United States v. Luis Fernandez ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-3421
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS A. FERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:17-cr-00052-PP-1 — Pamela Pepper, Judge.
ARGUED SEPTEMBER 13, 2018 — DECIDED FEBRUARY 4, 2019
Before FLAUM, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted Luis Fernandez of
being a felon in possession of a firearm, see 18 U.S.C.
§ 922(g)(1). Fernandez appeals his conviction, contending that
the district court committed three evidentiary errors that
deprived him of a fair trial. We affirm.
2 No. 17-3421
I.
The charge against Fernandez arose out of a traffic stop
conducted by police in Franklin, Wisconsin (a Milwaukee
suburb) on November 20, 2016. Fernandez was sitting in the
front passenger seat of a black Chevrolet Caprice, his friend
Adam Voecks was driving, and Voecks’ fiancée Valerie
Stramowski was in the back seat. Police officer Gabriel Frusti
initiated the stop after observing the car move across multiple
lanes of traffic without signaling and quickly decelerating to a
halt. (Voecks would later testify that the car’s engine had died.)
Moments later, officer Adam Rogge arrived on the scene in
response to Frusti’s request for backup. When Rogge ap-
proached the driver’s side of the vehicle to speak with Voecks
(Frusti was speaking with Fernandez on the passenger side), he
noticed an odor of marijuana emanating from the interior of
the car. Voecks was asked to step out of the car. When asked if
he was armed, Voecks disclosed that he had a gun in his right
front pocket; officers removed a holstered Kel Tec .380 caliber
pistol from that pocket.
Ultimately all three of the occupants of the car were taken
into police custody. Although Voecks had no criminal record
and had purchased the gun found on his person legally, he did
not have a permit to carry a concealed weapon and was
arrested on that basis. Fernandez and Stramowski were
arrested on outstanding warrants, and Stramowski had also
given the officers a false name in an attempt to evade arrest.
When the interior of the car was searched, police discov-
ered a second gun—a Springfield Armory .45 caliber pistol—in
the center console between the front driver and passenger
No. 17-3421 3
seats. A pat-down of Voecks’ person also produced a folding
knife, a crack pipe, and two bullets, one of which was a .38
caliber bullet (the same caliber as the pistol found in his pocket)
and the second of which was a .45 caliber bullet (the same
caliber as the pistol discovered in the console).
The occupants of the car were transported in a police van
to the Franklin police department for processing and question-
ing. As Fernandez was being placed into the van, officer Adam
Graf overheard him call out to Voecks, “[D]on’t worry[,] it’s
only a misdemeanor for you to have a gun.” R. 40 at 90; see also
R. 40 at 128.
Voecks was interviewed twice at the police station, and
over the course of the two interviews he gave three different
statements as to who had possessed the .45 caliber pistol found
in the car and who had placed it in the center console. Officer
Frusti conducted both interviews (with officer Rogge sitting
in). During the first interview, Voecks claimed ownership of
that gun and told Frusti that he had obtained it from a friend
who had since died. Voecks was subsequently bailed out of jail
by his father. As he was preparing to leave the station, Ser-
geant Dan Morris approached Voecks and warned him that the
police would run a trace on the gun, and if they discovered
that the gun had been used in any crime, “it was going to come
back on [him].” R. 40 at 135. Voecks at that point became
visibly pale and nervous, and Morris offered him the opportu-
nity to be interviewed for a second time about the gun; Voecks
accepted the invitation. During the second interview, Voecks
told Frusti that the gun was not his. At first Voecks said that he
did not see who had placed it in the center console of the car,
although he suggested it was more likely that Fernandez had
4 No. 17-3421
done so than Stramowski. But when he was confronted with
certain inconsistencies in that new version of events, Voecks
ultimately averred that the gun belonged to Fernandez. Voecks
stated that when officer Frusti had pulled up behind the car,
Fernandez had panicked, voicing concern that he could “go
away for 20 years” and not be able to see his four children. At
Fernandez’s urging, Voecks had agreed to claim possession of
the gun. While Frusti was calling for backup, Fernandez had
placed the gun into the center console. Voecks picked up a
bullet from the gun that had landed on his seat and placed it
into his pocket.
