United States Court ofAppeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2004 Decided February 4, 2005
No. 03-3103
UNITED STATES OF AMERICA,
APPELLEE
V.
ROBERT D. GARNER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00179-01)
Mary E. Davis, appointed by the court, argued the cause for
the appellant.
Elizabeth H. Danello, Assistant United States Attorney,
argued the cause for the appellee. Kenneth L. Wainstein, United
States Attorney, and John R. Fisher, Thomas J. Tourish, Jr. and
Kenneth F. Whitted, Assistant United States Attorneys, were on
brief.
Before: GINSBURG, Chief Judge, and HENDERSON and
ROBERTS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Felon Robert
D. Garner was convicted of possessing a firearm in violation of
2
18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appealed his
conviction on the ground that the district court erroneously
admitted as prior bad act evidence under Federal Rule of
Evidence 404(b) a police officer’s testimony that Garner had
been found in possession of a handgun under similar
circumstances some four years earlier. Because the challenged
testimony was admissible under Rule 404(b) to show that
Garner knew of and constructively possessed the gun, we
conclude the district court did not abuse its discretion in
admitting the testimony and we therefore affirm Garner’s
conviction.1
I.
In addition to the felon-in-possession count, Garner was
indicted, along with co-defendant Troy Haywood, on one count
of possessing cocaine base with intent to distribute it (in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)) and one count of
using a firearm in connection with a drug trafficking offense (in
violation of 18 U.S.C. § 924(c)(1), (2)).2 Garner and Haywood
were tried in the district court June 5 to June 13, 2003. Viewed
in the light most favorable to the government, see United States
v. Whitmore, 359 F.3d 609, 613 (D.C. Cir. 2004) (citing United
States v. Graham, 83 F.3d 1466, 1470 (D.C. Cir. 1996)), the trial
evidence established the following facts.
On March 21, 2002, in Southeast Washington, D.C., law
enforcement officers of the Washington Area Vehicle
Enforcement team (WAVE), a multi-jurisdictional stolen auto
1
In light of our conclusion that admitting the testimony was not
error, we do not reach the government’s argument that it was harmless
error.
2
Haywood was also indicted on one count of carrying a pistol
without a license (in violation of D.C. Code § 22-4504(a)), which was
dismissed on the government’s motion.
3
task force, stopped a green car that had been reported stolen.
Haywood was driving the vehicle and Garner was sitting in the
front passenger seat. The officers approached the car and
ordered its occupants to raise their hands in the air. Haywood
complied but Garner did not; he simply sat staring ahead and
smoking a cigarette as WAVE officers David Moseley and John
Trainum tried unsuccessfully to open the passenger door and to
persuade Garner to raise his left hand, which was in his
waistband. Then, Moseley testified, Garner removed a “large,
silver handgun” from his waistband, placed it under the
passenger seat and resumed his smoking. 6/5/2003 p.m. Trial
Tr. 101. Moseley immediately warned the other officers he had
seen a gun. Trainum, who was standing behind Moseley,
testified that he could not see Garner’s left hand but observed
him “going forward and back, forward and back” until “the one
time when he was forward and stayed forward” which is when
Moseley “called out gun” to him. 6/9/2003 a.m. Trial Tr. 92-93.
A third WAVE officer, Danita Matthews, who was standing by
the driver’s window, testified she saw Moseley “moving
around” with his hands “down, in a threatening manner” and
then heard Moseley’s gun warning. 6/5/2003 p.m. Trial Tr. 51-
52. When the officers finally got the passenger door open, they
wrestled Garner to the ground and secured him with handcuffs.
Inside the car, they found a nine millimeter semi-automatic
handgun under the front passenger seat and 43 zip-lock bags of
cocaine base in a container on the driver-side floorboard. On the
gun were found three latent fingerprints, only one of which was
readable and was matched to Haywood’s right index finger.
At trial the government offered the testimony of United States
Park Police Officer Robert MacLean who stopped a car in
Southeast Washington for a traffic violation on January 12,
1999. MacLean testified that Garner had been seated in the
front passenger seat and that, after he removed Garner from the
car, he found an ammunition clip in Garner’s jacket pocket and
also a loaded semi-automatic handgun fitting the clip under the
4
front passenger seat. Garner was ultimately convicted of
carrying a pistol without a license in violation of District of
Columbia law. Garner objected to MacLean’s testimony as
inadmissible evidence of a prior bad act under Rule 404(b) and
as unfairly prejudicial under Federal Rule of Evidence 403.
