U.S. v. Strong

• Decision Date: 26 July 2005
• Docket Number: No. 04-3228.,No. 04-3123.,04-3123.,04-3228.
• Citation: 415 F.3d 902
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Robert D. STRONG, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 902

415 F.3d 902

UNITED STATES of America, Appellee/Cross-Appellant, v. Robert D. STRONG, Appellant/Cross-Appellee.

No. 04-3123.

No. 04-3228.

United States Court of Appeals, Eighth Circuit.

Submitted: May 10, 2005.

Filed: July 26, 2005.

Thomas F. Flynn, Assistant Federal Public Defender, argued, St. Louis, Missouri, for appellant.

Reginald L. Harris, Assistant U.S. Attorney, argued, St. Louis, Missouri (James G. Martin on the brief), for appellee.

Before LOKEN, Chief Judge, BEAM and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Robert D. Strong was convicted of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and sentenced to a term of 63 months' imprisonment and three years' supervised release. For reversal, Strong argues that the district court erred in admitting his 1987 convictions into evidence under Federal Rule of Evidence 404(b). The government cross-appeals, arguing that the district court erred by failing to sentence Strong as an armed career criminal under 18 U.S.C. § 924(e)(1). We affirm in part and reverse in part.

I. Background

St. Louis Metropolitan Police Officers Shell Sharp and Alan Ray saw a pickup run a stop sign. The officers activated their lights and siren, but the truck did not yield. After a short chase, the pickup turned onto a different street and stopped. The officers parked their car behind the pickup. Strong, the driver of the pickup, exited the truck and left the door open. Officer Sharp observed Strong reach for his waistband, remove an object, and toss it into the truck. Officer Sharp drew his weapon and asked Strong what he was doing. Strong responded that he was not from the area and was lost.

According to Officer Sharp, he directed Strong to move to the rear of the pickup with Officer Ray, which Strong did. Officer Sharp looked into the open driver's door and saw a revolver on the driver's side floor. Officer Sharp arrested Strong and also searched Strong incident to the arrest and found drug paraphernalia. Officer Sharp took the gun from Strong's truck and showed it to Officer Ray.

In contrast, Strong contended that Officer Sharp did not find the weapon on the floorboard of his truck at the time of the stop, but later found the revolver in another area of the truck among items belonging to Linda Hemphill.¹ Strong claimed that Officers Sharp and Ray had been watching a house where they suspected drug activity. Strong insisted that Hemphill lived in that house and that Strong was helping her move into a new residence. Strong also claimed that the reason the officers stopped him was that they saw Strong leave that house. Strong stated that he had Hemphill's items in his truck, including the gun.

Strong was indicted for being a felon in possession of a firearm in violation of §§ 922(g)(1) and 924(e)(1). At trial, the government offered Strong's prior convictions for first-degree robbery in the state of Washington, and felon in possession of a firearm in the United States District Court for the Eastern District of Missouri. The district court admitted the evidence pursuant to Fed.R.Evid. 404(b) over Strong's objection on grounds of relevance and prejudice. The court gave a limiting instruction, prohibiting use of the prior crimes to prove Strong committed the present one. The jury convicted Strong.

The Government requested that Strong be sentenced as an armed career criminal in conformity with the Presentence Investigation Report's (PSR) recommendation because Strong had three previous convictions for violent felonies. The district court refused, basing its decision on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The court believed that it was precluded by Blakely from finding that Strong had prior convictions that were considered to be violent felonies for armed career criminal purposes because those facts had to be established by the jury.

II. Discussion

A. Admission of 404(b) Evidence

Strong argues that the district court erred in admitting his 1987 convictions into evidence under Fed.R.Evid. 404(b). We review a district court's decision to admit evidence for abuse of discretion and "we will reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts." United States v. Frazier, 280 F.3d 835, 847 (8th Cir.2002) (citation omitted).

Over Strong's objection, the district court admitted evidence under Fed.R.Evid. 404(b) of Strong's 1987 convictions for robbery and being a felon in possession of a firearm. Strong argues that the evidence that he possessed a gun should have been excluded because it led to improper inference that having done it before, he would do it again.

Under Rule 404(b), evidence of other crimes is admissible to prove "motive, opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident." Evidence is admissible under Rule 404(b) if it is: (1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than in prejudicial effect. United States v. Green, 151 F.3d 1111, 1113 (8th Cir.1998).

