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United States v. Philpot

United States District Court, N.D. Georgia, Atlanta Division

April 24, 2017

UNITED STATES OF AMERICA,
v.
JASON PHILPOT and PATRICK BERNARD REESE, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Government's Notices of Intent to Offer Evidence Pursuant to Federal Rule of Evidence 404(b) [105], [106].

         I. BACKGROUND

         On January 27, 2015, a grand jury in the Northern District of Georgia returned a five-count Indictment [1] charging Defendants Jason Philpot ("Philpot") and Patrick Bernard Reese ("Reese") (together, "Defendants") with aiding and abetting each other in Hobbs Act Robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Count 1); using, carrying and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts 2 and 3); and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Counts 4 and 5). The Indictment alleges that, on September 30, 2014, Defendants robbed a Waffle House restaurant in Tucker, Georgia.

         On February 14, 2017, the Government filed its notice of intent to introduce evidence that Philpot was convicted, on March 4, 2002, of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). ([106]). The Government argues that Philpot's conviction "tends to show that [his] possession of a firearm in the instant case was done knowingly and was not the result of a mistake." ([106] at 2). Philpot argues that evidence of his prior conviction "substantially outweighs any probative value such evidence would possess in regard to the present offense." ([116] at 11).

         On February 14, 2017, the Government also filed its notice of intent to introduce evidence that, on November 28, 2004, Reese was convicted of (i) "committing an armed robbery of a Shell Food Mart, " in violation of 18 U.S.C. § 1951(a), and (ii) "brandishing a firearm during the robbery of the Shell Food Mart, " in violation of 18 U.S.C. § 924(c). ([105]). The Government argues that Reese's prior convictions "tend to show [his] plan, his knowledge and that [his] participation in the Hobbs Act Robbery and discharge of a firearm during the robbery were not the result of a mistake." ([105] at 2). Reese argues evidence of his prior convictions is "not relevant to an issue other than [his] character" and is "substantially more prejudicial than probative." ([126] at 4, 6).

         II. DISCUSSION

         A. Legal Standard

         Under Rule 404(b), "[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). However, "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. 404(b)(2).

To admit evidence under Rule 404(b), three conditions must be met: (1) the evidence must be relevant to an issue other than the defendant's character; (2) the act must be established by sufficient proof to permit a jury finding that the defendant committed the extrinsic act; and (3) the probative value of the evidence must not be substantially outweighed by its undue prejudice and must meet the other requirements of Rule 403.

United States v. Rodriguez, 452 F.App'x 883, 886 (11th Cir. 2012) (citing United States v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005) (per curiam)).[1] The Court applies this three-prong test to the Rule 404(b) evidence sought to be introduced by the Government.

         B. Philpot's Prior Firearm Conviction

         Philpot is charged with being a convicted felon in possession of a firearm. To convict Philpot of this offense, the Government must prove that he knowingly possessed a firearm. 18 U.S.C. § 922(g); United States v. Hunter, 373 F.App'x 973, 977 (11th Cir. 2010). Philpot has "never admitted to or stipulated to the fact that he knowingly and intentionally possessed the firearm found by [the Government in this case]." United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005). Philpot's plea of not guilty, entered on February 19, 2015, "placed this element of the § 922(g) offense in issue." United States v. Jernigan, 341 F.3d 1273, 1281 n.7 (11th Cir. 2003); (see [10]). The Eleventh Circuit has held repeatedly that the Government is entitled to prove this offense element by introducing evidence of defendant's past conviction for possessing a firearm as a convicted felon. See Taylor, 417 F.3dat 1182; Jernigam 341 F.3dat 1281-82. This is because "the fact that [defendant] knowingly possessed a firearm ... on a previous occasion makes it more likely that he knowingly did so this time as well, and not because of accident or mistake." Jernigan, 341 F.3d at 1282. Evidence of Philpot's prior conviction meets the first prong of the test because the conviction is "relevant to an issue other than [Philpot's] character." Rodriguez, 452 F.App'x at 886; see, e.g.. United States v. Perrier, 619 F.App'x 792, 796 (11th Cir. 2015).

         Under the second test prong, "the act must be established by sufficient proof to permit a jury finding that the defendant committed the extrinsic act." Rodriguez, 452 F.App'x at 886. The Government has submitted documentary evidence that Philpot pleaded guilty to, and was convicted of, being a felon in possession of a firearm. ([106] at 1; [106.1]). This is sufficient proof that he committed the offense of which he was convicted. See United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997) ("It is elementary that a conviction is sufficient proof that ...


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