United States v. Lee

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-4427

_____________

UNITED STATES OF AMERICA

v.

JOSEPH R. LEE,

Appellant

________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 06-cr-162)

District Judge: Honorable Donetta W. Ambrose

_______________

Argued January 29, 2010

Before: RENDELL and JORDAN, Circuit Judges, and

PRATTER, District Judge.*

(Filed : July 14, 2010)

*Honorable Gene E.K. Pratter, United States District Court

Judge for the Eastern District of Pennsylvania, sitting by

designation.

Renee Pietropaolo [ARGUED]

Federal Public Defender’s Office

1500 Liberty Center

1001 Liberty Avenue

Pittsburgh, PA 15222

Counsel for Appellant

Robert L. Eberhardt

Rebecca Ross Haywood [ARGUED]

United States Attorney’s Office

700 Grant Street - #4000

Pittsburgh, PA 15219

Counsel for Appellee

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Joseph R. Lee was convicted in the United States District

Court for the Western District of Pennsylvania of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),

and was sentenced as a career offender to 120 months’

imprisonment. He appeals both the conviction and his sentence.

For the following reasons, we will affirm Lee’s conviction but

vacate his sentence and remand for re-sentencing.

2

I. Background

A. The Stop

On June 27, 2005, Lieutenant Kevin Kraus of the City of

Pittsburgh Police Department traveled to the 2400 block of

Webster Avenue in the Hill District of Pittsburgh, Pennsylvania

to investigate a homicide that had occurred there the day before.

Kraus was in an unmarked police car when he observed Lee,

driving a blue Jeep Grand Cherokee, run a stop sign.1

Kraus activated his siren and followed Lee to stop him

for the traffic violation. Lee abruptly pulled over, and,

according to Kraus, began making “rapid, suspicious

movements,” and reaching “down towards his torso area” as

Kraus approached the car on foot. (Id. at 349.) All of the

windows of the Jeep were down and the sunroof was open.

Kraus scanned the car, and noticed a “rather large black heavy

coat ... [with] a distinctive flap on the top” in the backseat of the

Jeep. (Id. at 351.) He also noticed that the coat “appeared to be

partially wrapped around ... a long, narrow object.” (Id. at 351-

52.) He took particular note of the coat because the temperature

was over 90 degrees that day. Kraus further observed that Lee

was wearing a tan bullet-proof vest and was not wearing a shirt.

Lee volunteered that he had been trying to take off the bullet-

proof vest. Kraus ordered him to raise his hands above his head

1

Lee has never been a suspect in the murder investigation, and

“just happened to be driving down the same block” the day after

the murder. (App. at 422.)

3

and place them where Kraus could see them. According to

Kraus, at that moment, he saw what he believed to be a black

semi-automatic pistol lying on Lee’s right thigh. After seeing

the object, Kraus drew his own gun and told Lee: “Get your

hands in the air. Don’t move.” (Id. at 353-54.) In response,

Lee grabbed the steering wheel, said that he had to go, and sped

away from the scene.

Kraus called the police dispatcher, reported that he had

an emergency, and provided a description of Lee and the Jeep.

Shortly thereafter, Kraus learned that another officer had found

a Jeep Grand Cherokee matching the description of Lee’s car.

It was in a parking lot at the rear of the Christopher A. Smith

Terrace Apartments (the “Apartments”), about a tenth of a mile

from where Kraus had stopped Lee. Lee later stipulated that he

abandoned the Jeep where the police found it.

B. The Search

Kraus went to the parking lot at the Apartments and

identified the Jeep as the one that he had earlier stopped and in

which Lee had fled. All the windows were still down and the

sunroof remained open. The bullet-proof vest was lying on the

passenger side of the vehicle. However, the coat and long

slender object that Kraus remembered seeing in the backseat

were no longer there. Four other officers were at the scene to

aid Kraus in the investigation. During a search of the area, one

of them, Kevin Faulds, found an AK-47 assault rifle beside a

fence separating the Apartments from the next door Francis

Court Housing Complex (the “Housing Project”). Kraus joined

Faulds by the fence and observed the AK-47 partially covered

4

in a black coat with a distinctive flap, lying against the fence.

Kraus identified the black coat as the one he had seen in Lee’s

Jeep.

A police bloodhound named Digger and his handler,

Officer Rudolph Harkins, soon arrived at the scene. Kraus

informed Harkins that the other officers had already located the

Jeep, rifle, and coat. Harkins gave Digger the scent of the

Jeep’s driver by wiping the driver’s seat with a swab, offering

the swab for Digger to smell, and giving the dog a command to

track the scent. Digger then went down a flight of steps,

through a parking lot, and came to within ten to fifteen inches of

the rifle and the coat. According to Harkins, Digger then

“veered to the right along the fence, [and] went down the fence

line approximately 20, 25 feet.” (App. at 458.) Digger found an

area of the fence that had been ripped open, went through the

opening, and continued towards the Housing Project on the

other side of the fence. He stopped in front of the door of a

vacant building in the Housing Project, and, at that point, circled

and sat down, indicating that he had lost the scent. The building

was searched, but Lee was not found.

C. The Arrest

Approximately two weeks later, on July 12, 2005, Kraus

learned that fellow police officers had caught sight of and were

pursuing Lee. They finally found him hiding in an apartment.

No weapons or contraband were found on Lee at the time of his

arrest, nor in the apartment where he was found. The police

arrested him, took him to an interview room at the police station,

and gave him Miranda warnings. He signed a form waiving his

5

Miranda rights, and Kraus proceeded to interview him. Lee

denied having any guns in his car when Kraus stopped him.

However, he acknowledged that he had been wearing a bullet-

proof vest. He said that he had started to take off the vest as

Kraus approached the car because he wanted to create a

diversion so that Kraus would not see a bag of marijuana that

was in the car. Lee further explained that he drove away when

Kraus drew his gun because he thought Kraus had drawn the

gun in reaction to seeing the bag of marijuana. Kraus told Lee

that he had not seen any marijuana but rather had seen a black

semi-automatic pistol on Lee’s lap. Lee responded that what

Kraus had seen was actually a “black and silver cell phone flip-

style open and extended on his lap.” (App. at 414.)

According to Kraus, Lee “insisted that he does not

typically own or carry guns. However, he did state that he had

access to a lot of guns and would use them against anyone who

threatens him or his family.” (Id. at 417.) Lee also said that he

had previously shot at a man named Ernest “Pickles” Harris and

that there was a “long time, ongoing violent feud” between their

two families. (Id.) Finally, while Lee insisted that he did not

have any weapons with him during the traffic stop two weeks

earlier, he admitted fleeing when Kraus had tried to stop him on

an earlier occasion in 2000 or 2001 when Lee did have guns in

a vehicle.

D. Procedural History

On May 3, 2006, a grand jury in the Western District of

Pennsylvania returned a one-count indictment charging Lee with

being a felon in possession of two firearms, a rifle and a pistol,

6

in violation of 18 U.S.C. § 922(g)(1).2 The rifle referred to in

the indictment is the AK-47 that was found lying by the fence

under a black coat, near the location of Lee’s abandoned car.

The pistol is what Kraus had allegedly seen on Lee’s lap,

although no such pistol was ever recovered.

Prior to trial, Lee filed several motions, including a

motion to suppress audio tapes of his interviews, a motion to

exclude the bloodhound evidence and for a Daubert hearing to

test the admissibility of that evidence, a motion under Rule

404(b) to exclude the evidence of the bullet-proof vest and Lee’s

interview statements to Kraus, and a motion for judgment of

acquittal with regard to the pistol on the jurisdictional ground

that the pistol was not a firearm in or affecting interstate

commerce. With the exception of a limited portion of the

2

The indictment did not designate separate counts and so

appears in form to be a single count. 18 U.S.C. § 922(g)(1)

provides:

It shall be unlawful for any person ... who has been

convicted in any court of [] a crime punishable by

imprisonment for a term exceeding one year ... to ship or

transport in interstate or foreign commerce, or possess in

or affecting commerce, any firearm or ammunition; or to

receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1)

7

404(b) motion that is not relevant to this appeal, the District

Court denied all of Lee’s motions.

At trial, over Lee’s objection, the government introduced

the statements that Lee made during his interview with Kraus

and evidence that Lee was wearing a bullet-proof vest when he

was stopped. Additionally, over objection, the dispatch tapes

were played, and a transcript was provided to the jury. Finally,

over objection, the District Court admitted evidence of Digger’s

efforts to track Lee. However, in light of a dispute over whether

Digger had alerted at the coat and rifle, the Court noted that the

government “agreed to eliminate any reference in the testimony

that Digger paused” when he reached them. (App. at 2.)

At the close of the government’s case, Lee moved for

judgment of acquittal with respect to his alleged possession of

the pistol. Even assuming that what Kraus had seen was a

pistol, Lee argued, there was no evidence that the pistol had ever

traveled in interstate commerce, as is required under 18 U.S.C.

§ 922(g). The Court denied the motion, and denied it again

when defense counsel renewed it at the close of all evidence.

Throughout trial, Lee’s defense with regard to the rifle

was that it had never been in his Jeep and that he was not the

person who disposed of it. Specifically, “[t]he defense (1)

attacked the reliability of [Kraus’s] observations, (2) offered

evidence that others had an opportunity to have hidden the rifle

in that crime-ridden area, ... and (3) stressed the complete

absence of physical evidence tying Lee to the weapon and coat.”

(Appellant’s Op. Br. at 63.)

8

The District Court instructed the jury that a conviction

could be based on a finding that Lee possessed either a pistol, or

a rifle, or both. The Court and the prosecutor told the jury that

unanimity was required on any finding of possession as to either

weapon, and jury interrogatories treated each weapon as a

separate basis of criminal liability. On June 19, 2008, the jury

found Lee guilty of possessing the rifle but not guilty of

possessing the pistol. The Court subsequently sentenced Lee to

120 months of imprisonment, to be followed by a three-year

term of supervised release, and a special assessment of $100.

Lee filed a timely notice of appeal, challenging both his

conviction and his sentence.

II. Discussion 3

Lee advances six arguments on appeal: first, that “the

rifle charge was prejudicially tainted by evidence offered to

support the improper ... [pistol] charge” 4 (Appellant’s Op. Br.

3

The District Court had subject matter jurisdiction pursuant

to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.

§ 1291 and pursuant to 18 U.S.C. § 3742(a)(1), as this is an

appeal from a final judgment of conviction and sentence.

4

As already noted, Lee was charged in an indictment that did

not separate charges into distinct counts, so the unlawful

possession of both the rifle and pistol were, effectively, part of

a single count. The fact that Lee’s alleged rifle possession and

alleged pistol possession were set forth in a single count would

perhaps be problematic in a spillover context, were it not for the

9

at 19); second, that the District Court erred in allowing the

government to introduce evidence that he was wearing a

bullet-proof vest at the time he was stopped by Kraus; third, that

the District Court erred in allowing Kraus to testify about the

interview statements Lee made regarding prior weapons

possession; fourth, that the prosecutor committed misconduct

during his discussion of Digger, the bloodhound; fifth, that the

District Court erred at sentencing by classifying Lee’s state

misdemeanor conviction for reckless endangerment as a crime

of violence, thereby increasing the length of his sentence; and,

fact that the District Court and the parties consistently treated

the single count indictment as containing two separate charges:

the “rifle charge” and the “pistol charge.” The alleged rifle

possession and the alleged pistol possession were argued

separately before the District Court (for example, Lee moved for

judgment of acquittal with regard to the alleged pistol

possession only), were treated separately by the District Court

throughout trial, and were noted separately in both the jury

charge and the jury interrogatories. Most significantly, the jury

ultimately acquitted Lee of possessing the pistol, but convicted

him of possessing the rifle. Finally, the alleged rifle possession

and the alleged pistol possession continue to be treated as two

separate charges by the parties on appeal. Accordingly, we too

will treat the indictment as setting forth two separate charges for

purposes of assessing whether evidence of the alleged pistol

possession tainted the jury’s consideration of whether Lee

possessed the rifle. Like the parties, we will use the terms “rifle

charge” and“pistol charge” to distinguish the two charges.

10

sixth, that the felon-in-possession statute is unconstitutional.

We address each argument in turn.

