United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2008 Decided May 27, 2008

No. 06-3130

UNITED STATES OF AMERICA,

APPELLEE

v.

LEWIS D. MCCARSON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 05cr00068-01)

James W. Beane, Jr., appointed by the court, argued the

cause and filed the brief for appellant.

Stratton C. Strand, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jeffrey A.

Taylor, U.S. Attorney, and Roy W. McLeese III and Thomas J.

Tourish, Jr., Assistant U.S. Attorneys.

Before: GINSBURG, BROWN, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.
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GINSBURG, Circuit Judge: A jury found Lewis McCarson

guilty of being a felon in possession of a firearm, see 18 U.S.C.

§ 922(g)(1), and of possessing with the intent to distribute five

grams or more of cocaine base, see 21 U.S.C. § 841(a)(1) &

(b)(1)(B)(iii). He was acquitted of possessing a firearm during

a drug-trafficking offense, see 18 U.S.C. § 924(c)(1), and of

possessing with the intent to distribute marijuana, see 21 U.S.C.

§ 841(a)(1) & (b)(1)(D). On appeal, McCarson argues that

evidence of the gun and the drugs, which the U.S. Marshals

discovered while executing a warrant for McCarson’s arrest in

connection with another charge, should be suppressed as the

fruits of an unreasonable search in violation of the Fourth

Amendment to the Constitution of the United States. In

addition, McCarson contends the district court erroneously

applied Rules 404(b) and 403 of the Federal Rules of Evidence

in allowing the Government to introduce evidence of his prior

convictions. We find merit in neither argument and therefore

affirm the conviction.

I. Background

Having learned from a reliable source that McCarson was

staying at his girlfriend’s apartment in the District of Columbia,

Deputy U.S. Marshals went to her apartment early one morning

with a warrant for his arrest. McCarson answered the door

wearing boxer undershorts and a t-shirt and holding an infant in

his arms. The Marshals, who recognized him from a

photograph, directed McCarson to sit at the kitchen table, which

he did, and conducted a protective sweep of the two-bedroom

apartment, in the course of which they discovered nothing of

concern. In preparation for his arrest, McCarson made a

telephone call to ensure that somebody would take custody of

the child and said he wanted to wear his black pants, coat, and

shoes, which were in one of the bedrooms. A Marshal told

McCarson to remain seated, and two other Marshals went into
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* McCarson challenges neither the reasonableness of the

Marshals’ belief McCarson was at his girlfriend’s apartment nor their

authority, in connection with effecting the arrest, to enter the bedroom

where they found the contraband. Although counsel contended at oral

argument that the evidence was not found in plain sight, that argument

appears nowhere in the defendant’s briefs and so is not properly before

us. United States v. Johnson, 519 F.3d 478, 489 (D.C. Cir. 2008).

the bedroom to get those articles. In the process of retrieving

them, one of the Marshals noticed marijuana in an open drawer

of a dresser inches away from him and then saw an automatic

handgun in another drawer, which was also ajar; the latter

drawer also contained crack cocaine, which the district court

found to have been in plain sight either from the outset or once

the Marshals removed the gun.

II. Analysis

On appeal, McCarson argues first that the gun and narcotics

should have been suppressed under the Fourth Amendment. In

Payton v. New York, 445 U.S. 573 (1980), however, the

Supreme Court explained that “an arrest warrant ... implicitly

carries with it the limited authority to enter a dwelling in which

the suspect lives when there is reason to believe the suspect is

within.” Id. at 603. Although the Marshals had a warrant for

McCarson’s arrest and discovered the contraband in plain sight

while effecting the arrest, see Harris v. United States, 390 U.S.

234, 236 (1968) (evidence found in plain view is admissible),

McCarson contends on the authority of Steagald v. United

States, 451 U.S. 204 (1981), the contraband should be

suppressed; he submits the Marshals were obliged to obtain a

search warrant because they arrested him at a residence other

than his own.*
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* We have said as much in analogous cases on at least two

occasions, United States v. Taylor, 497 F.3d 673, 679 (2007); United

States v. Searles, 24 F.3d 1464 (Table), 1994 WL 246130, at *1

(1994), as has every other court of appeals to have decided the issue.

See United States v. Pruitt, 458 F.3d 477, 481-82 (6th Cir. 2006);

United States v. Agnew, 407 F.3d 193, 196-97 (3d Cir. 2005); United

States v. Kaylor, 877 F.2d 658, 663 n.5 (8th Cir. 1989); United States

v. Underwood, 717 F.2d 482, 484 (9th Cir. 1983) (en banc) (“If an

arrest warrant and reason to believe the person named in the warrant

is present are sufficient to protect that person’s fourth amendment

privacy rights in his own home, they necessarily suffice to protect his

privacy rights in the home of another”); see also United States v.

Snype, 441 F.3d 119, 133 (2d Cir. 2006) (leaving issue open); United

States v. Weems, 322 F.3d 18, 23 n.3 (1st Cir. 2003) (same).