Rejecting his challenge, the district court granted the
government’s pretrial motion to admit the testimony and denied
Garner’s motion to exclude it during trial. 3 The court instructed
the jury, however, that Maclean’s testimony was “only offered
with respect to the issues of intent and knowledge” and the jury
could use the evidence “only to help [it] decide whether the
government ha[d] proved beyond a reasonable doubt that the
defendant, Mr. Garner, had the intent to possess the firearm” and
“that he acted knowingly and on purpose and not by accident or
mistake.” 6/10/03 a.m. Trial Tr. 40-41.
On June 12, 2003 the jury acquitted both defendants of the
cocaine possession count and the district court accordingly
granted judgment of acquittal on the count alleging use of a
firearm during a drug offense. On June 13, 2003 the jury
convicted Garner of the felon-in-possession charge. On August
19, 2003 the district court sentenced Garner to 78 months’
incarceration to be followed by three years of supervised release.
Garner filed a notice of appeal on the same day.
II.
Garner’s sole challenge on appeal is to the admissibility of
MacLean’s testimony under Rule 404(b), which provides in
relevant part:
(b) Other Crimes, Wrongs, or Acts.--Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith. It may, however, be admissible for other
3
Garner did not appeal the district court’s Rule 403 ruling.
5
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident . . . .
Fed. R. Evid. 404(b). Garner contends the admission of
MacLean’s testimony was erroneous under this court’s opinion
in United States v. Linares, 367 F.3d 941 (D.C. Cir. 2004). “We
review the district court’s evidentiary rulings for abuse of
discretion.” United States v. Whitmore, 359 F.3d 609, 616 (D.C.
Cir. 2004) (citing United States v. Wilson, 160 F.3d 732, 742
(D.C. Cir. 1998); United States v. White, 116 F.3d 903, 919
(D.C. Cir. 1997)). We conclude that the district court did not
abuse its discretion in admitting MacLean’s testimony because
it was admissible under Rule 404(b). In reaching this
determination we apply three recent opinions addressing
admissibility under Rule 404(b).
First, in Old Chief v. United States, 519 U.S. 172 (1997), the
United States Supreme Court held that the district court abused
its discretion when, in a felon-in-possession prosecution, it
rejected the defendant’s offer to concede the fact of a prior
felony conviction and admitted under Rule 404(b) evidence (the
prior order of judgment and commitment) identifying the
predicate felony as assault. The Supreme Court premised its
decision, however, not on Rule 404(b) but on Rule 403, which
authorizes the trial court to exclude otherwise “relevant evidence
. . . if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.”4 See
Old Chief, 519 U.S. at 180 (“The principal issue is the scope of
4
The Court observed that “there can be no question that evidence of
the name or nature of the prior offense generally carries a risk of
unfair prejudice to the defendant” and that the “risk will vary from
case to case.” Old Chief, 519 U.S. at 185.
6
a trial judge’s discretion under Rule 403, which authorizes
exclusion of relevant evidence when its ‘probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.’ ” (quoting Fed. Rule Evid.
403)). The Court emphasized, as the language of Rule 403
makes clear, that the evidence excluded under Rule 403 as
unfairly prejudicial nonetheless remains “relevant” and
“admissible” under Federal Rules of Evidence 401 and 402. See
519 U.S. at 179 (“If . . . relevant evidence is inadmissible in the
presence of other evidence related to it, its exclusion must rest
not on the ground that the other evidence has rendered it
‘irrelevant,’ but on its character as unfairly prejudicial,
cumulative or the like, its relevance notwithstanding.”).5
Similarly, with regard to Rule 404(b), the Court observed that
“if, indeed, there were a justification for receiving evidence of
the nature of prior acts on some issue other than status (i.e., to
prove ‘motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident,’ Fed. Rule Evid.
404(b)), Rule 404(b) guarantees the opportunity to seek its
admission,” 519 U.S. at 190 (emphasis added), subject to the
limitation that, “when a given evidentiary item has the dual
nature of legitimate evidence of an element and illegitimate
evidence of character,” the court must make a determination
5
Rule 401 provides: “ ‘Relevant evidence’ means evidence having
any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than
it would be without the evidence.” Fed. R. Evid. 401. Rule 402
provides: “All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by Act of Congress,
by these rules, or by other rules prescribed by the Supreme Court
pursuant to statutory authority. Evidence which is not relevant is not
admissible.” Fed. R. Evid. 402.
