United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on the Government's Notices of
Intent to Offer Evidence Pursuant to Federal Rule of Evidence
404(b) , .
January 27, 2015, a grand jury in the Northern District of
Georgia returned a five-count Indictment  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.
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). (). 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." (
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." ( at 11).
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). (). 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." ( 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."
( at 4, 6).
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)). The Court applies this three-prong test to
the Rule 404(b) evidence sought to be introduced by the
Philpot's Prior Firearm Conviction
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 ). 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).
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. ( 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