           Case: 17-12534   Date Filed: 05/29/2018   Page: 1 of 8


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12534
                      ________________________

                  D.C. Docket No. 1:16-cr-20745-UU-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,


                                  versus


TYREE NATHAN ROBERTS,

                                              Defendant - Appellant.



                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (May 29, 2018)

Before WILLIAM PRYOR, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Tyree Nathan Roberts appeals his conviction for being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). 1 At trial, the only dispute was

whether Roberts knowingly possessed the firearm and ammunition found in the

home where he was living. To shore up its case, the Government moved to admit

twelve of Roberts’ prior felony convictions for acts requiring the same state of

mind under Federal Rule of Evidence 404(b). Roberts asserts the district court

erred by granting the Government’s motion. 2 After review, we conclude admitting

five of the twelve convictions was an abuse of discretion and, accordingly, reverse

and remand for further proceedings consistent with this opinion.3

       Rule 404(b)(1) prohibits using “[e]vidence of a crime, wrong, or other act

. . . 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). But

evidence of other crimes may be admissible for another purpose, such as proving

intent. Fed. R. Evid. 404(b)(2). We assess admissibility under Rule 404(b) using a


       1
           We will not repeat the facts and procedural history, which are familiar to the parties.
       2
         Roberts also advanced two sentencing-related positions concededly “foreclosed by
binding precedent.” Appellant’s Br. at 33. We need not address these contentions, which
Roberts sought to preserve for review in the event we affirmed his conviction. Id.
       3
         We review a district court’s admission of evidence under Rule 404(b) for an abuse of
discretion. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992). A court abuses its
discretion when its “decision rests upon a clearly erroneous finding of fact, an errant conclusion
of law, or an improper application of law to fact.” United States v. Baker, 432 F.3d 1189, 1202
(11th Cir. 2005), abrogated on other grounds by Davis v. Washington, 547 U.S. 813, 821 (2006).


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three-part test: (1) “the evidence must be relevant to an issue other than the

defendant’s character”; (2) “there must be sufficient proof so that a jury could find

that the defendant committed the extrinsic act”; and (3) “the evidence must possess

probative value that is not substantially outweighed by its undue prejudice, and the

evidence must meet the other requirements of Rule 403.” United States v.

Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003) (quotation omitted).

       The third part of the Rule 404(b) test, which implicates Rule 403, is at issue

here. In making Rule 403 determinations, district courts conduct a common-sense

assessment of the circumstances of the extrinsic offense, “including prosecutorial

need, overall similarity between the extrinsic act and the charged offense, as well

as temporal remoteness.” United States v. Calderon, 127 F.3d 1314, 1332 (11th

Cir. 1997) (citation omitted). “[T]his determination lies within the sound

discretion of the district judge and calls for a common sense assessment of all the

circumstances surrounding the extrinsic offense . . . .” Id. (quotation omitted).

       The district court admitted twelve prior felony convictions—four for being a

felon in possession of a firearm, seven for armed robbery, and one for aggravated

assault. Roberts acknowledges admitting one prior conviction for being a felon in

possession was appropriate under our precedent.4 See Jernigan, 341 F.3d at 1279


       4
         Alternatively, Roberts contends Jernigan was incorrectly decided because “[w]hile the
prior knowing possession of a firearm may allow a jury to infer that the defendant possessed the
charged firearm knowingly, that inference depends on the use of impermissible propensity
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(“[A] reasonable factfinder also could have concluded that Nelson knowingly

possessed the weapon found in the truck . . . based on each of his prior convictions

for aggravated assault and being a felon in possession, both of which involved the

knowing possession of a weapon.”). However, Roberts asserts admitting the

remaining eleven convictions was error because their probative value is

outweighed by concerns about cumulativeness and unfair prejudice.

       The portion of our analysis concerning prosecutorial need and temporal

remoteness is identical with respect to all eleven prior convictions—both factors

favor admission. The prosecutorial need for evidence of intent was strong.

Roberts’ knowing possession of the firearms was the only § 922(g)(1) element at

issue, and the Government’s other evidence of Roberts’ intent was

circumstantial—requiring the jury to infer knowing possession based on

surrounding facts.

