United States v. McGlothin

Filing

[10038452] Affirmed; Terminated on the merits after oral hearing; Written, signed, published; Judges Hartz, Murphy, authoring judge, and Tymkovich. Mandate to issue. [11-1360]

Appellate Case: 11-1360

Document: 01018989235

FILED
Date Filed: 01/24/2013Court of Appeals
Page: 1
United States
Tenth Circuit

January 24, 2013

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

No. 11-1360

TIMOTHY McGLOTHIN,
Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:10-CR-00605-LTB-1)

Gail K. Johnson, Johnson & Brennan, PLLC, Boulder, Colorado, for Defendant Appellant.
James C. Murphy, Assistant United States Attorney (John F. Walsh, United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff - Appellee.

Before HARTZ, MURPHY, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.

A jury found Timothy McGlothin guilty of possession of a firearm by a
felon, in violation of 18 U.S.C. § 922(g)(1). On appeal McGlothin asserts the
district court erred in admitting at trial evidence of past instances in which he

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possessed a firearm. See Fed. R. Evid. 404(b); Fed. R. Evid. 403. McGlothin
forfeited these arguments by failing to properly raise them before the district
court and cannot satisfy the exacting plain-error standard. See United States v.
Frost, 684 F.3d 963, 971 (10th Cir. 2012) (“Because [defendant] did not object to
the admission of the challenged testimony at trial, we review the district court’s
decision only for plain error.”); id. at 971-72 (noting the plain-error standard is
“difficult to overcome”). Accordingly, exercising jurisdiction pursuant to 28
U.S.C. § 1291, this court affirms the district court’s judgment of conviction.
I. BACKGROUND
A. Events Leading to Arrest and Prosecution
McGlothin’s indictment on § 922(g)(1) charges originated from an
indictment on unrelated bank robbery charges. Efforts to locate and arrest
McGlothin on the bank robbery charges were initially unsuccessful. Based on a
tip McGlothin might be staying in an apartment in Denver, Detective Jeffrey Hart
went to the leasing office to gather information. While there, he happened upon
Darwin Ritchie, the named lessee of the apartment. Ritchie confirmed McGlothin
was staying there and gave law enforcement officers permission to search the
apartment. Officers found McGlothin and his cousin, Darleise Paden, in the
apartment and arrested them. Officers searched the apartment, which had two
bedrooms (one furnished and one empty). In a closet in the furnished bedroom,
officers found a loaded Glock pistol. In that same closet, Officers also found
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men’s clothing, a New York Yankees baseball cap, a stack of two-dollar bills, and
two letters addressed to McGlothin. McGlothin was ultimately indicted for
possessing the Glock in violation of § 922(g)(1). 1
B. Pretrial Proceedings
Prior to trial, McGlothin requested notice of the government’s intention to
utilize evidence potentially falling within the parameters of Fed. R. Evid. 404(b).
In response, the government identified two prior instances during which
McGlothin possessed a handgun. The first of these instances, the “2007
Incident,” involved the simple possession of a loaded handgun. The 2007
Incident led to McGlothin’s conviction on Colorado state charges of illegal
possession of a firearm by a felon. See Colo. Rev. Stat. § 18-12-108. The second
instance, the “2009 Incident,” involved an assault by McGlothin on Ersel Waits.
During the assault, McGlothin repeatedly hit Waits on the head with a pistol. The
government argued these prior acts were relevant to, inter alia, the issue of
McGlothin’s identity as the knowing possessor of the Glock. The government
further argued admission of evidence relating to these incidents was consistent
with the four-part test utilized by this court to evaluate the admissibility of Rule
404(b) evidence. See United States v. Diaz, 679 F.3d 1183, 1190 (10th Cir.
2012).

1

The unrelated indictment charging McGlothin with bank robbery was
dismissed when his co-defendant refused to testify against him.
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McGlothin moved in limine to exclude the 2007 and 2009 Incidents. He
argued neither incident was relevant to the question whether he constructively
possessed the Glock. Instead, according to McGlothin, the evidence would be
offered to show mere propensity. See Fed. R. Evid. 404(b). Finally, even
assuming relevance of the 2007 and 2009 Incidents, McGlothin asserted the
probative value of this evidence was substantially outweighed by the danger of
unfair prejudice. See Fed. R. Evid. 403.
The district court rejected McGlothin’s contentions and concluded the
“probative value of this evidence is clear in terms of its tendency to make the
existence of possession of the firearm, be it actual or constructive, more probable
than it would be without the evidence.” It further concluded the “heightened
relevancy in this case under a constructive-possession theory of the prosecution”
was not “substantially . . . outweighed by the potential for unfair prejudice.”
Nevertheless, the district court concluded “relevancy determinations in the final
analysis should take place in the context of the trial itself.” Accordingly, the
court “conditionally denied” the motion in limine, reserving a final ruling until
trial.
C. Trial Evidence
1. Offense Conduct
Ritchie testified that before he rented the apartment it was completely
empty, specifically including the closet where the Glock was found. McGlothin
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moved into the apartment shortly after it was rented by Ritchie. 2 Ritchie did not
keep clothes at the apartment because he only stayed there “probably twice a
week.” He specifically testified that none of the items in the closet where the
Glock was found belonged to him. Ritchie spent most of his time at his “sister’s
and mother’s house.” Although Ritchie only stayed at the apartment infrequently,
he testified McGlothin appeared to be using the apartment as a permanent
residence. On those occasions he did stay at the apartment, Ritchie either slept on
the couch or in the empty bedroom because the furnished bedroom was “Tim’s
bedroom.” All the furnishings in the apartment, particularly including the
furnishings in the bedroom where the Glock was found, were purchased by
McGlothin. As far as Ritchie was aware, no one besides McGlothin and Paden
stayed at the apartment. Ritchie and McGlothin were the only people with a key
to the apartment. Finally, although he could legally possess a firearm, Ritchie
testified he did not own the Glock.
Thomas Acierno, a Jefferson County Sheriff’s Office investigator, testified
he found the Glock while searching the closet in the furnished bedroom. Acierno,
who was specifically assigned to search the furnished bedroom, wore gloves
during the entirety of the search to avoid contaminating the scene. The only
clothes Acierno found in the closet were men’s clothing. In close proximity to
2

