                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         June 28, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court


    U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
    v.                                                     No. 05-4213
    JOE M ARIO VELARDE, a/k/a Paul                 (D.C. No. 2:04-CR-457-TC)
    Tafoya, a/k/a Jose Velarde,                            (D. Utah)

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before BRISCO E and H ARTZ, Circuit Judges, and KRIEGER, District Judge. **




         Joe M ario Velarde appeals his jury conviction of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Velarde contends

that the district court abused its discretion when it denied his motion for a mistrial

after two government witnesses made several prejudicial remarks about his


*
 This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.


**
       The Honorable M arcia S. Krieger, United States District Judge for the
District of Colorado, sitting by designation.
criminal history and dangerous character. W e exercise jurisdiction pursuant to 28

U.S.C. § 1291, and affirm Velarde’s conviction.



                                          I.

      On M ay 23, 2003, at around three o’clock in the morning, Deputy Nathan

Clark initiated a traffic stop of a gold Honda Accord for improper registration.

Vol. III at 3-4. As he approached the vehicle, Deputy Clark noticed three

occupants: a male driver, later identified as Troy Richards; a female in the front

passenger seat, later identified as Danielle Corbin; and a male in the right rear

passenger seat, later identified as V elarde. Id. at 5, 16. Deputy Clark also

observed a blue tent bag on the floorboard behind the driver’s side seat, next to

Velarde’s feet. Id. at 5.

      Deputy Clark returned to his patrol car to have dispatch run a background

check on Richards. W hile Deputy Clark was waiting for the results, he observed

Velarde acting “extremely nervous” and “very fidgety.” Id. at 8. Several minutes

later, Deputy Clark learned that Richards had an outstanding warrant for his

arrest, as well as a “violent tendencies” warning. Id. at 6. M eanwhile, Deputies

Kenneth Callahan and Shawn Fausett arrived to assist Deputy Clark with the

traffic stop. Id. at 6-7. Deputy Callahan testified that from his patrol car, he saw

Velarde fidgeting around in the back seat and acting nervous. Vol. IV at 5.

      After the background check on Richards w as completed, Deputy Clark

                                         -2-
walked back to the driver’s side of the vehicle, while Deputies Callahan and

Fausett approached the passenger side of the vehicle. Vol. III at 8. According to

Deputy Callahan, he noticed a bag on the seat next to Velarde and that Velarde’s

hand was on the bag. Vol. IV at 6, 23. Deputy Callahan testified that he then

looked away from Velarde as Deputy Clark arrested Richards after ordering

Richards to get out of the vehicle. Vol. III at 8, Vol. IV at 6. Deputy Callahan

recalled that when he looked back at Velarde, he noticed that the bag was on the

floorboard behind the driver’s seat, within six inches of V elarde’s feet. Vol. IV

at 6-7. Soon thereafter, Deputies Callahan and Fausett obtained Velarde’s and

Corbin’s identification and asked them to step out of the vehicle. Vol. III at 9.

      Deputy Clark searched the vehicle incident to Richards’ arrest. Id. In the

backseat of the car, on the floorboard behind the driver’s seat, Deputy Clark

recovered the bag that he had noticed earlier in the traffic stop. Id. at 9-10.

Deputy Clark testified that inside the bag he “found a blue and white bandana, a

pair of black athletic gloves, and a 12 gauge sawed-off shotgun that had been

wrapped in a blue blanket.” Id. at 10. Deputy Clark also recalled that the “gun,

both the stock and the handle, were wrapped in blue electrical tape.” Id. at 11.

The officers arrested Velarde for possession of the sawed-off shotgun after

performing a background check and learning that Velarde had a prior felony

conviction.

      Both Richards and Corbin testified that earlier in the evening Velarde

                                          -3-
arrived at Richards’ residence carrying at least two duffel bags. Vol. IV at 41-42,

97. They recalled that at Richards’ residence, Velarde had pulled out a sawed-off

shotgun from a smaller bag and showed it to them. Id. at 43, 60, 97-98. Corbin

testified that when Velarde got inside Richards’ vehicle later that night, Velarde

placed the bag with the shotgun in it on the seat next to him. Id. at 99. Further,

Richards testified that during the traffic stop he asked Velarde if Velarde had

brought the shotgun with him, and Velarde responded affirmatively. Id. at 44-45.