Voecks became the key prosecution witness against
Fernandez at trial. (No fingerprints were found on the .45
caliber pistol, and the government had not had the gun tested
for DNA evidence.) Voecks explained that he had first claimed
ownership of the .45 caliber pistol in order to protect his friend,
Fernandez, but changed his mind after being warned that he
would be implicated if the police discovered that the gun had
been used in a crime. When defense counsel was cross-examin-
ing Voecks regarding the divergent accounts he had given to
police as to whom the gun belonged, the district court sus-
tained hearsay objections to questions as to what officer Frusti
had asked of or said to Voecks during questioning. R. 40 at
150–51, 152, 155. Defense counsel was able to ask Voecks what
he had told Frusti, but not what he was responding to. On
certain points, Voecks professed an inability to recall what
specifically he had said to Frusti. In particular, when defense
counsel asked Voecks about his second story regarding the
gun, Voecks said that he lacked any recollection of telling
Frusti that he did not see who placed the .45 caliber pistol in
No. 17-3421 5
the center console of the car. R. 40 at 154–55. “I’m not saying I
didn’t say it, I’m just saying I don’t remember saying that,”
Voecks testified. R. 40 at 155. But he did otherwise acknowl-
edge the first and third accounts he had given Frusti as to
whom the gun belonged and how it had come to be in the
center console of the car.
When Frusti subsequently testified for the government,
defense counsel attempted to cross-examine him about the
various statements Voecks had made to him during the two
interrogations Frusti had conducted. But the court sustained
the government’s hearsay objections to such questions. R. 40 at
182, 186; see also R. 40 at 220. Thus, for example, when defense
counsel asked Frusti what Voecks had said during the initial
interrogation, the court sustained a hearsay objection, although
counsel was then able to elicit from Frusti (without objection)
that Voecks’ initial account involved him having obtained the
.45 caliber gun from another individual. R. 40 at 182. When the
cross-examination turned to the second interrogation (after
Voecks had posted bail), defense counsel was able to elicit from
Frusti what he said to Voecks during that interrogation, but
(with one exception) not what Voecks said in response to
questioning. R. 40 at 186. The defense was only able to have
Frusti confirm that Voecks gave inconsistent accounts with
respect to the gun. R. 40 at 187–88.
Voecks, when he was on the witness stand, was also cross-
examined regarding certain text messages he allegedly sent to
Stramowski in the days immediately before trial. The two were
no longer engaged at that point, and Voecks had recently
become aware that Stramowski and Fernandez either were or
had been in a relationship with one another. Voecks admitted
6 No. 17-3421
that the news made him angry. R. 40 at 139. The purported
texts from Voecks to Stramowski stated, among other things:
Have fun talking to your[ ] Boyfriend cause he’s
gonna do 20-life! I’m testifying, he’s f*cked. Hope
it’s worth it[,] look what he did. To both of us … .
I told u a[ ]long time ago, only one of us would
survive, and it wouldn’t be him! Either way he’s
f*cked whether it’s by my hands or the court[‘s]. …
Ur both gonna get urs[.]
I met with the usa[ ] prosecuting attorney. Luis is
f*cked. He done a[n]d a fed inmate for life! Keep
wasting ur money on him. …
R. 46–2 at 2–6 (sanitizing ours); see also R. 40 at 159–61.
Stramowski had provided screen-shots of these texts to defense
counsel (who in turn produced them to the government’s
counsel) midway through the first day of trial, just before
opening statements were to commence. The government
objected to any reference to the texts; but as the texts were
probative of Voecks’ potential bias and motive to testify, the
district court allowed the defense to cross-examine Voecks
about the texts, as defense counsel had proposed, but indicated
that the defense would not be permitted to introduce extrinsic
evidence of the texts. R. 40 at 36–37, 39–40, 221–22. During the
cross-examination of Voecks, counsel established that he had
sent texts to Stramowski in advance of the trial and that his cell
phone number was the same as the number from which the
texts on Stramowski’s phone purportedly came. Counsel then
read several of the texts to Voecks and asked him whether he
No. 17-3421 7
had sent them to Stramowski. In each instance, Voecks
answered that he did not recall sending such a text to her.
Stramowski subsequently testified as a defense witness. She
indicated that she had not seen any guns in the car on the date
of the traffic stop, nor had she heard any discussion between
Voecks and Fernandez regarding the .45 caliber weapon later
discovered in the console. She testified that Voecks owned
multiple guns and at one point had possessed as many as five
when she was living with him. When defense counsel at-
tempted to ask her about the substance of texts she claimed to
have received from Voecks in the run-up to the trial, the
district court sustained the government’s hearsay objection.
