                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 19, 2010
                    UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                    No. 09-4136
                                                        (D. Utah)
          v.                                   (D.C. No. 2:08-CR-30-TS-1)

 JAMES EDWARD ALLUMS,

               Defendant-Appellant.



                           ORDER AND JUDGMENT *


Before HENRY, MURPHY, and O’BRIEN, Circuit Judges. **


       James Edward Allums was convicted after a jury trial of (1) armed bank

robbery of the Salt Lake Schools Credit Union on November 15, 2007; and (2)

attempted robbery of the Home Savings Bank on November 30, 2007, both in

violation of 18 U.S.C. § 2113(a) and (d). The jury acquitted Mr. Allums of a




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties' request for a decision on the briefs
without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
third robbery charge, and the district court sentenced him to 120 months’

imprisonment followed by 60 months’ supervised release.

      In this appeal, Mr. Allums contends that the district court erred in admitting

the testimony of a state probation officer who identified Mr. Allums’s voice on a

videotape of the attempted robbery of the Home Savings Bank. In particular, Mr.

Allums asserts that the officer’s statement on direct examination that he

“work[ed] for the adult probation and parole” was more prejudicial than probative

under Rule 403 of the Federal Rules of Evidence because it informed the jury of

his criminal history. See Rec. vol. III, at 214. Mr. Allums maintains that the

error was not harmless and that he is entitled to a new trial.

      The admissibility of the probation officer’s testimony about his occupation

presents a close question, but we need not reach it here. Instead, we conclude

that, even assuming that the district court abused its discretion in admitting the

evidence, any such error was harmless. We therefore affirm Mr. Allums’s

convictions.

                                I. BACKGROUND

      A federal grand jury indicted Mr. Allums for: (1) the robbery of a Salt Lake

City K-Mart on October 23, 2007; (2) the robbery of the Salt Lake City Schools

Credit Union on November 15, 2007; and (3) the attempted robbery of the Home

Savings Bank on November 30, 2007. All counts charged violations of 18 U.S.C.

§ 2113(a) and (d).


                                         -2-
                         A. Officer Howard’s Testimony

      Prior to trial, the prosecution filed a motion stating that it intended to call

Mr. Vaughn Howard, Mr. Allums’s former probation officer. The prosecution

reported that Officer Howard had viewed a surveillance tape that recorded the

attempted robbery and that he would testify that Mr. Allums was the perpetrator.

In order to limit the prejudice that might result from identifying Officer Howard

as Mr. Allums’s probation officer, the prosecution proposed that Officer Howard

describe himself as “a friend, associate, or acquaintance of the defendant’s.” Rec.

vol. I, doc. 123, at 4-5. Mr. Allums objected to Officer Howard’s proposed

testimony, asserting that the testimony would be unduly prejudicial. In Mr.

Allums’s view, even omitting the fact that Officer Howard was his probation

officer and describing him as “a friend, associate, or acquaintance” would

unfairly limit cross examination.

      The district court issued a pretrial ruling allowing Officer Howard to

testify. The court explained that “evidence that the voice on the recording [of the

attempted robbery of the Home Savings Bank] is highly probative of Defendant’s

guilt” and that “the risk of undue prejudice to Defendant is low, so long as the

government does not inquire, on direct, regarding the specific nature of the

relationship between the parole officer and Defendant.” Id. vol. II, at 10-11

(Memorandum & Order, filed March 12, 2009, at 4-5).




                                         -3-
    At a bench conference during the trial, the district court clarified its ruling.

It explained to the attorneys that “the Court’s previous order did not intend to

preclude information about what it is [Officer Howard and a Salt Lake City Police

Detective] did for a living.” Supp. Rec. vol. I, at 133.

      At trial, Officer Howard gave the following testimony:

     Q.: Sir, where are you employed?

     A.: I work for the adult probation and parole.

      ....

     Q.: How long had you known Mr. Allums prior to say October,

      November of 2007?

     A.: I’ve known him for about six months.

     Q.: In the course of knowing him, how often had you seen him

      during that six-month period of time?

     A.: I have some notes here just to kind of refresh my memory, if

      you’ll let me look at them real quick. I came into contact with

      him about 13 times about the last—between ten and 15 minutes

      per visit.

     Q.: And did you also go to his house and see him there?

     A.: Yeah, I did that. You know, went to his house about eight

      times.

     Q.: Did you ever talk to Mr. Allums on the telephone?


                                         -4-
     A.: I did. I talked to him about 15 times.

Rec. vol. III, at 213-14. Officer Howard then indicated that he had identified Mr.

Allums’s voice, both in a voice line-up and in the surveillance video of the Home

Savings Bank robbery attempt.

      Mr. Allums’s attorney objected to Mr. Howard’s testimony. The district

court overruled the objection, citing the prior ruling that “this witness, the officer,

would be able to be identified by [his] profession,” and observing that there was a

need for “there to be some context” for the jury as to a witness’s profession. Id.

at 217.

             B. Other Evidence Regarding the Attempted Robbery

      Don and Jeff Ballard, who both worked at the Home Savings Bank,

described the attempted robbery. They stated that, on November 30, 2007, at

about 4:30 p.m., a man wearing a ski mask and coat with the hood up entered the

bank and approached a teller with a knife. Don Ballard threw a chair down from

the balcony and hit the man on his left shoulder, knocking him to the floor. The

man got up from the floor, tore off his mask, swore at Don Ballard, and ran out

the front door. Don Ballard saw the man’s face for one or two seconds and

observed that he was African-American.

      Jeff Ballard testified that he saw the man come around the back of the

building into the alley. He reported that the man was African-American and was

wearing a dark blue coat and no longer had on a hood or mask.


                                          -5-
       Neither of the Ballards identified Mr. Allums in a pretrial photographic

lineup. However, immediately after his direct testimony, Don Ballard told the

prosecutor that he recognized Mr. Allums as the person who had attempted to rob

the Home Savings Bank. The district court permitted the prosecution to reopen

its direct examination, and Don Ballard then testified that “I looked at [Mr.

Allums] and beyond a reasonable doubt he was the man that was in my lobby.”

Rec. vol. III, at 210. 1

       The prosecution also presented testimony from Salt Lake City Police

Detective Stephen Hartney, who was contacted by dispatch on the day of the

attempted robbery. Detective Hartney obtained the bank’s surveillance tape and,

upon viewing it, identified the suspect as Mr. Allums. Detective Hartney

explained to the jury that he had interviewed Mr. Allums approximately five

months before the attempted robbery and that he recognized Mr. Allums based on

his demeanor, physical features, posture, movements, his teeth, and the sound of

his voice.

       In addition, Mr. Allums’s nephew Kaderius Allums testified that he had

viewed the videotape of the Home Savings Bank robbery. Kaderius told the

police the voice on the videotape sounded like Mr. Allums, that “it’s raspy



       1
         Mr. Allums notes in his appellate brief that at the time of Don Ballard’s
in-court identification, Mr. Allums was seated at counsel table and was the only
African-American person in the courtroom. Morever, by the time of trial, one and
a half years had elapsed since the attempted robbery.

                                        -6-
like in his voice,” id., at 288, and he also told the police that if they had spoken

with Mr. Allums, they too would recognize his voice on the video. Id. at 287.

Kaderius further acknowledged his grand jury testimony that the voice on the

surveillance tape “sounded just like [Mr. Allums].” Id. at 303-04.

      Salt Lake City police arrested Mr. Allums on December 2, 2007. On

that day, two detectives went to his house and found a blue coat and a pair of

hiking boots that resembled the items worn by the man who attempted to rob the

Home Savings Bank. During the trial, Mr. Allums tried on the coat and boots,

and they fit him.

      Finally, the prosecution offered the surveillance videotape of the attempted

robbery. It recorded the offender’s voice, as well as his leaving the bank with his

mask removed.

                     C. Evidence Regarding the K-Mart and
                    Salt Lake Schools Credit Union Robberies

      The prosecution also presented evidence regarding the October 23, 2007

robbery of the K-Mart and the November 15, 2007 robbery of the Salt Lake

Schools Credit Union. 2 As to the Salt Lake Schools Credit Union robbery, an

employee testified that, on November 15, 2007, a man jumped over the counter

and pointed a knife at her and a teller. He was wearing a dark, hooded sweatshirt,

a loose knit cap pulled over his face, leather gloves, jeans, and tennis shoes, and

      2
       In light of the jury’s acquittal on the K-Mart robbery charge, we will not
summarize the prosecution’s evidence on that count any further.

                                          -7-
he took money from the till and left. The robbery was filmed by a surveillance

camera, but there was no audio recording. The prosecution submitted the

videotape to the jury.

      When the robber jumped on the counter of the credit union, he left two

partial shoe prints, bearing an Adidas logo. After the robbery, police detectives

retrieved a pair of gray Adidas shoes from the porch of Mr. Allums’s residence.

The shoes belonged to James Hill, a friend of Mr. Allums’s nephew Kaderius. A

supervisor at the Salt Lake City Police Crime Lab testified that the shoe prints on

the credit union counter could have been made by the Adidas shoe taken from Mr.

Allums’s residence, or by another shoe with the same general characteristics

(size, shape, outsole design, and wear pattern). However, the supervisor further

testified that he had never seen two different shoes with the same size, shape,

tread pattern, and wear pattern.




                D. Additional Evidence Pertaining to All Counts

      The prosecution also introduced cell phone records indicating that, on the

days in question, Mr. Allums’s phone had been used before and after the

robberies in the areas surrounding each of the financial institutions.

      Finally, the prosecution played for the jury audio tapes of phone calls


                                        -8-
that Mr. Allums made from jail after he was arrested for the charged robberies.

The jury thus had the opportunity to hear Mr. Allums’s voice and to compare it

with the voice of the offender on the Home Savings Bank surveillance tape.

       As we have noted, the jury acquitted Mr. Allums of the K-Mart robbery and

convicted him of the robbery of the Salt Lake Schools Credit Union and the

attempted robbery of the Home Savings Bank.

                                 II. DISCUSSION

       On appeal, Mr. Allums argues that the district court erred in allowing

Officer Howard to testify that he worked for the probation and parole department

and in allowing him to describe his contacts with Mr. Allums. From that

testimony, Mr. Allums maintains, the jury could have inferred that Officer

Howard was Mr. Allums’s parole officer, and this inference was prejudicial. In

his view, “[a]n individual with a parole officer is an individual with a criminal

history, and the jury was left to speculate about the nature and extent of that

history.” Aplt’s Br. at 14. He contends that, under Rule 403 of the Federal Rules

of Evidence, this testimony was more prejudicial than probative and should have

been excluded. He further argues that the evidence was not harmless and that he

is entitled to a new trial.

       Rule 403 provides that “relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice.” “Under

Rule 403’s balancing test, it is not enough that the risk of unfair prejudice


                                        -9-
be greater than the probative value of the evidence; the danger of that prejudice

must substantially outweigh the evidence’s probative value.” United States v.

Cerno, 529 F.3d 926, 935 (10th Cir. 2008) (citations omitted). “In engaging in

the requisite balancing, we give the evidence its maximum reasonable probative

force and its minimum reasonable prejudicial value.” Id. (internal quotation

marks and citation omitted).

      We review the district court’s decision to admit evidence for abuse of

discretion. United States v. Smith, 534 F.3d 1211, 1218 (10th Cir. 2008). “We

cannot reverse a district court’s ruling if it falls within the bounds of permissible

choice in the circumstances and is not arbitrary, capricious or whimsical.” Id.

(internal quotation marks and citation omitted).

            A. Courts have taken varying approaches to testimony
                identifying a witness as a probation officer.

      Mr. Allums’s contentions regarding the potential prejudice of Officer

Howard’s testimony are supported by case authority. As this court has observed,

“[t]estimony by a defendant’s probation officer, if the officer’s occupation is

revealed to the jury, often may increase the potential for unfair prejudice to the

defendant by highlighting the defendant’s criminal history.” United States v.

Griffin, 389 F.3d 1100, 1103 (10th Cir. 2004). “Accordingly, trial courts should

exercise caution in their admission of such testimony.” Id.; see also United States

v. Pierce, 136 F.3d 770, 776 (11th Cir. 1998) (“Identification testimony from law



                                         - 10 -
enforcement or corrections personnel may increase the possibility of prejudice to

the defendant either by highlighting the defendant’s prior contact with the

criminal justice system, if the witness’s occupation is revealed to the jury, or by

effectively constraining defense counsel’s ability to undermine the basis for the

witness’s identification on cross-examination, if the witness’s occupation is to

remain concealed.”); United States v. Pace, 10 F.3d 1106, 1116 (5th Cir. 1993)

(stating that “the appearance of these witnesses [probation or parole officers]

before a jury always carries the potential for the interjection of unfair prejudice to

the defendant”); United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977)

(stating that “use of lay opinion testimony by policemen or parole officers is not

to be encouraged, and should be used only if no other identification testimony is

available to the prosecution”).

      In light of this potential prejudice, some courts have found reversible error

in the admission of probation officers’ testimony. For example, in United States

v. Calhoun, 544 F.2d 291 (6th Cir. 1976), the Sixth Circuit reversed a robbery

conviction on the grounds that the trial court had abused its discretion in allowing

the defendant’s parole officer to identify him from a surveillance photograph. It

reasoned that “[e]ven though a more complete and uninhibited examination of

[the parole officer] might not have brought out the precise crime for which [the

defendant] was then on parole, the fact that he was on parole itself may have been

even more prejudicial than the jury’s simple knowledge of his prior conviction of


                                         - 11 -
a felony.” Id. at 296. In the Sixth Circuit’s view, “[p]arole suggests to the jury

that the crime was recent and that it was one which required imprisonment. The

knowledge that [the defendant] was on parole at the time of the alleged offense

could also arouse an emotional reaction among the jurors, especially those who

harbor strong feelings about recidivism and the premature release of those in

prison for crimes.” Id.

      Notably, the Calhoun court reached this conclusion even though the

probation officer did not identify himself by his profession and only stated that he

had met the defendant nine or ten times, in meetings lasting fifteen minutes to an

hour. See 544 F.2d at 293 n.1 (setting forth direct and cross examination in full).

The court reasoned that the defendant could not effectively cross-examine the

parole officer without risking the disclosure of his criminal record and that such

disclosure would be unduly prejudicial. See also State v. Martinez, 607 P.2d 137

(N.M. Ct. App. 1980) (holding that the trial court abused its discretion in

allowing a parole officer to testify that he recognized the defendant’s signature

and reversing convictions for obtaining a controlled substance by

misrepresentation); State v. Bragg, 221 N.W.2d 793, 797 (N.D. 1974) (reversing a

burglary conviction in part on the ground that the trial court erred in allowing a

parole officer to testify because the testimony “allow[ed] the prosecution to put




                                        - 12 -
before the jury the circumstantial evidence from which the jury could reasonably

infer that the defendant had a prior criminal record”). 3

      In contrast to the Sixth Circuit’s decision in Calhoun, this court has taken a

more measured approach. In United States v. Contreras, 536 F.3d 1167, 1169

(10th Cir. 2008), the trial court allowed the prosecution to present testimony from

a parole officer who identified the defendant from photographs taken by a video

surveillance camera during the charged bank robbery, “but required the

Government to limit its direct examination to exclude the details of [the

witness’s] role as [the defendant’s] probation officer.” We held that the trial

court did not abuse its discretion in allowing the testimony, and we rejected

Calhoun’s per se approach. We reasoned that the defendant “could freely

cross-examine [the probation officer], either by (1) “limit[ing] the scope of his

cross-examination to exclude details of the nature of their relationship and focus



      3
           Some courts have rejected the contention that the disclosure of a
probation officer’s profession is unduly prejudicial. See, e.g., Dunnigan v.
Keane, 137 F.3d 117, 126 (2d Cir. 1998) (concluding, in a federal habeas action,
that a trial judge plausibly ruled that a probation officer’s profession was relevant
to the evaluation of the officer’s credibility); Commonwealth v. Carpenter, 515
A.2d 531, 535 (Pa. 1986) (concluding that “the mention of the witness’
occupation as a parole officer and the fact that he knew the appellant did not
convey to the jury, either expressly or by reasonable implication, the fact of a
prior criminal offense or record” and that “[s]uch an inference, while certainly
possible, was most certainly not conveyed to the jury by the mere mention of the
witness’ occupation and the fact that he knew appellant, as there are an infinite
variety of ways that appellant might otherwise know a person who was a parole
officer”).

                                         - 13 -
solely on questions regarding whether [the defendant’s] past interactions with [the

defendant] adequately enabled her to identify him from the surveillance

photographs[;]” or (2) electing to “fully cross-examine [the probation officer]

without concern about testimony regarding her role as [the defendant’s] probation

officer.” Id. at 1171-72.

       Our approach in Contreras comports with decisions of other circuits,

which have rejected Calhoun’s per se rule and considered the admission of parole

and probation officer testimony on a case-by-case basis. As the Fifth Circuit has

observed, “[s]ubsequent cases from the Fourth, Eighth, and Ninth Circuit Courts

of Appeals have criticized Calhoun, where they have not rejected it outright” and

“reject[ed] an inflexible holding that a trial court’s decision to allow a

defendant’s parole officer to testify against the defendant is a per se violation of

Rule 403.” Pace, 10 F.3d at 1115 (collecting cases); see also Pierce, 136 F.3d at

776 (holding that the trial court did not abuse its discretion in allowing a

probation officer to testify that she recognized the defendant from a bank

surveillance video, even though she testified that she knew the defendant solely in

her capacity as a probation officer); United States v. Allen, 787 F.2d 933, 938 (4th

Cir. 1986) (finding no abuse of discretion in the admission of a probation

officer’s testimony when the occupation of the witness was not disclosed),

vacated on other grounds, 479 U.S. 1077 (1987); United States v. Farnsworth,

729 F.2d 1158 (8th Cir. 1984) (same).

                                         - 14 -
      Some of these courts have concluded that trial judges should employ

procedures to minimize the potential prejudice of the testimony. These

procedures include (1) allowing the defendant, outside the presence of the jury, to

object to the introduction of the testimony and to cross-examine the witness so

that the judge may “consider fully the value and possible prejudice from the use

of this testimony” before deciding whether to admit it, Allen, 787 F.2d at 938, and

(2) instructing the prosecution not to reveal the occupation of the witness before

the jury. Id.; see also Pace, 10 F.3d at 1116 (“strongly urg[ing] all trial courts in

this circuit to adopt prophylactic procedures for the use of testimony by a

probation or parole officer” and explaining that “[s]uch testimony should not be

sprung upon the court, but timely revealed so the trial court, outside the jury’s

presence, may gauge the anticipated testimony upon the weight scales of Rule

403”); Farnsworth, 729 F.2d at 1161 (endorsing the trial judge’s “direct[ing] the

government not to delve into the circumstances of the parole officers’

relationships with the defendant”).

      In Mr. Allums’s case, the admissibility of Officer Howard’s testimony that

he “work[ed] for the adult probation and parole,” Rec. vol. III, at 214, presents a

close question. Some factors support the district court’s decision to allow the

testimony, while others suggest that the testimony should have been excluded.

      On the one hand, the prosecution commendably notified the court and Mr.

Allums of its intention to call Officer Howard and of the potential prejudice that

                                         - 15 -
might result from statements about his occupation. In addition, the prosecution

made a reasonable proposal to describe Officer Howard to the jury as Mr.

Allums’s “friend, associate, or acquaintance.” Id. vol. I, doc. 123, at 4-5.

Further, the prosecution did not attempt to invoke Officer Howard’s position as a

means of bolstering his credibility, and it did not argue to the jury that the

testimony suggested that Mr. Allums had a criminal record that made it more

likely that he had committed the charged crimes.

      On the other hand, Mr. Allums plausibly argues that, in contrast to both

Contreras, and the prosecution’s initial proposal in this case, Officer Howard’s

employment as a probation officer was revealed to the jury on direct examination.

As a result, the jury could have inferred that Mr. Allums had a criminal record, a

fact not relevant to the charged crimes and potentially prejudicial.

      In any event, we need not decide whether the district court abused its

discretion in admitting the testimony. As we explain below, even if the district

court erred, the other evidence supporting Mr. Allums’s convictions clearly

establishes that the error was harmless. See Smith, 534 F.3d at 1220 (assuming

that the district court erred in admitting graphic photographs of a murder scene

but further concluding that the assumed error was harmless because “the

remaining evidence against [the defendant] was so strong”); United States v.

Clifton, 406 F.3d 1173, 1179 (10th Cir. 2005) (assuming that the district court

erred in admitting testimony from a law enforcement agent because the testimony

                                         - 16 -
constituted hearsay and improper impeachment and was unduly prejudicial under

Rule 403 but further concluding that the assumed error was harmless).

B. Assuming that the district court erred in admitting Officer Howard’s
testimony that he “work[ed] for adult probation and parole,” the error was
harmless.

      Mr. Allums acknowledges that a non-constitutional error in admitting

evidence is harmless unless the evidence affects the substantial right of a party.

See Aplt’s Br. at 14 (internal quotation marks and citation omitted); see also

Griffin, 389 F.3d at 1104 (stating that “a non-constitutional error is harmless

unless it had a substantial influence on the outcome or leaves one in grave doubt

as to whether it had such effect”) (internal quotation marks and citation omitted).

“We review the record as a whole de novo to evaluate whether the error is

harmless, examining the context, timing and use of the erroneously admitted

evidence at trial and how it compares to properly admitted evidence.” United

States v. Magleby, 241 F.3d 1306, 1317 (10th Cir. 2001) (internal quotation marks

and citation omitted). “Where the wrongly admitted evidence was cumulative of

other properly admitted evidence, it is less likely to have injuriously influenced

the jury’s verdict.” Clifton, 406 F.3d at 1179 (alteration, citation, and internal

quotation marks omitted). The prosecution must establish by a preponderance of

the evidence that the error in admitting the evidence at issue was harmless.

Cerno, 529 F.3d at 939.




                                        - 17 -
      Here, Mr. Allums maintains that the prosecution cannot establish that the

alleged error in admitting Mr. Allums’s testimony was harmless. He invokes

several of the gaps in the remaining evidence. In particular, he points to the fact

that the offender wore a mask throughout the the K-Mart and Salt Lake Schools

Credit Union robberies, making eyewitness identification impossible. Mr. Allums

further contends that the eyewitnesses to the Home Savings Bank robbery were

not particularly convincing: neither Jeff Ballard nor Don Ballard identified Mr.

Allums in a pretrial lineup, and athough Don Ballard subsequently testified at

trial that Mr. Allums was the man who attempted the robbery, he did so only after

seeing Mr. Allums (the only African American in the courtroom) seated at the

defendant’s table. Finally, Mr. Allums characterizes the prosecution’s cell phone

evidence as inconclusive, noting that the evidence was substantially similar with

regard to all three charged offenses and that the jury acquitted him of the October

23, 2007, robbery of the K-Mart.

      We are not persuaded by Mr. Allums’s arguments. Most importantly, aside

from Officer Howard’s testimony, the prosecution presented other witnesses who

viewed the surveillance tape from the Home Savings Bank and identified Mr.

Allums as the attempted robber. Detective Hartney testified that he had

interviewed Mr. Allums approximately five months before the attempted robbery

and that he was quite certain that it was Mr. Allums’s voice on the surveillance

video. Detective Hartney further explained that, in addition to his voice, he

                                        - 18 -
recognized Mr. Allums from his physical features, demeanor, posture,

movements, face and teeth. Similarly, Kaderius Allums, Mr. Allums’s nephew,

testified that the voice on the surveillance video sounded like Mr. Allums’s.

      In addition to this identification testimony, the prosecution offered

substantial evidence to support the two convictions, including (1) evidence of the

shoe prints taken from the Salt Lake City Schools Credit Union that closely

resembled the prints from the shoes found on porch of Mr. Allums’s residence

and that fit Mr. Allums; (2) the coat and boots that were also found in Mr.

Allums’s residence, that resembled those worn by the offender depicted in the

Home Savings Bank video, and that fit Mr. Allums; and (3) the cell phone records

that placed Mr. Allums near the Salt Lake Schools Credit Union and the Home

Savings Bank on the days that the offenses were committed. Moreover, the jury

had the opportunity to hear Mr. Allums’s voice on the audio tapes of phone calls

that he made from jail and to compare his voice to that of the offender on the

Home Savings Bank surveillance tape.

      Accordingly, we agree with the government that the record indicates by a

preponderance of the evidence that any error in allowing Officer Howard to

testify that he worked for the probation office was harmless. The challenged

testimony neither had a substantial influence on the outcome nor leaves us in

grave doubt as to whether it had such effect.




                                       - 19 -
                              III. CONCLUSION

      We do not reach the question of whether the district court abused its

discretion in admitting Officer Howard’s testimony about his employment and his

contacts with Mr. Allums. Assuming that the district court did err, we conclude

that any error was harmless, and we therefore AFFIRM Mr. Allums’s convictions.



                               Entered for the Court,



                               Robert H. Henry
                               Circuit Judge




                                      - 20 -
