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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2004 Decided May 18, 2004

No. 03-3011

UNITED STATES OF AMERICA,

APPELLEE

v.

HAROLD LINARES,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 02cr00038–01)

Sydney J. Hoffman, appointed by the court,* argued the

cause and filed the brief for appellant.

Thomas S. Rees, Assistant United States Attorney, argued

the cause for appellee. With him on the brief were Roscoe C.

Howard Jr., United States Attorney, and John R. Fisher,

* The court thanks Ms. Hoffman for her able assistance.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Roy W. McLeese III, and Stephen Gripkey, Assistant United

States Attorneys.

Before: SENTELLE, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in Part III filed by Circuit Judge

GARLAND.

TATEL, Circuit Judge: 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.

I.

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).
3

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 TTT 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 TTT 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 airTTTT’’

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 TTT 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
4

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

prejudiceTTTT’’). 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,
5

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 claimed finally that while

speeding away from the nightclub, he saw a gun in Berry’s

hand.

The jury convicted Linares, and the district court sentenced him to ten years in prison. On appeal he argues that

the New Haven evidence was inadmissible under Rule 404(b)

or, alternatively, that the district court should have excluded

it under Rule 403 because its probative value was substantially outweighed by the danger of unfair prejudice.

II.

‘‘[A] concomitant of the presumption of innocence is that a

defendant must be tried for what he did, not for who he is.’’

United States v. Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985)

(quoting United States v. Myers, 550 F.2d 1036, 1044 (5th Cir.

1977)) (internal quotation marks omitted). Introducing evidence of a defendant’s prior crimes and other bad acts—socalled propensity evidence—may conflict with this principle.

As the Supreme Court has explained:

The [character] inquiry is not rejected because character is irrelevant; on the contrary, it is said to

weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general

record and deny him a fair opportunity to defend

against a particular charge. The overriding policy

of excluding such evidence, despite its admitted probative value, is the practical experience that its

disallowance tends to prevent confusion of issues,

unfair surprise and undue prejudice.
6

Michelson v. United States, 335 U.S. 469, 475–76 (1948)

(footnote omitted). The danger of undue prejudice is far

from theoretical. ‘‘That juries treat prior convictions as

highly probative has been confirmed by empirical investigations. See H. Kalven & H. Zeisel, The American Jury 160

(1966). Such reliance by the trier of fact offends the long

standing tradition that protects a criminal defendant from

guilt by reputation and from unnecessary prejudice.’’ Daniels, 770 F.2d at 1116 (internal quotation marks omitted).

Embodying the principles enunciated by the Supreme Court

in Michelson, Rule 404(b) provides that ‘‘[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.’’ Fed. R. Evid. 404(b).

Not all propensity evidence is inadmissible, however. Because ‘‘[e]xtrinsic acts evidence may be critical, TTT especially

when th[e] issue involves the actor’s state of mind and the

only means of ascertaining that mental state is by drawing

inferences from conduct,’’ Huddleston v. United States, 485

U.S. 681, 685 (1988), Rule 404(b) provides that propensity

evidence, though inadmissible to prove character, may ‘‘be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.’’ Fed. R. Evid. 404(b). Indeed, we have

described the rule as one ‘‘of inclusion rather than exclusion,’’

United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000),

and explained that it excludes only evidence that ‘‘is offered

for the sole purpose of proving that a person’s actions conformed to his or her character,’’ United States v. Long, 328

F.3d 655, 661 (D.C. Cir.), cert. denied, 124 S. Ct. 921 (2003).

In this case, the district court admitted the New Haven

evidence as relevant to intent, knowledge, and absence of

mistake. Reasserting the arguments he made in the district

court, Linares contends that the evidence had no probative

value on any of these issues. ‘‘We review a claim that a

district court improperly admitted evidence under Rule 404(b)

solely to determine whether the court abused its discretion.’’
7

United States v. Pindell, 336 F.3d 1049, 1056–57 (D.C. Cir.

