         Case: 19-10163   Date Filed: 06/03/2020    Page: 1 of 13




                                                                     [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 19-10163
                    ________________________

                D.C. Docket No. 1:18-cr-20584-JEM-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

SURMONDREA MCGREGOR,

                                             Defendant - Appellant.

                    ________________________

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

                            (June 3, 2020)
                Case: 19-10163       Date Filed: 06/03/2020      Page: 2 of 13



Before WILSON, MARCUS and THAPAR, * Circuit Judges.

MARCUS, Circuit Judge:

       During a search arising out of a routine probation check of Surmondrea

McGregor’s shared home, police discovered a Glock nine-millimeter pistol with a

clear extended magazine and evidence of identity theft -- personal identifying

information (“PII”) and unauthorized access devices. The firearm was discovered

in a closet along with a sheet of paper containing PII, a sheet of paper from which

McGregor’s fingerprints were later recovered. McGregor was later charged by a

federal grand jury with being a felon in possession of a firearm, and he and his

co-defendant were charged with identity theft and possession of unauthorized

access devices.

       On the first day of trial, McGregor pled guilty to the firearm charge and

argued that the firearm evidence should be excluded because its probative value

was substantially outweighed by the danger of unfair prejudice. The district court

overruled his objection. Thereafter, McGregor was convicted by a jury on all of

the remaining counts. He now says the district court abused its considerable

discretion in admitting the evidence. We are unpersuaded because the firearm was

found in close proximity to the PII in a small closet, it tied McGregor (and not his



*
 The Honorable Amul R. Thapar, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
                                               2
              Case: 19-10163     Date Filed: 06/03/2020    Page: 3 of 13



co-defendant) directly to the PII and had substantial probative value in proving that

McGregor actually possessed the PII. Nor did the trial court abuse its discretion in

concluding that firearms are not so inherently prejudicial as to substantially

outweigh the probative value here. Thus, we affirm.

                                             I.

      In 2016, Surmondrea McGregor pled guilty in a Florida state court to

attempted premeditated murder with a firearm and to possession of a firearm by a

convicted felon. He was sentenced to 18 months’ imprisonment and four years of

probation, the terms of which prohibited McGregor from possessing or owning a

firearm and from possessing any drugs or narcotics not prescribed to him by a

physician. McGregor also agreed as part of the terms of his probation to home

visits conducted by his probation officer.

      On February 23, 2018, Florida Department of Corrections probation officer

Kimberly Schultz conducted a home visit of McGregor, who was under her

supervision. When she arrived at McGregor’s Miami residence, Schultz smelled

marijuana and observed damaged cars outside the home. She contacted the police

to ask for their assistance in securing the home so that Schultz could inspect it.

She reached a City of Miami police sergeant who told her he had seen a

photograph of McGregor holding a firearm that McGregor had apparently posted

to a social media platform, Snapchat. Because of the location of the residence, the


                                             3
              Case: 19-10163      Date Filed: 06/03/2020   Page: 4 of 13



officer advised her to contact the Miami-Dade Police Department, rather than City

of Miami Police, which she did.

      Miami-Dade police officers, in turn, secured the home while Schultz went

inside to inspect it. Schultz again smelled marijuana and went into a bedroom,

where she discovered marijuana on a table and a medical record from a doctor’s

visit with McGregor’s name on it. Schultz reported that she had found the

contraband to the police officers on the scene, who decided to stop the search and

obtain a warrant. When the officers executed a warrant secured from a neutral

magistrate, they recovered marijuana, a firearm with an extended clear magazine,

and credit cards and papers with PII of individuals not at the residence. Notably,

the firearm was found in a small closet near the living room, along with one sheet

of paper containing social security numbers. All of the occupants of the home

were arrested.

      On July 5, 2018, a grand jury sitting in the Southern District of Florida

indicted McGregor on five counts: one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count 1); one count of

possession of fifteen or more unauthorized access devices in violation of 18 U.S.C.

