Reaffirming Admissibility of Prior Felon-in-Possession Convictions to Prove Knowing Possession, and Permitting Comment on Post-Arrest, Pre-Miranda Silence in the Eleventh Circuit

Case: United States v. Tavares Bender (11th Cir. 2026-09-11) (Not for Publication)
Charges: 18 U.S.C. § 922(g) (possession of a firearm and ammunition by a convicted felon)
Disposition: Conviction and 125-month sentence affirmed

I. Introduction

This appeal arose from Tavares Bender’s conviction for being a felon in possession of a firearm and ammunition. The case presented three recurring issues in federal criminal practice:

• Rule 404(b) and prior gun possession: whether the district court could admit Bender’s prior conviction for possession of a firearm by a convicted felon to prove knowing possession in the present § 922(g) prosecution.
• Mistrial and prosecutorial comments: whether comments in rebuttal closing argument about Bender’s lack of on-video denial (i) improperly commented on silence and/or (ii) shifted the burden of proof, requiring a mistrial.
• Substantive reasonableness: whether a top-of-the-guidelines 125-month sentence was unreasonable because the court allegedly focused on criminal history and insufficiently weighed mitigation.

The Eleventh Circuit affirmed across the board, emphasizing settled circuit doctrine: prior felon-in-possession conduct can be admitted to prove knowledge/intent when the defendant does not stipulate to knowing possession; comment on post-arrest, pre-Miranda silence is permissible in this circuit; and sentencing courts may give heavy weight to criminal history and deterrence so long as they consider the § 3553(a) factors.

II. Summary of the Opinion

A. Rule 404(b) admission

Applying the three-part test from United States v. Edouard, the court held Bender’s 2022 felon-in-possession conviction was admissible because Bender did not admit or stipulate that he knowingly possessed the firearm in the instant case, placing knowledge/intent in issue. The conviction was sufficiently proved by the judgment itself, and its probative value was not substantially outweighed by unfair prejudice under Rule 403, particularly given the limiting instruction.

B. Mistrial denial

The court held the prosecutor’s reference to Bender’s demeanor and failure to deny ownership on body-camera video did not warrant a mistrial. Under United States v. Wilchcombe and United States v. Rivera, the Eleventh Circuit permits use of post-arrest, pre-Miranda silence as substantive evidence of guilt. To the extent there was any burden-shifting risk, the court’s jury instructions—plus the explicit directive to disregard the challenged comment—cured prejudice.

C. Sentence affirmed

Under Gall v. United States and Eleventh Circuit substantive-reasonableness standards, the panel found no abuse of discretion. The district court stated it considered the PSR, memoranda, and § 3553(a) factors and was entitled under United States v. Rosales-Bruno to attach great weight to specific deterrence and criminal history.

III. Analysis

A. Precedents Cited (and How They Drive the Result)

1. Rule 404(b) framework and standards of review

• United States v. Ramirez — supplied the abuse-of-discretion standard for reviewing Rule 404(b) rulings. The panel framed its review through this deferential lens, making reversal unlikely absent a clear misapplication of the rule.
• United States v. Edouard — provided the controlling three-part admissibility test (relevance to a non-character issue; sufficient proof; Rule 403 balance). The opinion essentially tracks Edouard’s structure.

2. Knowledge/intent in § 922(g) cases and relevance of prior possession

• United States v. Taylor — reinforced that, where knowing possession is disputed, the government bears the burden to prove it. This is the hinge: Bender’s refusal to stipulate meant the government could use other-acts evidence to prove mens rea.
• United States v. Edouard (again) — furnished the “state of mind comparison” approach: when prior acts are offered to show intent/knowledge, relevance turns on whether the charged and extrinsic offenses require the same state of mind. Because both were felon-in-possession offenses, the “same” mens rea supported relevance.

