17‐3741‐cr
United States v. Williams


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     August Term 2018

               (Argued: November 29, 2018               Decided: July 9, 2019)

                                       No. 17‐3741‐cr

                            ––––––––––––––––––––––––––––––––––––

                                 UNITED STATES OF AMERICA,

                                          Appellee,

                                             ‐v.‐

                                      ANDY WILLIAMS,

                                     Defendant‐Appellant.

                            ––––––––––––––––––––––––––––––––––––

Before:          KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.

       Defendant‐Appellant Andy Williams appeals from a judgment entered in
the United States District Court for the Eastern District of New York (DeArcy Hall,
J.) convicting him of being a felon in possession of a firearm. On appeal, Williams
argues that (1) the gun found in his car should have been suppressed at trial,
because it was discovered during a second warrantless search of the car that was
conducted only after detectives overheard Williams make a phone call that
aroused their suspicions that they may have missed something of value in the car
during their initial inventory search; (2) his post‐arrest statements denying
ownership of the gun should have been admitted at the same time as his oral and

                                              1
written confessions; and (3) evidence as to his gang affiliation and willingness to
assist police in finding guns and drugs should have been excluded under Fed. R.
Evid. 403 and 404(b). We conclude that (1) both searches of Williams’s car were
valid inventory searches; (2) contrary to Williams’s argument, the district court
did not abuse its discretion in declining to admit his post‐arrest statements
denying ownership of the gun; and (3) Williams’s arguments as to the
inadmissibility of the evidence of his gang affiliation and willingness to assist the
police either (a) fail because the evidence was properly admitted pursuant to Rule
404(b) and was not unfairly prejudicial or (b) are waived.

      Accordingly, the judgment of the district court is AFFIRMED.

FOR APPELLEE:                          TANYA HAJJAR, Assistant United States
                                       Attorney (Jo Ann M. Navickas, Assistant
                                       United States Attorney, on the brief), for
                                       Richard P. Donoghue, United States
                                       Attorney for the Eastern District of New
                                       York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT:               DARRELL FIELDS, Federal Defenders of New
                                       York, Inc., Appeals Bureau, New York, New
                                       York.

DEBRA ANN LIVINGSTON, Circuit Judge:

      Defendant‐Appellant Andy Williams (“Williams”) appeals from a judgment

of the United States District Court for the Eastern District of New York (DeArcy

Hall, J.), entered November 14, 2017, following a jury trial, convicting him of being

a felon in possession of a firearm. On appeal, Williams argues that (1) the loaded

firearm found in the center console of the rental car that he was driving on the day

of his arrest should have been suppressed at trial because it was discovered during


                                         2
an improper second inventory search of the vehicle; (2) his exculpatory post‐arrest

statements denying knowledge or ownership of the firearm should have been

admitted when his oral and written statements confessing ownership were

introduced; and (3) evidence as to his gang affiliation and willingness to assist

police in finding guns and drugs should have been excluded under Fed. R. Evid.

403 and 404(b).

         We conclude that (1) police did not violate the Fourth Amendment by

returning to search Williams’s car again after detectives overheard Williams make

a phone call that aroused their suspicion that they may have missed something of

value in the car during their initial inventory search; (2) contrary to Williams’s

claim, neither the doctrine of completeness nor the Fifth Amendment mandated

the admission of his post‐arrest statements denying ownership or knowledge of

the gun; and (3) Williams’s arguments as to the inadmissibility of the evidence of

his gang affiliation and willingness to assist the police either (a) fail because the

evidence was properly admitted pursuant to Rule 404(b) and was not unfairly

prejudicial or (b) are waived. Accordingly, we affirm the judgment of the district

court.




                                         3
                                   BACKGROUND

                              I.   Factual Background1

      On the clear morning of August 27, 2015, three plainclothes detectives from

the New York City Police Department’s (“NYPD”) Brooklyn South Gang Squad

sat in an unmarked car on Utica Avenue in Brooklyn. Inside a nearby funeral

home, mourners were gathered for funeral services. The deceased had been in a

gang, so Detective Dominick Latorre (“Detective Latorre”) and his colleagues were

keeping an eye on the surrounding area in case rival gangs showed up looking to

cause trouble. At around 10 A.M., the detectives spotted a white Nissan sedan

traveling at a high rate of speed. The driver was recklessly weaving between traffic

lanes so as to cut others off, and was heading in the direction of the funeral home.

The detectives gave chase, caught up to the Nissan, and signaled to the driver,

Williams, to pull over. Williams pulled to the side of the road.

      Detective Latorre approached the driver’s side of the car and asked

Williams, who was alone in the sedan, for his license and registration. Williams

provided his license and a rental agreement for the Nissan. Detective Latorre



1 The factual background presented here is derived principally from the trial transcript
and otherwise reflects information in the district court record.



                                           4
immediately observed that the car had been rented to someone else, Jennisha

Hosam (“Hosam”), and that Williams was not listed in the agreement as an

authorized driver. Williams claimed the Nissan was his “girl’s car.” GA‐55.2 The

detectives then arrested Williams for unauthorized use of the rental car as well as

for speeding and driving recklessly. He was placed in the back of the detectives’

car and transported to the nearest precinct by Detective Latorre and one of his

colleagues, Detective Joseph Fichter (“Detective Fichter”). The third detective,

Detective Michael Christiano, followed in Williams’s car and parked it out front.

      At the precinct, Williams was put in a holding cell while the detectives

began to process the arrest. Detective Fichter commenced an “inventory search”

of Williams’s car while Detective Latorre observed. According to Detective

Latorre, an inventory search is mandatory in arrest processing: “[I]ts importance

is to make sure that things are returned to the proper owner and that the wrong

things or dangerous things are not returned to anyone.” GA‐38–39. The car’s

interior, glove box, and trunk were all searched, yielding several items, including:

(1) a roll of duct tape, in the glove box; (2) a pair of black gloves, from the driver’s



      2   “A” refers to the Appendix for Defendant‐Appellant Andy Williams; “SPA”
refers to the Special Appendix for Defendant‐Appellant Andy Williams; “GA” refers to
the Government Appendix.


                                           5
side door; and (3) a black mask made of hard plastic, which Detective Fichter

discovered in the trunk of the car, wedged inside the enclosed area containing the

spare tire. Detective Fichter also recovered postmarked envelopes from the Nissan

dated August 21, 2015, and addressed to Williams. After finding these items,

Detectives Latorre and Fichter went back inside the precinct to continue

processing Williams’s arrest.