2003).

We begin with knowledge. Knowledge was an issue because the government had to prove beyond a reasonable

doubt not only that Linares possessed a firearm, but also that

he possessed it knowingly. See 18 U.S.C. § 924(a)(2) (2000)

(‘‘Whoever knowingly violates subsection TTT (g) TTT of section 922 shall be fined as provided in this title, imprisoned not

more than 10 years, or both.’’ (emphasis added)). Whether

the New Haven evidence was in fact relevant to the issue of

knowledge turns on whether it ‘‘tende[d] to make the existence of any fact that is of consequence to the determination

of the action [here, that Linares possessed the gun knowingly] more probable or less probable than it would be without

the evidence.’’ Fed. R. Evid. 401.

Given the evidence in this case, we do not understand how

Linares’s previous possession of a pistol makes it any more

likely that he knowingly possessed a gun this time. In fact, it

is hard to see how Linares could possibly have possessed the

gun unknowingly, i.e., without being aware that he possessed

it or without realizing that the object in his hand was a gun.

Presented through three eyewitnesses, the government’s evidence demonstrated that Davis handed Linares a gun, that

Linares later fired it several times, and that still later he held

it out his car window and tossed it away—all the while aware

of his actions. If the jury believed these eyewitnesses, then

Linares possessed the gun knowingly; if it did not, then it

should have acquitted based on the government’s failure to

prove possession rather than its failure to prove knowledge.

Indeed, no reasonable jury could have acquitted Linares

based on the belief that the government proved possession

but failed to prove knowledge. The New Haven evidence was

thus inadmissible to prove knowledge. Just as trial judges

should not instruct juries on self-defense (or any other defense) when such a defense is unsupported by the evidence,

see Mathews v. United States, 485 U.S. 58, 63 (1988) (‘‘[A]

defendant is entitled to an instruction as to any recognized

defense for which there exists evidence sufficient for a reasonable jury to find in his favor.’’ (emphasis added)), neither
8

should they allow the government to introduce 404(b) evidence to prove an element that the government’s evidence

has, by completely precluding an acquittal based on the

failure to prove that element, effectively (though not formally)

eliminated.

Nor, for essentially the same reason, should the court have

admitted the New Haven evidence to prove absence of mistake. Given the government’s evidence, no reasonable jury

could have found that the government had proven possession

but failed to prove absence of mistake. Disputing this, the

government asserts that the jury could have thought that

Linares held the gun by mistake if, for example, it believed

that ‘‘given the violent crash preceding appellant’s toss of the

gun, TTT appellant came by the gun TTT from elsewhere in the

car, viz., from one of his passengers, as a random result of

the crash.’’ Appellee’s Br. at 31 n.5. Even were that scenario plausible, however, it would not contradict Berry’s testimony that Linares not only held the gun prior to the accident,

but also that it was he who fired the shots. Of course, as the

government points out, the jury might have disbelieved Berry’s testimony entirely, given that on cross-examination she

admitted both that she had recently been convicted of conspiracy to rob and that before trial she never mentioned that

she saw Davis hand Linares a pistol at the gas station. But

even if the jury discredited Berry’s testimony, it still would

have had Officer Reed’s virtually unchallenged testimony that

Linares held and fired the gun prior to the accident. We

thus do not think that a reasonable jury could have concluded

that Linares possessed the gun accidentally.

Alternatively, the government argues that in light of Reed’s

testimony that after the crash Linares reached down onto

either the car floor or his seat and ‘‘came up [with] TTT a gun

in his left hand,’’ Tr. 10/17/02 (a.m.) at 39, the jury could have

found that at some point the gun was not actually in Linares’s

hand. In other words, the government argues that the jury

could have concluded that while Linares never actually possessed the gun, he possessed it constructively, i.e., had dominion and control over it. Given this possibility, the government argues, it needed to introduce the New Haven evidence
9

to prove that Linares’s constructive possession was knowing.

