objection, the Government correctly
argues that the license, registration, and tags are admissible
under Rule 404(b) because they "ma[ke] a material contribu-
tion to the strength of the inference that appellant had a
possessory interest in the car and knowingly possessed its
contents": the license, which bears King's photograph, con-
nects him to the name "Johnny Boston," and the registration
and tags in turn connect Johnny Boston to the BMW. King
points out that the registration in the name of Boston rather
than King might "contradict, rather than confirm" the Gov-
ernment's theory that King owned the car; but, again as the
Government notes, evidence may be both relevant and sus-
ceptible to conflicting interpretations. We also reject King's
contention that the license, registration, and tags are irrele-
vant because the Government "relied exclusively on Mr.
King's statement that the car was his"; as we have recently
had occasion to point out, "evidence of other ... [bad] acts is
admissible to corroborate evidence that itself has a legitimate
non-propensity purpose." Bowie, 232 F.3d at 933. Finally,
we reject King's claim that the probative value of the three
items was "substantially outweighed by the danger of unfair
prejudice," Fed. R. Evid. 403. The likelihood that a jury
would conclude from King's noncompliance with the motor
vehicle code that he has a general propensity to commit bad
acts, much less a propensity to carry a gun, is, to say the
least, remote.
King's broader objection before this court embraces the
admission into evidence of his traffic citations for lacking a
valid driver's license and a Virginia vehicle inspection sticker.
Because King did not object to the admission of this evidence
at trial, we review its admission only for plain error; and
because neither citation could possibly have led the jury
materially to change its view of the firearms charge against
him, we conclude that their admission did not affect King's
"substantial rights." See, e.g., United States v. Breedlove, 204
F.3d 267, 271 (D.C. Cir. 2000) (no plain error if defendant's
"substantial rights" unaffected).
B. Calculation of sentence
In calculating King's sentence, the district court enhanced
the applicable Guidelines range based upon facts it found by a
preponderance of the evidence to be true but that had not
been submitted to the jury. It then imposed a sentence of
120 months in prison, the maximum allowable for a violation
of 18 U.S.C. s 922(g). See id. s 924(a)(2). We reject King's
argument that the district court's reliance upon facts not
found beyond a reasonable doubt by the jury violates Appren-
di v. New Jersey, 530 U.S. 466, 490 (2000). As we recently
held, Apprendi does not constrain the district court's adher-
ence to the Guidelines "when the resulting sentence," as in
this case, "remains within the statutory maximum." In re
Sealed Case, 246 F.3d 696, 698 (2001); accord United States
v. Fields, No. 99-3138, slip op. at 3 (D.C. Cir. June 12, 2001).
III. Conclusion
For the foregoing reasons, King's conviction and sentence
are
Affirmed.
Karen LeCraft Henderson, Circuit Judge, concurring:
While I concur in the affirmance of King's conviction and
sentence, I do not agree the district court committed any
error, harmless or otherwise, in admitting the knife.
The majority recognizes that "in cases 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." Maj. Op. at 4. Moreover, the majori-
ty acknowledges that "courts of appeals have ... held it
within the discretion of the district court to admit evidence
regarding similar acts of possession that suggest 'repetitive
involvement in the same kind of criminal activity' even if they
do not involve the same objects." Maj. Op. at 4-5 (quoting
United States v. Lego, 855 F.2d 542, 546 (8th Cir. 1988), and
citing cases). Nevertheless, the majority concludes that the
district court abused its discretion in admitting the knife
because the knife was inadmissible under Rule 404(b). The
majority emphasizes two points in finding error: first, the
knife may or may not be a weapon and second, if a weapon, it
is a legal one. Maj. Op. at 5. I believe the first point is
wrong and the second irrelevant.
The knife found in the trunk of King's car has a nine-inch
blade, see Trial Tr. at 157, and the blade includes four large
barbs. See Appendix to Concurring Opinion. The dictionary
describes a knife barb as "a sharp projection extending
backwards ... preventing easy extraction from a wound."
Webster's Third New International Dictionary of the English
Language Unabridged 174 (1981). One of the arresting
officers described the knife as "kind of like something out of
prehistoric." Trial Tr. at 129. It is quintessentially a weapon
and, as the majority notes, a "vicious-looking" one at that.
Maj. Op. at 4.
The fact that a defendant is found in possession of two
weapons makes it less likely that his possession of either is
unknowing. Introduction of the second, albeit legally pos-
sessed, weapon into evidence, therefore, allows the jury to
draw an inference that is not prohibited by Rule 404(b). We
have consistently held that Rule 404(b) allows the admission
of "other acts" to show, inter alia, knowledge or absence of
accident. See, e.g., United States v. Bowie, 232 F.3d 923, 930
(D.C. Cir. 2000); United States v. Crowder, 141 F.3d 1202,
1206 (D.C. Cir. 1998) (en banc), cert. denied, 525 U.S. 1149
(1999).
But the majority stresses that "a knife with a notched
blade has many licit and indeed nonviolent uses." Maj. Op. at
5. This is true but, here, irrelevant. A gun too may have
licit and nonviolent uses-e.g., skeet or other target shooting.
But this case does not turn on whether "a" knife has a use
other than as a weapon but whether the knife found in King's
possession has such a use. In my view, the majority incor-
rectly characterizes the reason for the knife's inadmissibility,
stating that the jury would have had to improperly reason
that "someone who has one object that could be used as a
weapon is more likely to have another that is an undoubted
weapon." Maj. Op. at 6 (emphasis added). Instead, the jury
was allowed, correctly, to consider whether someone in whose
possession one "undoubted" weapon is found is more likely to
know of a second "undoubted" weapon found in his posses-
sion.*
Finally, it is well established that the district court's deci-
sion to admit evidence, reviewed under the abuse of discretion
standard, see Stevenson v. District of Columbia Metro. Police
Dep't, 248 F.3d 1187, 1190 (D.C. Cir. 2001) (citing United
States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994)); United
States v. Williams, 212 F.3d 1305, 1308-09 (D.C. Cir.), cert.
denied, 121 S. Ct. 666 (2000); United States v. Smart, 98 F.3d
__________
* In any event, assuming arguendo the knife could reasonably be
described as something other than a weapon, the issue of the knife
qua weapon would be for the jury to decide. In other words,
whether or not the knife is a weapon the possession of which tends
to make more probable the knowing possession of the second
weapon is a question of fact. On the other hand, a different object
found in King's car trunk which could be used as a weapon (say, a
tire iron) might be excludible under Rule 403 (jury confusion).
Allowing the jury to decide whether or not the knife is a weapon
would not, as the majority supposes, "eviscerate Rule 404(b) ... ,"
Maj. Op. at 5 n.*, because the jury would disregard the knife not "if
it determines [it] is relevant only as to the defendant's character,"
id., but only if it determines it is not a weapon.
1379, 1386 (D.C. Cir. 1996) (citing United States v. Salaman-
ca, 990 F.2d 629, 637 (D.C. Cir.), cert. denied, 510 U.S. 928
(1993)), cert. denied, 520 U.S. 1128 (1996), is "entitled to
'much deference' on review." United States v. Ramsey, 165
F.3d 980, 984 n.3 (D.C. Cir.) (quoting United States v. Lewis,
693 F.2d 189, 193 (D.C. Cir. 1982)), cert. denied, 528 U.S. 894
(1999). In view of the highly deferential standard, I cannot
agree the district court abused its discretion in admitting the
knife.
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