      As Detective Latorre was fingerprinting Williams, Williams asked what was

going to happen to the rental car. Detective Latorre informed him that the car was

probably going to be towed back to the rental agency. Seemingly alarmed by this

prospect, Williams said “I’m entitled to a phone call. I want to make one.” SPA‐6.

Detective Latorre handed Williams a phone. Williams proceeded to call someone

(he said it was his girlfriend) and, standing about two or three feet away from

Detective Latorre, told this person that he or she needed to “come get this car right

now” because the police were “looking to tow it.” GA‐41–42; SPA‐6–7. Williams

spoke at a high pitch and fast pace that Detective Latorre took to indicate that

Williams’s “stress level was elevated . . . he sounded definitely more stressed.”

GA‐42.




                                         6
       Detective Latorre thought Williams’s agitation was curious. He and

Detective Fichter decided to go back and search the car again to make sure that

“there was [not] something more important in the vehicle that we didn’t see yet.”

GA‐42–43; SPA‐7. As Detective Fichter put it, “I felt I missed something.” GA‐97.

On the way to the car, in what turned out to be a fortunate encounter, they ran into

Detective Ashley Breton (“Detective Breton”), who volunteered to help as “an

extra pair of eyes.” GA‐42; SPA‐8. After just one to two minutes of searching the

interior of the car, including the front area, arm rests, and front and rear seats,

Detective Breton popped open the car’s center console, which Detective Fichter

had not previously examined. There, Detective Breton discovered a loaded gun.

According to Detective Breton, though the console in the Nissan is not designed

to open, it can be opened easily with no need for special tools or force by

unsnapping three plastic pieces “that connect to the left side paneling” and that

can be easily snapped back into place to close the console. A‐110; GA‐11. Indeed,

Detective Breton testified that he usually checks inside car consoles during

inventory searches, because he has located contraband there “more than once.” A‐

111.




                                         7
      After the firearm was discovered, Williams was rearrested and taken to a

private room to be interviewed. There, Detectives Latorre and Fichter read him his

Miranda rights, using a standard form. Williams agreed to waive his rights and

signed the form, affirming his willingness to answer questions. Williams thereafter

orally acknowledged that the firearm belonged to him and, at the detectives’

request, he wrote out a statement memorializing this confession. The signed

statement reads in full: “I had the gun. I had no intenten of hurting any1 Im sorry.”

A‐162; GA‐48–49. During the same interview, Williams told the detectives that he

is a member of the Crips gang, that he is also known as “Spillz,” and that he

associates with people in both the Crips and Folk Nation gangs. Williams further

indicated that he was “willing to work,” and could “get firearms and narcotics.”3

GA‐104–05, 118.

      Hosam, who rented the white Nissan sedan, testified at Williams’s trial. A

student at Borough of Manhattan Community College, Hosam gave Williams a lift

one day when she saw him in the Brooklyn neighborhood where her son goes to

day care. (She had known Williams for about a year at that time, she ran into him


      3  At trial, in addition to testimony regarding Williams’s post‐arrest statements
acknowledging his gang membership, the government introduced images from
Williams’s public Facebook page. These images depict Williams and others making hand
signs identified by Detective Fichter as associated with the Crips or Folk Nation gangs.


                                           8
periodically, and she was not his girlfriend.) Hosam was then driving a red Nissan

Ultima that she had rented for the weekend. Upon learning that Hosam was

driving a rental car, Williams asked if she would be willing to rent a car for him,

as he did not have a credit card. Hosam first extended the rental of the red Nissan,

giving Williams its use. Williams paid Hosam for the rental in cash, which

“worked in [her] favor too pretty much,” as she “could use the car as well without

paying for it.” GA‐74, 80. When the red Nissan Ultima was shortly thereafter

involved in a minor accident, Hosam exchanged it for a light‐colored vehicle,

which she also provided to Williams. The only occasion on which she drove this

second car, which she did not recall well, was “[t]he day that we exchanged it,”

and after providing the car to Williams, she saw him only twice between July and

late August 2015. GA‐76, 141. She left no personal items in the second car, and

specifically left neither gloves nor a mask in the vehicle. She also did not leave a

firearm in the car and had never owned one.

                             II.   Procedural History

      Williams was indicted by a grand jury in the Eastern District of New York

in October 2015, less than two months after his arrest, and was charged with being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Williams




                                         9
pled not guilty. He moved to suppress the firearm, arguing that police had

violated the Fourth Amendment when, after conducting the first inventory search,

they returned to the car following his phone call and located the concealed and

loaded weapon. The magistrate judge held an evidentiary hearing at which

Detectives Latorre and Breton testified. The magistrate judge then issued a Report

and Recommendation recommending that Williams’s suppression motion be

denied. The district court adopted the Report and Recommendation and denied

the motion.

      The first of what would ultimately be three jury trials commenced on

October 24, 2016, and ended in a mistrial two days later because the jury could not

reach a unanimous verdict. The second trial commenced on December 12, and

again ended in a mistrial. The third trial commenced on May 23, 2017, and a week

later the jury convicted Williams of being a felon in possession of a firearm. After

Williams’s conviction, Judge DeArcy Hall sentenced him to 56 months’

imprisonment to be followed by three years’ supervised release. Williams timely

appealed.




                                        10
                                   DISCUSSION

      Williams makes three arguments on appeal. First, he argues that the second

search of his car was not a valid inventory search pursuant to the Fourth

Amendment and that the loaded gun, accordingly, should have been suppressed.

Second, he argues that the district court erred by precluding him from introducing

his post‐arrest statements in which, before admitting to ownership of the weapon,

he denied any knowledge of it. Finally, Williams argues that the district court

erred by allowing the government to introduce his post‐arrest statements

regarding his gang affiliation, as well as the images from his Facebook page,

because this evidence was inadmissible propensity evidence and unfairly

prejudicial. We address each argument in turn.

