Submitted: September 23, 2016
from United States District Court for the Southern District
of Iowa - Des Moines
RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
found Christopher Payne-Owens guilty of possession of a
firearm by a felon and unlawful drug user, see 18
U.S.C. § 922(g)(1), (3), and the district
courtsentenced him to 63 months in prison.
Payne-Owens filed this timely appeal. He contends the
district court erred by allowing the government to present
evidence of his gang affiliation and by rejecting his
combined motion for a new trial or judgment of acquittal.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.
January 2014, the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) began investigating Payne-Owens and obtained
a search warrant to access his Facebook account. While
reviewing his profile, ATF agents found two pictures of
interest from November 2012. In the first photo, entitled
"Bout that life, " Payne-Owens posed with what
looked to be a bandolier of ammunition around his head, and
he held up four fingers-a gang sign associated with the Four
Corner Hustlers, an offshoot of the Chicago-based Vice Lords
gang. In the second photo Payne-Owens had what appeared to be
a .45-caliber 1911-style handgun in his waistband and again
raised the four-finger sign. Shortly after posting the
pictures Payne-Owens sent two private Facebook messages to a
friend, which included telling the friend to "See mi new
pic big 45 on mi hip."
was subsequently indicted for unlawful possession of a
firearm and ammunition under § 922(g)(1) and (3). He
pled not guilty, arguing there was no proof that the gun or
ammunition was real because neither artifact was recovered.
Instead, the government planned to introduce circumstantial
evidence that suggested the items were real, including:
Facebook posts by Payne-Owens where he threatened general gun
violence in the context of his involvement with the Four
Corner Hustlers gang; testimony to explain the four-finger
sign, who the Four Corner Hustlers are, and the various slang
words in the Facebook messages; and a threatening Facebook
exchange between Payne-Owens and another individual that
apparently stemmed from a gang dispute about whether the
other was a "real" or "fake" gang member.
The parties filed competing motions in limine regarding the
evidence that revealed Payne-Owens's gang ties, and after
a hearing the district court deemed the evidence admissible
to the extent it provided context for "the circumstances
surrounding the alleged crime" and suggested the gun and
ammunition were, in fact, real.
trial, the government called two witnesses. First, an ATF
firearms expert testified that, although he could not state
with absolute certainty the gun was real, the picture was
consistent with a .45-caliber handgun like the one
Payne-Owens referenced in the post-picture messages. Second,
the ATF agent in charge of the case spoke about Facebook
posts made by Payne-Owens, which were then admitted into
evidence. As put by the district court, these Facebook
statements by Payne-Owens evidenced his "desire to
acquire a firearm, ability to help others acquire a firearm,
and willingness to use a firearm against other people."
But the district court was also aware that some of the
evidence and testimony "explicitly referenced gang
activity, " so the district court verbally instructed
the jury to consider the gang references only for the
"real specific purpose" of determining
"whether the firearm and ammunition were real and
whether the defendant on trial here had a motive to possess
[a real gun] and nothing else."
moved for acquittal at the conclusion of the government's
case, and the district court declined to rule on the motion
immediately. See Fed. R. Crim. P. 29(a)-(b).
Payne-Owens did not offer any additional evidence. During
closing arguments, the government again mentioned
Payne-Owens's boastful Facebook statements about being a
real gang member, unlike the fake gang
member he taunted and threatened, to suggest the pictures
show a "real gun and real ammunition because that's
what you pose with when you're a real Four Corner Hustler
from Chicago." The jury then received its written
instructions-including one regarding how to assess evidence
that referenced his gang membership-and found Payne-Owens guilty
of possessing a real firearm, but not ammunition. The
district court rejected his combined motion for a new trial
or judgment of acquittal and sentenced him to 63 months in
prison. Payne-Owens appeals, challenging the district
court's determinations as to the evidentiary issue and
the sufficiency of the evidence.
Evidence of Gang Membership
first argues the district court abused its discretion by
allowing the government to present evidence that revealed and
related to his gang affiliation. In making this argument on
appeal, Payne-Owens relies on Federal Rule of Evidence
404(b)(1), which provides: "Evidence 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." We
review a challenged Rule 404(b) decision for abuse of
discretion and "reverse only when such evidence clearly
had no bearing on the case and was introduced solely to prove
the defendant's propensity to commit criminal acts."
United States v. Brown, 148 F.3d 1003, 1009 (8th
district court recognized, not all evidence relating to a
defendant's prior bad acts is barred by Rule 404(b). One
reason such evidence may be admissible is because "Rule
404(b) applies only to extrinsic, not intrinsic,
evidence." United Statesv. Young, 753
F.3d 757, 770 (8th Cir. 2014). Evidence "'is
considered intrinsic when it is offered'" to
contribute to the narrative of the story and provide context
for the charged crime-a non-propensity purpose. Id.
(quoting United States v. Johnson, 463 F.3d 803, 808
(8th Cir. 2006)). Also, by its own terms Rule 404(b) does not
prohibit evidence of prior bad acts ...