                       United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                 __________

                                No. 97-2640
                                __________

United States of America,                                *
                                             *
                  Appellee,                        *
                                             *          Appeal from the
                                                        United States
      vs.                                    *              District
                                                            Court for
                                                            the Southern
                                             *          District of Iowa
Sylvester Quincy Barry,                                  *
                                             *
                  Appellant.                       *
                                 __________


Submitted: October 24, 1997

Filed: January 7, 1998
                                 __________

Before McMILLIAN and BEAM, Circuit Judges, and WEBB,1
Chief District Judge.
                      __________

WEBB, Chief District Judge.

    Sylvester Quincy Barry appeals his conviction for
conspiracy to distribute cocaine base (“crack”) in
violation of 21 U.S.C. §§ 841 and 846. Barry argues that



      1
        The Honorable Rodney S. Webb, Chief United States District Judge for the
District of North Dakota, sitting by designation.
the district court2 committed reversible error when it
admitted gun evidence that, according




      2
      The Honorable Harold D. Vietor, Senior United States District Judge for the
Southern District of Iowa.
                                       -2-
to Barry, was unfairly prejudicial pursuant to Rule 403
of the Federal Rules of Evidence. Barry further argues
that the district court should have kept the gun evidence
from the jury as a sanction for the government’s
violation of Rule 12(d)(2) of the Federal Rules of
Criminal Procedure. We affirm.

I.   BACKGROUND

    Sylvester Quincy Barry was indicted for conspiracy to
distribute cocaine base (“crack”) in violation of 21
U.S.C. §§ 841 and 846. The indictment charged that the
conspiracy began on or about March 1, 1994, and continued
to March 1, 1995. Barry turned eighteen on November 27,
1994.

    Prior to trial, Barry made a request, pursuant to
Rule 12(d)(2),3 seeking notice of whether the government
intended to offer in its case in chief evidence related
to a gun that was seized from Barry on August 3, 1994.
The government did not respond to Barry’s request.
Shortly before trial, Barry filed a motion in limine to
prevent the government from presenting the gun evidence
due to the government’s failure to respond to Barry’s

     3
      Rule 12(d)(2) provides:

        (2) At the Request of the Defendant. At the arraignment or as soon
     thereafter as is practicable the defendant may, in order to afford an
     opportunity to move to suppress evidence under subdivision (b)(3) of this
     rule, request notice of the government’s intention to use (in its evidence
     in chief at trial) any evidence which the defendant may be entitled to
     discover under Rule 16 subject to any relevant limitations prescribed
     under Rule 16.
                                        -3-
Rule 12(d)(2) request.      The district court granted
Barry’s motion based on the Rule 12(d)(2) violation, as
well as the nature of the gun evidence.           Shortly
thereafter, the district court revisited its decision and
found that the proper remedy for the Rule 12(d)(2)
violation, in light of the lack of bad faith by the
government, was a




                           -4-
suppression hearing rather than exclusion of the
evidence.   The district court then held a suppression
hearing and found the gun evidence admissible despite the
Rule 12(d)(2) violation.

    During the trial, Barry offered to stipulate to his
involvement in the drug conspiracy prior to his
eighteenth birthday in an effort to foreclose the
government from proving the events prior to November 27,
1994. The government refused to accept Barry’s offered
stipulation and presented evidence of Barry’s involvement
in the conspiracy prior to his eighteenth birthday,
including evidence related to the gun seized on August 3,
1994. On March 19, 1997, a jury found Barry guilty. On
June 6, 1997, Barry was sentenced to serve 188 months in
prison.

II.           DISCUSSION

    Barry first argues that the district court erred when
it admitted the gun evidence over his Rule 403 objection.
According to Barry, because he stipulated to his
involvement in the conspiracy prior to his eighteenth
birthday, the gun seized prior to his eighteenth birthday
was irrelevant. We are not convinced. The law is clear
in this Circuit that “as a general rule, the government
is not bound by a defendant’s offer to stipulate.” See
United States v. DeAngelo, 13 F.3d 1228, 1232-33 (8th Cir.
1994) (quoting United States v. Hiland, 909 F.2d 1114, 1134 (8th Cir. 1990)).
Additionally, it is clear that evidence of a defendant’s use of a gun is relevant to his
involvement in a drug distribution conspiracy. See United States v. Milham, 590 F.2d
717, 721 (8th Cir. 1979). Such evidence supports an inference that the possessor
needed to protect his drugs and money, and therefore, had an intent to distribute drugs.
                                          -5-
See United States v. Houston, 892 F.2d 696, 704 (8th Cir. 1989). The district court has
broad discretion in deciding to admit evidence over a Rule 403 objection. See United
States v. Roach, 28 F.3d 729, 733 (8th Cir. 1994). In this instance, it is clear that the
district court’s decision was not an abuse of discretion.




                                           -6-
       Barry next argues that the gun evidence should have been kept from the jury as
a sanction for the government’s failure to comply with Rule 12(d)(2). Again, we are
not convinced by Barry’s argument. The government has forthrightly admitted that it
violated Rule 12(d)(2). However, as the government argues, there is no evidence in the
record to support Barry’s argument that the Rule 12(d)(2) violation was a result of bad
faith. Additionally, it is clear that Barry was not prejudiced by the government’s Rule
12(d)(2) violation because he was afforded a suppression hearing during which the
admissibility of the gun evidence was determined. See United States v. Lanier, 578
F.2d 1246, 1254 (8th Cir. 1978) (discussing Rule 12(d)(2) generally and commenting
on the defendant’s failure to make a showing of prejudice). The remedy afforded Barry
by the district court is in line with the language of Rule 12(d)(2) and is supported by
the case law of other circuits.4 Therefore, the district court’s decision not to suppress
the gun evidence as a sanction for the government’s Rule 12(d)(2) violation was not


      4
       See United States v. de la Cruz-Paulino, 61 F.3d 986, 992-95 (1st Cir. 1995);
United States v. Valencia, 656 F.2d 412, 414-16 (9th Cir. 1981). The district court’s
holding is further supported by the Advisory Committee’s notes to Rule 12(d)(2).
The notes read in part:

      No sanction is provided for the government’s failure to comply with the
      court’s order because the committee believes that attorneys for the
      government will in fact comply and that judges have ways of insuring
      compliance. An automatic exclusion of such evidence, particularly where
      the failure to give notice was not deliberate, seems to create too heavy a
      burden upon the exclusionary rule of evidence, especially when defendant
      has opportunity for broad discovery under rule 16. . . . A failure to
      comply with the duty of giving notice could lead to the suppression of
      evidence. Nevertheless, the standards make it explicit that the rule is
      intended to be a matter of procedure which need not under appropriate
      circumstances automatically dictate that evidence otherwise admissible
      be suppressed.

Rule 12(d)(2) advisory committee’s note (citations omitted).
                                           -7-
reversible error.



III.   CONCLUSION

       For the aforementioned reasons, we affirm the judgment of the district court in
all respects.



       A true copy.

             Attest:

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




                                         -8-
