Case Information
*1 Before TJOFLAT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Bakari Deontre Brown appeals his conviction for possession of a firearm by *2 a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Brown argues that the district court erred by admitting into evidence two judgments, each reflecting a prior conviction for possession of a firearm, because this evidence was more prejudicial than probative, violating Federal Rule of Evidence 404(b). He explains that the only issue in the case wаs whether he was in fact the person who robbed the victim of her purse at gunpoint, but that the government did not, as it was required, present evidence to show that Brown “acted in conformity with the circumstances of the prior offenses, or that the circumstances of the offense were the ‘handiwork’ of Mr. Brown.” Instead, Brown argues, the government used the evidence to show that he had “the propensity to possess firearms,” a purpose that violatеs Rule 404(b). The government concedes that the court abused its discretion by admitting the evidence of the two prior firearm possession crimes into evidence. Moreover, the government explains that, during its preparation for this appeal, it discovered that the judgments entered into evidence were inadvertently not redacted and thus the judgments contained documentation of Brown’s other crimes as well. It maintains, however, contrary to Brown’s position, that the errors were harmless because the evidence of Brown’s guilt was overwhelming.
We review the district court’s admission of evidence under Rule 404(b) for
abuse of discretion.
United States v. Matthews
,
Reversal is not required when a district court’s admission of Rule 404(b)
evidenсe was erroneous, as long as the error was harmless.
Id.
at 1301-02. “We
often have concluded that an error in admitting evidence of a prior conviction was
harmless where there is overwhelming evidence of guilt.”
United States v.
Harriston
,
Regarding the jury’s exposure to Brown’s crimes beyond those that the court
intended to admit into evidence before the jury, prejudice is presumed when thе
jury has extrinsic evidence in the jury room.
United States v. Pessefall
, 27 F.3d
511, 515 (11th Cir. 1994) (concerning the jury’s inadvertent exposure to the case
agent’s notes). This presumption, however, is not conclusive.
United States v.
Martinez
,
“The cumulative error doctrine provides that an aggregation of
non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless
*5
errors) can yield a denial of the constitutional right to a fair trial, which calls for
reversal.”
United States v. Baker
,
Here, the district court erroneously admitted evidence relating to Brown’s
two prior firearm convictions pursuаnt to Rule 404(b). The district court believed
that the previous convictions were relevant because they also dealt with possession
of a firearm. However, no accompanying evidence was submitted so that the jury
could compare the similarities between the prior convictions and the charge
offense and decide whether the present crime was Brown’s handiwork.
See Lail
,
Moreover, not only was evidence of Brown’s prior firearm convictions
improperly admitted, but the judgments submitted to the jury were not redacted
and thus also documented Brown’s other previous crimes. Thus, Brown was
prejudiced by the exposure of the jury to this evidence, аnd we must determine
*6
whether that exposure was harmless by addressing the nature of the extrinsic
evidence, the manner in which the information reached the jury, and the strength of
the government’s case.
See Pessefall
,
The nature of the extrinsic evidenсe was evidence of Brown’s prior crimes, as well as of his aliases and habitual felony offender status. As to the manner in which the information reached the jury, the extrinsic evidence was included in the same document as evidence that had been ruled admissible, and on which the court gave jury instructions. These jury instructions, rather than mitigating prejudice, appear to have compounded the initial errors. The court’s instructions were confusing and unclear. The instructions asked the jury to not consider the evidence in determining whether Brown committed the charge in the indictment, yet the court also stated that the evidence may be considered to determine if the defendant was thе one who perpetrated the crime charged in the indictment. Also, while the court thought it was giving instructions to consider only the firearm offenses, it was inadvertently instructing the jury to consider evidence that had not been validly enterеd into evidence, because Brown’s previous crimes, beyond the two firearms offenses, were included in the judgments.
While these errors are prejudicial and cumulative, we must still determine
whether the third factor in the prejudice аnalysis, the strength of the government’s
*7
evidence, can overcome the harm.
See id.
