Wilburn, a twice-convicted felon, was found asleep in a black Chevrolet Camaro on March 15, 2022, with a loaded handgun in plain view next to the center console. A sheriff's deputy had responded to reports of hazardous driving and discovered the weapon during a search of the vehicle, which was registered to Samira Swift. Records showed Swift had purchased the firearm on March 4, 2022—just one day after Wilburn was released from parole supervision that had confined him to his residence with an ankle monitor.
The Eighth Circuit upheld U.S. District Judge Lee P. Rudofsky's decision to admit evidence of Wilburn's 2021 Mississippi conviction for unlawful firearm possession under Federal Rule of Evidence 404(b). As Chief Judge Colloton wrote, 'Evidence of Wilburn's prior conviction for unlawful possession of a firearm was relevant to prove his knowledge of the firearm in the car and his intent to possess it,' particularly given Wilburn's defense that he was merely present in Swift's car without knowledge of the weapon.
The court provided extensive reasoning for why prior firearm convictions are not simply 'propensity evidence,' explaining that such evidence 'supports an inference that either the defendant is remarkably unlucky or he is the cause of the events.' As Colloton noted, the reasoning 'clearly differs from the usual propensity chain of inferences, because it does not rely on the proposition that Wilburn was simply predisposed to possess a firearm unlawfully.'
The case reached the Eighth Circuit after Judge Rudofsky sentenced Wilburn to 100 months in prison following his jury conviction. During the proceedings, Judge Rudofsky had made the unusual observation that the circuit's decisions on Rule 404(b) are 'wrong,' stating he did not 'really understand why the Eighth Circuit has decided the cases this way' and suggesting 'this is a good issue to bring up to them' for potential 'en banc rehearing.'
Wilburn's attorneys argued that his parole release date was irrelevant and unduly prejudicial, contending the jury 'may have been perturbed' that he was arrested shortly after release. The circuit court rejected this argument, finding that Wilburn's newfound freedom after being confined to home with an ankle monitor 'increased the probability that Swift purchased the firearm for Wilburn—a fact that would help to prove Wilburn's knowledge or intent to possess the firearm and ammunition.'
The court also rejected Wilburn's sufficiency challenge, noting that while Swift testified she had hidden the weapon without Wilburn's knowledge, 'the sheriff's deputy testified that the firearm was found in plain view on the driver's side of the vehicle.' Chief Judge Colloton concluded that 'the jury was entitled to credit the deputy's testimony and to infer that Wilburn knew about the gun.'
The unanimous decision, with Chief Judge Colloton joined by Circuit Judges Bobby Shepherd and David Erickson, reinforces Eighth Circuit precedent that has consistently allowed evidence of prior firearm convictions in felon-in-possession cases. The ruling follows circuit decisions in Harrison, Halk, Walker, and Strong that have established this line of precedent over nearly two decades.