United States v. Riley

FILED
United States Court of Appeals
Tenth Circuit
August 5, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-3178
v. (D.Ct. No. 06-CR-40078-RDR)
(D. Kan.)
JAMES F. RILEY,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and
MCCONNELL, Circuit Judge.
Appellant James F. Riley was convicted by a jury of one count of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He now
appeals his conviction on grounds the district court abused its discretion or
otherwise erred in: (1) denying his pre-trial motion for disclosure of the grand
jury transcript; (2) denying his motions to dismiss the indictment and for
judgment of acquittal; and (3) admitting into evidence his prior state court
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
conviction, in contravention of Old Chief v. United States, 519 U.S. 172 (1997).
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Mr. Riley’s
conviction.
I. Factual and Procedural Background
Following an investigation, the government presented a federal indictment
to a grand jury charging Mr. Riley with one count of being a prior felon
knowingly in possession of a firearm, in and affecting interstate commerce, in
violation of 18 U.S.C. § 922(g). For the purpose of establishing Mr. Riley’s
status as a prior felon, the proposed indictment indicated Mr. Riley had been
convicted of a crime punishable by a term of imprisonment exceeding one year
and listed ten of Mr. Riley’s prior felony convictions, identifying each by the
name of the offense, the state statute violated, the court of jurisdiction, and the
case number. In support of the indictment, the government presented witness
testimony to the grand jury. On June 14, 2006, the grand jury returned the one-
count indictment charging Mr. Riley with being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g).
Approximately four months before trial, counsel for Mr. Riley requested
the transcript of the grand jury proceeding, arguing the transcript was necessary
to determine: (1) whether the government’s presentation of his ten prior felony
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convictions prejudiced the grand jury; and (2) how the government established the
interstate commerce element of the offense charged. At a hearing held on
September 13, 2006, the district court denied the motion, stating Mr. Riley’s mere
speculation as to any undue influence caused by listing the ten prior convictions
or the sufficiency of evidence on the interstate nexus failed to show a compelling
or “particularized need” for production of the transcript. In addition, with respect
to the interstate nexus element, it recognized the government’s obligation to
produce exculpatory evidence and then concluded Mr. Riley’s unsubstantiated
hope for evidence contained in the grand jury transcript was not grounds for
production of the transcript.
Two days before the January 3, 2007 trial, Mr. Riley filed a motion to
quash the indictment based, in part, on the government’s presentation of his ten
prior convictions to the grand jury, which he again argued caused undue influence
or prejudice. At approximately the same time, the parties also tried to reach an
agreement on how to present the issue of Mr. Riley’s prior felony convictions to
the petit jury in order to comply with the Supreme Court’s decision in Old Chief,
which encourages parties to stipulate to prior convictions in felon-in-possession
cases to avoid undue prejudice in introducing evidence on the name or nature of
those prior convictions. See 519 U.S. at 190-91. In order to comply with Old
Chief, the government proposed Mr. Riley enter into a written stipulation that he
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“was not legally entitled to possess a firearm, due to the fact ... [he] had been
earlier convicted of a felony, which bore a possible sentence of imprisonment of
more than one year.” R., Supp. Vol. 1, Ex. 4 at 1. Mr. Riley’s counsel agreed to
the portion of the stipulation stating Mr. Riley had a prior felony conviction but
opposed the portion indicating Mr. Riley was not legally entitled to possess a
firearm at the time of the instant offense.
