                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

        v.                                                 Criminal No. 15-166 (CKK)
 RONNIE ANDERSON,

    Defendant.


                                 MEMORANDUM OPINION
                                    (March 31, 2016)

       Presently before the Court is the Government’s [12] Motion to Admit Other Crimes

Evidence Pursuant to Federal Rule of Evidence 404(b) and Defendant’s [23] Opposition to

Government’s Motion to Admit Other Crimes Evidence Pursuant to F.R.E. 404(b).                  The

Government requests that it be permitted to introduce evidence of uncharged criminal conduct that

it asserts is relevant to prove knowledge, intent, and/or absence of mistake. Anderson opposes this

request, arguing that the evidence is inadmissible character evidence under Rule 404(b), and is

more prejudicial than probative. Upon consideration of the Government’s Rule 404(b) Motion,

Anderson’s Opposition thereto, the relevant case law, and the entire record herein, the Court shall

GRANT IN PART and HOLD IN ABEYANCE IN PART the Government’s Rule 404(b) Motion

for the reasons described. Specifically, the Court finds that the evidence at issue shall be

conditionally admitted as “other crimes” evidence under Rule 404(b). However, the Court shall

defer judgment until trial as to whether such evidence should be excluded under Federal Rule of

Evidence 403.

                                      I. BACKGROUND

       On November 13, 2015, Anderson was charged by indictment with one count of unlawful
possession of a firearm and ammunition by a person convicted of crimes punishable by

imprisonment for a term exceeding one year in violation of 18 U.S.C. § 922(g)(1). The Court shall

briefly discuss the factual background surrounding Anderson’s charge as described by the

Government in its Motion, see Govt.’s Mot. at 1-3, and the uncharged criminal conduct it seeks to

introduce, see id. at 3-4, because both are relevant to the Court’s analysis. Anderson’s charge in

the instant action is based on his alleged possession of a firearm and ammunition which were

recovered from under a bed in an apartment on Elvans Road, S.E., Washington, D.C., on October

3, 2015. Specifically, an officer with the Metropolitan Police Department (“MPD”) was on patrol

in a marked vehicle when he was approached by a witness (“Witness 2”) who informed him that

there was a man with a gun inside an apartment with her cousin and daughter. Witness 2 then

entered the apartment and, while the MPD officer waited outside for additional officers to respond,

he observed Witness 2 exit the apartment through a window.

       When another MPD officer arrived, the two officers knocked on the door and a second

witness (“Witness 1”) answered the door approximately 30 seconds later. Witness 1 allowed the

police to enter the apartment and informed officers that her friend, later identified as Anderson,

was in the back bedroom. One of the officers initially sent Witness 1 to get Anderson and have

him come to the living room. After approximately 50 seconds, the officer called for Anderson to

come to the living room. After another 30 seconds, Witness 1 informed the officers that Anderson

would not come out of the bedroom. However, Anderson emerged from the back bedroom a few

second later and came into the living room. One of the officers searched the back bedroom and

located under the bed a Ruger P95DV 9 mm pistol containing a 9 mm magazine capable of holding

35 rounds of ammunition. Anderson was placed under arrest.

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       The Government indicates that it anticipates calling Witness 1 who will testify that Witness

1, Witness 2, Anderson, and another individual were inside the apartment. The Government

asserts that Witness 1 observed Witness 2 and Anderson arguing about money when Anderson

pulled a firearm from his waistband. Witness 2 left the apartment and the police then came to the

door. When the police knocked on the door, Anderson ran into the back bedroom with a firearm.

As the Government noted in its motion, Witness 1 has provided inconsistent statements to the

officers on the scene and in a recorded interview on October 3, 2015, which have been disclosed

to Anderson’s counsel. Govt.’s Mot. at 3 n.4. Presumably these statements related to events not

on the video that police recorded throughout their time in the apartment.

       The Government now seeks to introduce evidence of Anderson’s prior possession of a

firearm pursuant to Rule 404(b) during trial. As described by the Government in its Motion, two

MPD police officers responded to a disorderly conduct complaint on Elvans Road, S.E.,

Washington, D.C. on August 22, 2009. 1 As one officer drove onto the block in question, he

observed Anderson, who was standing on the steps of the location to which the officer was

responding, become nervous and ran towards a Dodge van parked near the building. The officer

further observed Anderson crouch behind the van and stuff something underneath the vehicle.

