Court Error – Admittance of Evidence

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7^th Circuit Court of Appeals

Case Name: United States of America v. Darrius Washington

Case No.: 19-1331

Officials: MANION, KANNE, and SYKES, Circuit Judges.

Focus: Court Error – Admittance of Evidence

Darrius Washington was charged with unlawfully possessing a firearm as a felon after police officers saw him toss a gun into a residential yard. Before trial the government moved to admit a video posted on YouTube about three months before the arrest depicting Washington holding what prosecutors argued was the same gun. Over Washington’s objection, the district judge permitted the admission of still photos from the video but not the video itself. The jury found Washington guilty.

Washington challenges the admission of this evidence, arguing that the photos were irrelevant, inadmissible under Rule 404(b) of the Federal Rules of Evidence, and unfairly prejudicial. We disagree. As explained in United States v. Miller, evidence of recent past possession of the same gun is admissible for a nonpropensity purpose—namely, to show the defendant’s ownership and control of the charged firearm—although evidence of past possession of a different gun would raise Rule 404(b) concerns. 673 F.3d 688, 694–95 (7th Cir. 2012).

Washington notes, accurately enough, that Miller was a case about constructive possession and his case involves a charge of actual possession. That distinction doesn’t make a difference in the Rule 404(b) calculus. The judge properly admitted this evidence for a nonpropensity purpose and minimized its potential for unfair prejudice by limiting the government to still photos rather than the video itself. We affirm the judgment.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.