United States v. Cassell, Dwayne

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2002 Decided June 11, 2002

No. 01-3050

United States of America,

Appellee

v.

Dwayne Cassell,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 00cr00270-01)

Lisa B. Wright, Assistant Federal Public Defender, argued

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

Kramer, Federal Public Defender. Valencia R. Rainey,

Assistant Federal Public Defender, entered an appearance.

Roy W. McLeese III, Assistant U.S. Attorney, argued the

cause for appellee. On the brief were Roscoe C. Howard, Jr.,

U.S. Attorney, John R. Fisher, Elizabeth Trosman, Stuart G.

Nash and Patricia A. Heffernan, Assistant U.S. Attorneys.

Before: Sentelle and Rogers, Circuit Judges, and

Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Appellant Dwayne Cassell was

charged in a five count indictment with, inter alia, possession

of a firearm by a felon in violation of 18 U.S.C. s 922(g)(1)

and possession of a firearm during drug trafficking in viola-

tion of 18 U.S.C. s 924(c)(1) following a search of his uncle's

home that turned up three guns, ammunition, marijuana,

crack cocaine, and drug paraphernalia. At Cassell's trial, the

district court admitted evidence over Cassell's objection that

Cassell had been convicted in 1997 for possessing a loaded,

9-mm semi-automatic firearm, and that a few weeks before

the search, police found a loaded, 9-mm semi-automatic fire-

arm that fell from underneath the rear bumper of Cassell's

car while it was being towed. Following a jury trial, Cassell

was convicted of both firearms charges.1 Cassell appeals on

grounds that the evidence of his two prior gun possessions

violated Rules 404(b) and 403 of the Federal Rules of Evi-

dence. We disagree and affirm his convictions.

I. Background

On July 13, 2000, officers of the Metropolitan Police De-

partment searched Lawrence Hart's northeast Washington,

D.C. home pursuant to a search warrant. Hart is Dwayne

Cassell's uncle, with whom Cassell had been living at the time

of the search. During the search of Cassell's room, police

recovered a loaded 9-mm pistol, a loaded AR-15 (.223-

caliber, semi-automatic) assault rifle, and $3150 in cash.

From Hart's room, police recovered $750 in cash, marijuana,

a .32 revolver, and .22 caliber ammunition. Hart, who was

present during part of the search, was carrying $1429 in cash

on his person. From other parts of the house the police

__________

1 Cassell was also convicted of two other charges that are not

relevant to this appeal.

recovered additional marijuana, approximately $11,500 worth

of crack cocaine, scales, ziplock bags, additional 9-mm ammu-

nition, .30 caliber ammunition, cocaine base residue on a plate

with Cassell's fingerprint on it, and a magazine for a semi-

automatic weapon. At the scene, police arrested Hart, who

subsequently agreed to plead guilty to Carrying a Pistol

Without a License ("CPWL") and to testify against Cassell.

II. Proceedings Below

Prior to Cassell's trial, prosecutors sought to introduce

evidence of Cassell's two prior gun possessions. Specifically,

prosecutors sought to introduce evidence of a 1997 CPWL

conviction stemming from an arrest in a housing complex in

Washington, D.C. called Sursum Corda. At the time of this

prior arrest, Cassell had a loaded, 9-mm semi-automatic

firearm in his pants pocket. Prosecutors also sought to

introduce evidence that a few weeks before the search of

Hart's apartment, Cassell's car was impounded and towed

from Sursum Corda. During transport of his car, a loaded,

9-mm semi-automatic firearm fell from underneath the rear

bumper.

Cassell objected to this testimony on grounds it violated

Federal Rules of Evidence 404(b) and 403. See Fed. R. Evid.

404(b) (evidence of other crimes or acts); Fed. R. Evid. 403

(unfair prejudice). The government contended that the evi-

dence was probative of Cassell's knowing and intentional

possession of the firearms recovered from his bedroom, and

that his possession of those firearms was not mistaken,

accidental, or inadvertent. The government also contended

that the evidence was probative of his criminal intent and

state of mind. Although the parties misunderstood the dis-

trict court's initial ruling, a review of the record from the

evidentiary hearing indicates that the district court ruled that

the government could introduce the fact that Cassell was

convicted of a felony in 1997 to establish the predicate

element of the felon in possession charge,2 but it could not

__________

2 Cassell's CPWL conviction was actually a misdemeanor convic-

tion that could not serve as the predicate offense for a s 922(g)

introduce the fact that the conviction stemmed from a gun-

related offense because doing so would be more prejudicial

than probative. The district court also ruled that with re-

spect to the circumstances surrounding the 1997 conviction

and the 9-mm firearm recovered from Cassell's car, the

evidence would be excluded as more prejudicial than proba-

tive, see Fed. R. Evid. 403, and as impermissible 404(b)

evidence. See Fed. R. Evid. 404(b). The court did rule,

however, that this evidence could be admitted under Rule

404(b) as a circumstantial link to the ammunition found in

Hart's house,3 or if Cassell asserted a "lack of knowledge"

defense.

