United States v. Ebon P.D. Brown

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-2214

_____________

UNITED STATES OF AMERICA

v.

EBON P.D. BROWN, a/k/a E-MURDER

Ebon P.D. Brown,

Appellant

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-11-cr-00193-001

District Judge: The Honorable Joy Flowers Conti

Argued May 13, 2014

Before: SMITH, VANASKIE, and SHWARTZ,

Circuit Judges

1

(Filed: August 27, 2014)

Rebecca R. Haywood, Esq. [Argued]

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

Kimberly R. Brunson, Esq. [Argued]

Lisa B. Freeland

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

________________

OPINION

________________

SMITH, Circuit Judge.

Ebon Brown brings this appeal following his

conviction in the United States District Court for the

Western District of Pennsylvania of unlawful possession

of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1).

He raises three arguments on appeal. First, he argues the

District Court erroneously denied his motion to suppress

2

the firearm recovered by law enforcement. Second, he

argues that the District Court erroneously admitted, under

Federal Rule of Evidence 404(b), evidence that he had

previously obtained guns through a straw purchaser. And

third, he argues that a new trial is warranted because the

District Court permitted the prosecutor to make improper

statements during closing arguments.1 We are not

persuaded by Brown’s argument that evidence of the

firearm should have been suppressed. We agree,

however, that the District Court erred in admitting

evidence of Brown’s past firearm purchases and by

overruling Brown’s objection to the prosecutor’s closing

arguments. Because the Rule 404(b) error was not

harmless, we will vacate the judgment of the District

Court and remand for a new trial.

I.

In the early morning hours of March 23, 2011, four

Pittsburgh Police Detectives—Judd Emery, Mark

Adametz, Calvin Kennedy, and Thomas Gault—were

patrolling Pittsburgh’s Hill District in an unmarked

1

Brown also argues that 18 U.S.C. § 922(g)(1) is

unconstitutional under the Commerce Clause. Brown

acknowledges that this argument is foreclosed by Third

Circuit precedent, see United States v. Singletary, 268 F.3d

196 (3d Cir. 2001) and United States v. Shambry, 392 F.3d

631 (3d Cir. 2004), and thus raises it for preservation

purposes only.

3

police cruiser. As the detectives approached the

intersection of Wylie Avenue and Duff Street, they

observed a 2002 maroon Chevy Impala driven by Ebon

Brown park near the intersection across the street from

the Flamingo Bar, a nuisance bar where drug dealing and

shootings regularly occur. All four detectives believed

the Impala had been parked too close to the intersection

in violation of 75 Pa. Cons. Stat. § 3353. See App. 115,

178, 191, 210.

The detectives stopped their cruiser in the middle

of the street and watched as Brown and three other

passengers exited the Impala. As Brown was stepping

out, he looked in the detectives’ direction and appeared

to recognize their unmarked cruiser. Brown then sat back

down in the Impala and made a motion which appeared

consistent with removing an object from his waistband

and placing it beneath the driver’s seat. Brown then

stepped out of the vehicle, closed the door, and walked in

the direction of the Flamingo Bar. All four detectives

testified that, based on their experience, they believed

Brown had removed a gun from his person and attempted

to conceal it under the driver’s seat. See App. 117–22,

169, 205, 221–22.

The detectives exited the police cruiser and

approached Brown and the other passengers. The

detectives’ badges were visible and they identified

themselves as Pittsburgh police officers. Detective Gault

began speaking with Brown and informed him that the

4

Impala was parked in an illegal location. As this

exchange was taking place, Detective Emery walked

around to the passenger side of the Impala and shined his

flashlight through the windshield. With the inside of the

vehicle illuminated, Detective Emery observed “the grip

and rear slide portion of a semi-automatic firearm

sticking out from underneath the driver’s seat.” App. 172.

Detective Emery immediately gestured to Detective

Gault (by extending his thumb and index finger) that

there was a gun in the vehicle. After seeing Detective

Emery’s gesture, Detective Gault grabbed Brown to

prevent him from fleeing. The detectives then asked

Brown whether he had a permit to carry the firearm.

When Brown answered that he did not, they placed him

under arrest.

Detective Emery retrieved the gun from the

Impala, cleared a round from the chamber, and placed it

in the trunk of the detectives’ cruiser. The detectives then

performed pat-down searches of the other passengers, but

found no weapons and did not place anyone else under

arrest. At Brown’s request, the detectives gave the keys

to the Impala to another passenger, James Cole. Cole

moved the Impala to a legal parking space, and then he

and the others proceeded to the Flamingo Bar.

The Government charged Brown in a single-count

indictment for being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Prior to trial, Brown

filed a motion to suppress the evidence of the gun

5

retrieved from underneath the Impala’s seat. He argued

that the police conducted an unlawful Terry2 stop and

that they did not have a lawful basis to search the vehicle.

The District Court denied the motion to suppress, app. 1–

20, and Brown proceeded to trial.

Brown’s theory at trial was that the firearm

belonged to his girlfriend, Brittney McCoy, and that she

had left it beneath the seat of the Impala without his

knowledge. McCoy testified for the defense and

corroborated Brown’s story. McCoy explained that she

had borrowed the Impala from its owner, Cassandra

Whitaker, on the evening of March 22, 2011, because she

needed it for an appointment the following morning.3

App. 628–29. McCoy stated that immediately after

borrowing the car, she removed the gun—which she had

2

Terry v. Ohio, 392 U.S. 1 (1968).

3

Whitaker also testified for the defense and confirmed

that she frequently loaned her car to family members and

friends, including McCoy and Brown, and that she had loaned

the Impala to McCoy on March 22, 2011. App. 581–82.

6

purchased for personal protection in August 20094—from

her purse and placed it under the driver’s seat. She then

drove the Impala to Brown’s house and parked it in the

driveway directly behind Brown’s car. According to

McCoy, later that evening while she and Brown were

trying to sleep, her nephew called and asked Brown to

give his girlfriend a ride somewhere. Brown agreed and

left in the Impala (because it was blocking his car in), not

knowing the gun was under the seat. App. 632.

