                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 19-2028
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                          JOSEPH SENTORE COLEMAN, JR.,
                                             Appellant
                                  ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                          (D.C. No. 4-17-cr-00249-001)
                     District Judge: Hon. Matthew W. Brann
                                 ______________

                    Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                                   February 6, 2020
                                   ______________

              Before: SHWARTZ, SCIRICA, and COWEN, Circuit Judges.

                                 (Filed: February 7, 2020)
                                     ______________

                                        OPINION *
                                     ______________




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SHWARTZ, Circuit Judge.

       Joseph Coleman was convicted of possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g). Coleman appeals, arguing the District Court erred in

admitting a recording that was inadmissible under Federal Rule of Evidence 404(b).

Because the evidence was properly admitted, we will affirm.

                                              I

       Law enforcement received information from a confidential informant (“CI”) that

Coleman sold firearms. The CI agreed to contact Coleman to purchase a gun. The CI

arranged the purchase with Coleman via text message. In one message, Coleman told the

CI that he had “a few joints,” meaning firearms, for sale. App. 44. The pair

corresponded about the types of firearms and their prices, and they agreed to meet.

       Before the meeting, law enforcement searched the CI to ensure he did not possess

any contraband or firearms. The CI was then “outfitted with a recording device,” and he

drove to meet Coleman. App. 55. Their entire meeting was recorded.

       During the meeting, the CI and Coleman discussed several firearms that Coleman

could provide to the CI. The CI then purchased a 9-millimeter firearm from Coleman for

$400. After the purchase, the CI placed the gun in the trunk of his car and drove

Coleman to a nearby convenience store to buy cigarettes. During the car ride, Coleman

described other guns he sold, as well as those he had in his possession. Coleman also

described various sexual encounters, spoke about women in a degrading manner, and

talked about territorial conflicts he had with others in the area. After their meeting, the



                                              2
CI met the investigators, who retrieved the firearm from the trunk of the car. They also

searched the CI once more, again finding no contraband.

       A grand jury returned a one-count indictment, charging Coleman with possession

of a firearm by a convicted felon. Coleman filed a motion in limine to exclude the

portion of the recorded conversation that transpired after the sale of the firearm because it

captured a discussion between Coleman and the CI about firearms sales and other

activities not included in the indictment. He argued that these discussions were irrelevant

under Rule 401, prejudicial under Rule 403, and inadmissible under Rule 404(b). The

District Court ruled in limine that the Government could play the recording for the jury

up until the CI placed the gun in the trunk of the car, but not the remainder of the

recording because it contained prohibited “other acts” evidence under Rule 404(b) and

was unfairly prejudicial.

       The Government played the limited recording at trial during the testimony of both

the officer handling the investigation and the CI. On cross-examination, Coleman

challenged the CI’s credibility and asserted that the CI possessed the gun before meeting

with Coleman and lied about purchasing it from him. In short, Coleman sought to

insinuate that the CI had planted the gun on Coleman.

       When the CI’s testimony was complete, the Government asked the District Court

to reconsider its ruling precluding evidence of Coleman’s statements about other firearms

he sold and had available for purchase. The Government asserted that, in light of

Coleman’s apparent defense that the CI had fabricated the gun sale, the remainder of the

recording was admissible to show Coleman’s intent to sell weapons, his motive for

                                              3
meeting with the CI, and his general practice of selling firearms. Coleman confirmed his

theory of the case was that the CI “brought the gun” with him to meet Coleman “or [that]

one was handed to him” by law enforcement on the way to the meeting, but argued that

this theory did not “open the door” to the previously precluded portion of the recording.

App. 176.

       The District Court determined that it would “modify or change [its pretrial] ruling”

and “permit the Government to play the balance of the tape.” App. 177. The Court

explained “that the probative value of the . . . tape now substantially outweigh[ed] any

danger of unfair prejudice against [Coleman].” App. 177. The Court reasoned that it

would be “appropriate now . . . to play the balance of the tape” to “dispel” Coleman’s

argument that the CI “brought the firearm to the transaction.” App. 174.

       The Government called the officer handling the investigation back to the witness

stand and played the remainder of the recording for the jury. During questioning, the

officer noted Coleman’s references in the recording to having “guns galore.” App. 187;

Govt. Ex. 5. This portion of the recording also included Coleman’s statements about

conflicts he had with others in the community and comments about his relationships with

women, but no questions were asked about these topics.

       After the close of evidence, the District Court told the jury that it could consider

these portions of the recording “only to decide whether Mr. Coleman had the state of

mind, knowledge, or intent necessary to commit the crime charged in the indictment, or

whether Mr. Coleman had the motive or opportunity to commit the acts charged in the

indictment,” and “not [to] consider it for any other purpose.” Trial Transcript Vol. III,

                                              4
ECF No. 78 at 37. The Court further admonished the jury that it should “not consider

any discussion of drugs, interactions with other individuals or possession of other

firearms as a substitute for proof that [Coleman] committed the crime charged, or that he

has a bad character or any propensity to commit crimes” and should “not . . . conclude

that because [Coleman] may have committed other bad acts or crimes that he must have

committed the crime charged in the indictment.” Trial Transcript Vol. III, ECF No. 78 at

37.

       The jury found Coleman guilty and the District Court sentenced him to 120

months’ imprisonment. Coleman appeals.

                                            II 1

       The District Court correctly admitted the objected-to portion of Coleman’s

conversation with the CI under Rule 404(b). The evidence was offered for a non-

propensity purpose, was relevant, and its probative value outweighed the danger of unfair

prejudice.