§ 1029(a)(3) (Count 2); and three counts of aggravated identity theft in violation of

18 U.S.C. § 1028A(a)(1) (Counts 3–5). The co-defendant, Ricky Fernetus, was

charged separately with possessing fifteen or more unauthorized access devices


                                           4
              Case: 19-10163     Date Filed: 06/03/2020   Page: 5 of 13



(Count 6), and with aggravated identity theft (Counts 7–9). On October 23, 2018,

the government filed its notice of intent to introduce certain evidence pursuant to

Rule 404(b) of the Federal Rules of Evidence, including the circumstances

surrounding the probation sweep to explain why officers were at the residence,

images of McGregor from social media postings both with the firearm and with the

PII of other individuals, and McGregor’s prior convictions.

      McGregor and his co-defendant were tried together over four days, from

November 5 to 8, 2018. On the first day of trial, McGregor changed his plea to

guilty on Count 1 -- possession of a firearm by a convicted felon, a Glock nine-

millimeter pistol and twelve rounds of nine-millimeter ammunition -- but

proceeded to trial on the remaining four counts.

      Before trial began, McGregor objected to the introduction of the firearm and

several photographs of McGregor holding the firearm and of it being displayed

with substantial amounts of cash. He claimed undue prejudice in a trial that was --

since McGregor had pled guilty to the gun charge -- solely about fraud. The

government argued, however, that the gun was relevant to establishing McGregor’s

knowing possession of PII because the Glock was found in the same closet with a

paper containing PII, which had McGregor’s fingerprints on it. The government

also claimed that this evidence was “relevant to show intent to defraud as firearms

are commonly carried when folks are possessing this type of valuable personal


                                          5
              Case: 19-10163     Date Filed: 06/03/2020    Page: 6 of 13



information which can have a worth up to the thousands of dollars.” The

government added that any claimed prejudice would be limited because it would

not attempt to introduce McGregor’s prior felony conviction or tell the jury that

McGregor’s possession of the firearm had been illegal, since he had pled guilty to

the gun charge. McGregor’s counsel said, however, that the government had “two

fingerprints . . . of Mr. McGregor,” “one on a sheet of PII and . . . another on a

credit card,” “[s]o they [had] more than enough evidence to tie [McGregor] to the

PII,” and that the introduction of the gun was just designed “to inflame the jury.”

      The district court agreed that the gun was prejudicial, but said that “it’s

supposed to be, or it isn’t relevant. The question is whether it’s unfairly

prejudicial, and I don’t really think it is.” The court observed that the possession

of a firearm no longer inflames anyone: “[m]aybe it used to inflame people, but I

don’t think it inflames anybody anymore.” Thus, it tentatively admitted the

evidence. McGregor preserved his objection.

      McGregor and his co-defendant Frenetus mounted competing defenses:

McGregor claimed the PII and access devices belonged to Frenetus, while Frenetus

urged that they belonged to McGregor. Indeed, in her opening statement,

McGregor’s counsel told the jury that while “there was definitively fraud going on

here,” “it was not perpetrated by Surmondrea McGregor,” but rather by his

co-defendant, Fernetus, and by Fernetus’s girlfriend, who owned the apartment.


                                           6
               Case: 19-10163    Date Filed: 06/03/2020   Page: 7 of 13



Fernetus’s counsel argued the converse: that the PII belonged to McGregor. His

counsel also told the jury that “the evidence will show that they found a firearm

that Mr. McGregor was photographed with,” that the firearm was found “right next

to the personal identifiable information,” and that “the sheet of paper [containing

PII] and the firearm [were] found in the very same closet.” Fernetus’s counsel

explained that while there was a mountain of evidence linking McGregor to the

PII, there were only fingerprints linking Fernetus to the fraud and an alleged

confession, which Fernetus disputed having made.

        McGregor again objected during trial to the introduction of the firearm

evidence -- the firearm itself as well as the images posted to McGregor’s Snapchat

account. Ultimately, the district court overruled the objection. The firearm and

two images of the gun posted to McGregor’s Snapchat account were admitted: one

image of McGregor holding the firearm with a clear extended magazine containing

live ammunition and another of the firearm displayed with a substantial amount of

cash.

