                                                                                   FILED
                                                                       United States Court of Appeals
                                        PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                           May 8, 2018

                                                                           Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                             Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-2030
                                                  (D.C. No. 1:14-CR-04067-JAP-1)
SAMUEL SILVA,                                                (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                           for the District of New Mexico
                          (D.C. No. 1:14-CR-04067-JAP-1)
                       _________________________________

John Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender with him on the brief) Denver, Colorado for Defendant – Appellant.

Edward Han, Assistant United States Attorney (James D. Tierney, Acting United States
Attorney with him on the brief) Albuquerque, New Mexico for Plaintiff – Appellee.
                       _________________________________

Before MATHESON, McKAY, and EBEL, Circuit Judges.
                 _________________________________

MATHESON, Circuit Judge.
                   _________________________________

      Samuel Silva alleges three trial errors:

      1. The district court erred by allowing the prosecution to present evidence of a
         previous felony conviction to support the charge of his being a felon in
         possession of a firearm.
          2. The evidence was insufficient to convict him of being a felon in possession of
             a firearm.

          3. The district court plainly erred by admitting testimony from a DNA expert who
             had made typographical errors in the course of performing her DNA analysis.

          Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                     I. BACKGROUND

                                   A. Factual Background

          On April 23, 2014, a man, later determined by the jury to be Mr. Silva, knocked

on A.S.’s door. After a brief discussion, he brandished a .45 caliber pistol and forced

his way in. The intruder demanded money, jewelry, weapons, and the keys to A.S.’s

car, and bound A.S.’s hands and feet using electrical wire. While the man looked for

the car keys, A.S. removed her restraints, escaped to a neighbor’s home, and called the

police.

          The man next went to a nearby home and ordered C.L. to open his door. When

C.L. declined, he shot the glass door and entered the home. After C.L. unsuccessfully

attempted to arm himself, the intruder demanded C.L.’s truck keys, shot him in the leg,

and fled, leaving behind several items stolen from A.S.’s home. On the same day, a

homeowner called the police to report a truck sitting in his driveway. The truck, later

identified as C.L.’s, had blood on the steering wheel and the driver’s side door.

          Police collected DNA from the truck and the other crime scenes, and matched it

with a sample from Mr. Silva in a database. The victims positively identified Mr. Silva

in photo arrays. An arrest warrant and search warrant were issued for Mr. Silva.

          On July 1, 2014, police apprehended Mr. Silva while he was driving a rented

                                               2
Nissan Murano. The arresting officer noticed a handgun wedged in the driver’s seat. In

searching the car later, officers also located heroin, Flexicuffs (plastic handcuffs), and

drug paraphernalia in the vehicle. Alcohol, Tobacco, and Firearm (“ATF”) agents

identified the firearm as a Smith and Wesson model 411, .40 caliber semiautomatic

pistol. They also identified ammunition seized from the Nissan as one round of

Remington brand .40 caliber ammunition and eight rounds of CBC brand .40 caliber

ammunition. The pistol and all of the ammunition were manufactured outside of New

Mexico. At the time of his arrest, Mr. Silva had an extensive criminal history, including

convictions for multiple felonies.

                                B. Procedural Background

1. Indictment

       Following Mr. Silva’s arrest, a federal grand jury returned a six-count indictment

against him. Counts One through Five concerned the April 23, 2014 incidents and

charged Mr. Silva with: (1) attempted carjacking in violation of 18 U.S.C. § 2119(1),

(2) knowingly using and carrying a firearm in furtherance of the attempted carjacking in

violation of 18 U.S.C. § 924(c), (3) carjacking in violation of 18 U.S.C. § 2119(2), (4)

knowingly using and carrying a firearm in furtherance of a carjacking, and (5)

knowingly possessing a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2).

       Count Six concerned Mr. Silva’s arrest on July 1, 2014, and charged him with

knowingly possessing “a Smith and Wesson Model 411 .40 caliber semi-automatic

pistol,” “approximately one (01) Remington brand .40 caliber cartridge,” and

                                              3
“approximately eight (08) CBC brand .40 caliber cartridges,” in violation of §§

922(g)(1) and 924(a)(2). ROA, Vol. 1 at 32–33. Both Counts Five and Six specified

Mr. Silva’s eight previous felony convictions. Mr. Silva pled not guilty to all counts.

2. Pretrial Motions

       Two pretrial motions are relevant here. First, the district court granted Mr.

Silva’s motion to sever Count Six from Counts One through Five for separate trials.

Second, Mr. Silva moved to prevent the jury in each trial from hearing that he was a

convicted felon. He offered instead to stipulate that he is a convicted felon and asked

the court to instruct the jury that he is a “prohibited person” for purposes of the charges

in Count Five and Six for violations of § 922(g)(1). Id. at 95-96. He argued that “any

evidence that Mr. Silva has a felony record creates the unacceptable risk that the jury

could improperly use this information, not to determine Mr. Silva’s guilt for the

charged offense, but as proof of his bad character.” Id. at 97. The district court denied

the motion because it “lack[ed] merit under Tenth Circuit law.” Id. at 219 (citing

United States v. Prieto, 565 F. App’x 758, 763 (10th Cir. 2014) (unpublished)).

