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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 16, 2013

                                       No. 11-41331                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

ADAM EDWIN LIPP,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 6:11-CR-12-1


Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       A jury convicted Adam Lipp of willfully receiving a firearm while he was
under a felony indictment, and the firearm having been in interstate commerce.
We reject Lipp’s appellate argument that the evidence was insufficient to
convict, but we REVERSE because of the district court’s erroneous admission of
evidence of another crime Lipp may have committed. We REMAND for further
proceedings.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                            FACTS
       The crime for which Lipp was convicted requires that he have been under
a felony indictment at the time he received a firearm. Three different felony
indictments against Lipp were issued by Texas grand juries from July through
September 2010. Each indictment had attached a “Magistrate’s Warning” that
the charges were felonies. Lipp signed each warning. He also signed a surety
bond form, which included the statement that he was charged with felonies.
       In February 2011, Lipp sought to purchase a lower receiver from a licensed
dealer. That piece of a weapon contains its operating parts and by itself is
considered a “firearm” in federal criminal statutes.1 Lipp told the dealer that his
father’s AR-15 semi-automatic rifle or perhaps just its receiver fell off the back
of a pickup truck, damaging the receiver. Lipp needed to replace it. The dealer
testified that the purchase of the upper receiver, which is the barrel and bolt
assembly, is not restricted. On the other hand, a person must be 21-years-old
before he may purchase the lower receiver. The dealer could not remember
whether Lipp was 21. The jury did not hear evidence of Lipp’s age or whether
the dealer ever told Lipp he could not purchase the receiver. The dealer testified
that Lipp came to his store several times in a three-day period – likely twice by
himself, once with another male, and finally with his mother. At the time of the
first visit, the dealer did not have the receiver but said he would be getting some.
When Lipp finally came with his mother, the dealer sold the receiver directly to
her. At some point after that, Lipp received the firearm.


       1
           The definition section applicable to the statute under which Lipp was convicted
states that a “firearm” includes “(A)any weapon (including a starter gun), which will or is
designed to or may readily be converted to expel a projectile by the action of an explosive; [and]
(B) the frame or receiver of any such weapon . . . .” 18 U.S.C. § 921(a)(3).

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      A few days after the purchase, Lipp and another individual fired the
weapon on private property. Deputy Sheriff Brandon Shafer investigated a
complaint about gunshots. When the deputy arrived, Lipp explained that the
firearm belonged to his mother and that he was “trying to sight it in.” Deputy
Shafer left the scene after determining the lower receiver had not been stolen
and that the individuals had permission to be on the property.
      Days later, Deputy Ernest Castillo saw Lipp and two individuals walking
on a road at night, and he saw that one of them was carrying a firearm. After
stopping to talk, Deputy Castillo realized they had more than one firearm. Lipp
claimed he owned the firearm, which was the one his mother purchased from the
dealer’s shop. Responding to Deputy Castillo’s questions, Lipp stated that he
had never been charged with a felony and had never been contacted by law
enforcement. Deputy Castillo never specifically asked whether Lipp was “under
indictment.” After being told by a dispatcher that none of the youths had been
convicted of a felony, Deputy Castillo returned the firearms and let the three go.
      In March 2011, a federal agent arrested Lipp at his residence for the
offense of receipt of a firearm. The record does not explain what caused the
arrest warrant to issue. In May 2011, Lipp was indicted for violating 18 U.S.C.
Section 922(n) (receipt of firearm while under indictment) and Section
924(a)(1)(D) (setting the punishment for willful violations).
      At trial, the district court admitted evidence over objection that the other
components of the weapon to which Lipp’s lower receiver was attached had
recently been stolen. Kenneth Bishop testified that in February 2011, someone
stole a gun safe from his hunting cabin. We find Bishop’s testimony unclear as
to whether a lower receiver was in the safe, perhaps because the prosecutor was


