                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 14-2149
                          ___________________________

                               United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                     Curtis Adams

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                             Submitted: January 16, 2015
                                Filed: April 24, 2015
                                   ____________

Before WOLLMAN, SMITH, and SHEPHERD, Circuit Judges.
                          ____________

SMITH, Circuit Judge.

       Curtis Adams appeals his conviction for being a felon in possession of a
firearm. At trial, the district court1granted the government's motion in limine to admit
evidence of Adams's previous convictions for firearm offenses under Rule 404(b) of

      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
the Federal Rules of Evidence to show that Adams had the required intent and
knowledge to possess the firearm. Adams argues that the evidence of these prior
convictions should have been excluded. We affirm.

                                     I. Background
       On May 28, 2013, six police detectives approached a group of individuals in
Kinlock, Missouri, after observing what appeared to be hand-to-hand drug
transactions. Upon seeing the detectives, Adams clutched his waistband and fled the
scene through a nearby apartment complex. Four detectives pursued. Detective Chad
Hinds testified that, while in pursuit, he saw Adams brandish a semi-automatic pistol
and angle his body to point it backwards at the detectives as he fled. Detective Hinds
signaled to the other detectives that he saw a firearm and ordered Adams to drop the
firearm. When Adams did not comply, Detective Hinds fired two rounds at Adams.
According to several detectives, Adams then dropped the firearm in the grass.
Detective Sean Becker stayed with the weapon while the others continued the pursuit.
The detectives apprehended Adams when he tripped in a grassy area. Detective
Becker and Detective William Bates transported Adams to the hospital to treat an
injury Adams sustained from his fall. Both detectives testified that while in their
custody, Adams made incriminating statements about possessing the firearm.

       Adams was indicted for one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). Adams pleaded not guilty. The government
moved in limine to introduce evidence of Adams's prior convictions under Rule
404(b) to prove his knowledge of firearms and his intent to possess a firearm. These
two prior convictions included a 2008 conviction in federal court for being a felon in
possession of a firearm and a 2005 state-court conviction for unlawful use of a
weapon—carrying a concealed weapon. In both cases, Adams was convicted of
carrying semi-automatic pistols similar to the one police alleged he carried on the day
of his arrest. At the final pre-trial conference, the district court accepted a stipulation
between the parties to delay ruling on the motion until it became relevant at trial.

                                           -2-
       At the end of the first day of trial and after the jurors had been dismissed, the
court revisited the motion in limine. The government suggested that the time was ripe
for the court to rule on the motion because Adams's defense elicited testimony that
questioned whether he actually possessed the firearm. Adams's defense was
essentially based on a theory that the detectives planted the firearm and wrongfully
accused Adams of possessing it.

       The court and the government engaged in an extensive exchange on the 404(b)
factors at issue. The court understood the government's argument for using the prior
convictions to prove knowledge: "That he knew what a firearm was[ and] he knew
that what he had in his possession was in fact a firearm." However, the court noted,
"I understand . . . in another kind of case, 'You knew it was crack cocaine, not a piece
of gravel. You knew this was a gun, not a toy.' That, I understand knowledge." Under
the Rule 403 standard, however, the court thought that using the prior convictions had
very little probative value because "do we really think that there's anybody in the
world who doesn't know what a gun is? . . . [S]o the fact that he had this previous gun
conviction—does that really show that he knew what a gun was any more than any
other human being . . . [?]"

       The court also questioned use of the prior convictions to prove intent under
404(b) "because it's always seemed to me that when [the government is] saying [past
firearm convictions] prove[] intent, it's really saying propensity." Even Adams's
counsel, however, conceded that she "underst[ood] how easily these convictions are
admitted in gun cases." The court reflected upon its view that, while Eighth Circuit
precedent supporting admission of such evidence is ample, the rationale supporting
its probative value remained unsatisfactory. After repeated inquiries to the
government, the court acknowledged that the Eighth Circuit has "said many, many
times it can be used to show intent. I'm just trying to ask for an explanation for how
that works."