We think not. The jury would have needed to consider

constructive possession only if it entertained a reasonable

doubt as to actual possession, and the same sentence of

Reed’s testimony that the government quotes demonstrates

that even if the possession had been constructive at some

time, it became actual when Linares ‘‘came up [with] TTT a

gun in his left hand.’’ Moreover, we doubt very much that

the jury would have considered constructive possession given

that the district court declined to instruct on it. Perhaps, as

the government argues, the facts of the case would have

supported such an instruction. The jury was not so instructed, however, and government counsel acknowledged at oral

argument that by failing to object to the instruction given, the

government waived any claim that the district court erred in

refusing to instruct on constructive possession.

Undaunted, the government asserts that ‘‘a jury that credited some of the government’s evidence and some of appellant’s testimony might have concluded beyond a reasonable

doubt that appellant constructively possessed the weapon,

while having a reasonable doubt that he—as opposed to

Berry or Davis—actually fired or discarded the gun.’’ Appellee’s Br. at 32 n.6. We are unsure what the government

means by ‘‘some’’ of its evidence. The jury could have had a

reasonable doubt that Linares rather than Davis or Berry

fired or discarded the gun only if it rejected the key testimony of all three government eyewitnesses. And had the jury

done so, it would have lacked any basis to conclude beyond a

reasonable doubt that Linares ever possessed the gun, either

actually or constructively, because if either Davis or Berry

possessed and fired the gun, then Linares could not possibly

have had sufficient dominion and control over it to establish

constructive possession. We thus remain convinced that given the evidence, no reasonable jury, instructed as was this

one, could have found beyond a reasonable doubt that Linares

possessed the gun by mistake. The district court therefore

should not have admitted the New Haven evidence to prove

absence of mistake.
10

We turn next to intent. Although Rule 404(b) lists intent

as one of the purposes for which other-acts evidence may be

admissible, the New Haven evidence was inadmissible for

that purpose because under section 922(g)(1), the government

had no obligation to prove intent. That section makes it

unlawful for felons to possess a firearm knowingly. It says

nothing about intent. See, e.g., United States v. Gorman, 312

F.3d 1159, 1163–64 (10th Cir. 2002) (‘‘In a [case] of possession

of a firearm by a convicted felon pursuant to TTT § 922(g)(1),

the government must prove [that] TTT the defendant TTT

knowingly possessed a firearm.’’ (internal quotation marks

omitted)).

To be sure, the words ‘‘intent’’ and ‘‘knowledge’’ can have

similar meanings. In particular, when intent is used to mean

not specific intent (as in ‘‘possession with intent to distribute’’) but rather general intent—which refers to ‘‘the knowing

commission of an act that the law makes a crime,’’ United

States v. Kleinbart, 27 F.3d 586, 592 n.4 (D.C. Cir. 1994)—the

definitions of the two terms overlap. That said, ‘‘[k]nowledge

TTT is not identical with intent.’’ Morissette v. United States,

342 U.S. 246, 270 (1952). Moreover, to the extent the district

court took intent to mean general intent, and thus a synonym

for knowledge, we have already explained why knowledge

provided no basis for admitting the New Haven evidence.

See supra pages 7–8.

The government next argues that the New Haven evidence

was admissible because ‘‘it tended to corroborate the eyewitness testimony of [the two officers] and Berry.’’ Appellee’s

Br. at 36. Although the district court did not admit the

evidence for corroboration, we address the argument because

‘‘[a]s the prevailing party, the Government is entitled to

defend the judgment on any ground that it properly raised

below.’’ Jones v. United States, 527 U.S. 373, 396 (1999).

