United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-2826

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Patrelle Jose Green-Bowman

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court 

for the Northern District of Iowa, Waterloo

____________

Submitted: September 25, 2015

Filed: March 2, 2016

____________

Before RILEY, Chief Judge, BRIGHT and GRUENDER, Circuit Judges.

____________

RILEY, Chief Judge.

A jury found Patrelle Green-Bowman guilty of possessing a firearm as a felon

and possessing a firearm not registered to him. The district court1

 entered judgment

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.
on the verdict and sentenced Green-Bowman to concurrent terms of 78 months in

prison. Green-Bowman appeals his convictions and sentence. We affirm.

I. BACKGROUND

Late in the evening of August 2, 2013, two Waterloo, Iowa police officers on

foot patrol saw a pair of cars with their hoods up in an apartment-building parking lot. 

Suspecting car trouble, the officers walked over to see if anyone needed assistance. 

They found Green-Bowman sitting in the back seat of one of the cars with the door

open and facing out with his feet on the ground. He was talking on a cell phone. 

When one of the officers greeted him, Green-Bowman got out of the car, shut the

door, and walked to the corner of the parking lot, still on the phone. The other people

standing around the front of the car said they did not need any help, so the officer

prepared to leave. As the officer walked back around the car, he shined his flashlight

in the window and saw a shotgun stock on the back seat, next to where GreenBowman had been sitting. The shotgun was partly wrapped in a red, white, and blue

Chicago Cubs jacket. Green-Bowman was wearing a red, white, and blue Chicago

Cubs stocking hat. The officer “started to put two and two together.” He alerted his

partner, who went over and handcuffed Green-Bowman.

A grand jury indicted Green-Bowman, charging him with two crimes based on

possessing the shotgun: possession of a firearm and ammunition as a felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and possession of a firearm not

registered to him, in violation of 26 U.S.C. § 5861(d). Green-Bowman pled not guilty

and went to trial. The only question for the jury was whether he knowingly possessed

the shotgun and the shells inside it; he stipulated to the other elements of each crime.

At trial, the government called Clay Gilmer, who had driven the car in which

Green-Bowman was sitting. Gilmer was standing nearby when the officers arrived

and testified he could not remember much. Gilmer previously had testified in some

detail before the grand jury. Gilmer said he did not recall what he said to the grand

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jury. The government showed Gilmer a transcript of his testimony and then asked him

about his grand-jury testimony. When he still denied recalling what he said to the

grand jury, the government read his answers. He denied remembering those

specifically. The jury ultimately found Green-Bowman guilty of both counts, but the

district court vacated the verdict and ordered a new trial, on the ground that Gilmer’s

grand-jury testimony was unfairly prejudicial.

Anticipating the issue might come up again at the second trial, the district court

ruled that if the government called Gilmer and he still claimed not to remember

testifying to the grand jury about Green-Bowman, the government could not introduce

his grand-jury testimony, either to impeach his credibility or as substantive evidence. 

The government called Gilmer again anyway. Gilmer answered a series of general

questions and testified about other people who were in the car and the parking lot. 

The government then broached the issue of his grand-jury testimony by asking if he

remembered testifying about Green-Bowman having a nickname. Gilmer said he did

not remember. Green-Bowman preemptively objected to the government pursuing the

questioning any further. After a sidebar discussion, the district court allowed the

government to show Gilmer the grand-jury transcript and ask if it refreshed his

memory. When Gilmer said he still did not remember if Green-Bowman had a

nickname, the government moved on to other issues and did not bring up the grandjury testimony again.

The government also introduced evidence about an incident in August 2011 that

resulted in Green-Bowman being convicted in Iowa state court for carrying a weapon. 

