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April 20, 2004.


The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge


Background and Facts

  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 June, 2003.

  (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 Cir. 1989),

  "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.


20040420 ...

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