Ritchie allowed McGlothin to move into the apartment “to help[] him out.”
Ritchie described McGlothin as a “good friend” who helped him out with money
and jobs when Ritchie was “basically homeless.”
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the Glock, Acierno found the following items: (1) two pieces of mail, one
addressed to McGlothin personally and one addressed to a communications
business owned by McGlothin, 3 (2) a New York Yankees baseball cap, 4 and (3) a
stack of two-dollar bills. 5
Detective Jeffrey Hart conducted a post-arrest interview of McGlothin.
The interview was recorded and portions of the recording were played for the
jury. During the interview, McGlothin stated he had been staying in Ritchie’s
apartment at the time of his arrest, and that for most of the time he lived there
nobody else stayed at or visited the apartment. McGlothin admitted during the
interview that at some previous point in time he had held the Glock. 6
2. Other-Crimes Evidence
As set out in its pretrial notice, the government adduced at trial evidence
regarding both the 2007 and 2009 Incidents.

3

Ritchie testified McGlothin owned a cell phone store named Your Time
Communications.
4

Trial evidence demonstrated McGlothin was from New York and was
known by the moniker “New York.”
5

During a post-arrest interview, McGlothin denied owning the two-dollar
bills, but admitted he “did spend some of them.”
6

This admission was corroborated by the testimony of DNA expert Susan
Berdine. Berdine testified the DNA of at least three persons was found on the
Glock. She further testified one of the profiles was consistent with McGlothin’s
DNA, and the odds of finding a random, unrelated person in the general
population that shared the same DNA markers as McGlothin was approximately 1
in 110,000.
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a. The 2007 Incident
The government presented the testimony of two officers as to the 2007
Incident, Arapahoe County Sheriff Deputies William Foreman and Richard Van
Slyke. The officers testified they responded to a call from Paden in October of
2007. Paden informed the officers they should look for McGlothin, a black adult
male who could be found in an older light-blue Ford Bronco. Officers drove
around the immediate area looking for McGlothin and found him in a nearby
parking lot, sitting in the Bronco and talking on a cell phone. After a records
check revealed McGlothin was subject to immediate detention, officers placed
him in a police vehicle. Officers searched the Bronco and found a loaded gun in
close proximity to the driver’s seat. McGlothin acknowledged the gun was his;
stated he had been drinking and his life was over; and indicated people were out
to get him, but he was not going to hurt anyone.
b. The November 2009 Incident
The government adduced evidence relating to the 2009 Incident from Ersel
Waits. Waits testified that in November of 2009, three months before police
found the Glock during the search of Ritchie’s apartment, she received a call from
McGlothin asking if she was romantically involved with Paden. McGlothin
threatened to “come over and put [a] gun down [Waits’s] throat.” After some
additional telephone conversations, Waits observed McGlothin approaching her
apartment. She locked her door and called the police. Waits testified McGlothin
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kicked in the door, approached her, and hit her on the head several times with a
black pistol. 7 Waits heard and saw the loaded clip from the pistol fall to the floor
as McGlothin hit her. 8 Shortly after McGlothin left Waits’s apartment, the police
arrived and took Waits to the emergency room. It took three staples to close the
wound to Waits’s head. Waits identified a number of pictures taken after the
assault, including a picture of her with blood on the side of her face and two
pictures showing the floor marked with blood. Each of the photos was admitted
into evidence without objection.

