United States v. Demetrius Green

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 24, 2025 Decided August 12, 2025

No. 23-3100

UNITED STATES OF AMERICA,

APPELLEE

v.

DEMETRIUS GREEN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cr-00222-1)

Molly E. Runkle, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender. Tony Axam Jr., Assistant

Federal Public Defender, entered an appearance.

Eric Hansford, Assistant U.S. Attorney, argued the cause for

appellee. With him on the brief were Matthew M. Graves, U.S.

Attorney, at the time the brief was filed, and Chrisellen R. Kolb

and Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: HENDERSON, PAN and GARCIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Opinion concurring in part and concurring in the judgment

filed by Circuit Judge GARCIA.

2

KAREN LECRAFT HENDERSON, Circuit Judge: On

January 20, 2020, reports of gunfire took police to a rowhouse

in Southeast Washington, D.C. There, officers found spent

shell casings but no witnesses and no suspect. They reviewed

footage from a nearby pole-mounted surveillance camera,

installed days earlier for an unrelated investigation. The video

showed someone stepping from the rowhouse, firing a gun into

the air and retreating inside. Later that day, officers executed

a search warrant at the residence. Inside, they recovered a large

quantity of narcotics, digital scales and a firearm. As the

officers entered, Demetrius Green tried to flee through the back

door but was arrested. A jury later convicted him of several

federal drug and firearm offenses based on the surveillance

footage and the evidence recovered from the house.

Green now challenges his convictions on three grounds.

First, he contends that the use of the pole camera violated the

Fourth Amendment, asserting that it constituted a warrantless

search infringing on his reasonable expectation of privacy.

Second, he argues that the evidence at trial was insufficient to

establish that he constructively possessed the drugs found in

the rowhouse. Third, he claims that the district court erred by

admitting two exhibits—a photograph of a bag of powder on

top of a digital scale and a text message referring to a drug

sale—arguing that both amounted to impermissible character

evidence and any probative value was substantially outweighed

by the risk of unfair prejudice. We disagree. The use of the

pole-camera footage did not constitute a search under the

Fourth Amendment. The evidence at trial was sufficient to

establish constructive possession, given Green’s documented

connection to the residence and the items recovered. And the

challenged exhibits were relevant and properly admitted.

Alternatively, even if the exhibits were admitted in error, any

error was harmless. Accordingly, we affirm.

3

I. Background

A. Factual Background

In the early morning hours of January 20, 2020, an officer

of the Metropolitan Police Department (MPD) heard gunshots

in her patrol area in Southeast Washington, D.C. ShotSpotter

(a gunshot-detection system) also alerted nearby, close to

917 Wahler Place, Washington, D.C. (917 Wahler), a

rowhouse in a public-housing complex. When officers

responded, they discovered several spent shell casings

scattered on the rear steps of the residence but saw no

immediate suspects or eyewitnesses.

Seeking more evidence, MPD officers reviewed

surveillance footage from a pole-mounted camera that had been

installed two days earlier by the Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF), which was conducting a

separate investigation. An ATF agent testified that the camera

was monitoring the open-air courtyard behind the rowhouses

in response to reports of drug trafficking and gun violence in

the area. The camera continuously recorded activity in the

shared courtyard and the rear entryways of several rowhouses,

including 917 Wahler. See Gov’t Ex. 52.

When MPD officers examined the footage from the time

of the reported gunfire, they observed an individual emerging

from the rear door of 917 Wahler at around 4:45 a.m. The

individual—a male dressed in a dark hooded sweatshirt, white

pants and tennis shoes—raised a firearm and appeared to

discharge multiple rounds into the air before retreating inside.

Id. The handgun’s muzzle flash was clearly visible on the

recording. See Gov’t Exs. 53 & 54. The footage also showed

a male stepping out of the same door at around 12:25 p.m. See

Gov’t Ex. 52. An ATF agent later identified him as

Demetrius Green.

Based on that investigation, officers applied for and

obtained a search warrant for unlawful firearms or ammunition

4

at 917 Wahler. The warrant was executed later the same day.

As officers approached, Green attempted to exit through the

back door but, after seeing police, retreated into the residence.

Officers entered the residence and took Green into custody

without incident. No one else was present at the house. In the

kitchen, officers discovered a clear plastic bag containing 700

oxycodone pills, sorted into smaller bags based on strength,

hidden inside a toaster oven. In a nearby cabinet, officers

recovered three bags containing 288 hydromorphone pills

(another opioid). In other cabinets, they discovered sandwich

bags, two digital scales, a Pyrex cup containing white residue

and a bank card bearing the name “Demetrius Green.”

Upstairs, officers found a loaded firearm—a Glock 23

fitted with a “conversion device” that allowed the handgun to

fire automatically. 1 DNA testing on the gun revealed a major

male contributor and a minor contributor. A DNA expert later

excluded Green as the major contributor but concluded that

there was “moderate support” that he was the minor

contributor. App. 870-71. A firearms examiner determined

that the recovered shell casings were from rounds fired by that

gun. There were three bedrooms upstairs (identified at trial as

Bedrooms A, B and C). Of the three, Bedroom A appeared to

be the most occupied room. There, officers found a driver’s

license, a learner’s permit and a bank card, all bearing Green’s

name. They also found a shoebox containing thirty-three small

packages of crack cocaine, several articles of clothing

consistent with those worn by the shooter appearing on the

pole-camera footage and a set of green-and-black headphones.

In Bedroom B, they found a shoebox containing a DHL label

addressed to Green at 917 Wahler. There was also a pre-

employment drug testing form in Green’s name and a notarized

letter—dated several months earlier—from his sister stating

1

The ATF classifies such devices as “machineguns” within the

meaning of 26 U.S.C. § 5845(b). See 27 C.F.R. § 479.11

(invalidated in part by Garland v. Cargill, 602 U.S. 406 (2024)).

5

that Green was temporarily residing with her at 102 Irvington

Street. Green’s identification cards listed the same address. In

Bedroom C, officers found a “significant amount” of cash but

did not seize it. App. 690-91.

When officers arrested Green, he had a Motorola

cellphone and another pair of green-and-black headphones.

Officers later extracted information from the phone, which

included an array of photographs, GPS data, text messages and

emails, some of which appeared to link Green to 917 Wahler.

Relevant here, the government later introduced two exhibits

from that data extraction that Green challenges: (1) a

photograph of a bag filled with white powder resting on a

digital scale reading “13.4g” (Exhibit 101), and (2) a text

message Green sent on December 30 saying: “I got sum tree

come support my hustle” (Exhibit 110).

B. Procedural Background

On October 15, 2020, a grand jury indicted Green on

unlawful possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1) (Count 1); unlawful

possession of a machinegun in violation of 18 U.S.C. § 922(o)

(Count 2); three counts of unlawfully possessing with intent to

distribute cocaine base, oxycodone and hydromorphone in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Counts 3-5); and

possessing a machinegun in furtherance of a drug trafficking

offense in violation of 18 U.S.C. § 924(c)(1)(B)(ii) (Count 6).

The government later voluntarily dismissed Count 2. App. 79.

Before trial, Green moved to suppress the footage obtained

from the pole camera, arguing that its use violated the Fourth

Amendment prohibition on unreasonable searches.

App. 40-48. The district court denied the motion. App. 373-

84. It was not convinced that Green had established any Fourth

Amendment standing in relation to 917 Wahler, given his

unclear connection to the residence. App. 382-83. But even

assuming Green had standing, the court found that he did “not

have an expectation of privacy in the particular exposed,

6

undifferentiated space captured [by the pole camera],

particularly given the limited period of time of the surveillance

and the manner in which the surveillance was being

conducted.” App. 383. And the court determined that, to the

extent Green did have any expectation of privacy in that space,

“he voluntarily waived it” by firing the handgun there. Id.

The government moved in limine to admit two exhibits

from Green’s cellphone: the photograph of a digital scale with

a bag of powder (Exhibit 101) and the text message referencing

“tree” (Exhibit 110). The district court admitted both under

Federal Rules of Evidence 404(b) and 403. As to Exhibit 101,

the court found that the photograph’s presence on Green’s

cellphone was “relevant to show identity, knowledge and

intent” and concluded that Green’s objections went “largely to

[the exhibit’s] weight and not its admissibility.” App. 431-33.

As to Exhibit 110, the court acknowledged that the message

referenced marijuana rather than the drugs charged in the

indictment but held it was nevertheless “relevant to the

question of whether the defendant had the intent to distribute

[narcotics] on January 20, 2020.” App. 103. The court noted

that any risk of unfair prejudice could be mitigated by a limiting

instruction under Rule 105, clarifying that the exhibits were not

to be used for an improper purpose. App. 103, 432. At trial,

however, Green’s counsel opposed giving such an instruction,

explaining that doing so might unduly emphasize the

exhibits—“a strategic trial decision made by thoroughly vetted

counsel.” App. 1183. The district court required counsel to

confirm that, by declining the instruction, he was “waiving the

right to argue later that the jury must have used it for an

improper purpose.” App. 1182-83. With that understanding,

no limiting instruction was given as to either exhibit.

