F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS February 21, 2007 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-7072 (E.D. Okla.) SHAUN M ICHAEL JAM ES, also (D.Ct. No. CR-05-58-01-W ) know n as Shaw n M . James,
Defendant-Appellant. ____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
A jury convicted Appellant Shaun M ichael James of one count of
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. possession of a firearm after a former conviction of a felony in violation of 18
U.S.C. § 922(g)(1). He appeals his conviction on grounds the district court
improperly admitted evidence the firearm in question was stolen. W e exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm M r. James’s conviction.
I. Factual and Procedural Background
Authorities with the Tahlequah, Oklahoma, Police Department routinely
compare the serial numbers of firearms pawned in the city with a computerized
database, maintained by the Federal Bureau of Investigation (FBI) at the National
C rim e Information C enter (N CIC), to determine if the firearms are stolen. On
M arch 9, 2005, officers discovered that a W inchester M odel 37A twenty-gauge
shotgun, pawned the day before at the BS & G Pawn Shop in Tahlequah, had been
stolen on November 22, 2004. The pawn ticket showed “Shaun James” pawned
the shotgun and signed the ticket.
The pawn shop owner, Tony Boyle, did not remember M r. James and could
not identify him as the person who pawned the shotgun, but explained he filled
out the paw n ticket in question by transferring information from the driver’s
license of the person pawning the item. In this case, the information from the
driver’s license transferred onto the pawn ticket identified the person as “Shaun
James,” with a birth date of April 26, 1979, and an address of 26399 South Indian
-2- Road, Parkhill, Oklahoma; and described him as an Indian male, twenty-five
years old, five feet seven inches in height, weighing 113 pounds, with black hair
and black eyes. M r. Boyle further testified the pawn ticket contained the
signature of “Shaun James” and was signed in M r. Boyle’s presence by the person
pawning the shotgun. Finally, M r. Boyle explained individuals pawning an item
must present a government-issued photo identification and that he looks at the
photo on the identification, presumably to compare it with the person physically
pawning the item; in this instance, he explained, the person pawning the shotgun
presented an Oklahoma driver’s license with a photo.
In early April 2005, and again in late April 2005, someone identifying
himself as “Shaun James” telephoned Jason Chennault, the Chief Investigator for
the Cherokee County Sheriff’s Office. Both times the caller asked if he could get
his shotgun back, and each time Investigator Chennault explained he could not
because it w as stolen.
On M ay 4, 2005, M r. James met with a corrections officer, Ryan Tiger;
when M r. Tiger asked M r. James if he had any contact with law enforcement, he
answered “yes,” explaining he contacted Investigator Chennault because he was
trying to get his shotgun out of the pawn shop but could not because it was stolen
and a “hold” had been placed on it. M r. James also told M r. Tiger he bought the
-3- shotgun from a lady who lived near his father, he and another person went to the
pawn shop to pawn it, and he was going to hire an attorney to try to get it back.
At trial, evidence was offered through various witnesses establishing the
address and birth date on the pawn ticket matched M r. James’s actual address and
date of birth. In addition, while none of the w itnesses were handwriting experts,
they testified the signature of “Shaun James” on the pawn ticket matched his
actual signature on various other signed documents admitted into evidence. The
defense did not call any witnesses.
Also at trial, M r. James’s counsel made an objection pursuant to Federal
Rule of Evidence 404(b) on grounds evidence the shotgun was stolen was
irrelevant and the government had failed to notify him of its intent to use “this
other crime” evidence. R., Vol. 2 at 15. M r. James’s counsel also objected under
Federal Rule of Evidence 403, claiming such evidence was more prejudicial than
probative. In response, government counsel explained the fact the firearm was
stolen was discussed with M r. James’s counsel and no allegation was being made
M r. James knowingly possessed a stolen firearm, but only that he was a felon in
possession of a firearm. Government counsel also explained the purpose in
offering evidence the shotgun was stolen was to give the jury background
information as to why the witnesses acted as they did.
-4- The district court overruled M r. James’s objection and admitted testimony
the shotgun at issue was stolen. M r. James’s counsel did not request a limiting
instruction cautioning the jury on the weight given such evidence and the district
court did not sua sponte provide a limiting instruction. In closing argument, M r.
