United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2447
                         ___________________________

                              United States of America

                                        Plaintiff - Appellee

                                          v.

                                   Merwin Smith

                                     Defendant - Appellant
                                   ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                           Submitted: September 22, 2020
                               Filed: October 26, 2020
                                  ____________

Before SMITH, Chief Judge, BENTON, and KOBES, Circuit Judges.
                              ____________

KOBES, Circuit Judge.

      Merwin Smith appeals his conviction for unlawful possession of a firearm as
a convicted felon in violation of 18 U.S.C. § 922(g)(1). Smith argues that the district
court1 should have excluded his 2005 felon-in-possession conviction and that


      1
        The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
prosecutorial misconduct during rebuttal closing prevented him from receiving a fair
trial. We see no error, and we affirm.

                                          I.

        In the early morning hours of July 17, 2016, a City of Normandy police
officer, patrolling the neighborhood for an unrelated larceny suspect, stopped Smith
for a traffic violation. As Smith got out of the car, the officer saw him lean into the
car, toss something out of the passenger window, and heard it hit the ground with a
“loud metallic clunk noise.” 3/6/19, Trial Tr. Vol I 171:15. The officer found a gun
between 10 and 15 feet away from Smith’s car and arrested him for possessing a
firearm as a felon. Smith denied throwing the gun out of the car and denied any
possession of the gun.

       The Government sought to introduce Smith’s 2005 conviction for being a
felon in possession of a firearm to show knowledge, absence of mistake, and lack of
accident under Rule 404(b) of the Federal Rules of Evidence. Smith objected,
arguing that knowledge and mistake were not material issues because he denied
possession of the gun, not knowing possession of the gun. The district court admitted
the conviction and instructed the jury that the evidence should only be used to
determine “knowledge, absence of mistake, or lack of accident” and could not be
used for propensity purposes.

         During closing arguments, Smith’s counsel suggested that the firearm could
have been discarded by the escaping larceny suspect, and the officer, embarrassed
about not catching that thief, made up a story about Smith: “When you tell a lie,
this is the easy part to remember . . . . He remembers the toss, ladies and gentlemen.
Well, of course he does. That’s this big dumb story. What he doesn’t remember is
those details, because when you tell a lie, that’s what trips you up, those details.”
3/7/19, Trial Tr. Vol II 75:13–19. The Government responded by stating in rebuttal,
“[n]ow what should offend anyone is that she just called this officer a liar, and said


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that he set this person up. He planted this gun . . . .” 3/7/19, Trial Tr. Vol II 78:2–
4. Defense counsel objected, claiming that the prosecution disparaged defense
counsel and mischaracterized her argument. The district court overruled the
objection. The district court also overruled an objection to the Government’s
subsequent remark: “Don’t be fooled by the distractions.” 3/7/19, Trial Tr. Vol II
80:3–4. The jury convicted Smith of possessing a firearm as a felon.

      Smith timely appealed the admission of Rule 404(b) prior acts evidence and
the court’s rulings on his objections during closing arguments.

                                          II.

      Smith first argues the district court abused its discretion in admitting his 2005
conviction for possessing a firearm as a felon. “We review the district court’s
admission of evidence of past crimes under Federal Rule of Evidence 404(b) for
abuse of discretion, and we will not reverse unless the evidence clearly had no
bearing on the case and was introduced solely to prove the defendant’s propensity
to commit criminal acts.” United States v. Williams, 

, 958 (8th Cir.
2015). Courts properly admit evidence under Rule 404(b) if: “(1) it is relevant to a
material issue; (2) it is similar in kind and not overly remote in time to the crime
charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice
does not substantially outweigh its probative value.”

(citation omitted).
The court admitted the evidence of Smith’s conviction under a stipulated agreement,
and the parties do not dispute that the prior act was supported by sufficient evidence.

       Smith argues that because he denied ever touching or possessing the gun,
knowledge is not relevant to a material issue and evidence of a prior conviction
provides only propensity evidence prohibited by Rule 404(a) and 403. Our
precedent forecloses this argument. “The defendant places his knowledge and intent
at issue by pleading not guilty even when the prosecution proceeds solely on an



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actual possession theory.” 

. “Knowing possession” is an
element of 18 U.S.C. § 922(g)(1), and previous possessions are relevant to proving
this element. See id.; see also United States v. Oaks, 

, 539 (8th Cir.
2010); United States v. Brown, 727 F. App’x 902, 906–07 (8th Cir. 2018); United
States v. Graham, 680 F. App’x 489, 492 (8th Cir. 2017).