The government relies primarily on our decision in United

States v. Bowie, where we stated that ‘‘[a]lthough Rule 404(b)

does not explicitly list corroboration among its examples of

non-propensity purposes, evidence of other crimes or acts is

admissible to corroborate evidence that itself has a legitimate
11

non-propensity purpose.’’ 232 F.3d at 933. But Bowie does

not stand for the proposition that otherwise-inadmissible propensity evidence can be introduced under Rule 404 to corroborate non-propensity evidence. If it could, then propensity

evidence would always be admissible. As long as the government had a single piece of non-propensity evidence tending to

prove the defendant’s guilt—a single eyewitness, one fingerprint, anything at all—the propensity evidence would be

admissible to corroborate it. We pointed this out last year in

United States v. Bailey, 319 F.3d 514 (D.C. Cir. 2003),

observing that:

[U]se of 404(b) evidence for corroboration [has] inherent

complications. Corroboration, in and of itself, is not a

separate purpose belonging in the open class of permissible purposes referred to in Rule 404(b)’s second sentence. If it were, evidence could slide past the rule

against improper character evidence. To decide if Rule

404(b) evidence is admissible for corroboration, the court

must determine what is being corroborated and how. If

similar past acts were corroborative only because they

showed the defendant’s character and the likelihood of

‘‘action in conformity therewith,’’ plainly the rule would

call for exclusion. On the other hand, evidence might

corroborate a witness’s testimony by showing plan, purpose, intent, etc. and therefore be admissible under

404(b). The label ‘‘corroboration’’ thus merely invites a

closer look at exactly how the evidence may be probative.

Id. at 520. Corroboration, then, does not provide a separate

basis for admitting evidence. As government counsel forthrightly acknowledged at oral argument, prior-acts evidence

must corroborate other evidence by proving a proper element, such as intent or identity. Because the New Haven

evidence was inadmissible to prove knowledge, intent, absence of mistake, or for any other permissible purpose, it was

inadmissible to corroborate the eyewitness testimony.

Though never adequately explaining how the New Haven

evidence was relevant to the issues for which the district

court admitted it, the government asserts that ‘‘cases in this
12

Circuit and others show that evidence of a prior or subsequent possession of an item such as a firearm is admissible as

404(b) evidence.’’ Appellee’s Br. at 27–28. But the possession cases the government lists in a two-page string cite differ

from this case because in each of those cases, unlike here, a

reasonable jury could have concluded that the charged possession was unknowing or mistaken, and thus the government

needed the other-acts evidence to prove knowledge or absence of mistake. For example, in United States v. Cassell,

292 F.3d 788 (D.C. Cir. 2002), the government charged the

defendant with being a felon in possession after police

searched his uncle’s home and found firearms in the bedroom

in which the defendant was staying. A reasonable jury could

have concluded that while the defendant constructively possessed the weapons (in that he had dominion and control over

them because they were in his bedroom), his constructive

possession was unknowing—perhaps because his uncle

stashed the weapons in the bedroom without telling the

defendant. That was a classic case for introducing prior

instances of gun possession, since the government would

otherwise find it extremely difficult to prove that the charged

possession was knowing. See Huddleston, 485 U.S. at 685.

All of the other felon-in-possession cases in the government’s string cite are similarly distinguishable. In United

States v. Brown, 16 F.3d 423 (D.C. Cir. 1994), the defendant

was charged with possessing two guns the police found in a

safe in his co-defendant’s daughter’s bedroom; because a

reasonable jury could have concluded that someone else put

the guns in the safe without the defendant’s knowledge, the

court allowed the government to introduce a gun that the

police found on the defendant when they arrested him. In

United States v. King, 254 F.3d 1098 (D.C. Cir. 2001), the

defendant was charged with possessing a gun that police saw

‘‘wedged into the back of the sunroof,’’ id. at 1099; a reasonable jury could have concluded that the defendant lacked any

