                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         AUG 23 2004
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                            No. 03-1490
                                                (D. Ct. No. 03-CR-210-MK)
 ROBERT B. SULLIVAN,                                     (D. Colo.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, MURPHY and TYMKOVICH, Circuit
Judges.


      On appeal, Defendant-Appellant Robert B. Sullivan alleges that the District

Court committed reversible error by denying his motion for a mistrial. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.



                                 I. BACKGROUND

      In November 2002, during a lawful search of the house where Mr. Sullivan



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
then resided, police found a semiautomatic pistol in a locked drawer of a file

cabinet next to Mr. Sullivan’s bed. When police discovered the locked cabinet,

they asked for and obtained the key from Mr. Sullivan. Inside, they found the gun

wedged between two hanging file folders. The file folders contained copies of

Mr. Sullivan’s resume and his probation papers, which revealed his status as a

convicted felon. The police consequently arrested him for violating a state law

prohibiting felons from possessing firearms. The government eventually charged

Mr. Sullivan in federal court with violating 18 U.S.C. § 922(g), which prohibits

the possession of a firearm by a person convicted of “a crime punishable by

imprisonment for a term exceeding one year.” Id. § 922(g)(1).

       Mr. Sullivan stipulated before trial that the gun affected interstate

commerce and that his prior conviction for arson satisfied the statute’s prior-

offense requirement. He therefore contested only one element of the offense at

trial: he argued he did not possess the firearm   . Before voir dire, the District

Court granted Mr. Sullivan’s motion to exclude certain evidence, including his

probation papers, which the court agreed were irrelevant and unduly prejudicial in

light of the parties’ stipulation to the prior felony.

       At the beginning of trial, the District Court summarized the indictment and

charges against Mr. Sullivan, omitting any reference to the name and nature of his

previous conviction. The next day, however, the court read the entire indictment


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to the jurors, including the name of Mr. Sullivan’s prior felony, arson. Shortly

after the indictment was read, Mr. Sullivan moved for a mistrial, arguing that the

purpose of the stipulation to the prior felony was to prevent the jury from hearing

any specific reference to the prior conviction.   The District Court offered to give

a curative jury instruction, which the defense refused. Noting that neither party

had asked the court to redact the indictment, the District Court denied Mr.

Sullivan’s mistrial motion.

                                    II. DISCUSSION

A.     Standard of Review

       We review a district court’s denial of a motion for a mistrial for abuse of

discretion. United States v. Caballero, 277 F.3d 1235, 1242 (10th Cir. 2002).

The decision to submit the indictment to the jury is also within the discretion of

the district court. United States v. Klein, 93 F.3d 698, 703 (10th Cir. 1996). We

will not reverse the District Court’s ruling on the motion for a mistrial “absent a

distinct showing it was based on a clearly erroneous finding of fact or an

erroneous conclusion of law or manifests a clear error of judgment.” United

States v. Mitchell, 113 F.3d 1528, 1531 (10th Cir. 1997) (quotation omitted).

       Even if we determine that the District Court erred, we must also decide

whether the error was harmless. Fed. R. Crim. P. 52(a); United States v. Wilson,

107 F.3d 774, 785 (10th Cir. 1997). When an error lacks a constitutional


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dimension, as it does in this case, we will consider it harmless “unless it had a

‘substantial influence’ on the outcome or leaves one in ‘grave doubt’ as to

whether it had such effect.” United States v. Wacker, 72 F.3d 1453, 1473 (10th

Cir. 1995) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). The

government has the burden of persuasion in arguing the error was harmless. See

United States v. Vonn, 535 U.S. 55, 68 (2002). With this burden in mind, we

must “determine whether the evidence of [Mr. Sullivan’s] prior conviction had a

substantial influence on the jury’s verdict in the context of the entire case against

him.” Wilson, 107 F.3d at 785-86 (quotation omitted); see also United States v.

Hasting, 461 U.S. 499, 509 (1983) (“[T]he Court has consistently made clear that

it is the duty of a reviewing court to consider the trial record as a whole and to

ignore errors that are harmless . . . .”).

B.    Alleged District Court Error

      Mr. Sullivan argues that the District Court erred by not omitting the word

“arson” when it read the indictment to the jury. He argues that, because the

parties entered into a stipulation regarding his prior conviction, any reference to

the name or nature of his prior felony was prejudicial and an abuse of discretion

under Old Chief v. United States, 519 U.S. 172 (1997). Although he

acknowledges that he did not move to exclude all references to arson, Mr.

Sullivan argues that: (1) his motion in limine put the court on sufficient notice of


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the parties’ agreement to exclude all such references, and (2) the court’s ruling to

exclude the prior-conviction evidence in his probation papers demonstrates its

understanding that such references would, in fact, be prejudicial.

       In Old Chief, the Supreme Court held that a district court abuses its

discretion when it rejects a defendant’s offer to stipulate to a prior felony in

satisfaction of the prior-conviction element of § 922(g)(1) and instead admits the

full record of conviction “when the name or nature of the prior offense raises the

risk of a verdict tainted by improper considerations.”    Old Chief, 519 U.S. at 174.

