United States v. Darrious Omar Clay, 700 F. App'x 898

Defendant Darrious Omar Clay was charged under 18 U.S.C. §§ 922(g) and 924(e) for being a felon in possession of a firearm; only the element of "knowing possession" was contested on appeal.
Officer Austin chased a vehicle, saw Defendant exit with a gun, and observed Defendant place the gun in a cooler; photos of the scene and the gun were admitted, but no fingerprints or identifiable DNA were recovered.
The Government sought admission under Fed. R. Evid. 404(b) of recorded jailhouse phone calls in which Defendant used coded language (e.g., “stick,” “chopper,” “fishing pole,” “long thing”) that an ATF agent testified referred to firearms.
The district court admitted the recordings after the Government’s case, gave limiting instructions that the calls were to be used only to show intent/knowledge (not character or direct proof of possession), and told the jury the calls alone could not convict.
The jury convicted and sentenced Defendant to 15 years; on appeal Defendant challenged the 404(b) admission, arguing irrelevance and undue prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility under Rule 404(b): relevance to non-character issue	Recordings are relevant to prove Defendant’s knowledge/intent to possess a firearm	Recordings do not admit actual possession; statements are not admissions of possession and are therefore irrelevant	Admissible: statements about "my" guns and desire to possess firearms made knowing possession more likely and were relevant to intent/knowledge
Rule 404(b) balancing under Rule 403: prejudice vs. probative value	Government needed the tapes to prove intent given limited direct evidence of state of mind	Admission was unnecessary because officer testimony, photos, and the gun made government’s case strong and tapes were prejudicial	Admissible: probative value outweighed any unfair prejudice; government had substantial need and limiting instructions reduced prejudice

United States v. Jernigan, 341 F.3d 1273 (11th Cir. 2003) (elements of § 922(g) and use of 404(b) to show knowledge)
United States v. Edouard, 485 F.3d 1324 (11th Cir. 2007) (three-part 404(b) test and Rule 403 considerations)
United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (abuse-of-discretion standard for evidentiary rulings)
United States v. Greer, 440 F.3d 1267 (11th Cir. 2006) (definition of constructive possession)
United States v. Zapata, 139 F.3d 1355 (11th Cir. 1998) (defendant pleading not guilty places intent at issue)
United States v. Pollock, 926 F.2d 1044 (11th Cir. 1991) (necessity of 404(b) evidence when essential to prosecution)
United States v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994) (404(b) as a rule of inclusion)
Weeks v. Angelone, 528 U.S. 225 (2000) (presumption that juries follow limiting instructions)
United States v. Calderon, 127 F.3d 1314 (11th Cir. 1997) (considerations for temporal remoteness in 404(b) analysis)