A. Prejudicial Spillover

Lee argues that the District Court erred in denying his

motion for judgment of acquittal on the pistol charge because

there was insufficient evidence that the pistol, even if he had

one, traveled in interstate commerce, which is a required

element under 18 U.S.C. § 922(g). Although Lee was ultimately

acquitted of the pistol charge, he contends that the District

Court’s error in permitting that charge to go to the jury entitles

him to a new trial on the rifle charge, because the rifle charge

was prejudicially “tainted” by evidence submitted to support the

pistol charge. (Appellant’s Op. Br. at 25.) In other words, Lee

contends that there was prejudicial spillover from one charge to

the other.

i. Standard of Review

The parties begin with a debate about the standard of

review we should apply when evaluating a claim that one

criminal charge has tainted the jury’s consideration of another.

Lee argues that we should apply the test articulated in United

States v. Pelullo, 14 F.3d 881 (3d Cir. 1994), in which we stated

that, “[w]hen confronted with a problem of taint, we must

‘consider whether the presence of the [invalidated] count had

any spillover effect sufficiently prejudicial to call for reversal.’”

Id. at 897-98 (quoting United States v. Ivic, 700 F.2d 51, 65 (2d

Cir. 1983)). We must reverse and allow for a new trial if the

jury was “probably influenced,” id. at 900, or “‘was likely to be

11

confused or relied upon improper evidence’ in its deliberations

on the remaining counts.” United States v. Murphy, 323 F.3d

102, 122 (3d Cir. 2003) (quoting Pelullo, 14 F.3d at 898). Even

though Lee raised the invalidity of the pistol charge at trial, the

government, citing United States v. Wright, 363 F.3d 237 (3d

Cir. 2004), argues that plain error review applies because Lee

did not argue prejudicial spillover before the District Court “in

any relevant pleading, such as in a motion for a new trial.”

(Appellee’s Ans. Br. at 3.)

The debate is misleading, as it seems to proceed from the

mistaken presumption that the test articulated in Pelullo is a

standard of appellate review. It is not. Rather, it is an analytical

approach to assessing whether evidence from one charge

unfairly affected consideration of another charge. In particular,

we are here tasked with assessing whether what happened – an

acquittal on the pistol charge after hearing evidence on it –

means that the jury could not have fairly addressed the rifle

charge. To answer that question, we employ the Pelullo test.

However, acknowledging that Pelullo must be applied to

evaluate a claim of taint still leaves us to determine what

standard of review to employ in a case like this, in which the

issue of taint was never raised before the District Court. This

appears to be an issue of first impression for us, and so we look

to how we address challenges to the sufficiency of evidence as

a guide for the appropriate appellate role in appraising post-hoc

12

complaints about a verdict’s basis.5 Somewhat like an

insufficiency of the evidence argument, an argument of taint

asserts that, once the allegedly tainted material is removed from

the jury’s calculus, there is no sound basis to support the

remaining charge.

When a sufficiency of evidence challenge has first been

made in the District Court, we exercise plenary review on appeal

and ask specifically “whether there is substantial evidence that,

when viewed in the light most favorable to the government,

would allow a rational trier of fact to convict.” United States v.

Bornman, 559 F.3d 150, 152 (3d Cir. 2009) (quotations and

citations omitted). Though plenary, the “standard of review is

highly deferential.” Id. However, where a defendant does not

mount a challenge to the sufficiency of the evidence in the

District Court, we review for plain error.6 United States v.

5

Raising the issue of taint before the verdict may be difficult

as a defense lawyer does not know, pre-verdict, the counts on

which the jury will convict or acquit. Even if a defendant

cannot satisfactorily raise the issue of taint before the verdict,

however, he can do so in a post-verdict motion.

6

The plain error standard is met when “(1) there is an error;

(2) the error is clear or obvious, rather than subject to reasonable

dispute; (3) the error affected the appellant’s substantial rights,

which in the ordinary case means it affected the outcome of the

district court proceedings; and (4) the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

United States v. Marcus, — S.Ct.—, 2010 WL 2025203, at *1

13

Guadalupe, 402 F.3d 409, 410 n.1 (3d Cir. 2005). Analogizing

to that standard, we hold that, because Lee did not raise the issue

of taint in the District Court, we must evaluate his claim of taint

– through application of the Pelullo test – under a plain error

standard of review.7

(May 24, 2010) (internal quotations and alterations omitted).

7

This holding is not at odds with our reasoning Wright. In

Wright, the defendant filed a motion to dismiss certain counts of

the indictment, which the district court denied. 363 F.3d at 241.

After the jury returned a guilty verdict, the defendant filed a

motion for judgment of acquittal, renewing arguments that he

had made in his motion to dismiss. Id. The district court

granted the defendant’s motion with respect to certain counts but

denied the motion with respect to other counts. Id. On appeal,

the defendant argued that he was entitled to a new trial due to

prejudicial spillover from the evidence that was admitted to

prove the counts on which the district court granted judgment of

acquittal. Id. at 247. We stated that we did not need to reach

the merits of the defendant’s spillover argument, because the

defendant had not raised it before the district court, and Federal

Rule of Criminal Procedure 33 authorizes a new trial only on

grounds raised by the defendant. Id. at 247-48. We reasoned

that the district court could not have erred in not granting a new

trial based on prejudicial spillover when the defendant never

requested a new trial on that ground. Id. at 248. However,

despite stating that we were not reaching the merits, we

proceeded to use the Pelullo factors to explain why the spillover

argument failed in any event. Id. Thus, in Wright, our focus

14

As discussed below, we conclude that Lee’s claim of

taint fails under Pelullo, even when employing the more

generous plenary standard of review. Accordingly, we have no

difficulty concluding that his claim does not succeed under plain

error review.

ii. The Merits of the Prejudicial Spillover

Argument

The government contends that Lee’s prejudicial spillover

argument fails for two reasons. First, the government says that

the District Court did not err when it denied Lee’s motion for

judgment of acquittal as to the pistol charge because there was

sufficient evidence to allow that charge to go to the jury.

Second, the argument continues, even assuming that the Court

erred in denying Lee’s motion, the rifle conviction can stand

because there was no prejudicial spillover of evidence from the

pistol charge.

The government’s insistence that there was sufficient

evidence to support the pistol charge is not its most persuasive

argument. Indeed, it might have been the better part of wisdom

not to have pressed for that charge to go to the jury. The pistol

was never recovered, and the testimony about its make and, in

turn, about whether it had traveled in interstate commerce,

was on the language of Rule 33 that requires a defendant who

files a motion for a new trial to specify the grounds upon which

he seeks a new trial.

15

turned out to be a bit equivocal.8 However, we need not address

whether it was error to send the pistol charge to the jury

because, even assuming it was, the government is correct that no

prejudicial taint from that charge spilled over into the jury’s

consideration of the rifle charge.

An analysis of whether there was prejudicial spillover

involves two inquiries. See United States v. Cross, 308 F.3d

308, 318 (3d Cir. 2002). First, if “the evidence to prove the

overturned count would have been admissible to prove the

remaining valid count, the defendant was not prejudiced, and

there is no need to consider whether the evidence influenced the

8

For example, the interstate commerce element of the pistol

charge rested first on Kraus, who testified that the gun he saw

on Lee’s lap “appeared” to be a .9 millimeter pistol, based on

the size, shape, and barrel of the gun, but he admitted that he

was not sure. He also testified that the gun “appeared to be

possibly a Beretta [or] possibly a Taurus,” but again he

conceded that he “couldn’t be sure.” (Id. at 392.) The

government also called Mark Willgohs, a special agent with the

Bureau of Alcohol, Tobacco, Firearms & Explosives, who

testified that Beretta firearms are manufactured in Italy and

Taurus firearms are manufactured in Brazil. Willgohs further

testified that there are no commercial manufacturers of firearms

in Pennsylvania. However, he noted that there are some private

manufacturers of firearms in Pennsylvania. Willgohs admitted,

as he had to, that, without examining the gun in question, he

could not determine whether the gun was made by a private

manufacturer or a commercial one.

16

outcome.” Id. In other words, if, in creating a hypothetical trial

as to the valid count only, the evidence of the invalidated count

would have been admissible anyway, the analysis ends there. Id.

If the evidence would not have been admissible, “then we must

consider whether the verdict on the remaining count was

affected adversely by the evidence that would have been

inadmissible at a trial limited to that count.” Id. “Generally,

invalidation of the convictions under one count does not lead to

automatic reversal of the convictions on other counts.” United

States v. Gambone, 314 F.3d 163, 180-81 (3d Cir. 2003) (citing

Pelullo, 14 F.3d at 897).

As to whether evidence regarding the pistol charge would

have been admissible in a trial only about Lee’s possession of

the rifle, Lee asserts that, had the District Court properly granted

him a judgment of acquittal on the pistol charge, evidence

relating to the pistol would have been stricken. According to

Lee, the only reason for allowing evidence of Kraus’s belief that

he saw a pistol “would be to demonstrate Lee’s propensity to

carry firearms ... i.e., a person who carries a pistol on his lap is

the type of person who also transports a rifle in his back seat.”

(Appellant’s Op. Br. at 31.) Admission of such propensity

evidence, Lee argues, is precisely what Rule 404(b) “is intended

to prevent.” 9 Id. However, even if we assume that evidence

9

Rule 404(b) provides the following:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in

order to show action in conformity therewith. It

17

regarding the pistol would not have been admissible during a

trial on the rifle charge alone,10 Lee has failed to show that there

may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence

of mistake or accident, provided that upon request

by the accused, the prosecution in a criminal case

shall provide reasonable notice in advance of trial,

or during trial if the court excuses pretrial notice

on good cause shown, of the general nature of any

such evidence it intends to introduce at trial.

F ED. R. E VID. 404(b)

10

There is at least a plausible argument that the pistol

evidence could have been admissible in the absence of the pistol

charge because it reveals why Kraus drew his own gun and

yelled to Lee, “[g]et your hands in the air,” and why Lee, in

response, fled the scene. (App. at 353-54.) Kraus testified that

seeing a pistol on Lee’s lap is what caused him to draw his

weapon, which in turn led to Lee’s speeding away. Thus, it

could be argued that the evidence was part of the chronology of

events demonstrating why Kraus took the actions that he did.

See United States v. Ramirez, 45 F.3d 1096, 1102 (7th Cir.

1995) (recognizing the “intricately related doctrine” under

which “evidence of uncharged criminal activity is admissible,

even if it does not satisfy the requirements of ... 404(b), if that

evidence is intricately related to the facts of the case before the

court.” (internal quotations, citations and italics omitted)). But

18

was any prejudicial spillover.

In Pelullo, we established a four-part test to evaluate a

spillover claim. We ask

(1) whether the charges were intertwined with

each other ... so as to create substantial confusion

on the part of the jury;

...

(2) whether the evidence for the different counts

was sufficiently distinct to support the verdict on

other separate counts;

...

(3) whether substantially all the evidence introduced to

support the invalid conviction would have been

admissible to prove other counts, and whether the

cf. Cross, 308 F.3d at 320 n. 19 (stating that “we express no

view on whether ‘other acts’ evidence that does not directly

prove an element of the charged offense may be ‘intrinsic’ (and

thus exempt from Rule 404(b)) if the other acts were

‘inextricably intertwined’ with the events underlying the charge,

so that the evidence is necessary for the jury to understand how

the offense occurred”). We do not need to consider the

admissibility question, however, because Lee’s spillover

argument fails even if we accept arguendo that evidence of the

pistol would not have been admitted in a trial solely about the

rifle.

19

elimination of the count on which the defendant was

invalidly convicted would have significantly changed the

strategy of the trial;

...

(4) [whether] the charges, the language that the

government used, and the evidence introduced

during the trial ... are of the sort to arouse a jury ...

[and] whether the defendant was branded with

some terms with decidedly pejorative connotation

... so that the prejudicial spillover effect is

palpable.

14 F.3d at 898-99 (internal citations omitted).

The first Pelullo factor asks whether the charges were

sufficiently intertwined to create confusion on the part of the

jury. Id. at 898. Lee argues that the charges did create

confusion because a single-count indictment charged him with

possessing both the rifle and pistol on the same date, and a

single officer described the entire episode. While it is true that

the pistol charge and the rifle charge were set forth together in

the single-count indictment, and that both allegations arose out

of the events of a single day, there was, on this record, no

meaningful risk that the jury was confused when asked to

consider the two charges.