3. First Trial – Count Six

       The first trial concerned Count Six. Before the trial, Mr. Silva stipulated that he

had a prior felony conviction and that the weapon found in the car affected interstate

commerce.

       At trial, the prosecution presented evidence on whether Mr. Silva had

“knowingly possessed” the firearm found in the car. Officer David Nix, who searched

the car after it had been towed, identified Exhibit 1 as the “firearm that we recovered

                                              4
from the front driver’s seat of the Nissan Murano.” ROA, Vol. 5 at 244, 246. ATF

Officer Derek Wright also testified. The prosecutor showed him Exhibits 1, 2A, and 2B

and described 2A and 2B as “a magazine and some ammunition.” Id. at 263. Officer

Wright testified that the ammunition consisted of “nine .40 caliber cartridges. One is a

Remington Peters brand and the others are CBC brand, .40 caliber ammunition.” Id.

Neither he, nor any other witness, identified the ammunition as having been found

within the gun from the Nissan Murano.

       The jury returned a guilty verdict.

4. Second Trial – Counts One through Five

       The second trial focused on whether Mr. Silva was the person who committed

the home invasions on April 23, 2014. A flawed identification procedure barred C.L.

from giving identification testimony, and A.S. could not identify anyone in the

courtroom as the intruder. The only identification evidence against Mr. Silva was based

on DNA analysis.

       The jury heard testimony from DNA analyst Alanna Williams about blood

samples found in C.L.’s truck and inside C.L.’s house. Ms. Williams testified that, after

the home invasions, she determined that DNA from inside the door of C.L.’s truck

matched Mr. Silva’s profile in the DNA database. Police arrested Mr. Silva based on this

identification. After his arrest, he provided a cheek swab, which Ms. Williams matched

to the sample from the truck and one of three samples from C.L.’s house. She concluded

that “[Mr.] Silva could not be excluded as the donor” and that the probability anyone else



                                             5
was the source of the DNA found in the truck and in C.L.’s home was exceptionally low.

Id. at 689, 691, 692.

       As we discuss further below, the defense cross-examined Ms. Williams about

typographical errors in the record-keeping of the samples.

       The jury found Mr. Silva guilty of all five charges. The court imposed a total

sentence of 564 months in prison.

                                     II. DISCUSSION

                   A. Motion to Exclude Reference to Prior Felony Conviction

       The parties have devoted most of their arguments in their briefs and at oral

argument to whether the district court erred in refusing to exclude reference to Mr.

Silva’s having previously been convicted of a felony. A previous felony conviction is an

element of the offenses charged under 18 U.S.C. § 922(g)(1) in Counts Five and Six of

Mr. Silva’s indictment.

1. Standard of Review

       We review legal interpretations of the Federal Rules of Evidence de novo.

United States v. Gutierrez de Lopez, 761 F.3d 1123, 1132 (10th Cir. 2014). We review

evidentiary decisions for abuse of discretion. Id.; United States v. Griffin, 389 F.3d

1100, 1103 (10th Cir. 2004). In particular, “[w]e will disturb a trial court’s decision to

admit evidence under Rule 403 only for an abuse of discretion.” United States v.

Charley, 189 F.3d 1251, 1260 (10th Cir.1999); see Old Chief v. United States, 519 U.S.

172, 174 n.1 (1997) (“The standard of review applicable to the evidentiary rulings of the

district court is abuse of discretion.”).

                                              6
       “A district court abuses its discretion when it renders an arbitrary, capricious,

whimsical, or manifestly unreasonable judgment.” Ralston v. Smith & Nephew

Richards, Inc., 275 F.3d 965, 968 (10th Cir. 2001) (quotations omitted). A district

court’s decision will be reversed “only if the court exceeded the bounds of permissible

choice, given the facts and the applicable law in the case at hand.” United States v.

McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quotations omitted).

2. Additional Procedural Background

       Mr. Silva filed a pretrial motion to “prevent the jury from hearing evidence that

Mr. Silva is a convicted felon.” ROA, Vol. 1 at 95. He was “prepared to stipulate that

he has been convicted of each of the enumerated felonies set out in the Grand Jury

Indictment,” id. at 96, which, he said, would be “a conclusive stipulation to an essential

element of the crime charged in 18 U.S.C. § 922(g)(1),” id. at 99. Mr. Silva

“request[ed] that the Court instruct the jury in broader terms that Mr. Silva has

stipulated that he is a ‘prohibited person.’” Id. at 96. He argued that “any evidence that

Mr. Silva has a felony record creates the unacceptable risk that the jury could

improperly use this information, not to determine Mr. Silva’s guilt for the charged

offense, but as proof of his bad character.” Id. at 97. He primarily relied on Federal

Rule of Evidence 403 and Old Chief, 519 U.S. 172.

