United States v. Fredrick Graham ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1423
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Fredrick Ernest Graham
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: December 13, 2016
Filed: February 22, 2017
[Unpublished]
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Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
A jury convicted Fredrick Graham of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1), and the district court1 sentenced him to 105
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The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.
months in prison and three years of supervised release. Graham appeals, arguing that
the district court abused its discretion by admitting evidence of his 2009 firearm-
related arrest and by refusing his proposed jury instruction on implicit racial bias. We
affirm.
At 11:30 p.m. on September 3, 2014, Saint Louis, Missouri, Police Detectives
Gregory Klipsch and Matthew Manley were patrolling an area that had experienced
a spate of robberies, shootings, and other violent crimes. The detectives were driving
an unmarked car and were wearing clothing emblazoned with the word “POLICE.”
The detectives saw Graham walking on the sidewalk as they drove slowly down the
block and observed Graham’s repeated glances over his shoulder in their direction.
Graham suddenly turned, left the sidewalk, approached a residence, and adjusted the
left side of his waistband as he walked up the steps and onto the front porch of the
house. The detectives stopped their car and saw that Graham did not knock on the
front door or enter the residence but continued to look over his shoulder in their
direction.
Manley, still seated in the unmarked car, identified himself as a police officer
and asked Graham if he lived at the residence. Graham replied that he did, but after
being unable to provide the house’s address, he stated that it was actually his sister’s
residence and that he did not know the address. As the detectives exited their vehicle
to investigate further, Graham fled. Klipsch gave chase on foot and saw that Graham
was holding the left side of his waistband. Graham eventually removed a firearm from
his waistband during the chase, threw it to the ground, and continued to flee. After
several times ordering Graham to stop and shouting that he was under arrest, Klipsch
was able to apprehend Graham only after deploying his taser.
The detectives searched Graham incident to his arrest, seizing a ski mask and
a pair of gloves from a pocket of his shorts. The detectives then returned to the area
where Graham had thrown the firearm and recovered a fully loaded and functioning
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Sig Sauer semi-automatic pistol. During a later interaction with Officer Manley,
Graham stated, “I thought about shooting you. That ‘Sig’ would have hurt, too.”
Graham proceeded to trial on the single felon-in-possession charge. The
government provided notice that it intended to offer evidence at trial of Graham’s
October 2009 firearm-related arrest. During that incident, Saint Louis police officers
observed Graham attempting to hide behind a bush while clad in a camouflage jacket.
Graham fled into a nearby residence as the officers approached, holding his jacket
pocket as he did so. The officers followed, and after receiving the homeowner’s
permission to enter they discovered the now-unjacketed Graham standing in the
hallway. The officers seized a loaded Cobra semi-automatic pistol from a pocket of
the jacket, which had been discarded in the living room. Graham filed a motion in
limine to exclude this evidence, and the government filed a similar motion for its
admission. After a hearing on the motions, the district court announced its preliminary
ruling to admit the evidence.
Graham declined to stipulate to his prior convictions, thereby putting the
government to its burden of proof to establish each element of the felon-in-possession
charge. The government called four witnesses at trial to testify to the facts as set forth
above. Outside the presence of the jury, the court heard additional argument regarding
admission of the 2009 firearm-related arrest. The government asserted that this
evidence was admissible under Federal Rule of Evidence 404(b) because it was
relevant to Graham’s knowledge of and intent to possess the firearm and because it
was higher in probative value than in prejudicial effect. Graham argued, however, that
knowledge and intent were not at issue because his theory of defense was that he had
never possessed the firearm, not that he did not know he had possessed it or did not
intend to possess it. Thus, Graham argued, the government was offering evidence of
his 2009 arrest merely to prove his criminal propensity—an impermissible purpose
under Rule 404(b). The district court rejected Graham’s argument and overruled his
objection. After the court instructed the jury that this evidence was being admitted for
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a limited purpose, one of the arresting officers testified regarding the details of the
2009 incident, as set forth above.
At the close of evidence, Graham offered a proposed jury instruction, which
directed the jurors to reach their verdict “without discrimination” and without
“consider[ing Graham’s] race, color, religious beliefs, national origin, or sex.” He also
offered a related verdict certification form, which required the jurors to certify that
they did not discriminate in reaching their verdict. Graham argued that the proposed
instruction and certification form, although not part of the Eighth Circuit Pattern
Instructions, were intended to counteract the jurors’ “implicit bias” and “unconscious
racial attitudes.” The district court declined the proposed instruction and certification
form, instead giving a second Rule 404(b) limiting instruction.
