# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 19

- 3098 September Term, 2020

F ILED O N : J ANUARY 19, 2021

U NITED S TATES OF A MERICA

, A PPELLEE

v.

V ICTOR A. B ROWN

, J R
., A PPELLANT

Appeal from the United States District Court
for the District of Columbia (No. 1:19

- cr

- 00124

- 1)

Before: S RINIVASAN

, Chief Judge

, H ENDERSON ∗ and M ILLETT
, Circuit Judges

.

J U D G M E N T

This appeal was considered on the record from the United States District Court for the
District of Columbia

, briefed and argued by counsel. The Court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. C IR

. R. 36(d). For the reasons stated below, it is

ORDERED and ADJUDGED that the judgment of the District Court be AFFIRMED

.

Victor Brown (Brown) was found guilty of one count of unlawful possession of a firearm and ammunition by a convicted felon under 18 U.S.C. § 922(g)(1) and one count each of possessi ng with inten t to distribute , respectively, cocaine and fentanyl under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Brown argues his § 922(g)(1) conviction should be vacated because the indictment, jury instructions and evidence did not meet the most recent United States
S upreme Court precedent regarding th at offense’s knowledge

- of

- status requirement. Rehaif v.
United Sta tes

, 139 S. Ct. 2191 (2019). Brown also argues the district court abused its discretion
when it admitted evidence of his past convictions

.

∗ A separate concurr ing statement by Circuit Judge Henderson is attached.2 On March 22, 2019, the Metropolitan Police Department (MPD) executed a search warrant
at 4021 Illinois Avenue NW. On the first floor of the house, MPD officers found Brown

— with $2,893 in his pocket

— and his grandmother

, the homeowner

. On the second floor

, o fficers f ound

an other adult ma n in bedroom 1, no one in bedroom 2 and two adult women and two children in
bedroom 3. When officers entered bedroom 2

, Brown’s photograph w as visible on the dresser and
officers discovered multiple items identifying Brown

, including I .D. cards and mail with the Illinois Avenue address, photographs, a diploma, a bank card and a pill bottle with Brown’s name on it, as well as men’s shoes, jewelry and clothing. On the bed officers found several small bag s contain ing a rock

- like substance that officers suspected was contraband . Officers also found two plastic bags containing white rock

- like substances in the bottom drawer of the nightstand. A
forensic scientist identified t he 72 rock

- like substances as containing fentanyl and cocaine base.
Officers also found in bedroom 2 two cutting agents, a sifter, digital scales, a metal tray and razor blade covered in white residue, a box of sandwich bags and unused zip

- lock bags the same size as
those on the bed. A narcotics expert testified that the e vidence in bedroom 2 was more consistent
with distribution of narcotics than personal use

. Inside the bedside table officers found a loaded
9mm firearm on top of mail addressed to Brown . A fingerprint expert identified the prints on the
slide of the firear m and magazine as Brown’s.

On August 27, 2019, Brown was charged with unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year under 18 U.S.C. § 922(g)(1) (Count One); posses sion with intent to distribute (PWID) cocaine base under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Two); PWID fentanyl under 21 U.S.C. §§ 841(a)(1) and 84l(b)(1)(C) (Count Three); and using, carrying and possessing a firearm during a drug trafficking offense under 18 U.S.C. § 924(c)(1) (Count Four)

. On September 19, 2019, the jury found Brown guilty of Counts One, Two and Three but acquitted Brown of
Count Four.

I. C OUNT O NE 18 U.S.C. § 922( g)

Brown asks we vacate his Count One 18 U.S.C. § 922(g) conviction , citing the recent Supreme Court decision in Rehaif v. United States

, 139 S. Ct. 2191 (2019)

. Brown argues both the indictment and jury instructions were defective and there was insufficient evidence to convict him
because none compl ied with Rehaif ’s knowledge

- of

- status requirement. The G overnment argues Brown waived all three claims

. Irrespective of waiver, Brown cannot show error.

Under 18 U.S.C. § 922(g), “[i ]t shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to possess a firearm or ammunition. The penalty provision, 18 U.S.C. § 924(a)(2), mandates that anyone who

“ knowingly violates” 18 U.S.C. § 922(g) will be fined or imprisoned for up to 10 years. I n Rehaif

, the Supreme Court held “the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s status” and “therefore [the Government] must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” 139 S.
Ct. at 2194.3 To the extent Brown argues Rehaif requires proof that he knew his status as a felon prohibited him from owning a gun

— not that he simply knew his status as a felon

— his argument is without merit

. Rehaif held § 924(a)(2) ’s knowledge requirement applies to both the “possession
element” and “status element” of § 922(g) . 139 S. Ct. at 2195