       In response, the Government conceded that, if Mr. Silva stipulated he was a

convicted felon, it could not inform the jury about “the nature of the previous felony.”

ROA, Vol. 1 at 213. But it argued that Old Chief did not require the court to modify the

relevant pattern jury instruction to say that Mr. Silva was a “prohibited person” rather

                                              7
than a “person who has been previously convicted in any court of a felony.” Id. at 214

(quoting Tenth Circuit Pattern Jury Instruction 2.44 – Possession of a Firearm by a

Convicted Felon 18 U.S.C. § 922(g)(1)).

       At a hearing on this motion, counsel for Mr. Silva said, “The record should

reflect that we are prepared to stipulate to the fact of Mr. Silva’s prior felony conviction

so long as it is clear from the record that we are not giving up our opportunity to

challenge that matter on appeal.” ROA, Vol 4 at 48. The district court denied the

motion, stating it lacked merit under Prieto, 565 F. App’x. at 763. The court said it

would follow the Tenth Circuit’s pattern jury instruction, which required the jury to find

Mr. Silva had been previously convicted of a felony.

       At the first trial, the judge, just before presenting the jury instructions, read the

following stipulation to the jury:

       The first stipulation is entitled Stipulation Regarding Prior Felony
       Convictions. It reads as follows: The parties, by and through their
       undersigned counsel stipulate and agree as follows:

       1. [T]he defendant, Samuel Silva, prior to July 1, 2014, had been
       convicted of a crime punishable by imprisonment for a term
       exceeding one year. That is, a felony offense, as charged in the
       indictment in this case.

       2. [T]his stipulated fact is proved beyond a reasonable doubt and
       may be read to the jury at trial.

       This stipulation also relieves the government of its burden of proof
       with regard to the defendant’s status as a felon at the time relevant to
       the charge contained in the indictment.

ROA, Vol. 5 at 272.

       The district court instructed the jury as follows:

                                               8
       The defendant is on trial before you upon an indictment brought by
       the grand jury charging as follows:

       On or about July 1, 2014, in Bernalillo County, in the District of
       New Mexico, the defendant, Samuel Silva, having been convicted of
       a felony crime punishable by imprisonment for a term exceeding one
       year, knowingly possessed, in and affecting commerce, a firearm
       and ammunition:

       1. a Smith & Wesson model 411 .40 caliber semiautomatic pistol;

       2. approximately one Remington brand caliber cartridge; and

       3. approximately eight CBC brand .40 caliber cartridges.

       In violation of 18 United States Code Section[s] 922(g)(1) and
       942(a)(2).

Id. at 276-77 .1 The court further instructed:

       To find the defendant guilty of this crime, you must be convinced
       that the government has proved each of the following beyond a
       reasonable doubt: . . .

       Second, the defendant was convicted of a felony, that is, a crime
       punishable by imprisonment for a term exceeding one year, before
       he possessed the firearm or ammunition.

Id. at 278. This instruction was based on Instruction 2.44 – Possession of a Firearm by a

Convicted Felon, from the Tenth Circuit Pattern Jury Instructions.

       At the second trial, the judge, just before presenting the jury instructions, read the

following stipulation to the jury:

       1
         The judge also read this passage from the indictment to the jury venire at the
beginning of the trial.
       This recitation of the charge did not include Mr. Silva’s prior eight felonies that
were listed in the indictment in both Counts Five and Six. The court appeared to grant
Mr. Silva’s request made at the hearing on his motion to exclude: “We would rely on the
Old Chief case to at the very least eliminate the particular felonies that are enumerated in
the grand jury indictment . . . .” ROA, Vol. 5 at 143.
                                              9
       The parties, by and through their undersigned counsel, stipulate and
       agree as follows:

       1. The defendant, Samuel Silva, prior to April 23, 2014, had been
       convicted of a crime punishable by imprisonment for a term
       exceeding one year, that is, a felony offense, as charged in the
       indictment in this case.

       2. This stipulated fact is proved beyond a reasonable doubt and may
       be read to the jury at trial.

       This stipulation also relieves the government of its burden of proof
       with regard to the defendant’s status as a felon at the time relevant to
       the charge contained in the indictment.

Id. at 759.

       The district court instructed the jury as follows:

       The defendant is on trial before you upon an indictment brought by
       the grand jury charging as follows: . . .

       Count 5: On or about April 23, 2014, in Bernalillo County, in the
       District of New Mexico, the defendant, Samuel Silva, having been
       convicted of a felony crime punishable by imprisonment for a term
       exceeding one year, knowingly possessed, in and affecting
       commerce, ammunition, approximately two Sellier and Bellot Brand
       .45 caliber cartridges, in violation of 18 United States Code Sections
       922(g)(1) and 942(a)(2).

Id. at 763-65.2 The court further instructed as to Count 5 that:

       To find the defendant guilty of this crime, you must be convinced
       that the government has proved each of the following beyond a
       reasonable doubt: . . .