R. 40 at 205. Stramowski did confirm that Voecks was upset to
learn that she was in a relationship with Fernandez, and that
he told her he was going to “get back at [her]” for that. R. 40 at
205–06.
At the conclusion of the trial, the jury found Fernandez
guilty of the felon-in-possession charge; and the district court
later denied his motion for a new trial. The court noted that
despite the hearsay objections it had sustained when the
defense had attempted to ask Voecks what officer Frusti had
said while interrogating him and to ask Frusti how Voecks had
responded to Frusti’s questions, the defense had managed to
establish how Voecks’ story had evolved during questioning.
R. 62 at 9–10. As to the texts Voecks had allegedly sent to
Stramowski, the court pointed out that the defense had read
those texts to Voecks on cross-examination, so that the jury
was aware of what the texts said notwithstanding the fact that
the court had not allowed the defense to present extrinsic
evidence of the texts. R. 62 at 16–18.
8 No. 17-3421
At sentencing, Judge Pepper ordered Fernandez to serve a
prison term of 27 months, which was at the low end of the
range advised by the Sentencing Guidelines.
II.
A. Hearsay objections regarding police interrogation of Voecks
There is no dispute that Voecks gave Frusti contradictory
accounts as to whom the .45 caliber gun belonged and who had
placed it in the center console of the car. As the interrogations
of Voecks were recorded and transcribed, the parties knew
exactly what Frusti had said to Voecks during the questioning
and what Voecks had said to Frusti in response. Frusti and
Voecks both testified at trial, and the defense wanted leeway
to question each of them about both sides of the interrogation;
but as noted, when the defense attempted to ask Voecks about
what Frusti had said to him and vice-versa, the district court
sustained the government’s hearsay objections, essentially
confining the cross-examination of each witness to his own
statements.
Fernandez argues that the district court erred in imposing
these limitations. He contends that “[t]he government’s case
against Fernandez depended entirely on the credibility of
Adam Voecks, … [s]o it was essential for the defense to
highlight each step in Voecks’ ever-evolving story and to
explain what led him to shift blame to Fernandez.” Fernandez
Br. 8. The district court’s hearsay rulings effectively prevented
the defense from accomplishing that task, Fernandez asserts,
and thus denied him the ability to confront his accuser and
present a full defense. It was, in his view, confusing and
unnecessary to restrict the cross-examination of Voecks and
No. 17-3421 9
Frusti to their respective halves of the interrogations. And
because Voecks professed inability to recall certain of the
statements he made during questioning, and Fernandez’s
counsel was prohibited from asking Frusti to fill in those gaps,
the defense was unable to establish the full content and context
of Voecks’ changing stories. Ultimately, in Fernandez’s view,
the jury was only given the bare outlines of the inconsistent
statements that Voecks gave and was kept ignorant of the
details which demonstrated how and why his accounts
changed. On appeal, Fernandez suggests for the first time that
the error was so serious that it deprived him of his Sixth
Amendment right to confront Voecks effectively.
We agree it was error to sustain the hearsay objections to
questions aimed at eliciting what questions officer Frusti asked
of Voecks during the interrogations. It is common ground
between the parties that the statements Voecks made during
interrogation were fair game for the impeachment of his
testimony at trial. See Fed. R. Evid. 801(d)(1)(A). To that end, it
was entirely reasonable to question Voecks about what he had
told Frusti at the police station, and the district court allowed
the defense to do so. But interrogations are an inherently
interactive process, and so Frusti’s half of the interrogations
were material to the context of Voecks’ answers. What Frusti
asked of or said to Voecks during interrogation was not offered
for its truth, but rather to establish what questions or state-
ments Voecks was responding to and the effect the former had
on Voecks as the listener. This was a legitimate non-hearsay
purpose aimed at providing the jury with the full context of
Voecks’ prior statements. See, e.g., Estate of Moreland v. Dieter,
395 F.3d 747, 753–54 (7th Cir. 2005) (recognizing that interroga-
10 No. 17-3421
tor’s questions were offered to provide context for defendant’s
answers and as such were not hearsay) (citing United States v.
Woods, 301 F.3d 556, 561 (7th Cir. 2002) (informant’s side of
recorded conversation with defendant admissible to provide
context)); United States v. Gajo, 290 F.3d 922, 929–30 (7th Cir.
2002) (statements of non-conspirator, in recorded conversation
with co-conspirator, admissible to provide context for co-
conspirator’s statements) (collecting cases); United States v.
Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988) (co-defendant’s
statements introduced not for their truth but only to show they
were uttered). The judge may have been misled by the de-
fense’s first foray into Frusti’s side of the interrogations, which
asked Voecks to recount what Frusti had told him on a
particular point. R. 40 at 150–51. There may well be instances
in which a party improperly seeks to elicit an interrogator’s
statement during questioning (representing what another
witness has told the authorities, for example) for its truth
rather than to establish the context of what the person being
interrogated said next. If that were the evident aim of defense
counsel’s questioning here, then we would agree that the
inquiries were barred by the hearsay rule. But it soon became
clear that Fernandez’s attorney was attempting to elicit Frusti’s
statements and questions for legitimate non-hearsay purposes.
Counsel’s next question, for example, was what Frusti had
asked Voecks, and the court sustained the government’s
objection to that inquiry as well. R. 40 at 151. Consequently, the
hearsay rule did not support the court’s decision to preclude
the defense from establishing both sides of the interrogations
through Voecks himself.
No. 17-3421 11
The defense had a legitimate purpose in examining Voecks
about the various contradictory stories he had told to Frusti
about the gun, and as part of that inquiry it was entirely proper
for the defense to establish what Frusti said and asked during
the interrogations in order to place Voecks’ answers in context.
To the extent Frusti may have been leading or cajoling Voecks
to change his story, for example, Frusti’s side of the interroga-
tions would be relevant to the jury’s assessment of Voecks’
credibility in pointing the finger at Fernandez. Insisting that
Fernandez’s counsel instead wait to ask Frusti about his half of
the conversations was at best a cumbersome alternative, and
one that precluded the defense from eliciting what Voecks
understood Frusti to be saying to him.
The converse restriction the court imposed on the cross-
examination of Frusti was also problematic, but less trouble-
some on the record as it stands. Fernandez points out that
Voecks professed an inability to recall certain statements he
made during the second interrogation, during which Voecks
changed course and ultimately attributed possession of the .45
caliber gun to Fernandez. At that point, Fernandez argues, he
should have been permitted to establish through Frusti the
statements that Voecks was purportedly unable to recall. See
pursuant to Fed. R. Evid. 613(b)1; United States v. DeMarco, 784
F.3d 388, 394 (7th Cir. 2015) (extrinsic evidence of witness’s
prior statement is admissible pursuant to Rule 613(b) for
1
Rule 613(b) provides: “Extrinsic evidence of a witness’s prior inconsistent
statement is admissible only if the witness is given an opportunity to
explain or deny the statement and an adverse party is given the opportunity
to examine the witness about it, or if justice so requires.”
12 No. 17-3421
purpose of impeaching witness so long as witness has first
been given opportunity to explain or deny statement); see also
United States v. Lopez, 870 F.3d 573, 582 (7th Cir. 2017) (constru-
ing rule broadly to permit extrinsic evidence even when
witness has acknowledged prior statement) (collecting cases).
But the logical first step the defense could have taken in this
regard was to present Voecks with the transcript of the
interrogation and ask him whether that refreshed his recollec-
tion as to what he said. See, e.g., United States v. Vasquez, 635
F.3d 889, 895 (7th Cir. 2011), cert. dismissed, 566 U.S. 376, 132
S. Ct. 1532 (2012). If Voecks was responding to these inquiries
in good faith, then a review of the transcript might have caused
him to recall and acknowledge the statements in question. If so,
then the defense’s need to question Frusti on these points
would have been reduced, as a practical matter, if not elimi-
nated. But see Lopez, 870 F.3d at 581 (“[E]ven when a witness
admits to making a prior inconsistent statement, Federal Rule
of Evidence 613(b) should be read broadly to allow a party ‘to
introduce extrinsic evidence to emphasize the fact that the
witness made the prior statement.’”) (quoting United States v.