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trying to establish that every part of Lipp’s weapon other than the new lower
receiver had been stolen. Bishop clearly said that the safe contained an upper
receiver, scope and laser assembly. He had provided a photograph of his entire
AR-15 to the United States Attorney’s Office. It showed a lower and upper
receiver with a scope and laser that was attached in an unusual way. After
being shown a photograph of the AR-15 Lipp had when Deputy Castillo stopped
him along a rural road, Bishop testified that the upper receiver, scope and laser
in the photograph were the ones that had been stolen.
      Bishop also testified that someone had used his Kubota-brand tractor,
stored at the hunting camp, to remove the gun safe through a window. Police
later recovered the safe in another county with its bottom cut out and contents
missing. Lipp’s counsel questioned Bishop about where he kept the keys to his
tractor. Bishop stated that he secured the keys in the safe and that any Kubota-
tractor keys would start the tractor. The federal agent who executed the search
warrant at Lipp’s residence later testified that officials discovered two sets of
Kubota-tractor keys on the dashboard of Lipp’s vehicle.
      Lipp moved for a judgment of acquittal partly on the grounds that the
government failed to produce sufficient evidence for the jury to find that Lipp
willfully violated Section 922(n). The district court denied the motion. The jury
found Lipp guilty as charged, and the district court sentenced him to 42 months’
imprisonment with three years of supervised release. Lipp timely appealed.
                                 DISCUSSION
      A. Sufficiency of the Evidence
      We review the denial of a motion for a judgment of acquittal de novo and
ask whether a rational juror could find beyond a reasonable doubt that Lipp


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willfully violated the law. United States v. Vasquez, 677 F.3d 685, 692 (5th Cir.
2012). This court views the evidence in a light most favorable to the verdict and
makes all inferences and credibility choices in favor of Lipp’s conviction. Id.
      Lipp challenges the sufficiency of the evidence only as to the jury’s finding
that he “willfully” violated Section 922(n). That statute provides, “It shall be
unlawful for any person who is under indictment for a crime punishable by
imprisonment for a term exceeding one year to . . . receive any firearm . . . which
has been shipped or transported in interstate . . . commerce.” 18 U.S.C. § 922(n).
      For Lipp to have acted “willfully” under this statute, he must have “acted
with knowledge that his conduct was unlawful.” Dixon v. United States, 548
U.S. 1, 5 (2006) (reading Section 924(a)(1)(D) to impose a mens rea requirement
for Section 922(n)). The Government was not required to prove that Lipp was
aware of the specific federal law he was violating, only that he knew the receipt
of the firearm was unlawful. See Bryan v. United States, 524 U.S. 184, 191-96
(1998).
      The question in Bryan was whether a dealer in firearms had acted
willfully under Section 924(a)(1)(D) when he sold firearms without the required
federal license; there was no evidence he was aware of the need for a license. Id.
at 186, 189. The district court had refused to instruct the jury that Bryan
needed to know of the federal licensing requirement. Id. at 189-90. Instead, this
instruction was given:
      A person acts willfully if he acts intentionally and purposely and
      with the intent to do something the law forbids, that is, with the bad
      purpose to disobey or to disregard the law. Now, the person need not
      be aware of the specific law or rule that his conduct may be
      violating. But he must act with the intent to do something that the
      law forbids.


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Id. at 190. The Supreme Court upheld the instructions on the crime, with a
minor exception regarding another instruction not relevant here. Id. at 199-200.
      The jury in the present case was told that it needed to find that Lipp
“acted willfully, that is, that the act was committed voluntarily and purposely,
with the specific intent to do something the law forbids; that is to say, with bad
purpose to disobey or disregard the law . . . .” The instruction was offered by
Lipp, and we conclude it properly focused on the need for evidence that indicated
Lipp knew his receipt of the firearm was unlawful – regardless of the exact
elements of the offense. In other words, the Government need not prove that
Lipp knew the specific reason his receipt was unlawful was because he was
under indictment for a felony. One or more jurors may have been concerned
about this. A jury note with a multi-part question was given to the district court
during deliberations. The jury asked whether Lipp’s intent to do “something the
law forbids” had to be the receipt of the firearm, or did it have to be “doing
something else illegal after receiving the firearm?” The note also asked whether
Lipp had “to know he was breaking the specific federal law about receiving the
firearm?” After consulting with the attorneys, the district court informed jurors
they had all the instructions that would be given and to review those.
      Here, there was evidence that Lipp made conflicting statements as to
whom the firearm belonged. Lipp told the dealer the lower receiver was for his
father’s weapon, which he had accidentally damaged. He told one deputy that
the weapon was his mother’s; he told another that the weapon was his own.
There was also evidence that Lipp knew of his three felony indictments but lied
to officers about them. Lipp’s knowledge was revealed by his signature on
notices attached to the indictments and on surety bonds for the offenses, all of