       Second: The defendant was convicted of a felony, that is, a crime
       punishable by imprisonment for a term exceeding one year, before
       he possessed the ammunition . . . .


       2
        The judge also read this passage from the indictment to the jury venire at the
beginning of the trial.
                                             10
Id. at 771. This instruction was, again, based on Instruction 2.44 – Possession of a

Firearm by a Convicted Felon, from the Tenth Circuit Pattern Jury Instructions.

3. Legal Background

       a. 18 U.S.C. § 922(g)(1)

       The felon-in-possession statute, 18 U.S.C. § 922(g)(1), provides that “[i]t shall be

unlawful for any person who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year; . . . to . . . possess in or affecting commerce,

any firearm or ammunition.” The Government must prove “(1) [the defendant] was

previously convicted of a felony; (2) he thereafter knowingly possessed a firearm; and (3)

the possession was in or affecting interstate commerce.” United States v. Benford, 875

F.3d 1007, 1015 (10th Cir. 2017).

       b. Federal Rules of Evidence 403 and 404

       Evidence of a defendant’s previous criminal conviction must meet the

requirements of Federal Rule of Evidence 404(b) to be admissible. Rule 404(b) states

that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance

with the character,” essentially barring evidence of prior bad acts to show someone has a

propensity to act in a certain way. But the second part of Rule 404(b) allows this

evidence for other purposes, including as evidence of an element of the offense. See Old

Chief, 519 U.S. at 184 (Rule 404(b) “deal[s] with admissibility when a given evidentiary

item has the dual nature of legitimate evidence of an element and illegitimate evidence

of character”). Even if such evidence may be admissible under Rule 404(b), it could

                                            11
nevertheless be excluded under Federal Rule of Evidence 403.

       Rule 403 provides that “[t]he court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” “‘Unfair prejudice’ within its context

means an undue tendency to suggest [a] decision on an improper basis, commonly,

though not necessarily, an emotional one.” Fed. R. Evid. 403 advisory committee note

to 1972 proposed rules. “[A]s to a criminal defendant, [it] speaks to the capacity of

some concededly relevant evidence to lure the factfinder into declaring guilt on a ground

different from proof specific to the offense charged.” Old Chief, 519 U.S. at 180. In

deciding whether to exclude evidence under Rule 403, “consideration should be given to

the probable effectiveness or lack of effectiveness of a limiting instruction” and “[t]he

availability of other means of proof.” Fed. R. Evid. 403 advisory committee note to

1972 proposed rules.

       “The district court has considerable discretion in performing the Rule 403

balancing test,” but “exclusion of evidence under Rule 403 that is otherwise admissible

under the other rules ‘is an extraordinary remedy and should be used sparingly.’”

United States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001) (quoting United States v.

Rodriguez, 192 F.3d 946, 949 (10th Cir. 1999)). The district court need not expressly

state whether “the probative value of the evidence substantially outweighed its potential

for unfair prejudice” where “th[ose] determinations are supported by the record.”



                                             12
United States v. Lazcano-Villalobos, 175 F.3d 838, 846 (10th Cir. 1999).3

       c. Old Chief v. United States

       This appeal turns on the Supreme Court’s decision in Old Chief. Like Mr. Silva,

Mr. Old Chief was indicted for violating 18 U.S.C. § 922(g)(1)—being a felon in

possession of a firearm. He admitted having a felony conviction, but he denied

possession of a firearm. “[S]ensibly worried” that evidence of his prior conviction for

assault causing serious bodily injury would unfairly prejudice the jury, he moved for an

order to exclude any evidence about his prior conviction other than a stipulation that he

had been convicted of a felony. Id. at 175, 185. The prosecution rejected the stipulation

and was allowed to introduce, over Mr. Old Chief’s Rule 403 objection, the order of

judgment and commitment for the prior conviction. The jury convicted Mr. Old Chief.

Id. at 175-77. The Ninth Circuit affirmed. Id. at 177.

       The Supreme Court reversed, holding the district court abused its discretion by

allowing the prosecution to reject the stipulation and present detailed information about

the prior conviction. The government’s evidence should have been excluded under Rule

403 when equally probative but less prejudicial alternative evidence—the stipulation of a

prior felony conviction—was available. Id. at 191. The Court said that the “name or

nature of the prior offense generally carries a risk of unfair prejudice to the defendant,”

       3
         An “express articulation of the ‘purpose’ for . . . evidence” may be required
when evidence is admitted under Federal Rule of Evidence 404(b), but “express
articulation of the district court’s Rule 403 analysis on whether the probative value of
the 404(b) evidence outweighed the prejudicial effect” is not required. Lazcano-
Villalobos, 175 F.3d at 847.


                                             13
especially when the “prior conviction was for a gun crime or one similar to other charges

in a pending case.” Id. at 185.