The proof of the jury’s comprehension is that it found

Lee guilty of possessing the rifle but not guilty of possessing the

pistol. Clearly, it was able to separate the issues and the

20

charges, and it did so, in keeping with the District Court’s

instructions. The Court said,

In order to find the defendant guilty, you must

unanimously determine that the defendant

specifically possessed the rifle, or the pistol, or

both. For example, it is not sufficient for six

jurors to agree that the defendant possessed the

rifle and the other six to agree he possessed the

pistol. Rather, the verdict slip indicates that all

jurors must agree on which weapons, if any, the

defendant possessed.

(App. at 601-02.) Questions about the pistol and the rifle were

also set forth separately in the special interrogatories attached to

the verdict form. In addition, in closing argument, the

prosecutor emphasized that the jury needed to consider the pistol

charge and the rifle charge separately, saying,

[Y]ou have to find that the defendant possessed

the rifle or possessed the pistol or possessed both.

That means all of you as a whole. As the Judge

told you, six of you can’t say, we believe that he

possessed the rifle, and the other six say, we

believe he possessed the pistol. That’s not

enough. All twelve final jurors have to determine

that the defendant possessed the rifle or possessed

the pistol or possessed both.

21

(Id. at 615.) In short, by argument, instruction, and the verdict

form, the jury was told to keep the rifle and pistol charges

separate, and their verdict proves that they did.

The second Pelullo factor asks whether the evidence

relating to each charge was sufficiently distinct that a verdict as

to one could be supported without reference to evidence

regarding the other. 14 F.3d at 898. Put differently, we must

ask whether there was enough independent evidence concerning

Lee’s possession of the rifle to support that charge. Lee argues

that the government mixed together the pistol and rifle evidence

by telling the jury that Kraus had already seen a long slender

object concealed on the back seat of Lee’s Jeep, and then by

asking the jury to infer that what Kraus saw in Lee’s lap was a

firearm. Lee points to the prosecutor’s closing argument, where

he asked the jury, “[h]ow about the fact that there was a gun in

the back seat? Does that lend any more credence to the fact that

what was on [Lee’s] lap was a gun and not a squirt gun?” (App.

at 615.)

Leaving aside the fact that Lee’s logic here is that the

rifle evidence was prejudicially spilling over to support the

pistol charge, which is the opposite of the point he is trying to

make, his argument fails because there was sufficient evidence

of his rifle possession that was distinct from any pistol evidence.

Shortly after Lee abandoned his Jeep, the same distinctive black

coat that Kraus had seen in the Jeep covering the long, slender

object on the backseat was located along a fence near the Jeep,

and that coat was covering a rifle. That very potent evidence

stands independent of the allegation that Lee possessed a pistol,

22

as does the evidence of the bloodhound’s tracking his scent from

the Jeep along a path where the rifle was found.

The third Pelullo factor asks us to look at whether the

absence of the pistol charge would have affected the defense’s

strategy in a trial on the rifle charge only. 14 F.3d at 898-99.

Lee argues that the error affected his trial strategy because the

District Court allowed the jury to base a finding of guilt on

probabilities or propensity. In other words, because Lee was

accused of having two firearms, the jury was permitted to

assume that he probably had at least one. Lee argues that this

necessarily influenced his trial strategy, because, if only

possession of the rifle been charged and had the judgment of

acquittal been granted as to the pistol, the jury would not have

needed any instruction about unanimity as to either the rifle or

the pistol or both.

Instead, the defense would have been a

straightforward plea for a weighing of the

evidence ... . Had evidence supporting the

improper handgun charge never been presented or

been stricken, the jury would not have been

authorized to reach a compromise verdict or rely

on propensities but would instead have been

forced to weigh the evidence and make credibility

determinations.

(Appellant’s Op. Br. at 37-38.)

This argument has a crucial factual flaw in its assertion

that the jury was authorized to reach a compromise verdict. The

23

jury was repeatedly and explicitly told that they were not

permitted to do any such thing, as should be clear from the very

instruction that Lee cites.11 Lee does not identify any additional

arguments he would have made or any witness he would have

called – or not called – if the trial had been solely on the rifle

charge, nor does he describe how his questioning of any witness

would have been materially different. In fact, Lee’s strategy

seems to have been exactly what he says it ought to have been,

namely, asking the jury to weigh the evidence and make

credibility determinations, focusing on uncertainty in Kraus’s

testimony, and arguing the paucity of physical evidence. It

appears that the jury did not “rely on propensities” as Lee

suggests they did, but instead was able to “weigh the evidence

and make credibility determinations,” because they ultimately

acquitted him of the pistol charge.

The final Pelullo factor asks whether the pistol charge

and its accompanying evidence was pejorative or inflammatory.

14 F.3d at 899. Lee does not offer an argument on this factor,

probably because the evidence plainly was neither pejorative nor

inflammatory. The evidence was not that Lee threatened Kraus

with the pistol, but simply that Kraus saw what he believed to be

a pistol on Lee’s lap.

Thus, whether or not the District Court erred in denying

Lee’s motion for judgment of acquittal, all of the Pelullo factors

indicate that there was no prejudicial spillover from the pistol

charge to the rifle charge. Accordingly, Lee is not entitled to a

new trial on the rifle charge.

11

The instruction referred to is the District Court’s statement

that “[i]n order to find [Lee] guilty, you must unanimously

determine that ... [he] specifically possessed the rifle, or the

pistol, or both.” (App. at 601.)

24

B. The Bullet-Proof Vest

Lee next argues that the District Court erred when it

allowed the government to introduce evidence that he was

wearing a bullet-proof vest at the time of the traffic stop, and,

further, when it allowed the government to argue, “what goes

more with a bullet-proof vest than guns?” (App. at 618.) Lee

asserts that this is impermissible propensity evidence under Rule

404(b) and that it is substantially more prejudicial than probative

under Rule 403. The District Court ruled that the bullet-proof

vest was not excludable under Rule 404(b) because it “is

relevant and strong evidence of [Lee’s] alleged possession of

firearms.” (App. at 4.) As a result of the District Court’s ruling,

both the government’s and Lee’s briefs focus on whether the

bullet-proof vest was admissible under Rule 404(b).

In our view, the admissibility of the bullet-proof vest

does not turn on Rule 404(b), because it is not evidence of a

separate wrongful act.12 No one suggested to the District Court

or to the jury that Lee’s possession of the bullet-proof vest was

illegal13 or otherwise wrongful in and of itself; indeed, there was

12

Lee says that the bullet-proof vest evidence is evidence of

a “prior bad act,” but, among other problems with his argument,

he is incorrect as a matter of timing. (Appellant’s Op. Br. at 45.)

His wearing of the vest was not a prior act at all; rather, it was

contemporaneous with the gun possession at issue. More to the

point, though, Rule 404(b) does not focus on when the other

wrongful act may have occurred; it is aimed at keeping out

“[e]vidence of other crimes, wrongs, or acts ... to prove the

character of a person in order to show action in conformity

therewith,” regardless of chronology.

13

While it can be illegal for a felon to possess body armor, see

18 U.S.C. § 931(a) (“[I]t shall be unlawful for a person to

25

no suggestion that there was anything inherently “bad” about

possessing or wearing a bullet-proof vest. Lee’s wearing of the

bullet-proof vest is noteworthy only for what it says about the

nature of the object on the back seat of his Jeep. Thus, the

bullet-proof vest should, in the first instance, be analyzed under

Rules 401 and 402,14 as circumstantial evidence related to a fact

directly in issue, namely, Lee’s alleged possession of a firearm.

Evidence of the bullet-proof vest supports the inference that the

long, slender object beneath the coat on the backseat was a

firearm, in the same manner that the presence of a razor and

small glassine bags found at a crime scene can support the

inference that white powder residue found nearby is cocaine. In

both the case of drug paraphernalia and drugs and the case of a

bullet-proof vest and a firearm, the relationship between the

contraband and the tools sometimes used with contraband

purchase, own, or possess body armor, if that person has been

convicted of a felony that is ... a crime of violence ... .”), no one

has indicated that Lee is the type of felon for whom it would be

illegal, and no one argued that Lee had committed an illegal act

by having the vest.

14

Rule 401 defines relevant evidence as “evidence having any

tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.” F ED. R.

E VID. 401. Rule 402 states that “[a]ll relevant evidence is

admissible, except as otherwise provided by the Constitution of

the United States, by Act of Congress, by these rules, or by other

rules prescribed by the Supreme Court pursuant to statutory

authority. Evidence which is not relevant is not admissible.”

F ED. R. E VID. 402.

We review a district court’s decision as to the

admissibility of evidence for abuse of discretion. United States

v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).

26

allows a logical inference to be drawn. In other words, a jury

could, after considering Kraus’s description of the object on the

backseat and Lee’s decision to wear a bullet-proof vest, draw an

inference that the object was a firearm. The bullet-proof vest is

therefore circumstantial evidence upon which the jury could

properly move toward a conclusion about gun possession.15

Lee next argues that the bullet-proof vest should have

been excluded under Rule 403, because “any purported

probative value was substantially outweighed by the danger of

unfair prejudice.” 16 (Appellant’s Op. Br. at 44 (original

emphasis).) Specifically, Lee argues that the prosecutor’s

accompanying statement – “what goes more with a bullet-proof

15

The government argues that “the fact that Lee was wearing

a bullet-proof vest and was attempting to take off the vest when

he was approached by Lt. Kraus is admissible because the

absence of this fact would create a ‘chronological or conceptual’

void in the Lt. Kraus’s story ... .” (Appellee’s Ans. Br. at 41.)

However, even without mentioning the bullet-proof vest, there

were enough facts in the chronology for a jury to understand

why Kraus stopped Lee’s Jeep and looked at the backseat,

namely, the traffic violation and the furtive movements Lee was

making when he was pulled over. Thus, the bullet-proof vest

was not necessary to construct a chronology.

16

Rule 403 states that, “[a]lthough relevant, evidence may be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.” F ED.

R. E VID. 403.

Lee gives an alternative explanation for having the vest,

namely, that he was wearing it for protection since one day

earlier there had been a homicide in the area.

27

vest than guns? Does it corroborate the fact that there was a gun

in his lap and that there was a gun in the back seat?” – makes the

introduction of the bullet-proof vest even more prejudicial than

it would have been on its own. (App. at 618.)

A district court’s ruling under Rule 403 may be reversed

only if it is “arbitrary or irrational.” See United States v. Univ.

Rehab. Servs. (PA), Inc., 205 F.3d 657, 665, 669 (3d Cir. 2000)

(en banc) (“[We] cannot reverse a District Court’s conclusion

under Federal Rule 403 unless such a conclusion is held to be an

abuse of discretion, which we have defined as ‘arbitrary or

irrational.’” (citing In re Paoli R.R. Yard PCB Lit., 113 F.3d

444, 453 (3d Cir. 1997))). Here, the Court’s ruling was certainly

not so infirm. It, in effect, recognized that the prosecutor was

only providing the jury with the inferential step that he hoped

would be made: that Lee had particular reason to protect

himself against gun violence by wearing body armor because he

was himself carrying a gun. While prejudicial to Lee, it was not

unfairly prejudicial to suggest that bullet-proof vests and guns

often accompany one another.

In addition, while we do not think it helpful to view the

bullet-proof vest as 404(b) evidence, any concern that the jury

might have misinterpreted the relevance of the vest is laid to rest

by the District Court’s instruction that information related to the

vest could only be considered for a limited purpose.17 The Court

17

Limiting instructions are not limited to Rule 404(b)

evidence. They are of assistance in other contexts where the

jury needs to be directed to view a piece of evidence solely as it

pertains to a specific issue. See, e.g., United States v. Jones, 566

F.3d 353, 359 (3d Cir. 2009) (finding that a court’s limiting

instruction was sufficient because it “differentiated [the

defendant’s offenses] from the other offenses connected to his

co-defendant”); United States v. Green, 556 F.3d 151, 155 (3d

28

told the jury, twice, that it should consider the bullet-proof vest

only for “deciding whether the defendant had the state of mind,

knowledge, motive or intent necessary to commit the crime

charged, or did not commit the acts for which he is on trial by

accident or mistake.” (App. at 644-45.) Thus, the Court’s

limiting instruction encouraged the jury to think of the vest only

for what it might imply about whether Lee possessed a firearm

when Kraus confronted him.

