Argued: May 13, 2014
On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-12-cr-00111-001 District Judge: The Honorable Donetta W. Ambrose
Rebecca R. Haywood, Esq. Michael L. Ivory, Esq. [ARGUED] Office of United States Attorney Counsel for Appellee
Lisa B. Freeland, Esq. Renee Pietropaolo, Esq. [ARGUED] Counsel for Appellant
Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges
SMITH, Circuit Judge.
Akeem Caldwell brings this appeal following his conviction of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). Caldwell contends that he is entitled to a new trial because the District Court (1) erroneously admitted evidence that he had two prior convictions for unlawful firearm possession and (2) improperly excluded a third-party's out-of-court statement admitting responsibility for the offense. Because we conclude that admission of Caldwell's prior convictions was improper, we will vacate the judgment of the District Court and remand for further proceedings.
On January 24, 2012, at approximately 11:45 p.m., three detectives with the Pittsburgh Police Department— Judd Emery, Robert Smith, and Mark Adametz—were on patrol in an unmarked police cruiser near the Northview Heights housing projects. As they approached the intersection of Penfort Street and Mount Pleasant Road, they spotted Akeem Caldwell and Darby Tigney walking side-by-side in the direction of the police car. When the detectives' car turned left onto Mount Pleasant Road, Detective Emery observed Caldwell remove a black firearm from his waistband and hold it behind Tigney's back. Emery immediately alerted the other detectives to the presence of the weapon and brought the cruiser to a stop. He then jumped out and ran to the rear of the car, drew his weapon, and yelled: "Pittsburgh Police. Drop the gun."
Emery later testified that, upon his command, Caldwell released the firearm, letting it fall to the ground directly between Tigney's legs. Emery then directed Caldwell and Tigney to get on the ground, and the other detectives placed them in handcuffs. As he was being placed in custody, Caldwell emphatically insisted that he was not the one who had been holding the gun, exclaiming: "That's not my gun. You didn't see me with a gun." App. 402.
Detective Smith, who was sitting in the front passenger seat at the time of the encounter, testified that he saw Caldwell "brandish" the weapon and later release the gun behind Tigney's back. Detective Adametz, who was seated in the rear passenger seat, testified that he could not see the gun in Caldwell's hands because Caldwell's arm was obstructed by Tigney's body. However, he stated that both of Tigney's hands were visible and empty when the gun fell to the ground.
Caldwell provided his identity to the detectives, and a records search revealed that he had a prior criminal record. After discovering that Caldwell was a convicted felon who was not permitted to possess a firearm, the detectives transported him to the Allegheny County Jail for processing. Tigney, on the other hand, identified himself as "Shakur Jackson." The detectives, unaware that Tigney had falsely identified himself, released him into the custody of a woman who claimed to be his aunt after they determined that "Shakur Jackson" did not have a criminal record.
Caldwell was charged under 18 U.S.C. § 922(g)(1) with possession of a firearm by a convicted felon. On April 16, 2012, shortly after that charge was filed, Tigney contacted Caldwell's defense counsel and claimed that he (Tigney) was the one who had possessed the firearm the evening of Caldwell's arrest and that he intended to turn himself in to prosecutors. During a follow-up interview with a defense investigator, Tigney asserted that the gun had fallen from his pants and that Caldwell did not know about the gun. Tigney also admitted that he lied to the officers about his identity. After providing this statement to Caldwell's defense team, Tigney retained independent counsel and asserted his Fifth Amendment privilege not to testify.
The case against Caldwell proceeded to trial on November 14, 2012. The result was a mistrial after a jury was unable to reach a verdict. United States v. Caldwell, No 2:12-cr-0111 (W.D. Pa.), Docket Nos. 72, 112. A second trial commenced on December 4, 2012. This time, the jury returned a verdict finding Caldwell guilty of the § 922(g)(1) offense.
