UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA,

v. Case No.: 3:20cr090/MCR

NATHANIEL O. COX.

/

ORDER

This matter is before the Court on Defendant Nathaniel O. Cox’s motion in 

limine to exclude evidence of a prior conviction for brandishing a firearm in the 

commission of a crime of violence under Federal Rules of Evidence 403 and 404(b). 

See ECF No. 36. In Cox’s view, this extrinsic act evidence is irrelevant, serves only 

to impermissibly show a propensity to possess firearms and/or commit crimes of 

violence, and any marginal probative value is substantially outweighed by unfair 

prejudice. The Government responds that: (a) Cox’s prior conviction is “intrinsic”

to the instant offenses such that Rule 404(b) does not apply; (b) even if Rule 404(b) 

applies, the prior conviction is admissible as extrinsic evidence of Cox’s intent, 

knowledge, and identity; and (c) the prejudicial effect of admitting the evidence does 

not substantially outweigh its probative value. On consideration, Cox’s motion is

denied.

Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not 

admissible for the purpose of showing a defendant’s propensity or predisposition to 

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commit the crimes in an indictment. Extrinsic evidence of this nature is admissible 

where: (1) it is relevant to an issue other than the defendant’s character, such as to 

prove motive, identity, preparation, knowledge, or intent; (2) sufficient evidence is 

presented that would allow a jury to find that the defendant committed the extrinsic 

act; and (3) its probative value is not substantially outweighed by the potential for 

undue prejudice. United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008). 

Rule 404(b) is a “rule of inclusion” not exclusion; therefore, extrinsic evidence 

should be admitted “unless it tends to prove only criminal propensity.” Id. 

Rule 404(b) does not extend to evidence of prior acts that are “intrinsic” to 

the charged offenses. Evidence of prior acts is intrinsic—and thus, it falls outside 

the scope of Rule 404(b) and is independently admissible—when it “arose out of the 

same transaction or series of transactions as the charged offense,” is “necessary to 

complete the story of the charged crime,” or is “inextricably intertwined with the 

evidence regarding the charged offense.” United States v. Ford, 784 F.3d 1386, 

1393 (11th Cir. 2015). Intrinsic evidence is admissible “even if it tends to reflect 

negatively on the defendant’s character,” United States v. Foster, 889 F.2d 1049, 

1053 (11th Cir. 1989), provided that it “pertain[s] to the chain of events explaining 

the context, motive and set-up of the crime” and is “linked in time and circumstances 

with the charged crime, or forms an integral and natural part of an account of the 

crime, or is necessary to complete” the narrative of the crime, United States v. 

Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). 

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Whether offered under Rule 404(b) or as intrinsic evidence, a court must also 

find that the probative value of the proffered evidence is not substantially 

outweighed by the risk of unfair prejudice. Ford, 784 F.3d at 1393. Unfair 

prejudice, however, can be mitigated by limiting instructions from the court. United 

States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993).

In this case, Cox’s prior conviction for brandishing a firearm in the 

commission of a crime of violence is not intrinsic to the charged offenses. The prior 

offense, which occurred in March 2014, is clearly not part of the same transaction 

(or series of transactions) as the prior offense. Moreover, nothing that occurred 

while Cox committed the prior offense is necessary to complete the narrative of what 

happened during the charged offense, nor is that information necessary for 

contextual or background purposes, such that a jury would have an incomplete or 

inaccurate view of the evidence without it. The Government can easily tell the story 

of the instant offenses—and more specifically, its investigation of those offenses—

without reference to the details of the prior offense by eliciting testimony that law 

enforcement officers were responding to information received, or words to that 

effect. Consequently, the prior conviction cannot be considered inextricably 

intertwined with the charged offense, and it may not be admitted as intrinsic 

evidence at trial. 

The prior conviction, however, is admissible as extrinsic act evidence under 

Rule 404(b). First, this evidence is unquestionably relevant for the non-propensity 

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purposes of proving the knowledge and intent at issue in Count 2 (brandishing a 

firearm in the commission of a crime of violence) and Count 3 (possession of a 

firearm by a convicted felon), by virtue of Cox having entered not guilty pleas to 

those charges.

