United States of America v. Demetrius Green

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 24, 2025 Decided August 12, 2025
No. 23-3100
UNITED S TATES OF A MERICA,
APPELLEE
v.
DEMETRIUS GREEN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cr-00222-1)
Molly E. Runkle, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.
Eric Hansford, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Matthew M. Graves, U.S.
Attorney, at the time the brief was filed, and Chrisellen R. Kolb
and Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: HENDERSON , P AN and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Opinion concurring in part and concurring in the judgment
filed by Circuit Judge G ARCIA.

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KAREN LEC RAFT H ENDERSON, Circuit Judge: On
January 20, 2020, reports of gunfire took police to a rowhouse
in Southeast Washington, D.C. There, officers found spent
shell casings but no witnesses and no suspect. They reviewed
footage from a nearby pole-mounted surveillance camera,
installed days earlier for an unrelated investigation. The video
showed someone stepping from the rowhouse, firing a gun into
the air and retreating inside. Later that day, officers executed
a search warrant at the residence. Inside, they recovered a large
quantity of narcotics, digital scales and a firearm. As the
officers entered, Demetrius Green tried to flee through the back
door but was arrested. A jury later convicted him of several
federal drug and firearm offenses based on the surveillance
footage and the evidence recovered from the house.
Green now challenges his convictions on three grounds.
First, he contends that the use of the pole camera violated the
Fourth Amendment, asserting that it constituted a warrantless
search infringing on his reasonable expectation of privacy.
Second, he argues that the evidence at trial was insufficient to
establish that he constructively possessed the drugs found in
the rowhouse. Third, he claims that the district court erred by
admitting two exhibits—a photograph of a bag of powder on
top of a digital scale and a text message referring to a drug
sale—arguing that both amounted to impermissible character
evidence and any probative value was substantially outweighed
by the risk of unfair prejudice. We disagree. The use of the
pole-camera footage did not constitute a search under the
Fourth Amendment. The evidence at trial was sufficient to
establish constructive possession, given Green’s documented
connection to the residence and the items recovered. And the
challenged exhibits were relevant and properly admitted.
Alternatively, even if the exhibits were admitted in error, any
error was harmless. Accordingly, we affirm.

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I. Background
A. Factual Background
In the early morning hours of January 20, 2020, an officer
of the Metropolitan Police Department (MPD) heard gunshots
in her patrol area in Southeast Washington, D.C. ShotSpotter
(a gunshot-detection system) also alerted nearby, close to
917 Wahler Place, Washington, D.C. (917 Wahler), a
rowhouse in a public-housing complex. When officers
responded, they discovered several spent shell casings
scattered on the rear steps of the residence but saw no
immediate suspects or eyewitnesses.
Seeking more evidence, MPD officers reviewed
surveillance footage from a pole-mounted camera that had been
installed two days earlier by the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), which was conducting a
separate investigation. An ATF agent testified that the camera
was monitoring the open-air courtyard behind the rowhouses
in response to reports of drug trafficking and gun violence in
the area. The camera continuously recorded activity in the
shared courtyard and the rear entryways of several rowhouses,
including 917 Wahler. See Gov’t Ex. 52.
When MPD officers examined the footage from the time
of the reported gunfire, they observed an individual emerging
from the rear door of 917 Wahler at around 4:45 a.m. The
individual—a male dressed in a dark hooded sweatshirt, white
pants and tennis shoes—raised a firearm and appeared to
discharge multiple rounds into the air before retreating inside.
Id. The handgun’s muzzle flash was clearly visible on the
recording. See Gov’t Exs. 53 & 54. The footage also showed
a male stepping out of the same door at around 12:25 p.m. See
Gov’t Ex. 52. An ATF agent later identified him as
Demetrius Green.
Based on that investigation, officers applied for and
obtained a search warrant for unlawful firearms or ammunition

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at 917 Wahler. The warrant was executed later the same day.
As officers approached, Green attempted to exit through the
back door but, after seeing police, retreated into the residence.
Officers entered the residence and took Green into custody
without incident. No one else was present at the house. In the
kitchen, officers discovered a clear plastic bag containing 700
oxycodone pills, sorted into smaller bags based on strength,
hidden inside a toaster oven. In a nearby cabinet, officers
recovered three bags containing 288 hydromorphone pills
(another opioid). In other cabinets, they discovered sandwich
bags, two digital scales, a Pyrex cup containing white residue
and a bank card bearing the name “Demetrius Green.”
Upstairs, officers found a loaded firearm—a Glock 23
fitted with a “conversion device” that allowed the handgun to
fire automatically.1 DNA testing on the gun revealed a major
male contributor and a minor contributor. A DNA expert later
excluded Green as the major contributor but concluded that
there was “moderate support” that he was the minor
contributor. App. 870-71. A firearms examiner determined
that the recovered shell casings were from rounds fired by that
gun. There were three bedrooms upstairs (identified at trial as
Bedrooms A, B and C). Of the three, Bedroom A appeared to
be the most occupied room. There, officers found a driver’s
license, a learner’s permit and a bank card, all bearing Green’s
name. They also found a shoebox containing thirty-three small
packages of crack cocaine, several articles of clothing
consistent with those worn by the shooter appearing on the
pole-camera footage and a set of green-and-black headphones.
In Bedroom B, they found a shoebox containing a DHL label
addressed to Green at 917 Wahler. There was also a pre-
employment drug testing form in Green’s name and a notarized
letter—dated several months earlier—from his sister stating
1 The ATF classifies such devices as “machineguns” within the
meaning of 26 U.S.C. § 5845(b). See 27 C.F.R. § 479.11
(invalidated in part by Garland v. Cargill, 602 U.S. 406 (2024)).

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that Green was temporarily residing with her at 102 Irvington
Street. Green’s identification cards listed the same address. In
Bedroom C, officers found a “significant amount” of cash but
did not seize it. App. 690-91.
When officers arrested Green, he had a Motorola
cellphone and another pair of green-and-black headphones.
Officers later extracted information from the phone, which
included an array of photographs, GPS data, text messages and
emails, some of which appeared to link Green to 917 Wahler.
Relevant here, the government later introduced two exhibits
from that data extraction that Green challenges: (1) a
photograph of a bag filled with white powder resting on a
digital scale reading “13.4g” (Exhibit 101), and (2) a text
message Green sent on December 30 saying: “I got sum tree
come support my hustle” (Exhibit 110).
B. Procedural Background
On October 15, 2020, a grand jury indicted Green on
unlawful possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1) (Count 1); unlawful
possession of a machinegun in violation of 18 U.S.C. § 922(o)
(Count 2); three counts of unlawfully possessing with intent to
distribute cocaine base, oxycodone and hydromorphone in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Counts 3-5); and
possessing a machinegun in furtherance of a drug trafficking
offense in violation of 18 U.S.C. § 924(c)(1)(B)(ii) (Count 6).
The government later voluntarily dismissed Count 2. App. 79.
Before trial, Green moved to suppress the footage obtained
from the pole camera, arguing that its use violated the Fourth
Amendment prohibition on unreasonable searches.
App. 40-48. The district court denied the motion. App. 373-
84. It was not convinced that Green had established any Fourth
Amendment standing in relation to 917 Wahler, given his
unclear connection to the residence. App. 382-83. But even
assuming Green had standing, the court found that he did “not
have an expectation of privacy in the particular exposed,

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undifferentiated space captured [by the pole camera],
particularly given the limited period of time of the surveillance
and the manner in which the surveillance was being
conducted.” App. 383. And the court determined that, to the
extent Green did have any expectation of privacy in that space,
“he voluntarily waived it” by firing the handgun there. Id.
The government moved in limine to admit two exhibits
from Green’s cellphone: the photograph of a digital scale with
a bag of powder (Exhibit 101) and the text message referencing
“tree” (Exhibit 110). The district court admitted both under
Federal Rules of Evidence 404(b) and 403. As to Exhibit 101,
the court found that the photograph’s presence on Green’s
cellphone was “relevant to show identity, knowledge and
intent” and concluded that Green’s objections went “largely to
[the exhibit’s] weight and not its admissibility.” App. 431-33.
As to Exhibit 110, the court acknowledged that the message
referenced marijuana rather than the drugs charged in the
indictment but held it was nevertheless “relevant to the
question of whether the defendant had the intent to distribute
[narcotics] on January 20, 2020.” App. 103. The court noted
that any risk of unfair prejudice could be mitigated by a limiting
instruction under Rule 105, clarifying that the exhibits were not
to be used for an improper purpose. App. 103, 432. At trial,
however, Green’s counsel opposed giving such an instruction,
explaining that doing so might unduly emphasize the
exhibits—“a strategic trial decision made by thoroughly vetted
counsel.” App. 1183. The district court required counsel to
confirm that, by declining the instruction, he was “waiving the
right to argue later that the jury must have used it for an
improper purpose.” App. 1182-83. With that understanding,
no limiting instruction was given as to either exhibit.
After a five-day trial, the jury convicted Green on four of
five counts, failing to reach a verdict on Count 6. App. 107-
08. The government later dismissed that charge. App. 105.
On June 16, 2023, the district court sentenced Green to 84
months of imprisonment, followed by 36 months of supervised

