We vacate the defendant's conviction for possession of a firearm because the district court admitted evidence that the defendant had been in an apartment from which weapons and drugs were later recovered. The evidence was not admitted for a proper purpose, and the error was not harmless.
The opinion of the court was delivered by: McLAUGHLIN, Circuit Judge
Argued: September 25, 2009
Before: McLAUGHLIN, KATZMANN, Circuit Judges, and KORMAN, District Judge.*fn1
Rory Jackson appeals his conviction after trial in the United States District Court for the Eastern District of New York (Dearie, C.J.) for possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). We vacate the conviction because the district court improperly admitted evidence that Jackson had been present in an apartment where police later found a cache of weapons and other contraband.
On November 1, 2006, New York City police officers responded to a 911 call reporting a gunshot in an apartment building in Queens. The shot was fired from Apartment B36 on the third floor into Apartment B26 below. Police officers William Sommer and Jonathan Jordan arrived at the building shortly after the call and saw Durrell Williams, Rory Jackson, and Zanika Arnold outside. The officers identified themselves and asked the three to stop. Williams fled, and Officer Sommer pursued him.
As Sommer chased Williams, Officer Jordan approached Jackson and told him to show his hands. Jackson took a can of juice out of his pocket, threw it at Jordan, and turned to flee. As Jackson turned, Officer Jordan spotted what he believed to be the butt of a gun in Jackson's jacket pocket. Jordan radioed a description of Jackson and chased him for approximately 50 to 100 feet before giving up the chase.
Officer Scott Ferrari arrived at the scene to help establish a police perimeter. He saw Jackson exit a nearby building looking "disheveled" and wearing his pants inside-out. Jackson refused Ferrari's and other officers' commands to stop and instead crouched behind a parked car. Ferrari then apprehended Jackson at gunpoint. Jordan arrived approximately 40 minutes later and identified Jackson.
Ferrari and other officers searched the area for the gun that Jordan believed he had seen in Jackson's pocket. Ferrari found a gun in a garbage can in a courtyard between the locations where Jordan had chased Jackson and where Ferrari later apprehended Jackson. There were no fingerprints on the gun.
The day after Jackson's arrest, New York City police officers executed a search warrant on Apartment B36, from which the shot had been fired. Among other things, they found firearms, other weapons, bullet-proof vests, drugs, and cash. Jackson was indicted in the Eastern District for violating 18 U.S.C. § 922(g)(1), which prohibits a person previously convicted of a crime punishable by imprisonment for more than one year from possessing a firearm.
Jackson's trial was scheduled to begin on Monday, June 25, 2007. At approximately 11:15 p.m. on Sunday, June 24, the Government moved to admit evidence of the contraband that police recovered from Apartment B36. The Government proffered that "eye witness testimony" would establish that, shortly before the shot was fired, Jackson "was in possession of the items recovered from" Apartment B36: four loaded firearms, including a revolver with an attached laser pointer, two bullet proof vests, at least 150 rounds of live ammunition of various types, a metal knuckle knife and machete, quantities of cocaine and marihuana, empty ziplock bags, several scales and over $4,000 in United States currency.
The Government suggested two reasons for admissibility: (1) necessary background to the charged crime; and (2) to show Jackson's "opportunity, plan and lack of mistake in possessing" the gun.
The district court admitted the evidence, stating that "[y]our party is put in that apartment with that kind of armament moments before the shot occurs. It is prejudicial, but not unduly prejudicial. It is highly relevant."
During the trial, the Government called Zanika Arnold to testify, apparently as the "eye witness" who would establish Jackson's "possession" of the contraband in Apartment B36.
Arnold testified that, at about 9:20 p.m. on the night Jackson was arrested, she went to visit her boyfriend Durrell Williams at the third-floor Queens apartment in which he was staying. Although the record is unclear as to the apartment number, the Government argued to the jury during its closing statement that it was Apartment B36. When Arnold entered the building, she saw Jackson downstairs. Jackson escorted her upstairs to Apartment B36 so that she could use the bathroom. The ...