U.S. v. Cassell, 01-3050.

• Decision Date: 11 June 2002
• Docket Number: No. 01-3050.,01-3050.
• Citation: 292 F.3d 788
• Parties: UNITED STATES of America, Appellee, v. Dwayne CASSELL, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

292 F.3d 788

UNITED STATES of America, Appellee, v. Dwayne CASSELL, Appellant.

No. 01-3050.

United States Court of Appeals, District of Columbia Circuit.

Argued March 22, 2002.

Decided June 11, 2002.

Appeal from the United States District Court for the District of Columbia (No. 00cr00270-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Valencia R. Rainey, Assistant Federal Public Defender, entered an appearance.

Roy W. McLeese III, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, Elizabeth Trosman, Stuart G. Nash and Patricia A. Heffernan, Assistant U.S. Attorneys.

Before: SENTELLE and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Appellant Dwayne Cassell was charged in a five count indictment with, inter alia, possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and possession of a firearm during drug trafficking in violation of 18 U.S.C. § 924(c)(1) following a search of his uncle's home that turned up three guns, ammunition, marijuana, crack cocaine, and drug paraphernalia. At Cassell's trial, the district court admitted evidence over Cassell's objection that Cassell had been convicted in 1997 for possessing a loaded, 9-mm semi-automatic firearm, and that a few weeks before the search, police found a loaded, 9-mm semi-automatic firearm that fell from underneath the rear bumper of Cassell's car while it was being towed. Following a jury trial, Cassell was convicted of both firearms charges.¹ Cassell appeals on grounds that the evidence of his two prior gun possessions violated Rules 404(b) and 403 of the Federal Rules of Evidence. We disagree and affirm his convictions.

I. Background

On July 13, 2000, officers of the Metropolitan Police Department searched Lawrence Hart's northeast Washington, D.C. home pursuant to a search warrant. Hart is Dwayne Cassell's uncle, with whom Cassell had been living at the time of the search. During the search of Cassell's room, police recovered a loaded 9-mm pistol, a loaded AR-15 (.223-caliber, semi-automatic) assault rifle, and $3150 in cash. From Hart's room, police recovered $750 in cash, marijuana, a .32 revolver, and .22 caliber ammunition. Hart, who was present during part of the search, was carrying $1429 in cash on his person. From other parts of the house the police recovered additional marijuana, approximately $11,500 worth of crack cocaine, scales, ziplock bags, additional 9-mm ammunition, .30 caliber ammunition, cocaine base residue on a plate with Cassell's fingerprint on it, and a magazine for a semiautomatic weapon. At the scene, police arrested Hart, who subsequently agreed to plead guilty to Carrying a Pistol Without a License ("CPWL") and to testify against Cassell.

II. Proceedings Below

Prior to Cassell's trial, prosecutors sought to introduce evidence of Cassell's two prior gun possessions. Specifically, prosecutors sought to introduce evidence of a 1997 CPWL conviction stemming from an arrest in a housing complex in Washington, D.C. called Sursum Corda. At the time of this prior arrest, Cassell had a loaded, 9-mm semi-automatic firearm in his pants pocket. Prosecutors also sought to introduce evidence that a few weeks before the search of Hart's apartment, Cassell's car was impounded and towed from Sursum Corda. During transport of his car, a loaded, 9-mm semi-automatic firearm fell from underneath the rear bumper.

Cassell objected to this testimony on grounds it violated Federal Rules of Evidence 404(b) and 403. See Fed.R.Evid. 404(b) (evidence of other crimes or acts); Fed.R.Evid. 403 (unfair prejudice). The government contended that the evidence was probative of Cassell's knowing and intentional possession of the firearms recovered from his bedroom, and that his possession of those firearms was not mistaken, accidental, or inadvertent. The government also contended that the evidence was probative of his criminal intent and state of mind. Although the parties misunderstood the district court's initial ruling, a review of the record from the evidentiary hearing indicates that the district court ruled that the government could introduce the fact that Cassell was convicted of a felony in 1997 to establish the predicate element of the felon in possession charge,² but it could not introduce the fact that the conviction stemmed from a gun-related offense because doing so would be more prejudicial than probative. The district court also ruled that with respect to the circumstances surrounding the 1997 conviction and the 9-mm firearm recovered from Cassell's car, the evidence would be excluded as more prejudicial than probative, see Fed.R.Evid. 403, and as impermissible 404(b) evidence. See Fed.R.Evid. 404(b). The court did rule, however, that this evidence could be admitted under Rule 404(b) as a circumstantial link to the ammunition found in Hart's house,³ or if Cassell asserted a "lack of knowledge" defense.

