FILED

United States Court of Appeals

Tenth Circuit
PU BL ISH

September 25, 2007

Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
v.

No. 06-2175

D A V ID S. M O RA N ,
Defendant - Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT

FOR T HE D ISTRICT OF NEW M EXICO
(D. Ct. No. CR-05-1547 W PJ)

Dennis J. Candelaria, Assistant Federal Public Defender, Office of the Federal

Public Defender for the District of New M exico, Las Cruces, New M exico,
appearing for Defendant-Appellant.
Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with her on the brief), Office of the United States Attorney for
the District of New M exico, Las Cruces, New M exico, appearing for PlaintiffAppellee.

Before TA CH A, Chief Circuit Judge, BR ISC OE, and GORSUCH, Circuit

Judges.

TA CH A, Chief Circuit Judge.

A jury convicted Defendant-Appellant David M oran of one count of being a

felon in possession of a firearm, a violation of 18 U.S.C. 922(g)(1). He appeals
his conviction, arguing that the District Court erred in refusing to grant his
motion to suppress evidence, abused its discretion by admitting evidence of a
prior conviction under Federal Rule of Evidence 404(b), and erred by failing to
instruct the jury on his theory of defense. W e exercise jurisdiction pursuant to 28
U.S.C. 1291 and AFFIRM .
I. BACKGROUND
On January 8, 2005, W anetta Ferguson, a resident of M ayhill, New M exico,
in Otero County, reported a trespasser on her property on Sleeping Bear Lane. 1
Located in the Sacramento M ountains, M ayhill is a rural comm unity that is not
densely populated. The Fergusons property borders a national forest, and the
easiest way to access the public lands of the forest from Sleeping Bear Lane is by
crossing the Fergusons property or the neighboring property, which belongs to
the Pattersons. Licensed individuals may hunt on these public lands, and this
particular time of year was bow hunting season.
Sergeant John Braziel of the Otero County sheriffs office received a
1

Under New M exico law, criminal trespass consists of knowingly entering

or remaining upon posted private property without possessing written permission
from the owner or person in control of the land, N .M . Stat. 30-14-1(A ) (2006),
or knowingly entering or remaining upon the unposted lands of another knowing
that such consent to enter or remain is denied or withdrawn by the owner or
occupant thereof, id. 30-14-1(B). Criminal trespass is a misdemeanor. Id.
30-14-1(E).
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dispatch reporting the trespass complaint at approximately 11:49 a.m. He

responded to M rs. Fergusons report and spoke to M rs. Ferguson at her residence.
M rs. Ferguson reported that she saw M r. M oran on her property earlier that day
and that the Fergusons had told him several times that he does not have
permission to be there. Sergeant Braziel did not see M r. M oran on the property,
but told M rs. Ferguson that he would tell M r. M oran to stay off her property the
next time he saw him.
Later that day, at approximately 4:45 p.m., Sergeant Braziel received a
second report that M r. M oran was trespassing on the Fergusons property and
again set out for the property. Officer Ty Jackson of the New M exico Department
of Game and Fish heard the call from Otero County dispatch reporting the
trespassing complaint and also responded to the call. 2 Cloudcroft Chief of Police
Gene Green responded as w ell. 3
Sergeant Braziel and Officer Green arrived at the Fergusons property at
approximately 5:00 p.m. Officer Jackson arrived shortly thereafter. Sergeant
Braziel and Officer Jackson observed a black SUV parked across the road at
W illiam B arrs residence. Sergeant Braziel knew that M r. M oran usually drove

The Game and Fish officers often handle trespass complaints related to
hunting and have the authority to make arrests for trespassing in conjunction with
violations of state game and fish laws.
3

W e refer to Sergeant Braziel, Officer Jackson, and Chief Green

collectively as the officers.
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one of tw o vehicles, a w hite jeep or a black SUV.

