                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 19a0359n.06

                                            No. 18-6038                                   FILED
                                                                                     Jul 15, 2019
                            UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                                                    )
           Plaintiff–Appellant,                     )        ON APPEAL FROM THE
                                                    )        UNITED STATES DISTRICT
v.                                                  )        COURT FOR THE MIDDLE
                                                    )        DISTRICT OF TENNESSEE
XZAVEON PEETE,                                      )
                                                    )
                                                                     OPINION
           Defendant–Appellee.                      )
                                                    )


Before: MOORE, COOK, and READLER, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellee Xzaveon Peete is

charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1), and one count of possessing a firearm with an obliterated serial number, in violation

of 18 U.S.C. § 922(k). Plaintiff-Appellant United States of America appeals the district court’s

order granting Peete’s motions in limine to exclude evidence of Peete’s gang affiliation and

involvement in a shooting in October 2013. Because we conclude that evidence of the shooting

and Peete’s gang affiliation is “res gestae,” or intrinsic evidence, and that evidence of Peete’s gang

affiliation was admissible under Federal Rule of Evidence 404(b) to show his motive and

opportunity to possess the firearm described in the indictment, we REVERSE the district court’s

order and REMAND the case to the district court for further proceedings consistent with this

opinion.
No. 18-6038, United States v. Peete


                     I. FACTUAL & PROCEDURAL BACKGROUND

       The following facts are taken from the government’s proffer of the evidence that it intends

to present at trial. See R. 45 (Gov’t Opp’n to Def.’s Mot. to Exclude at 1–5) (Page ID #209–13).

The district court used this proffered evidence in resolving Peete’s motions in limine. R. 54 (Order

at 2–5) (Page ID #239–42).

       On October 28, 2013, a United States postal employee became suspicious of a package that

had been shipped from California to a house in Murfreesboro, Tennessee. R. 45 (Gov’t Opp’n at

1) (Page ID #209). The postal employee conducted a controlled delivery of the package; a woman,

Witness One (“W-1”), answered the door and accepted the package. Id. When officers from the

Rutherford County Sheriff’s Office spoke with W-1 later that day, she consented to a search of the

package. Id. Officers discovered five pounds of marijuana in the package. Id. at 1–2 (Page ID

#209–10). W-1 stated she had received the package for her boyfriend; W-1 was subsequently

arrested. Id. at 2 (Page ID #210).

       Following W-1’s arrest, Witness Two (“W-2”), the uncle of W-1, became upset with W-

1’s boyfriend, as W-2 believed that W-1’s boyfriend had carelessly gotten W-1 in trouble for

the marijuana delivery. Id. W-2 was a “ranking member” of the Gangster Disciples (“Disciples”),

a street gang operating in the Middle District of Tennessee. Id. According to Witness Three (“W-

3”)––also a member of the Disciples––in response to W-1’s arrest, W-2 enlisted members of the

Disciples’ “security team” to retaliate against W-1’s boyfriend. Id. Peete was a member of the

Disciples’ security team and was expected to be armed at all times. Id.




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No. 18-6038, United States v. Peete


       Later on during that same day, multiple witnesses observed a confrontation between two

groups of men, including W-1’s boyfriend. Id. Three witnesses saw one man “produce a long-

barreled black revolver” and shoot another man, Witness Four (“W-4”), during the confrontation.

Id. The shooter was described as being a light-skinned African-American man in his early-to-mid-

20s, approximately six feet tall, and being “thin” and weighing approximately 180 pounds. Id.

Peete’s booking sheet described him as being 25 years old, 5’11’’, and 150 pounds. Id. at 2–3

(Page ID #210–11). W-4 survived the shooting. Id. at 3 (Page ID #211). Two witnesses then

observed the same man walk toward W-1’s boyfriend, who was on the ground, and point the gun

at W-1’s boyfriend’s head. Id. The witnesses believed the shooter was about to shoot W-1’s

boyfriend, but the shooter fled when the witnesses shouted at the shooter. Id.

       As the shooter ran away, he ran past Witness Five (“W-5”); W-5 observed the shooter with

“a long-barreled revolver” during the altercation and also saw the shooter flee the scene. Id.; see

also R. 58 (Mot. Hr’g Tr. at 17) (Page ID #273). W-5 later informed authorities that he believed

the shooter was familiar to him and that he had a “lazy” left eye. R. 45 (Gov’t Opp’n at 3) (Page

ID #211). The defendant lost an eye at a young age. Id. W-5 subsequently identified Peete as the

shooter in a six-person photo array. Id. Another witness1 who was shown a six-person photo array

identified a different individual as the shooter. Id. at 3 n.2 (Page ID #211). After the shooter ran

past W-5, W-5 observed the man get into a Pontiac-type vehicle and drive away. Id. at 3 (Page ID

#211). The police subsequently located the owner of the vehicle, Witness Six (“W-6”). Id. Before


       It is unclear from the government’s proffer of evidence whether this “other witness”
       1

observed (1) the man shoot W-4, (2) the shooter assault W-1’s boyfriend, or (3) both.


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No. 18-6038, United States v. Peete


W-6 met with the police, Peete asked W-6 to tell police that W-6 had just arrived to the area where

the car had been found and to not give the police his (Peete’s) name. Id.

       Later during the evening of October 28, 2013, W-3 placed a recorded phone call with Peete

to discuss the confrontation. Id. W-3 stated that if W-4 (the shooting victim) was acting

unreasonably, “it is what it is.” Id. Peete responded: “Tell ‘em I’ll get every one of them bitches.”

Id. at 3–4 (Page ID #211–12). W-3 also told Peete that W-2 had erred by getting Disciples

members involved in a personal issue between W-2 and W-1’s boyfriend. Id. at 4 (Page ID #212).

In a later, unrecorded phone call, Peete told W-3 that it was “fucked up” that W-2 had involved

Disciples members in the altercation and that Peete had gone to the confrontation to assist W-2.

Id. Peete also stated that he was going to “kill that pussy,” which the government contends meant

W-1’s boyfriend, but that the firearm had jammed. Id. According to W-3, the Disciples later

determined that the altercation was a personal matter between W-2 and W-1’s boyfriend, rather

than gang-related business.     Id. at 5 (Page ID #213).      Because of his involvement in the

confrontation, Peete was subjected to a “violation,” i.e., a three-minute assault by other Disciples

members. Id.

