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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11452
Non-Argument Calendar
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D.C. Docket No. 4:15-cr-00038-MW-CAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DURRELL LEE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(March 30, 2017)
Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Durrell Lee was charged with and convicted of one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
appeals that conviction.
I.
Lee, while driving Eric Goodson’s car, was pulled over for committing a
traffic violation. Goodson and another passenger were also in the car. The police
officers conducting that traffic stop smelled marijuana and, after being questioned,
Lee gave them a small bag of drugs that he was hiding in his pocket. The officers
detained all three men, and upon searching the car they found a Glock .40 caliber
pistol under the driver’s seat. In the trunk they found two bags. One bag, a
Reebok bag, was holding a .25 caliber pistol, a .380 caliber pistol, a magazine that
matched the .40 caliber Glock found under the driver’s seat, and a bank application
bearing Lee’s name and social security number. The other bag held, among other
items, Lee’s cell phone.
Lee, who had previously been convicted of a felony, was charged with
possession of all three guns found in the car. At trial, Goodson testified that he
saw Lee place a gun under the driver’s seat and that he had never seen the guns
found in the Reebok bag. The government, over Lee’s objection, also entered into
evidence pictures found on his cell phone, including a picture of two pistols, one of
which resembled the .40 caliber found under the driver’s seat, and four pictures of
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long barrel guns, a revolver, and a knife. Those photos appeared to have been
taken between April and September 2014, after Lee had been convicted of a
felony.
The jury returned a guilty verdict as to Lee’s possession of the Glock .40
caliber pistol and its magazine of ammunition, and it returned a not guilty verdict
as to Lee’s possession of the .25 caliber and .380 caliber pistols. This is Lee’s
appeal.
II.
Lee first contends that, under Federal Rules of Evidence 403 and 404(b), the
district court erred in allowing the government to introduce the five cell phone
pictures of firearms. We review the district court’s evidentiary rulings for an abuse
of discretion. See United States v. Cunningham, 194 F.3d 1186, 1193 (11th Cir.
1999). This abuse of discretion standard “allow[s] a range of choice for the district
court, so long as that choice does not constitute a clear error of judgment.” United
States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989). “By definition . . . under the
abuse of discretion standard of review there will be occasions in which we affirm
the district court even though we would have gone the other way had it been our
call.” In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994).
Under Rule 404(b), extrinsic evidence of a crime, wrong, or other act is not
admissible to show that “on a particular occasion the person acted in accordance
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with [his] character,” though that evidence may be admissible for other purposes,
such as to prove motive, intent, knowledge, or absence of mistake. Fed. R. Evid.
404(b). To be admissible under Rule 404(b), the evidence must be (1) “relevant to
an issue other than the defendant’s character”; (2) established by sufficient proof
“to enable a jury to find by a preponderance of the evidence that the defendant
committed the act(s)”; and (3) of probative value that is not substantially
outweighed by undue prejudice under Federal Rule of Evidence 403. United States
v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).
“But evidence of criminal activity other than the charged offense is not
‘extrinsic’ under Rule 404(b), and thus falls outside the scope of the Rule, when it
is . . . inextricably intertwined with the evidence regarding the charged offense.”
Id. (quotation marks omitted). And “evidence is inextricably intertwined with the
evidence regarding the charged offense if it forms an ‘integral and natural part of
the witness’s accounts of the circumstances surrounding the offenses for which the
defendant was indicted.’” Id. (quoting United States v. Foster, 889 F.2d 1049,
1053 (11th Cir. 1989)). That evidence, however, must still meet Rule 403’s
requirements that “its probative value [not be] substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid.
403.
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The picture of the two pistols was not extrinsic evidence under Rule 404(b)
because it was inextricably intertwined with evidence relating to the crime for
which Lee was charged. One of those pistols was similar to the .40 caliber Glock
found underneath the driver’s seat. The jury could have reasonably concluded that
the gun found under the driver’s seat was the same pistol as the one pictured on
Lee’s cell phone, making it more likely that the gun was Lee’s and that he
knowingly possessed it. The district court also did not abuse its discretion in
concluding that this picture’s strong probative value was not substantially
outweighed by undue prejudice under Rule 403. See United States v. Brown, 441
F.3d 1330, 1362 (11th Cir. 2006) (“In reviewing issues under Rule 403, we look at
the evidence in a light most favorable to its admission, maximizing its probative
value and minimizing its undue prejudicial impact.”).
