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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13942
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:15-cr-00079-GAP-GJK-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

versus

DARRIOUS OMAR CLAY,

                                                        Defendant - Appellant.

                       ________________________

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

                              (June 27, 2017)

Before MARCUS, JULIE CARNES, and FAY, Circuit Judges.

PER CURIAM:
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       Darrious Omar Clay (“Defendant”) appeals his conviction for being a felon

in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e).

Defendant argues that the district court erred in admitting into evidence under Rule

404(b) recorded phone calls in which Defendant discusses possessing firearms on

other occasions. Concluding that the requirements for admission of evidence

under Rule 404(b) were met, we affirm.

I.     BACKGROUND

       Defendant was indicted for possessing a firearm as a convicted felon, in

violation of 18 U.S.C. §§ 922(g) and 924(e). This crime “entails three distinct

elements: (1) that the defendant was a convicted felon; (2) that the defendant was

in knowing possession of a firearm; and (3) that the firearm was in or affecting

interstate commerce.” United States v. Jernigan, 341 F.3d 1273, 1279 (11th Cir.

2003). Only the second element, the knowing possession of a firearm, is at issue in

this appeal. In order to show that Defendant was in knowing possession of a

firearm, the Government sought to admit under Rule 404(b)1 recordings of

Defendant’s phone conversations while he was in prison, in which Defendant

allegedly discussed, in code, his possession of firearms. The judge deferred ruling

on admitting the recordings until after the Government presented its case.
1
  Rule 404(b) prohibits the admission of evidence of a defendant’s extrinsic acts (here, the
recorded phone calls) to prove a defendant’s character and that a defendant acted in conformity
with that character when he engaged in the charged criminal conduct. Fed. R. Evid. 404(b).
However, such evidence may be admissible for other purposes, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Id.


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       At trial, the Government called Defendant’s arresting officer, Luke Austin,

to testify. Austin testified that on the night of January 6, 2015, using his lights and

sirens, he attempted to pull over a vehicle, but the vehicle did not stop. Austin

followed the vehicle as it pulled into the driveway of a house and drove to the back

of the residence. Austin parked on the street and walked up the driveway. When

he came to the back of the house, he saw Defendant, who was a passenger in the

car, exit the car with a gun in his hand. Austin testified that he saw Defendant

place the gun in a cooler near the side of the house. Austin called for backup, after

which Defendant and the driver were arrested. The Government presented photos

of the arrest scene, including photos of the gun in the cooler. However, no

fingerprints were recovered from the gun, nor were investigators able to recover

any identifiable DNA from the gun.

       After this testimony, the judge admitted the recordings over Defendant’s

objection. The judge noted: “My take on it is that you’ve got basically one

witness [the arresting officer] who saw what happened 2 and you have a defense

lawyer who did look into impeaching his testimony and so I think the need has

been established.” Significant excerpts from the transcripts of Defendant’s

remarks during jailhouse telephonic conversations include:


2
  The Government did not call a witness who had allegedly seen the Defendant with a gun on
the day in question because that witness’s status as a convicted felon and as a beneficiary of a
plea agreement raised credibility issues.


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      • “Just take that stick bro, that’s just my, that my, that’s all I can give back
        to you bro.”

      • “I told him he can have my chopper and whatever else man . . . .”

      • “[Y]ou know every now and then, you got to go in there and fuck with
        that long thing bro, so it don’t, you know, get all, all stiff and then, fuck,
        like rusted out and shit like you gotta go in there and just fuck with it a
        little bit. . . . I learned that from, you know, we got a little, we got a little
        gunsmith on our team, man, a little G.I. Joe.”

      • “But you do got my pole out there. You got my fishing pole nigga, I, I,
        nigga. That’s all I’m about to tell them niggas is have my fishing pole
        when I get out nigga. And that ain’t, that ain’t to do no evil with bae
        that’s to have in my house, in our house you know. . . . I still want my,
        my long thing.”

      • “Bro, I’m talking about, I’m DUI, with the white, and the loud, and a
        swivel, no license, bad tag, I got the wrong tag on . . . .”

