UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PATRICK CARNEY (03-1735); SEAN CARNEY (03-1736), Defendants-Appellants.
Nos. 03-1735/1736
United States Court of Appeals for the Sixth Circuit
October 8, 2004
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 04a0349p.06. Argued: June 15, 2004. Before: KRUPANSKY, RYAN, and COLE, Circuit Judges.
COUNSEL
KRUPANSKY, J., delivered the opinion of the court, in which RYAN, J., joined. COLE, J. (pp. 12-14), delivered a separate dissenting opinion.
OPINION
KRUPANSKY, Circuit Judge. The defendants-
During all times pertinent to the subject prosecutions, the Carneys operated “Carney‘s Hunting and Shooter‘s Supply,” a gun shop located in Warren, Michigan. Between February 17, 2000, and June 29, 2000, on at least nine distinct occasions, the Carneys sold automatic or semi-automatic handguns and rifles to David Johnson (a/k/a “Tone“) (“Johnson“), who, as a previously-convicted felon, was a person legally prohibited from purchasing or possessing firearms having an interstate or foreign commercial nexus.
In each evidenced episode, Johnson adhered to an identical modus operandi. Initially, he would drive his selected female co-conspirator to the Detroit Police headquarters to enable her submission of a written application for the required arms permit. Johnson would assist the woman with the completion of that form. After securing the weapons permit in the woman‘s name, Johnson would transport her to the Carneys’ gun store, where he would select one or more firearms for purchase in the absence of any participation by his feminine cohort. Instead, his accomplice would idly pass the time by, for example, playing with the store owners’ pets, or smoking cigarettes while standing outside the storefront. After Johnson had selected his desired pieces, he would assist his companion with the completion of the legally-requisite ATF Form 4473.3 In each instance, that document falsely identified the woman, over her signature, as the ultimate buyer of the firearm(s). However, Johnson negotiated the purchase price of each firearm; paid, in cash, for each of the weapons purchased; and personally carried each purchased specimen out of the defendants’ store.
On November 29, 2001, a federal grand jury returned a thirty-nine count indictment against the Carney defendants, Johnson, and eight women; thirteen of those charges named the Carneys as alleged aiders and abettors in the making of false statements, violative of
Following a jury trial which, on November 4, 2002, resulted in the defense-friendly disposition of ten of the twenty-three counts stated against the Carneys via either “not guilty” verdicts or dismissals of counts by the district court as a matter of law for the insufficiency of supporting trial evidence, the Carneys proceeded to their second jury trial on the thirteen remaining counts against them (each of which had been the subject of a mistrial ruling in the initial trial forum). On March 6, 2003, the second jury convicted Sean on three counts which had alleged violations of
seven-month terms of imprisonment, and imposed eight concurrent eighteen-month incarceration periods against Patrick. Following release from penal confinement, each defendant shall be supervised for two years.
As their initial alleged rationale for reversal of their convictions, the defendants have protested that the government erred, as a matter of law, by proceeding against them under section 924(a)(1)(A), a felony statute which, according to the defendants, should apply only against the maker(s) of knowingly false material statements to a firearms seller for inclusion within the seller‘s legally-required transaction records, but which, allegedly by the negative implication of its facial terms, cannot apply against the seller himself.6 See note 1 above. Instead, the defendants have argued that, because they were licensed arms dealers, the United States should have instead prosecuted them under
(a)(3) Any licensed dealer, licensed importer, licensed manufacturer, or licensed collector who knowingly --
(A) makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this subchapter . . .
shall be fined under this title, imprisoned not more than one year, or both.