                                          -3-
      Concluding the discussion with counsel, the district court stated:

      If I were writing . . . the law, . . . I would say it's inadmissible; however,
      I am constrained by the Eighth Circuit, and even though I think that the
      danger of unfair prejudice outweighs the probative value, I have been
      told on numerous occasions that I'm not allowed to think that, and so I
      don't really have a role in this. The Eighth Circuit says that convictions
      of a similar nature are admissible to show—and then they list the whole
      thing, and nobody ever explains why, short of knowledge, which I do
      understand. I mean sometimes if there would be motive or
      absence—well, whatever, but I—so I think that it is admissible under
      404(b). It's a rule of inclusion as the Eighth Circuit tells us and even
      though it says it's not, and so I will allow it to be admitted because the
      Eighth Circuit has made it clear that being a felon in possession of a
      firearm or a conviction for carrying a concealed weapon or unlawful use
      of a weapon is admissible as 404(b) evidence in a later prosecution for
      felon in possession of a firearm, and there are probably a hundred Eighth
      Circuit cases that say that. So I will admit it and find that it's admissible
      for one of those purposes.

The next day at trial, the court twice gave the jury a limiting instruction that they
could only consider Adams's prior convictions to show his knowledge or intent, not
to show propensity.

       Adams's defense strategy was to argue that he did not possess the alleged
firearm at all, but that law enforcement officers planted the firearm. The government
called the four officers, some of whom were involved in the chase and arrest of
Adams, as witnesses. These officers testified that they (1) saw Adams pointing the
gun at them; (2) saw Adams drop the firearm; and (3) heard Adams make
incriminating statements about possessing the firearm.

      Detective Hinds was the first to testify. Detective Hinds lead the foot pursuit
of Adams. He testified to being "[t]wenty to 30 feet" behind Adams while in pursuit.

                                           -4-
Detective Hinds testified that he saw "Mr. Adams'[s] right hand come up away from
his body, holding a black . . . pistol, at which time it came around and was pointed in
our direction." Detective Hinds testified that he yelled "[g]un, gun, gun," unholstered
his firearm, and fired two shots at Adams. After his second shot, Detective Hinds
testified that "Mr. Adams immediately dropped the firearm to . . . the grass."
Detective Hinds continued to pursue Adams while another officer, Detective Becker,
stayed behind with the firearm where it lay.

       Detective Becker testified next. Detective Becker stated that while he was
pursing Adams, roughly "20 feet or so" behind him (and behind Detective Hinds), he
also saw Adams pointing the gun back towards the detectives. After another officer
(Detective Hinds) fired two rounds at Adams, he testified that he saw Adams drop the
firearm. Detective Becker stopped and remained with the firearm while the other
detectives pursued Adams. Detective Becker also testified that while he and Detective
Bates were transporting Adams to the hospital after Adams's arrest, Adams pointed
towards a parked vehicle they were passing on the road. According to Detective
Becker, Adams stated that his brother was recently shot at while inside that particular
vehicle; the vehicle had bullet holes in its rear. Adams further stated that he had the
firearm because he was "attempting to protect himself and his brother." After this
testimony, the government re-introduced Exhibit 2A, which was the Springfield
Armory 9mm pistol that Adams allegedly possessed. Detective Becker identified the
firearm as the one that he saw Adams drop and the one that he personally stayed with
until Detective Clay Peeler of the St. Louis County Police later seized it.

       Detective Bates was next to testify and corroborated Detective Becker's
testimony. Detective Bates testified that he and Detective Becker transported Adams
to the hospital after Adams's arrest. During transit, Detective Becker testified that
Adams "mentioned he had [the firearm] on him because his brother had been shot at
earlier and basically more so for protection." Adams made this statement while they



                                         -5-
were passing an old Chevrolet van that his brother owned, which had bullet holes in
the rear of the van.