7
“ ‘whether the danger of undue prejudice outweighs the
probative value of the evidence in view of the availability of
other means of proof and other facts appropriate for making
decision of this kind under 403,’ ” id. at 184 (quoting Advisory
Committee’s Notes on Fed. Rule Evid. 404, 28 U.S.C. App., p.
861).
Next, in United States v. Crowder, 141 F.3d 1202 (D.C. Cir.
1998) (en banc), (Crowder II) at the direction of the Supreme
Court, this court revisited its opinion in United States v.
Crowder, 87 F.3d 1405 (D.C. Cir. 1996) (en banc), (Crowder I)
in light of the intervening decision in Old Chief. In Crowder I
this court had held that “[w]here a defendant offers
unequivocally to concede elements of a crime—intent and
knowledge in [] prosecutions under 21 U.S.C. § 841(a)(1)
[criminalizing possessing with intent to distribute and
distributing drugs]—and agrees to a jury instruction that the
Government need not prove those elements,” then “bad acts
evidence offered solely to prove those elements is inadmissible
because the defendant’s concession of intent and knowledge
deprives the evidence of any value other than what Rule
404(b)’s first sentence unambiguously prohibits: ‘to prove the
character of a person in order to show action in conformity
therewith.’ ” 87 F.3d at 1407. In our reconsideration, we
concluded that, “[t]ested against the Supreme Court’s Old Chief
decision, the theory of Crowder I fails.” 141 F.3d at 1206
(citation omitted). We then held “that a defendant’s offer to
stipulate to an element of an offense does not render the
government’s other crimes evidence inadmissible under Rule
404(b) to prove that element, even if the defendant’s proposed
stipulation is unequivocal.” Id. at 1209. Having found the prior
bad act evidence admissible under Rule 404(b), we then
concluded it was not barred by Rule 403, rejecting the
appellants’ argument for “a per se rule of exclusion” in such
cases under that rule. Id. at 1210.
8
Finally, in United States v. Linares, 367 F.3d 941 (D.C. Cir.
2004), which the appellant argues controls this case, the court
held that evidence of a prior bad act, admitted at trial under Rule
404(b), was inadmissible because it was not relevant under Rule
401. Linares, a felon, was arrested after shots were fired from
the car he was driving and he was subsequently convicted of the
offense of felon-in-possession. Three eyewitnesses—two police
officers and a female passenger in the car—testified that a male
passenger “handed Linares a gun, that Linares later fired it
several times, and that still later he held it out his car window
and tossed it away.” 367 F.3d at 946. In addition, the
government sought to introduce, to prove intent, knowledge and
lack of mistake, the testimony of a police officer that four and
one-half years earlier she had arrested Linares after she saw him
drop a loaded handgun onto the ground. The district court
admitted the testimony although it had already informed the
government that it would not instruct the jury on constructive
possession.
On appeal the court concluded the prior crime testimony was
not admissible under Rule 404(b) to prove intent, knowledge or
mistake. The court found the evidence inadmissible to show
intent because “the government had no obligation to prove
intent.” 367 F.3d at 948. With regard to knowledge, the court
explained: “If the jury believed the[] eyewitnesses, then Linares
possessed the gun knowingly; if it did not, then it should have
acquitted based on the government’s failure to prove possession
rather than its failure to prove knowledge.” 367 F.3d at 946.
The court found the evidence inadmissible to show absence of
mistake “for essentially the same reason”: “Given the
government’s evidence, no reasonable jury could have found
that the government had proven possession but failed to prove
absence of mistake.” 367 F.3d at 947. Garner contends that for
the same reason the court should find MacLean’s testimony
about the 1999 handgun incident inadmissible in this
prosecution. We disagree.
9
It is true that if the jurors believed Moseley’s testimony about
Garner’s handling the gun, as in Linares they would have had to
find actual possession and knowledge would not have been in
dispute. But, unlike in Linares, the trial evidence here, at the
time the district court ruled on MacLean’s testimony, did not
force the jury to a disjunctive choice between actual possession
or no possession at all.6 At the time the district court admitted
MacLean’s testimony, it could reasonably have believed the jury
might discredit Moseley’s testimony (based on his observations
through a tinted window and smoke-filled compartment) and
nevertheless convict Garner based on the undisputed testimony
that the gun was found under Garner’s seat when the car was
searched. In that event, the jury would have faced a
paradigmatic constructive possession scenario in which
contraband (here, a firearm) is found in proximity to a defendant
who may or may not have been “ ‘knowingly in a position to, or
[have] had the right to exercise “dominion or control” over the
6
The government argues that Linares is not binding because it
“cannot be squared” with Old Chief and Crowder II. Gov’t Br. 26.
