                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                       PUBLISH
                                                                         November 5, 2014
                       UNITED STATES COURT OF APPEALS
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                    No. 13-7054

 JOSEPH TRAVIS FARMER,

        Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Eastern District of Oklahoma
                         (D.C. No. 6:12-CR-00086-RAW-1)


Robert A. Ridenour, Assistant Federal Public Defender (Julia L. O’Connell, Federal
Public Defender, and Barry L. Derryberry, Research & Writing Specialist, with him on
the briefs), Tulsa, Oklahoma, for Defendant-Appellant Joseph Travis Farmer.

Linda A. Epperly, Assistant United States Attorney (Mark F. Green, United States
Attorney, and Kyle E. Waters, Assistant United States Attorney, with her on the brief),
Muskogee, Oklahoma, for Plaintiff-Appellee United States of America.


Before MATHESON, EBEL, and McHUGH, Circuit Judges.


EBEL, Circuit Judge.
        In this direct criminal appeal, Defendant-Appellant Joseph Farmer challenges his

conviction for being a felon found, in 2012, to be in unlawful possession of a firearm,

arguing that the district court erred in admitting at trial evidence that Tulsa police had

previously found Farmer unlawfully possessing another firearm in 2010. Farmer

contends the district court should have suppressed evidence of his 2010 firearm

possession, offered under Fed. R. Evid. 404(b), because Tulsa police obtained that

evidence during an unlawful search. We conclude that any error in admitting this 404(b)

evidence was harmless beyond a reasonable doubt. We also reject Farmer’s challenges to

the prosecutor’s closing argument and his claim of cumulative error. Having jurisdiction

under 28 U.S.C. § 1291, we therefore AFFIRM Farmer’s conviction.

                                    I. BACKGROUND

        “We recite the facts in the light most favorable to the jury’s verdict.” United

States v. Berry, 717 F.3d 823, 827 (10th Cir.), cert. denied, 134 S. Ct. 495 (2013). In

June 2012, Muskogee, Oklahoma Sheriff’s Deputy Jeffrey Gragg stopped Farmer for

speeding on Interstate 40. When the deputy first spoke with Farmer and his female

passenger, the deputy smelled burnt marijuana. Farmer admitted to the deputy that he

had smoked marijuana earlier that day and consented to the deputy searching his car.

Doing so, Deputy Gragg found a loaded .357 revolver under the front edge of the driver’s

seat.

        Based on these facts, a jury convicted Farmer of being a previously convicted

felon unlawfully in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and the
                                              2
district court sentenced Farmer to sixty months in prison to be followed by three years of

supervised release. On appeal, Farmer challenges his conviction, asserting three grounds

for reversal.

                                    II. DISCUSSION

A. Any error in admitting evidence that Tulsa police had previously found Farmer
unlawfully in possession of another firearm in 2010 was harmless beyond a
reasonable doubt

       Farmer’s defense at trial was that the gun found in his car in 2012 was not his and

that he was unaware that it was under the driver’s seat. To counter that defense, the

Government sought to present evidence to the jury from a Tulsa police officer, offered

pursuant to Fed. R. Evid. 404(b), that in 2010 the Tulsa officer, while searching Farmer’s

motel room, had found him in unlawful possession of another firearm. Farmer argued to

the district court that this Rule 404(b) evidence should be suppressed, reasserting that the

Tulsa officer had found that firearm during an unlawful search. The district court denied

Farmer’s motion to suppress without determining whether the 2010 search of Farmer’s

Tulsa motel room was lawful, ruling instead that Farmer had waived any challenge to the

legality of that search when he pled guilty in state court to unlawfully possessing the gun

Tulsa police found during the search.1 We review the district court’s decision de novo.



1
  The district court admitted evidence that Farmer was unlawfully in possession of the
gun discovered during the 2010 search of his motel room under Rule 404(b), to show that
Farmer knowingly possessed the firearm found under his car seat in 2012. Farmer does
not challenge the court’s Rule 404(b) determination on appeal, but instead challenges the
validity of the seizure of the gun from his motel room in 2010.
                                             3
See United States v. Davis, 750 F.3d 1186, 1189 (10th Cir. 2014) (reviewing de novo

question of law implicated by suppression motion).

