Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2003 Decided June 13, 2003
No. 02–3005
UNITED STATES OF AMERICA,
APPELLEE
v.
JOEY C. ALEXANDER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00224–01)
Mary M. Petras, appointed by the court, argued the cause
for the appellant.
Patricia A. Heffernan, Assistant United States Attorney,
argued the cause for the appellee. Roscoe C. Howard, Jr.,
United States Attorney, John R. Fisher, and Roy W.
McLeese III, Assistant United States Attorneys, were on
brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The appellant,
Joey C. Alexander, seeks reversal of his conviction for the
unlawful possession of a firearm and ammunition by a felon,
in violation of 18 U.S.C. § 922(g)(1), and, in the alternative,
vacatur of the mandatory minimum sentence imposed by the
district court. Specifically, Alexander challenges the district
court’s (1) admission of a 911 call under the ‘‘excited utter-
ance’’ exception to the rule against hearsay; (2) admission of
prejudicial ‘‘other acts’’ evidence; (3) denial of his motion for
a new trial; and (4) imposition of a mandatory minimum
sentence under 18 U.S.C. § 924(e)(1). He also challenges the
sufficiency of the evidence. For the reasons set forth below,
see infra Part II, we affirm the district court’s rulings and
uphold Alexander’s conviction and sentence.
I. Background
On June 17, 2000, at 5:40 p.m., Yvette Young called 911
from her workplace at 723 12th Street, N.E., in Washington,
D.C.1 She told the emergency dispatcher that the man she
was dating had just threatened her at her workplace, told her
that he would return to ‘‘do something’’ to her and said that
he was going to go to her apartment to ‘‘mess’’ it up. Young
also told the dispatcher that her boyfriend had keys to her
apartment and that ‘‘he also has a gun.’’ When the dispatch-
er asked, ‘‘He got a gun on him now?,’’ Young replied, ‘‘Yeah.
And I need someone to go to my apartment [until] my mother
come[s] [to] pick me up from work to meet me there.’’ The
dispatcher told Young that the police would not go to her
apartment because, by giving her boyfriend keys to the
apartment, she had given him permission to enter. Never-
theless, the dispatcher told Young that she would send the
1Although Young did not testify at trial, the government played
her 911 call for the jury. See 2/6/01 Tr. 180. Overruling defense
counsel’s hearsay objection, the district court ruled that Young’s call
qualified as an excited utterance. Id. at 143–44.
3
police to her workplace so that Young could ‘‘fill out a report
for threats.’’
At approximately 5:52 p.m., MPD Officer Daynell Schaf-
frath arrived at the group home where Young worked. When
Schaffrath met Young at the front door of 723 12th Street,
she appeared ‘‘stressed, afraid, [and] frightened.’’ 2/6/01 Tr.
155. Soon after Schaffrath interviewed Young about the
report,2 the appellant appeared at the front door. Young
then jumped out of her seat, pointed at Alexander and said,
‘‘[t]hat’s him right there, Officer.’’ Id. at 176. Although
Schaffrath ordered Alexander several times to step away
from the door and to keep his hands away from his body,
Alexander refused to comply. Instead, Alexander opened the
screen door and began to step inside the room. Schaffrath
then stepped toward Alexander, placing herself between him
and Young, and radioed for assistance. When Schaffrath
raised a can of pepper spray, Alexander finally complied with
her orders.
After Schaffrath arrested and handcuffed Alexander, MPD
Officer Craig Reynolds arrived at the scene. Reynolds sub-
sequently searched the appellant, recovering $900 in cash, a
wallet, a set of keys, a driver’s license and a cell phone.
Shortly thereafter, Reynolds approached a brown Buick that
was parked on the street approximately 50 to 75 feet from the
group home. Looking through the windshield, he saw a
handgun lying on the floorboard of the car on the driver’s
side. On the passenger seat, he saw a blue baseball cap.
Crime scene search officer Ronny Arce recovered the
loaded weapon—a Colt revolver—from the floorboard and
used the keys found on Alexander to start the car. The
officers subsequently found the car’s registration and a seat
2 At trial, defense counsel asked Schaffrath if, during the inter-
view, Young had stated ‘‘that she had seen Mr. Alexander with a
gun on him that day?’’ 2/7/01 a.m. Tr. 76. Schaffrath answered,
‘‘No.’’ Id. Although Schaffrath also testified during voir dire that
Young had told her that Alexander kept a revolver with a brown
handle in a nightstand drawer, 2/6/01 Tr. 70, the district court
excluded these statements as hearsay, id. at 144.
4
belt citation in the car’s glove compartment. The former
indicated that the car was registered to Alexander, while the
latter indicated that Alexander had received a citation while
driving the Buick on April 6, 2000. Both documents listed
Alexander’s address as 253 16th Street, S.E., Washington
D.C., which is located approximately 10 to 14 blocks from 723
12th Street, N.E.
Based on the foregoing events, Alexander was indicted on
November 2, 2000 and charged with three counts: one count
of unlawful possession of a firearm and ammunition by a
felon, in violation of 18 U.S.C. § 922(g)(1); one count of
threatening to kidnap, injure or physically damage, in viola-
tion of D.C. Code § 22–2307; and one count of tampering
with a witness, victim or informant, in violation of 18 U.S.C.
