              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 08a0281n.06
                           Filed: May 20, 2008

                                        No. 06-4333

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

              v.                                                On Appeal from the United
                                                                States District Court for the
NOEL COLON,                                                     Northern District of Ohio at
                                                                Cleveland
       Defendant-Appellant.




                                                          /

Before:       GUY, SUHRHEINRICH, and GIBBONS, Circuit Judges.

       PER CURIAM.           Defendant Noel Colon was convicted by a jury of one count of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and was

sentenced to a 96-month term of imprisonment. Appealing only his conviction, defendant

argues first that the district court abused its discretion by disclosing the nature of his prior

felony convictions contrary to Old Chief v. United States, 519 U.S. 172 (1997). Second,

defendant maintains that the district court committed reversible error under Fed. R. Evid.

404(b) in allowing the admission of evidence concerning (1) the defendant’s violent conduct

and character, and (2) defendant’s incestuous relationship with his adult niece whose

telephone call to police resulted in the discovery of the firearm in question. After review of
No. 06-4333                                                                                                2

the record and the arguments presented on appeal, we affirm defendant’s conviction.

                                                     I.

        At 4:30 a.m. on June 5, 2005, police officers responded to a report of a man beating

his niece in an apartment. When the officers knocked and announced themselves, the door

quickly opened and defendant’s 35-year-old niece Maria Morales burst through the door with

defendant Colon holding her in a headlock from behind. When defendant did not let go,

Officer Joseph Gulas separated them, forced defendant to the ground, and handcuffed him.

Morales announced that defendant had a gun, which was recovered from the front pouch of

defendant’s sweatshirt.1 The weapon, a snub-nosed .38 caliber revolver, was fully loaded

and did not bear a serial number. Defendant was arrested.

        At trial, defendant did not dispute that he was in possession of the firearm, did not

rebut the government’s evidence that the firearm traveled in interstate commerce, and

ultimately stipulated that he had a prior felony conviction. Asserting a duress or necessity

defense, defendant maintained that he had wrestled the firearm away from Morales when she

attacked him just before the police arrived. He contended that Morales had “set him up” out

of jealousy over his relationship with girlfriend Sarah Hughes. Officer Gulas testified that

the defendant did not accuse Morales of attacking him at the time of his arrest, but first

claimed that he took the firearm from her in a statement made to police the next day.

Defendant did not testify at trial.

        Morales, in contrast, testified that she called the police out of fear for her life after the

        1
        Morales initially stated that the revolver was found on the ground but admitted at trial that she did
not know that because the officers had sent her inside the apartment.
No. 06-4333                                                                                  3

defendant threatened and assaulted her in the early hours of June 5, 2005. Morales explained

that defendant returned at 3:00 a.m., and he blamed her for Hughes’s apparent decision to

leave him that night. Morales answered back that it was actually his fault for having kicked

Hughes in the stomach and face the day before. Defendant told Morales that he would get

back at her if Hughes did not return within the hour, and Morales believed that to mean he

would physically hurt her. After more time passed, defendant hit Morales in the face and

Morales struck him back. They continued to physically struggle, until Morales asked

defendant to go out to the gas station to get her something to smoke. Once the defendant was

gone, Morales went out to use a pay telephone to call the police. She returned to the

apartment before the defendant and waited for the police to arrive. Morales did not accuse

defendant of threatening her with the firearm, but she testified at trial that she saw him with

the firearm before he went out on June 4. Morales also denied owning or possessing a

firearm.

       In an effort to impeach Morales, defense counsel asked about a report she made in

1997 accusing her ex-husband of threatening her with a gun. She denied that the report was

false. Morales admitted that the defendant called her several times after his arrest asking her

to tell the police that the firearm was hers. She said she asked if he thought she had “stupid”

written on her forehead. Defense counsel then played a recorded telephone call that the

defendant made from the jail to an unidentified woman. Morales insisted that she was not

the woman on the recording, but Hughes identified the woman as Morales. Defense counsel

used the recording in an effort to impeach Morales and bolster defendant’s claim that she had
No. 06-4333                                                                                   4

“set him up” out of jealousy.

