PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________
No. 13-1918
_____________
UNITED STATES OF AMERICA
v.
AKEEM ABDUL CALDWELL,
Appellant
_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania
District Court No. 2-12-cr-00111-001
District Judge: The Honorable Donetta W. Ambrose
_____________
Argued: May 13, 2014
Before: SMITH, VANASKIE, and SHWARTZ, Circuit
Judges

(Filed: July 24, 2014)

Rebecca R. Haywood, Esq.

Michael L. Ivory, Esq. [ARGUED]
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
Lisa B. Freeland, Esq.
Renee Pietropaolo, Esq. [ARGUED]
1500 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
Counsel for Appellant
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
Akeem Caldwell brings this appeal following his
conviction of being a felon in possession of a firearm
under 18 U.S.C. 922(g)(1). Caldwell contends that he is
entitled to a new trial because the District Court (1)
erroneously admitted evidence that he had two prior
convictions for unlawful firearm possession and (2)
2

improperly excluded a third-partys out-of-court

statement admitting responsibility for the offense.
Because we conclude that admission of Caldwells prior
convictions was improper, we will vacate the judgment
of the District Court and remand for further proceedings.
I.
On January 24, 2012, at approximately 11:45 p.m.,
three detectives with the Pittsburgh Police Department
Judd Emery, Robert Smith, and Mark Adametzwere on
patrol in an unmarked police cruiser near the Northview
Heights housing projects. 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 Tigneys
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 Tigneys legs. Emery then directed
Caldwell and Tigney to get on the ground, and the other
detectives placed them in handcuffs. As he was being
3

placed in custody, Caldwell emphatically insisted that he

was not the one who had been holding the gun,
exclaiming: Thats not my gun. You didnt see me with
a gun. App. 402.
Detective Smith, who was sitting in the front
passenger seat at the time of the encounter, testified that
he saw Caldwell brandish the weapon and later release
the gun behind Tigneys back. Detective Adametz, who
was seated in the rear passenger seat, testified that he
could not see the gun in Caldwells hands because
Caldwells arm was obstructed by Tigneys body.
However, he stated that both of Tigneys hands were
visible and empty when the gun fell to the ground.
Caldwell provided his identity to the detectives,
and a records search revealed that he had a prior criminal
record. After discovering that Caldwell was a convicted
felon who was not permitted to possess a firearm, the
detectives transported him to the Allegheny County Jail
for processing. Tigney, on the other hand, identified
himself as Shakur Jackson. The detectives, unaware
that Tigney had falsely identified himself, released him
into the custody of a woman who claimed to be his aunt
after they determined that Shakur Jackson did not have
a criminal record.
Caldwell was charged under 18 U.S.C. 922(g)(1)
with possession of a firearm by a convicted felon. On
April 16, 2012, shortly after that charge was filed, Tigney
4

contacted Caldwells defense counsel and claimed that he

(Tigney) was the one who had possessed the firearm the
evening of Caldwells arrest and that he intended to turn
himself in to prosecutors. During a follow-up interview
with a defense investigator, Tigney asserted that the gun
had fallen from his pants and that Caldwell did not know
about the gun. Tigney also admitted that he lied to the
officers about his identity. After providing this statement
to Caldwells defense team, Tigney retained independent
counsel and asserted his Fifth Amendment privilege not
to testify.
The case against Caldwell proceeded to trial on
November 14, 2012. The result was a mistrial after a jury
was unable to reach a verdict. United States v. Caldwell,
No 2:12-cr-0111 (W.D. Pa.), Docket Nos. 72, 112. A
second trial commenced on December 4, 2012. This time,
the jury returned a verdict finding Caldwell guilty of the
922(g)(1) offense.1
Caldwells theory at trial was that Tigneyand
1

Although the second trial is the operative proceeding

for purposes of this appeal, the parties and the District Court
repeatedly referenced and incorporated remarks from the
earlier proceeding when arguing the evidentiary questions at
the second trial. Accordingly, we consider the jointly
submitted portions of the record from both the first
proceeding as well as the second trial.
5

only Tigneypossessed the gun on the evening of his

arrest. In support of this claim, Caldwell repeatedly
emphasized that Tigney provided a false name to the
detectives at the scene, and that this indicated a
consciousness of guilt. Caldwell also sought to admit, as
a statement against interest, Tigneys out-of-court
admission to defense investigators that he had possessed
the gun. The District Court initially granted Caldwells
motion in limine requesting that he be allowed to
introduce Tigneys statement. On the Governments
motion for reconsideration, however, the Court changed
its decision on the morning of the first trial, holding that
the statement lacked the corroborating circumstances
necessary to satisfy Federal Rule of Evidence 804(b)(3).
On the morning of the second trial, prosecutors informed
the Court and defense counsel that Tigney had recanted
his earlier admission. Noting that Tigneys decision to
disavow his prior statement bolstered its ruling from the
first proceeding, the Court again held the statement to be
inadmissible.
In addition to arguing that Tigney possessed the
firearm, Caldwell sought to impeach the credibility of the
testifying detectives. Caldwell theorized that the
detectives targeted him rather than Tigney as the
possessor of the gun because he had a prior felony
conviction, thus subjecting him to federal charges,
whereas Tigney, a juvenile, was subject to only an
adjudication of delinquency. Caldwell also pointed out
6

that, despite having done so in other cases, investigators

never sought to obtain surveillance footage of the
Northview Heights scene of his encounter with police
from the Housing Authority. Such evidence, he
maintained, would have shown that Tigney possessed the
gun.
Caldwell testified in his defense at both trials. He
claimed that, at the time he was stopped by the
detectives, he was holding a cell phone in his handnot
a gunand was talking to his girlfriend, Tiffany Dungan.
Dungan corroborated this claim by testifying that she was
on the phone with Caldwell when the police stopped him.
She also presented phone records showing that, around
the time of the arrest, she participated in a seventeen
minute phone call with a number that she claimed
belonged to Caldwell. Caldwell also offered the
testimony of a bystander, Manly Banks, who stated that
he witnessed an officer take a cell phone out of
Caldwells hand and hang up the phone.
In the course of cross-examining Caldwell during
the first trial, the Government sought to introduce, under
both Rule 404(b) and Rule 609(a)(1)(B) of the Federal
Rules of Evidence, two prior convictions for unlawful
firearm possession. One of Caldwells priors was a
federal conviction for possession of a firearm by a
convicted felonthe very offense for which he was

being tried.2 With respect to Rule 404(b), the

Government argued the evidence was admissible to show
knowledge and absence of mistake or accident. App.
313. Caldwells counsel countered that absence of
mistake and knowledge were irrelevant because the only
issue in the case was whether Caldwell actually
possessed the gun. Indeed, he conceded that [w]hoever
possessed [the gun] knew it.3 App. 317.
The District Court was initially skeptical of the
Governments claim that the evidence was admissible
under Rule 404(b). See App. 313 (What do you think he
said that would make it more than propensity evidence?
What do you think he says that goes to knowledge and
2

Caldwell filed pretrial motions in limine in advance of

both trials seeking to exclude evidence of his prior
convictions. In both instances, the District Court denied the
motions as premature, noting its intention to rule on the
admissibility of [the] evidence at trial after considering its
factual context. App. 72; see also App. 35152.
3

