USA. v. Harrison

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: Sentelle
• Citation: USA. v. Harrison, 204 F.3d 236, 340 U.S.App. D.C. 198 (D.C. Cir. 2000)
• Decision Date: 22 February 2000
• Docket Number: No. 99-3010,99-3010
• Parties: (D.C. Cir. 2000) United States of America, Appellee v. Davon M. Harrison, Appellant

Page 236

204 F.3d 236 (D.C. Cir. 2000)

United States of America, Appellee v. Davon M. Harrison, Appellant

No. 99-3010

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 29, 1999

Decided February 22, 2000

Appeal from the United States District Court for the District of Columbia(No. 98cr00216-01)

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Tony W. Miles, Assistant Federal Public Defender, entered an appearance.

Florence Pan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis,

U.S. Attorney, and John R. Fisher, Elizabeth Trosman and Darrell Valdez, Assistant U.S. Attorneys.

Before: Williams, Sentelle and Garland, Circuit Judges.

Opinion for the court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge:

Appellant Davon M. Harrison was convicted in a jury trial in the district court for unlawful possession of a firearm in violation of 18 U.S.C. 922(g). He appeals the denial of his motion for a directed verdict for insufficiency of the evidence on two necessary elements of the offense. Harrison stipulated to the two elements, but the stipulations were not formally read to the jury. The prosecution offered no other evidence on those elements. We hold that Harrison, by stipulating, waived his right to require the government to introduce evidence on the stipulated elements.We therefore affirm the conviction.

I. Background

At approximately 9:45 a.m. on May 25, 1998, Metropolitan Police Department Officer Raymond Adams heard gunshots coming from the direction of the 300 block of K Street, S.E.He began to canvas the area, and drove by Davon Harrison who was proceeding down the street in his wheelchair. Unsuccessful in his search, Officer Adams then returned to Harrison and asked Harrison if he had a gun. He replied in the affirmative. In his lap was a newspaper, which Adams placed on the ground and unwrapped to find a .38 Colt containing four empty shell casings and two live rounds.Harrison was charged with a violation of 18 U.S.C. 922(g), which prohibits anyone who has been convicted of a crime punishable by a sentence exceeding one year from possessing a firearm that has been transported in interstate commerce.¹

Before trial, the district court ordered the parties to submit a joint pretrial statement including stipulations. The parties filed a statement with the court which included stipulations of two necessary elements of a 922(g)(1) charge: (1) that the firearm had been transported in interstate commerce and (2) that the defendant had been convicted of a prior offense punishable by a sentence of more than one year.

The exact language of the stipulations was:

IV. Stipulations

Stipulation as to Firearm; Movement in Interstate Commerce:

The parties agree that the pistol recovered in this case was a firearm; that the firearm was shipped or moved in interstate commerce.

Stipulation as to Prior Convictions ...

The parties agree that the defendant was previously convicted for an offense carrying a potential penalty of more than one year in case F-7372-95, in the District of Columbia.

Following the stipulations was a list of a Harrison's prior convictions.

Government counsel referred to the stipulations in his opening statement:

[I]n this case the defense counsel and I have stipulated that this gun did move through interstate commerce because handguns are not manufactured in the District of Columbia, and there is only one way that it could come in the District, by crossing state lines. We've also stipulated that Mr. Harrison has been convicted [of anoffense] carrying the possible punishment of over a year in prison. So, what I have to prove to you is that Mr. Harrison possessed the gun or the ammunition.

No objections were made to the opening statement. Defense counsel's opening statement described "a case where Mr. Harrison is being charged with a gun that he did not possess, it was a gun that was not his."

