United States Court of Appeals

For the Eighth Circuit

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No. 14-2149

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Curtis Adams

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: January 16, 2015

 Filed: April 24, 2015

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Before WOLLMAN, SMITH, and SHEPHERD, Circuit Judges.

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SMITH, Circuit Judge.

Curtis Adams appeals his conviction for being a felon in possession of a

firearm. At trial, the district court granted the government's motion in limine to admit 1

evidence of Adams's previous convictions for firearm offenses under Rule 404(b) of

The HonorableCatherine D. Perry, UnitedStatesDistrict Judge for the Eastern 1

District of Missouri. 
the Federal Rules of Evidence to show that Adams had the required intent and

knowledge to possess the firearm. Adams argues that the evidence of these prior

convictions should have been excluded. We affirm.

I. Background

On May 28, 2013, six police detectives approached a group of individuals in

Kinlock, Missouri, after observing what appeared to be hand-to-hand drug

transactions. Upon seeing the detectives, Adams clutched his waistband and fled the

scene through a nearby apartment complex. Four detectives pursued. Detective Chad

Hinds testified that, while in pursuit, he saw Adams brandish a semi-automatic pistol

and angle his body to point it backwards at the detectives as he fled. Detective Hinds

signaled to the other detectives that he saw a firearm and ordered Adams to drop the

firearm. When Adams did not comply, Detective Hinds fired two rounds at Adams.

According to several detectives, Adams then dropped the firearm in the grass.

Detective Sean Becker stayed with the weapon while the others continued the pursuit.

The detectives apprehended Adams when he tripped in a grassy area. Detective

Becker and Detective William Bates transported Adams to the hospital to treat an

injury Adams sustained from his fall. Both detectives testified that while in their

custody, Adams made incriminating statements about possessing the firearm.

Adams was indicted for one count of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). Adams pleaded not guilty. The government

moved in limine to introduce evidence of Adams's prior convictions under Rule

404(b) to prove his knowledge of firearms and his intent to possess a firearm. These

two prior convictions included a 2008 conviction in federal court for being a felon in

possession of a firearm and a 2005 state-court conviction for unlawful use of a

weapon—carrying a concealed weapon. In both cases, Adams was convicted of

carrying semi-automatic pistols similar to the one police alleged he carried on the day

of his arrest. At the final pre-trial conference, the district court accepted a stipulation

between the parties to delay ruling on the motion until it became relevant at trial.

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At the end of the first day of trial and after the jurors had been dismissed, the

court revisited the motion in limine. The government suggested that the time wasripe

for the court to rule on the motion because Adams's defense elicited testimony that

questioned whether he actually possessed the firearm. Adams's defense was

essentially based on a theory that the detectives planted the firearm and wrongfully

accused Adams of possessing it. 

The court and the government engaged in an extensive exchange on the 404(b)

factors at issue. The court understood the government's argument for using the prior

convictions to prove knowledge: "That he knew what a firearm was[ and] he knew

that what he had in his possession was in fact a firearm." However, the court noted,

"I understand . . . in another kind of case, 'You knew it was crack cocaine, not a piece

of gravel. You knew this was a gun, not a toy.' That, I understand knowledge." Under

the Rule 403 standard, however, the court thought that using the prior convictions had

very little probative value because "do we really think that there's anybody in the

world who doesn't know what a gun is? . . . [S]o the fact that he had this previous gun

conviction—does that really show that he knew what a gun was any more than any

other human being . . . [?]" 

The court also questioned use of the prior convictions to prove intent under

404(b) "because it's always seemed to me that when [the government is] saying [past

firearm convictions] prove[] intent, it's really saying propensity." Even Adams's

counsel, however, conceded that she "underst[ood] how easily these convictions are

admitted in gun cases." The court reflected upon its view that, while Eighth Circuit

precedent supporting admission of such evidence is ample, the rationale supporting

its probative value remained unsatisfactory. After repeated inquiries to the

government, the court acknowledged that the Eighth Circuit has "said many, many

times it can be used to show intent. I'm just trying to ask for an explanation for how

that works."

