The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4208
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARDELL R. BROWN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:07-cr-00234-PJM-1)
Submitted: September 15, 2010 Decided: October 22, 2010
Before KING and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Lauren E. Case, Ariel S.
Glasner, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Emily N. Glatfelter, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Wardell R. Brown of possession of a
firearm after being convicted of a felony, in violation of 18
U.S.C. § 922(g)(1) (2006). On appeal, Brown argues that the
district court abused its discretion in admitting evidence under
Fed. R. Evid. 404(b) that, in 1996 and 1997, Brown possessed a
firearm. For the following reasons, we reject Brown’s
contention and affirm.
Rule 404(b) states that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” Fed.
R. Evid. 404(b). Such evidence “may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id. Furthermore, “[t]o be admissible under Rule
404(b), evidence must be (1) relevant to an issue other than
character; (2) necessary; and (3) reliable.” United States v.
Siegel, 536 F.3d 306, 317 (4th Cir. 2008) (internal quotation
marks and citation omitted). “Rule 404(b) is . . . an inclusive
rule, admitting all evidence of other crimes or acts except that
which tends to prove only criminal disposition,” United States
v. Young, 248 F.3d 260, 271-72 (4th Cir. 2001) (internal
quotation marks and citation omitted), and, “[a]s a rule of
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inclusion, the rule’s list is not exhaustive.” United States v.
Queen, 132 F.3d 991, 994-95 (4th Cir. 1997).
“Evidence sought to be admitted under Rule 404(b) must
also satisfy [Fed. R. Evid.] Rule 403[] . . .” Siegel, 536 F.3d
at 319. Under Rule 403, “damage to a defendant’s case is not a
basis for excluding probative evidence” because “[e]vidence that
is highly probative invariably will be prejudicial to the
defense.” United States v. Grimmond, 137 F.3d 823, 833 (4th
Cir. 1998). “Rule 403 only requires suppression of evidence
that results in unfair prejudice--prejudice that damages an
opponent for reasons other than its probative value, for
instance, an appeal to emotion, and only when that unfair
prejudice substantially outweigh[s] the probative value of the
evidence.” United States v. Mohr, 318 F.3d 613, 619-20 (4th
Cir. 2003) (internal quotation marks and citation omitted).
Brown contends that the Government’s evidence that he
possessed a firearm in 1996 and 1997 was offered to prove his
bad character and was thus inadmissible under Rule 404(b). In
contrast, the Government contends that the evidence, which was
admitted with a limiting instruction, was admissible to prove
Brown’s knowledge and intent to possess the firearm in this
case.
The Government may prove the possession element in a
§ 922(g) prosecution by showing actual or constructive
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possession of the firearm. United States v. Moye, 454 F.3d 390,
395 (4th Cir. 2006). “‘Actual possession’ is defined as
‘[p]hysical . . . control over property.’” Id. (quoting Black’s
Law Dictionary 1201 (8th ed. 2004)). Constructive possession
exists when the evidence shows “that the defendant intentionally
exercised dominion and control over the firearm, or had the
power and intention to exercise dominion and control over the
firearm.” United States v. Scott, 424 F.3d 431, 435-36 (4th
Cir. 2005).
In cases like Brown’s, involving constructive
possession, evidence of prior firearm possession is admissible
to show knowledge and intent. See, e.g., United States v.
McCarson, 527 F.3d 170, 173-74 (D.C. Cir. 2008); United States
v. Moran, 503 F.3d 1135, 1143-46 (10th Cir. 2007); United States
v. Strong, 415 F.3d 902, 904-06 (8th Cir. 2005); United States
v. Brown, 961 F.2d 1039, 1042 (2d Cir. 1992). Such evidence is
admissible because, “in cases where a defendant is charged with
unlawful possession of something, evidence that he possessed the
same or similar things at other times is often quite relevant to
his knowledge and intent with regard to the crime charged.”
United States v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002)
(internal quotation marks and citation omitted). Our review of
the trial transcript leads us to conclude that the evidence of
Brown’s gun possession in 1996 and 1997 was admissible under
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Rule 404(b) to prove Brown constructively possessed the firearm
involved in the instant offense.
Brown argues in the alternative that the evidence
nonetheless was inadmissible because of the passage of time
between his prior gun possession and the instant case and
because of its failure to meet Rule 403’s balancing test. We
disagree. The passage of time did not require exclusion of this
relevant, probative evidence. See Moran, 503 F.3d at 1145-46;
Strong, 415 F.3d at 905-06. Moreover, “because [Brown] denied
he had knowledge of the [revolver], the prior conviction had
clear probative value in rebutting this defense.” Moran, 503
F.3d at 1145-46. Thus, the evidence “undercut [Brown’s]
argument at trial that the [firearm] belonged to [someone
else].” McCarson, 527 F.3d at 174; see also Moran, 503 F.3d at
1146 (same); Strong, 415 F.3d at 906 (same). Finally, the
district court reduced the risk of unfair prejudice by giving
limiting instructions to the jury, explaining that the jury
could consider the evidence only in determining Brown’s
knowledge and intent. See Queen, 132 F.3d at 997.
We therefore conclude that the district court did not
abuse its discretion in admitting the challenged evidence. See
United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007)
(stating standard of review). Accordingly, we affirm the
district court’s judgment. We dispense with oral argument
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because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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