Sergeant Braziel spoke with M r. and M rs. Ferguson, who told Sergeant
Braziel that M r. M oran was still on their property or on the hill behind it.
Sergeant Braziel looked around the area surrounding the Fergusons residence,
but did not see M r. M oran. M eanwhile, Officer Jackson interviewed the
Fergusons neighbors, the Pattersons. The Pattersons property adjoins the
Fergusons and also borders the national forest. M r. Patterson told Officer
Jackson that they had given M r. M oran permission to cross their property to go
hunting in the national forest after he threatened to kill all the deer behind their
property if they refused. After speaking with the Pattersons, Officer Jackson
returned to the Fergusons property, where Sergeant Braziel and Chief Green
were waiting. Officer Jackson spoke with M r. Ferguson, who reported having had
several confrontations with M r. M oran about trespassing on his land and indicated
he did not want M r. M oran on his property.
W hile the officers were talking to the Fergusons, the black SUV pulled out
of M r. Barrs driveway. Sergeant Braziel, Officer Jackson, and Chief Green, all
in separate patrol vehicles, followed the vehicle, and Sergeant Braziel stopped the
SUV approximately one-quarter of a mile from the B arr residence. It was dark
when Sergeant Braziel stopped the vehicle. Sergeant Braziel exited his car and
approached the SUV, shining his flashlight through the w indows to see if there
were any passengers inside the car. W hen he did so, he saw the butt of a rifle
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stock sticking out of an unzipped rifle case on the back seat. On the seat next to
the rifle w ere a bow and arrows. Sergeant Braziel asked M r. M oran, the sole
occupant of the vehicle, to exit the SUV, and M r. M oran complied. Sergeant
Braziel then asked M r. M oran who owned the rifle, and M r. M oran responded that
it belonged to his girlfriend, M elinda Cheek. M s. Cheek also apparently owned
the SUV. M r. M oran explained to the officers that he had been bow hunting.
As Sergeant Braziel and Chief G reen conducted a records check on M r.
M oran, Officer Jackson asked for and received permission to look inside the
SU V. Officer Jackson opened the rear passenger door, removed the rifle case,
and asked M r. M oran if the rifle was loaded. M r. M oran responded that it w as.
Officer Jackson asked M r. M oran why he had the rifle, and M r. M oran responded
that he always had a rifle in his vehicle. The incident ended when Officer
Jackson arrested M r. M oran on an unrelated warrant.
A grand jury returned an indictment against M r. M oran for being a felon in
possession of a firearm on July 21, 2005. On November 1, 2005, M r. M oran filed
a motion to suppress physical evidence and statements, which the D istrict Court
denied. On January 26, 2006, M r. M oran filed a motion in limine to exclude
evidence of his prior convictions, and on February 3, the United States filed a
notice of intent to offer evidence of other crimes or bad acts pursuant to Federal
Rule of Evidence 404(b). The court granted M r. M orans motion in part,
excluding all evidence of prior convictions except for a M arch 1994 conviction
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for being a felon in possession of a firearm. M r. M orans case went to trial on

February 14, and at the end of the trial, the D istrict Court declined to give M r.
M orans requested jury instructions relating to knowledge and possession. A jury
found M r. M oran guilty on February 16, 2006, and he timely filed a notice of
appeal.
II. D ISC USSIO N
A.

Reasonable Suspicion to Stop M r. M oran

W hen reviewing the denial of a motion to suppress, we accept the district

courts factual findings and determinations of w itness credibility unless they are
clearly erroneous. United States v. Harris, 313 F.3d 1228, 1233 (10th Cir. 2002)
(quotation omitted). W e are permitted to consider evidence introduced at the
suppression hearing, as well as any evidence properly presented at trial, id., and
we view the evidence in the light most favorable to the government, United States
v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004). W e review de novo the ultimate
question of reasonableness under the Fourth Amendment. Id.
The Fourth Amendment protects individuals from unreasonable searches
and seizures. U.S. Const. amend. IV. [S]topping a car and detaining its
occupants [for investigatory purposes] constitute[s] a seizure within the meaning
of the Fourth Amendment. United States v. Hensley, 469 U.S. 221, 226 (1985).
W e measure the constitutional validity of an investigatory stop by the standard set
forth in Terry v. Ohio, 392 U.S. 1 (1968), asking whether the stop is supported
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by a reasonable suspicion of criminal activity. United States v. Treto-Haro, 287

