U.S. v. Gilliam, 1253

• Decision Date: 02 June 1993
• Docket Number: D,No. 1253,1253
• Citation: 994 F.2d 97
• Parties: 38 Fed. R. Evid. Serv. 1405 UNITED STATES of America, Appellee, v. Kevin GILLIAM, Defendant-Appellant. ocket 92-1591.
• Court: U.S. Court of Appeals — Second Circuit

Page 97

994 F.2d 97

38 Fed. R. Evid. Serv. 1405

UNITED STATES of America, Appellee, v. Kevin GILLIAM, Defendant-Appellant.

No. 1253, Docket 92-1591.

United States Court of Appeals, Second Circuit.

Argued March 19, 1993.

Decided June 2, 1993.

Roger S. Hayes, Asst. U.S. Atty. (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Richard B. Zabel, and Paul G. Gardephe, Asst. U.S. Attys., of counsel), for appellee.

Joseph G. Braunreuther, New York City (Watson, Farley, & Williams, of counsel), for defendant-appellant.

Before: ALTIMARI and WALKER, Circuit Judges, and MORRIS E. LASKER, Senior Judge United States District Court for the Southern District of New York, sitting by designation.

ALTIMARI, Circuit Judge:

Defendant-appellant Kevin Gilliam appeals from a final judgment of the United States District Court for the Southern District of New York (Owen, J.) convicting him, following a three-day jury trial, of violating 18 U.S.C. § 922(g)(1) (1988), which prohibits a convicted felon from possessing a firearm in or affecting commerce. The district court sentenced Gilliam to 180 months imprisonment, three years supervised release, and a special assessment.

At trial, Gilliam and the government stipulated that the weapon in question had travelled in interstate commerce, and that Gilliam had previously been convicted of a felony punishable by imprisonment for more than one year. Gilliam further proposed a stipulation to the prior conviction element of § 922(g)(1), to concede the element and thereby keep the fact of his prior conviction from the jury. This proposal was rejected by the government, and the district court refused to require the government to accept it.

On appeal, Gilliam contends principally: (1) that the district court erred in denying his proposal to stipulate to his prior conviction, since evidence of his prior conviction was more prejudicial than probative when he was willing to concede the relevant element of the crime; and (2) that the district court erred in admitting a statement by a police officer into evidence where he contends that the statement was hearsay and was "devastating" to his defense. For the reasons below, we affirm the conviction.

BACKGROUND

In the early morning hours of April 18, 1991, an unidentified man placed an emergency "911" call to the New York City Police Department. The caller told the police that a black male wearing a brown leather jacket was carrying a gun in the vicinity of 115 West 137th Street in Manhattan. Officers Neil Nappi and Robert Dempsey responded to the call.

When they arrived at the scene, they spotted two men in front of the building at 115 West 137th Street. One of the men, Andre Bailey, fit the description given by the caller. The man standing next to Bailey was defendant-appellant Kevin Gilliam. Upon seeing the two men, Officer Nappi drove his patrol car over to the curb at an angle, so that his car's headlights shone directly on Gilliam and Bailey. At that point, the two men were facing each other, five to seven feet apart. There was no one else in their vicinity.

The officers first focused their attention on Bailey, since he fit the description given by the anonymous caller. According to Officer Nappi, however, when he looked at Gilliam he noticed what appeared to be a gun in Gilliam's hand. After seeing the patrol car, Gilliam and Bailey said nothing but began to walk away in different directions. Nappi, without saying anything to Dempsey about the gun, exited his patrol car and followed Gilliam while Dempsey exited and followed Bailey.

While following Gilliam, Nappi observed Gilliam holding what looked to be a silver-colored firearm in his hand. Gilliam then stepped off the street curb and, according to Meanwhile, Dempsey had stopped Bailey, patted Bailey down, and found nothing. Dempsey instructed Bailey to leave the area, which he did.

                Nappi, tossed the gun under a car's front bumper.   Upon seeing this, Nappi ran up and arrested Gilliam, handcuffing him against the hood of the parked car.   Subsequently, Nappi found a loaded .380 caliber semi-automatic pistol in the "ready to fire" position under the parked car
                

After the officers brought Gilliam back to the precinct house for processing, the anonymous caller phoned again. This time, the caller complained that the officers had missed another gun at the scene, that they had walked right by a second gun resting on top of a garbage can. The caller also informed police that the man in the brown jacket had returned to the area to retrieve the gun.