       The Court described the proper Rule 403 analysis as calling for the trial judge “to

evaluate the degrees of probative value and unfair prejudice not only for the item in

question but for any actually available substitutes as well.” Id. at 182. When an

alternative—in this instance Mr. Old Chief’s proffered stipulation—has “substantially the

same or greater probative value but a lower danger of unfair prejudice, sound judicial

discretion would discount the value of the item first offered and exclude it if its

discounted probative value were substantially outweighed by unfairly prejudicial risk.”

Id. at 183.

       The Court acknowledged the government’s interest in choosing how to present its

case, recognizing “the offering party’s need for evidentiary richness and narrative

integrity,” id. at 183, and “the accepted rule that the prosecution is entitled to prove its

case free from any defendant’s option to stipulate the evidence away rests on good

sense,” id. at 189. In this instance, however, this “accepted rule” had “virtually no

application when the point at issue is a defendant’s legal status.” Id. at 190. Allowing

the prosecution to introduce the details of the previous offense would add nothing more

than the stipulation would provide to prove the prior felony element of the felon-in-

possession offense. “The most the jury needs to know is that the conviction admitted by

the defendant falls within the class of crimes that Congress thought should bar a convict

from possessing a gun, and this point may be made readily in a defendant’s admission

underscored in the court’s jury instructions.” Id. at 190-91.

                                              14
4. Analysis

       In conformance with Old Chief, the information presented to the jury in Mr.

Silva’s trials to support the felon status element of § 922(g)(1) was limited to a

stipulation stating that Mr. Silva had been convicted of a felony offense. The prosecution

did not introduce evidence about the name or nature of the prior offense. On its face, the

district court’s handling of this issue matches what the Supreme Court said should have

happened at Mr. Old Chief’s trial. Indeed, the Government argues we should affirm on

this ground alone. But further analysis is necessary because this case is not the same as

Old Chief.

       Unlike Mr. Old Chief, who offered to stipulate to having a previous felony

conviction, Mr. Silva opposed such a stipulation. He wished to stipulate that he was a

“prohibited person” under § 922(g)(1) rather than admit to a felony conviction. And

unlike the prosecutors in Old Chief, the prosecutor here did not seek to introduce the

name or nature of Mr. Silva’s felony convictions. Instead, the Government agreed to the

stipulation that Mr. Silva was previously convicted of a felony. Finally, unlike the

district court in Old Chief, the district court here limited any mention of Mr. Silva’s felon

status to the stipulation and reference in the jury instructions to the Government’s need to

prove the defendant had previously been convicted of a felony.

       The district court did not abuse its discretion in rejecting Mr. Silva’s proposed

stipulation in favor of the Government’s stipulation. In addition, performing a de novo

Rule 403 review, we reach the same conclusion as the district court because the probative

value of the Government’s stipulation was not substantially outweighed by its prejudicial

                                             15
effect, even taking Mr. Silva’s alternate stipulation into account.

       a. No abuse of discretion

       Mr. Silva urges us to focus on the analysis in Old Chief that calls for the district

court, when faced with a Rule 403 objection to the admissibility of certain evidence, to

consider probative value and unfair prejudice in light of available substitutes for that

evidence. Old Chief, 519 U.S. at 182. The Old Chief Court quoted the Rule 403 advisory

committee notes explaining that a trial judge should consider alternative methods of proof

that may be less prejudicial to the defendant. Id. at 184 (quoting Fed. R. Evid. 403

advisory committee notes). The Court said the district court should have compared the

proposed felony offense stipulation with the prosecution’s evidence of the record of the

prior offense. Id. Here, Mr. Silva argues that the district court should have (1) compared

his proposed “prohibited person” stipulation with the “felony offense” stipulation, (2)

determined that the former was equally probative and less prejudicial than the latter, and

(3) admitted the “prohibited person” stipulation instead of the “felony offense”

stipulation and instructed the jury accordingly.

       Presented with the alternative stipulations to compare, the district court chose the

“felony offense” stipulation. In United States v. Clark, 184 F.3d 858 (D.C. Cir. 1999),

the D.C. Circuit also considered whether the district court should have admitted a

stipulation that the defendant was a “prohibited person” rather than a convicted felon, id.

at 865-66. It upheld the district court’s use of the felony-offense stipulation, saying “Old

Chief did not, and does not, require” more than keeping from the jury the name and

offense of the prior conviction. Id. at 867.

                                               16
       Mr. Silva faults the district court for not expressly stating its Rule 403 analysis,

but his motion to exclude evidence of his prior felony discussed Rule 403 and Old Chief,

see ROA, Vol. 1 at 95-101; his counsel and the court discussed Old Chief at the ensuing

hearing, ROA, Vol. 4 at 47-48; and the court’s ruling can reasonably be understood as the

product of comparing the alternatives and of Rule 403 balancing. Moreover, we have

said that a district court need not state whether “the probative value of the evidence

substantially outweighed its potential for unfair prejudice” when “th[ose] determinations

are supported by the record.” Lazcano-Villalobos, 175 F.3d at 846. The record supports

the district court’s determination in this case.

       b. De novo Rule 403 review

       Even where a district court failed to make an explicit finding to support its Rule

403 ruling, “when the record is such that we can do our own de novo balancing of the

Rule 403 factors,” we may do so “without requiring a remand of that issue to the

district court.” United States v. McVeigh, 153 F.3d 1166, 1189 (10th Cir. 1998). The

record here is sufficient for us to take this course. Because two alternative stipulations

were offered, we “take account of the full evidentiary context of the case” and

“evaluate the degrees of probative value and unfair prejudice” for both proposed

stipulations. Old Chief, 519 U.S. at 182.