3. Rule 403 balancing principles

• Huddleston v. United States — anchored the point that the third prong of the 404(b) inquiry incorporates Rule 403 balancing.
• United States v. Lopez — characterized Rule 403 exclusion as an “extraordinary remedy” to be used sparingly, with the balance generally struck in favor of admissibility.
• United States v. Dodds — supplied the reviewing posture: view evidence in a light most favorable to admission, maximizing probative value and minimizing prejudicial impact.
• United States v. Kent — defined “unfair prejudice” as an undue tendency to suggest decision on an improper basis, helping the panel conclude that prejudice did not substantially outweigh probative value (especially with a limiting instruction).
• United States v. Dorsey — provided the specific factors for weighing probative value vs. prejudice (strength of the government’s case on intent, similarity, temporal proximity, and whether intent is contested). The panel applied these factors to emphasize: (i) Bender pleaded not guilty and did not stipulate; (ii) the offenses were similar; (iii) the prior conviction was recent (2022); and (iv) evidence of knowing possession was not “overwhelming,” given body-cam footage did not show the gun being removed from Bender.

4. Comments on silence and mistrial doctrine

• United States v. Wilchcombe — directly controlled the first mistrial theory by reiterating Eleventh Circuit law permitting the prosecution to use a defendant’s post-arrest, pre-Miranda silence as direct substantive evidence of guilt.
• United States v. Rivera — the foundational circuit authority quoted in Wilchcombe for the permissibility of using post-arrest, pre-Miranda silence.
• Salinas v. Texas — cited within the opinion’s discussion of a persistent circuit split on when silence may be used against a defendant, underscoring that (despite disagreement among circuits) Eleventh Circuit panels remain bound by Wilchcombe/Rivera.
• United States v. Paul — supplied the general two-part prosecutorial-misconduct test: improper remarks require a new trial only if they were improper and prejudiced substantial rights.
• United States v. Hernandez — guided the prejudice assessment (context of the trial as a whole; probable impact on the jury) and emphasized that explicit jury instructions on burden of proof can mitigate or eliminate prejudice from arguable burden-shifting comments.

5. Substantive reasonableness and sentencing discretion

• Gall v. United States — supplied the abuse-of-discretion standard and totality-of-circumstances framework for substantive reasonableness review.
• United States v. Rodriguez — articulated the Eleventh Circuit’s three ways a court can abuse sentencing discretion (failure to consider relevant factors, reliance on improper factors, clear error of judgment).
• United States v. Irey — provided the “definite and firm conviction” threshold for vacating a sentence as substantively unreasonable.
• United States v. Rosales-Bruno — supported the key sentencing holding: district courts may attach great weight to one § 3553(a) factor (such as criminal history/specific deterrence) over others.

B. Legal Reasoning

1. Why the prior felon-in-possession conviction cleared Rule 404(b)

The panel’s reasoning is a step-by-step application of the Eleventh Circuit’s inclusive approach to Rule 404(b) when the government uses prior acts to prove mental state rather than character.

• Non-propensity purpose (relevance): The prior conviction was admitted not to show Bender is the kind of person who carries guns, but to show he did so knowingly—a live element because he did not concede knowing possession.
• Sufficient proof: A certified copy of the prior conviction sufficed; the “proof” prong was undisputed.
• Rule 403 balance: Similarity and recency increased probative value; the absence of “overwhelming” proof of knowing possession made the evidence more than merely cumulative; and a limiting instruction reduced the risk that jurors would use the conviction as forbidden propensity evidence.

A notable practical implication is embedded in the court’s framing: a defendant’s choice not to stipulate to knowing possession can expand the government’s ability to introduce prior possession evidence, because it makes mens rea a contested issue and elevates probative value under the Dorsey factors.

2. Why the mistrial was denied despite the silence/demeanor argument

The prosecutor’s rebuttal invited the jury to infer guilt from Bender’s calm demeanor and lack of on-video denial (“that’s not my gun”). The district court sustained an objection and later instructed the jury to disregard the challenged comment “in its entirety,” in addition to providing standard burden-of-proof and no-adverse-inference instructions.

The Eleventh Circuit resolved the silence issue primarily through United States v. Wilchcombe: in this circuit, the government may comment on post-arrest, pre-Miranda silence as substantive evidence. That binding rule short-circuited the first mistrial theory.

On burden shifting, the panel treated the cure as decisive: under United States v. Hernandez, explicit jury instructions that the defendant need not testify and that the government bears the burden beyond a reasonable doubt diminish (and here “eliminated”) prejudice. The court also relied on the targeted instruction to disregard the comment, reinforcing that any arguable impropriety did not affect substantial rights.

