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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2004 Decided May 18, 2004
No. 03-3011
UNITED STATES OF AMERICA,
APPELLEE
v.
HAROLD LINARES,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00038–01)
Sydney J. Hoffman, appointed by the court,* argued the
cause and filed the brief for appellant.
Thomas S. Rees, Assistant United States Attorney, argued
the cause for appellee. With him on the brief were Roscoe C.
Howard Jr., United States Attorney, and John R. Fisher,
* The court thanks Ms. Hoffman for her able assistance.
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
Roy W. McLeese III, and Stephen Gripkey, Assistant United
States Attorneys.
Before: SENTELLE, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Opinion concurring in Part III filed by Circuit Judge
GARLAND.
TATEL, Circuit Judge: Convicted by a jury of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)
(2000), appellant argues that the district court erroneously
allowed the government to present evidence that years earlier
he possessed a handgun in New Haven, Connecticut. Al-
though we agree with appellant that the evidence was irrele-
vant to any issue except criminal propensity and thus inad-
missible under Federal Rule of Evidence 404(b), we conclude
that the error was harmless and therefore affirm the convic-
tion.
I.
Shortly after midnight on January 3, 2002, appellant Ha-
rold Linares drove to a gas station in Washington, D.C.,
where he picked up Jay Davis and Zelandria Berry. Accord-
ing to Berry, Davis handed Linares a pistol and the three
then drove to a nightclub, where Linares got into a fight that
left him with a bloody nose. When they got back into
Linares’s car, Linares exchanged words with a group of
people hanging around outside the nightclub. This exchange
ended with the firing of six shots from Linares’s car, and with
Linares speeding away. Metropolitan Police Officer Curtis
Reed, who was stationed across the street, witnessed the
shooting and pursued Linares. Sergeant Curtis Jones, also
at the scene but with his back to Linares’s car when the shots
were fired, joined the chase in his own cruiser. Pursued by
the officers at speeds exceeding ninety miles per hour, Li-
nares eventually crashed into another vehicle. As the two
officers approached the wrecked car, they saw Linares throw
a gun over a nearby fence.
A grand jury indicted Linares on one count of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
3
At trial, the government put on nine witnesses, including the
three eyewitnesses to the night’s events. Officer Reed testi-
fied that while sitting in a marked police car across the street
from the nightclub, he saw a dark-colored vehicle stop in
front of the club. A few seconds later, preparing to shine his
spotlight on the car as a way of encouraging the driver to
move on, Reed ‘‘saw a muzzle flash TTT coming from the
extension of [the driver’s] arm.’’ Tr. 10/17/02 (a.m.) at 33. In
the driver’s hand he saw a ‘‘black colored object that I
believed to be a handgun.’’ Id. at 34. Reed testified that he
had an unobstructed view of the car at the time the shots
were fired. ‘‘There’s nothing in between my view of him and
myself,’’ Reed explained. ‘‘There’s not TTT a bus, a truck, a
car, anything.’’ Id. at 32–33. Reed also testified that the
area in front of the nightclub was ‘‘very well lit’’ by, among
other things, a street light and the nightclub’s ‘‘very, very
large neon sign.’’ Id. at 28. Reed testified that after the
shots were fired the car sped away, and that he pursued it
until it crashed into another vehicle. Approaching the
crashed vehicle with gun drawn, Reed ‘‘noticed that there was
a gun in [the driver’s] left hand. He stuck his left hand out of
the driver’s side window and threw the gun up in the airTTTT’’
Id. at 39. Without objection, Reed identified the driver as
Linares.
Sergeant Jones testified that while walking back to his
vehicle from the nightclub, where he had just investigated the
owner’s report of an unruly patron, he heard several gunshots
behind him. Turning, he saw a dark-colored Maxima speed-
ing away and Reed chasing it. Racing to his own car, Jones
joined the pursuit, catching up to the Maxima after it crashed
and stopping perpendicular to it with his front end pointed at
its passenger side. When Jones got out of his vehicle, he saw
‘‘the driver with his left hand holding a handgun out of the
window.’’ Tr. 10/18/02 at 42. Jones saw this from about a
car length away, ‘‘looking through the [Maxima’s] passenger
window TTT through to the driver.’’ Id. Ordered by Jones to
drop the gun, the driver ‘‘complied and threw the gun over a
fence which was directly in front of the car.’’ Id. at 43.
