United States v. Williams ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 05-4381
FRANK WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(CR-04-82-WDQ)
Argued: May 26, 2006
Decided: August 21, 2006
Before WILKINSON and WILLIAMS, Circuit Judges,
and Glen E. 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.
COUNSEL
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,
2 UNITED STATES v. WILLIAMS
Maryland, for Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
OPINION
WILLIAMS, Circuit Judge:
Frank L. Williams appeals his conviction for being a felon in pos-
session 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 sta-
tus. 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 crim-
inal 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 convic-
tions, 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 distrib-
ute 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,
UNITED STATES v. WILLIAMS 3
185 (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 Wil-
liams 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 Moli-
naro 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, how-
ever, Williams sought to demonstrate to the jury that he could not
4 UNITED STATES v. WILLIAMS
have been wearing the fanny pack because its belt was too short to
close around his waist. The Government objected to the demonstra-
tion, 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 Govern-
ment’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, there-
fore, 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, Wil-
liams would be able to perform the demonstration if he would be will-
ing 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 admissi-
ble 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
1
The court instructed counsel that he could not use the defense of "[i]f
the belt doesn’t fit, you must acquit." (J.A. at 145.) The district court was
apparently referring to a memorable scene from the 1995 murder trial of
O.J. Simpson. A bloody glove had been found at the crime scene, and the
prosecutor wanted Simpson to put on the glove in front of the jury. Simp-
son tried to put on the glove, but it was too small. In his closing argu-
ment, Simpson’s attorney, Johnnie Cochran, told the jury, "If it doesn’t
fit, you must acquit." Closing Argument of Johnnie Cochran, California
v. Simpson, No. BA097211, 1995 WL 697930, at *50 (Cal. Super. Ct.
Sept. 28, 1995).
UNITED STATES v. WILLIAMS 5
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 Moli-
naro) 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 sug-
gested 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 Govern-
ment 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 Gov-
ernment could not introduce the name of the handgun conviction as
impeachment because its probative value did not outweigh its prejudi-
cial 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 deter-
mine 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 convic-
tion. 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 testi-
mony 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 bicy-
cle 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
6 UNITED STATES v. WILLIAMS
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 the ladies and
gentlemen of the jury you have no
knowledge of this gun?
[Williams]: Yep.
[Prosecutor]: Are you telling the ladies and gentle-
men of the jury you did not intend to
possess this gun?
[Williams]: Yep.
(J.A. 278-79.) The prosecution then asked Williams about the hand-
gun conviction. Williams admitted that he had pled guilty to a crime
involving a handgun.
The case was submitted to the jury, which returned a guilty verdict.
At sentencing, the district court determined that Williams’s criminal
record classified him as a Armed Career Criminal and sentenced him
to 235 months’ imprisonment. See 18 U.S.C.A. § 924(e). Williams
noted a timely appeal, challenging both his sentence and conviction.
We address his arguments in turn.
II.
Williams contends that his proposed demonstration was not testi-
monial evidence and, accordingly, the district court erred by exclud-
ing the demonstration unless he took the stand. The Government
argues that "[t]he district court properly denied [the] proposed in-
court demonstration [because] there was no evidence showing that the
UNITED STATES v. WILLIAMS 7
facts were substantially similar, [and therefore the demonstration was
not] relevant to the issues at trial." (Appellee’s Br. at 5.) We review
for abuse of discretion the district court’s evidentiary rulings. See
United States v. McMillon, 14 F.3d 948, 954 (4th Cir. 1994). A dis-
trict court abuses its discretion when it commits an error of law. See
Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th Cir.
2006).
A.
For a courtroom demonstration to be admissible as evidence, the
proponent of the demonstration, like the proponent of any evidence,
must show that the demonstration is relevant. See Hinkle v. City of
Clarksburg, 81 F.3d 416, 425 (4th Cir. 1996). A courtroom demon-
stration that purports to recreate events at issue is relevant if per-
formed under conditions that are "substantially similar to the actual
events." Id. (internal quotation marks omitted). In a related context,
we have stated that
[i]f there is substantial similarity, the differences between
the [demonstration] and the actual occurrence ordinarily are
regarded as affecting the weight of the test evidence rather
than its admissibility . . . . On the other hand, the differences
between the [demonstration] and the actual occurrences may
be such that the trial judge is justified in concluding either
that the evidence is totally lacking in probative value as to
any material issue, or that the probative value of the evi-
dence is overborne by the danger that introduction of the
evidence will tend to confuse the issues, unnecessarily pro-
long the trial, or create a likelihood of undue prejudice. In
such cases, it is proper to exclude the evidence. . . .
