United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3123/3228

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United States of America, * 

* 

Appellee/Cross-Appellant, * 

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Robert D. Strong, * 

* 

Appellant/Cross-Appellee. * 

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Submitted: May 10, 2005

Filed: July 26, 2005

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Before LOKEN, Chief Judge, BEAM and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

Robert D. Strong was convicted of one count of being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1) and sentenced to a term of 63 months'

imprisonment and three years' supervised release. For reversal, Strong argues that the

district court erred in admitting his 1987 convictions into evidence under Federal

Rule of Evidence 404(b). The government cross-appeals, arguing that the district

court erred by failing to sentence Strong as an armed career criminal under 18 U.S.C.

§ 924(e)(1). We affirm in part and reverse in part.
1

Gregory Davis, an arrestee in an unrelated matter, testified that the officers did

not immediately find the revolver but made the discovery after a thorough search.

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I. Background

St. Louis Metropolitan Police Officers Shell Sharp and Alan Ray saw a pickup

run a stop sign. The officers activated their lights and siren, but the truck did not

yield. After a short chase, the pickup turned onto a different street and stopped. The

officers parked their car behind the pickup. Strong, the driver of the pickup, exited

the truck and left the door open. Officer Sharp observed Strong reach for his

waistband, remove an object, and toss it into the truck. Officer Sharp drew his

weapon and asked Strong what he was doing. Strong responded that he was not from

the area and was lost. 

According to Officer Sharp, he directed Strong to move to the rear of the

pickup with Officer Ray, which Strong did. Officer Sharp looked into the open

driver's door and saw a revolver on the driver's side floor. Officer Sharp arrested

Strong and also searched Strong incident to the arrest and found drug paraphernalia.

Officer Sharp took the gun from Strong's truck and showed it to Officer Ray. 

In contrast, Strong contended that Officer Sharp did not find the weapon on the

floorboard of his truck at the time of the stop, but later found the revolver in another

area of the truck among items belonging to Linda Hemphill.1

 Strong claimed that

Officers Sharp and Ray had been watching a house where they suspected drug

activity. Strong insisted that Hemphill lived in that house and that Strong was helping

her move into a new residence. Strong also claimed that the reason the officers

stopped him was that they saw Strong leave that house. Strong stated that he had

Hemphill's items in his truck, including the gun.

Strong was indicted for being a felon in possession of a firearm in violation of

§§ 922(g)(1) and 924(e)(1). At trial, the government offered Strong's prior
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convictions for first-degree robbery in the state of Washington, and felon in

possession of a firearm in the United States District Court for the Eastern District of

Missouri. The district court admitted the evidence pursuant to Fed. R. Evid. 404(b)

over Strong's objection on grounds of relevance and prejudice. The court gave a

limiting instruction, prohibiting use of the prior crimes to prove Strong committed the

present one. The jury convicted Strong. 

The Government requested that Strong be sentenced as an armed career

criminal in conformity with the Presentence Investigation Report's (PSR)

recommendation because Strong had three previous convictions for violent felonies.

The district court refused, basing its decision on Blakely v. Washington, 124 U.S.

2531 (2004). The court believed that it was precluded by Blakely from finding that

Strong had prior convictions that were considered to be violent felonies for armed

career criminal purposes because those facts had to be established by the jury.

II. Discussion

A. Admission of 404(b) Evidence

Strong argues that the district court erred in admitting his 1987 convictions into

evidence under Fed. R. Evid. 404(b). We review a district court's decision to admit

evidence for abuse of discretion and "we will reverse only when such evidence

clearly had no bearing on the case and was introduced solely to prove the defendant's

propensity to commit criminal acts." United States v. Frazier, 280 F.3d 835, 847 (8th

Cir. 2002) (citation omitted).

Over Strong's objection, the district court admitted evidence under Fed. R.