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Concluding the discussion with counsel, the district court stated:

If I were writing . . . the law, . . . I would say it's inadmissible; however,

I am constrained by the Eighth Circuit, and even though I think that the

danger of unfair prejudice outweighs the probative value, I have been

told on numerous occasions that I'm not allowed to think that, and so I

don't really have a role in this. The Eighth Circuit says that convictions

of a similar nature are admissible to show—and then they list the whole

thing, and nobody ever explains why, short of knowledge, which I do

understand. I mean sometimes if there would be motive or

absence—well, whatever, but I—so I think that it is admissible under

404(b). It's a rule of inclusion as the Eighth Circuit tells us and even

though it says it's not, and so I will allow it to be admitted because the

Eighth Circuit has made it clear that being a felon in possession of a

firearm or a conviction for carrying a concealed weapon or unlawful use

of a weapon is admissible as 404(b) evidence in a later prosecution for

felon in possession of a firearm, and there are probably a hundred Eighth

Circuit cases that say that. So I will admit it and find that it's admissible

for one of those purposes.

The next day at trial, the court twice gave the jury a limiting instruction that they

could only consider Adams's prior convictions to show his knowledge or intent, not

to show propensity. 

Adams's defense strategy was to argue that he did not possess the alleged

firearm at all, but that law enforcement officers planted the firearm. The government

called the four officers, some of whom were involved in the chase and arrest of

Adams, as witnesses. These officers testified that they (1) saw Adams pointing the

gun at them; (2) saw Adams drop the firearm; and (3) heard Adams make

incriminating statements about possessing the firearm.

Detective Hinds was the first to testify. Detective Hinds lead the foot pursuit

of Adams. He testified to being "[t]wenty to 30 feet" behind Adams while in pursuit.

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Detective Hinds testified that he saw "Mr. Adams'[s] right hand come up away from

his body, holding a black . . . pistol, at which time it came around and was pointed in

our direction." Detective Hindstestified that he yelled "[g]un, gun, gun," unholstered

his firearm, and fired two shots at Adams. After his second shot, Detective Hinds

testified that "Mr. Adams immediately dropped the firearm to . . . the grass."

Detective Hinds continued to pursue Adams while another officer, Detective Becker,

stayed behind with the firearm where it lay.

Detective Becker testified next. Detective Becker stated that while he was

pursing Adams, roughly "20 feet or so" behind him (and behind Detective Hinds), he

also saw Adams pointing the gun back towards the detectives. After another officer

(Detective Hinds) fired two rounds at Adams, he testified that he saw Adams drop the

firearm. Detective Becker stopped and remained with the firearm while the other

detectives pursued Adams. Detective Becker also testified that while he and Detective

Bates were transporting Adams to the hospital after Adams's arrest, Adams pointed

towards a parked vehicle they were passing on the road. According to Detective

Becker, Adams stated that his brother wasrecently shot at while inside that particular

vehicle; the vehicle had bullet holes in its rear. Adams further stated that he had the

firearm because he was "attempting to protect himself and his brother." After this

testimony, the government re-introduced Exhibit 2A, which was the Springfield

Armory 9mm pistol that Adams allegedly possessed. Detective Becker identified the

firearm as the one that he saw Adams drop and the one that he personally stayed with

until Detective Clay Peeler of the St. Louis County Police later seized it. 

Detective Bates was next to testify and corroborated Detective Becker's

testimony. Detective Bates testified that he and Detective Becker transported Adams

to the hospital after Adams's arrest. During transit, Detective Becker testified that

Adams "mentioned he had [the firearm] on him because his brother had been shot at

earlier and basically more so for protection." Adams made this statement while they

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were passing an old Chevrolet van that his brother owned, which had bullet holes in

the rear of the van. 