                              I.   The Car Searches

      Williams first argues that the district court erred in denying his motion to

suppress the gun seized during the second search of his car on the theory that this

second search violated the Fourth Amendment. In Williams’s view, only the

detectives’ initial search of the car was a valid inventory search. He contends that

the second search—conducted after Detective Latorre overheard Williams make a

phone call during which Williams nervously insisted to the other person on the




                                        11
line that he or she needed to “come get this car right now”—was a “purposeful

investigatory search” and not an inventory search permissible among “the

category of ‘caretaking activities’ that police departments [must] perform.”

Appellant Br. 34. When reviewing a district court’s decision on a suppression

motion, we review the district court’s factual findings for clear error and its legal

conclusions de novo. United States v. Stewart, 551 F.3d 187, 190 (2d Cir. 2009). For

the following reasons, we conclude that Williams’s Fourth Amendment claim is

unavailing.

                                   *      *      *

      The Supreme Court has long recognized that when police “take a vehicle

into custody, they may search the vehicle and make an inventory of its contents

without need for a search warrant and without regard to whether there is probable

cause to suspect that the vehicle contains contraband or evidence of criminal

conduct.” United States v. Lopez, 547 F.3d 364, 369 (2d Cir. 2008) (citing Illinois v.

Lafayette, 462 U.S. 640, 643 (1983)). These “inventory searches” are excepted from

the probable cause and warrant requirements “because they are conducted by the

government as part of a community caretaking function” that police must perform

separate and apart from their responsibility to detect crime. Colorado v. Bertine, 479




                                         12
U.S. 367, 381 (1987) (internal quotation marks omitted); Lopez, 547 F.3d at 369. We

have described the objectives of inventory searches as “(1) to protect the owner’s

property while it is in police custody; (2) to protect the police against spurious

claims of lost or stolen property; and (3) to protect the police from potential

danger.” Lopez, 547 F.3d at 369. “The service of these objectives is wholly

independent of whether the contents of the car figure in any way in a criminal

investigation or prosecution.” Id. at 369–70.

      Because of the “danger to privacy interests” posed by allowing police

officers to conduct warrantless searches, see id. at 370, the Supreme Court has

required that inventory searches be performed using “standardized criteria or

established routine,” Florida v. Wells, 495 U.S. 1, 4 (1990); see South Dakota v.

Opperman, 428 U.S. 364, 372 (1976) (“[I]nventories pursuant to standard police

procedures are reasonable.”); see also 3 LaFave, Search and Seizure: A Treatise on

the Fourth Amendment 644 (4th ed. 2004) (“What is needed in the inventory

context, then, as is true of many other types of inspections or regulatory searches,

is not probable cause but rather a regularized set of procedures, which adequately

guards against arbitrariness.”). A police department’s standardized procedures

may be established at trial by written rules and regulations or by testimony




                                         13
regarding the department’s standard practices. See United States v. Thompson, 29

F.3d 62, 65–66 (2d Cir. 1994).

      We first conclude, as the district court did, that both searches of Williams’s

car were conducted in accordance with the NYPD’s standardized procedures for

inventory searches as described in the Department’s Patrol Guide and in Detective

Breton’s testimony at the suppression hearing. The Patrol Guide provides that

“[w]henever [an automobile] comes into the custody of [the NYPD],” officers

should “[s]earch the interior of the vehicle thoroughly,” including “any area that

may contain valuables.” A‐39 (emphasis added). The Patrol Guide also authorizes

officers to “[f]orce open [the] trunk, glove compartment, etc.,” so long as it can “be

done with minimal damage.” A‐39. Detective Breton testified at the suppression

hearing, based on his “hundreds” of inventory searches, that searching behind the

paneling of a car’s center console is a “common” practice. GA‐8; A‐110–11.

      There is no dispute that the first search followed NYPD procedures. As to

the second, although his briefing to this Court did not challenge the manner in

which this search was performed, at oral argument Williams made much of the

fact that during the second search, Detective Breton had to “force open” the

console of Williams’s car by removing the console’s paneling in order to reveal the




                                         14
gun. See Recording of Oral Argument, United States v. Williams, No. 17‐3741 (2d

Cir. Nov. 29, 2018), at 5:00–7:20, 22:20–23:00. However, the Patrol Guide

specifically says that officers can force open the “trunk, glove compartment, etc.,”

if only minimal damage will be done, and Detective Breton testified that it was

common for police to search center consoles during inventory searches. A‐39

(emphasis added); see A‐110–11. Detective Breton also testified that he did not

have to use any sort of “special tool” to remove the paneling; nor did it take much

force; nor was any damage done to the car, as the paneling could be “snap[ped]

right back into place.” GA‐11–12; A‐110. The district court did not err in

determining that removing the paneling to check inside the car’s center console

was consistent with the NYPD’s standard procedures.

      Williams principally argues as to the second inventory search that it was

impermissible for the detectives to conduct the second search at all, pointing out,

at the start, that the Patrol Guide is silent as to the validity of multiple inventory

searches. However, we have stated that “we do not think . . . every detail of search

procedure must be governed by a standardized policy.” Lopez, 547 F.3d at 371

(emphasis added). For example, there need not be a standardized policy as to “the

order in which different parts of [a] car are searched, or whether officers




                                         15
performing the search need to report the results on a standardized form.” Id. A

police department’s procedures must simply be adequate to “safeguard the

interests protected by the Fourth Amendment,” see id., so that officers are not

allowed “so much latitude” as to whether, when, and how to search that inventory

searches, in practice, become a “‘a purposeful and general means of discovering

evidence of crime.’” Wells, 495 U.S. at 4 (quoting Bertine, 479 U.S. at 376). Here, the

second inventory search did not run afoul of this principle, even if not specifically

provided for in the Patrol Guide.

      As for Williams’s broader Fourth Amendment argument, the Supreme

Court has repeatedly said that “the ultimate touchstone of the Fourth Amendment

is ‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006); see Riley v.

California, 573 U.S. 373, 381 (2014) (same); see also Maryland v. King, 569 U.S. 435,

447 (2013) (noting that the “’ultimate measure of the constitutionality of a

governmental search is “reasonableness”’”) (quoting Vernonia School Dist. 47J v.

