United States of America v. Darrius Washington

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1331
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
DARRIUS WASHINGTON ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-cr-477-1 — Robert M. Dow, Jr., Judge.
____________________
ARGUED NOVEMBER 14, 2019 — DECIDED JUNE 17, 2020
____________________
Before MANION, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Darrius Washington was charged
with unlawfully possessing a firearm as a felon after police
officers saw him toss a gun into a residential yard. Before
trial the government moved to admit a video posted on
YouTube about three months before the arrest depicting
Washington holding what prosecutors argued was the same
gun. Over Washington’s objection, the district judge permit-

-- 1 of 9 --

2 No. 19-1331
ted the admission of still photos from the video but not the
video itself. The jury found Washington guilty.
Washington challenges the admission of this evidence,
arguing that the photos were irrelevant, inadmissible under
Rule 404(b) of the Federal Rules of Evidence, and unfairly
prejudicial. We disagree. As explained in United States v.
Miller, evidence of recent past possession of the same gun is
admissible for a nonpropensity purpose—namely, to show
the defendant’s ownership and control of the charged fire-
arm—although evidence of past possession of a different gun
would raise Rule 404(b) concerns. 673 F.3d 688, 694–95 (7th
Cir. 2012).
Washington notes, accurately enough, that Miller was a
case about constructive possession and his case involves a
charge of actual possession. That distinction doesn’t make a
difference in the Rule 404(b) calculus. The judge properly
admitted this evidence for a nonpropensity purpose and
minimized its potential for unfair prejudice by limiting the
government to still photos rather than the video itself. We
affirm the judgment.
I. Background
On the afternoon of May 12, 2016, Chicago Police Officers
Bryant McDermott and Robert McHale were on patrol in a
neighborhood on the south side of the city when they no-
ticed Washington standing on a corner with his back to
them. According to the officers’ trial testimony, Washington
turned his head as their unmarked squad approached and
then began walking away. With his right hand, he removed
a shiny, polished chrome handgun from the back of his
waistband and tossed it over a wrought-iron fence into the
front yard of a nearby house.

-- 2 of 9 --

No. 19-1331 3
The officers pulled over, and Officer McDermott sum-
moned Washington to their car. Washington immediately
complied and walked toward them. As Officer McHale
questioned him, Officer McDermott recovered the handgun
from the yard. The officers then arrested Washington and
transported him to the police station. A federal grand jury
indicted him for unlawfully possessing a firearm as a felon.
See 18 U.S.C. § 922(g).
Before trial the government moved to introduce a music
video posted on YouTube about three months before the
arrest depicting Washington and another person displaying
a chrome handgun. The motion papers included a repre-
sentative sample of still photos from the video. The govern-
ment argued that the gun in the video was the same gun that
was recovered from the yard based on certain notable simi-
larities, including “engraved markings on the slide immedi-
ately to the right of [a] blemish or alteration; raised front and
rear sight posts; dark-colored grips; exposed hammers;
ejection ports located on [the] right side of [the] slide; and
trigger guards with similar designs.”
Washington objected to the admission of the video on
several grounds: (1) the government could not prove that the
gun in the video was the same gun that was recovered (or
even that it was a real firearm); (2) the video constituted
improper character evidence in violation of Rule 404(b); and
(3) the prejudicial effect of the video substantially out-
weighed its probative value, so it should be excluded under
Rule 403.
The judge excluded the video but permitted the govern-
ment to introduce the still photos at trial. Rejecting the
Rule 404(b) objection, the judge determined that the gov-