knowledge that the gun was wedged there. (In any event,

because we found the introduction of the 404(b) evidence in

King to be erroneous, although harmlessly so, the case cannot

stand for the proposition that the admission of 404(b) evi-
13

dence is proper in a case like this.) In United States v. Mills,

29 F.3d 545 (10th Cir. 1994), the defendant was charged with

possessing guns that police recovered from various places in

his home, a home shared with another person; a reasonable

jury could have concluded that the guns belonged to the other

person and that the defendant therefore possessed them

unknowingly. In United States v. Brown, 961 F.2d 1039 (2d

Cir. 1992) (per curiam), the defendant was charged with

possessing an Uzi that police found in his apartment when he

was elsewhere; a reasonable jury could have decided that

others who had access to the apartment put the gun there

without the defendant’s knowledge. And in United States v.

Teague, 737 F.2d 378 (4th Cir. 1984), the police found a pistol

on the floor of the vehicle the defendant was driving; a

reasonable jury could have concluded—particularly after the

defendant testified that he ‘‘did not know the pistol was in his

automobile at the time of his arrest, and that it must have

been left there by [a friend] who had borrowed his car,’’ id. at

380—that the defendant’s constructive possession of the pistol

was unknowing. In contrast to all these cases, given the

government’s evidence here, no reasonable jury could have

concluded that the defendant possessed a firearm either

unknowingly or mistakenly.

The remaining cases the government cites are even easier

to distinguish. Because the defendant in Bowie was charged

with possessing counterfeit money, the government had to

prove he knew the bills were forgeries. See 232 F.3d at 930.

That is a clear case for introducing 404(b) evidence, for

otherwise a reasonable jury could conclude that even though

the defendant knowingly held the bills, he had no idea they

were counterfeit. In this case, by contrast, no reasonable

jury could have concluded that Linares possessed a gun

without knowing it was a gun. In United States v. Gomez,

927 F.2d 1530 (11th Cir. 1991), the defendant was charged

with possessing a firearm in connection with a drug crime,

and the government introduced the 404(b) evidence not to

prove knowledge, but rather ‘‘to rebut [the defendant’s] claim

that the gun in his glove compartment in this case had

nothing to do with the drug transportation.’’ Id. at 1534.
14

And in United States v. Williams, 895 F.2d 1202 (8th Cir.

1990), the defendant was charged with possessing and conspiring to possess crack cocaine with intent to distribute, as

well as with possessing a firearm in connection with a drug

crime. Unlike in this case, there the government had to

prove specific intent, making admission of the 404(b) evidence

proper because the jury could reasonably have concluded that

the defendant possessed the drugs but lacked intent to distribute. The Williams court also approved the evidence’s

admission to prove knowledge or absence of mistake, but in

that case the police arrested the defendant outside the apartment in which they found the drugs he was charged with

possessing—again, a very different situation from the one

presented here.

The government next relies on United States v. Crowder,

141 F.3d 1202 (D.C. Cir. 1998) (en banc), in which we held

that a defendant may not bar the government from introducing 404(b) evidence to prove an element of the crime by

stipulating to that element and accepting a jury instruction

that relieves the government of any burden to prove it. See

id. at 1203. Crowder provides no help to the government,

however, because we conclude here not that admission of the

New Haven evidence was erroneous based on anything Linares did or failed to do at trial, but rather that given the

evidence the government presented, no reasonable jury could

have acquitted Linares based on the belief that the government had proved possession but not knowing possession.

The same could not have been said in Crowder, where the

defendant was charged with possessing crack cocaine with

intent to distribute. The crack in question was in small

ziplock bags contained in a brown paper bag that Crowder

was holding when the police arrested him, and the 404(b)

evidence was admitted to prove not only the specific intent to

distribute, but also ‘‘that Crowder knew the material in the

ziplock bags was crack cocaine.’’ Id. at 1209. In other

words, without the 404(b) evidence, a reasonable jury could

have concluded either that Crowder thought the white powdery substance was flour (or some other innocuous substance), or that he had no idea the closed paper bag even

contained a white powdery substance. Here, because Linares
15

could not have possessed the gun without recognizing the

nature of the object in his hand, no similar possibility existed.