7

At trial, the government showed Waits a picture of the Glock found in
McGlothin’s apartment. Waits testified the Glock did not “appear to be different
in any way” from the pistol McGlothin used to assault her. Nevertheless, Waits
could not positively say it was the same gun.
8

Officer James Anderson testified at trial as to the functionality of the
Glock. Anderson testified the release for the clip was located on the left-hand
side of the Glock’s grip. He further testified that when the clip is full of
ammunition, the weight of the ammunition will cause the clip to “fall out of the
bottom of the gun” as soon as the release is pressed. Based on the testimony of
Waits and Anderson, the government argued in closing as follows:
Now, interestingly, Ms. Waits also testified that as the
defendant was hitting her on the head with this firearm, the clip fell
out. It fell on the floor. . . . She saw the clip. She heard it fall on
the floor. And Detective Anderson . . . explained just how it is that
the clip can be released from this particular Glock firearm. He
depressed this button right here on the side of the firearm
(indicating). When he depressed the firearm, the clip pops right out.
Ask yourselves whether, as Ms. Waits was being bludgeoned
on the side of the head, whether that button may have been depressed
and the clip fell out. . . .
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II. ANALYSIS
McGlothin contends the district court erred in admitting at trial evidence of
the 2007 and 2009 Incidents. He asserts the evidence was not relevant for any
permissible purpose and was, instead, adduced to show his propensity to possess
firearms. See Fed. R. Evid. 404(b) (limiting admission of prior bad-acts evidence
to those situations not involving proof of a “person’s character in order to show
that on a particular occasion the person acted in accordance with the character”).
Alternatively, even assuming this evidence was admissible under Rule 404(b), he
argues its probative value was substantially outweighed by the danger of unfair
prejudice. See Fed. R. Evid. 403 (allowing exclusion of relevant evidence “if its
probative value is substantially outweighed by a danger of . . . unfair prejudice”).
A. Standard of Review
This court generally reviews for abuse of discretion a decision to admit
evidence under Rules 403 and 404(b). United States v. Burgess, 576 F.3d 1078,
1098 (10th Cir. 2009). This is only true, however, if the defendant offered up a
timely and specific trial objection. Fed. R. Evid. 103(a). Absent a timely and
specific objection, this court reviews such challenges for plain error. See United
States v. Jameson, 478 F.3d 1204, 1212 (10th Cir. 2007). “Plain error occurs
when there is (1) error, (2) that is plain, which (3) affects substantial rights, and
which (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Frost, 684 F.3d at 971 (quotation omitted).
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McGlothin concedes he did not object at trial to the admission of evidence
regarding the 2007 Incident. 9 He asserts he did, however, object at trial to the
admission of evidence regarding the 2009 Incident. In support of this assertion,
McGlothin points to the following limited portion of the trial transcript:
Defense Counsel: Your Honor, I will try not to repeat myself.
But our position is it is not relevant. It’s uncharged misconduct.
And if there is any probative value, the prejudicial effect far
outweighs any relevance that exists here.
The Court: Okay.
Defense Counsel: You know, the issue is whether the firearm
in the house was his. This alleged firearm allegedly used in the
[2009 Incident] is some other firearm.
McGlothin’s argument ignores the context within which the above-quoted
statement was made. At the end of the second day of trial, the district court held
a conference outside the presence of the jury. The government began by giving
the district court a brief summary of the evidence it intended to adduce at the next
day of trial, including evidence of the 2007 and 2009 Incidents and videotaped
portions of McGlothin’s post-arrest police interview. In response, the district
court indicated it would give the jury a limiting instruction and engaged in a

9

McGlothin’s motion in limine did not preserve the admissibility of either
incident for abuse-of-discretion review. The district court specifically labeled its
denial of the motion as conditional, placing McGlothin on notice of the need to
renew his objection at trial. Fed. R. Evid. 103(b); United States v. Mejia-Alarcon,
995 F.2d 982, 986 (10th Cir. 1993) (holding that a motion in limine will preserve
an evidentiary objection only if the motion “is ruled upon without equivocation
by the trial judge”).
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discussion with the parties as to the appropriate language for such an instruction.
At no point during this discussion did McGlothin object to the admission of
evidence relating to the 2009 Incident.
Having completed its discussion of the limiting instruction, the district
court turned to an entirely different matter: the admissibility of Exhibit 19, a
compilation of distinct portions of McGlothin’s post-arrest police interview.
Before trial, McGlothin filed a written objection to the admission of Exhibit 19 on
the ground that, inter alia, it contained Rule 404(b) evidence. During the bench
conference there was confusion as to whether there was any mention of the 2009
Incident in any of the clips on Exhibit 19. The government initially stated, albeit
incorrectly, that Exhibit 19 contained some discussion of the 2009 Incident. It
was within this particular context, a hearing on the admissibility of Exhibit 19,
that defense counsel made the statements identified by McGlothin as preserving
the admission of the 2009 Incident for abuse-of-discretion review. 10 Given that
10

The district court and the parties having completed their discussion of the
limiting instruction, the bench conference proceeded as follows:
The Court: All right. Now let’s get into this Exhibit 19 . . . .
I went through the transcript . . . while I watched and [listened] to
the DVD that plays the clips continuously. First of all, Mr. Connor
[the prosecutor], you indicated that there is some reference in
this—at least I am looking at the transcript, to the [2009 Incident].
Government: I believe that the reference that is in this
transcript is actually to the [2007 Incident].
(continued...)
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context, it is not plausible to read McGlothin’s brief comments about the 2009
Incident as a timely and specific objection to Waits’s proposed testimony. The
district court certainly did not so interpret McGlothin’s comments. That is, at no
point during the remainder of the bench conference did the district court discuss
either the 2009 Incident or Waits’s proposed testimony, let alone announce a
10