Jones testified that he had no trouble seeing the driver’s
4
actions, explaining that when he arrived at the crash scene he
activated his vehicle’s ‘‘three high intensity lights.’’ Id. at 45.
Without objection, Jones identified the driver as Linares.
Berry, the female passenger, testified not only that she saw
Davis hand Linares a gun at the gas station, but also that she
was sitting right next to Linares in the front passenger seat
when he leaned across her and fired the gun out her window.
‘‘I see him pointing the gun and shooting it,’’ she told the
jury. Tr. 10/21/02 at 42. Asked by the prosecutor how she
could tell Linares was firing the gun, she explained, ‘‘I heard
it. It was loud. It was right in front of me.’’ Id. at 43.
The government’s other witnesses included crime scene
officers, firearms experts, and a fingerprint analyst. Accord-
ing to their testimony, the handgun recovered at the crash
scene had moved in interstate commerce, had fired the shell
casings recovered from inside Linares’s car, and had no
usable fingerprints on it.
Finally, and central to this appeal, a New Haven, Connecti-
cut police officer testified that four-and-a-half years before
these events, she arrested Linares after seeing him drop a
loaded handgun onto the ground. Linares objected to this
testimony, arguing that it was inadmissible under Federal
Rule of Evidence 404(b) because it had no relevance to any
issue other than criminal propensity. See Fed. R. Evid.
404(b) (‘‘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.’’). Alternatively, Linares ar-
gued that even if not barred by Rule 404(b), the evidence
should be excluded under Federal Rule of Evidence 403
because the danger of unfair prejudice that it posed substan-
tially outweighed its probative value. See Fed. R. Evid. 403
(‘‘Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudiceTTTT’’). Overruling Linares’s objection, the district
court admitted the evidence pursuant to Rule 404(b) to prove
intent, knowledge, and absence of mistake. See Fed. R. Evid.
404(b) (providing that propensity evidence may ‘‘be admissi-
ble for other purposes, such as proof of motive, opportunity,
5
intent, preparation, plan, knowledge, identity, or absence of
mistake’’).
Linares testified in his own defense. He claimed that he
never held the gun—not at the gas station, not when the
shots were fired, and not when the police approached his
wrecked car. He claimed that he neither saw anyone fire
shots from inside his car nor realized at the time that anyone
in his car even had a gun. He claimed finally that while
speeding away from the nightclub, he saw a gun in Berry’s
hand.
The jury convicted Linares, and the district court sen-
tenced him to ten years in prison. On appeal he argues that
the New Haven evidence was inadmissible under Rule 404(b)
or, alternatively, that the district court should have excluded
it under Rule 403 because its probative value was substantial-
ly outweighed by the danger of unfair prejudice.
II.
‘‘[A] concomitant of the presumption of innocence is that a
defendant must be tried for what he did, not for who he is.’’
United States v. Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985)
(quoting United States v. Myers, 550 F.2d 1036, 1044 (5th Cir.
1977)) (internal quotation marks omitted). Introducing evi-
dence of a defendant’s prior crimes and other bad acts—so-
called propensity evidence—may conflict with this principle.
As the Supreme Court has explained:
The [character] inquiry is not rejected because char-
acter is irrelevant; on the contrary, it is said to
weigh too much with the jury and to so overper-
suade them as to prejudge one with a bad general
record and deny him a fair opportunity to defend
against a particular charge. The overriding policy
of excluding such evidence, despite its admitted pro-
bative value, is the practical experience that its
disallowance tends to prevent confusion of issues,
unfair surprise and undue prejudice.
6
Michelson v. United States, 335 U.S. 469, 475–76 (1948)
(footnote omitted). The danger of undue prejudice is far
from theoretical. ‘‘That juries treat prior convictions as
highly probative has been confirmed by empirical investiga-
tions. See H. Kalven & H. Zeisel, The American Jury 160
(1966). Such reliance by the trier of fact offends the long
standing tradition that protects a criminal defendant from
guilt by reputation and from unnecessary prejudice.’’ Dan-
iels, 770 F.2d at 1116 (internal quotation marks omitted).