And whereas the 404(b) evidence was admissible in Crowder

because ‘‘it was more probable with the evidence than without

it that Crowder intended to distribute the crack cocaine in the

brown paper bag,’’ id., here the government (as we have

explained) had no obligation to prove intent.

Crowder actually involved two separate prosecutions that

we consolidated on appeal. The government contends in its

brief and contended again at oral argument that the other

case, United States v. Davis, also supports its position here.

The defendant in that case sold crack cocaine to an undercover police officer who then left the area and broadcast a

description of the suspect. When other officers stopped

Davis as he was getting into a car, the undercover officer

returned to the scene and identified him. Arresting Davis,

the police found more than twenty grams of crack in the car.

See id. at 1204. Davis’s defense at trial was mistaken identity—that he was not the person who sold drugs to the

undercover officer. Over Davis’s objection, the district court

admitted evidence of three prior cocaine sales that Davis

made in the same area as the charged offense. According to

the government, Davis supports its position because there we

upheld the admission of 404(b) evidence to prove intent even

though—given the undercover officer’s testimony that Davis

sold drugs directly to him—no reasonable jury could have

acquitted Davis based on failure to prove intent.

The government overlooks the fact that the indictment

against Davis included two counts: one count of distribution

of a controlled substance, stemming from the sale of cocaine

to the undercover officer, and one count of possession with

intent to distribute five grams or more of cocaine base,

stemming from the twenty grams of cocaine found in the car

when the police arrested Davis. The government’s introduction of the 404(b) evidence to prove knowledge and intent

related not to the distribution count, but to the possessionwith-intent-to-distribute count, i.e., to the drugs found in the

vehicle when the police arrested Davis. Making this point

clear, the government’s brief to the panel that heard the case
16

before we ordered rehearing en banc stated that ‘‘evidence

that appellant had previously sold crack cocaine could be used

by the jury to establish appellant’s knowledge of the presence

of the drugs in the Jetta and his intent to sell them.’’

Appellee’s Br. at 22, United States v. Davis, No. 93–3059

(Sept. 19, 1994) (emphasis added); accord id. at 21 (‘‘It is

beyond dispute that appellant’s prior efforts to distribute

drugs are relevant and admissible to show his intent to

distribute and knowledge of the drugs he possessed when

arrested.’’ (emphasis added)). The 404(b) evidence was

therefore needed because a reasonable jury could have concluded that although Davis possessed the crack in the car, the

government had failed to prove beyond a reasonable doubt

that he intended to distribute it, and thus could have acquitted him on the second count. No similar acquittal was

possible here.

Even setting aside the factual differences that distinguish

both Crowder and Davis from this case, Linares’s argument—that the facts and the government’s evidence effectively removed an element from the case—played no role in the

consolidated Crowder decision. As our en banc opinion noted,

‘‘neither defendant contested the relevancy of the other

crimes evidence to his intent, except on the basis that their

proposed stipulations took intent out of the case.’’ Crowder,

141 F.3d at 1209. The defendants limited their appeal to this

single issue because in our order setting Crowder and Davis

for joint en banc review, we directed that ‘‘[b]riefing and

argument will be limited to the following issue: Whether the

[government] must generally accept an offer of stipulation by

defense counsel thereby precluding the [government] from

introducing evidence under Federal Rule of Evidence 404(b)

to prov[e] an element of the offense.’’ Crowder, No. 92–3133,

and Davis, No 93–3059 (D.C. Cir. May 18, 1995) (en banc)

(per curiam) (order scheduling en banc oral argument).

Clearly reflecting that limitation, our opinion concluded: ‘‘we

hold that a defendant’s offer to stipulate to an element of an

offense does not render the government’s other crimes evidence inadmissible under Rule 404(b) to prove that element.’’