This statement was consistent with Caldwells position

throughout both trials. See App. 119 (offering to stipulate
that whoever possessed the firearm on January 24, 2012 also
had the requisite knowledge and intent to possess that
firearm); App. 60001 (arguing to the jury at closing that
whoever possessed that gun had the knowledge that it was a
gun and intended to possess it. Its who possessed it [that] is
the question. Not knowledge and intent).
8

intent? Hes saying he never had a gun. . . . Hes not

saying I had it and it was somebody elses.). After a
short recess, however, the Court ruled in favor of the
Government: [I]n terms of 404(b) evidence, I agree with
the government that knowledge and intent is an issue
here and I am going to allow [the prosecutor] to question
Mr. Caldwell about his prior convictions for firearm
violations. App. 31819. The Court continued:
I understand its prejudicial, but when you
have a situation where this is a complete
credibility determination, Mr. Caldwell has
testified in a manner diametrically opposed
to those of the police officers and I do
believe it is probative for knowledge and
intent and that that probative value
outweighs the prejudicial effect, which I
acknowledge is prejudicial.
App. 319. Defense counsel immediately objected to the
Courts reference to Caldwells credibility, which is
generally not a concern in the 404(b) inquiry. This, in
turn, prompted the Court to clarify its position: So the
record is clear, Im not saying . . . it is admissible for
credibility. Im saying its admissible for knowledge and
intent . . . . App. 31920.
This review process was more streamlined when
the second trial took place. The Government again sought
to introduce Caldwells prior convictions during cross9

examination. But instead of explaining the basis for

admissibility, the prosecutor simply asked for a ruling
on which convictions . . . would be permissible for the
Government to inquire as to the Defendant about. App.
525. Recalling the Governments proffer and arguments
from the previous trial, the Court again ruled the
evidence was admissible:
I know what your arguments are, not only
because Ive heard them before, but because
theyve been incorporated into your written
submissions. . . . [O]n the prior convictions
for illegal possession of firearms, when the
Defendant, as here, is charged with a
specific intent crime, the knowing
possession of a firearm unlawfully, the
Government may present other acts or
evidence to prove intent and knowledge, and
I find that Mr. Caldwell has put his
knowledge and intent to possess a firearm at
issue by claiming innocence.
App. 52526. The Court then discussed Rule 403
balancing, stating not only are [Caldwells prior
convictions] admissible under 404(b), but because
knowledge and intent are at issue here, they are more
probative than prejudicial. I find that the probative value
outweighs any prejudicial effect as well as to their

10

admissibility.4 App. 527.

At the close of the second trial, the jury returned a
verdict convicting Caldwell of the charged offense. The
District Court sentenced Caldwell to 77 months in prison
and three years of supervised release. Caldwell timely
filed this appeal.5
II.
Caldwells primary argument is that the District
Court erred in admitting his two prior convictions for
unlawful weapons possession. We review a district
courts evidentiary rulings for an abuse of discretion.
United States v. Green, 617 F.3d 233, 239 (3d Cir. 2010).
We exercise plenary review, however, of [the district
courts] rulings to the extent they are based on a legal
interpretation of the Federal Rules of Evidence. Id.
(quoting Complaint of Consolidation Coal Co., 123 F.3d
126, 131 (3d Cir. 1997)). This includes plenary review
over whether evidence falls within the scope of Rule
404(b). United States v. Smith, 725 F.3d 340, 34445
(3d Cir. 2013) (quoting Green, 617 F.3d at 239).
4

The Court initially neglected to balance the probative

value against the prejudicial effect, but later conducted the
Rule 403 balancing after the Government requested that the
test be made explicit [f]or the record. App. 526.
5

The District Court had jurisdiction under 18 U.S.C.

3231, and we have jurisdiction under 28 U.S.C 1291.
11

We have repeatedly emphasized that Rule 404(b)

must be applied with careful precision, and that evidence
of a defendants prior bad acts is not to be admitted
unless both the proponent and the District Court plainly
identify a proper, non-propensity purpose for its
admission. See United States v. Davis, 726 F.3d 434, 442
(3d Cir. 2013) (citing United States v. Sampson, 980 F.2d
883, 887 (3d Cir. 1992)). For the reasons discussed
below, we conclude the evidence of Caldwells prior
convictions was not admitted for a proper purpose.
A.
It is indisputable that evidence of Caldwells prior
convictions satisfies Rule 401s definition of relevant
evidence, at least to the extent a criminal defendants
prior offenses make it more likely he would commit the
same crime again. As our Supreme Court long ago
explained, logically speaking, it is quite clear that an
antecedent bad character would form quite as reasonable
a ground for the presumption and probability of guilt as a
previous good character lays the foundation of
innocence. Michelson v. United States, 335 U.S. 469,
476 n.9 (1948) (citation omitted); see also 1 Wigmore on
Evidence 55 (3d ed. 1940) (A defendants character,
then, as indicating the probability of his doing or not
doing the act charged, is essentially relevant.).
Yet notwithstanding the logical relevance of this
evidence, Rule 404(b) provides that [e]vidence of a
12

crime, wrong, or other act is not admissible to prove a

persons character in order to show that on a particular
occasion the person acted in accordance with the
character. Fed. R. Evid. 404(b)(1). This rule reflects the
longstanding concern that evidence of prior bad acts,
when offered only to show the defendants propensity to
commit the charged crime, is said to weigh too much
with the jury and to so overpersuade them as to prejudice
one with a bad general record and deny him a fair
opportunity to defend against a particular charge.
Sampson, 980 F.2d at 886 (quoting Michelson, 335 U.S.
at 475).
Derived from English common law, Rule 404(b)s
instruction that prior criminal acts are not admissible to
show a defendants propensity to commit the charged
offense is now well-entrenched in our American
jurisprudence. But such prior act evidence was not
always prohibited. Indeed, early English courts did not
recognize a rule excluding evidence of prior bad acts, and
instead evaluated the admissibility of such acts according
to the ordinary test of relevance. See Julius Stone, The
Rule of Exclusion of Similar Fact Evidence: England, 46
Harv. L. Rev. 954, 95859 (1933). Prior act evidence
was easily admissible under this approach, even if the
only theory of relevance was to establish the defendants
character and, in turn, use character as circumstantial
proof of conduct. 1 Edward J. Imwinkelried, Uncharged
Misconduct Evidence 2:25 (2009).
13

Over time, however, courts and commentators

came to appreciate the uniquely prejudicial impact that
prior bad act evidence has on a jury. By the turn of the
nineteenth century, British and American courts were in
agreement that prior act evidence introduced for the
limited purpose of showing a defendants propensity to
commit the charged offense should be excluded. Stone,
supra, at 958. The evidence in question, however, could
still be introduced if [it] was relevant for any purpose
other than, or in addition to, a suggestion of a general
propensity to commit the [charged] crimes. Kenneth J.
Melilli, The Character Evidence Rule Revisited, 1998
B.Y.U. L. Rev. 1547, 1558 (1998). Non-propensity
purposes for which evidence was admitted included, inter
alia, proof of knowledge, intent, motive, and identity.
Stone, supra, at 966.
Throughout the nineteenth century and into the
twentieth, American courts differed as to whether the
common law rule was exclusionary or inclusionary.
Davis, 726 F.3d at 441 (citing United States v. Long, 574
F.2d 761, 76566 (3d Cir. 1978)). Both of these
descriptors can be misleading. To be sure, no one
doubted that evidence relevant only for the limited
purpose of showing a defendants general propensity to
commit the charged offense was inadmissible. Instead,
the debate concerned whether the list of previously
recognized non-propensity purposes was exhaustive (or
exclusive), or whether any non-propensity purpose,
14

even if not previously recognized, could support

admission of the prior act evidence (the inclusive
approach). See David P. Leonard, The New Wigmore:
Evidence of Other Misconduct and Similar Events 4.3.2,
at 224 (2009) ([T]he real question . . . is whether the
courts actually confine admissibility to a set of
enumerated purposes.).
The matter was settled in 1975 with the adoption
of the Federal Rules of Evidence. After noting its general
prohibition on prior act evidence to prove a persons
character, the text of new Rule 404(b)(2) provided that
prior act evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. Fed. R. Evid. 404(b)(2)
(emphasis added). By introducing the list of permissible
purposes with the words such as, the drafters made
clear that the list was not exclusive or otherwise limited
to a strictly defined class.
We have on occasion noted that Rule 404(b)
adopted an inclusionary approach. See, e.g., Davis, 726
F.3d at 441. Our use of the term inclusionary merely
reiterates the drafters decision to not restrict the nonpropensity uses of evidence. It does not suggest that prior
offense evidence is presumptively admissible. On this
point, let us be clear: Rule 404(b) is a rule of general
exclusion, and carries with it no presumption of
admissibility. 1 Christopher B. Mueller & Laird C.
15

Kirkpatrick, Federal Evidence 4:28, at 731 (4th ed.