§ 1512(b)(1). At trial, the district court granted Alexander’s
motion for judgment of acquittal on the tampering charge at
the close of the government’s case-in-chief. On February 8,
2001, the jury acquitted Alexander of the threat charge and,
the next day, convicted him of the felon-in-possession charge.
After denying Alexander’s motion for a new trial, the district
court sentenced him to 180 months of incarceration, pursuant
to 18 U.S.C. § 924(e)(1), followed by five years of supervised
release. Alexander now appeals, challenging both his convic-
tion and, in the alternative, his mandatory minimum sentence.
II. Analysis
We address each of Alexander’s challenges in turn.
A. The Excited Utterance
Alexander objected on hearsay grounds to the introduction
of the 911 call and to Schaffrath’s testimony regarding
Young’s subsequent statements at the scene. 2/6/01 Tr. 4–13.
After conducting voir dires of Schaffrath, who testified for the
government, and Young, who testified for Alexander, the
district court ruled that the 911 call—but not Young’s subse-
quent statements to Schaffrath—qualified as an excited utter-
ance and, as such, fell within an established exception to the
hearsay rule. Id. at 143–44. On appeal, Alexander renews
5
his hearsay objection to the 911 call, arguing that the state-
ments contained therein were not made while Young was
under the stress of excitement caused by Alexander’s alleged
threat.
We review a district court’s evidentiary rulings for abuse of
discretion. United States v. Williams, 212 F.3d 1305, 1308
(D.C. Cir.), cert. denied, 531 U.S. 1056 (2000); see also United
States v. Evans, 216 F.3d 80, 85 (D.C. Cir.) (inadmissible
hearsay allegation reviewed under abuse of discretion stan-
dard), cert. denied, 531 U.S. 971 (2000). The district court’s
decision to admit evidence is therefore ‘‘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).
Federal Rule of Evidence 803(2) creates a hearsay3 excep-
tion for ‘‘statement[s] relating to a startling event or condition
made while the declarant was under the stress of excitement
caused by the event or condition.’’ FED. R. EVID. 803(2).4
The rationale underlying the ‘‘excited utterance’’ exception is
that ‘‘excitement suspends the declarant’s powers of reflection
and fabrication, consequently minimizing the possibility that
the utterance will be influenced by self interest and therefore
rendered unreliable.’’ United States v. Brown, 254 F.3d 454,
458 (3d Cir. 2001), cert. denied, 535 U.S. 944 (2002); see also
United States v. Joy, 192 F.3d 761, 766 (7th Cir. 1999) (‘‘This
exception is premised on the belief that a person is unlikely to
fabricate lies (which presumably takes some deliberate reflec-
tion) while his mind is preoccupied with the stress of an
exciting event.’’), cert. denied, 530 U.S. 1250 (2000). Thus, to
qualify as an excited utterance, ‘‘the declarant’s state of mind
3 Hearsay is an out-of-court statement offered in evidence to
prove the truth of the matter asserted. FED. R. EVID. 801(c). The
statement is not admissible unless an exception to the hearsay rule
applies. FED. R. EVID. 802.
4The applicability of the excited utterance exception is unaffected
by the availability or unavailability of the declarant as a witness.
FED. R. EVID. 803.
6
at the time that the statement was made [must] preclude[ ]
conscious reflection on the subject of the statement.’’ Joy,
192 F.3d at 766.
For a statement to qualify as an excited utterance, the
proponent of the exception must establish: (1) the occurrence
of a startling event; (2) that the declarant made the state-
ment while under the stress of excitement caused by the
event; and (3) that the declarant’s statement relates to the
startling event. See, e.g., Brown, 254 F.3d at 458; Joy, 192
F.3d at 766.5 Yet, unlike the hearsay exception for present
sense impressions, FED. R. EVID. 803(1), ‘‘[a]n excited utter-
ance need not be contemporaneous with the startling event to
be admissible,’’ United States v. Tocco, 135 F.3d 116, 127 (2d
Cir.), cert. denied, 523 U.S. 1096 (1998). ‘‘Rather, the utter-
ance must be contemporaneous with the excitement engen-
dered by the startling event.’’ Joy, 192 F.3d at 766.6
Although the lapse of time between the startling event and
the declarant’s statement is relevant to whether the declarant
made the statement while under the stress of excitement, the
temporal gap between the event and the utterance is not
itself dispositive. See United States v. Jones, 299 F.3d 103,
112 (2d Cir. 2002). Other relevant factors include: the
characteristics of the event; the subject matter of the state-
ment; whether the statement was made in response to an
inquiry; and the declarant’s age, motive to lie and physical
and mental condition. See United States v. Marrowbone, 211
F.3d 452, 454–55 (8th Cir. 2000). If the trial court has access
5 The proponent must establish these three elements by a prepon-
derance of the evidence. See United States v. Collins, 60 F.3d 4, 8
(1st Cir. 1995) (citing Huddleston v. United States, 485 U.S. 681,
690 (1988)); see also United States v. Woodfolk, 656 A.2d 1145, 1150
n.14 (D.C. 1995), cert. denied, 516 U.S. 1183 (1996).
6 Because the excited utterance exception is based upon ‘‘the
psychological impact of the event itself’’ and not upon the contem-
poraneity of the startling event and the declarant’s statement, the
exception ‘‘permits [the] admission of a broader range of hearsay
statements [than the hearsay exception for present sense impres-
sions].’’ United States v. Jones, 299 F.3d 103, 112 n.3 (2d Cir. 2002)
(emphasis in original).
