IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

UNITED STATES OF AMERICA )

 )

 v. ) CR. NO. 3:06cr208-MEF

 )

JASON EDWARD COFIELD )

PROFFER OF AND NOTICE

OF INTENT TO USE 404(b) EVIDENCE

Comes now the United States of America, by and through Leura Garrett

Canary, United States Attorney for the Middle District of Alabama, and notices its intent

to introduce evidence of other crimes, wrongs, and acts committed by the defendant,

Jason Cofield. The below-listed acts meet the standard set forth in United States v.

Beechum, 582 F.2d 898 (5th Cir. 1978). As grounds, the United States sets forth the

extrinsic evidence and the law as follows:

THE ACTS

Jason Cofield is charged with being a felon in possession of a firearm. 

The United States expects the defendant to argue lack of intent to possess the firearm

charged in the indictment. Consequently, at the trial of this case, the Government

intends to offer the following evidence: On June 6, 1999, Jason Cofield was stopped for

a traffic violation in Forsyth County, Georgia. During the Georgia traffic stop, a Forsyth

County Sheriff’s Deputy noticed a “bulge” in Cofield’s pocket. Cofield was asked if he

had any weapons on his person and Cofield produced a knife plus three to four

thousand dollars cash. Shortly after discovering the cash, Cofield gave Deputies

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The United States does not intent to elicit testimony regarding Cofield’s 1999 1

possession of methamphetamine. Rather, the United States will limit its testimony to

Cofield’s possession of the .22 caliber pistol and ammunition affixed to his belt buckle.

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consent to search his vehicle. First, Deputies removed Cofield’s passenger, Diane

Henderson. Diane Henderson admitted to Deputies that a firearm was under the

drivers seat; thereafter, deputies located a loaded .22 caliber pistol between the seats. 

Henderson claimed the firearm belonged to her. In addition to the firearm, Deputies

located approximately 80 grams of methamphetamine, drug paraphernalia and

approximately three thousand one hundred twenty eight dollars ($3,128.00) in United

States currency. Subsequent to this discovery, Cofiled and Henderson were arrested

and transported to the sheriff’s department for processing.

Importantly, while processing Jason Cofield, law enforcement recovered a

loaded .22 caliber pistol and five rounds of .22 caliber ammunition affixed to Jason

Cofield’s belt buckle. According to Cofiled, he did not know the gun was “real.” Later in

1999, Cofiled was charged was trafficking methamphetamine, possession of a firearm

during commission of a felony, and possession of a knife during the commission of a

felony. On October 16, 2001, pursuant to a plea agreement, Cofield was convicted in

the State of Georgia for trafficking in methamphetamine.

 Important to the case at bar, Cofield’s 1999 possession of a .22 caliber pistol

and ammunition affixed to his own belt buckle will rebut any defense argument

minimizing defendant’s intent to possess the firearms charged in the instant case.1

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THE RULE

Rule 404(b), Federal Rules of Evidence provides:

Evidence of other crimes, wrongs or acts is not

admissible to prove the character of a person in order to

show that he acted 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.

Such evidence is not admitted automatically; the trial court must determine whether the

probative value of such evidence is outweighed by the danger of unfair prejudice. 

Furthermore, the standard of admissibility varies depending upon the purpose for which

the evidence is offered. For example, other acts may be admissible for one purpose

(such as intent), but may not meet the standard of admissibility if offered for another

purpose (such as identity). United States v. Beechum, 582 F.2d 989 (5th Cir. 1978).

INTENT

The en banc decision United States v. Beechum, 582 F.2d 898 (5th Cir.

1978), sets forth the requirements for admissibility of other acts evidence in the Fifth

and Eleventh Circuits. A two-step analysis is used to determine admissibility:

First, it must be determined that the extrinsic offense

evidence is relevant to an issue other than the defendant's

character. Second, the evidence must possess probative

value that is not substantially outweighed by its undue

prejudice and must meet the other requirements of Rule

403.

Beechum, at 911. This two-part analysis involves several separate inquiries, both into

the issue sought to be proved and into the nature of the extrinsic offense evidence

offered.

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The standard set forth in Beechum has been developed further in the

Eleventh Circuit's decision in United States v. Simon, 839 F.2d 1461, 1471 (11th Cir.)

cert. denied, 488 U.S. 861, 109 S.Ct. 158, 102 L.Ed.2d 129 (1988). Under Simon, the

government is required to demonstrate:

(1) a proper purpose for introducing the evidence, (2) that

the prior act occurred and that the defendant was the actor,

and (3) that the probative value of introducing the evidence

outweighs any prejudicial effect the evidence might have.