        Finally, Detective Nicholas Payne testified. He pursued Adams on a different
route in an attempt to cut him off. He testified that after he heard Detective Hinds yell
"[g]un," he heard two gunshots. Detective Payne stated that "[a]fter the shots were
fired, I observed [Adams] drop the firearm, and he stumbled a little bit, and then he
continued running." He testified that he moved the firearm from where Adams
dropped it in order to secure it. He did not direct the evidence technician to take
photos of the gun where it was dropped.

      Adams's defense counsel vigorously cross-examined the detectives. She
pointed out that the police reports did not include Adams's alleged confession; also,
she highlighted that the detectives did not direct the evidence technician to take
photographs of the firearm at the scene. The jury ultimately found Adams guilty, and
the court later sentenced him to 120 months' imprisonment.

                                    II. Discussion
      Adams argues on appeal that the district court abused its discretion by
admitting his prior illegal firearms convictions despite concluding that "the danger
of unfair prejudice outweighs the probative value."2

      Rule 404(b) declares inadmissible "[e]vidence of a crime . . . to prove a
person's character in order to show that on a particular occasion the person acted in
accordance with the character." Fed. R. Evid. 404(b)(1). "This evidence may be

      2
        We recognize that the court's language does not track Rule 403 exactly, which
allows a court to "exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice." Fed. R. Evid. 403 (emphasis added).
The government conceded at oral argument, however, that the district court need not
recite the Rule 403 verbatim in its finding.

                                          -6-
admissible[, however,] for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident." Id. at 404(b)(2) (emphases added). "'We review the district court's
admission of evidence of past crimes under [Federal Rule of Evidence] 404(b) for
abuse of discretion, and we will not reverse unless the evidence clearly had no
bearing on the case and was introduced solely to prove the defendant's propensity to
commit criminal acts.'" United States v. Bassett, 762 F.3d 681, 687 (8th Cir. 2014)
(alteration in original) (quoting United States v. Banks, 706 F.3d 901, 906 (8th Cir.
2013)), cert. denied, 135 S. Ct. 882 (2014). We will only reverse a conviction if the
evidentiary error is not harmless. United States v. Langley, 549 F.3d 726, 729 (8th
Cir. 2008). "An evidentiary error is harmless when, after reviewing the entire record,
we determine that the substantial rights of the defendant were unaffected, and that the
error did not influence or had only a slight influence on the verdict." Id. (quotations
and citation omitted).

       Rule 404(b) evidence is admissible if it is "'(1) relevant to a material issue; (2)
similar in kind and not overly remote in time to the crime charged; (3) supported by
sufficient evidence; and (4) higher in probative value than prejudicial effect.'" United
States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (quoting United States v.
Strong, 415 F.3d 902, 905 (8th Cir. 2005)). Once determined admissible under
404(b), evidence must still pass the "substantially outweighed" test of Rule 403. See
Clark v. Martinez, 295 F.3d 809, 814 (8th Cir. 2002) (finding that evidence that
would otherwise be admissible under Rule 404(b) still has to meet the requirements
of Rule 403).

       Adams argues on appeal that the district court's statements within its Rule 403
analysis precludes the admissibility of his prior convictions. According to Adams, the
district court erred in admitting evidence that it had concluded carried more danger
of unfair prejudice than probative value. Furthermore, he argues that this error was



                                           -7-
not harmless because the unfair prejudice served as a "lure to distract jurors" from
"doubts in the detectives' credibility."

       We have held on many occasions that prior convictions of firearm offenses are
admissible to prove that the defendant had the requisite knowledge and intent to
possess a firearm. See, e.g., United States v. Stroud, 673 F.3d 854, 861 (8th Cir.
2012); United States v. Halk, 634 F.3d 482, 487 (8th Cir. 2011) ("[The defendant]'s
prior firearms offenses address the material issue of his knowledge of the presence
of the firearm and his intent to possess it." (citation omitted)); United States v. Oaks,
606 F.3d 530, 539 (8th Cir. 2010) ("[The defendant]'s prior conviction for armed
robbery addresses the material issue of his knowledge of the presence of the firearm
and his intent to possess it." (citation omitted)); Walker, 470 F.3d 1271, 1274 (8th
Cir. 2006) (same).