Finally, Detective Nicholas Payne testified. He pursued Adams on a different

route in an attempt to cut him off. He testified that after he heard Detective Hinds yell

"[g]un," he heard two gunshots. Detective Payne stated that "[a]fter the shots were

fired, I observed [Adams] drop the firearm, and he stumbled a little bit, and then he

continued running." He testified that he moved the firearm from where Adams

dropped it in order to secure it. He did not direct the evidence technician to take

photos of the gun where it was dropped. 

Adams's defense counsel vigorously cross-examined the detectives. She

pointed out that the police reports did not include Adams's alleged confession; also,

she highlighted that the detectives did not direct the evidence technician to take

photographs of the firearm at the scene. The jury ultimately found Adams guilty, and

the court later sentenced him to 120 months' imprisonment.

II. Discussion

Adams argues on appeal that the district court abused its discretion by

admitting his prior illegal firearms convictions despite concluding that "the danger

of unfair prejudice outweighs the probative value."2

Rule 404(b) declares inadmissible "[e]vidence of a crime . . . to prove a

person's character in order to show that on a particular occasion the person acted in

accordance with the character." Fed. R. Evid. 404(b)(1). "This evidence may be

We recognize that the court'slanguage does not track Rule 403 exactly, which 2

allows a court to "exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice." Fed. R. Evid. 403 (emphasis added).

The government conceded at oral argument, however, that the district court need not

recite the Rule 403 verbatim in its finding.

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admissible[, however,] for another purpose, such as proving motive, opportunity,

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

accident." Id. at 404(b)(2) (emphases added). "'We review the district court's

admission of evidence of past crimes under [Federal Rule of Evidence] 404(b) for

abuse of discretion, and we will not reverse unless the 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. Bassett, 762 F.3d 681, 687 (8th Cir. 2014)

(alteration in original) (quoting United States v. Banks, 706 F.3d 901, 906 (8th Cir.

2013)), cert. denied, 135 S. Ct. 882 (2014). We will only reverse a conviction if the

evidentiary error is not harmless. United States v. Langley, 549 F.3d 726, 729 (8th

Cir. 2008). "An evidentiary error is harmless when, after reviewing the entire record,

we determine that the substantial rights of the defendant were unaffected, and that the

error did not influence or had only a slight influence on the verdict." Id. (quotations

and citation omitted).

Rule 404(b) evidence is admissible 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 prejudicial effect.'" United

States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (quoting United States v.

Strong, 415 F.3d 902, 905 (8th Cir. 2005)). Once determined admissible under

404(b), evidence must still pass the "substantially outweighed" test of Rule 403. See

Clark v. Martinez, 295 F.3d 809, 814 (8th Cir. 2002) (finding that evidence that

would otherwise be admissible under Rule 404(b) still has to meet the requirements

of Rule 403). 

Adams argues on appeal that the district court's statements within its Rule 403

analysis precludesthe admissibility of his prior convictions. According to Adams, the

district court erred in admitting evidence that it had concluded carried more danger

of unfair prejudice than probative value. Furthermore, he argues that this error was

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not harmless because the unfair prejudice served as a "lure to distract jurors" from

"doubts in the detectives' credibility." 

We have held on many occasionsthat prior convictions of firearm offenses are

admissible to prove that the defendant had the requisite knowledge and intent to

possess a firearm. See, e.g., United States v. Stroud, 673 F.3d 854, 861 (8th Cir.

2012); United States v. Halk, 634 F.3d 482, 487 (8th Cir. 2011) ("[The defendant]'s

prior firearms offenses address the material issue of his knowledge of the presence

of the firearm and his intent to possess it." (citation omitted)); United States v. Oaks,

606 F.3d 530, 539 (8th Cir. 2010) ("[The defendant]'s prior conviction for armed

robbery addresses the material issue of his knowledge of the presence of the firearm

and his intent to possess it." (citation omitted)); Walker, 470 F.3d 1271, 1274 (8th

Cir. 2006) (same).

