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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11844
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00404-EAK-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KHALDOUN KHALIL KHAWAJA,
a.k.a. Tony Khawaja,
Defendant-Appellant,
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Appeal from the United States District Court
for the Middle District of Florida
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(February 1, 2013)
Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.
PER CURIAM:
Khaldoun Khalil Khawaja appeals his conviction for possession of a firearm
by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Khawaja contends that
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the district court abused its discretion by admitting evidence at trial that he was
involved in a scheme to cash fraudulent tax refund checks.
I.
Khawaja, a convicted felon, was the manager of a small grocery store in
Tampa, Florida that was owned either by him or his father. 1 In 2011, agents from
several law enforcement agencies began investigating his involvement in a scheme
to cash fraudulent tax refund checks. As part of that investigation, an undercover
detective visited the store and presented Khawaja with two tax refund checks with
fictitious names. Khawaja invited the detective into an office that he had the key
to and that he frequently used. He cashed the fraudulent checks, giving the
detective cash for 20% of their value and keeping the other 80% for himself.
During that transaction, the detective observed the barrel of a shotgun propped
against a wall next to Khawaja’s desk.
About two weeks later, law enforcement officials returned to Khawaja’s
store and executed a search warrant in furtherance of their investigation into the tax
fraud scheme. During that search, they seized the shotgun from Khawaja’s office
and found shotgun shells and handgun ammunition in the desk drawer. They also
seized brown bags full of cash and a loaded Glock 9 mm pistol that was located in
plain view on a shelf below the cash register.
1
There was conflicting evidence presented at trial about whether Khawaja or his father
owned the store. It was undisputed, however, that Khawaja managed it.
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II.
Khawaja was charged in a one-count indictment with possession of two
firearms and ammunition by a convicted felon but he was not charged with any
crimes related to the scheme to cash fraudulent tax refund checks. At trial, the
government sought to present evidence of Khawaja’s involvement in that scheme.
Specifically, it sought to introduce: (1) testimony of a secret service agent
explaining why law enforcement officers were investigating Khawaja; (2) a video
of the transaction between Khawaja and the undercover detective who visited his
store, which showed the shotgun leaning against the wall in Khawaja’s office; (3)
testimony of the undercover detective explaining why he was in Khawaja’s office
when he observed the shotgun leaning against the wall; and (4) testimony of a
secret service agent explaining why he executed the search warrant at Khawaja’s
store, which led to the seizure of the shotgun, the pistol, and the ammunition.
Khawaja filed a motion in limine to exclude that evidence, but the district court
denied the motion and the government introduced the evidence at trial. The jury
returned a verdict of guilty against Khawaja and the court entered judgment on the
verdict and sentenced him to 37 months imprisonment followed by 36 months of
supervised release.
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III.
Khawaja challenges his conviction on the grounds that the district court
improperly denied his motion to exclude the evidence of his involvement in the tax
fraud scheme. He contends that the evidence was inadmissible under Federal
Rules of Evidence 404(b) and 403. We review a district court’s evidentiary rulings
for abuse of discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir.
2000).
A.
Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” It does not, however,
bar the introduction of evidence that is intrinsic to the charged offense. United
States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). Evidence of uncharged
crimes is intrinsic when it: “(1) [arises] out of the same transaction or series of
transactions as the charged offense; (2) [is] necessary to complete the story of the
crime; or (3) [is] inextricably intertwined with the evidence regarding the charged
offense.” Id.
The district court concluded that the evidence of Khawaja’s involvement
with the tax fraud scheme was inextricably intertwined with the evidence relating
to the charged offense and therefore Rule 404(b) did not apply. We agree. To
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convict Khawaja of possession of a firearm by a convicted felon, one of the
elements that the government had to prove was that Khawaja actually or
constructively possessed the guns that were found in his store. United States v.
Beckles, 565 F.3d 832, 841 (11th Cir. 2009). The fact that he was present in the
store with the guns is not enough to establish constructive possession. Id. Instead,
he must have exercised “ownership, dominion, or control” over the guns or had
“the power and intent” to do so. Id.
Khawaja’s defense at trial was that he did not constructively possess the
guns found in the store. The evidence of his involvement in the tax fraud scheme
tends to negate that defense. It supports the inference that he knowingly kept the
guns in the store because his involvement in a scheme to commit tax fraud
involved keeping large amounts of cash in the store and he had the guns to protect
himself against being robbed. Accordingly, the district court did not abuse its
discretion by admitting the evidence. See United States v. Thomas, 242 F.3d 1028,
1032 (11th Cir. 2001) (holding that Rule 404(b) did not prevent the admission of
evidence of drug transactions when the defendant was on trial for possession of a
firearm by a convicted felon because “[t]he fact that [the defendant] was engaged
in selling crack from his home is relevant evidence from which to infer that he
knowingly possessed rifles found in the closet of that home and in his truck parked
in the driveway of that home”).
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B.
Rule 403 allows the district court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice.”
Khawaja contends that the evidence of his involvement in the tax fraud scheme
was unduly prejudicial and the district court should have excluded it. Because
Rule 403 “permits the trial court to exclude concededly probative evidence,”
excluding evidence under that Rule is an “extraordinary remedy, which should be
used only sparingly.” United States v. Smith, 459 F.3d 1276, 1295 (11th Cir.
2006) (alteration omitted). The balance “should be struck in favor of
admissibility.” Id. Therefore, “we look at the evidence in a light most favorable to
its admission, maximizing its probative value and minimizing its undue prejudicial
impact.” Id. (quotation marks omitted).
The district court did not abuse its discretion by admitting the evidence of
Khawaja’s involvement in the scheme to cash fraudulent tax refund checks in spite
of any prejudicial effect. As we have explained, that evidence was probative of
Khawaja’s constructive possession of the guns—an essential element of the
charged offense. Its prejudicial impact was minimized by the fact that the court
instructed the jury that it could consider the evidence only for limited purposes.
See United States v. Brown, 665 F.3d 1239, 1247 (11th Cir. 2011) (“A limiting
instruction can diminish any unfair prejudice caused by the evidence’s
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admission.”); United States v. Spoerke, 568 F.3d 1236, 1251 (11th Cir. 2009)
(explaining that a limiting instruction can cure any possible unfair prejudice).
Because admitting the evidence was not an abuse of discretion, we affirm
Khawaja’s conviction.
AFFIRMED.
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