Old Chief establishes that “evidentiary relevance under Rule 401” is
not “affected by the availability of alternative proofs of the element,”
Old Chief, 519 U.S. at 179; Crowder II makes clear that the focus of
Rule 404(b) is relevance and that, for evidence to be relevant, “[t]here
does not have to be an ‘actual issue’ about the facts sought to be
proven,” 141 F.3d at 1206. Linares, the government argues, diverges
from this approach because it makes admissibility under Rule 404(b)
hinge on the existence (or nature) of other evidence presented at trial.
Given this apparent discrepancy, the government urges us to ignore
Linares and adhere to the earlier decision in Crowder II.
We cannot take the government up on its suggestion. Linares, after
all, expressly discussed Crowder II. A decision of the panel “is the
decision of the court.” LaShawn v. Barry, 87 F.3d 1389, 1395 (D.C.
Cir. 1996) (en banc). If the government believed Linares was
wrongly decided, it should have petitioned for rehearing by the panel
or en banc pursuant to District of Columbia Circuit Rule 35.
10
[contraband].’ ” United States v. Jenkins, 981 F.2d 1281, 1283
(D.C. Cir. 1992) (quoting United States v. Lawson, 682 F.2d
1012, 1016 (D.C. Cir. 1982) (emphasis added; alteration in
original)). Because “the ‘dominion and control’ must be
‘knowing,’ ” “mere proximity or accessibility to contraband is
not enough” and there must be “ ‘ “testimony connecting the
defendant with the incriminating circumstances,” ’ ” id. (quoting
United States v. Hernandez, 780 F.2d 113, 117 (D.C. Cir. 1986);
United States v. Staten, 581 F.2d 878, 885 n.60 (D.C. Cir. 1978)
(quoting United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir.
1976)); internal citations omitted)—a requirement heightened
here by the possibility that Haywood, who also had physical
access to the gun and whose fingerprint was found on it, might
have had exclusive possession of it. See Jenkins, 981 F.2d at
1283 (“ ‘where, as here, contraband is discovered in a place
occupied by more than one person, “the sufficiency of the
evidence for jury consideration depends upon its capability
plausibly to suggest the likelihood that in some discernible
fashion the accused had a substantial voice vis-a-vis the
[contraband].” ’ ” (quoting United States v. Foster, 782 F.2d
1087, 1089 (D.C. Cir. 1986) (quoting Staten, 581 F.2d at 884)
(emphasis added by Foster court))); cf. id. at 1283-84 (finding no
evidence to support car passenger’s dominion and control over
nearby sawed-off shotgun bearing other passenger’s initials).
Under such circumstances, “ ‘ “where a defendant is charged
with unlawful possession of something, evidence that he
possessed the same or similar things at other times is often quite
relevant to his knowledge and intent with regard to the crime
charged.” ’ ” United States v. Cassell, 292 F.3d 788, 793 (D.C.
Cir. 2002) (quoting United States v. King, 254 F.3d 1098, 1100
(D.C. Cir. 2001) (citing Huddleston v. United States, 485 U.S.
681, 689 (1988))). Thus, stripped of Moseley’s actual possession
testimony, the district court, at the time it admitted MacLean’s
testimony, could have believed the facts offered “a classic case
for introducing prior instances of gun possession, since the
11
government would otherwise find it extremely difficult to prove
that the charged possession was knowing.” Linares, 367 F.3d at
949.7 The government introduced just such evidence: McLean’s
testimony that Garner was previously found in the front
passenger seat of a car with a handgun under his seat and a
matching ammunition clip in his jacket pocket. This testimony
made it more likely that Garner was in knowing possession of
the loaded handgun found beneath his seat just as in Crowder II
evidence that the appellant had previously sold cocaine base
made it more probable that he knowingly possessed and intended
to distribute the cocaine base found in the brown paper bag he
discarded while running from police officers, 141 F.3d at 1209;
see also Cassell, 292 F.3d at 796 (fact that defendant previously
possessed weapons “tends to make it less probable that the
weapons recovered from his bedroom were there without his
knowledge, without intent, or by accident or mistake”) (citing
United States v. Brown, 16 F.3d 423, 432 (D.C. Cir.), cert.
