                                                                   [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                      ________________________________

                                 No. 96-9449
                      ________________________________

                         D.C. Docket No. 1:96-CR-176-CC




UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,


     versus


KENNETH GERALD HARDIN,

                                             Defendant-Appellant.



_________________________________________________________________

                  Appeal from the United States District Court
                      for the Northern District of Georgia
_________________________________________________________________
                      (April 20, 1998)


Before HATCHETT, Chief Judge, GODBOLD and RONEY, Senior Circuit Judges.

HATCHETT, Chief Judge.

     Appellant Kenneth Hardin challenges his conviction and sentence for being a felon
in possession of a firearm. Concluding that Hardin’s stipulation to his prior felony

conviction removed the government’s burden of proof on that issue, we affirm.

                                     I. BACKGROUND

       A federal grand jury indicted appellant Kenneth Hardin for being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Hardin

pleaded not guilty. Prior to trial, the government and Hardin entered into a written

stipulation:

               It is stipulated and agreed, by and between the United States
               of America, through its attorneys, and the Defendant and his
               attorney, that the Defendant, KENNETH GERALD
               HARDIN, has been and stands convicted of a felony offense,
               on May 17, 1991, in the state of Georgia, which was
               punishable by imprisonment of a term exceeding one year, as
               alleged in the indictment.

The Assistant United States Attorney (AUSA), defense counsel and Hardin signed the

stipulation. No party filed it with the clerk of the court prior to trial.1

       During jury selection, defense counsel repeatedly referred to Hardin’s felon status

when asking potential jurors whether that influenced them:

               As you have already heard, there’s going to be evidence that
               Mr. Hardin is a convicted felon . . . . Would any of you feel
               more likely to convict Mr. Hardin simply because you know
               that in the past, he has committed a felony offense?
                                      ***


       1
          The government did file the stipulation with its “motion for leave to file exhibit
out of time,” which was intended to supplement its response to Hardin’s post-trial motion
for judgment of acquittal. Because the district court denied the government’s motion for
leave, Hardin moves to strike the stipulation from the record on appeal. Appellant’s
Reply Brief at 7 n.2. Hardin, however, concedes to the existence of the stipulation.
Appellant’s Initial Brief at 9. Accordingly, the motion to strike is DENIED.
                                                2
              So one of the elements of possession of a firearm is being a
              convicted felon. I’m standing right here and telling you that
              he’s a convicted felon.

       After the jury was selected and sworn, the district court mentioned Hardin’s felon

status during its recitation of standard preliminary instructions:

              [I]n this case the defendant is charged with possession of a
              firearm. The defendant, as you now know, has a felony
              record, and it is a federal offense for a felon to be in
              possession of a firearm.

Hardin did not object. Also without objection, the AUSA told the jury during her

opening statement that felon status was not at issue:

              The defendant has conceded and will not argue the first
              [element]. As you heard during the picking of the jury, Mr.
              Hardin is a convicted felon. So the first element you are not
              going to hear any testimony about.

Defense counsel, in turn, acknowledged this concession during her opening statement:

              Let’s talk a little bit about the charge of possession of a
              firearm by a convicted felon. Mr. Hardin, and it’s not in
              evidence yet, so although you know it because we talked
              about it, there is certainly no evidentiary basis for him being a
              convicted felon, but you will have a stipulation that he is a
              convicted felon. He is going to admit it. It will be admitted
              into evidence. So we can just dispense with that element right
              now. Number [one] gone. The government proved that. You
              don’t even have to think about it any more.

       During the government’s case, the AUSA did not read, publish or otherwise offer

the stipulation into evidence. The only other reference to Hardin’s felon status occurred

during closing arguments, when the AUSA briefly stated that “[t]he defendant has a prior

felony conviction. There is no argument about that.” Again, Hardin advanced no

objection. After receiving standard instructions -- that explained the government’s

                                              3
burden of proof, the elements of the crime (including felon status) and statements of

counsel not being evidence -- the jury convicted Hardin. The district court subsequently

denied Hardin’s post-trial motion for judgment of acquittal and sentenced him to 100

months of imprisonment.2

                                        II. ISSUE

       The only issue we address is whether the government’s failure to offer into

evidence the stipulation concerning Hardin’s felon status mandates reversal.3 Because

this issue implicates the sufficiency of evidence, our standard of review is de novo. See

United States v. Lumley, 135 F.3d 758, 759 (11th Cir. 1998) (“In general, we review the

sufficiency of evidence de novo[.]”).