However, contrary to the defendants’ contention, the interplay of
Accordingly, the trial proof supported the jury‘s finding that, as charged
Thus, the district court correctly rejected the defendants’ motion to dismiss the
Next, the Carneys have argued that if they were properly convicted as “aiders and abettors” of their customers’ fraudulent representations under
The defendants’ attack against their
Choice had failed to maintain any record of the sale of a charged firearm, although
Accordingly, the Choice court resolved that felony liability will be available against a licensed firearms dealer who willfully fails to maintain the records required by
By contrast, the Seventh Circuit squarely addressed the issue in controversy in United States v. Rietzke, 279 F.3d 541 (7th Cir. 2002). In that prosecution, defendant Rietzke, a federally licensed firearms dealer, had sold a firearm to a convicted felon through a female straw purchaser. Those customers completed the required transaction form by, among other things, falsely listing the straw buyer‘s name, age, and address as that of the purchaser. The defendant willfully retained that false document in his business records. Id. at 542-43. The defense argued (unsuccessfully) that Rietzke could be prosecuted only under
The Rietzke court further pronounced that “[n]othing in
The instant reviewing court concludes that the Seventh Circuit‘s analysis and ruling in Rietzke were persuasive, and thus this court hereby adopts it. Whereas, as regarding the relationship between
Accordingly, the record evidence supporting the Carneys’
Thirdly, the defendants have assailed the trial court‘s “deliberate ignorance” jury instruction, which had tracked nearly verbatim the Sixth Circuit‘s Pattern Jury Instruction 2.09 (“Deliberate Ignorance“).8 The Sixth Circuit has endorsed Pattern Jury Instruction 2.09 as a correct summation of the governing law, which forecloses the risk that a jury might convict on the basis of negligent failure to know rather than virtual
knowledge. See United States v. Mari, 47 F.3d 782, 785 (6th Cir. 1995). Nonetheless, although a jury charge might be a correct statement of the law, a trial court‘s election to give that instruction is examined by a reviewing
Conversely, even a legally-erroneous jury charge will not justify reversal of a conviction if its probable effect on the verdict was inconsequential. Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 822 (6th Cir. 2000) (“We will not reverse a decision on the basis of an erroneous jury instruction where the error is harmless.“). No trial error, including an erroneous jury instruction, will compel reversal of a conviction unless the defendant(s) can prove “either that the alleged misconduct [or error] was inherently prejudicial or that it caused actual prejudice.” United States v. Barger, 931 F.2d 359, 371 (6th Cir. 1991). “Absent proof or documentation of prejudice, we do not assume that prejudice occurred.” United States v. Maxwell, 160 F.3d 1071, 1077 (6th Cir. 1998). When assessing a trial error‘s potential prejudicial impact, the appellate court “must take account of what the error meant to them [the jurors], not singled out and standing alone, but in relation to all else that happened.” Kotteakos v. United States, 328 U.S. 750, 764 (1946). See also United States v. Fountain, 2 F.3d 656, 668 (6th Cir. 1993) (instructing that the defendant must prove that “it is more probable than not that the error materially affected the verdict.“).
The Carneys have protested that the presiding lower court judge had abused her discretion to their prejudice by instructing the jury on “deliberate ignorance” because no direct proof had been admitted of either defendant‘s actual knowledge that Johnson was the actual buyer of the charged firearms. That assignment of error was facially ill-formulated. The plain language of the pattern instruction authorizes a jury to find “knowledge” based upon circumstantial proof which compels the conclusion that the defendant(s) must have known the fact at issue because it was “obvious” - as opposed to having merely been negligent by failing to discover or realize the subject fact which they should have known.
By contrast, if direct proof existed that the defendants had known that Johnson was the actual buyer of the weapons, no need for any “deliberate ignorance” instruction would have arisen. In all events, the defendants have furnished no proof, other than speculation, conjecture, empty hypothesizing, creative guesswork, and wishful thinking, to conclude that the jurors did not follow the clear letter of the “deliberate ignorance” charge, or were in any way confused or misled. See Barnes, 201 F.3d at 822 (“Federal courts generally presume the jury will follow the instructions correctly as given.“); Mari, 47 F.3d at 785-86 (expounding that courts will not assume that jurors neglected to follow the legally-correct instructions read to them).
In light of those facts, the conclusion was inescapable that any rational person, let alone an experienced licensed firearms merchant, would have known that Johnson was the true buyer of the weapons. Patently, the defendants would have been convicted with or without the “deliberate ignorance” instruction. Moreover, any rational and lucid jury would have found, on the subject record, that the Carneys either knew that Johnson was the actual buyer of the guns or had been deliberately ignorant of that fact, even if the jury at issue had erroneously misunderstood the instruction by concluding that they needed only to find that the Carneys had negligently failed to understand what they “should have known” about Johnson‘s ruse.10 Accordingly, any unwarranted adverse impact which the “deliberate ignorance” instruction may have had on the defense case was ultimately harmless.