       During the call, defendant asked the woman to “tell the truth” and to “get [him] out

of this mess.” He asked her to tell the police that she found the gun and kept it for protection

because she was disabled. When defendant accused the woman of doing “what [she] did”

because she was still thinking about Hughes, the woman responded: “I dislike you for that

and her, too. You shouldn’t have brought her into the picture.” Defendant said she got him

into the mess, and he accused her of doing it because she was “mad” and “jealous.” The

woman answered: “You used to hit me. I’m telling you the truth. Don’t hit me.” Defendant

answered: “I didn’t hit you. You hit me because I said I love her. You got mad at me ‘cause

I fell in love with her. You got mad at me, you punched me in my mouth, scratched me in

my neck.” She replied that he should not have hit her back. When the defendant accused her

of lying and setting him up, the woman answered: “They say payback is a bitch.” She also

said, “I told you I was going to get back at you for playing me dirty.” At one point, again

accusing her of being jealous, defendant stated: “Look, you fell in love with me and that’s

wrong.”

       On redirect, Morales was asked if she had called the police about the defendant

before. Over defense counsel’s objection and after limiting instructions, Morales testified

that she had called the police on Christmas, after the defendant beat her over several days

leaving bruises on her neck, chest, and face. Morales provided details of the arrest, many of

which were contradicted by Officer Gulas who had responded to the call on Christmas Day

2003. Morales said she rode with the officers and was present when the defendant was
No. 06-4333                                                                                   5

arrested coming out of the apartment. Gulas testified, however, that Morales did not ride

with them, that the defendant fled and was arrested only after a 20-minute chase, and that

Morales was gone when they returned to the apartment.

       Defendant was living in an apartment with Morales, ostensibly because she had

seizures and a knee problem and needed help. Defendant took Hughes in to live with them

in April 2004. That lasted only for a few months, and then defendant moved Hughes to a

separate apartment upstairs. Hughes testified that before long, defendant had started to hit

her and would not let her go out or see her family without him.

       Hughes confirmed that she argued with defendant on June 4, 2005, because she

wanted to go to her brother’s graduation. Morales sided with Hughes, but defendant would

not let her go and insisted that she had to help with a craps game. When Hughes persisted,

defendant spit in her face, called her names, and hit and kicked her. Hughes took defendant

to the craps game, but did not return to the apartment as he had directed. She went to her

mother’s house without telling the defendant. Hughes explained that she was afraid of the

defendant after he assaulted her on her birthday a few weeks earlier, on May 15, 2005, when

she said she wanted to leave him. Defendant threatened to kill her if she did, and reminded

her that he knew where to find her family. Hughes said she was shocked the first time he hit

her, and that he was remorseful and promised not to do it again. But, he hit her again

anyway. Hughes also testified that she saw him hit Morales “once in a blue moon.” Hughes

lived with the defendant again after he was released from jail, but she was not still seeing him

at the time of trial.
No. 06-4333                                                                                                6

        Hughes described Morales as jealous and vindictive, stated that Morales had

repeatedly threatened to kill her and the defendant, and reported that Morales once talked

about going out to get a gun. Hughes conceded, however, that she never saw Morales with

a firearm and never saw a firearm in the apartment. Hughes also testified that between

February and June 2005, the defendant told her that he was thinking about buying a handgun

that someone had offered to him. Hughes, who did not like guns, told him she thought that

it was a “bad idea” because he was not supposed to have a firearm.

        Hughes added that she thought Morales was unstable. Then, in response to a question

asked on redirect, Hughes stated that she sometimes thought the defendant was unstable as

well. Finally, Hughes related, over objection, that the defendant had once told her during an

argument that he had been having a sexual relationship with Morales “since day one.”

        At the conclusion of trial, the district court instructed the jury both on the elements

of felon in possession and the duress or necessity defense.2 The jury found defendant guilty,

the district court sentenced defendant to a 96-month term of imprisonment, and defendant

filed this timely appeal.

                                                     I.

A.      Old Chief




        2
         To establish the defense, defendant must come forward with evidence showing that he (1)
reasonably believed there was an imminent threat of death or serious bodily injury, (2) did not recklessly or
negligently place himself in the situation that would force him to choose criminal conduct, (3) did not have
a reasonable legal alternative to violating the law, (4) reasonably believed the conduct would avoid the
threatened harm, and (5) did not maintain the illegal conduct any longer than necessary. United States v.
Ridner, 512 F.3d 846, 850 (6th Cir. 2008); United States v. Singleton, 902 F.2d 471, 472-73 (6th Cir. 1990).
No. 06-4333                                                                                   7

       The Supreme Court held in Old Chief that a district court abuses its discretion by

rejecting a defendant’s offer to stipulate to a prior judgment and admitting the full record of

the conviction “when the name or nature of the prior offense raises the risk of a verdict

tainted by improper considerations, and when the purpose of the evidence is solely to prove

the element of prior conviction [under § 922(g)(1)].” Old Chief v. United States, 519 U.S.