Embodying the principles enunciated by the Supreme Court
in Michelson, Rule 404(b) provides that ‘‘[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the charac-
ter of a person in order to show action in conformity there-
with.’’ Fed. R. Evid. 404(b).
Not all propensity evidence is inadmissible, however. Be-
cause ‘‘[e]xtrinsic acts evidence may be critical, TTT especially
when th[e] issue involves the actor’s state of mind and the
only means of ascertaining that mental state is by drawing
inferences from conduct,’’ Huddleston v. United States, 485
U.S. 681, 685 (1988), Rule 404(b) provides that propensity
evidence, though inadmissible to prove character, may ‘‘be
admissible for other purposes, such as proof of motive, oppor-
tunity, intent, preparation, plan, knowledge, identity, or ab-
sence of mistake.’’ Fed. R. Evid. 404(b). Indeed, we have
described the rule as one ‘‘of inclusion rather than exclusion,’’
United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000),
and explained that it excludes only evidence that ‘‘is offered
for the sole purpose of proving that a person’s actions con-
formed to his or her character,’’ United States v. Long, 328
F.3d 655, 661 (D.C. Cir.), cert. denied, 124 S. Ct. 921 (2003).
In this case, the district court admitted the New Haven
evidence as relevant to intent, knowledge, and absence of
mistake. Reasserting the arguments he made in the district
court, Linares contends that the evidence had no probative
value on any of these issues. ‘‘We review a claim that a
district court improperly admitted evidence under Rule 404(b)
solely to determine whether the court abused its discretion.’’
7
United States v. Pindell, 336 F.3d 1049, 1056–57 (D.C. Cir.
2003).
We begin with knowledge. Knowledge was an issue be-
cause the government had to prove beyond a reasonable
doubt not only that Linares possessed a firearm, but also that
he possessed it knowingly. See 18 U.S.C. § 924(a)(2) (2000)
(‘‘Whoever knowingly violates subsection TTT (g) TTT of sec-
tion 922 shall be fined as provided in this title, imprisoned not
more than 10 years, or both.’’ (emphasis added)). Whether
the New Haven evidence was in fact relevant to the issue of
knowledge turns on whether it ‘‘tende[d] to make the exis-
tence of any fact that is of consequence to the determination
of the action [here, that Linares possessed the gun knowing-
ly] more probable or less probable than it would be without
the evidence.’’ Fed. R. Evid. 401.
Given the evidence in this case, we do not understand how
Linares’s previous possession of a pistol makes it any more
likely that he knowingly possessed a gun this time. In fact, it
is hard to see how Linares could possibly have possessed the
gun unknowingly, i.e., without being aware that he possessed
it or without realizing that the object in his hand was a gun.
Presented through three eyewitnesses, the government’s evi-
dence demonstrated that Davis handed Linares a gun, that
Linares later fired it several times, and that still later he held
it out his car window and tossed it away—all the while aware
of his actions. If the jury believed these eyewitnesses, then
Linares possessed the gun knowingly; if it did not, then it
should have acquitted based on the government’s failure to
prove possession rather than its failure to prove knowledge.
Indeed, no reasonable jury could have acquitted Linares
based on the belief that the government proved possession
but failed to prove knowledge. The New Haven evidence was
thus inadmissible to prove knowledge. Just as trial judges
should not instruct juries on self-defense (or any other de-
fense) when such a defense is unsupported by the evidence,
see Mathews v. United States, 485 U.S. 58, 63 (1988) (‘‘[A]
defendant is entitled to an instruction as to any recognized
defense for which there exists evidence sufficient for a rea-
sonable jury to find in his favor.’’ (emphasis added)), neither
8
should they allow the government to introduce 404(b) evi-
dence to prove an element that the government’s evidence
has, by completely precluding an acquittal based on the
failure to prove that element, effectively (though not formally)
eliminated.