Once at trial, Cassell asserted both during opening argu-

ment and through cross-examination of government witnesses

that the firearms were not his, but instead belonged to Hart.

At the end of the government's case-in-chief, the government

tendered a proposed stipulation to the defense which included

the fact that the 1997 conviction involved a firearm as well as

the factual circumstances surrounding the underlying arrest.

When Cassell objected on grounds that the stipulation includ-

ed facts which the district court had ruled inadmissible, the

district court reviewed its notes from the evidentiary hearing

and clarified its earlier ruling. The court reiterated its

earlier decision that the government was prohibited under

Rule 403 from presenting evidence that the 1997 conviction

involved a firearm. The court then restated its 404(b) deci-

sion--ruling that the two prior gun possessions would be

excluded unless there was an "explicit or an implicit indication

during the government's case brought by the defense of lack

of knowledge." After evaluating the evidence so far present-

ed, the district court ruled that "the cross-examination in this

__________

charge; however, Cassell had a prior felony conviction to which the

parties stipulated at trial.

3 The evidence admitted at trial established that the 9-mm maga-

zine and ammunition recovered from Hart's house fit the 9-mm

firearm recovered from Cassell's bedroom, and the government did

not attempt at trial to link either of the prior gun possessions to the

9-mm ammunition recovered from Hart's house.

case so far clearly has left an impression with the jury that

the defense is that [the guns] were not the defendant's." The

court thereafter admitted the evidence of the two prior gun

possessions after "having examined it under [Federal Rule of

Evidence] 404(b) and also having examined it under [Federal

Rule of Evidence] 403." The parties then stipulated to the

facts surrounding Cassell's 1997 conviction as well as the facts

surrounding the recovery of the weapon that fell from Cas-

sell's car.

Cassell now contends that the district court mistook his

"lack of possession" defense for a "lack of knowledge" defense

by "confus[ing] a denial of the required mens rea, which

would arguably increase the legitimate probative value of the

prior gun possessions on the issue of mens rea, with a denial

of the act of possession, which would not." We reject Cas-

sell's argument because we reject the distinction he makes

between knowledge and possession with respect to the fire-

arms recovered from his room, and because we agree with the

district court's analysis under Rules 404(b) and 403.

III. Analysis

Federal Rule of Evidence 404(b) prohibits "[e]vidence of

other crimes, wrongs, or acts ... to prove the character of a

person in order to show action in conformity therewith."

Fed. R. Evid. 404(b). Although stated as a restriction, the

Rule is actually one of "inclusion rather than exclusion."

United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000).

Evidence is only prohibited if it is offered for the impermissi-

ble inference that a defendant is of bad character resulting in

bad conduct. See, e.g., United States v. Miller, 895 F.2d

1431, 1436 (D.C. Cir.), cert. denied, 498 U.S. 825 (1990). Thus

evidence of a defendant's prior bad acts is admissible for

purposes unrelated to the defendant's character or propensity

to commit crime, such as "proof of motive, opportunity, intent,

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

or accident." Fed. R. Evid. 404(b); see also Miller, 895 F.2d

at 1436 ("[U]nder Rule 404(b), any purpose for which bad-

acts evidence is introduced is a proper purpose so long as the

evidence is not offered solely to prove character.").

Given this focus on inclusion, our Rule 404(b) analysis

begins with a determination of whether the evidence is proba-

tive of some issue other than character. United States v.

Washington, 969 F.2d 1073, 1080 (D.C. Cir. 1992), cert. de-

nied, 507 U.S. 922 (1993). We will not sustain a Rule 404(b)

objection if the evidence of other crimes is relevant, relates to

something other than character or propensity, and supports a

jury finding that the defendant committed the other crime or

act. See Bowie, 232 F.3d at 930. Once past this first step,

the evidence is admitted unless it is otherwise prohibited

under any of the other " 'general strictures limiting admissi-

bility,' " such as Rule 403. Washington, 969 F.2d at 1080

(quoting Miller, 895 F.2d at 1435). With this framework in

mind, we review a district court's Rule 404(b) decision for

abuse of discretion, Bowie, 232 F.3d at 926-27, and afford it

"much deference on review." United States v. King, 254 F.3d

1098, 1104 (D.C. Cir. 2001) (Henderson, J., concurring) (inter-

nal quotations and citations omitted). After considering the

arguments before us, we conclude that the district court

properly admitted evidence of Cassell's prior gun possessions

because it was relevant to show knowledge of, and intent to

possess, the firearms recovered from his room, and was not

more prejudicial than probative.