At the pretrial hearing held the morning of the trial, the parties presented
argument concerning the government’s proposed stipulation on Mr. Riley’s prior
convictions and the contested issue of whether the stipulation should include the
fact Mr. Riley was not legally entitled to possess a firearm at the time of the
instant offense. In opposing the stipulation, Mr. Riley’s counsel explained the
issue of whether Mr. Riley was legally entitled to possess a firearm was a fact for
the jury to decide and that the jury might take the stipulated language regarding
his lack of legal entitlement to possess a firearm out of context and find it
confusing. In turn, the government contended the stipulation, in order to meet the
requirements of establishing a § 922(g) violation, needed to not only establish the
fact Mr. Riley had a prior felony but that the prior felony precluded him from
possessing a firearm. After hearing the parties’ arguments on the issue, the
district court determined the proposed stipulation was not “unfair,” and, based on
Mr. Riley’s refusal to enter into the stipulation, it ruled the government could
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introduce evidence of one of his prior felonies. At that time, the district court
also heard argument on Mr. Riley’s motion to quash the indictment premised on
his ten prior convictions being presented to the grand jury; it denied the motion
but directed the indictment be sealed.
One day prior to the trial, the government presented Mr. Riley’s counsel
with the requested transcript of the grand jury proceeding in conjunction with the
Jencks Act, 18 U.S.C. § 3500. The entirety of the transcript contained the
testimony of Kent Biggs, a detective with the Topeka, Kansas Police Department,
who testified his investigation established Mr. Riley lived at the residence of a
Mr. Bent and acted as his doorman for the purpose of allowing individuals to
come into the house to purchase illegal narcotics from Mr. Bent. Detective Biggs
testified, in part, that during an interview Mr. Riley “admitted that he possessed a
12-gauge shotgun, which he kept in the basement as a security measure for the
residence, due to the fact that they had been robbed at the residence by other drug
dealers on previous occasion.” R., Supp. Vol. 2 at 3. Detective Biggs also
explained that a few days after the interview, Mr. Riley provided a written
statement and confessed to possessing the shotgun. In addition, Detective Biggs
verified the list of Mr. Riley’s ten prior felony convictions, which included three
convictions for aggravated assault or battery; during his testimony, a juror asked
Detective Biggs what aggravated battery was, to which he provided a definition.
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During the jury trial, the government offered into evidence the Kansas state
court’s journal entry of Mr. Riley’s January 31, 2000 conviction for aggravated
battery, showing he received a nineteen-month sentence, which the district court
admitted into evidence over Mr. Riley’s objection. The government also
presented the testimony of Detective Biggs, who testified regarding his interview
with Mr. Riley and his admissions he acted as a “doorman” at Mr. Bent’s
residence, lived in the basement of that residence, and kept a shotgun in the
basement with him. The government also presented a video tape of the interview
which showed Mr. Riley stating he believed Mr. Bent traded some drugs for the
shotgun and Mr. Riley admitting, “I had the shot gun in the basement for awhile.”
R., Vol. 3 at 94; Supp. Vol. 3, Gov’t Ex. 1.
Detective Biggs also testified that a few days after the initial interview he
met with Mr. Riley again and asked him to provide a written statement, which he
agreed to do. In Mr. Riley’s statement, which was admitted into evidence without
objection at trial, he wrote, in part:
I lived in the basement and took care of the house in exchange for
rent. I also was the door man and screen [sic] potential clients. As
far as the checks an [sic] fake ID the “office” was upstairs and was
kept private. I had a shot gun in the basement and there were other
guns in the house at various times.
....
The shot gun was [a] break down 12 gauge and the #’s had been
obliterated. Full length.
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R., Vol. 3 at 106-07; Supp. Vol. 1, Gov’t Ex. 2.
On cross examination, Detective Biggs acknowledged his prior statement to
the grand jury that the shotgun was a “security measure” was not a statement Mr.
Riley directly made, but something Detective Biggs garnered from a direct
statement made by Mr. Bent. In so doing, Detective Biggs clarified he did not
intend to directly attribute the security measure statement to Mr. Riley.
The government also presented the testimony of Mr. Bent, who testified he
sold drugs and operated an identity theft operation out of his residence and that
Mr. Riley moved into his basement in September 2003 and acted as a doorman
who checked people out and escorted them upstairs as a security function. Mr.