172, 174 (1997). Defendant seeks to overturn his conviction on the grounds that the district

court disclosed the defendant’s prior convictions to the prospective jurors by reading an

unredacted indictment to them during voir dire. The indictment specifically alleged that the

defendant possessed the .38 caliber revolver “having been previously convicted of crimes

punishable by imprisonment for a term exceeding one year, those [being] Felonious Assault

and Aggravated Robbery.”

       Although the government argues that Old Chief does not apply because a stipulation

was not executed until well after trial had commenced, Old Chief actually speaks in terms of

a defendant’s offer to stipulate to having a prior felony conviction. 519 U.S. at 186. The

government’s reliance on United States v. McFerren, No. 96-5458, 1998 WL 180514 (6th

Cir. Apr. 8, 1998) (unpublished), is misplaced. It is true that the court in McFerren found

no error in the district court’s reading of the indictment prior to the defendant’s stipulation.

There was no indication, however, that the district court had been advised of an offer to

stipulate prior to trial. Indeed, we also held in McFerren that it was an abuse of discretion

for the district court to re-read the indictment as part of the jury charge after the defendant

had agreed to the stipulation. Id. at *3.
No. 06-4333                                                                                   8

       In this case, there is no dispute that the defendant made an affirmative offer to

stipulate on the record at the conclusion of the suppression hearing held the week before trial.

This case differs from Old Chief since the district court did not reject the defendant’s offer

to stipulate. See Myers v. United States, 198 F.3d 615, 618-19 (6th Cir. 1999). Instead, the

district court appears to have mistakenly included the defendant’s prior convictions in

reading the indictment prior to voir dire. Nonetheless, this court has found error in a similar

situation in which the prior convictions were accidentally revealed in reading the indictment

during voir dire. United States v. Casey, No. 99-1585, 2000 WL 1721055, at *4 (6th Cir.

Nov. 6, 2000) (unpublished). We concluded that “the effect of the district court’s misstep

was essentially the same.” Id.

       Error under Old Chief is subject to harmless error analysis. United States v. Daniel,

134 F.3d 1259, 1262-63 (6th Cir. 1998). This includes, specifically, a district court’s

mistaken disclosure of a defendant’s prior conviction through the reading of the indictment

despite the defendant’s offer to stipulate to having a prior felony conviction. See United

States v. Clay, 346 F.3d 173, 177 (6th Cir. 2003). An error that is not of constitutional

dimension is harmless “‘unless it is more probable than not that the error materially affected

the verdict.’” Daniel, 134 F.3d at 1262 (citation omitted). The error in McFerren and Casey

was found to be harmless.

       Here, as in Casey, the district court immediately instructed the jury that the indictment

was merely the written statement of the charges and that nothing in the indictment—

including the prior offenses—was evidence. Juries are presumed to understand and follow
No. 06-4333                                                                                               9

such directions. United States v. Forrest, 17 F.3d 916, 920-21 (6th Cir. 1994). Also, there

was no further mention of the name or nature of the prior convictions at trial, in the

arguments of counsel, in the stipulation that was ultimately executed, or in the jury

instructions at the close of the proofs. The final instructions advised the jurors that the

indictment was not evidence of guilt, and that the prior-conviction element of the offense was

satisfied by the stipulation agreeing that the defendant had a prior felony conviction. We

conclude that the district court’s error in this regard was harmless.3

B.      Admission of “Other Acts” Evidence

        Defendant maintains that it was error to allow evidence (1) of the defendant’s violent

conduct and character, (2) that the defendant had an incestuous relationship with Morales,

and (3) that the defendant was “unstable.” We review the district court’s decisions to admit

or exclude evidence for abuse of discretion. United States v. Cline, 362 F.3d 343, 348 (6th

Cir. 2004). Central to this issue is Rule 404(b), which provides that:

        Evidence of other crimes, wrongs, or acts is not admissible to prove the
        character of a person in order to show action in conformity therewith. It may,
        however, be admissible for other purposes, such as proof of motive,
        opportunity, intent, preparation, plan, knowledge, identity, or absence of
        mistake or accident.