A. Admission of Evidence under Rule 404(b)

In order to convict Cassell of the possession charges, the

government was required to prove that he knowingly pos-

sessed the firearms recovered from his bedroom. Because

there is no evidence that Cassell actually possessed the

firearms, the government could establish that Cassell con-

structively possessed the firearms by proving that he " 'knew

of, and was in a position to exercise dominion and control

over' " them. United States v. Clark, 184 F.3d 858, 863 (D.C.

Cir. 1999) (quoting United States v. Byfield, 928 F.2d 1163,

1166 (D.C. Cir. 1991)). A successful conviction, then, includes

proof of a physical element (dominion and control over the

actual weapons) as well as a mental element (knowing posses-

sion). In this case, the physical element is not contested:

Cassell does not dispute that the firearms were recovered

from his bedroom. He instead disputes the fact that he ever

possessed the firearms, either knowingly or unknowingly,

because, according to him, the firearms belonged to his uncle.

He contends that this "lack of possession" defense is funda-

mentally different from the "lack of knowledge" defense

identified by the district court and relied upon as the basis for

admitting his prior acts of gun possession.

We do not think that the concepts of knowledge and intent

are so easily separated from possession in this case. Al-

though the district court's initial ruling and subsequent expla-

nation of that ruling may not have explicitly defined the

concept, we think it is clear from the record that the element

in dispute was the mental element required for a conviction--

that is, Cassell's knowing (and intentional) possession of the

firearms recovered from his bedroom. We have previously

held that "in cases where a defendant is charged with unlaw-

ful 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." King, 254 F.3d at 1100 (citing Huddleston v.

United States, 485 U.S. 681, 689 (1988)). We also acknowl-

edged in United States v. Crowder, 141 F.3d 1202, 1208 (D.C.

Cir. 1998) (en banc), cert. denied, 525 U.S. 1149 (1999), that a

jury could infer possession from motive, which could in turn

be inferred from intent. ("Intent would thereby serve as an

intermediate fact from which the jury could infer another

intermediate fact--motive--from which it could in turn infer

the element of possession.") Thus "other-offense evidence of

intent would have probative value not just on the intent

element, but also on the possession element of the offense,"

an element derived in part from the subordinate element of

intent. Id.

Cassell seems to agree. In his briefs submitted to this

Court, Cassell states that he "has not asserted on appeal that

the prior gun possessions were not relevant to knowledge and

intent." Cassell asserts instead that the district court's initial

ruling to exclude the evidence as more prejudicial than proba-

tive was correct, and that nothing in his defense was offered

to tip the scales in favor of admission of the prior gun

possession evidence. We address the district court's Rule 403

decision in section III.B., infra, and note here simply that

despite Cassell's apparent concession, we must still conform

our Rule 404(b) analysis to the two-step process set forth in

Washington, which begins with a determination of whether

the evidence is offered for a permissible purpose. 969 F.2d at

1080.

Other Circuits follow a similar approach. In United States

v. Wayne Brown, 961 F.2d 1039 (2d Cir. 1992), the Second

Circuit considered the admissibility of other firearms posses-

sion by the defendant in a case with circumstances quite

similar to those before us. The Brown defendant rented a

basement apartment that was accessible to the landlord.

After the landlord found several firearms in the defendant's

apartment, including an Uzi machine gun, she contacted the

police. The defendant was charged only with illegal posses-

sion of the Uzi; evidence of the other firearms was admitted

under Rule 404(b) as "similar acts" to show "intent, ...

knowledge, ... or absence of mistake or accident." Id. at

1042 (quoting Fed. R. Evid. 404(b)). The Brown defendant

then put forth a "lack of possession" defense similar to the

one Cassell offers here by arguing that other people had

access to his apartment and could have been responsible for

the presence of the firearms. The Brown defendant also

argued that by denying possession of the firearms, he re-

moved the issue of intent from the case. The Second Circuit

disagreed, holding instead that the presence of the other

firearms in his apartment made it more likely that the Uzi

belonged to him, "thus tending to establish both his knowl-

edge, and the absence of mistake or accident, with respect to

the presence of the Uzi in his apartment." Id. The Second

Circuit concluded that introducing the evidence of the other

firearms for that purpose was permissible under Rule 404(b).