-- 3 of 9 --

4 No. 19-1331
ernment’s purpose for admitting the evidence—to show that
Washington had recently possessed the same gun that the
police recovered from the yard where they saw him toss it—
was disconnected from any forbidden character-propensity
inference. The judge relied on our decision in Miller, which
affirmed the admission of similar evidence of the defend-
ant’s recent possession of the charged firearm—though there
the evidence was testimonial, not photographic. 673 F.3d at
695. The judge also reasoned, however, that some parts of
the video might present a risk of unfair prejudice, so he
excluded the video itself and permitted the government to
introduce the still photos instead.
The case proceeded to trial. Officers McDermott and
McHale both testified that Washington walked away when
their car approached, drew a chrome gun from the back of
his waistband, and tossed it over a fence and into a residen-
tial yard. They also testified that they were concerned for
their safety, although they did not draw their weapons or
order Washington to the ground.
In addition to the two officers, the government also pre-
sented testimony from Special Agent David LaMonte from
the Bureau of Alcohol, Tobacco, Firearms and Explosives,
who examined the gun recovered from the yard and de-
scribed its features. Agent LaMonte told the jury that the
gun recovered by police and the pistol in the still photos
from the video had many similarities. Both firearms had
(1) the same overall size and shape; (2) an uncommon
high-polish chrome finish; (3) trigger guards with a “similar
design”; (4) a dark-colored left grip handle; (5) slide grips;
(6) similar “illegible markings” and “obliterations”; and
(7) raised front and rear sight posts. The recovered gun also

-- 4 of 9 --

No. 19-1331 5
had a red dot near the safety switch, which coincided with a
“red pigmentation” near a “blur” that looked like a safety
switch on the gun in the video. Agent LaMonte acknowl-
edged, however, that he had not inspected the actual gun
that appeared in the video.
Washington testified and denied possessing a gun on the
date in question. When asked about the YouTube video, he
explained that he posed with what he believed to be a
“prop” gun that just happened to resemble the one the
police found. In closing argument the prosecutor maintained
that the recovered gun and the gun in the still photos were
one and the same.
The jury returned a verdict of guilty. Washington moved
for a new trial, arguing that the still photos from the
YouTube video “became the focus of the case and created
the improper inference” that he “had a gun on the day of his
arrest” because he “had a gun before.” The judge denied the
motion, reiterating that Miller controlled and the photos
were admissible under Rule 404(b) as circumstantial evi-
dence of the charged crime.
II. Discussion
On appeal Washington challenges the judge’s decision to
admit the still photos of the YouTube video and the denial of
his motion for a new trial, which rested largely on the under-
lying evidentiary ruling. We review both decisions for abuse
of discretion. See United States v. Truitt, 938 F.3d 885, 889 (7th
Cir. 2019) (evidentiary challenges); United States v.
Westmoreland, 712 F.3d 1066, 1069 (7th Cir. 2013) (motion for
new trial). That standard is difficult to surmount; we will
reverse a decision to admit evidence “only if no reasonable

-- 5 of 9 --

6 No. 19-1331
person would take the judge’s view of the matter.” Truitt,
938 F.3d at 889 (quotation marks omitted).
Washington argues that the only material purpose for
admitting the photos from the YouTube video was to invite
the jury to draw an improper propensity inference in viola-
tion of Rule 404(b), which bars the admission of evidence of
a person’s unrelated bad acts to prove that he has a certain
character trait and acted in conformity with it on the occa-
sion in question. So-called “other-act evidence” may be
admitted for nonpropensity purposes, but the proponent has
the burden to show that the evidence is relevant to a specific
purpose other than character or propensity to behave in a
certain way. United States v. Ferrell, 816 F.3d 433, 444 (7th Cir.
2015). If the proffered evidence supports a propensity infer-
ence, the judge may nonetheless admit it provided that its
relevance to a permissible purpose “is established by ‘some
propensity-free chain of reasoning.’” Id. (quoting United
States v. Gomez, 763 F.3d 845, 856, 860 (7th Cir. 2014)
(en banc)). Once a proper purpose is established, the judge
then determines under Rule 403 whether the probative value
of the other-act evidence is substantially outweighed by the
risk of unfair prejudice. Id.
In Miller we approved the admission of evidence of the
defendant’s prior, uncharged possession of a gun under
Rule 404(b) “where the prior possession was recent and
involved the same gun.” 673 F.3d at 695. Miller was charged
with unlawfully possessing a firearm as a felon after a gun
was found near his belongings in a room where he was
staying. Id. at 691–92. A witness testified that she had seen
him with the same gun about two months earlier, identify-
ing it by its “dark, rusty grey color.” Id. at 694. Miller argued