F.3d 1000, 1004 (10th Cir. 2002). In so doing, we examine the events that
occurred leading up to the stop to determine whether the historical facts, viewed
from the standpoint of an objectively reasonable police officer, amount to
reasonable suspicion. United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.
2004) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). W e have
explained that an officer with reasonable suspicion need not rule out the
possibility of innocent conduct as long as the totality of the circumstances
suffices to form a particularized and objective basis for a stop. Id. (quoting
United States v. Arvizu, 534 U.S. 266, 27778 (2002)).
M r. M oran argues that the District Court should have suppressed physical
evidence obtained after officers unlawfully stopped the SUV he was driving.
Specifically, M r. M oran argues that the stop was unreasonable because the
officers did not have a reasonable suspicion that he was driving the SUV when
they pulled him over. In addition, M r. M oran contends that police may stop an
individual based on suspicion of past criminal activity only when the crime at
issue is a felony offense; because the officers were investigating a completed
misdemeanor, he argues the stop violated the Fourth Amendment. As w e explain
below, we reject both arguments.
1.

Reasonable Suspicion that M r. Moran was Driving the SUV

W e first address M r. M orans argument that the officers did not have
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reasonable suspicion that he was driving the SUV. M r. M oran does not dispute
that the officers had a reasonable suspicion that he criminally trespassed on the
Fergusons property. Instead, he argues that the officers lacked particularized
suspicion that he was driving the black SUV. To the contrary, the totality of
circumstances here is sufficient to lead an objectively reasonable officer to
believe that M r. M oran was driving the black SUV when the officers stopped the
vehicle.
The evidence shows that M rs. Ferguson had encountered M r. M oran in the
past on her property. As a result, M rs. Ferguson could reliably identify him as
the alleged trespasser when she reported the two incidents of trespass to the O tero
County sheriffs office. See Adams v. W illiams, 407 U.S. 143, 14647 (1972)
(concluding officer had reasonable suspicion to stop defendant based on
information from a citizen informant); United States v. Tucker, 305 F.3d 1193,
1201 (10th Cir. 2002) (noting that citizen informants known to police are
presumed to be reliable). W hen Sergeant Braziel arrived at the Fergusons
property at approximately 5:00 p.m., the Fergusons reported that M r. M oran was
still on their property or in the area behind it. Sergeant Braziel observed a black
SU V across the road from the Fergusons property and had personal knowledge
that one of the cars M r. M oran drove was a black SUV. Thus, the totality of the
circumstances the Fergusons reliable report that M r. M oran was in the vicinity
of the alleged crime, the fact that Sergeant Braziel saw a black SUV in the
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immediate vicinity of the alleged crime, and his knowledge that M r. M oran drove
a black SUV is sufficient to establish a reasonable suspicion that M r. M oran was
driving the black SU V .
2.

Legality of Stop Based on Suspicion of a Completed M isdemeanor

M r. M oran also argues that the stop violated the Fourth Amendment
because the officers stopped the vehicle to investigate a completed misdemeanor.
In United States v. Hensley, the Supreme Court held that the Fourth Amendment
permits police officers to conduct an investigatory stop if they have a reasonable
suspicion, grounded in specific and articulable facts, that a person they encounter
was involved in or is wanted in connection with a completed felony. 469 U.S. at
229. The Court made clear, however, that [w]e need not and do not decide today
whether Terry stops to investigate all past crimes, however serious, are
permitted. Id. Despite the Courts explicit reservation, M r. M oran argues that
Hensley prohibits all investigatory stops based on reasonable suspicion of a
completed misdemeanor. W e note that this is a matter of first impression in our
Circuit and that the Sixth and Ninth Circuits have split on the issue. Com pare
Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004)
(Police may . . . make a stop when they have reasonable suspicion of a
completed felony, though not of a mere completed misdemeanor.), with United
States v. Grigg, F.3d , 2007 W L 2379615, at *9 (9th Cir. 2007) (holding
that, in reviewing the reasonableness of a stop to investigate a completed
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misdemeanor, a court must consider the nature of the misdemeanor offense in