(...continued)
The Court: Right. That is what I thought . . . . You told me
there was a reference to [the 2009 Incident] in there also.
....
Government: Then I apologize. I am in error on that.
The Court: That clears it up. Okay. And Mr. Reisch [defense
counsel] has argued that essentially it is irrelevant; correct Mr.
Reisch?
Defense Counsel: That is a good summary Your Honor.
The Court: You want to be heard further on that?
Defense Counsel: Your Honor, I will try not to repeat myself.
But our position is it is not relevant. It’s uncharged misconduct.
And if there is any probative value, the prejudicial effect far
outweighs any relevance that exists here.
The Court: Okay.
Defense Counsel: You know, the issue is whether the firearm
in the house was his. This alleged firearm allegedly used in the
[2009 Incident] is some other firearm.
The Court: But [the 2009 Incident] we just established is not
part of [the] interview the Government seeks to play to the jury.
Defense Counsel: That’s correct.
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definitive ruling on its admissibility. Instead, consistent with the purpose of that
distinct portion of the bench conference, the district court definitively resolved
McGlothin’s pretrial objection by concluding Exhibit 19 was admissible.
McGlothin concedes he did not preserve his objections to the 2007 incident.
As set out above, the snippet of transcript identified by McGlothin did not
preserve his objection to admission of the 2009 Incident, as presented exclusively
through Waits’s testimony. Furthermore, McGlothin did not contemporaneously
object to the admission of Waits’s testimony at the time it was adduced, i.e., when
issues of the relevance, probativeness, and potential for undue prejudice had
crystalized. Accordingly, this court reviews the admission of both the 2007 and
2009 Incidents for plain error. 11

11

Ultimately, the standard makes no difference in the outcome of this case.
As set out below, the district court did not err in admitting the 2007 and 2009
Incidents. More importantly, even assuming error, this court has no doubt
admission of the 2007 and 2009 Incidents did not prejudice McGlothin. See
United States v. Olano, 507 U.S. 725, 734 (1993) (holding that the term “affects
substantial rights,” as used in both Federal Rule of Criminal Procedure 52(a) and
52(b), “means that the error must have been prejudicial: [i]t must have affected
the outcome of the district court proceedings”). This is true no matter which
party has the burden of establishing prejudice or lack thereof. See id. at 734-35
(holding that the government has the burden of establishing a preserved error did
not prejudice the defendant-appellant, while a defendant-appellant has the burden
of establishing an unpreserved error did prejudice him).
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B. Merits
1. Plain Error
To be admissible, evidence falling within the purview of Rule 404(b) must
satisfy the following four part test:
(1) evidence of other crimes, wrongs, or acts must be introduced for
a proper purpose; (2) the evidence must be relevant; (3) the court
must make a Rule 403 determination whether the probative value of
the similar acts is substantially outweighed by its potential for unfair
prejudice; and (4) the court, upon request, must instruct the jury that
the evidence of similar acts is to be considered only for the limited
purpose for which it was admitted.
Diaz, 679 F.3d at 1190 (quotation omitted). “Evidence is proper if it tends to
prove, among other things, motive, knowledge, or intent. Exclusion of evidence
under Rule 403 that is otherwise admissible under the other rules is an
extraordinary remedy and should be used sparingly.” Id. (quotation, citation, and
alteration omitted).
a. Relevant for a Proper Purpose
McGlothin argues the 2007 and 2009 Incidents were neither offered for a
proper purpose nor relevant. This is so, he asserts, because they bear on the issue
of his knowledge only if the jury first draws an inference that in this particular
case he acted in conformity with his criminal propensity to knowingly possess
weapons. McGlothin’s argument is foreclosed by United States v. Moran, 503
F.3d 1135 (10th Cir. 2007).

