U.S. v. Williams, 05-4381.

• Decision Date: 21 August 2006
• Docket Number: No. 05-4381.,05-4381.
• Citation: 461 F.3d 441
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 441

461 F.3d 441

UNITED STATES of America, Plaintiff-Appellee, v. Frank WILLIAMS, Defendant-Appellant.

No. 05-4381.

United States Court of Appeals, Fourth Circuit.

Argued May 26, 2006.

Decided August 21, 2006.

ARGUED:

Martin Gregory Bahl, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. A. David Copperthite, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF:

James Wyda, Federal Public Defender, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINSON and WILLIAMS, Circuit Judges, and CONRAD, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge WILKINSON and Judge CONRAD joined.

WILLIAMS, Circuit Judge.

Frank L. Williams appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C.A. § 922(g)(1) (West 2000), and his sentence of 235 months' imprisonment imposed under the Armed Career Criminal Act, 18 U.S.C.A. § 924(e) (West Supp.2006). As to his conviction, Williams contends that the district court erred by conditioning the admission of an evidentiary demonstration he wished to perform on his willingness to testify, an error that he argues improperly enabled the Government to introduce the names of his prior convictions despite the fact he had stipulated to his felon status. We agree that the district court erred, but we conclude that the error was harmless. As to his sentence, Williams contends that the district court erred by making findings of fact with regard to his criminal history. We disagree. For the reasons that follow, we affirm.

I.

On October 18, 2003, Officers Gene Molinaro and Jack Atkins of the Baltimore City Police Department arrested Williams for selling counterfeit music compact disks (CDs) and digital video disks (DVDs). According to the officers, Officer Molinaro discovered a gun in Williams's waistband during a search of his person after the arrest. It was later determined that Williams had several prior felony convictions, and Williams was indicted under § 922(g)(1) in the United States District Court for the District of Maryland.

Williams elected to go to trial. Prior to trial, he stipulated that he was a convicted felon so that the name and nature of his recent prior convictions—a 1991 conviction for possession with intent to distribute heroin, a 1995 conviction for possession with intent to distribute heroin and cocaine, and a 1995 handgun conviction— would not be introduced to the jury. See Old Chief v. United States, 519 U.S. 172, 185, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (holding that Fed.R.Evid. 403 prohibits the Government from introducing the "name or nature" of a prior felony conviction in a § 922(g)(1) case when such information would tend to "lure a juror into a sequence of bad character reasoning" regarding a defendant who had stipulated to his felon status).

The prosecution called Officers Molinaro and Atkins to testify at trial. These officers testified that on the day in question, they were in a marked patrol car on a routine patrol that took them past the Upton Courts apartment complex, an area fraught with crime. As they slowed for traffic, Officer Molinaro saw Williams, who was sitting on a wall in front of the apartment complex, engaged in a transaction with a man on a bicycle. A large black bag was near Williams and he was offering CDs to the man on the bicycle with one hand while reaching with the other hand for cash from the man on the bicycle. Suspecting that Williams was illegally selling CDs, the officers stopped their patrol, got out of the car, and approached Williams. As the officers approached, the man on the bicycle rode away. Officer Molinaro asked Williams if he had a vendor's license, and when Williams answered in the negative, he was placed under arrest. Officer Atkins handcuffed Williams, and Officer Molinaro directed Williams to sit on the curb. Officer Molinaro turned his attention to Williams while Officer Atkins inspected the black bag.

Officer Molinaro testified that Williams was wearing a fanny pack and that the fanny pack was zipped closed at the time of his arrest. As Williams sat on the curb, Officer Molinaro unclipped the fanny pack to remove it. At that time, Officer Molinaro observed that the fanny pack was unzipped and the compartment was open. Officer Molinaro further noticed that Williams's underwear was pulled high above the waist of his pants so that it covered a square bulge. Pulling the underwear back, Officer Molinaro found a handgun. Officer Molinaro suspected that Williams originally had the gun in his fanny pack and, after his arrest, transferred it to his underwear. Officer Atkins discovered counterfeit DVDs and CDs in the black bag.

