Filed: Jul. 31, 1997
Latest Update: Feb. 22, 2020
Summary: Defendant, Appellant.Assistant United States Attorney, on brief for appellee.evidence must be excluded.district court's on-the-spot judgment concerning the . , Testimony About Jordan's Gun Possession in March 1994.792 F.2d 1299, 1306 (5th Cir.its probative value.403(b), any error was harmless.
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1377
UNITED STATES,
Appellee,
v.
SAMUEL JORDAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
Diana L. Maldonado on brief for appellant.
Donald
K.
Stern, United States Attorney, and Ben
T.
Clements,
Assistant United States Attorney, on brief for appellee.
July 31, 1997
Per
Curiam. Appellant, Samuel Jordan, appeals his
conviction after a jury trial of being a felon in possession of
a firearm, in violation of 18 U.S.C. S922(g)(1). He argues
that the district court committed prejudicial error in
admitting certain evidence of prior bad acts, in violation of
Fed. R. Evid. 403 and 404(b).
"Determining the admissibility of evidence of other
(uncharged) bad acts requires a bifurcated inquiry. First, the
district court must be satisfied that the proffered material
has 'special' probative value, that is, that the evidence is
relevant not to show a defendant's propensity toward evil, but
to prove some controverted issue in the case. . . . Once shown
to be relevant in the requisite sense, the evidence must pass
still another sentry, embodied in Fed. R. Evid. 403. If the
evidence brings unwanted baggage, say, unfair prejudice or a
cognizable risk of confusing the jury, and if the baggage's
weight substantially overbalances any probative value, then the
evidence must be excluded." United
States v. Rodriguez-
Estrada, 877 F.2d 153, 155 (1st Cir. 1989).
This court has "consistently recognized . . . that the
district courts have broad discretion as to discerning the
relevancy
vel
non of evidence, and as to gauging the probative
value versus prejudicial impact calculus." United
States v.
Tierney, 760 F.2d 382, 387 (1st Cir. 1985). "Only rarely --
and in extraordinarily compelling circumstances -- will [this
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court], from the vista of a cold appellate record, reverse a
district court's on-the-spot judgment concerning the . . .
weighing of probative value and unfair effect." Freeman v.
Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir. 1988).
1.
Testimony About Jordan's Gun Possession in March 1994.
The first error alleged by Jordan is the district court's
admission of FBI Agent Barry O'Neill's testimony that in the
context of a conversation with Jordan in February 1995,
concerning a bank robbery that took place in March 1994, Jordan
stated that "Guns is my trade" and that in March 1994, he "had
a whole bag full of guns," most of which were semi-automatics.
Based upon our review of the record, including the trial
transcript, we agree with the district court that Jordan's
possession of other semi-automatic guns in March 1994, is of
special relevance to a material issue raised by this case:
whether he possessed the semiautomatic gun seized from the
scene of the crime on March 5, 1994. See United
States v.
Rose, 104 F.3d 1408, 1413 (1st Cir.),
cert. denied
S.Ct. ,
1997 WL 251219, 65 USLW 3798 (1997) (reasoning that "[i]tems
linking Rose to pistols tended to corroborate [government
witness'] testimony that Rose was a participant in the
conspiracy and had possessed the [pistol in question]").
Although the evidence is undeniably prejudicial, the
district court did not abuse its discretion in gauging that the
prejudicial impact of the evidence, which was reduced by the
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court's limiting instructions, did not outweigh its probative
value. "[I]t must be remembered that the trial judge is
Johnny-on-the-spot; he has savored the full taste of the fray,
and his considerable discretion must be respected so long as he
does not stray entirely beyond the pale."
Tierney, 760 F.2d at
388.
2. Testimony
that
Jordan
Made
Statements
While
Being
Questioned
About
His
Involvement
in
a
Bank
Robbery
that
Occurred in March 1994.
The district court's determination that this evidence was
relevant because it provided a context for Jordan's statements
regarding his possession of semi-automatic guns in March 1994,
was not an abuse of discretion. See United
States v. Davis,
792 F.2d 1299, 1306 (5th Cir. 1986) (upholding admission of
evidence that investigation of defendant initiated with a
search for a machine gun as "particularly relevant as placing
in context" and making more believable defendant's statements
that other guns that he was charged with possessing belonged to
him).
Nor did the district court err in calculating that the
prejudicial impact of the "context" evidence did not outweigh
its probative value. While testimony linking Jordan to a bank
robbery has significant potential for prejudicial impact, that
potential was defused in several ways. First, the government's
line of questioning was narrowly tailored to minimize the risk
-4-
of improper inferences. Second, the court's limiting
instructions, given directly after the testimony, further
minimized the risk of unfair prejudice.
3. Testimony
About
Jordan's
Statement
that
the
Gun
was
Stolen.
The district court admitted this evidence on the ground
that it was relevant to proof of the knowledge element of the
charged offense. Jordan argues that knowledge was not a
controverted issue in this case. We need not resolve that
question. Even if we assume (without deciding) that this
evidence should not have been admitted under Fed. R. Evid.
403(b), any error was harmless. Based upon our careful review
of the record, "it is highly probable that the error [,if any,]
did not contribute to the verdict." Rose, 104 F.3d at 1414.
Appellant's conviction is affirmed. See Loc. R. 27.1.
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