Caldwell's theory at trial was that Tigney—and only Tigney—possessed the gun on the evening of his arrest. In support of this claim, Caldwell repeatedly emphasized that Tigney provided a false name to the detectives at the scene, and that this indicated a consciousness of guilt. Caldwell also sought to admit, as a statement against interest, Tigney's out-of-court admission to defense investigators that he had possessed the gun. The District Court initially granted Caldwell's motion in limine requesting that he be allowed to introduce Tigney's statement. On the Government's motion for reconsideration, however, the Court changed its decision on the morning of the first trial, holding that the statement lacked the corroborating circumstances necessary to satisfy Federal Rule of Evidence 804(b)(3). On the morning of the second trial, prosecutors informed the Court and defense counsel that Tigney had recanted his earlier admission. Noting that Tigney's decision to disavow his prior statement bolstered its ruling from the first proceeding, the Court again held the statement to be inadmissible.
In addition to arguing that Tigney possessed the firearm, Caldwell sought to impeach the credibility of the testifying detectives. Caldwell theorized that the detectives targeted him rather than Tigney as the possessor of the gun because he had a prior felony conviction, thus subjecting him to federal charges, whereas Tigney, a juvenile, was subject to only an adjudication of delinquency. Caldwell also pointed out that, despite having done so in other cases, investigators never sought to obtain surveillance footage of the Northview Heights scene of his encounter with police from the Housing Authority. Such evidence, he maintained, would have shown that Tigney possessed the gun.
Caldwell testified in his defense at both trials. He claimed that, at the time he was stopped by the detectives, he was holding a cell phone in his hand—not a gun—and was talking to his girlfriend, Tiffany Dungan. Dungan corroborated this claim by testifying that she was on the phone with Caldwell when the police stopped him. She also presented phone records showing that, around the time of the arrest, she participated in a seventeen minute phone call with a number that she claimed belonged to Caldwell. Caldwell also offered the testimony of a bystander, Manly Banks, who stated that he witnessed an officer take a cell phone out of Caldwell's hand and hang up the phone.
In the course of cross-examining Caldwell during the first trial, the Government sought to introduce, under both Rule 404(b) and Rule 609(a)(1)(B) of the Federal Rules of Evidence, two prior convictions for unlawful firearm possession. One of Caldwell's "priors" was a federal conviction for possession of a firearm by a convicted felon—the very offense for which he was being tried. With respect to Rule 404(b), the Government argued the evidence was admissible to show "knowledge and absence of mistake or accident." App. 313. Caldwell's counsel countered that absence of mistake and knowledge were irrelevant because the only issue in the case was whether Caldwell actually possessed the gun. Indeed, he conceded that "[w]hoever possessed [the gun] knew it." App. 317.
The District Court was initially skeptical of the Government's claim that the evidence was admissible under Rule 404(b). See App. 313 ("What do you think he said that would make it more than propensity evidence? What do you think he says that goes to knowledge and intent? He's saying he never had a gun. . . . He's not saying I had it and it was somebody else's."). After a short recess, however, the Court ruled in favor of the Government: "[I]n terms of 404(b) evidence, I agree with the government that knowledge and intent is an issue here and I am going to allow [the prosecutor] to question Mr. Caldwell about his prior convictions for firearm violations." App. 318–19. The Court continued:
I understand it's prejudicial, but when you have a situation where this is a complete credibility determination, Mr. Caldwell has testified in a manner diametrically opposed to those of the police officers and I do believe it is probative for knowledge and intent and that that probative value outweighs the prejudicial effect, which I acknowledge is prejudicial.
App. 319. Defense counsel immediately objected to the Court's reference to Caldwell's "credibility, " which is generally not a concern in the 404(b) inquiry. This, in turn, prompted the Court to clarify its position: "So the record is clear, I'm not saying . . . it is admissible for credibility. I'm saying it's admissible for knowledge and intent . . . ." App. 319–20.
This review process was more streamlined when the second trial took place. The Government again sought to introduce Caldwell's prior convictions during cross- examination. But instead of explaining the basis for admissibility, the prosecutor simply asked for "a ruling on which convictions . . . would be permissible for the Government to inquire as to the Defendant about." App. 525. Recalling the Government's proffer and arguments from the previous trial, the Court again ruled the evidence was admissible:
I know what your arguments are, not only because I've heard them before, but because they've been incorporated into your written submissions. . . . [O]n the prior convictions for illegal possession of firearms, when the Defendant, as here, is charged with a specific intent crime, the knowing possession of a firearm unlawfully, the Government may present other acts or evidence to prove intent and knowledge, and I find that Mr. Caldwell has put his knowledge and intent to possess a firearm at issue by claiming innocence.
