                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    February 21, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

 v.                                                      No. 06-7072
                                                         (E.D. Okla.)
 SHAUN M ICHAEL JAM ES, also                     (D.Ct. No. CR-05-58-01-W )
 know n as Shaw n M . James,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      A jury convicted Appellant Shaun M ichael James of one count of

      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
possession of a firearm after a former conviction of a felony in violation of 18

U.S.C. § 922(g)(1). He appeals his conviction on grounds the district court

improperly admitted evidence the firearm in question was stolen. W e exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm M r. James’s conviction.



                       I. Factual and Procedural Background

      Authorities with the Tahlequah, Oklahoma, Police Department routinely

compare the serial numbers of firearms pawned in the city with a computerized

database, maintained by the Federal Bureau of Investigation (FBI) at the National

C rim e Information C enter (N CIC), to determine if the firearms are stolen. On

M arch 9, 2005, officers discovered that a W inchester M odel 37A twenty-gauge

shotgun, pawned the day before at the BS & G Pawn Shop in Tahlequah, had been

stolen on November 22, 2004. The pawn ticket showed “Shaun James” pawned

the shotgun and signed the ticket.



      The pawn shop owner, Tony Boyle, did not remember M r. James and could

not identify him as the person who pawned the shotgun, but explained he filled

out the paw n ticket in question by transferring information from the driver’s

license of the person pawning the item. In this case, the information from the

driver’s license transferred onto the pawn ticket identified the person as “Shaun

James,” with a birth date of April 26, 1979, and an address of 26399 South Indian

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Road, Parkhill, Oklahoma; and described him as an Indian male, twenty-five

years old, five feet seven inches in height, weighing 113 pounds, with black hair

and black eyes. M r. Boyle further testified the pawn ticket contained the

signature of “Shaun James” and was signed in M r. Boyle’s presence by the person

pawning the shotgun. Finally, M r. Boyle explained individuals pawning an item

must present a government-issued photo identification and that he looks at the

photo on the identification, presumably to compare it with the person physically

pawning the item; in this instance, he explained, the person pawning the shotgun

presented an Oklahoma driver’s license with a photo.



      In early April 2005, and again in late April 2005, someone identifying

himself as “Shaun James” telephoned Jason Chennault, the Chief Investigator for

the Cherokee County Sheriff’s Office. Both times the caller asked if he could get

his shotgun back, and each time Investigator Chennault explained he could not

because it w as stolen.



      On M ay 4, 2005, M r. James met with a corrections officer, Ryan Tiger;

when M r. Tiger asked M r. James if he had any contact with law enforcement, he

answered “yes,” explaining he contacted Investigator Chennault because he was

trying to get his shotgun out of the pawn shop but could not because it was stolen

and a “hold” had been placed on it. M r. James also told M r. Tiger he bought the

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shotgun from a lady who lived near his father, he and another person went to the

pawn shop to pawn it, and he was going to hire an attorney to try to get it back.



      At trial, evidence was offered through various witnesses establishing the

address and birth date on the pawn ticket matched M r. James’s actual address and

date of birth. In addition, while none of the w itnesses were handwriting experts,

they testified the signature of “Shaun James” on the pawn ticket matched his

actual signature on various other signed documents admitted into evidence. The

defense did not call any witnesses.



      Also at trial, M r. James’s counsel made an objection pursuant to Federal

Rule of Evidence 404(b) on grounds evidence the shotgun was stolen was

irrelevant and the government had failed to notify him of its intent to use “this

other crime” evidence. R., Vol. 2 at 15. M r. James’s counsel also objected under

Federal Rule of Evidence 403, claiming such evidence was more prejudicial than

probative. In response, government counsel explained the fact the firearm was

stolen was discussed with M r. James’s counsel and no allegation was being made

M r. James knowingly possessed a stolen firearm, but only that he was a felon in

possession of a firearm. Government counsel also explained the purpose in

offering evidence the shotgun was stolen was to give the jury background

information as to why the witnesses acted as they did.

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      The district court overruled M r. James’s objection and admitted testimony

the shotgun at issue was stolen. M r. James’s counsel did not request a limiting

instruction cautioning the jury on the weight given such evidence and the district

court did not sua sponte provide a limiting instruction. In closing argument, M r.

James’s attorney concentrated on the fact no direct evidence implicated M r. James

as no one saw him with the shotgun, positively identified him as either the person

who pawned the shotgun or called Inspector Chennault, or offered video,

fingerprint or expert handwriting evidence implicating him. In so doing,

counsel’s closing argument focused on the fact someone else could have used M r.

