U.S. v. Palmer, 93-8775

• Citation: 37 F.3d 1080
• Decision Date: 27 October 1994
• Docket Number: No. 93-8775,93-8775
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Will Arthur PALMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1080

37 F.3d 1080

UNITED STATES of America, Plaintiff-Appellee, v. Will Arthur PALMER, Defendant-Appellant.

No. 93-8775.

United States Court of Appeals, Fifth Circuit.

Oct. 27, 1994.

Rehearing Denied Dec. 15, 1994.

Adrienne Urrutia, Assistant Federal Public Defender, Alfredo R. Villarreal, Lucien B. Campbell, Federal Public Defender, San Antonio, TX, for appellant.

Richard L. Durbin, Jr., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, DeMOSS and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Palmer was tried and convicted by jury of being a convicted felon in possession of a firearm (Count 1), in violation of 18 U.S.C. Secs. 922(g), 924(e), and of possessing an unregistered sawed-off shotgun (Count 2), in violation of 26 U.S.C. Sec. 5861. He appeals his conviction, asserting that (1) after the parties had stipulated that he had a prior felony

conviction, the district court impermissibly allowed the government to present evidence of his prior felony conviction and parole term, and (2) some of the prosecutor's comments during oral argument deprived him of a fair trial. We affirm.

FACTS

On November 19, 1992, two San Antonio Police Department patrol officers observed Will Palmer walking toward them on Micklejohn Street. Palmer was wearing a dark colored trench coat, and it appeared to the officers that he carried something underneath his coat. As the officers stopped and got out of their patrol car, Palmer ran. The officers chased him and observed him throw down a long dark object as he jumped over a fence. They apprehended Palmer shortly thereafter. One of the officers returned to the area where the dark object was thrown down and found a sawed-off shotgun.

Will Palmer had been convicted previously of murder without malice and was on parole for life. He was indicted for count one, being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g), and count two, being in possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. Sec. 5861.

Relative to the Sec. 922(g) offense, the parties stipulated that Palmer had a prior felony conviction and that Palmer "is guilty of the prior conviction element of Count One of the instant indictment."

Palmer filed a motion in limine "seeking to exclude any evidence of prior conviction, or other crimes, wrongs, and acts and the fact of the prior conviction," on grounds of the stipulation. In the supporting memorandum, he argued that such evidence was irrelevant under Fed.R.Evid. 402, but that "if relevant to a particular issue, pursuant to Rule 404(b), such evidence is excludable at the court's discretion, under Rule 403, for reasons of prejudice." ¹ Prior to trial, the defense objected to the introduction of testimony by Palmer's state parole officer and evidence of his parole-release conditions, citing Rules 401, 403, and 404(b) and this Court's opinion in United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). The government responded: "We're offering [the parole officer's] testimony as circumstantial evidence the Defendant knew he could not possess a gun ... as a condition of his parole. He also knew that he couldn't violate local, state, municipal, and federal laws. It also goes to show why he ran from the police that night." The court overruled the defense objections.

The first government trial witness was Palmer's state parole officer, Maria Ramirez. She testified about the fact of Palmer's status as a felon and about his knowledge of the conditions of parole. The government then offered into evidence Palmer's certificate of parole as government Exhibit 1. The certificate indicated that he was aware of the rules. It also stated that his parole term was "Life" and that he was required to undergo drug and alcohol treatment as a special condition of parole.

Defense counsel objected to introduction of the certificate based on the grounds stated in the motion in limine, particularly the stipulation of admission that's of record in this case. The court overruled this objection. Upon completion of all the evidence, charging of the jury, and closing arguments of counsel, the jury found Palmer guilty as charged. The district court sentenced him on count one to 262 months, to be followed by five years of supervised release, and on count two to 120 months, to be followed by three years of supervised release. Both the terms of imprisonment and the terms of supervised release are to be served concurrently. Palmer appeals his convictions.

DISCUSSION

Palmer contends first that the stipulation rendered irrelevant all evidence of his prior conviction and that the admission of this evidence was reversible error. We review a trial court's evidentiary rulings and determinations of relevance for abuse of discretion. ² United States v. Lopez, 979 F.2d 1024, 1032 (5th Cir.1992), cert. denied sub nom., Ramirez v. United States, --- U.S. ----, 113 S.Ct. 2349, 124 L.Ed.2d 258 (1993); United States v. Williams, 900 F.2d 823 (5th Cir.1990).