Id.; see also United States v. Davis, 792 F.2d 1299, 1305 (5th

Cir. 1986) (holding that defendant's prior possession of the

same weapons was admissible to establish that his charged

possession was knowing); United States v. Mills, 29 F.3d 545,

549 (10th Cir. 1994) ("Use of prior acts to show knowledge is

a proper purpose under Rule 404(b) and knowledge is rele-

vant to establish scienter for [a] possession of a firearm

violation."); United States v. Gomez, 927 F.2d 1530, 1534

(11th Cir. 1991) (prior conviction of possession of firearms

relevant to current charge of possession of firearm to rebut

claim that the current firearm possession was for an "inno-

cent purpose" or "was mere accident or coincidence").

We addressed an analogous situation in United States v.

James Brown, 16 F.3d 423 (D.C. Cir.), cert. denied, 513 U.S.

900 (1994). Our Brown case involved charges stemming from

gun and drug paraphernalia recovered from a safe during a

search of the home of a friend of the defendant. The

defendant challenged the admission of evidence that he pos-

sessed a firearm when arrested following the search. We

ruled that evidence of the defendant's gun possession during

his arrest would be inadmissible if offered to show the

defendant's propensity to sell drugs or to act in conformity

with a drug dealer's character. Id. at 431. However, we held

that the defendant's gun possession during his arrest was

admissible under Rule 404(b) because it was "relevant to

show intent, knowledge or absence of mistake with respect to

the firearms found in the safe" during the earlier search. Id.

Fundamentally, appellant's argument is that because he did

not contest intent or knowledge, the prosecution could not

have offered his prior gun possession evidence for the pur-

pose of proving those elements. This is a non sequitur. We

rejected a stronger version of the same argument in United

States v. Crowder. There, as here, a criminal defendant

argued that his prior conviction could not be offered against

him because his knowledge, intent, and modus operandi, the

purposes for which the government purported to offer the

evidence, were not at issue. 141 F.3d at 1204. Crowder's

position was stronger than Cassell's, in that he not only did

not directly contest the elements, he affirmatively offered a

stipulation. Following the dicta of the United States Su-

preme Court in Old Chief v. United States, 519 U.S. 172

(1997), we rejected that argument affirming the ability of the

prosecution to prove the elements of the crime by evidence of

its choosing and holding that "Old Chief establishes that the

prosecution cannot be forced to stipulate away the force of

such evidence." Crowder, 141 F.3d at 1207. It is fundamen-

tal to the criminal law of the United States that the prosecu-

tion must prove every element of the offense beyond a

reasonable doubt. As we noted above, the elements of Cas-

sell's crime included possession, which in turn requires knowl-

edge and intent. A prior history of intentionally possessing

guns, or for that matter chattels of any sort, is certainly

relevant to the determination of whether a person in proximi-

ty to such a chattel on the occasion under litigation knew

what he was possessing and intended to do so. If Cassell had

been standing in an apartment close to a gun and never

possessed one before, a jury might find it less likely that his

proximity evidenced knowing and intentional possession.

Granted, this evidence does go to propensity, the character

circumstance forbidden by Rule 404(b). But Rule 404(b)

never bars the admission of evidence. Rule 404(b) only

"prohibit[s] the admission of other crimes evidence ... for

the purpose of proving a person's actions conformed to his

character." Crowder, 141 F.3d at 1206 (citing United States

v. Jenkins, 928 F.2d 1175, 1180 (D.C. Cir. 1991) (emphasis

added)). As we have said before, "Rule 404(b) bars not

evidence as such, but a theory of admissibility." Id. True,

the evidence may tend to show that Cassell is a person of bad

character, but Rule 404(b) does not thereby render it inad-

missible. To reiterate what we have stated before and re-

stated above, under Rule 404(b), "any purpose for which bad-

acts evidence is introduced is a proper purpose so long as the

evidence is not offered solely to prove character." Miller,

895 F.2d at 1436.

In short, we conclude that evidence of Cassell's prior gun

possessions was relevant to show his knowledge of and intent

to possess the firearms recovered from his bedroom. The

record before us indicates that the government did not at-

tempt to introduce the evidence to prove conduct in conformi-

ty with Cassell's prior bad acts. Such use would, of course,

run afoul of Rule 404(b)'s prohibition against propensity-

based relevance. Instead, the government offered the evi-

dence to prove Cassell's knowledge, intent, and lack of mis-

take regarding the firearms recovered from his room. The

district court accepted this purpose as permissible under Rule

404(b). Because the evidence concerning Cassell's prior fire-

arm possessions was admitted for a proper purpose, it passes

the first step of our analysis under Washington.

