United States v. Leroy Harris, Jr.

BEAM, Circuit Judge.

LeRoy Harris challenges his conviction for being a felon in possession of a firearm, arguing that the jury should not have been informed of the number and nature of his multiple prior felonies because he offered to stipulate to his felon status. Because we find that any error was harmless, we affirm.

1. BACKGROUND

While executing a valid search warrant for a Cape Girardeau, Missouri, residence, police seized a Revelation twelve-gauge shotgun. LeRoy Harris, whom police believed resided at the house, was charged with being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment listed six predicate felonies: carnal knowledge of a female under sixteen, attempt to burn property, rape, forgery, and two convictions for breaking and entering. Harris entered a plea of not guilty and was tried by a jury. Before trial, Harris offered to stipulate to his felon status, and moved in limine to exclude reference to the name and nature of his convictions, or, in the alternative, to limit the government to proving only the forgery conviction. The district court¹ ruled that evidence of the sex crimes would be unduly prejudicial, but denied Harris’s motion as to the other convictions. In its case in chief, the government offered certified copies of the sentence and judgment forms for four of Harris’s prior felonies. The government also presented the testimony of three police officers stating that Harris had told them that the gun was his; a witness who reported that she had observed her husband trade the gun to Harris in exchange for drugs; and evidence that Harris had listed this address as his residence on his driver’s license, hunting license, and automobile registration. In defense, Harris testified that he did not actually reside in the house, but simply stayed there several nights per week and that, in any event, the gun was not his. The jury convicted Harris, who appeals.

II. DISCUSSION

Harris argues that the court’s refusal to accept his offer to stipulate violates the Supreme Court’s directive in Old Chief v. United States, — U.S. -, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).² In Old Chief, the Court held that when a defendant makes an offer to stipulate which is specific enough to establish felon status for purposes of 922(g), and when “the prior conviction is for an offense likely to support conviction on some improper ground, ... the risk of unfair prejudice ... substantially outweigh[s] the discounted probative value of the record of conviction.” Id. at -, 117 S.Ct. at 655.

Although the parties argue about whether Harris’s offer to stipulate was sufficient to trigger Old Chief, we do not need to reach that issue. To be eligible for relief under Old Chief, a defendant must establish that the asserted error was not harmless.³ United States v. Blake, 107 F.3d 651, 653 (8th Cir.1997). See also, Old Chief, — U.S. at - n. 11, 117 S.Ct. at 656 n. 11 (expressing no opinion on whether failure to exclude record of conviction was harmless). Harris has not made this showing. When evidence of a defendant’s guilt is overwhelming, the Old Chief violation is harmless. See, e.g., Redding v. United States, 105 F.3d 1254, 1255 (8th Cir.1997) (habeas petitioner not entitled to relief under Old Chief given the overwhelming evidence of guilt). Here, the testimony of the police officers, to whom Harris admitted owning the gun, and the testimony of the witness who saw Harris purchase the gun, in combination with other evidence that Harris lived at the house, was overwhelming evidence that Harris did, in fact, possess the weapon. Thus, we find any error in rejecting Harris’s offer to stipulate to felon status was harmless.

III. CONCLUSION

We have carefully considered the remainder of Harris’s arguments and find them to be without merit. The judgment of the district court is affirmed.

1 . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.

2 . Old Chief had been argued at the time of Harris’s trial, and was decided after his conviction, but before his sentencing.

3 . Contrary to the dissent’s assertion, it is Harris, not the government, who bears the burden of establishing that this nonconstitulional error was harmful. The Court in Old Chief held that the district court had violated Federal Rule of Evidence 403, not any provision of the United States Constitution. Old Chief, - U.S. at - - -, 117 S.Ct. at 652-55. See also, United States v. Moore, 129 F.3d 989, 990 (8th Cir.1997) (Old Chief violation is nonconstitutional evidentiary error). Thus, the appropriate standard for ascertaining harmfulness is Federal Rule of Criminal Procedure 52(a). Under Rule 52(a) ”[t]he party asserting the error has the burden of demonstrating that his or her substantial rights were affected.” Moore, 129 f.3d 990. The dissent's reliance on Sullivan v. Louisiana, 508 U.S. 275, 278-79, 113 S.Ct. 2078, 2080-81, 124 L.Ed.2d 182 (1993) and Seiler v. Thalacker, 101 F.3d 536, 539-40 (8th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1447, 137 L.Ed.2d 552 (1997) is misplaced because the appellees in these cases alleged error of constitutional magnitude. The only other case cited by the dissent on this point is a Ninth Circuit opinion that asserts, without cited authority, that the government has the burden of establishing harmlessness on direct appeal. United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997). With due respect to our sister circuit, we are bound by a long line of precedents to the contrary. See, e.g., Moore, 129 F.3d at 990 (parly asserting harmful error has burden of proof); Lowe v. United States, 389 F.2d 108, 112 (8th Cir.1968) (defendant claiming error in reception of evidence has burden to show prejudice).