Both Richards and Corbin also confirmed that Velarde often wore blue clothing,

including a blue bandana. 1

      Based on the above testimony, the jury found Velarde guilty of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), but not

guilty of possession of an unregistered sawed-off shotgun, in violation of 26

U.S.C. § 5861(d). 2 The district court sentenced Velarde to 92 months’


1
      Before trial, the district court ruled that the government could not present
evidence about Velarde’s gang affiliation to connect him to the gun and the color
blue. Vol. II at 4. Rather, the district court concluded that the government could
present evidence demonstrating that Velarde liked the color blue and that he often
wore a blue bandanna or blue clothing. Id. at 5-6.
2
       The district court instructed the jury that to find Velarde guilty for being a
felon in possession of a firearm, the government had the burden to prove: (1) he
was previously convicted of a felony; (2) he knowingly possessed a firearm after
the conviction; and (3) the firearm affected interstate commerce. Vol. I, Doc. 59,
Instr. No. 12. Additionally, the district court instructed the jury to that to convict
Velarde for possession of a sawed-off shotgun, the government had to prove: (1)
Velarde knowingly possessed a firearm; (2) Velarde knew the firearm had a barrel
length of less than 18 inches or had an overall length of less than 26 inches; (3)
                                                                         (continued...)

                                          -4-
imprisonment, followed by a term of 36 months’ supervised release.



                                             II.

      Velarde contends that the district court abused its discretion when it denied

his motion for a mistrial which was based upon the unsolicited remarks of Deputy

Clark and Deputy Callahan during their trial testimony. Specifically, Velarde

argues that Deputy Clark and Deputy Callahan made prejudicial remarks about his

criminal history and dangerous character that violated his right to a fair trial.

      Velarde first argues that the jury likely convicted him of being a felon in

possession of a firearm based on Deputy Clark’s statement at trial that Velarde

“had an extensive criminal history, including weapons violations.” Vol. III at 9.

The testimony that is relevant to this argument occurred during the prosecutor’s

direct examination of Deputy Clark on the first day of Velarde’s trial:

      Q. W ere . . . [Corbin and Velarde] eventually taken out of the car?

      A. Yes, they were. State law states that I have the right to search a
      vehicle incident to arrest. The feeling of the warrant [for Richards’
      arrest]–the nature of the warrant, I felt there was a possibility of
      maybe weapons or drugs in the car, so the two passengers were asked
      to exit.



2
 (...continued)
the firearm was or could readily have been put in operating condition; and (4) the
firearm was not registered to Velarde. Id. at Instr. No. 17. At trial, the parties
stipulated to the shotgun’s measurements and to the fact that the shotgun had
affected interstate commerce. Vol. IV at 134. Further, the parties stipulated that
Velarde had been previously convicted of a felony. Id.

                                       -5-
             Beforehand, Callahan and Fausett had returned to their cars
      after receiving their information, and Callahan had notified me that
      the rear passenger, Joseph Velarde, had an extensive criminal
      history, including weapons violations.

      M r. Donaldson: Objection, Your Honor. M ove to strike.

      The Court: Sustained. And disregard that.

Id.

      Additionally, Velarde argues that portions of Deputy Callahan’s testimony

portrayed him as an individual who was “dangerous and likely to use the

firearm.” Aplt. Br. at 9. The testimony at issue here occurred on the second day

of trial during the prosecutor’s re-direct examination of Deputy Callahan:

      Q. You were asked about . . . what you did with this information that
      you had about the bag being on the seat. When was it that you told
      officer Clark about this information?

      A. About the bag being on the seat?

      Q. Yes.

      A. It was after he had found the firearm that was in the vehicle. I
      made a statement to him that–I believe I said, “I think it was a good
      thing that we came by tonight because I think you could have been
      taken out tonight.”

      M r. Donaldson: Objection. M ove to strike.

      The Court: Sustained.

      Q. Just answer the questions I ask you.

      A. Okay.

      ...

                                     -6-
      Q. Did you clearly see the bag on the back seat?

      A. Yes.

      Q. And did you see the defendant’s hands on that bag?

      A. Yes, one hand.

      Q. You were asked about how that’s possible w hen you did not write
      a report. How is it that you remember that?

      A. W hen you have big situations like this where somebody’s life
      could have been taken at anytime–

      M r. Donaldson: I’m going to object, Your Honor.

      The Court: Sustained . . . .

Vol. IV at 22-23.

      Immediately after the district court’s ruling, the district court sua sponte

excused the jury. Id. at 23. Velarde’s defense counsel then moved for a mistrial

based on Deputy Clark’s and Deputy Callahan’s remarks. Id. at 24. The

prosecutor responded that Deputy Callahan’s remarks w ere completely

unexpected and unresponsive to his questions, and were properly stricken from

the record. Id. at 24-25. The prosecutor added that, if necessary, a cautionary

instruction could be provided to the jury. Id. at 25. The district court then denied

the motion for a mistrial, and instructed the government’s witnesses not to make

inflamm atory comments and to answer only the questions asked of them. Id.

