United States v. Patrelle Green-Bowman , 816 F.3d 958 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-2826
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Patrelle Jose Green-Bowman
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa, Waterloo
____________
Submitted: September 25, 2015
Filed: March 2, 2016
____________
Before RILEY, Chief Judge, BRIGHT and GRUENDER, Circuit Judges.
____________
RILEY, Chief Judge.
A jury found Patrelle Green-Bowman guilty of possessing a firearm as a felon
and possessing a firearm not registered to him. The district court1 entered judgment
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
on the verdict and sentenced Green-Bowman to concurrent terms of 78 months in
prison. Green-Bowman appeals his convictions and sentence. We affirm.
I. BACKGROUND
Late in the evening of August 2, 2013, two Waterloo, Iowa police officers on
foot patrol saw a pair of cars with their hoods up in an apartment-building parking lot.
Suspecting car trouble, the officers walked over to see if anyone needed assistance.
They found Green-Bowman sitting in the back seat of one of the cars with the door
open and facing out with his feet on the ground. He was talking on a cell phone.
When one of the officers greeted him, Green-Bowman got out of the car, shut the
door, and walked to the corner of the parking lot, still on the phone. The other people
standing around the front of the car said they did not need any help, so the officer
prepared to leave. As the officer walked back around the car, he shined his flashlight
in the window and saw a shotgun stock on the back seat, next to where Green-
Bowman had been sitting. The shotgun was partly wrapped in a red, white, and blue
Chicago Cubs jacket. Green-Bowman was wearing a red, white, and blue Chicago
Cubs stocking hat. The officer “started to put two and two together.” He alerted his
partner, who went over and handcuffed Green-Bowman.
A grand jury indicted Green-Bowman, charging him with two crimes based on
possessing the shotgun: possession of a firearm and ammunition as a felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and possession of a firearm not
registered to him, in violation of 26 U.S.C. § 5861(d). Green-Bowman pled not guilty
and went to trial. The only question for the jury was whether he knowingly possessed
the shotgun and the shells inside it; he stipulated to the other elements of each crime.
At trial, the government called Clay Gilmer, who had driven the car in which
Green-Bowman was sitting. Gilmer was standing nearby when the officers arrived
and testified he could not remember much. Gilmer previously had testified in some
detail before the grand jury. Gilmer said he did not recall what he said to the grand
-2-
jury. The government showed Gilmer a transcript of his testimony and then asked him
about his grand-jury testimony. When he still denied recalling what he said to the
grand jury, the government read his answers. He denied remembering those
specifically. The jury ultimately found Green-Bowman guilty of both counts, but the
district court vacated the verdict and ordered a new trial, on the ground that Gilmer’s
grand-jury testimony was unfairly prejudicial.
Anticipating the issue might come up again at the second trial, the district court
ruled that if the government called Gilmer and he still claimed not to remember
testifying to the grand jury about Green-Bowman, the government could not introduce
his grand-jury testimony, either to impeach his credibility or as substantive evidence.
The government called Gilmer again anyway. Gilmer answered a series of general
questions and testified about other people who were in the car and the parking lot.
The government then broached the issue of his grand-jury testimony by asking if he
remembered testifying about Green-Bowman having a nickname. Gilmer said he did
not remember. Green-Bowman preemptively objected to the government pursuing the
questioning any further. After a sidebar discussion, the district court allowed the
government to show Gilmer the grand-jury transcript and ask if it refreshed his
memory. When Gilmer said he still did not remember if Green-Bowman had a
nickname, the government moved on to other issues and did not bring up the grand-
jury testimony again.
The government also introduced evidence about an incident in August 2011 that
resulted in Green-Bowman being convicted in Iowa state court for carrying a weapon.
