                          United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 97-1812
                                      ___________

United States of America,                  *
                                           *
             Appellee,                     *
                                           * Appeal from the United States District
      v.                                   * Court for the Eastern District of Missouri.
                                           *
LeRoy Harris, Jr.,                         *
                                           *
             Appellant.                    *
                                      ___________

                                  Submitted: September 8, 1997
                                      Filed: December 10, 1997
                                    ___________

Before RICHARD S. ARNOLD, Chief Judge, HEANEY and BEAM, Circuit Judges.
                            ___________

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.

I.    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, 117 S. Ct. 644 (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, . . .

       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.

                                             -2-
the risk of unfair prejudice . . . substantially outweigh[s] the discounted probative value
of the record of conviction." Id. 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, 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

      3
        Contrary to the dissent's assertion, it is Harris, not the government, who bears
the burden of establishing that this nonconstitutional 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, 117 S. Ct. at 652-55. See
also, United States v. Moore, No. 97-1351, 1997 WL 694568 at *2 (8th Cir. Nov. 4,
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, 1997 WL
694568 at *2. The dissent's reliance on Sullivan v. Louisiana, 508 U.S. 275, 278-79
(1993) and Seiler v. Thalacker, 101 F.3d 536, 539-40 (8th Cir. 1996), cert. denied, 117
S. Ct. 1447 (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, 1997 WL 694568 at *2
(party 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).

                                           -3-
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.

HEANEY, Circuit Judge, dissenting.

        I respectfully dissent. The trial court erred by admitting evidence of Harris’s
prior felony convictions under the Supreme Court’s ruling in Old Chief v. United States,
117 S. Ct. 644, 652 (1991). Thus, his conviction can only be affirmed if the government
carried its burden of showing that the error infecting the trial was harmless. I do not
believe that the government has carried its burden.

       We must reverse a conviction where the jury might have been “substantially
swayed” by improperly admitted evidence. United States v. Davis, 936 F.2d 352, 355
(8th Cir. 1991) (citation omitted). Old Chief dictates that the risk of such prejudice is
“substantial whenever the official record offered by the government would be arresting
enough to lure a juror into a sequence of bad character reasoning.” Id. at 652. There
is little doubt that the introduction of four of Harris’s felony convictions could lead the
jury to do this. See United States v. Blake, 107 F.3d 621, 652-53 (8th Cir. 1997)
(considering evidence of four prior felony convictions with other errors in reversing
conviction). Here the government’s case was based solely on circumstantial evidence




                                           -4-
and controverted testimony.4 Thus, exposing the jury to the number and type of Harris’s
prior convictions was arresting enough to lure jurors into a sequence of bad character
reasoning. See Old Chief, 117 S. Ct. at 652.

      I am also in complete disagreement with the majority’s assertion that Harris
“must establish that the asserted error was not harmless.” Ante at 3 (citing Blake, 107
F.3d at 653). The court’s citation to Blake to support its statement is misplaced because
that case states only that “[i]n determining whether evidentiary rule violations require
reversal the Court applies the Fed. R. Crim. P. 52(a) harmless error analysis.” Blake,
107 F.3d at 653 (citation omitted). Blake makes no statement whatsoever that a
defendant has the burden to show an error was not harmless under Rule 52(a).

       The court further attempts to support its contention by citing two cases, neither
of which stand for the proposition offered. In United States v. Moore, No. 97-1351,
1997 WL 694568 (8th Cir. Nov. 4, 1997), this court properly stated that a party
asserting a nonconstitutional error has the burden of demonstrating that his substantial
rights were affected by the error. Id. at *2. Stating that a defendant must show the error
to have affected “substantial rights” is far afield from requiring the defendant to carry
the burden to show the effect to be “not harmless” under Rule 52(a).




      4
        The evidence upon which the government relied to convict Harris consisted of:
controverted testimony of the officers that Harris admitted ownership and of a woman
who claimed she saw Harris purchase the gun; testimony that Harris periodically lived
at the house where police found the gun; and the fact that Harris had a hunting license.
The record shows no evidence of Harris’s fingerprints on the weapon, see United
States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (considering a lack of
fingerprints on a weapon as a significant factor in determining whether evidence of
possession of a weapon was overwhelming), nor did any of the officers see Harris in
possession of the weapon.