Lashmett, 965 F.2d 179, 182 (7th Cir. 1992)). If, at the other
extreme, Voecks denied making the statements, then of course
it would have been entirely proper to ask Frusti what Voecks
had said. See DeMarco, 784 F.3d at 394 (once witness has denied
making prior statement, Rule 613(b) permits extrinsic proof of
that statement). And if, instead of either acknowledging or
denying his prior statements, Voecks had continued to profess
a lack of recollection, then it would have been up to the district
judge to decide whether his professed lapse of memory was
genuine. If the court were to conclude that Voecks was simply
No. 17-3421 13
being evasive, then establishing his statements through Frusti
again would have been permissible. Cf. United States v. DiCaro,
772 F.2d 1314, 1322 (7th Cir. 1985) (where district court found
witness lied in professing amnesia, court did not abuse its
discretion in admitting witness’s prior grand jury testimony
per Rule 801(d)(1)(A)). On the other hand, if the court believed
that Voecks’ failure of memory was genuine, then the admissi-
bility of Voecks’ prior statements through Frusti would have
presented a closer question. Compare United States v. Brown, 788
F.3d 830, 834 (8th Cir. 2015) (it is within trial judge’s discretion
to exclude extrinsic evidence of witness’s prior statement
where witness asserts in good faith she cannot recall making
the statement), with United States v. Bullcalf, 563 F. App’x 535,
536 (9th Cir. 2014) (unpublished) (witness’s inability to recall
prior statement should be treated as denial for purposes of
Rule 613(b)). The defense did not attempt to refresh Voecks’
recollection using the transcript of his interrogations, so
arguably it did not lay the requisite groundwork for admitting
the statements through Frusti.2
Even assuming, on the broadest reading of Rule 613(b), that
the court should have allowed Frusti to be questioned about
Voecks’ statements once Voecks himself professed not to
remember making them, any error with respect to the restric-
tions imposed on cross-examination of Frusti—as well as
Voecks—was harmless. The jury certainly was aware that
Voecks gave multiple, contradictory statements to the police
2
By contrast, the defense did present Frusti with a transcript of the
interrogation in order to refresh his recollection as to a point Frusti claimed
an inability to recall. R. 40 at 183.
14 No. 17-3421
which began with the claim that the gun belonged to him and
ended with the claim that the gun belonged to Fernandez. It is
true that the defense was not able to elicit every detail of the
various accounts that Voecks had given to Frusti. (For exam-
ple, in his first version, Voecks told Frusti that he had met the
man from whom he had obtained the gun at a methadone
clinic.) It is also true that the defense was not able to establish
the particulars of what prompted Voecks to abandon his
second version (that he did not see anyone put the gun into the
front-seat console of the car) for his third and final version (that
Fernandez put the gun there). However, we are not convinced
that such details were vital to the defense. The jury was fully
aware that Voecks had first claimed the gun was his, but
during the second interrogation had abandoned his first
account and claimed the gun was Fernandez’s. Critically, the
jury was also made aware of the fact that it was the warning
from Sergeant Morris that Voecks would be held to account for
any crimes connected to that gun which prompted Voecks to
reconsider the first story and agree to the second interview,
where he ultimately incriminated Fernandez. We can readily
appreciate that eliciting the specifics of what Frusti said to and
asked of Voecks, and what Voecks said in response, would
demonstrate both Voecks’ facility with inventing details and
his clumsiness in contradicting himself on such key points as
to whether he knew there was a gun in the center console of
the car. The restrictions imposed on the cross-examinations of
Voecks and Frusti made it an unnecessarily difficult task for
the defense to lay bare the full evolution and context of
Voecks’ statements regarding the .45 caliber pistol. But the
defense nonetheless was able to establish the gist of the two
No. 17-3421 15
contradictory accounts of the gun’s ownership and the trigger
for Voecks’ decision to abandon his original statement and
attribute possession of the gun to Fernandez. Defense counsel
made full use of the (purportedly self-serving) evolution of
Voecks’ account in closing argument. R. 41 at 265–68.
Fernandez has not shown us why any of the omitted details of
Frusti’s interrogations of Voecks mattered so much as to
demonstrate reversible error. And although Fernandez did not
invoke his Confrontation Clause rights below and arguably
forfeited any constitutional claim, for the sake of completeness,
we note that his ability to raise the essential points as to
Voecks’ change of story defeats any claim of plain error in this
regard.
B. Admissibility of the text messages
Fernandez next contends that the district court erred in
precluding him from questioning defense witness Stramowski
about the content of the texts she had purportedly received
from Voecks in the run-up to the trial. Once Voecks was
confronted with and essentially denied having sent those texts,
Fernandez argues, he should have been permitted to introduce
extrinsic evidence of the texts in order to establish Voecks’ bias
against both Fernandez and Stramowski and his motive to
inculpate Fernandez at trial. The district court’s understanding
that Rule 608(b) forbade extrinsic evidence of a witness’s prior
statements for these purposes was mistaken, he contends.3
3
In relevant part, Rule 608(b) provides: “Except for a criminal conviction
under Rule 609, extrinsic evidence is not admissible to prove specific
instances of a witness’s conduct in order to attack or support the witness’s
(continued...)
