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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15928
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20329-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DINSEN RICHARD ST-TURBAIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 12, 2019)
Before WILSON, JILL PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Dinsen Richard St-Turbain was convicted after a jury trial for possessing a
firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).
On appeal, he raises two issues: (1) whether the district court erred in denying St-
Turbain’s pretrial motion to suppress evidence without reviewing a transcript of the
suppression hearing held before the magistrate judge; 1 and (2) whether the district
court abused its discretion in admitting evidence of St-Turbain’s prior conviction for
possession of a firearm by a convicted felon under Federal Rule of Evidence 404(b).
We previously held this appeal in abeyance and remanded the matter back to
the district court for the limited purpose of allowing the district judge to review the
transcript of St-Turbain’s suppression hearing and tell us whether he would still deny
the motion to suppress. United States v. Dinsen Richard St-Turbain, 730 Fed. App’x
889 (11th Cir. 2018) (per curiam). On remand, the district judge stated that he
reviewed the transcript of the suppression hearing, that the magistrate judge’s
decision is correct, and that the motion to suppress should be denied. We are thus
satisfied that the district court has conducted the necessary de novo review. The
only remaining issue for us to consider is whether the district court abused its
discretion in admitting into evidence St-Turbain’s ten-year-old prior 2006
conviction for possessing a firearm as a convicted felon under Rule 404(b).
1
Prior to trial, St-Turbain moved to suppress evidence, including a firearm seized as a result of a
traffic stop. In his motion, St-Turbain argued that the police officer stopped and searched his
vehicle without probable cause or consent.
2
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St-Turbain moved to exclude the Rule 404(b) evidence, arguing that its
probative value was substantially outweighed by the prejudicial effect because the
prior conviction was temporarily removed; that it involved the same crime as the
instant offense and enhanced the danger that the evidence would be used for
improper character purposes; and because a prior conviction for being a felon in
possession unfairly and necessarily implied that he had at least two prior felony
convictions. Moreover, he agreed to stipulate that he had a prior felony conviction
at the time of the instant offense, so that the only issue for the jury should be whether
he possessed a firearm at the time of his arrest.
We review a district court’s evidentiary rulings under Rule 404(b) for an
abuse of discretion. United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005)
(per curiam). “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 404(b)(1). “This
evidence may be admissible for another purpose, such as proving . . . intent, . . .
knowledge, [or] absence of mistake . . . .” Fed. R. Evid. 404(b)(2). To be admissible,
Rule 404(b) evidence (1) must be relevant to an issue other than the defendant’s
character; (2) must be proved sufficiently to permit a jury determination that the
defendant committed the act; and (3) its probative value cannot be substantially
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outweighed by its undue prejudice, thus satisfying Rule 403. United States v.
Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).
“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice . . . .” Fed. R. Evid.
403. “This determination lies within the sound discretion of the district judge and
calls for a common sense assessment of all the circumstances surrounding the
extrinsic offense, including prosecutorial need, overall similarity between the
extrinsic act and the charged offense, as well as temporal remoteness.” Jernigan,
341 F.3d at 1282 (quoting United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir.
1997)).
The district court did not abuse its discretion by admitting St-Turbain’s prior
conviction under Rule 404(b). By pleading not guilty, St-Turbain placed the element
of his knowing possession of a firearm at issue. The prior conviction was relevant
to prove knowledge and the lack of accident or mistake in the present case. Evidence
that he engaged in similar behavior in the past would make it more likely that he did
so knowingly and not because of an accidental mistake this time around. See
Jernigan, 331 F.3d at 1273. “A similarity between the other act and a charged
offense will make the other offense highly probative with regard to a defendant’s
intent in the charged offense.” Ramirez, 426 F.3d at 1354.
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We further find that the probative value of the evidence was not substantially
outweighed by undue prejudice. The similarity between the charged offense and the
extrinsic offense is a factor for the district court to consider in analyzing probative
value. See Jernigan, 331 F.3d at 1282. Although the prior conviction was ten years
old at the time of trial, we have set no bright-line rule on temporal remoteness, and
St-Turbain has not met the heavy burden of establishing that the district court
departed from its broad discretion by admitting a temporally remote offense given
the probative value of the prior conviction. See United States v. Matthews, 431 F.3d
1296, 1311 (11th Cir. 2005) (per curiam).
In any event, the district court reduced the risk of unfair prejudice by redacting
the underlying conduct at issue in the prior conviction, and by twice instructing the
jury that the evidence could not be used to decide whether St-Turbain committed the
acts charged in the instant case but only for the limited purpose of deciding whether
he had the state of mind necessary to commit the instant offense. A district court’s
limiting instruction can reduce the risk of any unfair prejudice. United States v.
Edouard, 485 F.3d 1324, 1346 (11th Cir. 2007).
The district court did not abuse its discretion in admitting St-Turbain’s prior
conviction under Rule 404(b).
AFFIRMED.
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United States v. Dinsen Richard St-Turbain
Combined Opinion