       The Fourth Amendment’s exclusionary rule applies to preclude the Government’s

use of unlawfully obtained Rule 404(b) evidence 1) where the Government seeks to use

that evidence “to prove an essential element of a charged offense,” 2) “at least where

there is some nexus between the initial search and seizure and the subsequent charged

offense.” United States v. Hill, 60 F.3d 672, 677 (10th Cir. 1995). The Government used

the challenged 404(b) evidence here to prove an essential element of the offense charged

in this case, that Farmer knowingly possessed the firearm found in his car in 2012. And

the district court assumed that there was a sufficiently close 404(b) nexus between the

present offense and the discovery of a gun in Farmer’s Tulsa motel room in 2010.

       Both the Government and Farmer, therefore, limit the issue now before the Court

to the 2010 seizure of a gun in Farmer’s possession. Farmer argues that the 2010 seizure

was unlawful, so the evidence of that gun should have been suppressed in this current

prosecution. The Government, in opposition, does not seek directly to establish the

legality of the 2010 seizure, but rather argues only that Farmer cannot now challenge the

lawfulness of the 2010 seizure because he admitted to possession of the seized gun when

he pled guilty in state court to unlawfully possessing that weapon. The district court

accepted the Government’s argument, ruling that, even assuming that the exclusionary

rule could apply here, Farmer waived his right to challenge the legality of the 2010


                                             4
seizure when he pled guilty in state court to unlawfully possessing the firearm Tulsa

police discovered in his motel room. That was error.

       The district court’s decision that Farmer could no longer challenge the 2010 search

of his Tulsa motel room was based on the argument that Farmer’s state guilty plea

waived all of his non-jurisdictional defenses, including any potential Fourth Amendment

challenge to the seizure of the gun. See United States v. DeVaughn, 694 F.3d 1141, 1153

(10th Cir. 2012) (“A guilty plea waives all defenses except those that go to the court’s

subject-matter jurisdiction and the narrow class of constitutional claims involving the

right to not be haled into court.”), cert. denied, 133 S. Ct. 2383 (2013). That is certainly

true for purposes of challenging his state weapons conviction. See Haring v. Prosise, 462

U.S. 306, 319-21 (1983) (applying, e.g., Tollett v. Henderson, 411 U.S. 258, 267 (1973)).

But Farmer’s guilty plea did not waive his right to challenge the validity of the search

underlying his state conviction in other contexts. See id. at 308, 319-22 (holding guilty

plea in state criminal proceeding did not preclude criminal defendant from challenging

legality of search underlying his state conviction in 42 U.S.C. § 1983 action). By

pleading guilty to the state offense, Farmer made a factual admission in that case that he

committed the charged state offense, thereby waiving any Fourth Amendment claim that

the state illegally seized his gun as evidence in that state prosecution. Id. at 321-23.2


2
 In Haring, the Supreme Court held that a guilty plea in state criminal proceedings did
not preclude the criminal defendant from later challenging the legality of the search
underlying his state conviction in a subsequent 42 U.S.C. § 1983 action. 462 U.S. at 308,
319-22. In reaching that decision, the Court rejected a waiver argument similar to the
                                              5
       For these reasons, then, Farmer did not waive his Fourth Amendment challenge to

the 2010 search of his Tulsa motel room by pleading guilty to the state weapons offense.

See id. at 319-20. The district court, therefore, erred in refusing to consider whether that

2010 search was lawful before admitting Rule 404(b) evidence of the gun discovered in

Farmer’s motel room during that search. See Hill, 60 F.3d at 677, 680-81. Nonetheless,

this error was harmless beyond a reasonable doubt because omitting this Rule 404(b)

evidence “would not have changed the jury’s determination.”3 See id. at 681.

       In order to convict Farmer, the jury had to find that he knowingly possessed the

firearm found under his car seat in 2012. Knowing possession could be either actual or



one the Government makes here. See id. at 320-22. In addition, Haring rejected the
argument that state collateral estoppel principles precluded the state criminal defendant
from challenging the search, and the argument that, by pleading guilty, the criminal
defendant implicitly admitted that the search was lawful. See id. at 312-18. Because the
Government has not asserted such arguments in this case, we have no occasion to address
those issues here. Furthermore, the Government’s Rule 404(b) evidence consisted of
only the testimony of the Tulsa police officer that he found a gun in Farmer’s motel room
in 2010. The Government did not attempt to introduce into evidence the fact of Farmer’s
resulting state weapons conviction, nor did the Government attempt to rely in this case on
any factual admission that Farmer may have made, in pleading guilty to the state
weapons offense, that he unlawfully possessed the firearm in 2010. So we have no
occasion here to address whether the Government could have properly done so.
3
  It is the Government’s burden to establish that constitutional error is harmless beyond a
reasonable doubt. See United States v. Mullikin, 758 F.3d 1209, 1211 (10th Cir. 2014).
The Government raised the harmless error argument here only in a perfunctory fashion.
We, nevertheless, consider the harmless error justification because the record in this case
is neither long nor complex, and our conclusion that the error was harmless beyond a
reasonable doubt is straightforward and clear. See United States v. Holly, 488 F.3d 1298,
1307-08 (10th Cir. 2007); see also United States v. Spence, 721 F.3d 1224, 1230 & n.6
(10th Cir.) (in dicta), cert. denied, 134 S. Ct. 660 (2013).

