TERRENCE F. McVERRY, District Judge.
Pending before the Court is the UNITED STATES' SUPPLEMENTAL NOTICE OF ITS INTENTION TO ADMIT EVIDENCE PURSUANT TO FEDERAL RULE OF EVIDENCE 404(b) (ECF No. 89). Defendant has filed a MOTION TO STRIKE PROSECUTION'S SUPPLEMENTAL 404(B) NOTICE AND RESPONSE TO UNITED STATES'S SUPPLEMENTAL NOTICE OF ITS INTENTION TO ADMIT EVIDENCE PURSUANT TO FEDERAL RULE OF EVIDENCE 404(b) (ECF No. 90). The matter is ripe for disposition.
Defendant, Curtis Delay Brown, is charged in a one-count criminal indictment with the crime of possession of a firearm by a convicted felon, on or about July 7, 2012, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). See Indictment at 1 (ECF No. 19). On September 30, 2013, the Government filed a notice of its Rule 404(b) and Rule 609 disclosures. At that time, the Government indicated, inter alia, that it intended to introduce certain statements made by the Defendant in which he admitted to carrying a firearm for self-protection. It made no mention of other evidence it might seek to admit under Rule 404(b). On January 17, 2014, however, the Government filed the instant supplemental notice, signaling its intent to introduce evidence relating to Defendant's 2007 conviction for simple assault in the Court of Common Pleas of Allegheny County. According to the Government, this conviction arose from an altercation in which Defendant "removed a dark weapon (pistol) f[ro]m his waistband and struck the victim about the arm and head." Govt.'s Supplemental Notice 3 (ECF No. 89) (citing Pre-Plea Inv. Rep. ¶ 25 (ECF No. 51)). Defendant objects to the introduction of the evidence.
Rule 404(b)(1) provides that "[e]vidence of a crime, wrong, or other 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." Such evidence may, however, be admissible for another relevant 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 United States Supreme Court has established a four-step framework for determining the admissibility of evidence under the Rule:
(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the evidence only for the limited purpose for which it is admitted.
U.S. v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992) (citing Huddleston v. U.S., 485 U.S. 681, 691-92 (1988)). The Court now turns to this analysis.
The Government contends that the facts underlying Defendant's 2007 simple assault conviction are relevant to show that Defendant knowingly and intentionally possessed a firearm on July 7, 2012, as well as to show the absence of accident or mistake. In response, Defendant argues that because the Government is proceeding on a theory of actual as opposed to constructive possession, his knowledge and intent are not at issue and, thus, the proffered evidence is irrelevant - i.e., it is nothing more than impermissible propensity evidence.
In a weapon-possession case, evidence of knowledge, intent, and absence of accident or mistake "is relevant to a theory of constructive possession, but not to a theory of actual possession." U.S. v. Williams, 620 F.3d 483, 489 (5th Cir. 2010). As the Fifth Circuit Court of Appeals has explained,
[t]o demonstrate constructive possession, the government must show that the defendant exerted ownership, dominion, or control over an object, or over the premises where the object was found. Evidence of knowledge and intent is critical in constructive-possession cases, as a defendant will often deny any knowledge of a thing found in an area that is placed under his control ( e.g., a residence, an automobile) or claim that it was placed there by accident or mistake. The paradigmatic constructive possession scenario in which contraband is found under the defendant's seat in a car presents a classic case for introducing prior instances of gun possession, since the government would otherwise find it extremely difficult to prove that the charged possession was knowing.
Id. (citations and quotation marks omitted). In actual possession cases, on the other hand, the Government need only show that the defendant "was aware that (1) he physically possesses the thing, and (2) the thing he possesses is contraband." Id. (citation and quotation marks omitted).
Two lines of cases from the D.C. Circuit and Fifth Circuit illustrate the distinction between the evidentiary requirements for actual possession cases versus constructive possession cases. Defendant relies on a pair of these cases - United States v. Linares, 367 F.3d 941 (D.C. Cir. 2004) and United States v. Jones, 484 F.3d 783 (5th Cir. 2007) - in support of his argument. In Linares, a police officer and two other witnesses observed the defendant wield and fire a handgun in his car and then throw it out the passenger window over a nearby fence where it was later discovered. Linares, 367 F.3d at 944-45. Based on the Government's evidence, the jury was faced with only two options: it could find actual possession or no possession at all. Id. at 946. Likewise, in Jones, a police officer saw the defendant pull an object out of his waistband, run down an alley, and throw the object underneath an adjacent house, where it was later found and determined to be a gun. Jones, 484 F.3d at 785. The Fifth Circuit Court of Appeals held that the evidence was inadmissible under Rule 404(b), adopting the rationale from Linares. Just "[a]s in Linares, " the court explained, "the conflicting versions of events (devoid of any evidence of dominion or control by Jones over the alleged location of the gun) make illogical any contention that, as a third alternative to actual possession or no possession, a jury might somehow find constructive possession." Id. at 789.
By contrast, in United States v. Garner, a police officer approached the defendant's car and observed him remove a handgun from his waistband and place it under the car's passenger seat. Garner, 396 F.3d 438, 439 (D.C. Cir. 2005). The gun was later recovered from under the seat. Id. At the defendant's trial for being a felon in possession, the district court permitted the Government to offer the testimony of an officer who had previously arrested the defendant for carrying a weapon without a license. Id. at 441. On appeal, the defendant argued that the district court erred in admitting the evidence under Rule 404(b) and the D.C. Circuit's holding in Linares. Id. at 441-42. Rejecting the ...