                                  III. CONTENTIONS

       Hardin does not dispute the existence or veracity of the stipulation. Rather, Hardin

contends that without offering the stipulation into evidence, the government failed to


       2
         Unlike his post-trial one, Hardin’s mid-trial motion for judgment of acquittal --
which he argued at the close of the government’s case and renewed prior to closing
arguments -- relied on grounds other than the government’s failure to offer the stipulation
into evidence.
       3
          Hardin raises five other issues on appeal: (1) whether the government’s
improper comments about defense counsel infringed upon Hardin’s Sixth Amendment
right to effective assistance of counsel and Fifth Amendment right to due process of law;
(2) whether the introduction of hearsay evidence concerning the object of the search
warrant infringed upon Hardin’s Fifth Amendment right to due process of law; (3)
whether the district court reversibly erred in denying Hardin’s proposed jury instruction
on “attempted” possession; (4) whether the district court incorrectly instructed the jury on
the interstate commerce element; and (5) whether the district court erred in enhancing
Hardin’s offense level under U.S.S.G. § 2K2.1(b)(5) for possessing a firearm in
connection with another felony, possession of methamphetamine. We affirm on these
issues without discussion. See Eleventh Cir. Rule 36-1.
                                             4
provide the jury with sufficient evidence on an essential element of the crime, i.e., that

Hardin was a convicted felon at the time he possessed the firearm. The government, on

the other hand, asserts that the stipulation relieved the government of its burden to offer

any proof of Hardin’s felon status. Therefore, the government contends, failure to publish

or offer the stipulation into evidence is inconsequential, especially in light of defense

counsel’s, the AUSA’s and the district court’s repeated and unchallenged

acknowledgment of Hardin’s felon status in the jury’s presence.

                                      IV. DISCUSSION

          Once criminal defendants enter pleas of not guilty, the Fifth and Sixth

Amendments to the Constitution entitle them to at least two trial-related rights. See

Sullivan v. Louisiana, 113 S. Ct. 2078, 2081 (1993) (discussing the interrelated “Fifth

Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment

requirement of a jury verdict”). First, “[t]he Constitution gives a criminal defendant the

right to demand that a jury find him guilty of all the elements of the crime with which he

is charged[.]” United States v. Gaudin, 515 U.S. 506, 511 (1995). Second, the “simple

plea of not guilty . . . puts the prosecution to its proof as to all elements of the crime

charged.” Estelle v. McGuire, 502 U.S. 62, 69-70 (1991) (internal quotation marks and

citation omitted). In this case, Hardin invoked both of these rights when he pleaded not

guilty.

          We must decide what rights, if any, Hardin waived when he and the government

agreed to stipulate to felon status. For a variety of tactical reasons, such stipulations are

common in felon-in-possession cases. See Old Chief v. United States, 117 S. Ct. 644,

                                                5
647 (1997) (“Fearing prejudice if the jury learns the nature of the earlier crime,

defendants sometimes seek to avoid [the introduction of prior felony evidence, such as a

record of judgment] by offering to concede the fact of the prior conviction.”).4 We need

not decide whether Hardin’s stipulation waived his right to a jury determination as to that

element. Cf. United States v. Mason, 85 F.3d 471, 472 (10th Cir. 1996) (“[T]he jury need

not resolve the existence of an element when the parties have stipulated to the facts which

establish that element.”). Hardin does not suggest that the district court actually or

effectively directed a partial verdict in the government’s favor. See United States v.

Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) (“[A] trial judge is prohibited

from entering a judgment of conviction or directing the jury to come forward with such a

verdict, regardless of how overwhelming the evidence may point in that direction.”)

(internal citation omitted); United States v. Cornish, 103 F.3d 302, 303-06 (3d Cir.)

(affirming defendant’s felon-in-possession conviction because the district court’s

instructing the jury to “accept” a felon status stipulation did not amount to plain or

harmful error), cert. denied, 117 S. Ct. 1711 (1997). Indeed, the district court recited

standard instructions to the jury that it could not find Hardin guilty unless the government

proved that Hardin was “(1) in knowing possession of a firearm, (2) a convicted felon,

and (3) that the firearm affected interstate commerce.” United States v. Billue, 994 F.2d

1562, 1565 n.2 (11th Cir. 1993), cert. denied, 510 U.S. 1099 (1994). Hardin does not

dispute that a jury actually found in favor of the government on all of the essential


       4
        Indeed, as the government correctly points out, Old Chief required it to accept
Hardin’s offer to stipulate to felon status. See 117 S. Ct. at 656.
                                              6
elements.

       We hold, however, that Hardin waived his right to have the government produce

evidence of his felon status, including the stipulation itself. First, this holding comports

with our precedent. In Poole v. United States, the defendant was on trial for bank

robbery. 832 F.2d 561, 562 (11th Cir. 1987), cert. denied, 488 U.S. 817 (1988). Defense

counsel stipulated that the banks were federally insured, which was one of the essential

elements. On collateral review, the defendant argued that his trial attorney had no

authority to waive his constitutional right to have the government prove all of the

essential elements beyond a reasonable doubt. 832 F.2d at 563. A prior panel of this

court affirmed the district court’s denial of his section 2255 motion, holding that “counsel

for the defendant can stipulate to the insured status of the banks without a formal waiver

by the defendant.” 832 F.2d at 564. The court reasoned that counsel’s decision to

stipulate was a tactical one and, therefore, “the government never needed to present any

evidence of the banks’ insured status.” 832 F.2d at 564-65 (emphasis added).

