United States Court of Appeals
For the First Circuit
No. 00-2275
UNITED STATES OF AMERICA,
Appellee,
v.
KENNETH VAN HORN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadaro, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Zobel,* District Judge.
Bjorn Lange, Assistant Federal Public Defender, for
appellant.
Jean B. Weld, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, was on brief, for
appellee.
* Of the District of Massachusetts, sitting by designation.
January 14, 2002
LIPEZ, Circuit Judge. Kenneth Van Horn was convicted
of being a felon in possession of explosives, in violation of 18
U.S.C. § 842(i)(1). On appeal, Van Horn challenges his
conviction on two grounds. First, Van Horn argues that the
evidence presented at trial fails to demonstrate his knowing
possession of explosives as required under § 842(i)(1) and is
thus insufficient to support his conviction. Second, he asserts
that the trial judge erroneously admitted evidence of details of
Van Horn's prior uncharged misconduct relating to his
involvement in a burglary of an explosives depot in 1993.
Rejecting these arguments, we affirm.
I.
A. Factual Background
We recite the evidence in the light most favorable to
the verdict. See United States v. Escobar de Jesus, 187 F.3d
148, 157 (1st Cir. 1999). As part of a cooperation agreement
with the police department of Manchester, New Hampshire, Richard
Moore began assisting law enforcement officers in September 1998
in a number of criminal investigations involving the illegal
distribution of crack cocaine, firearms and explosives. The
Manchester Crime Line paid Moore for information on various
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criminal transactions and individuals, including Van Horn.
Moore advised Manchester Police Detective Kevin Barry that he
had reason to believe that Van Horn would commit a burglary at
an explosives storage depot in Bow, New Hampshire.
Consequently, under Detective Barry's supervision,
Moore met with Van Horn and recorded several conversations with
him as part of a "sting" operation to sell explosive devices to
Van Horn. In the course of these taped conversations, Van Horn
explained to Moore that he wanted to obtain explosives from the
Bow explosives depot to blow up the vehicles and apartments of
two of his ex-girlfriends. On September 21, 1998, Detective
Barry learned from Moore that Van Horn was planning to
burglarize the Bow depot on the following night. Van Horn
subsequently postponed the planned burglary to September 23.
In the meantime, upon surveying the depot, Detective
Barry and Special Agent Ernie Yerrington had safety concerns
that prompted them to present Van Horn with the option of
purchasing explosives in an effort to divert Van Horn from the
Bow facility. Wearing a body wire, Moore met with Van Horn and
told him that he wanted to introduce him to someone who could
sell him explosives directly so he would not need to burglarize
the Bow explosives depot. During this recorded conversation,
Van Horn broached the subject of purchasing hand grenades by
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saying, "maybe [your supplier] can get grenades. . . . You know
what I mean. Grenades, you know missile launchers, that kind of
sh- so I can be like a hundred f-ing miles away. . . ." Van
Horn explained that he could get explosives from his work sites,
but that getting the cap, the detonator, was a problem "[c]ause
that's legally considered a firearm." Van Horn further
acknowledged other efforts he had made to obtain and create
adequate explosives.
On September 24, Moore met Van Horn again, and Van Horn
expressed interest in meeting Moore's "friend" (Detective Barry)
who was selling explosives. Van Horn said he was interested in
buying $100 worth of explosives. The next day, Moore wore a
body wire during a conversation with Van Horn. Van Horn is
recorded as saying specifically that he wanted to buy
"pineapples," a certain type of grenade. Van Horn made it clear
that he could get boxes of dynamite on his own from his job
sites, and that the only reason he would meet with Moore's
friend was to buy hand grenades or rocket launchers. Moore left
the decision up to Van Horn as to whether to meet this
individual.
On September 28, after Van Horn again expressed
interest in meeting Moore's friend, Detective Barry (wearing a
body wire) and Moore met Van Horn at his apartment. Detective
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Barry introduced himself to Van Horn as "Kevin" and expressed
his concern about the risks of driving around with grenades and
other explosives. Van Horn replied, "You're talking to, . . .
an individual who has been in a certain business for 17 years,
okay, and only got nailed once, you know."
