United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2008 Decided May 27, 2008
No. 06-3130
UNITED STATES OF AMERICA,
APPELLEE
v.
LEWIS D. MCCARSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00068-01)
James W. Beane, Jr., appointed by the court, argued the
cause and filed the brief for appellant.
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III and Thomas J.
Tourish, Jr., Assistant U.S. Attorneys.
Before: GINSBURG, BROWN, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
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GINSBURG, Circuit Judge: A jury found Lewis McCarson
guilty of being a felon in possession of a firearm, see 18 U.S.C.
§ 922(g)(1), and of possessing with the intent to distribute five
grams or more of cocaine base, see 21 U.S.C. § 841(a)(1) &
(b)(1)(B)(iii). He was acquitted of possessing a firearm during
a drug-trafficking offense, see 18 U.S.C. § 924(c)(1), and of
possessing with the intent to distribute marijuana, see 21 U.S.C.
§ 841(a)(1) & (b)(1)(D). On appeal, McCarson argues that
evidence of the gun and the drugs, which the U.S. Marshals
discovered while executing a warrant for McCarson’s arrest in
connection with another charge, should be suppressed as the
fruits of an unreasonable search in violation of the Fourth
Amendment to the Constitution of the United States. In
addition, McCarson contends the district court erroneously
applied Rules 404(b) and 403 of the Federal Rules of Evidence
in allowing the Government to introduce evidence of his prior
convictions. We find merit in neither argument and therefore
affirm the conviction.
I. Background
Having learned from a reliable source that McCarson was
staying at his girlfriend’s apartment in the District of Columbia,
Deputy U.S. Marshals went to her apartment early one morning
with a warrant for his arrest. McCarson answered the door
wearing boxer undershorts and a t-shirt and holding an infant in
his arms. The Marshals, who recognized him from a
photograph, directed McCarson to sit at the kitchen table, which
he did, and conducted a protective sweep of the two-bedroom
apartment, in the course of which they discovered nothing of
concern. In preparation for his arrest, McCarson made a
telephone call to ensure that somebody would take custody of
the child and said he wanted to wear his black pants, coat, and
shoes, which were in one of the bedrooms. A Marshal told
McCarson to remain seated, and two other Marshals went into
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the bedroom to get those articles. In the process of retrieving
them, one of the Marshals noticed marijuana in an open drawer
of a dresser inches away from him and then saw an automatic
handgun in another drawer, which was also ajar; the latter
drawer also contained crack cocaine, which the district court
found to have been in plain sight either from the outset or once
the Marshals removed the gun.
II. Analysis
On appeal, McCarson argues first that the gun and narcotics
should have been suppressed under the Fourth Amendment. In
Payton v. New York, 445 U.S. 573 (1980), however, the
Supreme Court explained that “an arrest warrant ... implicitly
carries with it the limited authority to enter a dwelling in which
the suspect lives when there is reason to believe the suspect is
within.” Id. at 603. Although the Marshals had a warrant for
McCarson’s arrest and discovered the contraband in plain sight
while effecting the arrest, see Harris v. United States, 390 U.S.
234, 236 (1968) (evidence found in plain view is admissible),
McCarson contends on the authority of Steagald v. United
States, 451 U.S. 204 (1981), the contraband should be
suppressed; he submits the Marshals were obliged to obtain a
search warrant because they arrested him at a residence other
than his own.*
*
McCarson challenges neither the reasonableness of the
Marshals’ belief McCarson was at his girlfriend’s apartment nor their
authority, in connection with effecting the arrest, to enter the bedroom
where they found the contraband. Although counsel contended at oral
argument that the evidence was not found in plain sight, that argument
appears nowhere in the defendant’s briefs and so is not properly before
us. United States v. Johnson, 519 F.3d 478, 489 (D.C. Cir. 2008).
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McCarson’s argument that the evidence should have been
excluded from his trial finds no support in Steagald. There the
police, who had obtained a warrant for the arrest of one Lyons,
learned from an informant that Lyons was staying at a certain
address, which turned out to be the residence of one Steagald.
The police searched Steagald’s home but, instead of Lyons,
found narcotics. The Supreme Court held the drugs were
inadmissible as against the householder, Steagald, id. at 216, but
had no occasion to address the Fourth Amendment rights of
Lyons, see id. at 212-13. Nothing in Steagald, therefore, bears
upon McCarson’s situation, as opposed to that of the woman
whose apartment was searched.* Nor does McCarson have
standing to invoke her rights in his defense. United States v.
Salvucci, 448 U.S. 83, 85 (1980) (“defendants charged with
crimes of possession may only claim the benefits of the
exclusionary rule if their own ... rights have ... been violated”).
We hold, therefore, that the gun and drugs were admissible as
evidence against McCarson.