We review for abuse of discretion the district court’s admission of evidence of
a defendant’s prior bad acts under Rule 404(b), and will reverse only when the
evidence “clearly had no bearing on the case and was introduced solely to prove the
defendant’s propensity to commit criminal acts.” United States v. Williams, 796 F.3d
951, 958 (8th Cir. 2015) (quoting United States v. Bassett, 762 F.3d 681, 687 (8th Cir.
2014)), cert. denied, 136 S. Ct. 1450 (2016). Because Rule 404(b) is a rule of
inclusion, “evidence offered for permissible purposes is presumed admissible.” Id.
(quoting United States v. Wilson, 619 F.3d 787, 791 (8th Cir. 2010)). Evidence is
properly admitted under Rule 404(b) if, among other requirements, “it is relevant to
a material issue” and “its potential prejudice does not substantially outweigh its
probative value.” Id. (quoting United States v. Robinson, 639 F.3d 489, 494 (8th Cir.
2011)).2
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Rule 404(b) evidence must also be similar in kind and not overly remote in
time to the charged offense and must be supported by sufficient evidence. Because
Graham does not contend that the evidence of his 2009 firearm-related arrest failed
to satisfy these requirements for admission, we need not discuss them further.
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In general, “[e]vidence that a defendant possessed a firearm on a previous
occasion is relevant to show knowledge and intent.” Id. at 959 (quoting United States
v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006)). As he did before the district court,
Graham asserts that the evidence of his 2009 firearm-related arrest was not relevant
to the felon-in-possession charge because the government proceeded on a theory of
actual possession and thereby rendered his knowledge and intent irrelevant. We have
previously rejected this argument and do so again here. See id.; see also United States
v. Oaks, 606 F.3d 530, 539 (8th Cir. 2010). “Knowing possession of a firearm is an
element of 18 U.S.C. § 922(g)(1), and [Graham] placed his knowledge of the firearm’s
presence at the scene on his person at issue by pleading not guilty to the crime and
requiring the government to prove his guilt beyond a reasonable doubt.” See Oaks,
606 F.3d at 539. When, as here, a defendant pleads not guilty to a felon-in-possession
charge, he places his knowledge and intent at issue even when the government
proceeds solely on an actual-possession theory. See Williams, 796 F.3d at 959; United
States v. Halk, 634 F.3d 482, 486-88 (8th Cir. 2011) (holding that previous firearm
possessions were relevant to show defendant’s knowledge and intent to possess a
firearm where police saw defendant holding and discarding a gun). Graham’s 2009
firearm-related arrest was thus relevant to show his knowledge and intent.
Graham also argues that the probative value of this evidence was substantially
outweighed by its prejudicial effect. We disagree. “Though all Rule 404(b) evidence
is inherently prejudicial, the test . . . is whether its probative value is substantially
outweighed by the danger of unfair prejudice.” United States v. Cook, 454 F.3d 938,
941 (8th Cir. 2006). The government did not place undue emphasis on the 2009 arrest
when it was introduced into evidence, nor did it refer to such evidence in its closing
argument. Moreover, the district court twice instructed the jury that such evidence
could be considered only for limited purposes. We give “great deference” to a district
court’s determination that the danger of unfair prejudice is not outweighed by the
probative value of Rule 404(b) evidence. See Williams, 796 F.3d at 960. And we
have “been reluctant to find that [such] evidence was unfairly prejudicial when the
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district court gave an appropriate limiting instruction.” Id. (quoting United States v.
Kent, 531 F.3d 642, 651 (8th Cir. 2008)). Because the evidence of Graham’s 2009
arrest was relevant and its probative value outweighed any danger of unfair prejudice
from its admission, the district court did not abuse its discretion in admitting it.
Graham next argues that the district court abused its discretion by declining to
give his proposed instruction on implicit racial bias. We disagree. A district court has
broad discretion to formulate jury instructions. See United States v. Farish, 535 F.3d
815, 821 (8th Cir. 2008). We review jury instructions as a whole and affirm if they
“fairly and adequately submitted the issues to the jury.” Id. The district court’s
instructions fairly informed the jury of the essential elements of the offense charged,
as well as of the government’s burden of proof. Additionally, the instructions
specifically directed the jury that it should “not allow sympathy or prejudice to
influence you. The law demands of you a just verdict, unaffected by anything except
the evidence, your common sense, and the law as I give it to you.” The district court
did not abuse its discretion by declining to give Graham’s proposed instruction.
The judgment is affirmed.
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