After a five-day trial, the jury convicted Green on four of

five counts, failing to reach a verdict on Count 6. App. 107-

08. The government later dismissed that charge. App. 105.

On June 16, 2023, the district court sentenced Green to 84

months of imprisonment, followed by 36 months of supervised

7

release. Green timely appealed. The district court had

jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction

under 28 U.S.C. § 1291.

II. Standards of Review

Green’s challenges require us to apply different standards

of review. First, in reviewing a denied motion to suppress, we

review “legal conclusions de novo and factual findings for clear

error.” United States v. Brown, 125 F.4th 1186, 1201

(D.C. Cir. 2025).

Second, in assessing a challenge to the sufficiency of the

evidence, we examine the evidentiary record de novo but

“consider it in the light most favorable to the government,

and . . . will affirm a guilty verdict where ‘any rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt.’” United States v. McGill, 815

F.3d 846, 917 (D.C. Cir. 2016) (quoting United States v. Wahl,

290 F.3d 370, 375 (D.C. Cir. 2002)).

Third, we review the district court’s admission of evidence

under Rules 403 and 404(b) for an abuse of discretion. Id.

at 880. But “[a]n erroneous admission of other crimes

evidence must be disregarded as harmless error unless it had a

substantial and injurious effect on the jury’s verdict.” Id.

(citation modified).

III. Analysis

Green raises three issues on appeal. First, he contends that

the pole-camera evidence violated his Fourth Amendment

rights and should have been suppressed. Second, he asserts that

there was insufficient evidence that he constructively

possessed the drugs found at 917 Wahler. Third, he challenges

the admission of Exhibits 101 and 110 as impermissible

character evidence and improperly risking unfair prejudice.

8

A. Pole-Camera Evidence

Green’s primary claim is that the district court erred by

denying his motion to suppress the video evidence recovered

from the pole camera with an unobstructed view of the rear of

917 Wahler. Accessing that footage, he argues, was an

unreasonable search that violated his reasonable expectation of

privacy as protected by the Fourth Amendment. He contends

that because the pole-camera evidence was obtained

unlawfully and was the foundation for the later warrant, the rest

of the evidence against him should also have been excluded as

tainted by that unconstitutional search.

The Fourth Amendment provides: “The right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

violated.” U.S. Const. amend. IV. Warrantless searches are

ordinarily “per se unreasonable under the Fourth

Amendment—subject only to a few specifically established

and well-delineated exceptions.” Katz v. United States, 389

U.S. 347, 357 (1967). If the government oversteps that

constitutional boundary, the remedy is generally exclusion—

courts must suppress the unlawfully obtained evidence and any

derivative evidence tainted by the violation unless an exception

applies. Utah v. Strieff, 579 U.S. 232, 237 (2016).

The fundamental question Green poses is whether the

government’s use of a pole camera under the circumstances

here constituted a “search” within the meaning of the Fourth

Amendment. The U.S. Supreme Court has set forth two tests

to assess whether government conduct constitutes a search.

First, the “common-law trespassory test” considers whether the

government has physically intruded on private property.

United States v. Jones, 565 U.S. 400, 409 (2012); see also

Florida v. Jardines, 569 U.S. 1, 5-10 (2013). That test is not

relevant here because the pole camera did not physically

intrude at 917 Wahler. Second, the government performs a

search when it intrudes upon a defendant’s reasonable

9

expectation of privacy. See Katz, 389 U.S. at 361 (Harlan, J.,

concurring); Jones, 565 U.S. at 406. Determining whether

such an expectation exists involves a two-step inquiry: first,

whether the defendant exhibited an actual, subjective

expectation of privacy; and second, whether that expectation is

one society is prepared to recognize as objectively reasonable.

Smith v. Maryland, 442 U.S. 735, 740-41 (1979). If both

prongs are satisfied, the conduct qualifies as a search and any

resulting evidence is subject to suppression absent a warrant or

a valid exception. See, e.g., Carpenter v. United States, 585

U.S. 296, 304 (2018). Here, Green’s challenge implicates two

strands of Fourth Amendment jurisprudence: the public-view

doctrine and the mosaic theory. We consider each in turn.

1. Public View

The Supreme Court has consistently held that individuals

have no reasonable expectation of privacy in areas exposed to

the public. See Katz, 389 U.S. at 351 (“What a person

knowingly exposes to the public, even in his own home or

office, is not a subject of Fourth Amendment protection.”);

Kyllo v. United States, 533 U.S. 27, 32 (2001) (“[E]xamining

the portion of a house that is in plain public view . . . is no

‘search’ at all” under the Fourth Amendment.). It is nearly

axiomatic that “Fourth Amendment protection of the home has

never been extended to require law enforcement officers to

shield their eyes when passing by a home on public

thoroughfares.” California v. Ciraolo, 476 U.S. 207, 213

(1986); see also Dow Chem. Co. v. United States, 476 U.S. 227,

239 (1986) (taking aerial photos of an industrial plant was not

a search); Collins v. Virginia, 584 U.S. 586, 600 (2018)

(affirming the “ability to observe inside curtilage from a lawful

vantage point”). Our court has similarly recognized that “there

is no reasonable expectation of privacy in the movement of

objects outside a residence where they can be viewed from a

public route or adjoining premises, nor in activities conducted

in the curtilage of a home, even behind a hedge or fence, if they

may be viewed by naked-eye observation.” Brennan v.

10

Dickson, 45 F.4th 48, 62 (D.C. Cir. 2022) (citation modified)

(discussing a constitutional challenge to an agency rule

regarding drone flights). Courts have referred to this principle

as the “public-view doctrine”: an observation of an area

exposed to public sight from lawful vantage points does not

constitute a Fourth Amendment search. 2

Both Carpenter and Jones also noted that the public-view

doctrine remains good law. See Carpenter, 585 U.S. at 316

(“We do not . . . call into question conventional surveillance

techniques and tools, such as security cameras.”); Jones, 565

U.S. at 412 (“This Court has to date not deviated from the

understanding that mere visual observation does not constitute

a search.”). Apart from Judge Barron’s concurrence in Moore-

Bush, every circuit court to consider whether a pole camera

observing a public area violates a reasonable expectation of

privacy has held it does not. 3 Instead, pole cameras “qualify as

2

The government incorrectly refers to this concept as the “plain-

view doctrine,” which typically applies to the permissible seizure of

visible contraband without a warrant. See, e.g., Gov’t Br. 34. The

principle at issue here, which involves whether an individual has a

reasonable expectation of privacy in his public conduct, is a related

but distinct doctrine. See 1 Wayne R. LaFave, Search & Seizure

§ 2.2(a) & n.10 (6th ed. 2024) (discussing the distinction). We refer

to the latter principle as the public-view doctrine.

3

Nearly every circuit to have considered the issue has held that

the use of pole cameras is not a search under the Fourth Amendment.

See United States v. Bucci, 582 F.3d 108, 116-17 (1st Cir. 2009);

United States v. Harry, 130 F.4th 342, 348-51 (2d Cir. 2025); United

States v. Vankesteren, 553 F.3d 286, 291 (4th Cir. 2009); United

States v. Dennis, 41 F.4th 732, 740-41 (5th Cir. 2022), cert. denied,

143 S. Ct. 2616 (2023); United States v. May-Shaw, 955 F.3d 563,

567-69 (6th Cir. 2020); United States v. Tuggle, 4 F.4th 505, 510-11

(7th Cir. 2021); United States v. Hay, 95 F.4th 1304, 1313-18 (10th

Cir. 2024), cert. denied, 145 S. Ct. 591 (2024); United States v.

Gregory, 128 F.4th 1228, 1240-44 (11th Cir. 2025).

11

a conventional surveillance technique” to observe areas open

to public view, as specifically blessed by Carpenter. Tuggle, 4

F.4th at 526 (citation modified).

Under the standard application of the public-view

doctrine—that is, without considering the mosaic theory—this

case is not a close one.

The first question under Katz is whether Green exhibited

an actual, subjective expectation of privacy in the rear of

917 Wahler Place. 4 A defendant manifests such a desire if he,

at a minimum, takes “normal precautions to maintain his

privacy,” such as installing a high fence to prevent “casual,

accidental observation” from sidewalk traffic. Ciraolo, 476

U.S. at 211-12 (quoting Rawlings v. Kentucky, 448 U.S. 98,

105 (1980)); see also Florida v. Riley, 488 U.S. 445, 450

(1989) (holding that a defendant who had taken

“precautions . . . against ground-level observation” exhibited a

subjective expectation of privacy). Several circuits have noted

the relevance of defendants’ failures to exhibit a subjective

expectation of privacy in areas surveilled by pole cameras. See,

e.g., United States v. House, 120 F.4th 1313, 1317 (7th Cir.

2024); Harry, 130 F.4th at 348. 5

The First Circuit, sitting en banc, affirmed the use of pole-

camera footage in a criminal case based on its earlier decision in

Bucci and applying the good-faith exception to the warrant

requirement, but evenly split over whether the surveillance

constituted a search after Carpenter. Contrast United States v.

Moore-Bush, 36 F.4th 320, 328 (1st Cir. 2022) (Barron, J.,

concurring) (finding a search), with id. at 363 (Lynch, J., concurring)

(finding no search).

