Appeal from the United States District Court for the District of Columbia (No. 02cr00038–01)
Before: Sentelle, Tatel, and Garland, Circuit Judges.
The opinion of the court was delivered by: Tatel, Circuit Judge
Opinion concurring in Part III filed by Circuit Judge GARLAND.
Convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (2000), appellant argues that the district court erroneously allowed the government to present evidence that years earlier he possessed a handgun in New Haven, Connecticut. Although we agree with appellant that the evidence was irrelevant to any issue except criminal propensity and thus inadmissible under Federal Rule of Evidence 404(b), we conclude that the error was harmless and therefore affirm the conviction.
Shortly after midnight on January 3, 2002, appellant Harold Linares drove to a gas station in Washington, D.C., where he picked up Jay Davis and Zelandria Berry. According to Berry, Davis handed Linares a pistol and the three then drove to a nightclub, where Linares got into a fight that left him with a bloody nose. When they got back into Linares's car, Linares exchanged words with a group of people hanging around outside the nightclub. This exchange ended with the firing of six shots from Linares's car, and with Linares speeding away. Metropolitan Police Officer Curtis Reed, who was stationed across the street, witnessed the shooting and pursued Linares. Sergeant Curtis Jones, also at the scene but with his back to Linares's car when the shots were fired, joined the chase in his own cruiser. Pursued by the officers at speeds exceeding ninety miles per hour, Linares eventually crashed into another vehicle. As the two officers approached the wrecked car, they saw Linares throw a gun over a nearby fence.
A grand jury indicted Linares on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
At trial, the government put on nine witnesses, including the three eyewitnesses to the night's events. Officer Reed testified that while sitting in a marked police car across the street from the nightclub, he saw a dark-colored vehicle stop in front of the club. A few seconds later, preparing to shine his spotlight on the car as a way of encouraging the driver to move on, Reed "saw a muzzle flash - coming from the extension of [the driver's] arm." Tr. 10/17/02 (a.m.) at 33. In the driver's hand he saw a "black colored object that I believed to be a handgun." Id. at 34. Reed testified that he had an unobstructed view of the car at the time the shots were fired. "There's nothing in between my view of him and myself," Reed explained. "There's not - a bus, a truck, a car, anything." Id. at 32–33. Reed also testified that the area in front of the nightclub was "very well lit" by, among other things, a street light and the nightclub's "very, very large neon sign." Id. at 28. Reed testified that after the shots were fired the car sped away, and that he pursued it until it crashed into another vehicle. Approaching the crashed vehicle with gun drawn, Reed "noticed that there was a gun in [the driver's] left hand. He stuck his left hand out of the driver's side window and threw the gun up in the air-" Id. at 39. Without objection, Reed identified the driver as Linares.
Sergeant Jones testified that while walking back to his vehicle from the nightclub, where he had just investigated the owner's report of an unruly patron, he heard several gunshots behind him. Turning, he saw a dark-colored Maxima speeding away and Reed chasing it. Racing to his own car, Jones joined the pursuit, catching up to the Maxima after it crashed and stopping perpendicular to it with his front end pointed at its passenger side. When Jones got out of his vehicle, he saw "the driver with his left hand holding a handgun out of the window." Tr. 10/18/02 at 42. Jones saw this from about a car length away, "looking through the [Maxima's] passenger window - through to the driver." Id. Ordered by Jones to drop the gun, the driver "complied and threw the gun over a fence which was directly in front of the car." Id. at 43. Jones testified that he had no trouble seeing the driver's actions, explaining that when he arrived at the crash scene he activated his vehicle's "three high intensity lights." Id. at 45. Without objection, Jones identified the driver as Linares.
Berry, the female passenger, testified not only that she saw Davis hand Linares a gun at the gas station, but also that she was sitting right next to Linares in the front passenger seat when he leaned across her and fired the gun out her window. "I see him pointing the gun and shooting it," she told the jury. Tr. 10/21/02 at 42. Asked by the prosecutor how she could tell Linares was firing the gun, she explained, "I heard it. It was loud. It was right in front of me." Id. at 43.
The government's other witnesses included crime scene officers, firearms experts, and a fingerprint analyst. According to their testimony, the handgun recovered at the crash scene had moved in interstate commerce, had fired the shell casings recovered from inside Linares's car, and had no usable fingerprints on it.
Finally, and central to this appeal, a New Haven, Connecticut police officer testified that four-and-a-half years before these events, she arrested Linares after seeing him drop a loaded handgun onto the ground. Linares objected to this testimony, arguing that it was inadmissible under Federal Rule of Evidence 404(b) because it had no relevance to any issue other than criminal propensity. See Fed. R. Evid. 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."). Alternatively, Linares argued that even if not barred by Rule 404(b), the evidence should be excluded under Federal Rule of Evidence 403 because the danger of unfair prejudice that it posed substantially outweighed its probative value. See Fed. R. Evid. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice-"). Overruling Linares's objection, the district court admitted the evidence pursuant to Rule 404(b) to prove intent, knowledge, and absence of mistake. See Fed. R. Evid. 404(b) (providing that propensity evidence may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake").
Linares testified in his own defense. He claimed that he never held the gun -- not at the gas station, not when the shots were fired, and not when the police approached his wrecked car. He claimed that he neither saw anyone fire shots from inside his car nor realized at the time that anyone in his car even had a gun. He ...