See Iowa Code § 724.4(1). According to the evidence presented at trial, Waterloo

police officers responded to a report of gunshots and came upon Green-Bowman

carrying a backpack. When he spotted the officers, Green-Bowman ducked in the

back door of a nearby bar. The officers drove around to the front, saw GreenBowman coming out, and told him to stop. Instead, he ran back into the bar, still

carrying the backpack. One of the officers followed him and found him calmly

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walking through a group of patrons at the bar, backpack-less. The backpack was in

a booth near the front door. There was a handgun inside. Green-Bowman first denied

knowing about the gun, referring only to a BB gun. Then he changed his story and

said someone came up to him on the street and gave him the gun. When the police did

not believe that story either, Green-Bowman admitted the gun belonged to his friend,

who had shot at a group of people who were threatening him and Green-Bowman

shortly before the police arrived. The friend stuck the gun in Green-Bowman’s

backpack as they ran away.

Green-Bowman opposed admission of the 2011 incident evidence. The district

court allowed the evidence but first gave a limiting instruction. The district court

repeated a similar instruction at the end of the trial.

The second jury, like the first, found Green-Bowman guilty of both counts.2

Green-Bowman filed a motion for judgment of acquittal or a new trial, which the

district court denied. The district court then calculated Green-Bowman’s advisory

sentencing range under the United States Sentencing Guidelines (U.S.S.G. or

Guidelines). The district court determined Green-Bowman had an offense level of 22

and a criminal history category of III but, at the government’s request, departed

upward to category IV. The district court then imposed a sentence at the top of the

post-departure range—78 months—on each count, to run concurrently.

Green-Bowman appeals, arguing (1) the evidence about the incident with the

handgun was inadmissible and the government improperly used it to tell the jury he

had a criminal propensity to possess guns, (2) the evidence he possessed the shotgun

was insufficient, (3) the government committed prosecutorial misconduct by asking

2

With respect to the felon-in-possession count, the second jury found GreenBowman knowingly possessed the shotgun but did not find he knowingly possessed

the ammunition inside. The first jury was not asked to indicate the basis for its

verdict.

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Gilmer questions it knew he would not answer, and (4) the upward departure was an

abuse of discretion. We have jurisdiction under 28 U.S.C. § 1291.

II. DISCUSSION

A. The Handgun Incident

1. Admissibility

Green-Bowman first argues the district court should not have let the jury hear

about the events leading to his 2011 firearm conviction. We review the district court’s

decision to admit evidence for abuse of discretion. See, e.g., United States v. Halk,

634 F.3d 482, 487 (8th Cir. 2011).

Evidence of past bad acts may be admissible to prove, among other things,

someone knew something or intended a certain result, but not to prove someone has

a bad character or a propensity to act a certain way. See Fed. R. Evid. 404(b). And

like other evidence, it must be relevant and may be excluded if it is unfairly

prejudicial. See Fed. R. Evid. 402, 403. From these rules and related case law, we

have derived a four-part test: “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. Strong, 415 F.3d 902, 905 (8th Cir. 2005). 

Green-Bowman focuses on the overlap between the second and fourth factors,

contending that because the incident with the handgun was not similar to the facts of

this case, the evidence had minimal probative value, which was outweighed by unfair

prejudice.3

3

Though we ultimately reject Green-Bowman’s challenge, we reiterate the need

for “careful analysis” of how evidence of past bad acts is relevant to a particular issue

at trial and whether it is unfairly prejudicial, see United States v. Turner, 781 F.3d

374, 391 (8th Cir. 2015). As we have recently emphasized, the government “[s]imply

asserting—without explanation—that [a past] conviction is relevant to a material issue

such as intent or knowledge is not enough to establish its admissibility.” Id. at 390

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Green-Bowman identifies several differences between what he did in 2011 and

what he was charged with in this case: in 2011 he had a handgun, not a shotgun; he

had just received the gun from someone else; he first tried to flee the police; and he

actually carried the gun, so the prosecution did not depend on a theory of constructive

possession. All true, but not significant enough and not complete. Past bad acts “need

not be duplicates” of the charged crime for evidence of them to be admissible under

Rule 404(b). United States v. Burkett, 821 F.2d 1306, 1309 (8th Cir. 1987). They

need only be “sufficiently similar,” and in such a way, to support whatever

permissible inference makes the evidence relevant.4

 Id.; cf. United States v. Cook,

454 F.3d 938, 941 (8th Cir. 2006) (upholding the exclusion of evidence of past

convictions for crimes that superficially resembled the charged offense but were

“functionally dissimilar”).