4

The issue is not whether Green had such an expectation but

whether he showed one by seeking to preserve his actions as private.

See Smith, 442 U.S. at 740.

5

Some jurists and scholars have dismissed the subjective prong

of Katz as a “phantom doctrine” due to its frequent minimization.

Orin Kerr, Katz Has Only One Step: The Irrelevance of Subjective

12

Green exhibited no expectation of privacy in the rear of

917 Wahler. As the district court observed, the area was “well

lit,” “entirely open to public view” and was not differentiated

“from the space behind any of the other adjacent townhouses.”

App. 377. Although a chain-link fence surrounded the rear

area of all the townhouses, no fence or hedge separated

917 Wahler from its neighbors. Id. Green has also not

established—and indeed disclaims—that 917 Wahler was his

residence or abode, where a subjective expectation of privacy

might be more readily established. Granted, Green is correct

that none of those facts precludes him from establishing a

subjective expectation of privacy, see Appellant Br. 37, but he

has offered nothing in their stead. Moreover, if Green ever did

show a subjective expectation of privacy, he plainly did not

when he stepped outside to fire a handgun into the air in full

view of the neighborhood. See App. 378. 6

Green fares no better under Katz’s second prong. The rear

of 917 Wahler was plainly visible from multiple public vantage

points—including the adjacent parking lot, a public walkway

and the windows of nearby residences. See App. 377. The pole

camera was mounted in a lawful location and recorded only

what was already in plain sight. It did not enter the property,

Expectations, 82 U. Chi. L. Rev. 113, 115 (2015); Carpenter, 585

U.S. at 346 (Thomas, J., dissenting). But the trend is unsurprising—

defendants can often easily show at least some minimal effort to

conceal misdeeds or contraband. If such an intent is less obvious, a

manifest expectation can still be relevant. Moreover, although the

Supreme Court has not required a showing of a manifest subjective

expectation of privacy in some recent cases involving the mosaic

theory (discussed infra), it has also recognized that part of what

renders certain information protected is that individuals take steps

“to preserve [it] as private.” Carpenter, 585 U.S. at 310. In public-

view cases, at least, the consideration remains relevant.

6

Our conclusion aligns with the district court’s view, although

cast in different terms. See App. 383 (describing Green as having

“voluntarily waived” his expectation of privacy).

13

peer through barriers or use any technology to reveal what was

otherwise hidden. Cf. Kyllo, 533 U.S. at 40 (holding that use

of “a device that is not in general public use” can sometimes

constitute a search). It captured what any passerby or neighbor

could have seen with the naked eye. That the observation was

recorded and extended over time does not alter that analysis.

The camera saw no more—and, except for its elevation, no

differently—than the public could have seen all along. See

Gov’t Ex. 52. Under the public-view doctrine, then, the

surveillance here did not violate any objectively reasonable

expectation of privacy. 7

2. The Mosaic Theory

The crux of Green’s challenge—indeed all of the recent

challenges to the use of pole cameras—is that the aggregation

of surveillance over time violates a reasonable expectation of

privacy, even if any brief or isolated observation would not.

The argument rests on the so-called “mosaic theory,” which

suggests that the government’s collection of numerous discrete

data points over time can create an impermissibly invasive

picture of an individual’s private life, even if any individual

7

The parties devote substantial attention to whether the rear step

at 917 Wahler qualifies as curtilage. But that inquiry does little work

in the public-view analysis. The Fourth Amendment protects

curtilage as an extension of the home, United States v. Dunn, 480

U.S. 294, 300-01 (1987); areas that do not meet that definition are

“open fields” subject to warrantless search, see Oliver v. United

States, 466 U.S. 170, 177-80 (1984). That distinction plays a central

role when a court applies the trespass-based test for searches, as set

out in Jardines, 569 U.S. at 5-7. But where no trespass has occurred,

as here, and the government has merely observed from a lawful

vantage point, the curtilage question has little significance. See

Moore-Bush, 36 F.4th at 369-70 (Lynch, J., concurring) (critiquing

attempts to merge trespass-based reasoning with public-view

analysis). Thus, whether the back step is part of 917 Wahler’s

curtilage is irrelevant to our analysis.

14

data point, standing alone, would not constitute a search. See

generally Tuggle, 4 F.4th at 517 (collecting academic

discussions of the theory).

The mosaic theory first emerged in our court’s decision in

United States v. Maynard, in which case we concluded that

tracking a car using a planted GPS device constituted a search.

615 F.3d 544, 560-62 (D.C. Cir. 2010), aff’d sub nom. Jones,

565 U.S. at 400. We held:

[T]he whole of a person’s movements over the

course of a month is not actually exposed to the

public because the likelihood a stranger would

observe all those movements is not just remote,

it is essentially nil. It is one thing for a passerby

to observe or even to follow someone during a

single journey as he goes to the market or

returns home from work. It is another thing

entirely for that stranger to pick up the scent

again the next day and the day after that, week

in and week out, dogging his prey until he has

identified all the places, people, amusements,

and chores that make up that person’s hitherto

private routine.

Id. at 560. The court continued: “Prolonged surveillance

reveals types of information not revealed by short-term

surveillance, such as what a person does repeatedly, what he

does not do, and what he does ensemble. These types of

information can each reveal more about a person than does any

individual trip viewed in isolation.” Id. at 562.

The Supreme Court reviewed that decision in United

States v. Jones, 565 U.S. at 400. There, the Court’s majority

avoided the question of whether aggregated data could ever

amount to a search, relying instead on the trespassory test. Id.

at 404-07. Concurring, Justice Alito—joined by Justices

Ginsburg, Breyer and Kagan—noted that, although “relatively

short-term monitoring of a person’s movements on public

15

streets accords with expectations of privacy,” it was possible

that “longer term GPS monitoring” could impinge on such

expectations. Id. at 430 (Alito, J., concurring). Writing

separately, Justice Sotomayor similarly voiced a concern that

the capabilities of GPS monitoring—including its

inexpensiveness, precision, efficiency and limitless storage—

posed serious concerns: “GPS monitoring generates a precise,

comprehensive record of a person’s public movements that

reflects a wealth of detail about [a defendant’s] familial,

political, professional, religious, and sexual associations.” Id.

at 415 (Sotomayor, J., concurring). Those attributes, she

wrote, should be considered when assessing societal

expectations of privacy. Id. at 416.

Since Jones, the Supreme Court has signaled a continuing

willingness to consider the aggregation of data as distinctively

problematic. See, e.g., Riley v. California, 573 U.S. 373, 394

(2014) (noting that the “sum of an individual’s private life” can

be adduced from a warrantless search of a cellphone). In

United States v. Carpenter, the Court concluded that collecting

seven days of cell-site location information (CSLI) was a

search under the Fourth Amendment (despite precedent

suggesting a contrary result). 585 U.S. at 315, 310 n.3. 8 The

Court endorsed the theory propounded by Justices Sotomayor

and Alito and found that “individuals have a reasonable

expectation of privacy in the whole of their physical

movements,” even if exposed to public view, and that

accessing the CSLI data contravened that expectation. Id.

at 310-11. It noted that the CSLI data presented “even greater

privacy concerns” than the vehicle GPS data in Jones because

a cellphone “follows its owner beyond public thoroughfares

and into private residences, doctor’s offices, political

headquarters, and other potentially revealing locales,” allowing

8

The government’s primary argument in that case was that an

individual usually has no expectation of privacy in information

voluntarily given to third parties. See Smith, 442 U.S. at 743-44.

16

the government to create a comprehensive map of a person’s

movements with “just the click of a button.” Id. at 311-12.

At the same time, the Court cautioned that its decision was

“a narrow one” and that it did not “call into question

conventional surveillance techniques and tools, such as

security cameras.” Id. at 316. It also left undisturbed the

holding in Knotts, in which case it held that using a more

“rudimentary tracking” device that simply “augmented visual

surveillance” for discrete intervals was not a search. Id. at 306

(citing United States v. Knotts, 460 U.S. 276, 281-85 (1983))

(citation modified).

Pole cameras pose a special challenge to the mosaic

theory. In one sense, they are among the most common forms

of surveillance. They rely on a public, unobstructed vantage

point and off-the-shelf technology, not unlike an agent with

binoculars perched atop a telephone pole. But unlike that

unfortunate agent—who will get bored, blink or need to

stretch—a pole camera never looks away. It records

everything, 24/7, for weeks or months, even years, preserving

everything it sees. By aggregating that data, critics worry, the

government can reconstruct not only what happens at a

location, but also the patterns and relationships of the

individuals who pass through it. Little about the underlying

camera technology has changed in recent years but Carpenter’s

embrace of the mosaic theory has made pole-camera challenges

newly relevant to the Fourth Amendment. And as other

technologies like artificial intelligence and facial recognition

improve, the potential capabilities of ubiquitous cameras may

grow exponentially.

Still, other circuit courts have consistently rejected

attempts to extend the mosaic theory to pole cameras. See

supra n.3. Those decisions primarily rely on the continuing

vitality of the public-view doctrine as the Supreme Court has

articulated it, including Carpenter’s reassurance that it did not

invalidate the use of traditional surveillance techniques like

17

“security cameras.” See, e.g., Tuggle, 4 F.4th at 525-26

(quoting Carpenter, 585 U.S. at 316). They also sometimes

note that, even if pole-camera surveillance could violate the

Fourth Amendment, the duration of the evidence in their

respective cases was not sufficient to establish such a violation.