question, with particular attention to the potential for ongoing or repeated danger
. . . and any risk of escalation). M indful of the fact-specific nature of the
[Fourth Amendment] reasonableness inquiry, Ohio v. Robinette, 519 U.S. 33, 39
(1996), we hold that the officers investigatory stop of M r. M oran was reasonable
in light of the particular facts and circumstances of this case.
Following the Supreme Courts approach in Hensley, we determine the
constitutionality of an investigatory stop by balancing the nature and quality of
the intrusion on personal security against the importance of the governmental
interests alleged to justify the intrusion. Hensley, 469 U.S. at 228. 4 W e first
evaluate the governmental interests involved in the officers stop of M r. M oran.
In Hensley, the Court explained that the governmental interest in crime prevention
4

M r. M oran cites United States v. Halliburton, 966 F.2d 1454, 1992 W L

138433 (6th Cir. 1992), an unpublished Sixth Circuit case, to convince this Court
to adopt the rule that seizure based on suspicion of a completed misdemeanor is
per se unreasonable. W e are not persuaded, however, by the Sixth Circuits
reasoning. In Halliburton, the court concluded based solely on Hensleys
holding that a stop involving investigation of a completed felony may be
reasonable that an officers seizure of an individual based on suspicion of
misdem eanor indecent exposure was unreasonable. 1992 W L 138433, at *4. The
Sixth Circuit did not balance the nature of the seizure against the governmental
interests implicated under the circumstances to reach this conclusion. Indeed, the
Sixth Circuit has indicated that police may never base reasonable suspicion on a
completed misdemeanor. See Gaddis, 364 F.3d at 771 n.6. This approach is
contrary to the reasoning in Hensley. See Grigg, 2007 W L 2379615, at *5
(concluding the Supreme Courts methodology in Hensley applies to the
reasonableness analysis of a stop based on a completed misdemeanor). As we
explain above, to determine whether a stop based on past criminal activity is
reasonable, w e engage in a fact-specific balancing test.
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and detection, necessarily implicated in a stop to investigate ongoing or imminent

