U.S. v. Daniel, 96-5405

• Decision Date: 22 January 1998
• Docket Number: No. 96-5405,96-5405
• Citation: 134 F.3d 1259
• Parties: 48 Fed. R. Evid. Serv. 1026 UNITED STATES of America, Plaintiff-Appellee, v. Willie Don DANIEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1259

134 F.3d 1259

48 Fed. R. Evid. Serv. 1026

UNITED STATES of America, Plaintiff-Appellee, v. Willie Don DANIEL, Defendant-Appellant.

No. 96-5405.

United States Court of Appeals, Sixth Circuit.

Submitted Dec. 6, 1997.

Decided Jan. 22, 1998.

Patrick F. Nash (briefed), Lexington, KY, for Defendant-Appellant.

Frances E. Catron, Asst. U.S. Attorney (briefed), Lexington, KY, for Plaintiff-Appellee.

Before: GUY, SUHRHEINRICH and COLE, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

This case is before us on remand from the Supreme Court for further consideration in light of Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Subject to certain limitations, 18 U.S.C. § 922(g)(1) makes it unlawful for anyone "who has been convicted in any court of ... a crime punishable by imprisonment for a term exceeding one year" to "possess in or affecting commerce ... any firearm...." ¹ In Old Chief, 519 U.S. at ----, 117 S.Ct. at 647, the Supreme Court held that a district court abuses its discretion when it rejects a defendant's offer to stipulate his status as a felon for purposes of § 922(g)(1), and, instead, admits the full record of a prior judgment, if the name or nature of the prior offense increases the risk of a verdict tainted by improper considerations and the purpose of the evidence is solely to prove the element of prior conviction. After supplemental briefing by the parties, we conclude that the district court's refusal to accept Defendant's stipulation was error, but that it was harmless under the circumstances present here. Therefore, we AFFIRM Defendant's conviction and sentence.

I.

On February 27, 1995, the automobile in which Defendant was travelling was stopped by Kentucky State Police in Breathitt County, Kentucky, for failure to have a visible license tag and for a motor vehicle violation. After the driver of the automobile, Yolanda Easterling, informed the state troopers that Defendant had brought a weapon into the vehicle, the troopers ordered Defendant to exit the vehicle. The troopers searched Defendant's person and found three .410 gauge Remington Peter's brand shotgun shells in Defendant's left front pants pocket. The troopers also searched the vehicle and found a .410 gauge shotgun located underneath the passenger seat in which Defendant had been sitting.

Defendant was indicted in district court for being a felon in possession of a firearm and a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924, and for possessing an unregistered sawed-off shotgun in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Defendant has prior convictions for, among other things, kidnapping and reckless homicide.

Defendant filed a pretrial motion to strike the specific descriptions of his convictions for kidnapping and reckless homicide from the indictments for the alleged violations of § 922(g)(1). Defendant also filed a motion in limine, in which he argued that it was unnecessary and prejudicial to inform the jury of the particulars of his prior criminal history beyond Defendant's proffered "stipulation that he has been previously convicted of a crime punishable by imprisonment for a term exceeding one year." J.A. at 18. The district court denied Defendant's motions. ²

At trial, the United States introduced the testimony of Bureau of Alcohol, Tobacco and Firearms Agent Valerie Park. Agent Park testified that, during her investigation, she had retrieved certified records from the Kentucky state courts of judgments of conviction against Defendant for reckless homicide and kidnapping. The government introduced these records in redacted form. ³ Defendant was convicted on all three counts and received a prison term totaling 150 months.

On appeal, Defendant argued that the district court improperly rejected his offer to stipulate to his prior felon status. Following circuit precedent, we held that the government was entitled to prove the felonies in a § 922(g)(1) prosecution and was not required to accept a defendant's stipulation, and we affirmed the conviction and sentence. United States v. Daniel, 103 F.3d 131 (6th Cir.1996)(unpublished decision); see, e.g., United States v. Hudson, 53 F.3d 744, 747 (6th Cir.1995)("In the Sixth Circuit, the government is entitled to prove the felonies it has alleged."). On June 16, 1997, the Supreme Court vacated our judgment and remanded for further consideration in light of the Court's intervening decision in Old Chief. Daniel v. United States, --- U.S. ----, 117 S.Ct. 2450, 138 L.Ed.2d 209 (1997).

II.