       Stroud, for example, is quite similar to Adams's case. In Stroud, law
enforcement officers heard two gunshots and then saw the defendant running around
a corner. 673 F.3d at 857. The officers saw the defendant clutching his waistband as
he was running. Id. The defendant attempted to climb over a fence, but one of the
pursuing officers was able to grab the defendant by the shoulder and keep him from
getting over the fence. Id. at 858. The officers saw the defendant throw what appeared
to be a firearm over the fence in a balled-up t-shirt. Id. While one officer stayed with
the defendant, who had been placed under arrest, the other officer found the items on
the other side of the fence, which included a magnum revolver. Id. The defendant was
convicted of being a felon in possession of a firearm, but challenged the admission
of his prior conviction of unlawfully possessing a machine gun on appeal. Id. at 859.
We upheld the district court's admission of the prior conviction, finding that the prior
conviction "is relevant to [the defendant]'s familiarity with and knowledge that he
possessed a firearm." Id. at 861.




                                          -8-
       Thus, under the initial Rule 404(b) analysis, our precedent indicates that
previous firearm-related crimes can be relevant to prove that a defendant had the
necessary knowledge that a firearm was present on or near his person and that a
defendant had the intent to possess the firearm solely, jointly, or constructively.3 The
district court agreed. This case, however, introduces an unusual scenario. Here, the
district court agreed that the evidence had a permitted use under 404(b)(2) but then
also stated that, in her view, the probative value of the evidence was outweighed by
a danger of unfair prejudice. Nevertheless, the court ultimately ruled that the evidence
was admissible despite stating misgivings about its potential for unfair prejudice and
perceived constraints of this circuit's precedent on the court's Rule 403 discretion.
The district court's statements notwithstanding, circuit precedent contains no
restriction on a district judge's ability to weigh the factors listed in Rule 403 and
admit or exclude evidence that otherwise meets the admissibility requirements of
Rule 404(b).

       Even assuming arguendo that the district court erred, on this record, we
conclude that such error would be harmless. The government presented evidence from
multiple witnesses that they saw Adams possess the firearm, saw him discard it, then
later heard Adams admit to possessing the firearm. It was the jury's province to
believe or disbelieve the testimony of any or all of the officers.

       After granting the government's motion in limine, the court twice issued a
limiting instruction to the jury—once at the introduction of Adams's prior convictions
and again before the jury began its deliberations—to only use the fact of Adams's
prior conviction for the limited purposes of showing knowledge or intent. The facts

      3
        The district court acknowledged Eight Circuit precedent that such prior
convictions can be used to show intent. We have held that "[w]hen admitted for the
purpose of showing intent, the prior acts need not be duplicates, but must be
sufficiently similar to support an inference of criminal intent." United States v.
Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995) (quotation omitted).

                                          -9-
of this case present little likelihood that Adams's conviction rested solely on the
possibility that the jury ignored those limiting instructions. To the degree it
considered evidence of Adams's prior crimes, we presume the jury limited its use to
permitted purposes. See Stroud, 673 F.3d at 861 (finding that "a limiting instruction
diminishes the danger of unfair prejudice arising from the admission of evidence"
(quotation omitted)); Halk, 634 F.3d at 488 (same); Oaks, 606 F.3d at 539, n.2
(same); Walker, 470 F.3d at 1275 (same).

       The government's evidence that Adams had been previously convicted in state
and federal courts for unlawfully possessing firearms had probative value to show
that he knew what a firearm was and that he possessed the criminal intent to possess
the firearm unlawfully. See United States v. Washburn, 728 F.3d 775, 784 (8th Cir.
2013) ("[T]his court has held in similar circumstances that the unfair prejudice did not
substantially outweigh the probative value of a defendant's prior conviction for
similar schemes because the close similarity of the prior incidents made the evidence
especially probative on the question of the defendant's intent and the absence of
accident." (citation omitted)).

                                III. Conclusion
    For the reasons stated herein, the admission of the Rule 404(b) evidence and
Adams's conviction is affirmed.
                      ______________________________




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