U.S. v. Blake, 96-2933

• Decision Date: 26 February 1997
• Docket Number: No. 96-2933,96-2933
• Citation: 107 F.3d 651
• Parties: 46 Fed. R. Evid. Serv. 905 UNITED STATES of America, Appellee, v. Keith H. BLAKE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 651

107 F.3d 651

46 Fed. R. Evid. Serv. 905

UNITED STATES of America, Appellee, v. Keith H. BLAKE, Appellant.

No. 96-2933.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 13, 1997.

Decided Feb. 26, 1997.

Michael A. Gross, St. Louis, MO, argued, for appellant.

Gabriel E. Gore, Assistant U.S. Attorney, St. Louis, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and ALSOP, ^* District Judge.

ALSOP, District Judge.

I. BACKGROUND

Keith H. Blake ("Blake") was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and for possessing methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). After a two-day jury trial he was found guilty on both counts. Blake appeals his conviction, offering four arguments in support of reversal. First, Blake argues that the district court abused its discretion when it permitted the Government to introduce evidence of Blake's prior felony convictions to prove his felony status for purposes of 18 U.S.C. § 922(g)(1) after Blake had offered to stipulate to his status as a felon. Second, Blake argues that the district court abused its discretion by allowing a detective to testify about an informant's out-of-court statement identifying Blake as someone who was selling methamphetamine. Third, Blake argues that the district court abused its discretion when it permitted a narcotics officer to provide expert witness testimony about the significance of the firearm and the amount of drugs seized when Blake was apprehended. Fourth, Blake argues that a statement made by the prosecutor in closing argument amounted to prosecutorial misconduct.

II. ADMISSION OF FELONY CONVICTIONS

Blake argues that the district court abused its discretion when it permitted the Government to introduce evidence of his four prior felonies after Blake had agreed to stipulate to his status as a felon for purposes of establishing the § 922(g) violation. At trial the Government offered certified copies of felony convictions for burglary, stealing, driving while intoxicated, and stealing a motor vehicle, as well as fingerprints linking Blake to the four felony convictions. Blake argues that under Fed.R.Evid. 403 the evidence of his felony convictions should have been excluded because the probative value given his offer to stipulate to his status as a felon was substantially outweighed by the danger of unfair prejudice on the controlled substance charge. The district court, consistent with prior Eighth Circuit precedent, ruled that the Government was not required to accept Blake's stipulation and could introduce evidence of the convictions but not evidence of the facts underlying the convictions.

Shortly before oral argument on Blake's appeal, the Supreme Court issued a decision in Old Chief v. United States, --- U.S. ----, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) which reverses well-established Eighth Circuit law ¹ and lends substantial support to Blake's argument that it is an abuse of discretion to admit the record of conviction when an admission is available. In Old Chief a majority of the Supreme Court agreed that § 922(g)(1) and its prior conviction element present a problem in that "the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant." Id. at ----, 117 S.Ct. at 652. The majority observed that while the risk of prejudice posed by the evidence of prior convictions may vary from case to case, the risk "will be substantial whenever the official record offered by the government would be arresting enough to lure a juror into a sequence of bad character reasoning." Id.

In the instant case the Court finds that the record of Blake's prior convictions was enough to lure jurors into "a sequence of bad character reasoning" on the companion charge of possession with intent to distribute. The record of convictions showed Blake had four prior felonies, and although no conviction was for distribution of a controlled substance the number and nature of his prior felonies, especially given that the Government did not offer abundant evidence to show intent to distribute, was sufficient to create a substantial risk of unfair prejudice. According to Old Chief when there is a substantial risk of unfair prejudice and there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative component of the official record, under Rule 403 the risk of unfair prejudice outweighs the probative value of the official record, and it is an abuse of discretion to submit the record when an admission is available. Id. at ----, 117 S.Ct. at 655. The Court finds that the evidentiary value of the official record offered to show Blake's prior felony convictions was not cognizably different than that of an admission, and according to Old Chief as Blake had offered to stipulate to his status as a felon, admitting the record of conviction into evidence was an abuse of discretion.

In determining whether evidentiary rule violations require reversal the Court applies the Fed.R.Crim.P. 52(a) harmless error analysis. See United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.1994). In Old Chief the Supreme Court expressed no opinion...