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release. Green timely appealed. The district court had
jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction
under 28 U.S.C. § 1291.
II. Standards of Review
Green’s challenges require us to apply different standards
of review. First, in reviewing a denied motion to suppress, we
review “legal conclusions de novo and factual findings for clear
error.” United States v. Brown, 125 F.4th 1186, 1201
(D.C. Cir. 2025).
Second, in assessing a challenge to the sufficiency of the
evidence, we examine the evidentiary record de novo but
“consider it in the light most favorable to the government,
and . . . will affirm a guilty verdict where ‘any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.’” United States v. McGill, 815
F.3d 846, 917 (D.C. Cir. 2016) (quoting United States v. Wahl,
290 F.3d 370, 375 (D.C. Cir. 2002)).
Third, we review the district court’s admission of evidence
under Rules 403 and 404(b) for an abuse of discretion. Id.
at 880. But “[a]n erroneous admission of other crimes
evidence must be disregarded as harmless error unless it had a
substantial and injurious effect on the jury’s verdict.” Id.
(citation modified).
III. Analysis
Green raises three issues on appeal. First, he contends that
the pole-camera evidence violated his Fourth Amendment
rights and should have been suppressed. Second, he asserts that
there was insufficient evidence that he constructively
possessed the drugs found at 917 Wahler. Third, he challenges
the admission of Exhibits 101 and 110 as impermissible
character evidence and improperly risking unfair prejudice.

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A. Pole-Camera Evidence
Green’s primary claim is that the district court erred by
denying his motion to suppress the video evidence recovered
from the pole camera with an unobstructed view of the rear of
917 Wahler. Accessing that footage, he argues, was an
unreasonable search that violated his reasonable expectation of
privacy as protected by the Fourth Amendment. He contends
that because the pole-camera evidence was obtained
unlawfully and was the foundation for the later warrant, the rest
of the evidence against him should also have been excluded as
tainted by that unconstitutional search.
The Fourth Amendment provides: “The right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated.” U.S. Const. amend. IV. Warrantless searches are
ordinarily “per se unreasonable under the Fourth
Amendment—subject only to a few specifically established
and well-delineated exceptions.” Katz v. United States, 389
U.S. 347, 357 (1967). If the government oversteps that
constitutional boundary, the remedy is generally exclusion—
courts must suppress the unlawfully obtained evidence and any
derivative evidence tainted by the violation unless an exception
applies. Utah v. Strieff, 579 U.S. 232, 237 (2016).
The fundamental question Green poses is whether the
government’s use of a pole camera under the circumstances
here constituted a “search” within the meaning of the Fourth
Amendment. The U.S. Supreme Court has set forth two tests
to assess whether government conduct constitutes a search.
First, the “common-law trespassory test” considers whether the
government has physically intruded on private property.
United States v. Jones, 565 U.S. 400, 409 (2012); see also
Florida v. Jardines, 569 U.S. 1, 5-10 (2013). That test is not
relevant here because the pole camera did not physically
intrude at 917 Wahler. Second, the government performs a
search when it intrudes upon a defendant’s reasonable

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expectation of privacy. See Katz, 389 U.S. at 361 (Harlan, J.,
concurring); Jones, 565 U.S. at 406. Determining whether
such an expectation exists involves a two-step inquiry: first,
whether the defendant exhibited an actual, subjective
expectation of privacy; and second, whether that expectation is
one society is prepared to recognize as objectively reasonable.
Smith v. Maryland, 442 U.S. 735, 740-41 (1979). If both
prongs are satisfied, the conduct qualifies as a search and any
resulting evidence is subject to suppression absent a warrant or
a valid exception. See, e.g., Carpenter v. United States, 585
U.S. 296, 304 (2018). Here, Green’s challenge implicates two
strands of Fourth Amendment jurisprudence: the public-view
doctrine and the mosaic theory. We consider each in turn.
1. Public View
The Supreme Court has consistently held that individuals
have no reasonable expectation of privacy in areas exposed to
the public. See Katz, 389 U.S. at 351 (“What a person
knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection.”);
Kyllo v. United States, 533 U.S. 27, 32 (2001) (“[E]xamining
the portion of a house that is in plain public view . . . is no
‘search’ at all” under the Fourth Amendment.). It is nearly
axiomatic that “Fourth Amendment protection of the home has
never been extended to require law enforcement officers to
shield their eyes when passing by a home on public
thoroughfares.” California v. Ciraolo, 476 U.S. 207, 213
(1986); see also Dow Chem. Co. v. United States, 476 U.S. 227,
239 (1986) (taking aerial photos of an industrial plant was not
a search); Collins v. Virginia, 584 U.S. 586, 600 (2018)
(affirming the “ability to observe inside curtilage from a lawful
vantage point”). Our court has similarly recognized that “there
is no reasonable expectation of privacy in the movement of
objects outside a residence where they can be viewed from a
public route or adjoining premises, nor in activities conducted
in the curtilage of a home, even behind a hedge or fence, if they
may be viewed by naked-eye observation.” Brennan v.

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Dickson, 45 F.4th 48, 62 (D.C. Cir. 2022) (citation modified)
(discussing a constitutional challenge to an agency rule
regarding drone flights). Courts have referred to this principle
as the “public-view doctrine”: an observation of an area
exposed to public sight from lawful vantage points does not
constitute a Fourth Amendment search.2
Both Carpenter and Jones also noted that the public-view
doctrine remains good law. See Carpenter, 585 U.S. at 316
(“We do not . . . call into question conventional surveillance
techniques and tools, such as security cameras.”); Jones, 565
U.S. at 412 (“This Court has to date not deviated from the
understanding that mere visual observation does not constitute
a search.”). Apart from Judge Barron’s concurrence in Moore-
Bush, every circuit court to consider whether a pole camera
observing a public area violates a reasonable expectation of
privacy has held it does not.3 Instead, pole cameras “qualify as
2 The government incorrectly refers to this concept as the “plain-
view doctrine,” which typically applies to the permissible seizure of
visible contraband without a warrant. See, e.g., Gov’t Br. 34. The
principle at issue here, which involves whether an individual has a
reasonable expectation of privacy in his public conduct, is a related
but distinct doctrine. See 1 Wayne R. LaFave, Search & Seizure
§ 2.2(a) & n.10 (6th ed. 2024) (discussing the distinction). We refer
to the latter principle as the public-view doctrine.
3 Nearly every circuit to have considered the issue has held that
the use of pole cameras is not a search under the Fourth Amendment.
See United States v. Bucci, 582 F.3d 108, 116-17 (1st Cir. 2009);
United States v. Harry, 130 F.4th 342, 348-51 (2d Cir. 2025); United
States v. Vankesteren, 553 F.3d 286, 291 (4th Cir. 2009); United
States v. Dennis, 41 F.4th 732, 740-41 (5th Cir. 2022), cert. denied,
143 S. Ct. 2616 (2023); United States v. May-Shaw, 955 F.3d 563,
567-69 (6th Cir. 2020); United States v. Tuggle, 4 F.4th 505, 510-11
(7th Cir. 2021); United States v. Hay, 95 F.4th 1304, 1313-18 (10th
Cir. 2024), cert. denied, 145 S. Ct. 591 (2024); United States v.
Gregory, 128 F.4th 1228, 1240-44 (11th Cir. 2025).

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a conventional surveillance technique” to observe areas open
to public view, as specifically blessed by Carpenter. Tuggle, 4
F.4th at 526 (citation modified).
Under the standard application of the public-view
doctrine—that is, without considering the mosaic theory—this
case is not a close one.
The first question under Katz is whether Green exhibited
an actual, subjective expectation of privacy in the rear of
917 Wahler Place.4 A defendant manifests such a desire if he,
at a minimum, takes “normal precautions to maintain his
privacy,” such as installing a high fence to prevent “casual,
accidental observation” from sidewalk traffic. Ciraolo, 476
U.S. at 211-12 (quoting Rawlings v. Kentucky, 448 U.S. 98,
105 (1980)); see also Florida v. Riley, 488 U.S. 445, 450
(1989) (holding that a defendant who had taken
“precautions . . . against ground-level observation” exhibited a
subjective expectation of privacy). Several circuits have noted
the relevance of defendants’ failures to exhibit a subjective
expectation of privacy in areas surveilled by pole cameras. See,
e.g., United States v. House, 120 F.4th 1313, 1317 (7th Cir.
2024); Harry, 130 F.4th at 348.5
The First Circuit, sitting en banc, affirmed the use of pole-
camera footage in a criminal case based on its earlier decision in
Bucci and applying the good-faith exception to the warrant
requirement, but evenly split over whether the surveillance
constituted a search after Carpenter. Contrast United States v.
Moore-Bush, 36 F.4th 320, 328 (1st Cir. 2022) (Barron, J.,
concurring) (finding a search), with id. at 363 (Lynch, J., concurring)
(finding no search).
4 The issue is not whether Green had such an expectation but
whether he showed one by seeking to preserve his actions as private.
See Smith, 442 U.S. at 740.
5 Some jurists and scholars have dismissed the subjective prong
of Katz as a “phantom doctrine” due to its frequent minimization.
Orin Kerr, Katz Has Only One Step: The Irrelevance of Subjective

