UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JACKIE DUNCAN, Defendant - Appellant. No. 18-6009 (D.C. No. 5:14- CR-00305-M-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , BACHARACH , and PHILLIPS , Circuit Judges.

________________ _________________ Jackie Duncan appeals his conv iction for, among other offenses , being a felon in possession of a firearm. Exercis ing jurisdiction under 28 U.S. C. § 1291, we affirm.
B ACKGROUND Duncan was a member of the 107 Hoover Crips gang. During Febr uary and March 2014, he and other gang me mbers committed several robberi es and shootings in Lawton, Oklahoma.

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 Duncan was eventually arrested and tried on eight counts: con spiracy to interfere with commerce by robbery, 18 U. S.C. § 1951(a); felon in possess ion of a firearm, 18 U.S.C. § 922(g)(1); possessing a controlled substance with inte nt to distribute, 21 U.S.C. § 841(a)(1); possessing/brandishi ng a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A); interfe ring with commerce by robbery, 18 U.S.C. § 1951(a) (two counts); and possessing/brandi shing a firearm in furtheran ce of a violent crime, 18 U.S.C. § 924(c)(1)(A) (two counts). Before trial, Duncan filed a mo tion in limine, seeking to excl ude evidence that Anthony Johnson had “identified [him] as the individual who sho t him . . . on February 27, 2014.” R., Vol. I at 135. Duncan argued that “[t]his evid ence is not admissible pursuant to Rule 404(b), Fed.R.E vid., is not inextricably inter twined with the facts of the case, and its probative value is substantially outweighed by th e danger of unfair prejudice.” Id. (internal quotation marks omit ted). He explained that “[i]f t he jury receives evidence that [he] not only possessed and discharged t he firearm alleged in [the felon-in-possession count] o f the superseding indictment . . . , but that he also shot someone with it[,] then there is a substantial risk the jury wi ll assume [he] acted in conformity and committed the other acts charged in the remainin g counts.” Id. at 137. The government opposed the moti on, asserting that the “shooting completes the story of the crime charged.” Id. at 148. The district ju dge denied the motion. At trial, the prosecutor elicite d that Johnson had been shot b y Duncan. Specifically, Johnson, who descri bed himself as an “[o]ld gang member” of the 24 Karat Crips, id. , Vol. III at 328, 333, testified that he got shot in the back on February 27, 2014,3 after going to a house on McKinley Street to buy crack cocaine. He explained that he went inside and saw “7-Shot,” a member of the 107 Hoover Crips— a gang that Johnson had robbed in the past. Id. at 339, 340. Feeling “a bad vibe,” id. at 341, Johnson went outside to the front yard. There , he saw Duncan, who was also a 107 Hoover gang member, coming toward him from th e back yard. According to Joh nson, Duncan shot him and then and called for 7-Shot, who came outside, shooting at Johnson as well. Johnson retreated to the back o f the house while Duncan and 7-S hot jumped in a vehicle and drove off. Johnson further testified that h e called 911 and reported he h ad been shot in the back. Police officers responded , located Johnson, and summoned an ambulance. Officer Lindsey Adamson testified that w hen she encountered Johnson, he “had blood on his jacket and a bullet hole in his back.” Id. at 290. The officers sea rched the area and found six .40 caliber and seven 9mm shell casings. The prosecution next provided evidence of Duncan’s involvement in crimes two days later—evidence that showed Duncan’s possession of the same gun he had used to shoot Johnson. Specifically, dur ing the early morning hours of March 1, 2014, Duncan and several of his associates ro bbed drug dealers and others at two separate residences. One of the drug dealers, Travi s Carpenter, testified that Dunc an pointed a 9mm pistol at him in the kitchen while Duncan and an associate robb ed him. Carpenter indicated that Duncan or the oth er man fired one or two shots i n the process, and that both men “jumped on [him] . . . [and] beat [him] down.” Id. at 455. Police later discovered two bullet holes in th e kitchen, and they recovered a 9mm shell casing.4 The other drug dealer, Donald Willis, testified that Duncan, 7 -Shot, and others broke into his bedroom and dema nded Willis’s gun and money. Ac cording to Willis, Duncan threatened to shoot Willis if he moved, and after the as sailants found his gun and money, Duncan threatened to kill him if he reported the inciden t. Duncan, by then the subject of t wo arrest warrants, was appreh ended on April 9, 2014, by Lawton police officers who had been dispatched to a re sidence on a report of a burglary in progress. Duncan had driven to the residence with 7-Shot and another member of the 107 Hoover Crips, w ho testified that Duncan was c arrying a pistol in a holster. When police arrived, Dun can fled on foot and discarde d the holster. Police captured Duncan, found the hols ter, and discovered a fully-load ed 9mm pistol under the driver’s seat that fit into the holster. A firearms examiner t estified that the eight 9mm shell casings found at the two re sidences were fired in the pis tol recovered from
Duncan’s car. The jury found Duncan guilty o n six of the eight counts: cons piracy; being a felon in possession of a firearm; inter fering with commerce by robber y (two counts); and possessing/brandishing a firearm in furtherance of a violent cr ime (two counts). The court sentenced Duncan to 386 m onths’ imprisonment: 384 months for the two counts of possessing/brandishing a firearm; consecutive to 1 month for th e conspiracy and interference-with-commerce counts ; consecutive to 1 month for t he felon-in-possession