Evid. 404(b) of Strong's 1987 convictions for robbery and being a felon in possession

of a firearm. Strong argues that the evidence that he possessed a gun should have

been excluded because it led to improper inference that having done it before, he

would do it again. 
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Under Rule 404(b), evidence of other crimes is admissible to prove "motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident." Evidence is admissible under Rule 404(b) if it is: (1) relevant to a material

issue; (2) similar in kind and not overly remote in time to the crime charged; (3)

supported by sufficient evidence; and (4) higher in probative value than in prejudicial

effect. United States v. Green, 151 F.3d 1111, 1113 (8th Cir. 1998).

1. Material Issue

At trial, Strong defended himself by asserting "that he was merely present in

the same truck where the gun was found." "A defendant denies both knowledge and

intent when he asserts the 'mere presence' defense—that he was present, but did not

know of the presence of illegal [activity]." United States v. Tomberlin, 130 F.3d 1318,

1320 (8th Cir. 1997); see also United States v. Hawthorne, 235 F.3d 400, 404 (8th

Cir. 2000) (holding defendant's mere presence defense put his knowledge and intent

at issue). In Hawthorne, we approved the use of Rule 404(b) evidence of prior drug

possession "to show knowledge and intent when intent is an element of the offense

charged." Id. In United States v. Harris, 324 F.3d 602 (8th Cir.), cert. denied, 124 S.

Ct. 209 (2003), we affirmed the district court's admission under Rule 404(b) of

"testimony by a visitor to [defendant's] home that she saw him possess a firearm prior

to his arrest." Id. at 607; see also United States v. Jernigan, 341 F.3d 1273, 1281

(11th Cir. 2003) ("The case law in this and other circuits establishes clearly the

logical connection between a convicted felon's knowing possession of a firearm at

one time and his knowledge that a firearm is present at a subsequent time (or, put

differently, that his possession at the subsequent time is not mistaken or

accidental)."). Strong's prior convictions address the material issue of his knowledge

of the presence of the firearm and his intent to possess it.

2. Similar in Kind and Not Too Remote in Time

We have held, "'when admitted for the purpose of showing intent, the prior acts

need not be duplicates, but must be sufficiently similar to support an inference of
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criminal intent.'" United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995)

(quoting United States v. Burkett, 821 F.2d 1306, 1309 (8th Cir. 1987)). Strong's prior

acts were similar in kind to those now in question—each involving his illegal

possession of a firearm.

"To determine if evidence is too remote, 'the court applies a reasonableness

standard and examines the facts and circumstances of each case.'" United States v.

Franklin, 250 F.3d 653, 659 (8th Cir. 2001) (quoting Shoffner, 71 F.3d at 1432). In

United States v. Mejia-Uribe, 75 F.3d 395, 398 (8th Cir. 1996), we held the "inquiry

regarding the remoteness of a prior conviction is fact specific." We stated that the

answer to how long is too long depends on the theory that makes the evidence

admissible. Id. "[T]here is no absolute rule regarding the number of years that can

separate offenses. Rather, the court applies a reasonableness standard and examines

the facts and circumstances of each case." United States v. Engleman, 648 F.2d 473,

479 (8th Cir. 1981). 

Here, approximately 16 years elapsed between Strong's earlier convictions and

the present one. While we have "upheld the introduction of evidence relating to acts

or crimes which occurred 13 years prior to the conduct challenged," United States v.

McCarthy, 97 F.3d 1562, 1573 (8th Cir. 1996) (citation omitted), we have "been

reluctant to go beyond [that] 13-year time frame." Id. But, our reluctance should not

be perceived as constituting a definitive rule of limitation. Here, we believe the

evidence supports the government's theory—Strong's history of firearms convictions

directly bears on his knowledge of, and intent to possess a firearm at the time of the

charged offense. Based upon the facts of this case, we believe that Strong's earlier

convictions are not too remote. 

