United States of America v. Johneak Johnson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1264
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
JOHNEAK JOHNSON ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-cr-832-1 — Sharon Johnson Coleman, Judge.
____________________
A RGUED NOVEMBER 30, 2023 — DECIDED J ANUARY 5, 2024
____________________
Before HAMILTON , K IRSCH , and PRYOR , Circuit Judges.
HAMILTON , Circuit Judge. Defendant-appellee Johneak
Johnson has been indicted for violating 18 U.S.C. § 922(g)(1)
by possessing a firearm as a person previously convicted of a
felony. He awaits trial. To challenge a pretrial ruling exclud-
ing evidence from trial, the government has brought this in-
terlocutory appeal under 18 U.S.C. § 3731. Relying on Federal
Rule of Evidence 403, the district court decided before trial to
exclude evidence that the firearm in question had an attached

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2 No. 23-1264
laser sight and that two key witnesses saw the sight activated
when defendant possessed (and brandished) the firearm. The
district court found that any evidence regarding the laser
sight would cause unfair prejudice to the defendant that
would substantially outweigh its probative value.
The government proposed to limit the laser sight evidence
to reduce any risk of unfair prejudice. The government’s final
proposal was to have its witnesses describe the firearm only
as having a “glowing red dot,” without naming the laser sight
or physically demonstrating that feature of the firearm. The
district court found that the risk of unfair prejudice from even
this limited evidence of the laser sight would still substan-
tially outweigh its probative value. The court stood by its de-
cision to exclude all evidence of the laser sight under Rule 403.
We apply a deferential abuse-of-discretion standard of re-
view to a district court’s decision to admit or exclude evidence
under Rule 403. District judges are more familiar with their
cases and are generally in the better position to gauge both
probative value and risk of unfair prejudice. Nevertheless,
and with respect for our colleague on the district court, this is
one of those rare cases where reversal is warranted. The issue
here is broader than this case—the government’s ability to of-
fer evidence identifying a weapon the accused is charged with
possessing unlawfully, even if that identifying evidence tends
to show the weapon is particularly dangerous. With slight
variations, this issue can arise in many cases.
In our view, the district court both understated the
probative value of the identifying laser sight evidence and
overstated the risk of unfair prejudice to the defendant. At a
minimum, the government’s final proposal, set forth in its
motion for reconsideration, should be sufficient to avoid

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No. 23-1264 3
unfair prejudice to the defendant. Upon remand, the
government is entitled to carry out its final proposal to the
district court—primarily that its witnesses describe the laser
sight only as a “glowing red dot” on the handgun—
accompanied by an appropriate limiting instruction.
I. Evidence of the Charged Offense
We do not intend to imply any views about the ultimate
merits of the charge against Johnson, but audio and video re-
cordings allow us to describe some events with confidence
even before trial. On the morning of April 28, 2019, Caziah
Walton called 911 to report a violent domestic dispute be-
tween her mother, Naomi Thompkins, and defendant John-
son at Thompkins’ Chicago home. Walton told the 911 opera-
tor, “my mother’s boyfriend is trying to put his hands on her
and she keeps asking him to leave and he’s refusing to leave.”
Eight minutes later, Walton made a second 911 call. She
told the operator, “My mom’s boyfriend just pulled out a gun
on her.” Walton described the gun to the 911 operator as
“black” with “a red dot glowing on it.” Walton also told the
operator that the defendant had moved from the house to his
car. She described the defendant and the car.
Four Chicago police officers arrived at Thompkins’ home
approximately six minutes later. Dispatch had told them of a
domestic dispute at the location after Walton’s first 911 call.
After the second call, dispatch updated the officers that “the
mom’s boyfriend pulled a gun on her. He’s standing near his
silver Impala, male black, dreads, green hoodie, black hat,
blue jeans, black shoes.” The officers immediately saw a man
matching that description, later identified as defendant John-
son. As the officers approached, they saw him put something