                                           -5-
        In Lowe v. United States, 389 F.2d 108 (8th Cir. 1968), we stated that a
defendant asserting error has a burden “to show both error and prejudice.” Id. at 112
(quoting Thomas v. United States 281 F.2d 132, 136 (8th Cir. 1960)).5 We clarified that
statement by explaining that an evidentiary error that would warrant a reversal in a close
case “may be disregarded as harmless where the evidence of guilt is strong.” Id.
(citation omitted). Lowe simply requires that a defendant asserting error show that the
trial court erred in admitting evidence and that the evidence would tend to prejudice the
fact finder against the defendant before requiring the reviewing court to consider
whether the error was harmless. Neither Moore nor Lowe places the burden on the
defendant to show the error was not harmless where the defendant claims
nonconstitutional error.

      In Darden v. Wainwright, Justice Blackmun stated that:

             Every harmless-error standard that [the Supreme] Court has
             employed . . . shares two salient features. First, once serious error
             has been identified, the burden shifts to the beneficiary of the error
             to show that the conviction was not tainted. Second, . . . the
             question before a reviewing court is never whether the evidence
             would have been sufficient to justify conviction, absent an error,
             but, rather, whether the error undermines its confidence in the
             outcome of the proceeding to an unacceptable degree.




      5
        Despite our citation of Thomas indicating that a defendant must show error and
“prejudice,” it is clear that the burden of persuasion regarding prejudice where the trial
court commits nonconstitutional error rests with the government. See United States v.
Olano, 507 U.S. 725, 734-35 (1993) (“harmless error” inquiry under Rule 52(a) differs
from “plain error” inquiry under Rule 52(b) in that defendant bears the burden of
persuasion with respect to prejudice in claim under plain error rule).

                                           -6-
477 U.S. 168, 197 (1986) (Blackmun, J., dissenting) (citations omitted). This statement
is consistent with Kotteakos v. United States, 328 U.S. 750 (1945), where the Supreme
Court held that, even where the claimed error is nonconstitutional in nature, if the
error’s “natural effect is to prejudice a litigant’s substantial rights,” the party who
benefitted from the error bears the burden of sustaining the verdict. Id. at 760-61
(citations omitted).

      Congress passed Rule 52(a) as a restatement of 28 U.S.C. § 391,6 which was
enacted to “prevent matters concerned with the mere etiquette of trials and with the
formalities and minutiae of procedure from touching the merits of a verdict.” Bruno v.
United States, 308 U.S. 287, 294 (1939). The Supreme Court distinguishes a
defendant’s right to a trial free from mere technical errors as being “[of] a very different
order of importance” than the defendant’s right “to insist on a privilege which Congress
has given him,” id., such as the right to be free of overly prejudicial evidence under
Federal Rule of Evidence 403.

      The majority attempts to defend its errant standard by distinguishing the
application of the harmless-error rule in the present case from those in which the
claimed error is constitutional in nature. See Sullivan v. Louisiana, 508 U.S. 275, 278-
79 (1993) (constitutional error is harmless if government can show beyond a reasonable
doubt that the error did not contribute to the challenged verdict); Seiler v. Thalacker,
101 F.3d 536, 539-40 (8th Cir. 1996) (“The state has a heavy burden in proving that

       6
        Section 391 provided, in pertinent part:

       On the hearing of any appeal, certiorari, writ of error, or motion for a new
       trial, in any case, civil or criminal, the court shall give judgment after an
       examination of the entire record before the court, without regard to
       technical errors, defects, or exceptions which do not affect the substantial
       rights of the parties.

28 U.S.C. § 391 (1928).

                                            -7-
[a constitutional] error is harmless beyond a reasonable doubt.”) (citation omitted). I
agree that the harmless-error standard for nonconstitutional errors differs from that for
constitutional ones, but the difference is that a claim of constitutional error automatically
warrants harmless-error review, where a complaining party must show a
nonconstitutional error to be more than merely technical to receive such review. In
either case, however, the party receiving the benefit of the error carries the burden of
showing that the error did not affect the verdict.

       In United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997), the Ninth
Circuit correctly applied the standard, holding that the government bears the burden to
show harmlessness in a trial court’s error of admitting prior felonies under Old Chief.7
The majority has cited no cases contrary to Hernandez, and I have been unable to find
any. In any event, our court must be guided by the decisions of the Supreme Court,
which clearly dictate that the beneficiary of the trial court’s error, the government, bears
the burden to show that the error was harmless. The government has failed to meet its
burden, and for that reason, Harris’s conviction should not stand.

       A true copy.

              Attest:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




       7
        The majority dismisses the Ninth Circuit’s holding in Hernandez as being
“without cited authority.” Ante at 3, note 3. The likely reason for the absence of
citations by our sister circuit is the well-established principle that the beneficiary of a
trial court’s error bears the burden to show the error was harmless. The line of
precedents alluded to by the majority is neither long, nor to the contrary of the rule in
Hernandez.

                                            -8-