Renfro Hosiery Mills v. Nat’l Cash Register Co., 552 F.2d 1061, 1065
(4th Cir. 1971) (addressing admissibility of the results of out-of-court
experiments) (internal citations omitted).
The Government urges us to review the district court’s ruling that
the demonstration was inadmissible unless Williams agreed to be
cross-examined under this "substantially similar" paradigm. We do
not perceive, however, that the district court’s final evidentiary ruling
8 UNITED STATES v. WILLIAMS
on the demonstration was based on its conclusion that the demonstra-
tion was irrelevant due to Williams’s weight gain. Although the dis-
trict court initially ruled that the demonstration was not relevant, and
therefore inadmissible, the district court ultimately admitted the dem-
onstration when Williams agreed to testify. Accordingly, the district
court necessarily reconsidered its earlier conclusion that the demon-
stration was irrelevant; otherwise it would not have admitted the dem-
onstration. We therefore evaluate the district court’s ultimate ruling
— that the demonstration was admissible as evidence only if Wil-
liams took the stand — according to the district court’s alternate con-
clusion that the demonstration was a testimonial act.
B.
Implicit in the district court’s ruling that the demonstration was a
testimonial act that would subject Williams to cross-examination is
the view that a defendant who offers "testimony" is subject to cross-
examination, while a defendant who offers only "nontestimonial evi-
dence" is not subject to cross-examination. Federal Rule of Evidence
611(b) supports this view. See Fed. R. Evid. 611(b) ("Cross-
examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness.").
While Rule 611(b) primarily sets limits for the "[s]cope of cross-
examination," id., the first sentence of the Advisory Committee’s
Notes on Rule 611(b) presupposes that cross-examination is only
proper when a witness testifies. See Fed. R. Evid. 611(b) 1972 advi-
sory committee’s note ("The tradition in the federal courts and in
numerous state courts has been to limit the scope of cross-
examination to matter testified to on direct [examination], plus mat-
ters bearing on the credibility of the witness." (emphasis added)).
Without attempting to provide an exhaustive definition of the term
"testimony" in this context, we think it clear that a physical demon-
stration such as the one Williams proposed here is not "testimony"
and, accordingly, that such a demonstration does not subject its pro-
ponent to cross-examination under Rule 611(b). Among the primary
purposes of cross-examination are to "test the [testifying] witness’
perceptions and memory [and to] impeach, i.e., discredit, the [testify-
ing] witness." Davis v. Alaska, 415 U.S. 308, 316 (1974). In the case
of a physical demonstration, the proponent of the evidence does not
UNITED STATES v. WILLIAMS 9
express any perceptions or memory that could be tested, nor does he
make any assertions that could be discredited. Rather, he simply pre-
sents his body, often coupled with an accouterment, as evidence to the
jury. In such a situation, there simply is nothing to cross-examine.
To be sure, when one party conducts a physical demonstration the
other party is entitled to introduce evidence of his own that tends to
show that the demonstration does not accurately portray what it pur-
ports to represent. Such evidence is a proper response to the admis-
sion of a physical demonstration, as is cross-examining a witness who
offers testimony that the demonstration accurately portrays what it
purports to represent. But it is illogical to say that a defendant opens
himself up to cross-examination simply by virtue of performing a
physical demonstration. Such a holding is tantamount to the strange
conclusion that a demonstration itself can be cross-examined.
Our conclusion that a defendant who offers a demonstration is not
subject to cross-examination under Rule 611(b) is buttressed by cases
interpreting the Fifth Amendment’s Self-Incrimination Clause. The
text of the Self-Incrimination Clause provides that "[n]o person . . .
shall be compelled in any criminal case to be a witness against him-
self . . . ." U.S. Const. amend. V. The Supreme Court has held that
this Clause "protects an accused only from being compelled to testify
against himself or otherwise provide the [Government] with evidence
of a testimonial or communicative nature. . . . " Schmerber v. Califor-
nia, 384 U.S. 757, 761 (1966) (emphasis added).
