In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 13-3895

UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                  v.


JAMES BOWLING,
                                                Defendant-Appellant.

         Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
           No. 12-CR-00149— Larry J. McKinney, Judge.


 ARGUED SEPTEMBER 26, 2014 — DECIDED NOVEMBER 7, 2014


   Before FLAUM, MANION, and KANNE, Circuit Judges.
    MANION, Circuit Judge. James Bowling was convicted of two
counts of making false statements in connection with the
purchase of a firearm under 18 U.S.C. § 922(a)(6). Bowling
argues that he deserves a new trial because the trial court made
three errors: it prevented him from asserting a mistake-of-fact
defense; it refused to require the government to enter into a
stipulation; and, it failed to submit the issue of materiality to
the jury. We hold that the trial court violated Bowling’s due
2                                                  No. 13-3895

process right to present a mistake-of-fact defense and remand
for a new trial.
                        I. Background
    On December 15, 2011, a prosecutor in Rush County,
Indiana charged James Bowling with strangulation, battery,
and two counts of contributing to the delinquency of a minor.
The strangulation charge constituted a felony, while the others
were misdemeanors. Bowling made his initial appearance on
February 9, 2012, where he was informed that he faced
potential imprisonment exceeding one year for the strangula-
tion charge as it was a Class D felony.
    Bowling’s trial was originally set for the beginning of July
2012, but did not proceed as scheduled. At some point in the
first half of July, the matter was continued when the prosecutor
extended a plea offer to Bowling’s counsel to dismiss the
felony count against Bowling in exchange for a plea of guilty
to misdemeanor offenses. Approximately three months later,
on October 23, 2012, Bowling pleaded guilty to disorderly
conduct—a new misdemeanor charge—in exchange for the
dismissal of all other state charges against him.
    On July 14, 2012, prior to the guilty plea and while the
charges were still pending, Bowling attempted to purchase a
firearm from Fields Outdoor Adventures (“Fields”), a federally
licensed firearms dealer in Rushville, Indiana. Per federal
regulations, Bowling was required to fill out ATF Form 4473
(“Form 4473") before Fields could transfer possession of the
firearm. The trial focused on two answers provided by Bowl-
ing. First, he answered “no” to question 11(b), which asked:
“Are you under indictment or information in any court for a
No. 13-3895                                                            3

felony, or for any other crime, for which the judge could
imprison you for more than one year?” Second, in the “Current
Residence Address” block, Bowling provided a former address
that was listed on his driver’s license and where he maintained
an office, but no longer resided. Before completing the paper-
work, Bowling certified that his answers were correct.
   Based upon these answers, the government filed a super-
seding indictment on June 4, 2013, charging Bowling with two
counts of making a false statement in connection with the
acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6).1
Prior to trial, Bowling filed a motion in limine to preclude the
government from introducing the charging information and
the transcript of the February 9, 2012 initial hearing. Instead,
Bowling offered the following stipulation:
      James Bowling stipulates that on February 9, 2012, he
      was formally advised that he had been charged under an
      Information with one count of a D felony that carried a
      possible sentence of 6 months to three years imprisonment
      as well as three misdemeanors in the case of State of
      Indiana v. James Bowling, Cause Number 70D01-1112-
      FD-807, in Rush County, Indiana.
The government rejected the stipulation because it did not
stipulate that Bowling had knowledge of the felony charges
pending against him at the time that he attempted to purchase
the handgun, a required element under the statute. At the


1
  The government also charged Bowling with receipt of a firearm while
under indictment in violation of 18 U.S.C. § 922(n), but moved to dismiss
this charge prior to trial.
4                                                   No. 13-3895

hearing on the motion in limine, Bowling offered to accept a
stipulation that he knew he was under felony information at
the time of the initial hearing, but would not go so far as to
admit that he knew that the felony was still pending at the later
date when he filled out Form 4473. Bowling also argued that,
if evidence regarding the charges for strangulation or contrib-
uting to a delinquency of a minor were introduced, he should
be able to rebut such evidence with evidence that he was never
convicted of such charges, and that the sole conviction to arise
from the charges was a misdemeanor for disorderly conduct.
    The court rejected Bowling’s arguments. At trial, the
government introduced a recording of the initial hearing,
which included allegations that Bowling strangled a minor by
“wrapping his arm around the neck and cutting off the airflow
of ‘R.A.S.’ with a birthdate of, July 5, 1995.” (Case No.
1:12cv149-LJM: Tr. at 17; ECF Doc. 76-2 at 5-6.) Additionally,
the jury heard allegations that Bowling induced the minor “to
consume alcoholic beverages in his home.” 