See, e.g., id. (18 months permissible but noting the “obvious

line-drawing problem: How much pole camera surveillance is

too much?”); Harry, 130 F.4th at 348 (50 days); Hay, 95 F.4th

at 1316-17 (68 days); see also Carpenter, 585 U.S. at 322-23

(Kennedy, J., dissenting) (deriding the arbitrariness of the

majority’s six-day cutoff).

More fundamentally, there seems a material difference

between the types of data the Supreme Court has found to

implicate mosaic-type concerns—such as omnipresent location

tracking—and the more limited information a fixed pole

camera can capture. The cell-site location data in Carpenter,

like the GPS data in Jones, “provide[d] an all-encompassing

record of the holder’s whereabouts,” revealing “not only his

particular movements, but through them his ‘familial, political,

professional, religious, and sexual associations.’” Carpenter,

585 U.S. at 311 (quoting Jones, 565 U.S. at 415 (Sotomayor,

J., concurring)). Those kinds of data have a “retrospective

quality” that allows the government to reconstruct a suspect’s

past—surveilling him before he was ever a suspect—and to

access “a category of information otherwise unknowable.” Id.

at 312.

By contrast, the observational power of a single pole

camera is both fixed and limited. The Fourth Amendment

“protects people, not places,” Katz, 389 U.S. at 351, so the

simple fact that a public-facing camera records a location

continuously is not itself constitutionally suspect. The question

is what the government in fact learns about an individual from

that camera’s limited perspective. The information may still

be meaningful—agents might see when a person comes and

goes, who visits him or how often he mows the lawn—but it

would tell them nothing about him outside the frame. The

18

footage, in other words, “only depict[s] one small part of a

much larger whole.” Tuggle, 4 F.4th at 524. There is a

difference between location-tracking technologies, which

follow a person broadly but shallowly, and fixed surveillance

tools, which observe narrowly but in greater depth. As an

analogy, if an individual’s daily patterns were the surface of the

ocean, CSLI or GPS data would be a buoy drifting across the

water, reporting any contacts along the way. But a pole camera

is anchored in place—it might provide complete information

about the reef it rests on but say little about the sea beyond.

In any event, this case is a poor candidate for applying the

mosaic theory to pole-camera surveillance. The footage here

spanned only two days—far shorter than the weeks or months

involved in other cases where courts have had reservations

about cumulative observation. Given that brief duration, the

government had no opportunity to compile a retrospective

record of Green’s movements or reconstruct his patterns of life.

Nor did the footage itself reveal much—the camera captured

just two fleeting moments in which Green stepped outside,

offering no insight into his associations, routines or private

conduct in the manner condemned in Carpenter. Whatever the

outer bounds of the mosaic theory may be, they are not

approached here. This was short-term, public-facing

surveillance, limited in scope. It did not implicate the privacy

concerns the mosaic theory is intended to address. 9

We emphasize, however, the limits of our holding. We do

not suggest that pole-camera surveillance could never amount

to a Fourth Amendment search. In another case, the technology

might be used over longer periods, with more cameras, or in

combination with other tools—such as facial recognition,

9

The parties dispute whether and how Katz’s first prong applies

to a case in which the defendant relies on the mosaic theory. We

need not resolve that dispute because we hold that Green

independently fails to establish an objectively reasonable expectation

of privacy on these facts.

19

automated tracking or artificial intelligence—to build a far

more comprehensive portrait of an individual’s life. Whether

such surveillance would raise constitutional concerns,

however, is a question left for another day.

In sum, the rear of 917 Wahler was exposed to public view

and the surveillance was brief and unsophisticated. Under the

public-view doctrine, Green lacked any objectively reasonable

expectation of privacy. And because the observation was both

limited and discrete, the mosaic theory does not change that

result. 10

B. Sufficiency of the Evidence

Green next challenges the sufficiency of the evidence

supporting his constructive possession of the drugs

undergirding three of his convictions. To convict Green, the

government was required to prove that Green possessed crack

cocaine for Count 3, oxycodone for Count 4 and

hydromorphone for Count 5. See App. 37-38. Green contends

that there was insufficient evidence that he had constructive

possession of any of those drugs.

In a challenge to the sufficiency of the evidence, we

consider the evidentiary record de novo but “consider it in the

light most favorable to the government, and . . . will affirm a

guilty verdict where ‘any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt.’” McGill, 815 F.3d at 917 (quoting Wahl, 290 F.3d

at 375). That is a “highly deferential standard,” reflecting that

the jury is “entitled to draw a vast range of reasonable

inferences from evidence, but may not base a verdict on mere

10

In light of our holding, we do not consider Green’s Fourth

Amendment standing to challenge the use of the pole-camera

footage, see Byrd v. United States, 584 U.S. 395, 411 (2018), or

whether the good-faith exception to the warrant requirement could

apply to the police officers’ conduct here, see Davis v. United States,

564 U.S. 229, 238-41 (2011).

20

speculation.” United States v. Slatten, 865 F.3d 767, 792 (D.C.

Cir. 2017) (citation modified).

Possession of contraband may be either actual or

constructive. See United States v. Alexander, 331 F.3d 116,

127 (D.C. Cir. 2003). Actual possession requires “direct

physical control.” Henderson v. United States, 575 U.S. 622,

626 (2015). Because Green was not found in actual possession

of any controlled substances, the government had to prove that

he constructively possessed them. “Constructive possession is

established when a person, though lacking such physical

custody, still has the power and intent to exercise control over

the object,” thus “maintaining control” over the object. Id. We

generally permit an inference of constructive possession in two

circumstances. First, it may be inferred that a “sole occupant”

of a residence exercises dominion and control over its entire

contents. United States v. Morris, 977 F.2d 617, 620 (D.C. Cir.

1992) (“A jury is entitled to infer that a person exercises

constructive possession over items found in his home.”).

Alternatively, if the home is shared or if the defendant is simply

discovered close to the contraband, there must be other

evidence connecting him to it. See United States v. Dorman,

860 F.3d 675, 679-81 (D.C. Cir. 2017). For example,

“connection with a gun, proof of motive, a gesture implying

control, evasive conduct, or a statement indicating involvement

in an enterprise—coupled with proximity may suffice.”

Alexander, 331 F.3d at 127 (citation modified).

Green argues that no reasonable jury could find that he was

the sole occupant of 917 Wahler because evidence suggested a

link to at least one other person, including a bank card in the

name of “Roneka Eaton.” See Appellant Br. 45-47. He is

incorrect.

A jury could have permissibly found that Green was the

sole occupant of 917 Wahler. As described above, one room

of the residence was the most lived in and it was full of Green’s

possessions. Indeed, Green’s possessions were found

21

throughout the house, including in multiple bedrooms and the

kitchen. Cf. United States v. Dykes, 406 F.3d 717, 722 (D.C.

Cir. 2005) (holding that a defendant constructively possessed

contraband where his personal belongings were found in the

same bedroom as drugs and paraphernalia). There was further

evidence that Green had used 917 Wahler for some time,

including a shipping label bearing his name along with several

text messages and emails from his cellphone linking him to

917 Wahler. See, e.g., App. 795-802. Law enforcement also

observed Green in the pole-camera footage as the only

occupant for the day and night before his arrest and no one else

was seen coming or going during that time.

It is true that Green was neither the owner nor lessee of

917 Wahler and some items were discovered that did not

appear to be his. For example, Green points to Eaton’s bank

card and a letter addressed to “Ronnika Jennings.” Appellant

Br. 45-46. There was also evidence that Green was temporarily

living with his sister on Irvington Street. Id. at 46. But much

of that evidence was contradicted. See, e.g., App. 688 (ATF

agent’s testimony that she had found no evidence of a woman

living at 917 Wahler). And, as the government points out,

although that evidence might have led a jury to find that Green

was not an occupant of 917 Wahler, none of that evidence

would require it to do so. See Dykes, 406 F.3d at 722 (noting

that the jury may infer dominion and control over a residence

even if it is shared, although the inference may be less strong);

see also Morris, 977 F.2d at 620. Because the jury could have

reasonably concluded that Green exercised dominion and

control over the whole residence, that is enough.

In sum, there was sufficient evidence for the jury to

conclude that Green was the sole occupant of 917 Wahler and

thus was in constructive possession of all of the contraband

discovered therein.

22

C. Evidentiary Issues

Green finally challenges the district court’s admission of

Exhibits 101 and 110 under Federal Rules of Evidence 404(b)

and 403. Exhibit 101 consists of a photograph found on

Green’s cellphone depicting a white powdery substance on a

digital scale and Exhibit 110 contains a text message in which

Green apparently inquired about selling marijuana (“I got sum

tree come support my hustle”). See App. 207, 236.

1. Admissibility

Relevant evidence is admissible, subject to certain limits.

Fed. R. Evid. 402. Whether a piece of evidence is relevant

turns on whether it tends to make any fact of consequence to

the determination of the action more or less probable. Fed. R.

