United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2002 Decided June 11, 2002

No. 01-3050

United States of America,
Appellee

v.

Dwayne Cassell,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 00cr00270-01)

Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Valencia R. Rainey,
Assistant Federal Public Defender, entered an appearance.

Roy W. McLeese III, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Roscoe C. Howard, Jr.,


U.S. Attorney, John R. Fisher, Elizabeth Trosman, Stuart G.
Nash and Patricia A. Heffernan, Assistant U.S. Attorneys.

Before: Sentelle and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Appellant Dwayne Cassell was
charged in a five count indictment with, inter alia, possession
of a firearm by a felon in violation of 18 U.S.C. s 922(g)(1)
and possession of a firearm during drug trafficking in viola-
tion of 18 U.S.C. s 924(c)(1) following a search of his uncle's
home that turned up three guns, ammunition, marijuana,
crack cocaine, and drug paraphernalia. At Cassell's trial, the
district court admitted evidence over Cassell's objection that
Cassell had been convicted in 1997 for possessing a loaded,
9-mm semi-automatic firearm, and that a few weeks before
the search, police found a loaded, 9-mm semi-automatic fire-
arm that fell from underneath the rear bumper of Cassell's
car while it was being towed. Following a jury trial, Cassell
was convicted of both firearms charges.1 Cassell appeals on
grounds that the evidence of his two prior gun possessions
violated Rules 404(b) and 403 of the Federal Rules of Evi-
dence. We disagree and affirm his convictions.

I. Background

On July 13, 2000, officers of the Metropolitan Police De-
partment searched Lawrence Hart's northeast Washington,
D.C. home pursuant to a search warrant. Hart is Dwayne
Cassell's uncle, with whom Cassell had been living at the time
of the search. During the search of Cassell's room, police
recovered a loaded 9-mm pistol, a loaded AR-15 (.223-
caliber, semi-automatic) assault rifle, and $3150 in cash.
From Hart's room, police recovered $750 in cash, marijuana,
a .32 revolver, and .22 caliber ammunition. Hart, who was
present during part of the search, was carrying $1429 in cash
on his person. From other parts of the house the police

__________
1 Cassell was also convicted of two other charges that are not
relevant to this appeal.


recovered additional marijuana, approximately $11,500 worth
of crack cocaine, scales, ziplock bags, additional 9-mm ammu-
nition, .30 caliber ammunition, cocaine base residue on a plate
with Cassell's fingerprint on it, and a magazine for a semi-
automatic weapon. At the scene, police arrested Hart, who
subsequently agreed to plead guilty to Carrying a Pistol
Without a License ("CPWL") and to testify against Cassell.

II. Proceedings Below

Prior to Cassell's trial, prosecutors sought to introduce
evidence of Cassell's two prior gun possessions. Specifically,
prosecutors sought to introduce evidence of a 1997 CPWL
conviction stemming from an arrest in a housing complex in
Washington, D.C. called Sursum Corda. At the time of this
prior arrest, Cassell had a loaded, 9-mm semi-automatic
firearm in his pants pocket. Prosecutors also sought to
introduce evidence that a few weeks before the search of
Hart's apartment, Cassell's car was impounded and towed
from Sursum Corda. During transport of his car, a loaded,
9-mm semi-automatic firearm fell from underneath the rear
bumper.

Cassell objected to this testimony on grounds it violated
Federal Rules of Evidence 404(b) and 403. See Fed. R. Evid.
404(b) (evidence of other crimes or acts); Fed. R. Evid. 403
(unfair prejudice). The government contended that the evi-
dence was probative of Cassell's knowing and intentional
possession of the firearms recovered from his bedroom, and
that his possession of those firearms was not mistaken,
accidental, or inadvertent. The government also contended
that the evidence was probative of his criminal intent and
state of mind. Although the parties misunderstood the dis-
trict court's initial ruling, a review of the record from the
evidentiary hearing indicates that the district court ruled that
the government could introduce the fact that Cassell was
convicted of a felony in 1997 to establish the predicate
element of the felon in possession charge,2 but it could not

__________
2 Cassell's CPWL conviction was actually a misdemeanor convic-
tion that could not serve as the predicate offense for a s 922(g)


introduce the fact that the conviction stemmed from a gun-
related offense because doing so would be more prejudicial
than probative. The district court also ruled that with re-
spect to the circumstances surrounding the 1997 conviction
and the 9-mm firearm recovered from Cassell's car, the
evidence would be excluded as more prejudicial than proba-
tive, see Fed. R. Evid. 403, and as impermissible 404(b)
evidence. See Fed. R. Evid. 404(b). The court did rule,
however, that this evidence could be admitted under Rule
404(b) as a circumstantial link to the ammunition found in
Hart's house,3 or if Cassell asserted a "lack of knowledge"
defense.