       Nor did the district court err by admitting evidence that was too dissimilar or
overly remote. To support criminal intent, prior act evidence “must be sufficiently
similar.” United States v. Walker, 

, 1275 (8th Cir. 2006) (citation
omitted). “There is no absolute rule about remoteness in time, and we apply a
reasonableness standard based on the facts and circumstances of each case.” United
States v. Yielding, 

, 702 (8th Cir. 2011). Both the 2005 conviction and
the 2016 arrest involved a gun in a car, which makes evidence of the 2005 conviction
probative of Smith’s knowledge and criminal intent to possess the gun. See 

–74. And, while the 2005 conviction happened eleven years before
his arrest on this charge, Smith was incarcerated for over half of that time. See

(referencing defendant’s time in custody while
considering temporal remoteness). The district court did not abuse its discretion in
finding that the 2005 conviction was sufficiently similar and not too remote.

       Smith argues that admitting the 2005 conviction only implied that he acted
consistently with his prior criminal offense and so it was unfairly prejudicial. Smith
compares admission of his prior felon in possession conviction to the one disallowed
by United States v. Mothershed, 

(8th Cir. 1988). Mothershed is
different. In Mothershed, we reversed the admission of a prior conviction because
it was relevant only for propensity purposes to show “that a person who has been
convicted of possessing money that he knows was stolen from a bank is more likely
to be a bank robber than are most other people who have no such record.”

In contrast, here it is settled law that the use of a prior conviction is relevant to
Smith’s knowledge and intent, and it is admissible for that purpose.



                                        -4-
       Smith also submits that because this is “a particularly close case, hinging on
uncorroborated testimony of a single police officer” the 404(b) evidence makes “the
potential for unfair prejudice particularly [ ] acute” and grants “unfair advantage in
bolstering the credibility of a single witness’s uncorroborated testimony.” Smith Br.
13. But this misstates the record. While it is true that only a single officer observed
Smith’s disposal of the gun, the jury also considered the photographs from the scene,
evidence from the agent who examined the gun, the gun itself, and stipulated
evidence. The Government’s case did not depend on the officer’s testimony alone.

       Finally, the district court’s application of the Rule 403 balancing test is given
great deference. 

. The district court considered the specific
purpose for which the 404(b) evidence would be admitted and its prejudicial effect
after considering briefing and oral argument. The jury heard the 404(b) evidence by
stipulation, omitting unrelated prejudicial facts surrounding the conviction. The
district court also directed the jury to consider the conviction only as it related to
Smith’s knowledge, intent, or absence of mistake. Considering the steps taken by
the district court in balancing the probative value and the prejudicial effects of the
prior conviction, we conclude that the district court did not abuse its discretion in
admitting the 404(b) evidence.

                                          III.

       Smith next argues that the district court impaired the jury’s impartial
consideration of the case by overruling defense counsel’s objections in closing
arguments. Smith claims that the district court’s decision “had the unintended effect
of encouraging the jury to accord weight to the prosecutor’s ongoing call to take
offense at defense counsel and to dismiss the evidentiary conflicts [the defense] cited
as ‘tactics’ to trick them.” Smith Br. 16. We grant trial courts “broad discretion in
controlling closing arguments and we will reverse only on a showing of abuse of
discretion.” United States v. Miller, 

, 729 (8th Cir. 2010) (citation
omitted).


                                         -5-
       We use a “two-part test for reversible prosecutorial misconduct: (1) the
prosecutor’s remarks or conduct must have been improper, and (2) such remarks or
conduct must have prejudicially affected the defendant’s substantial rights so as to
deprive the defendant of a fair trial.” United States v. Conrad, 

, 855
(8th Cir. 2003) (citation omitted). The prejudicial effect of prosecutorial misconduct
is measured with three factors: “(1) the cumulative effect of such misconduct; (2)
the strength of the properly admitted evidence of the defendant’s guilt; and (3) the
curative actions taken by the court.”

context of the entire trial when determining whether the
Government’s remarks are improper. 

–30. The district court
found that the prosecutor’s remarks were invited by defense counsel’s closing, that
the Government made a reasonable inference from defense counsel’s remarks, and
that the remarks were not directed at counsel. We agree. The Government’s remarks
directly addressed defense counsel’s argument that the officer lied. They were not
directed at counsel herself.

       Even assuming the Government’s remarks were improper, Smith shows no
prejudice. First, because Smith points to only two brief remarks in the Government’s
rebuttal argument, the cumulative effect is not a factor in this case. Second, the
district court properly admitted evidence supporting the crime charged: the officer’s
testimony, the stipulations by the parties, photographs of the gun and the scene, and
the gun itself. The strength of this evidence supports the jury’s guilty verdict. And
third, after overruling defense counsel’s objections, the court cautioned the jury to
“be guided by your recollection of the testimony and the evidence.” 3/7/19, Trial
Tr. Vol. II at 80:8–9.

      Smith says that the prosecutor’s statements “and the [district court’s] mistaken
rulings upholding them may have been key to the guilty verdict that followed four
hours of deliberation in this single count case.” Smith Br. 38. The trial record,
viewed in its entirety, does not support this speculation.


                                        -6-
                             IV.

The judgment of the district court is affirmed.
                _____________________________




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