Nor, for essentially the same reason, should the court have
admitted the New Haven evidence to prove absence of mis-
take. Given the government’s evidence, no reasonable jury
could have found that the government had proven possession
but failed to prove absence of mistake. Disputing this, the
government asserts that the jury could have thought that
Linares held the gun by mistake if, for example, it believed
that ‘‘given the violent crash preceding appellant’s toss of the
gun, TTT appellant came by the gun TTT from elsewhere in the
car, viz., from one of his passengers, as a random result of
the crash.’’ Appellee’s Br. at 31 n.5. Even were that scenar-
io plausible, however, it would not contradict Berry’s testimo-
ny that Linares not only held the gun prior to the accident,
but also that it was he who fired the shots. Of course, as the
government points out, the jury might have disbelieved Ber-
ry’s testimony entirely, given that on cross-examination she
admitted both that she had recently been convicted of con-
spiracy to rob and that before trial she never mentioned that
she saw Davis hand Linares a pistol at the gas station. But
even if the jury discredited Berry’s testimony, it still would
have had Officer Reed’s virtually unchallenged testimony that
Linares held and fired the gun prior to the accident. We
thus do not think that a reasonable jury could have concluded
that Linares possessed the gun accidentally.
Alternatively, the government argues that in light of Reed’s
testimony that after the crash Linares reached down onto
either the car floor or his seat and ‘‘came up [with] TTT a gun
in his left hand,’’ Tr. 10/17/02 (a.m.) at 39, the jury could have
found that at some point the gun was not actually in Linares’s
hand. In other words, the government argues that the jury
could have concluded that while Linares never actually pos-
sessed the gun, he possessed it constructively, i.e., had domin-
ion and control over it. Given this possibility, the govern-
ment argues, it needed to introduce the New Haven evidence
9
to prove that Linares’s constructive possession was knowing.
We think not. The jury would have needed to consider
constructive possession only if it entertained a reasonable
doubt as to actual possession, and the same sentence of
Reed’s testimony that the government quotes demonstrates
that even if the possession had been constructive at some
time, it became actual when Linares ‘‘came up [with] TTT a
gun in his left hand.’’ Moreover, we doubt very much that
the jury would have considered constructive possession given
that the district court declined to instruct on it. Perhaps, as
the government argues, the facts of the case would have
supported such an instruction. The jury was not so instruct-
ed, however, and government counsel acknowledged at oral
argument that by failing to object to the instruction given, the
government waived any claim that the district court erred in
refusing to instruct on constructive possession.
Undaunted, the government asserts that ‘‘a jury that cred-
ited some of the government’s evidence and some of appel-
lant’s testimony might have concluded beyond a reasonable
doubt that appellant constructively possessed the weapon,
while having a reasonable doubt that he—as opposed to
Berry or Davis—actually fired or discarded the gun.’’ Appel-
lee’s Br. at 32 n.6. We are unsure what the government
means by ‘‘some’’ of its evidence. The jury could have had a
reasonable doubt that Linares rather than Davis or Berry
fired or discarded the gun only if it rejected the key testimo-
ny of all three government eyewitnesses. And had the jury
done so, it would have lacked any basis to conclude beyond a
reasonable doubt that Linares ever possessed the gun, either
actually or constructively, because if either Davis or Berry
possessed and fired the gun, then Linares could not possibly
have had sufficient dominion and control over it to establish
constructive possession. We thus remain convinced that giv-
en the evidence, no reasonable jury, instructed as was this
one, could have found beyond a reasonable doubt that Linares
possessed the gun by mistake. The district court therefore
should not have admitted the New Haven evidence to prove
absence of mistake.
10
We turn next to intent. Although Rule 404(b) lists intent
as one of the purposes for which other-acts evidence may be
admissible, the New Haven evidence was inadmissible for
that purpose because under section 922(g)(1), the government
had no obligation to prove intent. That section makes it
unlawful for felons to possess a firearm knowingly. It says
nothing about intent. See, e.g., United States v. Gorman, 312
F.3d 1159, 1163–64 (10th Cir. 2002) (‘‘In a [case] of possession
of a firearm by a convicted felon pursuant to TTT § 922(g)(1),
the government must prove [that] TTT the defendant TTT
knowingly possessed a firearm.’’ (internal quotation marks
omitted)).