Fourthly, the defendants have contended that the trial court prejudiced their defense by allowing the United States, over their opposition, to introduce Fed. R. Evid. 404(b) evidence of similar transactions between the Carneys and Johnson which had been the subjects of dismissed counts or counts of acquittal at the defendants’ initial trial. The prosecution had proffered that evidence as proof that the Carneys knew that Johnson was the actual purchaser of the charged firearms, and as proof of a common plan or scheme and consistent modus operandi executed by the defendants and Johnson.11
First, the trial court must ascertain whether the proffered evidence is relevant and admissible for a proper purpose. United States v. Zelinka, 862 F.2d 92, 98 (6th Cir. 1988). To be relevant, “the evidence must relate to a matter which is ‘in issue,’ and must deal with conduct substantially similar and reasonably near in time to the offenses for which the defendant is being tried.” United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985) (citations omitted). To determine whether the proffered evidence is admissible for a proper purpose, the trial court must decide, “whether that evidence is probative of a material issue other than character.” Huddleston v. United States, 485 U.S. 681, 686, 108 S. Ct. 1496, 1499 (1988).
Finally, the court must determine whether the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403; Huddleston, 485 U.S. at 687, 108 S. Ct. at 1500. The district court has broad discretion in balancing
probative value against potential prejudicial impact. United States v. Dabish, 708 F.2d 240, 243 (6th Cir. 1983). We review a district judge‘s balancing of prejudicial impact and probative value under Fed. R. Evid. 404(b) under an abuse of discretion standard. United States v. Holloway, 740 F.2d 1373, 1377 (6th Cir.), cert. denied, 469 U.S. 1021 (1984).
United States v. Feinman, 930 F.2d 495, 499 (6th Cir. 1991).
The Carneys have assailed the lower court‘s evidentiary ruling at its final analytic stage, to wit, that the faulted evidence‘s probative value substantially outweighed its potential unfair prejudicial impact upon the defense. “A district court is granted ‘very broad’ discretion in determining whether the danger of undue prejudice outweighs the probative value of the evidence.” United States v. Vance, 871 F.2d 572, 576 (6th Cir. 1991) (citation omitted). “If judicial self-restraint is ever desirable, it is when a Rule 403 [prejudicial effect] analysis of a trial court is reviewed by an appellate tribunal.” United States v. Zipkin, 729 F.2d 384, 390 (6th Cir. 1984) (citation omitted). In conducting review of a rejected “undue prejudice” objection, the Sixth Circuit “look[s] at the evidence in the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect.” Id. at 389 (citations omitted).
The trial adjudicator‘s judgment that the probative worth of the evidence in controversy substantially outweighed any possible risk of unfair prejudice to the Carneys, when examined under prevailing deferential review standards, was patently sustainable. Contrary to the defendants’ posture, the Rule 404(b) proof was not merely repetitive and cumulative of evidence already in the record concerning transactions between them and Johnson; rather, it supplied valuable probative instances of additional similar transactions, which were crucial to the government‘s proof that the Carneys actually knew that Johnson was
The Carneys’ averment that the admission of the faulted evidence may have exposed them to double jeopardy regarding transactions which had been the subjects of counts of dismissal or acquittal at their initial trial was sheer speculation, as they have offered no proof that any juror was motivated to convict by a desire to punish the defendants for an uncharged transaction. In all events, the government need not prove probative “other acts” beyond a reasonable doubt; rather, that proof must merely be sufficiently compelling such that “the jury can reasonably conclude that the act occurred and that the defendant was the actor.” Dowling v. United States, 493 U.S. 342, 348 (1990). Consequently, evidence of an act which had been the subject of a count of acquittal in a prior criminal trial is admissible in a subsequent prosecution as Rule 404(b) evidence if, as in the case sub judice, that evidence passes the Dowling “factual reliability” test. Id. at 349.
Sean Carney has complained that evidence of June 2000 transactions with Johnson unduly prejudiced him because his final crime of conviction occurred on March 10, 2000; thus, he has claimed, the June 2000 events could not have been probative of his pre-March 10, 2000 knowledge. However, Rule 404(b) expressly permits the admission of relevant “other acts,” not merely “prior acts.” The Carneys’ post-March 10, 2000 commerce with Johnson was material and probative of their shared modus operandi and common plan or scheme, in that proof that the parties continued to adhere to the identical pattern after March 10, 2000 as that which they had followed prior to that date tended to prove that that pattern had been implicitly or explicitly agreed upon at some point prior to March 10, 2000.