Evid. 401. Whether a piece of evidence is relevant may depend

on an underlying factual predicate. For example, a photograph

is relevant only if there is sufficient evidence to establish that

it depicts what the proponent claims it does. In such

circumstances, a proponent must produce enough evidence to

permit a reasonable jury to find the predicate fact by a

preponderance of the evidence. Fed. R. Evid. 104(b);

Huddleston v. United States, 485 U.S. 681, 689-90 (1988).

Rule 404(b)(1) separately restricts one type of otherwise

relevant evidence—that offered to prove a criminal character

or propensity (i.e., that because a defendant committed a

previous crime, he more likely committed the charged one).

The prohibition does not apply, however, if the same evidence

is offered for other purposes “such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Fed. R. Evid.

404(b)(2). Even if the evidence could conceivably be used in

an improper way, it is still admissible under Rule 404(b)(2)

provided it has any purpose other than seeking to prove a

criminal propensity. See United States v. Cassell, 292 F.3d

788, 792 (D.C. Cir. 2002).

23

Otherwise admissible evidence may also be excluded “if

its probative value is substantially outweighed by a danger

of . . . unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403. A risk of “unfair

prejudice” can arise when “some concededly relevant evidence

[could] lure the factfinder into declaring guilt on a ground

different from proof specific to the offense charged.” Old

Chief v. United States, 519 U.S. 172, 180 (1997). That said,

“Rule 403 ‘tilts, as do the rules as a whole, toward the

admission of evidence in close cases,’ even when other crimes

evidence is involved.” Cassell, 292 F.3d at 795 (quoting

United States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984)).

Green was charged with three counts of possessing with

intent to distribute certain controlled substances—

hydromorphone, oxycodone and crack cocaine. To convict

him of those charges, the government was required to prove

that, on January 20, 2020, Green possessed the controlled

substance, knowingly and intentionally, with the specific intent

to distribute it. See 21 U.S.C. § 841(a)(1), (b)(1)(C). Green’s

identity, knowledge and intent were thus all relevant as facts of

consequence to the verdict.

Combining the applicable standards, the district court was

charged with answering three questions: was the proffered

evidence relevant to at least one of the charged offenses, was it

improperly offered to show Green’s criminal character and was

its probative value substantially outweighed by the risk of

unfair prejudice?

a. Exhibit 101

The district court determined that Exhibit 101 was relevant

because it could be used to show Green’s identity as well as his

knowledge or intent to distribute illegal drugs. App. 431-33.

Because it was being offered for those purposes, the court

reasoned, it did not breach Rule 404(b). Id. The court also

found there was a low risk of any unfair prejudice, particularly

24

with a limiting instruction, and thus the photograph’s probative

value outweighed that concern under Rule 403. Id. Green

argues that Exhibit 101 should have been prohibited under Rule

404(b) because a picture of one powdery substance “proved

nothing” about any other drugs concealed in 917 Wahler, the

identity of the person in the photo was not at issue at trial, the

government did not prove the powdery substance was any kind

of narcotic, the government did not prove the photo was taken

by Green and a two-month-old photograph was too remote to

bear on Green’s knowledge and intent at the time of his arrest.

See Appellant Br. 59-61.

Relevance. Exhibit 101 was relevant but its relevance was

conditioned on several predicate facts. Although couched in

Rule 404(b), Green’s objections primarily contest the

photograph’s relevance—or conditional relevance—not its use

as improper character evidence. To illustrate, if the photograph

was taken by Green and the substance pictured was cocaine

packaged for sale, there is no dispute that it would be relevant

to show his identity (as the person in possession of the cocaine

found at 917 Wahler), knowledge (of cocaine or other illegal

narcotics), or intent (to distribute those drugs). None of those

purposes makes it impermissible propensity evidence. Green

attacks the predicate factual bases of those conclusions (who

took the photograph and what it shows), which bear on

conditional relevance under Rule 104(b), requiring only

evidence sufficient for a reasonable jury to find the predicate

facts by a preponderance of the evidence. Huddleston, 485

U.S. at 689-90.

The district court determined the photograph was relevant

because it was taken on Green’s cellphone and it showed what

appeared to be illegal narcotics packaged and weighed for

distribution on one of the scales recovered during the

government’s search of 917 Wahler. App. 431. It then

properly decided (albeit implicitly) that a reasonable jury could

find those predicate facts by a preponderance of the evidence.

See Huddleston, 485 U.S. at 689-90. At least some evidence

25

suggested that Green had taken the photograph, given that the

image was recovered from his cellphone, contained a

distinctive green-and-black headphone cord resembling ones

found in his possession and depicted a digital scale similar to

those seized from 917 Wahler. Likewise, the powdery

substance pictured could have reasonably been found to be an

illegal drug packaged for distribution, based on its appearance,

the expert testimony describing how drugs are typically

weighed and prepared for sale and the presence of identical

scales found alongside the recovered narcotics. Of course, the

jury could also have rejected those conclusions and disregarded

Exhibit 101 but that fact did not make the photograph

irrelevant.

Green also suggests that, even if the photograph depicts

him with a bag of suspected narcotics, it was taken too long

before his arrest to be relevant. Once again, that is not a

challenge to improper character evidence under Rule 404(b)

but a straightforward relevance objection. But time does not

entirely strip evidence of its relevance, provided it is not

excessively remote and the context is sufficiently similar. See

United States v. Douglas, 482 F.3d 591, 597-98 (D.C. Cir.

2007) (holding that evidence of an earlier arrest for possession

with intent to distribute crack cocaine was relevant to a new

charge more than a year later); Cassell, 292 F.3d at 793 (three-

year-old arrest on the same crime relevant to new charge).

Although the passage of time may bear on the probative value

of the evidence, that consideration is properly the domain of

Rule 403 or fodder for cross-examination, not the relevance

inquiry. The district court was therefore well within its

discretion in determining that a two-month interval was not so

remote as to render Exhibit 101 irrelevant, especially given its

connection to narcotics distribution activities involving similar

(or even the same) paraphernalia. App. 431-32.

26

Propensity. Because Exhibit 101 was relevant, the next

question is whether it was offered to show Green’s criminal

propensity and thus prohibited under Rule 404(b). 11 It was not.

The government introduced Exhibit 101 to establish Green’s

knowledge of and intent to distribute illegal narcotics—both

disputed elements of the charged offenses. This court has

repeatedly found that evidence of past drug distribution is

admissible to establish the charged offense, provided at least

some of the characteristics are the same. See, e.g., United

States v. Pettiford, 517 F.3d 584, 590 (D.C. Cir. 2008)

(evidence of earlier distribution of crack cocaine admissible to

show knowledge of the substance and intent to distribute it

again); United States v. Crowder, 141 F.3d 1202, 1208-09

(D.C. Cir. 1998) (en banc); Douglas, 482 F.3d at 600. Here,

the government used Exhibit 101 for a permissible purpose and

thus Rule 404(b) did not bar its admission.

Risk of Unfair Prejudice. Green finally argues that even if

Exhibit 101 was relevant and otherwise admissible, it should

have been excluded because its probative value was

outweighed by the risk of unfair prejudice under Rule 403. The

district court did not gravely abuse its discretion in finding the

contrary. See Douglas, 482 F.3d at 596. The photograph was

at least somewhat probative of Green’s identity, intent and

knowledge. App. 431. On the other side of the ledger, the risk

of unfair prejudice posed by the photograph Green raises was

the potential that it would be used as improper propensity

evidence. Yet the district court acknowledged that potential

hazard and found that any such prejudice could be eliminated

11

Green’s assertion that the photograph’s admission violated

Rule 404(b) would have to rely on the predicate findings that he took

the photograph and the substance pictured is an illegal narcotic

because, if neither of those facts were so, the photograph would not

be evidence of his past bad acts in the first place. That confusion

illustrates why it is critical to keep the inquiries distinct.

Cf. Douglas, 482 F.3d at 598 n.9 (noting the importance of

separating the relevance and prejudice inquiries).

27

through a limiting instruction. App. 432. Such an instruction

would ordinarily be sufficient to alleviate the risk identified by

Green, absent some showing of “compelling or unique

evidence of prejudice.” Cassell, 292 F.3d at 796 (citation

modified); Douglas, 482 F.3d at 601. Here, Green’s defense

asked that no such instruction be given at trial. App. 1182-83.

In such cases, we “only look to that prejudice which would

have accrued despite the giving of a proper limiting

instruction.” Moore, 732 F.2d at 990. But the question at this

point is not whether Exhibit 101 in fact resulted in unfair

prejudice; it is whether the district court correctly conducted

the Rule 403 balancing test at the time the issue was raised.

From that perspective, the district court was well within its

discretion to consider the effectiveness of a limiting instruction

to mitigate any risk of unfairness and the fact that Green later

made a tactical decision not to request one does not affect our

review. The district court therefore did not abuse its discretion

in finding Exhibit 101 passed Rule 403.