Once at trial, Cassell asserted both during opening argu-
ment and through cross-examination of government witnesses
that the firearms were not his, but instead belonged to Hart.
At the end of the government's case-in-chief, the government
tendered a proposed stipulation to the defense which included
the fact that the 1997 conviction involved a firearm as well as
the factual circumstances surrounding the underlying arrest.
When Cassell objected on grounds that the stipulation includ-
ed facts which the district court had ruled inadmissible, the
district court reviewed its notes from the evidentiary hearing
and clarified its earlier ruling. The court reiterated its
earlier decision that the government was prohibited under
Rule 403 from presenting evidence that the 1997 conviction
involved a firearm. The court then restated its 404(b) deci-
sion--ruling that the two prior gun possessions would be
excluded unless there was an "explicit or an implicit indication
during the government's case brought by the defense of lack
of knowledge." After evaluating the evidence so far present-
ed, the district court ruled that "the cross-examination in this

__________
charge; however, Cassell had a prior felony conviction to which the
parties stipulated at trial.

3 The evidence admitted at trial established that the 9-mm maga-
zine and ammunition recovered from Hart's house fit the 9-mm
firearm recovered from Cassell's bedroom, and the government did
not attempt at trial to link either of the prior gun possessions to the
9-mm ammunition recovered from Hart's house.


case so far clearly has left an impression with the jury that
the defense is that [the guns] were not the defendant's." The
court thereafter admitted the evidence of the two prior gun
possessions after "having examined it under [Federal Rule of
Evidence] 404(b) and also having examined it under [Federal
Rule of Evidence] 403." The parties then stipulated to the
facts surrounding Cassell's 1997 conviction as well as the facts
surrounding the recovery of the weapon that fell from Cas-
sell's car.

Cassell now contends that the district court mistook his
"lack of possession" defense for a "lack of knowledge" defense
by "confus[ing] a denial of the required mens rea, which
would arguably increase the legitimate probative value of the
prior gun possessions on the issue of mens rea, with a denial
of the act of possession, which would not." We reject Cas-
sell's argument because we reject the distinction he makes
between knowledge and possession with respect to the fire-
arms recovered from his room, and because we agree with the
district court's analysis under Rules 404(b) and 403.

III. Analysis

Federal Rule of Evidence 404(b) prohibits "[e]vidence of
other crimes, wrongs, or acts ... to prove the character of a
person in order to show action in conformity therewith."
Fed. R. Evid. 404(b). Although stated as a restriction, the
Rule is actually one of "inclusion rather than exclusion."
United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000).
Evidence is only prohibited if it is offered for the impermissi-
ble inference that a defendant is of bad character resulting in
bad conduct. See, e.g., United States v. Miller, 895 F.2d
1431, 1436 (D.C. Cir.), cert. denied, 498 U.S. 825 (1990). Thus
evidence of a defendant's prior bad acts is admissible for
purposes unrelated to the defendant's character or propensity
to commit crime, such as "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident." Fed. R. Evid. 404(b); see also Miller, 895 F.2d
at 1436 ("[U]nder Rule 404(b), any purpose for which bad-


acts evidence is introduced is a proper purpose so long as the
evidence is not offered solely to prove character.").

Given this focus on inclusion, our Rule 404(b) analysis
begins with a determination of whether the evidence is proba-
tive of some issue other than character. United States v.
Washington, 969 F.2d 1073, 1080 (D.C. Cir. 1992), cert. de-
nied, 507 U.S. 922 (1993). We will not sustain a Rule 404(b)
objection if the evidence of other crimes is relevant, relates to
something other than character or propensity, and supports a
jury finding that the defendant committed the other crime or
act. See Bowie, 232 F.3d at 930. Once past this first step,
the evidence is admitted unless it is otherwise prohibited
under any of the other " 'general strictures limiting admissi-
bility,' " such as Rule 403. Washington, 969 F.2d at 1080
(quoting Miller, 895 F.2d at 1435). With this framework in
mind, we review a district court's Rule 404(b) decision for
abuse of discretion, Bowie, 232 F.3d at 926-27, and afford it
"much deference on review." United States v. King, 254 F.3d
1098, 1104 (D.C. Cir. 2001) (Henderson, J., concurring) (inter-
nal quotations and citations omitted). After considering the
arguments before us, we conclude that the district court
properly admitted evidence of Cassell's prior gun possessions
because it was relevant to show knowledge of, and intent to
possess, the firearms recovered from his room, and was not
more prejudicial than probative.

