In my gun case, the government is trying to bring into evidence that I was previously convicted (twice) of possessing a firearm illegally. My defense in my current gun case is that I did not possess the gun. I am not arguing in my gun case that I was allowed to have the gun. The only issue is possession. Do my two previous convictions for illegal possession of a firearm come into evidence?

In United States of America v. Akeem Abdul Caldwell, 2014 WL 2674684 (July 25, 2014), the government tried to do the exact same thing to Mr. Caldwell. In his trial, the United States Attorney did just what you are suggesting and the judge agreed. Obviously, once the jury heard about his previous convictions, he was found guilty.

However, the good judges at the Third Circuit Court of appeals overruled based on a simple principle of law: Rule 404(b). That is, prior act evidence is inadmissible unless it is offered as non-propensity evidence, relevant to identity, probative value outweighs the prejudice, and there is a jury charge telling the jury not to give this fact a lot of weight. The court ruled that 404(b) was clearly violated because the main issue was possession not whether he knew he was allowed to own a gun. If he was arguing that he was allowed to own a gun, the previous convictions would come in because the government would not be admitting the evidence to show propensity.

Further, there is a some discussion in the case regarding Rule 609(a)(1)(B) about prejudice and probative value. However, the real holding is that the propensity rule under 404(b) is still the law and in a gun case the government can’t bring up a conviction from a previous gun case.

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