The Effect of the Stipulation

As a general rule, a party may not preclude his adversary's proof by an admission or offer to stipulate. United States v. Spletzer, 535 F.2d 950, 955 (5th Cir.1976); United States v. Ponce, 8 F.3d 989, 993 (5th Cir.1993). Nonetheless, this principle, like all rules of evidence, is subject to the provision that where the probative value of relevant evidence is substantially outweighed by its potential for unfair prejudice, it should be excluded. Spletzer, Id.; Fed.R.Evid. 403. An important consideration relating to probative value is the prosecutorial need for such evidence. Spletzer, Id. Another central consideration in determining probative value is how strongly the proffered evidence tends to prove an issue of consequence in the litigation. See United States v. Beechum, 582 F.2d 898, 914-15 (5th Cir.1978) (en banc) cited in United States v. Grassi, 602 F.2d 1192 (5th Cir.1979), vacated and remanded, 448 U.S. 902, 100 S.Ct. 3041, 65 L.Ed.2d 1131, on remand, 626 F.2d 444 (5th Cir.1980).

As stated by the First Circuit (en banc), "[a] decision to honor a stipulation concerning the predicate crime in a felon-in-possession case in no way trenches upon the right of the prosecution to make a full presentation of the crime currently charged." United States v. Tavares, 21 F.3d 1, 3 (1st Cir.1994). After a stipulation of the fact of a predicate conviction for the felon in possession of a firearm offense, the legal question of status is still a relevant issue; however, the predicate crime is significant only to demonstrate status, and the issue of status does not depend upon the probative value of the evidence. See and compare, United States v. Chapman, 7 F.3d 66, 69 (5th Cir.1993); see also, Tavares, 21 F.3d at 4.

Admissibility of the Stipulation and Ramirez' Testimony

Ramirez testified that as Palmer's parole supervisor, she had explained to him the rules by which he had to abide as a parolee. These included the condition that he obey all municipal, county, and federal laws and that he may not possess or have any type of weapon or illegal weapon that can cause bodily injury. Ramirez testified about whether Palmer knew he was not to possess a weapon, but she did not testify about the nature of the predicate offense. We find no abuse of the district court's discretion in its determination that Ramirez' testimony was admissible with regard to Palmer's parole status. Ramirez' testimony about Palmer's conditions of parole went beyond the question of the "fact" of the prior conviction, but did not embrace either the nature or other details about that offense. The government carefully tailored the testimony elicited from Ramirez to avoid any impermissible reference to the predicate offense, as well as to avoid any information which related to Palmer's character or propensity toward criminal behavior. For this reason, we find no error in the admission of Ramirez' testimony.

Likewise, we find no error in the admission of the stipulation itself. The stipulation apprised the jury that Palmer had a prior felony conviction, thus it was evidence of Palmer's status. The district court later instructed the jury that "The parties have stipulated that defendant has been convicted of a crime punishable by imprisonment for a term in excess of one year, and you should regard this second element as proven beyond a reasonable doubt." The stipulation was neither irrelevant nor inadmissible, regardless of Palmer's reasons for stipulating. ³

Admissibility of the Parole Certificate

Neither the stipulation nor Ramirez' testimony included evidence about the nature of the prior conviction. This is not so regarding the parole certificate. The government argues that the parole certificate was admissible to show that Palmer fled from the police officers because he knew that he was not permitted to possess a firearm. ⁴ However, Ramirez' testimony established Palmer's awareness that he could not legally possess a firearm. Through her testimony, the jury heard evidence of the parole conditions prior to introduction of the parole certificate; the jury heard further evidence that Palmer knew these conditions before he ran from these police officers. Thus, at the time the parole certificate was offered, the government already had accomplished what it set out to do.

Unsatisfied with just having the testimony before the jury, the government introduced the certificate and, in so doing, overlooked language on the certificate which told the jury that Palmer's prior conviction was one for which he received parole for life, and for which he was required to undergo drug/alcohol treatment. ⁵

This information is similar to information about the nature of the predicate offense. Given the parties' stipulation, evidence of the predicate...