7
to a recording of the declarant’s statement, it may also
consider the declarant’s ‘‘tone and tenor of voice’’ in determin-
ing whether the declarant made that statement while under
the stress of excitement. United States v. Woodfolk, 656
A.2d 1145, 1151 n.16 (D.C. 1995) (collecting cases), cert.
denied, 516 U.S. 1183 (1996).
Here, Alexander contends that the district court erred in
concluding that Young’s statements during the 911 call7 were
made while under the stress of excitement.8 Specifically,
Alexander maintains that the passage of time between the
alleged threats and the 911 call; Young’s intervening tele-
phone call to her mother; and Young’s tone of voice during
the 911 call—when considered together—negate a finding
that the statements were made while under the stress of
excitement.9 Alexander’s arguments address us as if we were
deciding the question anew. Whatever we might decide on de
novo review, we cannot conclude that the district court
abused its discretion in admitting the 911 call. See Evans,
216 F.3d at 85.
7 Young’s statement that Alexander ‘‘[has] a gun on him now’’ is
not rendered inadmissible simply because it was made in response
to the dispatcher’s question. See Joy, 192 F.3d at 767 (fact that
declarant answered dispatcher’s questions, rather than giving spon-
taneous narrative, did not disprove excitement); see also United
States v. Glenn, 473 F.2d 191, 194 (D.C. Cir. 1972) (‘‘Declarations
relating to the circumstances of a violent crime, made by the victim
shortly after its occurrence TTT may be admissible although made in
response to an inquiry.’’).
8 Alexander does not dispute (1) that the alleged threats consti-
tuted a startling event or (2) that Young’s statements related to
that startling event. See Br. for Appellant at 13–16.
9 Relying on Young’s voir dire testimony, Alexander also argues
that the 911 call lacks sufficient indicia of reliability because Young
‘‘in fact lied’’ about Alexander having a gun. Br. for Appellant at
15. This argument fails. Young’s subsequent statements ‘‘made
well after her 911 call are not part of the core evaluation whether
the statements made during the 911 call qualified as an excited
utterance when made.’’ Malloy v. United States, 797 A.2d 687, 690
(D.C. 2002).
8
According to Young’s grand jury and voir dire testimony,
she telephoned 911 approximately 15 to 20 minutes after the
alleged threats. 2/6/01 Tr. 97, 115. Considering the nature
of the startling occurrence—Alexander allegedly had a gun
and threatened both to ‘‘do something’’ to Young and to
‘‘mess [up]’’ her apartment—the passage of 15 to 20 minutes
hardly suggests that the district court abused its discretion in
admitting the 911 call. See, e.g., United States v. Phelps, 168
F.3d 1048, 1055 (8th Cir. 1999) (‘‘The lapse of 15 to 30
minutes between an exciting incident and a statement does
not render the statement inadmissible.’’); United States v.
Golden, 671 F.2d 369, 371 (10th Cir.) (statement occurring
within 15 minutes of startling event and immediately after
high-speed flight admissible), cert. denied, 456 U.S. 919
(1982). On the contrary, depending upon the other factors in
the ‘‘excitement’’ inquiry, courts of appeals have upheld the
admission of statements made even several hours after the
startling event. See, e.g., Tocco, 135 F.3d at 127–28 (state-
ment of ‘‘all hyped’’ and ‘‘nervous’’ declarant admitted al-
though made three hours after deadly fire).
The fact that Young telephoned her mother during this 15
to 20 minute interval does not, in our view, change the
calculus. Although the intervening call might suggest that
Young had time to reflect and deliberate before calling 911,
the nature of Alexander’s threats, the relatively short lapse of
time between those threats and the 911 call and the recipient
of Young’s initial call—her mother—all lend support to the
district court’s ruling. Given that the courts have upheld the
admission of statements made even hours after a startling
event—and we can reasonably assume that the declarants in
such cases likely did not remain silent in the intervening
hours—Young’s telephone call to her mother fails to establish
that she was not under the stress of excitement when she
then called 911.
Alexander’s strongest argument for reversal lies with the
‘‘tone and tenor’’ of the 911 call itself. ‘‘Ms. Young’s tone of
voice on the call was monotone and calm,’’ Alexander main-
tains, ‘‘demonstrating that she was not still under the stress
9
of excitement from any alleged threats.’’ Br. for Appellant at
14. To be sure, Young’s tone of voice deviated from the
monotone only when she became irritated with the dispatcher
for refusing to send the police to her apartment. The district
court rejected Alexander’s argument, however, concluding
that ‘‘[i]t is clear she’s upset on that telephone call.’’ 2/6/01
Tr. 143. We will not disturb the district court’s ruling.