The Government maintained that Brown

physically possessed the gun and placed it under the seat

of the Impala after he spotted the police cruiser. The

Government also argued that even though McCoy

purchased the gun, she had really purchased it for Brown.

To establish this claim, the Government sought to

introduce under Federal Rule of Evidence 404(b)

4

McCoy and Whitaker both testified regarding the

events that prompted McCoy to purchase the gun. In August

2009, four armed gunmen broke into Whitaker’s home

looking for money to settle debts owed by McCoy’s brother,

who also happened to be the father of Whitaker’s son.

Whitaker stated that the attackers did not find money in the

home, but stole her television, gun, clothing, jewelry, and car.

They then tied her up and left the house. Whitaker eventually

untied herself and called the police. She then called McCoy to

let her know what had happened and to let her know to be

careful. Fearing for her own safety, McCoy, accompanied by

Whitaker, purchased the gun the following day.

7

statements that Brown made nearly seven years earlier in

2005 admitting that he had used a straw purchaser to

acquire firearms. In January 2005, Brown was arrested

by Pittsburgh police for public urination. Pursuant to a

lawful search of Brown’s vehicle in connection with his

arrest, police officers recovered a handgun and more than

250 stamp bags of heroin. After his arrest, Brown agreed

to speak with agents of Pittsburgh’s Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATFE). Brown

informed ATFE agents that he had repeatedly sold heroin

to a “white male” who had agreed to buy firearms for

Brown in exchange for the drugs. Brown claimed that the

white male had purchased twelve guns on six different

occasions, which Brown then sold to friends and

relatives. Brown was later convicted of possession with

the intent to distribute heroin and possession of a gun in

furtherance of a drug trafficking crime. He was not

charged with any crime related to the straw purchase

transactions.

In a pretrial motion, Brown sought to exclude the

statement he had made to the ATFE agents about using a

straw purchaser to obtain firearms. In response, the

Government argued the statement was “relevant to show

that [Brown] did have the knowledge that there was a

firearm in his car and that he knows what firearms are.”

App. 388. Further, the Government argued that these

statements supported its theory that McCoy “straw

purchased this firearm for [Brown].” App. 389. Brown

8

countered that the statement would be relevant only for

propensity purposes, merely showing that if he had used

straw purchasers before, then he must have used McCoy

as a straw purchaser for this gun. He also argued that the

Government did not have any evidence that McCoy was

involved in the earlier straw purchases or that she

purchased this firearm in concert with Brown. App. 388.

After hearing from the parties, the District Court

agreed with the Government and concluded that the

evidence was relevant “to show motive or knowledge and

that type of thing along those lines.” App. 390. However,

the Court concluded the statements would be admissible

only if McCoy took the stand and testified that she had

purchased the firearm for personal purposes. App. 388,

431–33, 650–52. The Court also limited the manner in

which the evidence could be introduced, allowing the

Government to introduce only a stipulation that Brown

used straw purchasers to acquire guns. The parties agreed

to the language of a stipulation, which was read to the

jury at the close of evidence. The stipulation provided:

“The defendant acknowledges using straw

purchasers/third parties to purchase firearms for him in

the past.” App. 683. Despite Brown’s agreement to the

language of the stipulation, the Court noted his

continuing objection to its admissibility under Rule

404(b).

During summation, defense counsel argued that

there was a gap in the prosecution’s case because there

9

was no fingerprint evidence connecting Brown to the

gun. Defense counsel stated that “none of us would have

to be here today if there had been a fingerprint analysis

because it would show what you already know, that Mr.

Brown never possessed that gun or ammunition.” App.

765. At the conclusion of defense counsel’s closing

argument, the prosecution requested an instruction stating

that the Government was not legally obligated to use any

particular investigative technique. App. 779. The Court

agreed and gave the following instruction:

You have just heard argument by counsel

that the government did not use specific

investigative techniques, such as fingerprint

analysis. You may consider these facts in

deciding whether the government has met its

burden of proof . . . . However, there is no

legal requirement that the government use

any specific investigative technique . . . .

App. 784.

The prosecutor then began his rebuttal by flipping

defense counsel’s argument, stating that “[w]e haven’t

heard any expert from the defense” regarding

fingerprints. App. 785. Brown objected to this remark

and argued that it impermissibly placed a burden on the

defense. The Court sustained the objection and struck the

comment. App. 786. The prosecutor then continued to

address the lack of fingerprints. “I want to see if we can

10

talk about your own common sense in your daily

experience about fingerprints,” he said. App. 786. The

prosecutor explained that, in the heat of the moment,

detectives do not have time to “get out . . . rubber gloves,

to put this thing in a paper bag, and then go walk it over

to the police vehicle and put it in a plastic evidence bag.”

App. 787. He then followed this point with the following

remarks, which are central to one of Brown’s arguments

on appeal:

You heard the officer, the first thing

he did on this particular occasion was to take

[the gun], he moved the slide back to take

the one round that was in the chamber out of

there . . . . And then he extracted the other

rounds from the magazine . . . . He quickly

put it back in the police car and in the

process of doing that, he put his own

fingerprints on what may have possibly

existed there. We have no way of knowing

whether there could be fingerprints on there,

but I want to talk about your own common

sense and your daily experiences.

Many of you probably have children.

Your children probably touch your coffee

table. Coffee table may have a glass top to

it. When you see those marks that are on the

coffee table from your children, do you see

fingerprints of the type when the police

11

officers roll fingerprints or do you see

smudges and smears, things that come into

contact with that but could not be called

fingerprints? They’re smudges and smears.

Even on a nice, clean, smooth surface like a

piece of glass that is on your coffee table

you find only smears and smudges, you do

not find fingerprints.

