The Honorable John G. Koeltl, of the United States District 1 Court for the… v. Greer 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2010…

* The Honorable John G. Koeltl, of the United States District 1
Court for the Southern District of New York, sitting by 2
designation. 3
1
09-4362-cr
USA v. Greer
1
UNITED STATES COURT OF APPEALS 2
FOR THE SECOND CIRCUIT 3
4
August Term 2010 5
(Argued: November 2, 2010 Decided: February 4, 2011) 6
Docket No. 09-4362-cr 7
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UNITED STATES OF AMERICA, 9
10
Appellee, 11
12
-- v. -- 13
14
MICHAEL GREER, 15
16
Defendant-Appellant. 17
18
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B e f o r e : WALKER and CABRANES, Circuit Judges, and KOELTL, *
21
District Judge. 22
Appeal from a judgment of conviction for possessing a 23
firearm and ammunition as a convicted felon, following a jury 24
trial in the Western District of New York (David G. Larimer, 25
Judge). Defendant-Appellant Michael Greer argues that the 26
government violated his right against self-incrimination by using 27
the name tattooed on his arm to link him to the car in which 28

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ammunition was found. We hold that the nature of the 1
government’s reliance on the content of Greer’s tattoo made it 2
testimonial, but we conclude that no constitutional violation 3
occurred because the tattoo was not the product of government 4
compulsion. We reject Greer’s remaining arguments as without 5
merit. 6
AFFIRMED. 7
ARZA FELDMAN, Feldman and Feldman, 8
Uniondale, New York, for Defendant- 9
Appellant. 10
11
STEPHAN J. BACZYNSKI, Assistant 12
United States Attorney (William J. 13
Hochul, Jr., United States Attorney 14
for the Western District of New 15
York, on the brief), Buffalo, New 16
York, for Appellee. 17
18
JOHN M. WALKER, JR., Circuit Judge: 19
Defendant-Appellant Michael Greer appeals from a judgment of 20
conviction for possessing a firearm and ammunition as a convicted 21
felon, following a jury trial in the Western District of New York 22
(David G. Larimer, Judge). Greer argues that the government 23
violated his right against self-incrimination by using the name 24
tattooed on his arm to link him to the car in which ammunition 25
was found. We hold that, although the nature of the government’s 26
reliance on the content of Greer’s tattoo made it testimonial, 27
the Fifth Amendment was not offended because his tattoo was not 28
the product of government compulsion. We also reject Greer’s 29
arguments that the evidence was insufficient to support the 30

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conviction and that the district court improperly permitted the 1
jury to hear evidence of an uncharged crime. 2
3
BACKGROUND 4
Greer’s arrest was precipitated by a tip from a confidential 5
informant, Aaron Stubbs, who had agreed in an unrelated plea 6
bargain to assist in police investigations. Greer had previously 7
been convicted of a felony, and federal law prohibits convicted 8
felons from possessing a firearm or ammunition. 18 U.S.C. 9
§ 922(g)(1). Stubbs had once seen Greer with a gun, and on 10
August 17, 2007, as a ruse to turn him into police for gun 11
possession, Stubbs proposed that they rob a house. Stubbs told 12
Greer that they would need a gun, and Greer replied that he could 13
get one. 14
The pair drove to Greer’s house. As Greer went inside, 15
Stubbs remained in the car and called Rochester, New York 16
Detective Tom Janus, who drove to the location in an unmarked 17
car. Detective Janus saw Stubbs sitting in the passenger seat of 18
a light blue Hyundai Sonata, and then watched Greer leave his 19
house and get into the driver’s seat of the same car. When the 20
vehicle drove past him, Detective Janus contacted other officers 21
to continue surveillance as he remained in place. 22
Two other officers observed the car at different times later 23
that day. Officer Kevin Koehn watched the Sonata approach, made 24