Although Young sounded composed for most of the 911 call,
she became agitated when the dispatcher informed her that
the police would not go to her apartment because she had
given Alexander a set of keys to the apartment. Alexander
would have us conclude that Young’s sudden burst of ‘‘excite-
ment’’ conclusively established her lack of excitement earlier
in the call, namely, when she indicated that Alexander had ‘‘a
gun on him now.’’ But Schaffrath’s testimony that Young
appeared ‘‘stressed, afraid, [and] frightened’’ fifteen minutes
after the 911 call adequately supports the district court’s
conclusion that Young made the call while under the stress of
excitement. Id. at 155. We therefore conclude that the
district court did not abuse its discretion in admitting Young’s
911 call.10
B. The ‘‘Other Acts’’ Evidence
Next, Alexander argues that the district court erred in
admitting prejudicial ‘‘other acts’’ evidence at trial, namely,
Young’s statement on the 911 call that Alexander ‘‘[has] a gun
on him now.’’ Because Alexander did not raise a Rule 404(b)
objection to the introduction of the 911 call below,11 we review
10 Alexander asserts that the district court’s decision to admit the
911 call as an excited utterance contradicts its decision to exclude
Young’s subsequent statements to Schaffrath at the scene. This
argument is meritless. Plainly, the district court did not abuse its
discretion in finding that Young made the former statement—but
not the latter—while under the stress of excitement; after all,
Young’s statements to Schaffrath at the scene were made later and
under circumstances different from the 911 call.
11Alexander did object to the government’s opening statement on
Rule 404(b) grounds, arguing that the government violated the
10
his ‘‘other acts’’ challenge for plain error. See United States
v. Smart, 98 F.3d 1379, 1390 n.12 (D.C. Cir. 1996), cert.
denied, 520 U.S. 1128 (1997).12 However, we find no error—
district court’s earlier ruling that ‘‘there would be no mention of a
prior possession of a pistol observed by Ms. Young in [the] open-
ing.’’ 2/6/01 Tr. 44. Although Alexander claims that ‘‘a review of
the entire argument between the government’s opening statement
and [defense counsel’s] opening statement demonstrates that [the
Rule 404(b) objection] centered around all evidence from Ms. Young
regarding possession of a gun, including the 911 call,’’ Reply Br. at
8, the record fails to support Alexander’s claim, see 2/5/01 a.m. Tr.
45–65; 2/6/01 Tr. 44–53.
To begin with, Alexander did not contend that Young’s state-
ments on the 911 call constituted ‘‘other acts’’ evidence at the Rule
404(b) hearing. See 2/5/01 a.m. Tr. 45–65. The hearing addressed,
among other Rule 404(b) issues, whether Young could testify at trial
that she had seen Alexander on earlier occasions with a gun similar
to the one found in the brown Buick. Id. at 46–48. The district
court ruled that Young’s testimony would not constitute Rule 404(b)
evidence so long as she could testify that the gun she previously
observed in Alexander’s possession looked ‘‘terribly similar’’ to the
gun in the Buick. Id. at 62.
More importantly, Alexander did not object to the government’s
reference to the 911 call during the bench conference that followed
his Rule 404(b) objection at trial. See 2/6/01 44–53. Alexander’s
objection to the government’s opening statement centered on the
government’s discussion of Young’s expected testimony, that is, the
testimony the district court addressed at the Rule 404(b) hearing.
See id. Although Alexander subsequently moved ‘‘to strike the
excited utterance’’ when it became apparent that Young would not
testify at trial, he did not base his motion to strike on Rule 404(b).
2/7/01 a.m. Tr. 27.
12 To meet the plain error standard, ‘‘there must be (1) error, (2)
that ‘affect[s] substantial rights’—i.e., that is prejudicial TTT and the
error must also be ‘plain.’ ’’ United States v. Perkins, 161 F.3d 66,
72 (D.C. Cir. 1998) (quoting FED. R. CRIM. P. 52(a)) (footnote
omitted). If these three conditions are met, ‘‘an appellate court
may then exercise its discretion to notice a forfeited error, but only
if [ ] the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’’ Johnson v. United States, 520
U.S. 461, 467 (1997) (internal quotations omitted). On plain error
11
plain or otherwise—in the district court’s admission of the 911
call because Young’s statement that Alexander ‘‘[has] a gun
on him now’’ does not constitute ‘‘other acts’’ evidence within
the meaning of Rule 404(b).
Federal Rule of Evidence 404(b) prohibits the admission of
‘‘other crimes, wrongs, or acts TTT to prove the character of a
person in order to show action in conformity therewith.’’
FED. R. EVID. 404(b). Such evidence may be admissible,
however, if offered for purposes unrelated to the defendant’s
propensity to commit crime, ‘‘such as proof of motive, oppor-
tunity, intent, preparation, plan, knowledge, identity, or ab-
sence of mistake or accident.’’ Id. If the government plans
to introduce ‘‘other acts’’ evidence at trial, it must, ‘‘upon
request by the accused, TTT provide reasonable notice in
advance of trial TTT of the general nature of any such
evidence.’’ Id.
‘‘[B]ecause Rule 404(b) applies only to evidence of a defen-
dant’s ‘other crimes, wrongs, or acts,’ ’’ several of our sister
circuits have held that the rule ‘‘creates a dichotomy between
crimes or acts that constitute the charged crime and crimes
or acts that do not.’’ United States v. Bowie, 232 F.3d 923,
927 (D.C. Cir. 2000) (emphasis in original) (collecting cases).
These courts have reasoned that Rule 404(b) applies only to
‘‘extrinsic’’ evidence of other crimes and not to ‘‘intrinsic’’
evidence of the same crime. Id. at 927–29; see, e.g., United
States v. Towne, 870 F.2d 880, 886 (2d Cir.) (‘‘The continuous
possession of the same gun does not amount to a series of
crimes, but rather constitutes a single offense.’’), cert. denied,
490 U.S. 1101 (1989). Although we have recently expressed
our dissatisfaction with the extrinsic-intrinsic distinction,13 see
review, the defendant bears the burden of persuasion with respect
to prejudice. Perkins, 161 F.3d at 72 n.6.