In sum, the district court properly concluded that Exhibit

101 was relevant, was offered for a permissible purpose and

passed Rule 403 balancing.

b. Exhibit 110

As to Exhibit 110, the district court found the text message

relevant to Green’s intent to distribute drugs (of a different sort

from those charged) because its language suggested

distribution, rather than personal use, and it had been sent

shortly before the search warrant was executed. App. 102-

03. 12 It also determined, under Rule 403, that any risk of unfair

prejudice would be mitigated by a limiting instruction to the

12

The district court erroneously said that the message had been

sent the day before the search warrant was executed but in fact it was

sent approximately three weeks before that date. Compare App. 103,

with App. 236. Although that discrepancy is notable, it does not

affect our holding.

28

jury. Id. Green argues, in effect, that evidence of his possible

distribution of another drug (marijuana) was irrelevant to his

alleged intent to distribute the drugs at issue here. See

Appellant Br. 61-64. With no permissible use, he suggests, its

only remaining use would be as prohibited propensity

evidence. Id. He also asserts that the evidence should have

been excluded under Rule 403. Id. at 61.

Relevance. Exhibit 110 was likely at least marginally

relevant. As discussed, evidence of past drug sales of one drug

is usually relevant to show knowledge or intent to sell the same

drug. See, e.g., Douglas, 482 F.3d at 600; United States v.

Washington, 969 F.2d 1073, 1081 (D.C. Cir. 1992), cert.

denied, 113 S. Ct. 1287 (1993); United States v. Clarke, 24

F.3d 257 (D.C. Cir. 1994). As our colleague discusses in more

detail, Concurring Op. 1-9, whether past sales of one drug are

still relevant to show knowledge or intent to sell a different

drug can be a closer question. In United States v. Mitchell, we

noted that “we have frequently upheld the admission of

evidence regarding other drug transactions as relevant to intent

in a charged drug transaction.” 49 F.3d 769, 775 (D.C. Cir.

1995). There, the court upheld the admission of evidence of an

uncharged methamphetamine deal as relevant to two

coconspirators’ efforts to obtain cocaine and cocaine base. Id.

at 775-76. Green seeks to distinguish Mitchell on the ground

that the defendants there were part of an ongoing conspiracy

and both were involved in the previous methamphetamine deal.

See Appellant Br. 61. But it is unclear why either of those

distinctions is material. The essential question there and here

is the same: is a previous sale of Drug A relevant to show a

later intent to sell Drug B? 13 Green also cites our court’s

decision in United States v. Watson, 171 F.3d 695 (D.C. Cir.

1999). In dicta, the court suggested that the district court on

remand might wish to reconsider its admission of the

13

To be clear, this question bears only on the relevance of the

evidence, not its admissibility under other rules, including Rule 403

and Rule 404.

29

defendant’s seven-year-old conviction for selling cocaine

(rather than the cocaine base at issue in the case), as its

probative value under Rule 403 might not reach the contested

issues. Id. at 702-03. In dissent, Judge Garland remarked that

neither the seven-year interval nor the differences between the

drugs rendered the conviction inadmissible and the district

court had committed no error. Id. at 708 & n.8 (Garland, J.,

dissenting). In any event, that disagreement does not bind us

here. Moreover, our court has previously upheld the admission

of evidence involving different drugs on different occasions if

it has some relevance other than the forbidden character

inference. See United States v. Gaviria, 116 F.3d 1498, 1532-

33 (D.C. Cir. 1997) (evidence of uncharged heroin transactions

relevant to conspiracy to distribute cocaine); see also Moore,

732 F.2d at 987-88 (evidence of uncharged transactions

involving multiple drugs relevant to the defendants’ intent to

sell cocaine).

Multiple circuit courts have also squarely considered

whether past distribution of one drug is relevant to show

knowledge or intent to distribute another and have generally

determined that it is. See, e.g., United States v. McLean, 581

F. App’x 228, 234-35 (4th Cir. 2014) (heroin in a cocaine case);

United States v. Carpenter, 30 F. App’x 654 (8th Cir. 2002)

(cocaine in a methamphetamine case); United States v.

Hernandez, 896 F.2d 513, 522 (11th Cir. 1990) (marijuana in a

cocaine case); United States v. Broussard, 80 F.3d 1025 (5th

Cir. 1996) (same); United States v. Rubio-Villareal, 927 F.2d

1495, 1503 n.9 (9th Cir. 1991) (“[W]here evidence is offered

to show knowledge and intent, it is not necessary that the illegal

drug involved in the prior offense be identical to the illegal drug

involved in the charged crimes.”).

Ultimately, the bar for relevance is low and the district

court reasonably found that evidence of Green’s marijuana sale

just three weeks before his arrest was relevant to his intent here.

As the court noted, the fact that the drugs were different

“diminished” its probative value but did not eliminate it.

30

App. 103. The mental states required for both are the same,

thus “evidence that [Green] previously had the state of mind—

the knowledge and intent—to distribute illegal drugs is

probative and thus relevant to whether he had the knowledge

and intent to commit the crime charged here.” McLean, 581 F.

App’x at 235. The proximity of the time the message was sent

further supports the same conclusion. Cf. id. (a six-year

interval did not render a past conviction irrelevant). Thus, the

district court did not abuse its discretion in concluding the

proffered text message was relevant.

Propensity. Exhibit 110 was used for a permissible

purpose—showing Green’s knowledge and intent to sell

controlled substances—not to show any criminal propensity

proscribed by Rule 404. Indeed, the government specifically

stated in its closing argument that the text message was “good

proof of [Green’s] possession with the intent to distribute the

drugs that were seized in this case,” not that Green had a

propensity to deal drugs or was a “drug dealer.” App. 1237.

Because the evidence was offered for a permissible purpose, it

was admissible under Rule 404(b).

Risk of Unfair Prejudice. Exhibit 110’s probative value

was not substantially outweighed by the risk of unfair prejudice

under Rule 403. Granted, the probative value of Exhibit 110

was limited. The text message involved a different drug with

no clear link between the message and 917 Wahler and the

message was unmoored from any physical evidence. But as the

probative value was low, so too was the risk of unfair prejudice.

The message was neither inflammatory nor likely to mislead

the jury and its weight could be readily challenged by the

defense. As before, the district court also properly considered

using a limiting instruction, even if none was ultimately given

due to defense counsel’s tactical judgment. See Moore, 732

F.2d at 990. On balance, although Exhibit 110’s probative

value was not particularly strong, neither was its potential for

undue prejudice and the district court was justified in

concluding that it met the Rule 403 test.

31

In sum, the district court correctly determined that Exhibit

110 bore some relevance to the charged offenses, was

introduced for a permissible purpose and survived scrutiny

under Rule 403.

2. Harmless Error

Even if we concluded that Exhibits 101 or 110 were

admitted in error, however, that alone would not compel

reversal. See Fed. R. Crim. P. 52(a) (“Any error, defect,

irregularity, or variance that does not affect substantial rights

must be disregarded.”). “For nonconstitutional errors like the

one[s] [Green] asserts here, ‘an error is harmless’ and thus does

not compel reversal ‘if it did not have a substantial and

injurious effect or influence in determining the jury’s verdict.’”

United States v. Milligan, 77 F.4th 1008, 1012 (D.C. Cir. 2023)

(quoting United States v. Powell, 334 F.3d 42, 45 (D.C. Cir.

2003)). Because Green timely objected to the introduction of

both exhibits, the “burden of showing the absence of prejudice”

is on the government. United States v. Olano, 507 U.S. 725,

741 (1993). Only if we are “in grave doubt about the

harmlessness of the error” must the conviction be reversed.

United States v. Smart, 98 F.3d 1379, 1390 (D.C. Cir. 1996)

(citation modified).

“The introduction of other crimes evidence to illuminate

intent carries an inherent risk of . . . prejudice” because the

permissible inference (intent) is “very close” to the

impermissible one (propensity). Mitchell, 49 F.3d at 777. The

“most significant factor” that can negate an error’s impact on

the verdict is “the weight and nature of the evidence against the

defendant.” Milligan, 77 F.4th at 1012 (quoting McGill, 815

F.3d at 886). Limiting instructions that “guard the space

between the permissible and impermissible inferences” can

also reduce the impact of any erroneously admitted evidence.

Mitchell, 49 F.3d at 777. Conversely, “dramatic [or]

compelling” evidence that might “rivet the jury’s attention on

[the defendant’s] bad character” could increase the chance of a

32

harmful error. United States v. Brown, 597 F.3d 399, 405 (D.C.

Cir. 2010); see also United States v. Sheffield, 832 F.3d 296,

309 (D.C. Cir. 2016).

Here, to the extent either exhibit was incorrectly admitted,

any error was harmless. Because Green constructively

possessed the contraband inside 917 Wahler, there was

substantial evidence of his involvement in drug distribution

even without the photograph or text message, including

numerous digital scales, sandwich baggies, cutting agents and

significant amounts of cash. The jury also heard testimony

from the government’s witnesses about Green’s possessions

(including identification cards) in the house, his occupancy

there and the typical operations of stash houses, all of which

further minimize the impact of both exhibits. Moreover, the

quantity of the drugs found and the fact that they were

packaged for street distribution further supports the reasonable

inference that Green had an intent to distribute them. See

United States v. Williams, 233 F.3d 592, 595 (D.C. Cir. 2000)

(a reasonable jury may infer from “the quantity of drugs

possessed” and “the fact that [the] drugs were segregated into

‘baggies’” that a defendant had an intent to distribute). Neither

the photograph nor the text message was dramatic or

compelling such that the jury’s attention would have been

riveted on it as evidence of Green’s character. Instead, they

were small pieces of the evidence connecting him to at least

some of the drugs in 917 Wahler. Although Green argues that

the exhibits were the only direct evidence of drug distribution,

see Appellant Br. 63-64, the volume of the indirect evidence is

sufficient to render any misstep in admitting them harmless.