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Green exhibited no expectation of privacy in the rear of
917 Wahler. As the district court observed, the area was “well
lit,” “entirely open to public view” and was not differentiated
“from the space behind any of the other adjacent townhouses.”
App. 377. Although a chain-link fence surrounded the rear
area of all the townhouses, no fence or hedge separated
917 Wahler from its neighbors. Id. Green has also not
established—and indeed disclaims—that 917 Wahler was his
residence or abode, where a subjective expectation of privacy
might be more readily established. Granted, Green is correct
that none of those facts precludes him from establishing a
subjective expectation of privacy, see Appellant Br. 37, but he
has offered nothing in their stead. Moreover, if Green ever did
show a subjective expectation of privacy, he plainly did not
when he stepped outside to fire a handgun into the air in full
view of the neighborhood. See App. 378.6
Green fares no better under Katz’s second prong. The rear
of 917 Wahler was plainly visible from multiple public vantage
points—including the adjacent parking lot, a public walkway
and the windows of nearby residences. See App. 377. The pole
camera was mounted in a lawful location and recorded only
what was already in plain sight. It did not enter the property,
Expectations, 82 U. Chi. L. Rev. 113, 115 (2015); Carpenter, 585
U.S. at 346 (Thomas, J., dissenting). But the trend is unsurprising—
defendants can often easily show at least some minimal effort to
conceal misdeeds or contraband. If such an intent is less obvious, a
manifest expectation can still be relevant. Moreover, although the
Supreme Court has not required a showing of a manifest subjective
expectation of privacy in some recent cases involving the mosaic
theory (discussed infra), it has also recognized that part of what
renders certain information protected is that individuals take steps
“to preserve [it] as private.” Carpenter, 585 U.S. at 310. In public-
view cases, at least, the consideration remains relevant.
6 Our conclusion aligns with the district court’s view, although
cast in different terms. See App. 383 (describing Green as having
“voluntarily waived” his expectation of privacy).

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peer through barriers or use any technology to reveal what was
otherwise hidden. Cf. Kyllo, 533 U.S. at 40 (holding that use
of “a device that is not in general public use” can sometimes
constitute a search). It captured what any passerby or neighbor
could have seen with the naked eye. That the observation was
recorded and extended over time does not alter that analysis.
The camera saw no more—and, except for its elevation, no
differently—than the public could have seen all along. See
Gov’t Ex. 52. Under the public-view doctrine, then, the
surveillance here did not violate any objectively reasonable
expectation of privacy.7
2. The Mosaic Theory
The crux of Green’s challenge—indeed all of the recent
challenges to the use of pole cameras—is that the aggregation
of surveillance over time violates a reasonable expectation of
privacy, even if any brief or isolated observation would not.
The argument rests on the so-called “mosaic theory,” which
suggests that the government’s collection of numerous discrete
data points over time can create an impermissibly invasive
picture of an individual’s private life, even if any individual
7 The parties devote substantial attention to whether the rear step
at 917 Wahler qualifies as curtilage. But that inquiry does little work
in the public-view analysis. The Fourth Amendment protects
curtilage as an extension of the home, United States v. Dunn, 480
U.S. 294, 300-01 (1987); areas that do not meet that definition are
“open fields” subject to warrantless search, see Oliver v. United
States, 466 U.S. 170, 177-80 (1984). That distinction plays a central
role when a court applies the trespass-based test for searches, as set
out in Jardines, 569 U.S. at 5-7. But where no trespass has occurred,
as here, and the government has merely observed from a lawful
vantage point, the curtilage question has little significance. See
Moore-Bush, 36 F.4th at 369-70 (Lynch, J., concurring) (critiquing
attempts to merge trespass-based reasoning with public-view
analysis). Thus, whether the back step is part of 917 Wahler’s
curtilage is irrelevant to our analysis.

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data point, standing alone, would not constitute a search. See
generally Tuggle, 4 F.4th at 517 (collecting academic
discussions of the theory).
The mosaic theory first emerged in our court’s decision in
United States v. Maynard, in which case we concluded that
tracking a car using a planted GPS device constituted a search.
615 F.3d 544, 560-62 (D.C. Cir. 2010), aff’d sub nom. Jones,
565 U.S. at 400. We held:
[T]he whole of a person’s movements over the
course of a month is not actually exposed to the
public because the likelihood a stranger would
observe all those movements is not just remote,
it is essentially nil. It is one thing for a passerby
to observe or even to follow someone during a
single journey as he goes to the market or
returns home from work. It is another thing
entirely for that stranger to pick up the scent
again the next day and the day after that, week
in and week out, dogging his prey until he has
identified all the places, people, amusements,
and chores that make up that person’s hitherto
private routine.
Id. at 560. The court continued: “Prolonged surveillance
reveals types of information not revealed by short-term
surveillance, such as what a person does repeatedly, what he
does not do, and what he does ensemble. These types of
information can each reveal more about a person than does any
individual trip viewed in isolation.” Id. at 562.
The Supreme Court reviewed that decision in United
States v. Jones, 565 U.S. at 400. There, the Court’s majority
avoided the question of whether aggregated data could ever
amount to a search, relying instead on the trespassory test. Id.
at 404-07. Concurring, Justice Alito—joined by Justices
Ginsburg, Breyer and Kagan—noted that, although “relatively
short-term monitoring of a person’s movements on public

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streets accords with expectations of privacy,” it was possible
that “longer term GPS monitoring” could impinge on such
expectations. Id. at 430 (Alito, J., concurring). Writing
separately, Justice Sotomayor similarly voiced a concern that
the capabilities of GPS monitoring—including its
inexpensiveness, precision, efficiency and limitless storage—
posed serious concerns: “GPS monitoring generates a precise,
comprehensive record of a person’s public movements that
reflects a wealth of detail about [a defendant’s] familial,
political, professional, religious, and sexual associations.” Id.
at 415 (Sotomayor, J., concurring). Those attributes, she
wrote, should be considered when assessing societal
expectations of privacy. Id. at 416.
Since Jones, the Supreme Court has signaled a continuing
willingness to consider the aggregation of data as distinctively
problematic. See, e.g., Riley v. California, 573 U.S. 373, 394
(2014) (noting that the “sum of an individual’s private life” can
be adduced from a warrantless search of a cellphone). In
United States v. Carpenter, the Court concluded that collecting
seven days of cell-site location information (CSLI) was a
search under the Fourth Amendment (despite precedent
suggesting a contrary result). 585 U.S. at 315, 310 n.3.8 The
Court endorsed the theory propounded by Justices Sotomayor
and Alito and found that “individuals have a reasonable
expectation of privacy in the whole of their physical
movements,” even if exposed to public view, and that
accessing the CSLI data contravened that expectation. Id.
at 310-11. It noted that the CSLI data presented “even greater
privacy concerns” than the vehicle GPS data in Jones because
a cellphone “follows its owner beyond public thoroughfares
and into private residences, doctor’s offices, political
headquarters, and other potentially revealing locales,” allowing
8 The government’s primary argument in that case was that an
individual usually has no expectation of privacy in information
voluntarily given to third parties. See Smith, 442 U.S. at 743-44.

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the government to create a comprehensive map of a person’s
movements with “just the click of a button.” Id. at 311-12.
At the same time, the Court cautioned that its decision was
“a narrow one” and that it did not “call into question
conventional surveillance techniques and tools, such as
security cameras.” Id. at 316. It also left undisturbed the
holding in Knotts, in which case it held that using a more
“rudimentary tracking” device that simply “augmented visual
surveillance” for discrete intervals was not a search. Id. at 306
(citing United States v. Knotts, 460 U.S. 276, 281-85 (1983))
(citation modified).
Pole cameras pose a special challenge to the mosaic
theory. In one sense, they are among the most common forms
of surveillance. They rely on a public, unobstructed vantage
point and off-the-shelf technology, not unlike an agent with
binoculars perched atop a telephone pole. But unlike that
unfortunate agent—who will get bored, blink or need to
stretch—a pole camera never looks away. It records
everything, 24/7, for weeks or months, even years, preserving
everything it sees. By aggregating that data, critics worry, the
government can reconstruct not only what happens at a
location, but also the patterns and relationships of the
individuals who pass through it. Little about the underlying
camera technology has changed in recent years but Carpenter’s
embrace of the mosaic theory has made pole-camera challenges
newly relevant to the Fourth Amendment. And as other
technologies like artificial intelligence and facial recognition
improve, the potential capabilities of ubiquitous cameras may
grow exponentially.
Still, other circuit courts have consistently rejected
attempts to extend the mosaic theory to pole cameras. See
supra n.3. Those decisions primarily rely on the continuing
vitality of the public-view doctrine as the Supreme Court has
articulated it, including Carpenter’s reassurance that it did not
invalidate the use of traditional surveillance techniques like