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Like McGlothin, the defendant in Moran was prosecuted for violating
§ 922(g)(1). Id. at 1137-39. During a traffic stop, officers observed “a rifle stock
sticking out of an unzipped rifle case” on the back seat of the car Moran was
driving. Id. at 1139. At his 2006 trial, the government adduced evidence Moran
was convicted in 1994 of “being a felon in possession of a firearm.” Id. at 1143.
Moran asserted the admission of his 1994 firearm conviction was inconsistent
with Rule 404(b). Id. This court rejected Moran’s arguments, first concluding
the 1994 firearm conviction was offered for a proper purpose:
The Government introduced evidence of Mr. Moran’s prior
conviction to prove the only challenged element of the
felon-in-possession offense: that Mr. Moran “knowingly possessed”
the firearm. See United States v. Ledford, 443 F.3d 702, 705 (10th
Cir. 2005) (setting forth elements of crime of felon in possession).
Mr. Moran claimed that he did not know the rifle, which belonged to
his girlfriend, was in the SUV, his girlfriend’s car. Thus, the
Government presented, and the district court admitted, evidence of
the prior conviction to show “knowledge, intent, and absence of
mistake or accident,” proper purposes under Rule 404(b).
Id. at 1144 (footnotes omitted). Moran further held evidence of the prior firearm
conviction was relevant:
In addition, the conviction is relevant . . . because it is
probative to demonstrate that Mr. Moran “knowingly” possessed the
firearm. Mr. Moran denied knowledge of the rifle in the car, and the
government had the burden of proving knowing possession of the
firearm. To prove the knowledge element of the offense, the
government offered evidence that Mr. Moran knowingly possessed a
firearm at another point in time. Because the prior conviction
required the same knowledge, evidence of the conviction had a
“tendency to make the existence of” Mr. Moran’s knowledge of the
rifle in the present case “more probable . . . than it would be without
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the evidence.” Fed. R. Evid. 401. In other words, the fact that Mr.
Moran knowingly possessed a firearm in the past supports the
inference that he had the same knowledge in the context of the
charged offense.
Id. (citations omitted). This court also rejected Moran’s argument that the
evidence permitted the jury to draw impermissible inferences about his criminal
propensity:
We acknowledge that the use of Mr. Moran’s prior conviction
to prove knowledge involves a kind of propensity inference (i.e.,
because he knowingly possessed a firearm in the past, he knowingly
possessed the firearm in the present case). But the inference is
specific and does not require a jury to first draw the forbidden
general inference of bad character or criminal disposition; rather, it
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. See United States v. Queen, 132 F.3d 991, 996 (4th Cir.
1997) (explaining that similar prior act decreases the likelihood that
the charged offense was committed with innocent intent). Moreover,
when other-act evidence is admitted for a proper purpose and is
relevant, it may be admissible even though it has “the potential
impermissible side effect of allowing the jury to infer criminal
propensity.” United States v. Cherry, 433 F.3d 698, 701 n.3 (10th
Cir. 2005) (quotation omitted). That is, such evidence may be
admissible under Rule 404(b) as long as it tends to prove something
other than criminal propensity. See United States v. Tan, 254 F.3d
1204, 1208 (10th Cir. 2001) (“Rule 404(b) is considered to be an
inclusive rule, admitting all evidence of other crimes or acts except
that which tends to prove only criminal disposition.” (quotation
omitted)).
Id. at 1145 (citations omitted).

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Thus, Moran makes clear that when a defendant places his intent at issue, 12
the defendant’s prior acts of weapon possession are relevant for the proper
purpose of demonstrating the charged act of firearm possession was knowingly
undertaken. 13
12

To obtain a conviction for violating § 922(g)(1), the government must
prove: “(1) the defendant was previously convicted of a felony; (2) the defendant
thereafter knowingly possessed a firearm; and (3) the possession was in or
affecting interstate commerce.” Moran, 503 F.3d at 1144 n.5 (quotation omitted).
Section 922(g)(1) is a general intent crime. Id. at 1144 n.6. “The government
need not prove any particular intent, but must show only that a felon possessed a
firearm knowingly.” Id. (quotations omitted). Thus, in the context of a
prosecution under § 922(g)(1), knowledge and intent are equivalent. Id.
13

Moran’s holding in this regard is consistent with the rule adopted in
numerous other circuits. See, e.g., United States v. Halk, 634 F.3d 482, 487 (8th
Cir. 2011); United States v. Williams, 620 F.3d 483, 489-90 (5th Cir. 2010);
United States v. McCarson, 527 F.3d 170, 173 (D.C. Cir 2008); United States v.
Jernigan, 341 F.3d 1273, 1281 (11th Cir. 2003). That is not to say, however, that
reflexive admission of prior instances of firearm possession to prove intent is not
without substantial danger. As recently noted by the Seventh Circuit,
[e]vidence of prior, uncharged gun possessions by felons has the
potential to be used for impermissible propensity purposes. We have
analyzed such evidence under Rule 404(b) and have allowed it, at
least where the prior possession was recent and involved the same
gun. If the prior possession was of a different gun, then its value as
direct or circumstantial evidence of the charged possession drops and
the likelihood that it is being used to show propensity to possess
guns rises considerably. Similarly, as the prior possession is further
removed in time, it becomes less probative of possession on the date
charged. Courts are familiar with this evidentiary balancing.
Determinations under Rule 404(b) require such an analysis, as when
applying Rule 403.
United States v. Miller, 673 F.3d 688, 695 (7th Cir. 2012). Were we not bound by
Moran’s conclusion that the type of evidence at issue here does not bear on
(continued...)
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In a footnote in his brief, McGlothin asserts Moran is distinguishable
because knowledge was at issue there, while he “admitted having held the Glock
but defended on the grounds that it did not belong to him and he did not
constructively possess it on or about February 10, 2010.” Appellant’s Br. at 21
n.2. McGlothin’s argument in this regard is disingenuous. From this portion of
McGlothin’s brief it would appear McGlothin admitted at trial he knew the gun
was present in the apartment and defended the charges solely on the bases the gun
did not belong to him and he did not have the power to exercise dominion and
control over the Glock. The record, however, indicates something entirely
different. Prior to trial, McGlothin filed a Notice of Defenses that included a
general denial and an assertion of mistake of fact. As the parties and district
court recognized during the pretrial hearing on McGlothin’s motion in limine, this
placed the issue of McGlothin’s knowledge directly at issue. Further, the issue of
McGlothin’s knowledge was central at trial, as defense counsel sought to develop
through cross-examination of government witnesses that (1) other individuals had
access to the apartment and (2) the gun was not easily found by someone casually
looking into the closet. Likewise, although the prosecution argued a portion of