Detective Barry then offered to sell Van Horn dynamite
sticks, and Van Horn declined, expressing a preference for
"baseballs," a type of hand grenade. Van Horn gave Detective
Barry an unsolicited payment of forty (40) dollars toward the
purchase of several hand grenades. They discussed other types
of explosives called balloons or sausages and Van Horn said he
could get those himself.
On September 30, Moore informed Detective Barry that
Van Horn had asked when the grenades would be ready to pick up.
In a recorded conversation, Detective Barry arranged with Van
Horn to meet at Applebee's Restaurant in Manchester and told Van
Horn that he could look at the explosives to see if they were
what he wanted. Van Horn replied, "I don't have to look at
nothing, you, it's kind of a trust thing. You burn me once and
then, you know, we deal with it the . . . other way, you know
what I'm saying."
Detective Barry and Moore drove to the restaurant,
carrying a drywall bucket in the backseat which contained two
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hand grenades, known as a pineapple and a baseball (which were
manufactured by the New Hampshire State Police Explosives Unit)
and two dynamite sticks.2 Van Horn parked his truck out of view,
and walked over to the restaurant. Detective Barry drove
alongside Van Horn and stopped for him to get in. As
instructed, Moore pulled the front passenger seat on the two-
door sedan forward, so that Van Horn would sit in the back seat.
Detective Barry told Van Horn, "I got ya one baseball, one
pineapple, and the guy was nice enough to throw in a . . .
couple of sticks if you want to get some caps for 'em. Sound
like a good deal?" Van Horn responded, "Deal." Van Horn handed
Detective Barry the remaining sixty (60) dollars, and when
Detective Barry invited Van Horn to take a look at the
explosives, Van Horn said, "Don't worry about it . . . . I've
been dealing with it for a long time." At that point, Van Horn
and Moore were both arrested. The Manchester Police Department
later released Moore once Van Horn was prosecuted.
2 On September 30, 1998, Trooper John Meany, of the New
Hampshire State Police Explosives Unit, provided a pineapple
style Mark II military fragmentation hand grenade and a military
baseball hand grenade M-33, both of which had dummy fuses and
contained gunpowder and plastic explosive, respectively, which
were manufactured outside the State of New Hampshire. He also
provided several sticks of dynamite without detonators, which
were manufactured in Joplin, Missouri.
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During a subsequent search of Van Horn's bedroom,
officers found a set of keys located in a chest of drawers. One
of the officers was involved in an ongoing investigation of a
burglary in 1993 of the Bow explosives depot and recognized the
manufacturer's name on the keys, American Lock Company, as the
type of padlock used by the depot on their explosives magazines.
The depot site manager located padlocks still possessed by the
Bow explosives depot which had key codes matching the keys
seized from Van Horn's bedroom.
B. Jury Trial Proceedings
A federal grand jury returned a two-count indictment
charging Van Horn with 1) unlawful receipt of explosives, in
violation of 18 U.S.C. § 844(d), and 2) being a felon in
possession of explosives, in violation of 18 U.S.C. § 842(i)(1).
At trial, Van Horn's counsel alerted the jury to the
defense of entrapment in his opening statement: "If the judge
instructs you on entrapment, then you must find that the
government has proven that, one, Kenny Van Horn was predisposed
into [sic] committing this crime, and two, Kenny Van Horn was
not induced by government agents."