Bent stated he obtained a shotgun from one of his drug customers, Mr. Freel, as a
security measure because he had been robbed; he described it as a sawed-off,
pump-action shotgun which he stated he gave Mr. Riley for the express purpose
of using it in his role as doorman. He further testified Mr. Riley kept the shotgun
in various places, including in the pink insulation in the wall and also under his
bed. Mr. Freel also testified, stating that during the summer of 2003 he traded a
“Remington pump” shotgun with a cut-off barrel to Mr. Bent in exchange for
drugs and money.
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Bruce Stukey, an agent with the Bureau of Alcohol, Tobacco, and Firearms,
testified in regard to the state court journal entry on Mr. Riley’s prior state
conviction and the gun’s interstate nexus. Agent Stukey verified the journal
entry’s contents, which included the case number, judge, sentencing date, Kansas
statute violated, and the fact it was a felony offense for aggravated battery with a
sentence of incarceration of at least one year. He further stated he obtained the
state court journal entry as part of his investigation for the purpose of validating
the fact Mr. Riley was a prior felon prohibited from possessing a firearm. He also
testified the Remington pump-action shotgun, as described by witnesses, would
have been manufactured in Ilion, New York, traveled through interstate
commerce, and constituted a firearm for the purposes of 18 U.S.C. § 922(g).
At the close of the government’s evidence, Mr. Riley renewed his motion to
quash the indictment and also requested a judgment of acquittal, arguing in
support of both that the government impermissibly presented his ten prior
convictions to the grand jury, causing undue prejudice, and also contending
Detective Biggs committed perjury before the grand jury when he improperly
attributed to Mr. Riley the statement the shotgun was used as a “security
measure.” The district court denied Mr. Riley’s motions.
Thereafter, Mr. Riley testified on his own behalf, explaining that while he
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primarily slept in the basement and the shotgun was there, he never saw it,
touched it, or otherwise possessed it. He did, however, admit: (1) he acted as the
doorman; (2) the journal entry showed his prior felony conviction; (3) as a result
of his prior conviction, he was prohibited from possessing a firearm; and (4) the
shotgun was a firearm that traveled through interstate commerce.
At the conclusion of trial, the jury found Mr. Riley guilty of violating 18
U.S.C. § 922(g) for illegal possession of a firearm by a felon. The district court
then sentenced Mr. Riley to 180 months imprisonment.
II. Discussion
A. Motion for Grand Jury Transcript
On appeal, Mr. Riley contends the district court erred in denying his motion
to disclose the grand jury transcript. In support, he argues he stated a legally
sufficient need for that information by contesting presentation of his ten prior
felony convictions to the grand jury, which he alleges was unduly prejudicial and
tainted the indictment process. He also contends, based on information later
obtained from the grand jury transcript, that disclosure was warranted, as
evidenced by: (1) Detective Biggs’s erroneous information to the grand jury
concerning Mr. Riley’s motive in possessing the firearm as a “security measure,”
and (2) the lack of evidence offered to the grand jury concerning the interstate
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nexus of the offense charged.
The government counters by arguing the district court correctly found Mr.
Riley’s request for the grand jury transcript was based on nothing more than
speculation, which did not establish a compelling and particularized need for
disclosure. Alternatively, it contends any error was harmless given Mr. Riley
received the transcript before trial and his counsel relied on it while arguing his
motions to quash the indictment and for judgment of acquittal.
We review a trial court’s denial of a request for disclosure of a grand jury
transcript for an abuse of discretion. In re Grand Jury 95-1, 118 F.3d 1433, 1437
(10th Cir. 1997). We apply our standard of review in conjunction with the
applicable legal principles, which include the Supreme Court’s recognition “‘that
the proper functioning of our grand jury system depends upon the secrecy of
grand jury proceedings.’” In re Special Grand Jury 89-2, 143 F.3d 565, 569
(10th Cir. 1998) (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S.