Simon, as cited in United States v. Perez-Garcia, No. 88-6159, slip op. at 3627, 3638

(11th Cir. July 10, 1990). Except for the second element listed in Simon, the Simon

elements are identical to the elements set forth in Beechum. A close examination of

Beechum and Simon reveals that the first two elements of Simon are simply a more

detailed breakdown of the first element of Beechum.

Under Beechum and Simon, the first inquiry is into relevancy. Relevancy

is defined as "'any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be without

the evidence.'" Beechum, at 911. Initially, then, the question is whether intent is an

issue.

Based upon information and belief, the United States expects the

defendant to argue that he had no intent to possess the firearms discovered in this

case. Consequently, defendant’s prior possession and use of a firearm is proper

404(b) evidence establishing his intent to possess the firearms charged in the instant

indictment.

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Furthermore, after intent is recognized as a relevant issue, the next

question is whether the other act evidence offered by the government is also relevant.

Where the evidence sought to be introduced is an extrinsic

offense, its relevance is a function of its similarity to the

offense charged. In this regard, however, similarity means

more than that the extrinsic and charged offense have a

common characteristic. For the purposes of determining

relevancy, "a fact is similar to another only when the

common characteristic is the significant one for the purpose

of the inquiry at hand." [Cite omitted].

Beechum, at 911. The question is not whether the other act is similar to the criminal act

being tried. Rather, the question is whether the intent required in the other act is similar

to the intent required in the criminal act being tried.

Indeed, possessing a firearm on any occasion requires the same intent. Thus,

the requisite mental state for the current charge and defendant’s prior bad acts are

exact. 

Once the government establishes that the other acts evidence is relevant,

that is, that the other acts evidence is probative of a disputed issue, the next step is to

show that the proffered other acts were, in fact, committed. The "task for the trial judge

is to determine whether there is sufficient evidence for the jury to find that the

defendant in fact committed the extrinsic offense." Beechum, at 913.

The judge need not be convinced beyond a reasonable

doubt that the defendant committed the extrinsic offense,

nor need he require the Government to come forward with

clear and convincing proof. [Footnote omitted]. The

standard for the admissibility of extrinsic offense evidence is

that of rule 104(b): "the preliminary fact can be decided by

the judge against the proponent only where the jury could

not reasonably find the preliminary fact to exist." [Cite

omitted].

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Beechum, at 913. As with the other aspects of the Beechum analysis, the Eleventh

Circuit has adopted this easy burden of proof concerning the other acts. The second

element of Simon deals with the government's responsibility to establish that the

extrinsic act occurred and the standard of proof the government is required to meet.

With regard to the standard of proof, Perez-Garcia states:

We have held that the defendant's commission of the

extrinsic offense need not be proven beyond a reasonable

doubt or even by clear and convincing evidence. United

States v. Astling, 733 F.2d 1446, 1457 (11th Cir. 1984). It is

sufficient if the jury could reasonably find from the evidence

that the defendant committed the offense.

Perez-Garcia, at slip opinion p. 3639. In United States v. Terebecki, 692 F.2d 1345

(11th Cir. 1982), the Court observed that the testimony of one witness concerning the

extrinsic offense was sufficient to meet the Beechum standard of proof. Terebecki, at

1349.

In the instant case the government will prove the other acts by eye

witnesses to Cofield’s possession of a .22 caliber pistol attached to his belt buckle. 

Clearly, such testimony will be sufficient to meet the Beechum, Terebecki and PerezGarcia standard of proof of extrinsic acts.

Since the defendant’s intent to possess the firearm in this case is an

issue, the government submits that the first step of the Beechum analysis and the first

two steps of the Simon analysis are established. However:

Once it is determined that the extrinsic offense requires the

same intent as the charged offense and that the jury could

find that the defendant committed the extrinsic offense, . . .

we turn to the second step of the analysis required by rule

404(b), whether the evidence satisfied rule 403.

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Beechum, at 913.

The principal determination to be made in the second step in Beechum

(which is the third step in Simon) is whether the probative value of the extrinsic

evidence is substantially outweighed by any danger of unfair prejudice.

Probity in this context is not an absolute; its value must be

determined with regard to the extent to which the

defendant's unlawful intent is established by other evidence,

stipulation or inference. [Footnote omitted]. It is the

incremental probity of the evidence that is to be balanced

against its potential for undue prejudice . . . If the

defendant's intent is not contested, then the incremental

probative value of the extrinsic offense is inconsequential . .