    The Rush County Prosecutor, Phillip Caviness (“county
prosecutor”), testified for the government that he drafted the
charging information against Bowling, including the felony
charge for strangulation and the misdemeanor charges of
contributing to the delinquency of a minor. Finally, he testified
that all of the charges were pending against Bowling on July
14, 2012 when Bowling filled out Form 4473.
    On cross-examination, Bowling’s counsel sought to ques-
tion the county prosecutor about the plea offer to dismiss the
felony count. The government objected that this testimony was
irrelevant. After the trial judge sustained the government’s
No. 13-3895                                                   5

objection, Bowling’s counsel made an offer of proof in which
the county prosecutor acknowledged that the trial in Bowling’s
state case had been scheduled for early July and that he had
communicated a plea offer to Bowling’s counsel whereby the
state would dismiss the felony count in exchange for Bowling
pleading guilty to a misdemeanor offense. The jury never
heard this testimony.
    The second count charged in the information addressed
Bowling’s false statement about his residential address. During
closing argument, defense counsel argued that Bowling did not
intend to deceive Fields by supplying the address listed on his
driver’s license, as he maintained an office at this address and
received bills and other mail there. Further, the proximity of
the given address to Bowling’s residence (two blocks apart),
and the small, rural nature of the town of Manilla, Indiana
(population 267 according to the 2010 census), meant that
Bowling was neither intending, nor likely, to deceive Fields
regarding his actual residence.
    Perhaps anticipating an argument from the defense that the
false address provided by Bowling was not material, the
government sought an instruction that a false statement was
material as a matter of law. Noting that it was unusual for a
“trial judge in a jury case to instruct the jury that one of the
elements is good … ,” (Tr. at 164), the judge ultimately gave an
instruction that: “A false street address is material to the
lawfulness of the sale of a firearm.”
    The jury convicted Bowling on both counts and he was
sentenced to twenty-one months’ imprisonment on each count,
to be served concurrently. Bowling appeals.
6                                                      No. 13-3895

                           II. Analysis
    A. Mistake-of-fact defense
    We review a district court’s ruling on the admission or
exclusion of evidence for abuse of discretion. United States v.
Jumper, 

, 703 (7th Cir. 2007). For a question of law,
we review de novo whether an evidentiary ruling had the effect
of infringing upon a defendant’s constitutional rights. 

find a constitutional error in an evidentiary ruling, we reverse
unless the error is harmless. Chapman v. California, 

,
22 (1967).
    To sustain a conviction that a defendant violated
§ 922(a)(6), the government must establish (1) that the defen-
dant knowingly made a false statement to a licensed firearms
dealer, (2) that the false statement was made in acquisition of
a firearm, and (3) that the false statement was intended or
likely to deceive the firearms dealer with respect to any fact
material to the lawfulness of the sale of the firearm. See United
States v. Dillon, 

, 759 (7th Cir. 1998).
    Where the intent of the accused is an ingredient of the
crime, its existence is a question of fact, which must be submit-
ted to a jury. Morissette v. United States, 

, 274 (1952).
A mistake-of-fact defense relieves a person of criminal liability
where a reasonable mistake of certain facts means that the
person did not have the culpable mental state required for the
commission of the offense. 1 WHARTON’S CRIMINAL LAW § 78
(15th ed.). To that end, § 922(a)(6) requires that the government
establish that the defendant acted “knowingly,” meaning that
Bowling knew that his statement was false. See Bryan v. United
States, 

, 193 (1998) (holding that, unless otherwise
No. 13-3895                                                    7

directed by the statute,“the term ‘knowingly’ merely requires
proof of knowledge of the facts that constitute the offense.”).
    Also, § 922(a)(6) requires the government to prove either
that the defendant made the statement with the intent to
deceive the firearms dealer, or that the statement was of such
nature that it was likely to deceive the dealer. See 

. Both the knowledge and specific intent elements
require evidence relating to the state of mind of the defendant;
more significantly, both may be negated by evidence that the
defendant labored under an honest misunderstanding of the
facts. See 

(holding that “the knowledge
requisite to knowing violation of a statute is factual knowledge
as distinguished from knowledge of the law.”) (internal
quotation omitted). In either case, a mistake of fact on the part
of a defendant— determined by the jury to be reasonable—can
serve as a full defense to criminal liability.
    At trial, Bowling’s counsel sought to cross-examine the
county prosecutor about whether he had communicated a plea
offer before July 14, 2012, when Bowling filled out Form 4473.
Although a witness for the government, the testimony of the
county prosecutor presented facts relevant to a possible
mistake-of-fact defense. Bowling did not contest the fact that,
as of the initial hearing, he knew that he was under criminal
information for a felony. His only possible defense to this
charge was that some intervening event—in this case, a plea
offer—caused Bowling to believe that he was no longer under
a felony information, and that this mistaken belief was reason-
able under the circumstances.
8                                                   No. 13-3895