211, 218 (1979)). “Secrecy, however, is not absolute,” as demonstrated by
Federal Rule of Criminal Procedure 6(e), which provides exceptions to the
general rule. Id. Under the exception applicable in the instant case, the decision
on whether to disclose grand jury materials to defendant’s counsel is left to the
trial court on a showing by defendant “that a ground may exist to dismiss the
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indictment because of a matter that occurred before the grand jury.” Fed. R.
Crim. P. 6(e)(3)(E)(ii). In considering the issue of grand jury disclosure, we have
explained:
[t]he prerequisites for disclosure of grand jury materials are
demanding. Specifically, a party seeking grand jury materials must
show (1) the materials are needed to avoid a possible injustice in
another judicial proceeding, (2) the need for disclosure is greater
than the need for continued secrecy, and (3) the request is structured
to cover only material so needed. Relevance alone is not sufficient;
secrecy will not be broken absent a compelling necessity for the
materials. Further, the request must amount to more than a request
for authorization to engage in a fishing expedition.
In re Grand Jury 95-1, 118 F.3d at 1437 (quotation marks and citations omitted).
Rather than a general request, the Supreme Court has consistently held a
defendant must make a strong showing of a “particularized need” before grand
jury materials are disclosed. See United States v. Warren, 747 F.2d 1339, 1347
(10th Cir. 1984) (quotation marks and citations omitted). Thus, “[t]he rule
governing disclosure of grand jury testimony is not to be used as a substitute for
general discovery,” In re Lynde, 922 F.2d 1448, 1453-54 (10th Cir. 1991)
(quotation marks and citation omitted), nor as a means to reveal exculpatory
evidence, see United States v. Rising, 867 F.2d 1255, 1260 (10th Cir. 1989).
In the instant case, it appears Mr. Riley’s request for the grand jury
transcript to determine how the government established the interstate nexus
element of the instant offense was nothing more than a substitute for general
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discovery, which is insufficient to demonstrate a particularized need for such
material. Moreover, with respect to Mr. Riley’s claim the grand jury transcript
supports his contention no evidence was provided to the grand jury establishing
an interstate nexus, the Supreme Court has held a defendant is not permitted to
challenge an indictment merely on grounds it is unsupported by adequate and
competent evidence. See Costello v. United States, 350 U.S. 359, 361-64 (1956).
Similarly, it is doubtful the district court abused its discretion when it
rejected Mr. Riley’s argument his ten prior convictions unduly influenced the
grand jury. As the district court explained, the request appeared to be based on
mere speculation, failing to show a compelling or particularized need for
production of the transcript. Moreover, a grand jury’s knowledge of a
defendant’s prior convictions or criminal record does not necessarily taint the
indictment process given it is not subject to the same rules of evidence applicable
to petit jury proceedings. See generally United States v. Levine, 700 F.2d 1176,
1179 (8th Cir. 1983); United States v. Camporeale, 515 F.2d 184, 189 (2d Cir.
1975). In addition, with respect to Detective Biggs’s reference to the gun as a
“security measure,” Mr. Riley’s reliance on information obtained from the grand
jury transcript after the district court’s denial is insufficient to establish he
articulated the requisite particularized need for production of the transcript at the
time he requested the transcript.
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However, even if we determine the district court abused its discretion in
denying Mr. Riley’s request for the grand jury transcript, the record establishes he
eventually received the requested transcript from the government prior to the trial.
On appeal, Mr. Riley has not demonstrated any specific prejudice he suffered in
not receiving it earlier. 1 See United States v. Radetsky, 535 F.2d 556, 570 (10th
Cir. 1976), abrogated on other grounds by United States v. Daily, 921 F.2d 994(10th Cir. 1990). In fact, as the government points out, Mr. Riley relied on the
transcript at trial in renewing his motion to dismiss the indictment and moving for
judgment of acquittal. Under these circumstances, we conclude an abuse of
discretion, if any, by the district court in denying Mr. Riley’s request for the
grand jury transcript was harmless and not prejudicial to his defense. Id.B. Motions to Quash Indictment and for Acquittal
We next address Mr. Riley’s argument in support of both his motion to
quash the indictment and motion for judgment of acquittal raised after the
government’s case in chief. Mr. Riley contends dismissal of the indictment and
his acquittal were warranted, based on (1) the government’s presentation of his
ten prior felony convictions to the grand jury, and (2) Detective Biggs’s
1
At oral argument, counsel for Mr. Riley argued the government’s delay in
providing the transcript prejudiced Mr. Riley but was unable to provide any
definitive explanation on how he was prejudiced and admitted no continuance was
requested at the time of trial based on the delay and counsel was able to rely on
the transcript during the time of trial.
