United States v. Fabian Perpall

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 18, 2021
• Docket: 19-14554
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14554 ________________________

D.C. Docket No. 1:18-cr-20664-RAR-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FABIAN PERPALL,

Defendant - Appellant. ________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(May 18, 2021)

Before MARTIN, GRANT, and BRASHER, Circuit Judges.

BRASHER, Circuit Judge:

Fabian Perpall appeals his felon-in-possession convictions, arguing that he

should receive a new trial because the district court improperly admitted evidence

of his prior convictions for possessing firearms. We cannot say that the district court USCA11 Case: 19-14554 Date Filed: 05/18/2021 Page: 2 of 11

abused its discretion in admitting this evidence under Rule 404(b). Accordingly, we

affirm.

I.

One summer morning, Fabian Perpall robbed Tavoris Odom. Odom reported

the robbery to the police. Two days later, Odom was standing on a street corner,

waiting to buy a gun from a friend. Eventually, he saw a car pulling up. But his friend

was not driving; Perpall was. Perpall’s hand was hanging out of the window, holding

a gun. As Perpall drove up, he called out, “[a]re you trying to get a gun? Damn,

Voris, are you trying to get a gun to kill me, to do something to me … ?” He then

began shooting at Odom. When Odom tried to run, Perpall chased him and hit him

with the car, firing the entire time. After shooting Odom in the leg, Perpall fired two

or three more rounds at him while he lay helpless on the pavement.

Nearby residents placed two 911 calls, and when the police arrived, they

applied pressure to a wound in Odom’s stomach and took him to the hospital. The

investigating detective recovered nine shell casings from the scene. Odom woke up

in the intensive care unit days later. When the investigating detective spoke to Odom,

he told the detective that Perpall had shot him, and he identified Perpall from a photo

lineup.

The next day, another detective and a squad of officers were surveilling

Perpall as a potential suspect in the attempted murder of Odom. The detective saw

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Perpall drive away from a house and, after verifying that Perpall was the only one in

the car, alerted the assisting detectives who were in a marked police car that Perpall

was on the move. When Perpall passed them, those detectives turned on their lights

and sirens and initiated a traffic stop. At first, Perpall slowed down, but then he sped

away as one detective began to exit his vehicle. Perpall led the detectives on a high-

speed chase through a residential neighborhood. Upon request by the detectives,

nearby officers joined the chase, and helicopters provided assistance.

Eventually, one of Perpall’s tires went flat, and he crashed into a fence. He

exited the crashed car from the passenger side and attempted to flee on foot. The

officers pursued Perpall through the front yard and into an open field where they

caught him. The pursuit lasted about thirty seconds. During the foot-chase, one

officer stayed behind with the crashed vehicle. He “clear[ed]” the vehicle, verifying

that Perpall had been the only person in the car. He then observed a black gun in the

center console between the gear shift and the radio. He also learned that Perpall did

not own the car; it had been reported stolen three days before.

The federal government charged Perpall with two felon-in-possession counts,

and Perpall pleaded not guilty. Prior to trial, the government gave notice under Rule

404(b) of its intent to present evidence of Perpall’s prior convictions at trial, and a

day before trial, the district court held a hearing to discuss the Rule 404(b) evidence.

The government planned to introduce two judgments, which reflected that Perpall

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had previously been convicted three times for being a felon in possession and once

for discharging a firearm from a vehicle. It withdrew its request to admit a previous

conviction for attempted premeditated murder with a firearm, which the judge said

he “would never have allowed . . . anyway.” According to the government, Perpall

had placed the mens rea element at issue by pleading guilty, and the prior convictions

would show Perpall’s intent and state of mind, including the absence of accident or

mistake.

Perpall objected. He stated that he had stipulated that he was a convicted felon

who knew it was illegal to possess a gun. And he argued that because he was

presenting an alibi defense and was not arguing mistake, the prior convictions were

not relevant and that even if they were, they were more prejudicial than probative.

The district court admitted the evidence, reasoning that it was admissible because

this was a constructive possession case, that there were only two judgments, and that

those judgments had been “somewhat sanitized” because the state-court judgment

omitted all information except the counts of conviction and only the first page of the

federal judgment would be entered. The district court also promised that it would

give a curative instruction before the prior convictions were introduced and again in

jury instructions.