3. Why the top-of-the-guidelines sentence was upheld

The sentencing reasoning turned on deference. The district court stated it considered the PSR, memoranda, and § 3553(a) factors, then emphasized specific deterrence given “significant criminal history.” Under United States v. Rosales-Bruno, a court may give “great weight” to one factor. Under Gall v. United States and United States v. Irey, the appellate court will not reweigh mitigation unless there is a clear error of judgment. The panel found none.

C. Impact

1. Rule 404(b) in § 922(g) trials: the “stipulation pressure” effect

Although the opinion is unpublished, its analysis reflects a consistent Eleventh Circuit pattern: when a defendant does not concede the mental-state component of possession, prior gun-possession conduct—especially a prior felon-in-possession conviction—can be admitted to prove knowledge/intent, subject to Rule 403 and limiting instructions. In practice, this increases the strategic leverage of stipulations in § 922(g) cases: declining to stipulate can allow the government to introduce more prejudicial prior-acts evidence to prove mens rea.

2. Comments on silence: reaffirmation of a distinct Eleventh Circuit position amid a split

The opinion underscores that, notwithstanding a “long-standing circuit split” (as described in Wilchcombe and noted with reference to Salinas v. Texas), Eleventh Circuit panels remain bound to permit prosecutorial comment on silence “at any time prior to the issuance of Miranda warnings.” That stance affects:

• Trial advocacy: prosecutors may argue inferences from post-arrest, pre-Miranda silence, within the boundaries of other evidentiary and constitutional constraints;
• Defense strategy: defense counsel must anticipate and litigate the precise timing (pre-/post-arrest; pre-/post-Miranda) and should preserve objections and request tailored curative instructions.

3. Sentencing: confirming wide discretion to emphasize deterrence and criminal history

The sentence holding reinforces that within-guidelines sentences—especially at the top of the range—are typically sustained where the record shows express consideration of § 3553(a) and a reasoned emphasis on deterrence and history/character. Defendants challenging such sentences must show more than “the judge weighed my mitigation too lightly”; they must show one of the Rodriguez/Irey forms of clear misuse of discretion.

IV. Complex Concepts Simplified

• Rule 404(b) (other-acts evidence): Evidence of past wrongdoing is generally not allowed to prove “he did it before, so he did it again.” It can be allowed for specific, non-character purposes like knowledge or intent.
• “Knowledge/intent” in possession cases: The government must often prove the defendant didn’t possess the gun by accident or unknowingly—i.e., that the defendant was aware of the gun and knowingly possessed it.
• Rule 403 (unfair prejudice balancing): Even relevant evidence can be excluded if it is likely to push the jury to decide on an improper basis (like emotion or propensity) and that risk substantially outweighs the evidence’s legitimate value.
• Limiting instruction: A judge’s direction that the jury may consider evidence only for a particular purpose (e.g., knowledge, not character). Appellate courts frequently treat such instructions as reducing prejudice.
• Post-arrest, pre-Miranda silence: The period after arrest but before officers give Miranda warnings. In the Eleventh Circuit (per Wilchcombe/Rivera), prosecutors may comment on that silence as evidence of guilt; other circuits disagree.
• Substantive reasonableness: A challenge that the sentence is “too much” (or “too little”) in light of § 3553(a). Appellate courts do not redo sentencing; they look for a clear abuse of discretion.

V. Conclusion

United States v. Tavares Bender affirms three important propositions as applied in the Eleventh Circuit. First, when a § 922(g) defendant refuses to concede knowing possession, a prior felon-in-possession conviction may be admitted under Rule 404(b) to prove knowledge/intent, with Rule 403 managed through contextual factors and limiting instructions. Second, consistent with United States v. Wilchcombe, prosecutorial comment on post-arrest, pre-Miranda silence remains permissible in this circuit despite an acknowledged inter-circuit split. Third, a top-of-the-guidelines sentence grounded in criminal history and specific deterrence will generally be upheld where the record reflects consideration of the § 3553(a) factors and no clear error of judgment.