                                              6
constructive, meaning that Farmer had either “direct physical control over” the gun “at a

given time” (actual possession), or that he had “both the power and the intention at a

given time to exercise dominion or control over” it, “either directly or through another

person or persons” (constructive possession). (R. v.1 at 129.) Further, such possession

could be joint. See United States v. Bagby, 696 F.3d 1074, 1081 n.5 (10th Cir. 2012)

(noting similar instruction “accurately stated the law”).

       The Government presented strong evidence, apart from the challenged Rule

404(b) evidence, that Farmer knowingly possessed the firearm found under his car seat in

2012. See Hill, 60 F.3d at 680-81. That evidence included proof of the following:

Although just recently purchased, Farmer had the car for several weeks and, during that

time, he spent a considerable amount of time in the car, driving cross-country from

Oklahoma to Atlanta and back again. And Farmer was driving his car at the time the

weapon was found, “sitting right there,” unobstructed, “underneath the driver’s seat, right

on the edge of the seat” and easily within Farmer’s reach. (R. v.2 at 109, 116.)

Moreover, at the time the deputy searched the car, Farmer was sitting in the deputy’s

patrol car. The jury could have inferred that Farmer knew that there was a gun

underneath the driver’s seat of his car because, when the deputy began searching the

driver’s side of that vehicle, Farmer tried to distract the deputy by honking the horn of the

patrol car and, once he got the deputy’s attention, telling him falsely that there might be

marijuana or a pipe in the car’s trunk. Jurors could also have inferred that Farmer knew

about the gun because video they saw of Farmer, taken by a camera in the patrol car,
                                              7
showed that, as the deputy searched the driver’s side of the car, before he found the gun,

Farmer muttered the sentiment that he hoped the passenger would “take the gun”; Farmer

expressed no surprise when the deputy discovered the weapon underneath the driver’s

seat of Farmer’s car; and as the deputy continued searching the vehicle, Farmer attempted

to get the passenger’s attention to tell her to “take the gun” and to assure her that if she

did, she would not go to jail. Farmer asked the passenger again to take responsibility for

the gun after deputies took the pair to jail.

       This evidence strongly indicated that Farmer knowingly possessed the firearm

under his car seat, apart from the challenged Rule 404(b) evidence that he previously

unlawfully possessed another gun in 2010. Moreover, although the prosecutor once

commented on this 404(b) evidence during closing argument, he did so only briefly.

       Based on the strength of the evidence without the challenged 404(b) evidence, and

in light of the limited use the prosecutor made of the 404(b) evidence during closing

argument, “we find beyond a reasonable doubt that omitting evidence of” Farmer’s prior

unlawful gun possession in 2010 “would not have changed the jury’s determination” that

Farmer knowingly possessed the firearm found underneath the driver’s seat of his car in

2012. Hill, 60 F.3d at 681. Therefore, any error in admitting evidence of Farmer’s prior

gun possession in 2010 was harmless beyond a reasonable doubt. See id.

B. The prosecutor’s closing argument does not warrant reversal

       Farmer next argues that the prosecutor’s improper arguments deprived Farmer of a

fair trial. We disagree.
                                                8
       1. The prosecutor’s argument did not amount to improper vouching that
       warrants reversal

       In response to the defense’s suggestion, during trial, that Deputy Gragg planted the

gun in Farmer’s car, the prosecutor, on several occasions during his initial closing

argument, asked jurors to consider why Deputy Gragg might do that: “What has Deputy

Gragg got to gain by planting a firearm on a guy he just met five minutes ago? You think

this is his career case?”; and “[d]o you think he has anything to gain by placing his

career, his freedom in jeopardy . . . to pin a gun on a guy that is just rolling down the

highway? It just doesn’t make sense.” (R. v.2 at 204-05.) Similarly, in his rebuttal

closing, the prosecutor argued that Deputy Gragg “didn’t have anything to gain by

pinning a gun on this guy.” (Id. at 221.)