A. Admission of Evidence under Rule 404(b)

In order to convict Cassell of the possession charges, the
government was required to prove that he knowingly pos-
sessed the firearms recovered from his bedroom. Because
there is no evidence that Cassell actually possessed the
firearms, the government could establish that Cassell con-
structively possessed the firearms by proving that he " 'knew
of, and was in a position to exercise dominion and control
over' " them. United States v. Clark, 184 F.3d 858, 863 (D.C.
Cir. 1999) (quoting United States v. Byfield, 928 F.2d 1163,
1166 (D.C. Cir. 1991)). A successful conviction, then, includes
proof of a physical element (dominion and control over the
actual weapons) as well as a mental element (knowing posses-


sion). In this case, the physical element is not contested:
Cassell does not dispute that the firearms were recovered
from his bedroom. He instead disputes the fact that he ever
possessed the firearms, either knowingly or unknowingly,
because, according to him, the firearms belonged to his uncle.
He contends that this "lack of possession" defense is funda-
mentally different from the "lack of knowledge" defense
identified by the district court and relied upon as the basis for
admitting his prior acts of gun possession.

We do not think that the concepts of knowledge and intent
are so easily separated from possession in this case. Al-
though the district court's initial ruling and subsequent expla-
nation of that ruling may not have explicitly defined the
concept, we think it is clear from the record that the element
in dispute was the mental element required for a conviction--
that is, Cassell's knowing (and intentional) possession of the
firearms recovered from his bedroom. We have previously
held that "in cases where a defendant is charged with unlaw-
ful possession of something, evidence that he possessed the
same or similar things at other times is often quite relevant
to his knowledge and intent with regard to the crime
charged." King, 254 F.3d at 1100 (citing Huddleston v.
United States, 485 U.S. 681, 689 (1988)). We also acknowl-
edged in United States v. Crowder, 141 F.3d 1202, 1208 (D.C.
Cir. 1998) (en banc), cert. denied, 525 U.S. 1149 (1999), that a
jury could infer possession from motive, which could in turn
be inferred from intent. ("Intent would thereby serve as an
intermediate fact from which the jury could infer another
intermediate fact--motive--from which it could in turn infer
the element of possession.") Thus "other-offense evidence of
intent would have probative value not just on the intent
element, but also on the possession element of the offense,"
an element derived in part from the subordinate element of
intent. Id.

Cassell seems to agree. In his briefs submitted to this
Court, Cassell states that he "has not asserted on appeal that
the prior gun possessions were not relevant to knowledge and
intent." Cassell asserts instead that the district court's initial
ruling to exclude the evidence as more prejudicial than proba-


tive was correct, and that nothing in his defense was offered
to tip the scales in favor of admission of the prior gun
possession evidence. We address the district court's Rule 403
decision in section III.B., infra, and note here simply that
despite Cassell's apparent concession, we must still conform
our Rule 404(b) analysis to the two-step process set forth in
Washington, which begins with a determination of whether
the evidence is offered for a permissible purpose. 969 F.2d at
1080.

Other Circuits follow a similar approach. In United States
v. Wayne Brown, 961 F.2d 1039 (2d Cir. 1992), the Second
Circuit considered the admissibility of other firearms posses-
sion by the defendant in a case with circumstances quite
similar to those before us. The Brown defendant rented a
basement apartment that was accessible to the landlord.
After the landlord found several firearms in the defendant's
apartment, including an Uzi machine gun, she contacted the
police. The defendant was charged only with illegal posses-
sion of the Uzi; evidence of the other firearms was admitted
under Rule 404(b) as "similar acts" to show "intent, ...
knowledge, ... or absence of mistake or accident." Id. at
1042 (quoting Fed. R. Evid. 404(b)). The Brown defendant
then put forth a "lack of possession" defense similar to the
one Cassell offers here by arguing that other people had
access to his apartment and could have been responsible for
the presence of the firearms. The Brown defendant also
argued that by denying possession of the firearms, he re-
moved the issue of intent from the case. The Second Circuit
disagreed, holding instead that the presence of the other
firearms in his apartment made it more likely that the Uzi
belonged to him, "thus tending to establish both his knowl-
edge, and the absence of mistake or accident, with respect to
the presence of the Uzi in his apartment." Id. The Second
Circuit concluded that introducing the evidence of the other
firearms for that purpose was permissible under Rule 404(b).
Id.; see also United States v. Davis, 792 F.2d 1299, 1305 (5th
Cir. 1986) (holding that defendant's prior possession of the
same weapons was admissible to establish that his charged
possession was knowing); United States v. Mills, 29 F.3d 545,