James’s driver’s license as a means of identity theft, but he did not suggest the

other person allegedly accompanying M r. James to the pawn shop had possessed

or pawned the firearm.



      At the conclusion of closing arguments at around 3:00 p.m., the jury

adjourned for deliberations. At 5:30 p.m., the jury sent a note to the district court

judge asking if M r. Tiger was a probation officer. W ith approval of both counsel,

the judge returned a note stating, “You have all the evidence that was admitted at

trial.” R., Vol. 2 at 99-101. Less than thirty minutes later, the foreperson sent a

note stating, “We have discussed twice and voted twice. Still split. W here do w e

go from here? Hard heads on both sides.” R., Vol. 2 at 101. W hen the district

court asked counsel how each would like to proceed, counsel for both parties

                                          -5-
suggested three hours of deliberation was insufficient and deliberations should

continue, causing the judge to send the jury a note stating, “Please continue your

deliberations.” R., Vol. 2 at 101-03. Approximately one hour and forty minutes

later, at 7:44 p.m., the jury returned a unanimous verdict finding M r. James guilty

of being a felon in possession of a firearm.



                                     II. Discussion

      M r. James’s sole issue presented on appeal is “[w]hether the district court

erred by allowing evidence at trial indicating that the shotgun allegedly possessed

by [him] was stolen.” Apt. Br. at 1. In support of his argument, he contends

evidence the shotgun was stolen was outside the scope of Federal Rule of

Evidence 404(b) because it was not inextricably intertwined with the charged

crime or necessary to avoid confusion. Expounding on this contention, M r. James

claims evidence the shotgun was stolen was not “necessary to complete or render

less confusing the testimony of a witness” because it did not shed light on the

issue presented at trial as to whether he was a felon in possession of a firearm.

Apt. Br. at 8. He also suggests such evidence was more prejudicial than relevant

“because it enticed the jury to find guilt based on the fact the gun was stolen,” as

evidenced by the jury’s five-hour deliberation and despite “the possibility that a

person who accompanied [him] to the pawn shop may have been the actual

possessor.” Apt. Br. at 5-6, 9-10.

                                          -6-
      W e start our analysis of M r. James’s appeal with our standard of review

and the principles applicable to admission of evidence. W e review for abuse of

discretion the district court’s evidentiary rulings made pursuant to Federal Rules

of Evidence 403 and 404(b). See United States v. M ares, 441 F.3d 1152, 1156

(10th Cir. 2006) (discussing Rule 404(b)), petition for cert. filed (U.S. Jun. 21,

2006) (No. 05-11764); United States v. Call, 129 F.3d 1402, 1405 (10th Cir.

1997) (discussing Rule 403). Thus, the decision to admit or exclude such

evidence lies within the sound discretion of the trial court, see United States v.

Harrison, 942 F.2d 751, 759 (10th Cir. 1991), and “[w]e will not reverse a district

court’s ruling if it falls within the bounds of permissible choice in the

circumstances and is not arbitrary, capricious or whimsical.” M ares, 441 F.3d at

1156 (quotation marks, citation and alteration omitted). See also Call, 129 F.3d

at 1405.



      Both the Supreme Court, in Huddleston v. United States, 485 U.S. 681, 691

(1988), and this circuit, in United States v. Record, 873 F.2d 1363, 1374 (10th

Cir. 1989), announced four factors to consider in weighing the admissibility of

evidence under Rule 404(b), including whether: (1) the evidence is offered for a

proper purpose; (2) it is relevant; (3) the probative value of the evidence is

substantially outweighed by its prejudicial effect under Rule 403; and (4) a proper

limiting instruction was given, if requested by the defendant. See also M ares,

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441 F.3d at 1156; United States v. Sarracino, 131 F.3d 943, 948 (10th Cir. 1997).

W ith regard to the first factor, “Rule 404(b) identifies several proper purposes for

admitting evidence of ‘other crimes, wrongs, or acts,’ including ‘proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.’” Sarracino, 131 F.3d at 949 (quoting Fed. R. Evid. 404(b)).

However, we recognize the purposes expressly identified in Rule 404(b) are not

exclusive, and instead, “the rule is one of inclusion, rather than exclusion, unless

the evidence is introduced for impermissible purpose or is unduly prejudicial.”

Id. (quotation marks and citation omitted).