James’s attorney concentrated on the fact no direct evidence implicated M r. James
as no one saw him with the shotgun, positively identified him as either the person
who pawned the shotgun or called Inspector Chennault, or offered video,
fingerprint or expert handwriting evidence implicating him. In so doing,
counsel’s closing argument focused on the fact someone else could have used M r.
James’s driver’s license as a means of identity theft, but he did not suggest the
other person allegedly accompanying M r. James to the pawn shop had possessed
or pawned the firearm.
At the conclusion of closing arguments at around 3:00 p.m., the jury
adjourned for deliberations. At 5:30 p.m., the jury sent a note to the district court
judge asking if M r. Tiger was a probation officer. W ith approval of both counsel,
the judge returned a note stating, “You have all the evidence that was admitted at
trial.” R., Vol. 2 at 99-101. Less than thirty minutes later, the foreperson sent a
note stating, “We have discussed twice and voted twice. Still split. W here do w e
go from here? Hard heads on both sides.” R., Vol. 2 at 101. W hen the district
court asked counsel how each would like to proceed, counsel for both parties
-5- suggested three hours of deliberation was insufficient and deliberations should
continue, causing the judge to send the jury a note stating, “Please continue your
deliberations.” R., Vol. 2 at 101-03. Approximately one hour and forty minutes
later, at 7:44 p.m., the jury returned a unanimous verdict finding M r. James guilty
of being a felon in possession of a firearm.
II. Discussion
M r. James’s sole issue presented on appeal is “[w]hether the district court
erred by allowing evidence at trial indicating that the shotgun allegedly possessed
by [him] was stolen.” Apt. Br. at 1. In support of his argument, he contends
evidence the shotgun was stolen was outside the scope of Federal Rule of
Evidence 404(b) because it was not inextricably intertwined with the charged
crime or necessary to avoid confusion. Expounding on this contention, M r. James
claims evidence the shotgun was stolen was not “necessary to complete or render
less confusing the testimony of a witness” because it did not shed light on the
issue presented at trial as to whether he was a felon in possession of a firearm.
Apt. Br. at 8. He also suggests such evidence was more prejudicial than relevant
“because it enticed the jury to find guilt based on the fact the gun was stolen,” as
evidenced by the jury’s five-hour deliberation and despite “the possibility that a
person who accompanied [him] to the pawn shop may have been the actual
possessor.” Apt. Br. at 5-6, 9-10.
-6- W e start our analysis of M r. James’s appeal with our standard of review
and the principles applicable to admission of evidence. W e review for abuse of
discretion the district court’s evidentiary rulings made pursuant to Federal Rules
of Evidence 403 and 404(b). See United States v. M ares, 441 F.3d 1152, 1156
(10th Cir. 2006) (discussing Rule 404(b)), petition for cert. filed (U.S. Jun. 21,
2006) (No. 05-11764); United States v. Call, 129 F.3d 1402, 1405 (10th Cir.
1997) (discussing Rule 403). Thus, the decision to admit or exclude such
evidence lies within the sound discretion of the trial court, see United States v.
Harrison, 942 F.2d 751, 759 (10th Cir. 1991), and “[w]e will not reverse a district
court’s ruling if it falls within the bounds of permissible choice in the
circumstances and is not arbitrary, capricious or whimsical.” M ares, 441 F.3d at
1156 (quotation marks, citation and alteration omitted). See also Call, 129 F.3d
at 1405.
Both the Supreme Court, in Huddleston v. United States, 485 U.S. 681, 691
(1988), and this circuit, in United States v. Record, 873 F.2d 1363, 1374 (10th
Cir. 1989), announced four factors to consider in weighing the admissibility of
evidence under Rule 404(b), including whether: (1) the evidence is offered for a
proper purpose; (2) it is relevant; (3) the probative value of the evidence is
substantially outweighed by its prejudicial effect under Rule 403; and (4) a proper
limiting instruction was given, if requested by the defendant. See also M ares,
-7- 441 F.3d at 1156; United States v. Sarracino, 131 F.3d 943, 948 (10th Cir. 1997).
W ith regard to the first factor, “Rule 404(b) identifies several proper purposes for
admitting evidence of ‘other crimes, wrongs, or acts,’ including ‘proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.’” Sarracino, 131 F.3d at 949 (quoting Fed. R. Evid. 404(b)).
However, we recognize the purposes expressly identified in Rule 404(b) are not
exclusive, and instead, “the rule is one of inclusion, rather than exclusion, unless
the evidence is introduced for impermissible purpose or is unduly prejudicial.”
