United States v. Jordan ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                           UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                ____________________



       No. 96-1377


                                   UNITED STATES,


                                      Appellee,


                                         v.


                                   SAMUEL JORDAN,


                                Defendant, Appellant.


                                ____________________



                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                          FOR THE DISTRICT OF MASSACHUSETTS


                    [Hon. Robert E. Keeton, U.S. District Judge]


                                ____________________


                                       Before


                               Selya, Boudin and Lynch,

                                   Circuit Judges.


                                ____________________


            Diana L. Maldonado on brief for appellant.

            Donald
K.
Stern, United States Attorney, and   Ben
T.
Clements,

       Assistant United States Attorney, on brief for appellee.



                                ____________________


                                    July 31, 1997

                                ____________________






                 Per
Curiam. Appellant, Samuel Jordan, appeals his


            conviction after a jury trial of being a felon in possession of


            a firearm, in violation of 18 U.S.C. S922(g)(1). He argues


            that the district court committed prejudicial error in


            admitting certain evidence of prior bad acts, in violation of


            Fed. R. Evid. 403 and 404(b).


                 "Determining the admissibility of evidence of other


            (uncharged) bad acts requires a bifurcated inquiry. First, the


            district court must be satisfied that the proffered material


            has 'special' probative value, that is, that the evidence is


            relevant not to show a defendant's propensity toward evil, but


            to prove some controverted issue in the case. . . . Once shown


            to be relevant in the requisite sense, the evidence must pass


            still another sentry, embodied in Fed. R. Evid. 403. If the


            evidence brings unwanted baggage, say, unfair prejudice or a


            cognizable risk of confusing the jury, and if the baggage's


            weight substantially overbalances any probative value, then the


            evidence must be excluded."     United
States v.   Rodriguez-


            Estrada, 877 F.2d 153, 155 (1st Cir. 1989).


                 This court has "consistently recognized . . . that the


            district courts have broad discretion as to discerning the


            relevancy
vel
non of evidence, and as to gauging the probative


            value versus prejudicial impact calculus."  United
States v.


            Tierney, 760 F.2d 382, 387 (1st Cir. 1985). "Only rarely --


            and in extraordinarily compelling circumstances -- will [this




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            court], from the vista of a cold appellate record, reverse a


            district court's on-the-spot judgment concerning the . . .


            weighing of probative value and unfair effect."   Freeman v.


            Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir. 1988).


                 1.
Testimony About Jordan's Gun Possession in March 1994.


                 The first error alleged by Jordan is the district court's


            admission of FBI Agent Barry O'Neill's testimony that in the


            context of a conversation with Jordan in February 1995,


            concerning a bank robbery that took place in March 1994, Jordan


            stated that "Guns is my trade" and that in March 1994, he "had


            a whole bag full of guns," most of which were semi-automatics.


            Based upon our review of the record, including the trial


            transcript, we agree with the district court that Jordan's


            possession of other semi-automatic guns in March 1994, is of


            special relevance to a material issue raised by this case:


            whether he possessed the semiautomatic gun seized from the


            scene of the crime on March 5, 1994.    See United
States v.


            Rose, 104 F.3d 1408, 1413 (1st Cir.),
cert. denied
__ S.Ct. __,


            1997 WL 251219, 65 USLW 3798 (1997) (reasoning that "[i]tems


            linking Rose to pistols tended to corroborate [government


            witness'] testimony that Rose was a participant in the


            conspiracy and had possessed the [pistol in question]").


                 Although the evidence is undeniably prejudicial, the


            district court did not abuse its discretion in gauging that the


            prejudicial impact of the evidence, which was reduced by the




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            court's limiting instructions, did not outweigh its probative


            value. "[I]t must be remembered that the trial judge is


            Johnny-on-the-spot; he has savored the full taste of the fray,


            and his considerable discretion must be respected so long as he


            does not stray entirely beyond the pale."
Tierney, 760 F.2d at


            388.


                 2. Testimony
that
Jordan
Made
Statements
While
Being


            Questioned
About
His
Involvement
in
a
Bank
Robbery
that


            Occurred in March 1994.


                 The district court's determination that this evidence was


            relevant because it provided a context for Jordan's statements


            regarding his possession of semi-automatic guns in March 1994,


            was not an abuse of discretion.  See United
States v.  Davis,


            792 F.2d 1299, 1306 (5th Cir. 1986) (upholding admission of


            evidence that investigation of defendant initiated with a


            search for a machine gun as "particularly relevant as placing


            in context" and making more believable defendant's statements


            that other guns that he was charged with possessing belonged to


            him).


                 Nor did the district court err in calculating that the


            prejudicial impact of the "context" evidence did not outweigh


            its probative value. While testimony linking Jordan to a bank


            robbery has significant potential for prejudicial impact, that


            potential was defused in several ways. First, the government's


            line of questioning was narrowly tailored to minimize the risk




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            of improper inferences. Second, the court's limiting


            instructions, given directly after the testimony, further


            minimized the risk of unfair prejudice.


                 3. Testimony
About
Jordan's
Statement
that
the
Gun
was


            Stolen.


                 The district court admitted this evidence on the ground


            that it was relevant to proof of the knowledge element of the


            charged offense. Jordan argues that knowledge was not a


            controverted issue in this case. We need not resolve that


            question. Even if we assume (without deciding) that this


            evidence should not have been admitted under Fed. R. Evid.


            403(b), any error was harmless. Based upon our careful review


            of the record, "it is highly probable that the error [,if any,]


            did not contribute to the verdict."  Rose, 104 F.3d at 1414.


                 Appellant's conviction is affirmed.  See Loc. R. 27.1.
























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