Such considerations include “generalizing a defendant’s earlier bad act into bad

character and taking that as raising the odds that he did the later bad act now

charged.” Id. at 180. Although the Court did not specifically address references

to the prior offense in the indictment, it did note that alternative means of proving

the prior offense, such as a redacted record of conviction, will require “some

discretion when the indictment is read.”     Id. at 191 n.10.

       Although Old Chief’s rationale arguably applies to references in the

indictment, 1 Mr. Sullivan clearly bears some responsibility for the court’s reading


       1
         See United States v. Munoz, 150 F.3d 401, 412 n.10 (5th Cir. 1998)
(noting, without deciding whether the court committed error, that “Old Chief’s
rule can be implicated when the trial judge reads the indictment”); United States
v. Clay, 346 F.3d 173, 177 (6th Cir. 2003) (concluding the district court erred, but
that the error was harmless, when it read the entire indictment, including the prior
conviction, to the jury); Klein, 93 F.3d at 703 (“When the court . . . fails to redact
                                                                        (continued...)

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in this case. If so desired, a defendant should specifically request that all

references to the name and nature of the prior conviction be redacted from the

indictment. See United States v. Concepcion, 983 F.2d 369, 393 (2d Cir. 1992)

(concluding that the trial court’s reference to the prior offense did not unduly

prejudice the defendant in part because “the stipulation itself did not require that

the reference to the prior felonies be redacted from the indictment”   ). Instead, Mr.

Sullivan never asked the court to redact the indictment and, in fact, only referred

to the stipulation and its effect on the evidence in a last-minute motion. Given

the late nature of the motion and its lack of specificity, the court understandably

failed to redact the indictment on its own    .

C.     Harmlessness Analysis

       Nevertheless, we need not decide whether the District Court erred in this

case because its reference was harmless in the context of the record before us.

The government convincingly argues that the court’s one-word reference to arson

in the indictment did not have a substantial influence on the jury’s verdict. With

the exception of this brief reference, the jury heard no other evidence of or

references to the name or nature of Mr. Sullivan’s prior felony. In addition, the



       1
        (...continued)
references to prejudicial facts that are not in evidence, we believe the court may
err by improperly placing before the jury extrinsic material the jury should not
consider.”).

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court twice instructed the jury not to consider the indictment or the name of any

felony conviction as evidence. We, of course, assume that jurors follow the

court’s instructions. See, e.g., United Sates v. Castillo, 140 F.3d 874, 884 (10th

Cir. 1998). Although a jury instruction certainly does not always cure the

prejudicial effect, it mitigates potential prejudice in a case such as this, in which

the jury heard a single, brief reference to the name of the prior conviction and the

evidence of the defendant’s guilt was substantial   . See, e.g., United States v.

Munoz, 150 F.3d 401, 413 (5th Cir. 1998) (holding harmless the trial court’s

improper reference to the prior felony during voir dire in light of the absence of

other references, the trial court’s limiting instructions, and the evidence

supporting conviction); Klein, 93 F.3d at 704 (“[A] proper covering instruction

with respect to the indictment goes a long way toward curing any potential for

prejudice created by giving the indictment to the jury . . . .”).

      In addition, after reviewing the record on appeal, we have no doubt that the

substantial evidence against Mr. Sullivan rendered the District Court’s reference

harmless. Given the parties’ stipulations, Mr. Sullivan only contested his

possession of the gun at trial. Both constructive and actual possession of a gun

satisfy 18 U.S.C. § 922(g). United States v. Colonna, 360 F.3d 1169, 1178 (10th

Cir. 2004). “Generally, an individual has constructive possession over an object

when he or she knowingly has ownership, dominion, or control over the object


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and the premises where it is found.” Id. at 1178-79. In cases of joint occupancy,

however, the government must also “show some connection or nexus between the

defendant and the firearm or other contraband.” Id. at 1179 (quotation omitted).

          The government presented substantial evidence that Mr. Sullivan

constructively possessed the gun. In addition to testimony regarding Mr.

Sullivan’s own admissions of possession, the government introduced evidence

that police found the gun in Mr. Sullivan’s bedroom in a locked file cabinet for

which Mr. Sullivan had a key and between file folders containing his personal

papers. We will not, of course, “weigh conflicting evidence or consider witness

credibility, as these duties are delegated exclusively to the jury.” United States v.

Evans, 318 F.3d 1011, 1018 (10th Cir. 2003). But having reviewed the record

with this standard in mind, we do not hesitate to conclude the error was harmless    .

In light of the substantial evidence of guilt and the court’s admonitions to the jury

regarding the indictment, we conclude that the District Court’s single mention of

arson did not substantially influence the jury’s verdict. See Wilson , 107 F.3d at

786 (holding the trial court’s error harmless in light of substantial evidence of

guilt).

                                 III. CONCLUSION

          Finding any error harmless, we AFFIRM the District Court’s decision




                                           -8-
denying Mr. Sullivan’s motion for a mistrial.

                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Chief Circuit Judge




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