.

Beechum, at 914. If, on the other hand, intent is disputed, the probative value of

extrinsic offenses involving the same intent element is very high. Id.

In this case, defendant’s intent to possess firearms is a critical issue. As

such, the probative value of defendant’s use and possession of another firearm is very

high. Indeed, when lack of intent to possess a firearm is argued, Courts have

recognized the inherent value of similar acts evidence. For example, the United States

Court of Appeals for the District of Columbia squarely addressed this issue in United

States v. Cassell, 292 F.3d 788 (D.C. Cir. 2002). In Cassell, defendant was charged

with being a felon in possession of a firearm. At trial, defendant insisted that the

firearms discovered in his bedroom were not his. To rebut defendant’s argument that

he had no intent to possess the firearms, the government was allowed to admit

evidence establishing defendant’s prior firearm possession. Id. at 791, 792. On

appeal, the Circuit Court reasoned that the government was required to prove that the

defendant “knowingly possessed the firearms recovered from his bedroom.” Id. at 792.

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The Court noted that because there was no evidence that the defendant actually

possessed the firearms, the government could prove defendant’s constructive

possession. Id. Likewise, according to the Court: “[I]n cases where a defendant is

charged with unlawful possession of something, evidence that he possessed the same

or similar things at other times is often quite relevant to his knowledge and intent with

regard to the crime charged.” Id. at 793, quoting United States v. King, 254 F. 3d 1098

(D.C. Cir. 2001). Ultimately, the Circuit Court concluded that “evidence of Cassell’s

prior firearms possessions was relevant to show his knowledge and intent to possess

the firearms recovered from his bedroom.” Cassell at 795.

Importantly, other Circuit Courts share the D.C. Circuit’s reasoning on this issue. 

Notably, the Second Circuit, again in a felon in possession case, United States v.

Wayne Brown, 961 F.2d 1039 (2 Cir.1992), upheld the admission of similar acts nd

evidence to show intent, knowledge, or absence of mistake or accident. Specifically,

the Court concluded that introducing evidence of other firearms to establish knowledge

and absence of mistake or accident is permissible under Rule 404(b). Brown at 1042.

Likewise, the Fifth Circuit in United States v. Davis, 792 F.2d 1299 (5 Cir.

th

1986), validated the admission of previously seized firearms in a felon in possession

case. Applying Rule 404(b), the Court found that the prior acts tended to establish

defendant’s knowing possession of firearms in the instant case. Davis at 1305. The

Court specifically found that the prior acts evidence was more probative than

prejudicial. Id.

Further, the Eleventh Circuit, in United States v. Gomez 927 F.2d 1530 (11 Cir.

th

1991), upheld the District Court’s admission (under Rule 404(b)) of defendant’s prior

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conviction for possession of a firearm. Defendant was charged with violating 18 U.S.C.

924(c), possession of a firearm in relation to a drug trafficking crime. Id. at 1534. The

Eleventh Circuit held that Gomez’s possession of a concealed firearm on a prior

instance was relevant to a charge of possession of a firearm in his car while seeking to

transport drugs. Id. The Court reasoned that the evidence of the prior crime was

admissible to rebut defendant’s claim that the gun was for an innocent purpose or its

presence was a mere accident or mistake. Gomez at 1534.

Finally, Courts of the Middle District of Alabama have recently ruled on the

admissibility of previous firearms possession to prove intent in Felon in Possession

prosecutions. For example, in United States v. Herring, 2005 WL 2989804 (M.D. Ala.),

Judge Thompson admitted evidence of the defendant’s prior possession of a firearm to

show defendant’s criminal intent to possess a firearm recovered from his vehicle. In

reaching his decision, Judge Thompson noted that “the D.C. Circuit determined that a

prior gun possession was admissible to show ‘knowledge of and intent to possess the

firearm’ in the instant case.” See Herring at *1, quoting United States v. Cassell, 292

F.3d 788, 795 (D.C. Cir. 2002).

In addition, another factor in evaluating probative value is, "the overall similarity

of the extrinsic and charged offenses." Beechum, at 915. If there is little similarity

other than intent, then the probative value may be low. For example, if a defendant is

charged with stealing an automobile and the extrinsic offense offered is that he had, on

another occasion, embezzled bank funds; then the probative value of the extrinsic

offense is lower than if the extrinsic offense was also the theft of an automobile.

