United States District Court, W.D. Virginia, Danville Division
Elizabeth K. Dillon, United States District Judge.
trial of this matter, the government seeks to introduce
evidence of Defendant Brian Martin's prior conviction for
possession of a firearm by a felon; Defendant
objects. Because the evidence will be offered for a
purpose other than to show Defendant's bad character or
propensity for illegal conduct, the government will be
permitted to introduce the evidence.
to Federal Rule of Evidence 404(b), “Evidence of a
crime, wrong, or other act is not 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 goes on to
state, 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).
It is well-established that the listed purposes in Rule
404(b)(2) for introduction of such evidence “is
illustrative rather than exclusionary.” United
States v. Powers, 59 F.3d 1460, 1464 (4th Cir.
1995). “In fact, by its own terms, Rule 404(b)
expressly only excludes evidence of other crimes,
wrongs, or acts when it is used to prove a defendant's
bad character or to ‘show action in conformity
therewith.'” United States v. Grimmond,
137 F.3d 823, 831 (4th Cir. 1998) (quoting a prior version of
Rule 404(b)) (emphasis added). Accord Powers, 59
F.3d at 1464 (recognizing “Rule 404(b) as an inclusive
rule, admitting all evidence of other crimes or acts except
that which tends to prove only criminal disposition”
(internal quotation marks omitted)).
Defendant is charged with possession of a firearm by a felon.
See 18 U.S.C. § 922(g)(1). Defendant contends
the only point at issue is whether he “possessed”
the firearm on the date in question. To that end, evidence of
his prior possession of a firearm is relevant to show absence
of mistake or lack of accident. See United States v.
Queen, 132 F.3d 991, 997 (4th Cir. 1997) (holding that
404(b) evidence must be “relevant to an issue, such as
an element of an offense, and must not be offered to
establish the general character of the defendant, ” and
“[t]he act must be necessary in the sense that it is
probative of . . . an element of the offense”);
Grimmond, 137 F.3d at 831 (noting that 18 U.S.C.
§ 922(g) has, as an element of the offense,
“possession of a firearm”). Evidence that
Defendant possessed a firearm in the past 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. Brown,
398 Fed.Appx. 915, 917 (4th Cir. 2010) (unpublished) (per
curiam) (quoting United States v. Cassell, 292 F.3d
788, 793 (D.C. Cir. 2002)); see also United States v.
Stewart, 628 Fed.Appx. 179, 182 (4th Cir. 2015),
cert. denied 136 S.Ct. 1227 (2016) (holding that the
district court did not abuse its discretion in admitting
evidence of defendant's two prior convictions for being a
felon in possession of a firearm in a prosecution for a felon
in possession); United States v. Trent, 443
Fed.Appx. 860, 863 (4th Cir. 2011); United States v.
Comstock, 412 Fed.Appx. 619, 624 (4th Cir. 2011);
United States v. Teague, 737 F.2d 378, 381 (4th Cir.
1984); United States v. McDonald, 211 Fed.Appx. 222,
225 (4th Cir. 2007); United States v. Brown, No.
7:18cr49, 2019 WL 1371860, at *6 (W.D. Va. March 26, 2019).
Accord United States v. Jernigan, 341 F.3d 1273,
1281 (11th Cir. 2003) (“Indeed, the caselaw in this and
other circuits establishes clearly the logical connection
between a convicted felon's knowing possession of a
firearm at one time and his knowledge that a firearm is
present at a subsequent time (or, put differently, that his
possession at the subsequent time is not mistaken or
sure, the evidence the government seeks to introduce
could be viewed as evidence of propensity to carry a
firearm. But when the evidence is capable of both relevant
and irrelevant interpretations, the proper course for the
court is not necessarily to exclude the evidence. Rather, an
appropriate limiting instruction is proper to ensure that
evidence is received only for proper purposes. See
Queen, 132 F.3d at 997. It is only when the prejudicial
nature of the evidence outweighs its probative value that the
evidence should be excluded. See Fed.R.Evid. 403;
Queen, 132 F.3d at 997 (noting that the probative
value evidence offered under Rule 404(b) “must not be
substantially outweighed by confusion or unfair prejudice in
the sense that it tends to subordinate reason to emotion in
the factfinding process”).
States v. Queen sets out a list of four considerations
to determine whether prior acts are admissible under Rule
(1) The evidence must be relevant to an issue, such as an
element of an offense, and must not be offered to establish
the general character of the defendant. In this regard, the
more similar the prior act is (in terms of physical
similarity or mental state) to the act being proved, the more
relevant it becomes. (2) The act must be necessary in the
sense that it is probative of an essential claim or element
of the offense. (3) The evidence must be reliable. And (4)
the evidence's probative value must not be substantially
outweighed by confusion or unfair prejudice in the sense that
it tends to subordinate reason to emotion in the factfinding
Queen, 132 F.3d at 997. The evidence the government
seeks to introduce qualifies under these factors. First, a
prior conviction for possession of a firearm by a felon is
relevant to an element of the offense with which Defendant is
charged-specifically, knowing possession. Second,
Defendant's knowing possession of a firearm on the night
in question is the sine qua non of the charge levied
against him, and thus his prior conviction is relevant in
that sense. Third, there is no dispute as to the reliability
of the evidence, and finally, the evidence's probative
value outweighs any prejudice. Insofar as the evidence will
engender some prejudice against Defendant, the court will
give an appropriate limiting instruction to the jury.
the hearing on this matter, Defendant filed a second
objection to the government's Rule 404(b) notice,
objecting to introduction of evidence that marijuana was
found on Defendant's person during his
arrest. That evidence, however, is part of the
res gestae of the crime and is properly admitted for
that purpose. See United States v. Masters, 622 F.2d
83, 86 (4th Cir. 1980) (“One of the accepted bases for
the admissibility of evidence of other crimes arises when
such evidence ‘furnishes part of the context of the
crime' or is necessary to a ‘full presentation'
of the case, or is so intimately connected with and
explanatory of the crime charges against the defendant and is
so much a part of the setting of the case and its
‘environment' that its proof is appropriate in
order ‘to complete the story of the crime on trial by
proving its immediate context or the res gestae' or the
‘uncharged offense is so linked together in point of
time and circumstances with the crime charged that one cannot
be fully shown without proving the other . . .' (and is
thus) part of the res gestae of the crime charged.”
(internal citations omitted)); United States v. Roy,
No. 88-5178, 1989 WL 87654, at *1 (4th Cir. July 31, 1989)
(unpublished) (per curiam) (noting that res gestae
evidence “is simply one category of 404(b)
evidence”). “And where evidence is admissible to
prove this ‘full presentation' of the offense,
‘(t)here is no reason to fragmentize the event under
inquiry' by suppressing parts of the ‘res
gestae.'” Id. (internal citations
omitted). Accordingly, evidence of the marijuana found on
Defendant's person during his arrest will be admitted,
and the court will give an appropriate limiting instruction
regarding proper consideration of that evidence.
clerk is directed to forward a copy of this Memorandum
Opinion and accompanying Order to all counsel of record.
 The government filed a Notice of
Intent to use Rule 404(b) evidence [ECF No. 114], and
Defendant filed responses in opposition [ECF Nos. 117 &
122]. Neither party filed a motion in limine
regarding the evidence in question.
 Defendant was arrested for public
intoxication, and both a firearm and marijuana were allegedly
found on his person during a search ...