              (i) Probative value

       Mr. Silva contends that calling him a “prohibited person” is just as probative as

calling him a “convicted felon.” We are not convinced that is so. Unlike in Old Chief,

where the defendant’s proposed stipulation fully satisfied the felon-status element of

                                              17
§ 922(g)(1), Mr. Silva’s “prohibited person” language varies from the statute, which

requires proof that he had been previously convicted of a felony. Using the words of the

statute in the stipulation enabled the government to “satisfy the jurors’ expectations

about what proper proof should be.” Old Chief, 519 U.S. at 188.

              (ii) Unfair prejudice

       Even assuming that using “prohibited person” is just as probative as “convicted

felon,” it does not follow that the “probative value” of the stipulation used in this case

was “substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

Although “convicted felon” may have a more prejudicial connotation than “prohibited

person,” unlike in Old Chief, the prosecution here did not attempt to introduce the name

and nature of any of Mr. Silva’s prior convictions. And in Old Chief, the details of the

defendant’s prior conviction and its similarity with the charge against him turned the

Rule 403 balance against the government. This was so even though “a defendant’s Rule

403 objection offering to concede a point generally cannot prevail over the

Government’s choice to offer evidence showing guilt and all the circumstances

surrounding the offense.” Old Chief, 519 U.S. at 183. Here, the Government did not

seek to introduce evidence on “all the circumstances surrounding the offense;” it limited

the evidence to a stipulation of felony status. The jury did not hear any information

about Mr. Silva’s felony conviction other than that he had one. The stipulation did not

create a “substantial[] . . . danger of . . . unfair prejudice” for Mr. Silva. Fed. R. Evid.

403.



                                              18
              (iii) Confusion

       Also favoring the Government in the Rule 403 balancing is the reasonable

possibility that the words “prohibited person” could confuse the jury. Under Rule 403,

“confusing the issues” is one of the listed bases to exclude evidence—in this instance, the

proposed stipulation containing “prohibited person.” Mr. Silva argues it would not have

been confusing to tell the jury that he is a “prohibited person” and that a “prohibited

person” cannot possess a firearm, but that formulation still does not clarify the meaning

of “prohibited person,” a general term that lacks specificity and context. By contrast, the

stipulation presented to the jury defined someone who has a “felony offense” as having

“been convicted of a crime punishable by imprisonment for a term exceeding one year.”

ROA Vol. 5, at 272, 759; see United States v. Higdon, 638 F.3d 233, 242-43 (3rd Cir.

2011) (discussing how jurors may become confused as to why a defendant is on trial for

possessing a gun if they are not aware that the defendant had previously been convicted

of a felony); see also Clark, 184 F.3d at 867 (noting that doubt as to why someone is

prohibited from possessing a firearm “may influence the jury when it considers the

possession element” (quotations omitted)).

                                              ****

       Because the parties presented the district court with competing stipulations to

compare and the court, after hearing written and oral argument from counsel, chose the

Government’s stipulation based on Old Chief and Prieto, 565 F.App’x at 763, we think

the district court considered its options in light of Rule 403 and did not abuse its

discretion. Alternatively, based on our own de novo Rule 403 analysis, we find no error

                                             19
in the district court’s presenting the stipulation and the jury instruction regarding Mr.

Silva’s prior felony conviction. We affirm the district court on this issue.

        B. Sufficient Evidence Supported Mr. Silva’s Conviction on Count Six

       Mr. Silva contends the evidence at trial was insufficient to convict him on Count

Six because the Government failed to prove that he possessed the ammunition charged in

the indictment. As we explain below, even if Mr. Silva is correct about insufficient proof

that he possessed the ammunition, there was ample proof to support his Count Six

conviction based on his possession of a firearm.

1. Standard of Review

       Whether the Government presented sufficient evidence to support a conviction is

generally reviewed de novo. See United States v. Rufai, 732 F.3d 1175, 1188 (10th Cir.

2013). We “consider[] the evidence in the light most favorable to the government to

determine whether any rational jury could have found guilt beyond a reasonable doubt.”

United States v. Los Dahda, 853 F.3d 1101, 1106 (10th Cir. 2017). “We may reverse

only if no rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Pickel, 863 F.3d 1240, 1251 (10th Cir.

2017) (quotations and alteration omitted).