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“perjured” testimony, both of which he claims tainted the indictment process. He
also contends the grand juror’s questioning of Detective Biggs about his prior
aggravated battery conviction “clearly show[ed] confusion amongst the jurors.”
Apt. Br. at 9. In making these arguments, Mr. Riley does not provide a specific
explanation of how the presentation of his ten prior felonies or Detective Biggs’s
testimony tainted the indictment process or how the alleged juror confusion
warranted dismissal of the indictment or even his acquittal. He also does not
contend Detective Biggs provided an inaccurate or inappropriate definition of
aggravated battery.
In response to Mr. Riley’s argument, the government relies on 18 U.S.C.
§ 921(a)(20) 2 to argue it was legally necessary to list all ten prior convictions in
the event Mr. Riley argued any of those convictions were deficient or expunged
or his right to possess a firearm had been restored under state law. The
government contends that if it had listed only one of his prior convictions and Mr.
Riley successfully challenged that conviction, it would have been unable to use
any other convictions to prove the charge. Alternatively, it contends any error in
2
Section 921(a)(20) states, in part:
[a]ny conviction which has been expunged, or set aside or for which
a person has been pardoned or has had civil rights restored shall not
be considered a conviction for purposes of this chapter, unless such
pardon, expungement, or restoration of civil rights expressly provides
that the person may not ship, transport, possess, or receive firearms.
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listing the ten prior convictions in the indictment, or in Detective Biggs
attributing to Mr. Riley the reference about the gun as a “security measure,” were
harmless given the petit jury’s guilty verdict.
We begin with Mr. Riley’s contention the district court erred in denying his
motion for judgment of acquittal. In reviewing the denial of such a motion, “we
review the record de novo to determine whether, viewing the evidence in the light
most favorable to the government, a reasonable jury could have found the
defendant guilty of the crime beyond a reasonable doubt.” United States v.
Harris, 369 F.3d 1157, 1163 (10th Cir. 2004) (quotation marks and citation
omitted). In conducting our inquiry, we examine the evidence presented to the
trial jury and do not “weigh conflicting evidence nor consider the credibility of
witnesses,” but “simply determine whether the evidence, if believed, would
establish each element of the crime.” United States v. Delgado-Uribe, 363 F.3d
1077, 1081 (10th Cir. 2004) (quotation marks and citation omitted).
As to the elements of the instant crime, the applicable portion of 18 U.S.C.
§ 922(g) states:
It shall be unlawful for any person ... who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding
one year ... to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
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transported in interstate or foreign commerce.
18 U.S.C. § 922(g)(1). To obtain a conviction under § 922(g) for possession of a
firearm by a felon, the government must prove: (1) the defendant was convicted
of a felony; (2) he thereafter knowingly possessed a firearm; and (3) the
possession was in or affecting interstate commerce. See United States v. Wilson,
107 F.3d 774, 779 (10th Cir. 1997). “As we have repeatedly held, possession can
be actual or constructive.” United States v. Jameson, 478 F.3d 1204, 1209 (10th
Cir.), cert. denied, 128 S. Ct. 321 (2007). “Actual possession exists when a
person has direct physical control over a firearm at a given time,” while
“[c]onstructive possession exists when a person knowingly holds the power and
ability to exercise dominion and control over a firearm.” Id. (quotation marks and
citation omitted).