Acton, 515 U.S. 646, 652 (1995)). In the circumstances here, it was eminently

reasonable for the detectives to conclude, as they did, that Williams’s own

behavior suggested a need to go back and check their work in connection with the

inventory search that they had just performed. Williams’s phone call caused the




                                          16
detectives to surmise, as Detective Latorre stated during the suppression hearing,

that “there was something of value inside the car that [they weren’t] yet aware of,”

so that “a second search of the vehicle was probably necessary” in order to

complete the inventory. A‐59. The fact that some piece of property may have been

missed during the initial search did not make it less important to secure that

property, to protect the police from claims of theft, or to ensure that the property

be safeguarded if dangerous. Indeed, the need to ascertain that the inventory was

complete and that all items in the car had been located was particularly acute in

this case, given that police were likely to return the car to the rental agency, and

“elemental reasons of safety” required that any dangerous instrument in the

vehicle, such as the loaded weapon that they recovered, be located so as not to

“fall into untrained or perhaps malicious hands.” See Cady v. Dombrowski, 413 U.S.

433, 443 (1973) (noting police have a community caretaking imperative to ensure

that impounded automobiles do not contain revolvers or other dangerous items).

      Williams contends that the search of the Nissan by Detective Breton was not

a valid inventory search, even if consistent with standard police practices, because

the officers’ purpose in looking over the car for a second time was supposedly not

to conduct an inventory, but “to validate [their] suspicion and uncover evidence




                                        17
of a crime.” Appellant Br. 34–35. We do not believe that the suppression hearing

record supports this conclusion. But even if the record did clearly reflect that the

officers were motivated, at least in part, by the expectation that evidence would be

discovered in the car, Williams’s Fourth Amendment argument would still be

without merit.

      In general, “[a]n action is ‘reasonable’ under the Fourth Amendment,

regardless of the individual officer’s state of mind, ‘as long as the circumstances,

viewed objectively, justify [the] action.’” Brigham City, 547 U.S. at 404 (quoting Scott

v. United States, 436 U.S. 128, 138 (2006)); accord Laidley v. City and Cty. of Denver,

477 F. App’x 522, 524 (10th Cir. 2012) (Gorsuch, J.) (“[Plaintiff’s] failure to argue

that the towing of his car was not objectively justified under the community

caretaking doctrine (whatever any officer’s actual motivations happened to be)

unavoidably spells the end to his Fourth Amendment claim.”). As we recognized

in United States v. Lopez, “[w]hen officers, following standardized inventory

procedures, seize, impound, and search a car in circumstances that suggest a

probability of discovering criminal evidence, the officers will inevitably be

motivated in part by criminal investigative objectives. Such motivation, however,

cannot reasonably disqualify an inventory search that is performed under




                                          18
standardized procedures for legitimate custodial purposes.” 547 F.3d at 372.

      We recognize that the Supreme Court, in Colorado v. Bertine, affirmed that

inventory searches are reasonable for Fourth Amendment purposes when

“administered in good faith,” “according to standard criteria and on the basis of

something other than suspicion of evidence of criminal activity.” 479 U.S. 367, 374–75

(1987) (emphasis added). Moreover, the Court in dicta has suggested that the

inventory search doctrine may be a rare example in which an officer’s improper

motive can invalidate “objectively justifiable behavior under the Fourth

Amendment.” Kentucky v. King, 563 U.S. 452, 464 (2011) (quoting Whren v. United

States, 517 U.S. 806, 812 (1996)). But the Supreme Court has also cautioned that the

relevant “purpose” at issue in assessing programmatic searches and seizures

conducted without individualized suspicion, such as the inventory search at issue

here, is not the officer’s subjective purpose in searching, but the purpose of the

administrative program itself. Brigham City, 547 U.S. at 405; see also City of Indianapolis

v. Edmond, 531 U.S. 32, 48 (2000) (“[W]e caution that the purpose inquiry in this

context is to be conducted only at the programmatic level . . . .”). Chief Justice

Roberts, writing for a unanimous Court in Brigham City and citing Wells, the

Court’s most recent inventory search case, observed that the Fourth Amendment




                                            19
inquiry in the context of programmatic searches and seizures has “nothing to do

with discerning what is in the mind of the individual officer conducting the

search,” but is instead directed at “ensuring that the purpose behind the program

is not ‘ultimately indistinguishable from the general interest in crime control.’”

Brigham City, 547 U.S. at 405 (quoting Edmond, 531 U.S. at 44); see also Wells, 495

U.S. at 4 (noting that “[t]he policy or practice governing inventory searches should

be designed to produce an inventory”).

      We need not parse these lines of Supreme Court authority further and assess

whether an officer’s motive might prove relevant to the validity of an inventory

search in circumstances not presented here. Suffice it to say that as for the Fourth

Amendment inquiry in this case, the present matter is on all fours with this Court’s

decision in Lopez, where we concluded that “if a search of an impounded car for

inventory purposes is conducted under standardized procedures,” as this one

was, “that search falls under the inventory exception to the warrant requirement

of the Fourth Amendment, notwithstanding a police expectation that the search

will reveal criminal evidence.” Lopez, 547 F.3d at 372; accord United States v.

McKinnon, 681 F.3d 203, 209–10 (5th Cir. 2012).4 “If good faith is a prerequisite of


      4   District courts in our Circuit have correctly interpreted Lopez to mean that an
officer’s subjective motivations in performing an inventory search generally will not

                                           20
an inventory search,” we said there, “the expectation and motivation to find

criminal evidence” do not, without more, “constitute bad faith.” Id.

      Here, as to programmatic purpose, nothing in the record suggests that the

NYPD inventory‐search program at issue was but “a ruse for a general rummaging

in order to discover incriminating evidence.” Wells, 495 U.S. at 4. The Patrol Guide

states that the program’s purpose is to “protect property, ensure against

unwarranted claims of theft, and protect uniformed members of the service and

others against dangerous instrumentalities.” A‐39. The NYPD detectives here

testified that inventory searches are conducted to serve this purpose. See GA‐6

(Detective Breton testifying that inventory searches allow police to “take in any

property that would need to get vouchered”); GA‐40 (Detective Latorre testifying

that the importance of inventory searches is “to make sure that things are returned

to the proper owner and that the wrong things or dangerous things are not

returned to anyone”); GA‐92 (Detective Fichter testifying that inventory searches



invalidate an otherwise‐reasonable search. See, e.g., United States v. Wallace, 2016 WL
4367961, at *10 (S.D.N.Y. Aug. 11, 2016) (“The subjective investigatory motivation of an
officer does not normally defeat the legality of an otherwise proper inventory search.”);
Bryant v. Village of Greenwood Lake, 2013 WL 5952610, at *4 (S.D.N.Y. Nov. 6, 2013), aff’d
sub nom, Bryant v. Dasilva, 582 F. App’x 56 (2d Cir. 2014) (“An otherwise‐reasonable
inventory search will not be rendered unreasonable merely because an officer is
motivated in part by investigatory purposes or by the expectation that the search will
yield evidence.”).