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4
eye contact with Greer as he drove past, and communicated Greer’s 1
position over the radio. Sergeant Beth Laird later pulled the 2
Sonata over, but it sped away before she could see the driver. 3
Police next found the Sonata, now unoccupied, in a parking lot on 4
a residential street in Rochester, where it had struck an 5
adjacent car. Around the same time, nearby resident Ebony Gibson 6
saw a man come through the front door of her apartment, run 7
through the apartment, and, as she testified, leave by the back 8
door. She and her sister immediately fled through the front 9
door. 10
Witnesses in the parking lot directed police officers to 11
Gibson’s apartment. Sergeant Laird spoke to Gibson and, with her 12
consent, a team of officers entered and searched the premises. 13
Separately, a police dog tracked a scent from the driver’s side 14
of the Sonata into the apartment. Police discovered Greer on a 15
bed in an upstairs bedroom and took him into custody. Police 16
found a Glock Model 22 semi-automatic pistol and a set of car 17
keys in a white garbage can near the entrance to the apartment. 18
Detective Janus arrived at the scene and peered into the 19
Sonata, where he saw the magazine of a semi-automatic handgun in 20
the cup holder between the front seats. After obtaining a search 21
warrant, Detective Janus opened the Sonata’s door using the key 22
found in the trash can. He retrieved the ammunition magazine, 23
which contained nine bullets and fit the Glock 22 from the 24

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garbage can. He also found a pay stub and a receipt for a motor 1
vehicle fine, both with Greer’s name on them, as well as a car 2
rental agreement in the name of “Tangela Hudson.” Once Greer was 3
apprehended, Detective Janus observed that a tattoo on his left 4
arm said “Tangela.” 5
On May 28, 2009, a jury found Greer guilty of one count of 6
possessing a firearm and ammunition as a convicted felon. Judge 7
Larimer entered the judgment on October 15, 2009, after 8
sentencing Greer to 120 months in prison on the weapons- 9
possession count and to a concurrent 18-month term for violating 10
his supervised release. This appeal followed. 11
12
DISCUSSION 13
On appeal, Greer makes three arguments for reversing his 14
conviction: first, that the government violated his Fifth 15
Amendment right against self-incrimination by relying on his 16
tattoo to connect him to the car in which the ammunition was 17
found; second, that the evidence was insufficient to prove his 18
constructive possession of the gun and ammunition; and, finally, 19
that he was unduly prejudiced by testimony regarding an uncharged 20
crime. We hold that, although the nature of the government’s 21
reliance on the tattoo’s content made it testimonial, the Fifth 22
Amendment was not offended because the tattoo was not the product 23
of compulsion. We also reject Greer’s remaining arguments. 24

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I. Right Against Self-Incrimination 1
At trial, the government asked Detective Janus on direct 2
examination to describe Greer’s physical appearance on the date 3
of his arrest. When Detective Janus replied that he saw Greer 4
“had tattoos,” the government inquired whether he remembered 5
“what, if anything, any of the tattoos said.” Detective Janus 6
responded, “I recall a tattoo, I believe it was on his left arm, 7
that said ‘Tangela.’” Detective Janus had earlier testified to 8
finding a rental car agreement in the name of “Tangela Hudson” in 9
the Sonata. At trial, Greer did not object to this colloquy. 10
On appeal, Greer argues for the first time that the 11
solicitation of testimony regarding his tattoo violated his right 12
against self-incrimination. A claim of error not raised before 13
the district court is subject to plain error review. United 14
States v. Morris, 350 F.3d 32, 36 (2d Cir. 2003). We will only 15
reverse for plain error if there was “1) an error; 2) that was 16
plain; 3) that affected defendant’s substantial rights; and 17
4) that seriously affected the fairness, integrity or public 18
reputation of judicial proceedings.” Id. (quotation marks and 19
alterations omitted). 20
The Fifth Amendment provides in part that no person “shall 21
be compelled in any criminal case to be a witness against 22
himself.” U.S. Const. amend. V. The right against 23
self-incrimination bars only “compelled incriminating 24