McCarson’s argument that the evidence should have been

excluded from his trial finds no support in Steagald. There the

police, who had obtained a warrant for the arrest of one Lyons,

learned from an informant that Lyons was staying at a certain

address, which turned out to be the residence of one Steagald.

The police searched Steagald’s home but, instead of Lyons,

found narcotics. The Supreme Court held the drugs were

inadmissible as against the householder, Steagald, id. at 216, but

had no occasion to address the Fourth Amendment rights of

Lyons, see id. at 212-13. Nothing in Steagald, therefore, bears

upon McCarson’s situation, as opposed to that of the woman

whose apartment was searched.*

 Nor does McCarson have

standing to invoke her rights in his defense. United States v.

Salvucci, 448 U.S. 83, 85 (1980) (“defendants charged with

crimes of possession may only claim the benefits of the

exclusionary rule if their own ... rights have ... been violated”).

We hold, therefore, that the gun and drugs were admissible as

evidence against McCarson.

McCarson next challenges the admissibility at trial of four

prior convictions -- two for possession of a gun and two for
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distribution of crack cocaine -- on the ground that the evidence

was inadmissible under Rules 404(b) and 403 of the Federal

Rules of Evidence. Rule 404(b), which governs the

admissibility of “[e]vidence of other crimes, wrongs, or acts,”

excludes evidence submitted “to prove the character of a person

in order to show action in conformity therewith,” whereas Rule

403 provides that otherwise relevant evidence, including

evidence of other crimes, “may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice”; the application of both Rules is committed to the

discretion of the district court. United States v. Bowie, 232 F.3d

923, 926-27 (D.C. Cir. 2000) (rulings under Rule 404(b)

reviewed for abuse of discretion); United States v. Washington,

969 F.2d 1073, 1081 (D.C. Cir. 1992) (rulings under Rule 403

reviewed only for “grave abuse”). We conclude the district

court did not abuse its discretion.

First, it is clear the evidence is admissible under Rule

404(b). In United States v. Cassell, 292 F.3d 788, 792-95

(2002), we held evidence of a prior conviction for possession of

contraband is relevant (and admissible under Rule 404(b)) when,

as here, a defendant is charged with constructive possession of

the same type of contraband -- there a gun carried without a

license. And in United States v. Douglas, 482 F.3d 591, 596-

600 (2007), we held evidence of a prior offense involving the

sale of a drug was relevant to prove the defendant knew he

possessed the drug and had the intent to distribute it. 

McCarson nonetheless argues the evidence of his prior

convictions for possessing firearms and selling crack cocaine is

inadmissible under Rule 404(b) because his knowledge and

intent were not at issue; the only issue was whether he possessed

the gun and the drugs. In Cassell, however, we rejected the

distinction between knowledge and possession when a defendant

is charged with constructive possession, because “[a] successful
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conviction” for constructive possession requires proof of “a

mental element (knowing possession),” as well as “a physical

element (dominion and control ...).” 292 F.3d at 792-94.

Furthermore, McCarson’s choice not to put at issue an element

of the charged offense is irrelevant to the admissibility of

evidence offered to prove that element. United States v.

Crowder, 141 F.3d 1202, 1205-09 (D.C. Cir. 1998) (en banc);

see also Old Chief v. United States, 519 U.S. 172, 186-89 (1997)

(“the prosecution is entitled to prove its case free from any

defendant’s option to stipulate the evidence away”).

Finally McCarson contends the evidence of his prior

convictions, even if relevant, should have been deemed

inadmissible under Rule 403. It is clear, however, the district

court did not “grave[ly] abuse” its discretion in admitting

McCarson’s prior convictions. Douglas, 482 F.3d at 596. Rule

403 requires the district court to assess whether the “probative

value” of the evidence “is substantially outweighed by the

danger of unfair prejudice.” McCarson’s prior convictions were

not only relevant; they were also highly probative of both his

intent to distribute the crack cocaine and his constructive

possession of the gun and the drugs. This evidence tended to

undercut his argument at trial that the contraband belonged to

his girlfriend because the Marshals found the contraband in his

girlfriend’s apartment inside a dresser containing what appeared

to be her rather than his belongings. Cf. Cassell, 292 F.3d at

793 (evidence of prior conviction permitted where defendant

“disputes the fact that he ever possessed ... firearms ... because,

according to him, the firearms belonged to his uncle” in whose

house they were found). Moreover, as in Douglas, 482 F.3d at

601, and Cassell, 292 F.3d at 796, the district court here

instructed the jury that the evidence was being admitted and was

to be considered only “with respect to the issues of intent and

knowledge and for nothing else.” Where, as here, there is no

“compelling or unique evidence of prejudice,” we deem such a
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limiting instruction “sufficient[]” to “protect a defendant’s

interest in being free from undue prejudice” by virtue of his

prior conviction(s) being put into evidence. Cassell, 292 F.3d

at 796 (internal quotation marks omitted).

III. Conclusion

For the reasons given above, the judgment of the district

court is

Affirmed.