denied, 513 U.S. 900 (1994)); United States v. Bowie, 232 F.3d
923, 930 (D.C. Cir. 2000) (evidence defendant “possessed and
passed counterfeit notes on a prior occasion” relevant because “it
decreased the likelihood that [he] accidentally or innocently
possessed the counterfeit notes”). Thus, under Old Chief, “there
w[as] a justification for receiving evidence of the nature of prior
acts on some issue other than status (i.e., to prove ‘motive,
opportunity, intent, preparation, plan, knowledge, identity, or
7
The conclusion that the prior bad act evidence is admissible under
Rule 404(b) does not usually end the inquiry. The government faces
“another hurdle, Rule 403,” Crowder II, 141 F.3d at 1209; see Old
Chief, 519 U.S. at 184 (“when a given evidentiary item has the dual
nature of legitimate evidence of an element and illegitimate evidence
of character,” trial court must balance probative value and prejudice
under Rule 403). Here, however, as already noted, the district court
rejected Garner’s Rule 403 challenge to the prior bad act evidence and
Garner did not appeal the ruling.
12
absence of mistake or accident,’ ” and Rule 404(b) therefore
“guarantee[d] [the government] the opportunity to seek its
admission.” Old Chief, 519 U.S. at 190.
Garner argues against the constructive possession justification
on two grounds. First, he contends that even with the knowledge
element provided by MacLean’s 404(b) testimony, the evidence
of dominion and control was insufficient for the jury to have
found constructive possession. To the extent that more was
needed to connect Garner to the gun, we believe the testimony by
Trainum and Matthews about Garner’s movements toward the
area where the gun was later found is sufficient. Cf. United
States v. Gibbs, 904 F.2d 52, 57 (D.C. Cir. 1990) (finding
testimony that defendant “reportedly turned, bent down, and took
some action below the line of vision of the officers while the car
was being followed” supported his constructive possession of
drugs found in car with three occupants).
Further, Garner contends the prior possession evidence was
inadmissible because the government prosecuted the felon-in-
possession case at trial as one of actual, rather than constructive,
possession. This is largely true, as the government
acknowledges, see Gov’t Br. 22, but constructive possession
(and more specifically, Garner’s knowledge of the handgun) was
an evident issue when the district court admitted MacLean’s
testimony. The government sought admission of the 404(b)
material “specifically to demonstrate that the gun under the
passenger seat, in this case, was put there knowingly and
intentionally, that the defendant intended to, and in fact, did
exercise dominion and control over it,” “[t]hat it was not an
accident or mistake that it happened to be under the seat that he
was [] seated in.” 6/25/2002 Status/Motion Hearing Tr. 28.
Further, Garner put knowledge of the gun at issue from the start
of the trial, when his counsel argued in his opening statement
that “[t]he case against Mr. Garner is about being at the wrong
place at the wrong time,” 6/5/03 p.m. Trial Tr. 34, a claim
13
repeated in his closing, see, e.g., 6/12/03 a.m. Trial Tr. 52. Early
in the trial, and apparently before MacLean’s testimony was
admitted, Garner requested that the court read the jury a
statement offering as a defense to the felon-in-possession count
that Garner “never possessed or had any connection with . . . the
gun police recovered on March 21, 2002” and stating he “denies
possessing or having any knowledge that there was a gun in the
automobile.” Order Denying New Trial, at 5 (filed Aug. 15,
2003). Thus, when the district court admitted MacLean’s
testimony, the parties treated as material Garner’s knowledge vel
non that the gun was under his seat so as to connect him to it and
planned to incorporate the issue into their trial strategies. That
the government ultimately elected to focus on the actual
possession theory, foregoing a jury instruction on constructive
possession, does not render inadmissible evidence of
constructive possession offered during the government’s case-in-
chief when constructive possession was not only viable under the
facts but also still in play.
For the foregoing reasons, we conclude that the district court
did not abuse its discretion in admitting the prior crime
testimony under Rule 404(b) to show Garner’s knowledge of the
gun’s location and of its accessibility to him. The judgment of
conviction is therefore affirmed.
So ordered.