       In late November 2013, Rutherford County probation officers conducted a home visit of

Witness Seven (“W-7”), who was an associate of Peete’s. Id. at 4 (Page ID #212). After W-7

admitted that there were firearms in the house, the probation officers located, among other things,

a black .38 caliber revolver and a silver .32 caliber revolver. Id. Both revolvers had obliterated

serial numbers. Id. When asked about the .38 caliber revolver, W-7 informed the police that in

“mid- to late October 2013,” Peete had arrived at W-7’s apartment and asked W-7 if he could leave


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No. 18-6038, United States v. Peete


a black, long-barreled revolver at W-7’s residence; W-7 agreed. Id. at 5 (Page ID #213). In a

phone conversation approximately one week later, W-7 asked Peete what he “had been doing.”

Id. Peete explained that “he had gotten into an altercation with a guy,” had “shot the guy,” and

“had just gotten out of jail in connection with that incident.” Id. Peete also stated that the gun he

had given W-7 was the same gun he had used in the shooting. Id. A later examination of the .38

revolver revealed that the firearm was damaged and “produced a firing pin strike that was so off-

center that the cartridge used in the test-fire failed to fire.” Id.

        On February 28, 2018, a federal grand jury indicted Peete on one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count I), and one count of

possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k) (Count

II). R. 3 (Indictment at 1–2) (Page ID #5–6). Both charges were tied to Peete’s possession of the

.38 caliber revolver with an obliterated serial number on October 28, 2013. Id. Prior to trial, Peete

filed two motions in limine. First, Peete filed a motion requesting that the government disclose

any evidence of “other crimes, wrongs or acts” that it anticipated introducing under Federal Rule

of Evidence 404(b).      R. 41 (Mot. for Notice & Hr’g at 1–2) (Page ID #195–96).              In an

accompanying memorandum, Peete argued against the admission of any evidence relating to the

shooting, asserting that it was not background or “res gestae” evidence and was not admissible

under Rule 404(b). Id. at 5–7 (Page ID #199–201). In his second motion, Peete requested that the

district court conduct an evidentiary hearing regarding the admissibility of evidence relating to

Peete’s gang affiliation. R. 42 (Mot. for Hr’g at 1) (Page ID #203). Peete contended that any such

evidence was unfairly prejudicial and thus inadmissible pursuant to Federal Rule of Evidence 403.


                                                    5
No. 18-6038, United States v. Peete


Id. at 1–3 (Page ID #203–05); Fed. R. Evid. 403 (prohibiting the admission of evidence when the

probative value of the evidence is “substantially outweighed by a danger of . . . unfair prejudice”).

The government responded in opposition. R. 45. After conducting an evidentiary hearing, R. 58

(Mot. Hr’g Tr.), the district court granted Peete’s motions and excluded any evidence relating to

Peete’s gang affiliation or Peete’s identity as the shooter on October 28, 2013, R. 54 (Order). The

government filed this timely interlocutory appeal, R. 57 (Notice of Appeal) (Page ID #254), over

which we have jurisdiction pursuant to 18 U.S.C. § 3731.

                                        II. DISCUSSION

       “To obtain a conviction under § 922(g), the government must prove three elements: (1) the

defendant had a previous felony conviction; (2) the defendant knowingly possessed the firearm

specified in the indictment; and (3) the firearm traveled in or affected interstate commerce.”

United States v. Brown, 888 F.3d 829, 833 (6th Cir. 2018) (internal quotation marks omitted). As

for Count II, the government is required to show (1) the defendant “knowingly possessed a

firearm”; (2) “which had its serial number altered, removed or obliterated”; and (3) the firearm

“had been shipped, received or transported in interstate commerce.” United States v. Cobbs, 233

F. App’x 524, 536 (6th Cir. 2007). The government must also prove “knowledge on the part of

the defendant that the firearm he possessed had an obliterated serial number.” Id.

       In an effort to show knowing possession of a firearm with an obliterated serial number, the

government intends to put on evidence of Peete’s involvement in the shooting, his incriminating

statements to W-3 and W-7, and Peete’s gang affiliation.          Because this evidence is either

contemporaneous with Peete’s alleged possession of the firearm on October 28, 2013, or is a


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No. 18-6038, United States v. Peete


necessary component of the witnesses’ testimony, the government asserts it is admissible as

“intrinsic” or “background” evidence, rather than “other act” evidence under Rule 404(b).

Appellant Br. at 22–34. Alternatively, the government contends that evidence of Peete’s gang

affiliation is admissible under Rule 404(b). Id. at 42–51. Peete responds that because the

government apparently intends to introduce “several witnesses” who will “testify that they had

seen the Defendant in the possession of a firearm at one point or another,” the evidence of the

shooting and Peete’s gang affiliation is unnecessary to prove his possession and is unfairly

prejudicial. Appellee Br. at 8–12. We examine each piece of evidence in turn.

A. Evidence of the Shooting & Assault

       1. Applicable Law & Standard of Review

       “Generally, a district court’s evidentiary rulings are reviewed for abuse of discretion,”

including whether evidence was properly admitted or excluded as “background” or “res gestae”

evidence. United States v. Churn, 800 F.3d 768, 774–75 (6th Cir. 2015) (internal quotation marks

omitted).2 “A district court has abused its discretion when its decision rests on the wrong legal

standard, a misapplication of the correct standard, or on clearly erroneous facts.” United States v.

Gibbs, 797 F.3d 416, 422 (6th Cir. 2015).

       Generally, under Federal Rule of Evidence 404(b), evidence of a separate “crime, wrong,

or other act” is inadmissible “to prove a [defendant]’s character in order to show that on a particular


       2
         Although “[w]e have ‘acknowledge[d] that the distinctions among res gestae, inextricably
intertwined evidence, intrinsic evidence, and background evidence [are] far from clear,’ . . . we
often treat the various concepts similarly.” Churn, 800 F.3d at 779 (quoting United States v.
Adams, 722 F.3d 788, 822 n.26 (6th Cir. 2013)) (second and third alterations in original).