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“security cameras.” See, e.g., Tuggle, 4 F.4th at 525-26
(quoting Carpenter, 585 U.S. at 316). They also sometimes
note that, even if pole-camera surveillance could violate the
Fourth Amendment, the duration of the evidence in their
respective cases was not sufficient to establish such a violation.
See, e.g., id. (18 months permissible but noting the “obvious
line-drawing problem: How much pole camera surveillance is
too much?”); Harry, 130 F.4th at 348 (50 days); Hay, 95 F.4th
at 1316-17 (68 days); see also Carpenter, 585 U.S. at 322-23
(Kennedy, J., dissenting) (deriding the arbitrariness of the
majority’s six-day cutoff).
More fundamentally, there seems a material difference
between the types of data the Supreme Court has found to
implicate mosaic-type concerns—such as omnipresent location
tracking—and the more limited information a fixed pole
camera can capture. The cell-site location data in Carpenter,
like the GPS data in Jones, “provide[d] an all-encompassing
record of the holder’s whereabouts,” revealing “not only his
particular movements, but through them his ‘familial, political,
professional, religious, and sexual associations.’” Carpenter,
585 U.S. at 311 (quoting Jones, 565 U.S. at 415 (Sotomayor,
J., concurring)). Those kinds of data have a “retrospective
quality” that allows the government to reconstruct a suspect’s
past—surveilling him before he was ever a suspect—and to
access “a category of information otherwise unknowable.” Id.
at 312.
By contrast, the observational power of a single pole
camera is both fixed and limited. The Fourth Amendment
“protects people, not places,” Katz, 389 U.S. at 351, so the
simple fact that a public-facing camera records a location
continuously is not itself constitutionally suspect. The question
is what the government in fact learns about an individual from
that camera’s limited perspective. The information may still
be meaningful—agents might see when a person comes and
goes, who visits him or how often he mows the lawn—but it
would tell them nothing about him outside the frame. The

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footage, in other words, “only depict[s] one small part of a
much larger whole.” Tuggle, 4 F.4th at 524. There is a
difference between location-tracking technologies, which
follow a person broadly but shallowly, and fixed surveillance
tools, which observe narrowly but in greater depth. As an
analogy, if an individual’s daily patterns were the surface of the
ocean, CSLI or GPS data would be a buoy drifting across the
water, reporting any contacts along the way. But a pole camera
is anchored in place—it might provide complete information
about the reef it rests on but say little about the sea beyond.
In any event, this case is a poor candidate for applying the
mosaic theory to pole-camera surveillance. The footage here
spanned only two days—far shorter than the weeks or months
involved in other cases where courts have had reservations
about cumulative observation. Given that brief duration, the
government had no opportunity to compile a retrospective
record of Green’s movements or reconstruct his patterns of life.
Nor did the footage itself reveal much—the camera captured
just two fleeting moments in which Green stepped outside,
offering no insight into his associations, routines or private
conduct in the manner condemned in Carpenter. Whatever the
outer bounds of the mosaic theory may be, they are not
approached here. This was short-term, public-facing
surveillance, limited in scope. It did not implicate the privacy
concerns the mosaic theory is intended to address.9
We emphasize, however, the limits of our holding. We do
not suggest that pole-camera surveillance could never amount
to a Fourth Amendment search. In another case, the technology
might be used over longer periods, with more cameras, or in
combination with other tools—such as facial recognition,
9 The parties dispute whether and how Katz’s first prong applies
to a case in which the defendant relies on the mosaic theory. We
need not resolve that dispute because we hold that Green
independently fails to establish an objectively reasonable expectation
of privacy on these facts.

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19
automated tracking or artificial intelligence—to build a far
more comprehensive portrait of an individual’s life. Whether
such surveillance would raise constitutional concerns,
however, is a question left for another day.
In sum, the rear of 917 Wahler was exposed to public view
and the surveillance was brief and unsophisticated. Under the
public-view doctrine, Green lacked any objectively reasonable
expectation of privacy. And because the observation was both
limited and discrete, the mosaic theory does not change that
result.10
B. Sufficiency of the Evidence
Green next challenges the sufficiency of the evidence
supporting his constructive possession of the drugs
undergirding three of his convictions. To convict Green, the
government was required to prove that Green possessed crack
cocaine for Count 3, oxycodone for Count 4 and
hydromorphone for Count 5. See App. 37-38. Green contends
that there was insufficient evidence that he had constructive
possession of any of those drugs.
In a challenge to the sufficiency of the evidence, we
consider the evidentiary record de novo but “consider it in the
light most favorable to the government, and . . . will affirm a
guilty verdict where ‘any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.’” McGill, 815 F.3d at 917 (quoting Wahl, 290 F.3d
at 375). That is a “highly deferential standard,” reflecting that
the jury is “entitled to draw a vast range of reasonable
inferences from evidence, but may not base a verdict on mere
10 In light of our holding, we do not consider Green’s Fourth
Amendment standing to challenge the use of the pole-camera
footage, see Byrd v. United States, 584 U.S. 395, 411 (2018), or
whether the good-faith exception to the warrant requirement could
apply to the police officers’ conduct here, see Davis v. United States,
564 U.S. 229, 238-41 (2011).

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speculation.” United States v. Slatten, 865 F.3d 767, 792 (D.C.
Cir. 2017) (citation modified).
Possession of contraband may be either actual or
constructive. See United States v. Alexander, 331 F.3d 116,
127 (D.C. Cir. 2003). Actual possession requires “direct
physical control.” Henderson v. United States, 575 U.S. 622,
626 (2015). Because Green was not found in actual possession
of any controlled substances, the government had to prove that
he constructively possessed them. “Constructive possession is
established when a person, though lacking such physical
custody, still has the power and intent to exercise control over
the object,” thus “maintaining control” over the object. Id. We
generally permit an inference of constructive possession in two
circumstances. First, it may be inferred that a “sole occupant”
of a residence exercises dominion and control over its entire
contents. United States v. Morris, 977 F.2d 617, 620 (D.C. Cir.
1992) (“A jury is entitled to infer that a person exercises
constructive possession over items found in his home.”).
Alternatively, if the home is shared or if the defendant is simply
discovered close to the contraband, there must be other
evidence connecting him to it. See United States v. Dorman,
860 F.3d 675, 679-81 (D.C. Cir. 2017). For example,
“connection with a gun, proof of motive, a gesture implying
control, evasive conduct, or a statement indicating involvement
in an enterprise—coupled with proximity may suffice.”
Alexander, 331 F.3d at 127 (citation modified).
Green argues that no reasonable jury could find that he was
the sole occupant of 917 Wahler because evidence suggested a
link to at least one other person, including a bank card in the
name of “Roneka Eaton.” See Appellant Br. 45-47. He is
incorrect.
A jury could have permissibly found that Green was the
sole occupant of 917 Wahler. As described above, one room
of the residence was the most lived in and it was full of Green’s
possessions. Indeed, Green’s possessions were found

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21
throughout the house, including in multiple bedrooms and the
kitchen. Cf. United States v. Dykes, 406 F.3d 717, 722 (D.C.
Cir. 2005) (holding that a defendant constructively possessed
contraband where his personal belongings were found in the
same bedroom as drugs and paraphernalia). There was further
evidence that Green had used 917 Wahler for some time,
including a shipping label bearing his name along with several
text messages and emails from his cellphone linking him to
917 Wahler. See, e.g., App. 795-802. Law enforcement also
observed Green in the pole-camera footage as the only
occupant for the day and night before his arrest and no one else
was seen coming or going during that time.
It is true that Green was neither the owner nor lessee of
917 Wahler and some items were discovered that did not
appear to be his. For example, Green points to Eaton’s bank
card and a letter addressed to “Ronnika Jennings.” Appellant
Br. 45-46. There was also evidence that Green was temporarily
living with his sister on Irvington Street. Id. at 46. But much
of that evidence was contradicted. See, e.g., App. 688 (ATF
agent’s testimony that she had found no evidence of a woman
living at 917 Wahler). And, as the government points out,
although that evidence might have led a jury to find that Green
was not an occupant of 917 Wahler, none of that evidence
would require it to do so. See Dykes, 406 F.3d at 722 (noting
that the jury may infer dominion and control over a residence
even if it is shared, although the inference may be less strong);
see also Morris, 977 F.2d at 620. Because the jury could have
reasonably concluded that Green exercised dominion and
control over the whole residence, that is enough.
In sum, there was sufficient evidence for the jury to
conclude that Green was the sole occupant of 917 Wahler and
thus was in constructive possession of all of the contraband
discovered therein.