549 (10th Cir. 1994) ("Use of prior acts to show knowledge is
a proper purpose under Rule 404(b) and knowledge is rele-
vant to establish scienter for [a] possession of a firearm
violation."); United States v. Gomez, 927 F.2d 1530, 1534
(11th Cir. 1991) (prior conviction of possession of firearms
relevant to current charge of possession of firearm to rebut
claim that the current firearm possession was for an "inno-
cent purpose" or "was mere accident or coincidence").

We addressed an analogous situation in United States v.
James Brown, 16 F.3d 423 (D.C. Cir.), cert. denied, 513 U.S.
900 (1994). Our Brown case involved charges stemming from
gun and drug paraphernalia recovered from a safe during a
search of the home of a friend of the defendant. The
defendant challenged the admission of evidence that he pos-
sessed a firearm when arrested following the search. We
ruled that evidence of the defendant's gun possession during
his arrest would be inadmissible if offered to show the
defendant's propensity to sell drugs or to act in conformity
with a drug dealer's character. Id. at 431. However, we held
that the defendant's gun possession during his arrest was
admissible under Rule 404(b) because it was "relevant to
show intent, knowledge or absence of mistake with respect to
the firearms found in the safe" during the earlier search. Id.

Fundamentally, appellant's argument is that because he did
not contest intent or knowledge, the prosecution could not
have offered his prior gun possession evidence for the pur-
pose of proving those elements. This is a non sequitur. We
rejected a stronger version of the same argument in United
States v. Crowder. There, as here, a criminal defendant
argued that his prior conviction could not be offered against
him because his knowledge, intent, and modus operandi, the
purposes for which the government purported to offer the
evidence, were not at issue. 141 F.3d at 1204. Crowder's
position was stronger than Cassell's, in that he not only did
not directly contest the elements, he affirmatively offered a
stipulation. Following the dicta of the United States Su-
preme Court in Old Chief v. United States, 519 U.S. 172
(1997), we rejected that argument affirming the ability of the
prosecution to prove the elements of the crime by evidence of


its choosing and holding that "Old Chief establishes that the
prosecution cannot be forced to stipulate away the force of
such evidence." Crowder, 141 F.3d at 1207. It is fundamen-
tal to the criminal law of the United States that the prosecu-
tion must prove every element of the offense beyond a
reasonable doubt. As we noted above, the elements of Cas-
sell's crime included possession, which in turn requires knowl-
edge and intent. A prior history of intentionally possessing
guns, or for that matter chattels of any sort, is certainly
relevant to the determination of whether a person in proximi-
ty to such a chattel on the occasion under litigation knew
what he was possessing and intended to do so. If Cassell 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.
Granted, this evidence does go to propensity, the character
circumstance forbidden by Rule 404(b). But Rule 404(b)
never bars the admission of evidence. Rule 404(b) only
"prohibit[s] the admission of other crimes evidence ... for
the purpose of proving a person's actions conformed to his
character." Crowder, 141 F.3d at 1206 (citing United States
v. Jenkins, 928 F.2d 1175, 1180 (D.C. Cir. 1991) (emphasis
added)). As we have said before, "Rule 404(b) bars not
evidence as such, but a theory of admissibility." Id. True,
the evidence may tend to show that Cassell is a person of bad
character, but Rule 404(b) does not thereby render it inad-
missible. To reiterate what we have stated before and re-
stated above, under Rule 404(b), "any purpose for which bad-
acts evidence is introduced is a proper purpose so long as the
evidence is not offered solely to prove character." Miller,
895 F.2d at 1436.

In short, we conclude that evidence of Cassell's prior gun
possessions was relevant to show his knowledge of and intent
to possess the firearms recovered from his bedroom. The
record before us indicates that the government did not at-
tempt to introduce the evidence to prove conduct in conformi-
ty with Cassell's prior bad acts. Such use would, of course,
run afoul of Rule 404(b)'s prohibition against propensity-
based relevance. Instead, the government offered the evi-


dence to prove Cassell's knowledge, intent, and lack of mis-
take regarding the firearms recovered from his room. The
district court accepted this purpose as permissible under Rule
404(b). Because the evidence concerning Cassell's prior fire-
arm possessions was admitted for a proper purpose, it passes
the first step of our analysis under Washington.