                                           21
are conducted “to make sure that all property is removed from inside the car”).

      As to the detectives’ subjective motivations for search, we agree with the

Lopez panel that “the Supreme Court has not required an absence of expectation of

finding criminal evidence as a prerequisite to a lawful inventory search.” 547 F.3d

at 372. Williams’s conduct in the wake of the first inventory search alerted the

detectives that their initial search may have been faulty, and that items requiring

inventory might still remain in the car. In these circumstances, even assuming

arguendo that the detectives also expected that they might find evidence of a crime

during their second search, this fact alone did not obviate the need for that second

inventory search. Nor did it render the second search unreasonable under the

Fourth Amendment. The second search, like the first, was a reasonable inventory

procedure, and Williams’s suppression motion was properly denied.

                          II. The Evidentiary Rulings

      Williams next argues that his conviction must be reversed because the

district court erred: (1) in declining to require the government to introduce his

exculpatory post‐arrest statements at the time it introduced his inculpatory

statements; and (2) in admitting post‐arrest statements and other evidence of his

affiliation with the Crips. We review the district court’s evidentiary rulings “under




                                         22
a deferential abuse of discretion standard, and we will disturb an evidentiary

ruling only where the decision to admit or exclude evidence was ‘manifestly

erroneous.’” United States v. McGinn, 787 F.3d 116, 127 (2d Cir. 2015) (quoting

United States v. Samet, 466 F.3d 251, 254 (2d Cir. 2006)). This standard has not been

met in the circumstances here.

             A. The Exculpatory Post‐Arrest Statements

      When Williams was interviewed after his concealed weapon was

discovered in the center console of the Nissan, he denied ownership of the car,

telling the detectives, in substance, that “the car wasn’t his,” but “was his

girlfriend’s” or “belonged to the girl.” A‐255, 259. When the detectives informed

him that they had found a gun in the car, he at first denied knowing anything

about the weapon, and claimed that he was merely trying to return the car. The

detectives then asked who the gun belonged to, and if Williams was “trying to tell

us something like it belongs to your girlfriend?” A‐255. Williams at that point

admitted that the gun belonged to him and he wrote and signed a statement saying

“I had the gun.” See GA‐47–48. Before trial, the government moved to bar Williams

from introducing that portion of his post‐arrest statement in which he asserted, in

effect, that he didn’t know anything about the weapon and was merely trying to




                                         23
return the car. The district court granted the motion. On appeal, Williams argues

that this was reversible error because the district court’s ruling violated both the

doctrine of completeness and the Fifth Amendment. For the following reasons, we

conclude that the district court did not abuse its discretion and that Williams’s

argument to the contrary is without merit.

                                   *     *      *

      At common law, the doctrine of completeness arose to permit a party

against whom a part of a writing or utterance has been introduced to “in his turn

complement it by putting in the remainder, in order to secure for the tribunal a

complete understanding of the total tenor and effect” of the whole. 7 Wigmore on

Evidence § 2113, at 653 (Chadbourn rev. ed. 1978). Fed. R. Evid. 106, which

partially codifies this common law completeness doctrine, provides as follows:

      If a party introduces all or part of a writing or recorded statement, an
      adverse party may require the introduction, at that time, of any other
      part—or any other writing or recorded statement—that in fairness
      ought to be considered at the same time.

Fed. R. Evid. 106. The purpose of the rule is to correct, contemporaneously, the

“misleading impression created by taking matters out of context,” Fed. R. Evid.

106 advisory committee note (1972 Proposed Rules), and the rule “requir[es]

generally that adversaries be allowed to prevent omissions that render matters in



                                        24
evidence misleading,” Baker v. Goldman Sachs & Co., 669 F.3d 105, 111 (2d Cir. 2012);

see United States v. Castro, 813 F.2d 571, 575–76 (2d Cir. 1987) (noting that adverse

party can demand that an omitted portion “be placed in evidence if necessary to

explain the admitted portion, to place the admitted portion in context, to avoid

misleading the jury, or to ensure fair and impartial understanding of the admitted

portion”); accord United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982). The

completeness doctrine, however, has never “’require[d] the admission of portions

of a statement that are neither explanatory of nor relevant to the admitted

passages.’” United States v. Gupta, 747 F.3d 111, 139 (2d Cir. 2014) (quoting United

States v. Johnson, 507 F.3d 793, 796 (2d Cir. 2007) (internal quotation marks

omitted)); see 7 Wigmore on Evidence § 2113, at 656 (noting that because “sole

purpose” in eliciting remainder “is to obtain a correct understanding of the effect

of the part first put in,” irrelevant material not explanatory of the rest is not

required to be admitted). And ultimately, it is for the district court, in its discretion,

to determine if the rule applies. See id.

      Rule 106 does not cover oral statements—as the advisory committee note

states, “[f]or practical reasons, [Rule 106] is limited to writings and recorded

statements and does not apply to conversations.” Fed. R. Evid. 106 advisory




                                            25
committee note (1972 Proposed Rules). However, the common law rule of

completeness is substantially broader than Rule 106, covering “not only writings

taken out of context, but also . . . the truncated use of acts, declarations, and

conversations.” 21A Kenneth W. Graham, Jr., Federal Practice and Procedure § 5072

(2d ed. 2015) (emphasis added). And as the Supreme Court made clear in Beech

Aircraft Corp. v. Rainey, the common law doctrine persists in the wake of Rule 106’s

adoption. See 488 U.S. 153, 171–72 (1988); 21A Graham, supra, § 5073 n.1 (stating

that Beech Aircraft “held that adoption of Rule 106 did not repeal the common law

completeness doctrine; hence, that doctrine can be invoked for completeness

where Rule 106 does not apply”).

      This Court has expressly recognized as to oral statements that Fed. R. Evid.