In the government's case, Moore testified that Van Horn
told him he wanted to obtain explosives from the Bow explosives
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depot in order to blow up the vehicles and apartments of his ex-
girlfriends. Moore testified that he and Van Horn previously
went to that depot in 1993. At that point, Van Horn objected to
any further testimony from Moore about what transpired at the
Bow explosives depot during that time. The government informed
the judge that Moore was going to testify that he and Van Horn
burglarized the depot, stealing keys from the depot office and
using them to steal explosives stored in containers at the
depot. Noting defense counsel's reference to the entrapment
defense in his opening statement, the district court informed
Van Horn that, if he pursued an entrapment defense, the court
would admit evidence of Van Horn's involvement in the 1993 Bow
depot burglary as relevant to his predisposition to commit the
crime. If, on the other hand, Van Horn chose not to pursue an
entrapment defense, the district court stated that the evidence
would be inadmissible under Fed. R. Evid. 404(b).3
Uncertain whether Van Horn's evidence would warrant an
entrapment instruction, the court allowed Moore to testify on
direct only as to 1) Van Horn's possession of the keys to the
Bow explosives depot padlocks, and 2) the fact that Van Horn and
3 The government informed the district judge at sidebar
that, pursuant to the notice provisions of Rule 404(b), the
government had disclosed to defendant well in advance of trial
its intention to admit in evidence this prior bad act.
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Moore had visited the depot in 1993. The court instructed the
prosecution to reserve for re-direct any reference to the 1993
Bow depot burglary itself, with the scope of its inquiry about
that incident contingent upon the extent to which Van Horn's
counsel raised entrapment during Moore's cross-examination.
Consistent with the court's directive, Moore identified the keys
to the depot seized by law enforcement from Van Horn's bedroom
and testified that he saw Van Horn in possession of these keys
in 1993 and again in the summer of 1998. Moore testified that,
on September 21, 1998, Van Horn said that he was going to the
depot to make sure the keys still fit.
On cross-examination, Moore testified that he had
called and visited Van Horn many times during August and
September 1998, and that Moore had first raised the idea of Van
Horn purchasing explosives. At this point, Judge Barbadaro did
not deem the evidence sufficient to merit an entrapment
instruction and accordingly directed the prosecution not to
inquire of Moore on redirect as to the details of the 1993 Bow
depot burglary.
At the close of the prosecution's case, Van Horn
requested a judgment of acquittal under Fed. R. Crim. P. 29, on
the grounds that the government failed to prove, inter alia,
that Van Horn possessed the explosives. The court denied the
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motion, ruling that "possession can be satisfied either by proof
of constructive possession or joint possession, and the evidence
produced is amply sufficient to support a finding that the
defendant possessed the explosives."
Van Horn then took the stand to testify on his own
behalf. Prior to Van Horn doing so, the trial court advised him
that if he testified on the subject of the 1993 Bow depot
burglary, the prosecution would be free to question him about
his involvement in that burglary. Van Horn testified that Moore
had tried to persuade him to commit numerous crimes, generally
residential and commercial burglaries. Van Horn also said that
he had seen Moore use dynamite. He conceded that the keys found
on his dresser drawer after his arrest were the keys to the Bow
explosives depot, and admitted that he and Moore "were involved
in that back in '93 or '94." However, he said that the keys had
come from Moore. Van Horn also acknowledged that he was
convicted of committing a burglary in January, 1988.
On cross-examination, the prosecutor elicited from Van
Horn details about his involvement in the 1993 Bow depot
burglary, and Van Horn started correcting him by giving details
of the offense. Van Horn did not object to this line of
questioning. At this point, the trial judge gave the jury the
following limiting instruction:
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You have heard testimony in this case about a
burglary of the Bow explosives depot. . . . [Y]ou
cannot consider that evidence except for the limited
reasons that I'm going to instruct you on now. . . . If
you determine that this defendant was involved in a
burglary of the Bow Depot, explosives depot, and that
one of the purposes of that burglary was to acquire
explosives, then you may consider that to the extent
you find it helpful in evaluating whether the defendant
had a predisposition to commit the offenses with which
he is currently charged. Predisposition is relevant
for a limited purpose. The defendant has raised the
defense of entrapment in this case. And whether he was
predisposed to commit the crime or not is a matter that
you may consider in evaluating the defendant's claim
that he was entrapped.
At the close of all the evidence, Van Horn failed to
renew his Rule 29 motion. In closing argument, the prosecutor
only referred to the keys seized from Van Horn's bedroom: "He
can get all the dynamite he wants. Defendant's bedroom, night
of his arrest."
The trial court included in the jury charge an
entrapment instruction,4 specifically instructing the jury to
determine "whether the defendant was predisposed to commit the
charged crime." In addition, the judge instructed on actual and
constructive possession, as well as sole and joint possession.