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C. Evidentiary Issues
Green finally challenges the district court’s admission of
Exhibits 101 and 110 under Federal Rules of Evidence 404(b)
and 403. Exhibit 101 consists of a photograph found on
Green’s cellphone depicting a white powdery substance on a
digital scale and Exhibit 110 contains a text message in which
Green apparently inquired about selling marijuana (“I got sum
tree come support my hustle”). See App. 207, 236.
1. Admissibility
Relevant evidence is admissible, subject to certain limits.
Fed. R. Evid. 402. Whether a piece of evidence is relevant
turns on whether it tends to make any fact of consequence to
the determination of the action more or less probable. Fed. R.
Evid. 401. Whether a piece of evidence is relevant may depend
on an underlying factual predicate. For example, a photograph
is relevant only if there is sufficient evidence to establish that
it depicts what the proponent claims it does. In such
circumstances, a proponent must produce enough evidence to
permit a reasonable jury to find the predicate fact by a
preponderance of the evidence. Fed. R. Evid. 104(b);
Huddleston v. United States, 485 U.S. 681, 689-90 (1988).
Rule 404(b)(1) separately restricts one type of otherwise
relevant evidence—that offered to prove a criminal character
or propensity (i.e., that because a defendant committed a
previous crime, he more likely committed the charged one).
The prohibition does not apply, however, if the same evidence
is offered for other purposes “such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid.
404(b)(2). Even if the evidence could conceivably be used in
an improper way, it is still admissible under Rule 404(b)(2)
provided it has any purpose other than seeking to prove a
criminal propensity. See United States v. Cassell, 292 F.3d
788, 792 (D.C. Cir. 2002).

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Otherwise admissible evidence may also be excluded “if
its probative value is substantially outweighed by a danger
of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. A risk of “unfair
prejudice” can arise when “some concededly relevant evidence
[could] lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged.” Old
Chief v. United States, 519 U.S. 172, 180 (1997). That said,
“Rule 403 ‘tilts, as do the rules as a whole, toward the
admission of evidence in close cases,’ even when other crimes
evidence is involved.” Cassell, 292 F.3d at 795 (quoting
United States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984)).
Green was charged with three counts of possessing with
intent to distribute certain controlled substances—
hydromorphone, oxycodone and crack cocaine. To convict
him of those charges, the government was required to prove
that, on January 20, 2020, Green possessed the controlled
substance, knowingly and intentionally, with the specific intent
to distribute it. See 21 U.S.C. § 841(a)(1), (b)(1)(C). Green’s
identity, knowledge and intent were thus all relevant as facts of
consequence to the verdict.
Combining the applicable standards, the district court was
charged with answering three questions: was the proffered
evidence relevant to at least one of the charged offenses, was it
improperly offered to show Green’s criminal character and was
its probative value substantially outweighed by the risk of
unfair prejudice?
a. Exhibit 101
The district court determined that Exhibit 101 was relevant
because it could be used to show Green’s identity as well as his
knowledge or intent to distribute illegal drugs. App. 431-33.
Because it was being offered for those purposes, the court
reasoned, it did not breach Rule 404(b). Id. The court also
found there was a low risk of any unfair prejudice, particularly

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with a limiting instruction, and thus the photograph’s probative
value outweighed that concern under Rule 403. Id. Green
argues that Exhibit 101 should have been prohibited under Rule
404(b) because a picture of one powdery substance “proved
nothing” about any other drugs concealed in 917 Wahler, the
identity of the person in the photo was not at issue at trial, the
government did not prove the powdery substance was any kind
of narcotic, the government did not prove the photo was taken
by Green and a two-month-old photograph was too remote to
bear on Green’s knowledge and intent at the time of his arrest.
See Appellant Br. 59-61.
Relevance. Exhibit 101 was relevant but its relevance was
conditioned on several predicate facts. Although couched in
Rule 404(b), Green’s objections primarily contest the
photograph’s relevance—or conditional relevance—not its use
as improper character evidence. To illustrate, if the photograph
was taken by Green and the substance pictured was cocaine
packaged for sale, there is no dispute that it would be relevant
to show his identity (as the person in possession of the cocaine
found at 917 Wahler), knowledge (of cocaine or other illegal
narcotics), or intent (to distribute those drugs). None of those
purposes makes it impermissible propensity evidence. Green
attacks the predicate factual bases of those conclusions (who
took the photograph and what it shows), which bear on
conditional relevance under Rule 104(b), requiring only
evidence sufficient for a reasonable jury to find the predicate
facts by a preponderance of the evidence. Huddleston, 485
U.S. at 689-90.
The district court determined the photograph was relevant
because it was taken on Green’s cellphone and it showed what
appeared to be illegal narcotics packaged and weighed for
distribution on one of the scales recovered during the
government’s search of 917 Wahler. App. 431. It then
properly decided (albeit implicitly) that a reasonable jury could
find those predicate facts by a preponderance of the evidence.
See Huddleston, 485 U.S. at 689-90. At least some evidence

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25
suggested that Green had taken the photograph, given that the
image was recovered from his cellphone, contained a
distinctive green-and-black headphone cord resembling ones
found in his possession and depicted a digital scale similar to
those seized from 917 Wahler. Likewise, the powdery
substance pictured could have reasonably been found to be an
illegal drug packaged for distribution, based on its appearance,
the expert testimony describing how drugs are typically
weighed and prepared for sale and the presence of identical
scales found alongside the recovered narcotics. Of course, the
jury could also have rejected those conclusions and disregarded
Exhibit 101 but that fact did not make the photograph
irrelevant.
Green also suggests that, even if the photograph depicts
him with a bag of suspected narcotics, it was taken too long
before his arrest to be relevant. Once again, that is not a
challenge to improper character evidence under Rule 404(b)
but a straightforward relevance objection. But time does not
entirely strip evidence of its relevance, provided it is not
excessively remote and the context is sufficiently similar. See
United States v. Douglas, 482 F.3d 591, 597-98 (D.C. Cir.
2007) (holding that evidence of an earlier arrest for possession
with intent to distribute crack cocaine was relevant to a new
charge more than a year later); Cassell, 292 F.3d at 793 (three-
year-old arrest on the same crime relevant to new charge).
Although the passage of time may bear on the probative value
of the evidence, that consideration is properly the domain of
Rule 403 or fodder for cross-examination, not the relevance
inquiry. The district court was therefore well within its
discretion in determining that a two-month interval was not so
remote as to render Exhibit 101 irrelevant, especially given its
connection to narcotics distribution activities involving similar
(or even the same) paraphernalia. App. 431-32.

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26
Propensity. Because Exhibit 101 was relevant, the next
question is whether it was offered to show Green’s criminal
propensity and thus prohibited under Rule 404(b).11 It was not.
The government introduced Exhibit 101 to establish Green’s
knowledge of and intent to distribute illegal narcotics—both
disputed elements of the charged offenses. This court has
repeatedly found that evidence of past drug distribution is
admissible to establish the charged offense, provided at least
some of the characteristics are the same. See, e.g., United
States v. Pettiford, 517 F.3d 584, 590 (D.C. Cir. 2008)
(evidence of earlier distribution of crack cocaine admissible to
show knowledge of the substance and intent to distribute it
again); United States v. Crowder, 141 F.3d 1202, 1208-09
(D.C. Cir. 1998) (en banc); Douglas, 482 F.3d at 600. Here,
the government used Exhibit 101 for a permissible purpose and
thus Rule 404(b) did not bar its admission.
Risk of Unfair Prejudice. Green finally argues that even if
Exhibit 101 was relevant and otherwise admissible, it should
have been excluded because its probative value was
outweighed by the risk of unfair prejudice under Rule 403. The
district court did not gravely abuse its discretion in finding the
contrary. See Douglas, 482 F.3d at 596. The photograph was
at least somewhat probative of Green’s identity, intent and
knowledge. App. 431. On the other side of the ledger, the risk
of unfair prejudice posed by the photograph Green raises was
the potential that it would be used as improper propensity
evidence. Yet the district court acknowledged that potential
hazard and found that any such prejudice could be eliminated
11 Green’s assertion that the photograph’s admission violated
Rule 404(b) would have to rely on the predicate findings that he took
the photograph and the substance pictured is an illegal narcotic
because, if neither of those facts were so, the photograph would not
be evidence of his past bad acts in the first place. That confusion
illustrates why it is critical to keep the inquiries distinct.
Cf. Douglas, 482 F.3d at 598 n.9 (noting the importance of
separating the relevance and prejudice inquiries).

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through a limiting instruction. App. 432. Such an instruction
would ordinarily be sufficient to alleviate the risk identified by
Green, absent some showing of “compelling or unique
evidence of prejudice.” Cassell, 292 F.3d at 796 (citation
modified); Douglas, 482 F.3d at 601. Here, Green’s defense
asked that no such instruction be given at trial. App. 1182-83.
In such cases, we “only look to that prejudice which would
have accrued despite the giving of a proper limiting
instruction.” Moore, 732 F.2d at 990. But the question at this
point is not whether Exhibit 101 in fact resulted in unfair
prejudice; it is whether the district court correctly conducted
the Rule 403 balancing test at the time the issue was raised.
From that perspective, the district court was well within its
discretion to consider the effectiveness of a limiting instruction
to mitigate any risk of unfairness and the fact that Green later
made a tactical decision not to request one does not affect our
review. The district court therefore did not abuse its discretion
in finding Exhibit 101 passed Rule 403.
In sum, the district court properly concluded that Exhibit
101 was relevant, was offered for a permissible purpose and
passed Rule 403 balancing.
b. Exhibit 110
As to Exhibit 110, the district court found the text message
relevant to Green’s intent to distribute drugs (of a different sort
from those charged) because its language suggested
distribution, rather than personal use, and it had been sent
shortly before the search warrant was executed. App. 102-
03.12 It also determined, under Rule 403, that any risk of unfair
prejudice would be mitigated by a limiting instruction to the
12 The district court erroneously said that the message had been
sent the day before the search warrant was executed but in fact it was
sent approximately three weeks before that date. Compare App. 103,
with App. 236. Although that discrepancy is notable, it does not
affect our holding.