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No. 18-6038, United States v. Peete


occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b). However,

“[t]his Court recognizes an exception to Rule 404(b) for res gestae evidence where the evidence

consist[s] of those other acts that are inextricably intertwined with the charged offense or those

acts, the telling of which is necessary to complete the story of the charged offense.” Brown, 888

F.3d at 836 (internal quotation marks omitted and alteration incorporated). These “intrinsic acts”

are different than “extrinsic acts, which are those that occurred at different times and under

different circumstances from the offense charged.” Churn, 800 F.3d at 779 (internal quotation

marks omitted). As we have previously explained:

       Proper background evidence has a causal, temporal or spatial connection with the
       charged offense. Typically, such evidence is a prelude to the charged offense, is
       directly probative of the charged offense, arises from the same events as the charged
       offense, forms an integral part of a witness’s testimony, or completes the story of
       the charged offense.

United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000). Such a rule permits the government to

“put the charges in the appropriate context” and recognizes that “defendants are not entitled to a

‘sanitized’ recounting of the facts, and [that] prosecutors are not restricted to proving only discrete

elements of a crime in such a way that they would be unable to offer the jury a natural narrative of

events.” Gibbs, 797 F.3d at 424 (citation omitted). Similarly, because jurors may be less willing

to credit a witness who is permitted to testify only in a truncated or “sanitized” manner, prosecutors

may present evidence that provides a fuller picture of the charged offense. See Old Chief v. United

States, 519 U.S. 172, 188 (1997) (“If jurors’ expectations are not satisfied, triers of fact may

penalize the party who disappoints them by drawing a negative inference against that party.”

(internal quotation marks omitted and alteration incorporated)).


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No. 18-6038, United States v. Peete


       Importantly, however, even if evidence is properly considered “background evidence,” it

may nonetheless be inadmissible “if its probative value is substantially outweighed by a danger

of . . . unfair prejudice.” Fed. R. Evid. 403; Churn, 800 F.3d at 779. Courts must therefore “err

on the side of caution” to ensure that a party does not use this exception as a backdoor to admit

otherwise inadmissible Rule 404(b) character evidence.         Gibbs, 797 F.3d at 425.       This is

particularly necessary in felon-in-possession cases because “the issue of possession often is tied to

an act or acts that are not a part of the indictment.” Brown, 888 F.3d at 837.

       2. Res Gestae Determination

       Evidence relating to the shooting on October 28, 2013, generally falls into two categories.

In the first category are witnesses who observed the shooting of W-4 and the assault of W-1’s

boyfriend and who also later identified Peete––or someone matching his description––as the

individual possessing a “long-barreled black revolver” during that altercation. See R. 45 (Gov’t

Opp’n at 2–3) (Page ID #210–11). In the second category, the government has identified at least

two relevant witnesses (W-3 and W-7) who spoke with Peete on or around October 28, 2013, and

who are prepared to relay incriminating statements that Peete made regarding both the shooting

and Peete’s possession of the particular firearm described in the indictment. Id. at 3–5 (Page ID

#211–13).

       In examining the shooting and assault evidence, the district court almost exclusively

considered its admissibility in light of Rule 404(b). See R. 54 (Order at 9–10) (Page ID #246–47).

On appeal, however, “[t]he government is not contending . . . that evidence of the shooting is

admissible under Rule 404(b).” Reply Br. at 9. As to whether the evidence was “intrinsic” to


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No. 18-6038, United States v. Peete


Peete’s possession of the firearm, the district court did not examine the government’s argument in

detail and instead summarily concluded that “[t]estimony that Defendant was the shooter on the

date in question is also inadmissible as res gestae because it is not inextricably intertwined with

proving Defendant possessed the firearm at issue.” R. 45 (Order at 10) (Page ID #247).3 Although

our review is somewhat hindered by the district court’s limited analysis of the government’s viable

arguments regarding this evidence, we conclude that the district court abused its discretion when

it determined that evidence of the shooting is not intrinsic to the charged offense. Moreover,

because the probative value of this evidence is not “substantially outweighed” by unfair prejudice,

we reverse the district court’s order excluding this evidence.

       As for the witness testimony of the shooting and assault on October 28, 2013, testimony

that witnesses saw Peete use the weapon against W-4 and W-1’s boyfriend directly “arises” from

the underlying charged conduct (possession of a firearm). Hardy, 228 F.3d at 748. This evidence

also certainly “tends to logically prove an element of the crime charged,” as one cannot shoot an

individual without possessing a firearm. United States v. Till, 434 F.3d 880, 883 (6th Cir. 2006)

(quoting United States v. Luna, 94 F.3d 1156, 1162 (8th Cir. 1996)). Indeed, as the government

explained at oral argument, Peete’s possession of the firearm was largely contemporaneous with



       3
          The district court also explained that “[e]vidence that a shooting occurred . . . may be
admissible as res gestae to the extent it led witnesses to identify Defendant as an individual who
possessed a firearm” and left open the possibility that such evidence would be admissible if elicited
by the government. R. 54 (Order at 10) (Page ID #247) (first emphasis added). However, the
government has made clear that the witnesses are not expected to testify that they observed Peete
possess the firearm only after hearing gunshots. Appellant Br. at 35 n.5. Thus, this section of the
district court’s order is not relevant to the government’s appeal.


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No. 18-6038, United States v. Peete


the shooting and assault, thus making it very difficult for the witnesses to testify about their

observations without mentioning those actions. See Oral Arg. at 1:12–1:19 (“The shooting is the

evidence that establishes possession. The possession necessarily occurred during the shooting.”);

Gibbs, 797 F.3d at 424 (noting that one of the reasons for admitting res gestae evidence is that it

is very difficult for individuals to testify about “preceding or contemporaneous acts that are

incidental but necessary to telling a cogent story”). Additionally, because the shooting and assault

were contemporaneous with the underlying charged crime, they would necessarily be temporally

and spatially connected to Peete’s alleged possession of a firearm. Hardy, 228 F.3d at 748–49

(discussing cases permitting intrinsic evidence in which a defendant engaged in drug activities

either during a charged conspiracy or a few months before the conspiracy began).

