          United States Court of Appeals
                        For the First Circuit

No. 03-2010

                      UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                            DELON J. ADAMS,
                      a/k/a JOSEPH DELEON ADAMS,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                       FOR THE DISTRICT OF MAINE

              [Hon. D. Brock Hornby, U.S. District Judge]


                                Before

                         Boudin, Chief Judge,

                      Cyr, Senior Circuit Judge,

                      and Howard, Circuit Judge.


     David J. Van Dyke, by appointment of the court, with whom
Berman & Simmons, P.A. was on brief for appellant.
     F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.



                            July 14, 2004
          BOUDIN, Chief Judge.     By a superceding indictment, a

federal grand jury charged Delon J. Adams with three crimes: one

count charged that as a felon he had unlawfully possessed a firearm

on March 18, 2002, in violation of 18 U.S.C. § 922(g)(1) (2000)

(count I); the other two counts charged him with using and carrying

a firearm in relation to drug trafficking crimes committed on two

different dates, February 6 and 12, 2002, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) (2000) (counts II and III).   Several motions to

suppress evidence were denied and a jury trial began on December 4,

2002.

          The parties stipulated to Adams’ prior felony conviction.

At trial, the government presented evidence that Adams had moved to

Maine and in June 2001 married a woman named Laurie; and that in

June 2001 she had purchased a handgun (a Sturm Ruger pistol) and in

October 2001 another (a Kel Tec).      Her attempted purchase of a

third gun, two days after the second, alerted the police who

stopped Adams driving away with Laurie and who, under his seat,

found both previously purchased guns.

          After this incident, Adams and Laurie separated and in

February 2002 Adams began to stay at least intermittently with a

woman named Amanda Whitmore and her boyfriend Christopher Wright at

their apartment in Biddeford, Maine.    Two witnesses testified that

Adams, 33 years old, sometimes slept in the bed of Amanda’s 15-

year-old sister, Chrissy, and that sometimes Adams and Chrissy


                                 -2-
shared a bed.   Chrissy testified that Adams had slept in the same

bed with her and, over a defense objection, that he had a sexual

relationship with her.

          In February 2002, Adams began a set of robberies with

Wright, aimed at relieving drug dealers of cash or drugs.      The

first robbery, of Jaime Morales, took place on February 6, 2002.

Wright testified that Adams had taken a gun into Morales’ motel

room, returned with marijuana and cash, and to Wright admitted

hitting Morales with a pistol. Morales (and his girlfriend who was

present) confirmed this story, adding that the pistol had a laser

sight (the Sturm Ruger had such a sight).

          There was also testimony from several witnesses including

Wright that on February 12, 2002, Adams, armed with a gun, had

robbed money and drugs from James Frazier.   Wright and still other

witnesses testified to a third, similar robbery in February 2002 in

which Adams took money but not drugs; this third incident was not

charged in the indictment, presumably because there were no drugs

and therefore nothing in which to ground a federal charge.

          On March 8, 2002, Wright was arrested for an unrelated

offense and offered up Adams.   Based on Wright’s disclosures and

other evidence, the police secured a warrant for the apartment

where Adams had been staying from time to time with Wright, Amanda

and Chrissy.    In the living room the police found the Kel Tec

pistol in a box, along with a plastic bag containing ammunition.


                                -3-
In Chrissy’s bedroom, they found a gun magazine on a television top

and, under Chrissy’s bed, a lockbox containing both ammunition and

a Sturm Ruger with a laser sight.

           At   trial,   Adams   himself   admitted   to   the   robberies

including the theft of drugs from Morales but denied that he had at

any time possessed the handgun.     His story, partly corroborated by

testimony from Adams’ girlfriend Sarah Blake, was that Laurie had

given the two guns to Sarah rather than Adams, and that he had told

her where to take them.    By this tactic, Adams’ asserted aim, naive

if true, was to avoid possessing or appearing to possess a weapon.1

           The jury convicted Adams of having had the Sturm Ruger in

his possession on March 18, 2002, when the police found it in the

apartment.   He was also convicted of using a firearm during and in

relation to the Morales robbery on February 6, 2002.         On the third

count, relating to the Frazier robbery on February 12, 2002, the

jury acquitted Adams. Adams was thereafter sentenced to 120 months

for firearms possession and 84 months (to be served consecutively)

for using the gun during the Morales drug robbery.               Adams now

appeals.




     1
      Apparently hoping to counter testimony that the box with the
Sturm Ruger was under his bed in the apartment, Adams also
testified that he could not get at the gun because (according to
Adams) Laurie alone had the key to the lockbox and (again according
to Adams), the alternative means of entry--a type of combination
lock--was broken.

                                   -4-
            Adams’ first argument on appeal is that the district

court committed error by allowing Chrissy to testify that she and

Adams had a sexual relationship.        He points out that he, a 33-year-

old   African   American     male,    was   said   to   have      an   interracial

relationship with a girl who was 15 at the time, and that a jury

might also have conceived that he was guilty of statutory rape.