App. 787–88.

At this point, defense counsel objected and argued

the prosecution was testifying about facts that were not in

evidence. App. 788 (“You don’t see fingerprints on glass

surfaces. We didn’t hear testimony about that.”). Defense

counsel argued that “the [prosecutor’s] statement fairly

implied, if not explicitly stated, that a fingerprint could

only smudge or smear glass, not put fingerprints on it,

which is — he could suggest that is common sense, that

that’s a fact, but it’s not — we didn’t hear testimony on

that, so we need a qualifier.” App. 789. The District

Court overruled the objection and allowed the prosecutor

to continue making the argument “as long as [he]

direct[ed] [his statements] to common sense and [not the

jurors’] everyday lives.” App. 789.

After the objection was overruled, the prosecutor

continued arguing that the jurors’ common sense should

inform them that smudges and smears on a glass table

“are not the type of fingerprints that one would roll from

12

a police thing.” App. 790. He then extrapolated this point

to the firearm recovered by law enforcement, arguing that

the jurors’ common sense should inform them that a gun

with a “microtextured surface” is equally unlikely to hold

fingerprints. App. 790. (rhetorically asking the jurors: “Is

it likely that you’re going to find fingerprints on [a

firearm with a microtextured surface], from your own

experience, from your common sense . . . ?”).

The jury returned a verdict convicting Brown of

the single § 922(g)(1) offense charged. The District Court

subsequently sentenced Brown to a 92-month term of

imprisonment. This timely appeal followed.5

II.

Brown raises three arguments on appeal. First, he

contends the District Court erroneously denied his

motion to suppress the firearm. Second, he argues the

stipulation about his prior use of a straw purchaser was

improperly admitted. And third, he argues that a new trial

is warranted because the prosecutor made improper

statements during his closing argument that

fundamentally affected the fairness of the trial. We

address these arguments seriatim.

A.

5

The District Court had jurisdiction under 18 U.S.C. §

3231, and we have jurisdiction under 28 U.S.C § 1291.

13

The Fourth Amendment prohibits “unreasonable

searches and seizures.” U.S. Const. amend. IV. Brown

contends that both his seizure by police and the seizure of

the firearm and ammunition from the Impala were

violative of his Fourth Amendment rights. We disagree.

Police encounters with citizens fall into one of

three broad categories, each with varying degrees of

constitutional scrutiny: “(1) police-citizen exchanges

involving no coercion or detention; (2) brief seizures or

investigatory detentions; and (3) full-scale arrests.”

United States v. Perez, 443 F.3d 772, 777 (11th Cir.

2006). The first type of encounter does not implicate the

Fourth Amendment. United States v. Williams, 413 F.3d

347, 352 (3d Cir. 2005) (stating that officers do not

violate the Fourth Amendment “merely by approaching

individuals on the street or in other public places”); see

also Florida v. Bostick, 501 U.S. 429, 434 (1991). The

second category (i.e., brief seizures or Terry stops)

requires a showing that the officer acted with reasonable

suspicion. Illinois v. Wardlow, 528 U.S. 119, 123 (2000)

(stating that an officer may “conduct a brief,

investigatory stop when the officer has a reasonable,

articulable suspicion that criminal activity is afoot”)

(citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). And the

third category (i.e., full-scale arrests) is proper only when

an officer has probable cause. Beck v. Ohio, 379 U.S. 89,

91 (1964) (“Whether [an] arrest was constitutionally

valid depends . . . upon whether, at the moment the arrest

14

was made, the officers had probable cause to make it.”).

Here, the detectives’ brief interaction with Brown

touched on all three but was valid under each.

The initial step in our suppression analysis is to

determine whether a seizure has taken place and, if so,

when the seizure occurred. United States v. Torres, 534

F.3d 207, 210 (3d Cir. 2008); Johnson v. Campbell, 332

F.3d 199, 205 (3d Cir. 2003) (stating that in conducting a

suppression analysis, the court “must first determine at

what moment [the defendant] was seized”). As already

noted, a Fourth Amendment seizure “does not occur

simply because a police officer approaches an individual

and asks a few questions.” Bostick, 501 U.S. at 434.

Rather, “[a] seizure occurs only ‘when [a police officer],

by means of physical force or show of authority, has in

some way restrained the liberty of a citizen.’” United

States v. Crandell, 554 F.3d 79, 84 (3d Cir. 2009)

(quoting Terry, 392 U.S. at 19–20 n.16).

We apply an objective test when evaluating

whether an officer’s “show of authority” would have led

a reasonable person to believe they were not free to

leave. Crandell, 554 F.3d at 84 (stating that the test is

whether a reasonable person in light of all the

circumstances would have perceived the officer’s actions

as restrictive). The Supreme Court has articulated several

factors to be considered as part of this objective inquiry,

including, inter alia, “the threatening presence of several

officers, the display of a weapon by an officer, some

15

physical touching of the person of the citizen, or the use

of language or tone of voice indicating that compliance

with the officer’s request might be compelled.” United

States v. Mendenhall, 446 U.S. 544, 554–55 (1980); see

also United States v. Drayton, 536 U.S. 194, 204 (2002).

Considering these factors, we agree with the

learned District Judge that no seizure occurred prior to

the moment Detective Gault physically grabbed Brown to

prevent him from fleeing the scene. There was nothing

about the detectives’ brief initial approach that

constituted a Fourth Amendment seizure. The evidence at

the suppression hearing shows that the detectives did not

activate their lights or sirens, brandish their weapons,

block Brown’s path, physically touch Brown, or make

any threats or intimidating movements. Instead, the

detectives merely exited their cruiser and approached

Brown in a public space to discuss their concerns about

where the Impala was parked.

