Felon-in-Possession Priors: Propensity Evidence or Intent? - Criminal Law - U.S. Tenth Circuit
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Felon-in-Possession Priors: Propensity Evidence or Intent?

Propensity evidence or proof of knowledge? It's a tricky question.

Timothy "New York" McGlothin's apartment was searched after he was identified as a suspect in a bank robbery. Authorities found a Glock pistol in a closet with letters addressed to McGlothin, a Yankees cap, and a stack of $2 bills.

He was convicted of being a felon-in-possession using a constructive possession theory. At trial, the prosecutors introduced two prior incidents involving McGlothin and a firearm:

  • In 2007, he was found in a vehicle, talking on a cell phone, with a loaded gun in close proximity to the driver's seat. He was convicted of a Colorado felon-in-possession charge as a result.
  • In 2009, he beat a woman over the head with a Glock, similar to the one found in the present case, because he suspected her of having a lesbian affair with his cousin. While beating her, he accidently ejected the magazine. The victim testified in the present case that the gun was similar, though she could not definitively identify it. The magazine release mechanism was consistent with the previous accidental ejection.

McGlothin argues that this was impermissible propensity evidence. Prosecutors argued that the prior incidents were only to show that he knowingly possessed this pistol, as that is an element of the charge.

In U.S. v. Moran, the Tenth Circuit addressed the issue. A felon was caught driving with a rifle in the back seat. He argued that it was his girlfriend's car and rifle and he had no knowledge of its presence. Similarly, the prosecutors sought to introduce an earlier possession charge. The Tenth Circuit stated:

The fact that Mr. Moran knowingly possessed a firearm in the past supports the inference that he had the same knowledge in the context of the charged offense.

So, does that mean once a knowing gun-holder, always a knowing gun-holder? Per Moran, it seems so. As a broad rule, it seems a bit dangerous. The Seventh Circuit, cited here as a footnote, stated last year:

If the prior possession was of a different gun, then its value as ... evidence of the charged possession drops and the likelihood that it is being used to show propensity ... rises considerably. Similarly, as the prior possession is further removed in time, it becomes less probative of possession on the date charged.

The Seventh Circuit's logic seems sound. If it were applied to this case, the pistol-whipping incident would almost certainly be admissible. It was a similar, if not the same, gun. It was close in time to the present offense. But the 2007 incident? It's a bit more tenuous of a connection.

Though the court spoke favorably of the Seventh's opinion, they are bound by their earlier precedent in Moran.

Either way, absent plain error, McGlothin wasn't going to prevail here. He failed to object to the admission of both incidents during trial. Considering the deference with which trial judges' admissibility rulings are typically treated, that was a high bar to overturning the conviction, even if he had properly objected.

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