United States of America v. Robert Wilburn

United States Court of Appeals
For the Eighth Circuit
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No. 25-1234
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Robert Wilburn,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Eastern District of Arkansas - Northern
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Submitted: November 21, 2025
Filed: April 3, 2026
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Before COLLOTON, Chief Judge, SHEPHERD and ERICKSON, Circuit Judges.
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COLLOTON, Chief Judge.
A jury convicted Robert Wilburn of unlawful possession of a firearm and
ammunition as a felon. See 18 U.S.C. § 922(g)(1). The district court* sentenced him
*The Honorable Lee P. Rudofsky, United States District Judge for the Eastern
District of Arkansas.

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to 100 months’ imprisonment. On appeal, Wilburn challenges evidentiary rulings and
the sufficiency of the evidence to sustain his conviction. We affirm.
I.
On March 15, 2022, a sheriff’s deputy responded to a call reporting hazardous
driving and found a black Chevrolet Camaro parked partially off a roadway with its
hazard lights flashing. Wilburn appeared to be asleep in the driver’s seat, and there
was an open beer can in the center cup holder. The deputy roused Wilburn and
smelled alcohol and marijuana on Wilburn’s person.
The deputy detained Wilburn and searched the Camaro. He found a loaded
handgun on the driver’s side in plain view next to the center console. The vehicle
was registered to Samira Swift, and records showed that Swift had purchased the
firearm on March 4, 2022. The deputy also found a box of ammunition in the center
console and an extra magazine in the glove compartment. Wilburn was a twice-
convicted felon; he had been convicted in 2021 of unlawful possession of a firearm
as a felon in 2018.
A grand jury charged Wilburn, and the case proceeded to trial. The
government gave notice of its intent to present evidence of Wilburn’s 2021
conviction under Federal Rule of Evidence 404(b) to prove his knowledge and intent
to possess a firearm on March 15, 2022. The district court ruled that the evidence
was admissible. The district court also admitted the government’s evidence that
Wilburn was released on parole the day before Swift purchased the firearm.
A jury found Wilburn guilty, and the court sentenced him to a term of 100
months’ imprisonment.
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II.
A.
Wilburn asserts first that the district court erred in admitting, under Federal
Rule of Evidence 404(b), his 2021 Mississippi conviction for unlawful possession of
a firearm by a felon. The government sought to introduce the conviction as evidence
of Wilburn’s knowledge or intent to possess the firearm, and the court admitted it.
We review the district court’s decision for abuse of discretion. United States v.
Gaddy, 532 F.3d 783, 789 (8th Cir. 2008).
Rule 404(b) prohibits the admission of a defendant’s prior bad acts to prove his
character in order to show that on a particular occasion he acted in accordance with
the character. But the rule permits such evidence for other purposes, such as proving
intent or knowledge. “The evidence must be (1) relevant to a material issue raised at
trial, (2) similar in kind and not overly remote in time to the crime charged, (3)
supported by sufficient evidence to support a jury finding that the defendant
committed the other act, and (4) of probative value not substantially outweighed by
its prejudicial effect.” United States v. Monds, 945 F.3d 1049, 1052 (8th Cir. 2019).
The district court correctly acknowledged circuit precedent holding that
evidence of a defendant’s prior conviction for unlawful possession of a firearm is
relevant to a defendant’s knowledge and intent to possess a firearm on a later
occasion. See United States v. Harrison, 70 F.4th 1094, 1097-98 (8th Cir. 2023),
cert. denied, 144 S. Ct. 869 (2024); United States v. Halk, 634 F.3d 482, 487 (8th Cir.
2011); United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006); United States
v. Strong, 415 F.3d 902, 905 (8th Cir. 2005). The court thought these decisions did
not leave “much wiggle room” to sustain Wilburn’s objection. Of course, this court’s
decisions finding no abuse of discretion by prior district courts do not mandate that
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a district court admit evidence of a prior conviction in every case; the evidence is still
subject to case-by-case evaluation that balances probative value and prejudice under
Rule 403. But the district court here admitted the evidence and apparently concluded
that the probative value of Wilburn’s prior conviction was not substantially
outweighed by a danger of unfair prejudice. Even so, the district court saw fit to
volunteer that this court’s decisions on Rule 404(b) are “wrong,” that the judge did
not “really understand why the Eighth Circuit has decided the cases this way,” and
that “this is a good issue to bring up to them” for potential “en banc rehearing.”
We conclude that the district court did not abuse its discretion in admitting
evidence of Wilburn’s prior conviction. Wilburn’s defense posited that he was
merely present in Swift’s car, without knowledge of the firearm and ammunition,
when the deputy found him in the vehicle with the evidence. “A ‘mere presence’
defense, by definition, challenges the prosecution’s proof on the mental element of
the charged offense, and places the defendant’s knowledge and intent at issue.”
United States v. Trogdon, 575 F.3d 762, 766 (8th Cir. 2009). Evidence of Wilburn’s
prior conviction for unlawful possession of a firearm was relevant to prove his
knowledge of the firearm in the car and his intent to possess it.