       In response, Peete asserts that because various witnesses are “prepared to testify that they

have seen the Defendant with a firearm,” witness testimony about the shooting is not necessary to

prove the government’s case. Appellee Br. at 8–9. According to Peete’s counsel at oral argument,

witnesses could simply testify that they saw Peete “produce” a firearm during an “altercation.”

Oral Arg. at 18:46–19:07. Such a retelling, however, unreasonably sanitizes the witnesses’

testimony and, more importantly, would likely lead the jury to question the credibility of witnesses

who would be unable to explain precisely how they observed Peete allegedly possessing a weapon

or whether they were sure the firearm was even real. See Gibbs, 797 F.3d at 424 (noting that the

defendant was not entitled to a sanitized description of the events underlying the charged conduct);

see also Old Chief, 519 U.S. at 188 (explaining that jurors may inappropriately draw negative

inferences against a party that is unable to provide context for important evidence).


                                                11
No. 18-6038, United States v. Peete


       Moreover, evidence is not rendered extrinsic simply because there is conceivably a way to

tell a story without that evidence. Notably, in other possession cases, this court has permitted

evidence of otherwise uncharged conduct even when that evidence could have been removed. See,

e.g., United States v. Marrero, 651 F.3d 453, 470–71 (6th Cir. 2011) (affirming admission of

evidence that the defendant fought with the police and attempted to flee because the evidence was

intrinsic to the charged conduct––possession of drugs); Till, 434 F.3d at 884 (concluding that

evidence that drugs were found on the defendant after he was booked at the police station was res

gestae to the crime charged––possession of a firearm––because the drug possession made it more

likely that the defendant possessed the firearm to protect the drugs). Given all of the considerations

discussed above, and mindful of the district court’s discretion on evidentiary issues, we

nonetheless conclude that the district court abused its discretion when it summarily concluded that

evidence of the shooting was not res gestae.4

       W-3’s and W-7’s expected testimony about statements that Peete allegedly made in

reference to the shooting and assault is also properly categorized as res gestae. In response to W-

3’s statement that W-4 had been acting like a fool, Peete stated: “Tell ‘em I’ll get every one

of them bitches.” R. 45 (Gov’t Opp’n at 3–4) (Page ID #211–12). Peete also later told W-3 that

he “was going to ‘kill that pussy,’” in reference to W-1’s boyfriend, “but that the gun had jammed.”

Id. at 4 (Page ID #212). Finally, in reference to the .38 caliber revolver that Peete left at W-7’s

house, Peete allegedly explained to W-7 “that he had gotten into an altercation with a guy [and]



       4
           The admissibility of such evidence under Rule 403 will be discussed below.


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No. 18-6038, United States v. Peete


that he shot the guy.” Id. at 5 (Page ID #213). Such evidence certainly “arises” from the charged

conduct and is “directly probative” of the charged offense, Hardy, 228 F.3d at 748, as Peete’s

statements directly relate to the altercation and, indeed, describe in detail Peete’s admitted

possession of the firearm. Moreover, we have implicitly approved of the admission of a co-

defendant’s statements relating to a previous criminal event as res gestae. See United States v.

Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995) (concluding that testimony from a co-defendant’s cell-

mate that the co-defendant had made incriminating statements about a past drug conspiracy

involving the defendant was admissible res gestae to prove the past drug conspiracy); cf. Gibbs,

797 F.3d at 423–24 (concluding that evidence about a subsequent shooting was not intrinsic

evidence to prove the defendant previously possessed a firearm on a separate occasion because the

defendant’s possession was already completed and the subsequent shooting was a distinct event

that was not part of the “story”).5

       As for the timing of Peete’s statements, Peete’s conversation with W-3 occurred either on

October 28, 2013 or soon thereafter, and Peete gave W-7 the .38 revolver in “mid- to late October”

and spoke with him about the shooting approximately one week later. See R. 45 (Gov’t Opp’n at

4–5) (Page ID #212–13). This evidence is sufficiently close in time to constitute “intrinsic”

evidence under Hardy, 228 F.3d at 749. Furthermore, the same credibility concerns noted above


       5
         Unlike the defendant in Gibbs, Peete’s statements to W-3 and W-7 do not concern a
separate and distinct event. Rather, because they directly relate to (and, indeed, describe) the
altercation on October 28, 2013, they are reasonably part of the “story” underlying the charged
conduct. Cf. Brown, 888 F.3d at 838 (suggesting that although a victim’s statements about the
defendant’s past domestic violence were not res gestae, the victim’s statements about the specific
domestic assault underlying the defendant’s illegal firearm possession might be).


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No. 18-6038, United States v. Peete


equally apply to W-3’s testimony. If the government were unable to present any testimony about

the shooting from the witnesses, W-3 would presumably either be unable to testify about Peete’s

incriminating statements regarding the altercation or, alternatively, would be required to just

vaguely explain that Peete had admitted to “possessing” the firearm. Although technically a true

statement, such testimony would obscure the context of Peete’s statement and would likely lead

the jury to question W-3’s credibility and personal knowledge of the events underlying his or her

testimony.

       Finally, Peete’s statements to W-3 that he attempted to shoot W-1’s boyfriend, but that the

gun jammed, and Peete’s explanation to W-7 that he had used the gun to shoot another person, is

“directly probative” of the charged offense in Count II (possessing a .38 caliber revolver with an

obliterated serial number). Hardy, 228 F.3d at 749; see also R. 3 (Indictment at 1–2) (Page ID

#5–6); Appellant Br. at 24–25. Specifically, the indictment charges Peete with possessing a .38

caliber revolver with an obliterated serial number “on or about October 28, 2013.” Because Peete

was not in direct possession of the firearm when it was found in W-7’s apartment, in order to

convict Peete on Count II the government must show that the firearm that Peete gave to W-7 in

“mid- to late October” is the same firearm as the one Peete allegedly used during the shooting on

October 28, 2013. Peete’s statements to W-3 and W-7 are “directly probative” of this issue, as

they indicate that (1) the revolver Peete gave W-7 had the same mechanical flaw as the one Peete

described to W-3, and (2) the revolver was involved in the same October 28, 2013 altercation,

during which Peete “shot the guy,” i.e., W-4. R. 45 (Gov’t Opp’n at 3–5) (Page ID #211–13). The

district court, however, failed to address or credit this argument. This failure, as well as all of the


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No. 18-6038, United States v. Peete


factors listed above, illustrate to us that the district court abused its discretion in excluding this

evidence as non-res gestae.