       Because Mr. Silva did not move for acquittal on Count Six under Federal Rule of

Civil Procedure 29(a), our review is technically for plain error. Id. at 1257 n.16. “But we

typically review [a] sufficiency claim as if it had been raised below because the

applicable standard is essentially the same as plain error.” Id. Here, we determine the



                                             20
evidence was sufficient to support Mr. Silva’s conviction—resulting in no error—so his

challenge fails at step one of plain error review. See id.

2. Count Six and the Rule of Conjunctive Charges

       Mr. Silva argues his Count Six § 922(g)(1) conviction should be reversed because

he was charged with possession of a gun and ammunition and the Government proved

only the former. He misunderstands the law of conjunctive charging.

       When alternative means to commit a crime are stated disjunctively in the statute

and charged conjunctively in the indictment, proof of any one of the means will suffice to

convict. United States v. Pauldino, 443 F.2d 1108, 1112 (10th Cir. 1971). As the

Supreme Court put it, “The general rule is that when a jury returns a guilty verdict on an

indictment charging several acts in the conjunctive . . . the verdict stands if the evidence

is sufficient with respect to any one of the acts charged.” Turner v. United States, 396

U.S. 398, 420 (1970). We have recognized this rule in numerous cases. See, e.g., United

States v. DeChristopher, 695 F.3d 1082, 1095 (10th Cir. 2012).

3. Analysis

       We affirm Mr. Silva’s conviction on Count Six because, even assuming the

Government did not prove Mr. Silva’s possession of the ammunition, his possession of

the gun was enough to support the conviction.

       The statute, indictment, and proof in this case provide an apt example of how the

conjunctive charging rule works in practice when a crime is (1) stated in the statute in the

disjunctive, (2) charged in the indictment in the conjunctive, and (3) proved at trial in the

disjunctive. The felon-in-possession statute, 18 U.S.C. § 922(g)(1), makes it “unlawful

                                             21
for any person . . . who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce,

any firearm or ammunition.” 18 U.S.C. § 922(g)(1) (emphasis added). A felon can

violate the statute by knowingly possessing “any firearm or ammunition,” as stated in the

disjunctive.

       Count Six of the indictment charged Mr. Silva in the conjunctive with possessing:

       (1) a Smith and Wesson Model 411 .40 caliber semi-automatic
       pistol . . . ;
       (2) approximately one (01) Remington brand .40 caliber cartridge;
       and
       (3) approximately eight (08) CBC brand .40 caliber cartridges.

ROA, Vol. 1 at 33 (emphasis added).

       To obtain a conviction under § 922(g)(1), the Government was required to prove

only that Mr. Silva possessed the firearm or ammunition, not both. See United States v.

Brown, 504 F.3d 99, 101, 103-04 (D.C. Cir. 2007) (rejecting challenge to jury instruction

that “the jury . . . could find [the defendant] guilty on the § 922(g)(1) count based on

finding that he knowingly possessed either the firearm or the ammunition even though

the indictment ‘charges possession of a firearm and ammunition’”); United States v.

Thompson¸ 560 F.3d 745, 748 (8th Cir. 2009) (same); United States v. Saavedra, 549 F.

App’x 739, 746 (10th Cir. 2013) (same) (unpublished). Mr. Silva does not contest that

the evidence was sufficient to show he knowingly possessed the firearm.

       Mr. Silva argues that “the government is bound by its charging decisions in an

indictment,” and that the indictment here charges possession of a gun and ammunition.


                                             22
Aplt. Br. at 32. But this argument ignores the general rule that a crime may be proved in

the disjunctive even if the indictment is phrased in the conjunctive. See DeChristopher,

695 F.3d at 1095 (holding the court did not amend the indictment by instructing the jury

in the disjunctive when the indictment was stated in the conjunctive). As applied here,

§ 922(g)(1) can be proved in the disjunctive—that is, with evidence showing possession

of the gun or the ammunition. Even if the evidence was insufficient to prove Mr. Silva

possessed the ammunition charged in the indictment, we may affirm if the evidence was

sufficient to prove Mr. Silva possessed the firearm. Because Mr. Silva has not

challenged the sufficiency of the evidence on his possession of the firearm, we affirm.

                              C. The DNA Evidence Was Admissible

       Mr. Silva argues that the testimony of the DNA analyst, Ms. Williams, should not

have been admitted at the second trial on Counts One through Five because of

typographical errors in identifying the DNA samples. We affirm because the district

court did not abuse its discretion in determining the testimony was reliable and

admissible.

1. Standard of Review

       At Mr. Silva’s second trial, he did not object to Ms. Williams’s testimony. We

therefore review admission of the testimony for plain error. United States v. Hill, 749

F.3d 1250, 1257 (10th Cir. 2014). “Plain error occurs when there is (1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Gonzalez-

Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (quotations omitted). We find error only if it

                                              23
was an abuse of discretion to admit the testimony. United States v. Banks, 884 F.3d 998,

1023 (10th Cir. 2018). Because we find no error, we do not reach the other elements.

2. Additional Procedural Background

         The jury heard testimony about blood samples found (1) in C.L.’s truck, labeled

case number 14-35883; and (2) inside C.L.’s house, labeled case number 14-35889.