See Iowa Code § 724.4(1). According to the evidence presented at trial, Waterloo
police officers responded to a report of gunshots and came upon Green-Bowman
carrying a backpack. When he spotted the officers, Green-Bowman ducked in the
back door of a nearby bar. The officers drove around to the front, saw Green-
Bowman coming out, and told him to stop. Instead, he ran back into the bar, still
carrying the backpack. One of the officers followed him and found him calmly
-3-
walking through a group of patrons at the bar, backpack-less. The backpack was in
a booth near the front door. There was a handgun inside. Green-Bowman first denied
knowing about the gun, referring only to a BB gun. Then he changed his story and
said someone came up to him on the street and gave him the gun. When the police did
not believe that story either, Green-Bowman admitted the gun belonged to his friend,
who had shot at a group of people who were threatening him and Green-Bowman
shortly before the police arrived. The friend stuck the gun in Green-Bowman’s
backpack as they ran away.
Green-Bowman opposed admission of the 2011 incident evidence. The district
court allowed the evidence but first gave a limiting instruction. The district court
repeated a similar instruction at the end of the trial.
The second jury, like the first, found Green-Bowman guilty of both counts.2
Green-Bowman filed a motion for judgment of acquittal or a new trial, which the
district court denied. The district court then calculated Green-Bowman’s advisory
sentencing range under the United States Sentencing Guidelines (U.S.S.G. or
Guidelines). The district court determined Green-Bowman had an offense level of 22
and a criminal history category of III but, at the government’s request, departed
upward to category IV. The district court then imposed a sentence at the top of the
post-departure range—78 months—on each count, to run concurrently.
Green-Bowman appeals, arguing (1) the evidence about the incident with the
handgun was inadmissible and the government improperly used it to tell the jury he
had a criminal propensity to possess guns, (2) the evidence he possessed the shotgun
was insufficient, (3) the government committed prosecutorial misconduct by asking
2
With respect to the felon-in-possession count, the second jury found Green-
Bowman knowingly possessed the shotgun but did not find he knowingly possessed
the ammunition inside. The first jury was not asked to indicate the basis for its
verdict.
-4-
Gilmer questions it knew he would not answer, and (4) the upward departure was an
abuse of discretion. We have jurisdiction under 28 U.S.C. § 1291.
II. DISCUSSION
A. The Handgun Incident
1. Admissibility
Green-Bowman first argues the district court should not have let the jury hear
about the events leading to his 2011 firearm conviction. We review the district court’s
decision to admit evidence for abuse of discretion. See, e.g., United States v. Halk,
634 F.3d 482, 487 (8th Cir. 2011).
Evidence of past bad acts may be admissible to prove, among other things,
someone knew something or intended a certain result, but not to prove someone has
a bad character or a propensity to act a certain way. See Fed. R. Evid. 404(b). And
like other evidence, it must be relevant and may be excluded if it is unfairly
prejudicial. See Fed. R. Evid. 402, 403. From these rules and related case law, we
have derived a four-part test: “Evidence is admissible under Rule 404(b) 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 in prejudicial effect.” United States v. Strong, 415 F.3d 902, 905 (8th Cir. 2005).
Green-Bowman focuses on the overlap between the second and fourth factors,
contending that because the incident with the handgun was not similar to the facts of
this case, the evidence had minimal probative value, which was outweighed by unfair
prejudice.3
3
Though we ultimately reject Green-Bowman’s challenge, we reiterate the need
for “careful analysis” of how evidence of past bad acts is relevant to a particular issue
at trial and whether it is unfairly prejudicial, see United States v. Turner, 781 F.3d
374, 391 (8th Cir. 2015). As we have recently emphasized, the government “[s]imply
asserting—without explanation—that [a past] conviction is relevant to a material issue
such as intent or knowledge is not enough to establish its admissibility.” Id. at 390
-5-
Green-Bowman identifies several differences between what he did in 2011 and
what he was charged with in this case: in 2011 he had a handgun, not a shotgun; he
had just received the gun from someone else; he first tried to flee the police; and he
actually carried the gun, so the prosecution did not depend on a theory of constructive
possession. All true, but not significant enough and not complete. Past bad acts “need
not be duplicates” of the charged crime for evidence of them to be admissible under
Rule 404(b). United States v. Burkett, 821 F.2d 1306, 1309 (8th Cir. 1987). They
need only be “sufficiently similar,” and in such a way, to support whatever
permissible inference makes the evidence relevant.4 Id.; cf. United States v. Cook,
454 F.3d 938, 941 (8th Cir. 2006) (upholding the exclusion of evidence of past
convictions for crimes that superficially resembled the charged offense but were
“functionally dissimilar”).