To be sure, the words ‘‘intent’’ and ‘‘knowledge’’ can have
similar meanings. In particular, when intent is used to mean
not specific intent (as in ‘‘possession with intent to distrib-
ute’’) but rather general intent—which refers to ‘‘the knowing
commission of an act that the law makes a crime,’’ United
States v. Kleinbart, 27 F.3d 586, 592 n.4 (D.C. Cir. 1994)—the
definitions of the two terms overlap. That said, ‘‘[k]nowledge
TTT is not identical with intent.’’ Morissette v. United States,
342 U.S. 246, 270 (1952). Moreover, to the extent the district
court took intent to mean general intent, and thus a synonym
for knowledge, we have already explained why knowledge
provided no basis for admitting the New Haven evidence.
See supra pages 7–8.
The government next argues that the New Haven evidence
was admissible because ‘‘it tended to corroborate the eyewit-
ness testimony of [the two officers] and Berry.’’ Appellee’s
Br. at 36. Although the district court did not admit the
evidence for corroboration, we address the argument because
‘‘[a]s the prevailing party, the Government is entitled to
defend the judgment on any ground that it properly raised
below.’’ Jones v. United States, 527 U.S. 373, 396 (1999).
The government relies primarily on our decision in United
States v. Bowie, where we stated that ‘‘[a]lthough Rule 404(b)
does not explicitly list corroboration among its examples of
non-propensity purposes, evidence of other crimes or acts is
admissible to corroborate evidence that itself has a legitimate
11
non-propensity purpose.’’ 232 F.3d at 933. But Bowie does
not stand for the proposition that otherwise-inadmissible pro-
pensity evidence can be introduced under Rule 404 to corrob-
orate non-propensity evidence. If it could, then propensity
evidence would always be admissible. As long as the govern-
ment had a single piece of non-propensity evidence tending to
prove the defendant’s guilt—a single eyewitness, one finger-
print, anything at all—the propensity evidence would be
admissible to corroborate it. We pointed this out last year in
United States v. Bailey, 319 F.3d 514 (D.C. Cir. 2003),
observing that:
[U]se of 404(b) evidence for corroboration [has] inherent
complications. Corroboration, in and of itself, is not a
separate purpose belonging in the open class of permissi-
ble purposes referred to in Rule 404(b)’s second sen-
tence. If it were, evidence could slide past the rule
against improper character evidence. To decide if Rule
404(b) evidence is admissible for corroboration, the court
must determine what is being corroborated and how. If
similar past acts were corroborative only because they
showed the defendant’s character and the likelihood of
‘‘action in conformity therewith,’’ plainly the rule would
call for exclusion. On the other hand, evidence might
corroborate a witness’s testimony by showing plan, pur-
pose, intent, etc. and therefore be admissible under
404(b). The label ‘‘corroboration’’ thus merely invites a
closer look at exactly how the evidence may be probative.
Id. at 520. Corroboration, then, does not provide a separate
basis for admitting evidence. As government counsel forth-
rightly acknowledged at oral argument, prior-acts evidence
must corroborate other evidence by proving a proper ele-
ment, such as intent or identity. Because the New Haven
evidence was inadmissible to prove knowledge, intent, ab-
sence of mistake, or for any other permissible purpose, it was
inadmissible to corroborate the eyewitness testimony.
Though never adequately explaining how the New Haven
evidence was relevant to the issues for which the district
court admitted it, the government asserts that ‘‘cases in this
12
Circuit and others show that evidence of a prior or subse-
quent possession of an item such as a firearm is admissible as
404(b) evidence.’’ Appellee’s Br. at 27–28. But the posses-
sion cases the government lists in a two-page string cite differ
from this case because in each of those cases, unlike here, a
reasonable jury could have concluded that the charged pos-
session was unknowing or mistaken, and thus the government
needed the other-acts evidence to prove knowledge or ab-
sence of mistake. For example, in United States v. Cassell,
292 F.3d 788 (D.C. Cir. 2002), the government charged the
defendant with being a felon in possession after police
searched his uncle’s home and found firearms in the bedroom
in which the defendant was staying. A reasonable jury could
have concluded that while the defendant constructively pos-
sessed the weapons (in that he had dominion and control over
them because they were in his bedroom), his constructive
possession was unknowing—perhaps because his uncle
stashed the weapons in the bedroom without telling the
defendant. That was a classic case for introducing prior
instances of gun possession, since the government would
otherwise find it extremely difficult to prove that the charged
possession was knowing. See Huddleston, 485 U.S. at 685.