Keeping these principles in mind, it is evident Mr. Riley ties his argument
for acquittal to the evidence presented to the grand jury, rather than the evidence
presented to the petit jury at trial. However, in this case, the grand jury
indictment was sealed, and the record shows the petit jury never received
evidence on Mr. Riley’s ten prior convictions but, instead, heard evidence on only
one of his prior convictions, as discussed hereafter. Furthermore, any confusion
on Detective Biggs’s grand jury testimony attributing to Mr. Riley the statement
the gun was a “security measure” was clarified at trial. Thus, we reject Mr.
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Riley’s argument that evidence presented to the grand jury somehow warranted
the district court granting his motion for acquittal raised at trial.
Viewing the evidence in the light most favorable to the government, it is
also clear a reasonable jury could have found Mr. Riley guilty beyond a
reasonable doubt of being a felon in possession of a firearm. More specifically, a
jury could have found the evidence presented at trial established Mr. Riley had
previously been convicted of a felony, thereby prohibiting him from possession of
such firearm at the time of the instant offense, as required by § 922(g), and that
he nevertheless knowingly possessed the shotgun which was transported through
interstate commerce.
Having determined no error occurred in denying the motion to acquit based
on the evidence presented to either the grand or petit juries, we turn to Mr.
Riley’s motion to quash the indictment which, he suggests, is supported by the
same argument in favor of his motion to acquit. We review a trial court’s denial
of a motion to dismiss the indictment based on evidence presented to the grand
jury for an abuse of discretion. See Levine, 700 F.2d at 1181; United States v.
Flaherty, 668 F.2d 566, 583 (1st Cir. 1981); United States v. Tane, 329 F.2d 848,
853 (2d Cir. 1964). Unlike trials before a petit jury, the grand jury process is
generally unrestrained by the technical procedural and evidentiary rules governing
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the conduct of criminal trials. See Fed. R. Evid. 1101(d)(2); United States v.
Calandra, 414 U.S. 338, 343 (1974). When an alleged error in a grand jury
proceeding is implicated, we have said errors should either be characterized as:
(1) “‘technical’” or “‘procedural’” affecting only the grand jury’s finding of
probable cause; or (2) as those “threatening the defendant’s ‘right to fundamental
fairness in the criminal process.’” United States v. Lopez-Gutierrez, 83 F.3d
1235, 1244-45 (10th Cir. 1996) (citations omitted).
When the alleged error is technical and raised prior to a verdict, the petit
jury’s subsequent guilty verdict establishes not only probable cause of guilt, but
the defendant’s guilt beyond a reasonable doubt, so that “any error in the grand
jury proceeding connected with the charging decision was harmless beyond a
reasonable doubt.” Id. at 1245. Only when claimed errors went “beyond the
question of whether the grand jury had sufficient evidence upon which to return
an indictment and essentially threatened the defendant’s rights to fundamental
fairness,” is the indictment open to question, notwithstanding a subsequent guilty
verdict by the petit jury. Id. (quotation marks and citations omitted). To make a
showing the fundamental fairness of the grand jury proceeding was affected, the
defendant must establish the alleged errors “substantially influenced the grand
jury’s decision to indict, or ... there is grave doubt that the decision to indict was
free from the substantial influence of such violations.” Bank of Nova Scotia v.
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United States, 487 U.S. 250, 256 (1988) (quotation marks and citation omitted).
Conduct that might transgress such a fundamental right to fairness would include
the government’s attempt to unfairly sway the jury or pervasive attempts to
charge without cause or undermine the defense. See Lopez-Gutierrez , 83 F.3d at
1245. “Under such circumstances, we review the record to determine whether the
prosecutor engaged in flagrant or egregious misconduct which significantly
infringed on the grand jury’s ability to exercise independent judgment.” Id.(quotation marks and citations omitted).
