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Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
NOV 17 2004
PATRICK FISHER
TENTH CIRCUIT
Clerk
Plaintiff - Appellee,
No. 03-7052
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 02-CR-47-S)
J. Lance Hopkins, Tahlequah, Oklahoma, for Defendant-Appellant.
Paul G. Hess, Assistant United States Attorney (Sheldon J. Sperling, United
States Attorney, with him on the briefs), Muskogee, Oklahoma, for PlaintiffAppellee.
Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE,
Circuit Judge.
EBEL, Circuit Judge.
Elmer Vernon Griffin (Defendant) was convicted of two counts of
possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1). At his
trial, the government called Defendants probation officer for the purpose of
testifying, among other things, that Defendant knew that he was prohibited from
possessing firearms under the terms of his probation. The district court admitted
the probation officers testimony over Defendants objection that the evidence
was irrelevant and would cause undue prejudice. Defendant was convicted on
both counts and timely filed this appeal. We exercise jurisdiction pursuant to 28
U.S.C. 1291, and we AFFIRM.
BACKGROUND
On February 8, 2002, Patrolman Randall Smoot responded to a 911 call
from Kenneth Griffith, who had accidentally shot himself in the leg with a .22
caliber Colt pistol. Patrolman Smoot asked Griffith where he had gotten the
pistol, and Griffith responded that he had purchased it the previous day from
Defendant. ATF Agent Carlos Sandoval confirmed Defendants status as a felon
and then arranged to purchase a .22 caliber Tanfoglio pistol from Defendant in an
undercover capacity. Agent Sandoval tape-recorded the transaction.
Defendant was charged with two counts of possession of a firearm by a
felon in violation of 18 U.S.C. 922(g)(1). At trial, Defendants probation
officer, Coleman, testified that Defendant had been convicted of a felony and that
she supervised his probation; identified Defendants apartment from photographs;
identified the Judgment and Sentence from Defendants prior felony conviction;
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Evidence, because the evidence was not relevant, and/or under Rule 403 of the
Federal Rules of Evidence, because its probative value was substantially
outweighed by the danger of unfair prejudice, confusion of the issues, and/or
misleading the jury.
DISCUSSION
Although we review legal interpretations of the Federal Rules of Evidence
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943 F.2d 348, 353 (4th Cir. 1991) (per curiam) (internal citations omitted); see
also Pierce, 136 F.3d at 776 (holding that where jury already knew defendants
prior criminal history, district court did not abuse discretion in admitting
probation officers testimony). But see United States v. Calhoun, 544 F.2d 291,
296 (6th Cir. 1976) ([T]he fact that [the defendant] was on parole itself may
have been even more prejudicial than the jurys simple knowledge of his prior
conviction of a felony.). We agree with the Fourth Circuit that information that
the defendant is currently on probation will generally create little or no
prejudicial effect when the jury already knows of the defendants criminal history.
Accordingly, we decline in this case to hold the probation officers
testimony inadmissible in its entirety. We now consider whether the various
subjects of her testimony were properly admitted.
Conviction under 922(g)(1) therefore does not require proof that a defendant
knew that he was prohibited from possessing a firearm.
In this case, Tina Coleman testified that Defendant was prohibited from
possessing a firearm under the terms and conditions of his probation and
suggested that Defendant was aware of this prohibition. During her testimony,
the government introduced a document listing all the terms and conditions of
Defendants probation, and the document was admitted into evidence.
The admission of this testimony and the accompanying document was error.
Defendant was not on trial for violating the terms and conditions of his probation
but for violating 922(g)(1). Moreover, his knowledge that he was not to possess
a firearm as a convicted felon is not an element of a 922(g)(1) violation.
Accordingly, this evidence was irrelevant and therefore inadmissible. See Fed. R.
Evid. 402.
Even if a court has admitted inadmissible evidence, however, a conviction
will not be disturbed on appeal if that error is harmless. United States v. Cass,
127 F.3d 1218, 1225 (10th Cir. 1997); Fed. R. Crim. P. 52(a) (Any error, defect,
irregularity, or variance that does not affect substantial rights must be
disregarded.). Because Defendant alleges no constitutional error, we apply the
harmless-error analysis of Kotteakos v. United States, 328 U.S. 750 (1946),
pursuant to which a non-constitutional error is harmless unless it had a
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assume the jury followed those instructions. See United States v. Chanthadara,
230 F.3d 1237, 1251 (10th Cir. 2000).
The evidence against Defendant in this case was strong. There was no
question that Defendant had previously been convicted of a felony. As to Count
I, Griffith testified that Defendant sold him a .22 caliber Colt pistol, and Burris
testified that Griffith purchased a pistol at a residence identified at trial as
Defendants residence. As to Count II, Agent Sandoval testified that Defendant
sold him a .22 caliber Tanfoglio pistol in the context of a controlled purchase, as
corroborated by the tape-recording of that transaction. Finally, ATF Agent
Cochran testified to the interstate nexus requirement. In light of this evidence,
we have no doubt, much less grave doubt, that the jurys verdict would have
been the same had the terms and conditions of Defendants probation been
excluded.
In sum, we do not believe that the erroneously admitted evidence had a
substantial influence on the jurys decision. Accordingly, we hold that the
district courts error was harmless.
B. Other Testimony
Coleman also testified to several other matters. For example, she identified
Defendants residence from a photograph and identified the voices of Agent
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