Crowder, 141 F.3d at 1209.
17

In sum, we hold that Rule 404(b) barred admission of the

New Haven evidence because, in Rule 401’s terms, the evidence made it no ‘‘more probable or less probable’’ that

Linares possessed the gun knowingly or unmistakenly, and

because the government had no obligation to prove intent.

We thus have no need to address Linares’s alternative argument that Rule 403 required the district court to exclude the

evidence.

III.

The government contends that even if admission of the

New Haven evidence violated Rule 404(b), we should nonetheless sustain Linares’s conviction because the error was harmless. Under Rule 52(a) of the Federal Rules of Criminal

Procedure, ‘‘[a]ny error, defect, irregularity, or variance that

does not affect substantial rights must be disregarded.’’ Because the error in this case affected no constitutional rights,

see King, 254 F.3d at 1101–02, we must disregard it unless it

had a ‘‘substantial and injurious effect or influence in determining the jury’s verdict,’’ Kotteakos v. United States, 328

U.S. 750, 776 (1946). The government bears the burden of

proving the absence of such an effect. See, e.g., United

States v. Whitmore, 359 F.3d 609, 622 (D.C. Cir. 2004) (citing

United States v. Olano, 507 U.S. 725, 734 (1993)).

Given the multiple and consistent eyewitness accounts that

it presented at trial, the government has met its burden.

Recall that Officer Reed, having an unobstructed view of

Linares’s car on a well-lighted street, saw a muzzle flash from

a ‘‘black colored object’’ that was in Linares’s extended

hand—an object Reed thought was a gun. Later, as he

approached Linares’s crashed car, Reed saw Linares hold a

gun in his hand and throw it over a nearby fence. Sergeant

Jones, standing just five to ten yards from Linares with an

unobstructed view in good lighting, also saw Linares toss a

gun from the car window. And Berry not only saw Linares

holding a gun at the gas station, but also saw him hold and

fire a gun outside the nightclub, the latter while he was

leaning over her only inches away.
18

Barely contesting the force of this evidence, Linares’s brief

states only that ‘‘it cannot be said that [the] testimony that

Linares had possessed and disposed of a pistol in 1997 in New

Haven, Connecticut did not contribute to the guilty verdict.’’

Appellant’s Br. at 29. At oral argument, Linares’s counsel

did contend that two of the government’s eyewitnesses had

their credibility damaged during cross-examination: Sergeant

Jones because he acknowledged that during his sworn testimony to the grand jury he stated, contrary to his trial

testimony, that he saw Linares leave the nightclub, see Tr.

10/18/02 at 162, and Berry because she admitted both that she

had recently been convicted of conspiracy to rob and that

before trial she failed to mention that she saw Davis hand

Linares a pistol at the gas station. But even assuming that

both witnesses’ credibility was damaged (and we question

how much harm resulted from a single inconsistency in

Jones’s testimony), the damage did nothing to undermine

Officer Reed’s credibility. The cross-examination of Reed,

though lengthy, scarcely addressed his testimony that he saw

Linares hold and fire a handgun—testimony that by itself

gave the jury ample basis to convict. Moreover, Reed’s

unimpeached testimony corroborated both Jones’s and Berry’s, likely compensating for any credibility problems the jury

may have thought those two had.

Because the government has carried its burden to prove

harmless error, Linares’s conviction is affirmed.

So ordered.
1

GARLAND, Circuit Judge, concurring in Part III of the

court’s opinion:

I concur in the court’s ruling in Part III that, even if the

district court erroneously admitted evidence that Linares had

previously been arrested for possession of a handgun, any

such error was manifestly harmless. Whether the admission

of that evidence violates Rule 404(b) is a substantially more

difficult question, particularly in light of the en banc court’s

opinion in United States v. Crowder and Davis, 141 F.3d 1202

(D.C. Cir. 1998). Given the ruling in Part III, it is a question

that need not be decided in order to resolve this case.