In this case, the contested portion of Detective Biggs’s testimony to the
grand jury involves his statement Mr. Riley possessed the shotgun as a “security
measure.” Understandably, in the context in which it was made, the grand jury
could have attributed the statement about the gun being a “security measure” to
Mr. Riley, so that it arguably constituted a technical error. However, it is
unlikely attribution of the “security measure” statement to Mr. Riley affected the
grand jury’s finding of probable cause given a defendant’s motive for possessing
a firearm is not an element of the offense charged. Even if it affected the grand
jury’s finding of probable cause, the petit jury returned a guilty verdict based on
sufficient evidence, as discussed in more detail later, so that “any error in the
grand jury proceeding connected with the charging decision was harmless beyond
a reasonable doubt.” Id. As to Mr. Riley’s right to fundamental fairness in the
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indictment process, nothing in the record suggests Detective Biggs or the
government intended to unfairly sway the grand jury or otherwise undermine his
defense by attributing the security measure statement to Mr. Riley, or that the
prosecution was aware of the error or “engaged in flagrant or egregious
misconduct which significantly infringed on the grand jury’s ability to exercise
independent judgment.” Id.For the same reason, even if we conclude presentation of Mr. Riley’s ten
prior felony convictions to the grand jury somehow constituted a technical or
procedural error affecting the grand jury’s finding of probable cause, the petit
jury returned a guilty verdict, making the error, if any, harmless. To the extent
Mr. Riley is claiming the fundamental fairness of the grand jury proceeding was
affected by the presentation of his ten prior felony convictions, he has not
convinced us the alleged error “substantially influenced the grand jury’s decision
to indict” or that there is “grave doubt that the decision to indict was free from
the substantial influence” of the alleged error. Bank of Nova Scotia, 487 U.S. at
256. Instead, evidence provided at the grand jury proceeding, including Mr.
Riley’s admission to Detective Biggs that he possessed the shotgun, patently
supported the charge. Having determined the error, if any, in listing the ten prior
convictions in the indictment was harmless, we need not address the
government’s argument that listing all ten convictions was legally necessary in
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the event Mr. Riley argued any of his prior convictions were deficient, expunged,
or his right to possess a firearm had been restored under state law.
Finally, a review of the record does not reveal any confusion by grand
jurors which would implicate the fundamental fairness of the grand jury
proceeding, or that in Detective Biggs answering a juror’s question on the
definition of aggravated battery the fundamental fairness of the process was
otherwise compromised. In sum, Mr. Riley has, at best, raised technical errors
regarding the evidence presented to the grand jury which we deem were harmless
and did not, in any way, affect the fundamental fairness of the grand jury
proceeding.
C. Old Chief Stipulation
In asserting his last issue on appeal, Mr. Riley contends “[t]he trial court
committed an ‘Old Chief’ violation by allowing, over defendant’s objection and
offer to stipulate to a prior felony conviction, ... [admission of] a complete journal
entry of [his] prior state court conviction of aggravated battery.” Apt. Br. at 9-10.
In a fairly rudimentary argument in support of this issue, Mr. Riley contends the
district court abused its discretion in refusing to accept his offered stipulation that
he had a prior felony conviction which carried a term of incarceration of more
than one year and, thereby, inappropriately allowed the jury to consider the
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complete journal entry of his 2000 Kansas felony conviction for aggravated
battery with a criminal history score of “B.”
In response, the government counters no “Old Chief” violation occurred
given it presented Mr. Riley with a reasonable and fair stipulation on his prior
conviction, which he unreasonably refused to sign. To the extent that any such
violation did occur, the government contends it was harmless because: (1) the
evidence overwhelmingly established Mr. Riley’s guilt; (2) the prior aggravated
felony conviction was meaningfully different from the instant offense so any
prejudice associated with knowing about the prior conviction was minimal; and
(3) his prior conviction “carried little weight” in comparison with the
“cornucopia” of other bad character evidence to which Mr. Riley did not object.
