United States v. Surmondrea McGregor (11th Cir. June 2020)

The Federal Docket

July 6, 2020

Access Device Fraud/Evidence – Evidence of a firearm in close proximity to personal identifiable information, found in the same small area, is relevant to show the element of possession. 

Evidence/Rule 403 – The probative value of a firearm, shown to be owned by a defendant and in close proximity to personal identifiable information, is not substantially outweighed by any unfair prejudice, especially when the government does not mention that the possession of the firearm was unlawful.

Surmondrea McGregor was convicted of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1), possession of fifteen or more unauthorized access devices under 18 U.S.C. § 1029(a)(3), and aggravated identity theft under 18 U.S.C. § 1028A(a)(1). He was sentenced to 134 months of imprisonment and 36 months of supervised release.

On appeal, McGregor raised two claims. First, he argued that the trial court abused its discretion by admitting evidence of a firearm that was irrelevant to his fraud charged. He also argued that the trial court abused its discretion because, even if relevant, the danger of unfair prejudice by admitting the firearm substantially outweighed its probative value.

The Court disagreed, first holding that the firearm was in fact relevant to show possession of personal identifiable information (“PPI”). Because the firearm was found in a small closet near the personal identifiable information and was shown to belong McGregor “it was far more likely” that McGregor possessed the personal identifiable information.

The Court also held that it was not an abuse of discretion under Rule 403 of the Federal Rules of Evidence to admit the evidence of the firearm. Because both the firearm and the PPI were found in the same small closet and had McGregor’s fingerprints on them, the firearm had “substantial probative force” that McGregor knowingly possessed the PPI. Further, although McGregor had pleaded guilty to the possession of a firearm charge, the government “neither [told] the jury that McGregor’s possession of the firearm was unlawful, nor [indicated] to the jury that McGregor had prior felony convictions that would make possession unlawful” and thereby limited any unfair prejudice.

Appeal from the Southern District of Florida

Opinion by Marcus, joined by Wilson and Thapar (by designation from 6th Cir.)

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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