13

(...continued)
“criminal disposition” within the contemplation of Rule 404(b), 503 F.3d at 114445, we would be inclined to adopt the approach set out by the Seventh Circuit in
Miller. This panel is, however, bound by the decision in Moran absent en banc
reconsideration or a superseding contrary decision by the Supreme Court. United
States v. Mendiola, 696 F.3d 1033, 1040 (10th Cir. 2012).
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the interview set out in Exhibit 19 amounted to an admission on the part of
McGlothin that he had handled the weapon, McGlothin asserted during closing
arguments that the statements had nothing to do with the Glock. 14 Just as in
Moran, McGlothin’s intent to possess the Glock was the central issue at trial.
That being the case, the rule set out in Moran is applicable here. Thus, the
district court did not err in concluding the 2007 and 2009 Incidents were relevant
to the proper purpose of demonstrating McGlothin’s knowledge.
Even setting aside the propensity rationale identified as proper and relevant
in Moran, the record makes clear the highly relevant evidence regarding the 2009
14

Defense counsel argued as follows:

Let’s talk about the video. You know, there are several
instructions that say Mr. McGlothin has an absolute right not to
testify; a constitutional right. . . . Well, ladies and gentlemen, you
heard what he had to say. “Not my gun.” Because what does the
instruction say? You have to have the intention to exercise dominion
or control. Did I look at it? Yeah, I am a guy, I looked at it. What
did he say? “I didn’t drop the clip out. Didn’t do anything.”
That is not possession . . . . You have to have the intent.
Think about it. If this was a drug case, we have all these drugs
sitting up here, are we in possession of drugs because we can come
over and pick it up and get it? No. Why? Because we would all
have to have intention . . . .
Take a look at clip 2. What the heck are they talking about
there? Completely taken out of context. They have 1.5 hours talking
with Mr. McGlothin, and this is what they bring you. Did they ever
bother to say . . . let me run to the other room, just so we are clear
about what we are talking about? Let me run to the other room and
get this Glock 37 and make sure this is exactly what we are talking
about.
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Incident was adduced for a proper purpose. The purpose of Rule 404(b) is to
prevent the use of prior bad acts to prove a defendant has a propensity to commit
acts of that sort. Fed. R. Evid. 404(b). Despite McGlothin’s arguments to the
contrary, no reasonable juror would have perceived the purpose of Waits’s
testimony for anything other than demonstrating McGlothin possessed the Glock
during a time temporally proximate to the possession alleged in the indictment. 15
This testimony then does not have anything to do with propensity, either the kind
identified in Moran or the improper kind identified in Rule 404(b). Instead, it is
circumstantial evidence that he knowingly possessed the Glock found in his
closet. Cf. United States v. Carter, 695 F.3d 690, 702 (7th Cir. 2012)
15

That the jury would likely have perceived Waits’s testimony in this light
is borne out by the way both the prosecutor and defense counsel dealt with the
testimony during closing argument. See supra n.8 (setting out prosecutor’s
arguments). Defense counsel argued as follows:
Now, the Government wanted to bring you Ms. Waits. This is
why we have trials, ladies and gentlemen, because, once again,
somebody said something, the Government believes it, it must be
true. If th[ey] say it, believe it. We go through her crossexamination. What did she say, yeah, this [cousin of Denise Paden,
Donald,] called me. He comes over to the house. He comes and
stands right next to me. Then supposedly Mr. McGlothin comes
over, and it’s a black firearm. And I asked her point blank, I said, is
this the firearm that you said were–I can’t say.
If I didn’t ask that question, who was going to? Because they
wanted you to assume it’s the same one. They wanted you to assume
it was Mr. McGlothin’s. Then think about it, ladies and gentlemen.
If their possession case against Mr. McGlothin was so rock solid,
why did we have to bring Ms. Waits in? Because that was November
of 2009, and we are supposedly talking about February 10th.
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(“[D]efendant’s possession of a gun two months prior to arrest was admissible
under Rule 404(b) as circumstantial evidence of his later possession of the same
gun”); United States v. Smith, 101 F.3d 202, 210-11 (1st Cir. 1996) (holding that
evidence the defendant possessed the same weapon earlier in the evening
admissible to show knowing possession of felon-in-possession charge); United
States v. Tenorio, 312 F. App’x 122, 127 (10th Cir. 2009) (unpublished
disposition cited for persuasive value pursuant to 10th Cir. R. 32.1) (“If Tenorio
possessed the same gun on past occasions, it is considerably more likely that the
gun still belonged to him at the time it was found in . . . [the] car and
correspondingly less likely that the gun belonged to someone else or was simply
there when he entered.”). 16 Furthermore, given that McGlothin’s trial defense was
he did not own the Glock, did not know it was in the closet, and did not have the