In considering the parties’ arguments, we recognize that in felon-in-
possession cases “evidence of the name or nature of [a] prior offense generally
carries a risk of unfair prejudice to the defendant” when tried by a jury for
violation of 18 U.S.C. § 922(g). Old Chief, 519 U.S. at 185. To avoid such a
risk, we have directed parties to make “use of a redacted record, stipulation,
affidavit, or other similar technique whereby the jury is informed only of the fact
of a prior felony conviction, but not of the nature or substance of the conviction.”
United States v. Wacker, 72 F.3d 1453, 1472 (10th Cir. 1995). Where a district
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court abuses its discretion in allowing evidence relating to the name or nature of
the prior offense, we look to see whether the error was harmless under Federal
Rule of Criminal Procedure 52(a). See Wilson, 107 F.3d at 785-86. “Because the
error in admitting the prior conviction evidence [is] not of constitutional
dimension, the error is considered harmless ‘unless it had a substantial influence
on the outcome or leaves one in grave doubt as to whether it had such effect.’”
Id. (quoting Wacker, 72 F.3d at 1473). In conducting a harmless error
examination, we review the record de novo to determine whether evidence of the
defendant’s “prior conviction had a substantial influence on the jury’s verdict in
the context of the entire case against him.” Wilson, 107 F.3d at 785-86 (quotation
marks and citation omitted).
In this case, Mr. Riley argues the state journal entry improperly identified
the name or nature of his prior offense by identifying it as an aggravated battery
with a criminal history score of “B,” causing unfair prejudice and an abuse of
discretion by the district court in admitting it into evidence before the petit jury.
However, we need not determine whether the district court abused its discretion
in admitting the state journal entry after the parties failed to agree on a stipulation
because a review of the record establishes that any error in its admission was
harmless.
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To begin, regardless of the journal entry’s reference to aggravated battery,
the record overwhelming establishes Mr. Riley had a prior felony conviction with
a sentence exceeding one year, as required for conviction under § 922(g). In
addition, overwhelming evidence established Mr. Riley possessed the firearm at
issue. Specifically, in his own statement and during a video-taped interview, Mr.
Riley admitted his involvement as a “doorman” at Mr. Bent’s residence as well as
the fact he lived in the basement of that residence, kept a shotgun with him in the
basement, and that the shotgun was a break-down twelve-gauge firearm. This
evidence was corroborated by Mr. Bent, who testified Mr. Riley moved into his
basement, acted as a doorman, and possessed a sawed-off, pump-action shotgun,
which he stated he gave Mr. Riley for the express purpose of using in his role as
doorman and which Mr. Riley kept in the basement. Both Mr. Bent’s and Mr.
Riley’s statements that Mr. Bent traded drugs for the gun were corroborated by
Mr. Freel, who testified he traded a “Remington pump” shotgun with a cut-off
barrel to Mr. Bent in exchange for drugs and money. In turn, it is clear the jury
rejected Mr. Riley’s self-serving and contradictory testimony that the shotgun was
in the basement but he never saw it, touched it, or possessed it.
At trial, Mr. Riley also admitted his prior conviction prohibited him from
possessing a firearm and that the firearm in question traveled through interstate
commerce. To further support the interstate nexus element, Agent Stukey
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testified the Remington pump-action shotgun, as described by these individuals,
would have been manufactured in Ilion, New York, traveled through interstate
commerce, and constituted a firearm for the purposes of 18 U.S.C. § 922(g).
Clearly, the evidence presented at trial overwhelmingly established the
elements necessary for Mr. Riley’s conviction for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). We therefore conclude identification
of Mr. Riley’s prior conviction as one for aggravated battery, with a criminal
history score of “B,” did not have a substantial influence on the petit jury’s
verdict when viewed in the context of the entirety of the evidence against him,
and therefore, the district court’s abuse of discretion, if any, in admitting the
journal entry into evidence was harmless. Having made this determination, it is
unnecessary to address the government’s additional arguments in support of Mr.
Riley’s conviction.
III. Conclusion
For the foregoing reasons, we AFFIRM Mr. Riley’s conviction.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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