The evidence about the 2011 handgun incident was relevant to prove Green-
Bowman knew about the shotgun next to him in the car and intended to possess it.
See United States v. Walker, 470 F.3d 1271, 1274-75 (8th Cir. 2006); Strong, 415
F.3d at 905-06; cf. United States v. Cassell, 292 F.3d 788, 794-95 (D.C. Cir. 2002)
(“A prior history of intentionally possessing guns . . . is certainly relevant to the
determination of whether a person in proximity to such a [gun] on the occasion under
litigation knew what he was possessing and intended to do so. If [the 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.”). Though Green-Bowman did not specifically deny knowing about the
shotgun, the government still needed to prove knowledge because Green-Bowman’s
(warning against “passive treatment of the Federal Rules of Evidence”).
4
Green-Bowman asserts the handgun incident is not automatically similar
enough for admission under Rule 404(b) just because it also concerned possession of
a gun. We need not consider that broad proposition, because, as explained hereafter,
gun possession was in fact not the sole relevant similarity here.
-6-
general not-guilty plea put every element of the charged offenses at issue. See
Walker, 470 F.3d at 1274. Further, without any direct evidence of Green-Bowman
actually holding the shotgun, the government presented the jury with a theory of
constructive possession, and knowledge is often a key element of constructive
possession. See United States v. Johnson, 18 F.3d 641, 647 (8th Cir. 1994). So
proving possession itself also depended, in part, on proving Green-Bowman knew the
shotgun was in the car.
This evidence also helped prove Green-Bowman knew about the shotgun
because it made an innocent explanation for his behavior less likely. See Fed. R.
Evid. 401(a). Consider what happened in the parking lot: Green-Bowman was sitting
in a car, talking on the phone. A police officer initiated a conversation with him.
Without responding, Green-Bowman got up and walked away. Standing alone, a
natural interpretation of that reaction might be that his walking away from the police
had nothing to do with the shotgun in the car, he just did not want to interrupt his call.
The evidence about the 2011 handgun incident, however, showed that on another
recent occasion, when Green-Bowman had a gun he was not supposed to possess and
was approached by the police with no way to get away, he did something similar—he
distanced himself from the gun while acting like he was unaware of it. Knowing that
historical context, a jury might see Green-Bowman’s behavior in the parking lot
differently. Maybe he walked away not so he could talk in peace, but so the police
would not find him next to the shotgun in the car.
The differences Green-Bowman emphasizes, by contrast, go to details—the
type of gun, where it came from, what Green-Bowman was doing with the weapon,
what happened before and after the interaction in which the police found it—that play
no significant role in the rationale making the evidence relevant. Those differences
do not make the evidence inadmissible. Neither do they undermine its probative
value. The handgun incident was similar enough to the facts of this case for the
-7-
evidence to be relevant to Green-Bowman’s mental state, a material element the
government needed to prove. See Burkett, 821 F.2d at 1309.
As for the other side of the scale under Rule 403, Green-Bowman does not
identify what unfair prejudice allegedly outweighed the probative value of the
evidence. Presumably, the prejudice was the risk of the jury improperly reasoning that
possessing a gun before showed Green-Bowman had a bad character and therefore
was more likely to have a gun again. But the district court twice instructed the jury
it was not allowed to draw such an inference,5 and “the presence of a limiting
instruction diminishes the danger of any unfair prejudice from the admission of other
acts,” United States v. Franklin, 250 F.3d 653, 659 (8th Cir. 2001).
We “normally defer” to the district court’s judgment in balancing between the
probative value of evidence and the risk it poses of unfair prejudice. Id. We see no
reason to overturn its conclusion here.
2. Closing Argument
Green-Bowman also challenges how the government used the evidence of the
2011 handgun incident in its closing argument, which he claims improperly suggested
he possessed the shotgun because of his criminal propensities. Because he raised his
5
The district court’s first instruction was:
Remember, even if you find that the defendant may have committed a
similar act in the past, this is not evidence that he committed such an act
in this case. You may not convict a person simply because you believe
he may have committed similar acts in the past. The defendant is on trial
only for the crimes charged, and you may consider the evidence of prior
acts only on the issue of intent, knowledge, and . . . absence of mistake
or accident.