– 96. But Rehaif does not require knowledge of the criminal prohibition of § 922(g) ; instead “ the Government must prove that a
defendant kn ew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status ( that he was a felon . . .) [.] ” Id. at 2194 (emphasis added). Thus, Rehaif requires nothing more than that the Government prove Brown knew he had been
convicted of a crime punishable by imprisonment of more than one year

. See also United States v.
Bowens , 938 F.3d 790, 797 (6th Cir. 2019)

, cert. denied sub nom. Hope v. United States , 140 S.
Ct. 814 (2020), and cert. denied , 140 S. Ct. 2572 (2020 ) ; United States v. Maez , 960 F.3d 949,
954

– 55 (7th Cir. 2020); United States v. Singh , 979 F.3d 697, 727

– 28 (9th Cir. 2020); United
States v. Burke

, 823 F. App’x 777

, 779 n.5 (11th Cir. 2020) (per curiam)

.

Brown cannot show error in the indictment because it plainly complied with Rehaif

. Generally, “ an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. ” Hamling v.
United States , 418 U.S. 87, 117 (1974)

. Count One of t he indictment expressly charged the
kno wledge

- of

- status element required by Rehaif :

On or about March 22, 2019, within the District of Columbia, VICTOR A. BROWN, JR., knowing he had previously been convicted of a crime punishable by imprisonment for a term exceeding one year , in the State of Maryland, Circuit Court for Howard County, Criminal Case No. 13

- K

- 14

- 054426, did unlawfully and knowingly receive and possess a firearm, that is, a Springfield XD9, .40 caliber
semi

- automatic pistol which had been possessed, shipped, and transported in and affecting interstate and foreign commerce.

( Unlawful Possession of a Firearm and Ammunition by a Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding One Year , in violation
of Title 18

, United States Code, Section 922(g)(l)).

Joint App

. at 9

– 10 (formatting removed ; emphasis added). As Rehaif mandates , the indictment specifically alleged Brown possessed a firearm “knowing he had previously been convicted of a crime punishable by imprisonment for a term exceeding o ne year” and identified the relevant
conviction. Accordingly, the indictment complies with Rehaif

.

Brown’s claim that the jury instructions failed to meet Rehaif ’s knowledge

- of

- status requirement similarly fails. On September 6, 2019, the parties submitted their Joint Pretrial Statement, including the proposed jury instruction for Count One, as follows :

The elements of possession of a firearm and ammunition by a pe rson who has previously been convicted of a crime punishable by imprisonment for a term4 exceeding one year, each of which the government must prove beyond a reasonable doubt, are that:

1. The defendant knowingly possessed a firearm and/or ammunition;
2. A t the time of the charged act, the defendant had previously been convicted in a court of a crime punishable by imprisonment for a term exceeding one year; 3. At the time of the charged act, the defendant knew that he had previously been
convicted in a court of a crime punishable by imprisonment for a term exceeding

one year

. . . .

S uppl

. App

. at 68 (emphasis added) . The trial court included the parties’ proposed instruction for Count One in its final instructions to the jury without objection. Moreove r , t he jury charge expressly stated that the G overnment must prove beyond a reasonable doubt Brown “knew that he had previously been convicted in a court of a crime punishable by imprisonment for a term exceeding one year.” Accordingly, t here is no Rehaif error in the jury instructions.

Brown ’s argument that there was insufficient evidence to convict him of the § 922(g)
offense because the G overnment failed to prove his knowledge

- of

- s tatus as required by Rehaif also
fails . Brown stipulate d that he knew of his felon status at the time he possessed the firearm. Before resting the G overnment’s case, the prosecutor read the following stipulation into evidence :

The parties stipulate that prior to March 22nd of 2019, Defendant Victor Brown had been convicted of a crime punishable by imprisonment for a term exceeding one year and knew that he’d been convicted in a court of a crime punishable by imprisonment for a t erm exceeding one year

.

J oint App

. at 307 (emphasis added). Brown’s stipulation itself constitutes sufficient evidence for the jury to have found Rehaif ’s knowledge

- of

- status requirement established

.

II. F EDERAL R ULE OF E VIDENCE 404

Brown also cannot prevai l i n his challenge to his past convictions’ admission under Federal
Rule of Evidence 404(b) because, even assuming the trial court erred in admitting the evidence,
the error was harmless

.

Under Rule 404(b)

, “[ e ] vidence of any other crime, wrong, or act is not admissible 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). Such evidence, however, “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). The admissibility of
Rule 404(b) evidence is also determined by the “general strictures limiting admiss ibility such as
Rules 402 and 403.” United States v. Miller , 895 F.2d 1431, 1436 (D.C. Cir. 1990) (internal quotations omitted). Under Rule 403, a “ court may exclude relevant evidence if its probative value is substantially outweighed by a danger of

. . . unfair prejudice

. . . . ” Fed. R. Evid . 403. Rule 4025 provides that any relevant evidence is admissible unless otherwise provided by the United States Constitution, federal statute, the Federal Rules of Evidence or other rules of the Supreme Court.
Fed. R. Evid . 402.