3. Sufficient Evidence, Probative Value, and Prejudicial Effect

The government provided sufficient evidence of Strong's prior convictions,

which were testified to by Special Agent Zornes, who identified certified copies of
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the convictions. In Franklin we assigned great weight to the district court's balancing

of evidentiary prejudice against its probative value. We held that

although admitting evidence of prior criminal conduct has

some prejudicial effect on the defendant, whether this

effect substantially outweighs the evidence's probative

value is left to the discretion of the trial court. . . . Because

the trial court must balance the amount of prejudice against

the probative value of the evidence, this Circuit will

normally defer to that court's judgment.

Franklin, 250 F.3d at 659. "Mere prejudice is not enough, however." United States

v. Crump, 934 F.2d 947, 955 (8th Cir. 1991). Additionally, "the presence of a limiting

instruction diminishes the danger of any unfair prejudice arising from the admission

of other acts." Franklin, 250 F.3d at 659. Here, in admitting the Rule 404(b) evidence,

the district court gave a limiting instruction, prohibiting the jury from using the prior

acts to decide whether Strong committed the crimes charged. The probative value of

the evidence outweighed any prejudice. Harris, 324 F.3d at 607. 

B. Armed Career Criminal

The district court refused to sentence Strong as an armed career criminal under

the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), because the court believed

that Blakely v. Washington, 124 S. Ct. 2531 (2004), precluded it from making

findings that Strong's prior offenses were violent felonies. We review de novo a

district court's determination that a prior offense constitutes a crime of violence under

18 U.S.C. § 924(e). United States v. Griffith, 301 F.3d 880, 884 (8th Cir. 2002).

The decision of the district court calls into question the continuing validity of

Almendarez-Torrez v. United States, 523 U.S. 224 (1997). The government argues

that the holding in United States v. Booker, 125 S. Ct. 738 (2005), did not overrule

Almendarez-Torrez and we agree. The Supreme Court concluded in AlmendarezTorrez that recidivism, as a traditional basis for increasing an offender's sentence,
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need not be charged in the indictment because "recidivism 'does not relate to the

commission of the offense, but goes to the punishment only, and therefore . . . may

be subsequently decided.'" Id. at 244 (emphasis in original) (citation omitted). "[T]o

hold that the Constitution requires that recidivism be deemed an 'element' of

petitioner's offense would mark an abrupt departure from a longstanding tradition of

treating recidivism as 'go[ing] to the punishment only.'" Id. (citation omitted). 

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court explained

the reasoning behind Almendarez-Torrez stating 

the certainty that procedural safeguards attached to any

'fact' of prior conviction, and the reality that [the defendant

failed to] challenge the accuracy of that 'fact' in his case,

mitigate[s] the due process and Sixth Amendment concerns

otherwise implicated in allowing a judge to determine a

'fact' increasing punishment beyond the maximum of the

statutory range. 

Id. at 488. In Booker, the Supreme Court affirmed its holdings in Apprendi and

Almendarez-Torrez, stating, "[a]ccordingly, we reaffirm our holding in Apprendi:

Any fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or a

jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt." Booker, 125 S. Ct. at 756; see also United States v. Sanders, 377

F.3d 845, 847 n.3 (8th Cir. 2004) (indicating that the Supreme Court exempted prior

convictions from the proof requirement of Blakely). Moreover, we have rejected the

claim that the jury must determine whether a prior conviction constitutes a violent

felony, United States v. Campbell, 270 F.3d 702, 708 (8th Cir. 2001), cert. denied,

535 U.S. 946 (2002); United States v. Abernathy, 277 F.3d 1048, 1050 (8th Cir.),

cert. denied, 535 U.S. 1089 (2002), or that the conviction qualified as "aggravated."

See United States v. Kempis-Bonola, 287 F.3d 699, 702 (8th Cir. 2002), cert. denied,

537 U.S. 914 (2002) ("While a finding that the prior felony conviction qualifies as
2

Following oral argument, Strong cited United States v. Ngo, 406 F.3d 839 (7th

Cir. 2005), under Federal Rule of Appellate Procedure 28(j), as an examination of the

limitations of Shepard. We do not find anything in Ngo that is inconsistent with

Shepard's holding and determine it to be inapplicable to this case. 