The government further suggests that, for the purpose of

the harmless-error analysis, we should assume that the district

court gave a limiting instruction in light of Green’s tactical

decision to decline one. See Gov’t Br. 61. Green responds that

he was “not required to reiterate this damaging evidence to the

jury in the form of an instruction to preserve his claim that it

should never have been introduced in the first place.” Reply

33

Br. 31. Green’s argument is misplaced—the relevant issue is

not preservation (which is uncontested), but whether the

purportedly inadmissible evidence resulted in prejudicial error,

a risk that could have been mitigated by an instruction.

Although the caselaw on declined limiting instructions is

sparse, several circuit courts have held that declining such an

instruction at least weakens a later claim of undue prejudice.

See, e.g., United States v. Wheeler, 540 F.3d 683, 693 (7th Cir.

2008) (“Because [defendant] waived the opportunity to

alleviate the risk of unfair prejudice, we decline to reverse the

district court’s evidentiary ruling on the grounds that the [Rule

404(b)] evidence was unfairly prejudicial”); United States v.

Monks, 774 F.2d 945, 955 (9th Cir. 1985) (“[W]e will uphold

a district court’s refusal to grant a mistrial where the prejudice

resulting from introduction of the improper character evidence

is minimal, and the judge’s offer to give a limiting instruction

is rejected.” (citation modified)); United States v. Tejeda, 974

F.2d 210, 215 (1st Cir. 1992) (harmless Rule 404(b) error after

defendant declined limiting instruction); cf. Moore, 732 F.2d

at 990. Relatedly, a tactical decision by defense counsel not to

seek a limiting instruction—and a district court’s resultant

failure to give one—does not preclude finding harmless error.

See United States v. Williams, 212 F.3d 1305, 1311 (D.C. Cir.

2000) (concluding that an officer’s prejudicial statement was

harmless error given the strong evidence of defendant’s guilt

and the fact that defense counsel did not seek a limiting

instruction to address the comment). Taken together, these

cases reflect a common-sense principle that a defendant who

declines a limiting instruction bears at least some responsibility

for the risk of prejudice the instruction might have averted.

Accordingly, although we uphold the admission of

Exhibits 101 and 110, in the alternative, any error was also

harmless and their admission does not warrant reversal.

34

* * *

For the foregoing reasons, Green’s convictions are

affirmed.

So ordered.

GARCIA, Circuit Judge, concurring in part and concurring in

the judgment:

I join the court’s opinion except for Part III.C.1.b. There,

the majority affirms the district court’s ruling that Federal Rule

of Evidence 404(b) did not bar Exhibit 110’s admission despite

powerful arguments that the exhibit amounted to impermissible

character evidence. That holding is unnecessary to resolve this

case, as we all agree that any error in admitting Exhibit 110 was

harmless. See United States v. Burnett, 827 F.3d 1108, 1118–

19 (D.C. Cir. 2016) (deeming any error harmless and declining

to address 404(b) issue). By nonetheless reaching the question

of Exhibit 110’s admissibility, the majority needlessly wades

into a complex area of the law that has deeply divided the

circuits. And it extends our precedent in ways that contradict

Rule 404(b)’s text and core purpose. I write separately to

identify the difficult issues our cases and now the majority here

have breezed past, and to explain why I do not join the court’s

holding on this issue.

Rule 404(b)(1) prohibits the introduction of propensity

evidence: “Evidence of any other crime, wrong, or act is not

admissible to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with

the character.” Rule 404(b)(2) then states that evidence of

other bad acts “may” nonetheless “be admissible for another

purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.”

In criminal cases, Rule 404(b) serves the important

purpose of ensuring that a defendant is tried for his alleged

conduct, and not based on a character-related assumption “that

he is by propensity a probable perpetrator of the crime.”

Michelson v. United States, 335 U.S. 469, 475 (1948). Put

another way, the Rule prohibits evidence suggesting “that

because the defendant committed another bad act, he is more

likely to have committed the charged act.” United States v.

2

Mitchell, 49 F.3d 769, 774 (D.C. Cir. 1995); see also United

States v. Caldwell, 760 F.3d 267, 276 (3d Cir. 2014)

(explaining that the Rule ensures “an accused is tried for what

he did, not who he is”).

Reconciling that principle with the “Permitted Uses” listed

in Rule 404(b)(2) can sometimes prove difficult. “Intent,” for

example, is a permitted use. So, focusing myopically on Rule

404(b)(2), one might say that the Rule poses no bar to

admission whenever the government ostensibly introduces a

prior bad act as evidence of a defendant’s “intent” rather than

his “character.” But what if the only way the act is probative

of a defendant’s “intent” is through an inference that he has a

propensity to commit bad acts, the very “character”-based

reasoning that Rule 404(b)(1) prohibits? Is that truly sufficient

to evade Rule 404(b)(1)?

This case illustrates the dilemma. Demetrius Green was

tried for possessing with intent to distribute oxycodone,

hydromorphone, and cocaine base. To help establish his intent

to distribute, the government introduced Exhibit 110, a text

message in which Green purportedly offered to sell someone

marijuana (it said: “I got sum tree come support my hustle,”

App. 236). As the majority correctly notes, the text message

does not suggest anything except that Green had once offered

to distribute drugs: “The text message involved a different

drug with no clear link between the message and 917 Wahler

[Place,] and the message was unmoored from any physical

evidence.” Maj. Op. 30. The text message did not show, for

example, that Green had previously attempted to sell drugs in

a manner similar to how he allegedly intended to distribute the

drugs at issue here. Nor did the text message insinuate that he

had used similar paraphernalia to sell drugs, or that he had sold

drugs in the same location or to the same person.

3

Logically, the only way a bare allegation of Green’s intent

to sell marijuana on one occasion could be thought relevant to

show he intended to distribute other drugs on this occasion is

by reasoning that Green is the type of person who intends to

distribute the drugs he possesses—in other words, that he is a

drug dealer. This means the conclusion the government asked

the district court to draw (that Exhibit 110 was relevant to

Green’s intent to distribute) rested exclusively on an

intermediate inference sounding in propensity reasoning (that

because Green had acted like a drug dealer once, he was more

likely to have acted that way again). Cf. United States v.

Matthews, 431 F.3d 1296, 1313 n.1 (11th Cir. 2005) (Tjoflat,

J., concurring in the judgment) (“It is difficult to argue that a

person had an intention to do something on a particular

occasion because he or she demonstrated that intention

previously without implicitly suggesting that the person has a

proclivity towards that intent.”).

The government’s view is not easy to square with Rule

404(b). There is a strong intuition that it must be improper for

the government to introduce evidence whose relevance to the

defendant’s intent rests entirely on a propensity inference: here,

that the defendant has a propensity for dealing drugs. The text

of the Rule suggests as much. Rule 404(b)(1) prohibits the use

of prior bad acts “to prove a person’s character” and to show

that the person “acted in accordance with the character.” If the

government’s only theory of relevance relies on the inference

that a defendant “acted in accordance with” how he has acted

before, the evidence is seemingly inadmissible, full stop.

Rule 404(b)(2) does not say otherwise. The “Permitted

Uses” it lists do not constitute exceptions to Rule 404(b)(1), but

rather examples of ways to admit other-act evidence “for

another purpose”—that is, a purpose other than the one

forbidden by Rule 404(b)(1). A natural reading of Rule 404(b),

and one that fits its commonly accepted purpose, is therefore

4

that the proponent of the other-act evidence must establish its

relevance to a permitted use without relying purely on

character-based inferences.

Indeed, at trial, the government seemed to share that

intuition about the Rule. As the court recounts, the government

was careful to assert that it did not introduce Exhibit 110 to

show “that Green had a propensity to deal drugs or was a ‘drug

dealer.’” Maj. Op. 30. The government said it introduced the

text message for the supposedly different purpose of showing

Green’s “intent to distribute the drugs that were seized in this

case.” Id. (quoting App. 1237). I fail to see the distinction.

The government offered no explanation for how the text

message could show that Green intended to distribute the

narcotics at issue except insofar as it suggested that he had a

propensity for drug dealing.

To frame the concern in more practical terms, imagine that

a juror received a limiting instruction telling her not to use the

text as evidence of Green’s “character,” but that she could use

it as evidence of his “intent.” It strikes me that any reasonable

person would have no earthly idea how to proceed. The juror

might gather that she may not look to Green’s one-time offer

to sell drugs as a reflection of his “character” and reason that

he is the type of person who more likely intended to distribute

drugs this time around. But if that is so, how else could she

conclude the evidence is relevant to Green’s intent?