16 No. 17-3421
We do not disagree with Fernandez that evidence as to the
texts, if they were indeed sent by Voecks, was admissible to
establish Voecks’ bias and motive as a witness for the govern-
ment. See United States v. DeMarco, supra, 784 F.3d at 394
(noting that Fed. R. Evid. 608(b) allows proof of specific
instances of conduct to establish bias or prior inconsistent
statement) (citing United States v. McGee, 408 F.3d 966, 981–82
(7th Cir. 2005)). Statements in the texts to the effect that both
Fernandez and Stramowski were going to “get yours” and
that, as between Fernandez and Voecks, only one was going to
“survive” and it was not going to be Fernandez, certainly
could be understood to reflect that Voecks had an axe to grind
against Fernandez and a motive to help himself by testifying
for the government at Fernandez’s expense. Once Voecks was
confronted with the texts and effectively denied sending them,
the door was opened to extrinsic evidence of the texts pursuant
to Rule 613(b), contrary to the district court’s understanding.
DeMarco, 784 F.3d at 394.
But for two reasons, we do not think the district court erred
in sustaining the government’s objections when the defense
began to ask Stramowski about these texts. First, when the
matter of the texts was first raised with the district judge prior
to opening statements, Fernandez’s attorneys indicated that it
was not their intent to establish the substance of the texts
3
(...continued)
character for truthfulness. But the court may, on cross-examination, allow
them to be inquired into if they are probative of the character for truthful-
ness or untruthfulness of: (1) the witness; or (2) another witness whose
character the witness being cross-examined has testified about. …
No. 17-3421 17
through extrinsic evidence; instead, counsel simply wanted the
opportunity to question Voecks about the texts. R. 40 at 33, 35.
The court readily acceded to that limited request. We inquired
at oral argument whether, after Voecks had been confronted
with the texts and denied having sent them, defense counsel
ever argued to the court that circumstances had changed and
that the defense should now be permitted to prove the exis-
tence and contents of the texts through extrinsic evidence.
Counsel answered that question in the negative. The district
court can hardly be faulted for barring evidence that the
defense had disclaimed an intent to introduce.
Second, given the late hour at which the texts came to
light—just as opening statements and the presentation of
evidence was about to begin—there was very little opportunity
for either party to establish the authenticity of the texts. The
court rightly flagged the authenticity of the texts as a concern
from the start, and we may safely assume that it would have
taken some amount of time to investigate this. But the presen-
tation of evidence at trial began and concluded on the same
day that the texts were first raised; and given that the defense
had originally indicated it would be satisfied with the opportu-
nity to question Voecks about the texts, the government was
not on notice that it needed to task someone to explore the
provenance and authenticity of the texts. The district court was
thus well within its discretion to prohibit the defense from
attempting to provide the existence and content of the texts
through Stramowski.
18 No. 17-3421
C. Disclosure of Fernandez’s arrest on outstanding warrant
Finally, Fernandez contends that the district court erred in
permitting the government to establish that he was arrested
during the November 2016 traffic stop on an outstanding
warrant for a probation violation. The government argued, and
the district court agreed, that the arrest was necessary to
complete the picture of what occurred during the stop and in
particular to explain why Fernandez was loaded into the police
van, which was when officer Graf heard him tell Voecks not to
worry about possession of a gun, because that was only a
misdemeanor offense for Voecks. Fernandez contends that
disclosure to the jury of his arrest and the reason for it amount-
ed to evidence of a prior bad act that was not probative of his
guilt on the felon-in-possession charge, and that the court’s
rationale in allowing it tracks the “inextricably related”
rationale of which we disapproved in United States v. Gorman,
613 F.3d 711, 717–19 (7th Cir. 2010).
Any potential error in the court’s decision to admit this
evidence was harmless, however. Because having a prior
felony conviction was an element of the offense with which
Fernandez was charged, the jury was necessarily aware that he
had a criminal record. See R. 28 ¶ 1; R. 40 at 189 (stipulation
that Fernandez previously had been convicted of a felony
offense). That he was also arrested for a probation violation at
the time of the traffic stop was a relatively benign fact. Given
the limited purpose for which it was admitted, we are not
convinced that disclosure of the arrest was unduly prejudicial
to Fernandez.
No. 17-3421 19
III.
We AFFIRM the judgment.