Stroud, for example, is quite similar to Adams's case. In Stroud, law

enforcement officers heard two gunshots and then saw the defendant running around

a corner. 673 F.3d at 857. The officers saw the defendant clutching his waistband as

he was running. Id. The defendant attempted to climb over a fence, but one of the

pursuing officers was able to grab the defendant by the shoulder and keep him from

getting over the fence. Id. at 858. The officerssaw the defendant throw what appeared

to be a firearm over the fence in a balled-up t-shirt. Id. While one officer stayed with

the defendant, who had been placed under arrest, the other officer found the items on

the other side of the fence, which included a magnumrevolver. Id. The defendant was

convicted of being a felon in possession of a firearm, but challenged the admission

of his prior conviction of unlawfully possessing a machine gun on appeal. Id. at 859.

We upheld the district court's admission of the prior conviction, finding that the prior

conviction "is relevant to [the defendant]'s familiarity with and knowledge that he

possessed a firearm." Id. at 861. 

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Thus, under the initial Rule 404(b) analysis, our precedent indicates that

previous firearm-related crimes can be relevant to prove that a defendant had the

necessary knowledge that a firearm was present on or near his person and that a

defendant had the intent to possess the firearm solely, jointly, or constructively. The 3

district court agreed. This case, however, introduces an unusual scenario. Here, the

district court agreed that the evidence had a permitted use under 404(b)(2) but then

also stated that, in her view, the probative value of the evidence was outweighed by

a danger of unfair prejudice. Nevertheless, the court ultimately ruled that the evidence

was admissible despite stating misgivings about its potential for unfair prejudice and

perceived constraints of this circuit's precedent on the court's Rule 403 discretion.

The district court's statements notwithstanding, circuit precedent contains no

restriction on a district judge's ability to weigh the factors listed in Rule 403 and

admit or exclude evidence that otherwise meets the admissibility requirements of

Rule 404(b). 

Even assuming arguendo that the district court erred, on this record, we

conclude thatsuch error would be harmless.The government presented evidence from

multiple witnesses that they saw Adams possess the firearm, saw him discard it, then

later heard Adams admit to possessing the firearm. It was the jury's province to

believe or disbelieve the testimony of any or all of the officers.

After granting the government's motion in limine, the court twice issued a

limiting instruction to the jury—once at the introduction of Adams's prior convictions

and again before the jury began its deliberations—to only use the fact of Adams's

prior conviction for the limited purposes of showing knowledge or intent. The facts

The district court acknowledged Eight Circuit precedent that such prior

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convictions can be used to show intent. We have held that "[w]hen admitted for the

purpose of showing intent, the prior acts need not be duplicates, but must be

sufficiently similar to support an inference of criminal intent." United States v.

Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995) (quotation omitted).

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of this case present little likelihood that Adams's conviction rested solely on the

possibility that the jury ignored those limiting instructions. To the degree it

considered evidence of Adams's prior crimes, we presume the jury limited its use to

permitted purposes. See Stroud, 673 F.3d at 861 (finding that "a limiting instruction

diminishes the danger of unfair prejudice arising from the admission of evidence"

(quotation omitted)); Halk, 634 F.3d at 488 (same); Oaks, 606 F.3d at 539, n.2

(same); Walker, 470 F.3d at 1275 (same). 

The government's evidence that Adams had been previously convicted in state

and federal courts for unlawfully possessing firearms had probative value to show

that he knew what a firearm was and that he possessed the criminal intent to possess

the firearm unlawfully. See United States v. Washburn, 728 F.3d 775, 784 (8th Cir.

2013) ("[T]his court has held in similar circumstancesthat the unfair prejudice did not

substantially outweigh the probative value of a defendant's prior conviction for

similar schemes because the close similarity of the prior incidents made the evidence

especially probative on the question of the defendant's intent and the absence of

accident." (citation omitted)).

III. Conclusion

For the reasons stated herein, the admission of the Rule 404(b) evidence and

Adams's conviction is affirmed.

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