USA. v. King

• Decision Date: 03 July 2001
• Docket Number: No. 00-3023,00-3023
• Citation: 254 F.3d 1098
• Parties: (D.C. Cir. 2001) United States of America, Appellee v. Kelo L. King, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1098

254 F.3d 1098 (D.C. Cir. 2001)

United States of America, Appellee v. Kelo L. King, Appellant

No. 00-3023

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 12, 2001

Decided July 3, 2001

Appeal from the United States District Court for the District of Columbia (No. 99cr00311-01)

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Sandra G. Roland and Valencia R. Rainey, Assistant Federal Public Defenders, entered appearances.

Roy W. McLeese, III, Assistant U.S. Attorney, argued the cause for appellee. With him on the briefs were Wilma A. Lewis, U.S. Attorney at the time the briefs were filed, John R. Fisher, Marian L. Borum and Jacqueline BussiereBurke, Assistant U.S. Attorneys.

Before: Ginsburg, Sentelle and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Concurring opinion filed by Circuit Judge Henderson.

Ginsburg, Circuit Judge:

Kelo King challenges his conviction and sentence for possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). King argues that (1) his conviction was based upon evidence improperly admitted at trial and (2) his sentence was unlawful in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm King's conviction because, although the district court erred in admitting some of the challenged evidence, the errors were harmless. We also affirm King's sentence because it is fully consistent with Apprendi.

I. Background

While driving in the District of Columbia, King had the misfortune of being spotted by two officers of the United States Park Police who both recognized him and noticed that the BMW he was driving bore Virginia license plates but did not have the inspection sticker required by Virginia law. See Va. Code Ann. § 46.2-1163; Russell v. United States, 687 A.2d 213, 215 (D.C. 1997) (unlawful to operate Virginia vehicle in District of Columbia without valid Virginia inspection sticker, per D.C. Mun. Regs. tit. 18, § 602.7). After stopping King the officers determined that his Virginia tags had been issued for a Ford registered to one Johnny Boston, which was the name on the license and registration that King produced at the officers' request. Subsequently, while one of the officers was speaking with King, the other, looking through the passenger window, noticed a gun wedged into the back of the sunroof.

King was arrested and charged with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). He was also cited for four motor vehicle violations: driving an unregistered vehicle, proffering a false driver's license, driving without a valid license, and lacking an inspection sticker. In securing King's vehicle following his arrest, police found in the trunk a sheathed knife with a nine-inch notched blade.

The district court denied King's motions in limine to exclude from evidence the knife, the license and registration King had produced during the traffic stop, and the Virginia tags. At trial, King called as his only witness Lakiesha Boulware, who testified that she and an acquaintance called "D" had borrowed the BMW from King earlier on the day he was arrested, and that "D" had placed his gun in the sunroof of the car and forgotten it there. The jury convicted King and the district court sentenced him to ten years in prison. In calculating his sentence, the court enhanced the base offense level under the Sentencing Guidelines because King had two prior convictions and because the firearm was stolen.

II. Analysis

King appeals both the denial of his motions in limine and the enhancement of his sentence.

A. Admission of evidence

Rule 404(b) of the Federal Rules of Evidence prohibits the admission of evidence regarding "crimes, wrongs, or acts," other than those charged, for the sole purpose of impugning the character of the accused. See United States v. Bowie, 232 F.3d 923, 927, 930 (D.C. Cir. 2000). Such evidence may be admitted under Rule 404(b), however, to "pro[ve] ... motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See also Bowie, 232 F.3d at 930. Evidence that is admissible under Rule 404 may nonetheless be excluded under Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." We review the district court's application of these Rules for abuse of discretion. See, e.g., United States v. Mathis, 216 F.3d 18, 25-26 (D.C. Cir. 2000).