        3
           In an attempt to suggest unfair prejudice, defendant points to the fact that one potential juror
expressed concern about being able to serve due to the defendant’s prior convictions. A full reading of the
exchange reflects, however, that the juror’s concern was with the fact that the defendant was a repeat
offender and not the nature of the prior offenses. That is, the question posed in voir dire was whether the
fact that the defendant was charged with a crime involving a firearm would cause any juror to be predisposed
toward the defense or the government. One prospective juror volunteered that it was difficult because she
was related to a police chief and because “this is the second time for the shooting and that kind of thing.”
The district court immediately clarified that the charge here did not involve a shooting, but the possession
of a firearm by someone whom it was agreed had a prior felony record. Not only was this individual
excused, but the concern voiced did not implicate the prejudice that Old Chief is aimed at avoiding.
No. 06-4333                                                                                 10

We have adopted a three-part inquiry to determine the admissibility of such evidence under

Rule 404(b) and 403, which asks that the district court decide (1) whether there is sufficient

evidence that the “other acts” occurred; (2) whether the evidence is probative of a material

issue other than character; and (3) whether the probative value of the evidence is outweighed

by its prejudicial effect. United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir. 1996).

Consistent with the abuse of discretion standard, we review the district court’s findings under

the first part for clear error, the legal determination under the second part de novo, and the

weighing under the third part for abuse of discretion. United States v. Ganier, 468 F.3d 920,

925 (6th Cir. 2006). An exception to the strictures of Rule 404(b) has been recognized for

res gestae or “background” evidence. United States v. Hardy, 228 F.3d 745, 748 (6th Cir.

2000). We turn to the specific arguments and evidence at issue.

       1.     Assaults on Hughes

       The district court allowed Morales and then Hughes to testify, over defense counsel’s

objection, that the defendant assaulted and kicked Hughes on June 4, 2005. Hughes also

testified that the defendant had assaulted her and threatened her and her family when she said

she wanted to leave him on May 15, 2005. The government argued, and the district court

found, that evidence of these assaults was part of the res gestae. To come within this

exception to Rule 404(b), the evidence must “consis[t] of those other acts that are

inextricably intertwined with the charged offense or those acts, the telling of which is

necessary to complete the story of the charged offense.” Hardy, 228 F.3d at 748. The court

explained in Hardy that:
No. 06-4333                                                                                 11

              Proper background evidence has a causal, temporal, or spatial
       connection with the charged offense. Typically, such evidence is a prelude to
       the charged offense, is directly probative of the charged offense, arises from
       the same events as the charged offense, forms an integral part of a witness’s
       testimony, or completes the story of the charged offense.

Id.

       Had defendant not asserted a necessity defense, putting at issue the events that

preceded his possession of the firearm would not have been admissible as background

evidence. The testimony regarding the assaults on June 4 and May 15 was connected to the

offense and was integral to Morales’s testimony. It explained why, according to Morales,

defendant was so upset when he returned to the apartment. It also explained why Hughes did

not tell him that she was leaving him, and why Morales claimed to have been afraid for her

life when she called the police. Evidence concerning these assaults was properly admitted

as background evidence because of its connection to the charged offense and because it

completes the story of the charged offense.

       2.     Assault on Morales

       The government relied on Rule 404(b) to admit evidence that Morales called the

police on Christmas Day 2003 reporting that the defendant had assaulted her over two or

three days. Morales testified that she reported it to the police, and that the defendant was

arrested coming out of the apartment. Although Morales said this happened on Christmas

2001, Officer Gulas testified that he responded to the call on Christmas 2003. Defense

counsel objected, but the district court allowed the testimony and gave a limiting instruction.

       Arguing essentially that Morales was not worthy of belief, defendant argues that there
No. 06-4333                                                                                 12

was insufficient evidence that the assault even occurred. The government is not required to

demonstrate by a preponderance of the evidence that the other acts occurred. Huddleston v.

United States, 485 U.S. 681, 685 (1988). Under Rule 404(b), the evidence is relevant “if the

jury can reasonably conclude that the act occurred and that the defendant was the actor.” Id.

at 689. It was not clear error to find there was sufficient evidence of such “other acts.”

Ganier, 468 F.3d at 925.

       The district court found the evidence was probative of both the defendant’s intent and

Morales’s motive and intent, and commented that the “same type of intent and credibility

issues are certainly present in this case that were probably present back at that time.” The

government’s purpose in offering 404(b) evidence must be “to prove a fact that the defendant

has placed, or conceivably will place, in issue, or a fact that the statutory elements obligate

the government to prove.” Merriweather, 78 F.3d at 1076. As defendant points out,

necessity or duress is a justification defense to the felon-in-possession charge that does not

negate the intent necessary to establish the offense. Dixon v. United States, 126 S. Ct. 2437,

2441-42 (2006).