B. Admission of Evidence under Rule 403

As we explained in section III.A., supra, our analysis does
not end after determining that prior bad acts evidence is
probative to a non-character issue under Rule 404(b). We
must continue with a determination of whether the district
court erred in determining that the evidence is admissible
under Rule 403. See Washington, 969 F.2d at 1080. Federal
Rule of Evidence 403 prohibits the admission of relevant
evidence if "its probative value is substantially outweighed by
the danger of unfair prejudice...." Thus after holding that
evidence of his prior gun possessions is probative of Cassell's
knowledge and intent, the district court was also required to
determine whether any prejudicial effect of the evidence
substantially outweighed its probative value so that the evi-
dence should have been excluded. Id. We conclude that the
court did not abuse its discretion in its determination that the
evidence of Cassell's prior gun possessions was admissible
under Rule 403.

Rule 403 "tilts, as do the rules as a whole, toward the
admission of evidence in close cases," even when other crimes
evidence is involved. United States v. Moore, 732 F.2d 983,
989 (D.C. Cir. 1984). In performing the balancing test re-
quired under Rule 403, " 'it is a sound rule that the balance
should generally be struck in favor of admission when the
evidence indicates a close relationship to the event charged.' "
Id. (quoting United States v. Day, 591 F.2d 861, 878 (D.C.
Cir. 1978)). Moreover, "[t]he trial court is in the best position
to perform this subjective balancing, and its decision should
be reviewed only for 'grave abuse.' " Washington, 969 F.2d
at 1081 (quoting United States v. Manner, 887 F.2d 317, 322
(D.C. Cir. 1989)).


Upon review, we conclude that there was no "grave abuse"
in the district court's decision to admit evidence of Cassell's
prior gun possessions. The district court's original ruling
that Cassell's prior gun possessions would be excluded under
Rule 403 has little influence over our evaluation of its subse-
quent ruling to admit that evidence. The district court
conducted subsequent Rule 404(b) and 403 analyses on the
record after considering the evidence presented and after
hearing from both parties. It would make little sense to hold
a district court to a pre-trial ruling when other evidence has
come to light at trial that directly affects the admissibility of
the contested evidence. The contested evidence's probative
value was high as it was relevant to an issue other than
Cassell's character: it concerned Cassell's knowledge and
intent with respect to the firearms recovered from his bed-
room. The government was required to prove that Cassell
knowingly possessed the firearms found in his room. The
fact that Cassell had previously possessed weapons tends to
make it less probable that the weapons recovered from his
bedroom were there without his knowledge, without intent, or
by accident or mistake. See Brown, 16 F.3d at 432. Finally,
the court could reasonably have found only a low risk that
unfair prejudice would substantially outweigh the evidence's
probative value.

We acknowledge that evidence of prior gun possessions
may be prejudicial in a subsequent trial for gun possession,
see Old Chief, 519 U.S. at 185. Nonetheless, this does not
suggest that such evidence has an automatic unfair and
substantial prejudicial effect on the jury. See, e.g., Dollar v.
Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977)
(" '[U]nfair prejudice' as used in Rule 403 is not to be equated
with testimony simply adverse to the opposing party. Virtu-
ally all evidence is prejudicial or it isn't material. The
prejudice must be 'unfair.' "). In this case, the evidence was
offered for a proper purpose under Rule 404(b)--to establish
Cassell's knowledge and intent. Moreover, the district court
instructed the jury that it was only to consider the evidence
for the limited and proper purposes of modus operandi,
specific intent, knowledge, and absence of mistake or acci-


dent. This is the type of instruction that "can sufficiently
protect a defendant's interest in being free from undue
prejudice." United States v. Perholtz, 842 F.2d 343, 361
(D.C. Cir.), cert. denied, 488 U.S. 821 (1988) (citation omitted).
Without "compelling or unique evidence of prejudice in this
case that warrants upsetting the trial court's determination"
to admit the evidence, the district court's decision stands.
Washington, 969 F.2d at 1081.

IV. Conclusion

For the reasons stated, we conclude that the district court's
decision to admit evidence of Cassell's prior gun possessions
was made in accordance with Federal Rules of Evidence
404(b) and 403. Cassell's convictions are affirmed.