       3. Rule 403 Balancing

       As noted above, even when evidence is properly considered res gestae or “intrinsic,” it may

nonetheless be inadmissible under Rule 403 “if its probative value is substantially outweighed by

a danger of . . . unfair prejudice.” Fed. R. Evid. 403; Churn, 800 F.3d at 779. On review of the

proposed evidence, we conclude that because evidence of the shooting and assault is not “unfairly

prejudicial,” and W-3’s and W-7’s statements are significantly probative of Peete’s knowing

possession of a firearm with an obliterated serial number, the district court abused its discretion in

excluding this evidence under Rule 403.6

       First, evidence that witnesses observed Peete allegedly use the firearm to shoot or assault

two individuals is highly probative of the charged crime of possession, as use of a weapon

necessarily shows possession. See United States v. Flenoid, 415 F.3d 974, 976–77 (8th Cir. 2005)

(concluding that although another witness had observed the defendant with a firearm independent

of a shooting, evidence of the shooting was nonetheless admissible under Rule 403 because

“Flenoid’s use of the firearm to commit murder does not alter its probative value on the crucial

issue of possession”). And while the shooting evidence may be prejudicial to Peete’s case, it is


       6
        Although the district court did not provide any analysis under Rule 403 as to its res gestae
determination, it did examine the admissibility of the shooting and assault evidence under Rule
404(b), which in turn requires the district court to consider the probative and unfairly prejudicial
impact of the proposed evidence. See United States v. Stout, 509 F.3d 796, 799 (6th Cir. 2007).
Consequently, we will review this section of the district court’s order to determine whether the
shooting evidence should have been excluded under Rule 403.


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No. 18-6038, United States v. Peete


not unfairly prejudicial as it does not “tend[] to suggest decision on an improper basis.” United

States v. Houston, 813 F.3d 282, 291 (6th Cir. 2016). Indeed, if a jury were to conclude that Peete

shot W-4 or assaulted W-1’s boyfriend, it would necessarily also determine that Peete possessed

the weapon; Peete’s conviction would not, therefore, be predicated on any improper basis but

rather on his actual possession of the firearm.7 In other words, any damage that the witnesses’

statements may cause Peete’s case “results from the legitimate probative force of the evidence,”

rather than some impermissible purpose under Rule 403. Id.; see also United States v. Talley, 164

F.3d 989, 1000 (6th Cir. 1999) (“[W]e must look at the evidence in the light most favorable to its

proponent, maximizing its probative value and minimizing its prejudicial effect.” (internal

quotation marks omitted)). Finally, even if this evidence was “unfairly prejudicial”––a proposition

Peete himself does not significantly develop––we cannot reasonably say that such prejudice

“substantially outweighed” the probative value of this evidence to Peete’s case. Fed. R. Evid. 403

(emphasis added).




       7
          As the government aptly notes, this reasoning also forecloses the district court’s
conclusion that evidence of the shooting “will likely result in a mini-trial about the identity of the
shooter and confuse the jury because the jury will not ultimately be called on to decide that issue
in reaching a verdict.” R. 54 (Order at 10) (Page ID #247). Even if the witnesses were permitted
to testify only that they observed Peete “possess” a firearm, the jury would still have to determine
whether Peete, or a different individual, was the person who actually possessed the firearm. This
is particularly true since another witness apparently identified someone other than Peete as the
shooter. See R. 45 (Gov’t Opp’n at 3 n.2) (Page ID #211). Having the jury conclude that Peete
was the individual who “possessed” the revolver is not substantively more complicated (or, indeed,
any different) than having the jury conclude that Peete was the individual who shot or assaulted
someone; both require believing evidence that Peete was, in some way or another, in possession
of a firearm on October 28, 2013, during the altercation.


                                                 16
No. 18-6038, United States v. Peete


       Similar reasoning supports admission of Peete’s statements to W-3 and W-7. Additionally,

the significant probative value of this evidence and the government’s need for it further

demonstrates its admissibility under Rule 403. Specifically, along with being highly probative of

Peete’s possession as charged in Count I, evidence of Peete’s statements to W-3 and W-7 is largely

necessary for the government to prove Count II. Indeed, without this evidence the government

would presumably be able to prove Count II only by eliciting testimony from W-7 that in “mid- to

late October,” Peete possessed a .38 revolver with an obliterated serial number. Notably, while

the “[p]robative value and need for the evidence are separate considerations” under Rule 403, both

“weigh in favor of admission.” United States v. Stout, 509 F.3d 796, 800 (6th Cir. 2007); see also

United States v. Whitt, 752 F. App’x 300, 306 (6th Cir. 2018) (noting that the district court

underestimated the value of the evidence in part because the government’s other evidence does

not “necessarily provide[] sufficient evidence for the Government to convict”); id. (concluding

that because “the alternative[ evidence] in this case do[es] not have the same or greater probative

value” as the proffered evidence, the court would re-balance the Rule 403 factors, eventually

determining to admit the evidence). Given the probative value of these statements, the district

court erred in concluding that W-3’s and W-7’s testimony regarding the shooting was inadmissible

under Rule 403.

       Importantly, “[o]ur [Rule 403] holding assumes that the district court will give the jury an

appropriate limiting instruction” regarding this evidence. Whitt, 752 F. App’x at 307. Indeed, the

district court appeared to recognize the necessity of a limiting instruction in its order. R. 54 (Order

at 10) (Page ID #247). And at oral argument, defense counsel conceded that limiting instructions


                                                  17
No. 18-6038, United States v. Peete


are the generally accepted remedy when district courts permit such evidence to be admitted and

that, were this court to conclude that the proffered evidence was admissible, counsel would expect

a limiting instruction be given. Oral Arg. at 22:50—23:24). Due to the possible prejudice caused

by evidence of Peete’s alleged shooting of W-4 and assault of W-1’s boyfriend, we agree,

therefore, that at trial, the district court must appropriately provide a limiting instruction to explain

that the jury may consider evidence of the shooting or assault only to determine whether Peete

knowingly possessed a firearm with an obliterated serial number on October 28, 2013.