The evidence about the 2011 handgun incident was relevant to prove GreenBowman knew about the shotgun next to him in the car and intended to possess it. 

See United States v. Walker, 470 F.3d 1271, 1274-75 (8th Cir. 2006); Strong, 415

F.3d at 905-06; cf. United States v. Cassell, 292 F.3d 788, 794-95 (D.C. Cir. 2002)

(“A prior history of intentionally possessing guns . . . is certainly relevant to the

determination of whether a person in proximity to such a [gun] on the occasion under

litigation knew what he was possessing and intended to do so. If [the defendant] had

been standing in an apartment close to a gun and never possessed one before, a jury

might find it less likely that his proximity evidenced knowing and intentional

possession.”). Though Green-Bowman did not specifically deny knowing about the

shotgun, the government still needed to prove knowledge because Green-Bowman’s

(warning against “passive treatment of the Federal Rules of Evidence”).

4

Green-Bowman asserts the handgun incident is not automatically similar

enough for admission under Rule 404(b) just because it also concerned possession of

a gun. We need not consider that broad proposition, because, as explained hereafter,

gun possession was in fact not the sole relevant similarity here.

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general not-guilty plea put every element of the charged offenses at issue. See

Walker, 470 F.3d at 1274. Further, without any direct evidence of Green-Bowman

actually holding the shotgun, the government presented the jury with a theory of

constructive possession, and knowledge is often a key element of constructive

possession. See United States v. Johnson, 18 F.3d 641, 647 (8th Cir. 1994). So

proving possession itself also depended, in part, on proving Green-Bowman knew the

shotgun was in the car.

This evidence also helped prove Green-Bowman knew about the shotgun

because it made an innocent explanation for his behavior less likely. See Fed. R.

Evid. 401(a). Consider what happened in the parking lot: Green-Bowman was sitting

in a car, talking on the phone. A police officer initiated a conversation with him. 

Without responding, Green-Bowman got up and walked away. Standing alone, a

natural interpretation of that reaction might be that his walking away from the police

had nothing to do with the shotgun in the car, he just did not want to interrupt his call. 

The evidence about the 2011 handgun incident, however, showed that on another

recent occasion, when Green-Bowman had a gun he was not supposed to possess and

was approached by the police with no way to get away, he did something similar—he

distanced himself from the gun while acting like he was unaware of it. Knowing that

historical context, a jury might see Green-Bowman’s behavior in the parking lot

differently. Maybe he walked away not so he could talk in peace, but so the police

would not find him next to the shotgun in the car.

The differences Green-Bowman emphasizes, by contrast, go to details—the

type of gun, where it came from, what Green-Bowman was doing with the weapon,

what happened before and after the interaction in which the police found it—that play

no significant role in the rationale making the evidence relevant. Those differences

do not make the evidence inadmissible. Neither do they undermine its probative

value. The handgun incident was similar enough to the facts of this case for the

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evidence to be relevant to Green-Bowman’s mental state, a material element the

government needed to prove. See Burkett, 821 F.2d at 1309.

As for the other side of the scale under Rule 403, Green-Bowman does not

identify what unfair prejudice allegedly outweighed the probative value of the

evidence. Presumably, the prejudice was the risk of the jury improperly reasoning that

possessing a gun before showed Green-Bowman had a bad character and therefore

was more likely to have a gun again. But the district court twice instructed the jury

it was not allowed to draw such an inference,5

 and “the presence of a limiting

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

acts,” United States v. Franklin, 250 F.3d 653, 659 (8th Cir. 2001).

We “normally defer” to the district court’s judgment in balancing between the

probative value of evidence and the risk it poses of unfair prejudice. Id. We see no

reason to overturn its conclusion here.

2. Closing Argument

Green-Bowman also challenges how the government used the evidence of the

2011 handgun incident in its closing argument, which he claims improperly suggested

he possessed the shotgun because of his criminal propensities. Because he raised his

5

The district court’s first instruction was:

Remember, even if you find that the defendant may have committed a

similar act in the past, this is not evidence that he committed such an act

in this case. You may not convict a person simply because you believe

he may have committed similar acts in the past. The defendant is on trial

only for the crimes charged, and you may consider the evidence of prior

acts only on the issue of intent, knowledge, and . . . absence of mistake

or accident.