        In closing argument, the government explained that the distinctive gun with

a see-through extended magazine was recovered from the closet, that the gun was

tied to McGregor through his Snapchat photos, that the gun was found in the closet

with a piece of paper containing PII, and that the piece of paper containing PII had

McGregor’s fingerprints on it. McGregor’s counsel claimed, however, that the gun


                                          7
              Case: 19-10163      Date Filed: 06/03/2020    Page: 8 of 13



had nothing to do with fraud and that the government had introduced it into

evidence just to tell the jury that “he’s a bad guy, it’s bad to have a gun, let’s

convict them of this fraud.” McGregor’s counsel also argued that the idea that the

firearm was there to protect the PII was unpersuasive because the PII was found

strewn about the home in several places, and contained many other people’s

fingerprints. His counsel further told the jury that the evidence suggested the

bedroom was not shared and that it really belonged to Frenetus; in fact, the

majority of the PII was found along with Frenetus’s belongings in his bedroom.

      The jury found McGregor and his co-defendant guilty on all of the fraud

counts. The district court sentenced McGregor to a total of 134 months’

imprisonment and three years of supervised release.

      McGregor timely appealed his convictions to this Court. Again, McGregor

argues that the district court abused its discretion because the firearm evidence was

not relevant to the fraud charges and its probative value was substantially

outweighed by the danger of unfair prejudice.

                                           II.

      We review “the district court’s ruling on admission of evidence for abuse of

discretion.” United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000). The

“‘deference that is the hallmark of abuse-of-discretion review,’ requires that we not

reverse an evidentiary decision of a district court ‘unless the ruling is manifestly


                                            8
              Case: 19-10163       Date Filed: 06/03/2020   Page: 9 of 13



erroneous.’” United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en

banc) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142–43 (1997)). Because

“the application of an abuse-of-discretion review recognizes the range of possible

conclusions the trial judge may reach,” we “must affirm unless we find that the

district court has made a clear error of judgment, or has applied the wrong legal

standard.” Id. at 1259.

      The starting place for evidentiary admissibility is relevance. Evidence is

“relevant” under Rule 401 of the Federal Rules of Evidence if “it has any tendency

to make a fact more or less probable than it would be without the evidence” and

“the fact is of consequence in determining the action.” FED. R. EVID. 401. And

under Rule 402, “[r]elevant evidence is admissible” unless provided otherwise by

the Constitution, federal statute, the other Federal Rules of Evidence, or other rules

made by the Supreme Court. FED. R. EVID. 402. Conversely, “[i]rrelevant

evidence is not admissible.” Id.

      The government argued in district court, and maintains in this appeal, two

theories of relevance. First, it says the firearm was relevant to show that

McGregor possessed the PII. That is, because the firearm was found in a small

closet with a sheet of paper containing PII, and because the firearm belonged to

McGregor, as shown through the Snapchat photographs, it was far more likely that

the PII too belonged to McGregor. That is plainly correct. McGregor says that


                                            9
             Case: 19-10163     Date Filed: 06/03/2020    Page: 10 of 13



because McGregor’s fingerprints were found on the sheet of paper with the PII

recovered from the closet, the firearm evidence was not needed by the government

to establish the defendant’s possession, and was therefore irrelevant. But this

argument is really about the probative value of the firearm evidence -- that is, how

much more likely it made the fact of possession -- not its relevance. The evidence

was straightforwardly relevant to possession.

      The government advances a second theory: that the firearm evidence was

relevant to McGregor’s mental state of knowingly and intentionally possessing the

unauthorized access devices because, as the government’s expert testified, just like

drugs and guns, “fraud and firearms go together” as people wish to protect

valuable PII and access devices. Because we find the first theory of relevance

dispositive -- that the firearm evidence was relevant to possession -- we need not

and do not reach the alternative “tools of the trade” theory of relevance.

      Having determined that the evidence was indeed relevant, we turn to

whether the district court abused its discretion in admitting the evidence because,

despite its undeniable relevance, the danger of unfair prejudice substantially

outweighed its probative value. Against the background principle that relevant

evidence is admissible, Rule 403 provides that a “court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of . . . unfair

prejudice.” FED. R. EVID. 403. We have long said that Rule 403 “is an


                                          10
             Case: 19-10163     Date Filed: 06/03/2020   Page: 11 of 13



extraordinary remedy which should be used sparingly, and, indeed, the trial court’s

discretion to exclude evidence as unduly prejudicial is narrowly circumscribed.”