2013) [hereinafter Mueller, Federal Evidence]. The Rule
reflects the revered and longstanding policy that, under
our system of justice, an accused is tried for what he did,
not who he is. And in recognition that prior offense
evidence is generally more prejudicial than probative,
Rule 404(b) directs that evidence of prior bad acts be
excludedunless the proponent can demonstrate that the
evidence is admissible for a non-propensity purpose.
The permitted uses of prior act evidence set forth
in Rule 404(b)(2) are treated like exceptions to this rule
of exclusion. As is generally the case with exceptions, the
party seeking to admit evidence under Rule 404(b)(2)
bears the burden of demonstrating its applicability. Our
opinions have repeatedly and consistently emphasized
that the burden of identifying a proper purpose rests with
the proponent of the evidence, usually the government.
See, e.g., Davis, 726 F.3d at 442 (discussing proponents
burden to identify a proper purpose and explain how the
proffered evidence is relevant to that purpose); Sampson,
980 F.2d at 887 (same). This hurdle is not
insurmountable, but it must be satisfied before the
exception can be invoked.
There are four distinct steps that must be taken
before evidence is admissible for a non-propensity
purpose under Rule 404(b)(2). First, the proponent must
identify a proper 404(b) purpose for admission (such as
knowledge or intent) that is at issue in, or relevant to,
16

the case. In evaluating whether an identified purpose is

at issue, courts should consider the material issues and
facts the government must prove to obtain a conviction.
Sampson, 980 F.2d at 888. We stress that a proponents
incantation of the proper uses of [prior act] evidence . . .
does not magically transform inadmissible evidence into
admissible evidence. United States v. Morley, 199 F.3d
129, 133 (3d Cir. 1999). Rather, the proponent must
identify a specific purpose that is of consequence in
determining the action. Fed. R. Evid. 401(b).
Once the proponent identifies a non-propensity
purpose that is at issue in the case, the proponent must
next explain how the evidence is relevant to that purpose.
This step is crucial. The task is not merely to find a
pigeonhole in which the proof might fit, but to actually
demonstrate that the evidence prove[s] something other
than propensity.6 Mueller, Federal Evidence 4:28, at
731.
As we have frequently stated, [i]n proffering such
evidence, the government must explain how it fits into a
6

We emphasize that steps one and two are distinct

inquiries. The first step requires the proponent to identify a
proper purpose that is pertinent to the case, whereas the
second step requires the evidence tend to establish the
identified purpose. Both must be satisfied before evidence
may be admitted under Rule 404(b).
17

chain of inferencesa chain that connects the evidence

to a proper purpose, no link of which is a forbidden
propensity inference. Davis, 726 F.3d at 442 (citing
Sampson, 980 F.2d at 887). Despite our repeated
instructions in this area, some proponents of Rule 404(b)
evidence still fail to follow this course. See United States
v. Givan, 320 F.3d 452, 466 (3d Cir. 2003) (McKee, J.,
dissenting) (stating that the directive to articulate how
proffered evidence is relevant for a non-propensity
purpose is so often honored in the breach that it
resonates about as loudly as the proverbial tree that no
one heard fall in the forest). To be sure, the proffered
evidence must be excluded if the proponent neglects or is
unable to articulate this chain of inferences, and failure to
exclude such evidence constitutes reversible error. See
Sampson, 980 F.2d at 888.
To ensure that protections afforded by Rule 404(b)
are not ignored, we also require care and precision by the
district court in ruling on the admission of prior act
evidence for a non-propensity purpose. The district
court, if it admits the evidence, must in the first instance,
rather than the appellate court in retrospect, articulate
reasons why the evidence also goes to show something
other than character. Sampson, 980 F.2d at 888. The
reasoning should be detailed and on the record; a mere
recitation of the purposes in Rule 404(b)(2) is
insufficient. Davis, 726 F.3d at 442.
In reviewing a proffer of relevance, the court
18

should remain mindful that [r]elevance is not an

inherent characteristic of the purposes under Rule
404(b). Sampson, 980 F.2d at 888 (citation omitted).
Indeed, evidence that may be relevant for some
purposes may be irrelevant for the purpose for which it is
offered, or only relevant in some impermissible way.
Morley, 199 F.3d at 133. Relevance is a relationship
between the evidence and a material fact at issue which
must be demonstrated by reasonable inferences that make
a material fact more probable or less probable than it
would be without the evidence. Sampson, 980 F.2d at
888. That is why our decisions are so emphatic in
requiring the proponent and the trial judge to articulate,
with precision, a chain of inferences that does not contain
a propensity link.
Importantly, the district courts job is not complete
once it finds the proponent has shown that the evidence is
relevant for a proper, non-propensity purpose. Under the
third step of our analysis, the court must evaluate
pursuant to Rule 403 whether the evidence is sufficiently
probative, such that its probative value is not outweighed
by the inherently prejudicial nature of prior bad act
evidence. Sampson, 980 F.2d at 889 (reversing because
Rule 403 balancing not apparent from the record); Smith,
725 F.3d at 349 (same). This balancing requires great
care on the part of the district court, because few
categories of evidence bring greater risk of prejudice to
the accused under Rule 403. Mueller, Federal Evidence
19

 4:28, at 731.
Finally, and if the defendant requests it, the court
must provide a limiting instruction, which advises the
jury that the evidence is admissible for a limited purpose
and may not be considered in another manner. Davis, 726
F.3d at 445. If such a request is made, the court should
provide the instruction at the time the evidence is
admitted. Id.
To summarize, Rule 404(b) provides that prior act
evidence is inadmissible unless the evidence is (1)
offered for a proper non-propensity purpose that is at
issue in the case; (2) relevant to that identified purpose;
(3) sufficiently probative under Rule 403 such that its
probative value is not outweighed by any inherent danger
of unfair prejudice; and (4) accompanied by a limiting
instruction, if requested. Davis, 726 F.3d at 441 (citing
United States v. Huddleston, 485 U.S. 681, 69192
(1988). With these principles in mind, we turn to whether
the evidence of Caldwells prior convictions was
properly admitted. We address the four factors seriatim.
B.
(1)
We first consider whether the government offered
Caldwells prior convictions for an acceptable, nonpropensity purposei.e., one that is at issue in, or
20

relevant to, the prosecution. At trial, the government

argued that the evidence was admissible to show
knowledge and absence of mistake or accident. App.
313. The District Court ultimately concluded the
evidence was admissible to prove intent and
knowledge, because Caldwell put his knowledge and
intent to possess a firearm at issue by claiming
innocence. App. 52526. Because knowledge was the
only purpose mentioned by both the Government and the
Court, we focus on whether that was a permissible
purpose under Rule 404(b).7
7