W hen the jury returned to the courtroom, counsel for Velarde did not request a

cautionary instruction and the district court did not provide one. Id. Deputy

                                         -7-
Callahan completed his testimony without further objection. Id.

      On appeal, Velarde asserts that the officers’ testimony likely influenced the

outcome of his trial because of the weak and contradictory evidence the

government presented to establish that he knowingly possessed the shotgun.

Velarde also points to the inconsistent verdicts the jury rendered in his case as

further evidence of the effect the officers’ prejudicial remarks had upon the jury.

      W e review a district court’s denial of a motion for mistrial for an abuse of

discretion. United States v. Crockett, 435 F.3d 1305, 1317 (10th Cir. 2006)

(citing United States v. M eienberg, 263 F.3d 1177, 1180 (10th Cir. 2001)). “A

mistrial may only be granted when a defendant’s right to a fair and impartial trial

has been impaired.” U nited States v. Kravchuk, 335 F.3d 1147, 1155 (10th Cir.

2003) (citation omitted). W hen a prosecutor asks a question and the w itness

answers in an improper way, we must evaluate: “(1) whether the prosecutor acted

in bad faith, (2) whether the district court limited the effect of the improper

statement through its instructions to the jury, and (3) whether the improper

remark was inconsequential in light of the other evidence of the defendant’s

guilt.” United States v. M eridyth, 364 F.3d 1181, 1183 (10th Cir. 2004) (citation

omitted); see also United States v. Caballero, 277 F.3d 1235, 1244 (10th Cir.

2002) (stating that to determine “whether an improper reference to a defendant’s

prior conviction” requires a mistrial, we must evaluate whether the error had a

substantial influence on the jury’s decision in light of all the evidence presented

                                          -8-
against the defendant at trial) (citations omitted); United States v. Sloan, 65 F.3d

861, 865 (10th Cir. 1995) (explaining that an improper reference to a defendant’s

criminal record is harmless w here the evidence against the defendant is

overwhelming) (citation omitted). In conducting our review, we bear in mind that

the district court “is in the best position to evaluate the effect of the offending

evidence on the jury.” U nited States v. Laymon, 621 F.2d 1051, 1053 (10th Cir.

1980) (citations omitted).

      The non-responsive answ ers given by Deputy Clark and Deputy Callahan to

the prosecutor’s questions were clearly improper and arguably intended to inflame

the jury. Deputy Clark’s reference to Velarde’s “extensive criminal history,

including weapons violations” is particularly troubling during a criminal trial

where the jury was to determine whether Velarde was guilty of being a felon in

possession of a firearm. Nevertheless, we cannot conclude that the district court’s

denial of Velarde’s motion for a mistrial was an abuse of discretion.

      First, there is no evidence in the record to show that the prosecutor acted in

bad faith. Although we may question whether the prosecutor sufficiently

counseled Deputies Clark and Callahan prior to trial to limit their answers to the

questions posed, it is evident that the prosecutor’s questions w ere not phrased to

elicit the challenged testimony.

      Second, the district court properly ruled on the admissibility of the officers’

inflam matory statements, and then adequately limited the effect of the statements

                                           -9-
through its instructions to the jury. The district court sustained defense counsel’s

objection to Deputy Clark’s testimony. W hile the district court did not provide a

model curative instruction, the district court immediately instructed the jury to

“disregard that.” The district court also sustained defense counsel’s objections to

Deputy Callahan’s testimony. Although the district court did not provide a

curative instruction, the district court admonished the government’s witnesses out

of the hearing of the jury to respond only to the prosecutor’s questions and to

avoid further inflammatory remarks. 3 And lastly, the district court instructed the

jury before deliberations to entirely disregard any evidence “to which an

objection was sustained by the court, and any evidence ordered stricken by the

court[.]” Vol. I, Doc. 59, Instr. No. 5. W e must presume that the jury followed

this instruction. See Caballero, 277 F.3d at 1243 (“W e presume that jurors w ill

follow clear instructions to disregard evidence unless there is an overwhelming

probability that the jury will be unable to follow the court’s instructions, and a



3
       W e note that defense counsel did not request a curative instruction when he
moved for a mistrial, despite the prosecutor’s suggestion to the district court that
such an instruction would be appropriate. See Caballero, 277 F.3d at 1245
(concluding that the district court did not abuse its discretion in denying a motion
for mistrial based in part on the defense counsel’s failure to “ask the court to
strike the [prosecutor’s] offending remark or issue a limiting jury instruction,
though both the prosecution and the court suggested such a course”). Here, we do
not fault defense counsel for failing to request a curative instruction. As both
counsel acknowledged at oral argument before this court, defense counsel’s
failure to ask for an instruction was likely the result of defense counsel’s tactical
decision not to draw additional attention to the officers’ testimony.