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In this case, there is no question of the requisite similarity. Indeed the acts are

exactly the same, unlawful possession of a firearm. Cited below are cases that

compare the similarity between the charged offense and the prior bad acts. If the cases

cited below are sufficiently similar, then the firearms possession in the instant case is

undoubtedly similar enough.

In United States v. Jenkins, 785 F.2d 1387, 1395 (9th Cir. 1986), one of

the defendants was charged with engaging in a scheme to obtain, by fraudulent means,

financing insured by the Federal Housing Administration. The Ninth Circuit held that the

district court properly admitted 404(b) evidence that approximately one year before the

charged offense this particular defendant had obtained conventional loans through

fraudulent means.

In United States v. Tullos, 868 F.2d 689 (5th Cir. 1989), the defendants

were convicted of making false entries in certain bank books, willful misapplication of

the bank's funds, and conspiracy to make false entries and misapply funds. One of the

convicted defendants was the bank's attorney. He claimed that he had never knowingly

submitted false closing statements to the bank. The prosecutor offered evidence that

the bank's attorney had issued duplicate bills to the bank for his services. In other

words, the attorney-defendant sent the bank one bill which contained a higher charge

for his services, and gave his own law firm a different bill showing a lower charge for the

same services. By doing this, the attorney-defendant concealed from his law firm the

true amount of his fee. The Fifth Circuit held that since the attorney-defendant had

offered the defense of mistake and lack of fraudulent intent, this extrinsic act evidence

regarding the fraudulent billing was properly admitted under 404(b).

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A final measure of the probative value of the extrinsic evidence is the closeness

in time of the other acts to the offenses charged. "[T]emporal remoteness deprecates

the probity of the extrinsic offense." Beechum, at 915. Intent at the time of the charged

offense is the issue for the jury. Here, the extrinsic act occurred in 1999. In United

States v. Salery, 830 F.Supp. 596 (M.D. Ala. 1993), the Court admitted extrinsic act

evidence that occurred four years before the charged offense. Id. at 599. Importantly,

the District Court noted that “decisions as to impermissible remoteness are so factspecific that a generally applicable litmus test would be of dubious value.” United

States v. Pollock, 926 F.2d 1044, 1048 (11 Cir.), cert. denied, 502 U.S. 985, 112 S.Ct.

th

593, 116 L.Ed.2d 617 (1991).

The government submits that each aspect of the Beechum test shows

that the extrinsic evidence proffered by the government should be admitted. 

Furthermore, a balancing of the probative value of the evidence shows that it is not

substantially outweighed by Rule 403 considerations.

First, the extrinsic evidence, "is not of a heinous nature; it would hardly

incite the jury to irrational decision by its force on human emotion." Beechum, at 917.

Furthermore, the proffered evidence will not confuse the issues, mislead the jury, or

waste time. The Court can and should instruct the jury as to the proper use of the

evidence by the jury. Indeed, such limiting instructions have been approved and

recommended by the Fifth Circuit, Beechum at 917, as well as the United States

Supreme Court. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99

L.Ed.2d 771 (1988).

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CONCLUSION

On the basis of United States v. Simon, 839 F.2d 1461 (11th Cir.) cert.

denied, 488 U.S. 861, 109 S.Ct. 158, 102 L.Ed.2d 129 (1988), and United States v.

Beechum, 582 F.2d 898 (5th Cir. 1978), the government respectfully requests that the

Court admit the above extrinsic act evidence at the trial of this case.

Respectfully submitted this 23rd day of February, 2007.

LEURA GARRETT CANARY

UNITED STATES ATTORNEY

/s/ Verne H. Speirs

VERNE H. SPEIRS

Assistant United States Attorney

1 Court Square, Suite 201

Montgomery, Alabama 36104

(334) 223-7280

(334) 223-7135 Fax

verne.speirs@usdoj.gov

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IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

 )

 v. ) CR. NO. 3:06cr208-MEF

)

JASON EDWARD COFIELD )

CERTIFICATE OF SERVICE

I hereby certify that on February 23, 2007, I electronically filed the foregoing with

the Clerk of the Court using the CM/ECF system which will send notification of such

filing to Pate DeBardeleben.

Respectfully submitted,

 

LEURA GARRETT CANARY

UNITED STATES ATTORNEY

/s/ Verne H. Speirs

VERNE H. SPEIRS

Assistant United States Attorney

1 Court Square, Suite 201

Montgomery, Alabama 36104

(334) 223-7280

(334) 223-7135 Fax

verne.speirs@usdoj.gov

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