United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL, CHIEF JUDGE.
before the Court is Defendant Larry Meminger, Jr.'s
motion to exclude evidence offered under Federal Rule of
Evidence 404(b), and a joint motion for hearing and to
continue jury selection and trial. (Docs. 21, 22.)
Defendant's motion to exclude is in response to the
United States' notice of intent to use such evidence
filed in accordance with Federal Rule of Evidence 404(b) (2)
and Local Rule 16.2. Defendant is charged with one count of
possession of a firearm by a convicted felon under 18 U.S.C.
§ 922(g)(1). The charge stems from an incident on or
about May 3, 2018, when Defendant was shot in the neck; the
United States alleges that Defendant accidentally shot
himself, while Defendant contends that he was the victim of a
crime. Defendant's motion to exclude is
DENIED for the following reasons. The joint
motion for hearing and to continue jury selection and trial
is DENIED IN PART AS MOOT and
GRANTED IN PART.
United States intends to offer two instances of
Defendant's other crimes, wrongs, or acts (the
"404(b) evidence") to establish Defendant's
"intent, knowledge, and absence of mistake or
accident." (Notice of Intent to Offer Proof of Other
Crimes, Wrongs, and Acts, Doc. 14, at 3.) The first instance
occurred on October 14, 2018. On that date, Defendant's
mother, Naomi Gifford, reported to the Richmond County
Sheriff's Office that Defendant had brandished a firearm
and used it to strike her. That instance resulted in
indictments at the state level which are pending until the
resolution of this case. The second instance was on December
1, 2018. Defendant's ex-girlfriend, Jackie Blount, who is
the United States' principal witness in the instant case,
reported to the Richmond County Sheriff s Office that
Defendant was banging on her back door while holding a
firearm. The United States intends to present evidence of
these two instances in the form of police body camera footage
of the witnesses and recordings of Ms. Blount and Ms.
in the Eleventh Circuit apply a three-factor test when
determining the admissibility of other crimes, wrongs, and
acts under Rule 404(b). See United States v. Brooks,
426 Fed.Appx. 878, 881 (11th Cir. 2011) (per curiam).
First, the evidence must be relevant to an issue other than
the defendant's character. Second, as part of the
relevance analysis, there must be sufficient proof so that a
jury could find that the defendant committed the extrinsic
act. Third, the evidence must possess probative value that is
not substantially outweighed by its undue prejudice, and the
evidence must meet the other requirements of Rule 403.
United States v. Miller, 959 F.2d 1535, 1538 (11th
Cir. 1992). Determining whether evidence is more probative
than prejudicial under the third factor involves a
"common sense assessment of all the circumstances
surrounding the extrinsic offense, including prosecutorial
need, overall similarity between the extrinsic act and the
charged offense, as well as temporal remoteness."
Brooks, 426 Fed.Appx. at 881 (quotation omitted).
District courts enjoy broad discretion in making this
assessment but must remember that excluding evidence under
the rule is an extraordinary remedy and that "the
balance should be struck in favor of
admissibility."' Id. (quotation omitted).
Motion to Exclude
first factor is the relevance of the 404(b) evidence to an
issue other than Defendant's character or propensity. The
evidence the United States seeks to admit is relevant for its
offered purposes of demonstrating Defendant's knowledge
and absence of mistake. The Defendant's knowledge and
absence of mistake are relevant to rebutting his defense that
the incident on May 3, 2018 was the result of a crime.
See generally Fed.R.Evid. 401.
second factor asks whether the other wrongs can be
established by evidence sufficient to support a jury finding
by a preponderance of the evidence that the Defendant
committed the wrong. United States v. Green, 873
F.3d 846, 864 (11th Cir. 2017) ("To have Rule 404(b)
prior act evidence admitted, the proponent need only provide
enough evidence for the trial court to be able to conclude
that the jury could find, by a preponderance of the evidence,
that the prior act had been proved.")
this factor is easily satisfied with evidence of a
conviction. See United States v. Jernigan, 341 F.3d
1273, 1282 (11th Cir. 2003) (stating that evidence of a
conviction plainly satisfies Miller's second
factor). Here, the United States does not have conviction
evidence, instead relying on testimony and video recordings
of Ms. Blount and Ms. Gifford's statements. These
recordings and testimony would be sufficient for a jury to
find that Defendant did possess a firearm on the other two
occasions. Defendant notes that the witnesses have retracted
their accounts in varying degrees and argues that therefore a
jury could not find that the Defendant perpetrated the acts
in the 404(b) evidence. However, a reasonable jury could make
the determination that the witnesses' statements
implicating Defendant - which were made almost immediately
after the alleged incidents - are more credible than their
later retractions, especially given Ms. Gifford and Ms.
Blount's close relationship with Defendant. The Court
need not make this credibility determination when judging the
admissibility of evidence; rather, the Court need only
determine that a jury could properly make the determination.
See United States v. Calderon, 127- F.3d 1314, 1325
(11th Cir. 1997) pit is well established that credibility
determinations are the exclusive province of the jury."
(quotation omitted).) Thus, the second factor is satisfied.
third factor requires the Court to balance the evidence's
probative value against its potential for unfair prejudice
and the other Rule 403 considerations. The evidence tends to
demonstrate Defendant's knowing possession of the firearm
specified in the indictment. The Eleventh Circuit held as
much in United States v. Jernigan. See
Jernigan, 341 F.3d at 1281-82 ("Put simply, the
fact that [the defendant] knowingly possessed a firearm in a
car on a previous occasion makes it more likely that he
knowingly did so this time as well, and not because
of accident or mistake." (emphasis original).) The
temporal proximity of the charged crime to the other wrongs
also weighs in favor of admission. The charged crime