16

Likewise, many aspects of the 2009 Incident which McGlothin argues
serve no legitimate purpose are integral to Waits’s ability to identify the weapon
officers found in McGlothin’s bedroom on February of 2010. That is, Waits’s
affair with Paden illuminated the reason for McGlothin’s attack on Waits and,
therefore, supported her assertion McGlothin was the perpetrator of the attack.
Furthermore, the nature of the attack helped explain how Waits is able to identify
the Glock as “not appear[ing] to be different in any way” to the one McGlothin
used to attack her. Moreover, her testimony that the clip dropped to the floor
during the attack, when considered in concert with the testimony of the
government’s functionality expert, supported the government’s argument the
Glock was the weapon McGlothin likely used to assault Waits.
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power to exercise dominion or control over it, Waits’s testimony was exceedingly
relevant. 17
b. Substantially More Prejudicial Than Probative
To determine whether Rule 404(b) evidence is admissible, “the court must
make a Rule 403 determination whether the probative value of the similar acts is
substantially outweighed by its potential for unfair prejudice.” Diaz, 679 F.3d at
1190. Evidence is unfairly prejudicial only if it makes “a conviction more likely
because it provokes an emotional response in the jury or otherwise tends to affect
adversely the jury’s attitude toward the defendant wholly apart from its judgment
as to his guilt or innocence of the crime charged.” United States v. Smith, 534
F.3d 1211, 1219 (10th Cir. 2008) (quotation omitted). The danger of unfair
prejudice flowing from admission of the 2007 and 2009 Incidents did not so
substantially outweigh the probative value of that evidence that the district court
plainly erred in admitting the evidence under Rule 403.
The district court did not plainly err in admitting the 2007 Incident.
Testimony regarding the incident was narrowly limited to the following
proposition: on a given date in 2007 McGlothin knowingly possessed a firearm.

17

Surprisingly, the government does not defend the district court’s
admission of the 2009 Incident on this basis. The government’s failure in this
regard is of no significance, however, because this court can affirm the district
court’s evidentiary rulings on any basis that finds support in the record. Grace
United Methodist Church v. City of Cheyenne, 451 F.3d 643, 665 n.11 (10th Cir.
2006).
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See Moran, 503 F.3d at 1144-45 (recognizing probativeness of such evidence).
There was nothing about the nature of the evidence presented that would cause
the jury to decide the instant case against McGlothin on an improper emotional
basis. Smith, 534 F.3d at 1219. Perhaps tacitly recognizing this fact, McGlothin
does not even discuss the 2007 Incident in the portion of his opening brief
addressing the issue of Rule 403 balancing. Thus, the district court did not err,
let alone plainly err, in refusing to exclude the 2007 Incident under Rule 403.
In contrast to his failure to identify any unduly prejudicial aspects of the
2007 Incident, McGlothin argues at length that Waits’s testimony regarding the
2009 Incident was substantially more prejudicial than probative. Based on this
court’s independent review of the entire trial transcript, we note McGlothin
seriously overstates the supposedly inflammatory nature of Waits’s testimony and
the government’s closing arguments. Nevertheless, evidence regarding the 2009
Incident undoubtedly had the potential to be unduly prejudicial. In particular, the
2009 Incident involved a brutal attack by McGlothin on an unarmed woman,
solely because that woman was having a lesbian affair with McGlothin’s cousin.
Nevertheless, given its exceptionally probative value, this court cannot conclude
its potential for undue prejudice so completely outweighed its probative value that
the district court plainly erred in refusing to exclude Waits’s testimony. This is
especially true given exclusion of evidence under Rule 403 “is an extraordinary

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remedy and should be used sparingly.” Diaz, 679 F.3d at 1190 (quotation
omitted). 18
c. Limiting Instruction
Upon request, a district court must instruct the jury that Rule 404(b)
evidence “is to be considered only for the limited purpose for which it was
admitted.” Diaz, 679 F.3d at 1190 (quotation omitted). Despite McGlothin’s
failure to request such an instruction, the district court sua sponte instructed the
jury as follows:
Ladies and gentlemen, at times during the trial evidence may be
admitted for a limited purpose and for no other purpose. The witness
that you are about to hear from is such an instance. So you may hear
evidence of other alleged acts committed by Mr. McGlothin and
engaged in by him. You may consider that evidence only as it bears
on the defendant’s opportunity, knowledge, identity, absence of
mistake or accident, and for no other purpose. Of course, the fact
that the defendant may have previously committed an act similar to
the one charged in this case does not mean that the defendant
necessarily committed the act charged in this case.
At no point did McGlothin object to the content or form of the district court’s
limiting instruction. Nor did McGlothin come forward with an objection during
18