The second was virtually identical.

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challenge in timely objections at trial, he is entitled to relief if the government acted

improperly and “deprive[d] him of a fair trial.” United States v. Thomas, 664 F.3d

217, 224 (8th Cir. 2011). The district court, for its part, overruled his objections and

denied his motion for a new trial. We afford trial courts “broad discretion in

controlling closing arguments” and reverse “only on a showing of abuse of

discretion.” United States v. Eldridge, 984 F.2d 943, 946 (8th Cir. 1993).

Green-Bowman does not identify any specific instances of the government

telling the jury he was guilty because he had a bad character or criminal propensities. 

Instead, he reasons the government implicitly invited that inference by reciting the

facts of the handgun incident at length and repeatedly even though, he claims, it had

at most minimal probative value. We disagree.

At the outset, we note, in addition to the district court’s two limiting

instructions, the government expressly told the jury to “consider th[e] evidence as to

the knowledge, the intent, and the absence of mistake or fact [sic] as the judge

instructed you” and explained the permissible inference it hoped the jury would draw

from it. As discussed above, the 2011 incident evidence went to prove GreenBowman knew about the shotgun in the car. The government needed to prove

knowledge both because of Green-Bowman’s general not-guilty plea and because it

was a key element in proving Green-Bowman constructively possessed the shotgun. 

The logic by which the evidence about the 2011 handgun incident was relevant to

Green-Bowman’s knowledge depended in part on certain specific facts about what

happened. That is, this was not a trial where the relevant past-bad-act evidence was

simply the bare fact of a conviction, in which case there might be little to be gained

(permissibly) from reminding the jury what the defendant did to earn the conviction. 

Cf. United States v. Burk, 912 F.2d 225, 229 (8th Cir. 1990). To the contrary, here

the government had good reason to take the time to compare the details of the two

incidents thoroughly to highlight the similarities supporting an analogy and inference

about what was going through Green-Bowman’s head, notwithstanding the dissent’s

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suggestion the government’s comparison took too long.6

 Cf. United States v.

Shoffner, 71 F.3d 1429, 1433 (8th Cir. 1995) (concluding unfair prejudice did not

outweigh probative value of admitting details of a defendant’s prior crime).

In sum, the government did not expressly argue Green-Bowman was guilty

because he was the sort of person who would be likely to have a gun, and we decline

to view its description of the 2011 handgun incident as an attempt to do so

surreptitiously. The district court was within its broad discretion to allow the

government’s closing argument.

B. Sufficiency of the Evidence

The next question presented is whether the evidence was sufficient to prove

Green-Bowman possessed the shotgun. We review the sufficiency of the evidence de

novo. See, e.g., United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002). The

evidence was sufficient if a reasonable jury could have found Green-Bowman guilty

beyond a reasonable doubt. See id. We view the evidence in the light most favorable

to the guilty verdict and draw all reasonable inferences supporting the verdict. See id.

Green-Bowman’s argument focuses on the several other people who had

recently been in the car and were still nearby when the police found the shotgun. He

6

The dissent also sees impropriety in the government arguing, as the dissent

puts it, “Green-Bowman’s actions proved he committed the instant offense because

Green-Bowman acted similarly in the past.” Post at 18. But an argument does not go

to propensity simply because the argument compares someone’s actions at two

different times. It is precisely the similarity between Green-Bowman’s actions that

meant evidence concerning what happened in 2011 supported an inference about what

he knew—that is, why he acted the way he did—in 2013 and thus was, as the dissent

agrees, admissible. Armed with the court’s jury instruction, defense counsel likewise

may take time to explain thoroughly to the jury how such evidence does not show

propensity and should not be considered as such.

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asserts no reasonable jury could have found him guilty without additional “affirmative

proof” he, rather than someone else, possessed the shotgun.

Green-Bowman is mistaken. The government did not need to prove other

people did not possess the shotgun. As we have repeatedly explained, and as the

district court instructed the jury, “more than one person may possess a thing.” 