All of the other felon-in-possession cases in the govern-
ment’s string cite are similarly distinguishable. In United
States v. Brown, 16 F.3d 423 (D.C. Cir. 1994), the defendant
was charged with possessing two guns the police found in a
safe in his co-defendant’s daughter’s bedroom; because a
reasonable jury could have concluded that someone else put
the guns in the safe without the defendant’s knowledge, the
court allowed the government to introduce a gun that the
police found on the defendant when they arrested him. In
United States v. King, 254 F.3d 1098 (D.C. Cir. 2001), the
defendant was charged with possessing a gun that police saw
‘‘wedged into the back of the sunroof,’’ id. at 1099; a reason-
able jury could have concluded that the defendant lacked any
knowledge that the gun was wedged there. (In any event,
because we found the introduction of the 404(b) evidence in
King to be erroneous, although harmlessly so, the case cannot
stand for the proposition that the admission of 404(b) evi-
13
dence is proper in a case like this.) In United States v. Mills,
29 F.3d 545 (10th Cir. 1994), the defendant was charged with
possessing guns that police recovered from various places in
his home, a home shared with another person; a reasonable
jury could have concluded that the guns belonged to the other
person and that the defendant therefore possessed them
unknowingly. In United States v. Brown, 961 F.2d 1039 (2d
Cir. 1992) (per curiam), the defendant was charged with
possessing an Uzi that police found in his apartment when he
was elsewhere; a reasonable jury could have decided that
others who had access to the apartment put the gun there
without the defendant’s knowledge. And in United States v.
Teague, 737 F.2d 378 (4th Cir. 1984), the police found a pistol
on the floor of the vehicle the defendant was driving; a
reasonable jury could have concluded—particularly after the
defendant testified that he ‘‘did not know the pistol was in his
automobile at the time of his arrest, and that it must have
been left there by [a friend] who had borrowed his car,’’ id. at
380—that the defendant’s constructive possession of the pistol
was unknowing. In contrast to all these cases, given the
government’s evidence here, no reasonable jury could have
concluded that the defendant possessed a firearm either
unknowingly or mistakenly.
The remaining cases the government cites are even easier
to distinguish. Because the defendant in Bowie was charged
with possessing counterfeit money, the government had to
prove he knew the bills were forgeries. See 232 F.3d at 930.
That is a clear case for introducing 404(b) evidence, for
otherwise a reasonable jury could conclude that even though
the defendant knowingly held the bills, he had no idea they
were counterfeit. In this case, by contrast, no reasonable
jury could have concluded that Linares possessed a gun
without knowing it was a gun. In United States v. Gomez,
927 F.2d 1530 (11th Cir. 1991), the defendant was charged
with possessing a firearm in connection with a drug crime,
and the government introduced the 404(b) evidence not to
prove knowledge, but rather ‘‘to rebut [the defendant’s] claim
that the gun in his glove compartment in this case had
nothing to do with the drug transportation.’’ Id. at 1534.
14
And in United States v. Williams, 895 F.2d 1202 (8th Cir.
1990), the defendant was charged with possessing and con-
spiring to possess crack cocaine with intent to distribute, as
well as with possessing a firearm in connection with a drug
crime. Unlike in this case, there the government had to
prove specific intent, making admission of the 404(b) evidence
proper because the jury could reasonably have concluded that
the defendant possessed the drugs but lacked intent to dis-
tribute. The Williams court also approved the evidence’s
admission to prove knowledge or absence of mistake, but in
that case the police arrested the defendant outside the apart-
ment in which they found the drugs he was charged with
possessing—again, a very different situation from the one
presented here.
The government next relies on United States v. Crowder,
141 F.3d 1202 (D.C. Cir. 1998) (en banc), in which we held
that a defendant may not bar the government from introduc-
ing 404(b) evidence to prove an element of the crime by
stipulating to that element and accepting a jury instruction
that relieves the government of any burden to prove it. See
id. at 1203. Crowder provides no help to the government,
however, because we conclude here not that admission of the
New Haven evidence was erroneous based on anything Li-
nares did or failed to do at trial, but rather that given the
evidence the government presented, no reasonable jury could
have acquitted Linares based on the belief that the govern-
ment had proved possession but not knowing possession.