Id. (quotation marks and citation omitted).
One proper purpose for admitting “other acts” evidence, not expressly
identified in Rule 404(b), is to show the “context” of a charged crime, as “[a] jury
‘cannot be expected to make its decision in a void.’” Id. (quoting United States v.
M asters, 622 F.2d 83, 86 (4th Cir. 1980)). W e have also explained:
Rule 404(b) only applies to evidence of acts extrinsic to the charged crime. 1 An uncharged act may not be extrinsic if it was part of the scheme for which a defendant is being prosecuted, or if it was inextricably intertwined with the charged crime such that a witness’
1 “Extrinsic” evidence “involves an act wholly apart from and not intricately related to the asserted claim,” Elliot v. Turner Constr. Co., 381 F.3d 995, 1004 (10th Cir. 2004), and is otherwise generally defined as not inherent; extraneous or external. See W ebster’s II New Riverside Univ. Dictionary, Rev. Ed., 245 (1996). In contrast, “intrinsic” evidence is evidence directly related to or the part of the same event, see Elliot, 381 F.3d at 1004, and is otherwise generally defined as of or relating to the fundamental nature of a thing; inherent. See W ebster’s II at 366.
-8- testimony would have been confusing and incomplete without mention of the prior act.
Record, 873 F.2d at 1372 n.5 (quotation marks and citations omitted) (emphasis
added). In addition, we have held “[o]ther act evidence is intrinsic when the
evidence of the other act and the evidence of the crime charged are inextricably
intertwined or both acts are part of a single criminal episode or the other acts
were necessary preliminaries to the crime charged.” United States v. Lam bert,
995 F.2d 1006, 1007 (10th Cir. 1993) (quotation marks and citation omitted)
(emphasis added). Finally, we have repeatedly relied on the Fourth Circuit’s
decision in M asters for a list of other possible purposes for admitting evidence of
other acts under Rule 404(b). See 622 F.2d at 86 (providing list of other possible
purposes). These include whether the evidence: (1) provides part of the
“context” of the crime charged or is necessary for a “full presentation of the
case”; (2) is so much a part of the environment of the case that it is necessary to
“complete the story of the crime”; or (3) is so linked together in point of time and
circumstances with the crime charged it is part of the “res gestae” or, in other
words, “part and parcel of the proof of the offense charged.” See generally Elliot,
381 F.3d at 1004 (relying on M asters, 622 F.2d at 86); Sarracino, 131 F.3d at 949
(same); United States v. Kimball, 73 F.3d 269, 272 (10th Cir. 1995) (same);
United States v. Cook, 745 F.2d 1311, 1317-18 (10th Cir. 1984) (same).
-9- In this case, it is apparent Investigator Chennault’s and M r. Tiger’s
testimony the shotgun was stolen was a necessary “preliminary” to the crime
charged, see Lambert, 995 F.2d at 1007, or, in other words, was necessary to
provide a full presentation of the case and completion of the story, or was so
linked together in point of time and circumstances with the crime charged it was
part of the “res gestae.” See generally Elliot, 381 F.3d at 1004; Sarracino, 131
F.3d at 949; Kimball, 73 F.3d at 272; Cook, 745 F.2d at 1317. This is because the
entire scenario under which M r. James w as implicated for being a felon in
possession of a firearm began when authorities ran a check on the pawned
shotgun to determine whether it was stolen, which then led to its confiscation.
Confiscation of the stolen shotgun next led the person identifying himself as
“Shaun James” to call Investigator Chennault for the purpose of retrieving the
confiscated shotgun. During these calls, that person implicated himself when he
asked if he could get his shotgun back. The government then offered Corrections
Officer Tiger’s testimony that he met with M r. James, who said he went to the
pawn shop to pawn the shotgun and that he contacted Investigator Chennault
because he was trying to retrieve the gun from the pawn shop but could not
because it w as stolen and a hold had been placed on it.
Not only did M r. Tiger’s testimony corroborate M r. Boyle’s testimony a
person carrying the photo identity of a Shaun James pawned the shotgun and
-10- Inspector Chennault’s testimony M r. James called to retrieve it, but M r. Tiger was
the only witness who could positively identify M r. James as the person making
inculpatory statements. Thus, M r. Tiger’s testimony was also offered to show M r.