    The government contends that the testimony from the
prosecutor about whether he made a plea offer was irrelevant,
or, if relevant, it was not necessary to obtain this testimony
from him as only Bowling could testify about what he knew
when filled out the form. We disagree. The county prosecutor’s
testimony presents a possible defense and thus is clearly
relevant. See Fed. R. Evid. 401; Daubert v. Merrell Dow
Pharmaceuticals, Inc., 

, 587 (1993) (holding that the
basic standard of relevance under Rule 401 is “a liberal one.”).
Bowling does not have to testify and should not be foreclosed
from cross-examining the county prosecutor simply because he
could personally say what he knew. Knowledge, or its absence,
may be proved by all the facts and circumstances of the case.
See United States v. Craig, 

, 895 (7th Cir. 1999).
Where cross-examination of a witness produces facts necessary
to establishing a defense, the defendant may choose to rely on
that testimony without having to testify himself. This is a
strategic determination to be made by the defendant and his
counsel. Here, the record suggests that only three persons
could have testified concerning whether a plea offer had been
communicated to Bowling: the county prosecutor, Bowling’s
state counsel, and Bowling. Obviously, neither Bowling’s
counsel, nor Bowling, should have to testify where the prose-
cutor is available as a witness. A jury is most likely to regard
his testimony as objective as he does not have a personal
interest in the outcome of Bowling’s federal case. Clearly the
county prosecutor was the logical source for such testimony.
    “The rights to confront and cross-examine witnesses and
call witnesses in one’s own behalf have long been recognized
as essential to due process.” Chambers v. Mississippi, 410 U.S.
No. 13-3895                                                      9

284, 294 (1973). Among Bowling’s due process rights is the
right to cross-examine the county prosecutor (or to call him as
a defense witness) in order to obtain his testimony concerning
any facts relevant to the case. Having made the requisite
showing, Bowling had the right to develop the mistake-of-fact
defense and to present it to a jury. A “defendant in a criminal
case is entitled to have the jury consider any theory of defense
which is supported by law and which has some foundation in
the evidence, however tenuous.” United States v. Grimes, 

, 1378 (7th Cir. 1969). For these reasons, the trial court
infringed upon Bowling’s constitutional rights in preventing
him from developing a mistake-of-fact defense.
    The Supreme Court recognizes two classes of constitutional
violations that occur during a criminal proceeding: trial errors
and structural defects. Arizona v. Fulminante, 

,
307–10 (1991). A trial error, such as the one here, is an error
that may “be quantitatively assessed in the context of other
evidence presented,” and is subject to harmless-error analysis.

The test for whether an error is harmless is
whether it appears “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.”

. An alternative wording for this
inquiry is whether it is “clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent
the error.” Kamlager v. Pollard, 

, 1016 (7th Cir.
2013) (quoting Neder v. United States, 

, 18 (1999)).
    The government contends that the exclusion of the relevant
testimony from the county prosecutor was harmless as there
had been no other testimony that Bowling was aware of the
10                                                    No. 13-3895

existence of a plea offer. Still, Bowling had satisfied the low
threshold to establish a foundation for the mistake-of-fact
defense. Detrimental reliance on second-hand information may
be a weak defense, but it is one recognized by law; given the
facts of this case, it appears to be the only defense Bowling had
for one of the counts. For this reason, we cannot say beyond a
reasonable doubt that a jury would still have found him guilty
had the defense been able to cross-examine the county prosecu-
tor and develop this defense in full.
     B. Stipulation
    In evaluating whether the district court also erred by not
requiring the government to enter into a stipulation, our
analysis is guided by two precedential decisions. First, in Old
Chief v. United States, the Supreme Court reviewed a conviction
under 18 U.S.C. § 922(g), which prohibits possession of a
firearm by anyone with a prior felony conviction. 

(1997). In Old Chief, the defendant had a prior felony conviction
for an assault causing serious bodily injury. Rather than risk
having the jury hear facts likely to prejudice them against the
defendant, the defendant offered to concede, via stipulation,
his status as a felon during the relevant period. 

The government refused, and the trial and appellate courts
agreed. 