In Holt v. United States, 31 S. Ct. 2 (1910), for example, a question
arose at trial as to whether a blouse belonged to the defendant. A wit-
ness testified for the Government that the defendant had put on the
blouse and that it fit. Id. at 6. The defendant argued that the witness’s
testimony should not have been admitted under the Self-Incrimination
Clause because he had tried on the blouse under duress. Id. The
Supreme Court rejected this argument, stating that "the prohibition of
compelling a man in a criminal court to be witness against himself is
a prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence
when it may be material." Id.2
2
Building on this principle, the Supreme Court has held that a defen-
dant who is required to provide a blood sample used at trial, Schmerber
10 UNITED STATES v. WILLIAMS
Based on this distinction between physical characteristics of the
defendant and the content of his communications, this and other
courts have routinely upheld as consistent with the Self-Incrimination
Clause in-court demonstrations requiring a defendant to modify his
appearance or to don clothing known to have been worn by the person
who committed the offense. See United States v. Turner, 472 F.2d
958, 959 (4th Cir. 1973) (requiring the defendant to wear a wig and
sunglasses); United States v. Valenzuela, 722 F.2d 1431, 1433 (9th
Cir. 1983) (requiring the defendant to shave); United States v. Lamb,
575 F.2d 1310, 1316 (10th Cir. 1978) (same); United States v. Mur-
ray, 523 F.2d 489, 492 (8th Cir. 1975) (requiring the defendant to
wear a wig); United States v. Roberts, 481 F.2d 892, 894 (5th Cir.
1973) (requiring the defendant to put on a stocking mask worn during
the robbery). If a defendant who is compelled to don clothing before
the jury does not "testify" for purposes of the Self-Incrimination
Clause, it would seem to follow, a fortiori, that the Self-Incrimination
Clause also provides that a defendant who voluntarily dons clothing
before the jury may not be required to subject himself to cross-
examination. See United States v. Bay, 762 F.2d 1314, 1315-16 (9th
Cir. 1985) (holding that the district court erred in concluding that a
defendant was required to take the stand to display his tattoos because
the Government may compel a defendant to display such physical char-
acteristics).3
v. California, 384 U.S. 757, 761 (1966), supply a handwriting sample
used at trial, Gilbert v. California, 388 U.S. 263, 266-67 (1967), appear
at a pre-trial line-up and speak words allegedly uttered by a bank robber,
United States v. Wade, 388 U.S. 218, 222 (1967), and provide a voice
exemplar to a grand jury, United States v. Dionisio, 410 U.S. 1, 7 (1973),
does not offer testimony for purposes of the Self-Incrimination Clause.
3
Although Williams references the Self-Incrimination Clause at vari-
ous places in his brief, he neither argues nor cites any authority for the
proposition that the district court’s ruling conditioning the admissibility
of the demonstration on his willingness to take the stand "compelled
[him] to be a witness against himself" in violation of the Self-
Incrimination Clause. We therefore do not consider the argument. See
Fed. R. App. P. 28(a)(9)(A) (providing that "[t]he appellant’s brief must
contain . . . appellant’s contentions and the reasons for them, with cita-
tions to the authorities and parts of the record on which the appellant
UNITED STATES v. WILLIAMS 11
We therefore conclude that a physical demonstration performed
before the jury is not, without more, "testimony" that subjects the
demonstrator to cross-examination under Rule 611(b). In requiring
Williams to subject himself to cross-examination as a condition to
admitting his demonstration, the district court erred.
C.
Our conclusion that the district court erred does not, of course, end
the matter, for we must assess the effect of the district court’s error
on Williams’s trial. Because the district court’s error was not a consti-
tutional one, see Part II.B. and fn. 3, we would normally review the
error under the standard set forth in Rule 52(a) of the Federal Rules
of Criminal Procedure. See United States v. Ince, 21 F.3d 576, 582
(4th Cir. 1994). Regardless, we think the government has met its bur-
den of proving this error harmless, even if we assume for purposes of
argument that it was of constitutional dimension. See Chapman v.
California, 386 U.S. 18 (1967). A court performing harmless-error
review may not substitute its own judgment for that of the jury. Our
own views are irrelevant; we may uphold a conviction under Chap-
man only when we conclude "beyond a reasonable doubt that the jury
verdict would have been the same absent the error." Neder v. United
States, 527 U.S. 1, 19 (1999). This requires "a case-by-case determi-
nation," Williams v. Zahradnick, 632 F.2d 353, 361 (4th Cir. 1980),
after examining "the record as a whole to determine the probable
impact of the improper evidence on the jury," id. at 360. For statutory
relies"); United States v. Smith, 441 F.3d 254, 274 (4th Cir. 2006) (apply-
ing Rule 28 in criminal case).