The jury acquitted Van Horn on the first count, but
convicted him on Count Two for being a felon in possession of
4 Although the judge had initially decided not the charge
the jury on entrapment, he later changed his mind. He ruled
that, notwithstanding "weak" supporting evidence, he would
instruct on entrapment "out of an abundance of caution."
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explosives. The judge sentenced Van Horn in January 2000 to 72
months in prison, followed by three years of supervised release.
II.
Van Horn challenges on appeal the sufficiency of the
evidence to establish his possession of explosives as required
under § 842(i)(1). He also claims that the trial judge erred in
admitting evidence of the 1993 Bow depot burglary.
A. Sufficiency of Evidence of Possession
To convict Van Horn under § 842(i)(1), the government
had to prove beyond a reasonable doubt that Van Horn was a
convicted felon who knowingly possessed explosives shipped
through interstate commerce.5 Van Horn argues on appeal that the
evidence was insufficient to prove the requisite element of
possession.6
5 Section 842(i) provides in relevant part:
(i) It shall be unlawful for any person . . . (1) . . .
convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to receive
or possess any explosive which has been shipped or
transported in interstate or foreign commerce.
6 Van Horn does not dispute the sufficiency of evidence on
the remaining two elements required under § 842(i)(1). Van Horn
admitted at trial to his 1988 felony burglary conviction. As to
the element that the explosives be shipped through interstate
commerce, Trooper Meany testified that the grenades were both
manufactured outside the State of New Hampshire, and the
dynamite was manufactured in Missouri.
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To challenge the sufficiency of evidence after a
conviction, the defendant must have preserved his Rule 29 motion
by moving for an acquittal at the close of the defense's
evidence at trial. United States v. Stein, 233 F.3d 6, 20 (1st
Cir. 2000). While Van Horn moved for acquittal under Fed. R.
Crim. P. 29 at the close of the prosecution's evidence, he
failed to renew his Rule 29 motion at the close of his case in
defense. Absent such renewal, Van Horn's objection is deemed
forfeited and Van Horn must now demonstrate "clear and gross
injustice" to prevail on his sufficiency challenge before us.
United States v. Concemi, 957 F.2d 942, 950 (1st Cir.
1992)(internal quotation marks omitted); Stein, 233 F.3d at 20.
In considering the evidence at trial, we view the facts
and draw all reasonable inferences in favor of the verdict. See
United States v. Baldyga, 233 F.3d 674, 678 (1st Cir. 2000).
Our appellate role here is limited. See United States v.
Woodward, 149 F.3d 46, 56 (1st Cir. 1998)("The court of appeals
neither weighs the credibility of the witnesses nor attempts to
assess whether the prosecution succeeded in eliminating every
possible theory consistent with the defendant's innocence.").
Upon careful review, we conclude that, viewed in the light most
favorable to the verdict, the evidence is sufficient to satisfy
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the knowing possession element of § 842(i)(1) and therefore
there was no clear and gross injustice in Van Horn's conviction.
Van Horn asserts that the government failed to prove
that he possessed the explosives which Detective Barry and Moore
brought to their meeting with Van Horn in the Applebee's parking
lot on September 30, 1998. Under settled law, "possession may
be actual or constructive, sole or joint." United States v.
Vargas, 945 F.2d 426, 428 (1st Cir. 1991)(internal citations
omitted). Constructive possession is sufficient to establish
the element of possession under § 842(i)(1). Cf. United States
v. Wight, 968 F.2d 1393, 1398 (1st Cir. 1992) (constructive
possession found to satisfy knowing possession element under 18
U.S.C. § 922(g)(1)). "'Constructive' possession is commonly
defined as the power and intention to exercise control, or
dominion and control, over an object not in one's 'actual'
possession,"7 United States v. Zavala Maldonado, 23 F.3d 4, 7
(1st Cir. 1994); United States v. Ocampo-Guarin, 968 F.2d 1406,
1409 (1st Cir. 1992) ("Constructive possession exists when a
person knowingly has the power and intention at a given time to
exercise dominion and control over an object, either directly or
7 Indeed, the district court so instructed the jury on
possession. In addition, the jury was instructed that "[a]
person acts knowingly when he acts voluntarily and intentionally
and not by mistake or accident."