Johnson, 18 F.3d at 647; accord, e.g., United States v. Maxwell, 363 F.3d 815, 818

(8th Cir. 2004). And that remains true even though the government focused on GreenBowman and did not tell the jury a story about someone else possessing the gun along

with him. Cf. Johnson, 18 F.3d at 648. Without evidence someone else had exclusive

control over the shotgun, the presence of other people who might have possessed the

weapon does not prove Green-Bowman did not also possess it or otherwise undermine

the evidence of possession. See id. at 648 n.14 (“That the evidence would permit a

conclusion that [the defendant’s] control over [an item] was not exclusive, i.e., he

shared it with [someone else], is immaterial. . . . [C]onstructive possession can be

joint.”).

The evidence was sufficient for a reasonable jury to find Green-Bowman

possessed the shotgun. Constructive possession can be established by the combination

of knowing about something and having control over it. Id. at 647. Green-Bowman

does not challenge the sufficiency of the evidence he knew the shotgun was next to

him in the car. As to control, the question is whether the evidence showed “some

nexus” between Green-Bowman and the shotgun; just sitting close to it, by itself,

probably would not be enough. Id. The nexus in this case includes, most importantly,

the shotgun being partially wrapped in what Green-Bowman admits was his jacket,

with the shotgun’s stock exposed. Cf. id. at 648 (upholding a finding that a defendant

possessed a gun that was protruding from a bag of his clothes on the seat behind him

in a car). A reasonable factfinder could infer from that fact, combined with the

position of the shotgun, that Green-Bowman not only was aware of the shotgun, but

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had control over it, and thus constructively possessed it. The evidence was sufficient

to support the verdict.

C. Examining Gilmer

Green-Bowman claims the government committed misconduct while examining

Gilmer at the second trial. Green-Bowman maintains the government subverted the

rules generally excluding hearsay evidence, see Fed. R. Evid. 802, by calling Gilmer

and asking him questions it did not expect him to answer.7

 His apparent concern is

the government could have asked Gilmer if he saw Green-Bowman with the shotgun

and, if Gilmer again said no, as everyone expected he would, could have impeached

Gilmer with his grand-jury testimony. That would have risked the jury impermissibly

treating Gilmer’s out-of-court statements as substantive evidence of Green-Bowman’s

guilt, just as in the first trial. See United States v. Demery, 674 F.3d 776, 780 (8th

Cir. 2011).

Regardless of whether the government’s conduct would have been improper

had things played out the way Green-Bowman feared, but see United States v. Logan,

121 F.3d 1172, 1175 (8th Cir. 1997) (“[T]he government’s motive in eliciting

testimony is irrelevant.”), his fears never actually materialized. The government did

not impeach Gilmer with his grand-jury testimony, so the jury never heard anything

it was not supposed to hear. Because the government used an innocuous question to

test Gilmer’s willingness to repeat his grand-jury testimony, the jury could not infer

anything from the exchange other than Gilmer might have previously mentioned

Green-Bowman having a nickname. That did not make the government’s conduct

improper or unfairly prejudicial.

7

Green-Bowman disclaims the argument, suggested in his initial brief, that

calling Gilmer to testify again was itself improper, so we do not address it.

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We are also unpersuaded by Green-Bowman’s suggestion of impropriety

stemming from the possibility that Gilmer’s recalcitrance might “sully the jury’s

impression of” Green-Bowman. Nor does Green-Bowman’s assertion that the

government waited until after the second trial to indict Gilmer for perjury change our

conclusion. That the alleged delay in punishing Gilmer might have emboldened him

not to cooperate at the second trial is irrelevant, because the government was not

allowed to use his noncooperation as an opportunity to let the jury hear his potentially

prejudicial grand-jury testimony. We find no support for Green-Bowman’s

suggestion that a discretionary charging decision in a separate case could be

misconduct simply because Green-Bowman otherwise might have been able to

impeach Gilmer with a pending perjury charge.8

D. Upward Departure

Finally, Green-Bowman challenges his sentence. The district court increased

his criminal history category by one level under U.S.S.G. § 4A1.3(a)(1), which

permits an upward departure “[i]f reliable information indicates that the defendant’s

criminal history category substantially under-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant will commit other

crimes.” Because Green-Bowman objected to the upward departure, we review for

abuse of discretion. See, e.g., United States v. White Twin, 682 F.3d 773, 775 (8th

Cir. 2012).