The District Court correctly refused to admit the prior

act evidence to show absence of mistake or accident
because this Rule 404(b) purpose was not at issue in the case.
The Government did not present any reason why it would
have been necessary to prove that Caldwells possession was
not accidental, nor did Caldwell contend that he mistakenly
possessed the gun. The other purpose mentioned by the
Courtintentis likewise a non-issue. Caldwell was
charged under 18 U.S.C. 922(g)(1), which makes it
unlawful for a convicted felon to knowingly possess a
firearm. United States v. Huet, 665 F.3d 588, 596 (3d Cir.
2012), cert. denied, 133 S. Ct. 422 (2012). The Government
was not required to prove that Caldwell intentionally
possessed the gun. Nor did Caldwell contend that he lacked
such intent. See United States v. Linares, 367 F.3d 941, 948
(D.C. Cir. 2004) (holding prior act evidence not admissible to
show intent in a trial for unlawful firearm possession by
convicted felon because 922(g)(1) does not require
21

In determining whether an identified purpose is at

issue in a case, we begin by considering the material
issues and facts the government must prove to obtain a
conviction. Sampson, 980 F.2d at 888. We have
explained that the government must . . . proffer a logical
chain of inference[s] consistent with its theory of the
case. Id. (emphasis added). This makes sense in light of
the definition of relevant evidence. Evidence is relevant
if it has a tendency to make more or less probable a fact
that is of consequence in determining the action. Fed.
R. Evid. 401(b) (emphasis added).
The Government charged Caldwell with violating
18 U.S.C. 922(g)(1), which makes it unlawful for a
convicted felon to knowingly possess[] [a] firearm.
United States v. Huet, 665 F.3d 588, 596 (3d Cir. 2012),
cert. denied, 133 S. Ct. 422 (2012). The government can
prove possession of a firearm for purposes of 922(g)(1)
in two ways: (1) by showing that the defendant exercised
direct physical control over the weapon (actual
possession), or (2) by showing that he exercised
dominion or control over the area in which the weapon
was found (constructive possession). See United States v.
Jones, 484 F.3d 783, 788 (5th Cir. 2007). At trial, the
prosecution offered evidence that two detectives directly
observed Caldwell physically remove the gun from his
government to prove intentional possession). Accordingly, we
reject both of these purposes as grounds for admitting the
evidence under Rule 404(b).
22

waistband and hold it behind Tigneys back. A third

detective testified that he observed conduct consistent
with this version of events. There was no contention that
Caldwell exercised dominion over an area where the gun
was later found. Rather, the Governments theory was
purely one of actual possession, and the jury was
accordingly instructed only on this theory. App. 555
(instructing the jury that [t]he term possess means to
exercise authority, dominion or control over an object,
and making no mention of control over an area where an
object was found).
Because the Government proceeded solely on a
theory of actual possession, we hold that Caldwells
knowledge was not at issue in the case. Although 18
U.S.C. 922(g)(1) criminalizes the knowing
possession of a firearm by a convicted felon, a
defendants knowledge is almost never a material issue
when the government relies exclusively on a theory of
actual possession. Indeed, absent unusual circumstances
(such as when a defendant claims he did not realize the
object in his hand was a gun), the knowledge element in
a felon-in-possession case will necessarily be satisfied if
the jury finds the defendant physically possessed the
firearm. See United States v. Linares, 367 F.3d 941, 946
47 (D.C. Cir. 2004) (stating that no reasonable jury in an
actual possession case would acquit a defendant based
on the belief that the government proved possession but
failed to prove knowledge). This is true here, and
23

Caldwell conceded as much. His counsel repeatedly

noted that if the jury found that Caldwell possessed the
gun, then it must also find that his possession was
knowing.8
In United States v. Lee, 612 F.3d 170 (3d Cir.
2010), we recognized that, in a trial for a violation of
922(g)(1), knowledge and intent are not proper 404(b)
purposes where the prosecution is based on the
defendants actual possession of the firearm. The
defendant in Lee was pulled over pursuant to a routine
traffic stop. While approaching Lees window, the officer
scanned the back seat and observed a large black coat
that appeared to be wrapped around a long narrow object.
Id. at 174. Immediately suspicious, the officer
commanded Lee to raise his hands, but instead, Lee
drove off. Id. Investigators later found the black coat and
an AK-47 assault rifle about a mile down the road near
where Lee abandoned his vehicle. Id. at 175. At trial, Lee
8

See App. 119 (offering to stipulate that whoever

possessed the firearm on January 24, 2012 also had the
requisite knowledge and intent to possess that firearm); App.
317 (arguing that knowledge was not at issue because
[w]hoever possessed [the gun] knew it.); App. 60001
(stating in closing arguments that whoever possessed that
gun had the knowledge that it was a gun and intended to
possess it. Its who possessed it [that] is the question. Not
knowledge and intent.).
24

denied possessing the firearm, claiming that it was never

in his vehicle and that he was not the person who
disposed of it. Id. at 176. Over the defenses objection,
the district court admitted, as relevant to Lees
knowledge and intent, statements that he made to
investigators, including that he had access to a lot of
guns and would use them against anyone who threatens
him or his family. Id. On appeal, we held that these
statements were not admissible to show Lees
knowledge:
Lees trial . . . was not about whether he
knew that he had a rifle in the back seat of
his Jeep. There was no question of accident
or mistake. Rather, Lees defense was
simply that there was no rifle in his Jeep and
that the rifle recovered at the Apartments
was not his.
....
. . . Lee has not put knowledge at issue. Lee
is not arguing that he did not know there
was a rifle in his back seat. His argument is
a straightforward denial that any gun was
there.

Id. at 18687. Because Lees knowledge was not at issue

25

in the case, we concluded that knowledge was not a

proper Rule 404(b) purpose for admitting the statements.9
Id.; see also Lee, 612 F.3d at 200 (Rendell, J., dissenting)
(agreeing with majoritys conclusion that the knowledge
and intent rationales for admitting the statements [about
guns] do not hold water).
Our sister circuits that have considered this
question agree that knowledge is generally not at issue in
a prosecution under 922(g)(1) where the government
claims the defendant actually possessed the gun. In
United States v. Linares, the defendant was prosecuted
for being a felon in possession of a firearm based on
three eye witness accounts that he fired a gun from the
window of his car and later tossed it away. 367 F.3d at
944. Over objection, the district court permitted the
government to introduce evidence of Linaress prior
conviction for unlawful firearm possession in order to
show his intent, knowledge, and absence of mistake.
Id. at 946. On appeal, the D.C. Circuit concluded the
evidence was erroneously admitted. The court explained:
If the jury believed these eyewitnesses, then Linares
9

The majority ultimately concluded the statements were

admissible for another Rule 404(b) purpose: motive. United
States v. Lee, 612 F.3d at 189. The Government has not
offered motive as a proper purpose in this case, nor is there a
colorable argument for admitting Caldwells prior convictions
to show motive to possess the gun found at the scene.
26

possessed the gun knowingly; if it did not, then it should

have acquitted based on the governments failure to
prove possession rather than its failure to prove
knowledge. Id. Left with this disjunctive choice between
actual possession or no possession, the court held the
evidence was inadmissible because no reasonable jury
could have concluded that the defendant possessed a
firearm either unknowingly or mistakenly.10 Id. at 950.
Similarly, in United States v. Jones, the Fifth
Circuit concluded that knowledge was not a proper
404(b) purpose where the governments case was
premised on a theory of actual possession. A New
Orleans police officer witnessed Jones remove a gun
from his waistband and place it under a house. Jones, 484
F.3d at 785. Jones claimed he never possessed the
weapon. Id. Over Joness objection, the district court
permitted the government to introduce evidence that he
had previously been convicted of the same offense. Id. In
reversing the conviction, the Fifth Circuit explained that,
unlike constructive possession cases where knowledge
and intent are frequently at issue, actual possession
cases require the government to show only that the
defendant was aware that he physically possessed the
gun. Id. at 788. After concluding that the governments
10