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through others."), and may be established through the use of
either direct or circumstantial evidence. See United States v.
Georgacarakos, 988 F.2d 1289, 1296 (1st Cir. 1993); Wight, 968
F.2d at 1395.
In the instant case, a jury could reasonably conclude
from the evidence at trial that Van Horn had both the power and
intention to exercise control over the explosives in the bucket.
As to intention, the record is replete with evidence of Van
Horn's plan and design to exercise control over the explosives,
from the moment Van Horn told Moore he wanted explosives to blow
up his girlfriends to the point at which Van Horn sat in the
back seat of the car with the explosives next to him.
Van Horn's primary argument is that the government
failed to demonstrate that he had the power to exercise dominion
and control over the explosives in the bucket. We disagree.
The evidence clearly establishes that Van Horn “could have taken
actual possession” of the explosives and thus satisfies the
element of "power" required for constructive possession. United
States v. Lamare, 711 F.2d 3, 5 (1st Cir. 1983)(constructive
possession of firearm "conclusively established" where defendant
"could have taken actual possession" of pistol). Van Horn sat
immediately adjacent to the bucket of explosives in the back
seat of the car with Moore and Detective Barry sitting in front.
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He was free to reach into the bucket to physically handle the
explosives. Indeed, Detective Barry, upon receiving the sixty
(60) dollar payment from Van Horn, told Van Horn to inspect the
explosives in the bucket: "I got you one baseball, one
pineapple, and the guy was nice enough to throw in a couple of
sticks [of dynamite] if you want to get some caps for them.
Sound like a good deal? . . . Hey . . . pop [the bucket] up and
take a look. Make sure." From the above evidence, a reasonable
juror could infer that Van Horn, however briefly, had the power
to exercise control over the explosives in the bucket.
The fact that the presence of Moore and Detective Barry
made it virtually impossible for Van Horn to escape with the
explosives is beside the point and does not alter the analysis.
See Zavala Maldonaldo, 23 F.3d at 8 ("The completion of the
crime does not require that the defendant have a sporting chance
[of escaping law enforcement]."). It is well established that
possession does not necessarily require that the defendant have
the ability to escape with the contraband. See Santiago v.
United States, 889 F.2d 371, 376-77 (1st Cir. 1989)(finding
possession where drugs had been turned over to defendants,
notwithstanding presence of government agents both inside and
outside room where transaction took place); United States v.
Martorano, 709 F.2d 863, 869-71 (3d Cir. 1983)(holding that
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constructive possession where informant gave defendant keys to
van containing marijuana was not negated by presence of law
enforcement who had no intention of letting van be driven away);
United States v. Toro, 840 F.2d 1221, 1237-38 (5th Cir.
1988)(noting possession did not require an opportunity to escape
with contraband where defendant took actual possession of
cocaine from undercover agent shortly before defendant was
arrested). That the government had no intention of letting Van
Horn escape with the explosives does not preclude Van Horn's
constructive possession of such contraband. See United States v.
Damsky, 740 F.2d 134, 139 (2d Cir. 1984)(defendant found to be
in constructive possession upon receipt of keys to camper
containing hashish, notwithstanding fact that government had no
intention to let him depart); see also United States v. Toner,
728 F.2d 115, 128 (2d Cir. 1984)(similar holding to Damsky in
context of illegal possession of firearms).
Furthermore, to the extent that Van Horn argues that
he could not have possessed the explosives because he did not
have sole access to the bucket, that argument lacks merit.
Exclusive access is not a prerequisite to possession; indeed,
"joint possession" was one of the possibilities mentioned in the
trial judge's charge to the jury. See Zavala Maldonado, 23 F.3d
at 6-7. Therefore, there was ample evidence from which the jury
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could have reasonably inferred that Van Horn had the power and
intention to exercise dominion or control over the bucket of
explosives sufficient to establish possession.
