Opinion
CRIMINAL ACTION NO. 01-202.
April 1, 2002
MINUTE ENTRY
Before this Court is the government's notice of its intent to introduce certain evidence pursuant Rule 404(b) of the Federal Rules of Evidence (rec. doc. 16). The defendant has objected to the government's use of such evidence. For the reasons that follow, this Court DENIES the government's request to introduce its 404(b) evidence at trial.
Background
The defendant is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The facts that lead up to this charge are as follows. In 1998, the defendant, Albert Mosely, was convicted of distribution of a Schedule II Controlled Dangerous Substance and was sentenced to two years. On July 22, 2001, the New Orleans police responded to a call about a stolen vehicle and witnessed the defendant walking away from a car fitting the description of the stolen vehicle. Allegedly, the police then "saw Mosely throw down a handgun" before he was apprehended. The police recovered a gun after their arrest of the defendant. Government Memorandum in Support of Use of Extrinsic Evidence, p. 1-2.
Rule 404(b) of the Federal Rules of Evidence provides:
Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character as a person in order to show that he acted in conformity therewith. It may, however, be admissible, for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
As the Court noted in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978), extrinsic evidence may not be admitted for the sole purpose of demonstrating the defendant's bad character. Rather, in order for extrinsic evidence to be admitted against a defendant, (1) it must be determined that evidence of a similar offense is relevant to an issue other than the defendant's character and (2) the evidence must posses probative value that is not substantially outweighed by its undue prejudice . . ." Beechum at 911.
In the case at bar, the government seeks to introduce evidence of the defendant's: (1) arrest and conviction in 1994 for illegal possession of a firearm and (2) arrest in 2001 for being a felon in possession of a firearm. According to the government, that evidence would tend to prove: (1) the defendant's knowing and intentional possession of a firearm, (2) his absence of mistake in being present with a firearm, and (3) his identity as the possessor of the firearm recovered. Government Memorandum in Support of Use of Extrinsic Evidence, p. 1-2.
In its objection to the use of such evidence, the defendant argues, in part, that the 1994 conviction for illegal possession of a firearm is irrelevant to his "intent" in the instant case because at that time, he was not a "convicted felon" and the intent to possess a firearm as a convicted felon differs from the mere intent to possess a firearm. Furthermore, defendant argues that his 2001 arrest for being a felon in possession of a firearm should not be admitted because the facts of that case are not sufficient for a reasonable juror to find that the defendant committed the act. Specifically, he explains that that arrest occurred when police found a handgun lying on the floorboard of the car in which the defendant was riding with three other individuals. All four were charged with being in possession of the firearm. Thus, defendant argues that the 2001 arrest, at best, "proves that [he] rode in the same car as a firearm, but does not prove possession of that firearm and is certainly not indicative of any intent to possess a firearm as a convicted felon." Defendant's Response to the Government's Notice to Introduce 404(b) evidence, p. 2.
Analysis
For the following reasons, the Court concludes that the government's 404(b) evidence does not satisfy the test laid out by the Fifth Circuit in Beechum. First, the Court reasons that evidence of defendant's 1994 arrest for illegal possession of a firearm is irrelevant because at that time, the defendant was not a convicted felon. As this court has previously held, "the fact that a person may have possessed a gun as a non-convicted felon is not probative that he continued to do so after conviction when possession was forbidden. On the contrary, equally arguable is that such a person would be less likely to continue to possess a weapon" 1994 WL 202373 (E.D. La. 1994). The state of mind of an individual charged with the mere intent to possess an illegal weapon differs from the state of mind of an individual charged with intent to possess a weapon as a convicted felon. Thus, the defendant's 1994 conviction for possession of a firearm is irrelevant to the instant charge and the prejudice of its introduction would substantially outweigh its probative value.
The Court also concludes that evidence of defendant's 2001 arrest fails the Beechum requirements. In Beechum, the Court explained that in order to prove the relevancy of an extrinsic offense, "the Government must offer proof that the defendant committed the offense. If the proof is insufficient, the judge must exclude the evidence because it is irrelevant." Beechum at 912-913. Furthermore, the Court determined that the standard courts should follow when determining whether the Government has presented sufficient proof of an extrinsic offense is supplied by Rule 104(b) of the Federal Rules of Evidence, which states:
Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Thus, a trial judge should determine whether there is sufficient evidence for the jury to find that the defendant in fact committed the extrinsic offense. Beechum at 913.
In the case at bar, the Court concludes that the facts surrounding defendant's 2001 arrest would not lead a jury to believe that the defendant illegally possessed a firearm. As noted above, the facts presented to this Court in support of that extrinsic offense are merely that defendant rode in a car with three other individuals — and a gun was found in the vehicle. There has been no proof, for example, that the gun belonged to or was registered to defendant, that defendant brought the gun into the vehicle, or that the other individuals in the car denied the gun was theirs. The government has failed to present any evidence that the defendant was the one who actually possessed the firearm during that incident. Because the Government has not persuaded the court that there is sufficient evidence to lead a jury to believe that the defendant committed the 2001 offense, it is irrelevant to the case at bar. As such, the prejudice of its introduction at trial would substantially outweigh any probative value.
Accordingly, the government's request to introduce certain evidence pursuant to Rule 404(b) of the Federal Rules of Evidence is DENIED.