611(a) both “empowers and obligates” district courts to require “a party offering

testimony as to an utterance to present fairly the ‘substance or effect’ and context

of that statement,” just as the common law doctrine requires. See Castro, 813 F.2d

at 576. 5 As a result, in this Circuit, the completeness principle applies to oral

statements through Rule 611(a), so that “whether we operate under Rule 106’s



      5Rule 611(a) allows district courts to “exercise reasonable control over the mode
and order of examining witnesses and presenting evidence so as to . . . make those
procedures effective for determining the truth.” Fed. R. Evid. 611(a) (emphasis added).


                                          26
embodiment of the rule of completeness, or under the more general provision of

Rule 611(a), we remain guided by the overarching principle that it is the trial

court’s responsibility to exercise common sense and a sense of fairness” so as to

require completion, whether contemporaneous or on cross‐examination, in

instances in which testimony regarding oral statements is elicited in fragments that

misrepresent “’the tenor of the utterance as a whole.’” Id. (quoting 7 Wigmore on

Evidence § 2099, at 618); see also id. (quoting 1 J. Weinstein & M. Berger, Weinsteinʹs

Evidence ¶ 106[01], at 106–4 (1986 ed.) for the proposition that “compared to Rule

106, Rule 611(a) ‘provides equivalent control over testimonial proof’” (emphasis

added)).6




       6 The great majority of our sister circuits to have addressed the issue have agreed.
See United States v. Verdugo, 617 F.3d 565, 579 (1st Cir. 2010) (noting that “the district court
retained substantial discretion under Fed. R. Evid. 611(a) to apply the rule of
completeness to oral statements”); United States v. Lopez‐Medina, 596 F.3d 716, 734 (10th
Cir. 2010) (“We have held the rule of completeness embodied in Rule 106 is substantially
applicable to oral testimony[] as well by virtue of Fed. R. Evid. 611(a) . . . .” (internal
quotation marks omitted)); United States v. Holden, 557 F.3d 698, 705 (6th Cir. 2009) (“The
common law version of the rule was codified for written statements in Fed. R. Evid. 106,
and has since been extended to oral statements through interpretation of Fed. R. Evid.
611(a).”); United States v. Range, 94 F.3d 614, 620–21 (11th Cir. 1996) (“Fed. R. Evid. 611(a)
has been read to impose the same [Rule 106] fairness standard upon conversations.”
(citation omitted)); United States v. Haddad, 10 F.3d 1252, 1258 (7th Cir. 1993) (“[T]he
Seventh Circuit has applied a Rule 106 analysis with respect to oral statements and
testimonial proof.”).


                                              27
      Williams argues that the district court erred in preventing him from eliciting

testimony at trial from Detectives Latorre and Fichter that he first denied

knowledge or ownership of the firearm found in the center console of the Nissan

before admitting, as both Detectives Latorre and Fichter testified, that the gun was

his. In both its brief and in oral argument, the government has suggested, to the

contrary, that Williams’s statements were hearsay when proffered by him, and so

inadmissible “unless they fell under some exception to the hearsay rules.” Gov.

Br. 30. The government also argues that the district court did not abuse its

discretion in concluding that Williams’s initial claim to know nothing about the

gun neither explains his later admissions nor dispels a misleading impression as

to them, so that completion was not required. We reject the government’s first

argument, but are persuaded by its second.

      With respect to the government’s suggestion that evidence proffered under

the rule of completeness may be excluded whenever not independently admissible

due to the hearsay rule, this is simply not correct. True, a party cannot circumvent

the hearsay rule simply by invoking the doctrine of completeness so as to render

otherwise inadmissible evidence admissible for its truth. As Wigmore recognized,

completing evidence “merely aids in the construction of the utterance as a whole,




                                        28
and is not itself testimony.” 7 Wigmore on Evidence § 2113, at 659. But when the

omitted portion of a statement is properly introduced to correct a misleading

impression by putting into context that portion already admitted, it is for this very

reason admissible for a valid, nonhearsay purpose: to explain and place in context

the evidence that has already been introduced. As we have said before, “even

though a statement may be hearsay,” it nevertheless “must be placed in evidence

if necessary to explain the admitted portion [of this statement], to place the

admitted portion in context, to avoid misleading the jury, or to ensure the fair and

impartial understanding of the admitted portion.” Johnson, 507 F.3d at 796; see also

United States v. Coplan, 703 F.3d 46, 85 (2d Cir. 2012) (noting that evidence proffered

pursuant to Rule 106 is not properly excluded because it is hearsay but must be

assessed under “the Rule 106 standard”). Indeed, the doctrine “can adequately

fulfill its function only by permitting the admission of some otherwise

inadmissible evidence when the court finds in fairness that the proffered evidence

should be considered contemporaneously.” United States v. Sutton, 801 F.2d 1346,

1368 (D.C. Cir. 1986).

      The government’s first argument is thus unavailing. We are persuaded,

however, by its second: that although it was within the district court’s discretion




                                          29
to permit Williams to elicit his initial false exculpatory statements, Williams has

failed to show that the district court abused its discretion in deciding to exclude

them. To require completion under the doctrine of completeness, Williams had to

demonstrate that admission of his initial statements denying ownership of the gun

was “necessary to explain” his later statements that the gun was his, “to place

[these statements] in context, to avoid misleading the jury, or to ensure fair and

impartial understanding” of these later statements. Castro, 813 F.2d at 576.

Williams did not make such a showing. It is not uncommon for a suspect, upon

interrogation by police, to first claim in a self‐serving manner that he did not

commit a crime, only thereafter to confess that he did. But the rule of completeness

does not require the admission of self‐serving exculpatory statements in all

circumstances, see United States v. Jackson, 180 F.3d 55, 73 (2d Cir. 1999), and the

mere fact that a suspect denies guilt before admitting it, does not—without more—

mandate the admission of his self‐serving denial. As the district court here aptly

pointed out, Williams’s confession was “simply a reversal of his original position.”

A‐244–45.