In fact, the district court gave three limiting instructions. It gave two

instructions during trial, one directly before the exhibits were admitted and one at

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the end of the witness’s testimony in which they were discussed. After the second

cautionary instruction, the judge asked the jury if it understood, and the jury audibly

answered “yes.” The judge also refused to allow the government to reference

Perpall’s attempted murder conviction or two other prior convictions when he

testified. And before closing arguments, the judge read the jury a limiting

instruction, admonishing the jurors not to consider those convictions for propensity

but only to determine whether Perpall had the necessary state of mind or intent and

whether Perpall had possessed a gun by accident or mistake. The jury convicted

Perpall of both counts, and Perpall moved for a new trial. The district court denied

the motion. Perpall timely appealed, arguing that the district court should not have

admitted the evidence of his prior convictions.

II.

The felon-in-possession statute prohibits a convicted felon from possessing a

firearm. 18 U.S.C. § 922(g)(1). The government must prove mens rea as to both the

status element—that the defendant is a convicted felon—and the possession element.

Rehaif v. United States, 139 S.Ct. 2191, 2195–96 (2019). The mens reas necessary

for both elements is “knowingly.” Id. The status element can be proven by

stipulation. In fact, if a defendant stipulates to knowing that he is a convicted felon,

the government cannot offer evidence of his prior convictions to prove that element.

Old Chief v. United States, 519 U.S. 172, 188–90 (1997). But Perpall’s stipulation

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that he knew he was a convicted felon does no work here. That stipulation did not

speak to whether he knowingly possessed a firearm. Because the evidence of his

prior convictions was offered to prove an element other than status, the standard

Rule 404(b) analysis controls. Old Chief, 519 U.S. at 190.

This Court reviews a district court’s admission of evidence under Rule 404(b)

for abuse of discretion. United States v. Nerey, 877 F.3d 956, 974 (11th Cir. 2017).

Rule 404(b) prohibits evidence of prior bad acts if the evidence is offered to show

only propensity. Fed. R. Evid. § 404(b)(1). But it allows that evidence for other

reasons, such as to prove “intent,” “absence of mistake, or lack of accident.” Id. at §

404(b)(2). Rule 404(b) is a rule “of inclusion which allows [extrinsic] evidence

unless it tends to prove only criminal propensity. The list [of admissible evidence]

provided by the rule is not exhaustive and the range of relevancy … is almost

infinite.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008) (citation

omitted). Still, to be admissible under Rule 404(b), the evidence must be relevant to

more than propensity, must be reliable, and cannot be more prejudicial than

probative. United States v. Green, 873 F.3d 846, 858 (11th Cir. 2017). Here, both

parties agree that the evidence is reliable. But Perpall argues that the prior

convictions fail to meet the first and third criteria.

Turning to the first criterion, our precedents make clear that the prior

convictions here were not admitted as improper propensity evidence. Because the

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firearm was found in the console of the car that Perpall had been driving, this case

involves constructive possession, not actual possession. By pleading not guilty,

Perpall put his knowledge of the presence of the gun at issue, United States v.

Jernigan, 341 F.3d 1273, 1281 & n.7 (11th Cir. 2003), making Perpall’s prior

convictions relevant to show intent, state of mind, and absence of mistake or

accident.1 We have explained that “the caselaw in this and other circuits establishes

clearly the logical connection between a convicted felon’s knowing possession of a

firearm at one time and his knowledge that a firearm is present at a subsequent time

(or, put differently, that his possession at the subsequent time is not mistaken or

accidental).” Jernigan, 341 F.3d at 1281 (collecting cases). Or “[p]ut 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.” Id. at 1281–82. We have reiterated that holding multiple times.

See, e.g., United States v. Troya, 733 F.3d 1125, 1131–32 (11th Cir. 2013); United

States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005). “Against this doctrinal

background, it is untenable to say that [Perpall’s] previous, knowing commission of

crimes that involved the possession of a weapon—and specifically, the possession

1 Because this is a constructive possession case, we need not, and do not, reach the question of whether similar evidence would be relevant to knowledge or intent in an “actual possession” case. Cf. United States v. Williams, 620 F.3d 483, 489 (5th Cir. 2010) (“In the context of a weapon- possession case, Rule 404(b) evidence of intent is relevant to a theory of constructive possession, but not to a theory of actual possession.”). 7 USCA11 Case: 19-14554 Date Filed: 05/18/2021 Page: 8 of 11

of a weapon in a car—does not logically bear on his knowledge of the presence of a

gun” in the car he was driving here. Jernigan, 341 F.3d at 1281.