Given the high degree of deference we owe when

reviewing a district court’s Rule 403 determination, combined

with the legitimate probative value of the evidence and the

District Court’s limiting instruction, we cannot say that the

decision to admit the bullet-proof vest evidence was arbitrary or

irrational.

C. Lee’s Statements Regarding His Prior Possession

of Firearms

Lee next argues that the District Court erred in admitting

into evidence the statements he made to Kraus during their

interview. Specifically, Kraus provided the following testimony

at trial regarding those statements:

Lee insisted he does not typically own or carry

guns. However, he did state that he has access to

a lot of guns and would use them against anyone

who threatens him or his family. He stated that he

shot at an individual named Pickles, who was well

Cir. 2009) (discussing limiting instructions in the context of

admitting a piece of evidence under one of the exceptions to the

hearsay rule); Vazquez v. Wilson, 550 F.3d 270, 279 (3d Cir.

2008) (discussing the use of limiting instructions in the context

of alleged Bruton violations).

29

known as Ernest Harris, on multiple occasions.

He went on to say that I arrested Pickles, which is

true, in the past, with a firearm. And Mr. Lee

claimed that on that night, that ... Pickles was

arrested, that Pickles was actually on his way with

that gun to kill Mr. Lee. He acknowledged that

and said that there’s a long time, ongoing violent

feud between Mr. Lee’s family and Pickles. ...

Lee continued to insist that he did not have any

weapons in the car when I stopped him on June

27th, but he did compare that to a time when he

stated that he fled from me before in the Hill

District. ... I do remember this. It would have

been probably back in 2001 or 2002. ... He

further told me that if I would have caught him

that night, I would have caught him with guns in

the car, but, again, he continued to insist that he

had no guns in the car on June 27th when I

stopped him.

(App. at 417-18.) In short, Lee admitted that he had access to

guns, that he was willing to use guns, that he had shot at

someone with whom he had an ongoing feud, that that person

had tried to kill him, and that he had possessed a gun at an

earlier time when Kraus tried to stop him. Lee attempted to

exclude those statements as impermissible evidence under Rule

404(b), arguing that they do nothing but show a propensity for

unlawful gun possession. The District Court denied that motion

and held that the statements were “admissible to prove intent,

knowledge and/or the absence of mistake. Defendant has denied

possession of the firearms in question here.” (Id. at 5.)

On appeal, Lee again argues that his statements constitute

impermissible propensity evidence under Rule 404(b). “To the

extent that our review of the district court’s Rule 404(b) ruling

requires us to interpret the rules of evidence our review is

plenary, but, if the evidence could have been admissible in some

circumstances, we would review the district court’s decision to

admit evidence ... for an abuse of discretion.” United States v.

Daraio, 445 F.3d 253, 259 (3d Cir. 2006) (citation omitted).

30

The Supreme Court has created a four-step test for the

admissibility of evidence covered by Rule 404(b):

(1) the evidence must have a proper purpose

under Rule 404(b); (2) it must be relevant under

Rule 402; (3) its probative value must outweigh

its prejudicial effect under Rule 403; and (4) the

court must charge the jury to consider the

evidence only for the limited purpose for which it

is admitted.

United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992)

(citing Huddleston v. United States, 485 U.S. 681, 691-92

(1988)). Only the first, third, and fourth steps are contested

here, as it is undisputed that, under step two, Lee’s statements

are relevant.18

i. Proper Purpose

If the proffered “evidence only goes to show character,

or that the defendant had a propensity to commit the crime, it

must be excluded. Where, however, the evidence also tends to

prove some fact besides character, admissibility depends upon

whether its probative value outweighs its prejudicial effect.” Id.

at 887 (citing Gov’t of V.I. v. Harris, 938 F.2d 401, 419 (3d

Cir.1991)). If the government offers evidence of other wrongful

acts, “it must clearly articulate how that evidence fits into a

chain of logical inferences, no link of which can be the

inference that because the defendant committed ... [such an act]

before, he therefore is more likely to have committed this one.”

Id. Nevertheless, Rule 404(b) “is inclusive, not exclusive, and

emphasizes admissibility.” Id. at 886 (citation omitted).

The government presents several arguments as to why

Lee’s statements are admissible under Rule 404(b). First, it says

that Lee’s statements are “relevant [to] and admissible regarding

18

At least it is undisputed insofar as Lee’s statements reflected

his motives. See infra n.22 and accompanying text.

31

the key issue[] of knowledge.” (Appellee’s Ans. Br. at 45.)

Lee’s trial, however, was not about whether he knew that he had

a rifle in the back seat of his Jeep. There was no question of

accident or mistake. Rather, Lee’s defense was simply that there

was no rifle in his Jeep and that the rifle recovered at the

Apartments was not his. Thus, the trial was about weighing

Kraus’s credibility against Lee’s, and, as Lee rightly notes, “[i]t

is inconceivable that if the jury believed [Kraus’s] testimony it

would have found that Lee acted by mistake.” (Appellant’s Op.

Br. at 47.)

The government presses the point, however, saying that

knowledge is at issue because Lee did not admit possession of

any firearm. It relies on our decision in United States v. Givan,

320 F.3d 452 (3d Cir. 2003), in which the defendant was

convicted of conspiring to distribute and possess with intent to

distribute heroin. Id. at 455. There, we allowed the government

to introduce into evidence the fact that the defendant had a prior

felony drug conviction. We accepted the government’s

argument that,

because it had to prove that Givan knew, prior to

its discovery by the troopers, that a quantity of

heroin was hidden in the back seat of the rental

car and that it had to prove that Givan possessed

the heroin with intent to distribute it, knowledge

and intent were material and contested issues at

trial.

Id. at 460-61. Unlike in Givan, however, where the defendant

denied knowing that there was heroin in the backseat of his

rental car and that he intended to distribute it, Lee has not put

knowledge at issue. Lee is not arguing that he did not know

there was a rifle in his back seat. His argument is a

straightforward denial that any gun was there.

The government also argues that Lee put his knowledge

at issue when his counsel told the jury, “Yes, the police did find

the rifle in the woods near where Mr. Lee abandoned his Jeep,

but the evidence will show that he did not put it there.” (App.

32

at 334.) But the government’s argument fails again. The quoted

comment does not amount to a statement that Lee did not know

the rifle was in his possession or near his vicinity; it was once

more an out-and-out denial that he had anything to do with the

gun.

The government does far better with motive as a theory

of admissibility. According to the government, the statements

Lee made to Kraus reveal Lee’s motive for possessing firearms

because he admitted that he has no qualms about using such

weapons against anyone who threatens him or his family, and he

stated that he was in a violent feud with Ernest “Pickles” Harris.

See App. at 216 (“The defendant’s statements regarding his

motive for possessing firearms (to use them against anyone who

would threaten Mr. Lee or his family, such as ... ‘Pickles’, with

whom he and his family have had a long standing feud) is

certainly relevant to his motive to possess a firearm in this

matter.”). We agree with that assessment of the statements. Not

only did Lee claim that, at some point in the past, Harris had

planned to shoot him and he had shot at Harris, he also admitted

that the feud he and his family had with Harris was ongoing.

Moreover, Lee conceded that he “has access to a lot of guns and

would use them against anyone who threatens him or his

family.” (Id. at 417.) Those statements reveal that Lee had

reason to possess a weapon on the day in question.19

19

The Dissent questions whether motive is “relevant in a case

such as this ... [because] we are not faced with a situation where

answering ‘why’ would help solve the crime ... .” (Dissent at p.

7-8.) Motive is one of the permissible purposes listed in Rule

404(b) not because the “why” helps solve a crime, but because

it is highly relevant to show that a defendant had a motivation to

commit the crime for which he is being charged. In a case like

this, where Lee is asserting that he never had a gun on the day

in question, it is important to know that he had a personal

motivation to possess a gun. Indeed, someone who is involved

in an ongoing feud – a feud during which guns have been used

– is far more likely to have a gun in his possession than

someone who is not involved in such a feud. See United States

v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002) (“[I]n cases

33

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. ... [A] jury could infer

possession from motive, which could in turn be inferred from

intent.”) (quotations omitted).

The Dissent also points out that the District Court did not

cite to motive in its initial ruling on the admissibility of the

statements. (Dissent at pp. 8-9.) However, the District Court

did instruct the jury that it could “consider the evidence ... for

the purpose of deciding whether the defendant had the ... motive

... to commit the crime charged ... .” (App. at 596.) That

decision to instruct on motive is not without meaning. By

offering motive as a basis on which the jury could consider the

evidence, the District Court necessarily concluded that motive

was a proper basis for admission of one or more of the

statements.

Further, the Dissent’s reliance on Sampson, in which we

held that “[t]he district court, if it admits the evidence, must in

the first instance, rather than the appellate court in retrospect,

articulate the reasons why the evidence goes to show something

other than character[,]” 980 F.2d 888, does not account for

language that follows immediately after that quote. We went on

to say that, “Unless the reason is apparent from the record, a

mere list of the purposes found in Rule 404(b) is insufficient.”

Id. (emphasis added). Motive, in this instance, is apparent from

the record, and is an entirely legitimate basis upon which the

jury could consider statements about Lee’s reason for having a

rifle, despite his denials. Lee’s statements to Kraus reveal that

he was afraid of being attacked by a specific person – who had

attempted to kill him in the past – and that he would arm himself

for his and his family’s protection.

In sum, Lee had a compelling reason to arm himself, and

that is directly relevant to the question of whether Lee had a rifle

in his car.

34

We note that the final part of Lee’s statements to Kraus

– in which Lee admitted that he had possessed firearms on a

prior occasion in 2000 or 2001 when Kraus stopped him – does

not, in isolation, speak to motive in the same way as Lee’s

statements about possessing guns to protect his family and about

his ongoing feud with Harris’s family. Based on the record, we

cannot tell whether, as a factual matter, the statement about

2000 or 2001 was part and parcel of Lee’s first two statements

about protecting his family and his violent feud with Harris.

Moreover, it is not clear to us whether, as a procedural matter,

defense counsel, in argument before the District Court, treated

Lee’s statements as one single conversation, or whether defense

counsel treated the statements as analytically distinct. While

defense counsel did parse the statements in a motion in limine

submitted to the District Court, in the briefing before us, no

35

distinction was drawn between the various admissions.20 (See

App. at 180.)

Assuming that this last statement can, as a factual matter,

be separated from Lee’s first two statements, and assuming

further that this last statement was argued separately to the

District Court and so can be analyzed separately here, it was

error to admit the third statement regarding Lee’s 2000 or 2001

gun possession because that statement is not probative of motive

(or any other permissible ground listed in 404(b)). Unlike the

statements concerning the ongoing feud and his desire and

capability to protect himself and his family with guns, his

comment that he once had a gun years earlier does not, on its

20

The Dissent slices the statement more finely than did the

defendant in his motion in limine. Our dissenting colleague

analyzes Lee’s statement to Kraus by dividing it into six

separate statements (Dissent at pp. 1-4), while Lee had divided

it into three, leaving out certain elements of the statement

altogether (see App. at 180). As an initial matter, the Dissent

separates the statement, “[Lee] shot at an individual named

Pickles” from “[Pickes] was actually on his way with that gun

to kill [Lee] ... [and] there’s a long time, ongoing violent feud

between Mr. Lee’s family and Pickles.” (Id.) The Dissent faults

us for not separating those two statements. (See Dissent p. 4

n.2.) However, Lee never separated that description of the feud

into two separate statements, and rightly so because those

statements, as Kraus recounted them, can appropriately be

viewed as a single statement about the feud. That Lee shot at

Pickles also shows the degree to which the feud between them

was real and violent, and not just a matter of heated words. It

thus shows the high degree of Lee’s motivation to possess a gun.

Moreover, at trial, Lee argued only that the entire

interview with Kraus should be excluded, not that it should be

parsed into six separate statements to be analyzed individually.

The defense argument was simply to keep it all out. We should

be wary of holding district courts to an analytical construct that

was not fairly presented at trial.

36

own, prove anything about a present motive to be armed.