Instead, Williams argues that the district court’s ruling conditioning
his ability to perform the demonstration on his willingness to be sub-
jected to cross-examination violated his Sixth Amendment right to a fair
trial. See Washington v. Texas, 388 U.S. 14, 19 (1967) (holding that a
state defendant has a Sixth Amendment right, guaranteed by the Four-
teenth Amendment’s Due Process Clause, to compulsory process for
obtaining witnesses in his favor). This argument is entirely without merit.
Absent direction from the Supreme Court, we will not use the Sixth
Amendment’s generic right to fair trial to constitutionalize the Federal
Rules of Evidence.
12 UNITED STATES v. WILLIAMS
violations, Congress adopted a somewhat more forgiving test than the
constitutional one, providing that "[a]ny error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded."
Fed. R. Crim. P. 52(a); see also 28 U.S.C. § 2111 (2000). Under any
test, a judge in "grave doubt as to harmlessness" must treat an error
as harmful. O’Neal v. McAninch, 513 U.S. 432, 437 (1995); see id.
at 437-38. Since this is not such a case, however, and the error quali-
fies as harmless under even the constitutional test, the jury’s verdict
need not be overturned.
Williams argues that he was prejudiced by the district court’s error
because it was only by virtue of the fact he took the stand that the
Government was able to introduce the names of his three prior con-
victions. He further contends that the jury was likely to have assumed,
without considering whether the Government had proved its case, that
because he had three prior convictions — one of which was for a
handgun offense — he possessed a gun outside the apartment com-
plex. See Old Chief, 519 U.S. at 185 (noting that "the risk of unfair
prejudice [is] especially obvious" when a defendant is charged with
being a felon in possession of a firearm and the name or nature of a
prior gun conviction is introduced into evidence).
This is a unique case. In most cases involving an erroneous eviden-
tiary ruling, the error itself results in the admission of inadmissible
evidence — the district court incorrectly interprets a Rule of Evidence
and the Government is able to introduce inadmissible evidence. Here,
however, the district court’s error did not alone result in the introduc-
tion of the name of Williams’s prior convictions into evidence. Under
the district court’s ruling, Williams could have declined to take the
stand, in which case the name of his prior convictions would have
been inadmissible. Instead, Williams decided to take the stand, a deci-
sion that created the possibility that the name of his prior convictions
would be admitted into evidence.
We are unable to say, however, that Williams brought upon himself
all harm that may have resulted from his decision to take the stand,
because the district court presented him with a Hobson’s choice: Wil-
liams could either (1) take the stand and demonstrate the fit of the
fanny pack, thereby opening himself to cross-examination, or (2) not
take the stand and be free from cross-examination but forgo perform-
UNITED STATES v. WILLIAMS 13
ing the demonstration. Because, as discussed, Williams was entitled
to perform the demonstration without taking the stand, we cannot
fault Williams for choosing the former option.4
This conclusion, however, does not mean that all of Williams’s
choices are irrelevant to our harmlessness evaluation. While Williams
made his decision to take the stand in the context of the district
court’s improper either/or, the district court did not impose a similar
either/or with respect to the scope of Williams’s testimony. In other
words, while the district court’s Rule 611(b) ruling unduly influenced
Williams’s decision to take the stand, once Williams decided to take
the stand, he was free to say as little or as much as he pleased. Indeed,
while the district court incorrectly conditioned Williams’s ability to
perform the demonstration on his willingness to take the stand, the
district court never suggested that, once on the stand, Williams would
have to testify about anything other than the fit of the fanny pack.