James, and not some imposter, possessed the pawned shotgun and called
Investigator Chennault attempting to retrieve it. Given M r. James’s defense
strategy at trial centered on the fact he did not possess or pawn the shotgun, it is
evident the testimony of both Investigator Chennault and M r. Tiger was offered to
show M r. James in fact previously possessed the pawned shotgun. Thus, such
evidence was offered to establish the crime charged — i.e., possession of a
firearm after a former conviction of a felony — and not that M r. James stole the
shotgun.
For these reasons, evidence the pawned shotgun was stolen was
inextricably intertwined with the charged crime for the purpose of its admission.
M oreover, without inclusion of the fact the shotgun was stolen, the testimony of
both Investigator Chennault and M r. Tiger may have been confusing and
incomplete, as the jury would have been left in a void as to the circumstances
leading to confiscation of the shotgun and M r. James’s incriminating statements
to both of them. See Record, 873 F.2d at 1372 n.5. Thus, we hold a proper
purpose existed for admission of evidence the shotgun was stolen.
-11- Having determined such evidence was offered for a proper purpose, we turn
to the second factor, regarding its relevancy. See Mares, 441 F.3d at 1156. For
the same reasons previously discussed, it is clear that evidence the shotgun was
stolen was relevant to the crime charged as it explained why M r. James made
incriminating statements about the confiscated shotgun and his attempts to
retrieve it.
Next, we address the third Rule 404(b) factor, regarding whether the
probative value of the stolen shotgun evidence was substantially outweighed by
its prejudicial effect, as contended by M r. James. As previously noted, he argues
such evidence enticed the jury to find him guilty, as shown by its five-hour
deliberation and despite the possibility the person accompanying him to the pawn
shop may have possessed the shotgun.
W e begin addressing M r. James’s contention by pointing out that neither
the jury instructions nor the government’s arguments at trial suggest M r. James
stole the shotgun. In addition, the only testimony offered at trial on how M r.
James acquired the shotgun did not suggest he stole it, but rather that he stated he
purchased it. However, even if the testimony the shotgun was stolen had a
prejudicial effect on the jury, it is clear its probative value substantially
outweighed its prejudicial effect. This is because the stolen shotgun evidence, as
-12- previously discussed, was necessary in providing the requisite proof Shaun James,
and not an imposter, pawned the shotgun and made calls to retrieve it after its
confiscation as a stolen weapon.
In addition, while the jury may have deliberated five hours, the length of its
deliberation alone does not establish any prejudice in admitting the stolen shotgun
evidence substantially outweighed its probative value. Rather, given the
overwhelming inculpatory evidence that someone identified as “Shaun James”
pawned the shotgun and called Inspector Chennault, it is more likely the jury was
deliberating the issue raised by the defense concerning identity theft and its claim
no direct evidence showed it was M r. James, and not an imposter, who pawned
the shotgun and made calls to recover it.
W e also reject M r. James’s claim the stolen shotgun evidence caused the
jury to somehow disregard evidence the other person allegedly accompanying M r.
James could have possessed the shotgun. Only one witness, M r. Tiger, testified
M r. James told him he was accompanied by another person when he pawned the
shotgun. In the course of M r. Tiger’s conversation with M r. James, it is clear M r.
James was not implicating the other person, and in fact, he told M r. Tiger he
contacted the authorities because he, M r. James, wanted to get his shotgun back.
Based on this testimony and the other overwhelming inculpatory evidence offered
-13- at trial, the fact someone may have accompanied M r. James to the pawn shop was
unlikely to sw ay the jury to acquit, regardless of w hether the district court
admitted evidence the shotgun was stolen.
Lastly, we address the fourth and final Rule 404(b) factor on whether a
proper limiting instruction was given, if requested by the defendant. See Mares,
441 F.3d at 1156. W e have long held it is not error for a trial court to fail to give
a limiting instruction on Rule 404(b) evidence in the absence of a proper jury
instruction request by counsel. See Record, 873 F.2d at 1376 (relying on
Huddleston, 485 U.S. at 691-92). In this case, it is clear a limiting instruction
was never requested, and therefore, the district court did not err in failing to
provide such an instruction to the jury.
Applying our standard of review and considering the applicable R ule
404(b) factors, we hold the district court did not abuse its discretion in admitting
evidence the shotgun pawned by M r. James had previously been stolen.
-14- III. Conclusion
For these reasons, we A FFIRM M r. James’s conviction.
Entered by the C ourt:
W ADE BRO RBY United States Circuit Judge
-15-