Prior 922(g) Conviction Inadmissible Under 404(b) In Later FIP Trial Where Only Question Was Actual Possession, Not Constructive Possession

United States v. Jones, Nos. 06-30535, 06-30563 (5th Cir. Apr. 13, 2007) (Garwood, Wiener, Clement)

Here's a good 404(b) opinion that you'll probably want to keep handy in your trial notebook.

Jones was on trial for being a felon-in-possession. The district court allowed the government to introduce evidence of Jones's prior FIP conviction on the grounds that it was relelvant to knowing and intentional possession of the firearm and to rebut any claim of accidental or mistaken possession. Jones was convicted, and he appealed.

The court of appeals held that it was error to admit the prior FIP conviction as 404(b) evidence because the evidence at trial would not have supported a finding of construtive possession; the jury could only have found Jones guilty if it found that he actually possessed the firearm. The difference between constructive and actual possession was critical, because of the differing elements:

In constructive possession cases, knowledge and intent are frequently at issue. A defendant will often deny any knowledge of a thing found in an area that is under his control (e.g, a residence, an automobile) or claim that it was placed there by accident or mistake. The government then must offer evidence to prove that the defendant (1) knew that the thing was present, and (2) intended to exercised dominion or control over it.

In contrast, the only knowledge that the government must show in an actual possession prosecution is the defendant’s awareness that (1) he physically possesses the thing, and (2) the thing he possesses is contraband. Intent is not an element of actual possession under § 922. More to the point in this firearms case, once the government has shown that the defendant had a firearm under his immediate physical control, any contention that he did not know the nature of what he possessed is effectively precluded.

Since intent was not an issue, Jones' prior FIP conviction was not relevant to any legitimate 404(b) purpose. And since the evidence didn't pass the first step of the Beechum 404(b) analysis, there was no need to move on to the second step and do the 403 balancing. Because the district court abused its discretion in admitting the evidence of the prior conviction, the court of appeals vacated Jones' conviction.

This opinion is tied pretty closely to the elements of actual and constructive possession under the FIP statute, but you may be able to use the reasoning in other contexts. And it's also useful for its extended discussion of when constructive possession may be on the table.