13 Given the practical and definitional problems that plague the
extrinsic-intrinsic distinction, we have called into question the need
for such distinction: ‘‘If the so-called ‘intrinsic’ act is indeed part of
the crime charged, evidence of it will, by definition, always satisfy
Rule 404(b). The rule bars bad acts evidence only when the
evidence is offered solely to ‘prove the character of a person in
12
Bowie, 232 F.3d at 927–29, we have nonetheless recognized
that ‘‘at least in a narrow range of circumstances TTT evi-
dence can be ‘intrinsic to’ the charged crime,’’ id. at 929. For
example, if evidence is offered as direct evidence of a fact in
issue, not as circumstantial evidence requiring an inference
regarding the character of the accused, ‘‘it is properly consid-
ered intrinsic.’’ Id. (citing United States v. Badru, 97 F.3d
1471, 1474–75 (D.C. Cir. 1996), cert. denied, 520 U.S. 1150,
and cert. denied, 520 U.S. 1213 (1997)).
Here, Young’s statement that Alexander ‘‘[has] a gun on
him now’’ constituted intrinsic, admissible evidence on the
felon-in-possession charge.14 See United States v. Bradley,
145 F.3d 889, 891–94 (7th Cir. 1998) (declarant’s excited
utterance during 911 call that ‘‘[h]e pulled a gun on me’’
provided relevant, probative evidence of defendant’s knowing
possession of firearm and ammunition); Woodfolk, 656 A.2d
at 1151 n.17 (declarant’s excited utterance during 911 call that
her boyfriend had gun was ‘‘directly relevant to the crime at
issue, linking appellant to the gun’’).15 Although Alexander
contends that the 911 call established only that Young knew
that Alexander possessed ‘‘some gun at some point,’’ Br. for
Appellant at 20, and thereby invited the jury to make an
impermissible propensity inference regarding Alexander’s
character, the record indicates otherwise.
order to show action in conformity therewith.’ Evidence that
constitutes the very crime being prosecuted is not of that sort.’’
Bowie, 232 F.3d at 927 (quoting FED. R. EVID. 404(b)).
14 As an aside, Alexander’s assorted ‘‘severance’’ claims are with-
out merit. First, Alexander never moved to sever the felon-in-
possession charge from the threat charge. See 2/6/01 Tr. 49–53.
Second, the district court did not limit the admission of the 911 tape
to the threat charge. See 2/5/01 a.m. Tr. 59–62; 2/5/01 p.m. Tr. 174;
1/7/02 a.m. Tr. 24–25.
15Alexander attempts to distinguish Bradley and Woodfolk by
arguing that ‘‘in those cases additional evidence connected the gun
referred to on the 911 call to the charged gun.’’ Reply Br. at 10.
While Alexander is correct on the factual distinction, neither deci-
sion turned on the existence of such ‘‘additional evidence.’’ See
Bradley, 145 F.3d at 892–94; Woodfolk, 656 A.2d at 1151 n.17.
13
After Young told the dispatcher that Alexander had a gun,
the dispatcher asked: ‘‘He got a gun on him now?,’’ to which
Young responded, ‘‘Yeah.’’ Thus, as the government correct-
ly observes, Young’s statement served ‘‘not [as] evidence of a
prior possession, or possession at some point,’’ but instead as
‘‘evidence of [Alexander’s] current possession, the possession
for which [Alexander] was arrested minutes later, and for
which he was charged.’’ Br. for Appellee at 31. In other
words, Young’s statement provided only ‘‘intrinsic’’ evidence
of the crime charged, not ‘‘extrinsic’’ evidence inviting an
inference regarding Alexander’s bad character.16 According-
ly, we conclude that the district court did not err in admitting
Young’s statement on the 911 call that Alexander ‘‘[has] a gun
on him now.’’17
C. Sufficiency of the Evidence
Alexander contends that, ‘‘[v]iewing the evidence in the
light most favorable to the government, no reasonable juror
could reasonably conclude beyond a reasonable doubt that
[he] possessed the gun at issue here.’’ Br. for Appellant at 8.
According to Alexander, the government presented—at
best—evidence of ‘‘mere proximity,’’ i.e., that the police dis-
covered a Colt revolver in a car registered to Alexander,
Alexander possessed keys to the car at the time the police
discovered the weapon and Alexander received a citation
16 Even if Young’s statement had constituted extrinsic ‘‘other
acts’’ evidence—which it did not—it is our view that the district
court’s admission of the statement would not have constituted plain
error. See United States v. Cassell, 292 F.3d 788, 794–95 (D.C. Cir.
2002) (‘‘A prior history of intentionally possessing guns, or for that
matter chattels of any sort, is certainly relevant to the determina-
tion 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.’’).
17 Because Young’s statements on the 911 call did not constitute
‘‘other acts’’ evidence within the meaning of Rule 404(b), we likewise
conclude that the government did not misuse the evidence in its
closing statement. See 2/7/01 p.m. Tr. 27, 37–38.
14
while driving the car more than two months before his arrest.
Id. at 9. We reject this argument.