When one officer exited his vehicle approximately 10 feet away, Anderson began to run. Another

officer chased Anderson on foot and detained him. The other officer went to the Dodge van and

located a Norinco AK-47 assault rifle with a magazine clip serial number #11S021300 that was




       1
         While the street address has been redacted in the Government’s Motion, the Court notes
that both the incident that forms the basis of the instant charge and the incident that the Government
seeks to introduce occurred on Elvans Road, S.E., Washington, D.C.
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loaded with 35 rounds of ammunition and one round in the chamber. Anderson admitted

possession of the firearm and ammunition as part of a plea entered in case number 2009 CF2 18245

in the Superior Court of the District of Columbia for the charges of felon in possession, possession

of an unregistered firearm, possession of a prohibited weapon, and unlawful possession of

ammunition. Anderson was sentenced on these charges on February 19, 2010.

                                    III. LEGAL STANDARD

       Federal Rule of Evidence 404(b) provides that “[e]vidence of a crime, wrong, or other acts

is not admissible to prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character,” but “may be admissible for another purpose,”

including proving “motive, opportunity, intent, . . . [or] absence of mistake.” Fed. R. Evid.

404(b)(1), (2). The rule is one of “inclusion rather than exclusion. Although the first sentence of

Rule 404(b) is framed restrictively, the rule itself is quite permissive, prohibiting the admission of

other crimes evidence in but one circumstance—for the purpose of proving that a person’s actions

conformed to his character.” United States v. Bowie, 232 F.3d 923, 929-30 (D.C. Cir. 2000)

(internal quotations omitted).

       In addressing trial court determinations on the admissibility of bad acts evidence
       under the Federal Rules of Evidence, this circuit has employed a two-step mode of
       analysis. Under the first step, which addresses Rule 404(b), “[the court] must
       determine whether the evidence is relevant to a material issue other than character.
       If so, [the court] proceed[s] to the second inquiry,” under Federal Rule of Evidence
       403, “whether the probative value is substantially outweighed by the prejudice.”

United States v. Burch, 156 F.3d 1315, 1323 (D.C. Cir. 1998) (quoting United States v. Mitchell,

49 F.3d 769, 775 (D.C. Cir. 1995)).




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                                        IV. DISCUSSION

       The Government seeks to introduce evidence of Anderson’s 2009 possession of a firearm

pursuant to Rule 404(b) on the basis that the prior possession is relevant to prove knowledge,

intent, and/or absence of mistake. Anderson argues that the evidence of the prior possession is

character evidence which may not be introduced under Rule 404(b) and that introduction of the

evidence of the prior possession at trial would be more prejudicial than probative. For the reasons

described herein, the Court finds that the evidence of Anderson’s 2009 possession of a firearm is

evidence that may be admissible for the purpose of proving knowledge and/or absence of mistake.

However, the Court shall defer judgment until trial as to whether such evidence should be excluded

under Federal Rule of Evidence 403.

       The issue before the Court is whether the evidence of Anderson’s prior possession of a

firearm is probative to some issue other than character such that it is the type of evidence that may

be permissible under Rule 404(b).         Here, the Government argues that the “evidence of

[Anderson’s] prior offense related to possession of a firearm, and willingness to distance himself

from the firearm and take other steps to elude arrest for it, are relevant and probative of his knowing

and intentional possession of a firearm in this case.” Govt.’s Mot. at 8-9. Anderson asserts that

the Government’s argument is flawed because the Government “contends that it heard from a

witness that a man in an apartment had a gun; it found a man in an apartment; he denied the gun

was his; but his prior conviction proves that the government has made no mistake: this is the man

who possessed the gun in question, because he was convicted of possessing one before.” Def.’s

Opp’n at 5.

       Anderson is charged with unlawful possession of a firearm and ammunition by a convicted

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felon in violation of 18 U.S.C. § 922(g)(1). As the United States Court of Appeals for the District

of Columbia Circuit has explained:

       A prior history of intentionally possessing guns, or for that matter chattels of any
       sort, is certainly relevant to the determination of whether a person in proximity to
       such a chattel on the occasion under litigation knew what he was possessing and
       intended to do so. If [defendant] had been standing in an apartment close to a gun
       and never possessed one before, a jury might find it less likely that his proximity
       evidenced knowing and intentional possession. Granted, this evidence does go to
       propensity, the character circumstance forbidden by Rule 404(b). Rule 404(b) never
       bars the admission of evidence.

