                                   No. 96-2933


UNITED STATES OF AMERICA,      *
                                      *
           Appellee,                  *
                                     *
     v.                              *     Appeal from the United States
                                      *   District Court for the Eastern
KEITH H. BLAKE,                       *    District of Missouri
                               *
           Appellant.          *
                                      *
                                      *


                         Submitted: January 13, 1997

                         Filed: February 26, 1997


Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and ALSOP,*
District Judge.


ALSOP, District Judge.


I.   BACKGROUND
     Keith H. Blake (“Blake”) was indicted for being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1), and for possessing
methamphetamine with the intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1). After a two-day jury trial he was found guilty on both counts.
Blake appeals his conviction, offering four arguments in support of
reversal. First, Blake argues that the district court abused its discretion
when it permitted the Government to introduce evidence of Blake’s prior
felony convictions to prove his felony status for purposes of 18 U.S.C. §
922(g)(1) after Blake had offered to stipulate to his status as a felon.
Second, Blake argues that the district court abused its




     *The HONORABLE DONALD D. ALSOP, United States District
     Judge for the District of Minnesota, sitting by
     designation.
discretion by allowing a detective to testify about an informant’s out-of-
court          statement     identifying   Blake      as     someone    who     was     selling
methamphetamine. Third, Blake argues that the district court abused its
discretion when it permitted          a narcotics officer to provide expert witness
testimony about the significance of the firearm and the amount of drugs
seized when Blake was apprehended. Fourth, Blake argues that a statement
made by the prosecutor in closing argument amounted to prosecutorial
misconduct.


II.       ADMISSION OF FELONY CONVICTIONS


          Blake argues that the district court abused its discretion when it
permitted the Government to introduce evidence of his four prior felonies
after Blake had agreed to stipulate to his status as a felon for purposes
of establishing the § 922(g) violation. At trial the Government offered
certified copies of felony convictions for burglary, stealing, driving
while intoxicated, and stealing a motor vehicle, as well as fingerprints
linking Blake to the four felony convictions. Blake argues that under Fed.
R. Evid. 403 the evidence of his felony convictions should have been
excluded because the probative value given his offer to stipulate to his
status as a felon was substantially outweighed by the danger of unfair
prejudice         on   the   controlled    substance       charge.    The    district    court,
consistent with prior Eighth Circuit precedent, ruled that the Government
was not required to accept Blake’s stipulation and could introduce evidence
of       the    convictions    but   not   evidence    of    the     facts    underlying    the
convictions.


          Shortly before oral argument on Blake’s appeal, the Supreme Court
issued a decision in Old Chief              v. United States, 117 S. Ct. 644 (1997)
which reverses well-established Eighth Circuit law1 and




     1
   See, e.g., United States v. Diggs, 82 F.3d 195, 197 (8th Cir.
1996) cert. denied, 65 USLW 3309 (U.S. Oct. 21, 1996); United
States v. Franik, 7 F.3d 811, 813 (8th Cir. 1993).

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lends substantial support to Blake’s argument that it is an abuse of
discretion   to   admit   the   record   of   conviction   when   an   admission   is
available.   In Old Chief a majority of the Supreme Court agreed that §
922(g)(1) and its prior conviction element present a problem in that “the
name or nature of the prior offense generally carries a risk of unfair
prejudice to the defendant.” Id. at 652.        The majority observed that while
the risk of prejudice posed by the evidence of prior convictions may vary
from case to case, the risk “will be substantial whenever the official
record offered by the government would be arresting enough to lure a juror
into a sequence of bad character reasoning.” Id.


     In the instant case the Court finds that the record of Blake’s prior
convictions was enough to lure jurors into “a sequence of bad character
reasoning” on the companion charge of possession with intent to distribute.
The record of convictions showed Blake had four prior felonies, and
although no conviction was for distribution of a controlled substance the
number   and nature of his prior felonies, especially given that the
Government did not offer abundant evidence to show intent to distribute,
was sufficient to create a substantial risk of unfair prejudice.           According
to Old Chief when there is a substantial risk of unfair prejudice and there
is no cognizable difference between the evidentiary significance of an
admission and of the legitimately probative component of the official
record, under Rule 403 the risk of unfair prejudice outweighs the probative
value of the official record, and it is an abuse of discretion to submit
the record when an admission is available. Id. at 655. The Court finds that
the evidentiary value of the official record offered to show Blake’s          prior
felony convictions was not cognizably different than that of an admission,
and according to Old Chief as Blake had offered to stipulate to his status
as a felon, admitting the record of conviction into evidence was an abuse
of discretion.




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       In determining whether evidentiary rule violations require reversal
the Court applies the Fed. R. Crim. P. 52(a) harmless error analysis. See
United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir. 1994). In Old Chief
the Supreme Court expressed no opinion on whether failing to exclude a
record of conviction is harmless error. Under Rule 52(a) “[o]nly if the
jury may have been ‘substantially swayed’ by improperly admitted evidence
must we reverse the conviction.”Id. (citing United States v. Davis, 936
F.2d 352, 355 (8th Cir. 1991)). Before making a determination on whether
the admission was harmless error, the Court will examine Blake’s second
argument for reversal.



III. ADMISSION OF INFORMANT’S OUT-OF-COURT STATEMENT


       Blake argues that the court abused its discretion when it admitted
an out of court statement from an unidentified confidential informant which
purported to identify Blake as a methamphetamine dealer. The government
offered the confidential informant’s statement through a deputy who spoke
with   the informant prior to obtaining a search warrant for Blake’s
residence. The government maintains that it offered the testimony to show
the basis for commencing a police investigation, not as evidence of Blake’s
guilt, and that according to United States v. King, 36 F.3d 728, 732 (8th
Cir. 1994) such an out-of-court statement is not considered hearsay.              The
jury was instructed on two different occasions to consider the statement
only as background information explaining the issuance of the search
warrant and not for its truth or as evidence of Blake’s guilt.


       Although an out-of-court statement may be admissible for the limited
purpose   of   explaining   to   the    jury   why   a   police   investigation   was
undertaken, the Court finds            nothing in the record to show that the
propriety of the investigation was in issue or that the evidence was
relevant to an issue at trial. Where the




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only possible relevance of the out-of-court statement is to show the
defendant committed the act he has been charged with, the statement is not
properly admissible for a non-hearsay purpose. See United States v. Azure,
845 F.2d 1503, 1507 (8th Cir. 1988).




IV.   CONCLUSION


      Having    found   that    evidence     pertaining      to   Blake’s   prior    felony
conviction and the informant’s out-of-court statement were improperly
admitted, and considering the other evidence offered at trial to show that
Blake possessed methamphetamine with an intent to distribute, the Court
cannot conclude that the jury may not have been substantially swayed by the
improperly admitted evidence, and therefore the errors are not harmless and
reversal   is   required.      The   Court   need    not   address    Blake’s   remaining
arguments for reversal, however on retrial the Court is confident that with
respect to the admission of expert testimony from the narcotics officer,
Corporal   Wakefield,    the     district    court    will    admit   relevant      opinion
testimony only to the extent it is within the expert’s specialized
knowledge and consistent with our prior decisions. See United States v.
Boykin, 986 F.2d 270, 275 (8th Cir. 1993).


      For the reasons stated herein, we reverse the judgment of the
district court and remand the case for further proceedings consistent with
this opinion.


A true copy.


      Attest:


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




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