
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 96-1377                                   UNITED STATES,                                      Appellee,                                         v.                                   SAMUEL JORDAN,                                Defendant, Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Robert E. Keeton, U.S. District Judge]                                ____________________                                       Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                ____________________            Diana L. Maldonado on brief for appellant.            Donald                     K.                         Stern, United States Attorney, and   Ben                                                                   T.                                                                      Clements,       Assistant United States Attorney, on brief for appellee.                                ____________________                                    July 31, 1997                                ____________________                 Per                       Curiam. Appellant, Samuel Jordan, appeals his            conviction after a jury trial of being a felon in possession of            a firearm, in violation of 18 U.S.C. S922(g)(1). He argues            that the district court committed prejudicial error in            admitting certain evidence of prior bad acts, in violation of            Fed. R. Evid. 403 and 404(b).                 "Determining the admissibility of evidence of other            (uncharged) bad acts requires a bifurcated inquiry. First, the            district court must be satisfied that the proffered material            has 'special' probative value, that is, that the evidence is            relevant not to show a defendant's propensity toward evil, but            to prove some controverted issue in the case. . . . Once shown            to be relevant in the requisite sense, the evidence must pass            still another sentry, embodied in Fed. R. Evid. 403. If the            evidence brings unwanted baggage, say, unfair prejudice or a            cognizable risk of confusing the jury, and if the baggage's            weight substantially overbalances any probative value, then the            evidence must be excluded."     United                                                     States v.   Rodriguez-            Estrada, 877 F.2d 153, 155 (1st Cir. 1989).                 This court has "consistently recognized . . . that the            district courts have broad discretion as to discerning the            relevancy                      vel                          non of evidence, and as to gauging the probative            value versus prejudicial impact calculus."  United                                                                States v.            Tierney, 760 F.2d 382, 387 (1st Cir. 1985). "Only rarely --            and in extraordinarily compelling circumstances -- will [this                                         -2-            court], from the vista of a cold appellate record, reverse a            district court's on-the-spot judgment concerning the . . .            weighing of probative value and unfair effect."   Freeman v.            Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir. 1988).                 1.                    Testimony About Jordan's Gun Possession in March 1994.                 The first error alleged by Jordan is the district court's            admission of FBI Agent Barry O'Neill's testimony that in the            context of a conversation with Jordan in February 1995,            concerning a bank robbery that took place in March 1994, Jordan            stated that "Guns is my trade" and that in March 1994, he "had            a whole bag full of guns," most of which were semi-automatics.            Based upon our review of the record, including the trial            transcript, we agree with the district court that Jordan's            possession of other semi-automatic guns in March 1994, is of            special relevance to a material issue raised by this case:            whether he possessed the semiautomatic gun seized from the            scene of the crime on March 5, 1994.    See United                                                                States v.            Rose, 104 F.3d 1408, 1413 (1st Cir.),                                                 cert. denied                                                             __ S.Ct. __,            1997 WL 251219, 65 USLW 3798 (1997) (reasoning that "[i]tems            linking Rose to pistols tended to corroborate [government            witness'] testimony that Rose was a participant in the            conspiracy and had possessed the [pistol in question]").                 Although the evidence is undeniably prejudicial, the            district court did not abuse its discretion in gauging that the            prejudicial impact of the evidence, which was reduced by the                                         -3-            court's limiting instructions, did not outweigh its probative            value. "[I]t must be remembered that the trial judge is            Johnny-on-the-spot; he has savored the full taste of the fray,            and his considerable discretion must be respected so long as he            does not stray entirely beyond the pale."                                                      Tierney, 760 F.2d at            388.                 2. Testimony                                 that                                      Jordan                                              Made                                                   Statements                                                               While                                                                      Being            Questioned                         About                                His                                     Involvement                                                  in                                                     a                                                        Bank                                                              Robbery                                                                       that            Occurred in March 1994.                 The district court's determination that this evidence was            relevant because it provided a context for Jordan's statements            regarding his possession of semi-automatic guns in March 1994,            was not an abuse of discretion.  See United                                                         States v.  Davis,            792 F.2d 1299, 1306 (5th Cir. 1986) (upholding admission of            evidence that investigation of defendant initiated with a            search for a machine gun as "particularly relevant as placing            in context" and making more believable defendant's statements            that other guns that he was charged with possessing belonged to            him).                 Nor did the district court err in calculating that the            prejudicial impact of the "context" evidence did not outweigh            its probative value. While testimony linking Jordan to a bank            robbery has significant potential for prejudicial impact, that            potential was defused in several ways. First, the government's            line of questioning was narrowly tailored to minimize the risk                                         -4-            of improper inferences. Second, the court's limiting            instructions, given directly after the testimony, further            minimized the risk of unfair prejudice.                 3. Testimony                               About                                     Jordan's                                               Statement                                                         that                                                              the                                                                  Gun                                                                       was            Stolen.                 The district court admitted this evidence on the ground            that it was relevant to proof of the knowledge element of the            charged offense. Jordan argues that knowledge was not a            controverted issue in this case. We need not resolve that            question. Even if we assume (without deciding) that this            evidence should not have been admitted under Fed. R. Evid.            403(b), any error was harmless. Based upon our careful review            of the record, "it is highly probable that the error [,if any,]            did not contribute to the verdict."  Rose, 104 F.3d at 1414.                 Appellant's conviction is affirmed.  See Loc. R. 27.1.                                         -5-