‘‘In considering a defendant’s challenge to the sufficiency of
the evidence, we review the evidence of record de novo,
considering that evidence in the light most favorable to the
government, and affirm a guilty verdict where ‘any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’ ’’ United States v. Wahl,
290 F.3d 370, 375 (D.C. Cir.) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original)), cert. denied,
123 S. Ct. 247 (2002). In performing this task, ‘‘[w]e draw no
distinction between direct and circumstantial evidence.’’
United States v. Moore, 104 F.3d 377, 381 (D.C. Cir. 1997).
Criminal possession of a firearm may be either actual or
constructive.18 Wahl, 290 F.3d at 376; Moore, 104 F.3d at
381. For constructive possession, the evidence must establish
that ‘‘the defendant ‘had the ability to exercise knowing
dominion and control over the items in question.’ ’’ Wahl, 290
F.3d at 376 (quoting United States v. Morris, 977 F.2d 617,
619 (D.C. Cir. 1992) (internal quotations omitted)). Although
‘‘mere proximity’’ to a gun is insufficient to establish construc-
tive possession, ‘‘ ‘evidence of some other factor—including
connection with a gun, proof of motive, a gesture implying
control, evasive conduct, or a statement indicating involve-
ment in an enterprise—coupled with proximity may’ suffice.’’
Moore, 104 F.3d at 381 (quoting United States v. Gibbs, 904
F.2d 52, 56 (D.C. Cir. 1990)).
In our view, sufficient evidence supports the jury’s conclu-
sion that Alexander constructively possessed the Colt revolv-
er found in the brown Buick parked outside Young’s work-
place. As earlier discussed, Young’s 911 call indicated that
18 To convict a defendant of unlawful possession of a firearm
under 18 U.S.C. § 922(g)(1), the government must prove beyond a
reasonable doubt that: (1) the defendant knowingly possessed a
firearm; (2) the firearm was transported in or affected interstate
commerce; and (3) at the time of his possession, the defendant had
been convicted of a felony. 18 U.S.C. § 922(g)(1) Here, the parties
stipulated to the last two elements. 2/7/01 a.m. Tr. 66–67.
15
Alexander had ‘‘a gun on him now’’ just minutes before the
police discovered the weapon lying on the Buick’s driver’s
side floorboard. The registration and traffic citation recov-
ered from the car’s glove compartment—as well as the keys
recovered from Alexander’s person at the scene—established
that Alexander owned and operated the vehicle. Given the
distance between Alexander’s abode and Young’s workplace
(approximately 10 to 14 blocks), the jury could have reason-
ably concluded that Alexander had driven the Buick to the
scene. Moreover, the jury could have reasonably concluded
that the baseball cap found lying on the passenger’s seat
made it more likely that a male had driven the car most
recently and that no one had been sitting in the passenger’s
seat when the driver parked outside the group home. Final-
ly, Alexander’s threatening statements to Young provided a
motive for his possession of the revolver. See Moore, 104
F.3d at 381 (evidence of motive relevant to sufficiency inqui-
ry).
Alexander’s challenge to the sufficiency of this evidence is
unpersuasive. Although Alexander correctly observes that
the discovery of a gun in a car owned and operated by the
defendant is insufficient, standing alone, to establish posses-
sion, see, e.g., Moore, 104 F.3d at 381, the government offered
additional, persuasive evidence of Alexander’s possession:
Young’s statement that Alexander had ‘‘a gun on him now’’
and that he had threatened to ‘‘do something’’ to her. The
additional evidence—coupled with Alexander’s ‘‘proximity’’ to
the Buick in which the revolver was found—suffices, in our
view, to support the jury’s verdict.19 Although Alexander
19 Relying on United States v. Clark, 184 F.3d 858 (D.C. Cir.
1999), Alexander argues that the evidence against him was insuffi-
cient because there was no evidence that he had been seen near, or
making gestures towards, the recovered gun. Although we held in
Clark that the defendant’s ‘‘reaching actions’’ were sufficient to link
him to the recovered gun—when asked for his driver’s license and
registration, Clark twice reached towards the floorboard behind his
seat where the police ultimately discovered the gun—we did not
establish, as Alexander seems to suggest, a ‘‘gesture requirement’’
for constructive possession. Id. at 862–65.
16
maintains that Young’s statement on the 911 call cannot be
considered in weighing the sufficiency of the evidence, he is
mistaken. As already noted, see supra Part II.A–B, the
district court properly admitted Young’s statement. More-
over, we must consider all admitted evidence—whether ad-
mitted erroneously or not—in reviewing the sufficiency of the
evidence. See Lockhart v. Nelson, 488 U.S. 33, 39–42 (1988).
Accordingly, Alexander’s sufficiency challenge fails.
D. Motion for a New Trial
Alexander also argues that the district court erred in
denying his motion for a new trial. Federal Rule of Criminal
Procedure 33 provides that, ‘‘[u]pon the defendant’s motion,
the court may vacate any judgment and grant a new trial if
the interest of justice so requires.’’ FED. R. CRIM. P. 33(a).