       Like Poole, Hardin stipulated to an essential element of the crime charged. In fact,

unlike Poole, Hardin himself agreed to the stipulation. Accordingly, under our precedent,

“the government never needed to present any evidence” of Hardin’s felon status. Poole,

832 F.2d at 565 (emphasis added).

       Our holding also aligns with persuasive authority from another circuit. In United

States v. Branch, the defendant was on trial for bank fraud. 46 F.3d 440, 441 (5th Cir.

1995). The defendant stipulated that the banks were federally insured, which was one of

the essential elements. 46 F.3d at 441 n.1 & 442. Although it was filed with the court,

                                              7
“the stipulation was not tendered as a trial exhibit nor was [it] published to the jury.” 46

F.3d at 441. The district court instructed the jury about the stipulation, advising that it

“may accept” the stipulation as conclusive evidence. 46 F.3d at 442. On appeal, the

defendant took issue with the government’s failure to offer the stipulation into evidence.

The Fifth Circuit affirmed, holding that “[o]nce a stipulation is entered, even in a criminal

case, the government is relieved of its burden to prove the fact which has been stipulated

by the parties.” 46 F.3d at 442.

       The facts of Branch are materially similar to the facts of this case. Like Branch,

Hardin stipulated to an essential element of the crime charged. Neither Branch’s

stipulation nor Hardin’s stipulation were entered into evidence. Both juries, however,

were told about the stipulation and returned guilty verdicts. We recognize that, unlike the

stipulation in Branch, the instant stipulation was not filed with the court until after trial.

We also recognize that, unlike the district judge in Branch, the district judge in this case

did not specifically instruct the jury about the effect of the stipulation. These differences,

however, are inconsequential. Clearly, the district judge was aware of Hardin’s

stipulation in light of his reference to it during preliminary instructions. Further, the

judge, the AUSA and defense counsel collectively told the jury that felon status was not

at issue. Accordingly, we, like the Fifth Circuit, find no reason to reverse the jury’s

verdict.

       To the extent that they conflict with our holding, we decline to follow the views of

the Ninth and Fourth Circuits. See United States v. James, 987 F.2d 648, 650 (9th Cir.

1993) (reversing defendant’s bank robbery conviction because the government’s failure to

                                               8
offer the stipulation into evidence left the jury “[w]ithout any evidence on the FDIC status

of the bank”); cf. United States v. Muse, 83 F.3d 672, 678-79 (4th Cir.) (affirming

defendant’s felon-in-possession conviction where the government published to the jury

the defendant’s stipulation to felon status, stating that “a conviction is not valid unless a

jury considers the stipulation and returns a guilty verdict based on its finding that the

government proved the elements of the crime beyond a reasonable doubt”), cert. denied,

117 S. Ct. 261 (1996). These cases simply do not persuade us. Unlike defense counsel in

James, defense counsel in this case repeatedly admitted to Hardin’s felon status in the

jury’s presence and failed to object to the AUSA’s similar, express references. See 987

F.2d at 651.5 Unlike the AUSA in Muse, the AUSA in this case did not publish the

stipulation to the jury. See 83 F.3d at 678. Thus, the excerpts from Muse that Hardin

relies upon are dicta.6

       In holding that Hardin’s stipulation eliminated the government’s burden to produce

evidence of his felon status, we in no way imply that failing to offer a stipulation into

evidence is wise trial practice. It is fair to assume that, in this case, the government had


       5
          We note that the dissenting judge in James contended that defense counsel’s
remarks during opening statements served to judicially admit the stipulated fact and made
the jury aware of the substance of the stipulation. See 987 F.2d at 654, 656 (Alarcon, J.,
dissenting).
       6
         Recently, the Fourth Circuit questioned the continuing validity of Muse after Old
Chief. See United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997) (“In light of the
United States Supreme Court’s recent decision in [Old Chief], we question the validity of
our holding in [Muse] that a stipulation does not constitute a waiver of the government’s
burden of proof in the limited circumstances of a defendant’s felon status for purposes of
a 18 U.S.C.A. § 922(g)(1) charge.”) (internal citations omitted), cert. denied, 118 S. Ct.
733 (1998).
                                               9
every intention of offering the stipulation for admission as evidence. Indeed, this

omission could very well have caused the jury to acquit Hardin. Hardin, however, has no

legal or equitable basis to contest the government’s mistake. He received his benefit of

the bargain -- prejudicial information about his prior conviction never entered into the

jury’s deliberations. See Old Chief, 117 S. Ct. 644, 655 (“[T]he risk of unfair prejudice

did substantially outweigh the discounted probative value of the record of conviction, and

it was an abuse of discretion to admit the record when an admission was available.”).

       For the foregoing reasons, we affirm the judgment of the district court.

                                      AFFIRMED.




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