The district court gave two main reasons for concluding the Guidelines

calculations understated the seriousness of Green-Bowman’s criminal history. First,

several of his convictions were unscored despite, in the district court’s evaluation,

8

Because we resolve the issue of Gilmer’s perjury indictment without resort to

the court filings and proceedings Green-Bowman provided in his addendum and

referred to in his brief—and, anyway, we could take judicial notice of such materials

if they were directly related—we deny the government’s motion to strike. See Zerger

& Mauer LLP v. City of Greenwood, 751 F.3d 928, 935 n.7 (8th Cir. 2014).

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involving serious misconduct. Green-Bowman protests that the lack of criminal

history points for those convictions was offset by the points he received for other

convictions, including what he characterizes as minor shoplifting offenses. Yet he did

not dispute the scores for those offenses. Nor does he explain how they would

otherwise overstate the seriousness of his criminal history.

Second, the scores for several of Green-Bowman’s convictions were based on

reduced sentences imposed after an Iowa court “reconsidered” his original sentences. 

Green-Bowman proposes the district court should have ignored the longer original

sentences because the reconsidered sentences best reflected the sentencing court’s

judgment about the appropriate sentence. The district court could consider “the

historical facts of” Green-Bowman’s criminal behavior, not just the sentences

eventually imposed and served, United States v. Senior, 935 F.2d 149, 151 (8th Cir.

1991), and it is not implausible that the original sentences shed additional light on the

severity of his conduct. The district court’s overall assessment of the seriousness of

Green-Bowman’s criminal history was reasonable.

The district court also found the Guidelines understated the likelihood GreenBowman would commit other crimes, based on his “nonstop criminal history for about

a three-year period” and failure to respond to correctional supervision in the past. See

U.S.S.G. § 4A1.3(a)(1). As we have often recognized, “[a] defendant’s recidivism is

a reasonable basis for applying an upward departure.” United States v. Gonzalez, 573

F.3d 600, 606 (8th Cir. 2009).

The district court’s decision to depart upward was based on a reasonable

consideration of appropriate factors. It was not an abuse of discretion.

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III. CONCLUSION

The evidence was admissible and sufficient to support Green-Bowman’s

conviction, the government did not commit misconduct at trial, and the sentence was

not an abuse of discretion. We affirm.

BRIGHT, Circuit Judge, dissenting.

I respectfully dissent from the majority’s conclusion that the district court did

not abuse its discretion in denying Patrelle Jose Green-Bowman’s (Green-Bowman)

motion for a new trial on the basis of prosecutorial misconduct. In my reading of the

record, the prosecutor used Green-Bowman’s 2011 firearm conviction to improperly

infer Green-Bowman had a propensity to commit the instant offense. The

prosecutor’s use was not only improper, but highly prejudicial. Thus, I would grant

a new trial to Green-Bowman.

We review the denial of a motion for a new trial on the basis of prosecutorial

misconduct for abuse of discretion. United States v. Barrera, 628 F.3d 1004, 1007

(8th Cir. 2011). “ ‘[P]rosecutorial misconduct during closing argument may be

grounds for reversal,” but the district court has “broad discretion in controlling closing

arguments.’ ” United States v. Ziesman, 409 F.3d 941, 954 (8th Cir. 2005) (quoting

United States v. Beckman, 222 F.3d 512, 526 (8th Cir. 2000)). To obtain a reversal

for prosecutorial misconduct, Green-Bowman must show that (1) the prosecutor’s

remarks were improper, and (2) the prosecutor’s remarks prejudiced Green-Bowman’s

rights in obtaining a fair trial. United States v. Robinson, 439 F.3d 777, 780 (8th Cir.

2006). If the prosecutor’s comments were improper, we examine prejudice by

considering “(1) the cumulative effect of the misconduct, (2) the strength of the

properly admitted evidence of the defendant’s guilt, and (3) any curative actions taken

by the trial court.” United States v. Crawford, 523 F.3d 858, 861 (8th Cir. 2008)

(quoting United States v. Yu, 484 F.3d 979, 986 (8th Cir. 2007)).