      Williams argues that the juries at his first two trials heard the exculpatory

portions of his post‐arrest statements and that the deadlock of these juries




                                        30
demonstrates the importance of this evidence and the error in excluding it at his

third trial. We disagree. The standard of review here is abuse of discretion. See

Jackson, 180 F.3d at 73 (noting that district court’s application of rule of

completeness doctrine “is reviewed only for abuse of discretion”); accord Castro,

813 F.2d at 576 (observing that reviewing courts “must limit [themselves] to

inquiring whether the district judge’s actions amounted to an abuse of discretion”

in assessing rule of completeness determinations). And regardless whether

Williams’s exculpatory statements were admitted in earlier proceedings, we can

discern no abuse of discretion in the district court’s conclusion that Williams’s

statements that he didn’t know anything about the gun, but was just bringing the

car back to his “girl,” did not “explain” his subsequent confession, and were thus

not necessary to correct a misleading impression arising from the admission of his

inculpatory statements alone. We note, too, that Williams’s third trial was the first

occasion on which the government called Hosam, who explained how Williams

came to be driving the car she had rented and who disclaimed any knowledge of

the loaded weapon in that car. It is thus highly speculative, at best, to contend that

the conviction here resulted from exclusion of exculpatory portions of Williams’s

post‐arrest statements, when a more pertinent difference between the third trial




                                         31
and its predecessors was the introduction of direct testimony to the effect that the

weapon in the car was in no way associated with the person who had rented the

vehicle.7

      The analysis here is also sufficient to explain why Williams’s Fifth

Amendment claim is meritless. Williams cites a footnote from this Court’s decision

in Marin, which states that “when the government offers in evidence a defendant’s

confession and in confessing the defendant has also made exculpatory statements

that the government seeks to omit, the defendant’s Fifth Amendment rights may

be implicated.” Marin, 669 F.2d at 85 n.6. But even assuming arguendo that the Fifth

Amendment is implicated in such circumstances, Marin itself makes clear that this

is only when the statement offered by the government is misleading by virtue of

the portion it omits. See id. (“In such circumstances . . . the Fifth Amendment right

to remain silent is violated when the omission paints a distorted picture . . . which

the defendant is powerless to remedy without taking the stand.” (internal




      7 Indeed, even if we were to conclude that the district court had erred in excluding
Williams’s self‐serving denials, we would also conclude in light, inter alia, of Hosam’s
testimony, that reversal is not required because any such error did not affect Williams’s
substantial rights. Fed. R. Crim. P. 52(a); cf. Sutton, 801 F.2d at 1370–71 (noting that
although defendant should have been permitted to introduce excluded portions of his
recorded conversations, such error did not require reversal where “substantial rights”
were unaffected and error “did not substantially influence” the verdict).


                                           32
quotation marks and brackets omitted)). As already noted, the district court did

not err in concluding that Williams’s confession was not misleading and that the

omitted exculpatory portions of his post‐arrest statements did not explain that

confession, which was “simply a reversal of his original position.” A‐244. Thus,

Williams’s Fifth Amendment claim is also without merit.

             B. The “Gang” Evidence

                   1. Williams’s Post‐Arrest Statements

      Williams next argues that the district court erred in admitting his statements

to police, made after he confessed to possessing the gun, that he was a member of

the Crips gang and was “willing to work” with police to “get firearms and

narcotics.” GA‐105. Before trial, the government moved in limine to admit (1)

evidence that Williams had previously used the center console of a Nissan to hide

fraudulent credit cards; and (2) these post‐arrest statements.8 The district court

granted the motion in part, permitting the post‐arrest statements to be admitted

but not the evidence about Williams’s prior use of the center console. On appeal,

Williams argues that the statements constituted impermissible propensity




      8  Williams thus had ample pretrial notice that the government intended to offer
this evidence at trial. See Fed. R. Evid. 404(b).


                                         33
evidence pursuant to Fed. R. Evid. 404(b) and were unfairly prejudicial under Fed.

R. Evid. 403. Appellant Br. 42. For the following reasons, we again disagree.

      Rule 404(b) states 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).

In other words, “Rule 404(b) bars the admission of defendant’s uncharged crimes

to prove propensity to commit the crime charged.” United States v. Concepcion, 983

F.2d 369, 392 (2d Cir. 1992). At the same time, pursuant to this Circuit’s

“inclusionary approach” to such evidence, other‐crimes evidence is admissible if

offered “for any purpose other than to show a defendant’s criminal propensity.”

United States v. Mejia, 545 F.3d 179, 206 (2d Cir. 2008) (emphasis added). And our

review of the district court’s admission of such evidence is limited: “We

review . . . for abuse of discretion, and the district court’s ruling stands unless it

was arbitrary and irrational.” Id.

      Here, Williams’s admission of gang membership and offer to assist police in

finding drugs and weapons was admitted not to show that he had a propensity to

act in a particular way, but to meet the defense argument that Williams’s “so‐

called” confession was not a confession at all, Trial Tr. 225, because “we don’t




                                         34
know from the face” of the written confession “what that means when he says, I

had the gun.” Trial Tr. 228–29. More specifically, the defense argued at trial that

Williams did not confess, and that his handwritten statement, “I had the gun,” was

not an admission to knowing possession of the weapon, but simply an

acknowledgment by Williams that he was driving the car in which the gun was

found:

            Let’s focus on this business about “I had the gun,” okay? What
      does that mean? Does that mean I knew the gun was in the console
      that day? No.
            I was driving the car. They say they found the gun in the car. I
      guess I had the car. . . .

Trial Tr. 226 (defense summation). Williams’s statements to police shortly after

executing his handwritten confession rebutted this argument by suggesting,

instead, that Williams first admitted to knowing possession of the loaded firearm

and then, contemporaneously with this admission, sought to curry favor with

police by telling them that he was in a position to cooperate in other cases. Cf.

United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994) (noting that other‐crimes

evidence may be admitted “to provide the jury with the complete story of the

crimes charged by demonstrating the context of certain events relevant to the

charged offense”).

      District courts have significant discretion in determining whether other‐

                                        35
crimes evidence is admissible for a proper purpose. See United States v. Mercado,

573 F.3d 138, 141–42 (2d Cir. 2009). Here, Williams’s post‐arrest offer to assist

police tended to clarify that his written statement “I had the gun” was not an

admission to haplessly driving a car with a gun in it when he spoke to police, as

his counsel contended in summation, but was instead an acknowledgement that

Williams knowingly possessed the weapon in the Nissan, as he admitted to police

orally before offering to assist them in making other cases.9 Cf. United States v.