       Defense counsel objected to each of these statements, but the trial court overruled

those objections. We, therefore, review these arguments de novo. See United States v.

Anaya, 727 F.3d 1043, 1052 (10th Cir. 2013), cert. denied, ---S.Ct.---, 2014 WL 5311407

(U.S.). Because the prosecutor was responding to the defense’s contention that Deputy

Gragg planted the gun in Farmer’s car, these remarks were not improper. See United

States v. Robinson, 59 F.3d 1318, 1323 (D.C. Cir. 1995); United States v. Cotton, 631

F.2d 63, 65-66 (5th Cir. 1980); see also United States v. Franklin-El, 555 F.3d 1115,

1126 (10th Cir. 2009) (“Prosecutors have considerable latitude to respond to an argument

made by opposing counsel.”) (internal quotation marks omitted).

       But even if the prosecutor’s argument could be deemed improper vouching, these

                                              9
remarks were, in any event, harmless beyond a reasonable doubt. See Anaya, 727 F.3d

1043, 1052. As previously explained, there was strong evidence establishing that Farmer

was a previously convicted felon who knowingly possessed the firearm found under the

driver’s seat of his car. See United States v. Sierra-Ledesma, 645 F.3d 1213, 1227 (10th

Cir. 2011); United States v. Rogers, 556 F.3d 1130, 1143 (10th Cir. 2009). And, again, if

there was any improper vouching for Deputy Gragg, it was in response to defense

counsel’s contention that the deputy put the gun in Farmer’s car. See United States v.

Broomfield, 201 F.3d 1270, 1276-77 (10th Cir. 2000) (concluding improper vouching in

response to defense argument was harmless, when considered in context of trial as a

whole). In addition, the district court ameliorated any improper vouching here by

instructing jurors that they were the sole judges of the witnesses’ credibility and that the

attorneys’ arguments were not evidence. See United States v. Irvin, 682 F.3d 1254, 1275

(10th Cir. 2012); Broomfield, 201 F.3d at 1277. Under these circumstances, then, even if

the Government’s argument amounted to improper vouching, it was harmless beyond a

reasonable doubt.4

       Next, Farmer contends that the prosecutor improperly vouched for the deputy’s


4
   See United States v. Johnson-Dix, 54 F.3d 1295, 1304-05 (7th Cir.) (holding
prosecutor’s improper vouching for government agent, by arguing that agent would not
risk his career to testify falsely “to get this one defendant,” did not result in unfair trial);
United States v. Martinez, 981 F.2d 867, 871 (6th Cir.) (holding that prosecutor’s
improper vouching, asking jurors why detective would risk eighteen-year career to testify
falsely, where there was no evidence before jury that detective would have risked his
career he had lied, was not reversible error).

                                              10
credibility by arguing that defense counsel “says it is only Deputy Gragg’s word. Well,

where I come from a person’s word is what he lives by and he gave you his word. Now

you have to judge whether that word is good enough.” (R. v.2 at 222.) This time the

district court sustained defense counsel’s objection to that argument and then admonished

the jury that “you cannot consider counsel’s statement that - - I don’t remember what it

was exactly, but where he was bolstering the credibility of the witness.” (Id.) Defense

counsel did not object to the form of this admonishment. We, therefore, consider

“whether the district court’s failure sua sponte to grant a mistrial or issue some further

curative instructions was plain error.” Anaya, 727 F.3d at 1052 (internal quotation marks

omitted). The district court did not plainly err here. Although the court’s immediate

curative instruction may have been confusing to jurors, it was sufficient in light of the

earlier instructions the court gave jurors that they were “the sole judges” of the witnesses’

credibility and that “[t]he lawyers’ statements and arguments are not evidence.” (R. v.1

at 118, 121.) See Irvin, 682 F.3d at 1275; Broomfield, 201 F.3d at 1277.

       2. It was not improper for the prosecutor to argue that the defense strategy
       was: if you do not have either the law of the facts on your side, argue that the
       police are at fault

       During the trial, defense counsel pointed out that the Government had failed to test

the gun for fingerprints and suggested that perhaps Deputy Gragg planted the gun in

Farmer’s car. In response, the prosecutor, during his initial closing argument, stated:

“I’ve always heard . . . if you don’t have the facts in favor of you, argue the law. If you

don’t have the law in favor of you, argue the facts. If you don’t have either one of them
                                             11
in favor of you, say the cop did it.” (R. v.2 at 204.) The prosecutor made a similar

argument during his rebuttal closing.