Brown argues that the detectives demonstrated

their authority by approaching in a group of four,

displaying their badges, and identifying themselves as

Pittsburgh police officers. These facts are not enough to

tilt the balance in Brown’s favor. A Fourth Amendment

seizure does not occur merely because police officers

identify themselves when engaging a citizen in

conversation. And although the detectives approached in

a group, as the District Court found, “there was ‘no

threatening presence,’ since the number of detectives

16

evenly matched the number of individuals who had

exited the Impala.” App. 11 (citing Mendenhall, 446 U.S.

at 554). We agree with the District Court that the totality

of the circumstances suggests that the detectives’

approach and initial contact with Brown was a mere

encounter that did not implicate the Fourth Amendment.6

Although the detectives’ initial interaction with

Brown did not implicate the Fourth Amendment, the

encounter ripened into a Terry stop at the moment

Detective Gault grabbed Brown’s waistband to prevent

him from fleeing. Although this conduct constituted a

Fourth Amendment seizure, it is well-established that

officers do not need to obtain a warrant to “conduct a

brief, investigatory stop when the officer has a

reasonable, articulable suspicion that criminal activity is

6

Brown also argues that the detectives made a “show of

authority” by taking action that was “more aggressive than

necessary.” Appellant’s Br. at 28. More specifically, he

argues that if the detectives “were concerned about the safety

of the Impala’s position, they should have rolled down their

windows and asked that it be moved” rather than approaching

on foot. This argument misses the point. The question is not

what course of conduct the detectives “should” have pursued,

but whether their actions were constitutionally permissible.

As already explained, the brief initial encounter did not

constitute a Fourth Amendment seizure. The simple fact that

the detectives could have taken another course of action does

not render their conduct unconstitutional.

17

afoot.” Wardlow, 528 U.S. at 123 (citing Terry, 392 U.S.

at 30).

Reasonable suspicion is “a less demanding

standard than probable cause and requires a showing

considerably less than preponderance of the evidence.”

Wardlow, 528 U.S. at 123 (citing United States v.

Sokolow, 490 U.S. 1, 7 (1989)). The officer must simply

have some objective justification for the stop and must be

able to articulate more than an “unparticularized

suspicion or ‘hunch’” that the suspect is engaged in

criminal activity. Wardlow, 528 U.S. at 124 (citing Terry,

392 U.S. at 27). When making reasonable suspicion

determinations, reviewing courts “must look at the

‘totality of the circumstances’ of each case to see whether

the detaining officer has a ‘particularized and objective

basis’ for suspecting legal wrongdoing.” United States v.

Arvizu, 534 U.S. 266, 273 (2002) (quoting United States

v. Cortez, 449 U.S. 411, 417 (1981)). “This process

allows officers to draw on their own experience and

specialized training to make inferences from and

deductions about the cumulative information available to

them that ‘might well elude an untrained person.’” Id.

(quoting Cortez, 449 U.S. at 418). We “give considerable

deference to police officers’ determinations of reasonable

suspicion.” United States v. Mosley, 454 F.3d 249, 252

(3d Cir. 2006)

We agree with the District Court that Detective

Gault’s brief seizure of Brown was supported by

18

reasonable suspicion. Detective Gault grabbed Brown

after Detective Emery had legally observed the firearm

under the Impala’s driver’s seat and communicated his

discovery by making a hand gesture. Although there may

be some circumstances where simple knowledge of a

firearm does not provide reasonable suspicion for a Terry

stop, see United States v. Ubiles, 224 F.3d 213, 218 (3d

Cir. 2000), here the observation of the firearm is

considered in conjunction with the fact that the officers

witnessed Brown make furtive movements consistent

with an attempt to conceal the weapon and the fact that

the encounter occurred in a “high crime area.” Wardlow,

528 U.S. at 124; see id. (“[O]fficers are not required to

ignore the relevant characteristics of a location in

determining whether the circumstances are sufficiently

suspicious to warrant further investigation.”); United

States v. Valentine, 232 F.3d 350, 356 (3d Cir. 2000)

(noting the fact that the stop occurred in a “high crime

area” among the relevant contextual considerations in a

Terry analysis). Viewing these circumstances as a whole,

we find that the brief detention of Brown was justified by

reasonable suspicion.

We also find no constitutional infirmity with

Brown’s subsequent custodial arrest. Immediately after

seizing Brown, the detectives inquired whether he had a

permit to carry the firearm. When Brown answered that

he did not, the officers placed him under arrest. Brown’s

admission that he lacked a permit to carry the firearm

19

provided probable cause to support his arrest.

The detectives also did not violate the Fourth

Amendment when they recovered the gun from the

Impala. Officers may conduct a warrantless search of a

vehicle incident to arrest in two instances: “(1) if the

arrestee is within reaching distances of the vehicle during

the search, or (2) if the police have reason to believe that

the vehicle contains ‘evidence relevant to the crime of

arrest.’” Davis v. United States, 131 S. Ct. 2419, 2425

(2011) (quoting Arizona v. Gant, 332 U.S. 332, 344

(2009)). This case fits squarely within the second

exception because unlawful firearm possession was the

crime for which Brown was arrested.

For these reasons, we will affirm the District

Court’s denial of Brown’s motion to suppress the

firearm.

B.

Brown next challenges the District Court’s

decision to allow the Government to introduce evidence

that he had previously used a straw purchaser to obtain

firearms. We hold that the admission of this evidence

was improper.

Federal Rule of Evidence 404(b), which governs

the admissibility of a defendant’s prior bad acts, provides

that “[e]vidence of a crime, wrong, or other act is not

20

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

that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1).

The rule states, however, that “[t]his evidence may be

admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge,

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

Evid. 404(b)(2).

We have explained that Rule 404(b) is generally a

rule of exclusion. United States v. Caldwell, — F.3d —,

2014 WL 3674684, at *5 (3d Cir. July 24, 2014). It

“directs that evidence of prior bad acts be excluded—

unless the proponent can demonstrate that the evidence is

admissible for a non propensity purpose.” Id. Our

opinions have repeatedly and consistently emphasized

that the party seeking to admit evidence under Rule

404(b)(2) bears the burden of demonstrating its

applicability. Id. at *6.