King argues that having a legal, albeit vicious-looking, knife in one's trunk is relevant to one's knowledge of an illegal gun in the passenger compartment only if a person who owns such a knife might be thought the sort of person who would also have a gun; the knife is therefore inadmissible under Rule 404(b), or in the alternative, unduly prejudicial and therefore inadmissible under Rule 403. The district court disagreed and admitted the knife into evidence because it thought the knife "tends to prove knowing unlawful possession [of the gun]." Upon appeal the Government maintains the knife is relevant to King's "knowledge and intent" regarding the firearm.

Although the Government did not at trial justify admission of the knife on the grounds of knowledge and intent, we reject King's claim that the Government is barred from asserting those justifications here. The district court admitted the evidence upon those very grounds, and the Government has the right to defend its ruling. Cf. Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982) ("It is well accepted ... [that] an appellee may rely upon any matter appearing in the record in support of the judgment below").

On the merits, however, we find the district court's admission of the knife to be an abuse of its discretion. To be sure, in cases 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. See Huddleston v. United States, 485 U.S. 681, 689 (1988) ("In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor"). For example, the courts of appeals have upheld the district court's exercise of discretion to admit evidence that a defendant charged with unlawful possession of firearms had previously possessed the same weapons, United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994); United States v. Davis, 792 F.2d 1299, 1305 (5th Cir. 1986), or that the defendant simultaneously possessed other firearms for which he was not charged, United States v. Brown, 961 F.2d 1039, 1042 (2d Cir. 1992). The courts of appeals have also held it within the discretion of the district court to admit evidence regarding similar acts of possession that suggest "repetitive involvement in the same kind of criminal activity" even if they do not involve the same objects. United States v. Lego, 855 F.2d 542, 546 (8th Cir. 1988) (evidence of subsequent possession of firearms relevant to earlier possession of same); see also Bowie, 232 F.3d at 930 (evidence of earlier possession of counterfeit notes relevant to later possession of similar notes); United States v. Gomez, 927 F.2d 1530, 1534 (11th Cir. 1991) (evidence of earlier conviction for possession of firearms relevant to new charge of same because it tends to rebut defense that possession was "mere accident or coincidence"); cf. United States v. Brooks, 670 F.2d 625, 629 (5th Cir. 1982) (marijuana found with cocaine relevant to defendant's knowledge and intent in possessing the cocaine).

The Government, citing several of these precedents, argues that whether King possessed a knife, which may after all be used as a weapon, is therefore probative of whether he knowingly possessed the gun in the same vehicle. We disagree. Unlike a gun, possession of which is unlawful for innocents and felons alike in the District of Columbia, even a felon may lawfully possess a knife; a knife with a notched blade has licit and nonviolent uses, as in hunting and fishing; and stored in the locked trunk of King's car, the knife was out of his reach while he was in passenger compartment where the gun was found. We do not think learning that there was a knife locked in the defendant's trunk could have affected the jury's view of whether he knew about the gun in the sunroof unless the jurors reasoned that someone who has one object that could be used as a weapon is more likely to have another that is an undoubted weapon, the gun -which is precisely the sort of reasoning that Rule 404(b) is meant to obviate.^* Compare, e.g., People of Territory of Guam v. Shymanovitz, 157 F.3d 1154, 1158-59 (9th Cir. 1998) (possession of lawful erotic literature inadmissible under Rule 404(b) because irrelevant to whether defendant engaged in unlawful sexual conduct with minors).

Nonetheless, we do not disturb King's conviction because admission of the knife into evidence was a harmless error. See, e.g., United States v. Johnson, 216 F.3d 1162, 1166 n.4 (D.C. Cir. 2000) ("[N]onconstitutional error is harmless if it did not have 'substantial and injurious effect or influence in determining the jury's verdict' ") (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The knife was at most tangential to the Government's case -that King had stashed a gun within easy reach in the passenger compartment of his car -and the prosecution treated it accordingly. Although the prosecutor asked both arresting officers to describe and identify the knife for the jury, and to recount its placement into the chain of custody, she made at most one substantive reference to the knife, an ambiguous comment in her closing statement that King claims, and we will assume, related to the knife. In these...