Counsel’s Stipulation to Testimonial Evidence Waived Client’s Confrontation Right Even Absent Evidence that Client Agreed to Stipulation

United States v. Ceballos, No. 13-50786, (5th Cir. June 16, 2015) (Smith, Prado, Owen)  

Ceballos appealed her conviction for “transporting, attempting to transport, and engaging in a conspiracy to transport an alien within the United States” by alleging a violation of her Sixth Amendment right, improper admission of evidence, and that cumulative error deprived her of a fair trial.  The panel rejected each of her claims, affirming the conviction. 

First, Ceballos challenged the admission of a material witness’s sworn statement as a violation of her Sixth Amendment right of confrontation.  Her defense attorney did not object to its admission.  The Fifth Circuit has upheld waivers of the right of confrontation without evidence that the defendant [herself] expressed agreement with the stipulation.  See United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999); United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980).  Since Ceballos did not dissent from the attorney’s failure to object and the stipulation could have been a legitimate trial strategy according to the panel, her counsel’s waiver of her right was valid.  The panel found Crawford did not overrule this precedent and declined Ceballos’ invitation to revisit Stephens.

This holding is of particular concern given how the “stipulation” occurred in this case.  The defense attorney never said, “We stipulate to the admission of the alien’s sworn testimony and waive the right to confront the alien.”  Rather, the district court asked if the parties had agreed on exhibits to be admitted.  Aside from an objection to the notebook described below, defense counsel responded affirmatively to the court’s question if he was “‘in agreement as to the admissibility of the government’s exhibits under those exhibit numbers?’”  In other words, the only way Ceballos could have preserved her right to confront the alien is if she knew the alien’s sworn affidavit was Exhibit 8 and during this oblique exchange with the court said that she disagreed with the admissibility of that exhibit.  The court never asked Ceballos if she was willing to waive her confrontation right, and Fifth Circuit precedent does not require the court to do so.

Ceballos’ allegations that the notebook, identified by the government as a smuggling ledger, was not properly authenticated and was inadmissible under Federal Rule of Evidence 404(b) were denied.  While a “close” issue, the panel found that the district court did not abuse its discretion by finding the notebook properly authenticated even though the Government did not present a handwriting expert.  The notebook was found in Ceballos’ purse, and the contents of the notebook provided some corroboration of the illegal activity.  The panel affirmed the admission of the notebook, on plain error review, because there was a strong basis to determine it was intrinsic evidence and, alternatively, it would have served a permissible evidentiary purpose under Rule 404(b).

The final claim, that there was cumulative error in inappropriate government witness testimony commenting on Ceballos’ invocation of her right to counsel and silence coupled with improper closing arguments deprived her of a fair trial, was also rejected for failure to demonstrate plain error. 

Thanks to FPD Intern Samantha Canava for her contributions to this post.

Not Plain Error to Admit Non-Testifying Co-Defendant’s Confession to Cellmate (Most Circuits Limit Bruton to Testimonial Statements)

United States v. Vasquez, No. 12-41194 (5th Cir. Sept. 3, 2014) (Davis, Smith, Benavides)

Defendants Vasquez and Echeverria were jointly tried for conspiracy to possess methamphetamine with intent to distribute.  The first trial ended in a mistrial.  In the second trial, the Government introduced new evidence consisting of (1) Defendant Echeverria’s confession to a cellmate that both he and Defendant Vasquez participated in the conspiracy, and (2) Defendant Vasquez’s prior drug trafficking conviction.  

On plain error review, the panel found that admission of Defendant Echeverria’s jailhouse confession through the testimony of the cellmate did not violate Bruton or Crawford even though Defendant Echeverria did not testify.  The panel cited First, Third, Fourth, Sixth, Eighth, Ninth, and Tenth Circuit cases that limit Bruton to testimonial statements only, and Defendant Vasquez never disputed that Defendant Echeverria’s jailhouse confession was non-testimonial. 