This distinction is an important one. Although the Government was
able to introduce as impeachment evidence the name of Williams’s
prior drug convictions based solely on his decision to take the stand,
see Fed. R. Evid. 609 ("For the purpose of attacking the credibility
of a witness . . . evidence that an accused has been convicted of
. . . a crime [punishable by death or imprisonment in excess of one
year under the law under which the witness was convicted] shall be
admitted if the court determines that the probative value of admitting
this evidence outweighs its prejudicial effect to the accused. . . ."), the
district court explained to Williams that the name of his prior hand-
gun conviction would be admissible only if the scope of his direct
examination was broad enough that the handgun conviction would be
a proper subject of cross-examination. Unlike the name of his prior
drug convictions, the Government was not able to introduce the evi-
4
We also cannot fault Williams for introducing evidence of the name
of one of his prior drug convictions on direct examination instead of
waiting for the prosecution to bring out such evidence on cross-
examination. Once Williams made the choice to testify, revelation of the
names of the drug convictions was inevitable. In this situation, we will
not hold against Williams the tactical decision to soften the blow of the
evidence of the name of one of his prior drug convictions by bringing it
out on direct.
14 UNITED STATES v. WILLIAMS
dence of Williams’s prior handgun conviction simply by virtue of the
fact that he testified; instead, and as the district court twice explained
to Williams, the Government was able to introduce the evidence of
his handgun conviction because Williams testified that he did not pos-
sess a handgun on the day in question. See Fed. R. Evid. 611(b)
("Cross-examination should be limited to the subject matter of the
direct examination and matters affecting the credibility of the wit-
ness."); Fed. R. Evid. 404(b) ("Evidence of other crimes, wrongs, or
acts . . . may . . . be admissible [to show] proof of . . . intent [or]
knowledge . . . .").
In assessing whether Williams was harmed by the district court’s
error and the consequent admission into evidence of the name of Wil-
liams’s prior handgun convictions, we believe it is relevant that he
evidently considered himself better off by testifying that he did not
have a gun on the day in question rather than limiting his testimony
to matters relating to the fit of the fanny-pack. This choice, which
Williams made with full awareness of both his ability to limit his tes-
timony and the consequences of failing to do so, reflects a calculation
of the costs and benefits of his options that courts are not prohibited
from taking into account. We need not blind ourselves to Williams’s
own assessment that it was better for him to present to the jury his
side of the story — despite the risk that the Government would intro-
duce the name of his prior handgun conviction — than it would be
for him to remain silent on this issue. To hold otherwise would both
ignore the fact that Williams presented his version of the events to the
jury and reward him for exacerbating the very error about which he
now complains.5
5
We hasten to add that we do not hold that a defendant’s trial-related
decisions that have the effect of exacerbating any harm that may arise
from an erroneous ruling will always be relevant to a harmless error anal-
ysis. Such a holding would fail to account for the fact that appellate
review of a criminal trial occurs in judges’ chambers with the benefit of
the transcript of the completed trial, while the trial itself actually unfolds
in a courtroom before counsel. In short, we must guard against expecting
counsel to perform at trial as if they had already read its full transcript
and had the time to ponder every implication to the district court’s rul-
ings. In this case, however, the district court clearly informed counsel
that although Williams would be subject to cross-examination if he con-
ducted the demonstration, evidence of the name of the prior handgun
conviction would not be admissible unless the scope of the direct exami-
nation was broad enough that such evidence would be a proper subject
of cross-examination.
UNITED STATES v. WILLIAMS 15
This conclusion, when combined with four other considerations,
convinces us that the district court’s error here was harmless. First,
the prosecutor made mention of Williams’s felon status in his opening
remarks and introduced the stipulation of the same into evidence at
the close of the Government’s case-in-chief. The fact that the jury
already knew of Williams’s felon status when it heard the names of
his prior drug and handgun convictions mitigates any damage that
may have been caused by the introduction of those names. See, e.g.,
United States v. Ray, 688 F.2d 250, 254 (4th Cir. 1982) (finding no
harm from admission of evidence concerning "undisputed matters
already proven in the record").
Second, while the prosecutor mentioned Williams’s prior convic-
tions twice in his rebuttal argument — on one occasion to argue that
Williams was, in fact, a convicted felon, and on the other occasion to
argue that Williams’s testimony was not as credible as the officers —
on neither occasion did the prosecutor argue that Williams’s prior
convictions indicated that he had a bad character or that because he
had a firearm before, he must have had the firearm this time. Cf.
United States v. Madden, 38 F.3d 747 753-54 (4th Cir. 1994) (con-
cluding that erroneous admission of evidence that defendant used
drugs was not harmless where prosecutor made extensive reference to
the evidence in his closing argument in order to portray the defendant
as a bad person).