McCarson next challenges the admissibility at trial of four
prior convictions -- two for possession of a gun and two for
*
We have said as much in analogous cases on at least two
occasions, United States v. Taylor, 497 F.3d 673, 679 (2007); United
States v. Searles, 24 F.3d 1464 (Table), 1994 WL 246130, at *1
(1994), as has every other court of appeals to have decided the issue.
See United States v. Pruitt, 458 F.3d 477, 481-82 (6th Cir. 2006);
United States v. Agnew, 407 F.3d 193, 196-97 (3d Cir. 2005); United
States v. Kaylor, 877 F.2d 658, 663 n.5 (8th Cir. 1989); United States
v. Underwood, 717 F.2d 482, 484 (9th Cir. 1983) (en banc) (“If an
arrest warrant and reason to believe the person named in the warrant
is present are sufficient to protect that person’s fourth amendment
privacy rights in his own home, they necessarily suffice to protect his
privacy rights in the home of another”); see also United States v.
Snype, 441 F.3d 119, 133 (2d Cir. 2006) (leaving issue open); United
States v. Weems, 322 F.3d 18, 23 n.3 (1st Cir. 2003) (same).
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distribution of crack cocaine -- on the ground that the evidence
was inadmissible under Rules 404(b) and 403 of the Federal
Rules of Evidence. Rule 404(b), which governs the
admissibility of “[e]vidence of other crimes, wrongs, or acts,”
excludes evidence submitted “to prove the character of a person
in order to show action in conformity therewith,” whereas Rule
403 provides that otherwise relevant evidence, including
evidence of other crimes, “may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice”; the application of both Rules is committed to the
discretion of the district court. United States v. Bowie, 232 F.3d
923, 926-27 (D.C. Cir. 2000) (rulings under Rule 404(b)
reviewed for abuse of discretion); United States v. Washington,
969 F.2d 1073, 1081 (D.C. Cir. 1992) (rulings under Rule 403
reviewed only for “grave abuse”). We conclude the district
court did not abuse its discretion.
First, it is clear the evidence is admissible under Rule
404(b). In United States v. Cassell, 292 F.3d 788, 792-95
(2002), we held evidence of a prior conviction for possession of
contraband is relevant (and admissible under Rule 404(b)) when,
as here, a defendant is charged with constructive possession of
the same type of contraband -- there a gun carried without a
license. And in United States v. Douglas, 482 F.3d 591, 596-
600 (2007), we held evidence of a prior offense involving the
sale of a drug was relevant to prove the defendant knew he
possessed the drug and had the intent to distribute it.
McCarson nonetheless argues the evidence of his prior
convictions for possessing firearms and selling crack cocaine is
inadmissible under Rule 404(b) because his knowledge and
intent were not at issue; the only issue was whether he possessed
the gun and the drugs. In Cassell, however, we rejected the
distinction between knowledge and possession when a defendant
is charged with constructive possession, because “[a] successful
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conviction” for constructive possession requires proof of “a
mental element (knowing possession),” as well as “a physical
element (dominion and control ...).” 292 F.3d at 792-94.
Furthermore, McCarson’s choice not to put at issue an element
of the charged offense is irrelevant to the admissibility of
evidence offered to prove that element. United States v.
Crowder, 141 F.3d 1202, 1205-09 (D.C. Cir. 1998) (en banc);
see also Old Chief v. United States, 519 U.S. 172, 186-89 (1997)
(“the prosecution is entitled to prove its case free from any
defendant’s option to stipulate the evidence away”).
Finally McCarson contends the evidence of his prior
convictions, even if relevant, should have been deemed
inadmissible under Rule 403. It is clear, however, the district
court did not “grave[ly] abuse” its discretion in admitting
McCarson’s prior convictions. Douglas, 482 F.3d at 596. Rule
403 requires the district court to assess whether the “probative
value” of the evidence “is substantially outweighed by the
danger of unfair prejudice.” McCarson’s prior convictions were
not only relevant; they were also highly probative of both his
intent to distribute the crack cocaine and his constructive
possession of the gun and the drugs. This evidence tended to
undercut his argument at trial that the contraband belonged to
his girlfriend because the Marshals found the contraband in his
girlfriend’s apartment inside a dresser containing what appeared
to be her rather than his belongings. Cf. Cassell, 292 F.3d at
793 (evidence of prior conviction permitted where defendant
“disputes the fact that he ever possessed ... firearms ... because,
according to him, the firearms belonged to his uncle” in whose
house they were found). Moreover, as in Douglas, 482 F.3d at
601, and Cassell, 292 F.3d at 796, the district court here
instructed the jury that the evidence was being admitted and was
to be considered only “with respect to the issues of intent and
knowledge and for nothing else.” Where, as here, there is no
“compelling or unique evidence of prejudice,” we deem such a
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limiting instruction “sufficient[]” to “protect a defendant’s
interest in being free from undue prejudice” by virtue of his
prior conviction(s) being put into evidence. Cassell, 292 F.3d
at 796 (internal quotation marks omitted).
III. Conclusion
For the reasons given above, the judgment of the district
court is
Affirmed.