The second was virtually identical.
-8-
challenge in timely objections at trial, he is entitled to relief if the government acted
improperly and “deprive[d] him of a fair trial.” United States v. Thomas, 664 F.3d
217, 224 (8th Cir. 2011). The district court, for its part, overruled his objections and
denied his motion for a new trial. We afford trial courts “broad discretion in
controlling closing arguments” and reverse “only on a showing of abuse of
discretion.” United States v. Eldridge, 984 F.2d 943, 946 (8th Cir. 1993).
Green-Bowman does not identify any specific instances of the government
telling the jury he was guilty because he had a bad character or criminal propensities.
Instead, he reasons the government implicitly invited that inference by reciting the
facts of the handgun incident at length and repeatedly even though, he claims, it had
at most minimal probative value. We disagree.
At the outset, we note, in addition to the district court’s two limiting
instructions, the government expressly told the jury to “consider th[e] evidence as to
the knowledge, the intent, and the absence of mistake or fact [sic] as the judge
instructed you” and explained the permissible inference it hoped the jury would draw
from it. As discussed above, the 2011 incident evidence went to prove Green-
Bowman knew about the shotgun in the car. The government needed to prove
knowledge both because of Green-Bowman’s general not-guilty plea and because it
was a key element in proving Green-Bowman constructively possessed the shotgun.
The logic by which the evidence about the 2011 handgun incident was relevant to
Green-Bowman’s knowledge depended in part on certain specific facts about what
happened. That is, this was not a trial where the relevant past-bad-act evidence was
simply the bare fact of a conviction, in which case there might be little to be gained
(permissibly) from reminding the jury what the defendant did to earn the conviction.
Cf. United States v. Burk, 912 F.2d 225, 229 (8th Cir. 1990). To the contrary, here
the government had good reason to take the time to compare the details of the two
incidents thoroughly to highlight the similarities supporting an analogy and inference
about what was going through Green-Bowman’s head, notwithstanding the dissent’s
-9-
suggestion the government’s comparison took too long.6 Cf. United States v.
Shoffner, 71 F.3d 1429, 1433 (8th Cir. 1995) (concluding unfair prejudice did not
outweigh probative value of admitting details of a defendant’s prior crime).
In sum, the government did not expressly argue Green-Bowman was guilty
because he was the sort of person who would be likely to have a gun, and we decline
to view its description of the 2011 handgun incident as an attempt to do so
surreptitiously. The district court was within its broad discretion to allow the
government’s closing argument.
B. Sufficiency of the Evidence
The next question presented is whether the evidence was sufficient to prove
Green-Bowman possessed the shotgun. We review the sufficiency of the evidence de
novo. See, e.g., United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002). The
evidence was sufficient if a reasonable jury could have found Green-Bowman guilty
beyond a reasonable doubt. See id. We view the evidence in the light most favorable
to the guilty verdict and draw all reasonable inferences supporting the verdict. See id.Green-Bowman’s argument focuses on the several other people who had
recently been in the car and were still nearby when the police found the shotgun. He
6
The dissent also sees impropriety in the government arguing, as the dissent
puts it, “Green-Bowman’s actions proved he committed the instant offense because
Green-Bowman acted similarly in the past.” Post at 18. But an argument does not go
to propensity simply because the argument compares someone’s actions at two
different times. It is precisely the similarity between Green-Bowman’s actions that
meant evidence concerning what happened in 2011 supported an inference about what
he knew—that is, why he acted the way he did—in 2013 and thus was, as the dissent
agrees, admissible. Armed with the court’s jury instruction, defense counsel likewise
may take time to explain thoroughly to the jury how such evidence does not show
propensity and should not be considered as such.
-10-
asserts no reasonable jury could have found him guilty without additional “affirmative
proof” he, rather than someone else, possessed the shotgun.
Green-Bowman is mistaken. The government did not need to prove other
people did not possess the shotgun. As we have repeatedly explained, and as the
district court instructed the jury, “more than one person may possess a thing.”