The potential for prejudice, he says, substantially outweighed

whatever slight relevance the sexual relationship testimony might

have had.

            Evidence   must    be     excluded     where    its    relevance    is

"substantially outweighed" by its prejudicial effect, that is, by

its tendency to encourage the jury to decide the case on improper

grounds.    See Fed. R. Evid. 403 and advisory committee note; Old

Chief v. United States, 519 U.S. 172, 180 (1997).                 Probative value

and prejudicial effect are both matters of degree, United States v.

Li, 206 F.3d 78, 84 (1st Cir. 2000), and whether the government has

alternative means of effectively proving the same thing without the

prejudicial evidence is also pertinent. See Old Chief, 519 U.S. at

184; United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir.

2000).

            Trial   judges    enjoy    great     latitude    in     making   these

balancing decisions (often under time pressure) and are normally

overturned only where their judgment is egregiously wrong.                     See

United States v. Rodriguez, 162 F.3d 135, 142 (1st Cir. 1998).


                                      -5-
Many such decisions are simply close calls on which able judges may

differ.    The trial judge had the advantage in being on the spot and

having a better sense than the appellate court of the courtroom

dynamics in the case.        See Udemba v. Nicoli, 237 F.3d 8, 15-16 (1st

Cir. 2001); United States v. Rodriguez-Estrada, 877 F.2d 153, 156

(1st Cir. 1989).

            Generalities      about   deference    carry   us    only      to   the

starting line.      Here, the government says that the evidence of the

sexual relationship was relevant for two reasons.              The first is to

support a link in the chain of evidence connecting Adams with the

Sturm Ruger so as to prove his possession of the weapon pursuant to

count I.    Because the gun was in a lockbox under Chrissy’s bed, the

fact that Adams had a sexual relationship with Chrissy tended to

increase the likelihood that he spent time in that bed, supporting

the inference that he put the lockbox there and controlled it.

            There is one glitch. Several witnesses testified without

objection    that    Adams    slept   in    Chrissy's   bed,    so   the    added

information that they had a sexual relationship was of peculiarly

limited value.      The sexual relationship arguably made the same-bed

story more credible and perhaps increased the likelihood that he

viewed the bed as his own, but these reinforcing inferences–-

although making the evidence technically relevant--are hardly of

great value.




                                      -6-
             The second argument for relevance, and apparently the one

that prompted the ruling admitting the evidence (although we can

affirm the admission of evidence on any valid basis, see United

States v. Meserve, 271 F.3d 314, 327 (1st Cir. 2001)), requires

more background.     When Adams testified he gave a (in some measure)

more benign version of his encounter with Morales charged in count

II.       Adams said that he had gone to beat up Morales because

Morales, who worked in the same restaurant as Chrissy, had been

trying to give her drugs in order to seduce her and that he, Adams,

had been seeking to protect her.          Other defense cross-examination

sought to support this supposed motive for the assault.

             Arguing that the defense had sought to cast Adams as a

gentleman-protector of the innocent, the government then sought

leave to bring out through Wright (who had been cross-examined

about Adams’     aspersions   on   Morales)    that   Adams   had   a   sexual

relationship with Chrissy.         Thereafter, the government also got

confirming testimony as to the sexual relationship from Chrissy

herself.     In both cases, the defense objected to the testimony but

did not seek a limiting instruction as to the use of the testimony.

             Of course, the government was entitled to discredit

Adams’ story since he was denying that he had gone with the

intention of robbing Morales of drugs;2 but it is not clear why


      2
      Adams himself admitted taking drugs from Morales after the
assault (in which Adams denied carrying or using a gun); but Adams’
intent in advance to steal drugs, rather than taking them as an

                                    -7-
Adams’ sexual relationship with Chrissy would make it less likely

that he would be interested in attacking Morales as a would-be

seducer.   Perhaps the evidence had a slight tendency to counter

Adams’ insinuation that he had attacked Morales for high-minded

motives (he called himself her “guardian”) and so discredit further

Adams’ denial of a plan to steal drugs.

           Thus, we have two arguments for relevance; both may work

and can be treated as cumulative justification, but in neither is

the added information necessary or even very useful.        As for

prejudice, there was obviously some potential for prejudicing the

jury by telling them that Adams had seduced a 15-year-old girl, but

it should not be overstated.     The jury already knew from other

testimony that Adams slept in Chrissy’s bed and that they had

sometimes slept in the bed at the same time.     How much explicit

confirmation of the sexual relationship added may be open to

doubt.3




afterthought, was useful to the government’s effort to show that
the gun was employed "in relation to" a drug crime, namely, the
acquisition of drugs. See Smith v. United States, 508 U.S. 223,
238 (1993) (declaring that "in relation to" requires that the
firearm "have some purpose or effect with respect to the drug
trafficking crime" and that mere coincidental "presence or
involvement" is insufficient).
     3
      "Where the prejudicial fact has already come before the jury
through other proof, the cumulative impact of the proffered
evidence may be so slight as not to warrant exclusion." 22 Wright
& Graham, Federal Practice & Procedure § 5215 (1978 & Supp. 2004).
See, e.g., United States v. Sassanelli, 118 F.3d 495, 498 (6th Cir.
1997).

