APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. D. Brock Hornby, U.S. District Judge.
Jeffrey W. Langholtz on brief for appellant.
Thomas E. Delahanty, II, United States Attorney, and René e M. Bunker, Assistant United States Attorney, on brief for appellee.
Before Barron, Selya and Stahl, Circuit Judges.
BARRON, Circuit Judge.
Bahman Habibi raises three challenges to his October 2013 conviction for possession of a stolen firearm in violation of 18 U.S.C. § 922(j). Habibi argues that the District Court abused its discretion in admitting extensive evidence relating to his heroin use and heroin trafficking. Habibi also argues that the District Court abused its discretion in allowing an FBI agent involved in the investigation that led to Habibi's arrest to testify on issues relating to DNA residue. And, finally, Habibi argues that the District Court should have instructed the jury on " transitory possession," as he sought to build his defense against the possession charge on that basis. We find no merit to any of these challenges and therefore affirm the conviction.
We begin with the challenge to the admission of the evidence of Habibi's past drug use and trafficking. Although " [e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character," Fed.R.Evid. 404(b)(1), " [t]his evidence may be admissible for another purpose," Fed.R.Evid. 404(b)(2). In particular, the Federal Rules of Evidence specifically enumerate a number of purposes for which such evidence may be used: " proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b)(2). And that " list of purposes is not exhaustive." United States v. Landry, 631 F.3d 597, 602 (1st Cir. 2011).
Thus, where a defendant challenges a district court's admission of prior bad acts evidence, the first question for a reviewing court is whether the objected-to evidence " has 'special relevance'" to the case, by which we mean that the objected-to evidence " is relevant for any purpose apart from showing propensity to commit a crime." United States v. Doe, 741 F.3d 217, 229 (1st Cir. 2013) (quoting
United States v. Rodríguez-Berrí os, 573 F.3d 55, 64 (1st Cir. 2013)). For if the evidence does have such special relevance, then Rule 404(b) does not bar its admission.
Here, proof of possession was complicated by the fact that Habibi apparently was not involved in either the initial theft of the firearm (which was taken from a police officer's personal vehicle) or the robberies in which the gun was subsequently used. But the gun was found in Habibi's
home, in a secret hiding place. The government thus sought to show how it got there -- and thus, that Habibi had knowing possession of the stolen gun -- by introducing evidence that Habibi had taken possession of the gun and kept it at his home both in consequence of his ties to two of his heroin customers and out of his concern that the government would prosecute him on the basis of his drug trafficking.
According to the government, therefore, the evidence relating to Habibi's heroin use and trafficking was not introduced to show Habibi's propensity to engage in criminal behavior. Instead, the government claims, it introduced this evidence to provide context for the crime, to help explain how Habibi came to possess the gun by showing the extent of his relationships to those who claimed he took possession of it, and to show why he had a special motive to do so.
Specifically, the government called two longstanding heroin customers of Habibi's to testify at trial about how the gun came to be in Habibi's possession. These two customers testified that they, along with a friend who had stolen the gun, hid the gun prior to the friend's arrest. And these customers further testified that, after their friend's arrest, the two of them, plus Habibi, together retrieved the gun. The two government witnesses explained, however, that it was Habibi who picked up and carried the gun back to the car, and it was Habibi who hid the gun in a hole in the wall in the basement of his residence after they had secreted it away.
The government also put on evidence relating to Habibi's heroin trafficking to show that Habibi had a special motive to keep possession of the stolen gun. In particular, the two heroin customers testified that Habibi wanted to hold onto the gun in case he was arrested for drug ...