To convict a defendant of possession of
a firearm by a convicted felon, the government must prove beyond a reasonable
doubt that: (1) the defendant was convicted of a fеlony, (2) the defendant
knowingly possessed a firearm, and (3) the firearm was in or affecting interstate
commerce. 18 U.S.C. § 922(g)(1);
United States v. Deleveaux
,
At trial, Brown and the government stipulated that Brown had previously been convicted of a felony, thereby satisfying the first element of 18 U.S.C. § 924(b). They also stipulated that the firearm used in the offense moved through interstate commerce, which satisfied the third element of § 924(b). Thus, the only element for trial was whether Brown knowingly possessed the firearm. See 18 U.S.C. § 924(b). In this regard, the only issuе was whether Brown was the suspect who had robbed the victim, Margarita Flores, with a firearm.
At trial, Flores testified that she identified Brown on the day of the crime as the individual who had robbed her at gunpoint. A police officer, Officer Rodriguez, testified that on the day in question he (1) heard a woman screaming, (2) saw a man running with a purse and gun, and (3) encountered Flores, who stated, “[t]hat man just robbed me” and was pointed in the direction where Rodriguez had just seen the man. Rodriguez testified that he drove towards the *8 suspect, saw him get into a white Crown Victoria, and followed it as it sped away. Rodriguez also testified that, after the Crown Victoria collided with a pick up truck, he saw Brown jump out of the vehicle and start running away. Rodriguez testified that he identified Brown at the scene as the suspect in the robbery. Rodriguez further stated that he looked into the vehicle that Brown had been driving, and observed a firearm and a purse. Rodriguez learned that Brown’s cousin owned the vehicle; however, evidence later presented at trial revealed that Brown’s cousin was “several pounds heavier” than Brown, and the two men were not physically similar. Thus, it is unlikely that Flores confused Brown with his cousin. Rodriguez also testified that he found a shoe in a fence while searching for Brown and Brown was missing that shoe when he was found. In court, Rodriguez positively identified Brown as the suspect he had seen with a gun on the dаy of the robbery. Finally, another police officer, Officer Ferrin, testified that his canine partner had alerted twice during the day on which the robbery took place – once when he found the shoe in the fence, and аgain when he discovered that Brown was hiding in a garbage can.
To rebut this evidence, Brown only presented testimony from a detective that the fingerprints taken from the scene of the accident did not match his, but matched other individuals instead. However, the detective also testified that the *9 lab report concerning the fingerprints was not designed to reflect partial or unusable fingerprints, and thus, the report would not have been able to conсlusively establish whether someone was or was not present in the vehicle.
On appeal, Brown argues that the evidence was not overwhelming because (1) Flores was unable to identify him in the courtroom as the man who robbеd her, (2) he was shirtless when found by police, contrary to Flores’s testimony that the robber was wearing a white T-shirt during the robbery, and (3) he could have been fleeing from police for other reasons, as evidenced by his criminal record. However, these reasons are not sufficient to conclude that the evidence was not overwhelming. Flores testified that she was able to identify Brown at the scene as the man who robbed her; moreover, as to her inability to identify him in court as the robber, she explained that it had been a year and eight months and that she didn’t “remember very well.” As to his being shirtless when he was found by police, and that he may have had other reasons for fleeing from the police, these do overcome the testimonial evidence that supports the strength of the government’s case, because it is plausible that he could have taken the T-shirt off as he was fleeing and also plausible thаt he was fleeing to escape capture for robbing Flores.
In conclusion, the district court abused its discretion by admitting the evidence of Brown’s prior crimes of firearm possession. Moreover, the judgments *10 included evidenсe about Brown’s other crimes that had not been admitted into evidence. Nevertheless, based on the overwhelming direct and circumstantial evidence of Brown’s guilt, we conclude that any error was harmless .
Upon review оf the record and consideration of the parties’ briefs, we affirm.
AFFIRMED.
Notes
[1] This rebuttable presumption of prejudice derives from
Remmer v. United States
, 347
U.S. 227, 229 (1954). Two of this Court’s decisions have stated that prejudice is not presumed.
See United States v. Rowe
,