       And the prior convictions were not too remote to be probative. Each of

Roberts’ prior convictions is included in one of six judgments. Each judgment

corresponds to an armed robbery Roberts committed in April 2006. For his crimes,

Roberts received a single ten-year sentence. Less than two months after his April

2016 release, Roberts was arrested for the underlying offense. “[D]ecisions as to


reasoning.” Appellant’s Br. at 22. We are not at liberty to disregard Jernigan. See United States
v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior panel’s holding is binding on all
subsequent panels unless and until it is overruled or undermined to the point of abrogation by the
Supreme Court or by this court sitting en banc.”).
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impermissible remoteness are so fact-specific that a generally applicable litmus test

would be of dubious value,” United States v. Pollock, 926 F.2d 1044, 1048 (11th

Cir. 1991), but we are guided by the principle that “[e]vidence of other wrongful

acts to prove intent must . . . logically tend to prove the defendant’s criminal intent

at the time of the commission of the act charged,” so “[t]he prior acts must . . . not

be so remote as to be lacking in evidentiary value,” Lloyd v. United States, 226

F.2d 9, 18 (5th Cir. 1955).5 Accordingly, we have acknowledged “the prior crime

need not be very recent, especially where a substantial portion of the gap in time

occurred while the defendant was incarcerated.” United States v. Sterling, 738 F.3d

228, 238 (11th Cir. 2013). Although Roberts’ convictions reflect acts that occurred

over ten years before the instant probation violation, he was incarcerated for nearly

all of the intervening period. Therefore, Roberts has not borne his “heavy burden

in demonstrating an abuse of the court’s broad discretion in determining if an

extrinsic offense is too remote to be probative.” Pollock, 926 F.2d at 1047

(quotation omitted).

       Next, we consider the overall similarity between the extrinsic act and the

charged offense. This analysis varies depending on the nature of the prior

conviction. Where the prior convictions for being a felon in possession of a


       5
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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firearm are concerned, this factor plainly favors admission—the convictions were

for the same crime charged in this case. This factor favors the Government less

strongly where the remaining eight convictions—seven for armed robbery and one

for aggravated assault—are concerned. But when evidence of other crimes “goes

to intent rather than identity[,] a lesser degree of similarity between the charged

crime and the uncharged crime is required.” United States v. Delgado, 56 F.3d

1357, 1366 (11th Cir. 1995). Therefore, this factor arguably still favors the

Government.

      The turning point for Roberts comes when the focus shifts to loading the

other side of the scale—the side concerned with prejudice and cumulativeness.

With respect to the three additional convictions for being a felon in possession of a

firearm, the district court did not abuse its discretion. Neither prejudice nor

cumulativeness clearly outweighs probative value.

      But the balance tips against admissibility where five of the remaining

convictions are concerned. As noted above, each of the six judgments of

conviction admitted in this case corresponds to a separate robbery. Four of the

robberies gave rise to charges for both being a felon in possession of a firearm and

armed robbery (or, in one instance, to charges for being a felon in possession of a

firearm, armed robbery, and aggravated assault). Thus, in those four instances,

felon-in-possession convictions arose out of the exact same conduct as


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corresponding armed robbery and aggravated assault convictions the district court

also admitted. The additional convictions are therefore entirely cumulative and, as

a result, virtually devoid of standalone probative value. Because the additional

convictions do not mark separate occasions when Roberts knowingly possessed a

firearm, they do not advance the Government’s case by further supporting the

inference of intent. Moreover, the risk of prejudice is apparent. Introducing the

additional convictions increased the risk that jurors would engage in propensity

reasoning. We agree with Roberts that the district court abused its discretion by

admitting the additional convictions.

      We must nonetheless address whether the district court’s error was harmless.

“[E]rroneous admission of evidence does not warrant reversal if the error had no

substantial influence on the outcome and sufficient evidence uninfected by error

supports the verdict.” United States v. Harriston, 329 F.3d 779, 789 (11th Cir.

2003). We cannot conclude the error here did not substantially influence the jury’s

verdict. The Government emphasizes that the district court gave a limiting

instruction, warning that the previous convictions could only be considered for

intent. But that instruction did not cure the error in this case. Although we

presume juries follow limiting instructions, United States v. Lopez, 649 F.3d 1222,

1237 (11th Cir. 2011), we have also acknowledged that despite limiting

instructions, it is very difficult for juries not to draw propensity inferences when


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prior convictions are admitted, United States v. Pritchard, 973 F.2d 905, 908 (11th

Cir. 1992). Here, where the limiting instruction was given long after the

convictions were introduced, we cannot conclude it un-rung the bell.6 This case is

REVERSED AND REMANDED for further proceedings consistent with this

opinion.




       6
         Having found reversible error, we need not address whether the district court also erred
by admitting the three remaining armed robbery convictions, which did not correspond with
convictions for being a felon in possession of a firearm.
                                                8