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which identified the charges as felonies. In addition, the agent who executed the
arrest warrant inside Lipp’s house saw on the refrigerator a court’s “Order of
Reset.” This document notified Lipp that the state court had rescheduled
proceedings on his three felony indictments. Evidence that Lipp denied being
under indictment came from Deputy Castillo, who asked Lipp during their
encounter along a rural road whether he had ever been charged with a felony or
been contacted by law enforcement, and Lipp answered, “No.” Such dissembling
could be the basis for jurors to infer he knew it was illegal for him to have this
firearm. In Bryan, the conviction of a dealer for selling firearms without a
license was affirmed when there was evidence that Bryan knew the sales were
illegal even though he may not have known exactly why. Bryan, 524 U.S. at 189.
Similarly, it does not matter whether Lipp knew of the prohibition arising from
the indictment or thought there was some other illegality, such as being too
young. Jurors could find on this evidence that he had the purpose to disobey the
law when he received the firearm.
      We also examine whether jurors could find Lipp knew of the indictment,
since denial of being under indictment is one of his inculpatory statements. Lipp
argues that his status of being “under indictment” was “beyond common
understanding and arcane,” quoting United States v. Chapman, 7 F.3d 66, 68
(5th Cir. 1993). In that case, the defendant appealed from his conviction on
charges contained in an indictment for burglary. Id. at 67. While the appeal
was pending, the defendant purchased firearms. Id. For that purchase, he was
charged with making a false statement in connection with the acquisition of a
firearm. Id. The Government was required to prove that the defendant was
“under indictment” and that “he knew his status.” Id. at 67-68. Under Texas


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law, a defendant is considered still to be under indictment during an appeal from
a conviction. Id. at 68.
      To prove Chapman knew he was under indictment, the Government relied
on an appeal bond that stated, “Appeal Bond (After Indictment – Felony –
Personal Bond).” Id. There also was testimony that the defendant, upon being
questioned by law enforcement, said he “messed up” on the form he completed
at the time he purchased a firearm when he answered “no” to the question of
whether he was “under indictment.” Id. at 67-68. Finally, there was testimony
that the defendant stated on a purchase form that he was not a “convicted felon.”
Id. at 68.
      The Chapman court determined the evidence to be insufficient. Id. The
appeal bond, by stating “After Indictment,” arguably implied that he was no
longer subject to the indictment; the defendant’s later saying he had “messed up”
on the form was too ambiguous to prove he knew his legal status at the time he
completed the form. Id. As to whether he had a felony “conviction,” the state’s
definition controlled; under Texas law, Chapman’s statement that he was not a
convicted felon was actually true during the pendency of his appeal. Id.
      Applying those principles here, we see no implication in the state-court
documents that Lipp was no longer under indictment. Unlike Chapman, who
under state law was technically not yet convicted, Lipp did not provide Deputy
Castillo with an answer that was actually, if surprisingly, true when Lipp said
he had not been charged with a felony. The general principle discussed in
Chapman, that something more may be needed to prove a defendant’s knowledge
of the meaning of legal terms that are beyond common understanding, has no
application here. Jurors had to be able to infer that Lipp knew it was unlawful


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                                 No. 11-41331
for him to receive a firearm. What made it unlawful was that he was under
indictment for a felony.    No proceedings had yet occurred on those state
indictments, and the ambiguities that arose in Chapman are absent here.
      Lipp argues that other evidence discredits the inference that he acted
willfully. The firearms dealer was ambiguous about his reasons for not selling
Lipp the firearm. The two deputies who first questioned him about the firearm
did not arrest him. Lipp argues it is exculpatory that he claimed ownership of
the firearm when Deputy Castillo questioned him, indicating he did not know
there was any illegality. Deputy Castillo himself testified that, at the time of
their encounter, he was not aware of the federal law against receiving a weapon
while under indictment.
      We agree with Lipp in part, namely, that there is not overwhelming
evidence of his knowledge that he was violating the law. Nevertheless, this
court does not re-weigh the evidence. A jury is free to “choose among reasonable
constructions of the evidence.” Vasquez, 677 F.3d at 692.         The jury was
permitted to determine Lipp’s state of mind based on all of the circumstantial
evidence presented at trial. See United States v. Rodriguez, 132 F.3d 208, 212
(5th Cir. 1997). When viewing the evidence presented to the jury in a light most
favorable to the verdict, particularly the evidence that he denied being charged
with a felony and gave different answers about who owned the firearm, we
cannot say that no rational juror could have found beyond a reasonable doubt
that Lipp knew his conduct was unlawful when he received the firearm.
      B. Admissibility of the Evidence
      Lipp filed a motion in limine to prohibit the introduction of evidence that
would show the firearm’s upper receiver and other components were stolen. He