Third, not one but two police officers provided consistent accounts
of how they arrested Williams and found a firearm in the waistband
of his underwear. By virtue of the district court’s error, Williams was
able to testify and present his side of the story to the jury, but the jury
evidently believed the officers’s testimony. The fact that the fanny
pack did not fit Williams at trial does not seriously undermine the
officers’ accounts. Williams does not contest that, based on the evi-
dence in the record, the jury could have reasonably concluded that
Williams was heavier at trial than he was at the time of his arrest.
Moreover, whether Williams was wearing a fanny pack is tangential
to the crime for which he was being tried. To be sure, Officer Moli-
naro testified that Williams was wearing the fanny pack at the time
of his arrest. But even if Williams was correct that he could not have
been wearing the fanny pack, the jury was nonetheless unpersuaded
16 UNITED STATES v. WILLIAMS
that the two officers lied in order to secure the conviction of a man
they had never even met before.
Fourth, to the extent any potential for prejudice existed, the district
court instructed the jury that it could not consider Williams’s criminal
past as evidence of guilt. We have held that such instructions mitigate
the possibility of prejudice from improperly admitted evidence of the
defendant’s criminal history because "[w]e generally follow the pre-
sumption that the jury obeyed the limiting instructions of the district
court." United States v. Francisco, 35 F.3d 116, 119 (4th Cir. 1994);
see also Ince, 21 F.3d at 582 ("[W]e recognize the presumption of
cure by a court’s instruction . . . .").
In light of these considerations, we conclude that the Government
has met its burden of establishing harmlessness. The jury’s knowl-
edge of the name of Williams’s prior handgun conviction is, at least
in part, attributable to Williams’s mistake of not limiting his testi-
mony to the fanny pack. But even if we disregard this mistake, it is
difficult to see how the jury would have returned a different verdict
if Williams had demonstrated the fanny pack without being subjected
to cross-examination. To be sure, there was potential prejudice in the
jury’s knowledge of the names of Williams’s prior convictions. See
Old Chief, 519 U.S. at 185. But the prosecution did not exploit the
potential for prejudice so as to cause harm to Williams, and the dis-
trict court appropriately gave a limiting instruction to the jury about
the use of the convictions.
In sum, considering the facts and circumstances of this case, the
government has met its burden of establishing harmlessness. It is dif-
ficult to see how a jury would return a different verdict when the
defendant’s full assault on the officers’ accounts did not persuade the
jury in this case. While the district court’s ruling was in error, the jury
would hardly have ruled for a defendant who said nothing to dispute
the officers’ testimony just as it did not rule for a defendant who
attacked it. The Supreme Court has cautioned against using the
harmless-error doctrine "[t]o set a barrier so high that it could never
be surmounted," because doing so "would justify the very criticism
that spawned the harmless-error doctrine in the first place: ‘Reversal
for error, regardless of its effect on the judgment, encourages litigants
to abuse the judicial process and bestirs the public to ridicule it.’"
UNITED STATES v. WILLIAMS 17
Neder, 527 U.S. at 18 (quoting Roger Traynor, The Riddle of Harm-
less Error 50 (1970)). Since it is clear "beyond a reasonable doubt
that a rational jury would have found the defendant guilty absent the
error," id., we need not remand this case for a second trial.
III.
Williams also contends that the district court committed Sixth
Amendment error by sentencing him as an Armed Career Criminal
because his prior convictions that formed the basis of his Armed
Career Criminal status were not alleged in the indictment or proven
to the jury. He argues that despite the fact the Supreme Court held,
in Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998),
that the Constitution is not offended by judicial factfinding relating to
the existence of a prior conviction, subsequent cases — and in partic-
ular United States v. Blakely, 124 S. Ct. 2531 (2004), United States
v. Booker, 125 S. Ct. 738 (2005), and Shepard v. United States, 125
S. Ct. 1254 (2005) — have undercut Almendarez-Torres’s reasoning.
This argument warrants little attention. In United States v. Cheek,
415 F.3d 349 (4th Cir. 2005), we rejected the argument that the
Supreme Court overruled Almendarez-Torres, impliedly or otherwise.
Id. at 352. We adhere, as we must, to Cheek, and conclude that the
district court fact-finding at sentencing was consistent with the Sixth
Amendment.
IV.
For the foregoing reasons, we affirm Williams’s conviction and
sentence.
AFFIRMED