NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-1831

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UNITED STATES OF AMERICA

v.

JESSE NATHANIEL PENN, JR.

Appellant

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Appeal from the United States District Court 

for the Western District of Pennsylvania

(D.C. Crim. No. 2:12-cr-00240-001)

District Judge: Honorable Terrence F. McVerry

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Argued February 12, 2015

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Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges.

(Opinion Filed: April 14, 2015)

Lisa B. Freeland, Esq.

Candace Cain, Esq. [ARGUED]

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

David J. Hickton, Esq.

Michael L. Ivory, Esq. [ARGUED]

Rebecca R. Haywood, Esq.

Office of the United States Attorney

700 Grant Street
2

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

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OPINION*

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VANASKIE, Circuit Judge.

Appellant Jesse Nathaniel Penn, Jr. was convicted of possessing firearms as a 

felon under 18 U.S.C. § 922(g)(1). At trial, the Government introduced evidence that 

Penn had previously been convicted of possession of a firearm in furtherance of drug 

trafficking under 18 U.S.C. § 924(c). Both parties now agree that the nature of Penn’s 

prior conviction was admitted in error. Because we conclude that this error was not 

harmless, we will vacate and remand for a new trial.

I.

In the spring of 2011 Penn was staying at his estranged wife Gineara’s house. On 

June 16, law enforcement officers entered Gineara’s home to arrest Penn for a probation 

violation. While securing the premises, an officer noticed a bulletproof vest in plain sight

in the basement. Other officers found Penn on the second floor. After obtaining a search 

warrant for contraband related to the vest, officers discovered that a backpack near the 

vest contained a pink .380 Taurus handgun, a Smith & Wesson revolver, and 

ammunition. About a foot from the backpack, officers found a shoebox containing 

official papers in Penn’s name and three cell phones. On the car ride to the county jail, 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
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Penn asked what had been found in the house. When a detective told him “two guns and 

a vest,” Penn asked “is there anything I can do to make those guns go away?” (App. 

134.)

The Government charged Penn as a felon in possession of firearms under 18 

U.S.C. § 922(g)(1). The Government notified Penn before trial that it would introduce 

his 2005 felony conviction for the same crime because “[h]aving pleaded not guilty to the 

Indictment, defendant has placed the matter of his knowledge and intent directly at issue. 

Defendant’s previous firearms possession conviction is relevant to the issue of 

knowledge and intent.” (App. 75.) Penn responded that because he would argue that he 

did not possess the firearms in the backpack, “the issue of ‘knowledge’ is a ploy to put 

enormously prejudicial evidence before the jury.” (App. 80.) The District Court 

admitted the 2005 conviction over Penn’s objection, but instructed the jury:

You may consider Mr. Penn’s conviction in 2005 only 

for one narrow purpose. You may not consider his prior 

conviction in deciding whether or not Mr. Penn possessed the 

guns and ammunition with which he is charged in this case.

However, if you determine that the Government has 

proven beyond a reasonable doubt that Mr. Penn possessed 

the guns and ammunition charged in this case on June 16, 

2011, then you may consider his 2005 conviction only to 

decide whether or not that possession was knowing as 

opposed to inadvertent or mistaken.

. . .

You may not use the evidence of Mr. Penn’s prior 

conviction in 2005 for any other purpose. Mr. Penn is not on 

trial now for committing this other act in 2005. You may not 

consider the evidence of his 2005 conviction as proof that he, 
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the Defendant, has a bad character or any propensity or 

tendency or predisposition to commit crimes.

(App. 296–97.) The jury convicted Penn and he timely appealed.

Penn now seeks a new trial on the basis that the District Court erred in admitting 

evidence of his prior conviction. The Government concedes that the District Court 

erred,

1 but argues that the error was harmless.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate 

jurisdiction under 28 U.S.C. § 1291. We review the improper admission of evidence of a 

prior felony conviction for harmless error. United States v. Brown, 765 F.3d 278, 295 (3d 

Cir. 2014). “The test for harmless error is whether it is highly probable that the error did 

not contribute to the judgment, which requires that the court possess a sure conviction 

that the error did not prejudice the defendant.” United States v. Cunningham, 694 F.3d 

372, 391–92 (3d Cir. 2012) (quoting United States v. Vosburgh, 602 F.3d 512, 540 (3d 

Cir. 2010)) (internal quotation marks omitted) (alterations omitted). The Government 

 

1 Fed. R. Evid. 404(b) prohibits using evidence of a prior crime to show a 

defendant’s propensity for criminality, but allows such evidence to show “motive, 

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

accident.” The Government maintains that Penn’s 2005 conviction was technically 

admissible under this Rule to show Penn’s knowledge of the firearms, but conceded that 

it “failed to articulate a chain of inferences demonstrating how the prior conviction was 

relevant to show Penn’s knowledge.” Appellee Br. at 14. 