Quinones, 511 F.3d 289, 309 (2d Cir. 2007) (admitting evidence of uncharged

criminal conduct in order to clarify another statement that otherwise “ma[d]e no

sense”). Williams’s statement that he was in a gang and in a position to assist police

in locating drugs and guns was also independently probative as to Williams’s

intent to possess the loaded weapon found in the Nissan that day, and as to his

opportunity to obtain a weapon. Intent and opportunity are proper purposes

under Rule 404(b), and courts routinely admit evidence of gang membership in

circumstances like these where the evidence is relevant for a proper purpose. See,

e.g., United States v. Gordon, 496 F. App’x 579, 582–83 (6th Cir. 2012) (admitting



       9 Notably, Williams’s oral admissions, as described by Detectives Latorre and
Fichter at trial, had none of the ambiguity of his written confession. See, e.g., GA‐47 (“It
was mine, I wasn’t going to hurt anybody with it, I’m sorry.”).


                                            36
evidence of gang membership as relevant to motive and opportunity to possess a

gun); United States v. Santiago, 46 F.3d 885, 889–90 (9th Cir. 1995) (admitting

evidence of gang membership as “relevant to the issue of motive”); United States

v. Mills, 704 F.2d 1553, 1559–60 (11th Cir. 1983) (same); see also United States v.

Jobson, 102 F.3d 214, 221 (6th Cir. 1996) (“We hold . . . that defendant’s gang

membership would be admissible to establish his opportunity to commit the crime

[of gun possession].”).

      Williams’s claim that the challenged statements were unfairly prejudicial

under Rule 403 is also unavailing. Rule 403 provides that evidence may be

excluded “if its probative value is substantially outweighed by a danger . . . of

unfair prejudice, confusing the issues, [or] misleading the jury.” Fed. R. Evid. 403.

As outlined above, the statements were probative for non‐propensity purposes.

And the district court mitigated any potential prejudice by issuing a limiting

instruction restricting the jury’s use of the gang‐affiliation evidence to proper Rule

404(b) grounds, telling the jury “not [to] consider it for any other reason

whatsoever.” GA‐127; cf. Mercado, 573 F.3d at 141–42 (declining to conclude that

district court abused its discretion in admitting other‐crimes evidence that was

“relevant and highly probative as to knowledge and intent” and was




                                         37
“accompanied by a careful and thorough instruction limiting the evidence to

relevant Rule 404 grounds”). The district court’s “first hand exposure to the

witnesses, jury, and other evidence” at Williams’s trial put it in a “superior

position to evaluate the likely impact” of the challenged statements on the jury.

See Mercado, 573 F.3d at 142 (quoting Li v. Canarozzi, 142 F.3d 83, 88 (2d Cir. 1988)).

The court decided that the statements were not unfairly prejudicial and we decline

to second‐guess that decision.

                    2. The Facebook Images

      Williams argues, finally, that the district court erred in admitting images

from his Facebook page. The images depict Williams making hand signs—signs

that Detective Fichter testified were gang signs, based on the detective’s “training

and experience as a gang squad detective.” GA‐109. Williams contends, as he did

with his post‐arrest statements, that these images constitute impermissible

propensity evidence. The government argues in response that Williams waived

this argument by intentionally declining to raise it during trial. We agree with the

government.

      To preserve an evidentiary claim on appeal, a party must “timely object[]”

and “state[] the specific ground, unless it [is] apparent from context.” Fed. R. Evid.




                                          38
103(a). This Court “ordinarily applies Rule[] 103(a) strictly,” and where a party

“made no objection that clearly stated the specific ground now asserted on

appeal,” a claim of error is “unavailing.” United States v. Hutcher, 622 F.2d 1083,

1087 (2d Cir. 1980) (quoting United States v. Rubin, 609 F.2d 51, 62–63 (2d Cir.

1979)). Here, when the government moved to admit the Facebook images,

Williams made a “general objection.” GA‐107. The following colloquy was then

held at side bar:

      THE COURT: All right. As I understand, your only standing objection
      that you’ve made to this was based on the delay that the government
      exhibited in seeking the search for it. Is there another basis . . . ?
      Because you said my general objection.

      MR. PADDEN: I meant my previous objection, my previous motion.

      THE COURT: So you don’t have a relevance objection or anything like
      that. It was simply the objection that was lodged in your papers?

      MR. PADDEN: Yes.

      THE COURT: Only that?

      MR. PADDEN: Yes.

      THE COURT: All right. Then [if] that’s the only objection, then the
      objection is overruled.




                                        39
GA‐107. This exchange demonstrates that Williams did not make an objection

clearly stating the impermissible‐propensity‐evidence grounds now asserted on

appeal. The objection was thus not preserved at trial.

      Where an objection has not been preserved, this Court has “discretion to

correct errors that were forfeited because not timely raised in the district court, but

no such discretion applies when there has been true waiver.” United States v. Spruill,

808 F.3d 585, 596 (2d Cir. 2015) (citing Fed. R. Crim. P. 52(b); and United States v.

Olano, 507 U.S. 725, 731–34 (1993)). The distinction between forfeiture and waiver

is therefore crucial, because “forfeiture does not preclude appellate consideration

of a claim in the presence of plain error, whereas waiver necessarily ‘extinguishes’

the claim altogether.” United States v. Yu‐Leung, 51 F.3d 1116, 1121 (2d Cir. 1995)

(citing Olano, 507 U.S. at 733). A claim is forfeited “when a defendant, in most

instances due to mistake or oversight, fails to assert an objection.” Spruill, 808 F.3d

at 596. A claim is waived, on the other hand, when a defendant makes an

“intentional decision not to assert a right” or, put another way, “act[s]

intentionally in pursuing, or not pursuing, a particular course of action.” Id. at 597.

And our caselaw makes clear that an identifiable tactical benefit is not a




                                          40
“prerequisite to identifying waiver where the totality of circumstances otherwise

demonstrate the requisite intentional action.” Id. at 599.

      The totality of the circumstances here convincingly shows that Williams

acted intentionally in declining to object on any grounds other than the

government’s alleged undue delay. The district court specifically asked Williams

not once, but twice, if he had any other objections—whether based on “relevance”

or “anything like that.” GA‐107. Williams confirmed both times that he had no

other objections. Cf. Spruill, 808 F.3d at 599 (finding true waiver where defendant’s

counsel did not “fall asleep at the wheel” but instead “actively engaged in the

matter and agreed to every action taken by the district court”). This is enough to

resolve the issue. The argument that the Facebook images constituted

impermissible propensity evidence is waived.

                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                         41