Defendant Vasquez also challenged the admission of his prior conviction for possession of heroin under Federal Rule of Evidence 404(b).  The Government presented evidence of this conviction through the testimony of the California police officer who made the 1998 arrest and testified that Defendant Vasquez “look[ed] just like the pictures” of the individual convicted in California.  In other words, the officer had no personal recollection of Defendant Vasquez and was relying on the information in the file.  The panel found this to be sufficient evidence that Defendant Vasquez committed the prior bad act.

Both defendants argued on appeal that the evidence was insufficient to show that they were knowing participants in the conspiracy, but they both failed to renew their motions for judgment of acquittal at the close of trial.  So, the convictions could only be reversed if the convictions constituted “a manifest miscarriage of justice,” and the panel found that they did not.

Convictions and sentences affirmed.

Admission of Gang Membership Harmful Error

United States v. Hamilton, No. 12-20250 (July 11, 2013) (Stewart, Higginbotham, Jones)

Hamilton was on trial for unlawful possession of a firearm as a convicted felon. The evidence of possession was circumstantial: an agent saw him move his arm outside of his parked car and later found a gun under the tire of an SUV next to where Hamilton parked. When he was stopped for a traffic violation, a record check revealed that he was affiliated with the Black Disciples gang ("BD"), and Hamilton admitted to an agent that he "was" a BD.

The court permitted testimony regarding Hamilton’s gang membership over his objection. An agent testified that Hamilton had been affiliated with the BD since 1998, that Hamilton stated that he "was" a BD, and that the agent had never known a gang member who really left a gang. The agent proceeded to testify that he had made numerous arrests of gang members who possessed guns. The case then went to the jury without a limiting instruction, and the jury convicted Hamilton.
The panel determined that the agent’s gang-related testimony was extrinsic and that it did not pass the Beechum test, which allows extrinsic evidence to be admitted that (1) is relevant to an issue other than the defendant’s character, and (2) has a probative value not substantially outweighed by its undue prejudice. 

Because the evidence of guilt was sparse, and the prejudice that comes with gang membership may be great, ‘there is a reasonable possibility that the improperly admitted evidence contributed to [Hamilton’s] conviction.’ United States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992) (internal citation marks omitted).

The panel reversed and remanded. It noted, however, that testimony related solely to the record check and to Hamilton’s comment was intrinsic to the offense - as part of the on-scene investigation - and not subject to Beechum. The agents testimony went far beyond that int rinsic evidence, however.

Double Jeopardy Doesn't Bar Mistrial Caused by Prosecutorial Misconduct Unless Prosecutor Intended to Cause Mistrial

United States v. Dugue, No. 12-60529 (5th Cir. Aug. 9, 2012) (per curiam) (Reavley, Smith, Clement)

Here's what happened: The district court excluded 404(b) evidence prior to trial.  The Government later filed an exhibit list that included the excluded 404(b) evidence.  Dugue moved to exclude that evidence from trial, a motion the court granted.  During trial, while cross-examining Dugue, the prosecutor brought up the 404(b) evidence.  Why?  "The prosecutor claimed that, by raising his eyebrow and nodding his head, the district judge had given her permission to introduce the [excluded evidence.]"  The district court granted Dugue's motion for a mistrial, but refused to bar a retrial because it found that the prosecutor had not intended to "goad" Dugue into moving for the mistrial.

Dugue appealed, arguing that if it looks, walks, and quacks like a duck, it's a duck:

He alleges that “[w]here a Government attorney acts with reckless disregard for the Orders of the Court, under circumstances where only a mistrial can cure the resultant prejudice, the intent to cause a mistrial can be inferred.” This court has never adopted such a per se rule and we question whether such a rule would be sufficient to show that the district court clearly erred. Instead, we have followed the Supreme Court’s ruling in [Oregon v.] Kennedy[, 456 U.S. 667 (1982)].

In Kennedy, the Court made it clear that prosecutorial misconduct alone is not sufficient for a retrial to result in a double jeopardy violation: “Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Retrial is not barred even where the prosecution engages in “intentional misconduct that seriously prejudices the defendant.” Once the court determines that the prosecutor’s conduct was not intended to terminate the trial, “that is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment. . . .”