B. Admission of Evidence under Rule 403

As we explained in section III.A., supra, our analysis does

not end after determining that prior bad acts evidence is

probative to a non-character issue under Rule 404(b). We

must continue with a determination of whether the district

court erred in determining that the evidence is admissible

under Rule 403. See Washington, 969 F.2d at 1080. Federal

Rule of Evidence 403 prohibits the admission of relevant

evidence if "its probative value is substantially outweighed by

the danger of unfair prejudice...." Thus after holding that

evidence of his prior gun possessions is probative of Cassell's

knowledge and intent, the district court was also required to

determine whether any prejudicial effect of the evidence

substantially outweighed its probative value so that the evi-

dence should have been excluded. Id. We conclude that the

court did not abuse its discretion in its determination that the

evidence of Cassell's prior gun possessions was admissible

under Rule 403.

Rule 403 "tilts, as do the rules as a whole, toward the

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

evidence is involved. United States v. Moore, 732 F.2d 983,

989 (D.C. Cir. 1984). In performing the balancing test re-

quired under Rule 403, " 'it is a sound rule that the balance

should generally be struck in favor of admission when the

evidence indicates a close relationship to the event charged.' "

Id. (quoting United States v. Day, 591 F.2d 861, 878 (D.C.

Cir. 1978)). Moreover, "[t]he trial court is in the best position

to perform this subjective balancing, and its decision should

be reviewed only for 'grave abuse.' " Washington, 969 F.2d

at 1081 (quoting United States v. Manner, 887 F.2d 317, 322

(D.C. Cir. 1989)).

Upon review, we conclude that there was no "grave abuse"

in the district court's decision to admit evidence of Cassell's

prior gun possessions. The district court's original ruling

that Cassell's prior gun possessions would be excluded under

Rule 403 has little influence over our evaluation of its subse-

quent ruling to admit that evidence. The district court

conducted subsequent Rule 404(b) and 403 analyses on the

record after considering the evidence presented and after

hearing from both parties. It would make little sense to hold

a district court to a pre-trial ruling when other evidence has

come to light at trial that directly affects the admissibility of

the contested evidence. The contested evidence's probative

value was high as it was relevant to an issue other than

Cassell's character: it concerned Cassell's knowledge and

intent with respect to the firearms recovered from his bed-

room. The government was required to prove that Cassell

knowingly possessed the firearms found in his room. The

fact that Cassell had previously possessed weapons tends to

make it less probable that the weapons recovered from his

bedroom were there without his knowledge, without intent, or

by accident or mistake. See Brown, 16 F.3d at 432. Finally,

the court could reasonably have found only a low risk that

unfair prejudice would substantially outweigh the evidence's

probative value.

We acknowledge that evidence of prior gun possessions

may be prejudicial in a subsequent trial for gun possession,

see Old Chief, 519 U.S. at 185. Nonetheless, this does not

suggest that such evidence has an automatic unfair and

substantial prejudicial effect on the jury. See, e.g., Dollar v.

Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977)

(" '[U]nfair prejudice' as used in Rule 403 is not to be equated

with testimony simply adverse to the opposing party. Virtu-

ally all evidence is prejudicial or it isn't material. The

prejudice must be 'unfair.' "). In this case, the evidence was

offered for a proper purpose under Rule 404(b)--to establish

Cassell's knowledge and intent. Moreover, the district court

instructed the jury that it was only to consider the evidence

for the limited and proper purposes of modus operandi,

specific intent, knowledge, and absence of mistake or acci-

dent. This is the type of instruction that "can sufficiently

protect a defendant's interest in being free from undue

prejudice." United States v. Perholtz, 842 F.2d 343, 361

(D.C. Cir.), cert. denied, 488 U.S. 821 (1988) (citation omitted).

Without "compelling or unique evidence of prejudice in this

case that warrants upsetting the trial court's determination"

to admit the evidence, the district court's decision stands.

Washington, 969 F.2d at 1081.

IV. Conclusion

For the reasons stated, we conclude that the district court's

decision to admit evidence of Cassell's prior gun possessions

was made in accordance with Federal Rules of Evidence

404(b) and 403. Cassell's convictions are affirmed.