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28
jury. Id. Green argues, in effect, that evidence of his possible
distribution of another drug (marijuana) was irrelevant to his
alleged intent to distribute the drugs at issue here. See
Appellant Br. 61-64. With no permissible use, he suggests, its
only remaining use would be as prohibited propensity
evidence. Id. He also asserts that the evidence should have
been excluded under Rule 403. Id. at 61.
Relevance. Exhibit 110 was likely at least marginally
relevant. As discussed, evidence of past drug sales of one drug
is usually relevant to show knowledge or intent to sell the same
drug. See, e.g., Douglas, 482 F.3d at 600; United States v.
Washington, 969 F.2d 1073, 1081 (D.C. Cir. 1992), cert.
denied, 113 S. Ct. 1287 (1993); United States v. Clarke, 24
F.3d 257 (D.C. Cir. 1994). As our colleague discusses in more
detail, Concurring Op. 1-9, whether past sales of one drug are
still relevant to show knowledge or intent to sell a different
drug can be a closer question. In United States v. Mitchell, we
noted that “we have frequently upheld the admission of
evidence regarding other drug transactions as relevant to intent
in a charged drug transaction.” 49 F.3d 769, 775 (D.C. Cir.
1995). There, the court upheld the admission of evidence of an
uncharged methamphetamine deal as relevant to two
coconspirators’ efforts to obtain cocaine and cocaine base. Id.
at 775-76. Green seeks to distinguish Mitchell on the ground
that the defendants there were part of an ongoing conspiracy
and both were involved in the previous methamphetamine deal.
See Appellant Br. 61. But it is unclear why either of those
distinctions is material. The essential question there and here
is the same: is a previous sale of Drug A relevant to show a
later intent to sell Drug B?13 Green also cites our court’s
decision in United States v. Watson, 171 F.3d 695 (D.C. Cir.
1999). In dicta, the court suggested that the district court on
remand might wish to reconsider its admission of the
13 To be clear, this question bears only on the relevance of the
evidence, not its admissibility under other rules, including Rule 403
and Rule 404.

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29
defendant’s seven-year-old conviction for selling cocaine
(rather than the cocaine base at issue in the case), as its
probative value under Rule 403 might not reach the contested
issues. Id. at 702-03. In dissent, Judge Garland remarked that
neither the seven-year interval nor the differences between the
drugs rendered the conviction inadmissible and the district
court had committed no error. Id. at 708 & n.8 (Garland, J.,
dissenting). In any event, that disagreement does not bind us
here. Moreover, our court has previously upheld the admission
of evidence involving different drugs on different occasions if
it has some relevance other than the forbidden character
inference. See United States v. Gaviria, 116 F.3d 1498, 1532-
33 (D.C. Cir. 1997) (evidence of uncharged heroin transactions
relevant to conspiracy to distribute cocaine); see also Moore,
732 F.2d at 987-88 (evidence of uncharged transactions
involving multiple drugs relevant to the defendants’ intent to
sell cocaine).
Multiple circuit courts have also squarely considered
whether past distribution of one drug is relevant to show
knowledge or intent to distribute another and have generally
determined that it is. See, e.g., United States v. McLean, 581
F. App’x 228, 234-35 (4th Cir. 2014) (heroin in a cocaine case);
United States v. Carpenter, 30 F. App’x 654 (8th Cir. 2002)
(cocaine in a methamphetamine case); United States v.
Hernandez, 896 F.2d 513, 522 (11th Cir. 1990) (marijuana in a
cocaine case); United States v. Broussard, 80 F.3d 1025 (5th
Cir. 1996) (same); United States v. Rubio-Villareal, 927 F.2d
1495, 1503 n.9 (9th Cir. 1991) (“[W]here evidence is offered
to show knowledge and intent, it is not necessary that the illegal
drug involved in the prior offense be identical to the illegal drug
involved in the charged crimes.”).
Ultimately, the bar for relevance is low and the district
court reasonably found that evidence of Green’s marijuana sale
just three weeks before his arrest was relevant to his intent here.
As the court noted, the fact that the drugs were different
“diminished” its probative value but did not eliminate it.

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30
App. 103. The mental states required for both are the same,
thus “evidence that [Green] previously had the state of mind—
the knowledge and intent—to distribute illegal drugs is
probative and thus relevant to whether he had the knowledge
and intent to commit the crime charged here.” McLean, 581 F.
App’x at 235. The proximity of the time the message was sent
further supports the same conclusion. Cf. id. (a six-year
interval did not render a past conviction irrelevant). Thus, the
district court did not abuse its discretion in concluding the
proffered text message was relevant.
Propensity. Exhibit 110 was used for a permissible
purpose—showing Green’s knowledge and intent to sell
controlled substances—not to show any criminal propensity
proscribed by Rule 404. Indeed, the government specifically
stated in its closing argument that the text message was “good
proof of [Green’s] possession with the intent to distribute the
drugs that were seized in this case,” not that Green had a
propensity to deal drugs or was a “drug dealer.” App. 1237.
Because the evidence was offered for a permissible purpose, it
was admissible under Rule 404(b).
Risk of Unfair Prejudice. Exhibit 110’s probative value
was not substantially outweighed by the risk of unfair prejudice
under Rule 403. Granted, the probative value of Exhibit 110
was limited. The text message involved a different drug with
no clear link between the message and 917 Wahler and the
message was unmoored from any physical evidence. But as the
probative value was low, so too was the risk of unfair prejudice.
The message was neither inflammatory nor likely to mislead
the jury and its weight could be readily challenged by the
defense. As before, the district court also properly considered
using a limiting instruction, even if none was ultimately given
due to defense counsel’s tactical judgment. See Moore, 732
F.2d at 990. On balance, although Exhibit 110’s probative
value was not particularly strong, neither was its potential for
undue prejudice and the district court was justified in
concluding that it met the Rule 403 test.

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31
In sum, the district court correctly determined that Exhibit
110 bore some relevance to the charged offenses, was
introduced for a permissible purpose and survived scrutiny
under Rule 403.
2. Harmless Error
Even if we concluded that Exhibits 101 or 110 were
admitted in error, however, that alone would not compel
reversal. See Fed. R. Crim. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial rights
must be disregarded.”). “For nonconstitutional errors like the
one[s] [Green] asserts here, ‘an error is harmless’ and thus does
not compel reversal ‘if it did not have a substantial and
injurious effect or influence in determining the jury’s verdict.’”
United States v. Milligan, 77 F.4th 1008, 1012 (D.C. Cir. 2023)
(quoting United States v. Powell, 334 F.3d 42, 45 (D.C. Cir.
2003)). Because Green timely objected to the introduction of
both exhibits, the “burden of showing the absence of prejudice”
is on the government. United States v. Olano, 507 U.S. 725,
741 (1993). Only if we are “in grave doubt about the
harmlessness of the error” must the conviction be reversed.
United States v. Smart, 98 F.3d 1379, 1390 (D.C. Cir. 1996)
(citation modified).
“The introduction of other crimes evidence to illuminate
intent carries an inherent risk of . . . prejudice” because the
permissible inference (intent) is “very close” to the
impermissible one (propensity). Mitchell, 49 F.3d at 777. The
“most significant factor” that can negate an error’s impact on
the verdict is “the weight and nature of the evidence against the
defendant.” Milligan, 77 F.4th at 1012 (quoting McGill, 815
F.3d at 886). Limiting instructions that “guard the space
between the permissible and impermissible inferences” can
also reduce the impact of any erroneously admitted evidence.
Mitchell, 49 F.3d at 777. Conversely, “dramatic [or]
compelling” evidence that might “rivet the jury’s attention on
[the defendant’s] bad character” could increase the chance of a

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32
harmful error. United States v. Brown, 597 F.3d 399, 405 (D.C.
Cir. 2010); see also United States v. Sheffield, 832 F.3d 296,
309 (D.C. Cir. 2016).
Here, to the extent either exhibit was incorrectly admitted,
any error was harmless. Because Green constructively
possessed the contraband inside 917 Wahler, there was
substantial evidence of his involvement in drug distribution
even without the photograph or text message, including
numerous digital scales, sandwich baggies, cutting agents and
significant amounts of cash. The jury also heard testimony
from the government’s witnesses about Green’s possessions
(including identification cards) in the house, his occupancy
there and the typical operations of stash houses, all of which
further minimize the impact of both exhibits. Moreover, the
quantity of the drugs found and the fact that they were
packaged for street distribution further supports the reasonable
inference that Green had an intent to distribute them. See
United States v. Williams, 233 F.3d 592, 595 (D.C. Cir. 2000)
(a reasonable jury may infer from “the quantity of drugs
possessed” and “the fact that [the] drugs were segregated into
‘baggies’” that a defendant had an intent to distribute). Neither
the photograph nor the text message was dramatic or
compelling such that the jury’s attention would have been
riveted on it as evidence of Green’s character. Instead, they
were small pieces of the evidence connecting him to at least
some of the drugs in 917 Wahler. Although Green argues that
the exhibits were the only direct evidence of drug distribution,
see Appellant Br. 63-64, the volume of the indirect evidence is
sufficient to render any misstep in admitting them harmless.
The government further suggests that, for the purpose of
the harmless-error analysis, we should assume that the district
court gave a limiting instruction in light of Green’s tactical
decision to decline one. See Gov’t Br. 61. Green responds that
he was “not required to reiterate this damaging evidence to the
jury in the form of an instruction to preserve his claim that it
should never have been introduced in the first place.” Reply