United States v. Wharton, 320 F.3d 526, 531-32 (5th Cir. 2003) (internal citations omitted). For Dugue to obtain retrial, he would need to prove that [the prosecutor's reference to the excluded evidence] was intended to cause a mistrial—a factual determination.

The court went on to hold that the district court's factual determination to the contrary was not clear error, so the retrial is not barred.  There was the obligatory scolding, as well:

The prosecutor displayed overreaching and unprofessional conduct in ignoring the district court’s two orders not to discuss the [excluded evidence]. Her excuse, that the judge’s head nod in response to her raised eyebrow implied permission to introduce previously excluded evidence, is certainly unacceptable. . . . The prosecutor’s improper behavior offers a reminder that attorneys should hew closely to the orders excluding evidence and seek clear permission when they are approaching those topics at a later point in trial.

Fives Affirm Questionable 404(b) and Loss-Amount Determinations in Union Voter Fraud Case

United States v. Crawley, No. 07-20461 (5th Cir. June 27, 2008) (Jones, Barksdale, Stewart)

Crawley was elected president of a Teamsters local in Louisiana in 1997, 1999, and 2002. Irregularities in the 2002 election prompted an investigation which revealed that Crawley falsified voter ballots, and that he received a $20,000 kickback in connection with a contract for telephone services at the union hall. Crawley was eventually convicted of mail fraud, and several Title 29 embezzlement and false record offenses. In addition to sentencing him to 78 months' imprisonment, the district court ordered him to pay the union local a little over $120,000 in restitution. Crawley appealed his conviction and sentence.

Crawley's challenge to his conviction concerned 404(b) evidence that he argued was improperly admitted. At trial, a union member testified that

[i]n September 2002, Crawley invited Kyle to his home after work hours. There, the two men engaged in an “assembly-line” process: using several different pens, Crawley marked and folded each ballot; he then handed it to Kyle, who placed and sealed the ballot in the return envelope. Crawley used the Union’s membership roster to decide which members were unlikely to vote in the election, such as part-time UPS employees. Kyle testified that peel-and-stick labels generated by the Union’s computer were used on the envelopes to avoid their being challenged. Thereafter, the completed ballots were separated by the zip codes for the “voters” and mailed from various post offices.

Not content to rely on this testimony, the Government called another witness who testified, over Crawley's objection, that Crawley "committed similar acts of voter fraud [in the 1999 election, as well]; and devised the strategy of duplicating ballots for those members least likely to vote." Following that testimony, the district court instructed the jury that "the evidence of the 1999 voter fraud could be considered only for determining Crawley’s 'motive, intent, identity, knowledge, opportunity, plan, preparation, and the absence of mistake or accident in engaging in' the 2002 voter fraud."

Applying the Fifth Circuit's two-prong Beechum test, the court of appeals found no error in admission of the testimony concerning the 1999 election. Under the first prong, the court held that the evidence was relevant to Crawley's intent, insofar as it showed that Crawley "acted with the same specific intent in 2002 as he had in 1999." The court rejected Crawley's argument that the evidence was not in fact relevant to intent because his defense was that someone else submitted the fake ballots:

Regardless of the defenses asserted by Crawley, the Government was required to prove specific intent as an essential element of the charged offenses. Therefore, the extrinsic evidence was offered to demonstrate Crawley acted with the requisite intent to commit those offenses. Based on the testimony regarding the 1999 fraud, the jury could rationally conclude that, “because the defendant had unlawful intent in the extrinsic offense [1999 fraud], it is less likely that he had lawful intent in the present offense [2002 fraud]”. Gordon, 780 F.2d at 1173. The testimony, therefore, was offered for a legitimate purpose under Rule 404(b). (Because the evidence was properly offered to show intent, we need not decide whether, in addition, it was admissible to demonstrate motive, as was also held by the district court.)