Here, Alexander claims that three prejudicial errors warrant-
ed a new trial: (1) the government’s opening statement
included allegations it ultimately failed to prove as a result of
Young’s refusal to testify; (2) Officer Reynolds testified to
inadmissible hearsay before the jury, namely, that Young
pointed to the brown Buick and stated that it belonged to
Alexander; and (3) the government’s closing argument mis-
used Young’s statement on the 911 call. In reviewing the
district court’s denial of Alexander’s motion for a new trial,
‘‘we apply a deferential standard, and will reverse only if the
court abused its discretion or misapplied the law.’’ United
States v. Lafayette, 983 F.2d 1102, 1105 (D.C. Cir. 1993).20
Alexander’s emphasis on his lack of ‘‘evasive action’’ is similarly
misplaced. While we have found evidence of evasive action relevant
in constructive possession cases, such action—or lack thereof—is
hardly determinative. See, e.g., United States v. Jenkins, 981 F.2d
1281, 1284 (D.C. Cir. 1992) (collecting ‘‘evasive action’’ cases) (defen-
dant’s flight upon seeing uniformed officers ‘‘not particularly proba-
tive’’ of constructive possession because defendant ran towards
vehicle where illegal gun was located).
20The government argues that we should review the district
court’s denial of Alexander’s new trial motion for plain error, citing
United States v. Thompson, 27 F.3d 671 (D.C. Cir.), cert. denied,
513 U.S. 1050 (1994). The government is mistaken. In Thompson,
17
Finding no abuse of discretion here, we reject Alexander’s
arguments.21
In its opening statement, the government told the jury that
it would hear evidence that Young told the police that Alexan-
der had a revolver, that Young described the revolver as
having a brown handle and that the police found a revolver
matching that description in Alexander’s car. 2/6/01 Tr. 39–
44. Young then refused to testify at trial and the district
court instructed the jury at the close of the evidence to
‘‘disregard the claims or statements made by the lawyers in
the openings if [they were] not proven in evidence.’’ 2/7/01
a.m. Tr. 77. Additionally, the district court further instructed
the jury not to speculate about Young’s absence nor ‘‘to draw
any adverse inference against either party’’ because she did
not testify. Id.
To determine whether a prosecutor’s opening statement
substantially prejudiced a defendant’s trial, we consider the
severity of the alleged misconduct, the curative measures
taken and the certainty of conviction absent the improper
remarks. United States v. Thomas, 114 F.3d 228, 246 (D.C.
Cir.), cert. denied, 522 U.S. 1033 (1997). Plainly, the district
court did not abuse its discretion in denying Alexander’s new
we explained that ‘‘[f]or purposes of determining our standard of
review of an alleged error in admission of evidence TTT a post-
verdict motion for a new trial is not the same as a timely objection:
the delay eliminates any chance that the judge could correct the
error without a duplicative trial, and according review as if a timely
objection had been raised virtually invites strategic behavior by
defense counsel.’’ Id. at 673. Thus, where the defendant did not
timely object at trial, we held that we will review post-trial for plain
error only. Id. Unlike the defendant in Thompson, however,
Alexander timely objected to each of the alleged errors included in
his post-trial motion. See 2/6/01 Tr. 44–53 (government’s opening
statement); 2/6/01 Tr. 202 (hearsay objection); 2/7/01 p.m. Tr. 66–
67 (government’s closing argument).
21 Having concluded that the government did not misuse Young’s
statements on the 911 call either in its closing statement or in
Alexander’s trial generally, see supra note 17 and accompanying
text, we focus on Alexander’s other claimed errors.
18
trial motion. As the district court noted, both the govern-
ment and defense counsel ‘‘made a lot of statements’’ about
Young’s expected testimony in their respective openings.22
1/7/02 Tr. 28. As an initial matter, we are loath to question
the district court’s conclusion that the government made its
opening statement in good faith. Id. at 27. The district
court also specifically instructed the jury on Young’s absence.
2/7/01 a.m. Tr. 77–78. In our view, the instruction cured any
evidentiary problem created by Young’s refusal to testify.
See United States v. White, 116 F.3d 903, 917–18 (D.C. Cir.)
(jurors presumed to follow court’s instructions), cert. denied,
522 U.S. 960 (1997).
Alexander’s reliance on the stricken hearsay testimony of
Officer Reynolds is similarly misplaced. Reynolds testified at
trial that Young pointed to the brown Buick and stated that it
belonged to Alexander. The district court sustained Alexan-
der’s objection, however, informing the jury that ‘‘the last
answer is stricken. And that means it’s out of the record.
Don’t consider it.’’ 2/6/01 Tr. 204. Given the cumulative
nature of Reynolds’s testimony—the registration and traffic
citation amply established Alexander’s connection to the
Buick—we believe the district court’s instruction cured any
prejudice Reynolds’s hearsay testimony may have caused.
See White, 116 F.3d at 917–18. Accordingly, we conclude that
the district court did not abuse its discretion in denying
Alexander’s motion for a new trial.
E. The Mandatory Minimum Sentence
Finally, Alexander challenges the district court’s imposition
of a mandatory minimum sentence of fifteen years of impris-
onment pursuant to 18 U.S.C. § 924(e)(1). Specifically, Alex-
ander argues that the district court erred in concluding that
his 1991 conviction for attempted possession with intent to
22 Defense counsel told the jury in his opening statement that
Young told the police that (1) the brown Buick in which the police
found the Colt revolver belonged to her; (2) Alexander drove a 1985
burgundy Mercedes; and (3) Alexander drove the Mercedes when
he left her workplace earlier that day. 2/6/01 Tr. 55–56.