                                         -10-
strong likelihood that the effect of the evidence would be devastating to the

defendant.”) (internal quotation marks omitted); United States v. M assey, 48 F.3d

1560, 1569 (10th Cir. 1995) (“Cautionary instructions are ordinarily sufficient to

cure alleged prejudice.”) (citations omitted).

      Third, and most importantly, we are confident that any prejudice to Velarde

was harmless because the evidence demonstrating Velarde’s possession of the

sawed-off shotgun was overwhelming, and the jury considered other evidence

regarding Velarde’s criminal history and dangerous character. Testimony from

both Deputy Clark and Deputy Callahan provided direct and circumstantial

evidence to establish Velarde’s possession of the sawed-off shotgun. During the

traffic stop, Deputy Clark noticed the tent bag with the shotgun on the floorboard

behind the driver’s seat, in close proximity to Velarde. Deputy Clark also found

the tent bag in the same location during his search of the vehicle. Deputy

Callahan testified that he initially observed the tent bag on the seat next to

Velarde, with Velarde’s hand on the bag. Deputy Callahan stated that he looked

away to watch Deputy Clark arrest Richards, and that when he looked back at

Velarde, the bag was on the floorboard next to Velarde’s feet. 4

      M oreover, Richards’ and Corbin’s testimony provided a strong link



4
        W e do not agree with Velarde’s assertion that Deputy Callahan’s testimony
about the position of the bag in the vehicle contradicts Deputy Clark’s testimony.
It is reasonable to assume that Deputy Clark w as not focused on the bag’s
location when he was involved in the arrest of Richards.

                                         -11-
between Velarde and the sawed-off shotgun. Richards and Corbin testified that

Velarde arrived earlier at Richards’ residence carrying at least two duffel bags,

and that Velarde showed them that he had a shotgun in a smaller bag. Corbin

testified that when they left Richards’ residence in the Honda Accord, Velarde

took the bag containing the shotgun with him. Similarly, Richards testified that

he asked Velarde during the traffic stop if Velarde had the shotgun with him, and

that Velarde answered that he did. Lastly, both Richards and Corbin confirmed

that Velarde liked to wear the color blue, including blue bandanas. The evidence

established that the shotgun was wrapped in blue electrical tape, was covered in a

blue blanket, and was found in a blue tent bag which also contained a blue and

white bandana. W hile the credibility of Richards and Corbin was challenged by

Velarde, the weight to be given to their testimony was within the province of the

jury.

        W e are also convinced that the deputies’ statements were harmless in light

of other evidence presented to the jury about Velarde’s criminal history and

dangerous character. W hile D eputy Clark improperly referred to V elarde’s

“extensive criminal history,” we point out that the parties’ stipulated for purposes

of the felon in possession of a firearm count that Velarde had been previously

convicted of a felony. Further, even before Deputy Callahan’s challenged

statements about Velarde’s dangerous character were objected to at trial, Deputy

Clark testified that when he arrested Velarde, Velarde made the following

                                         -12-
inflamm atory statement to him: “Had the gun been mine, it would have been

strapped, and I would have drawn mine on you had you drawn your weapon, and I

would have drawn mine a lot quicker than you would have drawn yours. I’m not

afraid to die.” Vol. III at 16.

      Finally, in further support of his contention that the challenged testimony

of Deputy Clark and Deputy Callahan prejudiced his trial, Velarde emphasizes the

inconsistent verdicts reached in his case and speculates about the jury’s reasoning

underlying those verdicts. This argument is not compelling. It is well established

that an inconsistent verdict is not a sufficient reason for setting a verdict aside.

See, e.g., United States v. Pow ell, 469 U.S. 57, 64-66 (1984); United States v.

Harris, 369 F.3d 1157, 1168 (10th Cir. 2004); United States v. Jaynes, 75 F.3d

1493, 1508 (10th Cir. 1996); United States v. Kendall, 766 F.2d 1426, 1433 (10th

Cir. 1985). M oreover, the jury’s inconsistent verdicts arguably support the

conclusion that the officers’ remarks did not violate Velarde’s right to a fair trial.

Had the jury been truly swayed by the officers’ remarks, they would have more

likely convicted Velarde of both charges. In light of the prosecutor’s lack of bad

faith, the district court’s instructions to the jury, the overwhelming evidence to

support Velarde’s conviction, and the other evidence presented to the jury

concerning his criminal history and dangerous character, we conclude that the




                                          -13-
district court’s denial of Velarde’s motion for a mistrial was not an abuse of

discretion.

A FFIRME D.



                                               Entered for the Court


                                               M ary Beck Briscoe
                                               Circuit Judge




                                        -14-