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communications . . . that are ‘testimonial’ in character.” 1
United States v. Hubbell, 530 U.S. 27, 34 (2000). In other 2
words, to qualify for Fifth Amendment protection, a communication 3
must be (1) testimonial, (2) incriminating, and (3) compelled. 4
Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 189 (2004). 5
The government argues that the tattoo in this case was not 6
“testimonial.” We disagree. Whether a communication is 7
testimonial for Fifth Amendment purposes “often depends on the 8
facts and circumstances of the particular case.” Doe v. United 9
States, 487 U.S. 201, 214-15 (1988). “[I]n order to be 10
testimonial, an accused’s communication must itself, explicitly 11
or implicitly, relate a factual assertion or disclose 12
information. Only then is a person compelled to be a ‘witness’ 13
against himself.” Id. at 210. 14
The privilege does not protect a criminal suspect from being 15
compelled to exhibit physical characteristics, for example, “to 16
put on a shirt, to provide a blood sample or handwriting 17
exemplar, or to make a recording of his voice.” Hubbell, 530 18
U.S. at 35 (footnotes omitted). Such acts are not testimonial. 19
It is “the contents of [the defendant’s] own mind . . . that 20
implicate[] the Self-Incrimination Clause.” Doe, 487 U.S. at 211 21
(citations and quotation marks omitted). Because the exhibition 22
of physical traits is not a “communication by a witness that 23
relates either express or implied assertions of fact or belief,” 24

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it does not enjoy constitutional protection. Hubbell, 530 U.S. 1
at 35; see also Schmerber v. California, 384 U.S. 757, 764 (1966) 2
(“[C]ompulsion which makes a suspect or accused the source of 3
‘real or physical evidence’ does not violate [the Fifth 4
Amendment].”). For that reason, the Fifth Amendment is not 5
offended where a witness relies on a tattoo to identify a 6
defendant. See, e.g., United States v. McCarthy, 473 F.2d 300, 7
304-05 n.3 (2d Cir. 1972). In that context the tattoo is a 8
physical feature, no different from a handwriting or blood 9
sample, or a scar. “A mere handwriting exemplar, in contrast to 10
the content of what is written, like the voice or body itself, is 11
an identifying physical characteristic outside [Fifth Amendment] 12
protection.” Gilbert v. California, 388 U.S. 263, 266-67 (1967). 13
Here, the tattoo was used to a very different end. 14
Detective Janus did not describe Greer’s tattoo to identify 15
Greer. Rather, the content of Greer’s tattoo, the name 16
“Tangela,” was elicited because Greer’s statement of the name on 17
his skin tended to prove that Greer had a relationship with a 18
person of that name. That fact, in combination with other 19
evidence, allowed jurors to infer that Greer had constructive 20
possession of the ammunition found in the Sonata rented by a 21
Tangela Hudson. See United States v. Gaines, 295 F.3d 293, 300 22
(2d Cir. 2002). The government relied on the tattoo not as an 23
“identifying physical characteristic” but for the “content of 24

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what [was] written.” Gilbert, 388 U.S. at 266-67. The tattoo 1
was therefore testimonial and, because it linked Greer to the 2
ammunition, incriminating. See Hiibel, 542 U.S. at 190 3
(characterizing as incriminating only those “disclosures that the 4
witness reasonably believes could be used in a criminal 5
prosecution or could lead to other evidence that might be so 6
used”). 7
The tattoo, however, was not compelled by the government. 8
Detective Janus testified that he observed the tattoo on Greer’s 9
arm after his arrest. No evidence supports Greer’s contention on 10
appeal that officers were able to read the tattoo only by 11
applying physical force during his arrest. And, even if that 12
were true, it would still not amount to compulsion for Fifth 13
Amendment purposes. The Supreme Court has held that, where the 14
IRS compelled production of voluntarily prepared papers via 15
summons, the taxpayer could not avoid compliance “by asserting 16
that the item of evidence which he is required to produce 17
contains incriminating writing.” Fisher v. United States, 425 18
U.S. 391, 410 (1976). Since “the preparation of all of the 19
papers . . . was wholly voluntary,” they could not “be said to 20
contain compelled testimonial evidence.” Id. at 409-10. The 21
voluntary tattooing of an incriminating word to Greer’s arm was, 22
like the voluntary preparation of documents, not the product of 23
government compulsion. In the absence of compulsion, Greer’s 24