      One proper purpose for admitting “other acts” evidence, not expressly

identified in Rule 404(b), is to show the “context” of a charged crime, as “[a] jury

‘cannot be expected to make its decision in a void.’” Id. (quoting United States v.

M asters, 622 F.2d 83, 86 (4th Cir. 1980)). W e have also explained:

      Rule 404(b) only applies to evidence of acts extrinsic to the charged
      crime. 1 An uncharged act may not be extrinsic if it was part of the
      scheme for which a defendant is being prosecuted, or if it was
      inextricably intertwined with the charged crime such that a witness’

      1
         “Extrinsic” evidence “involves an act wholly apart from and not
intricately related to the asserted claim,” Elliot v. Turner Constr. Co., 381 F.3d
995, 1004 (10th Cir. 2004), and is otherwise generally defined as not inherent;
extraneous or external. See W ebster’s II New Riverside Univ. Dictionary, Rev.
Ed., 245 (1996). In contrast, “intrinsic” evidence is evidence directly related to
or the part of the same event, see Elliot, 381 F.3d at 1004, and is otherwise
generally defined as of or relating to the fundamental nature of a thing; inherent.
See W ebster’s II at 366.

                                          -8-
      testimony would have been confusing and incomplete without
      mention of the prior act.

Record, 873 F.2d at 1372 n.5 (quotation marks and citations omitted) (emphasis

added). In addition, we have held “[o]ther act evidence is intrinsic when the

evidence of the other act and the evidence of the crime charged are inextricably

intertwined or both acts are part of a single criminal episode or the other acts

were necessary preliminaries to the crime charged.” United States v. Lam bert,

995 F.2d 1006, 1007 (10th Cir. 1993) (quotation marks and citation omitted)

(emphasis added). Finally, we have repeatedly relied on the Fourth Circuit’s

decision in M asters for a list of other possible purposes for admitting evidence of

other acts under Rule 404(b). See 622 F.2d at 86 (providing list of other possible

purposes). These include whether the evidence: (1) provides part of the

“context” of the crime charged or is necessary for a “full presentation of the

case”; (2) is so much a part of the environment of the case that it is necessary to

“complete the story of the crime”; or (3) is so linked together in point of time and

circumstances with the crime charged it is part of the “res gestae” or, in other

words, “part and parcel of the proof of the offense charged.” See generally Elliot,

381 F.3d at 1004 (relying on M asters, 622 F.2d at 86); Sarracino, 131 F.3d at 949

(same); United States v. Kimball, 73 F.3d 269, 272 (10th Cir. 1995) (same);

United States v. Cook, 745 F.2d 1311, 1317-18 (10th Cir. 1984) (same).




                                          -9-
      In this case, it is apparent Investigator Chennault’s and M r. Tiger’s

testimony the shotgun was stolen was a necessary “preliminary” to the crime

charged, see Lambert, 995 F.2d at 1007, or, in other words, was necessary to

provide a full presentation of the case and completion of the story, or was so

linked together in point of time and circumstances with the crime charged it was

part of the “res gestae.” See generally Elliot, 381 F.3d at 1004; Sarracino, 131

F.3d at 949; Kimball, 73 F.3d at 272; Cook, 745 F.2d at 1317. This is because the

entire scenario under which M r. James w as implicated for being a felon in

possession of a firearm began when authorities ran a check on the pawned

shotgun to determine whether it was stolen, which then led to its confiscation.

Confiscation of the stolen shotgun next led the person identifying himself as

“Shaun James” to call Investigator Chennault for the purpose of retrieving the

confiscated shotgun. During these calls, that person implicated himself when he

asked if he could get his shotgun back. The government then offered Corrections

Officer Tiger’s testimony that he met with M r. James, who said he went to the

pawn shop to pawn the shotgun and that he contacted Investigator Chennault

because he was trying to retrieve the gun from the pawn shop but could not

because it w as stolen and a hold had been placed on it.



      Not only did M r. Tiger’s testimony corroborate M r. Boyle’s testimony a

person carrying the photo identity of a Shaun James pawned the shotgun and

                                         -10-
Inspector Chennault’s testimony M r. James called to retrieve it, but M r. Tiger was

the only witness who could positively identify M r. James as the person making

inculpatory statements. Thus, M r. Tiger’s testimony was also offered to show M r.