United States v. Cassell, 292 F.3d 788, 794-95 (D.C. Cir. 2002) (upholding a district court’s ruling

to admit evidence of two prior firearm possessions when a defendant was charged with possession

of a firearm by a felon and possession of a firearm during drug trafficking when the firearms were

recovered from defendant’s uncle’s apartment); see generally United States v. Garner, 396 F.3d

438, 439 (D.C. Cir. 2005) (holding that evidence of a defendant’s prior possession of a handgun

under similar circumstances four years earlier in a case where defendant was charged with

possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), was properly admitted

to show that defendant knew of and constructively possessed the gun); United States v. Brown, 16

F.3d 423, 431 (D.C. Cir. 1994) (finding that a firearm recovered from the defendant during his

arrest was relevant to show intent, knowledge, or absence of mistake with respect to firearms

recovered from a safe during an earlier search of an apartment); but see generally United States v.

King, 254 F.3d 1098, 1100-01 (D.C. Cir. 2001) (finding that evidence that defendant had a knife,

rather than a firearm, stored in the trunk of a car was not properly admitted under Rule 404(b)

when defendant was charged with possession of a firearm by a convicted felon based on the

recovery of a firearm wedged in the sunroof of the same car). Indeed, “in cases where a defendant


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is charged with unlawful possession of something, evidence that he possessed the same or similar

things at other times is often quite relevant to his knowledge and intent with regard to the crime

charged.” King, 254 F.3d at 1100. Moreover, the fact that a defendant “had previously possessed

weapons tends to make it less probable that the weapons recovered from his bedroom were there

without his knowledge, without intent, or by accident or mistake.” Cassell, 292 F.3d at 796.

        Anderson argues that this case is distinguishable because of the nature of the Government’s

evidence. As Anderson notes, the Government intends to rely on two witnesses who will, in the

Government’s estimation, testify that they observed Anderson holding the firearm and on any

DNA evidence that they recover that connects Anderson to the firearm. Def.’s Opp’n at 4. The

jury is then left with the decision to believe this evidence or not. Id. As such, Anderson argues,

the Government need not advance any theory of knowledge, intent, or absence of mistake to prove

its case. Id.

        In United States v. Linares, 367 F.3d 941 (D.C. Cir. 2004), the D.C. Circuit held that

evidence that the defendant previously possessed a handgun years earlier was improperly admitted

pursuant to Rule 404(b) when the defendant was charged with being a felon in possession of a

firearm. 367 F.3d at 943. In Linares, the D.C. Circuit held that the defendant’s prior possession

of a firearm was improperly admitted because it “made it no ‘more probable or less probable’ that

[defendant] possessed the gun knowingly or unmistakenly, and because the government had no

obligation to prove intent.” Id. at 952. In reaching this holding, the D.C. Circuit found that based

on the evidence in that case, a reasonable jury was left either to believe three eyewitnesses’

testimony regarding the defendant’s actual possession of the firearm, or not. Id. at 946-47.

Regardless of the jury’s determination as to that issue, it was not left to grapple with whether the

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defendant’s possession was unknowing or mistaken because there was no theory advanced that the

defendant constructively possessed the firearm. Id. Indeed, in Linares, a police officer testified

that he had an unobstructed view of a vehicle outside of a nightclub in a “very well lit” area when

he saw a muzzle flash coming from a black colored object that he believed to be a handgun in the

driver’s hand. Id. at 944. After that, the police officer pursued the vehicle until it crashed into

another vehicle. Id. As the police officer approached the vehicle, he saw a gun in the driver’s

hand and saw the driver throw the gun up in the air out of the driver’s side window. Id. Another

second witness, a sergeant, testified that he was outside the nightclub when he heard shots fired

and joined the pursuit of the vehicle seen speeding away in his own vehicle. Id. When the

defendant’s vehicle crashed, the sergeant approached the vehicle, looking through the passenger’s

side window when he observed a gun in the defendant’s hand. Id. When he told the defendant to

drop the weapon, the defendant threw the gun over a fence directly in front of the car. Id. Finally,

a passenger in the car testified that she was sitting next to the defendant in the front passenger seat

when he leaned across her and fired the gun out of her window. Id.