Despite concluding the evidence was improperly

admitted, the court upheld Linaress conviction because it
concluded the error was harmless. Linares, 367 F.3d at 953.
27

case relied on an actual possession theory, see id. at 790

(rejecting the constructive possession theory because
Jones did not own, rent, occupy, or otherwise exercise
any dominion over the house underneath which the gun
was recovered), the court held that knowledge was not a
proper basis for admitting the evidence. Id.
The record here suggests that the able District
Judge initially understood these principles and
recognized that Caldwells knowledge was not a material
issue since the only disputed fact was whether he actually
possessed the gun. The Court even noted that knowledge
might be at issue in a constructive possession kind of
situation, app. 314, but not where Caldwell was saying
he never had a gun. App. 313. Yet despite starting in the
right direction, the Court ultimately changed course,
concluding that Caldwell put his knowledge . . . at issue
by claiming innocence. App. 526. Based on the
principles we have recited above, this decision was
incorrect.
Finally, we believe it necessary to address the
District Courts suggestion that Caldwell put his
knowledge at issue by claiming innocence. It is unclear
whether the District Court understood Caldwell to have
claimed innocence by testifying at trial, or more
broadly by pleading not guilty. Either way, we believe
this line of reasoning is improper.
Situations may indeed arise where the content of a
28

defendants trial testimony transforms a previously

irrelevant 404(b) purpose into a material issue in a case.
For example, if Caldwell had testified that he thought the
object in his hand was something other than a gun, then it
would immediately become critical for the prosecution to
rebut his claim of mistake and to show his knowledge of
the true nature of the thing possessed. We disagree,
however, with the proposition that, merely by denying
guilt of an offense with a knowledge-based mens rea, a
defendant opens the door to admissibility of prior
convictions of the same crime. Such a holding would
eviscerate Rule 404(b)s protection and completely
swallow the general rule against admission of prior bad
acts. See United States v. Miller, 673 F.3d 688, 697 (7th
Cir. 2012) (citing United States v. Hicks, 635 F.3d 1063,
1071 (7th Cir. 2011)) (explaining that if a mere claim of
innocence were enough to automatically put intent at
issue, the resulting exception would swallow the general
rule against admission of prior bad acts). Accordingly,
we reject the suggestion that claiming innocence is
sufficient to place knowledge at issue for purposes of
Rule 404(b).
Based on the foregoing reasons, we conclude that
knowledge was not at issue in this case and, thus, was not
a proper basis for admitting evidence of Caldwells prior
convictions.
(2)
29

We also conclude that the Government failed to

satisfy the second step of the 404(b) inquiry which
requires that it show that the proffered evidence is
actually relevant to the identified non-propensity
purpose. In proffering [prior act] evidence, the
government must explain how [the evidence] fits into a
chain of inferencesa chain that connects the evidence
to a proper purpose, no link of which is a forbidden
propensity inference. Davis, 726 F.3d at 442 (citing
Sampson, 980 F.2d at 887). We require that this chain be
articulated with careful precision because, even when a
non-propensity purpose is at issue in a case, the
evidence offered may be completely irrelevant to that
purpose, or relevant only in an impermissible way.
The Government argues that Caldwells prior
convictions are relevant to show his knowledge, yet it has
failed to satisfactorily explain why this is so. There is in
the record no articulation by the Government of a logical
chain of inferences showing how Caldwells prior
convictions are relevant to show his knowledge. Nor does
the Government present such a chain of logical
inferences in its argument on appeal. Instead, the
Government repeatedly returns to its baseline position
that the evidence is generally relevant to show Caldwells
knowledge that he possessed the gun. This tells us
nothing about how the evidence accomplishes this task,
and is insufficient to secure admission under Rule 404(b).
The record reveals that the District Court likewise
30

failed to articulate how the disputed evidence tends to

show that Caldwell knowingly possessed the gun. During
the first trial, the District Court connected the
admissibility of the evidence to Caldwells credibility as
a witness, stating that because this is a complete
credibility determination . . . [the evidence] is probative
for knowledge. App. 319. We fail to see what bearing
Caldwells credibility as a trial witness has on whether he
knowingly possessed a gun the evening of the stop.
Caldwells prior convictions may tend to impeach his
credibility as a witness, but the admissibility of evidence
for impeachment purposes is an entirely distinct question
from its admissibility under 404(b).11
Perhaps recognizing that credibility was another
matter entirely, the District Court provided a different
rationale for admitting the evidence in the second trial.
The Court explained that, because the charged offense
was the knowing possession of a firearm . . . , the
Government may present other acts or evidence to prove
. . . knowledge. App. 52526. We have already
expressed our disagreement with the suggestion that
knowledge was at issue in this case. Aside from that,
however, the Courts statement still does not explain how
the evidence tends to prove Caldwells knowledge that he
possessed the gun. Again, we emphasize that it is not
11

We address the admissibility of the evidence for

impeachment under Rule 609 in Part III, infra.
31

enough to merely recite a Rule 404(b) purpose that is at

issue; the Court must articulate how the evidence is
probative of that purpose.
The reason we require the proponent and the court
to articulate a logical chain of inferences connecting the
evidence to a non-propensity purpose is because we must
assure that the evidence is not susceptible to being used
improperly by the jury. Another way to frame this
requirement is to ask the prosecution to explain exactly
how the proffered evidence should work in the mind of a
juror to establish the fact the government claims to be
trying to prove. Miller, 673 F.3d at 699. Framed this
way, the flaw in the evidence proffered in this case
becomes apparent.
The prosecutions fundamental task was to prove
that Caldwell unlawfully possessed the gun recovered by
the detectives. Caldwells 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 Caldwells 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
32

404(b) forbids.
We can envision numerous scenarios where, with
slightly different facts, a proper, non-propensity chain
might be forged. For example, assume that Caldwells
knowledge was at issue because he claimed to have
believed the gun in his hand was a toy. Under this
hypothetical, the chain of inferences leading to the
admissibility of the evidence would be as follows:
Caldwell was twice previously convicted of unlawful
firearm possession; he is, thus, familiar with the touch
and feel of an authentic firearm; and because he knows
what a real firearm feels like, it is more likely that he
knew the gun in his hand on this occasion was a real
firearm.
Alternatively, assume the gun was discovered
inside a backpack that Caldwell was carrying, and that he
defended the charge by claiming the gun was placed
there without his knowledge. If the proffered evidence
consisted of eyewitness testimony that Caldwell
threatened another individual with a black handgun two
hours before his arrest, the chain of logical inferences
could be forged as follows: Caldwell possessed a black
handgun earlier that evening, therefore it is less likely
that a similar black handgun was unknowingly deposited
in his backpack.
Importantly, however, the chain of inferences in
this latter hypothetical may not necessarily extend to
33

permit the prosecution to introduce evidence of prior

convictions for unlawful gun possession, particularly
where those convictions involved different firearms and
are remote in time. As the Seventh Circuit explained, If
the prior possession was of a different gun, then its value
as direct or circumstantial evidence of the charged
possession drops and the likelihood that it is being used
to show propensity to possess guns rises considerably.
Similarly, as the prior possession is further removed in
time, it becomes less probative of possession on the date
charged. Miller, 673 F.3d at 695.
We engage in the foregoing exercise simply to
demonstrate why it is important that a district judge go
beyond the question of whether knowledge, or any other
non-propensity purpose, is directly at issue in a case. The
judge must also analytically consider whether the
proffered evidence does in fact tend to establish the fact
the proponent is trying to prove. The case before us
proves the point. The record suggests that once the
District Court concluded that knowledge was at issue, it
was content to allow any evidence offered for that
purpose. Yet had the Court been more exacting in
requiring the prosecution to articulate how Caldwells
2005 and 2006 firearms convictions tended to prove his
knowledge that he was holding this gun some seven years
later, it would have been clear that the evidentiary chain
cannot survive close scrutiny.
The Government was unable to articulate any
34