       Rule 404(b)(1) 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.” Fed. R. Evid. 404(b)(1). “Other act”



       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291. “We review a district court’s evidentiary
rulings for an abuse of discretion,” United States v. Caldwell, 760 F.3d 267, 274 (3d Cir.
2014); Marra v. Phila. Hous. Auth., 497 F.3d 286, 297 (3d Cir. 2007), but we exercise
“plenary review of whether evidence falls within the scope of Rule 404(b).” United
States v. Green, 617 F.3d 233, 239 (3d Cir. 2010) (internal quotation marks and citation
omitted).
                                             5
evidence, however, is admissible when offered for a proper purpose “such as proving

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

lack of accident.” Fed. R. Evid. 404(b)(2). If the other act evidence: (1) is “proffered for

a non-propensity purpose;” (2) is “relevant to the non-propensity purpose;” (3) has

probative value that outweighs “its potential for causing unfair prejudice to the

defendant;” and (4) is “accompanied by a limiting instruction,” United States v. Foster,

891 F.3d 93, 107 (3d Cir. 2018) (quoting United States v. Repak, 852 F.3d 230, 241 (3d

Cir. 2017)), then it is admissible. The objected-to portion of the recording satisfies these

four elements.

       First, Coleman’s statements were admissible for a non-propensity purpose because

they showed proof of plan, motive, and access, and refuted a claim that the gun was

planted. See Foster, 891 F.3d at 108. Coleman was charged with possession of the 9-

millimeter firearm that he sold to the CI. The recording demonstrated that Coleman had

regular access to various firearms and sold them for profit, which corroborated

Coleman’s motive for meeting the CI. The recording also undercut the assertion that the

CI was the source of the gun. See United States v. Lee, 612 F.3d 170, 187 n.19 (3d Cir.

2010) (explaining, in a felon-in-possession case, that “it is highly relevant to show that a

defendant had a motivation to commit the crime for which he is being charged”). Thus,

the recording had an evidentiary purpose that did not bear upon Coleman’s character or

his propensity to possess or sell firearms.

       Second, the recording was relevant. Evidence is relevant if there is “a relationship

between the evidence and a material fact at issue[,] which must be demonstrated by

                                              6
reasonable inferences that make a material fact more probable or less probable than it

would be without the evidence.” Foster, 891 F.3d at 109 (quoting United States v.

Sampson, 980 F.2d 883, 888 (3d Cir. 1992)). The suggestion that the CI planted the gun

made relevant the evidence that Coleman had access to weapons. More specifically,

discussions about other firearms Coleman sold and had available made more probable

that Coleman provided the 9-millimeter firearm to the CI, and made less probable that the

CI planted the gun, which was the backbone of Coleman’s defense. Therefore, the

recording was relevant to show motive, access, and intent to possess, and to rebut

Coleman’s defense. Id. at 110 (“[T]he [G]overnment was entitled to rebut” the argument

that a gun was planted “by presenting evidence of his motive for possessing a gun that

day.”).

          Third, the probative value of the evidence outweighed the risk of unfair prejudice,

and thus “meet[s] Rule 403’s balancing test.” Id. at 109. Rule 403 requires balancing the

probative value of evidence offered against the danger of unfair prejudice, confusing the

issues, or misleading the jury. Fed. R. Evid. 403. We give substantial deference to

district courts in evaluating evidence under Rule 403. See, e.g., Foster, 891 F.3d at 110;

United States v. Finley, 726 F.3d 483, 491 (3d Cir. 2013); Lee, 612 F.3d at 190.

Coleman’s accusation that the CI, rather than Coleman, possessed the gun, made

evidence that revealed Coleman’s motive to possess and his access to guns “highly

probative.” Lee, 612 F.3d at 190 (concluding that evidence “reveal[ing] [the defendant’s]

motive to possess weapons on the day in question, . . . is highly probative in a case like

this, in which the defendant has denied possession all together.”). Though the recording

                                               7
was prejudicial, as it evidenced Coleman’s practice of selling firearms and engaging in

activities some may view unfavorably, the prejudice was not unfair. 2 Coleman’s defense

placed at issue whether the CI planted the gun. The objected-to portion of the recording

refuted that assertion, making this evidence of past sales highly probative and tipping the

balance in favor of admissibility under Rule 403.

       Finally, the District Court provided the jury with a limiting instruction, which

mitigated the danger of unfair prejudice to Coleman. The Court told the jury that it

should only consider the recording “to decide whether Mr. Coleman had the state of

mind, knowledge, or intent necessary to commit the crime charged in the indictment, or

whether Mr. Coleman had the motive or opportunity to commit the acts charged in the

indictment” and not to “consider it for any other purpose.” Trial Transcript Vol. III, ECF

No. 78 at 37. The Court further admonished the jury that it should “not consider any

discussion of drugs, interactions with other individuals or possession of other firearms as

a substitute for proof that [Coleman] committed the crime charged, or that he has a bad

character or any propensity to commit crimes” and should “not . . . conclude that because

[Coleman] may have committed other bad acts or crimes that he must have committed the

crime charged in the indictment.” Trial Transcript Vol. III, ECF No. 78 at 37. By

narrowing the purpose for which the jury could consider the evidence, and because we

presume jurors follow the Court’s instructions, Richardson v. Marsh, 481 U.S. 200, 211


       2
        While Coleman’s statements about women and his territorial conflicts with
others were unfavorable, they were relatively short and not unfairly prejudicial. Further,
the Government did not question the witness on these subjects or mention them during
closing arguments.
                                             8
(1987), the clear and specific limiting instruction minimized any unfair prejudice from

the recording.

                                            III

      Because the evidence was admissible under Rule 404(b), we will affirm.




                                            9