The court then concluded, as to the second Beechum prong, that the prejudicial impact of the evidence did not substantially outweigh its probative value, because the district court instructed the jury "that the 1999 voter-fraud evidence could only be considered for the limited purpose of determining motive, intent, identity, knowledge, opportunity, plan, preparation, and the absence of mistake or accident in engaging in the 2002 voter fraud. Even assuming, therefore, that admission of the extrinsic evidence posed a risk of undue prejudice, that risk was greatly minimized by the court’s limiting instruction."

(Both of these conclusions are questionable. If anything, given Crawley's defense the evidence was relevant to identity, not intent. But even if, as the court says, the 1999 voter-fraud evidence was relevant to intent, it had little to no probative value in relation to the unfairly prejudicial he-did-it-before-so-he-must-have-done-it-again inference that 404(b) exists to prevent. After all, if the jury were to conclude that Crawley was behind the 2002 ballot falsification, it's all but inconceivable that they would have trouble finding that he did so with the specific intent to defraud the union. It's also hard to see how the district court's instruction to the jury minimized any prejudice, given that it was simply a boilerplate recitation of permissible 404(b) factors, some of which the Government doesn't even appear to have argued for.)

Crawley also challenged the district court's loss findings for purposes of the Guidelines calculations and the restitution award. The district court used Crawley's salary and benefits for both calculations, as well as the $20,000 kickback. To oversimplify things a bit, Crawley argued that the loss amount for both purposes should be limited to the $20,000 kickback, because the union got what it paid for in the form of his services as local president. The court of appeals disagreed, concluding that "[b]y procuring a union office by fraud," Crawley "render[ed] any service valueless ab initio." Additionally, it wasn't possible to sever Crawley's legitimate services to the union from his non-legitimate services. Thus, the district court did not clearly err in the Guidelines calculation, nor did it abuse its discretion in determining the restitution amount.

(This, too, is questionable. Is it really true that Crawley's services as union president were "valueless ab initio"? Unless everything he did as president was corrupt, the union got at least some value out of his service. Doesn't the union as victim receive a windfall by getting all of Crawley's salary and benefits back when they would have otherwise had to pay someone else to do the job? To be fair, the court addresses these points, just not convincingly in my opinion.)

Crawford Doesn't Bar Use of Grand Jury Testimony to Establish Business-Record Predicate at Trial; Court Explores Interplay Between 404(b) & 608(b)

United States v. Morgan, No. 06-20634 (5th Cir. Oct. 17, 2007) (per curiam) (Dennis, Clement, Prad0) (The opinion indicates that Judge Dennis concurred in the judgment only, but there's no explanation as to why.)

Morgan was convicted at trial of twelve counts of health care fraud, under 18 U.S.C. § 1347, for her role in a scheme involving Medicare claims for motorized wheelchairs and scooters ("durable medical equipment" in Medicare-speak). Medicare beneficiaries can submit claims for DME, but the claims regulations require 1) a prescription for the DME from a treating physician who has actually seen the patient face-to-face, and 2) a "certificate of medical necessity" that, as the name implies, certifies that the patient actually needs the equipment. The details of the scheme were pretty involved, but here's Morgan's involvement in a nutshell: Morgan was paid to write wheelchair and scooter prescriptions for patients she never met. Her signature also appeared on CMN's for the equipment. Medicare paid nearly $8 million of the $24 million in claims submitted using Morgan's Medicare physician identification number.

Morgan raised a couple of interesting evidentiary issues on appeal, both of which the court rejected. First, she argued that the use of grand jury testimony to authenticate business records used against her at trial, as well as the admission of the records themselves, violated the Sixth Amendment's Confrontation Clause. (Unfortunately, the opinion doesn't clearly explain which records those were, or exactly what the testimony was. Also, the witness appears to have been a participant in the scheme. For reasons not explained in the opinon, he was unavailable to testify at trial.)