B. Gang Affiliation Evidence

        In addition to the evidence of Peete’s alleged involvement in the shooting or assault, the

government also moved to admit evidence of Peete’s gang affiliation with the Disciples both under

Rule 404(b) and as res gestae. The district court disagreed and excluded the evidence under both

theories. R. 54 (Order at 6–9) (Page ID #243–46). Because evidence of Peete’s gang affiliation

was res gestae and admissible to show his motive and opportunity to commit the charged conduct

under Rule 404(b), we reverse.

        1. Res Gestae Determination

        In reviewing the district court’s res gestae ruling, we rely on the same standard of review

and applicable law stated above. See supra Part II.A.1. On appeal, the government contends that

evidence of Peete’s gang affiliation was admissible because it illustrates why Peete was involved

in the October 28, 2013 altercation, explains W-3’s testimony, and shows how various witnesses

knew Peete. Appellant Br. at 29–34. The district court rejected these arguments, reasoning that

(1) the fact that some witnesses are gang members, “rather than simply his friends or associates[,]


                                                   18
No. 18-6038, United States v. Peete


does not directly advance the issue of possession,” and (2) Peete’s gang membership does not

explain his presence at the altercation or his ability to possesses a weapon more readily than a non-

gang member. R. 54 (Order at 6–8) (Page ID #243–45). Neither reason supports exclusion of this

evidence.

       First, evidence of Peete’s gang affiliation, and specifically his status on the Disciples’

security team, serves as a “prelude” to the charged crime and is “directly probative” of Peete’s

alleged possession. Hardy, 228 F.3d at 748. As the government notes, the alleged reason that

Peete was present during the altercation on October 28, 2013 was because another gang member

(W-2) had ordered Peete to assist him as part of Peete’s duties as a security team member. See

R. 45 (Gov’t Opp’n at 2) (Page ID #210) (explaining that members of the security team “protect

fellow Gangster Disciples [and] retaliate against members of rival gangs if necessary”). Peete’s

gang affiliation, therefore, is not a separate, or tangential, aspect of the government’s case; rather,

it is the catalyst for all of the events underlying the charged crime. This case is thus distinguishable

from Brown, where we concluded that evidence of the defendant’s past domestic violence was

“not necessary or integral to telling the story of what occurred in the early morning on December

25, 2015.” 888 F.3d at 838. Unlike the evidence at issue in Brown, evidence of Peete’s gang

affiliation is intrinsic to telling the story of why he was allegedly present during the specific

altercation on October 28, 2013. Indeed, when speaking with W-3, Peete explained his presence

at the altercation in terms of his gang affiliation and his duty toward W-2 generally. See R. 45

(Gov’t Opp’n at 3–4) (Page ID #211–12).




                                                  19
No. 18-6038, United States v. Peete


       In response, Peete contends that the October 28, 2013 altercation was not gang-related but,

instead, was a personal dispute between W-2 and W-1’s boyfriend. Appellee Br. at 8. True, the

government’s proffered evidence indicates that, following the October altercation, the Disciples

determined that W-2 had inappropriately recruited Disciples gang members to assist him in a

personal issue. R. 45 (Gov’t Opp’n at 5) (Page ID #213). However, simply because the Disciples

later determined that the altercation should not have involved gang members does not indicate that,

at the time of the altercation, Peete was responding to W-2’s request in Peete’s personal capacity.

In other words, this evidence is probative to show Peete’s understanding and motive on October

28, 2013; that probative value is not fatally undermined by subsequent acts. This is particularly

true since, as noted above, Peete himself allegedly described the altercation in terms of his

responsibilities as a security team member. Id. at 3–4 (Page ID #211–12).

       Similarly, contrary to the district court’s conclusion, evidence of Peete’s gang affiliation

was “directly probative” of his reason for possessing a firearm on October 28, 2013. While the

general public may also have access to firearms, Peete was a member of the Disciples’ security

team and was therefore required to be armed. R. 45 (Gov’t Opp’n at 2) (Page ID #210).

Additionally, because there will presumably be a dispute at trial as to whether Peete was the

individual holding a firearm during the altercation, see Appellee Br. at 7–8, evidence that (1) Peete

was expected to assist W-2 as a member of the security team, and (2) security team members are

expected to be armed, certainly indicates that Peete, rather than someone else,8 was the individual


       8
        After all, a witness identified someone other than Peete as the alleged shooter. R. 45
(Gov’t Opp’n at 3 n.2) (Page ID #2110.


                                                 20
No. 18-6038, United States v. Peete


seen allegedly shooting W-4 and assaulting W-1’s boyfriend. Notably, we have previously

permitted “intrinsic” evidence of past or contemporaneous bad acts to illustrate how or why a

defendant might be in possession of a firearm. See, e.g., Till, 434 F.3d at 883–84 (evidence of

drug possession showed defendant’s motive for possessing a firearm––to protect drugs found in a

car); United States v. Price, 329 F.3d 903, 904–06 (6th Cir. 2003) (concluding that a certificate

showing defendant’s completion of a gun safety course was “intrinsic” evidence and showed that

the defendant intended to possess the firearms located in his and his wife’s home); United States

v. Pratt, 704 F. App’x 420, 423–24 (6th Cir. 2017) (“Evidence related to Pratt’s drug-trafficking

thus arose from the same events as the felon-in-possession charge, formed an integral part of the

witness testimony in this case, and completed the story of how and why Pratt came into possession

of several of the guns.” (internal quotation marks omitted and alterations incorporated)).