      • “Tell Jit I say give you my fishing pole. If he don’t want to give it to
        you, show him the letter where I say, bro we I thought we were better
        than that, I’m tired of you lying to me, give bro my fishing pole. . . . Get
        my fishing pole.”

      • “Bro I want you to get that fishing pole bro so the raiders can have it
        bro. . . . But get that pole first. Get that fishing pole first bro.”

      Offered as an expert witness, ATF Special Agent John Scanlon testified that

“stick,” “chopper,” “long thing,” “fishing pole,” and “swivel” are each code words

for firearms, with “long thing” and “fishing pole” especially referring to rifles.

      In charging the jury, the district court expressly admonished the jury not to

consider the recorded remarks in deciding whether Defendant engaged in the

activity alleged in the indictment—possessing a firearm—but to consider these



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remarks only in determining whether Defendant had the state of mind or intent

necessary to commit the crime charged. After retiring for deliberations, the jury

submitted three questions to the court, two of which were related to the recordings.

The first question was, “If a gun was discussed on the phone, can it be assumed

that the weapon is involved in interstate commerce?” The court told the jury that

any guns discussed in the calls were not involved in the present case, and so their

movement in interstate commerce was irrelevant to the present charge. The second

question was, “Can we convict solely on the phone calls?” The court said that the

answer is “emphatically no, absolutely not,” as the phone calls were not direct

evidence of Defendant’s guilt. The judge admonished the jury to review his Rule

404(b) instructions.

      After further deliberations, the jury convicted Defendant, who was sentenced

to 15 years in prison. After the district court denied Defendant’s motion for a new

trial and entered final judgment against Defendant, Defendant appealed his

conviction to this Court, challenging the admission of the recordings.

II.   DISCUSSION

      This Court uses a three-part test to determine whether evidence is admissible

under Rule 404(b): (1) the evidence must be relevant to an issue other than the

defendant’s character; (2) there must be sufficient proof for a jury to find that the

defendant committed the extrinsic act; and (3) the probative value of the evidence



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cannot be substantially outweighed by undue prejudice, and so must satisfy Rule

403.3 U.S. v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). Defendant’s

challenge only addresses the first and third prongs of this test.

       A.     Standard of Review

       We review a challenge to the district court’s admission of evidence under

Rule 404(b) for abuse of discretion. Id. at 1343; Jernigan, 341 F.3d at 1280. The

district court’s decision must be affirmed unless the district court made a clear

error of judgment or applied the wrong legal standard. United States v. Frazier,

387 F.3d 1244, 1259 (11th Cir. 2004).

       B.     Relevance to an Issue other than Character

       When Defendant entered a not guilty plea, he placed his knowledge and

intent at issue. Jernigan, 341 F.3d at 1281 & n.7 (“Significantly, by pleading not

guilty, [the defendant] placed this [knowledge] element of the § 922(g) offense in

issue.”); United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998) (“A

defendant who enters a not guilty plea makes intent a material issue . . . .”). This

Court has noted that a defendant’s prior knowing possession of a gun logically

bears on his knowing possession of a gun in the charged offense. Jernigan, 341


3
  Rule 403 reads: “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. Rule 403 is an “extraordinary remedy,” and should be
used sparingly, “maximizing [evidence’s] probative value and minimizing its undue prejudicial
impact.” Edouard, 485 F.3d at 1344 n.8 (internal citations and quotation marks omitted).


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F.3d at 1281–82 (“Put simply, the fact that [the defendant] knowingly possessed a

firearm in a car on a previous occasion makes it more likely that he knowingly did

so this time as well, and not because of accident or mistake.”). Similarly, “[the

government] may prove [intent] by qualifying Rule 404(b) evidence . . . where the

state of mind required for the charged and extrinsic offenses is the same.”

Edouard, 485 F.3d at 1345 (internal citations and quotation marks omitted).