Perpall argues that his prior convictions were not relevant because he intended

to present an alibi defense and not to argue mistake or accident. But it does not matter

what defense Perpall said he intended to raise at trial or whether he intended to

present any defense at all. The government had to present its case first, and it had

the burden of proving that he knowingly possessed the gun that the detectives found

in the car. See United States v. Vereen, 920 F.3d 1300, 1307–08 (11th Cir. 2019)

(explaining that felon in possession is a “general intent” crime, not strict liability,

which requires proof that the defendant “knowingly possessed” the firearm); see also

Rehaif, 139 S.Ct. at 2195–96. Specifically, the government had to prove that Perpall

“was aware or knew of the firearm’s presence and had the ability and intent to later

exercise dominion and control over the firearm.” United States v. Ochoa, 941 F.3d

1074, 1104 (11th Cir. 2019). Under our precedents, Perpall’s prior convictions were

relevant to those issues.

Turning to the next challenged 404(b) criterion, we cannot say the district

court abused its discretion in concluding that the probative value of the prior

convictions was not outweighed by their prejudicial effect under Rule 403. See id.

at 1280. Rule 403 “is an extraordinary remedy which the district court should invoke

sparingly, and the balance should be struck in favor of admissibility,” Nerey, 877

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F.3d at 975 (citation omitted), “maximizing [the evidence’s] probative value and

minimizing its undue prejudicial impact,” United States v. Tinoco, 304 F.3d 1088,

1120 (11th Cir. 2002). “To determine whether the evidence is more probative than

prejudicial, a district court must engage in 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.” United States v. Brown, 587 F.3d 1082, 1091 (11th Cir. 2009)

(cleaned up).

Also relevant to our review is whether the district court gave limiting

instructions, see, e.g., United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir.

1997), whether “the district court was careful to preclude the admission of certain

especially prejudicial aspects of [the defendant’s] prior convictions,” Jernigan, 341

F.3d at 1282, and whether the prior convictions revealed heinous acts, see, e.g.,

United States v. Williams, 816 F.2d 1527, 1532 (11th Cir. 1987). When looking at a

district court’s Rule 403 balancing, “we are loathe to disturb the sound exercise of

its discretion … ‘because of the judge’s first-hand exposure to the evidence and

because of the judge’s familiarity with the case and ability to gauge the impact of

the evidence on the jury in the context of the trial.’” Jernigan, 341 F.3d at 1285

(quoting United States v. Williams, 216 F.3d 611, 615 (7th Cir. 2000)). Indeed, we

have recognized that “the district court is uniquely situated to make nuanced

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judgments on questions that require the careful balancing of fact-specific concepts

like probativeness and prejudice.” Id.

Here, the district court reasonably weighed the relevant considerations.

Weighing in favor of admission, the prosecution had a real need to introduce the

evidence to establish knowing possession. See Williams, 816 F.2d at 1532. The

police found the gun in a car that Perpall had been driving, but Perpall was not in the

car when he was arrested, and that car did not belong to Perpall. Ballistics matched

the gun to the casings found at the scene of the shooting, but the only link between

the gun from that shooting and Perpall was the testimony of the alleged victim who

was subject to cross examination. Perpall’s prior convictions were for very similar

crimes; indeed, three were for the exact same crime for which Perpall was on trial.

United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (“A similarity

between the other act and a charged offense will make the other offense highly

probative with regard to a defendant’s intent in the charged offense.”). And the four-

and six-year spans between the prior convictions and the conduct underlying the

current charge did not render the prior convictions too remote. See United States v.

Edouard, 485 F.3d 1324, 1346 (11th Cir. 2007) (collecting cases).

The district court also took steps to prevent any unfair prejudice. The district

court gave three separate limiting instructions, refused to admit more prejudicial and

less similar prior convictions, and “somewhat sanitized” the records of the prior

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convictions that were admitted. The district court even questioned the jurors to

ensure that they understood its limiting instructions. Based on our precedent and a

“common sense assessment of all the circumstances,” the district court did not abuse

its discretion in admitting the prior convictions.

III.

Because the district court did not abuse its discretion either in finding that the

prior convictions were relevant to intent or accident or in its Rule 403 balancing, we