criminal conduct, may not be present when officers are investigating past criminal
conduct. Id. at 228. A stop to investigate past criminal activity may, however,
serve the governmental interest in solving crimes and bringing offenders to
justice. Id. at 229. This interest is particularly strong when the criminal activity
involves a threat to public safety. Id. (noting the interest is particularly strong in
the context of felonies or crimes involving a threat to public safety); see also
Grigg, 2007 W L 2379615, at *8 (holding a court reviewing the reasonableness of
an investigative stop must consider the nature of the offense, with particular
attention to any inherent threat to public safety associated w ith the suspected past
violation).
The circumstances of the present case implicate a strong governmental
interest in solving crime and bringing offenders to justice because the alleged
underlying criminal activity posed an ongoing risk to public safety. First, a
criminal trespass inherently involves some risk of confrontation with the property
owner. Importantly, in this case, the risk of confrontation was not hypothetical.
M r. Ferguson reported that he had previously encountered M r. M oran on his
property and had confronted him about trespassing. See Grigg, 2007 W L
2379615, at *9 (noting police may consider past altercation with a potential for
violent escalation as a threat to public safety). The record also shows that the
officers received reliable information that M r. M oran had threatened the
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Pattersons to gain access across their land to the national forest. Furthermore,
because M r. M oran was allegedly crossing the Fergusons property to hunt, a
reasonable officer could assume that he was likely carrying a weapon. Finally,
the officers had reason to believe that criminal activity would recur: the officers
received two complaints on the same day that M r. M oran w as trespassing across
private property for the purpose of hunting, and the Fergusons reports indicated
that the trespassing was a recurring problem. See id. at *8 (noting law
enforcement interest is stronger when intervention of investigating officer might
eliminate any ongoing risk that an offending party might repeat the completed
misdemeanor or . . . might stem the potential for escalating violence arising from
such conduct). In sum, the alleged history of confrontation and threats,
combined with the specific nature of the trespass (i.e., for the purpose of hunting)
and the likelihood that the alleged criminal activity would recur, created a
situation involving a threat to public safety, Hensley, 469 U.S. at 229. Under
these circumstances, it is in the public interest that the crime be solved and the
suspect detained as promptly as possible. Id.
W e acknowledge that the governmental interest in solving crime may be
weaker w hen police have alternative methods of investigating the crime. See id.
(explaining that, where police have been unable to locate a person suspected of
involvement in a past crime, an investigatory stop promotes the strong
governmental interest in solving crimes (emphasis added)). Here, the officers
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knew M r. M oran and could have attempted to locate him at his home or
elsewhere. But because M r. M oran had allegedly committed the criminal trespass
just minutes before the officers stopped him, the governmental interest in solving
the crime was strong. To restrain police action in such a situation would be to
require police to turn their backs on potential criminal activity and to enable the
suspect to flee, id. at 229. Indeed, at the time he w as stopped, M r. M oran more
nearly represented an individual in the process of violating the law or a suspect
fleeing from the scene of a crime than a suspect in a past crime w ho now appears
to be going about his lawful business, id. at 228. Under these circumstances,
when past criminal activity suggests an ongoing threat to public safety, a stop
may further a strong governmental interest in solving crime.
Recognizing this governmental interest, we next consider whether, balanced
against the nature of the intrusion, the stop was reasonable. An investigatory stop
is by definition brief and non-intrusive. United States v. Johnson, 364 F.3d
1185, 1188 (10th Cir. 2004); see also Delaware v. Prouse, 440 U.S. 648, 653
(1979) (noting investigatory stop of automobile is limited [in purpose] and the
resulting detention quite brief); United States v. Griffin, 7 F.3d 1512, 1516 (10th
Cir. 1993) (explaining Terry stop is usually characterized as a brief, nonintrusive
detention during a frisk for weapons or preliminary questioning). Balanced
against the strong governmental interest in solving crime, the relatively limited
intrusion on personal security occasioned by an investigatory stop was warranted
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and the officers seizure of M r. M oran was not unreasonable.

To be clear, w e stress the limited and fact-dependent nature of our holding.
W e do not suggest that all investigatory stops based on completed misdemeanors
are reasonable or even that any stop based on a completed criminal trespass is per
se reasonable. Several facts are essential to our holding: the officers had
reasonable suspicion that M r. M oran repeatedly committed the very same crime in
question (criminal trespass on the Fergusons property); the officers received a
report of the same crime earlier on the day of the stop; a reasonable officer could
conclude that M r. M oran was likely to repeat the crime in the future; the specific
nature of the trespass and M r. M orans reported history with the Fergusons and
Pattersons indicated a threat to public safety; and the officers encountered M r.
M oran just minutes after the crime allegedly occurred. These facts implicate the
governmental interest discussed above, which when balanced against the brief and
nonintrusive nature of an investigatory traffic stop, render the officers actions in
seizing M r. M oran reasonable.
B.