Penn’s 2005 conviction, however, has no bearing on his knowledge of firearms in 

his wife’s basement in 2011. Instead, it supports only the impermissible inference that 

Penn is the type of person who would possess guns. Such propensity evidence

undermines the presumption of innocence, and the damage cannot be repaired by 

instructing the jury to ignore the 2005 conviction. See Gov’t of Virgin Islands v. Toto, 

529 F.2d 278, 283 (3d Cir. 1976) (“A drop of ink cannot be removed from a glass of 

milk.”).
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bears the burden of showing harmlessness. United States v. Reynolds, 710 F.3d 498, 515 

(3d Cir. 2013).

III.

Only last year, we decided two cases presenting the question raised here: whether 

the erroneous admission of evidence of a prior firearms offense constituted harmless error

at a trial on firearms charges. In United States v. Brown, police officers discovered a 

pistol underneath Brown’s seat in a car, and Brown claimed he did not know the weapon 

was there. 765 F.3d at 285. The Government introduced evidence at trial that Brown had 

previously used a straw purchaser to acquire firearms. Id. at 285–86. On appeal, we held 

that the District Court had erroneously admitted the straw purchaser evidence under Rule 

404(b). Id. at 292-94. We noted that although the Government presented a “substantial 

case” against Brown, it “failed to present anyone who could put the firearm in Brown’s 

hands,” and one of Brown’s witnesses “testified that she placed the gun under the seat 

without Brown’s knowledge.” Id. at 295. We therefore held that we could not reach a 

“sure conviction” that Brown was not prejudiced by the erroneous admission of the straw 

purchaser evidence. Id.

Similarly, in United States v. Caldwell, a jury convicted Caldwell of being a felon 

in possession of a firearm after the District Court admitted Caldwell’s prior firearm 

possession convictions. 760 F.3d 267, 274 (3d Cir. 2014). We held that the convictions 

should not have been admitted under Fed. R. Evid. 404(b), and refused to declare this 

error harmless because the defendant “managed to poke holes in the Government’s 
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investigation,” “vigorously maintained his innocence,” and introduced witness testimony 

supporting his case. Id. at 283, 285.

Here, as in Brown and Caldwell, the Government has presented substantial 

evidence that Penn possessed the firearms found in his wife’s basement. Penn asked “[I]s 

there anything I can do to make those guns go away?” (App. 134); his wife testified that 

she told Penn about the backpack containing the firearms and he promised to “take care 

of it” (App. 220); officers found Penn’s personal items near the backpack; and records 

suggest that on the morning of his arrest, Penn read text messages on the cell phones

found near the backpack. 

However, as in Brown and Caldwell, the Government failed to produce direct 

evidence that Penn possessed the firearms. Moreover, Penn identifies a number of 

weaknesses in the Government’s case: one of the firearms contained DNA belonging to 

someone other than Penn; his wife admitted that she feared she might go to prison and 

lose her children if she did not cooperate against Penn and answer the questions the way 

the agents wanted; and Penn was not consistently living at his wife’s house (in fact, it 

was the third place officers looked for him). In light of the powerful prejudicial effect of 

Penn’s prior conviction and the lack of overwhelming evidence supporting the 

Government’s case, we lack a “sure conviction” that the error here was harmless.2 

Accordingly, Penn is entitled to a new trial.

 

2 On appeal, Penn also challenges the District Court’s refusal to admit certain text 

messages that purport to show that Gineara was biased towards him. The District Court 

did not allow that evidence because Penn failed to introduce the text messages when 
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IV.

For the reasons set forth above, we will vacate the judgment of the District Court

and remand for a new trial.

 

Gineara was on the stand. Because we will remand on other grounds, we need not decide 

whether that ruling was in error.