theory that united the prior convictions to Caldwells

knowledge on the night of his arrest. The evidence
provided the jury with nothing more than the ability to
draw inferences about Caldwells propensity to possess
guns. That evidence should not have been admitted.
(3)
We also conclude that the District Courts Rule
403 analysis did not provide the meaningful balancing
required by our precedent. Before prior act evidence may
be admitted under Rule 404(b), we require district courts
to balance the probative value of the proffered evidence
against its prejudicial effect under Rule 403. We will
reverse where the Courts reasoning is not apparent
from the record. Smith, 725 F.3d at 348 (quoting
Sampson, 980 F.2d at 889).
We are not required here to perform Rule 403
balancing because the proffered 404(b) purpose was not
at issue in the case, nor was the evidence probative of the
identified purpose. Nonetheless, in the interest of
providing guidance on this issue, we will explain why the
District Courts analysis fell short of the mark.
Even if Caldwells prior convictions were
probative of his knowledge (which they were not), the
probative value would, at best, be minimal. As already
explained, in a trial for unlawful firearm possession by a
convicted felon, a defendants knowledge is generally
35

subsumed within a finding that he physically possessed

the firearm. Accordingly, any value added by the prior
convictions on the issue of Caldwells knowledge would
be negligible.
Further, the probative value of prior act evidence is
diminished where the defendant does not contest the fact
for which supporting evidence has been offered. Such
was the case here. Caldwell conceded to the jury that
whoever possessed th[e] gun had the knowledge that it
was a gun and intended to possess it. App. 600. We do
not mean to suggest that the admissibility of evidence
under 404(b) is predicated on the manner in which the
defendant frames his defense. It is not. Sampson, 980
F.2d at 888 (Issues are not irrelevant just because the
defenses theory presupposes them to be so.).
Nevertheless, Rule 403 balancing may tilt in favor of
excluding highly prejudicial evidence when it is offered
to establish a fact that is completely uncontested by the
defendant.
On the other side of the scale, it is beyond cavil
that the evidence of Caldwells prior firearm convictions
was highly prejudicial. As the Advisory Committees
Note to Rule 404(a) explains, the prejudice associated
with character evidence is quite real:
Character evidence is of slight probative
value and may be very prejudicial. It tends
to distract the trier of fact from the main
36

question of what actually happened on the

particular occasion. It subtly permits the
trier of fact to reward the good man and to
punish the bad man because of their
respective characters despite what the
evidence in the case shows actually
happened.
Fed. R. Evid. 404(a) Advisory Committees Note; see
also Michelson, 335 U.S. at 476 (explaining that
character evidence is said to weigh too much with the
jury and to so overpersuade them as to prejudice one with
a bad general record and deny him a fair opportunity to
defend against a particular charge). The prejudicial
impact is only heightened when character evidence is
admitted in the form of a prior criminal conviction,
especially a prior conviction for the same crime as that
being tried. Of this fact, the Government is fully aware.
Although the government will hardly admit it, its
motive for introducing prior bad act evidence is often
mixed between an urge to show some other consequential
fact as well as to impugn the defendants character.
Sampson, 980 F.2d at 886.
Based on the record before us, we conclude that
the District Courts Rule 403 balancing does not reflect
the meaningful evaluation of these competing
considerations as required by our cases. As a preliminary
matter, the Court did not provide a Rule 403 balancing
until the Government requested it [f]or the record.
37

App. 526. Following this request, the Court gave the

following statement:
What I want to say is that not only are they
admissible under 404(b), but because
knowledge and intent are at issue here, they
are more probative than prejudicial. I find
that the probative value outweighs any
prejudicial effect as well as to their
admissibility.
App. 527. This statement is nothing more than a bare
recitation of Rule 403, with an added notation about the
Courts understanding that knowledge is at issue in the
case. The Court did not address the diminished probative
value of the evidence in light of the fact that the issue of
Caldwells knowledge was unchallenged. Nor did it
address the particularly prejudicial impact of introducing
evidence that Caldwell was previously convicted of the
identical crime for which he was then being tried.
When a court engages in a Rule 403 balancing
and articulates on the record a rational explanation, we
will rarely disturb its ruling. Sampson, 980 F.2d at 889.
But we cannot infer such a rational explanation where
the court merely recites the text of the rule. The
reasoning underlying the Courts Rule 403 balancing was
not apparent from the record. Smith, 725 F.3d at 348
(citation omitted). This omission provides an independent
ground for reversal.
38

C.
The Government maintains that, even if erroneous,
the admission of Caldwells prior convictions does not
warrant reversal because any error was harmless. The
test for harmless error is whether it is highly probable
that the error did not contribute to the judgment. United
States v. Cunningham, 694 F.3d 372, 39192 (3d Cir.
2012) (citations omitted). This [h]igh probability
requires that the court possess a sure conviction that the
error did not prejudice the defendant. Id. at 392.
To support its claim that the error was harmless,
the Government contends that the remainder of the
evidence offered against Caldwell was overwhelming,
noting that two detectives testified that they observed
Caldwell with the gun and no one was able to place the
gun in Tigneys hands. Though the prosecutions case
may have been strong, it does not provide us with a sure
conviction that the evidence of Caldwells prior
convictions did not contribute to the judgment.
This is not a case where the defendant declined to
offer a substantive defense and chose instead to hold the
government to its burden of proof. Rather, Caldwell
vigorously maintained his innocence throughout both
trials, testifying on his own behalf and introducing
witness testimony corroborating his claim that he held a
cell phone rather than a firearm. Caldwells theory that
Tigney possessed the firearm was bolstered by evidence
39

that Tigney provided the officers with a false name at the

time of the stop. He also managed to poke holes in the
Governments investigation, pointing out that it failed to
obtain available security surveillance tapes.
We are aware, of course, that the harmless error
question in this case is raised against the backdrop of an
earlier mistrial in which the jury was unable to agree
upon a verdict. Yet our conclusion that the error in this
case was not harmless is based solely on our review of
the record from the second trial. Our task is not to weigh
the evidence anew, but simply to determine whether it is
highly probable that the error did not contribute to the
judgment. Smith, 725 F.3d at 348 (quoting United States
v. Helbling, 209 F.3d 226, 241 (3d Cir. 2000)). Based on
the record before us, we cannot say the erroneously
admitted evidence was inconsequential to the verdict.
Accordingly, we are unable to find it harmless.
III.
The Government alternatively argues that the
evidence of Caldwells prior convictions was admissible
for impeachment purposes under Federal Rule of
Evidence 609(a)(1)(B). The Government preserved this
argument by proffering Rule 609 as a basis for admission
both in its pretrial filings and during trial. App. 66, 315,
525. Because the District Court found the evidence
admissible under Rule 404(b), it did not reach the
Governments alternative argument. See App. 31920
40

(So the record is clear, Im not saying it is . . .

admissible for credibility. Im saying its admissible for
knowledge and intent.).12 Although such circumstances
may be unusual, it is conceivable that evidence could be
excluded under Rule 404(b), yet admissible for
impeachment purposes under Rule 609.13 See 28 Charles
12

The Court did, however, explicitly decline to admit

several other prior convictions under Rule 609, including
cruelty to animals, criminal trespass, and heroin possession.
App. 319.
13