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4 No. 23-1264
into the open rear passenger door of a Nissan Infiniti. Johnson
then walked toward the sidewalk in front of Thompkins’
home.
The officers got out of their patrol cars and stopped John-
son. At the same time, Thompkins came outside, stood on her
front porch, and warned the officers that Johnson had a gun
on him. The officers frisked Johnson but found no firearm. Af-
ter the frisk, the officers handcuffed him.
Thompkins walked down from her front porch to the
parked Infiniti. She opened the rear passenger door and called
out to the officers that she had found the gun, saying, “here
you go, right here.” An officer told Thompkins not to touch
the gun. She responded, “I ain’t gonna touch it. Ask my kids,
he pulled it out on me and my kids.” The officer then asked
Thompkins where the gun was located. She responded, “it’s
right there on the seat.”
The officer told Thompkins to return to her front porch.
Other officers secured Johnson in a police car. The officer then
briefly looked into the open door of the Infiniti before walking
to his police car for a moment. When the officer then immedi-
ately returned to the open door of the Infiniti, Thompkins said
to him, “See it? Below that jacket right there.” The officer lifted
two articles of clothing from the back seat, revealing a gun.
Thompkins approached the officer at the Infiniti again to
point at the gun and said “right there. Right there.” The officer
again told Thompkins to stay away from the car. The officer
showed one of his colleagues where the gun was. That second
officer put on a pair of gloves and retrieved the gun. The gun
was equipped with a laser sight that glowed red when

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No. 23-1264 5
activated by applying pressure to a pad on the gun’s grip.
Johnson was immediately arrested.
II. District Court Proceedings
A. September 9, 2022 Pretrial Conference: Domestic Dispute
Evidence
A federal grand jury indicted Johnson for possessing a
firearm following a felony conviction in violation of 18 U.S.C.
§ 922(g)(1). The district court held a pretrial conference on
September 9, 2022. During the conference, the court decided
to exclude any evidence of the domestic dispute between de-
fendant Johnson and Thompkins. The court reasoned that
such evidence would be unfairly prejudicial to the accused
because the federal charge was being a felon in possession,
not armed domestic assault. Specifically, the court said it
would exclude Walton’s first 911 call and any related testi-
mony. The court also instructed the government that its wit-
nesses could refer to the interactions between Thompkins and
defendant Johnson before he allegedly brandished the firearm
only as an “argument.” The court said it would allow evi-
dence of Walton’s second 911 call—when she reported the
gun with the red dot on it. The court also told counsel to work
together to draft a limiting instruction telling the jury not to
give any weight to the domestic dispute.
B. January 12, 2023 Pretrial Conference: Laser Sight Evidence
On January 12, 2023, the district court held another pretrial
conference and addressed evidence of the laser sight. The
government told the court that it intended to present testi-
mony regarding the firearm’s laser sight and to have an ATF
agent demonstrate the feature at trial. The court expressed
concern that evidence of the laser sight would be unfairly

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6 No. 23-1264
prejudicial because it would cause the jury to think of the case
as a trial for attempted murder rather than for being a felon in
possession. At the court’s invitation, the defense filed a mo-
tion in limine explaining its objection to the laser sight evi-
dence.
C. January 26, 2023 Pretrial Conference: Laser Sight Evidence
The district court held another pretrial conference on Jan-
uary 26, 2023, with extensive argument on the laser sight evi-
dence. The court said it was not likely to permit a demonstra-
tion of the laser sight feature. The court also said it was lean-
ing toward admitting the mention of a “glowing red dot” in
Walton’s second 911 call, as well as allowing Walton to testify
to that specific description of the gun, but the court took the
issue under further advisement.
D. District Court Order Excluding Laser Sight Evidence
The next week, the district court issued an order excluding
all evidence of the laser sight. The court began by
acknowledging that the laser sight had some probative value
because it could corroborate the testimony of Walton and
Thompkins. But the court then explained that “any reference
to a ‘red dot,’ or to laser sights more generally” would be
excluded under Rule 403 because “admitting inflammatory
evidence or testimony in this case will invariably lead down
a slippery slope where the parties discuss the underlying
domestic dispute—one for which Johnson was not charged.”
The court wrote further that “even a limited discussion of the
laser sight exacerbates the Court’s concern that a juror may
decide the case based on their perception as to whether
Johnson was extremely dangerous, instead [of] on whether