As to the remaining four pictures, which showed long barrel guns, a
revolver, and a knife, Lee contends that they were relevant only for the
impermissible purpose of showing that he had a propensity to be around firearms.
However, “[t]he caselaw in this and other circuits establishes clearly the logical
connection between a convicted felon’s knowing possession of a firearm at one
time and his knowledge that a [different] firearm is present at a [later] time (or, put
differently, that his possession at the [later] time is not mistaken or accidental).”
United States v. Jernigan, 341 F.3d 1273, 1281 (11th Cir. 2003); see United States
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v. Gomez, 927 F.2d 1530, 1534 (11th Cir. 1991). The pictures were relevant to
showing Lee’s knowledge of the guns in the car, meeting the first prong of Rule
403(b)’s admissibility test.
As to the second prong — that there was sufficient evidence for the jury to
conclude that Lee took those pictures and possessed those guns — Lee does not
dispute that the cell phone on which the pictures were found was his, and he does
not argue that he did not take those pictures. And the evidence at trial, which
showed that Lee had also taken multiple “selfies” with that phone, was sufficient
for the jury to conclude that Lee had taken those pictures and had possessed the
guns in them.
And as to the third prong — that the probative value not be substantially
outweighed by the potential for undue prejudice — “this determination lies within
the sound discretion of the district judge and calls for a common sense assessment
of all of the circumstances surrounding the extrinsic [act], including prosecutorial
need, overall similarity between the extrinsic act and the charged offense, as well
as temporal remoteness.” United States v. Calderon, 127 F.3d 1314, 1332 (11th
Cir. 1997) (quotation marks omitted). We have already determined that the
pictures were probative of Lee’s knowledge that the Glock was in the car. The
district court did not abuse its discretion in finding that any prejudicial impact from
the pictures did not substantially outweigh their probative value. The pictures were
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taken only one year before Lee was arrested for possessing the guns in the car,
see Jernigan, 341 F.3d at 1282 (noting that prior possession of firearm occurring
two years before the charged offense was not too temporally remote), the similarity
between the prior act and the charged crime was strong because both involved the
possession of firearms, and the prosecution did not have overwhelming evidence of
Lee’s knowledge that the guns were in the car. Further, the district court gave the
jury a limiting instruction, and as a result, the risk of prejudice was minimized.
See id.; see also United States v. Lopez, 649 F.3d 1222, 1237 (11th Cir. 2011)
(“We presume that juries follow the instructions given to them.”). The district
court did not abuse its discretion in permitting the government to introduce into
evidence the photographs found on Lee’s cell phone.
III.
Lee also raises what we perceive to be an ineffective assistance of counsel
claim in this appeal. He contends that counsel improperly refused to call a witness
and that, while the district court knew that Lee disagreed with his counsel’s
decision not to call that witness, the court “was completely unaware of the basis of
trial counsel’s decision.” To the extent that Lee contends that the district court
erred in failing to further inquire about the disagreement, the district court neither
knew nor should have known that their disagreement was based on what Lee
considers to be a conflict of interest, and as a result, it did not err in failing to
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further investigate. See Mickens v. Taylor, 535 U.S. 162, 168–69, 122 S. Ct. 1237,
1242 (2002) (noting that, in the context of a court’s “duty to inquire into the
propriety of a multiple representation,” inquiry is required “only when the trial
court knows or reasonably should know that a particular conflict exists — which is
not to be confused with when the trial court is aware of a vague, unspecified
possibility of conflict”).
To the extent that Lee is raising an ineffective assistance of trial counsel
claim, “[w]e will not generally consider claims of ineffective assistance of counsel
raised on direct appeal where the district court did not entertain the claim nor
develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.
2002). While the district court knew that Lee and his attorney disagreed about
calling a witness, the record is devoid of facts about that disagreement, such as
why the attorney did not want to call the witness. As a result, we decline to
consider Lee’s ineffective assistance of counsel claim on direct appeal. The better
vehicle for deciding Lee’s claim of ineffective assistance of counsel is through a 28
U.S.C. § 2255 motion.
AFFIRMED.
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