James, and not some imposter, possessed the pawned shotgun and called

Investigator Chennault attempting to retrieve it. Given M r. James’s defense

strategy at trial centered on the fact he did not possess or pawn the shotgun, it is

evident the testimony of both Investigator Chennault and M r. Tiger was offered to

show M r. James in fact previously possessed the pawned shotgun. Thus, such

evidence was offered to establish the crime charged — i.e., possession of a

firearm after a former conviction of a felony — and not that M r. James stole the

shotgun.



      For these reasons, evidence the pawned shotgun was stolen was

inextricably intertwined with the charged crime for the purpose of its admission.

M oreover, without inclusion of the fact the shotgun was stolen, the testimony of

both Investigator Chennault and M r. Tiger may have been confusing and

incomplete, as the jury would have been left in a void as to the circumstances

leading to confiscation of the shotgun and M r. James’s incriminating statements

to both of them. See Record, 873 F.2d at 1372 n.5. Thus, we hold a proper

purpose existed for admission of evidence the shotgun was stolen.




                                          -11-
       Having determined such evidence was offered for a proper purpose, we turn

to the second factor, regarding its relevancy. See Mares, 441 F.3d at 1156. For

the same reasons previously discussed, it is clear that evidence the shotgun was

stolen was relevant to the crime charged as it explained why M r. James made

incriminating statements about the confiscated shotgun and his attempts to

retrieve it.



       Next, we address the third Rule 404(b) factor, regarding whether the

probative value of the stolen shotgun evidence was substantially outweighed by

its prejudicial effect, as contended by M r. James. As previously noted, he argues

such evidence enticed the jury to find him guilty, as shown by its five-hour

deliberation and despite the possibility the person accompanying him to the pawn

shop may have possessed the shotgun.



       W e begin addressing M r. James’s contention by pointing out that neither

the jury instructions nor the government’s arguments at trial suggest M r. James

stole the shotgun. In addition, the only testimony offered at trial on how M r.

James acquired the shotgun did not suggest he stole it, but rather that he stated he

purchased it. However, even if the testimony the shotgun was stolen had a

prejudicial effect on the jury, it is clear its probative value substantially

outweighed its prejudicial effect. This is because the stolen shotgun evidence, as

                                          -12-
previously discussed, was necessary in providing the requisite proof Shaun James,

and not an imposter, pawned the shotgun and made calls to retrieve it after its

confiscation as a stolen weapon.



      In addition, while the jury may have deliberated five hours, the length of its

deliberation alone does not establish any prejudice in admitting the stolen shotgun

evidence substantially outweighed its probative value. Rather, given the

overwhelming inculpatory evidence that someone identified as “Shaun James”

pawned the shotgun and called Inspector Chennault, it is more likely the jury was

deliberating the issue raised by the defense concerning identity theft and its claim

no direct evidence showed it was M r. James, and not an imposter, who pawned

the shotgun and made calls to recover it.



      W e also reject M r. James’s claim the stolen shotgun evidence caused the

jury to somehow disregard evidence the other person allegedly accompanying M r.

James could have possessed the shotgun. Only one witness, M r. Tiger, testified

M r. James told him he was accompanied by another person when he pawned the

shotgun. In the course of M r. Tiger’s conversation with M r. James, it is clear M r.

James was not implicating the other person, and in fact, he told M r. Tiger he

contacted the authorities because he, M r. James, wanted to get his shotgun back.

Based on this testimony and the other overwhelming inculpatory evidence offered

                                         -13-
at trial, the fact someone may have accompanied M r. James to the pawn shop was

unlikely to sw ay the jury to acquit, regardless of w hether the district court

admitted evidence the shotgun was stolen.



      Lastly, we address the fourth and final Rule 404(b) factor on whether a

proper limiting instruction was given, if requested by the defendant. See Mares,

441 F.3d at 1156. W e have long held it is not error for a trial court to fail to give

a limiting instruction on Rule 404(b) evidence in the absence of a proper jury

instruction request by counsel. See Record, 873 F.2d at 1376 (relying on

Huddleston, 485 U.S. at 691-92). In this case, it is clear a limiting instruction

was never requested, and therefore, the district court did not err in failing to

provide such an instruction to the jury.



      Applying our standard of review and considering the applicable R ule

404(b) factors, we hold the district court did not abuse its discretion in admitting

evidence the shotgun pawned by M r. James had previously been stolen.




                                           -14-
                          III. Conclusion

For these reasons, we A FFIRM M r. James’s conviction.



                              Entered by the C ourt:

                              W ADE BRO RBY
                              United States Circuit Judge




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