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No. 23-1264 7
the government proved, beyond a reasonable doubt, that he
unlawfully possessed a gun as a felon.”
E. Motion for Reconsideration
The government moved to reconsider. The motion pro-
posed to limit the laser sight evidence further, so that none of
its witnesses would describe seeing a red dot pointed at them
or on anyone’s clothing (indicating that the gun was aimed at
them). They would instead say only that they saw a glowing
red dot on the gun. The government also offered to limit the
ATF agent’s testimony so that he would not describe the fea-
ture as a laser sight. Instead, he would use a photograph to
explain how the feature functions so that the jury could see
the weapon as it appeared to the government’s witnesses at
the time they claim Johnson possessed it.
The government argued that the laser sight evidence
would be highly probative. It would help prove the central
disputed element in the case—the defendant’s possession of
the firearm with that distinctive feature. The evidence would
also help corroborate the testimony of its eyewitnesses. This
would be vital, the government argued, because the defense
had signaled that it would suggest that Walton and Thomp-
kins had fabricated their testimony and that Thompkins her-
self had planted the gun in the defendant’s car.
The district court denied the government’s motion for re-
consideration, finding that even the more limited laser sight
evidence the government proposed would risk unfair preju-
dice to the accused. The government appealed.
III. Standard of Review
Rule 403 provides: “The court may exclude relevant
evidence if its probative value is substantially outweighed by

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8 No. 23-1264
a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
In criminal cases, this determination is made against the
backdrop of the general presumption that the prosecution is
entitled to tell “a colorful story with descriptive richness” and
“evidentiary depth.” Old Chief v. United States, 519 U.S. 172,
187–90 (1997). The rule gives the district court discretion in
the first instance, and appellate courts review Rule 403
decisions for abuse of discretion. E.g., United States v. Chanu,
40 F.4th 528, 544 (7th Cir. 2022). The question is not whether
we would make the same decision as the district court. When
we review the context-sensitive application of Rule 403, “‘we
give special deference’ to the district court’s findings and
reverse only when ‘no reasonable person could take the view
adopted by the trial court.’” United States v. LeShore, 543 F.3d
935, 939 (7th Cir. 2008), quoting United States v. Cash, 394 F.3d
560, 564 (7th Cir. 2005).
Abuse of discretion is a high standard but not an
insurmountable one. The Supreme Court reversed a Rule 403
finding in Old Chief v. United States, also a felon-in-possession
prosecution. 519 U.S. at 191–92. Or compare appellate review
of Rule 403 decisions to review of grants and denials of
preliminary injunctions, which are also subject to abuse-of-
discretion review. Reversals of Rule 403 exclusions are rarer
than preliminary injunction reversals, but they are not
unknown. From this circuit’s decisions, see Thompson v. City
of Chicago, 722 F.3d 963, 976 (7th Cir. 2013) (abuse of discretion
to exclude guilty-plea testimony of non-party officers to
corruption charges; risk that evidence would cause jury to
decide case on an improper basis—the outrageous conduct of
other officers—did not substantially outweigh its probative

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No. 23-1264 9
value); Cerabio LLC v. Wright Medical Technology, Inc., 410 F.3d
981, 994 (7th Cir. 2005) (abuse of discretion to exclude all
evidence from before the parties entered into agreement that
formed basis of contract dispute when some excluded
evidence was central to case); Mihailovich v. Laatsch, 359 F.3d
892, 910–13 (7th Cir. 2004) (abuse of discretion to exclude all
evidence of prior car accidents at same allegedly dangerous
curve in road); United States v. Centracchio, 265 F.3d 518, 530–
32 (7th Cir. 2001) (abuse of discretion to exclude statements of
a deceased co-conspirator), abrogated on other grounds by
Crawford v. Washington, 541 U.S. 36 (2004); United States v.
Messino, 181 F.3d 826, 830–31 (7th Cir. 1999) (abuse of
discretion to exclude testimony of defendants’ co-conspirator
despite attorney conflict of interest); Buscaglia v. United States,
25 F.3d 530, 533–34 (7th Cir. 1994) (clear error to exclude
expert witness affidavit; court erred by discounting probative
value of affidavit while significantly overstating risk of unfair
prejudice and confusion from admission).1
1 This circuit is not alone in reversing Rule 403 exclusions in appropri-
ate cases, though such reversals are relatively rare. See, e.g., United States
v. Soler-Montalvo, 44 F.4th 1, 18–19 (1st Cir. 2022) (abuse of discretion to
exclude defense expert’s testimony on how defendant’s behavior differed
from a typical sexual predator); United States v. Pepin, 514 F.3d 193, 207–09
(2d Cir. 2008) (abuse of discretion to exclude from guilt phase of capital
trial prosecution’s evidence that murder victims had been dismembered);
Herber v. Johns-Manville Corp., 785 F.2d 79, 83 (3d Cir. 1986) (abuse of dis-
cretion to exclude evidence of increased future risk of cancer on theory
that “mere mention of that dread disease” would unfairly prejudice de-
fendant); United States v. Bajoghli, 785 F.3d 957, 966 (4th Cir. 2015) (abuse
of discretion to exclude post-scheme conduct showing guilty mind); Ballou
v. Henri Studios, Inc., 656 F.2d 1147, 1155 (5th Cir. Unit A Sept. 1981) (abuse
of discretion to exclude results of blood alcohol test); Sutkiewicz v. Monroe
County Sheriff, 110 F.3d 352, 360 (6th Cir. 1997) (abuse of discretion to