19
distribute qualifies as a ‘‘serious drug offense’’ under 18
U.S.C. § 924(e)(2)(A)(ii) and that, as a result, the district
court erred in imposing the mandatory minimum.23 Review-
ing Alexander’s claim de novo, see, e.g., United States v.
Gaviria, 116 F.3d 1498, 1518 (D.C. Cir. 1997) (‘‘Legal ques-
tions relating to sentencing are reviewed de novo.’’), cert.
denied, 522 U.S. 1082 (1998), we find no error in Alexander’s
sentence.
Section 924(e)(1), in pertinent part, directs that a defendant
convicted under 18 U.S.C. § 922(g) be sentenced to a manda-
tory minimum term of fifteen years if he ‘‘has three previous
convictions TTT for a violent felony or a serious drug offense,
or both, committed on occasions different from one another.’’
18 U.S.C. § 924(e)(1). As used in section 924(e), a ‘‘serious
drug offense’’ includes, inter alia, ‘‘an offense under State
law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance (as
defined in section 102 of the Controlled Substances Act (21
U.S.C. 802)), for which a maximum term of imprisonment of
ten years or more is prescribed by law.’’ Id.
§ 924(e)(2)(A)(ii).
Emphasizing the fact that section 924(e)(2)(A)(ii) does not
expressly include attempts within the definition of ‘‘serious
drug offense,’’ Alexander argues that his prior conviction for
attempted possession with intent to distribute cannot be used
as a qualifying conviction. ‘‘Had [the] Congress intended to
include[ ] attempted drug offenses within the definition of
serious drug offenses,’’ Alexander contends, ‘‘[the] Congress
would have specifically done so, as it did in the definition of
violent felon[ies] under [section 924(e)(2)(B)].’’ Br. for Appel-
23 Alexander does not challenge two of his qualifying convictions:
a 1972 conviction for armed robbery and a December 1977 convic-
tion for bank robbery. See Br. for Appellant at 29–30. Although
Alexander’s brief discussed a fourth conviction—a July 1977 convic-
tion for bank robbery—the district court did not consider, and the
government did argue on appeal, whether Alexander’s July 1977
conviction qualified as the third required conviction under 18 U.S.C.
§ 924(e)(1). We do likewise.
20
lant at 30–31. Violent felonies are defined, in relevant part,
as ‘‘any crime punishable by imprisonment for a term exceed-
ing one year TTT that (i) has as an element the use, attempted
use, or threatened use of physical force against the person of
another[ ] or (ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.’’ 18
U.S.C. § 924(e)(2)(B) (emphasis added).
We reject Alexander’s reading of the statute. See United
States v. King, 325 F.3d 110 (2d Cir. 2003) (prior conviction
for attempt to commit third-degree possession of controlled
substance qualified as ‘‘serious drug offense’’). As the gov-
ernment correctly observes, the Congress defined the terms
‘‘violent felony’’ and ‘‘serious drug offense’’ in decidedly differ-
ent manners. Unlike the definition of ‘‘violent felony,’’ the
definition of ‘‘serious drug offense’’ does not speak in specif-
ics; instead, it defines the term to include an entire class of
state offenses ‘‘involving’’ certain activities, namely, ‘‘manufac-
turing, distributing, or possessing with intent to manufacture
or distribute’’ a controlled substance. 18 U.S.C.
§ 924(e)(2)(A)(ii). Noting that ‘‘[t]he word ‘involving’ has
expansive connotations,’’ the Second Circuit recently observed
that the term ‘‘must be construed as extending the focus of
§ 924(e) beyond the precise offenses of distributing, manufac-
turing, or possessing, and as encompassing as well offenses
that are related to or connected with such conduct.’’ King,
325 F.3d at 113; see also United States v. Brandon, 247 F.3d
186, 190 (4th Cir. 2001) (‘‘[T]he word ‘involving’ itself suggests
that the subsection should be read expansively.’’ (internal
citation omitted)). We find the Second Circuit’s analysis to
be sound.
Moreover, as the district court recognized, the use of
‘‘attempted’’ in section 924(e)(2)(B)(i) does not—by itself—
indicate that the Congress intended to exclude attempt con-
victions from the definition of ‘‘serious drug offense[s]’’ in
section 924(e)(2)(A)(ii). 1/7/02 Tr. 47–48. Indeed, well-
established principles of statutory construction counsel other-
wise; if we were to adopt Alexander’s reading of section
924(e)(2)(A)(ii), the term ‘‘involving’’ would be rendered mean-
21
ingless—‘‘distribution alone would qualify as a crime ‘involv-
ing’ distribution’’ and possession with intent to distribute
alone would qualify as a crime ‘‘involving’’ possession with
intent to distribute. United States v. Contreras, 895 F.2d
1241, 1244 (9th Cir. 1990) (rejecting argument that possession
with intent to distribute is not crime ‘‘involving’’ distribution).
Because Alexander’s earlier conviction of attempted posses-
sion ‘‘involv[ed]’’ possession with intent to distribute a con-
trolled substance and, in addition, carried a maximum term of
imprisonment of more than ten years, we conclude that the
district court properly imposed a mandatory minimum sen-
tence under 18 U.S.C. § 924(e)(1).
For the foregoing reasons, we conclude that all of Alexan-
der’s contentions are without merit. Accordingly, the judg-
ment of the district court is
Affirmed.