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Here, the district court ruled the 2011 firearm conviction admissible under Rule

404(b). The district court reasoned the 2011 firearm conviction was relevant to show

“knowledge” of the presence of the firearm. Although the district court properly

admitted the 2011 firearm conviction for that purpose, the prosecutor’s subsequent

misuse of the 2011 firearm conviction during closing argument warrants reversal.

The “[a]dmission of Rule 404(b) evidence . . . does not grant the government

free rein to use that evidence however it wishes.” United States v. Richards, 719 F.3d

746, 763-64 (7th Cir. 2013). Improperly using Rule 404(b) evidence includes

“ ‘arguing to a jury [at closing arguments] that it should convict a defendant based on

the defendant’s propensity to commit a crime.’ ” Id. at 764 (quoting United States v.

Simpson, 479 F.3d 492, 503 (7th Cir. 2007)); see also United States v. Brown, 327

F.3d 867, 870-72 (9th Cir. 2003) (reversing for improper use of Rule 404(b) evidence

during closing argument). An improper propensity argument need not be blatant and

includes “placing [a] propensity inference at the center of [a prosecutor’s] closing

argument.” Richards, 719 F.3d at 765 (emphasis added); see also United States v.

Himelwright, 42 F.3d 777, 786 (3d Cir. 1994) (noting prejudice can occur when a

prosecutor places a “disproportionate emphasis” on Rule 404(b) evidence during

closing argument).

In this case, the prosecutor improperly used Green-Bowman’s 2011 firearm

conviction during closing argument to infer that Green-Bowman had a propensity to

commit the instant offense. The prosecutor did so in several ways. First, the

prosecutor spent approximately 21% of closing argument9

 discussing the 2011 firearm

conviction. See Himelwright, 42 F.3d at 786 (discussing the potential prejudice

caused by “disproportionate emphasis”). Second, the prosecutor spent a significant

amount of time paralleling the offenses, asking the jury to draw the improper

9

Measured by number of lines in the Government’s Closing Argument

Transcript, DCD 130 (hereinafter, “Gov’t Closing Arg.”), excluding objections and

statements made outside the presence of the jury.

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inference that Green-Bowman committed the instant offense because he had

committed similar illegal conduct in the past.10

10Below are a few examples of the prosecutor’s “paralleling”:

• Running from police:

 N Instant offense: “He’s sitting in the car, and the officers

walk up . . . . And what’s [Green-Bowman] do? He walks

away.” (Gov’t Closing Arg. 10).

 N Prior conviction: “[T]he defendant had a gun in a backpack

. . . and he knew it. He saw the police. And what did he

do? He ran.” (Id. at 11-12).

• Actions when possessing a gun:

 N Instant offense: “He’s sitting in the car, and the officers

walk up . . . And what’s he do? He walks away. Not one

word. He walks away. He’s distancing himself from the

items that are illegal in the car that he knows he’s not

supposed to be in possession of.” (Id. at 10).

 N Prior offense: “And then remember the testimony that was

read about Officer Zubak, what he saw of the defendant

acting when the defendant knew he was in possession of a

firearm. What did he see when the defendant – or when he

got into that bar, the Bosnian bar? He sees the defendant

calmly trying to mingle with a group of 50- to 60-year-old

Bosnian men. Remember also what the defendant had just

done, as he was attempting this mingling activity.” (Id.

at 13).

• Lying to police: 

 N Instant offense: “When the officer asked him in the

interview about why he was right next to the gun, he lies

and says he wasn’t next to the gun. He’s distancing himself

from the gun, just through words.” (Id. at 11).

 N Prior conviction: “He attempted to distance himself from

the gun, and, then, when asked about it in the interview, he

told a lie.” (Id. at 15).

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Lastly, the prosecutor failed to limit his use of the 2011 firearm conviction for

the purpose proffered when the evidence was admitted. See Richards, 719 F.3d at

764.11 As discussed above, the district court admitted Green-Bowman’s prior firearm

conviction under Rule 404(b) to show “knowledge of the presence of the firearm.” 