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10 No. 23-1264
IV. Analysis
In our analysis, we focus on the most limited version of the
laser sight evidence proposed by the government in its mo-
tion for reconsideration. The government sought to introduce
laser sight evidence in the following manner:
1. Testimony by Thompkins and Walton that
each saw a “glowing red dot” or “red dot”
on the defendant’s gun as he brandished it;
2. The recording of Walton’s second 911 call
without redacting her description of the gun
as having a “red dot glowing on it;” and
3. Testimony by an ATF agent explaining that
the gun found in defendant’s car had a fea-
ture that would appear as a “red glowing
dot” when pressure was applied to the pres-
sure pad located beneath the gun’s trigger
exclude taped interviews showing pastor told defendant of non-public
facts about murder before defendant confessed and included those de-
tails); American Modern Home Ins. Co. v. Thomas, 993 F.3d 1068, 1071–72 (8th
Cir. 2021) (abuse of discretion to exclude three prior convictions when wit-
ness credibility was paramount); Obrey v. Johnson, 400 F.3d 691, 697–99
(9th Cir. 2005) (abuse of discretion to exclude anecdotal evidence of past
discrimination); Dugan v. EMS Helicopters, Inc., 915 F.2d 1428, 1435 (10th
Cir. 1990) (abuse of discretion to bar use of pleadings from another case
containing prior inconsistent statements); Busby v. City of Orlando, 931 F.2d
764, 783–84 (11th Cir. 1991) (abuse of discretion to exclude chart showing
number of employees fired each year by race); Henderson v. George Wash-
ington Univ., 449 F.3d 127, 135–36, 141 (D.C. Cir. 2006) (abuse of discretion
to exclude post-surgery report for a different patient in medical malprac-
tice suit).

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No. 23-1264 11
guard, along with a photograph of the fea-
ture rather than a demonstration.2
In denying the motion for reconsideration, the district
court explained that while the proffered evidence was proba-
tive, it was not “central” to the government’s case. The court
reasoned that the government had ample other evidence to
prove possession and that the laser sight evidence would be
so highly prejudicial that it could not be mitigated by the gov-
ernment’s proposed limits. The court based its finding of prej-
udice on several factors, including: (1) the current environ-
ment of frequent mass shootings in the United States; (2) the
laser sight served no purpose other than to make the gun
more dangerous by increasing its accuracy; and (3) the likeli-
hood that the evidence would turn a simple possession case
2 The government also proposed a limiting jury instruction that would
say:
You have heard testimony regarding a feature of the fire-
arm allegedly possessed by defendant that makes a glow-
ing red dot appear on the firearm when pressure is ap-
plied to the pressure pad located beneath the firearm’s
trigger guard. This feature is not illegal, and it does not
make a gun any more dangerous than a gun without this
feature.
We agree with the district judge that a laser sight probably tends to make
a gun more dangerous, or at least makes a shooter more accurate. We also
agree that instructions focusing the jury on the issue of possession are
likely to be helpful, given the potential for collateral issues to distract the
jury. We also recognize that some jurors might infer that the “red dot” on
the gun is a laser sight. Given these considerations, we leave the framing
of appropriate limiting instructions to the sound judgment of the district
court on remand.