On remand, we consider two issues: (1) whether Defendant's case falls within the Supreme Court's holding in Old Chief; and, if so, (2) whether the district court's failure to accept Defendant's stipulation to his prior felon status constituted harmless error.

The United States contends that Defendant's case does not fall within the parameters of Old Chief. In support of its position, the government essentially sets forth two arguments. First, it asserts that Defendant's proffered stipulation was insufficient. Second, the government maintains that Defendant's prior convictions were "ancient," were not "gun" crimes, and were not crimes similar to those charged in the indictment. Therefore, in the government's view, the risk of unfair prejudice was diminished.

The stipulation contained in Defendant's motion in limine stated that Defendant "has been previously convicted of a crime punishable by imprisonment for a term exceeding one year." ⁴ On brief, the government points out that this proposed stipulation was unclear. The stipulation did not explain whether it meant that, as a matter of law, Defendant's prior conviction fell within the definition of "a crime punishable by imprisonment for a term exceeding one year," or whether it was merely a statement of fact. If it was the latter, the government notes, the jury could not have determined whether the predicate offense fell within one of the statute's categorical exceptions; i.e., a "state ... misdemeanor ... punishable by a term ... of two years or less" or a "business" crime. See 18 U.S.C. § 921(a)(2).

We acknowledge that the stipulation offered by Defendant was insufficient without more. An instruction would have been necessary to clarify that Defendant's stipulation satisfied the predicate offense element of § 922(g)(1). However, this does not preclude the application of Old Chief, which involved a substantially identical offer of stipulation. The defendant in Old Chief moved to prevent the government from offering any evidence of defendant's prior criminal conviction, "except to state that the Defendant has been convicted of a crime punishable by imprisonment exceeding one (1) year." Old Chief, 519 U.S. at ---- - ----, 117 S.Ct. at 647-48. Although the Supreme Court recognized that "revision would have been required to dispel ambiguity," id. at ---- n. 2, 117 S.Ct. at 648 n. 2, it still found that the district court abused its discretion by permitting the government to introduce evidence regarding the nature of the defendant's prior conviction. The Court explained: "The district court did not ... deny Old Chief's motion because of the artless instruction he proposed, but because of the general rule ... that permits the Government to choose its own evidence." Id. The same holds true here.

We also reject the United States's second argument that Old Chief does not apply, because Defendant's prior convictions were "ancient," were not "gun" crimes, and were not similar to the crimes with which Defendant was charged in the indictment. Defendant was convicted of kidnapping in 1979 and reckless homicide in 1981. In Old Chief, 519 U.S. at ---- n. 8, 117 S.Ct. at 652 n. 8, the Supreme Court noted: "It is true that a prior offense may be so far removed in time or nature from the current gun charge and any others brought with it that its potential to prejudice the defendant unfairly will be minimal." We conclude here, however, that defendant's prior convictions were not so far removed in time or so dissimilar as to fall outside the holding in Old Chief.

To summarize, the Supreme Court in Old Chief held that because the defendant's prior conviction was relevant solely to prove an element of § 922(g)(1), and because the defendant had offered to stipulate to the prior conviction, "the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available." Id. at ----, 117 S.Ct. at 655. Similarly, we hold, on the basis of Old Chief, that the district court's denial of Defendant's motion in limine in the present case constituted an abuse of discretion. See id. at ----, 117 S.Ct. at 647. ⁵

III.

We must next consider whether the district court's action resulted in harmless error. At the outset, we reject Defendant's argument that Old Chief "in effect creates a per se rule that it cannot be harmless when a jury is informed of a defendant's prior conviction or convictions for serious violent felonies." Brief for Defendant-Appellant at 6. Indeed, the Supreme Court stated in Old Chief that it implied "no opinion on the possibility of harmless error...." Old Chief, 519 U.S. at ---- n. 11, 117 S.Ct. at 656 n. 11.

This circuit has held that an error by a district court with respect to the admission of evidence is subject to harmless error analysis, and it is well settled that an error which is not of constitutional dimension is harmless "unless it is more probable than not that the error materially affected the verdict." United States v. Fountain, 2 F.3d 656, 668 (6th Cir.1993); accord United States v. Martin, 897 F.2d 1368, 1372 (6th Cir.1990). Errors of the sort at issue in this case are, in fact amenable to harmless error analysis. See United States v. Parrish, 127 F.3d 1103 (6th Cir.1997)...