The same could not have been said in Crowder, where the
defendant was charged with possessing crack cocaine with
intent to distribute. The crack in question was in small
ziplock bags contained in a brown paper bag that Crowder
was holding when the police arrested him, and the 404(b)
evidence was admitted to prove not only the specific intent to
distribute, but also ‘‘that Crowder knew the material in the
ziplock bags was crack cocaine.’’ Id. at 1209. In other
words, without the 404(b) evidence, a reasonable jury could
have concluded either that Crowder thought the white pow-
dery substance was flour (or some other innocuous sub-
stance), or that he had no idea the closed paper bag even
contained a white powdery substance. Here, because Linares
15
could not have possessed the gun without recognizing the
nature of the object in his hand, no similar possibility existed.
And whereas the 404(b) evidence was admissible in Crowder
because ‘‘it was more probable with the evidence than without
it that Crowder intended to distribute the crack cocaine in the
brown paper bag,’’ id., here the government (as we have
explained) had no obligation to prove intent.
Crowder actually involved two separate prosecutions that
we consolidated on appeal. The government contends in its
brief and contended again at oral argument that the other
case, United States v. Davis, also supports its position here.
The defendant in that case sold crack cocaine to an undercov-
er police officer who then left the area and broadcast a
description of the suspect. When other officers stopped
Davis as he was getting into a car, the undercover officer
returned to the scene and identified him. Arresting Davis,
the police found more than twenty grams of crack in the car.
See id. at 1204. Davis’s defense at trial was mistaken identi-
ty—that he was not the person who sold drugs to the
undercover officer. Over Davis’s objection, the district court
admitted evidence of three prior cocaine sales that Davis
made in the same area as the charged offense. According to
the government, Davis supports its position because there we
upheld the admission of 404(b) evidence to prove intent even
though—given the undercover officer’s testimony that Davis
sold drugs directly to him—no reasonable jury could have
acquitted Davis based on failure to prove intent.
The government overlooks the fact that the indictment
against Davis included two counts: one count of distribution
of a controlled substance, stemming from the sale of cocaine
to the undercover officer, and one count of possession with
intent to distribute five grams or more of cocaine base,
stemming from the twenty grams of cocaine found in the car
when the police arrested Davis. The government’s introduc-
tion of the 404(b) evidence to prove knowledge and intent
related not to the distribution count, but to the possession-
with-intent-to-distribute count, i.e., to the drugs found in the
vehicle when the police arrested Davis. Making this point
clear, the government’s brief to the panel that heard the case
16
before we ordered rehearing en banc stated that ‘‘evidence
that appellant had previously sold crack cocaine could be used
by the jury to establish appellant’s knowledge of the presence
of the drugs in the Jetta and his intent to sell them.’’
Appellee’s Br. at 22, United States v. Davis, No. 93–3059
(Sept. 19, 1994) (emphasis added); accord id. at 21 (‘‘It is
beyond dispute that appellant’s prior efforts to distribute
drugs are relevant and admissible to show his intent to
distribute and knowledge of the drugs he possessed when
arrested.’’ (emphasis added)). The 404(b) evidence was
therefore needed because a reasonable jury could have con-
cluded that although Davis possessed the crack in the car, the
government had failed to prove beyond a reasonable doubt
that he intended to distribute it, and thus could have acquit-
ted him on the second count. No similar acquittal was
possible here.
Even setting aside the factual differences that distinguish
both Crowder and Davis from this case, Linares’s argu-
ment—that the facts and the government’s evidence effective-
ly removed an element from the case—played no role in the
consolidated Crowder decision. As our en banc opinion noted,
‘‘neither defendant contested the relevancy of the other
crimes evidence to his intent, except on the basis that their
proposed stipulations took intent out of the case.’’ Crowder,
141 F.3d at 1209. The defendants limited their appeal to this
single issue because in our order setting Crowder and Davis
for joint en banc review, we directed that ‘‘[b]riefing and
argument will be limited to the following issue: Whether the
[government] must generally accept an offer of stipulation by
defense counsel thereby precluding the [government] from
introducing evidence under Federal Rule of Evidence 404(b)
to prov[e] an element of the offense.’’ Crowder, No. 92–3133,
and Davis, No 93–3059 (D.C. Cir. May 18, 1995) (en banc)
(per curiam) (order scheduling en banc oral argument).