The Supreme Court did not. Instead, it held
it to be an abuse of discretion for a trial court to allow the
government to establish a predicate felony by means of
unfairly prejudicial evidence, where the defendant has offered
a stipulation that serves as the equivalent to such evidence.
   In United States v. Phillippi, 

(7th Cir. 2006), we
addressed whether the government was required to enter into
No. 13-3895                                                      11

a similar stipulation under 18 U.S.C. § 922(a)(6). In Phillippi, the
defendant purchased a gun while under criminal information
for multiple felonies. He offered to stipulate to the existence of
one criminal information to preclude the government from
introducing relevant testimony from the initial hearing.
Significantly, however, the defendant in Phillippi refused to
stipulate that he knew that he could be imprisoned for more
than one year as such stipulation would amount to a guilty
plea. Absent a stipulation, the government elicited trial
testimony from court reporters who read into the record
portions of the transcripts involving colloquies on two of the
felony charges. We affirmed the decision to allow the govern-
ment to introduce evidence related to the felony charges, and
distinguished the facts from those in Old Chief, which the
Supreme Court deliberately limited to cases involving proof of
felon status. 

. As § 922(a)(6) requires
proof that the defendant “knowingly” made a false statement
to a licensed firearms dealer, it contains an “additional
purpose” beyond merely proving the status of the defendant
as required under § 922(g). 

in Phillippi directs a similar result in this case.
Like Phillippi, Bowling is willing to concede that he was under
a criminal information, but not that he was aware of this when
he filled out Form 4473. The factual distinctions between the
cases are of no moment (Phillippi contended that it was never
communicated to him that the charges were felonies, while
Bowling maintained that later plea discussions cast doubt upon
his knowledge). Where the defendant claims a lack of knowl-
edge that he had been charged with a felony, it is only proper
to allow the government to offer those facts relevant to
12                                                  No. 13-3895

establish that the defendant had or should have had such
knowledge. Because Bowling’s knowledge (or lack thereof)
was directly in question, the trial judge did not abuse his
discretion in allowing the government to prove the underlying
felony charge rather than stipulate to it.
    To recognize, however, that Old Chief is not an exact fit for
§ 922(a)(6) is not to say that it offers no guidance at all. Like
former convictions, felony indictments (or informations)
present a high risk of unfair prejudice to the defendant. See Old

(“Although … ‘propensity evidence’ is
relevant, the risk that a jury will convict for crimes other than
those charged—or that, uncertain of guilt, it will convict
anyway because a bad person deserves punishment—creates
a prejudicial effect that outweighs ordinary relevance.”)
(internal quotation omitted). This means that a court should
make every effort to redact or exclude any information not
relevant to the charge for which the defendant stands trial. To
allow the government to offer evidence to prove the predicate
felony charges does not dispense the court from its gate-
keeping function to exclude irrelevant evidence that is of
negligible probative value and is unfairly prejudicial to the
defendant.
    For this reason, we see no reason why evidence that
Bowling strangled or gave alcohol to a minor should have been
presented to the jury. “The amount of prejudice that is accept-
able varies according to the amount of probative value the
evidence possesses. ‘[T]he more probative the evidence, the
more the court will tolerate some risk of prejudice, while less
probative evidence will be received only if the risk of prejudice
is more remote.” United States v. Boros, 

, 909 (7th
No. 13-3895                                                     13

Cir. 2012) (quoting United States v. Vargas, 

, 557 (7th
Cir. 2008)). Although district courts have “wide discretion in
admitting and excluding evidence,” Thompson v. City of Chicago,

, 971 (7th Cir. 2013), this discretion does not extend
so far as to allow for the inclusion of prejudicial evidence
having little or no bearing on any fact of consequence to the
case. At a minimum, having allowed the jury to hear such
evidence, the court should have permitted the defense to lessen
the sting by presenting evidence that Bowling eventually
pleaded to a misdemeanor crime for disturbing the peace.
   C. Materiality of false address
    Because we remand this case on other grounds, we need
not determine whether the trial court erred in instructing the
jury that a false address was material as a matter of law. We
write only to sort out potential confusion in light of the
government’s arguments at trial (and the district court’s
reliance on those arguments) about the implication of our
holding in United States v. Queen, 

(7th Cir. 2006).
In that case, the defendant argued that a false address was not
sufficient to support an indictment as it was, per se, not
material unless the government first proved the buyer was not
a resident of same state as the dealer. The trial judge disagreed
and found the false address to be material. We affirmed. In so
holding, we recognized that a false address was material in
that case, and that it was sufficient to support an indictment
irrespective of the state of residence of the buyer. Our holding
never went so far as to declare that providing a false address,
in every case, is material as a matter of law. 

14                                                No. 13-3895

                       III. Conclusion
    Because the trial court infringed upon Bowling’s right to
solicit testimony relevant to a mistake-of-fact defense, and
because this error was not harmless, we remand this case for a
new trial.