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argued that such evidence might lead the jury to believe he stole the equipment.
He may have, but that was not the charge against him. The district court denied
the motion and determined the evidence was more probative than prejudicial.
During trial, Lipp objected to cabin-owner Bishop’s testimony about the theft,
and the district court again overruled the objection.
      We review the district court’s decisions to admit the evidence for an abuse
of discretion and require that the evidence “be strictly relevant to the particular
offense charged.” United States v. Jones, 484 F.3d 783, 786 (5th Cir. 2007).
      “Evidence of a crime, wrong, or other act” is inadmissible to prove
character for the purpose of showing a defendant’s propensity to act in
conformity with that character, but such evidence “may be admissible for
another purpose, such as proving motive, opportunity, [or] intent . . . .” Fed. R.
Evid. 404(b)(1)-(2). A court must decide if such extrinsic evidence (1) “is relevant
to an issue other than the defendant’s character,” and (2) “possess[es] probative
value that is not substantially outweighed by its undue prejudice.”2 United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978).
               1. Relevance
      Evidence of prior bad acts “is relevant only if the jury can reasonably
conclude that the act occurred and that the defendant was the actor.”
Huddleston v. United States, 485 U.S. 681, 689 (1988). “The government need
only provide some evidence that the defendant committed the prior bad act.”
United States v. Cooks, 589 F.3d 173, 182 (5th Cir. 2009).
      This is a “generous standard,” but when the Government produces “no
evidence at all” that a defendant committed the prior act, such evidence “is of no


      2
          There is no argument that this evidence was intrinsic to the charged crime.

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help to the jury, as it is not possible to say that those acts reflect anything at all
about the defendant.” United States v. Gonzalez-Lira, 936 F.2d 184, 189-90 (5th
Cir. 1991). Here, there was evidence that Bishop’s upper receiver, scope and
laser had been stolen from his hunting cabin at a time immediately preceding
Lipp’s inquiry about acquiring a corresponding lower receiver from the firearms
dealer. Bishop testified that the firearm in a photograph showing Lipp with an
AR-15 was built with Bishop’s unique upper receiver and components that were
stolen from the cabin. Bishop further testified that someone used his Kubota-
brand tractor to take the safe from the hunting cabin. Lipp’s counsel elicited
testimony that the person who used the tractor would need a key. On redirect,
the Government asked Bishop to identify a set of keys in a photograph, and
Bishop testified that the key appeared to fit a Kubota-brand tractor.
      After Bishop’s testimony, Lipp moved for a mistrial on grounds that the
Government would attempt to prove Lipp stole the firearm’s components by
producing evidence that officers discovered he had two sets of Kubota-brand
tractor keys. The defense accurately predicted the Government’s course, as
there later was testimony that investigators discovered two separate sets of
Kubota-brand tractor keys on the dashboard of Lipp’s vehicle. The district court
denied the motion, explaining that it allowed Bishop to testify about the theft
because the court determined the close temporal proximity of the theft was
relevant to the element of receipt and that Lipp invited the testimony about the
keys. The court also denied Lipp’s alternative request to give the jury a limiting
instruction at that time but stated it would include among its instructions to
jurors at the end of the case one that stated Lipp was not on trial for anything
other than the charges in the indictment. The court gave that instruction.


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      There was evidence sufficient to connect Lipp to the prior act. The
question then becomes whether the prior-act evidence satisfied other evidentiary
rules. The Government has argued that this evidence was relevant for the
purpose of establishing Lipp’s motive for obtaining the lower receiver. The
argument is that because Lipp recently had stolen an upper receiver, it was
more probable and thus relevant that he would need to purchase a lower
receiver. See Fed. R. Evid. 401. We have already noted that Bishop’s testimony
was unclear as to whether a lower receiver was also stolen from his safe. If the
entire AR-15 were stolen, then the evidence of that theft only partly explains
why Lipp needed to buy a lower receiver. His story to the dealer that the one he
had was damaged gave a possible reason.
      A significant difficulty with the Government’s argument is that the factual
matter on which the evidence was relevant was undisputed. The other-crimes
evidence made it more likely that Lipp would want to have an upper receiver,
but Lipp never denied involvement in its purchase or using the weapon. The
only evidence was that Lipp was the moving force behind his mother’s purchase
and that he then used the firearm. The only factual matter that the other-
crimes evidence corroborated was an uncontested fact shown by the
Government’s own witnesses. It is true that a defendant cannot stipulate away
a relevant fact in order to prevent the Government from presenting evidence of
that fact. Old Chief v. United States, 519 U.S. 172, 189 (1997). Stipulations
could effectively dilute the “full evidentiary force” of testimony and other
evidence. Id. at 186. The Old Chief principle, though, does not give carte
blanche to the Government’s proving an uncontested fact through direct
evidence, then corroborating that same fact through other-crimes evidence.