However, any error in admitting that third statement was

harmless in the context of the overall admissions, because it was

“highly probable” that the admission of Lee’s final statement did

not contribute to the conviction, especially considering the fact

that the jury had just heard the previous two statements that

spoke so directly to Lee’s motive.21 See United States v. Ali,

493 F.3d 387, 392 (3d Cir. 2007) (“[T]he test for harmless error

is whether it is highly probable that evidentiary error did not

contribute to conviction.” (citing Gov’t of V.I. v. Toto, 529 F.2d

278, 283-84 (3d Cir.1976))); 2A F EDERAL P ROCEDURE,

L AWYER'S E DITION § 3:8444 (1981) (“[F]ederal appellate courts

are more willing to find harmless error in the area of evidentiary

rulings than they are in other areas of procedure.” (citing

Julander v. Ford Motor Co., 488 F.2d 839, 843 (10th Cir.

1973))).22

21

In discussing harmless error, our dissenting colleague

suggests that the rest of the evidence of Lee’s guilt was not

“overwhelming,” citing to, for example, Digger’s equivocal

actions near the rifle and the lack of forensic evidence. (Dissent

at pp. 19-20.) However, the Dissent is not recognizing that 1)

Lee fled from the original stop; 2) a coat matching what Kraus

said he saw covering a long object in the backseat of Lee’s Jeep

was found with the rifle near the Jeep; 3) Lee admitted that he

had abandoned the Jeep near where the rifle was found; and 4)

Lee continued to be a fugitive until he was found hiding in a

couch. These are not minor facts. They are, particularly in

combination, powerful evidence of guilt, even without the

404(b) statements.

22

The government also contends that Lee’s statements are

admissible evidence of his modus operandi. The prosecution’s

theory is as follows: Lee admitted to fleeing from a traffic stop

conducted by Kraus four years earlier because he had a weapon

in his vehicle. That prior act shows Lee’s method of flight to

avoid conviction for weapons possession. We have held that

“[a] jury can rationally infer from evidence that the defendant

committed a prior crime in an unusual and distinctive manner

and evidence that a second similar crime was committed in the

37

In conclusion, the government presented a “chain of

logical inferences” between Lee’s prior weapons possession and

the rifle charge that does not suggest a mere propensity to

engage in weapons offenses. Sampson, 980 F.2d at 887. Lee’s

statements about possessing guns to protect his family and about

his ongoing and violent feud with Harris’s family are relevant to

show his motive for possessing a rifle on the day in question.

Thus, the evidence was offered for a proper purpose under Rule

404(b).

ii. Probative Value vs. Prejudicial Effect

Given the relevance of Lee’s statements,23 we next

determine under Huddleston whether, pursuant to Rule 403, the

danger of unfair prejudice substantially outweighs the probative

value of the statements. 485 U.S. at 691. Given the substantial

deference owed to district courts in weighing evidence under

Rule 403, combined with the highly probative value of the

evidence – particularly Lee’s statements about his feud with

Harris and what that revealed about Lee’s motive – the District

Court’s decision to admit those statements was not “arbitrary or

irrational.” See Univ. Rehab. Servs., 205 F.3d at 669 (“[We]

cannot reverse a District Court’s conclusion under Federal Rule

403 unless such a conclusion is ... ‘arbitrary or irrational.’”

(citation omitted)). Indeed, the statements reveal Lee’s motive

to possess weapons on the day in question, which is highly

same unusual and distinctive manner that the defendant

committed the second crime.” Givan, 320 F.3d at 467-68. But

there was nothing unusual or distinctive about Lee driving away

from the police back in 2000 or 2001. As Lee notes, “[t]he act

of fleeing from a traffic stop to avoid being found with

contraband is hardly so unique as to create an inference that Lee

had a rifle in his Jeep here because he had a gun in his vehicle

[before] ... .” (Appellant’s Op. Br. at 51.)

23

See supra n. 18 and accompanying text.

38

probative in a case like this, in which the defendant has denied

possession all together.24

iii. Limiting Instructions

Lastly, Huddleston requires us to ensure that the District

Court charged the jury to consider the evidence only for the

limited purpose for which it was admitted. 485 U.S. at 691-92.

The District Court gave a limiting instruction as follows:

Now, you have heard evidence that the defendant

... made certain statements to Lieutenant Kraus

about his past possession and use of firearms

when he was arrested on July 12, 2005. This

evidence was admitted for a limited purpose only.

You may consider this evidence only for the

purpose of deciding whether the defendant had

the state of mind, knowledge, motive or intent

necessary to commit the crime charged in the

indictment, or did not commit the acts for which

he is on trial by accident or mistake. Do not

consider the evidence for any other purpose.

24

Our dissenting colleague asserts that we “never address[] the

issue of prejudice” (Dissent at p. 15), but we have endeavored

to do so here. To reiterate, it was not an abuse of discretion to

conclude that the danger of unfair prejudice – i.e., that the jury

would wrongly use Lee’s admission of prior gun possession and

use to conclude that he must have been guilty of the crimes

charged here – did not substantially outweigh the relevance of

the statements Lee made to Kraus. Application of the standard

dictated by Rule 403 is, by definition, a judgment call. That the

District Court could usefully have made that judgment call with

a more explicit description of its “probative value vs. prejudicial

effect” weighing of the evidence does not lead us to conclude

that the experienced trial judge failed to apprehend the nature of

the prejudice and the probative values at stake.

39

Of course, it is for you to determine whether you believe

this evidence, and if you do believe it, whether you

accept it for the purpose offered. You may give it as

much weight as you feel it deserved, but only for the

limited purpose that I described to you.

The defendant is not on trial for committing these

other acts. You may not consider the evidence of

these other acts as a substitute for proof that the

defendant committed the crime charged. You

may not consider this evidence as proof that the

defendant has a bad character or any propensity to

commit crimes. Specifically, you may not use this

evidence to conclude that because the defendant

may have committed the other acts, he must also

have committed the act charged in the indictment.

Remember, the defendant is on trial here only for

possessing a firearm on the date in question, not

for these other acts. Do not return a guilty verdict

unless the government proves the crime charged

in the indictment beyond a reasonable doubt.

(App. at 595-97 (quoting T HIRD C IRCUIT M ODEL J URY

INSTRUCTIONS - C RIMINAL § 4.29 (2009).) At the conclusion of

the District Court’s instructions to the jury, defense counsel

asked the Court to repeat the limiting instruction, which it did.

Now, for the first time, Lee challenges the adequacy of

that instruction. Because he did not object at trial, any review

of the instruction must be for plain error. See United States v.

Olano, 507 U.S. 725, 734-36 (1993); see also United States v.

Pelullo, 399 F.3d 197, 221 (3d Cir. 2005) (“A party generally

may not assign error to a jury instruction if he fails to object

before the jury retires or to ‘stat[e] distinctly the matter to which

that party objects and the grounds of the objection.’” (quoting

Jones v. United States, 527 U.S. 373, 387 (1999))).

Lee has not shown any error in this regard, much less

plain error. Though Lee argues that the District Court’s

40

instruction provided no guidance because it simply repeated the

litany of permissible theories under Rule 404(b), the Court in

fact did more than simply list the 404(b) grounds. The

instruction properly informed the jury of the limited purpose for

considering Lee’s admissions about gun possession.25 To the

extent that Lee is now arguing that the jury could not have

understood the instruction, we have rejected such sweeping and

non-specific assertions before. See Givan, 320 F.3d at 462 (“[I]t

is a basic tenet ... that a jury is presumed to have followed the

instructions the court gave it ... [and i]f we preclude the use of

evidence admissible under Rule 404(b) because of a concern

that jurors will not be able to follow the court’s instructions

regarding its use we will inevitably severely limit the scope of

evidence permitted by that important rule.”). L e e ’ s

statements about possessing guns to protect his family and about

his feud with Harris therefore meet the guidelines for

25

The implication from the Dissent is that the District Court’s

limiting instruction – which followed nearly word-for-word our

Circuit’s model 404(b) instruction – is inherently inadequate.

(See Dissent at p. 13-14.) We disagree. The list of proper

evidentiary purposes set forth in 404(b) and repeated in the

model instruction, which is the list that the District Court used

here, is not made improper solely because the Court was not as

clear as it could have been in articulating why motive was a

proper purpose that the jury could rely on when considering

Lee’s statements to Kraus. We take this opportunity to

encourage district court judges to delineate the specific grounds

for admissibility of 404(b) evidence, even if the entire 404(b)

litany has already been recounted. Our dissenting colleague is

quite right to note that comments to the model jury instructions

encourage that practice. (Dissent at p. 13-14 n.8.) However, the

government argued motive; motive is apparent on the record;

and the District Court instructed on motive. Given the very

deferential standard we are under, the instruction was adequate.

To hold otherwise would be contrary to one of the overarching

principles we referred to in Sampson, namely that “[Rule

404(b)] is inclusive, not exclusive, and emphasizes

admissibility.” 980 F.2d at 886.

41

admissibility articulated in Huddleston. They were admissible

for a proper purpose under Rule 404(b) as evidence of Lee’s

motive for possessing a weapon; they are undisputedly relevant

under Rule 402; the District Court’s finding under Rule 403 that

the danger of unfair prejudicial effect did not substantially

outweigh the probative value of the statements was not arbitrary

and irrational; and the District Court twice charged the jury to

consider the evidence only for the limited purpose for which it

is admitted.26 See Huddleston, 485 U.S. at 691-92.

D. The Prosecutor’s Statements Regarding Digger

Lee next argues that he is entitled to a new trial based on

two instances of prosecutorial misconduct. First, he contends

that, during the government’s closing, the prosecutor improperly

referred to evidence regarding the bloodhound, Digger, that had

been excluded by the District Court. Second, he asserts that the

prosecutor vouched for the credibility of Digger based on his

own personal experience with hunting dogs. That misconduct,

says Lee, deprived him of due process and a fair trial.

i. Background

In a pre-trial motion, Lee sought to exclude the evidence

of Digger’s behavior as irrelevant, or, if relevant, inadmissible

26

The Dissent suggests that Lee’s statements are also

problematic because they were recounted by Kraus, rather than

by Lee himself. (See Dissent pp. 14-15 n. 20.) But virtually

every confession entered into evidence at a criminal trial is made

to someone else and not on the stand by the defendant, and very

often the confessions are made to police officers. We do not

presume a reliability problem in all such cases. Here, Lee

frankly confessed to Kraus his motive for and willingness to

carry a firearm. Further, the defense theory of the case has not

been that Lee never said to Kraus what Kraus claims Lee said.

The dispute instead has consistently been about whether the

statements should be allowed into evidence, not whether they

were made.

42

under Rule 403. Specifically, Lee argued that the evidence

would make the jury believe that Digger “actually identified the

gun and the jacket when, in fact, that’s not what happened.”

(App. at 226.) Lee also attacked the probative value of the

evidence, arguing that the officers searching the area had

contaminated the Jeep and the scene so that the dog could not

have reliably tracked a scent.

The Court held that the evidence of Digger’s tracking

was admissible, “as it tends to prove that [Lee], who had

occupied the front seat of the Jeep, had traveled along the

pathway where the coat and rifle were found and then on to the

apartment complex. This is circumstantial evidence that [Lee]

possessed and removed the coat and rifle from the Jeep.” (Id. at

2.) The Court added, however, that “the Government has agreed

to eliminate any reference in the testimony that Digger paused

at the coat and rifle, thus, further reducing any unfair prejudice

to [Lee].” 27 (Id.)

In light of the Court’s pre-trial ruling, police officer

Harkins, the dog handler, did not mention in his testimony that

Digger “paused” at the coat and the rifle. Rather, he said that

Digger went from the Jeep, “down a flight of steps, through a

very overgrown weeded asphalt parking lot ... slightly to the left

angle of the fence.” (Id. at 458.) He added that Digger “went

down the fence line approximately 20, 25 feet” (id.), and that he

came within “10 to 15 inches” of the rifle and the coat. (Id. at

460.)

Lee argues that, unlike Harkins, the prosecutor

disregarded the Court’s instructions and argued exactly what the

Court had excluded, namely, that Digger paused at the coat and

rifle. The prosecutor said the following:

[W]hat Digger told us from Chief Harkins on the

stand is that the person who was the driver of that

27

The Court’s meaning was plainly that the risk of unfair

prejudice was reduced.