Williams represents—and the Government does not seriously contest—that, having stipulated to his felon status, he did not intend to testify at trial. During cross-examination of Officer Molinaro, however, Williams sought to demonstrate to the jury that he could not have been wearing the fanny pack because its belt was too short to close around his waist. The Government objected to the demonstration, arguing that "any demonstration ... would be testimonial" and that Williams would, therefore, be subject to cross-examination if he performed it. (J.A. at 143.) The district court sustained the Government's objection, providing two reasons for its ruling: (1) that the demonstration was a testimonial act and, accordingly, Williams could not perform it without subjecting himself to cross-examination and (2) that the demonstration was inadmissible because Williams had gained a significant amount of weight after he was arrested and, therefore, the demonstration was irrelevant to show that Williams was not wearing the fanny pack at the time of his arrest.¹

After the Government rested its case, Williams sought clarification of the district court's ruling with respect to the demonstration. In explaining its decision, the district court suggested that, despite the fact it found that Williams had gained weight since his arrest, Williams would be able to perform the demonstration if he would be willing to subject himself to cross-examination on the issue of his weight. The Government informed Williams that if he chose to testify, it would seek to impeach his testimony by introducing the name of the three aforementioned prior convictions. At that time, the district court expressed doubt that the prior handgun conviction would be admissible to impeach Williams.

Williams called his wife as the opening witness in his case in defense. She stated that she had driven Williams to the apartment complex and that, at the time he got out of the car, he was not wearing a fanny pack or carrying a black bag or gun. Mrs. Williams went into the apartment complex to visit her granddaughter and Williams stayed outside. Later, someone informed Mrs. Williams that her husband was being arrested in the street. She left the building to see what was going on and observed one of the officers (presumably Officer Molinaro) talking to her husband as he was handcuffed and seated on the curb and the other officer (presumably Officer Atkins) removing DVDs, CDs, and a gun from the black bag.

During a break in Mrs. Williams's testimony, Williams again sought clarification with respect to the district court's ruling on the demonstration. This time, the district court stated what it had suggested in its second explanation of its ruling: "If [Williams] wants to take the stand, he can put ... on [the fanny pack]. . . . That's actually the only way you get the demonstration, because then the Government gets to cross-examine as to whether the circumstances of the demonstration are sufficiently similar to what [they were at the time of Williams's arrest]." (J.A. at 239.) The district court also ruled that, based on the testimony that had been presented to that point, the Government could not introduce the name of the handgun conviction as impeachment because its probative value did not outweigh its prejudicial effect. The district court also stated, however, "I don't know what he's going to testify to on direct, and then the direct is going to determine the scope of the cross[-examination]." (J.A. at 244.) After Mrs. Williams testified, Williams's counsel sought clarification from the district court on whether, if Williams testified, the Government could impeach Williams's testimony with the name of the handgun conviction. The district court responded, "it depends on what [Williams] says about a gun." (J.A. at 264.)

Williams decided to take the stand. He tried on the fanny pack, but it was approximately six inches too short to close around his waist. Williams also testified regarding his weight change (or lack thereof) since the time of his arrest. Williams, however, did not limit his testimony to his weight change. Instead, he gave testimony regarding the events surrounding his arrest. According to Williams, he was sitting on the wall in front of the apartment complex when a man on a bicycle approached him offering to sell him DVDs and CDs. The man showed him the DVDs and CDs, and about the same time, the man on the bicycle saw Officers Molinaro and Atkins in their patrol car and rode off. According to Williams, he (Williams) was not wearing the fanny pack, he was not selling the DVDs and CDs, the black bag did not belong to him, and he did not have the gun. Williams also stated that he had a prior drug conviction.

On cross-examination, the prosecutor briefly questioned Williams regarding his weight change since the time of his arrest. Williams also admitted, in response to questioning from the prosecutor, that he had two prior drug convictions. The following exchange then ensued:

[Prosecutor]:Okay. Are you telling...