The Eight Circuit has cogently explained why this is

so:
[T]he respective rules operate in two completely
different situations. In a criminal setting,
evidence offered under Rule 404(b) is
substantive evidence against the accused, i.e., it
is part of the governments case offered to
prove his guilt beyond a reasonable doubt. Rule
609 evidence on the other hand has to do with
the accuseds ability to tell the truth when
testifying on his or her own behalf. While both
rules speak of probative value and
prejudice, it is critical to note that evidence
offered under the respective rules is probative
as to different matters. The probative character
of evidence under Rule 609 has to do with
credibility of a witness, while 404(b)
probativeness essentially goes to the question
41

Alan Wright & Victor James Gold, Federal Practice and

Procedure 6134, at 268 (2d ed. 2012) [hereinafter
Wright & Gold, Federal Practice and Procedure].
Accordingly, we consider whether Rule 609 provided an
alternative basis for admitting the evidence of Caldwells
prior convictions.
Rule 609 permits evidence of a prior felony
conviction to be offered to impeach a testifying witness.
However, when the testifying witness is also the
defendant in a criminal trial, the prior conviction is
admitted only if the probative value of the evidence
outweighs its prejudicial effect to that defendant. Fed.
R. Evid. 609(a)(1)(B). This reflects a heightened
balancing test and a reversal of the standard for
admission under Rule 403. Commentators have observed
that structuring the balancing in this manner creates a
predisposition toward exclusion. Wright & Gold,
Federal Practice and Procedure 6132, at 216. An
exception is made only where the prosecution shows that
the evidence makes a tangible contribution to the
of whether or not the accused committed the
crime charged. Any similarity or overlap in the
standards of admissibility under the respective
rules is irrelevant because the rules apply to
completely distinct situations.
United States v. Valencia, 61 F.3d 616, 619 (8th Cir. 1995).
42

evaluation of credibility and that the usual high risk of

unfair prejudice is not present. Id. 6132, at 217.
Our Court has recognized four factors that should
be considered when weighing the probative value against
the prejudicial effect under this heightened test. These
factors include: (1) the kind of crime involved; (2) when
the conviction occurred; (3) the importance of the
[defendants] testimony to the case; [and] (4) the
importance of the credibility of the defendant. Govt of
Virgin Islands v. Bedford, 671 F.2d 758, 761 n.4 (3d Cir.
1982).
When evaluating the first factorthe kind of
crime involvedcourts consider both the impeachment
value of the prior conviction as well as its similarity to
the charged crime. The impeachment value relates to how
probative the prior conviction is to the witnesss
character for truthfulness. 5 Jack B. Weinstein &
Margaret A. Berger, Weinsteins Federal Evidence
609.06[3][b] (2d ed. 2011) [hereinafter Weinsteins
Federal Evidence]. Crimes of violence generally have
lower probative value in weighing credibility, but may
still be admitted after balancing the other factors. In
contrast, crimes that by their nature imply some
dishonesty, such as theft, have greater impeachment
value and are significantly more likely to be admissible.
Id.

43

With respect to the similarity of the crime to the

offense charged, the balance tilts further toward
exclusion as the offered impeachment evidence becomes
more similar to the crime for which the defendant is
being tried. As the Fourth Circuit has explained:
Admission of evidence of a similar offense
often does little to impeach the credibility of
a testifying defendant while undoubtedly
prejudicing him. The jury, despite limiting
instructions, can hardly avoid drawing the
inference that the past conviction suggests
some probability that defendant committed
the similar offense for which he is currently
charged. The generally accepted view,
therefore, is that evidence of similar
offenses for impeachment purposes under
Rule 609 should be admitted sparingly if at
all.
United States v. Sanders, 964 F.2d 295, 29798 (4th Cir.
1992) (quoting United States v. Beahm, 664 F.2d 414,
41819 (4th Cir. 1981)); see also Weinsteins Federal
Evidence 609.05[3][d] ([P]rior convictions for the
same or similar crimes are admitted sparingly.); Wright
& Gold, Federal Practice and Procedure 6134, at 253
([T]he danger of unfair prejudice is enhanced if the
witness is the accused and the crime was similar to the
crime now charged, since this increases the risk that the
jury will draw an impermissible inference under Rule
44

404(a).); cf. United States v. Hans, 738 F.2d 88, 94 (3d

Cir. 1984) (finding that district court did not abuse its
discretion by excluding evidence of prior crime because
it was too similar to the charged offense).14

14

Some have suggested that the unfair prejudice of an

identical prior conviction can be reduced by permitting the
introduction of only the fact and date of conviction, but not
the nature of the crime. See United States v. Beahm, 664 F.2d
414, 419 (4th Cir. 1981) (stating that the district court should
have excluded the similar prior conviction or at the very
least limited disclosure to the fact of conviction without
revealing its nature). Circumstances may exist where
redacting the facts underlying the prior conviction in this
manner is a viable way to reduce the prejudicial effect of the
evidence. However, this approach may create other obstacles
to admission. There are many types of felonies, and not all
felony convictions strongly support the inference that the
defendant is untrustworthy. Thus, the probative value of a
prior felony conviction will be diminished where the jury is
not provided information about the prior conviction that
would help in evaluating the extent to which the offense
reflects on the defendants veracity as a trial witness.
Additionally, in a situation such as this onewhere the jury
is already aware that the defendant is a convicted felonthe
probative value is further diminished because introducing
only the fact that the defendant has a prior history of unlawful
behavior would not tell the jury anything it does not already
know.
45

The second factor is the age of the prior

conviction. Convictions more than ten years old are
presumptively excluded and must satisfy the special
balancing requirements in Rule 609(b) to overcome this
presumption. But even where the conviction is not
subject to the ten-year restriction, the passage of a
shorter period can still reduce [a prior convictions]
probative value. Wright & Gold, Federal Practice and
Procedure 6134, at 258. The age of a conviction may
weigh particularly in favor of exclusion where other
circumstances combine with the passage of time to
suggest a changed character. Id. For example, a prior
conviction may have less probative value where the
defendant-witness has maintained a spotless record since
the earlier conviction or where the prior conviction was a
mere youthful indiscretion. Conversely, the probative
value of an older conviction may remain undiminished if
the defendant was recently released from confinement or
has multiple intervening convictions, both of which could
suggest his character has not improved. See id. 6134, at
259 (collecting cases).
The third factor inquires into the importance of the
defendants testimony to his defense at trial. The tactical
need for the accused to testify on his or her own behalf
may militate against use of impeaching convictions. If it
is apparent to the trial court that the accused must testify
to refute strong prosecution evidence, then the court
should consider whether, by permitting conviction
46

impeachment, the court in effect prevents the accused

from testifying. Glenn Weissenberger & James J.
Duane, Weissenbergers Federal Evidence 609.2 (4th
ed. 2001); see also Weinsteins Federal Evidence
609.05[3][e] (A defendants decision about whether to
testify may be based in part on whether his prior
convictions will be admitted for impeachment purposes.
Thus, the fact that a defendants testimony is important to
demonstrate the validity of his or her defense constitutes
a factor weighing against the admission of a prior
conviction.). If, on the other hand, the defense can
establish the subject matter of the defendants testimony
by other means, the defendants testimony is less
necessary, so a prior conviction is more likely to be
admitted. Weinsteins Federal Evidence 609.05[3][e];
see also United States v. Causey, 9 F.3d 1341, 1344 (7th
Cir. 1993) (noting that prejudicial impact diminished
where defendant did not obviously need to testify to
raise his various defenses because several other defense
witnesses provided the same testimony).
The final factor concerns the significance of the
defendants credibility to the case. When the
defendants credibility is a central issue, this weighs in
favor of admitting a prior conviction. Weinsteins
Federal Evidence 609.05[3][f]. See United States v.
Johnson, 302 F.3d 139, 153 (3d Cir. 2002) (affirming
admission of prior conviction under Rule 609(a) because
the defendants credibility was important). Conversely,
47

the probative value of a defendants prior conviction may

be diminished where the witness testifies as to
inconsequential matters or facts that are conclusively
shown by other credible evidence. Wright & Gold,
Federal Practice and Procedure 6134, at 258.15