1

 See Edouard, 485 F.3d at 1345 (“[W]here the state of mind required 

for the charged and extrinsic offenses is the same, the first prong of the Rule 404(b) 

test is satisfied.”); United States v. Jernigan, 341 F.3d 1273, 1281 (11th Cir. 2003)

(evidence that a defendant knowingly possessed a firearm in the past is probative of 

knowing possession of a firearm in the present); United States v. Philpot, 1:15cr28, 

2017 WL 1438831, *3 (N.D. Ga. Apr. 24, 2017) (finding prior convictions for Hobbs 

Act robbery and brandishing a firearm during a robbery admissible under Rule 

404(b) to prove knowledge and intent in prosecution for a different Hobbs Act 

robbery and brandishing a firearm). Second, the fact of the prior conviction is 

sufficient proof that Cox committed the prior offense. See United States v. Calderon, 

1 Cox’s prior conviction is not admissible to prove identity. The standard for introducing

extrinsic act evidence to prove identity is “particularly stringent.” United States v. Phaknikone, 

605 F.3d 1099, 1108 (11th Cir. 2010). The physical similarity between the prior and charged 

offenses “must be such that it marks [them both] as the handiwork of the accused.” Id. “The 

extrinsic act must be a ‘signature’ crime, and the defendant must have used a modus operandi that 

is uniquely his.” Id. It is not enough that the defendant has at other times committed the “same 

commonplace variety of criminal act.” Id. Here, the Government has not described any of the 

underlying facts related to Cox’s prior conviction, thus the Court has no basis for considering 

whether it shares distinctive features in common with the charged offense. Indeed, as best the 

Court can tell from other pretrial materials in this case, the two offenses differ in at least one 

material way—allegedly Cox wore a mask during the commission of the instant offense, whereas 

he was not masked in the prior offense. In short, the Government has not satisfied the test for 

admission on the issue of identity. 

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127 F.3d 1314, 1332 (11th Cir. 1997) (“It is elementary that a conviction is sufficient 

proof that he committed the prior act.”). 

Finally, the probative value of Cox’s prior conviction is not substantially 

outweighed by the potential for undue prejudice. In balancing the prejudicial effect 

of extrinsic act evidence against its probative value, courts consider the degree of 

similarity between the charged and extrinsic acts, the amount of time separating the 

charged and extrinsic acts, and the importance of the extrinsic acts evidence to the 

Government’s case. Diaz-Lizaraza, 981 F.2d at 1225. Here, the elements of one of 

the charged offenses—brandishing a firearm during and in relation to a crime of 

violence—are materially identical to the extrinsic acts reflected in the prior 

conviction, in that both involved the brandishing of a firearm during a robbery. Cox 

allegedly committed the instant offense less than six months after his release from

84 months’ incarceration for the prior conviction and while still serving a 5-year 

term of supervised release. In other words, Cox spent all of the intervening time 

between the prior and instant offenses either incarcerated or on federal supervision. 

See United States v. Sterling, 738 F.3d 228, 238 (11th Cir. 2014) (extrinsic act 

evidence “need not be very recent, especially where a substantial portion of the gap 

in time occurred while the defendant was incarcerated). Moreover, as already 

discussed, the probative value of the prior conviction is high because it demonstrates 

Cox’s intent and knowledge during the charged offenses. The prosecutorial need for 

the evidence is significant, given the largely circumstantial nature of the 

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Government’s case on the issues of knowledge and intent. See United States v. 

Hicks, 798 F.2d 446, 451 (11th Cir. 1986) (“The greater the government’s need for 

evidence of intent, the more likely that the probative value will outweigh any 

possible prejudice.”); see also United States v. Moore, 535 F. App’x 795, 798 (11th 

Cir. 2013) (“After a defendant puts his intent at issue by pleading not guilty, the 

strength of the government’s case on intent must be ‘overwhelming’ in order to 

render extrinsic evidence on intent unnecessary.”) (quoting United States v. Dorsey, 

819 F.2d 1055, 1061 (11th Cir. 1987)). 

Because Cox’s prior conviction satisfies the three-part test for admissibility 

under Rule 404(b), it is admissible at trial as extrinsic evidence of knowledge and 

intent. Any potentially prejudicial effect will be mitigated by a limiting instruction 

to the jury, both at the time the evidence is admitted and in the final charge to the 

jury. 

SO ORDERED, on this 3rd day of October, 2021.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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