Clearly reflecting that limitation, our opinion concluded: ‘‘we
hold that a defendant’s offer to stipulate to an element of an
offense does not render the government’s other crimes evi-
dence inadmissible under Rule 404(b) to prove that element.’’
Crowder, 141 F.3d at 1209.
17
In sum, we hold that Rule 404(b) barred admission of the
New Haven evidence because, in Rule 401’s terms, the evi-
dence made it no ‘‘more probable or less probable’’ that
Linares possessed the gun knowingly or unmistakenly, and
because the government had no obligation to prove intent.
We thus have no need to address Linares’s alternative argu-
ment that Rule 403 required the district court to exclude the
evidence.
III.
The government contends that even if admission of the
New Haven evidence violated Rule 404(b), we should nonethe-
less sustain Linares’s conviction because the error was harm-
less. Under Rule 52(a) of the Federal Rules of Criminal
Procedure, ‘‘[a]ny error, defect, irregularity, or variance that
does not affect substantial rights must be disregarded.’’ Be-
cause the error in this case affected no constitutional rights,
see King, 254 F.3d at 1101–02, we must disregard it unless it
had a ‘‘substantial and injurious effect or influence in deter-
mining the jury’s verdict,’’ Kotteakos v. United States, 328
U.S. 750, 776 (1946). The government bears the burden of
proving the absence of such an effect. See, e.g., United
States v. Whitmore, 359 F.3d 609, 622 (D.C. Cir. 2004) (citing
United States v. Olano, 507 U.S. 725, 734 (1993)).
Given the multiple and consistent eyewitness accounts that
it presented at trial, the government has met its burden.
Recall that Officer Reed, having an unobstructed view of
Linares’s car on a well-lighted street, saw a muzzle flash from
a ‘‘black colored object’’ that was in Linares’s extended
hand—an object Reed thought was a gun. Later, as he
approached Linares’s crashed car, Reed saw Linares hold a
gun in his hand and throw it over a nearby fence. Sergeant
Jones, standing just five to ten yards from Linares with an
unobstructed view in good lighting, also saw Linares toss a
gun from the car window. And Berry not only saw Linares
holding a gun at the gas station, but also saw him hold and
fire a gun outside the nightclub, the latter while he was
leaning over her only inches away.
18
Barely contesting the force of this evidence, Linares’s brief
states only that ‘‘it cannot be said that [the] testimony that
Linares had possessed and disposed of a pistol in 1997 in New
Haven, Connecticut did not contribute to the guilty verdict.’’
Appellant’s Br. at 29. At oral argument, Linares’s counsel
did contend that two of the government’s eyewitnesses had
their credibility damaged during cross-examination: Sergeant
Jones because he acknowledged that during his sworn testi-
mony to the grand jury he stated, contrary to his trial
testimony, that he saw Linares leave the nightclub, see Tr.
10/18/02 at 162, and Berry because she admitted both that she
had recently been convicted of conspiracy to rob and that
before trial she failed to mention that she saw Davis hand
Linares a pistol at the gas station. But even assuming that
both witnesses’ credibility was damaged (and we question
how much harm resulted from a single inconsistency in
Jones’s testimony), the damage did nothing to undermine
Officer Reed’s credibility. The cross-examination of Reed,
though lengthy, scarcely addressed his testimony that he saw
Linares hold and fire a handgun—testimony that by itself
gave the jury ample basis to convict. Moreover, Reed’s
unimpeached testimony corroborated both Jones’s and Ber-
ry’s, likely compensating for any credibility problems the jury
may have thought those two had.
Because the government has carried its burden to prove
harmless error, Linares’s conviction is affirmed.
So ordered.
1
GARLAND, Circuit Judge, concurring in Part III of the
court’s opinion:
I concur in the court’s ruling in Part III that, even if the
district court erroneously admitted evidence that Linares had
previously been arrested for possession of a handgun, any
such error was manifestly harmless. Whether the admission
of that evidence violates Rule 404(b) is a substantially more
difficult question, particularly in light of the en banc court’s
opinion in United States v. Crowder and Davis, 141 F.3d 1202
(D.C. Cir. 1998). Given the ruling in Part III, it is a question
that need not be decided in order to resolve this case.