15

We acknowledge the tension between the related third

and fourth factors. See, e.g., Roger Park & Tom Lininger, The
New Wigmore: Impeachment and Rehabilitation 3.4.4.1.1.4
(2012) (There is a tension between these two factors.
Perhaps they cancel each other out.); Jeffrey Bellin,
Circumventing Congress: How the Federal Courts Opened
the Door to Impeaching Criminal Defendants with Prior
Convictions, 42 U.C. Davis L. Rev. 289, 318 (2008) (In
essence, the factors cancel each other out. To the extent a
defendants testimony is important (for example, if the
defendant is the key defense witness), his credibility becomes
central in equal degree, leading to a curious equipoise. . . .
Thus, [these] factors seem[] to have no practical significance
at all, existing in a rough state of equipoise that prevent[s]
either factor from impacting the overall impeachment
calculus.); Roderick Surratt, Prior-Conviction Impeachment
Under the Federal Rules of Evidence: A Suggested Approach
to Applying the Balancing Provision of Rule 609(a), 31
Syracuse L. Rev. 907, 943 & 945 (1980) (observing that it
appears that as one of these factors increases in importance in
a particular case, so does the other and there appears to be
no principled way to determine which factor should prevail).
Be that as it may, these factors have long been accepted as
independent components of the Rule 609(a)(1) balancing
48

After reviewing the record and the arguments

presented on appeal, we conclude that the Government
has failed to carry its burden of showing that the
probative value of Caldwells prior convictions
outweighs their prejudicial effect under Rule
609(a)(1)(B). The only factor the Government identified
in favor of admission is that Caldwells credibility was a
central feature of the case. We do not minimize this
point. At its core, this case was a he said, they said
battle between Caldwells version of events and that of
the detectives. See Wright & Gold, Federal Practice and
Procedure 6134, at 256 ([W]here a case is reduced to
a swearing contest between witnesses, the probative
value of conviction is increased.). But this single factor
is not enough to warrant admission of the prior
convictions where all others favor exclusion. Caldwells
prior state conviction was quite similar to the charged
offense, and his prior federal conviction was an identical
match. That made the priors highly prejudicial. At the
opposite end, the impeachment value of the prior
convictions is low because unlawful firearms convictions
do not, by their nature, imply a dishonest act. The
Government also failed to show that the probative value
of the evidence was not diminished by the passage of
more than six-and-a-half years. And finally, Caldwells
testimony was fundamentally important to his defense.
inquiry and we conclude that they should continue to inform
the district courts admissibility determination.
49

As already noted, the jury was required to choose

between Caldwells version of events and that provided
by the officers. Given the consistency of the officers
accounts, Caldwell would have taken a great risk by
failing to testify in his defense.
When offering a prior conviction to impeach a
testifying defendant, the government bears the burden of
satisfying the heightened balancing test set out in Rule
609(a)(1)(B). Based on our review of the record before
us, the Government failed to establish that the probative
value of the evidence outweighs its prejudicial effect.
Fed. R. Evid. 609(a)(1)(B). Accordingly, Rule 609 was
not a proper alternative basis for admitting Caldwells
prior convictions.16
IV.
Finally, Caldwell claims the District Court erred
by refusing to admit Tigneys out-of-court confession to
defense counsel as a statement against penal interests
under Rule 804(b)(3). We review a district courts
decision to admit or exclude evidence under Rule
804(b)(3) for abuse of discretion. United States v. Boyce,
849 F.2d 833, 837 n.3 (3d Cir. 1988).
16

Our determination that the Government did not satisfy

its heightened burden under Rule 609(a)(1)(B) in the previous
trial does not preclude it from attempting to satisfy this
burden in any subsequent proceeding.
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Rule 804(b)(3) provides an exception to the

general rule against the admission of hearsay statements
when a declarant is unavailable and his out-of-court
statement tends to subject him to criminal liability. Fed.
R. Evid. 804(b)(3)(A). There is, however, one caveat to
admission. Where the statement is offered to exculpate
the accused in a criminal trial, it must be supported by
corroborating circumstances that clearly indicate its
trustworthiness. Fed. R. Evid. 804(b)(3)(B). This
requirement reflects the concern that a third party with
less risk of prosecution will fabricate a confession to
exculpate the guilty party. See United States v. Guillette,
547 F.2d 743, 754 (2d Cir. 1976) (discussing the
inherent danger that third party confessions tending to
exculpate a defendant are the result of fabrication).
Importantly, the rule does not require that the
information within the statement be clearly corroborated;
it requires only that there be corroborating circumstances
that clearly indicate the trustworthiness of the statement
itself. Weinsteins Federal Evidence 804.06[5][b]
(second emphasis added); see also George E. Dix, et al.,
McCormick on Evidence 319 (7th ed. 2013)
(Significantly, the rule does not require that the
statements themselves be independently proved to be
accurate; rather it requires only that corroborating
circumstances indicate trustworthiness.).
We assess corroboration in light of the totality of
circumstances. See Boyce, 849 F.2d at 837. The Federal
51

Rules of Evidence do not describe the type of

corroborating circumstances that clearly indicate
trustworthiness, nor has our Court expounded on this
issue. Examples of corroborating circumstances
identified by other courts include the lack of a close
relationship between declarant and the accused, United
States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir. 1984),
the fact that the statement was voluntarily made after the
declarant was advised of his Miranda rights, United
States v. Price, 134 F.3d 340, 34748 (6th Cir. 1998);
and the fact that the statement was not made to curry
favor with the government, United States v. Garcia, 897
F.2d 1413, 1421 (7th Cir. 1990). See also Weinsteins
Federal Evidence 804.06[5][b][ii] (listing these three as
examples of circumstances that might satisfy the
corroboration requirement).
Here,
the
only
remotely
corroborating
circumstance is that Tigney confessed to Caldwells
defense counsel at a time when the Government was not
investigating him in connection with the offense. This
aside, all other considerations reflect adversely on the
trustworthiness of the statement. The record reflects that
Tigney viewed Caldwell like an older brother, app.
108, and thus might have been motivated to lie on
Caldwells behalf. The confession was made to defense
investigators (not prosecutors) and it was made nearly
four months after Caldwell was arrested. At the time the
statement was made, Tigney was not under oath, had not
52

been read his Miranda rights, and was not represented by

counsel. Finally, Tigneys account changed on multiple
occasions, with him ultimately recanting his admission to
defense investigators. Given these circumstances, we
hold that the District Court did not abuse its discretion in
excluding Tigneys statements because the totality of the
circumstances support its conclusion that the confession
lacked the indicia of trustworthiness required by Rule
804(b)(3).
V.
In sum, we conclude that the admission under Rule
404(b) of Caldwells prior convictions for unlawful
firearm possession was erroneous and that the error was
not harmless. While it may be that this opinion breaks no
new ground, we believe it necessary to reiterate the
importance of a methodical approach by the proponent of
prior act evidence and a carefully reasoned ruling by the
trial judge who must decide the question of admissibility.
For the reasons stated, we will vacate the judgment
of conviction and sentence and remand for further
proceedings consistent with this opinion.

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