43

car went straight down the steps, straight across

the parking lot, deposited a gun, went through the

fence ... and then ultimately escaped.

...

What happened with Digger is that Digger came

from the car, went down the steps, across the

parking lot and to the gun. Digger did not go to

the right where the first person to find this firearm

went originally, Digger went in that exact path.

Does this support Lieutenant Kraus or does it

contradict him?

(Id. at 617; 619.) Lee did not object when those statements were

made, but argues on appeal that in making those statements, the

prosecutor was suggesting that Digger paused at the rifle, which

was forbidden by the Court’s earlier ruling. Lee contends that

“it is [] improper for a prosecutor, during closing arguments, to

bring to the attention to the jury any purported facts that are not

in evidence and are prejudicial.” (Appellant’s Op. Br. at 59

(citation omitted).)

The second instance of alleged misconduct is what Lee

calls the prosecutor’s impermissible vouching for Digger, by

“assuring the jury of Digger’s credibility based on [the

prosecutor’s] ... own personal experience hunting and tracking

using dogs.” (Id.) The specific statements Lee points to are as

follows:

I am a hunter. Some of you may be as well. As a

hunter, I’ve had experience with dogs in the past.

I’ve hunted with bird dogs and I’ve hunted with

beagles for the majority of my life. It never

ceased to amaze me when we were out with those

dogs, their abilities.

When I rabbit hunt with my brothers and my

father, we would sometimes see a rabbit, we

would jump a rabbit and it would be running out

front. Our dog, being much smaller than us, he

44

couldn’t necessarily see the rabbit, so we had a

signal that we would tell the dog where we saw

and what we saw. We would say, here’s the

bunny. That meant to the dog, we saw the rabbit,

here’s where we think it was. And the dog would

come there and start to circle and from just going

to that location, smelling in one direction and then

smelling in the other, that dog could tell which

one of those two tracks was fresher and go in the

direction that the rabbit went to rather than where

the rabbit came from. That never ceased to amaze

me.

Or, when you hunted with bird dogs, that that bird

dog would stop a foot and a half from this

particular bird, a pheasant—

(App. at 615-16.) At that point, Lee’s counsel objected, noting

the “personal nature of the testimony which doesn’t have

anything to do with the evidence.” (Id.) The District Court

sustained defense counsel’s objection, stating that “we should

move from that.” (Id.) The prosecutor complied and did not

return to his reminiscing.

ii. Standard of R eview : P rosecu to r ia l

Misconduct

We review for abuse of discretion a district court’s ruling

on a contemporaneous objection. United States v. Brennan, 326

F.3d 176, 182 (3d Cir. 2003). However, any

non-contemporaneous objections are reviewed for plain error.

Id. While Lee objected to one portion of the prosecutor’s

closing argument – the portion that Lee now claims was

vouching – he did not object to the part of the closing involving

Digger’s behavior near the rifle. It is only here on appeal that he

asserts that the prosecutor committed misconduct by suggesting

45

that Digger paused at the coat and rifle.28 Thus, we review the

ruling on alleged vouching for abuse of discretion, and we

review the prosecutor’s description of Digger’s behavior near

the rifle for plain error.

A prosecutor’s comments can create reversible error if

they “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974). “[A] criminal

conviction is not to be lightly overturned on the basis of a

prosecutor’s comments standing alone, for the statements or

conduct must be viewed in context; only by so doing can it be

determined whether the prosecutor’s conduct affected the

fairness of the trial.” United States v. Young, 470 U.S. 1, 11

(1985). Moreover, we “must examine the prosecutor’s offensive

actions in context and in light of the entire trial, assessing the

severity of the conduct, the effect of the curative instructions,

and the quantum of evidence against the defendant.” Moore v.

Morton, 255 F.3d 95, 107 (3d Cir. 2001). “A finding of

prosecutorial misconduct requires reversal unless the error is

harmless.” Brennan, 326 F.3d at 182. “If the error is

constitutional, we will affirm [only] if we determine that the

error is harmless beyond a reasonable doubt.” United States v.

Helbling, 209 F.3d 226, 241 (3d Cir. 2000). “If the error is non-

constitutional, we will affirm when it is highly probable that the

error did not contribute to the judgment.” Id. (quotation

omitted).

28

Lee tries to argue that he preserved the issue by objecting to

the prosecutor’s proposed use of this evidence during a

suppression hearing, reminding the Court of its ruling excluding

the evidence, and noting in his own closing argument that the

prosecutor’s interpretation of the bloodhound evidence was

incorrect. However, those are not objections raising the specific

contention that the prosecutor had alluded to excluded evidence.

In fact, there was no objection to the specific statements which

Lee now argues contained excluded evidence.

46

iii. The Prosecutor’s Alleged Reliance on

Excluded Evidence

Though silent on the issue before, Lee now contends that

the prosecutor committed misconduct by alluding to excluded

evidence in suggesting that Digger “paused” at the coat and

rifle. (App. at 2.) Lee’s previous silence is understandable,

since the record does not actually support his argument. At no

time did the prosecutor state that Digger paused or hesitated at

the coat and the rifle. While the prosecutor did state that

“Digger came from the car, went down the stairs, across the

parking lot and to the gun” (Id. at 619), and while that comment

arguably comes close to what was prohibited by the District

Court, there was no assertion that the dog paused or alerted at

the gun. Instead, a fair interpretation of the prosecutor’s

argument is that Digger led the police away from the car, down

a path, and to the area where the coat and rifle were located,

before heading to the Apartments. Given Harkins’s testimony

that Digger traced a path from Lee’s car to within inches of

where the police discovered the coat and rifle, the District

Court’s allowing the prosecutor’s argument was not plain error.

We have repeatedly held that a “prosecutor is entitled to

considerable latitude in summation to argue the evidence and

any reasonable inferences that can be drawn from that

evidence.” United States v. Werme, 939 F.2d 108, 117 (3d Cir.

1991) (citation omitted). That latitude encompasses the

argument that the path that Digger tracked was evidence that

Lee had dropped the coat and rifle by the fence.

iv. The “Vouching” Argument

A prosecutor may not vouch for the credibility of a

witness based on the prosecutor’s personal knowledge,

experience, or opinions. See Young, 470 U.S. at 18-19.

Vouching occurs when two criteria are met: “(1) the prosecutor

must assure the jury that testimony of a Government witness is

credible; and (2) this assurance is based on either the

prosecutor’s personal knowledge, or other information not

contained in the record.” United States v. Walker, 155 F.3d 180,

187 (3d Cir. 1998). While Lee says that the prosecutor vouched

47

for the bloodhound evidence, the government argues that there

was no vouching because the prosecutor “merely told an

anecdote about his own experience with Beagles and bird dogs.”

(Appellee’s Ans. Br. at 64.) The government then argues that it

is “common knowledge that dogs have an ability much greater

than humans to detect scent.” (Id. at 65 (quotation omitted).)

Whether something is “common knowledge” to a group

of people largely depends, of course, on the composition of the

group. The amazing abilities of hunting dogs are not the

common ken of all humanity. Perhaps the heightened ability of

dogs to detect scent is well-known, but the prosecutor did not

confine himself to that. Rather, he spoke from his own personal

experience with dogs, dating back to his childhood, and

reflected on the remarkable things he had witnessed. As a

result, the jury may have been influenced by the prosecutor’s

experiences, thinking that the prosecutor’s views bolstered the

credibility of Kraus’s and Harkins’s testimony about Digger.29

This is what the rule against vouching prohibits.

29

The government argues that it “is unclear whether or not a

prosecutor could be guilty for vouching for a police dog, who

was not actually a witness in the matter.” (Appellee’s Ans. Br.

at 64.) To the extent that Lee is complaining not just about the

prosecutor’s vouching for Kraus’s and Harkins’s testimony

about Digger but is also saying that the prosecutor was vouching

directly for Digger, an interesting question is raised. Assuming

the latter problem were the only one at issue and we were not

presented with a classic case of vouching for the credibility of

a testifying witness, it would still be a close cousin of classic

vouching. If the prosecutor was vouching for the reliability of

Digger as an expert on tracking scent, using personal anecdotes

to vouch for Digger’s expertise, that would be impermissible

because “[i]t is well settled that a prosecutor in a criminal case

has a special obligation to avoid improper suggestions,

insinuations, and especially assertions of personal knowledge[,]”

United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998)

(internal quotations omitted), which the I-know-dogs

commentary was here.

48

However, even though the prosecutor did cross the line

into improper vouching, a new trial is not warranted because it

is highly probable that the error did not contribute to Lee’s

conviction, for several reasons.30 Helbling, 209 F.3d at 241.

First and most significantly, the prosecutor did not continue the

vouching once an objection was raised and the District Court

directed the prosecutor to move on.31 See United States v.

Galloway, 316 F.3d 624, 633 (6th Cir. 2003) (holding that,

while prosecutor’s statement concerning his personal opinion

were improper, the statement did not warrant a reversal because

the defendant objected at trial and the court sustained the

objection and directed the prosecutor to move on). Second, the

acuteness of Digger’s sense of smell was of record through

Harkins’s testimony. Third, the testimony about Digger’s

behavior required no vouching. The dog went within inches of

the rifle on its way to the Apartments. That concrete and

specific evidence, not general praise for the nose on man’s best

friend, is what in all likelihood left an impression on the jury, if

anything about Digger did. Fourth, the Court specifically

instructed the jury that “what the lawyers said is not evidence

and it’s not binding on you.” (App. at 589.)

Thus, despite the wholly unnecessary vouching for the

testimony about Digger and the gratuitous comments about a

dog’s ability to track a scent, a new trial is not warranted

because it is highly probable that the misconduct did not

contribute to the judgment.

30

While Lee describes vouching as a constitutional error, we

have held that “vouching that is aimed at the witness’s

credibility and is based on extra-record evidence is deemed

non-constitutional error.” United States v. Dispoz-O-Plastics,

Inc., 172 F.3d 275, 286 (3d Cir. 1999) (citing United States v.

Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995)).

31

Lee notes that the District Court did not give any curative

instruction after it sustained his objection. However, defense

counsel never requested one, and the prosecutor moved on

immediately after the Court sustained the objection.

49

E. Reckless Endangerment as a Crime of Violence

Lee challenges his sentence, arguing that the District

Court erred in classifying his misdemeanor conviction for

reckless endangerment as a “crime of violence,” thereby

increasing his offense level under the career offender

enhancement found in § 2K2.1(a)(2) and (a)(4) of the

Sentencing Guidelines.32 The government had argued to the

District Court that Lee’s conviction was a crime of violence

under the Guidelines but, on appeal, concedes that “reckless

conduct, standing alone, is not the type of purposeful conduct

that can constitute a crime of violence ... [and thus, Lee’s]

sentence should be vacated and the case remanded for the

purposes of re-sentencing.” (Appellee’s Ans. Br. at 68 (citation

omitted).)

Lee and the government are correct in their agreement

about the law. Following Lee’s sentencing hearing, the

Supreme Court decided Begay v. United States, 553 U.S. 137

(2008), in which it effectively held that, to qualify as a crime of

violence, the crime at issue must present “a serious potential risk

of physical injury” and be one that “typically involves

purposeful, violent, and aggressive conduct.” 33 Id. at 144-45.

The Court expressly distinguished crimes involving negligence

or recklessness from those involving violence or aggression. Id.

at 146; see also United States v. Johnson, 587 F.3d 203, 208 (3d

32

The District Court employed the 2007 edition of the

Guidelines Manual, effective November 1, 2007.

33

While the Begay Court addressed the definition of “violent

felony” under the Armed Career Criminal Act (“ACCA”), we

have since held that the definition of “violent felony” in the

ACCA and the definition of a “crime of violence” in the

Sentencing Guidelines are “close enough that precedent under

the former must be considered in dealing with the latter.”

United States v. Polk, 577 F.3d 515, 519 n.1 (3d Cir. 2009)

(citations omitted).

50

Cir. 2009). Thus, following Begay, a conviction for mere

recklessness cannot constitute a crime of violence.34

Lee’s earlier-noted conviction for concededly reckless

conduct, standing alone, does not qualify as a crime of violence.