count.5 D ISCUSSION Duncan contends the district c ourt erred in admitting evidence that he shot Johnson. Duncan stre sses that he was not charged for the shoot ing, and he asserts that “the government could [have] int roduce[d] evidence of [his] pos session of the weapon and [participation in] gang activ ity without reference to the f iring of the gun and the shooting and injury of Mr. Joh nson.” Aplt. Br. at 10-11. Acco rding to Duncan, evidence of the shooting was offered only to establish his criminal disp osition. “[W]e review a district court’s decision to ad mit evidence for an abuse of dis cretion, and we reverse [such] a decision only if it is manifestly erroneous.” United States v. Irving , 665 F.3d 1184, 1210 (10th Cir. 2011) (inter nal quotation marks omitted). Federal Rule of Evidence 404( b) governs the admission of certa in uncharged criminal or otherwise wrongful c onduct: “Evidence of a crime, w rong, or other act is not admissible to prove a person’s ch aracter in order to show that on a particular occasion the person acted in accordance with t he character.” Fed. R. Evid. 404(b)(1). Such evidence is limited to proving things lik e “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of m istake, or lack of accident.” Id. 404(b)(2). But the limitations of Rule 404 (b)(1) and (2) are implicated o nly by “evidence of

acts extrinsic to the charged crime.” Irving , 665 F.3d at 1212 (emphasis added; internal quotation marks omitted). Thus , “[i]f the contested evidence i s intrinsic to the charged crime, then Rule 404(b) is not even applicable.” Id. “[O]ther act evidence is intri nsic . . . when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or b oth acts are part of a single6 criminal episode or the other act s were necessary preliminaries to the crime charged.” Id. (internal quotation marks omitte d). In other words, “intrinsic evidence is that which is directly connected to the factua l circumstances of the crime an d provides contextual or background information to the jury.” Id. (internal quotation marks omitted). We conclude that the district c ourt would not have abused its discretion in admitting the evidence of Johnson ’s shooting as intrinsic to th e felon-in-possession count. The shooting offered context fo r the 9mm shell casings that wer e found by law enforcement and later matched to the 9mm handgun discovered in Duncan’s car. See United States v. Mills , 29 F.3d 545, 549 ( 10th Cir. 1994) (notin g that constructive possession of a firearm in a jointly occupied vehicle requires “some connection or nexus between the defendant and the firearm”). In short, Duncan’s co ntemporaneous possession of the firearm and shoo ting of Johnson were part of a single criminal episode that connected the gun recovere d by police to Duncan. Thus, th e district court had the discretion to conclude that Rul e 404(b) was not applicable. See United States v. Buckner , 868 F.3d 684, 688 (8th Cir. 2017 ) (holding that prior shooting was admissible intrinsic evidence connecting defendant to gun found in a vehicle in whic h he was a passenger);
United States v. Anderson , 741 F.3d 938, 949 (9th Cir. 2013) (stating that “Rule 404(b) does not apply when offenses co mmitted as part of a single crim inal episode become other acts simply because the def endant is indicted for less th an all of his actions” (internal quotation marks omitted)). Even though we conclude that th e district court would have bee n acting within its discretion in ruling that the evi dence of Johnson’s shooting wa s not subject to Rule7 404(b), we must still a ssess whether the district court would h ave abused its discretion in determining that the probative va lue of that evidence was not s ubstantially outweighed by the danger of unfair prejudice. See Irving , 665 F.3d at 1213 (citing Fed. R. Evid. 403). Duncan argues that the eviden ce of Johnson being shot was unfai rly prejudicial because it implied he had a “bad charact er and . . . rais[ed] the odds tha t he” committed the two § 924(c)(1)(A) crimes—brandishing or discharging a firearm duri ng the Carpenter and Willis robberies. Aplt. Br. at 15 (internal quotation marks om itted). The district court could reasonably reject such an a rgument. The evidence of Duncan’s involvement in, and violent/threatening conduct duri ng, the robberies was overwhelm ing. Both Carpenter and Willis testified unequivocally tha t Duncan pointed a gun at the m and robbed them. Further, Carpenter testified tha t Duncan also beat him, and Wil lis testified that Duncan threatened to kill him. Given t he strength of the government’s evidence, the district court would not have abused its discr etion in concluding that the evi dence of Duncan’s shooting of Johnson would not lik ely have affected the jury’s d ecisionmaking regarding the § 924(c)(1)(A) charges. Duncan also maintains that the e vidence of Johnson being shot was unfairly prejudicial because it “was highl y emotional,” given that Johns on also testified he was in pain at trial, illiterate, homel ess, and needed money for food. Aplt. Br. at 16. But these points merely set a background for Johnson’s testimony, offerin g relevant information concerning Johnson’s personal ci rcumstances and explaining how he had agreed to testify for the prosecution. Therefore, t he district court could have reasonably concluded that8 such background testimony would not have rendered the testimony about Duncan’s shooting of Johnson unfairly prejudicial.
C ONCLUSION We affirm the district court’s judgment. Entered for the Court

Jerome A. Holmes Circuit Judge