United States of America v. Marques Dwell Armstrong, Jr., also known as Kease

United States Court of Appeals
For the Eighth Circuit
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No. 23-2432
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United States of America
Plaintiff - Appellee
v.
Marques Dwell Armstrong, Jr., also known as Kease
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: February 16, 2024
Filed: May 2, 2024
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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BENTON, Circuit Judge.
In October 2021, police attempted to arrest Armstrong on a federal warrant.
He fled first in his car and then on foot. Chasing him, an officer saw him fall into
grass in front of a residence. He then continued to flee. Police arrested him soon
after. In the grass where he fell, police found a Glock 9mm switch-equipped
handgun.

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A jury convicted him of possessing a machine gun in violation of 18 U.S.C.
§§ 922(o)(1) and 924(a)(2) and being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1 sentenced him to 127
months in prison. He appeals his conviction. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.
I.
Armstrong contends there was insufficient evidence to convict. This court
reviews de novo, viewing the record most favorably to the government, resolving all
evidentiary conflicts in its favor, and accepting all reasonable inferences supporting
the verdict. See United States v. Aungie, 4 F.4th 638, 643 (8th Cir. 2021). This
court will reverse only if “no reasonable jury could have found the accused guilty
beyond a reasonable doubt.” United States v. Druger, 920 F.3d 567, 569 (8th Cir.
2019).
The evidence showed that Armstrong—wearing a crossbody bag known to
conceal weapons—fled his Jeep when police tried to arrest him. While running, he
fell into tall grass. He stood up and continued to flee, surrendering soon after. When
arrested, the crossbody bag was partially open. Based on his behavior and the open
bag, the arresting officer suspected he ditched a gun while fleeing. Officers searched
the grass where Armstrong fell, finding a Glock 9mm switch-equipped handgun.
See United States v. Bailey, 831 F.3d 1035, 1039 (8th Cir. 2016) (affirming a felon-
in-possession conviction where no one observed the defendant with the firearm that
was recovered along the route of the defendant’s flight, 45 minutes after he had fallen
there). The Glock was clean, in excellent condition, and fit easily inside the
crossbody bag. See, e.g., United States v. Roark, 724 Fed. Appx. 495, 497 (8th Cir.
2018) (noting that the gun recovered along the defendant’s flight path “did not
appear to be rusted or weathered,” supporting the inference it had been there “for
1 The Honorable Donovan W. Frank, United States District Court Judge for
the District of Minnesota.

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only a short time”). The landlord testified that in the eight years that he managed
and actively maintained the grass where Armstrong fell, he had never found
firearms, discharged cartridge casings, or any weapons. The landlord had cut and
sprayed the grass within the prior two weeks. There was no gun.
The evidence also showed that Armstrong admitted under oath in a prior case
that for four years he conspired to acquire, store, and possess firearms for convicted
felons. And the jury saw four seconds of a video, taped a few weeks before the
arrest, where Armstrong—holding a firearm with an extended magazine—rapped
about owning a Glock with a switch. The sounds of automatic gunfire accompanied
the rap.
The evidence was sufficient to support the verdict.
II.
Armstrong believes the district court abused its discretion by admitting the
four-second video showing him rapping about upgrading his Glock with a switch.
This court reviews the admission of Rule 404(b) evidence for abuse of discretion.
United States v. Drew, 9 F.4th 718, 722 (8th Cir. 2021). A district court properly
admits evidence under Rule 404(b) if (1) it is relevant to a material issue; (2) similar
in kind and not overly remote in time to the crime charged; (3) supported by
sufficient evidence; and (4) its potential prejudice does not substantially outweigh
its probative value. Id. at 723. The parties agree the evidence satisfies the first three
prongs of the Rule 404(b) test.
Armstrong asserts the evidence’s probative value was substantially
outweighed by the danger of unfair prejudice. The video’s probative value was high.
Two material issues were Armstrong’s knowledge that he possessed a firearm and
that it could become a fully automatic machine gun. See United States v. Williams,
796 F.3d 951, 959 (8th Cir. 2015) (“Knowing possession of a firearm is an element
of 18 U.S.C. § 922(g)(1), and a defendant places his knowledge of the firearm’s

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presence at the scene . . . at issue by pleading not guilty to the crime and requiring
the government to prove his guilt beyond a reasonable doubt.” (cleaned up)); United
States v. Backer, 362 F.3d 504, 507 (8th Cir. 2004) (noting that to obtain conviction
of knowing possession of a machine gun the government “was required to prove that
[the defendant] knew of the machine gun’s capability to fire in a fully-automatic
manner”). His rap that his Glock was upgraded with a switch, accompanied by the
sounds of automatic gunfire, and him showing a firearm with an extended magazine
were relevant and directly probative of this knowledge. See, e.g., United States v.
Nyah, 35 F.4th 1100, 1108 (8th Cir. 2022) (holding that images from music videos
showing a defendant possessing a firearm were probative of the defendant’s later
knowing and intentional possession of the firearm).
The evidence was not unfairly prejudicial. The government excerpted parts
of the video to “show the key images . . . needed to prove his knowing and intentional
possession of the firearm.” United States v. Rembert, 851 F.3d 836, 838 (8th Cir.
2017). And the district court delivered a comprehensive limiting instruction three
separate times—before the video, when the evidence was discussed by another
witness, and in its final charge to the jury. See, e.g., United States v. Buckner, 868
F.3d 684, 690 (8th Cir. 2017) (noting that giving a limiting instruction diminishes
danger of any unfair prejudice from admission of other acts evidence).
The court did not abuse its discretion in admitting the video.
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The judgment is affirmed.
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