U.S. v. Jones
| Decision Date | 13 April 2007 |
| Docket Number | No. 06-30563.,No. 06-30535.,06-30535.,06-30563. |
| Citation | 484 F.3d 783 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Nyron JONES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
R. Christopher Cox, III (argued), Stephen A. Higginson, Asst. U.S. Atty., New Orleans, LA, for Plaintiff-Appellee.
Gary V. Schwabe, Jr., Asst. Federal Public Defender (argued), Robin Elise Schulberg, New Orleans, LA, for Defendant-Appellant.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.
Defendant-Appellant Nyron Jones was convicted by a jury of unlawful possession of a firearm by a convicted felon. Jones grounds his appeal of this conviction in the assertedly erroneous ruling of the district court that allowed the government to introduce evidence of a prior conviction for the same crime committed under circumstances virtually identical to those alleged in this case.
Also, at the time of his arrest, Jones was serving a term of supervised release related to his prior firearms conviction and thus was subject to revocation of release and reimprisonment ("revocation sentence") for violating the terms of his release. Jones received the statutory maximum two-year revocation sentence, which he now appeals as unreasonable.
In 2002, a New Orleans police officer saw Jones remove a handgun from his front waistband and place it under a house. Jones, who had an earlier felony conviction for robbery, was arrested and subsequently charged with unlawful possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). He pleaded guilty and was sentenced to 33 months of imprisonment and three years of supervised release.
Only four months into his supervised release following his completion of that term of imprisonment, Jones was again arrested and again charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). At Jones's trial on this second firearms charge, New Orleans Police Detective Brian Pollard testified that, while in a police car on a night patrol, he saw Jones adjust an object in his front waistband. Suspecting that object to be a firearm, Detective Pollard got out of the patrol car and approached Jones, who, according to Detective Pollard, fled into an alley between two houses. Detective Pollard testified that he followed Jones into the alley and saw him remove an object from his waistband and toss it under one of the houses. Shortly thereafter, Detective Pollard recovered a handgun from underneath that house.
Jones's cousin, Keva Peters, was present when Jones was arrested. At Jones's trial, Peters contradicted Detective Pollard's testimony, stating that he and Jones were standing on the porch of a house when Detective Pollard approached, and that Jones was questioned and detained in that area but never went into the alley between the two houses. Peters also testified that he saw Detective Pollard go into the alley after Jones had been placed in police custody and return with a firearm.
Even though Jones stipulated to his convicted-felon status, the government filed a motion to introduce the factual basis from Jones's prior firearm offense. After hearing opening statements and some of the testimony, the district court granted the government's motion. At the conclusion of a two-day jury trial, Jones was convicted as charged.
At sentencing, the court imposed a term of 78 months imprisonment, expressing several reasons for its decision to sentence Jones above the advisory Sentencing Guidelines range of 33 to 41 months. The court specifically noted that Jones had been convicted of precisely the same offense just a few years earlier and had been out on supervised release for only four months when he was arrested for this repetition of the same crime.
In a separate proceeding after Jones was sentenced, a different district judge, the one who was continuing to oversee Jones's earlier felon-in-possession case, revoked his supervised release and imposed the statutory maximum revocation sentence of two years imprisonment, to be served consecutively to his new sentence for firearm possession. This revocation sentence of 24 months represented an upward variance from the Guidelines range of 6-12 months for such a supervised release violation. In imposing the maximum revocation sentence, the supervising district judge noted, inter alia, that the new conviction that produced the revocation of Jones's supervised release involved the same conduct for which Jones had been convicted previously and that the new firearms violation occurred only four months into the term of supervised release for the old one.
We review evidentiary rulings for abuse of discretion.2 In a criminal case, however, Rule 404(b) evidence must "be strictly relevant to the particular offense charged."3
"Relevant evidence" is that "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."4 "All relevant evidence is admissible, except as otherwise provided."5 Even relevant evidence, however, "may be excluded 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."6 "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," and may only be admitted for legitimate non-character purposes such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."7
In United States v. Beechum, we established that evidence of prior crimes is not admissible in criminal cases unless (1) it is relevant to an issue other than the defendant's character or his propensity to act in accordance therewith, and (2) its incremental probative value is not substantially outweighed by the danger of unfair prejudice to the defendant.8 Beechum and its progeny inform our decision today.
Jones contends that evidence of his prior firearms crime offends both prongs of the Beechum test, because (1) its only relevance is to prove his propensity to possess firearms illegally, an impermissible purpose under Rule 404(b), and (2) its probative value is outweighed by its unfairly prejudicial impact. The government counters that (1) evidence of Jones's prior firearms offense is probative of knowledge, intent, and absence of mistake or accident, which are material facts unrelated to Jones's propensity to possess firearms illegally and (2) the probative value of that evidence outweighs any unfairly prejudicial effect.
Jones does not dispute that evidence of his prior unlawful firearm possession meets Rule 401's general definition of relevant evidence, at least to the extent that a criminal defendant's prior offense makes it more likely that he would commit the same crime again. Jones nevertheless insists that, in this case, the prior-crimes evidence only serves to prove his propensity to carry firearms and has no relevance to any other fact "of consequence to the determination of the action" against him.9
At the moment of his apprehension, Jones did not physically control the firearm he was charged with unlawfully possessing, i.e., it was not on his person when he was taken into custody. According to the government, this fact makes evidence of his prior firearm-possession conviction relevant to (1) show that he had knowingly and intentionally possessed the gun that was found under the house only minutes later, and (2) disprove any claim of accidental or mistaken possession or rebut a "mere presence" defense. The trial court agreed, recognizing that "the government will have to prove beyond a reasonable doubt that Jones, among other things, knowingly possessed a firearm." The court reasoned that the government "may prove this element [knowledge] by offering evidence of defendant's prior conviction for possession of a firearm in a similar situation which tends to show that he was in knowing possession of the gun."
The trial court went further, however, and speculated that "because the detective did not find the gun on Jones's person," the government might need to (1) prove "constructive possession," which would require it to show Jones's knowledge of the presence of the firearm under the house and his intent to exercise dominion or control over the gun, or (2) rebut the defense that Jones was "simply in the `mere presence' of the firearm, should the jury discredit the detective's testimony that he saw Jones's [sic] remove an item from his waistband and place it under the house."10
The government can prove possession by showing that a defendant exercised either direct physical control over a thing (actual possession) or "dominion or control" over the thing itself or the area in which it was found (constructive possession).11 Jones insists that, because Detective Pollard claimed to have seen him remove something from his waistband and dispose of it in the spot where a firearm was later found, his was exclusively an actual possession case. The district court nevertheless concluded that, because Detective Pollard's testimony was arguably suspect, the government might have to offer evidence in support of the alternative theory that Jones constructively possessed the firearm found under the house. This formed the basis of the court's ruling that evidence of Jones's prior crime was admissible to show the knowledge and intent elements of constructive possession, even though they are not separate elements of actual...
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