Pursuant to Rule 404(b), t he G overnment moved in limine to admit evidence of Brown’s
earlier convictions

. The district court ruled that th e convictions would be admissible as stipulations, subject to a limiting instruction

, in order to prove Brown’s knowing and voluntary constructive possession of the contraband found in bed room 2 and his intent to distribute the drug s

. The first stipulation stated that Brown had ple a d ed guilty to possession of ammunition on September 10, 2008, after MPD executed a search warrant at the same Illinois Avenue address, during which search, the MPD seized a box of .38 caliber cartridges along with Brown’s mail, papers and personal effects from the same bedroom 2

. The second stipulation stated that Brown
had ple a d ed guilty to possessi ng with intent to distribute cocaine after MPD officers stopped him in Northwest Washington, D.C. on March 10, 2 009 and found $330

, a clear zip

- lock bag with 77
small er zip

- lock bags inside

— each containing a white rock

- like substance with a cocaine base

— and additional unused zip

- lock bags on his person

. Attached to the second stipulation were

p hotographs of the seiz ed contraband

.

Even assuming the district court erred in admitting Brown’s past convictions

, “ [w] rongly
admitted evidence

. . . does not always compel reversal.” United States v. McGill , 815 F.3d 846, 886 (D.C. Cir. 2016) (per curiam) . An error in admitting evidence is harmless, and therefore not reversible, “if we ‘can say that the error did not affect the jury’s verdict.’” United States v. Sheffield , 832 F.3d 296, 308 (D.C. Cir. 2016) (quoting United States v. Watson , 171 F.3d 695, 7 00 (D.C. Cir. 1999)) ; see also United States v. Johnson , 519 F.3d 478, 484 (D.C. Cir. 2008) (404(b)

error is harmless if it does not have substantial and injurious effect on jury’s verdict)

. The
admission of Brown’s past convictions was harmless for the three reasons set down in Sheffield

. See 832 F.3d at 30 8

– 09.

First, the evidence “ was neither so dramatic nor compelling as to rivet the jury’s
attention

. . . . ” Id. at 308 (quoting United States v. Brown , 597 F.3d 399, 405 (D.C. Cir. 2010 ) )

. The stipula tions

— short

, direct and fact

- bound statements of Brown’s past crimes

— were read into
evidence

. The photo graphs attached to the second stipulation simply showed the items seized during Brown’s earlier PWID arrest.

Second , “the district court took caution to guard the space between the permissible and impermissible inferences by instructing the jury to consider the evidence only for its proper purpose.” Id. (quoting United States v. Mitchell , 49 F.3d 769, 777 (D.C. Cir. 19 95) ) . The district court gave appropriate limiting instructions immediately after the evidence was admitted and again
in its final jury charge

. Both times it emphasized that the jury could use the Rule 404(b) evidence only to determine whether Brown acted knowingly and on purpose

— not by mistake or accident

— regarding his constructive possession of the contraband and his intent to distribute it

. It cautioned the jury that it could not use the evidence for any other purpose

— including the express caution that the jury could not use the evidence to “ think that [Brown] had a bad character or had a propensity to commit a crime

. . . . ” Joint App

. at 312. “Absent evidence to the contrary, the jury6 is presumed to have followed that instruction, and [Brown] offe rs no such contradictory evidence.” Sheffield

, 832 F.3d at 309.

Third , “[t]he most significant factor that negates the error’s impact is the weight and nature of the evidence against [the defendant].” Id. (alteration in original) (quoting United States v.
Williams , 212 F.3d 1305, 1311 (D.C. Cir. 2000) )

. T he firearm

, drugs and drug paraphernalia were found in a room that was plainly Brown’s bed room

— the room contained Brown’s documents, diploma, photos , medicine, bank card and I.D. cards

. Granted , t he September 10, 2008 ammunition
conviction constituted minimal

— if any

— evidence establishing Brown’s constructive possession
of the 9mm firearm

. Assuming the earlier conviction was erroneously admitted, however, the error
was harmless in view of the firear m’s location in Brown’s bed room, on top of mail addressed to Brown, with Brown’s fingerprints on it. The past PWID conviction was also only a small part of the evidence establishing Brown’s constructive possess ing with intent to distribute th e drugs and paraphernalia found in bedroom 2 during the MPD’s 2019 search

. Further, t he Government
discussed the inferences that could be drawn from the Rule 404(b) e vidence only briefly in its closing statements

. In sum, t he stipulations “formed a small part of what was otherwise an overwhelming case against” Brown. McGill , 815 F.3d at 886.