There are four distinct steps that must be satisfied

before prior bad act evidence may be introduced at trial:

(1) it must be offered for a proper non-propensity

purpose that is at issue in the case; (2) it must be relevant

to that purpose; (3) its probative value must not be

outweighed by the danger of unfair prejudice under Rule

403; and (4) it must be accompanied by a limiting

instruction, if one is requested. Caldwell, 2014 WL

3674684, at *7 (citing United States v. Davis, 726 F.3d

434, 441 (3d Cir. 2013)). This methodical process

21

requires “careful precision” by both the proponent in

proffering the prior act evidence and by the trial judge

who must decide the question of admissibility. Id. at *4.

At trial, the Government argued that Brown’s 2005

statement to ATFE agents that he had used a straw

purchaser to obtain firearms was “relevant to show that

he did have the knowledge that there was a firearm in his

car and that he knows what firearms are.” App. 388.

Applying the framework described above, we must first

determine whether the identified non-propensity purpose

(here, “knowledge”) is at issue in the case, and then

evaluate whether the evidence is relevant to that purpose.

When evaluating whether a non-propensity

purpose is at issue, we “consider the ‘material issues and

facts the government must prove to obtain a conviction.’”

Caldwell, 2014 WL 3674684, at *6 (quoting United

States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992)). In

other words, the government cannot offer Rule 404(b)

evidence for a non-propensity purpose if doing so would

not materially advance the prosecution’s case. Here,

Brown was charged with unlawful possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1),

which requires proof that: “(1) the defendant has been

convicted of a crime of imprisonment for a term in

excess of one year; (2) the defendant knowingly

possessed the firearm; and (3) the firearm traveled in

interstate commerce.” United States v. Huet, 665 F.3d

588, 596 (3d Cir. 2012). Thus, the Government may

22

introduce Rule 404(b) evidence only if it is offered for a

non-propensity purpose that is probative of one of the

elements essential for a conviction.

We reject out of hand the Government’s argument

that the evidence was admissible to show that Brown

“knows what firearms are.” App. 388. It is conceivable

that a defendant might challenge a § 922(g)(1) charge by

claiming he does not know what a firearm is.7 In the

ordinary course, however, a defendant’s general

knowledge about firearms is not in question in a felon-in-

possession case, and the government is thus not required

to show that the defendant “knows what firearms are” to

secure a conviction. To be sure, Brown did not claim he

was unfamiliar with firearms. Absent such a claim or

suggestion by a defendant, a rule permitting the

introduction of Rule 404(b) evidence for the purpose of

showing the defendant “knows what firearms are” would

have the effect of rendering all prior bad acts related to

7

Unlike a drug case, where the unfamiliar nature of the

substance may allow a defendant to claim he mistook the substance

for something else or otherwise did not know he possessed drugs,

see, e.g., United States v. Long, 225 F.3d 656 (4th Cir. 2000) (per

curiam) (defendant claiming he did not know the substance at issue

was cocaine, but believed it to be a hormone stimulant to help

chickens become better fighters), it is difficult to imagine a

scenario where a defendant could contend he did not know the

object in his possession was a firearm. Indeed, we have been

unable to find any case where a defendant has made such a

defense.

23

firearms admissible in a felon-in-possession trial. Such a

result could not have been the intent of the drafters of the

Federal Rules of Evidence.

We thus turn to whether the evidence was

admissible to show Brown “had knowledge there was a

firearm in his car.” App. 388. We have recently

explained that a defendant’s knowledge is rarely at issue

in a weapons-possession case when the prosecution relies

exclusively on a theory of actual possession. Caldwell,

2014 WL 3674684, at *8. This is because, “absent

unusual circumstances . . . , the knowledge element in a

felon-in-possession case will necessarily be satisfied if

the jury finds the defendant physically possessed the

firearm.” Id. In contrast, however, “[e]vidence of

knowledge . . . is critical in constructive possession cases,

as ‘[a] defendant will often deny any knowledge of a

thing found in an area that is placed under his control

(e.g., a residence, an automobile) or claim that it was

placed there by accident or mistake.’” United States v.

Williams, 620 F.3d 483, 489 (5th Cir. 2010) (quoting

United States v. Jones, 484 F.3d 783, 788 (5th Cir.

2007)). This case presents the “paradigmatic constructive

possession scenario,” United States v. Garner, 396 F.3d

438, 443 (D.C. Cir. 2005), where a firearm is found in

proximity to a defendant who claims he did not know it

was there. Accordingly, we have no difficulty concluding

that showing Brown’s knowledge that the gun was in the

Impala was an appropriate non-propensity purpose for

24

offering the evidence of Brown’s previous straw

purchases.

Yet it is not enough for the Government to merely

identify a valid non-propensity purpose under Rule

404(b)(2). Crucially, the Government must also show

that the evidence is relevant to that purpose. To do so, the

prosecution “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 [the proffered prior offense], he therefore is

more likely to have committed [the charged offense].”

Sampson, 980 F.2d at 887. This is where the

Government’s proffer falls short. The Government has

completely failed to explain how the fact that Brown

used a straw man in 2005 to purchase firearms tends to

prove that he knowingly possessed the gun under the

driver’s seat of the Impala six years later. These are two

entirely distinct acts, and participation in one has no

relationship to the other. See Davis, 726 F.3d at 443

(holding that defendant’s prior conviction for cocaine

possession not admissible to show knowledge in a trial

for cocaine distribution because “[p]ossession and

distribution are different in ways that matter”); cf.

Caldwell, 2014 WL 3674684, at *12 (“If the prior

possession was of a different gun, then its value as direct

or circumstantial evidence of the charged possession

drops and the likelihood that it is being used to show

propensity to possess guns rises considerably. Similarly,

25

as the prior possession is further removed in time, it

becomes less probative of possession on the date

charged.”) (citation omitted).