In response to this call, Officer Dempsey instructed police units to return to the area and to search for a man bearing Bailey's description. The officers assigned found Bailey at the scene of the arrest. They brought Bailey back to the station house and issued him a summons for returning to the scene. However, they did not find any other gun, either on Bailey or in the area.

Because Gilliam had a prior conviction on his record, he was charged under 18 U.S.C. § 922(g)(1), which makes it a crime for "any person 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 or ammunition." He was tried by a jury before the United States District Court for the Southern District of New York (Owen, J.).

Prior to trial, Gilliam and the government agreed to a stipulation concerning Gilliam's prior conviction. The stipulation precluded documentary or testimonial proof of the conviction, thus preventing the jury from knowing the circumstances and type of the offense. The parties also agreed to stipulate to the interstate commerce element of § 922(g)(1).

During jury selection, Gilliam proposed to go a step further and stipulate not only to the prior conviction itself but also to the prior conviction element of § 922(g)(1), thus conceding the element and removing it from the jury's consideration. Under such a stipulation, the jury would only be charged that it needed to find whether Gilliam had possessed the gun. The jury would not be told that an element of the crime was Gilliam's felonious history or indeed that he had a felonious history. The district court could simply instruct the jury that, under the circumstances of the case, Gilliam was guilty of the charged crime if the government proved beyond a reasonable doubt that he was in possession of the firearm found at the scene.

The government opposed the stipulation and the district court denied the request, stating that:

if the jury were to be told that in order to find him guilty of this crime all they got (sic) to do is find he possessed a gun ... from the, sort of the collective common sense knowledge of hundreds and hundreds of thousands of New Yorkers, the answer to that question in their own minds might be, so what, a lot of people have guns, what's the big deal[?].

During the trial, the district court read a stipulation to the jury that Gilliam had been convicted of a crime punishable by imprisonment for a term exceeding one year. At no point in the trial were any underlying facts to the prior conviction revealed. Rather, only the fact that there was a prior conviction was mentioned. In its charge to the jury, the district court gave a limiting instruction:

Now, I want to firmly instruct you in this connection that the prior conviction that is an element of the charge here and is not disputed, is only to be considered by you for the fact that it exists. And for nothing else. You are not to consider it for any other purpose, you are not to speculate as to what it was for or anything else. It is not to be in any way considered by you on whether it is more likely than not that the defendant was in knowing possession of the gun that is charged, which is the disputed element of the offense here charged.

At the close of trial, the jury found Gilliam guilty of a violation of § 922(g)(1). He was

                subsequently sentenced to 180 months imprisonment, supervised release, and a special assessment.   Gilliam now appeals his conviction on two grounds:  (1) the district court erred in denying his proposed stipulation;  and (2) the court erred in allowing the government to introduce the statements of the anonymous caller about the second gun
                

DISCUSSION

I. The Stipulation Issue

Gilliam argues that the district court should have accepted his proposed stipulation to the prior conviction element of 18 U.S.C. § 922(g)(1), taking the element away from the jury's consideration. He contends that the government would not have been prejudiced in any way if he had been allowed to concede the prior conviction element of § 922(g)(1). In fact, he was willing to take the burden of proving the prior conviction element off the prosecution's hands. Because Gilliam had stipulated to the interstate commerce element of § 922(g)(1), the government would then only have had to prove that he was in possession of a gun.

This Court has noted that prejudicial taint can, in the context of admissible evidence, be caused by the introduction of a defendant's prior conviction, and has protected against that taint when necessary. See, e.g., United States v. Ortiz, 857 F.2d 900, 905 (2d Cir.1988); United States v. Mohel, 604 F.2d 748, 751 (2d Cir.1979). The Federal Rules of Evidence, recognizing the problem, only allow proof of prior convictions in limited circumstances. See, e.g., Fed.R.Evid. 404(b) (allowing prior convictions only to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"); Fed.R.Evid. 609 (allowing proof of prior convictions only to impeach witnesses, subject to limitations on age, character, and prejudicial effect).

As we have stated, however, "[e]vidence is prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence." United States v. Figueroa, 618 F.2d 934, 943 (2d...