B. Evidence of 1993 Bow Depot Burglary
Van Horn argues that evidence of the details of the
1993 Bow depot burglary, to which he testified on cross-
examination, was unduly prejudicial and should not have been
admitted under Rule 403 balancing.8
We typically review the district court's decision to
admit evidence under Rule 404(b) for abuse of discretion, and
will reverse the district court's balancing under Rule 403 "only
in exceptional circumstances." United States v. Manning, 79
F.3d 212, 217 (1st Cir. 1996)(internal quotation marks omitted).
See United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998)
(noting that only "extraordinarily compelling circumstances"
warrant reversal of trial court's "on-the-spot" balancing under
Rule 403)(internal quotation marks omitted). The government,
however, asserts that because defense counsel failed to make a
timely objection specifically to the challenged evidence during
Van Horn's cross-examination, the more stringent plain error
8
Van Horn does not appear to contest the admission of
evidence of his possession of keys to the depot as he concedes
that such evidence "was certainly probative of his independent
disposition to possess explosives."
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standard applies. See Baldyga, 233 F.3d at 681. We need not
address whether Van Horn made the proper objections at trial
sufficient to preserve this evidentiary issue on appeal. Even
under the more lenient abuse of discretion standard, Van Horn
cannot prevail.
Fed. R. Evid. 404(b) provides that evidence of a
defendant's prior bad acts is not admissible to prove his or her
"criminal character or propensity to commit similar crimes."9
United States v. Houle, 237 F.3d 71, 77 (1st Cir. 2001); see
United States v. Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000).
We apply a two-pronged test in reviewing Rule 404(b) evidentiary
rulings. First, to overcome the "absolute bar" of Fed.R.Evid.
404(b), the evidence must be "specially probative of an issue in
the case -- such as intent or knowledge -- without including bad
character or propensity as a necessary link in the inferential
chain." United States v. Frankhauser, 80 F.3d 641, 648 (1st
Cir. 1996)(internal quotation marks omitted). We assess
probative value in light of the remoteness in time of the other
9 Rule 404(b) provides in pertinent part:
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 purposes, such as
proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident. . . .
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act and the degree of similarity to the crime charged. Id.
However, in situations where the defendant employs entrapment as
a defense to criminal liability, prior bad acts relevant to a
defendant's predisposition to commit a crime are highly
probative and can overcome the Rule 404(b) bar.10 See Houle, 237
F.3d at 78; United States v. Mazza, 792 F.2d 1210, 1223 (1st
Cir. 1986)(evidence of prior drug transaction relevant to refute
defendant's claim of entrapment).
Even if the proffered evidence has "special relevance,"
however, it may not be admitted if, under the second prong of
the Rule 404(b) analysis, its probative value is "substantially
outweighed by the danger of . . . unfair prejudice, confusion of
the issues, or misleading the jury." Frankhauser, 80 F.3d at
648 (quoting Fed. R. Evid. 403)(internal quotation marks
omitted). Van Horn concedes that his possession of keys to the
Bow explosives depot was highly probative of his independent
predisposition to possess explosives. However, he complains
that the details of the 1993 burglary which the prosecutor
elicited from Van Horn on cross were unduly prejudicial.
Specifically, Van Horn argues that his testimony on cross-
10The defense of entrapment has two related elements: 1)
improper government inducement to commit the crime and 2) lack
of predisposition on the part of the defendant. See United
States v. Joost, 92 F.3d 7, 12 (1st Cir. 1996); United States v.
Gendron, 18 F.3d 955, 961 (1st Cir. 1994).
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examination about his "repeated violations of private space"
would repulse and impair the objectivity of any law-abiding
juror. This testimony included the following:
Q: Did [Moore] do anything with those keys while
you were at the Bow depot?
Van Horn: We tried them on two trailers. There's a
trailer that had the computer and stuff in it,
then there's two trailers with the tools, like
crowbars and all that stuff there, and then
there's another trailer with a bunch of copper
wire and boxes in it. And those are the
trailers he tried. We tried . . . .