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12 No. 23-1264
into one where the jury viewed the defendant as “an assassin
preying on women and children.”
Reversal is warranted on two grounds. First, the district
court unduly discounted the probative value of the laser sight
evidence. It is central to a contested element of the offense—
possession—including the credibility of the government’s
eyewitnesses on the issue of possession. Second, the district
court gave undue weight to the risk of unfair prejudice if the
government is held to its proposed limited version of the laser
sight evidence. Based on considerably greater probative value
and less risk of unfair prejudice than the district court recog-
nized, the Rule 403 balance shifts decisively in favor of admit-
ting the evidence. The risk of unfair prejudice clearly does not
substantially outweigh the probative value.
A. Probative Value of the Laser Sight Evidence
1. The Central Issue of Possession
The district court found that the laser sight evidence
would be probative but is not “central” to the government’s
case. We respectfully disagree. The laser sight evidence tends
to prove a key disputed element of the charged crime—
possession of a particular firearm. See United States v. Kapp,
419 F.3d 666, 677 (7th Cir. 2005) (“[I]f evidence is probative of
an issue relevant to an element of the offense, it must be
admitted in all but the most extreme cases.”). On another Rule
403 issue in a felon-in-possession case, the Supreme Court
reminded courts of “the familiar, standard rule that the
prosecution is entitled to prove its case by evidence of its own
choice,” that “making a case with testimony and tangible
things not only satisfies the formal definition of an offense,
but tells a colorful story with descriptive richness,” and that

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No. 23-1264 13
the “persuasive power of the concrete and particular is often
essential” for jurors to do their jobs. Old Chief, 519 U.S. at 186–
87; accord, id. at 195 (O’Connor, J., dissenting) (“Although
petitioner’s possession of any number of weapons would
have satisfied the requirements of § 922(g)(1), obviously the
Government [is] entitled to prove with specific evidence that
the petitioner possessed the weapon he did.”).
2. Probative Value
It seems to us axiomatic that identifying features of a
firearm a defendant is charged with unlawfully possessing—
including evidence of an attached laser sight—are central to a
felon-in-possession case. Defendant and the district court
have not cited, nor have we found, cases in which evidence of
any distinguishing features—even dangerous features—of
the firearm in question was even controversial, let alone
actually excluded under Rule 403.
Beyond this general axiom, the laser sight evidence is
highly probative for two reasons specific to this case: (a) the
district court’s broad exclusion of other evidence has in-
creased the probative value of the laser sight evidence; and
(b) the defense intends to attack the credibility of the govern-
ment witnesses, and evidence of the laser sight tends to cor-
roborate their testimony, thereby increasing its probative
value.
a. Limits on Other Evidence
In finding that the laser sight evidence was not “central”
for the prosecution, the district court observed that the gov-
ernment had “ample other evidence” to prove possession. It
is true that the probative value of evidence is relative. The pro-
bative value of a single piece of evidence may decrease with

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14 No. 23-1264
every additional piece of evidence a party introduces to prove
the same point. At the same time, “the prosecution with its
burden of persuasion needs evidentiary depth to tell a contin-
uous story.” Old Chief, 519 U.S. at 190. The prosecution is not
limited to providing bare-bones proof of the elements of the
crime. It is entitled to tell “a colorful story with descriptive
richness.” Id. at 187. Here, the government should not be re-
quired to sanitize its description of the firearm when the de-
tails are probative of possession. This is true even when other
evidence relevant to possession is available to the govern-
ment.
The district court’s challenged Rule 403 exclusion bars any
mention of a key identifying feature of the gun—either by the
government’s witnesses or in the second 911 recording. Ab-
sent the laser sight evidence, all the jury will hear from the
witnesses is that they saw Johnson wielding a nondescript
black gun.
Other rulings by the district court, which are not chal-
lenged on appeal, will exclude almost all mention of the
events leading up to the defendant’s alleged brandishing of
the gun. The government’s witnesses have been ordered to
refer to the preceding events only as an “argument.” The first
911 call was to be excluded in its entirety. The district court
also ordered the second 911 call redacted to eliminate any ref-
erence to the first 911 call or the domestic dispute. This ex-
cluded evidence speaks to the defendant’s possible motives
for possessing and brandishing the gun, so the court’s order
eliminates from the government’s case circumstantial evi-
dence that is probative of possession. The court also ordered
that all audio on the police officers’ body-camera recordings