The Government’s primary argument, which was

accepted by the District Court, is that the straw purchaser

evidence refutes McCoy’s testimony that she purchased

the gun for her own personal protection. According to the

Government, the fact that Brown used a straw purchaser

in the past makes it more likely that he used McCoy as a

straw purchaser to obtain the gun recovered by the

detectives. Extrapolating from this proposition, the

Government argues then that it is likely that Brown knew

about the gun in Whitaker’s Impala. There are multiple

problems with this line of reasoning.

First, the fact that Brown used a straw purchaser to

obtain firearms in 2005 does not discredit McCoy’s

testimony that she purchased the gun for personal

protection in August 2009. The circumstances

surrounding Brown’s use of a straw purchaser were

unique to him—he was selling heroin to an unnamed

individual who agreed to purchase firearms in exchange

for drugs. There is no parallel between that scenario and

McCoy’s purchase of the firearm in August 2009, one

day after four armed men assaulted her friend in an

attempt to collect debts owed by her brother. The

Government did not present evidence disputing the

sequence of events surrounding McCoy’s purchase of the

firearm. An even more conspicuous omission was its

26

failure to present evidence that McCoy had previously

participated in a straw purchase with Brown (or anyone

else for that matter). And significantly, this all occurred

while Brown was still serving a prison sentence for his

2005 conviction. It is simply too great a leap in logic to

suggest that because Brown once used a straw purchaser

in a quid pro quo drug transaction, he must also have

used McCoy as a straw purchaser for the gun recovered

in Whitaker’s Impala. And it is an even greater leap to

then conclude that such a strained inference somehow

made it more likely than not that Brown constructively

possessed the firearm.

All of this aside, there is an even more

fundamental problem with the Government’s proffer

under Rule 404(b). Quite simply, the Government’s chain

of inferences is indubitably forged with an impermissible

propensity link. The first logical step in the

Government’s analysis requires the jury to conclude that

because Brown used a straw purchaser in the past, he

must therefore have used a straw purchaser here. This is

propensity evidence, plain and simple. Davis, 726 F.3d

at 442 (“[T]he government must explain how [the

evidence] fits into a chain of inferences—a chain that

connects the evidence to a proper purpose, no link of

which is a forbidden propensity inference.”).

Our concern that the evidence went only to show

Brown’s propensity to commit gun crimes is not

alleviated by the District Court’s explanation for why the

27

evidence was admitted. As we have explained, “[t]he

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.” Sampson, 980 F.2d at

888; see also Caldwell, 2014 WL 3674684, at *7 (“[O]ur

decisions are . . . emphatic in requiring the proponent and

the trial judge to articulate, with precision, a chain of

inferences that does not contain a propensity link.”)

(emphasis added). After hearing from the parties, the

Court concluded that the prosecution could “use this

[evidence] to show motive or knowledge and that type of

thing along those lines.” App. 390 (emphasis added).

This statement does not reflect the type of “careful

precision” our precedent demands. Caldwell, 2014 WL

3674684, at *4. It supplies the defendant with little notice

of the non-propensity purpose for which the evidence

against him is being admitted, and it says nothing of how

the evidence is probative of that purpose. Of course, “a

mere recitation of the purposes in Rule 404(b)(2) is

insufficient.” Davis, 726 F.3d at 442; see also

Christopher B. Mueller & Laird C. Kirkpatrick, Federal

Evidence § 4:28, at 730 (“[I]t is lamentably common to

see recitations of laundry lists of permissive uses, with

little analysis or attention to the particulars.”).

When confronted with a proffer under Rule 404(b),

a district court should not merely inquire of the

prosecution what it wishes the evidence to prove. Rather,

28

the court should also require the prosecution “to explain

‘exactly how the proffered evidence should work in the

mind of a juror to establish the fact the government

claims to be trying to prove.’” Caldwell, 2014 WL

3674684, at *12 (quoting United States v. Miller, 673

F.3d 688, 699 (7th Cir. 2012)) (emphasis added). In our

case, that means the District Court should have asked the

Government to answer this question: “How, exactly, does

Brown’s admission to ATFE agents that he sold heroin in

exchange for firearms in 2005 suggest that he had

knowledge of the gun found under the driver’s seat of the

Impala on the morning of March, 23, 2011?” Put to this

task, the Government would have been unable to

articulate the requisite chain of inferences without resort

to propensity-based links or attempts to build a bridge too

far.8

8

The Government has modified and expanded its

position on appeal. It now argues that the evidence of past

straw purchases is relevant to show not only that Brown knew

the gun was in the Impala, but also that he “knew how to

obtain a gun through the use of a straw purchaser, had the

intent to possess the firearm, and his possession was not

unknowing, accidental or mistaken.” Gov’t Br. at 41. Setting

aside that these arguments were not advanced in its proffer

before the District Court, the Government has still not shown

that these are proper grounds for admission. The material

issue in the case was whether Brown knew the gun was under

the driver’s seat of the Impala, not whether he knew how to

29

For these reasons, we conclude that the evidence

that Brown used a straw purchaser to obtain firearms in

the past was admitted in error. Nevertheless, the

Government maintains that, even if erroneous, the

admission of evidence regarding Brown’s past use of a

straw purchaser was harmless. “The test for harmless

error is whether it is ‘highly probable that the error did

not contribute to the judgment.’” United States v.

Cunningham, 694 F.3d 372, 391–92 (3d Cir. 2012)

(citation omitted). We will find such a high probability

only when we have a “sure conviction” that the error did

not unfairly prejudice the defendant. Id. at 392.

The Government contends the error was harmless

because the evidence of Brown’s past involvement with a

straw purchaser was introduced only by way of a brief

stipulation that did not discuss the specific details of the

prior act. We are not persuaded by this argument.

