The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
The Government seeks to admit evidence under Rule 404(b) of the Federal
Rules of Evidence concerning other gun possessions by the defendant. In
this case, defendant is charged in Count One with being a felon in
possession of a firearm (18 U.S.C. § 922(g)(1)) and in Count Two with
being a felon in possession of ammunition (18 U.S.C. § 922 (g)(1)).
The defense opposes the motion.
The other bad acts which the Government seeks to admit relate to:
(1) a July 25, 2002 possession of a loaded semiautomatic pistol where
the defendant also possessed a separate magazine with additional
ammunition. He was convicted on those charges before Judge Brieant in
(2) On May 11, 1996, the defendant possessed a loaded semi-automatic
pistol, as well as a separate magazine of cartridges. The 1996 incident
is the prior felony charged in both counts of this indictment because it
resulted in a conviction.
In this case, the defendant Ellva Slaughter was arrested in the Bronx,
New York at approximately 11:35 p.m. on March 27, 2001 after he and
another individual were observed smoking marijuana. When arrested, Slaughter had on his person a magazine containing three
live rounds of .25 caliber ammunition. After Slaughter was removed from
the police car that took him to the police station, an officer allegedly
found under the back seat where Slaughter had been a .25 caliber
semi-automatic handgun with a round in the chamber and a magazine fully
loaded with eight bullets. According to the Government, the back seat was
removed and its surrounding area inspected at the beginning of the
officers' tour of duty and Slaughter, handcuffed with his hands in the
rear, had been the only arrestee placed in the back seat since that
inspection. Slaughter was charged with possession of the firearm.
Federal Rule of Evidence 404(b) provides:
"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. It
may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident . . ."
As defense counsel correctly argues at page 2 of its submission in
opposition under United States v. Colon, 880 F.2d 650
, 656 (2nd
"First, the trial court must determine whether the
evidence is offered for a proper purpose, namely,
a purpose other than to prove the defendant's bad
character or criminal propensity." There is nothing here which leads the Court to conclude that the proof
is for an improper purpose. It is not being offered to prove "bad
character or criminal propensity." Rather, it is offered for reasons
consistent with the rubric of Rule 404(b). The rule in the Second Circuit
is that an "inclusionary" approach should be taken to PRE 404(b).
United States v. Brennan, 798 F.2d 581, 589 (2nd Cir. 1986).
The Government properly points out that "opportunity, preparation and
plan" (page 3 Government's submission) mandate admissibility because the
defendant used the same method of possessing the gun, with the separate
magazine with additional bullets, in the other cases. Moreover, as here,
the defendant sought to divest himself of the incriminating evidence in
the instance of the July 25, 2002 possession.
Further, the other evidence in the instant case goes to the issue of
knowledge and lack of mistake or accident. United States v.
Brown, 961 F.2d 1039. Count One charges possession of a pistol by a
felon. An element that the Government must prove as to possession is that
defendant had knowledge. United States v. Cassell,
292 F.3d 788, 794, 795 is particularly persuasive on this point. The
evidence is also admissible because of the knowledge issue.
The evidence of the other gun convictions is both relevant and
admissible. Its relevance is not "outweighed by the danger of unfair
prejudice or anything else mentioned in FRE 403." The Court will give the
jury a limiting instruction as to this evidence. The Government application is granted and this evidence is admissible
on the Government's case in the first instance in view of the position
taken in the defense submission.