       Farmer challenges these two comments, conceding that, because he did not timely

object to them, this court’s review is for plain error. See Anaya, 727 F.3d at 1053.

“Under plain error review, reversal is warranted only when: (1) the prosecutor’s

statement is plainly improper and (2) the defendant demonstrates that the improper

statement affected his or her substantial rights.” Id. (internal quotation marks omitted).

       The remarks at issue here were not plainly improper. They were, instead, fair

comment on the evidence. Cf. United States v. Santiago, 977 F.2d 517, 520 (10th Cir.

1992) (holding similar argument, made in response to entrapment defense, was not plain

error). And they were a permissible response to defense counsel’s argument. See

Franklin-El, 555 F.3d at 1126.

       Even if improper (which they were not), these remarks did not affect Farmer’s

substantial rights; that is, there is not a reasonable probability that, absent these remarks,

the jury’s verdict would have been different. See United States v. Fleming, 667 F.3d

1098, 1104, 1106 (10th Cir. 2011); Rogers, 556 F.3d at 1141.

       3. The prosecutor’s argument, that Farmer had as much right as the
       Government to test the gun for fingerprints, did not warrant a mistrial

       Defense counsel, in his closing, argued extensively that the Government failed to

test the gun found in Farmer’s car for fingerprints. In response, the prosecutor stated:

“Fingerprints. The defendant has as much right to research that evidence as - - as much

                                              12
right to it as the government does.” (R. v.2 at 223.) Defense counsel objected that this

remark improperly shifted the burden of proof to the defense; the trial court sustained that

objection but denied defense counsel’s motion for a mistrial.

       Farmer argues that the district court should have granted a mistrial because the

prosecutor’s misconduct was too egregious to be cured by the court’s instructions.

Although the district court sustained the defense’s objection to this argument, it is not

clear that the prosecutor’s argument was improper. See United States v. Musser, 856

F.2d 1484, 1485-86 (11th Cir. 1988) (holding similar argument was “a fair response” to

defense counsel’s argument that Government had failed to fingerprint bag containing

cocaine). Even assuming the remark was improper, the district court did not abuse its

discretion in denying a mistrial. See United States v. Serrato, 742 F.3d 461, 464 (10th

Cir.), cert. denied, 134 S. Ct. 2739 (2014). After sustaining the defense’s objection, the

trial court admonished jurors to remember the court’s instructions to them “as to the

burden. The defendant does not have to prove his innocence.” (R. v.2 at 224.) Farmer

did not object to the form of this admonishment. And, prior to closing arguments, the

trial court had instructed jurors that Farmer was presumed innocent, that the government

had the burden of proving him guilty beyond a reasonable doubt, and that Farmer was

“not required to prove his innocence or to produce any evidence at all.” (R. v.1 at 116.)

In light of these curative measures, the district court did not abuse its discretion in

refusing to declare a mistrial. Cf. Serrato, 742 F.3d at 465-66 (holding any error in not

sustaining objection to prosecutor’s comment that defense attorneys had same
                                              13
opportunity as Government to ask Government witness any questions they wanted was

harmless in light of trial court’s reminding jury that defense had no obligation to cross-

examine Government witness).5

C. There was no cumulative error warranting reversal

       Lastly, Farmer argues that the cumulative effect of the trial’s errors warrants

reversing his conviction. Where, as here, there was constitutional error, the government

bears the burden of proving that those errors, in the aggregate, were harmless beyond a

reasonable doubt. See United States v. Battles¸745 F.3d 436, 462 (10th Cir. 2014), cert.

denied, 2014 WL 1695149 (Oct. 14, 2014) (No. 13-1309). Considering the cumulative

effect of those errors on Farmer’s trial, we conclude beyond a reasonable doubt that they

did not impact the jury’s verdict. Although Farmer may not have received a perfect trial,

we are convinced he received a fair one. See United States v. Sarracino, 340 F.3d 1148,

1169 (10th Cir. 2003).

                                   III. CONCLUSION

       For the foregoing reasons, we AFFIRM Farmer’s conviction.




5
 We further reject Farmer’s contention that the cumulative effect of the prosecutor’s
alleged improper closing arguments deprived Farmer of a fair trial. The arguments that
Farmer challenges either were not improper or the district court adequately cured them.
                                             14