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Fifth Amendment claim fails. The admission of the testimony of 1
Detective Janus regarding Greer’s tattoo was not error, much less 2
plain error. 3
4
II. Sufficiency of the Evidence 5
Greer argues that his conviction for weapon possession 6
should be overturned because the evidence was insufficient to 7
support it. The district court denied Greer’s motion for 8
acquittal under Federal Rule of Criminal Procedure 29, a decision 9
that we review de novo. United States v. Bullock, 550 F.3d 247, 10
251 (2d Cir. 2008). We will not disturb the conviction if, 11
viewing the evidence in the light most favorable to the 12
government, “any rational trier of fact could have found the 13
essential elements of the crime beyond a reasonable doubt.” 14
United States v. Xiao Qin Zhou, 428 F.3d 361, 370 (2d Cir. 2005) 15
(quoting United States v. Bruno, 383 F.3d 65, 82 (2d Cir. 2004)). 16
Greer contends that the government’s case relied on nothing 17
more than a “series of hunches” insufficient to sustain the 18
jury’s verdict. We disagree. Drawing the reasonable inferences 19
in the government’s favor, as we must, we find the evidence more 20
than sufficient to sustain the conviction. The ammunition clip 21
was left next to the driver’s seat of a Sonata that Greer had 22
been seen driving. The car was rented by Greer’s girlfriend, 23
contained a pay stub and receipt in Greer’s name, and was found 24

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outside the apartment into which he fled. In a trash can by the 1
entrance to the same apartment, police recovered keys to the 2
Sonata along with a gun that matched the ammunition clip. 3
Furthermore, Stubbs testified to having seen Greer with the gun, 4
and explained that Greer had armed himself on that day at 5
Stubbs’s suggestion. This evidence could easily convince a 6
rational jury, beyond a reasonable doubt, that Greer had “the 7
power and intention to exercise dominion and control over” the 8
gun and the ammunition. United States v. Gaines, 295 F.3d 293, 9
300 (2d Cir. 2002) (quoting United States v. Payton, 159 F.3d 49, 10
56 (2d Cir. 1998)). 11
12
III. Evidence of Uncharged Crime 13
Greer challenges the district court’s denial of his motion 14
to exclude testimony regarding the robbery he planned with 15
Stubbs. Although evidence of other crimes “is not admissible to 16
prove the character of a person in order to show action in 17
conformity therewith,” it can be used “for other purposes, such 18
as proof of motive, opportunity, intent, preparation, plan, 19
knowledge, identity, or absence of mistake or accident.” Fed. R. 20
Evid. 404(b). The Second Circuit’s “inclusionary rule” allows 21
the admission of such evidence “for any purpose other than to 22
show a defendant’s criminal propensity, as long as the evidence 23
is relevant and satisfies the probative-prejudice balancing test 24

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of Rule 403 of the Federal Rules of Evidence.” United States v. 1
Inserra, 34 F.3d 83, 89 (2d Cir. 1994). The district court 2
acknowledged the possibility of prejudice to Greer but allowed 3
the evidence after concluding that it “does show motive, intent, 4
absence of mistake, and some plan.” 5
We review a decision on admission of evidence for abuse of 6
discretion, id., which we will only find if the district court 7
“acted arbitrarily and irrationally,” United States v. Garcia, 8
291 F.3d 127, 136 (2d Cir. 2002) (quoting United States v. Pitre, 9
960 F.2d 1112, 1119 (2d Cir. 1992)). If the district court 10
abused its discretion, we apply harmless error analysis. United 11
States v. Rea, 958 F.2d 1206, 1219-20 (2d Cir. 1992). Greer 12
argues that the district court erred in allowing Stubbs to 13
testify about their intended robbery, asserting that the 14
testimony showed neither motive nor intent and that, if it did, 15
its probative value was outweighed by unfair prejudice. 16
The district court did not abuse its discretion. Evidence 17
of the proposed robbery was not constrained by Rule 404(b) 18
because it was “necessary to complete the story of the crime on 19
trial.” United States v. Kaiser, 609 F.3d 556, 570 (2d Cir. 20
2010) (quoting United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 21
2000)). Moreover, Stubbs’s testimony fits easily within the 22
Second Circuit’s Rule 404(b) inclusionary rule because it 23
explains why Greer procured the firearm. And the district court 24

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acted well within its “broad discretion” in finding that the 1
probative value of the evidence outweighed whatever threat of 2
unfair prejudice Greer may have faced. See United States v. 3
Birney, 686 F.2d 102, 106 (2d Cir. 1982). 4
5
CONCLUSION 6
For the foregoing reasons, the judgment of the district 7
court is AFFIRMED. 8

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