As for the foundational testimony, the court acknowledged that "Crawford specifically identifies grand jury testimony as testimonial in nature." But then it pointed to pre- and post-Crawford case law from the Fifth Circuit holding that the Confrontation Clause doesn't bar the admission of a certificate of the absence of public records, and that the confrontation right doesn't apply at sentencing. The court also cited Seventh and Ninth Circuit cases holding that certifications of the authenticity of business and public records aren't testimonial. The Seventh reasoned that if business records are nontestimonial, as Crawford said, then the foundational evidence must be, too. The Ninth Circuit apparently relied in large part on the inconvenience that live testimony would pose for witnesses and the Government, "without any apparent gain in the truth-seeking process." (I'm just a caveman, but don't see what that has to do with whether evidence is testimonial or not. And hasn't the Sixth Amendment has already made the inconvenience call in the accused's favor?) Based on all this, the court held "that Crawford does not apply to the foundational evidence authenticating business records in preliminary determinations of the admissibility of evidence." It also held that the business records themselves aren't testimonial, pointing to Crawford and to Fifth Circuit cases holding that public records and a certificate of non-existence of an INS record aren't testimonial, either.

Morgan's second challenge was to the admission of extrinsic evidence that she violated a condition of her pretrial release. At trial,

[a]fter questioning Morgan about the charges in the indictment, the government continued to cross-examine her about pretrial release conditions requiring her to refrain from opening any new bank accounts. Morgan admitted that she met her daughter at Compass Bank one day and that she endorsed a check for approximately $179,000 on that visit but denied depositing it and denied opening a new account.

The government called a rebuttal witness, Daniel Wu of Compass Bank, who testified that Morgan and her daughter met with him on October 24, 2005 when Morgan asked him to close two business accounts, to open a new business account, and to transfer the funds from the old accounts into the new account. The new account carried the same name as one of the closed accounts, and Morgan’s daughter was to be the signatory. Over a defense objection, Compass Bank records were admitted which included a signature card with Morgan’s daughter’s name and a copy of a check for $172,506. Wu identified the check as the instrument that was deposited on October 24, 2005, stated that Morgan had handed him the check and stated that he was present when she endorsed it. Morgan told Wu to only put her daughter’s name on the new account. Wu testified, “[Morgan] said to make sure that I remembered who she was so that when she took care of her personal matters, that she could—so that I could add her to this new account.”

The court observed that, because Morgan put her character for truthfulness at issue by testifying, FRE 608(b) permitted the Government to ask her about specific instances of misconduct, and "violations of the conditions of her pretrial release rise to a level of dishonest conduct sufficient to allow the government’s inquiry." But the court also pointed out that "Rule 608(b) does not allow extrinsic evidence of specific instances of misconduct outside of cross-examination and could not be the basis for admission of Wu’s rebuttal testimony or the bank records."

The court nevertheless held that Rule 404(b) permitted what Rule 608(b) otherwise disallowed in this case. It concluded that, because Morgan's defense at trial was that she lacked the intent to defraud and that the signatures on the CMN's were forgeries, "[e]vidence of Morgan’s attempt to circumvent pretrial release conditions by concealing her opening of a new bank account by using her daughter’s name rebutted her defense that she lacked fraudulent intent. Also, Morgan’s apparent perjury at trial proved fraudulent intent as to the underlying scheme for which she was on trial." The court also said that the episode at the bank showed that "Morgan had knowledge of how to commit fraud," that Morgan's "knowledge of how to circumvent signature requirements rebutted her testimony" that the signatures on the CMN's were forgeries, and that "[e]ven if she had not signed the forms, her activity at Compass bank proved that she knew how to benefit from the use of her identity without fully disclosing it." Finally, the court held that the prejudicial effect of the evidence didn't subtantially outweigh its probative value, so there was no abuse of discretion in admitting it.

More 404(b) Goodness: Admission of Unproven, Extrinsic Evidence of Defendant's Involvement with Drugs Reversible Error in FIP Case

United States v. Sumlin, No. 05-51720 (5th Cir. June 15, 2007) (Smith, Barksdale, Dennis)

Sumlin was tooling along in a red Corvette outside of Marlin, Texas when he passed a marked police car driven by an officer who was "looking for persons that are trafficking large amounts of illegal drugs down the highway." The rest practically writes itself: The officer pulled Sumlin over for not having a front license plate. One thing led to another and the officer arrested Sumlin for driving with a suspended license. While waiting for a tow truck to impound the car, the officer searched the Corvette and found a loaded 9mm handgun and what the officer believed to be a partially smoked marijuana cigarrette. Later, at the impound lot, a dog alerted on the 'Vette, but no drugs were ever found in the car. The government never tested the suspected marijuana.