       Nonetheless, defendant squarely placed at issue the question of whether he or Morales

was the aggressor on June 5. The evidence was relevant on this issue and to rebut

defendant’s claim that he reasonably believed that Morales posed an imminent threat of death

or serious bodily injury. The evidence was also relevant to Morales’s motive and intent, and,

as the district court emphasized, the evidence could “cut either way” because Morales was

either consistently telling the truth or consistently lying. In fact, defense counsel made much
No. 06-4333                                                                                    13

of the fact that Officer Gulas contradicted Morales’s testimony regarding the arrest in several

respects. It was not error to conclude that evidence concerning the Christmas incident was

probative of a material issue other than character, nor an abuse of discretion to find that the

probative value was not outweighed by its unfairly prejudicial effect.

       3.      Sexual Relationship with Morales

       Hughes testified that the defendant told her during an argument that he had a sexual

relationship with Morales “since day one.” Defense counsel objected and moved for a

mistrial on the grounds that injecting incest into the trial was unfairly prejudicial. The

government argued that this newly discovered evidence was admissible because the

defendant had “opened the door” to it by portraying Morales as having a one-sided love

interest in the defendant. We have recognized that when a party “opens the door” on an issue

by eliciting prejudicial or inadmissible testimony, the district court may in its discretion allow

evidence on the same issue “to rebut any false impression that might have resulted from the

earlier admission.” United States v. Segines, 17 F.3d 847, 856 (6th Cir. 1994). The district

court allowed the evidence, explaining that

       the relationship between [Morales] and Noel Colon has been squarely placed
       in issue in this case in front of this jury. They have heard a lot of testimony
       regarding Maria’s relationship with the defendant, and this just further
       amplifies it. Does it add an additional level? Yes. But it doesn’t go to the
       point where I believe a mistrial is warranted. It gives context to the
       intertwining of the relationship, that is, the defendant, Maria and now Sara
       Hughes, to give a full context for this jury to consider when they are making
       decisions about credibility.

It was the defendant who put his relationship with Morales at issue by arguing that she “set

him up” because she was jealous of his relationship with Hughes. The testimony to that point
No. 06-4333                                                                                14

left some ambiguity about the basis for the jealousy—reflected in the defendant’s statement

on the recorded call that Morales fell in love with him and that “it was wrong.” Even so, the

testimony, including much of the recorded call, also implied that there was more than a

familial relationship between defendant and his adult niece. Defendant may have preferred

leaving the ambiguity, but it was not error to allow Hughes to complete the picture of the

relationship between defendant and Morales and the basis for Morales to be jealous of

Hughes.

       3.     “Unstable”

       After Hughes described Morales as “unstable,” the government asked on redirect

about the defendant, and Hughes answered that she sometimes thought that he was unstable

as well. Defendant’s objection was overruled. The government argues that “when a party

questions a witness on a subject, even though that subject may not be strictly relevant to the

case, the party cannot complain on appeal if the opposing part subsequently introduces

evidence on the same subject.” United States v. Touloumis, 771 F.2d 235, 241 (7th Cir.

1985). The evidence, however, was not “on the same subject.” Nonetheless, error in the

admission of such evidence is harmless unless it is more probable than not that the error

materially affected the verdict. Daniel, 134 F.3d at 1262. Here, we cannot conclude that

evidence that both Morales and the defendant were unstable materially affected the verdict.

       AFFIRMED.
No. 06-4333                                                                                  15

       Suhrheinrich, J., concurring: I cannot agree that the evidence relating to the assault

on Christmas Day 2003 was properly admitted under Rule 404(b). This incident, which

occurred one and a half years prior to the crime at issue, is only relevant to establish Colon’s

allegedly violent character to prove action in conformity therewith at the time of the incident,

i.e., that Colon must have been the aggressor during the struggle with Morales. Colon’s

conduct in the Christmas Day assault was not probative of his intent or motive to possess a

firearm during the struggle with Morales on June 5, 2005. Indeed, the majority does not

explain how the December 2003 incident established intent or motive, but simply repeats the

language of the Rule. In reality, the December 2003 incident simply shows that Colon has

a violent character and that he frequently beat Morales and Hughes.

       Notwithstanding, I concur because the error was harmless. See United States v.

Thomas, 49 F.3d 253, 259 (6th Cir. 1995). The record supports Colon’s conviction under 18

U.S.C. § 922(g)(1) given Colon’s stipulation to his felon status, Colon’s own statement to

Officer Cook that he had a gun that he had wrestled away from Morales, the testimony of the

responding officers Gulas and Cortes that Morales had a gun on his person, Officer Gulas’s

testimony that Morales appeared to be trying to escape from Colon and that Colon gave no

indication at the time that he was acting in self defense, and Agent Hopkins’ undisputed

testimony and ammunition were manufactured outside Ohio. Thus, any error in admitting

evidence of Colon’s prior acts of violence was harmless.