      Defendant argues that the tapes are irrelevant because the remarks alluding

to firearms do not constitute an admission by Defendant that he had ever possessed

a firearm. “Knowing possession” only requires the Government to show

“constructive possession through direct or circumstantial evidence. Constructive

possession exists when the defendant exercises ownership, dominion, or control

over the item or has the power and intent to exercise dominion or control.” United

States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006) (citation omitted). In the

recordings Defendant talks about giving away “my chopper” and “stick,” having

someone get “my fishing pole,” saying that he still wants “my long thing,” and

admitting to driving with a “swivel.” These statements clearly suggest possession

of a firearm in the past and a strong desire to possess a gun in the future. They are

therefore relevant in showing that any possession by Defendant of a gun on the

night of his arrest was no accident, but that instead it was done knowingly. Thus,

this evidence is relevant to something other than Defendant’s character and



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propensity, and instead bears on the “knowing” element of the crime. Thus, the

recordings satisfy the first prong of the Rule 404(b) test.

      C.     Whether the Probative Value of the Evidence was Substantially
             Outweighed by Undue Prejudice

      When examining the third prong of this Court’s Rule 404(b) test, the inquiry

is a “common sense assessment of all the circumstances,” and includes considering

prosecutorial need to show knowledge and intent, the overall similarity between

the charged offense and the extrinsic act, and temporal remoteness. Jernigan, 341

F.3d at 1282 (quoting United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir.

1997)); Edouard, 485 F.3d at 1345. Rule 404(b) is a “rule of inclusion,” and so

“404(b) evidence, like other relevant evidence, should not lightly be excluded

when it is central to the prosecution’s case.” Jernigan, 341 F.3d at 1280 (quoting

United States v. Perez–Tosta, 36 F.3d 1552, 1562 (11th Cir.1994)). However, “if

the government can do without such evidence, fairness dictates that it should; but if

the evidence is essential to obtain a conviction, it may come in.” United States v.

Pollock, 926 F.2d 1044, 1049 (11th Cir. 1991).

      Defendant argues that the recordings should not have come in because the

Government’s case was overwhelming against him even without the recordings.

Specifically, Defendant points to Officer Austin’s testimony, the crime scene




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photos, and the gun itself as making the recordings unnecessary. 4 We disagree that

the district court abused its discretion in admitting the recordings. Officer Austin

had happened onto Defendant and the driver of the car after a fast-moving chain of

events in which the officer had chased the fleeing car in which Defendant was

riding. The officer witnessed only momentary possession by Defendant of the gun,

as the officer saw Defendant exit the car and quickly place the gun in a nearby

cooler. Defendant’s own statements in the telephonic conversations demonstrated

Defendant’s own familiarity and ownership of a different gun—and his desire to

lay hold of that gun again. This evidence tended to establish that Defendant’s

possession of the gun on the night of his arrest was not just a happenstance, but

was done knowingly. Indeed, the Government had a “substantial burden . . . to

prove intent” because of Defendant’s not guilty plea. Zapata, 139 F.3d at 1358.

Without other evidence of Defendant’s state of mind, the recordings were helpful

in showing that Defendant’s possession of the gun seized by Officer Austin was

not inadvertent. Thus, the tapes were properly admissible under Rule 404(b). See

Pollock, 926 F.2d at 1049.

       Other relevant factors weigh in favor of admission as well. The state of

mind in the extrinsic act and the charged offense is not only similar, but is the


4
  He also mentions the witness who allegedly saw Defendant possessing a gun but whom,
because of credibility issues, the Government did not call to testify. But as the Government
never called this witness, his anticipated testimony was not part of the Government’s case.


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same: knowing possession of a firearm. In addition, Defendant’s recorded calls

and the charged offense are not too temporally remote, with Defendant’s arrest

occurring in January 2015, and the conversations taking place in January,

February, and December 2015. See Jernigan, 341 F.3d at 1282 (holding that a

temporal separation of two and three years between prior convictions and the

instant offense “is well within the temporal bounds of relevance.”). Finally, the

court gave limiting instructions to the jury, explaining the use it could make of this

evidence. The jury is presumed to follow the court’s instructions. See Weeks v.

Angelone, 528 U.S. 225, 234 (2000); Edouard, 485 F.3d at 1346. Thus, the

recordings satisfy the third prong of Rule 404(b)’s requirement as well.

III.   CONCLUSION

       The recordings at issue in this case were relevant to an issue other than

Defendant’s character, and their probative value was not substantially outweighed

by unfair prejudice. Accordingly, the district court did not abuse its discretion by

admitting the recordings under Rule 404(b).

AFFIRMED.




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