Furthermore, Sean has not claimed that he had requested any limiting jury instruction whereby the trial bench might have charged the jurors to restrict the Rule 404(b) evidence as against him. In all events, even if the trial judge had abused her discretion by admitting any or all of the Rule 404(b) evidence (which she did not), that error would have been ultimately harmless, in light of the independent overwhelming proof of record supportive of the defendants’ convictions. See
Fifthly, and finally, the Carneys have claimed, for the first time on review, that the trial court erred to their prejudice by failing sua sponte to exclude evidence allegedly tainted by a suggestive “photographic identification” procedure. Prior to trial, ATF investigators displayed photographs of the Carneys to each woman employed by Johnson as a “straw purchaser.” Those images were not part of any larger photo array or “photographic lineup,” but rather were presented in stand-alone “photographic show-up” fashion. Each witness identified one or the other of the Carneys as the seller of guns to Johnson on a particular occasion. At trial, each of those women identified one of the Carneys as the seller of various charged firearms. During cross-examination, each of those female witnesses described the pre-trial photo display.
Normally, a reviewing court scrutinizes a contested evidentiary ruling for abuse of discretion. United States v. Bonds, 12 F.3d 540, 554 (6th Cir. 1993) (citation omitted). However, the Carneys failed to preserve any opposition in the
Manifestly, the Carneys cannot satisfy that exacting standard of proof in the instant appeal. No possibility of misidentification existed. Manson v. Braithwaite, 432 U.S. 98, 114 (1977) (“reliability is the linchpin in determining the admissibility of identification testimony[.]“); Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986). Each transaction charged in a count of conviction was memorialized by an ATF Form 4473 which identified either Sean or Patrick Carney as the seller of the implicated weapon(s). Moreover, every in-court eyewitness identification harmonized with the ATF Form as to the identity of the pertinent salesman. In addition, the eyewitness identifications were inherently reliable, even standing alone, by reason of the extended opportunity that each woman had to observe the firearms seller; the “high-impact” nature of the event; and the relative temporal proximity of the events to the testimony (approximately two and one-half years). See Manson, 432 U.S. at 114; Simmons v. United States, 390 U.S. 377, 384 (1968); Thigpen, 804 F.2d at 895; United States v. Hamilton, 684 F.2d 380, 383 (6th Cir. 1982).
Hence, the district judge did not plainly err by failing sua sponte to disallow identification testimony by any eyewitness. Furthermore, even if the defendants had properly preserved an opposition to that evidence, the admission thereof would not have constituted an abuse of discretion.
Accordingly, each of the defendants’ five assignments of trial error was misconceived. The convictions of the defendants are AFFIRMED.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PATRICK CARNEY (03-1735); SEAN CARNEY (03-1736), Defendants-Appellants.
Nos. 03-1735/1736
United States Court of Appeals for the Sixth Circuit
October 8, 2004
DISSENT
R. GUY COLE, JR., Circuit Judge, dissenting. The Carneys falsified paperwork in connection with their sales of firearms to a
In a purely literal sense, the Carneys could be said to have aided and abetted the buyer‘s falsification of the records. But under this view, virtually every instance in which a licensed gun-seller knowingly fudges his records to facilitate an otherwise illegal sale, a (misdemeanor) violation of § 924(c), will also constitute aiding or abetting a non-seller in doing so, a (felony) violation of § 924(a). The only situation in which § 924(c) is not superfluous is when the seller sua sponte falsifies the record, with no input from the buyer. This is likely to be an infinitesimal subset of cases, given that the record-keeping requirements function mainly to limit the universe of gun purchasers, and that gun dealers have little reason to fabricate the identity of their buyers unless their buyers want or need their identities fabricated. Thus, under the majority‘s reading, § 924(c) would become practically superfluous. However, “[i]t is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citation and quotations omitted).