Johnson, 18 F.3d at 647; accord, e.g., United States v. Maxwell, 363 F.3d 815, 818
(8th Cir. 2004). And that remains true even though the government focused on Green-
Bowman and did not tell the jury a story about someone else possessing the gun along
with him. Cf. Johnson, 18 F.3d at 648. Without evidence someone else had exclusive
control over the shotgun, the presence of other people who might have possessed the
weapon does not prove Green-Bowman did not also possess it or otherwise undermine
the evidence of possession. See id. at 648 n.14 (“That the evidence would permit a
conclusion that [the defendant’s] control over [an item] was not exclusive, i.e., he
shared it with [someone else], is immaterial. . . . [C]onstructive possession can be
joint.”).
The evidence was sufficient for a reasonable jury to find Green-Bowman
possessed the shotgun. Constructive possession can be established by the combination
of knowing about something and having control over it. Id. at 647. Green-Bowman
does not challenge the sufficiency of the evidence he knew the shotgun was next to
him in the car. As to control, the question is whether the evidence showed “some
nexus” between Green-Bowman and the shotgun; just sitting close to it, by itself,
probably would not be enough. Id. The nexus in this case includes, most importantly,
the shotgun being partially wrapped in what Green-Bowman admits was his jacket,
with the shotgun’s stock exposed. Cf. id. at 648 (upholding a finding that a defendant
possessed a gun that was protruding from a bag of his clothes on the seat behind him
in a car). A reasonable factfinder could infer from that fact, combined with the
position of the shotgun, that Green-Bowman not only was aware of the shotgun, but
-11-
had control over it, and thus constructively possessed it. The evidence was sufficient
to support the verdict.
C. Examining Gilmer
Green-Bowman claims the government committed misconduct while examining
Gilmer at the second trial. Green-Bowman maintains the government subverted the
rules generally excluding hearsay evidence, see Fed. R. Evid. 802, by calling Gilmer
and asking him questions it did not expect him to answer.7 His apparent concern is
the government could have asked Gilmer if he saw Green-Bowman with the shotgun
and, if Gilmer again said no, as everyone expected he would, could have impeached
Gilmer with his grand-jury testimony. That would have risked the jury impermissibly
treating Gilmer’s out-of-court statements as substantive evidence of Green-Bowman’s
guilt, just as in the first trial. See United States v. Demery, 674 F.3d 776, 780 (8th
Cir. 2011).
Regardless of whether the government’s conduct would have been improper
had things played out the way Green-Bowman feared, but see United States v. Logan,
121 F.3d 1172, 1175 (8th Cir. 1997) (“[T]he government’s motive in eliciting
testimony is irrelevant.”), his fears never actually materialized. The government did
not impeach Gilmer with his grand-jury testimony, so the jury never heard anything
it was not supposed to hear. Because the government used an innocuous question to
test Gilmer’s willingness to repeat his grand-jury testimony, the jury could not infer
anything from the exchange other than Gilmer might have previously mentioned
Green-Bowman having a nickname. That did not make the government’s conduct
improper or unfairly prejudicial.
7
Green-Bowman disclaims the argument, suggested in his initial brief, that
calling Gilmer to testify again was itself improper, so we do not address it.
-12-
We are also unpersuaded by Green-Bowman’s suggestion of impropriety
stemming from the possibility that Gilmer’s recalcitrance might “sully the jury’s
impression of” Green-Bowman. Nor does Green-Bowman’s assertion that the
government waited until after the second trial to indict Gilmer for perjury change our
conclusion. That the alleged delay in punishing Gilmer might have emboldened him
not to cooperate at the second trial is irrelevant, because the government was not
allowed to use his noncooperation as an opportunity to let the jury hear his potentially
prejudicial grand-jury testimony. We find no support for Green-Bowman’s
suggestion that a discretionary charging decision in a separate case could be
misconduct simply because Green-Bowman otherwise might have been able to
impeach Gilmer with a pending perjury charge.8
D. Upward Departure
Finally, Green-Bowman challenges his sentence. The district court increased
his criminal history category by one level under U.S.S.G. § 4A1.3(a)(1), which
permits an upward departure “[i]f reliable information indicates that the defendant’s
criminal history category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other
crimes.” Because Green-Bowman objected to the upward departure, we review for
abuse of discretion. See, e.g., United States v. White Twin, 682 F.3d 773, 775 (8th
Cir. 2012).