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No. 23-1264 15
be muted for trial. The audio includes numerous statements
by Thompkins relevant to possession.
We have previously explained that a district court may
abuse its discretion when it narrows evidence so strictly that
a litigant is essentially prevented from presenting his or her
case. See Thompson v. City of Chicago, 722 F.3d 963, 971 (7th Cir.
2013) (reversing exclusion of evidence that non-party police
officers pled guilty to related crimes); Cerabio LLC v. Wright
Medical Technology, Inc., 410 F.3d 981, 994 (7th Cir. 2005)
(reversing exclusion of parties’ dealings before entering into
contract). Under the district court’s rulings, we are concerned
that “jurors may well wonder what they are being kept from
knowing.” Old Chief, 519 U.S. at 189.
Moreover, even if evidence of the laser sight is admitted,
witnesses Walton and Thompkins will be under court and
prosecution instructions to say less than they remember about
what they experienced. Such instructions impose additional
pressures on lay witnesses in an already stressful situation.
After all, the witnesses ordinarily will have just taken an oath
to tell “the whole truth,” but there are some truths they are
not allowed to mention. The instructions to limit testimony
may therefore impair the witnesses’ credibility and, as a con-
sequence, the credibility of the prosecution. “People who hear
a story interrupted by gaps of abstraction may be puzzled at
the missing chapters, and jurors asked to rest a momentous
decision on the story’s truth can feel put upon at being asked
to take responsibility knowing that more could be said than
they have heard.” Id.
Gaps in the government’s narrative risk the jury drawing
an unfair negative inference against the government. See id.
at 188. This can be a significant risk when the government

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16 No. 23-1264
bears the burden of persuasion beyond a reasonable doubt.
The evidence probative of possession that has already been
excluded serves to increase the probative value of the laser
sight evidence.
b. Corroboration and Attacks on Credibility
None of the police officers saw defendant hold a gun or
place one in his car. The body camera videos show only that
Johnson put something in his car. The government must con-
vince the jury to infer, beyond a reasonable doubt, that this
“something” was the gun. Walton’s and Thompkins’ testi-
mony offers the only direct evidence that the defendant pos-
sessed a firearm. The second 911 call helps to corroborate this
evidence.
Walton’s and Thompkins’ credibility is likely to be pivotal.
Acquittal or conviction will hinge on whether the jury be-
lieves Walton and Thompkins saw Johnson possess a firearm
before the police arrived and whether the firearm in question
was the one found in Johnson’s car. Johnson has made clear
that his primary trial defense will be to attack Walton’s and
Thompkins’ credibility, arguing that they fabricated their
story and planted the gun in his car.
The defense will have grounds on which to attack their
credibility, including a mistaken description of Johnson’s car
and a prior conviction for a crime of deception. Further, as
Johnson was being arrested, Thompkins told him, “I told you
not to play with me!” That statement suggests a motive and
plan for revenge against him. The body camera recordings
show that Thompkins walked up to Johnson’s car, opened the
rear door, and then announced to police that she had found a
gun. We have not seen anything that conclusively refutes the

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No. 23-1264 17
possibility that Thompkins planted the gun in defendant’s
car.3
Given the likely attacks on Walton’s and Thompkins’ cred-
ibility, the prosecution’s desire to offer more detailed and cor-
roborated testimony is understandable. We believe the dis-
trict court substantially underestimated the probative value
of the evidence of the laser sight on the charged firearm. See
generally United States v. Norweathers, 895 F.3d 485, 491 (7th
Cir. 2018) (affirming admission of extremely prejudicial evi-
dence under Rule 403 because it was “highly probative of the
issues that, at the time, appeared to be central to [defendant’s]
anticipated defense”).
B. The Risk of Unfair Prejudice
We agree with the district court that the laser sight evi-
dence will likely cause some prejudice to the defendant, but
as the judge recognized, the issue is the risk of unfair preju-
dice. See, e.g., United States v. McKibbins, 656 F.3d 707, 712 (7th
Cir. 2011). “Evidence poses a danger of ‘unfair prejudice’ if it
has ‘an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.’”
United States v. Rogers, 587 F.3d 816, 822 (7th Cir. 2009), quot-
ing Fed. R. Evid. 403 advisory committee’s note.
3 Our decision addresses evidence the government should be allowed
to introduce in its case-in-chief. The parties, the district judge, and this
court are all aware that attacks on these witnesses’ credibility could easily
open the door to subjects the district court hopes to avoid. These include
details of the confrontation in which the witnesses say Johnson bran-
dished the firearm, particularly the witnesses’ claim that Johnson pointed
the laser sight at Thompkins and her children. Regardless of the outcome
of this appeal, such doors could still be opened by Johnson’s trial strategy.

