It Was 7 Years Ago Today: 7 Years of EvidenceProf Blog & 7 Year Old Convictions

Seven years ago today, I started EvidenceProf Blog. Here was my first post:

I am a professor at the John Marshall Law School, teaching Evidence and Civil Procedure.  I hope that this blog becomes a place where evidence professors across the country can talk about recent developments in evidence law.

Now, seven years later, I’m at a new school: the University of South Carolina School of Law. I teach some more classes: Criminal Law and Criminal Adjudication. And I have a new job: Associate Dean for Faculty Development. But the mission remains the same. Today, in honor of seven years, let’s take a look at the recent opinion of the Third Circuit in United States v. Caldwell, 760 F.3d 267 (3rd Cir. 2014), a case involving the relevance of seven year old convictions.

In Caldwell, Akeem Abdul was charged with being a felon in possession of a firearm. The evidence adduced at trial indicated that

three detectives with the Pittsburgh Police Department—Judd Emery, Robert Smith, and Mark Adametz—were on patrol….As they approached the intersection of Penfort Street and Mount Pleasant Road, they spotted Akeem Caldwell and Darby Tigney walking side-by-side in the direction of the police car. When the detectives’ car turned left onto Mount Pleasant Road, Detective Emery observed Caldwell remove a black firearm from his waistband and hold it behind Tigney’s back. Emery immediately alerted the other detectives to the presence of the weapon and brought the cruiser to a stop. He then jumped out and ran to the rear of the car, drew his weapon, and yelled: “Pittsburgh Police. Drop the gun.”

Emery later testified that, upon his command, Caldwell released the firearm, letting it fall to the ground directly between Tigney’s legs. Emery then directed Caldwell and Tigney to get on the ground, and the other detectives placed them in handcuffs. As he was being placed in custody, Caldwell emphatically insisted that he was not the one who had been holding the gun, exclaiming: “That’s not my gun. You didn’t see me with a gun.”

At trial, the government sought to introduce Caldwell’s seven year old convictions for possession of a firearm by a convicted felon, pursuant to Federal Rule of Evidence 404(b), which states in relevant part:

(1) Prohibited Uses. Evidence 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.  

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

The court initially thought that the convictions constituted inadmissible propensity character evidence but eventually bought the prosecutor’s explanation that they were admissible to prove knowledge and/or intent.

On appeal, the Third Circuit disagreed, concluding that

The prosecution’s fundamental task was to prove that Caldwell unlawfully possessed the gun recovered by the detectives. Caldwell’s defense was that he never possessed the gun. The prosecution sought to admit evidence that, on two prior occasions, Caldwell was convicted of unlawfully possessing firearms. The question the prosecution must answer is this: “How, exactly, do Caldwell’s two prior convictions for unlawful firearm possession suggest he knowingly possessed this gun on this occasion?” Hard as we try, we see only one answer to that question: If Caldwell knowingly possessed firearms in the past, he was more likely to have knowingly possessed the firearm this time. This is precisely the propensity-based inferential logic that Rule 404(b) forbids.

-CM