For the foregoing reasons, the judgment of the district court is affirmed.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate until seven days after resolution of any timely petition for rehearing or rehearing en banc. See F ED

. R. A PP

. P. 41(b); D.C. C IR

. R. 41.

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy Deputy Clerk7 K AREN L E C RAFT H ENDERSON

, Circuit Judge , concurring : Although I agree with my colleagues that the admission of Brown’s previous convictions was at most harmless error, I would go further and hold that it was not error at all. A trial court may exclude Rule 404(b) evidence
under Rule 403 if the evidence’s unf air prejudice substantially outweigh s its probative value. See
Fed. R. Evid . 403. That was not the case here.

Bo th previous convictions had some probative value in establishing Brown’s constructive possession of the contraband. See, e.g.

, United States v. Cassell , 292 F.3d 788, 793 (D.C. Cir. 2002) (“[I]n cases where a defendant is charged with unlawful possession of something, evidence that he pos sessed the same or similar things at other times is often quite relevant to his knowledge and intent with regard to the crime charged.” (internal quotations omitted)).

Brown’s previous conviction of PWID was probative of his constructive possession of the drugs

, of his knowledge the 72 rock

- like substances contained fentanyl and cocaine base and of
his intent to distribute

. See, e.g.

, United States v. McGill , 815 F.3d 846, 884 (D.C. Cir. 2016) (per curiam) (defendant’s past PWID conviction relevant to rebu t his claim “that drugs found in an area where he was sleeping belonged to his brother”); United States v. Douglas , 482 F.3d 591, 597 (D.C. Cir. 2007) (“Evidence that [the defendant] previously possessed and distributed crack
cocaine .

. . has a tendency t o make it more probable both that he knew the nature of the
substance

— crack cocaine

— he was charged with possessing . . . and that he intended to distribute it.” (citations and internal quotations omitted)); U nited S tates v. Crowder , 141 F.3d 1202, 1206

– 10 (D.C. Cir. 1998) ( en banc ) (affirming admissibility of defendant’s other sale of narcotics as probative of defendant’s knowledge of narcotics and drug trade and his intent to distribute).

Granted

, evidence of previous convictions “almost unavoida bly raises the danger that the jury will improperly conclude that because [a defendant] committed some other crime, he must have committed the one charged in the indictment.” Douglas , 482 F.3d at 601 (internal quotations omitted). But that danger “cannot g ive rise to a per se rule of exclusion.” Id. ( quoting Crowder

, 141 F.3d at 1210 ). Brown’s previous ammunition possession conviction carr ies with it factors that
reduc e its probative value. The 2008 conviction involved a different caliber of ammunition from that fitting the 9mm firearm found in Brown’s drawer. And t he conviction wa s 1 1 years old at the
time of Brown’s trial

. See Sheffield , 832 F.3d at 307

– 08 (staleness of conviction more than ten

years old reduce d proba tive value of evidence , deeming it erroneously admitted ). Brown’s ammunition possession conviction

, however, had elements that increas e d its probative value

,
n otably, the 2008 ammunition was located in the same bedroom

, in the same house

, as the 9mm
firear m

.

O ur precedent leans heavily in favor of admitting evidence in these circumstances. Rule 404(b) “is a rule of inclusion rather than exclusion, and it is quite permissive, excluding evidence only if it is offered for the sole purpose of proving that a person’s actions conformed to his or her
character.” United States v. Long , 328 F.3d 655, 660

– 61 (D.C. Cir. 2003) ( citations and internal quotations omitted). And Rule 403’s “requirement that the danger of unfair prejudice substantially outweigh probative value calls on [the court], in close cases, to lean towards admitting evidence.”
United State s v. Straker , 800 F.3d 570, 589 (D.C. Cir. 2015) (per curiam) (emphasis in original)

.8 Moreover

, our review of the district court’s admission of Rule 404(b) and 403 evidence is highly
deferential. Id. ( “We review a district court’s admission of other

- crimes evidence [under Rule 404(b)] for abuse of discretion, according substantial deference to the district court.” (citations and internal quotations omitted)) ; Long , 328 F.3d at 662 ( “Because the trial court is in the best position to perform the subjective b alancing that Rule 403 requires, its decision is reviewed only for grave
abuse.” (internal quotations omitted) (alteration accepted) ).

We have often noted that t he trial judge is in the best position to perform the subjective balancing Rule 403 requires. H ere, in my view, the district court

, instructed by our court that “in
close cases” it should “lean towards admitting evidence

, ” Straker , 800 F.3d at 589 , committed no “grave abuse” of discretion

— indeed, no error at all

— i n admitting the Rule 404(b) evidence

, Long

, 328 F.3d at 662 (internal quotations omitted)

.