Q: You and Mr. Moore both used the keys he had
that night to try to –
Van Horn: I believe I tried one of the compartments and
he tried the other.
Q: What were you looking for?
Van Horn: Anything to sell.
Q: Like explosives?
Van Horn: No, sir.
Q: Did you talk about what might be in there
before you tried the keys?
Van Horn: No, sir.
. . . .
Q: You just walked over and you tried the keys.
Van Horn: You don't – in the situation like this there
was no talking because of being afraid of a
security guard or something so you don't talk.
Q: Oh. So you and Mr. Moore did not want to be
caught.
Van Horn: You could say that, yes.
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As demonstrated above, the prosecutor directed his line
of questioning to establish 1) the extent of Van Horn's
involvement in the 1993 Bow depot burglary and 2) whether Van
Horn was looking for explosives in that burglary. These details
bear strongly upon Van Horn's predisposition to possess
explosives in this case. In response, Van Horn volunteered
details about that burglary without objection from defense
counsel in an apparent effort to discredit the government's
theory that he was looking for explosives in the 1993 burglary,
and thereby undermine the probative value of that prior
misconduct as to his predisposition to possess explosives in the
instant charged offense.
Where predisposition is at issue because of the
entrapment defense, "'it really is the underlying conduct,
perhaps more than the conviction itself, which becomes a
material issue concerning the previous offense.'" United States
v. Reed, 977 F.2d 14, 16 (1st Cir. 1992)(quoting trial judge in
that case). The underlying conduct could be even more
important, we note, where no conviction exists. That is, in the
absence of a conviction, it may be important that details of the
misconduct be presented to the fact finder to make the incident
meaningful to the predisposition issue. Indeed, the details
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here strongly bear upon the jury's consideration of the extent
to which the 1993 Bow depot burglary is probative of Van Horn's
predisposition to possess explosives in the case on trial. See
id. at 17 (allowing evidence as to details surrounding prior
conviction for cocaine possession where such details "tended to
clarify for the jury the extent to which the prior conviction
might or might not be probative of [defendant's] predisposition
to distribute cocaine"); Houle, 237 F.3d at 78 (admitting
evidence of defendant's prior act probative of defendant's
criminal knowledge and intent to traffic in drugs). Exclusion
of such evidence would enable Van Horn to claim entrapment but
preclude the government from demonstrating that Van Horn's
"'criminal conduct was due to his own readiness and not to the
persuasion'" of the government. Houle, 237 F.3d at 78 (quoting
Sherman v. United States, 356 U.S. 369, 376 (1958)). Finally,
to the extent Van Horn argues the 1993 incident was too remote
in time to the events in 1998, we reject that argument,
particularly in light of the keys discovered in Van Horn's
bedroom linking the 1993 Bow depot burglary to the charged
offense. See United States v. Bastanipour, 41 F.3d 1178, 1183
(7th Cir. 1994) (affirming admissibility of twelve-year-old
narcotics conviction in heroin conspiracy trial as relevant to
predisposition to commit drug conspiracy).
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Accordingly, we find no error under Fed. R. Evid.
404(b). The evidence was not offered for any purpose that is
impermissible under that rule and was relevant to show Van
Horn's predisposition to commit the crime alleged in the present
case. Nor do we see any error in the trial court's
determination pursuant to Rule 403 that the probative value of
that evidence was not substantially outweighed by the danger of
unfair prejudice. The evidence was not unduly inflammatory.
Moreover, the district court minimized any risk of unfair
prejudice by carefully circumscribing with a limiting
instruction the jury's use of the evidence of Van Horn's prior
misconduct. Nothing in the record remotely suggests a "basis to
suppose that the jurors disregarded the trial judge's [limiting
instruction] and departed on a frolic of their own." United
States v. Pierro, 32 F.3d 611, 616 (1st Cir. 1994).
Van Horn was forewarned that if he chose to assert an
entrapment defense, the details of the 1993 burglary would
become admissible. Because we find no error in the district
court's ruling, Van Horn must now accept the consequences of his
decision.
Affirmed.
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