United States v. Smith
| Docket Number | 21-5811 |
| Decision Date | 09 June 2023 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Harold Vernon SMITH, aka Steven Charles Harmon, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 2:19-cr-00005-1—J. Ronnie Greer, District Judge.
ARGUED: Eric D. Reach, REACH & REACH, Johnson City, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Eric D. Reach, REACH & REACH, Johnson City, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.
Before: BUSH, LARSEN, and MATHIS, Circuit Judges.
After police arrested Harold Smith with a loaded gun in his possession, he was charged with illegally possessing a firearm and ammunition as a felon. Leading up to trial, he had the opportunity to stipulate his status as a felon and his knowledge of the same to preclude the government from introducing evidence of any of his prior felony convictions. But he declined. So the government introduced evidence of Smith's eleven prior felony convictions at trial, and a jury convicted him on both charges. As Smith had three prior violent felony convictions, the district court sentenced him as an armed career criminal.
Smith raises two issues on appeal. First, he asks that we vacate his conviction and sentence based on the alleged unfairly prejudicial taint of evidence of his eleven prior felony convictions. We decline and affirm the district court on this issue. Smith then asks that we vacate his sentence and remand for resentencing because his North Carolina conviction for assault with a deadly weapon with intent to kill and inflicting serious injury should not qualify as a predicate violent felony under the Armed Career Criminal Act (ACCA). Because the offense requires purposeful or knowing conduct, it is categorically a violent felony, so we affirm.
When police learned from an informant that Smith was hiding in the woods and planned to flee the area, they prepared a ruse to arrest him for an outstanding parole violation. Police borrowed their informant's truck, drove to a wooded area near an interstate exit in Bulls Gap, Tennessee, and then revved the engine and turned it off. That was the signal Smith was expecting, and he emerged from the woods. Officers then arrested and searched Smith as well as the surrounding area, and when they did, they found a loaded revolver in Smith's waistband and a box of ammunition nearby.
Smith was charged with two violations of 18 U.S.C. § 922(g)(1)—one count for the firearm, and another for the ammunition. For each offense, the prosecution had to prove beyond a reasonable doubt that (1) Smith had been convicted of a prior felony, (2) he knew that he had been convicted of a felony, (3) he knowingly possessed the firearm or ammunition, and (4) the firearm or ammunition travelled in or affected interstate commerce. See 18 U.S.C. § 922(g); see also Rehaif v. United States, — U.S. —, 139 S. Ct. 2191, 2195-96, 204 L.Ed.2d 594 (2019). Testimony at trial established that the firearm and ammunition travelled through interstate commerce. And while Smith did not confess to police that he owned the firearm and bullets, he later stated in a recorded phone call that he "had a gun and bullets" and could "do nothing about it" because he "got caught with the damn thing." So knowing possession was not in great dispute.
But the government still had to prove that Smith had been convicted of a felony and that he knew that fact. Given the inherently prejudicial nature of prior convictions, criminal defendants can stipulate felon status and knowledge of that status to preclude the government from introducing evidence of prior felony convictions. See Old Chief v. United States, 519 U.S. 172, 174, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). And although he was advised of this option, Smith refused to stipulate to either element. To be clear, this refusal occurred after both his attorney and the district court advised Smith that he could so stipulate. The district court even admonished Smith "it's not my role . . . to advise you, . . . but I must tell you that this is an ill-advised decision." R171 PageID 1131. But held to its proof, the government sought to introduce evidence of Smith's prior felony convictions. And unfortunately for Smith, there were eleven to choose from: three convictions for grand larceny, one for forgery, two for robbery, four for escape, and one North Carolina conviction for assault with a deadly weapon with intent to kill and infliction of serious injury.
Smith responded by filing a motion in limine to preclude all evidence about his prior felony convictions. But the court rejected Smith's request, reasoning that the prior convictions were highly probative for Smith's status as a felon and his knowledge of that status. So the court admitted evidence of all of Smith's Tennessee and North Carolina felony convictions at trial, issuing a limiting instruction to the jury when it did so.