Accordingly, as the parties agree, Lee’s sentence must be

vacated and the case remanded for re-sentencing.

F. The Constitutionality of the Felon-In-Possession

Statute

Finally, Lee argues that the felon-in-possession statute is

unconstitutional. He recognizes, however, that we are bound by

our decision in United States v. Singletary, 268 F.3d 196, 198-

205 (3d Cir. 2001), in which we confirmed the constitutionality

of the felon-in-possession statute, and he acknowledges that he

presents this issue only “to preserve a challenge to the

constitutionality of [the felon-in-possession statute] for Supreme

Court review.” (Appellant’s Op. Br. at 80.) We therefore reject

that argument without further discussion.

34

Other circuits addressing the issue have similarly held that,

after Begay, reckless conduct does not qualify as a crime of

violence. Johnson, 587 F.3d at 211 n. 8. See, e.g., United States

v. Baker, 559 F.3d 443, 453 (6th Cir. 2009) (holding that

Tennessee’s reckless endangerment statute does not qualify as

a crime of violence); United States v. Smith, 544 F.3d 781,

786-87 (7th Cir. 2008) (finding that Indiana’s criminal

recklessness statute is not a crime of violence); United States v.

Gray, 535 F.3d 128, 131-32 (2d Cir. 2008) (holding that New

York’s reckless endangerment statute is not a crime of

violence).

Pennsylvania’s reckless endangerment statute, under

which Lee was convicted, states that “[a] person commits a

misdemeanor of the second degree if he recklessly engages in

conduct which places or may place another person in danger of

death or serious bodily injury.” 18 P A. C ONS. S TAT. § 2705.

51

III. Conclusion

For the reasons discussed above, we will affirm Lee’s

conviction but will vacate his sentence and remand for re-

sentencing.

52

RENDELL, Circuit Judge, dissenting.

I respectfully dissent because I conclude that the District

Court should not have admitted Officer Kraus’s testimony

concerning Lee’s post-arrest statements regarding Lee’s prior

experiences with guns, violent feuds, and past experiences with

Officer Kraus, and that this error was not harmless. I

acknowledge that this is a close case and that our standard is

deferential, but I submit that when it comes to guns, we must be

careful, for the prejudicial impact on the jury of this type of

character evidence is very real indeed.

The majority opinion refers to salient portions of Kraus’s

testimony but it is worth including it in its totality. I number

distinct points for ease of reference. Kraus testified that, in a

post-arrest interview:1

1. Lee insisted he does not typically

own or carry guns. However, he

did state that he has access to a lot

of guns and

1

Although the District Court and the majority opinion refer

to, respectively, “Defendant’s statements made by him at the

time of his arrest,” App. 5, and “Lee’s Statements Regarding His

Prior Possession of Firearms,” Majority Op. 29, the evidence in

question is actually Officer Kraus’s testimony regarding his

report of statements Lee purportedly made to him post-arrest.

These were not transcribed statements, nor were they statements

in Lee’s own words, and the report was not made part of the

record as far as I can tell.

2. would use them against anyone

who threatens him or his family.

3. He stated that he shot at an

individual named Pickles, who was

well known as Ernest Harris, on

multiple occasions.

4. He went on to say that I arrested

Pickles, which is true, in the past,

with a firearm. And Mr. Lee

claimed that on that night, that

Ernest Harris, Pickles was arrested,

that Pickles was actually on his way

with that gun to kill Mr. Lee. He

acknowledged that and said that

there’s a long time, ongoing violent

feud between Mr. Lee’s family and

Pickles. . . .

5. Lee continued to insist that he

did not have any weapons in the car

when I stopped him on June 27th,

but he did compare that to a time

when he stated that he fled from me

before in the Hill District. He

asked me if I remembered the time

that I chased him and lost the car

that started on Morgan Street in the

2

hill. As I was remembered, he

stated that I pulled behind him, I

had my — at that time in a marked

police car, when I was in uniform

in patrol in the Hill District, I guess

I was behind him, according to him,

and I had my white illumination

lights, which are like spotlights

contained on the light bar of the car

which we can access, and when he

saw those lights, he claimed that he

thought I was preparing to pull him

over. So he stopped, motioned me

alongside of him to ask for

directions to Chauncey Street. I did

remember that. He went on to say

that he had — I had gotten out of

the car because I had smelled

marijuana and as I approached, the

car he took off. And I do

remember this. It would have been

probably back in 2001 or 2002. I

didn’t know at the time it was Mr.

Lee. There was no connection at

that point, but I did remember that.

6. He further told me that if I would

have caught him that night, I would

have caught him with guns in the

car, but, again, he continued to

insist that he had no guns in the car

3

on June 27th when I stopped him.

App. 417-18. The majority concludes that the initial references

to the facts that Lee had access to guns and would use them to

protect his family (statements 1 and 2), and that he had an

ongoing violent feud with Ernest “Pickles” Harris (statement 4),

were admissible as probative of Lee’s “motive,” 2 and that this

outweighed the prejudice caused by the reference to his prior

gun possession. It reasons that the rest of the passage

(statements 5 and 6) should not have been admitted but that its

admission does not require a new trial because it was “highly

probable” that the offending statements did not contribute to the

verdict. I respectfully disagree.

As a trial court judge, I was always concerned about

references to past possession or use of guns in gun cases, and

references to past possession or use of drugs in drug cases.

While often admissible as going to a proper purpose under Rule

2

The majority does not explicitly discuss the admission of

statement 3, the statement that Lee “shot at an individual named

Pickles, who was well known as Ernest Harris, on multiple

occasions,” instead folding this statement into its analysis

regarding the “violent feud” between Lee and Harris. Majority

Op. 30. This is significant, given that perhaps the most grave

prior bad act evidence introduced is that Lee supposedly stated

that he had shot at Harris. It is not clear how the fact that Lee

shot at Harris ‘adds’ anything relevant to Lee’s motive for

possessing a gun, once it is established that Lee and Harris are

engaged in an ongoing violent feud.

4

404(b), from an evidentiary standpoint, this type of evidence

makes the jury’s job (i.e. to avoid using this type of evidence as

branding the defendant as a gun or drug criminal) very difficult,

as a practical matter.

While the potential impact of this type of evidence can

nonetheless be contained by specific instructions to the jury, the

prejudice resulting from evidence of guns and drugs is immense.

As the Advisory Committee’s Note to Rule 404(a) indicates, this

type of character evidence epitomizes what “prejudice” is all

about:

Character evidence is of slight

probative value and may be very

prejudicial. It tends to distract the

trier of fact from the main question

of what actually happened on the

particular occasion. It subtly

permits the trier of fact to reward

the good man and to punish the bad

man because of their respective

characters despite what the

evidence in the case shows actually

happened.

Fed. R. Evid. 404(a) Advisory Committee’s Note. I submit that

the potential for such “distraction” is especially great in gun and

drug cases.

Prior bad act evidence is governed by Rule 404(b),

which, as the majority notes, involves a four-step test requiring

5

courts to assess proper purpose and relevance, to weigh

prejudice against probative value under Rule 403, and to offer

an appropriate limiting charge to the jury. Huddleston v. United

States, 485 U.S. 681, 691-92 (1988). The Advisory Committee

Notes to Rule 404(b) state that, while evidence of other wrongs

or acts is “not admissible to prove character as a basis for

suggesting the inference that conduct on a particular occasion

was in conformity with it,” such evidence “may be offered for

another purpose, such as proof of motive, opportunity, and so

on, which does not fall within the prohibition.” None of the

statements here were admitted for a proper purpose.

First of all, the part of the statement that the majority has

held is probative of motive, regarding Lee’s willingness to use

guns to protect his family and the ongoing feud in which he is

engaged, is only a small part of what the jury heard. As noted

above, the jury also heard Officer Kraus testify that Lee told him

that he had access to “a lot of guns,” that he has shot at Ernest

“Pickles” Harris “on multiple occasions,” that he has previously

fled from Officer Kraus because Officer Kraus smelled

marijuana coming from his car, and that he did have guns in his

car during this previous encounter with Officer Kraus. None of

these other, very colorful, statements—which I have labeled 1,

3, 5, and 6—go to Lee’s motive for possessing guns in general,

let alone to his motive for possessing a rifle on this particular

occasion. The majority rightly criticizes the “proper purpose”

theories offered by the Government other than motive

(knowledge, intent, absence of mistake, modus operandi),

recognizing that the only statements that may have been

properly admitted are those that could be relevant to motive.

The other statements from Officer Kraus’s testimony have no

6

probative value and fail the ‘relevance’ test of Huddleston

entirely. They should have been excised from what the jury

heard.3

The other two portions of Officer Kraus’s testimony,

referencing the facts that Lee would use guns to protect his

family and that he is in an ongoing violent feud with Ernest

“Pickles” Harris, present closer calls. The majority found these

statements admissible as probative of Lee’s “motive.” I am less

sure.

First, it is questionable that “motive” is relevant in a case

such as this. Lee did not contend that he had no reason to

possess a gun, and we are not faced with a situation where

answering “why” would help solve the crime of possession.

There is no suggestion in the record that Lee was on his way to

a confrontation with Ernest “Pickles” Harris, or to protect his

family, or to do anything else with a gun at that particular

moment. If relevant at all, Lee’s family feud is not of great

probative value with respect to the question of whether he in

3

The majority takes me to task for parsing the statements in

a way the defense did not, Majority Op. n.20, since the defense

urged total exclusion. But I urge total exclusion as well. And

the statements are parsed only for ease of reference and in order

to follow the majority’s analysis which distinguishes among

them.

7

fact was in possession of a gun on this particular occasion.4

Second, and perhaps most importantly, the District Court

did not rule that these statements were admissible as relevant to

motive. Instead, the District Court ruled that the statements

were “admissible to prove intent, knowledge and/or the absence

of mistake.” 5 App. 5. The majority quite properly rejects the

“knowledge” theory of admissibility, but concludes that the

“government does far better with motive as a theory of

admissibility,” Majority Op. 33, in effect substituting its own

theory as to why some of the statements might have been

permissibly admitted. The majority’s conclusion as to relevance

to motive is undermined by the fact that we are to review the

ruling of the District Court, which held that “[e]vidence that

Defendant had knowingly possessed firearms at other times is

proper to prove knowledge and intent and not excludable under

Rule 404(b).” App. 5. This is the ruling that we are to

review—not some hypothetical alternative ruling that the

District Court might have made. It is true that the Government

argued the motive theory, briefly, before the District Court, and

it advances that theory before us as well. The District Court did

4

We have noted that the probative value of prior bad acts

evidence “is significantly less” when the defense is that the

defendant did not perform the charged act at all. United States

v. Daraio, 445 F.3d 253, 265 (3d Cir. 2006) (quoting United

States v. Jemal, 26 F.3d 1267, 1273 n.3 (3d Cir. 1994)).

5

The District Court did refer to “state of mind, knowledge,

motive or intent” in its instructions to the jury. App. 596.

8

not admit the statements as relevant to Lee’s motive. Indeed,

the fact that this theory was advanced by the Government, but

not relied upon by the District Court in its ruling, actually

suggests that the District Court rejected this rationale.6

Accordingly, we must consider the District Court’s stated

rationale for admitting the statements: that “[e]vidence that

Defendant had knowingly possessed firearms at other times is

proper to prove knowledge and intent.” App. 5.

As the majority convincingly argues, the knowledge and

intent rationales for admitting the statements do not hold water:

Lee’s trial . . . was not about

whether he knew that he had a rifle

6

The majority writes: “By offering motive as a basis on

which the jury could consider the evidence, the District Court

necessarily concluded that motive was a proper basis for

admission of one or more of the statements.” Majority Op. 34

n.19. Although this inference might make sense in theory, it is

not appropriate here. The District Court instructed the jury that

it could consider the statements for state of mind, knowledge,

motive, intent, or absence of accident or mistake. App. 596.

But there is no reason to suppose that the District Court

concluded that, for example, absence of accident or mistake was

a proper basis for admission. Rather, it seems that the District

Court was simply reciting the litany of potentially proper

purposes. More to the point, if the District Court concluded that

motive was a proper basis for admission, it should have said so.

9

in the back seat of his Jeep. There

was no question of accident or

mistake. Rather, Lee’s defense was

simply that there was no rifle in his

Jeep and that the rifle recovered at

the Apartments was not his. . . .