As forecast, the trial focused on whether Harrison was in possession of a firearm. The two stipulations were never read to the jury, nor did the prosecution introduce any other evidence regarding the stipulated evidence. Before closing arguments, Harrison moved for a judgment of acquittal based on the entire record, which was denied. When the prosecution referred to the stipulations during closing arguments defense counsel objected. At a subsequent bench conference, defense counsel argued that the stipulations, never having been introduced, could not provide proof of the elements, although he admitted that the parties had agreed to the stipulations. He claimed he had not raised the issue earlier because he hoped to modify the language of the interstate commerce stipulation to include the fact that guns are not manufactured in the District of Columbia. The trial judge stated that the failure to raise this issue earlier could be considered a waiver, and ultimately denied defense counsel's motion for a directed verdict.

During jury instructions, the judge referred to the stipulation that the gun had traveled in interstate commerce:

During the trial you were told that the parties had stipulated, this is had agreed to certain facts, namely that the gun had travelled in interstate commerce. Any stipulation of fact is undisputed evidence and you may consider it undisputed evidence

.....

The parties have stipulated that the firearm which the defendant allegedly possessed has travelled or been transported in interstate commerce.

The judge did not give a similar instruction about the prior conviction stipulation, but referenced the conviction by cautioning the jury that it "is just being presented to you as an element of the crime. You are not to consider the fact that the defendant had been convicted of an offense punishable by imprisonment for a term exceeding one year in any other way.... [Y]ou're not to take any unfavorable impression of the defendant from the fact that this element of the crime is here."

The jury found Harrison guilty. Harrison appeals, asserting that as a result of the prosecution's failure to read the stipulations, there was insufficient evidence on the interstate commerce and prior conviction elements to support the verdict of guilty and that his conviction must be reversed.

II. Discussion

A. Issue

When reviewing the sufficiency of the evidence, we determine as a matter of law whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States v. Harrington, 108 F.3d 1460, 1464 (D.C. Cir. 1997). At first, it might appear that the standard of review could resolve this case: because the stipulations were never formally read to the jury, they were never in evidence (although the jury was aware of them);there was no other evidence on the stipulated elements and the jury could not have found them beyond a reasonable doubt. See, e.g., United States v. Spinner, 152 F.3d 950, 956 (D.C. Cir. 1998). Our real inquiry, however, is whether, considering the nature and purpose of the stipulations in this case, Harrison should be able to challenge now the insufficiency of the evidence covered by those stipulations.

The government in this appeal presents two primary theories to support the validity of the verdict, in spite of its failure to formally read the stipulations to the jury or introduce other evidence. The first we can call the "deemed admitted" theory. We have held that a technical failure to introduce evidence that was presented to the trier of fact can be overlooked in some cases. See, e.g., United States v. Barrett, 111 F.3d 947, 951 (D.C. Cir. 1997) (citing United States v. Bizanowicz, 745 F.2d 120, 123 (1st Cir. 1984), and United States v. Stapleton, 494 F.2d 1269, 1270 (9th Cir. 1974)). The government asks us to apply Barrett on the reasoning that the jury was clearly made aware of the stipulations through the opening and closing statements and jury instructions.

The government's second theory is that any error in the trial was harmless error. Rule 52(a) of the Federal Rules of Criminal Procedure provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded," and the Supreme Court has stated that "most constitutional errors can be harmless." Arizona v. Fulminante, 499 U.S. 279, 306 (1991) (citations omitted). The government claims that the error here was a failure to take "the technical steps" needed to make the stipulations evidence.

We will not delve into the details of the government's arguments on these grounds. Instead, we hold that Harrison has, by stipulating, waived any right to contest the absence of proof on the stipulated elements. This waiver theory of stipulations has been addressed by a number of our sister circuits, and although the government does not directly advance it in this case, it is necessarily raised by the nature of the appeal. By failing to advance it explicitly, we could perhaps construe the government's brief as having waived the waiver theory argument, but we will reach the issue because it is squarely presented by this case and was relied upon by the trial court. See, e.g., United States Nat'l Bank of Or. v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 445-49 (1993) (holding that an appellate court has discretion to consider an issue not argued by the parties). As the Supreme Court stated in Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 99 (1991), "[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law." Moreover, we do not deem it unfair to the appellant to rely on this...