Whether offered in a brief stipulation or a simple “yes”

or “no” question on cross-examination, the prejudicial

impact of prior bad act evidence is significant. As the

Supreme Court has explained, when—as here—proffered

prior bad act evidence serves only to show the

obtain firearms through straw purchasers. And for the same

reasons set forth above, it is too great a leap to suggest that

the fact that Brown used a straw purchaser to obtain guns

seven years ago tends to prove his intent to possess the gun

that is the subject of this charged crime.

30

defendant’s propensity to act unlawfully, “it is said to

weigh too much with the jury and to so overpersuade

them as to prejudge one with a bad general record and

deny him a fair opportunity to defend against a particular

charge.” Michelson v. United States, 335 U.S. 469, 476

(1948)). See also Fed. R. Evid. 404(a) Advisory

Committee’s Note (“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.”). In this case, the stipulation suggested to the

jury that Brown was a bad actor with a history of gun

crimes. This necessarily impugns his character and tends

to impermissibly sway the balance in the Government’s

favor. To hold the error harmless merely because the

evidence was offered by way of stipulation would create

a blueprint for introducing improper Rule 404(b)

evidence in a manner insulated from the consequences of

appellate review. We decline to endorse such a rule.

The Government also argues the error was

harmless because the remainder of the Government’s

evidence that Brown knowingly possessed the gun was

“overwhelming.” Gov’t Br. at 51. There is no doubt that

the Government presented a substantial case against

Brown, including offering consistent testimony from all

31

four detectives that he made furtive movements

consistent with concealing a firearm under the driver’s

seat of the Impala. At the same time, however, the

Government failed to present anyone who could put the

firearm in Brown’s hands. And Brown introduced his

own witness, McCoy, who testified that she placed the

gun under the seat without Brown’s knowledge. In the

end, it may well be that the jury would have convicted

Brown with or without the straw purchaser stipulation.

Nonetheless, there is not enough on this record for us to

possess a “sure conviction” that this is so. We therefore

must conclude the error was not harmless.

C.

Because we conclude that the erroneous admission

of Rule 404(b) evidence was not harmless error, we are

not required to address Brown’s final contention that the

District Court erred by not sustaining his objection

during the prosecutor’s rebuttal summation. However, in

the interest of providing guidance to the District Court on

remand, we will briefly explain why the prosecutor’s

remarks during rebuttal were improper.

Brown argues that the prosecutor improperly

testified about facts not in evidence when he suggested

(1) that Brown’s fingerprints were covered up by the

detective who retrieved the gun from the Impala, and (2)

that fingerprints could not be recovered from smooth

surfaces like a glass table or the exterior of a gun. We

32

agree with Brown’s argument.

Improper statements made during summation may

warrant a new trial when such statements “cause[] the

defendant substantial prejudice by so infecting the trial

with unfairness as to make the resulting conviction a

denial of due process.” United States v. Shareef, 190 F.3d

71, 78 (2d Cir. 1999) (internal quotation marks and

citations omitted). Our first task is to determine whether

the prosecutor’s comments were improper. United States

v. Mastrangelo, 172 F.3d 288, 297 (3d Cir. 1999). “If we

conclude that a comment was improper, we must apply a

harmless error analysis, looking to see if ‘it is highly

probable that the error did not contribute to the

judgment.’” Id. (quoting United States v. Zehrbach, 47

F.3d 1252, 1265 (3d Cir. 1995) (en banc)).

During closing arguments, a criminal defendant

“certainly is entitled to direct the jury’s attention to what

he believes are loopholes in the government’s case and to

argue that these loopholes establish the non-existence of

facts which the government would have proven if it had

the evidence.” United States v. Rubinson, 543 F.2d 951,

965–66 (2d Cir. 1976). Rebuttal summation provides the

Government an opportunity to respond to those

arguments. “As a general rule, Government counsel

should not be allowed to develop new arguments on

rebuttal, but should be restricted to answering the

arguments put forth by defense counsel.” United States v.

Taylor, 728 F.2d 930, 936 (7th Cir. 1984) (citations

33

omitted). “While the prosecution in rebuttal may explain

why it has not proven certain facts or respond to the

interpretation which the defense has placed on its failure

to present evidence, it may not use the defense’s

comments to justify the reference to facts or the assertion

of claims which it could have, but did not, introduce at

trial.” Rubinson, 543 F.2d at 966; see also United States

v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989) (“[I]t is

improper to base closing arguments upon evidence not in

the record.”); Charles Alan Wright et. al, Federal

Practice and Procedure § 588 (4th ed. 2011) (“It is

misconduct for a prosecutor to make an assertion to the

jury of a fact, either by way of argument or by an

assumption in a question, unless there is evidence of that

fact.”).

We conclude that the prosecutor’s argument that

fingerprints could not have been extracted from the

firearm inappropriately relied on facts not in evidence.

During his closing, defense counsel questioned the

Government’s proof by pointing out the lack of forensic

fingerprint evidence. It would have been permissible for

the prosecution to respond to this argument by noting the

general challenges police officers face in trying to

preserve forensic evidence in the rapidly-unfolding

events surrounding an arrest. It was not appropriate,

however, to suggest or speculate that the particular

firearm at issue was incapable of retaining identifiable

fingerprints—at least not without evidence to substantiate

34

that claim. The Government could have presented expert

testimony to explain that the surface of the firearm at

issue would not hold fingerprints, or that the detectives

covered up any identifiable prints when they removed the

gun from the Impala. Failing to do so, however, the

Government was not permitted to make this argument

during its rebuttal summation. In short, the prosecutor

was testifying.

The Government contends that the prosecutor was

merely asking the jurors to use their own common sense

and attempting to draw upon their “ordinary experiences

concerning when fingerprint evidence would be

recoverable.” Gov’t Br. at 58. We seriously doubt that

jurors possess a common understanding of the

circumstances under which investigators can extract

fingerprints from a weapon, a glass table, or any other

surface. A juror may have observed a smudge on her

coffee table, but that does not translate into an

understanding of when such a smudge can be extracted

by law enforcement as an identifiable fingerprint.9 Nor

does it provide the juror with a “common sense”

understanding about whether the “microtextured surface”

of a firearm will hold fingerprints. App. 790.