Once at trial, Cassell asserted both during opening argument and through cross-examination of government witnesses that the firearms were not his, but instead belonged to Hart. At the end of the government's case-in-chief, the government tendered a proposed stipulation to the defense which included the fact that the 1997 conviction involved a firearm as well as the factual circumstances surrounding the underlying arrest. When Cassell objected on grounds that the stipulation included facts which the district court had ruled inadmissible, the district court reviewed its notes from the evidentiary hearing and clarified its earlier ruling. The court reiterated its earlier decision that the government was prohibited under Rule 403 from presenting evidence that the 1997 conviction involved a firearm. The court then restated its 404(b) decision — ruling that the two prior gun possessions would be excluded unless there was an "explicit or an implicit indication during the government's case brought by the defense of lack of knowledge." After evaluating the evidence so far presented, the district court ruled that "the cross-examination in this case so far clearly has left an impression with the jury that the defense is that [the guns] were not the defendant's." The court thereafter admitted the evidence of the two prior gun possessions after "having examined it under [Federal Rule of Evidence] 404(b) and also having examined it under [Federal Rule of Evidence] 403." The parties then stipulated to the facts surrounding Cassell's 1997 conviction as well as the facts surrounding the recovery of the weapon that fell from Cassell's car.

Cassell now contends that the district court mistook his "lack of possession" defense for a "lack of knowledge" defense by "confus[ing] a denial of the required mens rea, which would arguably increase the legitimate probative value of the prior gun possessions on the issue of mens rea, with a denial of the act of possession, which would not." We reject Cassell's argument because we reject the distinction he makes between knowledge and possession with respect to the firearms recovered from his room, and because we agree with the district court's analysis under Rules 404(b) and 403.

III. Analysis

Federal Rule of Evidence 404(b) prohibits "[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). Although stated as a restriction, the Rule is actually one of "inclusion rather than exclusion." United States v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000). Evidence is only prohibited if it is offered for the impermissible inference that a defendant is of bad character resulting in bad conduct. See, e.g., United States v. Miller, 895 F.2d 1431, 1436 (D.C.Cir.), cert. denied, 498 U.S. 825, 111 S.Ct. 79, 112 L.Ed.2d 52 (1990). Thus evidence of a defendant's prior bad acts is admissible for purposes unrelated to the defendant's character or propensity to commit crime, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b); see also Miller, 895 F.2d at 1436 ("[U]nder Rule 404(b), any purpose for which bad-acts evidence is introduced is a proper purpose so long as the evidence is not offered solely to prove character.").

Given this focus on inclusion, our Rule 404(b) analysis begins with a determination of whether the evidence is probative of some issue other than character. United States v. Washington, 969 F.2d 1073, 1080 (D.C.Cir.1992), cert. denied, 507 U.S. 922, 113 S.Ct. 1287, 122 L.Ed.2d 679 (1993). We will not sustain a Rule 404(b) objection if the evidence of other crimes is relevant, relates to something other than character or propensity, and supports a jury finding that the defendant committed the other crime or act. See Bowie, 232 F.3d at 930. Once past this first step, the evidence is admitted unless it is otherwise prohibited under any of the other "`general strictures limiting admissibility,'" such as Rule 403. Washington, 969 F.2d at 1080 (quoting Miller, 895 F.2d at 1435). With this framework in mind, we review a district court's Rule 404(b) decision for abuse of discretion, Bowie, 232 F.3d at 926-27, and afford it "much deference on review." United States v. King, 254 F.3d 1098, 1104 (D.C.Cir.2001) (Henderson, J., concurring) (internal quotations and citations omitted). After considering the arguments before us, we conclude that the district court properly admitted evidence of Cassell's prior gun possessions because it was relevant to show knowledge of, and intent to possess, the firearms recovered from his room, and was not more prejudicial than probative.

A. Admission of Evidence under Rule 404(b)

In order to convict Cassell of the...