United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Presently before the Court is the Government’s  Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of Evidence 404(b) and Defendant’s  Opposition to Government’s Motion to Admit Other Crimes Evidence Pursuant to F.R.E. 404(b). The Government requests that it be permitted to introduce evidence of uncharged criminal conduct that it asserts is relevant to prove knowledge, intent, and/or absence of mistake. Anderson opposes this request, arguing that the evidence is inadmissible character evidence under Rule 404(b), and is more prejudicial than probative. Upon consideration of the Government’s Rule 404(b) Motion, Anderson’s Opposition thereto, the relevant case law, and the entire record herein, the Court shall GRANT IN PART and HOLD IN ABEYANCE IN PART the Government’s Rule 404(b) Motion for the reasons described. Specifically, the Court finds that the evidence at issue shall be conditionally admitted as “other crimes” evidence under Rule 404(b). However, the Court shall defer judgment until trial as to whether such evidence should be excluded under Federal Rule of Evidence 403.
On November 13, 2015, Anderson was charged by indictment with one count of unlawful possession of a firearm and ammunition by a person convicted of crimes punishable by imprisonment for a term exceeding one year in violation of 18 U.S.C. § 922(g)(1). The Court shall briefly discuss the factual background surrounding Anderson’s charge as described by the Government in its Motion, see Govt.’s Mot. at 1-3, and the uncharged criminal conduct it seeks to introduce, see Id. at 3-4, because both are relevant to the Court’s analysis. Anderson’s charge in the instant action is based on his alleged possession of a firearm and ammunition which were recovered from under a bed in an apartment on Elvans Road, S.E., Washington, D.C., on October 3, 2015. Specifically, an officer with the Metropolitan Police Department (“MPD”) was on patrol in a marked vehicle when he was approached by a witness (“Witness 2”) who informed him that there was a man with a gun inside an apartment with her cousin and daughter. Witness 2 then entered the apartment and, while the MPD officer waited outside for additional officers to respond, he observed Witness 2 exit the apartment through a window.
When another MPD officer arrived, the two officers knocked on the door and a second witness (“Witness 1”) answered the door approximately 30 seconds later. Witness 1 allowed the police to enter the apartment and informed officers that her friend, later identified as Anderson, was in the back bedroom. One of the officers initially sent Witness 1 to get Anderson and have him come to the living room. After approximately 50 seconds, the officer called for Anderson to come to the living room. After another 30 seconds, Witness 1 informed the officers that Anderson would not come out of the bedroom. However, Anderson emerged from the back bedroom a few second later and came into the living room. One of the officers searched the back bedroom and located under the bed a Ruger P95DV 9 mm pistol containing a 9 mm magazine capable of holding 35 rounds of ammunition. Anderson was placed under arrest.
The Government indicates that it anticipates calling Witness 1 who will testify that Witness 1, Witness 2, Anderson, and another individual were inside the apartment. The Government asserts that Witness 1 observed Witness 2 and Anderson arguing about money when Anderson pulled a firearm from his waistband. Witness 2 left the apartment and the police then came to the door. When the police knocked on the door, Anderson ran into the back bedroom with a firearm. As the Government noted in its motion, Witness 1 has provided inconsistent statements to the officers on the scene and in a recorded interview on October 3, 2015, which have been disclosed to Anderson’s counsel. Govt.’s Mot. at 3 n.4. Presumably these statements related to events not on the video that police recorded throughout their time in the apartment.
The Government now seeks to introduce evidence of Anderson’s prior possession of a firearm pursuant to Rule 404(b) during trial. As described by the Government in its Motion, two MPD police officers responded to a disorderly conduct complaint on Elvans Road, S.E., Washington, D.C. on August 22, 2009. As one officer drove onto the block in question, he observed Anderson, who was standing on the steps of the location to which the officer was responding, become nervous and ran towards a Dodge van parked near the building. The officer further observed Anderson crouch behind the van and stuff something underneath the vehicle. When one officer exited his vehicle approximately 10 feet away, Anderson began to run. Another officer chased Anderson on foot and detained him. The other officer went to the Dodge van and located a Norinco AK-47 assault rifle with a magazine clip serial number #11S021300 that was loaded with 35 rounds of ammunition and one round in the chamber. Anderson admitted possession of the firearm and ammunition as part of a plea entered in case number 2009 CF2 18245 in the Superior Court of the District of Columbia for the charges of felon in possession, possession of an unregistered firearm, possession of a prohibited weapon, and unlawful possession of ammunition. Anderson was sentenced on these charges on February 19, 2010.
III. LEGAL STANDARD
Federal Rule of Evidence 404(b) provides that “[e]vidence of a crime, wrong, or other acts 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, ” but “may be admissible for another purpose, ” including proving “motive, opportunity, intent, . . . [or] absence of mistake.” Fed.R.Evid. 404(b)(1), (2). The rule is one of “inclusion rather than exclusion. Although the first sentence of Rule 404(b) is framed restrictively, the rule itself is quite permissive, prohibiting the admission of other crimes evidence in but one circumstance-for the purpose of proving that a person’s actions conformed to his character.” United States v. Bowie, 232 F.3d 923, 929-30 (D.C. Cir. 2000) (internal quotations omitted).
In addressing trial court determinations on the admissibility of bad acts evidence under the Federal Rules of Evidence, this circuit has employed a two-step mode of analysis. Under the first step, which addresses Rule 404(b), “[the court] must determine whether the evidence is relevant to a material issue other than character. If so, [the court] proceed[s] to the second inquiry, ” under Federal Rule of Evidence 403, “whether the probative value is substantially outweighed by the prejudice.”
United States v. Burch, 156 F.3d 1315, 1323 (D.C. Cir. 1998) (quoting United States v. Mitchell, 49 F.3d 769, 775 (D.C. Cir. 1995)).
The Government seeks to introduce evidence of Anderson’s 2009 possession of a firearm pursuant to Rule 404(b) on the basis that the prior possession is relevant to prove knowledge, intent, and/or absence of mistake. Anderson argues that the evidence of the prior possession is character evidence which may not be introduced under Rule 404(b) and that introduction of the evidence of the prior possession at trial would be more prejudicial than probative. For the reasons described herein, the Court finds that the evidence of Anderson’s 2009 possession of a firearm is evidence that may be admissible for the purpose of proving knowledge and/or absence of mistake. However, the Court shall defer judgment until trial as to whether such evidence should be excluded under Federal Rule of Evidence 403.
The issue before the Court is whether the evidence of Anderson’s prior possession of a firearm is probative to some issue other than character such that it is the type of evidence that may be permissible under Rule 404(b). Here, the Government argues that the “evidence of [Anderson’s] prior offense related to possession of a firearm, and willingness to distance himself from the firearm and take other steps to elude arrest for it, are relevant and probative of his knowing and intentional possession of a firearm in this case.” Govt.’s Mot. at 8-9. Anderson asserts that the Government’s argument is flawed because the Government “contends that it heard from a witness that a man in an apartment had a gun; it found a man in an apartment; he denied the gun was his; but ...