1. Material Issue

At trial, Strong defended himself by asserting "that he was merely present in the same truck where the gun was found." "A defendant denies both knowledge and intent when he asserts the `mere presence' defense — that he was present, but did not know of the presence of illegal [activity]." United States v. Tomberlin, 130 F.3d 1318, 1320 (8th Cir.1997); see also United States v. Hawthorne, 235 F.3d 400, 404 (8th Cir.2000) (holding defendant's mere presence defense put his knowledge and intent at issue). In Hawthorne, we approved the use of Rule 404(b) evidence of prior drug possession "to show knowledge and intent when intent is an element of the offense charged." Id. In United States v. Harris, 324 F.3d 602 (8th Cir.), cert. denied, 540 U.S. 884, 124 S.Ct. 209, 157 L.Ed.2d 152 (2003), we affirmed the district court's admission under Rule 404(b) of "testimony by a visitor to [defendant's] home that she saw him possess a firearm prior to his arrest." Id. at 607; see also United States v. Jernigan, 341 F.3d 1273, 1281 (11th Cir.2003) ("The case law in this and other circuits establishes clearly the logical connection between a convicted felon's knowing possession of a firearm at one time and his knowledge that a firearm is present at a subsequent time (or, put differently, that his possession at the subsequent time is not mistaken or accidental)."). Strong's prior convictions address the material issue of his knowledge of the presence of the firearm and his intent to possess it.

2. Similar in Kind and Not Too Remote in Time

We have held, "`when admitted for the purpose of showing intent, the prior acts need not be duplicates, but must be sufficiently similar to support an inference of criminal intent.'" United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir.1995) (quoting United States v. Burkett, 821 F.2d 1306, 1309 (8th Cir.1987)). Strong's prior acts were similar in kind to those now in question — each involving his illegal possession of a firearm.

"To determine if evidence is too remote, `the court applies a reasonableness standard and examines the facts and circumstances of each case.'" United States v. Franklin, 250 F.3d 653, 659 (8th Cir.2001) (quoting Shoffner, 71 F.3d at 1432). In United States v. Mejia-Uribe, 75 F.3d 395, 398 (8th Cir.1996), we held the "inquiry regarding the remoteness of a prior conviction is fact specific." We stated that the answer to how long is too long depends on the theory that makes the evidence admissible. Id. "[T]here is no absolute rule regarding the number of years that can separate offenses. Rather, the court applies a reasonableness standard and examines the facts and circumstances of each case." United States v. Engleman, 648 F.2d 473, 479 (8th Cir.1981).

Here, approximately 16 years elapsed between Strong's earlier convictions and the present one. While we have "upheld the introduction of evidence relating to acts or crimes which occurred 13 years prior to the conduct challenged," United States v. McCarthy, 97 F.3d 1562, 1573 (8th Cir.1996) (citation omitted), we have "been reluctant to go beyond [that] 13-year time frame." Id. But, our reluctance should not be perceived as constituting a definitive rule of limitation. Here, we believe the evidence supports the government's theory — Strong's history of firearms convictions directly bears on his knowledge of, and intent to possess a firearm at the time of the charged offense. Based upon the facts of this case, we believe that Strong's earlier convictions are not too remote.

3. Sufficient Evidence, Probative Value, and Prejudicial Effect

The government provided sufficient evidence of Strong's prior convictions, which were testified to by Special Agent Zornes, who identified certified copies of the convictions. In Franklin we assigned great weight to the district court's balancing of evidentiary prejudice against its probative value. We held that

although admitting evidence of prior criminal conduct has some prejudicial effect on the defendant, whether this effect substantially outweighs the evidence's probative value is left to the discretion of the trial court.... Because the trial court must balance the amount of prejudice against the probative value of the evidence, this Circuit will normally defer to that court's judgment.

Franklin, 250 F.3d at 659. "Mere prejudice is not enough, however." United States v. Crump, 934 F.2d 947, 955 (8th Cir.1991). Additionally, "the presence of a limiting instruction diminishes the danger of any unfair prejudice arising from the admission of other acts." Franklin, 250 F.3d at 659. Here, in admitting the Rule 404(b) evidence, the district court gave a limiting instruction, prohibiting the jury...