The jury convicted Smith of both charges. The district court classified Smith as an armed career criminal based on two prior armed robbery convictions and his North Carolina conviction. Smith challenged this classification, arguing that the North Carolina offense lacks the requisite mens rea to qualify as a violent felony under ACCA. The district court disagreed and sentenced Smith to 235 months' imprisonment. On this timely appeal, Smith challenges the district court's admission of evidence of all his prior felony convictions and its conclusion that the North Carolina offense is an ACCA-predicate offense.
We begin with Smith's evidentiary challenge. Smith argues that the district court improperly allowed the government to introduce evidence of his eleven prior felony convictions in violation of Federal Rule of Evidence 403. Under that rule, the district court may exclude relevant evidence "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues . . . or needlessly presenting cumulative evidence." Fed. R. Evid. 403. The test itself is strongly weighted toward admission, but district courts enjoy "very broad" discretion in making the prejudice and probative value determinations. United States v. Libbey-Tipton, 948 F.3d 694, 701 (6th Cir. 2020); see United States v. Asher, 910 F.3d 854, 860 (6th Cir. 2018). Because the district court admitted evidence over Smith's objection, we review the admitted evidence by maximizing its probative value and minimizing its prejudicial effect. United States v. Carney, 387 F.3d 436, 451 (6th Cir. 2004). And we will reverse only if the district court abused its discretion. Nolan v. Memphis City Schs., 589 F.3d 257, 264-65 (6th Cir. 2009). No such abuse occurred here.
Start with probative value. Probative value is "the tendency of evidence to establish the proposition that it is offered to prove." 1 Robert P. Mosteller et al., McCormick on Evidence, § 185 (8th ed. 2020). When there are available, less prejudicial evidentiary alternatives to prove a proposition, we discount the probative value of the offered evidence and exclude it if the discounted probative value is substantially outweighed by unfair prejudice. Asher, 910 F.3d at 861 (citing Old Chief, 519 U.S. at 182-83, 117 S.Ct. 644).
To carry its burden of proof at trial, the government had to offer evidence proving beyond a reasonable doubt two essential elements of the charged crime: (1) Smith had a prior felony conviction and (2) he knew that status. Evidence of prior felony convictions has a significant tendency to prove both facts—multiple prior felony convictions are substantial evidence that Smith knew he was a felon. See Greer v. United States, — U.S. —, 141 S. Ct. 2090, 2097, 210 L.Ed.2d 121 (2021). Smith concedes that absent a stipulation, there was no evidentiary alternative to prove he had a prior felony conviction. But he contends that the government did have an alternative to prove knowledge—it could have relied on testimony from his arresting officers that they had a warrant to arrest Smith for a parole violation. We disagree. The evidence of a parole violation did not identify the underlying offense, let alone prove that Smith knew he had been convicted of a felony. Lacking evidentiary alternatives, we cannot hold that the district court abused its discretion by concluding the prior conviction evidence was highly probative.
Nor did the district court abuse its discretion in concluding that the probative value of the prior conviction evidence was not substantially outweighed by the danger of unfair prejudice. Generally, all evidence of prior convictions will carry a risk of unfair prejudice. Old Chief, 519 U.S. at 185, 117 S.Ct. 644. But unfair prejudice is not "the damage to a defendant's case that results from the legitimate probative force of the evidence." United States v. Gibbs, 182 F.3d 408, 430 (6th Cir. 1999). Rather, unfair prejudice refers to evidence that has an "undue tendency to suggest decision on an improper basis." Old Chief, 519 U.S. at 180, 117 S.Ct. 644 (quoting Fed. R. Evid. 403 Advisory Committee's Notes). This may occur when the evidence is particularly shocking or inflammatory, Asher, 910 F.3d at 861, or when it otherwise may "arouse the jury's hostility or sympathy without regard to the probative value of the evidence," McCormick on Evidence, § 185. Without a stipulation, the government could prove both the fact and nature of at least some of Smith's prior felony convictions, despite the inherent risk of prejudice. See United States v. Johnson, 803 F.3d 279, 282-83 (6th Cir. 2015). But a court can reduce the chance of prejudice by providing limiting instructions to the jury, which juries are generally presumed to follow. See ...
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