NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 12, 2009
Decided March 20, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐2119
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of
Indiana, Indianapolis Division
v.
No. 07 CR 18
ANTONIO EUBANKS,
Defendant‐Appellant. John Daniel Tinder,
Judge.
O R D E R
Antonio Eubanks was convicted of being a felon in possession of a firearm. Eubanks
appeals his conviction, arguing that the district court erred in excluding evidence that his
girlfriend, who was present at the scene of the arrest, had a prior conviction for possession
of a firearm without a license. We affirm.
I.
On October 28, 2006, Tamika Croom, an employee at the Family Dollar Store in
Indianapolis, called 911 to report that a man and woman, later identified as Antonio
No. 08-2119 Page 2
Eubanks and Lafonda Maffett, were seen shoplifting inside the store. Although the duo
were pilfering some items from the store, to cover their tracks they went to the checkout
counter to pay for some merchandise. While they were checking out, Croom saw Eubanks
reach down and pick up a black handgun that had fallen on the floor near his pant leg. As
Eubanks picked up the weapon, he told Croom that he needed the gun for protection
because the neighborhood around the store was dangerous. Croom told the 911 dispatcher
(who had remained on the line) that the shoplifters were leaving the store and that the male
suspect had a gun.
While Eubanks and Maffett were in the store, police officers arrived outside the store
and awaited the suspects’ departure. As Eubanks and Maffett exited, the responding
officers received word from dispatch that the male suspect was armed. After leaving the
store, Eubanks and Maffett entered a red car that was driven by Pamela Hanley. Maffett
entered the front passenger seat and Eubanks sat in the rear passenger seat. The officers
immediately blocked in the car. As they approached the vehicle, the officers noted that
Eubanks was looking nervously over his shoulder at them. They also saw Eubanks bend
forward two or three times toward the front passenger seat. Officer Carver believed that
Eubanks was trying to put something under the front passenger seat. The officers also
observed Maffett, but she was not looking around, making any sudden movements, or
bending forward in a manner consistent with putting something under her seat.
The officers ordered the threesome out of the car, handcuffed them, and patted them
down. Officer Hornaday then looked in the car with his flashlight and announced “[w]e got
a gun.” Officer Cottey, the reporting officer, walked over to the car and observed a black .40
caliber pistol “halfway underneath the passenger seat and halfway lying on the floorboard
where [Eubanks’] feet would have been.” Maffett responded almost immediately “that’s
mine,” but as soon as she said this, Eubanks adamantly told the officers: “no, that’s my
gun” and “that’s mine man.” Eubanks continued to insist the gun was his. After receiving
his Miranda warnings, Eubanks again admitted ownership of the firearm, stating: “I’m not
going to lie. I’m a man. I’ll take the heat for my stuff not put it on someone else.” The
officers ran a background check on Eubanks and learned he was a convicted felon. At some
point during the arrest, the officers also ran a criminal history check on Maffett and
announced, within Eubanks’ earshot, that Maffett had a felony conviction.
Based on the above events, a grand jury indicted Eubanks on one count of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Eubanks pleaded not
guilty and proceeded to trial. Before the start of trial, Eubanks’ attorney stated that she
wanted to present evidence that Maffett was also a convicted felon, but that she would not
seek to inform the jury of the specific felony. However, the following day defense counsel
No. 08-2119 Page 3
reversed course and indicated that she wanted to present evidence not only that Maffett was
a convicted felon, but that she was convicted of carrying a handgun without a license. The
government argued that Maffett’s prior conviction was irrelevant and therefore
inadmissible under Fed. R. Evid. 401, or at a minimum inadmissible under Fed. R. Evid. 403
because any probative value was outweighed by unfair prejudice. The district court
concluded that details of Maffett’s specific felony conviction would constitute improper
character evidence, but that it would admit evidence that Maffett was a convicted felon.
Eubanks then argued to the jury that the gun belonged to Maffett, but that he took the
blame for possessing the gun to protect her. The jury rejected Eubanks’ defense and
convicted him of possession of a firearm by a felon. The district court sentenced him to 87
months’ imprisonment. Eubanks appeals.
II.
On appeal, Eubanks argues that the district court erred in excluding evidence that
Maffett had a previous felony conviction for possession of a handgun without a license.
Eubanks argues that this evidence was relevant to show that Maffett knew the serious
consequences she could suffer for possessing a firearm, thus explaining why she let
Eubanks take the blame for the gun after having initially claimed ownership of the gun.
After weighing the probative value of the evidence against the danger of unfair prejudice,
the district court ruled that the fact that Maffett was a convicted felon was admissible, but
not evidence that the conviction was for carrying a handgun without a license.
This court reviews the district court’s evidentiary ruling for an abuse of discretion.
United States v. Savage, 505 F.3d 754, 760 (7th Cir. 2007). Even if we assume that evidence of
Maffett’s specific felony offense was relevant, the district court did not abuse its discretion
in excluding this evidence. Rule 404(b) expressly excludes character evidence, providing
that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.”1 Fed. R. Evid. 404(b). While Rule
404(b) allows the admission of evidence of other crimes for “other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident,” such evidence is inadmissible if its probative value “is substantially
1
While Rule 404(b)’s prohibition on the admission of evidence of other crimes,
wrongs or acts is typically “invoked by defendants to bar evidence of their other crimes,”
the government may similarly “invoke[] Rule 404(b), in order to prevent the defendant from
using the ‘other crimes’ of another person to try to shift the blame to that person.” United
States v. Murray, 474 F.3d 938, 939 (7th Cir. 2007) (emphasis in original).
No. 08-2119 Page 4
outweighed by the risk of unfair prejudice.” United States v. Vargas, 552 F.3d 550, 557 (7th
Cir. 2008).
The probative value of Maffett’s specific felony was slight given that the evidence
admitted fully allowed Eubanks to argue his theory of defense to the jury. Specifically,
Eubanks’ theory of defense was that the gun was Maffett’s, as she had first claimed, but that
she remained silent once Eubanks took responsibility for the gun because she knew the
consequences of possessing a firearm. The district court admitted as evidence that Maffett
had a prior felony conviction and her initial statement of ownership. This evidence
provided the same factual basis for Eubanks’ theory of defense, allowing him to argue to the
jury that Maffett allowed him to take the fall because otherwise she might be the one facing
the felon‐in‐possession charge. Any additional probative value flowing from the admission
of Maffett’s specific felony was substantially outweighed by the risk that the jury would
believe Maffett was responsible for possessing the gun merely because she previously had
possessed a gun. Accordingly, the district court did not abuse its discretion in excluding
evidence of the specific type of felony for which Maffett was convicted.
Furthermore, even if the district court erred in excluding evidence of the nature of
Maffett’s prior felony, any error was harmless. As mentioned above, the probative value of
the specific name of Maffett’s felony was slight and the evidence against Eubanks was
overwhelming. In this case, the jury heard testimony that Croom saw Eubanks pick up the
gun in the store while commenting that he needed the gun because the neighborhood was
dangerous, thus establishing that Eubanks possessed the gun while in the store. Once
outside the store, the officers recovered the gun from the area in which Eubanks was sitting
in the car, and before recovering the gun witnessed Eubanks (but not Maffett) bending over
as if to hide something under the seat. That evidence, coupled with Eubanks’ consistent
and vehement post‐arrest statements of ownership, overwhelmingly supported the jury’s
conviction and rendered any evidentiary error harmless.
III.
The district court did not abuse its discretion in excluding evidence that Maffett’s
felony conviction was for possession of a gun without a license. Even if the district court
did err, any such error was harmless. For these and the foregoing reasons, we AFFIRM.