Admission of 404(b) Evidence

M r. M oran argues that the District Court abused its discretion by admitting

evidence of his M arch 1994 conviction for being a felon in possession of a

firearm under Federal Rule of Evidence 404(b). W e review a district courts
evidentiary rulings under Rule 404(b) for abuse of discretion. United States v.
M ares, 441 F.3d 1152, 1156 (10th Cir. 2006). W e will not reverse a district
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courts ruling if it falls within the bounds of permissible choice in the

circumstances and is not arbitrary, capricious or whimsical. Id. (quotations and
alteration omitted).
Under Rule 404(b), evidence of other acts may be admissible for purposes
other than proof of a defendants bad character or general propensity to commit
crime. The rule provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .
Evidence is admissible under Rule 404(b) if the four factors identified in
Huddleston v. United States are satisfied: (1) the evidence must be offered for a
proper purpose; (2) it must be relevant; (3) its probative value must not be
substantially outweighed by its potential for unfair prejudice under Rule 403; and
(4) the court must give a proper limiting instruction, if it is requested by the
defendant. 485 U.S. 681, 69192 (1988).
In the case before us, evidence of the conviction was offered for proper
purposes under Rule 404(b). The G overnment introduced evidence of M r.
M orans prior conviction to prove the only challenged element of the felon-inpossession offense: that M r. M oran knowingly possessed the firearm. See
United States v. Ledford, 443 F.3d 702, 705 (10th Cir. 2005) (setting forth

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elements of crime of felon in possession). 5 M r. M oran claimed that he did not

know the rifle, which belonged to his girlfriend, was in the SUV, his girlfriends
car. Thus, the Government presented, and the district court admitted, evidence of
the prior conviction to show knowledge, intent, and absence of mistake or
accident, proper purposes under Rule 404(b). 6
In addition, the conviction is relevant under Huddlestons second factor
because it is probative to demonstrate that M r. M oran knowingly possessed the
firearm. See United States v. M ills, 29 F.3d 545, 549 (10th Cir. 1994) (affirming
district courts admission of prior gun possession to show knowledge). M r.
M oran denied knowledge of the rifle in the car, and the government had the
burden of proving knowing possession of the firearm. To prove the knowledge
element of the offense, the government offered evidence that M r. M oran
knowingly possessed a firearm at another point in time. Because the prior
conviction required the same know ledge, evidence of the conviction had a

To obtain a conviction for felon in possession, the government must prove:

(1) the defendant was previously convicted of a felony; (2) the defendant
thereafter knowingly possessed a firearm; and (3) the possession was in or
affecting interstate commerce. Ledford, 443 F.3d at 705. The parties stipulated
to the first and third elements.
6

The District Court concluded that the conviction was admissible to show
knowledge, intent, and absence of mistake or accident. W e note that the crime of
felon in possession under 18 U.S.C. 922(g)(1) is a general intent crime. See
Ledford, 443 F.3d at 716. The government need not prove any particular intent,
but must show only that a felon possessed a firearm knowingly. Id. Thus,
knowledge and intent are equivalent here.
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tendency to make the existence of M r. M orans knowledge of the rifle in the