Wilburn nonetheless maintains that the evidence was impermissible “propensity
evidence” that should have been excluded. This court has rejected the same argument
many times for good reason. Evidence that Wilburn was convicted in 2021 for
unlawfully possessing a firearm was relevant to his knowledge and intent in 2022,
because it is unlikely that the same outcome occurs multiple times purely by
coincidence. 1 Robert P. Mosteller et al., McCormick on Evidence § 190.4, at 1155-59
(8th ed. 2020). The evidence is relevant to knowledge because there is a “likelihood
that repeated instances of behavior, even if originally innocent, will have resulted in
defendant’s having the requisite state of knowledge by the time of the charged crime.”
2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 404.22,
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at 404-135 (Mark S. Brodin, ed., Matthew Bender 2d ed. 2025). This reasoning
“clearly differs from the usual propensity chain of inferences,” because it does not rely
on the proposition that Wilburn was simply predisposed to possess a firearm
unlawfully. McCormick on Evidence § 190.4, at 1158-59. Rather, the evidence
supports an inference that “either the defendant is remarkably unlucky or he is the
cause of the events.” Id. at 1159; see United States v. Moran, 503 F.3d 1135, 1145
(10th Cir. 2007) (admissibility of prior conviction does not require “inference of bad
character or criminal disposition” but rather “rests on a logic of improbability that
recognizes that a prior act involving the same knowledge decreases the likelihood that
the defendant lacked the requisite knowledge in committing the charged offense”);
United States v. Queen, 132 F.3d 991, 996 (4th Cir. 1997) (evidence of prior act is
“useful as reducing the possibility that the act in question was done with innocent
intent” based “purely on the doctrine of chances”) (quoting John Henry Wigmore,
Wigmore on Evidence, § 302, at 245 (James H. Chadbourn rev. 1979)); United States
v. Beechum, 582 F.2d 898, 913 (5th Cir. 1978) (en banc) (prior offense is relevant “to
an issue other than propensity because it lessens the likelihood that the defendant
committed the charged offense with innocent intent”).
The prior conviction is also evidence of conduct that is “similar in kind” to the
crime charged. The prior conduct was identical to the charged conduct, and Wilburn
sustained the conviction just the year before the offense conduct in this case. Any
danger of unfair prejudice did not substantially outweigh the probative value of the
evidence. The court admitted only the fact and date of the prior conviction, without
the surrounding circumstances, and gave a limiting instruction to the jury about use
of the evidence. Wilburn’s prior conviction satisfies the test for admissibility under
Rule 404(b), and the district court did not abuse its discretion.
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B.
Wilburn next argues that the district court abused its discretion by admitting
testimony that he was released on parole on March 3, 2022. He argues that the
testimony is irrelevant to whether he knowingly possessed the firearm or ammunition,
and that it is unduly prejudicial “given that the jury may have been perturbed” that
Wilburn was arrested shortly after his release on parole. Wilburn also implies that his
parole date has minimal probative value because he was released from home
confinement and intensive supervision, rather than from a prison facility, and he was
thus already “out in the free world” before the release.
Wilburn understates the probative value of the disputed evidence. Although
he was not released on parole from a prison facility, he had been confined to his
residence with an ankle monitor and was permitted to leave the residence only with
“special permission for employment or something else.” Wilburn’s release on parole
removed these conditions, and his freedom thus increased substantially on the day
before Swift purchased the firearm. A reasonable jury could find that this timing
increased the probability that Swift purchased the firearm for Wilburn—a fact that
would help to prove Wilburn’s knowledge or intent to possess the firearm and
ammunition at the time of the seizure. There was little risk of unfair prejudice from
testimony that Wilburn was on parole because the jury elsewhere received evidence
that he was convicted of a felony in 2021. The court thus did not abuse its discretion
in allowing the evidence.
C.
Wilburn also argues that there is insufficient evidence to sustain his conviction.
We review the sufficiency of the evidence de novo, viewing the evidence in the light
most favorable to the verdict and accepting all reasonable inferences that support the
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verdict. United States v. Griffith, 786 F.3d 1098, 1102 (8th Cir. 2015). Wilburn
argues that the gun belonged to Swift, and that the government failed to prove that
he knowingly possessed the firearm or ammunition. He maintains that the only
evidence linking him to the firearm and ammunition is “the fact that he was passed
out in [Swift’s] car where her firearm and ammunition were discovered.”
We conclude that the evidence was sufficient to support the jury’s verdict.
Wilburn relies on Swift’s exculpatory testimony at trial that she secreted the firearm
and ammunition in the car without Wilburn’s knowledge. But the sheriff’s deputy
testified that the firearm was found in plain view on the driver’s side of the vehicle.
The jury was entitled to credit the deputy’s testimony and to infer that Wilburn knew
about the gun. Wilburn’s previous unlawful possession of a firearm and the timing
of Swift’s purchase further support the jury’s verdict.
The judgment of the district court is affirmed.
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