       Finally, evidence of Peete’s gang affiliation “forms an integral part of” W-3’s testimony

and, more specifically, Peete’s own statements regarding his involvement in the altercation in

October 2013. Hardy, 228 F.3d at 748. Similar to evidence of the shooting, Peete’s gang

affiliation is a significant component of W-3’s testimony.       For instance, Peete’s purported

statement to W-3 (“Tell ’em I’ll get every one of them bitches”) is primarily understood in the

context of W-3’s comments regarding Peete’s shooting of W-4. R. 45 (Gov’t Opp’n at 3–4) (Page

ID #211). As the government explained in its opening brief, W-4 was a former member of the

Disciples, thereby providing context for Peete’s comment that he would “get” all of the individuals

involved in the altercation. Appellant Br. at 30. Peete’s statements about his actions during the

shooting (which we have already held are admissible) are also inextricably intertwined with


                                                21
No. 18-6038, United States v. Peete


Peete’s comments about W-2’s decision to involve Disciples members in the altercation, as well

as Peete’s own reasons for participating in the incident. R. 45 (Gov’t Opp’n at 4) (Page ID #212);

see also United States v. Payne-Owens, 845 F.3d 868, 874 (8th Cir. 2017) (concluding that

evidence of the defendant’s gang affiliation was relevant to show the defendant’s motive for

possessing a weapon and to provide context for the defendant’s own statements about his gun

possession). Finally, although witnesses could, theoretically, state that they and Peete were

“friends” or “associates” of Peete’s, this description unnecessarily sanitizes their testimony and

removes the probative context of their true relationship with Peete.

       In sum, given the connection between Peete’s presence at the altercation and his

membership in the Disciples, the probative value of Peete’s status as a security team member, and

the importance of Peete’s gang affiliation to W-3’s testimony, evidence of Peete’s membership in

the Disciples was correctly classified as res gestae or intrinsic evidence. The district court abused

its discretion in finding otherwise.

       2. Admissibility Under Rule 404(b)

       In its final argument on appeal, the government asserts that even if evidence of Peete’s

gang affiliation was not “intrinsic” to his alleged possession of a firearm with an obliterated serial

number, the district court abused its discretion by refusing to admit the evidence under Rule

404(b). Appellant Br. at 42–48. Because Peete’s gang affiliation was admissible to show Peete’s

motive and opportunity to possess the firearm at issue, we agree.

       As noted above, Rule 404(b) concerns evidence of the defendant’s “crime, wrong, or other

act” and prohibits using those acts “to prove a person’s character in order to show that on a


                                                 22
No. 18-6038, United States v. Peete


particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b). Thus,

admissibility under Rule 404(b) “requires (1) use of evidence for a proper purpose (that is, other

than as character or propensity evidence), (2) relevance, (3) that the evidence not be substantially

more unfairly prejudicial than probative pursuant to Rule 403, and (4) that the court give a limiting

instruction, if requested.” Stout, 509 F.3d at 799. “In determining the admissibility of bad acts

evidence under Rule 404(b), a trial judge is accorded broad discretion.” Id. (internal quotation

marks omitted).

       With respect to the proper standard of review for Rule 404(b) determinations, we have

previously recognized our own internal split regarding the applicable standard. See Gibbs, 797

F.3d at 421 n.2. While many panels have applied a blanket “abuse of discretion” standard to all

evidentiary issues, id., other panels have recognized the legal and discretionary aspects of Rule

404(b) review, id. at 421. Under the reasoning of the latter line of cases, we first “review for clear

error whether there is a sufficient factual basis for the occurrence of the ‘bad act’ that is being

proffered as evidence.” Id. at 422. Next, “we determine de novo whether the evidence was

proffered for an admissible purpose. Third, we review for an abuse of discretion whether the

probative value of the proffered evidence is substantially outweighed by any undue prejudice that

will result from its admittance.” Id. (citation omitted). We will examine Peete’s case under this

more nuanced standard.

       As an initial matter, Peete did not challenge the sufficiency of the evidence showing that

he was a member of the Disciples, either before the district court or this court. See R. 54 (Order

at 8) (Page ID #245); Appellee Br. at 7–8 (only arguing that the government has not produced


                                                 23
No. 18-6038, United States v. Peete


sufficient evidence that Peete was the shooter). Thus, we turn to the question of whether, under

de novo review, the district court erred in concluding that evidence of Peete’s gang affiliation was

not admissible for a proper purpose.

       The government first asserts that “Peete’s position on the Gangster Disciples security team

required him to carry a firearm at all times and that he brought the gun to the Lee Street

confrontation while carrying out Witness 2’s order to help hunt down Witness 1’s boyfriend.”

Appellant Br. at 43. Such evidence, the government contends, illustrates Peete’s motive and

explains why Peete may have wanted to possess a weapon on October 28, 2013. Id. In reviewing

this evidence, the district court concluded that because Peete’s motive was not an element of the

charged crime, it was not probative of an issue before the jury. R. 54 (Order at 8) (Page ID #245).

However, evidence of motive is admissible under Rule 404(b) even if a particular mental state is

not an “element” of the crime charged. See United States v. Jobson, 102 F.3d 214, 221 (6th Cir.

1996) (considering the defendant’s motive to possess a firearm).

       Furthermore, as the government correctly notes, Peete was allegedly present during the

October 28, 2013 altercation in order to fulfill his duties as a security team member (duties which

included being armed). Thus, Peete’s gang membership is clearly probative of his motive to

possess a firearm on the particular day described in the indictment. See United States v. Woodley,

727 F. App’x 136, 139–40 (6th Cir. 2018) (concluding that evidence of the defendant’s gang

affiliation explained his motive for shooting a witness, thereby illustrating that defendant had

illegally possessed a firearm); see also United States v. Butler, 71 F.3d 243, 251 (7th Cir. 1995)

(noting that “the fact that Butler held a position as a gang security guard does make it more


                                                24
No. 18-6038, United States v. Peete


probable that Butler possessed the gun and was aware he possessed it”). And because Peete’s

motive to possess a firearm is tied to his particular role within the Disciples, rather than his

membership in a gang generally, evidence of Peete’s gang affiliation is even more probative than

it might otherwise be. See United States v. Gordon, 496 F. App’x 579, 583 (6th Cir. 2012)

(concluding that “because [the defendant] belonged to a violent gang that preferred small,

concealable weapons,” the defendant’s gang affiliation illustrated his motive to possess such a

firearm). Finally, because Peete’s involvement in the shooting was at the direction of W-2 (a

Disciples member), gang evidence explained Peete’s motive for being present during the October

altercation. Indeed, the district court appeared to credit this argument in its order. See R. 54 (Order

at 8) (Page ID #245) (“Defendant’s membership on the security team may explain his motive for

appearing at the altercation on Lee Street with a firearm.”).

       Peete’s gang affiliation is also probative of Peete’s opportunity to possess the weapon and,

specifically, a .38 revolver with an obliterated serial number.9 “Evidence used to establish

opportunity is evidence that shows access to or presence at the scene of the crime or the possession

of distinctive or unusual skills or abilities employed in the commission of the crime charged.”