United States v. Cross, 928 F.2d 1030, 1051 (11th Cir. 1991) (quotations omitted);

see United States v. King, 713 F.2d 627, 631 (11th Cir. 1983) (“[B]ecause it

permits a trial court to exclude concededly probative evidence, Rule 403 is an

extraordinary remedy which should be used sparingly.”) (quotations omitted); see

also United States v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011) (same); United

States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003) (same); United States v.

Meester, 762 F.2d 867, 875 (11th Cir. 1985) (same).

      Moreover, “[i]n applying Rule 403, courts must ‘look at the evidence in a

light most favorable to admission, maximizing its probative value and minimizing

its undue prejudicial impact.’” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d

1063, 1069 (11th Cir. 2014) (quoting United States v. Alfaro-Moncada, 607 F.3d

720, 734 (11th Cir. 2010)); see United States v. Finestone, 816 F.2d 583, 585 (11th

Cir. 1987) (“The Federal Rules of Evidence favor admission of any evidence

tending to prove or disprove a fact in issue. The balance under Rule 403 should be

struck in favor of admission.”) (citations and quotations omitted and alteration

adopted); see also United States v. Tinoco, 304 F.3d 1088, 1120 (11th Cir. 2002)

(same); United States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989) (same). We

also recognize that “the district court is uniquely situated to make nuanced


                                         11
             Case: 19-10163     Date Filed: 06/03/2020   Page: 12 of 13



judgments on questions that require the careful balancing of fact-specific concepts

like probativeness and prejudice, and we are loathe to disturb the sound exercise of

its discretion in these areas.” United States v. Jernigan, 341 F.3d 1273, 1285 (11th

Cir. 2003). “Only if the decision to admit evidence over a Rule 403 challenge is

unsupportable when the evidence is viewed in the light most supportive of the

decision will we say that the decision constitutes an abuse of discretion.” Id.

      We begin with the observation that the firearm evidence in the context of

this case was not only minimally relevant but had substantial probative force.

McGregor’s defense to the fraud charges was that he was just in the wrong place at

the wrong time and that the PII did not belong to him. The fact that his firearm

was recovered from a small closet with a sheet of PII -- a sheet that also contained

McGregor’s fingerprints -- was highly probative that the PII also belonged to

McGregor. Indeed, although McGregor did not put on a defense, his counsel

argued in closing that the sheets of PII contained other people’s fingerprints as

well, and that the evidence recovered from the bedroom suggested the bedroom

was not shared, but rather was occupied solely by Frenetus, thereby indicating that

the PII found in the bedroom belonged to Frenetus. The firearm and photographs

had significant probative value in establishing that McGregor knowingly possessed

the PII.




                                         12
               Case: 19-10163        Date Filed: 06/03/2020       Page: 13 of 13



       Moreover, the district court did not abuse its discretion by determining that

the probative value of the evidence was not substantially outweighed by the risk of

unfair prejudice. The government limited any unfair prejudicial effect by neither

telling the jury that McGregor’s possession of the firearm was unlawful, nor

indicating to the jury that McGregor had prior felony convictions that would make

possession unlawful. Moreover, we agree with the district court that the

possession of a firearm today is not so inherently prejudicial as to necessarily

outweigh its probative value.1

       The district court did not abuse its considerable discretion and the judgment

of the court is AFFIRMED.




1
  McGregor also says the evidence of the firearm and photos of McGregor holding it were
inadmissible character evidence. Under Rule 404(b) of the Federal Rules of Evidence,
“[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,”
but it is 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). However, McGregor did not object on the basis of 404(b) at trial. See United States v.
DiFalco, 837 F.3d 1207, 1220–21 (11th Cir. 2016) (noting that where a claim is not raised in the
district court, “we may review [it] only for plain error,” which “places a daunting obstacle before
the appellant”) (quotations omitted). But in any event, Rule 404(b) is not implicated in this case,
where the firearm directly tied McGregor to the PII and was therefore res gestae of the case. See
United States v. Nerey, 877 F.3d 956, 974 (11th Cir. 2017) (“Rule 404(b) does not apply where
the evidence of other crimes, wrongs, or acts constitutes res gestae.”).
                                                13