The district court gave two main reasons for concluding the Guidelines
calculations understated the seriousness of Green-Bowman’s criminal history. First,
several of his convictions were unscored despite, in the district court’s evaluation,
8
Because we resolve the issue of Gilmer’s perjury indictment without resort to
the court filings and proceedings Green-Bowman provided in his addendum and
referred to in his brief—and, anyway, we could take judicial notice of such materials
if they were directly related—we deny the government’s motion to strike. See Zerger
& Mauer LLP v. City of Greenwood, 751 F.3d 928, 935 n.7 (8th Cir. 2014).
-13-
involving serious misconduct. Green-Bowman protests that the lack of criminal
history points for those convictions was offset by the points he received for other
convictions, including what he characterizes as minor shoplifting offenses. Yet he did
not dispute the scores for those offenses. Nor does he explain how they would
otherwise overstate the seriousness of his criminal history.
Second, the scores for several of Green-Bowman’s convictions were based on
reduced sentences imposed after an Iowa court “reconsidered” his original sentences.
Green-Bowman proposes the district court should have ignored the longer original
sentences because the reconsidered sentences best reflected the sentencing court’s
judgment about the appropriate sentence. The district court could consider “the
historical facts of” Green-Bowman’s criminal behavior, not just the sentences
eventually imposed and served, United States v. Senior, 935 F.2d 149, 151 (8th Cir.
1991), and it is not implausible that the original sentences shed additional light on the
severity of his conduct. The district court’s overall assessment of the seriousness of
Green-Bowman’s criminal history was reasonable.
The district court also found the Guidelines understated the likelihood Green-
Bowman would commit other crimes, based on his “nonstop criminal history for about
a three-year period” and failure to respond to correctional supervision in the past. See
U.S.S.G. § 4A1.3(a)(1). As we have often recognized, “[a] defendant’s recidivism is
a reasonable basis for applying an upward departure.” United States v. Gonzalez, 573
F.3d 600, 606 (8th Cir. 2009).
The district court’s decision to depart upward was based on a reasonable
consideration of appropriate factors. It was not an abuse of discretion.
-14-
III. CONCLUSION
The evidence was admissible and sufficient to support Green-Bowman’s
conviction, the government did not commit misconduct at trial, and the sentence was
not an abuse of discretion. We affirm.
BRIGHT, Circuit Judge, dissenting.
I respectfully dissent from the majority’s conclusion that the district court did
not abuse its discretion in denying Patrelle Jose Green-Bowman’s (Green-Bowman)
motion for a new trial on the basis of prosecutorial misconduct. In my reading of the
record, the prosecutor used Green-Bowman’s 2011 firearm conviction to improperly
infer Green-Bowman had a propensity to commit the instant offense. The
prosecutor’s use was not only improper, but highly prejudicial. Thus, I would grant
a new trial to Green-Bowman.
We review the denial of a motion for a new trial on the basis of prosecutorial
misconduct for abuse of discretion. United States v. Barrera, 628 F.3d 1004, 1007
(8th Cir. 2011). “ ‘[P]rosecutorial misconduct during closing argument may be
grounds for reversal,” but the district court has “broad discretion in controlling closing
arguments.’ ” United States v. Ziesman, 409 F.3d 941, 954 (8th Cir. 2005) (quoting
United States v. Beckman, 222 F.3d 512, 526 (8th Cir. 2000)). To obtain a reversal
for prosecutorial misconduct, Green-Bowman must show that (1) the prosecutor’s
remarks were improper, and (2) the prosecutor’s remarks prejudiced Green-Bowman’s
rights in obtaining a fair trial. United States v. Robinson, 439 F.3d 777, 780 (8th Cir.
2006). If the prosecutor’s comments were improper, we examine prejudice by
considering “(1) the cumulative effect of the misconduct, (2) the strength of the
properly admitted evidence of the defendant’s guilt, and (3) any curative actions taken
by the trial court.” United States v. Crawford, 523 F.3d 858, 861 (8th Cir. 2008)
(quoting United States v. Yu, 484 F.3d 979, 986 (8th Cir. 2007)).