Jobson, 102 F.3d at 221 (internal quotation marks omitted). Both reasons apply to Peete’s case.

First, as noted above, Peete’s status as a security team member and his responsibility to respond

to W-2’s request clearly illustrates Peete’s “opportunity” to be present during the October 28, 2013



       9
        In examining this issue, the district court again relied on the fact that “opportunity” is not
an element of firearm possession. For the same reasons explained above, this was an incorrect
basis upon which to exclude evidence of Peete’s gang affiliation.


                                                  25
No. 18-6038, United States v. Peete


altercation. Second, Peete’s gang membership is strongly probative of his opportunity to possess

a gun with an obliterated serial number, as charged in Count II. As this court has explained, a

defendant’s membership in a gang can help to explain his ability to possess a particularly

dangerous firearm. See id. (“Although we recognize that most people not belonging to gangs have

access to firearms, most people do not own or have access to semi-automatic assault rifles.”);

Gordon, 496 F. App’x at 583 (determining that evidence of the defendant’s gang affiliation

explained why he may have had a sawed-off shotgun); see also United States v. Santiago, 344

F. App’x 847, 851 (4th Cir. 2009) (concluding that there was sufficient evidence to show that the

defendant knew the gun he possessed had an obliterated serial number in part because the

defendant was a gang member with a good reason to possess an untraceable weapon). The district

court failed meaningfully to differentiate Peete’s case from Gordon and Jobson; instead, the

district court appeared to focus generally on Peete’s possession of a .38 revolver, rather than his

possession of a .38 revolver with an obliterated serial number. See R. 54 (Order at 8–9). As

explained, when examined in relation to Count II, both Gordon and Jobson support admission of

evidence relating to Peete’s gang affiliation under Rule 404(b).

       3. Rule 403 Balancing

       Having determined that evidence of Peete’s gang affiliation is admissible both as res gestae

and to show his opportunity and motive under Rule 404(b), we now consider whether the probative

value of such evidence is “substantially outweighed by a danger of . . . unfair prejudice.” Fed. R.

Evid. 403. We review the district court’s conclusion on this issue for abuse of discretion. See

Churn, 800 F.3d at 779; Gibbs, 797 F.3d at 422.


                                                26
No. 18-6038, United States v. Peete


       In this case, the district court significantly underestimated the probative value of Peete’s

gang affiliation, particularly as it relates to Peete’s opportunity and motive to possess a firearm

with an obliterated serial number. See Whitt, 752 F. App’x at 306 (noting that the court’s review

of the district court’s Rule 403 analysis “is informed in this case by the district court’s legal

underestimation of the highly probative value” of the evidence). Moreover, while evidence of

Peete’s gang affiliation is certainly prejudicial to his case, given the probative value of this

evidence, we cannot say that the probative value is substantially outweighed by unfair prejudice.

This is particularly true when we assume, as we must, that the district court will provide the jury

with a detailed instruction regarding the proper use of this evidence. See Jobson, 102 F.3d at 222

(“When evidence is admitted under Rule 404(b), the jury must be clearly, simply, and correctly

instructed concerning the narrow and limited purpose for which the evidence may be considered.”

(internal quotation marks omitted)); id. (“After admitting evidence under Rule 404(b), the district

court must carefully identify, in its instructions to the jury, the specific factor named in the rule

that is relied upon to justify admission of the other acts evidence, explain why that factor is

material, and warn the jurors against using the evidence to draw the inferences expressly forbidden

in the first sentence of Rule 404(b).” (internal quotation marks omitted)). Considering all of the

factors discussed above, the district court abused its discretion when it excluded evidence of

Peete’s gang affiliation under Rule 403.

       Finally, two notes of caution moving forward. First, our decision today considers only the

evidentiary objections currently raised by the defendant and the district court’s related order. We

recognize that “[t]he trial in this case has still not occurred” and that “[t]rials are uncertain


                                                 27
No. 18-6038, United States v. Peete


creatures.” Stout, 509 F.3d at 803. Thus, the district court is certainly permitted to reassess the

admissibility of this evidence in light of circumstances that arise at trial.

        Second, much of the probative value of Peete’s gang affiliation is predicated on certain

realities or beliefs concerning gang members, namely that gang members (rather than other

criminals or members of the public) are more likely to possess firearms with obliterated serial

numbers. Similarly, Peete’s membership on the security team is probative of his motive and

opportunity only to the extent that the jury is informed about the inner-workings of the Disciples.

It may be that, based on their own observations of the Disciples’ actions, a fact witness (or

witnesses) can testify to the inner-workings of the Disciples. But if not, and to the extent the

government instead seeks to make arguments regarding general aspects or realities of gang

members, those issues may require more specific information provided by expert witnesses. See

United States v. Rios, 830 F.3d 403, 413 (6th Cir. 2016) (explaining that law-enforcement expert

testimony is usually relevant when it involves “evidence regarding the inner-workings of

organized crime”). Accordingly, we do not fully agree with the government’s contention that

expert testimony is categorically unnecessary in Peete’s case. See Oral Arg. at 34:36–35:55. Of

course, these issues must be taken up first, if at all, by the district court, with the benefit of the

record evidence before it. See Rios, 830 F.3d at 413 (noting that it is within the district court’s

discretion whether to admit expert testimony). Should such expert evidence be deemed necessary

by the district court, the government is reminded of the importance to separate an officer’s factual

testimony from his or her expert testimony. See id. at 414–16 (explaining the potential problems

with permitting one witness to provide both fact and expert testimony and noting that “the district


                                                  28
No. 18-6038, United States v. Peete


court and the prosecutor [should] take care to assure that the jury is informed of the dual roles”

(internal quotation marks omitted)).10

                                         III. CONCLUSION

       For the reasons set forth above, we REVERSE the district court and REMAND the case

to the district court for further proceedings consistent with this opinion.




       10
         This direction is, of course, predicated on the district court determining that an officer or
witness is properly characterized as an expert under Federal Rule of Evidence 702. See Rios, 830
F.3d at 412–13 (explaining the three-step test for admitting evidence under Rule 702).


                                                 29