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

But at closing arguments, the prosecutor did not use the conviction solely for this

proffered purpose, stating in particular:

Recall that the defendant had this conviction prior to August 2nd of

2013. It shows what he knows, what happens: When I have a gun, when

I run, and when I eventually admit that I had the gun, I get convicted of

carrying a weapon. So what did he do here? He walks away. He lies

about even being in the car, an obvious lie. He walks away

nonchalantly. The defendant knew – based on the context of what he

had done previously and what happened the time previously, it shows

what he knew on that day and why he acted the way he did. This isn’t

an accident.

(Gov’t Closing Arg. 16 (emphasis added)). The government went well beyond using

the conviction to show “knowledge of the presence of the firearm” and, instead, used

the prior conviction as evidence Green-Bowman’s actions proved he committed the

instant offense because Green-Bowman acted similarly in the past. (See also id. at 14

(prosecutor admitting to the district court that he was using defendant’s prior

11The majority opines it was proper for the prosecutor to “take the time to

compare the details of the two incidents thoroughly to highlight the similarities

supporting an analogy and inference about what was going through Green-Bowman’s

head.” (Maj. Op. 9). In my view, the prosecutor went beyond simply highlighting the

similarities between the cases. Instead, the prosecutor used the prior conviction to

show Green-Bowman “acted” in a certain way in the past and, thus, based on his

conduct in this case must have committed the instant offense. See Richards, 719 F.3d

at 765 (noting the inference drawn from placing Rule 404(b) evidence “at the center

of [the prosecutor’s] closing argument” was that the defendant was a drug dealer in

California “so he must have dealt” in the instant offense).

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conviction because Green-Bowman’s “behavior on the prior occasion demonstrate[d]

the knowledge that [Green-Bowman] had on this occasion, why he acted the way he

did, why he answered the questions the way he did, why he walked away”)).

Because the prosecutor improperly used Green-Bowman’s prior conviction to

show propensity, Green-Bowman must show prejudice. Robinson, 439 F.3d at 780. 

Of particular note, while sufficient to sustain the conviction, the government’s

properly admitted evidence was weak.12 See United States v. Splain, 545 F.2d 1131,

1135 (8th Cir. 1976) (“[I]f the evidence of guilt is weak or tenuous, the existence of

prejudice is more easily assumed.”); see also United States v. Holmes, 413 F.3d 770,

776-77 (8th Cir. 2005) (holding, in part, that a defendant should be granted a new trial

because “the government’s case was less than overwhelming”). Further, while the

district court did provide a limiting instruction as part of the jury instructions,13 the

district court did not sustain Green-Bowman’s repeated objections to the

government’s use of the 2011 firearm conviction, or provide a curative instruction

during the government’s closing argument. See United States v. Conrad, 320 F.3d

851, 856-57 (8th Cir. 2003) (“We do not believe the standard . . . instructions have a

12As alluded to by the majority, the government only presented one piece of

evidence to show “some nexus” between Green-Bowman and the firearm other than

Green-Bowman sitting in the back of the vehicle, facing out, with his feet on the

ground—Green-Bowman’s jacket partially wrapped around the firearm. (Maj. Op.

11-12).

13The district court advised the jury:

Remember, even if you find that the defendant may have committed a

similar act in the past, this is not evidence that he committed such an act

in this case. You may not convict a person simply because you believe

he may have committed similar acts in the past. The defendant is on trial

only for the crimes charged, and you may consider the evidence of prior

acts only on the issues of intent, knowledge, and absence of mistake or

accident.

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significant curative effect on the statements made by the prosecutor.”); Brown, 327

F.3d at 871-72 (holding the district court’s curative instructions both during and after

closing argument were ineffective because the instruction during closing argument

“did not tell the jury to reject the prosecutor’s implication that [the defendant]

harbored a propensity to cheat his business associates”). Therefore, in my view, there

exists sufficient evidence of prejudice to warrant reversal.

For the reasons stated above, I would vacate Green-Bowman’s conviction and

remand this matter for a new trial.

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