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18 No. 23-1264
The district court found that even the government’s lim-
ited version of the laser sight evidence could serve only to
cause the jury to decide the case based on perceptions that the
defendant is particularly dangerous. We disagree. As dis-
cussed above, the laser sight is a key identifying feature of the
gun the defendant is charged with possessing. The descrip-
tion of any dangerous weapon may highlight the weapon’s
dangerousness. But it also helps to identify the weapon,
which is often, as here, central to proving possession. See
United States v. West, 53 F.4th 1104, 1108 (7th Cir. 2022) (“De-
pending on the nature of the offense, graphic or disturbing
evidence may be central to the government’s case.”).
The district court overstated the risk that the laser sight
evidence would cause the jury to decide the case based on
perceptions about the defendant’s dangerousness. First, any
evidence of a firearm can be inflammatory given a firearm’s
innate dangerousness. Such evidence is still necessary in a
felon-in-possession trial. Second, the government’s proposed
limits on the laser sight evidence mitigate the risk of unfair
prejudice. We discuss these factors in turn.
1. Descriptions of Firearms and Risk of Unfair Prejudice
As a general matter, evidence that risks unfair prejudice
often inheres in elements of a crime or civil claim. That’s why
we have cautioned district courts to avoid excluding evidence
under Rule 403 when the governing law requires evidence
that risks inflaming the jury or may cause the jury to decide
the case on an improper basis. See Dean v. Wexford Health
Sources, Inc., 18 F.4th 214, 234 (7th Cir. 2021) (“By its nature,
evidence of a defendant’s past violations creates a risk that the
jury” will decide on improper grounds, but “it is usually nec-
essary in Monell cases to introduce evidence of a prior pattern

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No. 23-1264 19
of similar constitutional violations”); Thompson, 722 F.3d at
976 (danger of introducing evidence of other officers’ “outra-
geous conduct” was “heavily discounted” because “that risk
is always present in a conspiracy claim”).
Evidence about a dangerous weapon is unavoidable in a
felon-in-possession trial. That need does not change in an era
of highly publicized mass shootings. Some types of weapons
are obviously more dangerous than others. Compare a
modern AR-15 semi-automatic rifle with high-capacity
magazines and a laser sight and bump stock to an old six-shot,
single-action revolver. Yet evidence of the type of gun
allegedly possessed is regularly introduced during felon-in-
possession trials. In United States v. Perryman, 20 F.4th 1127,
1134–36 (7th Cir. 2021), for example, the defendant was
convicted of being a felon in possession of a loaded AR-15
rifle. No one would think of requiring the government to
sanitize evidence of that weapon so that it would be presented
as a generic, nondescript firearm.
We generally agree with the district court that a laser sight
tends to make a firearm more dangerous by making it easier
to aim and shoot accurately. But identifying features and
modifications of firearms, including laser sights and others
that make firearms more dangerous, are regularly introduced
as evidence at felon-in-possession trials with little or no
controversy. United States v. Holt, 486 F.3d 997, 999–1000 (7th
Cir. 2007) (testimony describing gun with laser sight admitted
in felon-in-possession trial); United States v. Adams, 375 F.3d
108, 110 (1st Cir. 2004) (same); United States v. Wilburn, 473
F.3d 742, 743 (7th Cir. 2007) (laser sight admitted in felon-in-
possession trial); United States v. Tinsley, 62 F.4th 376, 381–82
(7th Cir. 2023) (evidence of extended magazines admitted in

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20 No. 23-1264
felon-in-possession, bank-robbery, and drug trial); United
States v. Byers, 603 F.3d 503, 505–06 (8th Cir. 2010) (evidence
and argument about extended magazine and hollow-tipped
ammunition was relevant in felon-in-possession trial; not
prosecutorial misconduct to comment on them); United States
v. McCurdy, 634 F. Supp. 2d 118, 121–22 (D. Me. 2009)
(evidence of flash suppressor and collapsible stock admitted
in felon-in-possession trial).4
2. Proposed Limits to Reduce Risk of Unfair Prejudice
In a felon-in-possession case, the identity of the charged
firearm is often central to the case, as it will be here. The risk
of unfair prejudice from describing the firearm is therefore
modest, even if a description includes a dangerous feature.
The description addresses the core element of possession—
the basis upon which the jury should be deciding the case.
To ensure that the evidence is not relied upon for an im-
proper purpose, we assume that the district court may have
discretion to exclude evidence of threatening actions taken by
the defendant. This might include here evidence that, accord-
ing to the prosecution witnesses, Johnson pointed a firearm at
Thompkins and her children with the laser sight activated. Cf.
United States v. Hite, 364 F.3d 874, 878, 881–82 (7th Cir. 2004)
(affirming convictions in illegal firearm possession case; dis-
trict court did not abuse discretion by allowing witness to
4 The opinions in these cited cases do not indicate that any defendant
objected to evidence of firearm characteristics under Rule 403. We cite
them on this point to indicate that evidence of firearm characteristics, even
dangerous ones, seems to be admitted routinely and with little contro-
versy. As noted, neither the defense, the district court, nor our research
has found a prior case excluding under Rule 403 evidence of characteris-
tics of a firearm that is the subject of the charged offense.