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33
Br. 31. Green’s argument is misplaced—the relevant issue is
not preservation (which is uncontested), but whether the
purportedly inadmissible evidence resulted in prejudicial error,
a risk that could have been mitigated by an instruction.
Although the caselaw on declined limiting instructions is
sparse, several circuit courts have held that declining such an
instruction at least weakens a later claim of undue prejudice.
See, e.g., United States v. Wheeler, 540 F.3d 683, 693 (7th Cir.
2008) (“Because [defendant] waived the opportunity to
alleviate the risk of unfair prejudice, we decline to reverse the
district court’s evidentiary ruling on the grounds that the [Rule
404(b)] evidence was unfairly prejudicial”); United States v.
Monks, 774 F.2d 945, 955 (9th Cir. 1985) (“[W]e will uphold
a district court’s refusal to grant a mistrial where the prejudice
resulting from introduction of the improper character evidence
is minimal, and the judge’s offer to give a limiting instruction
is rejected.” (citation modified)); United States v. Tejeda, 974
F.2d 210, 215 (1st Cir. 1992) (harmless Rule 404(b) error after
defendant declined limiting instruction); cf. Moore, 732 F.2d
at 990. Relatedly, a tactical decision by defense counsel not to
seek a limiting instruction—and a district court’s resultant
failure to give one—does not preclude finding harmless error.
See United States v. Williams, 212 F.3d 1305, 1311 (D.C. Cir.
2000) (concluding that an officer’s prejudicial statement was
harmless error given the strong evidence of defendant’s guilt
and the fact that defense counsel did not seek a limiting
instruction to address the comment). Taken together, these
cases reflect a common-sense principle that a defendant who
declines a limiting instruction bears at least some responsibility
for the risk of prejudice the instruction might have averted.
Accordingly, although we uphold the admission of
Exhibits 101 and 110, in the alternative, any error was also
harmless and their admission does not warrant reversal.

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* * *
For the foregoing reasons, Green’s convictions are
affirmed.
So ordered.

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GARCIA, Circuit Judge, concurring in part and concurring in
the judgment:
I join the court’s opinion except for Part III.C.1.b. There,
the majority affirms the district court’s ruling that Federal Rule
of Evidence 404(b) did not bar Exhibit 110’s admission despite
powerful arguments that the exhibit amounted to impermissible
character evidence. That holding is unnecessary to resolve this
case, as we all agree that any error in admitting Exhibit 110 was
harmless. See United States v. Burnett, 827 F.3d 1108, 1118–
19 (D.C. Cir. 2016) (deeming any error harmless and declining
to address 404(b) issue). By nonetheless reaching the question
of Exhibit 110’s admissibility, the majority needlessly wades
into a complex area of the law that has deeply divided the
circuits. And it extends our precedent in ways that contradict
Rule 404(b)’s text and core purpose. I write separately to
identify the difficult issues our cases and now the majority here
have breezed past, and to explain why I do not join the court’s
holding on this issue.
Rule 404(b)(1) prohibits the introduction of propensity
evidence: “Evidence of any other crime, wrong, or 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.” Rule 404(b)(2) then states that evidence of
other bad acts “may” nonetheless “be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.”
In criminal cases, Rule 404(b) serves the important
purpose of ensuring that a defendant is tried for his alleged
conduct, and not based on a character-related assumption “that
he is by propensity a probable perpetrator of the crime.”
Michelson v. United States, 335 U.S. 469, 475 (1948). Put
another way, the Rule prohibits evidence suggesting “that
because the defendant committed another bad act, he is more
likely to have committed the charged act.” United States v.

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2
Mitchell, 49 F.3d 769, 774 (D.C. Cir. 1995); see also United
States v. Caldwell, 760 F.3d 267, 276 (3d Cir. 2014)
(explaining that the Rule ensures “an accused is tried for what
he did, not who he is”).
Reconciling that principle with the “Permitted Uses” listed
in Rule 404(b)(2) can sometimes prove difficult. “Intent,” for
example, is a permitted use. So, focusing myopically on Rule
404(b)(2), one might say that the Rule poses no bar to
admission whenever the government ostensibly introduces a
prior bad act as evidence of a defendant’s “intent” rather than
his “character.” But what if the only way the act is probative
of a defendant’s “intent” is through an inference that he has a
propensity to commit bad acts, the very “character”-based
reasoning that Rule 404(b)(1) prohibits? Is that truly sufficient
to evade Rule 404(b)(1)?
This case illustrates the dilemma. Demetrius Green was
tried for possessing with intent to distribute oxycodone,
hydromorphone, and cocaine base. To help establish his intent
to distribute, the government introduced Exhibit 110, a text
message in which Green purportedly offered to sell someone
marijuana (it said: “I got sum tree come support my hustle,”
App. 236). As the majority correctly notes, the text message
does not suggest anything except that Green had once offered
to distribute drugs: “The text message involved a different
drug with no clear link between the message and 917 Wahler
[Place,] and the message was unmoored from any physical
evidence.” Maj. Op. 30. The text message did not show, for
example, that Green had previously attempted to sell drugs in
a manner similar to how he allegedly intended to distribute the
drugs at issue here. Nor did the text message insinuate that he
had used similar paraphernalia to sell drugs, or that he had sold
drugs in the same location or to the same person.

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3
Logically, the only way a bare allegation of Green’s intent
to sell marijuana on one occasion could be thought relevant to
show he intended to distribute other drugs on this occasion is
by reasoning that Green is the type of person who intends to
distribute the drugs he possesses—in other words, that he is a
drug dealer. This means the conclusion the government asked
the district court to draw (that Exhibit 110 was relevant to
Green’s intent to distribute) rested exclusively on an
intermediate inference sounding in propensity reasoning (that
because Green had acted like a drug dealer once, he was more
likely to have acted that way again). Cf. United States v.
Matthews, 431 F.3d 1296, 1313 n.1 (11th Cir. 2005) (Tjoflat,
J., concurring in the judgment) (“It is difficult to argue that a
person had an intention to do something on a particular
occasion because he or she demonstrated that intention
previously without implicitly suggesting that the person has a
proclivity towards that intent.”).
The government’s view is not easy to square with Rule
404(b). There is a strong intuition that it must be improper for
the government to introduce evidence whose relevance to the
defendant’s intent rests entirely on a propensity inference: here,
that the defendant has a propensity for dealing drugs. The text
of the Rule suggests as much. Rule 404(b)(1) prohibits the use
of prior bad acts “to prove a person’s character” and to show
that the person “acted in accordance with the character.” If the
government’s only theory of relevance relies on the inference
that a defendant “acted in accordance with” how he has acted
before, the evidence is seemingly inadmissible, full stop.
Rule 404(b)(2) does not say otherwise. The “Permitted
Uses” it lists do not constitute exceptions to Rule 404(b)(1), but
rather examples of ways to admit other-act evidence “for
another purpose”—that is, a purpose other than the one
forbidden by Rule 404(b)(1). A natural reading of Rule 404(b),
and one that fits its commonly accepted purpose, is therefore

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4
that the proponent of the other-act evidence must establish its
relevance to a permitted use without relying purely on
character-based inferences.
Indeed, at trial, the government seemed to share that
intuition about the Rule. As the court recounts, the government
was careful to assert that it did not introduce Exhibit 110 to
show “that Green had a propensity to deal drugs or was a ‘drug
dealer.’” Maj. Op. 30. The government said it introduced the
text message for the supposedly different purpose of showing
Green’s “intent to distribute the drugs that were seized in this
case.” Id. (quoting App. 1237). I fail to see the distinction.
The government offered no explanation for how the text
message could show that Green intended to distribute the
narcotics at issue except insofar as it suggested that he had a
propensity for drug dealing.
To frame the concern in more practical terms, imagine that
a juror received a limiting instruction telling her not to use the
text as evidence of Green’s “character,” but that she could use
it as evidence of his “intent.” It strikes me that any reasonable
person would have no earthly idea how to proceed. The juror
might gather that she may not look to Green’s one-time offer
to sell drugs as a reflection of his “character” and reason that
he is the type of person who more likely intended to distribute
drugs this time around. But if that is so, how else could she
conclude the evidence is relevant to Green’s intent?
Commentators have repeatedly criticized the
government’s question-begging logic. As one puts it, “it is
hard to see how this use avoids the propensity inference from
character; namely, that a person with a history of selling drugs
has a propensity to sell drugs and that is therefore what the
defendant intended to do with the drugs in this case.” Paul S.
Milich, The Degrading Character Rule in American Criminal
Trials, 47 Ga. L. Rev. 775, 786–87 (2013). Another explains:

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5
“[C]ourts too often fail to demonstrate how the mental leap
from possessing a particular state of mind on one occasion to
possessing the same state of mind on a different occasion does
not involve the use of a character-propensity inference.” David
P. Leonard, The New Wigmore: Evidence of Other Misconduct
and Similar Events § 7.5.2 (2d ed. Supp. 2025). Similar
criticisms from respected authorities abound. See, e.g., Julius
Stone, The Rule of Exclusion of Similar Fact Evidence:
America, 51 Harv. L. Rev. 988, 1033 (1938) (describing
permissive admission of other-act evidence as “utter
perversions of the object of the original rule”); 1 Edward J.
Imwinkelried, Uncharged Misconduct Evidence § 5:2 (2025
ed.) (explaining that evidence should not be admissible to
prove intent under Rule 404(b) if “the prosecution must rely on
an intermediate bad character inference”); Daniel J. Capra &
Liesa L. Richter, Character Assassination: Amending Federal
Rule of Evidence 404(b) to Protect Criminal Defendants, 118
Colum. L. Rev. 769, 789–95 (2018).
As these scholars lament, some courts have (mostly
without acknowledging these concerns) admitted other-act
evidence when it is relevant in any way to a defendant’s intent.
See Maj. Op. 29 (collecting cases). But several others—
including at least the Third, Fourth, and Seventh Circuits, and
one panel for the Sixth Circuit—have articulated limits on such
use of other-act evidence. Those courts guard against the
danger of “intent . . . blend[ing] with improper propensity
uses” by “not just ask[ing] whether the proposed other-act
evidence is relevant to a non-propensity purpose but [also
asking] how exactly the evidence is relevant to that purpose . . .
without relying on a propensity inference.” United States v.
Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (en banc); United
States v. Miller, 673 F.3d 688, 698 (7th Cir. 2012); 1 Robert P.
Mosteller et al., McCormick on Evidence § 190.11 (9th ed. Feb.
2025 update) (endorsing Seventh Circuit’s approach); see also
Caldwell, 760 F.3d at 277 (requiring “a chain of inferences that

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6
does not contain a propensity link”); United States v. Hall, 858
F.3d 254, 277 (4th Cir. 2017) (demanding “propensity-free
chains of inferences”). Applying that requirement, some of
these courts exclude evidence of other drug activity unless the
government can show a meaningful, non-propensity
“linkage . . . in time, manner, place, or pattern of conduct”
between the charged and uncharged acts. Hall, 858 F.3d at 261
(citation modified); see id. at 272–75; see also Miller, 673 F.3d
at 700; United States v. Bell, 516 F.3d 432, 443 (6th Cir. 2008)
(permitting evidence of other distribution activity only if it was
“part of the same scheme or involved a similar modus
operandi”). But see United States v. Hardy, 643 F.3d 143, 151
(6th Cir. 2011) (casting doubt on Bell but requiring that the
other act be “substantially similar and reasonably near in time”
to charged conduct (quotation omitted)).
Courts of appeals, in short, “sharply disagree” over how to
reconcile Rule 404(b)’s prohibition against propensity
reasoning with its list of permitted purposes. Capra & Richter,
supra, at 794. Some of the basic questions underlying that
disagreement include: Is other-act evidence admissible when
its relevance to a permitted purpose rests entirely on propensity
inferences? If not, what counts as a permissible non-propensity
inference? These questions are no doubt difficult to resolve in
a way that facilitates practical application. To my eye,
however, our cases to date have not grappled with them in the
slightest. Instead, our cases fall into the group that seems to
proceed as if the only question when a Rule 404(b) objection is
raised is whether the evidence is relevant in any way to a
permitted use. See Maj. Op. 28–30.
Still, our precedent by no means dictates the majority’s
conclusion here. For one thing, the majority uncritically
endorses the government’s assertion that it is not “propensity”
reasoning to use Green’s alleged offer to distribute marijuana
as evidence that he subsequently intended to distribute

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7
oxycodone, hydromorphone, and cocaine base. Id. at 30. I
have already explained why that logic, without more, is
indistinguishable from “the very kind of reasoning—i.e., once
a drug dealer, always a drug dealer—which 404(b) excludes.”
Bell, 516 F.3d at 444 (citing Old Chief v. United States, 519
U.S. 172, 180–81 (1997)); see also Miller, 673 F.3d at 700.
For another, our cases have not blessed the introduction of
evidence whose relevance is so purely based on propensity
inferences as the text message here. To illustrate the point,
consider the in-circuit cases cited by the majority. In most of
them, the other-act evidence featured the defendant distributing
the same type of drug as the one charged in the indictment. See
Maj. Op. 26–28. And in each, the other-act evidence shared
some meaningful similarity with the charged conduct that made
it probative of something beyond a generic proclivity to
distribute drugs. See id. For example, in United States v.
Pettiford, 517 F.3d 584 (D.C. Cir. 2008), the defendant was
indicted after officers recovered cocaine from his car’s center
console; the other-act evidence was that officers had recovered
cocaine from another car’s center console after observing the
defendant reach inside the car and then conduct a cocaine sale.
See id. at 586–87. In United States v. Crowder, 141 F.3d 1202
(D.C. Cir. 1998) (en banc), the other-act evidence involved the
defendant selling cocaine “on the same block” where he was
alleged to have possessed heroin and cocaine with intent to
distribute. Id. at 1203–04. And in United States v. Douglas,
482 F.3d 591 (D.C. Cir. 2007), the other-act evidence
“involved sale of the same substance in almost the same
neighborhood.” Id. at 601; see also id. at 599 (noting that
charged drug sales occurred around the time and place of prior
sales introduced under Rule 404(b)); United States v.
Washington, 969 F.2d 1073, 1081 (D.C. Cir. 1992)
(emphasizing “similarity of the transactions” where other drug
sale occurred around the same time and place as charged
offense, and involved same paraphernalia); United States v.

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8
Clarke, 24 F.3d 257, 263–66 (D.C. Cir. 1994) (admitting
evidence of other drug sales at same drugstore parking lot and
to same middleman).
So too in Mitchell, the principal case the majority
highlights from our court in which the prior act involved a
different type of drug from the one charged in the indictment.
The similarities between the charged act and the uncharged
drug-distribution activity there were also notable. For one of
the two defendants, the charged and uncharged conduct
occurred contemporaneously, and each incident involved him
allegedly providing transportation services for his co-
conspirator. 49 F.3d at 775–76. For the other, the uncharged
conduct showed him orchestrating a complex drug transaction
in ways that mirrored the charged offense. Id. at 772–75; see
also United States v. Gaviria, 116 F.3d 1498, 1532–33 (D.C.
Cir. 1997) (describing contemporaneous drug sales arranged by
same co-conspirators using code words just as in the charged
incident); United States v. Moore, 732 F.2d 983, 988 (D.C. Cir.
1984) (describing the other acts evidence as showing “a pattern
of drug possession and dealing taking place immediately before
the conspiracy alleged in the indictment”).
In each of these cases, the other-act evidence helped
demonstrate the defendant’s intent to distribute narcotics in a
particular place, or in a particular manner. Each piece of
evidence would, at least arguably, be admissible under the
more careful approach taken by some of our sister circuits.
No such similarity is present here. The text message is an
unadorned statement of intent to sell one drug (marijuana) on
one occasion, and its sole purpose at trial was to invite the
inference that Green was more likely to distribute different
drugs (oxycodone, hydromorphone, and cocaine base) on a
different occasion. Cf. Maj. Op. 28 (framing the question as
“is a previous sale of Drug A relevant to show a later intent to

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9
sell Drug B?”). We have never affirmed the admission of
evidence under Rule 404(b) that sounds so loudly in propensity
reasoning.*
To be sure, precisely because our cases thus far have not
grappled with the difficult questions this case illustrates, the
majority’s decision today may well be a defensible application
of our precedent. But that does not mean it is a sound one. The
majority reaches its holding by reading our cases broadly and
extending their logic to new terrain, all while giving short shrift
to the countervailing interests underlying Rule 404(b). The
result is to place our precedent in greater tension with the text
and basic purpose of the Rule, the weight of informed
scholarship, and the decisions of other courts of appeals.
Particularly because doing so was unnecessary to resolve this
case, I do not join that analysis.
* The majority opinion states several times that Green allegedly
sent the text message offering to sell someone marijuana three weeks
before his arrest. See Maj. Op. 27–30. The government did not make
any argument based on temporal proximity on appeal, and so I would
not consider it. See Appellee’s Brief 59–60; Al-Tamimi v. Adelson,
916 F.3d 1, 6 (D.C. Cir. 2019) (“A party forfeits an argument by
failing to raise it in his opening brief.”). In any event, without
evidence establishing a more specific link between the charged and
uncharged conduct, I doubt it should make a difference that Green
recently acted like a drug dealer.

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