Lee has not put knowledge at issue.

Lee is not arguing that he did not

know there was a rifle in his back

seat. His argument is a

straightforward denial that any gun

was there.

Majority Op. 32. Thus, evidence going to either knowledge or

intent is not “relevant” as required by Huddleston’s second

prong, a fact the majority implicitly recognizes in a footnote.

Majority Op. 31 n.18. I conclude, therefore, that the two

statements were admitted for an improper purpose.

We might be able to somehow justify the admission of

these statements, albeit for the wrong reason, were it not for the

importance we have placed on having the trial court draw the

jury’s attention to the specific aspect of the case to which the

particular evidence relates. In United States v. Sampson, the

Government urged the admissibility of a prior drug conviction

as demonstrating “plan or scheme” and “refuting an accident or

mistake” defense. 980 F.2d 883, 885 (3d Cir. 1992). The trial

court indicated that the evidence “fall[s] within the purview of

the exceptions listed in 404(b),” and instructed the jury that

“[y]ou may consider the defendant’s prior convictions only as

they relate to proof of motive, opportunity, intent, preparation,

10

plan, knowledge, identity, or absence of mistake or accident, and

not for any other purpose.” Id. at 888-89. We reversed and

remanded, after concluding that both the ruling and the

instructions were flawed, and, furthermore, that the Rule 403

balancing required under Rule 404(b) was not apparent from the

record. Id. Regarding the trial court’s ruling, we said:

The district court, if it admits the

evidence, must in the first instance,

rather than the appellate court in

retrospect, articulate reasons why

the evidence also goes to show

something other than character.

Unless the reason is apparent from

the record, a mere list of the

purposes found in Rule 404(b) is

insufficient. The district court must

put a chain of inferences into the

record, none of which is the

inference that the defendant has a

propensity to commit this crime.

Id. at 888.7 As to the instruction to the jury, we said:

7

Contrary to the majority’s contention that the reason for

admission would have been apparent from the record, Majority

Op. 34 n.19, I submit that the jury would not readily understand

that the gun feud evidence was relevant to, and only to, Lee’s

motive.

11

This instruction does not cure the

error. Where the government has

not clearly articulated reasons why

the evidence is relevant to any

legitimate purpose, there is no

realistic basis to believe that the

jury will cull the proper inferences

and material facts from the

evidence. By simply repeating the

entire litany of permissible theories

under Rule 404(b), the judge’s

instruction gave the jury inadequate

guidance. It also failed to limit the

government to the theories it

proffered in support of admission

of the evidence.

Id. at 889. As to the balancing of probative value versus

prejudice, we noted:

When a court engages in a Rule

403 balancing and articulates on the

record a rational explanation, we

will rarely disturb its ruling.

Where, however, the court failed to

perform this analysis, or where its

rationale is not apparent from the

record, there is no way to review its

discretion.

12

Id. at 889 (citation omitted). We concluded:

In sum, we are not holding that the

evidence of Sampson’s prior drug

convictions is not relevant to a

proper purpose. We simply hold

that a legitimate relevance has not

been properly demonstrated and

that the record does not show that

the court conducted a Rule 403

balancing. In the new trial, if the

government again tries to introduce

the evidence, it must carry the

burden of proffering a rational

chain of inferences and the district

court must then evaluate the given

reasons in the context of the

developing case and give the

rationale for its ruling. We will

reverse and remand for a new trial.

Id. Thus, we held in Sampson that the district court must

identify the proper purpose and instruct the jury as to exactly

how it should use the evidence.8 That did not occur here.

8

The Third Circuit Manual of Model Jury Instructions makes

this same point, instructing judges to “describe the precise

purpose or purposes for which the other act evidence was

admitted,” and to “[p]ick those of the following, or other

reasons, that apply,” followed by a list of example reasons,

13

Instead, the District Court instructed the jury reciting the litany

of possible proper purposes: “You may consider this evidence

only for the purpose of deciding whether the defendant had the

state of mind, knowledge, motive or intent necessary to commit

the crime charged in the indictment, or did not commit the acts

for which he is on trial by accident or mistake.” App. 596. The

Rule 403 balancing was a single statement in the District

Court’s ruling: “Additionally, such evidence is highly probative

and not excludable under Rule 403 as its prejudicial effect does

not outweigh its probative value.” App. 5.

including state of mind, knowledge, intent, motive, opportunity,

preparation, planning, modus operandi, absence of accident or

mistake, and identity. Third Circuit Mod. Crim. Jury Instr. 4.29

(emphasis added). The Comment to the Model Instructions also

stresses that the “instruction should not merely include a laundry

list of permitted uses of other act evidence. Rather, it should

specifically state the limited purpose for which the other act

evidence is admitted.” Third Circuit Mod. Crim. Jury Instr. 4.29

cmt. (citing Michael H. Graham, Handbook of Federal

Evidence, § 404.5 n.56 (5th ed. 2001)).

The majority suggests that the District Court’s instruction

“followed nearly word-for-word our Circuit’s model 404(b)

instruction.” Majority Op. 40 n.25. Although it is true that the

words the District Court used are found in our Circuit’s model

instruction, the District Court failed to do as the manual advises,

namely, to “describe the precise purpose” for which the other act

evidence was admitted, and to “pick” the reasons that apply.

14

Although our review standard is extremely deferential,9

we should be hard-pressed to approve of the District Court’s

ruling as to the admissibility of even the motive evidence when

the District Court failed to identify the correct purpose, conduct

the Rule 403 balancing with reference to the correct purpose, or

draw the jury’s attention to the purpose that even the majority

concludes was the only permissible purpose, namely, motive. I

conclude that, in light of the plain language of Rule 404 and our

ruling in Sampson, the District Court did err here because the

reasoning, instructions, and balancing were inadequate as to the

“motive” statements. I also conclude that, even if arguably

relevant to some proper purpose, the extremely prejudicial

nature of these statements outweighed any probative value under

the Rule 403 prong. The majority never addresses the issue of

prejudice, but as I noted above, when the crime pertains to guns

I suggest that painting the defendant’s character and past as

effectively gun-filled is prejudicial indeed. As to the rest of the

statements, they did nothing other than reinforce the notion that

Lee is the type of person who possesses guns, shoots them at

people, carries them in his car, and has run-ins with, and evades,

law enforcement. This testimony had no proper purpose or

probative value whatsoever.

9

While we are to be deferential to the trial court and review

for abuse of discretion, here the District Court did not admit any

of the statements for a proper purpose under Rule 404, and

violation of the Rule is an abuse of discretion. “A district court

by definition abuses its discretion when it makes an error of

law.” Koon v. United States, 518 U.S. 81, 99 (1996).

15

Given the damning nature of these statements, I think it

very difficult to conclude that the introduction of these

statements was harmless. The majority correctly notes that the

appropriate test for ‘harmlessness’ is “whether it is highly

probable that evidentiary error did not contribute to conviction.”

Majority Op. 36 (citing United States v. Ali, 493 F.3d 387, 392

n.3 (3d Cir. 2007) (citing Gov’t of V.I. v. Toto, 529 F.2d 278,

283-84 (3d Cir. 1976))). But, we have also stated that an

appropriate standard for “errors affecting nonconstitutional trial

rights,” as in this case, is “whether the error ‘had substantial and

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

United States v. Toliver, 330 F.3d 607, 612 (3d Cir. 2003)

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

These two statements of the test are both borne of the Supreme

Court’s reasoning in Kotteakos. In Government of the Virgin

Islands v. Toto, the case from which the majority draws its test,

we noted that “[w]e are thus required to apply in this case the

test of Kotteakos. We must decide ‘whether the error itself had

substantial influence (on the minds of the jury.) [sic] If so, or if

one is left in grave doubt, the conviction cannot stand.’” 529

F.2d at 283 (citing Kotteakos, 328 U.S. at 765). We also noted

that “stating the test is easier than applying it,” id., which

remains true even if we focus only on the question of whether it

is highly probable that evidentiary error did not contribute to

conviction. It is worth returning to Kotteakos for guidance, as

the Supreme Court eloquently expounded on the proper way in

which we, the reviewing court, should assess whether an error

was “harmless” in the context of determining the effect of errors

in a criminal case:

[I]t is not the appellate court’s

16

function to determine guilt or

innocence. Nor is it to speculate

upon probable reconviction and

decide according to how the

speculation comes out. Appellate

judges cannot escape such

impressions. But they may not

make them sole criteria for reversal

or affirmance. Those judgments

are exclusively for the jury, given

always the necessary minimum

evidence legally sufficient to

sustain the conviction unaffected

by the error.

But this does not mean that

the appellate court can escape

altogether taking account of the

outcome. To weigh the error’s

effect against the entire setting of

the record without relation to the

verdict or judgment would be

almost to work in a vacuum. In

criminal causes that outcome is

conviction. This is different, or

may be, from guilt in fact. It is

guilt in law, established by the

judgment of laymen. And the

question is, not were they right in

their judgment, regardless of the

error or its effect upon the verdict.

17

It is rather what effect the error had

or reasonably may be taken to have

had upon the jury’s decision. The

crucial thing is the impact of the

thing done wrong on the minds of

other men, not on one’s own, in the

total setting.

This must take account of

what the error meant to them, not

singled out and standing alone, but

in relation to all else that happened.

And one must judge others’

reactions not by his own, but with

allowance for how others might

react and not be regarded generally

as acting without reason. This is

the important difference, but one

easy to ignore when the sense of

guilt comes strongly from the

record.

If, when all is said and done,

the conviction is sure that the error

did not influence the jury, or had

but very slight effect, the verdict

and the judgment should stand,

except perhaps where the departure

is from a constitutional norm or a

specific command of Congress.

But if one cannot say, with fair

18

assurance, after pondering all that

happened without stripping the

erroneous action from the whole,

that the judgment was not

substantially swayed by the error, it

is impossible to conclude that

substantial rights were not affected.

The inquiry cannot be merely

whether there was enough to

support the result, apart from the

phase affected by the error. It is

rather, even so, whether the error

itself had substantial influence. If

so, or if one is left in grave doubt,

the conviction cannot stand.

328 U.S. at 763-65.

Accordingly, we are not to look solely at the quality or

quantum of the evidence of guilty (“whether there was enough

to support the result,” id. at 765), but “even so” did the error

have “substantial influence.” Here, the other evidence of guilt

was not overwhelming; every aspect was a judgment call: Was

Digger’s reaction a clear identification that the rifle in the woods

was Lee’s rifle? Was what Officer Kraus saw in Lee’s car,

during the brief time it was stopped, a rifle? Lee was never seen

in the woods; he was found in an apartment, hiding in a couch,

two weeks later. There was no forensic evidence or eyewitness

who ever saw Lee with the gun in question, or who could

identify the gun as Lee’s. If the jury knew nothing about Lee,

would it have been more likely to have had reasonable doubt

19

and acquit? Did the statements detailing Lee’s extensive

experience with guns, and prior criminal activity known to

Officer Kraus, sway or influence the jury? 10 “If, when all is said

and done, the conviction is sure that the error did not influence

the jury, or had but very slight effect, the verdict and the

judgment should stand.” Id. at 764. In light of the nature of the

other evidence, and the nature of the statements, I do not have

this “conviction,” and am left in “grave doubt.” I would thus

conclude that the error was not harmless and that a new trial is

warranted.

10

It is worth noting that, since the statements were presented

as coming from Lee himself, additional concerns arise. In a

different context, the Supreme Court has stated “admissions of

a defendant come from the actor himself, the most

knowledgeable and unimpeachable source of information about

his past conduct. Certainly, confessions have profound impact

on the jury, so much so that we may justifiably doubt its ability

to put them out of mind even if told to do so.” Arizona v.

Fulminante, 499 U.S. 279, 296 (1991) (citation omitted).

Fulminante dealt with the admission of a coerced confession;

here, we have no issue of coercion. However, because it was

reported by Kraus (whose credibility was a central concern in

the case), and it was not committed to writing or acknowledged

by Lee, we arguably face similar concerns as to reliability: “the

risk that the confession is unreliable, coupled with the profound

impact that the confession has upon the jury, requires a

reviewing court to exercise extreme caution before determining

that the admission of the confession at trial was harmless.” Id.

20