       The D.C. Circuit distinguished its ruling in Linares from other cases admitting evidence of

a prior firearm possession, explaining: “unlike here, [in the earlier cases] a reasonable jury could

have concluded that the charged possession was unknowing or mistaken, and thus the government

needed the other-acts evidence to prove knowledge or absence of mistake.” Linares, 367 F.3d at

949. In distinguishing its earlier ruling in United States v. Cassell, 292 F.3d 788 (D.C. Cir. 2002),

the D.C. Circuit noted that Cassell involved a defendant charged with being a felon in possession

of firearms that were recovered by police in a bedroom in which the defendant was staying in his

uncle’s home. The D.C. Circuit noted in reference to Cassell:

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       A reasonable jury could have concluded that while the defendant constructively
       possessed the weapons (in that he had dominion and control over them because they
       were in his bedroom), his constructive possession was unknowing--perhaps
       because his uncle stashed the weapons in the bedroom without telling the defendant.
       That was a classic case for introducing prior instances of gun possession, since the
       government would otherwise find it extremely difficult to prove that the charged
       possession was knowing.


Linares, 367 F.3d at 949 (emphasis added). Based on the evidence that the Government proffers

at this time, it appears a jury could find that Anderson constructively possessed the firearm

recovered from under the bed in the neighbor’s apartment. In order for the jury to make such a

finding, the Government would need to prove that Anderson’s possession of the firearm was not

unknowing or mistaken. See, e.g., United States v. Bryant, 523 F.3d 349, 354-55 (D.C. Cir. 2008)

(“In order to prove that [defendant] constructively possessed the guns, the Government was

required to show that [defendant] ‘knew of, and was in a position to exercise dominion and control

over, the contraband, ‘either personally or through others.’’”). As such, the Court finds this case

distinguishable from Linares, in that evidence of Anderson’s prior firearm possession may be

relevant to prove knowledge or absence of mistake, as permitted under Rule 404(b), particularly

where the alleged possession is constructive and not actual. See, e.g., Henderson v. United States,

135 S. Ct. 1780, 1784 (2015) (“Actual possession exists when a person has direct physical control

over a thing . . . . Constructive possession is established when a person, though lacking such

physical custody, still has the power and intent to exercise control over the object.”). However,

the Court notes that since the Government has no obligation to prove intent for a charge under §

922(g)(1), the evidence of Anderson’s prior firearm possession is not admissible for that purpose.

Linares, 367 F.3d at 948 (“Although Rule 404(b) lists intent as one of the purposes for which


                                                9
other-acts evidence may be admissible, the . . . evidence [of defendant’s prior firearm possession]

was inadmissible for that purpose because under section 922(g)(1), the government had no

obligation to prove intent.”). Upon close review of the record currently before the Court, the Court

further finds that the evidence of the 2009 possession of a firearm shall be conditionally admitted

as “other crimes” evidence under Rule 404(b).

       Given that the Court has found that the evidence of the prior firearm possession is

admissible for the purpose of demonstrating knowledge or absence of a mistake, the Court must

also determine whether the probative value of this evidence is substantially outweighed by the

unfair prejudice. The Court finds that a final decision as to whether this “other crimes” evidence

shall be admitted under Rule 403 would be better informed by the meaning, foundation, and

relevance of the evidence within the framework of the trial. It appears that all testimony regarding

Anderson’s 2009 possession of a firearm would issue from a witness or witnesses who could

presumably testify at or near the end of the Government’s case, permitting the Court to weigh its

probative value against any possible unfair prejudice in the context of the evidence already

presented. Finally, if admitted, the Rule 404(b) evidence will be accompanied by a limiting

instruction to the jury as to the purpose of the evidence and how the jury is to consider it. As such,

the Court shall defer judgment until trial as to whether such evidence should be excluded under

Federal Rule of Evidence 403.

                                        V. CONCLUSION

       Upon close review of the record currently before the Court, the Court finds that the

evidence of Anderson’s August 22, 2009, possession of a firearm shall be conditionally admitted

as “other crimes” evidence under Rule 404(b). However, the Court shall defer judgment until trial

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as to whether such evidence should be excluded under Federal Rule of Evidence 403. Accordingly,

the Government’s [12] Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of

Evidence 404(b) is GRANTED IN PART and HELD IN ABEYANCE IN PART.




                                                       /s/
                                                   COLLEEN KOLLAR-KOTELLY
                                                   UNITED STATES DISTRICT JUDGE




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