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'aggravated' is a fact that can increase the defendant's sentence beyond the initially

prescribed maximum sentence, the plain language of Apprendi excepts the fact of

prior convictions from its holding"); United States v. Perez-Perez, 337 F.3d 990, 997

(8th Cir. 2003), cert. denied, 124 S. Ct. 336 (2003).

18 U.S.C. § 924(e) "mandates a minimum 15-year prison sentence for anyone

possessing a firearm after three prior convictions for serious drug offenses or violent

felonies." Shepard v. United States, 125 S. Ct. 1254, 1257 (2005). To determine

whether a prior conviction is a violent felony under § 924(e) following a jury trial, a

sentencing court is limited to examining the "statutory elements, charging documents,

and jury instructions." Id.2

 Violent felonies present a serious risk of physical injury.

18 U.S.C. § 924(e)(2)(B)(ii). 

We find that Strong's prior convictions are violent felonies. Strong was first

convicted in the state of Washington for first-degree robbery. The charging

documents indicate that he stole money from a person at gunpoint. See U.S.S.G. §

4B1.2, cmt. (n.1) (robbery is a crime of violence). Strong's second conviction was for

attempted burglary of a building in Missouri. We have held that attempted burglary

is a violent felony under Missouri law:

As we have previously observed, '[i]f an attempted

burglary conviction is based on a statute which requires a

substantial step towards the completion of the crime, then

it qualifies as a predicate violent felony under the

'otherwise clause'' of § 924 (e). United States v. Moore, 108

F.3d 878, 880 (8th Cir. 1977) (citing United States v.

Solomon, 998 F.2d 587, 589–90 (8th Cir. 1993), cert.
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denied, 510 U.S. 1026, 114 S. Ct. 639, 126 L.Ed.2d 598

(1993)). Because the Missouri attempt statute requires a

'substantial step,' and we do not believe that Missouri

defines 'substantial step' idiosyncratically, . . . we believe

that attempted second-degree burglary under Missouri law

qualifies as a predicate violent felony under the ACCA.

United States v. McKinney, 328 F.3d 993, 995 (8th Cir. 2003). 

Strong was also convicted of stealing from a person in Missouri. Strong stole

by reaching into a person's pocket and taking money. In Griffith, 301 F.3d at 885, we

held that the crime of theft from a person involves conduct that presents a serious risk

of physical injury. See U.S.S.G. 4B1.2(1). We cited several decisions from other

circuits holding that theft or larceny from a person qualified as a violent felony. In

United States v. Payne, 163 F.3d 371 (6th Cir. 1998), the Sixth Circuit, in concluding

that larceny involved a serious risk of physical injury, held:

Michigan law interprets 'from the person' narrowly to

require that the property be taken from the possession of

the victim or be taken from within the immediate presence

or area of control of the victim. This is clearly the type of

situation that could result in violence. Any person falling

victim to a crime involving such an invasion of personal

space would likely resist or defend in a manner that could

lead to immediate violence. Whether or not violence or

harm actually results in any given instance is not relevant.

We agree with the First Circuit that 'although larceny from

the person 'typically involves no threat of violence,' the risk

of ensuing struggle is omnipresent.' 

Id. at 375 (emphasis added) (quoting United States v. DeJesus, 984 F.2d 21, 24 (1st

Cir. 1993)); see also United States v. Wofford, 122 F.3d 787, 794 (9th Cir. 1997)

(holding that theft from a person is a violent felony under § 924(e)); United States v.

Hawkins, 69 F.3d 11, 13 (5th Cir. 1995) (holding that theft from a person is a crime
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of violence because of the risk of injury involved). In accord with Griffith, Payne,

Wofford, and Hawkins, we hold that stealing from a person constitutes a crime of

violence under § 924(e). The district court erred in not sentencing Strong as an armed

career criminal. 

III. Conclusion

For the foregoing reasons we affirm the district court in part and reverse in

part, remanding for proceedings consistent with this opinion.

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