present case more probable . . . than it would be without the evidence. Fed. R.
Evid. 401; see also M ares, 441 F.3d at 1157 (noting that, when admitted to show
knowledge, prior acts must be similar to the charged offense). In other words, the
fact that M r. M oran knowingly possessed a firearm in the past supports the
inference that he had the same knowledge in the context of the charged offense.
See United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (Evidence that
a defendant possessed a firearm on a previous occasion is relevant to show
knowledge and intent.); United States v. Jernigan, 341 F.3d 1273, 1281 (11th
Cir. 2003) ([T]he caselaw in this and other circuits establishes clearly the logical
connection between a convicted felons knowing possession of a firearm at one
time and his knowledge that a firearm is present at a subsequent time (or, put
differently, that his possession at the subsequent time is not mistaken or
accidental).); United States v. Cassell, 292 F.3d 788, 795 (D.C. Cir. 2002) (A
prior history of intentionally possessing guns, or for that matter chattels of any
sort, is certainly relevant to the determination of whether a person in proximity to
such a chattel on the occasion under litigation knew what he was possessing and
intended to do so.).
W e acknowledge that the use of M r. M orans prior conviction to prove
knowledge involves a kind of propensity inference (i.e., because he knowingly
possessed a firearm in the past, he knowingly possessed the firearm in the present
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case). But the inference is specific and does not require a jury to first draw the
forbidden general inference of bad character or criminal disposition; rather, it
rests on a logic of improbability that recognizes that a prior act involving the
same knowledge decreases the likelihood that the defendant lacked the requisite
knowledge in committing the charged offense. See United States v. Queen, 132
F.3d 991, 996 (4th Cir. 1997) (explaining that similar prior act decreases the
likelihood that the charged offense was committed with innocent intent).
M oreover, when other-act evidence is admitted for a proper purpose and is
relevant, it may be admissible even though it has the potential impermissible
side effect of allowing the jury to infer criminal propensity. United States v.
Cherry, 433 F.3d 698, 701 n. 3 (10th Cir. 2005) (quotation omitted). That is,
such evidence may be admissible under Rule 404(b) as long as it tends to prove
something other than criminal propensity. See United States v. Tan, 254 F.3d
1204, 1208 (10th Cir. 2001) (Rule 404(b) is considered to be an inclusive rule,
admitting all evidence of other crimes or acts except that which tends to prove
only criminal disposition. (quotation omitted)); United States v. Esch, 832 F.2d
531, 535 (10th Cir. 1987) (Evidence of other acts is not admissible solely to
prove a defendants criminal disposition. (emphasis added)).
Although the evidences potential to lead the jury to an impermissible
inference does not automatically prevent its admission, this potential prejudicial
effect is part of a courts balancing determination under the third Huddleston
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factor. Evidence that is otherwise admissible under Rule 404 may nonetheless be
excluded under Rule 403 if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury. Fed.
R. Evid. 403. Unfair prejudice in the Rule 403 context means an undue
tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one. Tan, 254 F.3d at 1211 (quoting Fed. R. Evid.
403 advisory committees note). Here, the District Court explicitly considered
the probative value of the evidence and its potential prejudicial effect and
determined that the potential prejudice to the defendant does not outweigh the
highly probative nature of such evidence. A s we explain below , none of M r.
M orans arguments convince us that the court abused its discretion. Cherry, 433
F.3d at 702 (noting we give district courts broad discretion in making Rule 403
balancing decisions).
M r. M oran argues that the court abused its discretion because the prior
conviction was not similar in nature or close enough in time to the charged
offense. But as we explain above, the prior act was sufficiently similar to have
probative value in proving knowledge. In addition, the passage of time does not
diminish the prior acts probative worth in this case. The determination of
whether a period of time diminishes a prior acts probative value will necessarily
depend on the unique facts of each cases proffered evidence. M ares, 441 F.3d
at 1159. Here, because M r. M oran denied he had knowledge of the rifle, the prior
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conviction had clear probative value in rebutting this defense. M orever, based on
M r. M orans arguments, we have no reason to conclude that the evidence was
unduly prejudicial because it had substantial potential to cause the jury to decide
the case on an emotional basis. United States v. Higgins, 282 F.3d 1261, 1274
(10th Cir. 2002). Hence, in balancing the evidences probative value against the
danger of unfair prejudice, the district court did not abuse its discretion. See
United States v. Bonnett, 877 F.2d 1450, 1461 (10th Cir. 1989) (The closeness in
time and the similarity in conduct were matters left to the trial court, and [its]
decision will not be reversed absent a showing of abuse of discretion.).
Finally, the court satisfied the fourth Huddleston factor by giving a limiting
instruction, which cautioned the jury to consider the evidence only as it bears on
the defendants intent, knowledge, absence of mistake or accident, and for no
other purpose. See 10th Cir., Criminal Pattern Jury Instructions (2005 ed.), No.
1.30. Because all four Huddleston factors are satisfied, the district court did not
abuse its discretion by admitting evidence of M r. M orans prior conviction under
Rule 404(b).
C.

