USA v. Angel Feliciano

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11390
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL FELICIANO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:21-cr-00020-TES-CHW-1
____________________
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2 Opinion of the Court 22-11390
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Angel Feliciano appeals his conviction for one count of be-
ing a felon in possession of a firearm. Feliciano argues that the dis-
trict court abused its discretion at trial by admitting evidence of his
2015 felony conviction for possession of a firearm by a convicted
felon. The government responds that the district court did not err,
but even if it did, any error was harmless.
We review the admission of evidence under Fed. R. Evid.
404(b) for abuse of discretion.
United States v. Culver, 598 F.3d
740, 747 (11th Cir. 2010). Evidence admitted in violation of Rule
404(b) is considered to be harmless error where there is other sub-
stantial evidence of the defendant’s guilt.
See United States v.
Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000).
Rule 404(b) of the Federal Rules of Evidence prohibits the
introduction of evidence of a crime, wrong, or other act 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). It does, however, allow such evidence for other pur-
poses, “such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2). “Rule 404(b) is a rule of inclusion,
and . . . accordingly 404(b) evidence, like other relevant evidence,
should not be lightly excluded when it is central to the
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22-11390 Opinion of the Court 3
prosecution’s case.”
United States v. Kapordelis, 569 F.3d 1291,
1313 (11th Cir. 2009) (quotation marks omitted, alteration in origi-
nal).
We utilize a three-part test to determine whether evidence
is admissible under Rule 404(b): (1) the evidence must be relevant
to an issue other than the defendant’s character; (2) there must be
sufficient proof that a jury could find by a preponderance of the
evidence that the defendant committed the act; and (3) the proba-
tive value of the evidence must not be substantially outweighed by
undue prejudice, as established in Rule 403.
United States v. Edou-
ard, 485 F.3d 1324, 1344 (11th Cir. 2007);
see also Fed. R. Evid. 403.
The risk of undue prejudice can be reduced by an appropriate lim-
iting instruction.
United States v. Ramirez, 426 F.3d 1344, 1354
(11th Cir. 2005);
see also United States v. Diaz-Lizaraza, 981 F.2d
1216, 1225 (11th Cir. 1993) (noting that, where the district court
issued a limiting instruction, “any unfair prejudice possibly caused
by [the evidence’s] introduction was mitigated”).
The first prong of the Rule 404(b) test can be satisfied “where
the state of mind required for the charged and extrinsic offenses is
the same.”
Edouard, 485 F.3d at 1345. “[B]y pleading not guilty, [a
defendant] place[s] th[e] [knowledge] element of the § 922(g) of-
fense in issue.”
United States v. Jernigan, 341 F.3d 1273, 1281 & n.7
(11th Cir. 2003). Further, a prior conviction in which the defendant
possessed a gun provides a “logical connection between a con-
victed felon’s knowing possession of a firearm at one time and his
knowledge that a firearm is present at a subsequent time (or, put
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4 Opinion of the Court 22-11390
differently, that his possession at the subsequent time is not mis-
taken or accidental).”
Id. at 1281 (stating that a defendant’s prior
offenses that involved the knowing possession of a firearm “plainly
bore” on the defendant’s knowledge that the gun was present in
the charged instance).
Section 922(g) of Title 18 governs offenses for unlawful pos-
session of a firearm and ammunition and “entails three distinct el-
ements: (1) that the defendant was a convicted felon; (2) that the
defendant
was in knowing possession of a firearm; and (3) that the
firearm was in or affecting interstate commerce.”
Jernigan,
341 F.3d at 1279 (emphasis added); 18 U.S.C. § 922(g)(1). In addi-
tion, the Supreme Court has held that “in a prosecution under
18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove
both that the defendant knew he possessed a firearm and that he
knew he belonged to the relevant category of persons barred from
possessing a firearm.”
Rehaif v. United States, 139 S. Ct. 2191, 2200
(2019).
“[T]he law is entirely well settled that the flight of the ac-
cused is competent evidence against him as having a tendency to
establish his guilt.”
United States v. Borders, 693 F.2d 1318, 1324
(11th Cir. 1982) (internal quotation marks omitted).
Moreover, when a defendant testifies on his own behalf, he
risks the jury concluding the opposite of his testimony is true.
See
United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). State-
ments made by a defendant may also be considered as substantive
evidence of his guilt if the jury disbelieves it.
Id. If there is some
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22-11390 Opinion of the Court 5
corroborative evidence of guilt for the charged offense, and the de-
fendant testifies on his own behalf, his testimony denying guilt
may, by itself, establish elements of the offense.
Id. at 314–15. This
is especially true where the offense includes highly subjective ele-
ments, such as intent or knowledge.
Id. at 315.
Here, we conclude that the district court did not abuse its
discretion at trial when it admitted a prior felon in possession con-
viction under Federal Rule of Evidence 404(b) The court properly
determined that the evidence was sufficiently probative of Felici-
ano’s knowing possession of a firearm, which was an issue at trial,
and that its probative value outweighed the risk of unfair prejudice,
particularly given the district court’s limiting instructions. Further,
we also conclude that even if the court should not have admitted
the evidence, any error in this respect was harmless. The other
evidence of Feliciano’s refusal to pull over after an officer activated
his blue lights, his attempt to outrun police vehicles in pursuit, his
flight from the overturned vehicle, his post-arrest recorded state-
ments while in jail, his trial testimony about a “driver” not ob-
served by troopers, and his denial of driving the vehicle or knowing
about the firearms inside all support his conviction independent of
the 2015 conviction. Accordingly, we affirm.
AFFIRMED.
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