                United States Court of Appeals
                  FOR THE EIGHTH CIRCUIT
                         ___________

                       No. 96-4096
                        ___________

United States of America,   *
                            *
         Plaintiff-Appellee, *
                            * Appeal from United States
v.                          *   District Court for the
                            Eastern
                            * District of Missouri.
Michael Kewan Crawford,     *
                            *
         Defendant-Appellant. *
                       ___________



                   Submitted: September 8, 1997
                      Filed: December 17, 1997


                         ___________

Before HANSEN, MORRIS SHEPPARD ARNOLD,           and   MURPHY,
    Circuit Judges.
                    ___________

MURPHY, Circuit Judge.

    Michael Crawford was convicted of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). At trial he had offered to stipulate to two
prior felonies, but the government declined to accept the
stipulation and the district court, consistent with the
law in this circuit at the time, permitted evidence to be
introduced about the crimes. Crawford claims this was
reversible error under Old Chief v. United




                         -2-
States, 117 S.Ct. 644 (1997), decided after he filed his
appeal.1 After examining the record, we affirm.

    This case grew out of an encounter between Crawford
and St. Louis police officers Maurice Jackson and John
Stransky around 11 p.m. on January 24, 1996.          The
testimony at trial differed on what happened that night.
Both officers testified that they saw Crawford standing
at the side of the street holding a handgun.         They
reported that he dropped the gun when they shone their
squad car spotlight on him.       They arrested him and
recovered the gun from the ground next to where he was
standing. They also testified that the area had a high
incidence of drug and weapon crimes. Crawford testified
in contrast that he was waiting in the passenger seat of
a car driven by Travis Haughton when the police
approached and asked him to get out and step to the rear.
They then searched the car and found a gun he knew
nothing about and arrested him (and not Haughton).
Although Crawford says that Haughton would corroborate
his version of the events, he did not call him to testify
at trial.

    An essential element of the offense of being a felon
in possession of a firearm is proof that the defendant
was previously convicted of a crime punishable by
imprisonment for a term of more than one year. 18 U.S.C.
§ 922(g)(1).     Crawford had had two convictions for

      1
        Crawford also argued in his brief that application of 18 U.S.C. § 922(g)(1) to
his situation is beyond the power of Congress under the Commerce Clause, relying on
United States v. Lopez, 514 U.S. 549 (1995). His counsel conceded at oral argument
that this claim is foreclosed by United States v. Bates, 77 F.3d 1101 (8th Cir.), cert.
denied, 117 S.Ct. 215 (1996).

                                          -3-
possession of controlled substances, one in 1991 and the
other in 1992. His offer to stipulate that he had two
prior felonies was rejected by the government. Instead,
evidence was introduced that he had twice been convicted
for possession of cocaine.         The government also
introduced Crawford's "penitentiary package" which is an
identification sheet of a type made for someone entering
the




                           -4-
Missouri   prison   system;   it  includes   photographs,
fingerprints, and a serial number. The arrest register
for his 1991 offense had similar information and was also
received.

    Crawford contends that this evidence was unfairly
prejudicial and that its admission was an abuse of the
district court’s discretion.    He seeks reversal of his
conviction and a new trial. Crawford argues the admission
of evidence related to his prior drug convictions
predisposed the jury to disbelieve his account and to
credit the police testimony. The government responds that
Crawford's conviction should stand since any prejudice did
not rise to the level of that in Old Chief where the
defendant was charged both with violating § 922(g)(1) and
with assault with a dangerous weapon, the same type of
offense as his prior conviction.      The government also
asserts that any prejudice to Crawford was harmless
because the jury would have convicted him even without the
challenged evidence.

    When the defendant in a § 922(g)(1) case offers to
stipulate to his status as a felon, “evidence of the name
or nature of the prior offense generally carries the risk
of unfair prejudice.” Old Chief, 117 S.Ct. at 652. Where
such a risk substantially outweighs the probative value of
the details of the prior conviction, it is an abuse of
discretion not to accept an admission in a stipulation.
Id. at 655. This rule normally applies, however, “only
when the record of conviction would not be admissible for
any purpose beyond proving status.” Id. at 655. It does
not apply if there is another “justification for receiving
evidence of the nature of the prior acts on some issue

                           -5-
other than status,” such as under Fed. R. Evid. 404(b).
Id.   In such a case Rule 404(b) would “guarantee[] the
opportunity to seek its admission.” Id.

    In Crawford’s case there is another evidentiary rule
that could have justified admission of evidence about the
nature of his prior felonies. Since Crawford took the
stand and testified to his version as to whether he
possessed a gun, evidence of his prior felonies would have
been admissible under Fed. R. Evid. 609(a)(1), unless the
court determined that the prejudicial effect outweighed
its probative value as impeachment.




                           -6-
Credibility was at the heart of the jury’s factfinding
responsibility since possession was the critical issue.
The probative value of the evidence was therefore
significant, but the fact that the convictions were for
drugs might have a prejudicial impact.       (The common
linkage of drugs and guns has been frequently recognized.
See United States v. Jones, 990 F.2d 1047, 1049 (8th Cir.
1993), cert. denied, 510 U.S. 1048 (1994); United States
v. Nash, 929 F.2d 356, 359 (8th Cir. 1991)).

     Admission of evidence of the nature of the prior
convictions does not automatically result in reversal of
a conviction. See United States v. Horsman, 114 F.3d 822,
827 (8th Cir. 1997); United States v. Blake, 107 F.3d
651, 653 (8th Cir. 1997). The defendant must also show
that he actually suffered unfair prejudice and that such
prejudice was not harmless.2 See Old Chief, 117 S.Ct. at
652; Blake, 107 F.3d at 652-653. The existence and degree
of unfair prejudice will turn on the facts of each case.
Id.    An error is harmless if it "does not affect
substantial rights" of the defendant. Fed. R. Crim. P.
52(a). An error affects substantial rights "[o]nly if the
jury may have been 'substantially swayed' by improperly
admitted evidence."    Blake, 107 F.3d. at 653 (quoting
United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.
1994)) (citations omitted); see also Horsman, 114 F.3d at
828.



      2
        In some circumstances a limiting instruction on how the jury may use the
evidence will protect against unfair prejudice or harmful impact on the defendant’s
substantial rights, see Redding v. United States, 105 F.3d 1254, 1255 (8th Cir. 1997),
but in this case no such instruction was given.

                                         -7-
     After studying the record, we are convinced that any error in admission
of the challenged evidence was harmless considering all
the circumstances and the fact that the nature of the
prior convictions could have been offered under Rule
609(a)(1). Both officers testified that they saw Crawford
holding a gun, that he dropped it as soon as they shone a
light on him, and that they picked it up from the ground
where he had been standing. His story was that the police
took a gun he knew nothing about from a car




                                    -8-
driven by Haughton and he alone was arrested. Although
Crawford says that he would not have testified if his
stipulation had been accepted, it was only his testimony
at trial that created an issue of fact about the necessary
element of possession and this was his theory of defense.
He asserts now that he could have presented the testimony
of Haughton and another witness to corroborate his version
of the events and that Haughton would have taken
responsibility for the gun even though he too was a felon.
The record reflects Haughton’s counsel indicated during
trial that he was available to testify, yet Crawford did
not call him to bolster his story. The test for harmless
error is whether any legal error affected the result of
his trial, not how the unoffered evidence might have
played out in the trial. See United States v. Davis, 657
F.2d 637, 640 (4th Cir. 1981) (“The test for harmlessness
for nonconstitutional error is whether it is probable that
the error could have affected the verdict reached by the
particular jury in the particular circumstances of the
trial.”).   In the circumstances presented we find any
error to have been harmless.

    For these reasons the judgment is affirmed.

A true copy.

    Attest:

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




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