Commentators have repeatedly criticized the

government’s question-begging logic. As one puts it, “it is

hard to see how this use avoids the propensity inference from

character; namely, that a person with a history of selling drugs

has a propensity to sell drugs and that is therefore what the

defendant intended to do with the drugs in this case.” Paul S.

Milich, The Degrading Character Rule in American Criminal

Trials, 47 Ga. L. Rev. 775, 786–87 (2013). Another explains:

5

“[C]ourts too often fail to demonstrate how the mental leap

from possessing a particular state of mind on one occasion to

possessing the same state of mind on a different occasion does

not involve the use of a character-propensity inference.” David

P. Leonard, The New Wigmore: Evidence of Other Misconduct

and Similar Events § 7.5.2 (2d ed. Supp. 2025). Similar

criticisms from respected authorities abound. See, e.g., Julius

Stone, The Rule of Exclusion of Similar Fact Evidence:

America, 51 Harv. L. Rev. 988, 1033 (1938) (describing

permissive admission of other-act evidence as “utter

perversions of the object of the original rule”); 1 Edward J.

Imwinkelried, Uncharged Misconduct Evidence § 5:2 (2025

ed.) (explaining that evidence should not be admissible to

prove intent under Rule 404(b) if “the prosecution must rely on

an intermediate bad character inference”); Daniel J. Capra &

Liesa L. Richter, Character Assassination: Amending Federal

Rule of Evidence 404(b) to Protect Criminal Defendants, 118

Colum. L. Rev. 769, 789–95 (2018).

As these scholars lament, some courts have (mostly

without acknowledging these concerns) admitted other-act

evidence when it is relevant in any way to a defendant’s intent.

See Maj. Op. 29 (collecting cases). But several others—

including at least the Third, Fourth, and Seventh Circuits, and

one panel for the Sixth Circuit—have articulated limits on such

use of other-act evidence. Those courts guard against the

danger of “intent . . . blend[ing] with improper propensity

uses” by “not just ask[ing] whether the proposed other-act

evidence is relevant to a non-propensity purpose but [also

asking] how exactly the evidence is relevant to that purpose . . .

without relying on a propensity inference.” United States v.

Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (en banc); United

States v. Miller, 673 F.3d 688, 698 (7th Cir. 2012); 1 Robert P.

Mosteller et al., McCormick on Evidence § 190.11 (9th ed. Feb.

2025 update) (endorsing Seventh Circuit’s approach); see also

Caldwell, 760 F.3d at 277 (requiring “a chain of inferences that

6

does not contain a propensity link”); United States v. Hall, 858

F.3d 254, 277 (4th Cir. 2017) (demanding “propensity-free

chains of inferences”). Applying that requirement, some of

these courts exclude evidence of other drug activity unless the

government can show a meaningful, non-propensity

“linkage . . . in time, manner, place, or pattern of conduct”

between the charged and uncharged acts. Hall, 858 F.3d at 261

(citation modified); see id. at 272–75; see also Miller, 673 F.3d

at 700; United States v. Bell, 516 F.3d 432, 443 (6th Cir. 2008)

(permitting evidence of other distribution activity only if it was

“part of the same scheme or involved a similar modus

operandi”). But see United States v. Hardy, 643 F.3d 143, 151

(6th Cir. 2011) (casting doubt on Bell but requiring that the

other act be “substantially similar and reasonably near in time”

to charged conduct (quotation omitted)).

Courts of appeals, in short, “sharply disagree” over how to

reconcile Rule 404(b)’s prohibition against propensity

reasoning with its list of permitted purposes. Capra & Richter,

supra, at 794. Some of the basic questions underlying that

disagreement include: Is other-act evidence admissible when

its relevance to a permitted purpose rests entirely on propensity

inferences? If not, what counts as a permissible non-propensity

inference? These questions are no doubt difficult to resolve in

a way that facilitates practical application. To my eye,

however, our cases to date have not grappled with them in the

slightest. Instead, our cases fall into the group that seems to

proceed as if the only question when a Rule 404(b) objection is

raised is whether the evidence is relevant in any way to a

permitted use. See Maj. Op. 28–30.

Still, our precedent by no means dictates the majority’s

conclusion here. For one thing, the majority uncritically

endorses the government’s assertion that it is not “propensity”

reasoning to use Green’s alleged offer to distribute marijuana

as evidence that he subsequently intended to distribute

7

oxycodone, hydromorphone, and cocaine base. Id. at 30. I

have already explained why that logic, without more, is

indistinguishable from “the very kind of reasoning—i.e., once

a drug dealer, always a drug dealer—which 404(b) excludes.”

Bell, 516 F.3d at 444 (citing Old Chief v. United States, 519

U.S. 172, 180–81 (1997)); see also Miller, 673 F.3d at 700.

For another, our cases have not blessed the introduction of

evidence whose relevance is so purely based on propensity

inferences as the text message here. To illustrate the point,

consider the in-circuit cases cited by the majority. In most of

them, the other-act evidence featured the defendant distributing

the same type of drug as the one charged in the indictment. See

Maj. Op. 26–28. And in each, the other-act evidence shared

some meaningful similarity with the charged conduct that made

it probative of something beyond a generic proclivity to

distribute drugs. See id. For example, in United States v.

Pettiford, 517 F.3d 584 (D.C. Cir. 2008), the defendant was

indicted after officers recovered cocaine from his car’s center

console; the other-act evidence was that officers had recovered

cocaine from another car’s center console after observing the

defendant reach inside the car and then conduct a cocaine sale.

See id. at 586–87. In United States v. Crowder, 141 F.3d 1202

(D.C. Cir. 1998) (en banc), the other-act evidence involved the

defendant selling cocaine “on the same block” where he was

alleged to have possessed heroin and cocaine with intent to

distribute. Id. at 1203–04. And in United States v. Douglas,

482 F.3d 591 (D.C. Cir. 2007), the other-act evidence

“involved sale of the same substance in almost the same

neighborhood.” Id. at 601; see also id. at 599 (noting that

charged drug sales occurred around the time and place of prior

sales introduced under Rule 404(b)); United States v.

Washington, 969 F.2d 1073, 1081 (D.C. Cir. 1992)

(emphasizing “similarity of the transactions” where other drug

sale occurred around the same time and place as charged

offense, and involved same paraphernalia); United States v.

8

Clarke, 24 F.3d 257, 263–66 (D.C. Cir. 1994) (admitting

evidence of other drug sales at same drugstore parking lot and

to same middleman).

So too in Mitchell, the principal case the majority

highlights from our court in which the prior act involved a

different type of drug from the one charged in the indictment.

The similarities between the charged act and the uncharged

drug-distribution activity there were also notable. For one of

the two defendants, the charged and uncharged conduct

occurred contemporaneously, and each incident involved him

allegedly providing transportation services for his co-

conspirator. 49 F.3d at 775–76. For the other, the uncharged

conduct showed him orchestrating a complex drug transaction

in ways that mirrored the charged offense. Id. at 772–75; see

also United States v. Gaviria, 116 F.3d 1498, 1532–33 (D.C.

Cir. 1997) (describing contemporaneous drug sales arranged by

same co-conspirators using code words just as in the charged

incident); United States v. Moore, 732 F.2d 983, 988 (D.C. Cir.

1984) (describing the other acts evidence as showing “a pattern

of drug possession and dealing taking place immediately before

the conspiracy alleged in the indictment”).

In each of these cases, the other-act evidence helped

demonstrate the defendant’s intent to distribute narcotics in a

particular place, or in a particular manner. Each piece of

evidence would, at least arguably, be admissible under the

more careful approach taken by some of our sister circuits.

No such similarity is present here. The text message is an

unadorned statement of intent to sell one drug (marijuana) on

one occasion, and its sole purpose at trial was to invite the

inference that Green was more likely to distribute different

drugs (oxycodone, hydromorphone, and cocaine base) on a

different occasion. Cf. Maj. Op. 28 (framing the question as

“is a previous sale of Drug A relevant to show a later intent to

9

sell Drug B?”). We have never affirmed the admission of

evidence under Rule 404(b) that sounds so loudly in propensity

reasoning.*

To be sure, precisely because our cases thus far have not

grappled with the difficult questions this case illustrates, the

majority’s decision today may well be a defensible application

of our precedent. But that does not mean it is a sound one. The

majority reaches its holding by reading our cases broadly and

extending their logic to new terrain, all while giving short thrift

to the countervailing interests underlying Rule 404(b). The

result is to place our precedent in greater tension with the text

and basic purpose of the Rule, the weight of informed

scholarship, and the decisions of other courts of appeals.

Particularly because doing so was unnecessary to resolve this

case, I do not join that analysis.

*

The majority opinion states several times that Green allegedly

sent the text message offering to sell someone marijuana three weeks

before his arrest. See Maj. Op. 27–30. The government did not make

any argument based on temporal proximity on appeal, and so I would

not consider it. See Appellee’s Brief 59–60; Al-Tamimi v. Adelson,

916 F.3d 1, 6 (D.C. Cir. 2019) (“A party forfeits an argument by

failing to raise it in his opening brief.”). In any event, without

evidence establishing a more specific link between the charged and

uncharged conduct, I doubt it should make a difference that Green

recently acted like a drug dealer.