App. 525–26. The Court then discussed Rule 403 balancing, stating "not only are [Caldwell's prior convictions] admissible under 404(b), but because knowledge and intent are at issue here, they are more probative than prejudicial. I find that the probative value outweighs any prejudicial effect as well as to their admissibility." App. 527.
At the close of the second trial, the jury returned a verdict convicting Caldwell of the charged offense. The District Court sentenced Caldwell to 77 months in prison and three years of supervised release. Caldwell timely filed this appeal.
Caldwell's primary argument is that the District Court erred in admitting his two prior convictions for unlawful weapons possession. We review a district court's evidentiary rulings for an abuse of discretion. United States v. Green, 617 F.3d 233, 239 (3d Cir. 2010). "We exercise plenary review, however, of [the district court's] rulings to the extent they are based on a legal interpretation of the Federal Rules of Evidence." Id. (quoting Complaint of Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir. 1997)). This includes plenary review over "whether evidence falls within the scope of Rule 404(b)." United States v. Smith, 725 F.3d 340, 344–45 (3d Cir. 2013) (quoting Green, 617 F.3d at 239).
We have repeatedly emphasized that Rule 404(b) must be applied with careful precision, and that evidence of a defendant's prior bad acts is not to be admitted unless both the proponent and the District Court plainly identify a proper, non-propensity purpose for its admission. See United States v. Davis, 726 F.3d 434, 442 (3d Cir. 2013) (citing United States v. Sampson, 980 F.2d 883, 887 (3d Cir. 1992)). For the reasons discussed below, we conclude the evidence of Caldwell's prior convictions was not admitted for a proper purpose.
It is indisputable that evidence of Caldwell's prior convictions satisfies Rule 401's definition of relevant evidence, at least to the extent a criminal defendant's prior offenses make it more likely he would commit the same crime again. As our Supreme Court long ago explained, "logically speaking, it is quite clear that an antecedent bad character would form quite as reasonable a ground for the presumption and probability of guilt as a previous good character lays the foundation of innocence." Michelson v. United States, 335 U.S. 469, 476 n.9 (1948) (citation omitted); see also 1 Wigmore on Evidence § 55 (3d ed. 1940) ("A defendant's character, then, as indicating the probability of his doing or not doing the act charged, is essentially relevant.").
Yet notwithstanding the logical relevance of this evidence, Rule 404(b) 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." Fed.R.Evid. 404(b)(1). This rule reflects the longstanding concern that evidence of prior bad acts, when offered only to show the defendant's propensity to commit the charged crime, "is said to weigh too much with the jury and to so overpersuade them as to prejudice one with a bad general record and deny him a fair opportunity to defend against a particular charge." Sampson, 980 F.2d at 886 (quoting Michelson, 335 U.S. at 475).
Derived from English common law, Rule 404(b)'s instruction that prior criminal acts are not admissible to show a defendant's propensity to commit the charged offense is now well-entrenched in our American jurisprudence. But such prior act evidence was not always prohibited. Indeed, early English courts did not recognize a rule excluding evidence of prior bad acts, and instead evaluated the admissibility of such acts according to the ordinary test of relevance. See Julius Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv. L. Rev. 954, 958–59 (1933). Prior act evidence was easily admissible under this approach, "even if the only theory of relevance was to establish the defendant's character and, in turn, use character as circumstantial proof of conduct." 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 2:25 (2009).
Over time, however, courts and commentators came to appreciate the uniquely prejudicial impact that prior bad act evidence has on a jury. By the turn of the nineteenth century, British and American courts were in agreement that prior act evidence introduced for the limited purpose of showing a defendant's propensity to commit the charged offense should be excluded. Stone, supra, at 958. The evidence in question, however, could still be introduced "if [it] was relevant for any purpose other than, or in addition to, a suggestion of a general propensity to commit the [charged] crimes." Kenneth J. Melilli, The Character Evidence Rule Revisited, 1998 B.Y.U. L. Rev. 1547, ...