To be sure, the Government was not legally

9

Indeed, the District Court even challenged the

prosecutor’s suggestion, stating “You can get fingerprints off

glass, if it’s done right.” App. 789.

35

obligated to conduct a fingerprint analysis of the firearm

in the Impala. Nor was it required to offer a forensic

expert at trial in order to carry its burden of proof.

Indeed, at the Government’s request, the jury was

instructed that “there is no legal requirement that the

government use any specific investigative technique” in

order to establish Brown’s culpability. App. 784. Yet by

electing not to present such evidence explaining its

inability to obtain fingerprints from the firearm, the

Government could hardly then argue that issue to the

jury. We conclude the prosecutor’s remarks were

improper.10

III.

For the reasons set forth above, we will vacate the

judgment of the District Court and will remand for a new

trial.

10

In the ordinary course, we would now turn to consider

under a harmless error analysis whether the improper

comments were so prejudicial that a new trial is warranted.

See Mastrangelo, 172 F.3d at 297 (“If we conclude that a

comment was improper, we must apply a harmless error

analysis . . . .”). However, such analysis is not necessary

because we have already concluded Brown’s conviction must

be vacated on other grounds.

36

SHWARTZ, Circuit Judge, concurring in part and dissenting

in part.

I agree with my colleagues that the District Court

properly denied the motion to suppress and that the

Government’s comments in its rebuttal summation

concerning fingerprint evidence were improper. We part

company, however, because even if the evidence of Brown’s

use of straw purchasers was improperly admitted,1 I would

nonetheless conclude that the error was harmless. Thus, I

respectfully concur in part and dissent in part.

1

Because I believe that any error in admitting the prior

bad act evidence was harmless, I would not reach the closer

question of whether admission of the evidence violates Fed.

R. Evid. 404(b). I note, however, that Rule 404(b)(2) does

not bar all evidence that could also lead to an inference of

propensity. If it did, then the cautionary instruction that trial

courts must deliver upon request under Huddleston v. United

States, 485 U.S. 681, 691-92 (1988), to ensure that that the

evidence is not used for an improper propensity purpose

would be unnecessary. In this case, even though the evidence

could demonstrate a propensity for using others to buy guns

for Brown, I believe the evidence had a proper purpose under

Rule 404(b)(2)—namely, to refute Brown’s defense that his

girlfriend purchased the gun for herself and that he did not

know she left it in the car, and thereby show Brown knew of

the gun’s presence in the car and that it was not there by

mistake. Cf. United States v. Moorehead, 57 F.3d 875, 878

(9th Cir. 1995) (permissible admitting testimony that a

witness observed the defendant with the same gun in the past

to rebut a defense witness’s claim that she placed the gun

under the seat).

1

This Court has held that “[w]here evidence is

improperly admitted, reversal is not required where it is

highly probable that the error did not contribute to the

judgment.” United States v. Berrios, 676 F.3d 118, 131 (3d

Cir. 2012) (quotation marks omitted); United States v.

Cunningham, 694 F.3d 372, 392 (3d Cir. 2012) (an error is

deemed harmless unless the Court has a “sure conviction that

the error did not prejudice the defendant” (quotation marks

omitted)). When measured against the evidence presented, I

would conclude that it is highly probable that any error did

not contribute to the judgment.

First, four detectives testified that they saw Brown in

his car, reach in the area of his waistband, and then move in a

way consistent with reaching under his seat. Second, the gun

was found partly tucked under that seat. While the gun may

not have been seen in Brown’s hand, Maj. Op. at 29, it was

precisely where the detectives saw him reach. Third, the gun

was visible to those outside of the car and hence was very

likely visible to one seated inside it. Fourth, the prior bad act

evidence, which involved conduct different from the conduct

charged, was admitted in a short statement and offered in a

very sanitized way.2 The jury was not exposed to any of the

details that the Majority describes regarding Brown’s

statement to the Bureau of Alcohol, Tobacco, Firearms, and

Explosives about his arrangement to use one of his drug

2

I agree with my colleagues that packaging evidence

in a stipulation does not immunize it from the careful

weighing that we require under Fed. R. Evid. 403, but we

should nonetheless examine how the evidence was presented,

used, and compared with the other evidence offered when

conducting a harmless error analysis.

2

customers to buy him guns in exchange for drugs. Rather, the

jury was told only that “the defendant acknowledges using

straw purchasers/third parties to purchase firearms for him in

the past.” App. 683. Fifth, the limited evidence that the jury

heard was presented only because of, and to refute, Brown’s

defense3 and it was not harped on, as it was mentioned only

once during closing argument. Cf. United States v. Smith

725 F.3d 340, 344 (3d Cir. 2013) (noting that the Government

repeatedly referred to the defendant’s prior bad acts in

summation). Thus, the evidence in this constructive

possession case was strong and it is highly probable that the

single reference to Brown’s prior use of others to purchase

firearms for him did not contribute to the judgment. As the

prior bad act evidence did not prejudice Brown, the admission

of the evidence was harmless and I would therefore affirm the

judgment.4

Accordingly, I respectfully concur in part and dissent

in part.

3

Furthermore, the prior use of straw purchasers was

not the Government’s only method of impeaching Brown’s

girlfriend. On cross-examination, the Government elicited

that she had not been truthful about her employment on her

gun permit, she was not familiar with guns, and she had told

Brown’s probation officer she did not own a gun.

4

The Government’s improper comments during

summation do not change the result, in light of the strong

evidence of Brown’s guilt and the District Court’s nearly

contemporaneous instruction that the summations were

merely argument that the jury could not treat as evidence.

3