The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM OPINION AND ORDER
On June 14, 2006, the United States Court of Appeals for the Third Circuit vacated defendant William Martin Haas's conviction and sentence, and remanded his case to this Court for a new trial. United States v. Haas, 184 Fed.Appx. 230 (3d Cir. 2006). Retrial is scheduled for January 29, 2007.
Defendant is charged with one count of violating Title 18 U.S.C. § 922(g)(1), for being a convicted felon knowingly in possession of a .357 Magnum Smith & Wesson Revolver found in a bag in the toolbox of his pick-up truck, along with gloves and a wig, on or about March 21, 2003, and Title 18 U.S.C. § 924(e) (the Armed Career Criminal statute). In his first trial, defendant denied possessing that firearm, and presented the defense that it belonged to the passenger in his truck, Paul Meyers.
In order to establish a violation of Title 18 U.S.C. § 922(g)(1), the government must prove each of the following elements beyond a reasonable doubt: (1) that the defendant previously was convicted of a crime punishable by a term of imprisonment exceeding one year; (2) that the defendant knowingly possessed a firearm; and, (3) that the defendant's possession of the firearm was in or affecting interstate commerce. United States v. Dodd, 225 F.2d 340, 344 (3d Cir.2000). To prove the "knowingly possessed" element of a § 922(g)(1) violation, the government must prove only the defendant's awareness that he possessed the firearm, and need not demonstrate that the defendant possessed it with the intent to cause harm or with knowledge that the possession was unlawful. Id., 225 F.3d at 344.
At his first trial, defendant sought to exclude evidence that he had previously committed two robberies: a McDonald's Restaurant in South Fayette Township on December 23, 1991, and Frank and Shirley's Restaurant in Pittsburgh on March 19, 2003, just two days before his arrest for possession of the firearm on March 21, 2003. The Court of Appeals described the significance of the Frank and Shirley's robbery as follows:
Furthermore, the wig found with the gun in the bag in the toolbox [on March 21, 2003] could be linked to Haas by his girlfriend's testimony and by DNA evidence, and the restaurant cashier, Manfredo, would testify that the robber who used the gun wore a wig. Manfredo identified [co-defendant] Meyers as the getaway driver, and her description of the other robber's disguise and gun was consistent with the items found in Haas's truck. Thus, argued the government, the combination of Manfredo's testimony, Meyers' testimony, and the wig combined to make out a possession case against Haas.
Haas, 184 Fed.Appx. at 232.
In the first trial, this Court granted defendant's motion in limine with respect to the 1991 robbery, but denied it as to the Frank and Shirley's robbery. The Court agreed with the government "that the evidence of the robbery of Frank and Shirley's is direct, intrinsic evidence of defendant's possession of the .357 Magnum, because Paul Myers (who was with defendant on March 21, 2003, when defendant was arrested, his pick-up trucked searched outside his probation office, and the .357 Magnum seized from the locked truck box) will testify that defendant used that same firearm and other items found in the locked box to commit the robbery two days earlier." Memorandum Opinion (doc. no. 36), July 7, 2004, at 1-2.
The Court of Appeals disagreed with this Court's view of that evidence as "intrinsic" to the possession charge, holding that, under United States v. Cross, 308 F.3d 308 (3d Cir. 2002), "evidence is 'intrinsic' if it directly proves the charged offense. . . . Whatever probative value the evidence about Haas's activities on the 19th may have had, it did not directly prove that Haas possessed the gun on the 21st. To hold otherwise would be to strip the words "directly prove" of all meaning. The District Court erred, therefore, and the only route to admissibility for the robbery evidence is through [Fed.R.Evid.] 404(b)." Haas, 184 Fed.Appx. at 234.
In United States v. Daraio, 445 F.3d 253 (3d Cir. 2006), the Court of Appeals for the Third Circuit laid out the standards for determining whether evidence of another crime or bad act is admissible under Rule 404(b), as follows:
Rule 404(b) governs the admissibility of evidence of "other crimes, wrongs, or acts." It provides, in relevant part, that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." We have recognized that "Rule 404(b) is a rule of inclusion rather than exclusion." . . . In general, we favor the admission of Rule 404(b) evidence when it is relevant for any other purpose than to show the defendant's propensity to commit the charged offense.
To demonstrate a proper purpose, the government must "proffer a logical chain of inference consistent with its theory of the case." United States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992). After the government has specified such a purpose, unless the reason that the evidence is proper is plainly obvious, the district court must "articulate reasons why the evidence also goes to show something other than character" by putting this "chain of inferences into the record." Id. Furthermore, "[w]here such other purposes do exist, protections against improper admission nevertheless remain in Rule 104 relevancy standards and in Rule 403's requirement that probative value yet be balanced against the risk of 'unfair prejudice.' " . . . Thus, we apply a four-part test to determine the admissibility of Rule 404(b) evidence: "(1) the evidence must have a proper purpose; (2) it must be relevant; (3) its probative value must outweigh its potential for unfair prejudice; and (4) the court must charge the jury to consider the evidence only for the limited purposes for which it is admitted."
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste ...