                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3361
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska
Donald Lupino,                          *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: April 19. 2002

                                  Filed: September 3, 2002
                                   ___________

Before HANSEN, Chief Judge, and McMILLIAN and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              ___________

McMILLIAN, Circuit Judge.

       Donald Lupino appeals from a final judgment entered in the United States
District Court for the District of Nebraska sentencing him to ninety-two months
imprisonment after a jury returned verdicts of guilty on two counts of assault. United
States v. Lupino, No. 4:00CR281 (D. Neb. Sept. 24, 2001) (judgment and sentence).
For reversal, Lupino argues that the district court abused its discretion by allowing
the arresting officer to testify that Lupino offered to sell him marijuana. For the
reasons expressed below, we affirm the judgment of the district court.
      Jurisdiction was proper in the district court pursuant to 18 U.S.C. §§ 1153
(offenses committed by Native American within Native American territory) and 3231
(federal criminal jurisdiction). This court has jurisdiction pursuant to 28 U.S.C.
§ 1291 (final decisions). The notice of appeal was timely filed pursuant to Fed. R.
App. P. 4(b).

                                   I. Background

       On October 18, 2000, a federal grand jury returned a two-count indictment
against Lupino, who is Native American, charging that he assaulted his cousin Tyrone
Wells, who also is Native American, within the territorial limits of the Omaha Indian
Reservation (“the Reservation”). Specifically, the indictment charged Lupino with
(1) assault with a dangerous weapon, in violation of 18 U.S.C. §§ 113(a)(3) and 1153,
and (2) assault resulting in serious bodily injury, in violation of 18 U.S.C.
§§ 113(a)(6) and 1153. On June 20, 2001, the jury trial began. The government’s
evidence at trial established the following facts.

       Lupino and Wells, who both are members of the Omaha Tribe of Nebraska,
lived together at the same residence on the Reservation (“the residence”). Their
grandmother, their mothers, and Wells’s girlfriend Sasha Miller also lived at the
residence.

      At night on September 25, 2000, Miller returned home with Wells after driving
around the Reservation. Wells had been drinking alcohol while Miller drove the
vehicle. After Miller parked the vehicle in the lot behind the residence, Lupino
approached the vehicle and, at the invitation of Wells, began to drink alcohol with
him. While they were drinking, Wells and Lupino engaged in a conversation which
eventually led to an argument. Lupino ran away from the vehicle and disappeared
from sight. Wells and Miller remained by the vehicle.



                                         -2-
       Lupino reappeared a few minutes later holding his left hand behind his back.
Approaching Wells, Lupino said that he was not afraid of him and that he was
“nobody’s punk.” Lupino then lunged at Wells with the object concealed in his left
hand, which appeared to Miller to be a screwdriver, and stabbed Wells in the right
side of his abdomen. Miller ran inside the residence, called the police, and told
Wells’s mother that Wells and Lupino were fighting and that Lupino may have
stabbed Wells with a screwdriver. While Miller was inside the residence, Lupino
continued to attack Wells, who was using his nylon jacket as a shield to fend off
additional blows.

        When Miller emerged from the residence, she saw Wells using his jacket to
defend himself. Lupino ran away when a car drove in the direction of the men. After
Lupino fled, Wells told Miller he had been stabbed. Wells showed Miller a dime-
sized puncture wound in his lower right abdomen as well as a puncture hole and tear
in his jacket. Miller helped Wells get to an ambulance, which rushed him to Mercy
Medical Center, a trauma hospital in Sioux City, Iowa. At Mercy Medical Center,
trauma surgeon Dr. William Rizk observed that Wells’s abdomen was filled with
blood, that his stab wound was four to five inches deep, and that the stabbing had
punctured a hole through his intestine and torn an artery in his small bowel
mesentery. Dr. Rizk performed emergency surgery on Wells to prevent him from
dying from the internal bleeding.

      After Wells was rushed away in the ambulance, Miller remained behind at the
residence to assist the tribal police in their search for Lupino. For two hours that
evening, the tribal police searched without success for Lupino and the weapon.

       The following morning, tribal police officer Roberto Gorrin, who was alone
and was not wearing a uniform, returned to the residence to continue the
investigation. He learned that Lupino had never returned to the residence on the
previous night. As Officer Gorrin was leaving the area, Lupino appeared from a

                                        -3-
neighboring home and asked Officer Gorrin whether he was interested in buying
some “smoke.” Officer Gorrin interpreted the term “smoke” to mean marijuana.
Officer Gorrin testified that he felt uncomfortable attempting to arrest an assault
suspect without his weapon, handcuffs, or backup officers. He told Lupino that he
was interested in buying marijuana and would be back later, and then returned to the
police station without arresting Lupino.

       Officer Gorrin returned with backup officers ten minutes later, but Lupino was
no longer at the neighbor’s home. When the officers went to a different neighbor’s
home to look for Lupino, Jamie Speelman answered the door. Speelman told the
officers that Lupino was not present and that they would need a search warrant to
look inside their house. However, Speelman subsequently opened the door and
revealed that Lupino indeed was inside. The officers arrested Lupino immediately.
Speelman testified that, on the morning of September 26, 2000, Lupino told her that
he had stabbed Wells the night before with a knife that he had thrown away.

      On June 21, 2001, the jury returned verdicts of guilty on both counts of the
indictment against Lupino. On September 20, 2001, the district court sentenced
Lupino to ninety-two months imprisonment and three years of supervised release.
This appeal followed.

                                    II. Discussion

       At trial, the government presented Officer Gorrin’s testimony that Lupino had
attempted to sell the officer marijuana on the day he was arrested. Prior to trial, the
district court had denied Lupino’s motion in limine to exclude that testimony on
relevancy grounds. The district court also overruled Lupino’s objections at trial that
the testimony was irrelevant. Lupino did not ask the district court to give the jury a
limiting instruction on the purpose of Officer Gorrin’s testimony, and none was
given. On appeal, Lupino argues that the district court erred by refusing to exclude

                                          -4-
this evidence from trial. Lupino contends that Officer Gorrin’s testimony had nothing
to do with whether or not he actually had assaulted Wells. Lupino further argues that
the district court’s decision to admit this testimony unfairly prejudiced him by
frustrating his sole defensive strategy (which was to remain silent and challenge the
credibility of the government witnesses) by labeling him a drug dealer and calling his
own credibility into question.

       We review a district court’s evidentiary decisions for an abuse of discretion.
See United States v. Johnson, 169 F.3d 1092, 1097 (8th Cir.), cert. denied, 528 U.S.
857 (1999). Even where we find that the district court has abused its discretion with
respect to an evidentiary ruling, we will not reverse the conviction if the error was
harmless. See, e.g., United States v. Byler, 98 F.3d 391, 394 (8th Cir. 1996) (Byler)
(affirming conviction after applying harmless error test). The test for harmless error
is whether the erroneous evidentiary ruling “had a ‘substantial influence’ on the jury's
verdict.” Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) (Peterson)
(reviewing evidentiary ruling for harmless error). For the reasons discussed below,
we affirm the decision of the district court.

A. Rule 401 of the Federal Rules of Evidence
      Lupino first challenges the relevancy of Officer Gorrin’s testimony. We
conclude that the district court did not abuse its discretion by denying Lupino’s
motion in limine and overruling his objections to Officer Gorrin’s testimony on
grounds of relevance. A piece of evidence is relevant if it tends “to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without that evidence.” Fed. R. Evid. 401.

       Officer Gorrin’s testimony provided the factual context for Lupino’s
investigation and arrest. See United States v. Harris, 956 F.2d 177, 179 (8th Cir.),
cert. denied, 506 U.S. 827 (1992) (“[A]lthough references to other crimes generally
are inadmissible, the prosecution is entitled to explain the circumstances surrounding

                                          -5-
the investigation and arrest of a defendant.”); see also United States v. Summers, 137
F.3d 597, 601 (8th Cir. 1998) (explaining that evidence of factual setting of crime is
relevant). In his testimony, Officer Gorrin explained that (1) he learned that morning
that Lupino had not returned to the residence, (2) Lupino must have been watching
the front door of the residence because he emerged from hiding to speak to the plain-
clothed Officer Gorrin just as Officer Gorrin was walking away, (3) Lupino had
changed hiding places in the ten minutes between the time that Officer Gorrin left and
the time that he returned with other officers, and (4) Speelman and her brother were
hiding Lupino in their home. This evidence tended to make it more probable that
Lupino intentionally was hiding from the police and, therefore, that he was cognizant
of his guilt. See United States v. Barnes, 140 F.3d 737, 738 (8th Cir. 1998) (per
curiam) (“Evidence of flight or guilt is admissible and has probative value as
evidence of consciousness of guilt.”).

      Although Officer Gorrin’s testimony touched on irrelevant information about
Lupino’s lifestyle by suggesting that he was a drug dealer, the testimony itself was
nonetheless relevant pursuant to Rule 401 of the Federal Rules of Evidence.

B. Rule 403 of the Federal Rules of Evidence
        We next turn to the question of whether the admission of Officer Gorrin’s
testimony should have been excluded under Rule 403 of the Federal Rules of
Evidence. Rule 403 provides that, “[a]lthough relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice.
. . .” Fed. R. Evid. 403. We give great deference to a district court's application of
the Rule 403 balancing test. See United States v. Claxton, 276 F.3d 420, 422-23 (8th
Cir. 2002).

      We have concluded already that the conversation between Officer Gorrin and
Lupino, in which Lupino offered to sell drugs on the morning of his arrest, had
probative value because it provided the factual setting for the arrest and it made more

                                          -6-
probable the fact that Lupino was cognizant of his guilt. However, we hold that the
testimony as it was presented unnecessarily created a risk of unfair prejudice that
outweighed its probative value; therefore, the district court abused its discretion by
admitting this testimony into evidence.

        “‘Unfair prejudice’ . . . means an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.” See Fed. R.
Evid. 403 advisory committee’s note. Here, the depiction of Lupino as a drug dealer
created the risk that the jury would assume that Lupino was someone with a
propensity for criminal behavior. At the very least, the testimony created the danger
that the jury would draw an unfavorable conclusion about Lupino’s character based
solely on his association with drugs. Even if it was necessary to show that Officer
Gorrin had a conversation with Lupino on the morning of his arrest, we can conceive
of no proper reason why the jury needed to know that the conversation involved drug
dealing. By disclosing the content of the conversation, the government risked
creating an undue tendency for the jury to reach a decision on an improper basis.
Nevertheless, because there was abundant evidence to sustain Lupino’s conviction
without the evidence which marked the defendant as a drug dealer, we doubt that the
testimony “had a ‘substantial influence’ on the jury's verdict.” Peterson, 60 F.3d at
475.

      There was no dispute that Wells had been assaulted by someone with a weapon
and that he had been seriously injured. The government presented evidence at trial
which identified Lupino as the assailant, including (1) the testimony of Wells, who
lived with Lupino, knew him quite well, and identified Lupino as the person who
assaulted him; (2) the testimony of Miller, who also lived with Lupino, knew him
quite well, and saw Lupino attack Wells; and (3) the testimony of Speelman, who
gave Lupino a place to hide from the police and said that Lupino had confessed the
assault to her. Assuming, arguendo, that the jury believed that Lupino was a drug
dealer, such a belief would not make the other evidence of his guilt more credible or

                                         -7-
less credible. The potentially prejudicial testimony did not affect Lupino’s own
credibility because he did not testify and, therefore, his credibility was never at issue.
The government did not argue that there was any connection between Lupino’s drug
dealing and the assault, and neither Wells’s nor Miller’s testimony was premised on
the belief that Lupino was a drug dealer. Moreover, whether or not Lupino dealt
drugs had no bearing on the nature of Wells’s injury, which was undeniable. Thus,
even if the jury disliked Lupino because of Officer Gorrin’s testimony, it is doubtful
that the jury reached its verdict on that basis and not on the basis of the other
overwhelming evidence of his guilt.

       For the foregoing reasons, we hold that, while the district court abused its
discretion by admitting into evidence testimony that was potentially unfairly
prejudicial, the error was harmless.1 See Byler, 98 F.3d at 394 (“If the court finds
that no substantial rights of the defendant were affected, and that the error had no, or
only slight, influence on the verdict, then the error was harmless.”).

                                    III. Conclusion

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

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


      1
        We affirm the judgment of the district court with the knowledge that, although
the testimony about Lupino’s drug solicitation arguably created the danger of unfair
prejudice, it does not appear that its admission affected the outcome of the verdict.
The government would be wise, however, to ensure that it does not take such a risk
in the future.
                                           -8-