Jury Instructions
M r. M oran argues that the District Court erred by refusing to give his

requested jury instructions on knowledge and fleeting possession. W e review the

District Courts refusal to give requested instructions for abuse of discretion.
United States v. Crockett, 435 F.3d 1305, 1314 (10th Cir. 2006). To assess
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whether the court properly exercised its discretion, w e review the jury
instructions de novo to determine whether, as a whole, they accurately state the
governing law and provide the jury with an accurate understanding of the relevant
legal standards and factual issues in the case. Id.
To convict a defendant for being a felon in possession of a firearm, the jury
must find that the defendant knowingly possessed a firearm. See 18 U.S.C.
924(a)(2). The jury instructions explained: The w ord knowingly, as that term
has been used from time to time in these instructions, means that the act was done
voluntarily and intentionally, not because of mistake or accident. M r. M oran
requested the following instruction, which he contends the court erroneously
refused to provide:
It is the governments burden to prove, beyond a reasonable doubt,
that M r. M oran knowingly possessed the firearm. M r. M oran has
told you that although the firearm was found in the truck he was
driving, he did not know it was there. If you determine that the
government has not proved beyond a reasonable doubt that M r.
M oran knew the gun was in the truck, then you must find M r. M oran
not guilty.
M r. M oran argues that this instruction was required because it states his
theory of the case. But although M r. M oran may be entitled to jury instructions
on the law underlying his theory of the case, he is not entitled to instructions
stating the specific facts of this theory. Crockett, 435 F.3d at 1314 (A defendant
is entitled to an instruction on his theory of the case if the instruction is a correct
statement of the law, and if he has offered sufficient evidence for the jury to find
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in his favor. (emphasis added)). Indeed, such an instruction could lead the jury
to believe that the district court was putting its imprimatur on [the] [d]efendants
factual theory of the case. United States v. Grissom, 44 F.3d 1507, 1513 (10th
Cir. 1995). Here, the given knowledge instruction correctly explained knowing
possession, and the instructions elsewhere provided that the government must
prove the defendants guilt beyond a reasonable doubt. W e therefore conclude
that the District Court adequately informed the jury of the relevant law and did
not err in refusing to give M r. M orans fact-specific instruction.
M r. M oran also contends that the District Court erred by failing to instruct
the jury on the theory of fleeting possession. A court need only give a fleeting
possession instruction when the evidence at trial supports a possible finding that
the defendant only momentarily possessed the [firearm], and in so doing, lacked
either knowledge he possessed [the firearm] or criminal intent to possess it.
United States v. Adkins, 196 F.3d 1112, 1115 (10th Cir. 1999). The court clearly
did not err in the present case because M r. M oran presented no evidence
indicating that he possessed the firearm only momentarily.
Despite this deficiency, he argues that the instruction was necessary
because the evidence allowed the jury to infer that he possessed the gun
ignorantly or accidentally and therefore lacked criminal intent to possess it. This
argument is without merit because the District Courts knowledge instruction
adequately addressed this theory. See U nited States v. Alonso, 790 F.2d 1489,
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1496 (10th Cir. 1986) (It is not error to refuse to give a requested instruction if
the same subject matter is adequately covered in the general instructions.
(quotation and alteration omitted)). The court instructed the jury that an act is
done knowingly if the act was done voluntarily and intentionally, not because
of mistake or accident. (emphasis added). As a w hole, therefore, the jury
instructions adequately informed the jury of the governing law and M r. M orans
theory of defense. Cf. Alonso, 790 F.2d at 149697 (holding district court did not
err in refusing to give mere presence instruction in aiding-and-abetting
narcotics violation because instructions stated that government was required to
prove willful association and willful participation).
III. C ON CLU SIO N
For the foregoing reasons, we A FFIRM the D istrict Courts rulings and M r.
M orans conviction.

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