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      Though we see no valid need for this other-crimes evidence, we examine
a district court’s introduction and exclusion of evidence with considerable
deference. See Jones, 484 F.3d at 786. After deciding that this evidence was
relevant, the district court was aware it had another finding to make. We now
turn to the remaining question of admissibility.
            2. Probative Value and the Risk of Undue Prejudice
      Once the other-crimes evidence is found to be relevant, the district court
may admit the evidence only if its probative value is not “substantially
outweighed by its undue prejudice.”       Beechum, 582 F.2d at 911. We have
already identified the probative value, which was that it explained Lipp’s motive
in ardently pursuing purchase of the lower receiver. That value was negligible,
though, as Lipp’s receipt of the firearm was uncontested. A risk in admitting
extrinsic evidence of other bad acts is that the “jury will convict for crimes other
than those charged – or that, uncertain of guilt, it will convict anyway because
a bad person deserves punishment.” Old Chief, 519 U.S. at 181.
      The charged crime of receiving a firearm while under indictment required
the jury to be convinced that Lipp knew he was acting unlawfully when he
acquired the lower receiver. The evidence of his knowledge is circumstantial,
arising from his failure to be truthful about other matters. He told the dealer
that he needed to buy a new lower receiver to replace one for his father’s weapon
that was damaged; jurors could decide that statement was false. Lipp’s
conflicting statements to two different deputies about who owned the weapon
also could be used to infer knowledge of illegal conduct in having the firearm.
Ironically, the other-crimes evidence presented an entirely different reason Lipp
may have lied. Because that evidence supported that Lipp had stolen the rest


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of an AR-15, it might be assumed Lipp would be less than certain what to say to
a law enforcement officer about whose firearm it was. Lipps’ certain knowledge
that it was illegal to steal a firearm does not support that he knew it was illegal
to obtain from his mother a lower receiver properly purchased by her.
      There was no evidence that Lipp ever was told that his felony indictments
made it unlawful for him to receive a firearm. A juror’s reasonable doubt about
Lipp’s awareness that the receipt was illegal could have seemed inconsequential
due to the evidence that Lipp was likely a gun thief.
      The evidence of another crime contained very little probative value
compared to the strong risk of undue prejudice to Lipp. We determine that such
value was substantially outweighed by the risk. We conclude the district court
abused its discretion in admitting such evidence.
            3. Harm
      Even though there was error in the admission of the evidence about a
stolen AR-15, we will not reverse a conviction when the error is harmless.
United States v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2007). There was no harm
here unless “there is a reasonable probability that the improperly admitted
evidence contributed to the conviction.” Id. We have already addressed the
related issue of prejudice. Our determination that it was prejudicial to admit
the evidence of the burglary of the hunting cabin overlaps to some degree the
analysis of whether admission affected the outcome.
      What this final analytical task adds to the earlier finding of prejudice is
that we are to examine “the error in relation to the entire proceeding, not merely
in isolation.” United States v. Hawley, 516 F.3d 264, 268 (5th Cir. 2008). “When
the other evidence of guilt is overwhelming, and the error would not have


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substantially influenced the jury’s verdict, the error is harmless.” Id. The
Government has the burden to prove harmlessness beyond a reasonable doubt.
United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008).
      There was not overwhelming evidence that Lipp was aware that his
acquiring the lower receiver was an offense, i.e., that he willfully violated the
law when he received a firearm from his mother after she purchased it from the
dealer. The evidence that Lipp was guilty of the burglary may well have
appeared far stronger to jurors than the evidence of willfulness. Doubts about
the willfulness of his receipt too easily could have been dispelled by the absence
of doubts of his theft. Consequently, a reasonable probability exists that the
evidence about the other crime substantially influenced jurors’ decision.
      We find no error in the district court’s denial of the motion for acquittal.
There was sufficient evidence for a rational juror to find beyond a reasonable
doubt that Lipp willfully violated Section 922(n). The district court abused its
discretion, though, by allowing the admission of the extrinsic evidence.
      We REVERSE and REMAND for further proceedings.




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