                                -8-
            This is a perfect example of why district judges have

latitude.      Viewed in the cold light of post-trial reflection, the

judges   on     this   panel      might   well     have    excluded    the   sexual

relationship evidence. But we have the advantage not only of ample

time to reflect but also of all of the trial testimony.                 It is much

easier now to put together all the pieces, see the full strength of

the government’s case, and reflect on just how little the disputed

testimony added.        In this case, the trial judge’s call, although

debatable, was not an egregious error.

              Even if we found a violation of Rule 403, we would regard

any error as harmless because this evidentiary ruling could not

have affected the outcome.            See United States v. McCann, 366 F.3d

46, 55-56 (1st Cir. 2004).              At least eight different witnesses

testified that they had seen Adams in possession of a gun, usually

one with a laser sight.           This made almost beside the point Adams’

already thin story that his wife and Sarah Blake alone controlled

the weapon while it resided in the lockbox under Chrissy’s bed.

The idea that the jury would ever have acquitted Adams on the

felon-in-possession charge is hard to take seriously.

              As for Adams using the gun during the drug robbery of

Morales, two witnesses (Morales and his girlfriend) testified to

seeing   him    use    it   and   a   third     (Wright)   testified    to   Adams’

admission that he used it.            And a bullet, shown by expert evidence

to have been earlier loaded in the Sturm Ruger, was found in the


                                          -9-
motel room–-supporting Morales’ claim that he had been hit with the

gun by Adams.   Three separate witnesses, the bullet, and Adams’

prior control of the gun made the conviction almost inevitable.

          Adams relies heavily upon United States v. Aguilar-

Aranceta, 58 F.3d 796 (1st Cir. 1995), and Gov't of the Virgin

Islands v. Archibald, 987 F.2d 180 (3d Cir. 1993).         Both decisions

reversed district court convictions where prejudicial evidence of

slight probative value was admitted.            But in both cases the

incremental   prejudicial   effect   of   the   disputed    evidence   was

stronger and in neither case does it appear that untainted evidence

of guilt virtually assured a conviction.

          Adams makes two further and quite separate claims on

appeal. One is that the felon-in-possession statute that underpins

his conviction on count I is unconstitutional.         Adams says that

because the statute applies only where the weapon traveled in

interstate commerce, he would have been safe in Maryland where the

gun was manufactured and was convicted here only because of the

“fortuity” that he lives in Maine.         This, he says, makes the

statute irrational under equal protection standards.

          In accord with several other circuits, see United States

v. Walker, 930 F.2d 789, 795 (10th Cir. 1991); United States v.

Wynde, 579 F.2d 1088, 1092-93 (8th Cir. 1978), we reject this

argument. The statute is not keyed to the defendant’s residence in

one state rather than another; it applies wherever the gun traveled


                                -10-
in interstate commerce. Adams could also have been convicted if he

lived in the state of manufacture so long as the gun had been

shipped out of the state and then brought back in.     About all one

can say is that a felon who lives in a gun manufacturing state has

a better chance of avoiding violation.

            Admittedly, odd results are possible: a felon who brought

a Sturm Ruger in Maryland and kept it there is not intrinsically

less dangerous than Adams.     But travel of the gun in interstate

commerce was the jurisdictional hook available to Congress and the

prohibition on felons having guns is rational. See Lewis v. United

States, 445 U.S. 55, 65-66 (1980) (discussing 18 U.S.C. App. §

1202(a)).    That Congress left unremedied like problems beyond its

ready grasp does not make the statute irrational under equal

protection standards.    See Packer Corp. v. Utah, 285 U.S. 105, 110

(1932) (Brandeis, J.); Dunagin v. City of Oxford, 718 F.2d 738, 753

(5th Cir. 1983).

            Adams’ other argument is that the fruits of the search of

the Whitmore-Wright apartment should have been suppressed for lack

of probable cause for the warrant.       Wright’s statements to the

officer, recounted in the warrant affidavit, described Adams’ role

in the set of robberies recounted above and identified just where

Adams’ Sturm Ruger was hidden in the apartment. The affidavit also

noted Adams’ prior criminal record, a report by Laurie to the

police that the guns had been taken, and information tending to


                                 -11-
confirm Adams’ participation in drug dealings (a police report) and

a drug-related robbery (a witness interviewed by the officer).

           This assemblage supplies several times over probable

cause to believe that evidence of a felony (the gun) would be found

in   the   apartment.   Adams’    attacks   on    details   and   small

discrepancies are not worth discussion.          See United States v.

Schaefer, 87 F.3d 562, 567 (1st Cir. 1996).           He has received

vigorous and thorough assistance of counsel on this appeal, and no

judge should begrudge the time needed to consider arguments by a

man now serving a sentence of 204 months.   That does not mean that

proportionate time is needed to explain why the weakest of the

arguments fails.

           Affirmed.




                                 -12-