-15-
Here, the district court ruled the 2011 firearm conviction admissible under Rule
404(b). The district court reasoned the 2011 firearm conviction was relevant to show
“knowledge” of the presence of the firearm. Although the district court properly
admitted the 2011 firearm conviction for that purpose, the prosecutor’s subsequent
misuse of the 2011 firearm conviction during closing argument warrants reversal.
The “[a]dmission of Rule 404(b) evidence . . . does not grant the government
free rein to use that evidence however it wishes.” United States v. Richards, 719 F.3d
746, 763-64 (7th Cir. 2013). Improperly using Rule 404(b) evidence includes
“ ‘arguing to a jury [at closing arguments] that it should convict a defendant based on
the defendant’s propensity to commit a crime.’ ” Id. at 764 (quoting United States v.
Simpson, 479 F.3d 492, 503 (7th Cir. 2007)); see also United States v. Brown, 327
F.3d 867, 870-72 (9th Cir. 2003) (reversing for improper use of Rule 404(b) evidence
during closing argument). An improper propensity argument need not be blatant and
includes “placing [a] propensity inference at the center of [a prosecutor’s] closing
argument.” Richards, 719 F.3d at 765 (emphasis added); see also United States v.
Himelwright, 42 F.3d 777, 786 (3d Cir. 1994) (noting prejudice can occur when a
prosecutor places a “disproportionate emphasis” on Rule 404(b) evidence during
closing argument).
In this case, the prosecutor improperly used Green-Bowman’s 2011 firearm
conviction during closing argument to infer that Green-Bowman had a propensity to
commit the instant offense. The prosecutor did so in several ways. First, the
prosecutor spent approximately 21% of closing argument9 discussing the 2011 firearm
conviction. See Himelwright, 42 F.3d at 786 (discussing the potential prejudice
caused by “disproportionate emphasis”). Second, the prosecutor spent a significant
amount of time paralleling the offenses, asking the jury to draw the improper
9
Measured by number of lines in the Government’s Closing Argument
Transcript, DCD 130 (hereinafter, “Gov’t Closing Arg.”), excluding objections and
statements made outside the presence of the jury.
-16-
inference that Green-Bowman committed the instant offense because he had
committed similar illegal conduct in the past.10
10
Below are a few examples of the prosecutor’s “paralleling”:
• Running from police:
N Instant offense: “He’s sitting in the car, and the officers
walk up . . . . And what’s [Green-Bowman] do? He walks
away.” (Gov’t Closing Arg. 10).
N Prior conviction: “[T]he defendant had a gun in a backpack
. . . and he knew it. He saw the police. And what did he
do? He ran.” (Id. at 11-12).
• Actions when possessing a gun:
N Instant offense: “He’s sitting in the car, and the officers
walk up . . . And what’s he do? He walks away. Not one
word. He walks away. He’s distancing himself from the
items that are illegal in the car that he knows he’s not
supposed to be in possession of.” (Id. at 10).
N Prior offense: “And then remember the testimony that was
read about Officer Zubak, what he saw of the defendant
acting when the defendant knew he was in possession of a
firearm. What did he see when the defendant – or when he
got into that bar, the Bosnian bar? He sees the defendant
calmly trying to mingle with a group of 50- to 60-year-old
Bosnian men. Remember also what the defendant had just
done, as he was attempting this mingling activity.” (Id.
at 13).
• Lying to police:
N Instant offense: “When the officer asked him in the
interview about why he was right next to the gun, he lies
and says he wasn’t next to the gun. He’s distancing himself
from the gun, just through words.” (Id. at 11).
N Prior conviction: “He attempted to distance himself from
the gun, and, then, when asked about it in the interview, he
told a lie.” (Id. at 15).
-17-
Lastly, the prosecutor failed to limit his use of the 2011 firearm conviction for
the purpose proffered when the evidence was admitted. See Richards, 719 F.3d at
764.11 As discussed above, the district court admitted Green-Bowman’s prior firearm
conviction under Rule 404(b) to show “knowledge of the presence of the firearm.”
