United States v. Washington, No. 19-1331 (7th Cir. 2020)
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Chicago Police Officers testified that Washington, standing with his back to them, turned his head as their unmarked squad approached and walked away. He removed a shiny, polished chrome handgun from his waistband and tossed it over a fence into a yard. The officers questioned Washington and recovered the handgun. Washington was charged with unlawfully possessing a firearm as a felon, 18 U.S.C. 922(g).
The government moved to introduce a YouTube video posted three months before the arrest, depicting Washington and another displaying a chrome handgun, arguing that the gun in the video was the same gun that was recovered from the yard. The court rejected a Rule 404(b) objection and permitted the government to introduce still photos from the video. At trial, an ATF Agent, who examined the gun recovered from the yard, described its features and told the jury that the gun recovered by police and the pistol in the still photos from the video had many similarities.
The Seventh Circuit affirmed Washington's conviction. Evidence of recent past possession of the same gun is admissible for a non-propensity purpose—to show the defendant’s ownership and control of the charged firearm—although evidence of past possession of a different gun would raise Rule 404(b) concerns. The judge minimized its potential for unfair prejudice by limiting the government to still photos.
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