Sumlin happened to be a felon, so he was charged with being a felon in possession of a firearm. He went to trial, where this transpired:

At trial, the government called Sergeant Kingsley, the arresting officer, who testified as to the circumstances of the stop and arrest and his drug interdiction efforts generally. Additionally, he testified that he suspected that Sumlin was transporting narcotics, because: (1) the body of Sumlin’s car had several loose or worn screws, which, according to Kingsley, indicated the possible transportation of large quantities of illegal drugs, as traffickers frequently hide drugs in the bodies of their vehicles to prevent law enforcement detection; (2) he spent some time with the car on the side of the road attempting to remove the speakers to see if anything was hidden beneath them; (3) he questioned Sumlin about the friend Sumlin had called to retrieve his car, because, according to Kingsley, drug couriers, i.e., those who transport large quantities of drugs and money, travel in pairs; (4) though he found only one cigarette, allegedly containing marijuana, he thought that he would find more drugs; (6) he followed Sumlin’s car to the impound lot and contacted the district attorney who came there to assist in drafting a search warrant for the undercarriage of the car; (7) the canine unit came to the lot and the dog alerted on the front and driver’s side of the vehicle; and (8) he questioned Sumlin about drugs when Sumlin was brought from the jail to the impound lot.

After hearing this testimony, the judge threatened to declare a mistrial. Nevertheless, for reasons not explained in the opinion, the trial continued. When Sumlin put on his case he called his mother as a witness, and she testified that it was her gun and she'd left it in the Corvette the day before Sumlin's arrest.

Things took another unusual turn after the jury found Sumlin guilty. Sumlin was facing a 15-year mandatory minimum, and an advisory guideline range of 235 to 293 months. Over the Government's objection, the district court sua sponte departed downward to 24 months.

The Government appealed the sentence. Sumlin cross-appealed, arguing, among other things, that the district court erred in admitted the arresting officer's drug-suspicion testimony.

The court of appeals agreed with Sumlin that the officer's testimony was inadmissible under FRE 404(b) and that the error was not harmless. It first rejected the Government's res gestae contention that the drug-suspicion testimony was intrinsic evidence, and therefore not governed by 404(b) in the first place. The court held that it was extrinsic evidence, and squarely within the purview of 404(b), because 1) the Government didn't prove that Sumlin actually transported drugs, and 2) this wasn't a situation where "the evidence of the charged and uncharged offenses were both part of a single criminal episode" since "[t]he testimony discussed events far beyond the time period relevant to Sumlin’s possession of the firearm."

Since 404(b) covered the testimony, the court went on to apply the Beechum two-step (relevance to issue other than character, and 403 balancing). At step one the court "first address[es] the threshold question of whether the government offered sufficient proof that the defendant committed the alleged extrinsic offense." The evidence here was "clearly insufficient to prove the other crime, wrong, or act of drug transportation."

[T]he officer’s casual testimony regarding the untested partially-smoked cigarette found in the Corvette’s ashtray might barely support a conclusion that it was his and contained marijuana, but it was clearly insufficient to prove any of the other essential elements of unlawful drug transportation, e.g., that Sumlin transported such drugs with the intent to manufacture, distribute, or dispense any controlled substance. See e.g., 18 U.S.C. § 841 et seq. Therefore, because the proof of the extrinsic act of drug transportation is insufficient, it is relevant only to the defendant’s character and should not have been admitted. Thus, we need not move on to the second step under Beechum.

Finally, the court concluded that the error in admitting the testimony was not harmless because it was a close case and drug evidence is especially prejudicial. The court therefore reversed Sumlin's conviction.

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.