See United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (emphasis added).
But at closing arguments, the prosecutor did not use the conviction solely for this
proffered purpose, stating in particular:
Recall that the defendant had this conviction prior to August 2nd of
2013. It shows what he knows, what happens: When I have a gun, when
I run, and when I eventually admit that I had the gun, I get convicted of
carrying a weapon. So what did he do here? He walks away. He lies
about even being in the car, an obvious lie. He walks away
nonchalantly. The defendant knew – based on the context of what he
had done previously and what happened the time previously, it shows
what he knew on that day and why he acted the way he did. This isn’t
an accident.
(Gov’t Closing Arg. 16 (emphasis added)). The government went well beyond using
the conviction to show “knowledge of the presence of the firearm” and, instead, used
the prior conviction as evidence Green-Bowman’s actions proved he committed the
instant offense because Green-Bowman acted similarly in the past. (See also id. at 14
(prosecutor admitting to the district court that he was using defendant’s prior
11
The majority opines it was proper for the prosecutor to “take the time to
compare the details of the two incidents thoroughly to highlight the similarities
supporting an analogy and inference about what was going through Green-Bowman’s
head.” (Maj. Op. 9). In my view, the prosecutor went beyond simply highlighting the
similarities between the cases. Instead, the prosecutor used the prior conviction to
show Green-Bowman “acted” in a certain way in the past and, thus, based on his
conduct in this case must have committed the instant offense. See Richards, 719 F.3d
at 765 (noting the inference drawn from placing Rule 404(b) evidence “at the center
of [the prosecutor’s] closing argument” was that the defendant was a drug dealer in
California “so he must have dealt” in the instant offense).
-18-
conviction because Green-Bowman’s “behavior on the prior occasion demonstrate[d]
the knowledge that [Green-Bowman] had on this occasion, why he acted the way he
did, why he answered the questions the way he did, why he walked away”)).
Because the prosecutor improperly used Green-Bowman’s prior conviction to
show propensity, Green-Bowman must show prejudice. Robinson, 439 F.3d at 780.
Of particular note, while sufficient to sustain the conviction, the government’s
properly admitted evidence was weak.12 See United States v. Splain, 545 F.2d 1131,
1135 (8th Cir. 1976) (“[I]f the evidence of guilt is weak or tenuous, the existence of
prejudice is more easily assumed.”); see also United States v. Holmes, 413 F.3d 770,
776-77 (8th Cir. 2005) (holding, in part, that a defendant should be granted a new trial
because “the government’s case was less than overwhelming”). Further, while the
district court did provide a limiting instruction as part of the jury instructions,13 the
district court did not sustain Green-Bowman’s repeated objections to the
government’s use of the 2011 firearm conviction, or provide a curative instruction
during the government’s closing argument. See United States v. Conrad, 320 F.3d
851, 856-57 (8th Cir. 2003) (“We do not believe the standard . . . instructions have a
12
As alluded to by the majority, the government only presented one piece of
evidence to show “some nexus” between Green-Bowman and the firearm other than
Green-Bowman sitting in the back of the vehicle, facing out, with his feet on the
ground—Green-Bowman’s jacket partially wrapped around the firearm. (Maj. Op.
11-12).
13
The district court advised the jury:
Remember, even if you find that the defendant may have committed a
similar act in the past, this is not evidence that he committed such an act
in this case. You may not convict a person simply because you believe
he may have committed similar acts in the past. The defendant is on trial
only for the crimes charged, and you may consider the evidence of prior
acts only on the issues of intent, knowledge, and absence of mistake or
accident.
-19-
significant curative effect on the statements made by the prosecutor.”); Brown, 327
F.3d at 871-72 (holding the district court’s curative instructions both during and after
closing argument were ineffective because the instruction during closing argument
“did not tell the jury to reject the prosecutor’s implication that [the defendant]
harbored a propensity to cheat his business associates”). Therefore, in my view, there
exists sufficient evidence of prejudice to warrant reversal.
For the reasons stated above, I would vacate Green-Bowman’s conviction and
remand this matter for a new trial.
______________________________
-20-