The Government‘s response, seemingly adopted by the majority, is that the duplicate provisions merely allow the Government to choose between charging the dealer with a felony or charging the dealer with a misdemeanor. This explanation - articulated by the Eighth Circuit in Al-Muqsit - falls flat on two levels. The court in Al-Muqsit surmised that Congress “allow[ed] for the option of misdemeanor prosecution for licensed dealers who make false statements on ATF forms, while leaving intact the felony prosecution structure for those . . . whose flagrant and repeated actions in accepting false ATF forms from straw purchasers . . . warrants felony punishment.” Al-Muqsit, 191 F.3d at 935. But the aim of Congress - to treat knowing violations more seriously than unintentional violations - was accomplished by the statute‘s elimination of strict liability; a requirement that the falsification occur “knowingly” is now a component of both the felony and misdemeanor provisions. An “innocent” dealer could not be convicted even under § 924(c), because that dealer‘s transcription error or honest mistake would not have been made “knowingly.” The elimination of liability for innocent, careless or negligent mistakes also eliminates any reason that Congress might have allowed the Government to “choose” between felony and misdemeanor liability for identical conduct.
Even if Congress wanted to punish certain types of “knowing” falsification by federally licensed dealers more severely than other types of “knowing” falsification by federally licensed dealers, the aiding or abetting mechanism would have been an extremely awkward and indirect means of doing so. Congress could have written: “Any federally licensed dealer who knowingly falsifies a record in connection with the sale of a firearm may be prosecuted for either a felony or a misdemeanor.” Instead, under the majority‘s reading, “the direct method [of liability] would call for a misdemeanor, while the indirect method [of liability] would call for a felony.” Wegg, 919 F. Supp. at 906. In other words, the majority‘s interpretation presumes that Congress tried to do indirectly what it could easily have done directly. The Supreme Court, however, has repeatedly refused “to assume that Congress chose a
The third and final strike against the majority‘s reading of the statute is the well-established common-law exception to aider-or-abettor liability, which is routinely applied to crimes in which, for lack of a better description, it takes two to tango. As the Model Penal Code explains, accomplice liability does not extend to conduct that is “inevitably incident” to the main offense. Thus, someone who merely buys heroin for personal use cannot be charged with aiding or abetting the distribution of heroin; a fourteen-year old who consents to sex with a forty-year old cannot be charged with aiding or abetting statutory rape; and a prostitute who sells her services to a client cannot be charged with aiding or abetting the solicitation of prostitution. In our case, § 924(a) and § 924(c) deal almost inevitably with two sides of the same coin: a seller knowingly accepts falsified paperwork from a buyer who knowingly falsifies the paperwork. To punish the former for aiding or abetting the latter is redundant.
Indeed, the federal courts have routinely imbued federal criminal statutes with this common-law exception to accomplice liability; were the majority to do so here, it would have no choice but to conclude that the Carneys were prosecuted under the wrong provision. In Gebardi v. United States, 287 U.S. 112 (1932), the Supreme Court interpreted the scope of the Mann Act, which outlawed the transportation of a woman across state lines for “immoral purposes.” The statute itself did not explicitly provide for punishing the woman who was being transported, but in Gebardi the woman was convicted under an aiding-or-abetting theory. The Supreme Court reversed her conviction, stating that:
It is not to be supposed that the consent of an unmarried person to adultery with a married person, where the latter alone is guilty of the substantive offense, would render the former an abettor or a conspirator, or that the acquiescence of a woman under the age of consent would make her a co-conspirator with the man to commit statutory rape upon herself. The principle, determinative of this case, is the same.
Id. at 123 (internal citations omitted). Similarly, in United States v. Amen, 831 F.2d 373, 381-82 (2d Cir. 1987), the Second Circuit held that a statute that applied to so-called “kingpins” did not contemplate the extension of aiding-or-abetting liability to accessories: to apply accessory liability to the kingpin statute would defeat the purpose of treating kingpins more harshly than their subordinates. The same holds true in our case. Congress treated customers more harshly than licensed dealers; to treat licensed dealers as accessories to the customers undermines Congress‘s intent.