-- 6 of 9 --

No. 19-1331 7
that this evidence invited the jury to infer that he was the
type of person who unlawfully possessed guns and thus
probably possessed a gun on the charged date. We disa-
greed, explaining that the “testimony was in fact circumstan-
tial evidence of the charged crime.” Id. at 695. Because the
testimony “concerned the same gun, and the prior observed
possession was relatively recent,” it was relevant for the
permissible nonpropensity purpose to show that the defend-
ant “owned or at least had the ability to exercise control”
over the charged gun. Id. We cautioned, however, that
evidence of a defendant’s prior possession of a different gun
was substantially more likely to be used for the impermissi-
ble purpose of showing a propensity to possess guns. Like-
wise, as the prior possession is further removed in time, “it
becomes less probative of possession on the date charged.”
Id.
Here, the government’s purpose for offering the photos
precisely tracks the purpose approved in Miller: to show that
Washington had recent access to, and the ability to exercise
control over, the same gun recovered from the yard where
the officers said they saw him toss it. Because the evidence
involved possession of the same gun, its relevance did not
depend on an inference about Washington’s propensity to
possess firearms in general or any other forbidden inference
about his character.
Washington argues that Miller should be limited to its
facts: the defendant there was accused of constructive pos-
session of a firearm based on the discovery of a gun among
his belongings. In a constructive-possession case, it’s easy to
see how evidence of recent past possession of the same gun
is probative on the question whether the defendant exercised

-- 7 of 9 --

8 No. 19-1331
dominion and control over the charged firearm. This case, in
contrast, involved a charge of actual physical possession of a
firearm, not constructive possession.
We’re not persuaded that the distinction between actual
and constructive possession alters the relevance analysis. To
prove that the defendant constructively possessed the
charged firearm, the government must show that he “had
both the power and intention to exercise dominion and
control over” the firearm. United States v. Lawrence, 788 F.3d
234, 240 (7th Cir. 2015). Actual possession, on the other
hand, “occurs when the defendant has immediate physical
possession or control of a firearm.” United States v. Bloch,
718 F.3d 638, 642 (7th Cir. 2013). Evidence of recent past
possession of the same gun is relevant to prove either “do-
minion or control” of the charged firearm or actual posses-
sion of it on the charged occasion.
Washington relies on several out-of-circuit cases, but
each one involved evidence of the defendant’s access to a
different firearm—not the same gun—or to firearms in
general. See United States v. Caldwell, 760 F.3d 267, 273–74 (3d
Cir. 2014); United States v. Jones, 484 F.3d 783, 785–87 (5th Cir.
2007); United States v. Linares, 367 F.3d 941, 945 (D.C. Cir.
2004). We were careful in Miller to emphasize that evidence
of the defendant’s past possession of a different firearm
would be far more likely to implicate a forbidden character-
propensity inference.
We also reject Washington’s argument about unfair prej-
udice under Rule 403. The judge reasonably determined that
the probative value of this evidence was not substantially
outweighed by the danger of unfair prejudice but took the
cautionary step of excluding the video itself to avoid its most

-- 8 of 9 --

No. 19-1331 9
inflammatory and irrelevant features. What remained was a
handful of still photos showing Washington holding a gun
bearing remarkable resemblance to the gun recovered by the
police from the yard where they said he tossed it. The evi-
dence was recent and relevant to the nonpropensity purpose
of proving his actual possession of that very gun on the
charged occasion. The probative value of the evidence was
substantial and not outweighed by the danger of unfair
prejudice.
Finally, Washington contends that the government drift-
ed into forbidden propensity territory during closing argu-
ment. “Just as introducing evidence to show propensity is
improper, so too is arguing to a jury that it should convict a
defendant based on the defendant’s propensity to commit a
crime.” United States v. Richards, 719 F.3d 746, 764 (7th Cir.
2013) (quotation marks omitted). But that did not happen
here. The prosecutor summarized the testimony of Agent
LaMonte, who emphasized the many similarities he ob-
served between the gun the police recovered and the gun in
the YouTube video. The prosecutor argued only that this
evidence showed that Washington had recent access to and
control over the gun that the officers saw him discard, not
that he had a propensity to possess firearms and so must be
guilty of the charged offense. The government’s argument
stayed within a purpose permitted by Rule 404(b). Because
the photos of the YouTube video were properly admitted
and the government avoided any propensity suggestion, a
new trial is not warranted. See United States v. Carson,
870 F.3d 584, 593 (7th Cir. 2017).
A FFIRMED

-- 9 of 9 --