This court struggles to see even the slightest probative value to Exhibit
50, a bloody picture of Waits taken in the immediate aftermath of the assault.
Nevertheless, McGlothin has not challenged on appeal individual evidentiary
aspects of the 2009 Incident. Instead, he has only asserted the district court erred
in admitting all aspects of the 2009 Incident. Consequently, this court will not
undertake a piece-by-piece analysis of the evidence related to the 2009 Incident to
determine whether the district court plainly erred in failing to exclude individual
aspects of that evidence. Cf. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979,
984 n.7 (10th Cir. 1994) (holding this court will not consider issues not raised in
a party’s opening brief).
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the bench conference in which the district court discussed the proposed limiting
instruction with the parties. Thus, this court’s review of the district court’s
limiting instruction is limited to plain error. See United States v. Rizvanovic, 572
F.3d 1152, 1155 (10th Cir. 2009) (reviewing for plain error when party failed to
object to limiting instruction). At no point in either of his briefs to this court on
appeal, however, did McGlothin argue an entitlement to relief under the plain
error standard. By failing to argue his entitlement to relief under the applicable
standard, McGlothin has forfeited the argument in this court. McKissick v. Yuen,
618 F.3d 1177, 1189-90 (10th Cir. 2010). 19
2. Substantial Rights
Even assuming the district court plainly erred in admitting all evidence
regarding the 2007 and 2009 Incidents, McGlothin would still not be entitled to
relief because any such error would not have affected his substantial rights. A
close review of the transcript in this case reveals much evidence that McGlothin
constructively possessed the Glock on February 10th. That evidence is so
19

Even if this court were to ignore McGlothin’s forfeiture and initiate plain
error review sua sponte, McGlothin could not demonstrate the district court’s
instruction amounted to plain error. The district court’s limiting instruction is
consistent with Tenth Circuit Pattern Jury Instruction (Criminal) No. 1.30 and this
court has previously approved the admission of Rule 404(b) evidence in the face
of similar instructions. See, e.g., United States v. Davis, 636 F.3d 1281, 1300
(10th Cir. 2011); United States v. Burgess, 576 F.3d 1078, 1086 n.6 (10th Cir.
2009). Accordingly, any error McGlothin might be able to identify in the district
court’s instruction is certainly not plain. United States v. Ruiz-Gea, 340 F.3d
1181, 1187 (10th Cir. 2003) (holding that for an error to be plain it must be clear
or obvious under well-settled law).
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overwhelming that the 2007 and 2009 Incidents had no effect on “the outcome of
the district court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993)
(setting forth standard for determining whether an alleged trial error affected a
defendant’s substantial rights).
To summarize the evidence set out at greater length above, a search of the
apartment McGlothin was using as a permanent residence revealed a loaded Glock
in the open closet of a furnished bedroom. Although the Glock was partially
hidden under clothing on a closet shelf, it was readily visible to the officer
conducting the search of the bedroom. The closet contained men’s clothing, a
New York Yankees baseball cap, a stack of two-dollar bills, and two letters
addressed to McGlothin. McGlothin was from New York and was known as
“New York.” Although he asserted he did not own the two-dollar bills, he
admitted having spent some of them.
Ritchie testified that before he rented the apartment it was completely
empty, cleaned out, and vacuumed. Ritchie did not keep clothes at the apartment
and usually stayed elsewhere. On occasions when he did stay at the apartment, he
either slept on the couch or in the empty bedroom because the furnished bedroom
belonged to McGlothin. The only furniture in the apartment was purchased by
McGlothin. Ritchie had no knowledge of anyone other than McGlothin and Paden
staying at the apartment. McGlothin confirmed during his post-arrest interview
with police that none of his friends stayed at the apartment. Ritchie and
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McGlothin were the only two people who had a key for the apartment. Ritchie
had no incentive to shift blame onto McGlothin because he was legally entitled to
possess a firearm. Nevertheless, he testified he did not own the firearm found in
McGlothin’s bedroom.
During his post-arrest interview, McGlothin admitted that he had
previously handled the Glock. This admission was corroborated by the
government’s DNA expert. Berdine told the jury one of three DNA profiles found
on the Glock was consistent with McGlothin’s DNA profile and the odds of
finding a random, unrelated person in the general population that shared the same
DNA markers as McGlothin was roughly 1 in 110,000. McGlothin’s ability to
handle the Glock on a previous occasion made it exceedingly likely he could
exercise dominion and control over the Glock found in his closet on February
10th.
In the face of this overwhelming evidence of constructive possession, this
court concludes evidence regarding the 2007 and 2009 Incidents did not affect the
jury’s guilty verdict. Because the evidence did not affect McGlothin’s substantial
rights, he is not entitled to relief on appeal. Fed. R. Civ. P. 52(b).
III. Conclusion
For those reasons set out above, the judgment of conviction entered by the
United States District Court for the District of Colorado is hereby AFFIRMED.

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