The majority‘s interpretation of § 922(b)(5) not only suffers from the same problems as its interpretation of § 924, but also is at odds with our decision in United States v. Choice, 201 F.3d 837 (6th Cir. 2000). The Carneys’ argument is fairly straightforward: the evidence showed that they falsely filled out records, not that they failed to fill out any records at all. The Government argues, however, that the statute “is also violated when a dealer wilfully fails to record the name, age, and
Again, the Government‘s reading would subject virtually all licensed dealers who file false records to dual liability, rendering § 922(b)(5) duplicative. And in Choice, 201 F.3d at 840, when rejecting a challenge to a conviction under the felony provision of § 922(b)(5), with the dealer arguing that § 924(a) subjected him only to misdemeanor liability, we drew an explicit distinction between submitting false records and keeping no records, noting that Congress “punish[ed] licensed dealers who knowingly falsify records less harshly than dealers who willfully fail to keep any records at all.” Id. at 840. This language in Choice was not, as the majority contends, “mere noncontrolling dictum.” (Majority at 6) Rather, if the Government‘s reading of the statute were correct - that the falsification of records inevitably also resulted in distinct liability for the attendant failure to record the true information - then the basis for our holding in Choice would be undermined.
In both of its holdings, the majority has embraced statutory interpretations that assume that Congress not only created multiple liability for the same conduct in virtually all cases, but also that it did so in an indirect fashion when a more direct means was available to it. I would give the statutes their natural reading, which leads to the inevitable conclusion that Congress wanted federally licensed dealers who falsified paperwork to be charged only as federally licensed dealers who falsified paperwork. I therefore would reverse the convictions.
For the preceding reasons, I respectfully dissent.
Notes
(a)(1) Except as otherwise provided in this chapter, whoever --
(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;
. . . .
shall be fined under this title, imprisoned not more than five years, or both.
(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver --
. . . .
(5) any firearm or armor-piercing ammunition to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person if the person is an individual, or the identity and principal and local places of business of such person if the person is a corporation or other business entity.
Proof of a “willful” violation requires that the government produce a greater quantum of proof than that which would prove a mere “knowing” violation. Whereas a “knowing” violation may be evidenced by proof that the defendant actually knew the truth or falsity of the material fact(s) at issue, a “willful” violation must be supported by proof that the defendant knew both the pertinent fact(s) and understood the illegality of the pertinent charged conduct. See Bryan v. United States, 524 U.S. 184, 192-93 (1998).
The en banc Eighth Circuit in Logan partially vacated the panel‘s ruling in Al-Muqsit by reason of that panel‘s erroneous constitutional “confrontation” ruling which had invalidated the conviction of Al-Muqsit‘s co-defendant Logan. Nevertheless, nothing contained in the en banc decision detracted from the persuasive reasoning of the panel‘s ruling that a licensed firearms vendor who knowingly collaborated with the falsification of official records by a customer may be prosecuted as a co-conspirator in the commission of
The principal legal authority invoked by the Carneys in support of their argument that they should have been tried and sentenced as misdemeanor offenders under
(1) Next, I want to explain something about proving a defendant‘s knowledge:
(2) No one can avoid responsibility for a crime by deliberately ignoring the obvious. If you are convinced that defendants Sean Carney and Patrick Carney deliberately ignored a high probability that David Johnson was the actual buyer of the firearms named in the indictment, then you may find that they knew that David Johnson was the actual buyer of those firearms.
(3) But to do this, you must be convinced beyond a reasonable doubt that the defendants were aware of a high probability that David Johnson was the actual buyer of the firearms, and that the defendants deliberately closed their eyes to what was obvious. Carelessness, or negligence, or foolishness on defendants’ part is not the same as knowledge, and is not enough to convict. This, of course, is all for you to decide.
Evidence 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[.]
Fed. R. Evid. 404(b) (emphases added).
“This [Rule 404(b)] is actually a rule of inclusion rather than exclusion, since only one use is forbidden and several permissible uses of such evidence are identified. The list of permissible uses is not exclusive. Courts have recognized other permissible uses of such evidence; for example, to show a common scheme or plan.” United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985) (emphasis added; citations omitted).
Where there has been no objection, review is for plain error. Fed. R. Crim. P. 52(b). We cannot correct an error pursuant to Rule 52(b) unless there is an “error” that is “plain” or “clear” under current law and that affects substantial rights. If these conditions are met, we may exercise our discretion and notice the error only if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Id. at 543-44 (citations and brackets omitted). See also United States v. Cotton, 535 U.S. 625, 631-32 (2002).