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No. 23-1264 21
testify that defendant held charged revolver, placed one
round in it, spun the barrel, and pulled the trigger to demon-
strate knowing possession, but barring witness under Rule
403 from characterizing those events as “Russian roulette” or
testifying that defendant pointed revolver at her), judgment
vacated on other grounds, 543 U.S. 1103 (2005).
In its motion to reconsider, the government suggested lim-
its on the evidence to reduce the risk of unfair prejudice to
Johnson. Again, the government proposed to limit the evi-
dence to identifying a glowing red dot on the gun, as opposed
to describing a laser sight by name. The government also said
it would not have witnesses testify that they saw a red dot on
anyone’s clothing, indicating that the firearm was aimed at
them with the laser sight activated. These limits on the laser
sight evidence should minimize any risk that it will cause the
jury to view the defendant as an “assassin” or as unusually
dangerous. Far from conveying any explicit or implied mes-
sage that the red dot was a dangerous feature of the firearm,
the limited laser sight evidence should keep the jury focused
on the central issue in the case: did the defendant possess the
firearm recovered from the scene—a black handgun with a
glowing red dot?
Limiting the evidence to descriptions of a “glowing red
dot” on the gun should ensure that any prejudice caused by
the laser sight evidence is not unfairly prejudicial to the de-
fendant. Compare Holt, 486 F.3d at 999 (allowing testimony
describing gun with a laser sight in felon-in-possession trial),
with United States v. Klebig, 600 F.3d 700, 715–16, 722 (7th Cir.
2009) (reversing conviction in unlawful firearm possession
case; district court should have limited under Rule 403 a live
courtroom demonstration of defendant’s two dozen legally

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22 No. 23-1264
possessed firearms). In our view, the district court did not ad-
equately account for the government’s proposed limits on the
laser sight evidence. This led the district court to overweigh
the risk of unfair prejudice in its Rule 403 analysis.
C. Balancing
Rule 403 requires a balance. The district court must deter-
mine whether the danger of unfair prejudice (or other prob-
lems such as confusion or wasting time) substantially out-
weighs the challenged evidence’s probative value. The bal-
ancing test under Rule 403 is a “sliding scale.” United States v.
West, 53 F.4th 1104, 1108 (7th Cir. 2022). “The amount of prej-
udice that is acceptable varies according to the amount of pro-
bative value the evidence possesses. ‘[T]he more probative the
evidence, the more the court will tolerate some risk of preju-
dice, while less probative evidence will be received only if the
risk of prejudice is more remote.’” United States v. Boros, 668
F.3d 901, 909 (7th Cir. 2012), quoting United States v. Vargas,
552 F.3d 550, 557 (7th Cir. 2008), quoting in turn United States
v. Menzer, 29 F.3d 1223, 1234 (7th Cir. 1994).
Our disagreements with the district court affect the
weights assigned to both sides of the scale. The district court
erred by unduly discounting the probative value of the laser
sight evidence while simultaneously overstating the danger
of unfair prejudice, at least with the limits the government
proposed. These differences in weight are so substantial that
they necessarily change the result of the Rule 403 balance and
require us to reverse.
Our ruling today is intended to be narrow. First, we do not
mean to imply that any of the limits the government has pro-
posed on the laser sight evidence are essential to a fair trial in

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No. 23-1264 23
this or similar cases. Other judges in other cases might well
exercise their discretion under Rule 403 to allow such evi-
dence of a firearm’s identifying characteristics or relevant
events without such limits. We hold only that the district court
abused its discretion when it excluded under Rule 403 even
the limited version of the laser sight evidence proposed in the
government’s motion for reconsideration. We also do not en-
dorse all portions of the government’s proposed limiting in-
struction about the gun’s dangerousness. We leave the fram-
ing of appropriate limiting instructions to the district court’s
sound discretion.
The district court’s exclusion of the limited laser sight
evidence under Rule 403 as proposed in the government’s
motion for reconsideration is REVERSED, and the case is
REMANDED for further proceedings consistent with this
opinion.

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