              Case: 12-11844   Date Filed: 02/01/2013   Page: 1 of 7

                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-11844
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:11-cr-00404-EAK-AEP-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus


KHALDOUN KHALIL KHAWAJA,
a.k.a. Tony Khawaja,

                                                            Defendant-Appellant,

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________
                               (February 1, 2013)

Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.
PER CURIAM:

      Khaldoun Khalil Khawaja appeals his conviction for possession of a firearm

by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Khawaja contends that
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the district court abused its discretion by admitting evidence at trial that he was

involved in a scheme to cash fraudulent tax refund checks.

                                               I.

       Khawaja, a convicted felon, was the manager of a small grocery store in

Tampa, Florida that was owned either by him or his father. 1 In 2011, agents from

several law enforcement agencies began investigating his involvement in a scheme

to cash fraudulent tax refund checks. As part of that investigation, an undercover

detective visited the store and presented Khawaja with two tax refund checks with

fictitious names. Khawaja invited the detective into an office that he had the key

to and that he frequently used. He cashed the fraudulent checks, giving the

detective cash for 20% of their value and keeping the other 80% for himself.

During that transaction, the detective observed the barrel of a shotgun propped

against a wall next to Khawaja’s desk.

       About two weeks later, law enforcement officials returned to Khawaja’s

store and executed a search warrant in furtherance of their investigation into the tax

fraud scheme. During that search, they seized the shotgun from Khawaja’s office

and found shotgun shells and handgun ammunition in the desk drawer. They also

seized brown bags full of cash and a loaded Glock 9 mm pistol that was located in

plain view on a shelf below the cash register.

       1
        There was conflicting evidence presented at trial about whether Khawaja or his father
owned the store. It was undisputed, however, that Khawaja managed it.

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                                         II.

      Khawaja was charged in a one-count indictment with possession of two

firearms and ammunition by a convicted felon but he was not charged with any

crimes related to the scheme to cash fraudulent tax refund checks. At trial, the

government sought to present evidence of Khawaja’s involvement in that scheme.

Specifically, it sought to introduce: (1) testimony of a secret service agent

explaining why law enforcement officers were investigating Khawaja; (2) a video

of the transaction between Khawaja and the undercover detective who visited his

store, which showed the shotgun leaning against the wall in Khawaja’s office; (3)

testimony of the undercover detective explaining why he was in Khawaja’s office

when he observed the shotgun leaning against the wall; and (4) testimony of a

secret service agent explaining why he executed the search warrant at Khawaja’s

store, which led to the seizure of the shotgun, the pistol, and the ammunition.

Khawaja filed a motion in limine to exclude that evidence, but the district court

denied the motion and the government introduced the evidence at trial. The jury

returned a verdict of guilty against Khawaja and the court entered judgment on the

verdict and sentenced him to 37 months imprisonment followed by 36 months of

supervised release.




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                                          III.

      Khawaja challenges his conviction on the grounds that the district court

improperly denied his motion to exclude the evidence of his involvement in the tax

fraud scheme. He contends that the evidence was inadmissible under Federal

Rules of Evidence 404(b) and 403. We review a district court’s evidentiary rulings

for abuse of discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir.

2000).

                                          A.

      Rule 404(b) provides that “[e]vidence 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.” It does not, however,

bar the introduction of evidence that is intrinsic to the charged offense. United

States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). Evidence of uncharged

crimes is intrinsic when it: “(1) [arises] out of the same transaction or series of

transactions as the charged offense; (2) [is] necessary to complete the story of the

crime; or (3) [is] inextricably intertwined with the evidence regarding the charged

offense.” Id.

      The district court concluded that the evidence of Khawaja’s involvement

with the tax fraud scheme was inextricably intertwined with the evidence relating

to the charged offense and therefore Rule 404(b) did not apply. We agree. To


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convict Khawaja of possession of a firearm by a convicted felon, one of the

elements that the government had to prove was that Khawaja actually or

constructively possessed the guns that were found in his store. United States v.

Beckles, 565 F.3d 832, 841 (11th Cir. 2009). The fact that he was present in the

store with the guns is not enough to establish constructive possession. Id. Instead,

he must have exercised “ownership, dominion, or control” over the guns or had

“the power and intent” to do so. Id.

      Khawaja’s defense at trial was that he did not constructively possess the

guns found in the store. The evidence of his involvement in the tax fraud scheme

tends to negate that defense. It supports the inference that he knowingly kept the

guns in the store because his involvement in a scheme to commit tax fraud

involved keeping large amounts of cash in the store and he had the guns to protect

himself against being robbed. Accordingly, the district court did not abuse its

discretion by admitting the evidence. See United States v. Thomas, 242 F.3d 1028,

1032 (11th Cir. 2001) (holding that Rule 404(b) did not prevent the admission of

evidence of drug transactions when the defendant was on trial for possession of a

firearm by a convicted felon because “[t]he fact that [the defendant] was engaged

in selling crack from his home is relevant evidence from which to infer that he

knowingly possessed rifles found in the closet of that home and in his truck parked

in the driveway of that home”).


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                                          B.

      Rule 403 allows the district court to “exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . unfair prejudice.”

Khawaja contends that the evidence of his involvement in the tax fraud scheme

was unduly prejudicial and the district court should have excluded it. Because

Rule 403 “permits the trial court to exclude concededly probative evidence,”

excluding evidence under that Rule is an “extraordinary remedy, which should be

used only sparingly.” United States v. Smith, 459 F.3d 1276, 1295 (11th Cir.

2006) (alteration omitted). The balance “should be struck in favor of

admissibility.” Id. Therefore, “we look at the evidence in a light most favorable to

its admission, maximizing its probative value and minimizing its undue prejudicial

impact.” Id. (quotation marks omitted).

      The district court did not abuse its discretion by admitting the evidence of

Khawaja’s involvement in the scheme to cash fraudulent tax refund checks in spite

of any prejudicial effect. As we have explained, that evidence was probative of

Khawaja’s constructive possession of the guns—an essential element of the

charged offense. Its prejudicial impact was minimized by the fact that the court

instructed the jury that it could consider the evidence only for limited purposes.

See United States v. Brown, 665 F.3d 1239, 1247 (11th Cir. 2011) (“A limiting

instruction can diminish any unfair prejudice caused by the evidence’s


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admission.”); United States v. Spoerke, 568 F.3d 1236, 1251 (11th Cir. 2009)

(explaining that a limiting instruction can cure any possible unfair prejudice).

Because admitting the evidence was not an abuse of discretion, we affirm

Khawaja’s conviction.

      AFFIRMED.




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