These samples were labeled with a “Q” to indicate the sources of the DNA were

unknown. Cheek swabs from Mr. Silva and C.L. were labeled, respectively, as K-1 (“K”

for “known”) under 14-35883 and K-1 under 14-35889. The first two digits of these

numbers—“14”—denote the year—2014. As described above, DNA analyst Ms.

Williams could not exclude Mr. Silva’s profile, K-1 in case number 14-35883, as the

donor for the sample collected from C.L.’s truck and one of the samples from C.L.’s

house.

         Ms. Williams described the samples as “single source samples,” which made the

analysis “as easy as you can get.” ROA, Vol. 5 at 696. On cross-examination of Ms.

Williams, the defense pointed out that, in her digital records, the samples were

described multiple times with the case numbers preceded by a 13 instead of a 14. She

explained this was “a typo” and that she kept the physical test tubes with correctly-

numbered labels in order. Id. at 702. To verify the samples, she referred to the “K” or

“Q” number and the last two digits of each case number (83 and 89), rather than the

first two digits (14 and 14, corresponding to the year). The typos, she said, had

“nothing to do with what’s labeled on the actual tube.” Id. at 707.



                                             24
3. Legal Background

       Under Rule 702, the testimony of a qualified expert is admissible if:

       (a) the expert’s scientific, technical, or other specialized knowledge
       will help the trier of fact to understand the evidence or to determine
       a fact in issue;
       (b) the testimony is based on sufficient facts or data;
       (c) the testimony is the product of reliable principles and methods;
       and
       (d) the expert has reliably applied the principles and methods to the
       facts of the case.

Fed. R. Evid. 702. District courts perform a gatekeeping function “to ensure expert

testimony is admitted only if it is relevant and reliable.” Etherton v. Owners Ins. Co.,

829 F.3d 1209, 1217 (10th Cir. 2016); see also Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Mr. Silva does not challenge the

methods Ms. Williams used to analyze the DNA samples, but only whether those

methods were reliably applied under Rule 702(d).

       Questions about errors in the implementation of otherwise-reliable DNA

methodology typically “go to the weight that the trier of fact should accord to the

evidence, rather than its admissibility.” 4 Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Federal Evidence § 702.06[5][b], at 702-158 (Mark S. Brodin, ed., Matthew

Bender 2d ed. 2018); see In re Urethane Antitrust Lit., 768 F.3d 1245, 1263 (10th Cir.

2014) (finding no abuse of discretion for the admission of statistical evidence where the

methodology used was acceptable but there were questions about how the underlying

data was calculated); Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780-81




                                            25
(10th Cir. 2009) (finding no abuse of discretion when the district court admitted

evidence it found unreliable and then gave it little weight).

3. Analysis

       The district court did not err by admitting Ms. Williams’s testimony. She

sufficiently explained why the typographical errors did not affect the reliability of the

analysis. Even if there were a question of reliability, it was not error to consider this a

question of weight rather than admissibility.

       Ms. Williams explained that the errors identified by Mr. Silva were typographical

only and did not affect her analysis or its result. She relied on the last two digits of each

case number to verify the samples. She entered these numbers in her digital records

correctly each time, and mistyped only the first two digits, which indicate the year. She

also explained that the errors in the digital record did not appear on the labels affixed to

the test tubes she actually kept in front of her during her analysis. She focused on

keeping the test tubes in order. The district court therefore did not err in concluding that

Ms. Williams reliably applied accepted DNA analysis to the samples. Her only error

was in recording the first two digits of the sample number rather than the performance of

the analysis. Any question about the reliability of the analysis was properly a question

for the jury in deciding what weight to give the evidence. See 4 Weinstein & Berger,

§ 702.06[5][b], at 702-158. We affirm.4


       4
         Mr. Silva also “preserves for further review” two issues. He acknowledges our
precedent forecloses these issues and did not brief them on appeal. Aplt. Br. at 39-42.
       The first challenges the reasonable doubt jury instruction. We rejected a
constitutional challenge to this instruction in United States v. Petty, 856 F.3d 1306
                                              26
                                  III. CONCLUSION

      For the foregoing reasons, we affirm Mr. Silva’s conviction on all counts.




(10th Cir. 2017). Since Mr. Silva filed his brief, the Supreme Court has denied certiorari
in that case. See Petty v. United States, 138 S. Ct. 410 (2017) (Mem.).
        The second “preservation issue” is whether federal carjacking and attempted
federal carjacking, under 18 U.S.C. §§ 2119(1), 2119(2), are crimes of violence under 18
U.S.C. § 924(c). Mr. Silva contends that he would deserve relief if this court, or the
Supreme Court, were to find that the residual clause of 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague and that federal carjacking is not a crime of violence under
§ 924(c)(3)(A)’s force clause. We note this court recently held § 924(c)(3)(B) is
unconstitutionally vague. United States v. Salas, 2018 WL 2074547 (10th Cir. May 4,
2018).
                                            27
