                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 9 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 98-5206
 v.                                               (D.C. No. 98-CR-44-B)
                                                     (N. Dist. Okla.)
 JEROME GLEN BROWN,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, LUCERO, Circuit Judge, and KIMBALL, **
District Judge.



      On March 5 and April 3, 1998, two Tulsa banks were robbed by two men,

one of whom carried a gun. Jerome Glen Brown and co-defendant Malcolm

Moore were charged and convicted for committing these armed bank robberies in



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         The Honorable Dale A. Kimball, United States District Judge for the
District of Utah, sitting by designation.
violation of 18 U.S.C. § 2113(a) and (d). Mr. Brown and Mr. Moore were

ordered to jointly and severally pay restitution, but the district court’s judgment

and commitment order did not reflect this. Mr. Brown appeals his conviction and

challenges the judgment and commitment order.

      Mr. Brown first contends the district court erred in admitting into evidence

a taped conversation he had with his wife while in jail. During the conversation,

Mr. Brown stated, “I shouldn’t even have been hanging with [Mr. Moore] since

we got out.” Mr. Brown objected, asserting that the latter part of the statement,

“since we got out,” implied his imprisonment for other unrelated charges and

thereby violated Fed. R. Evid. 404(b). After the government assured the district

court it would not argue Mr. Brown was previously in prison, the court overruled

defense counsel’s objection, holding that the statement was ambiguous regarding

Mr. Brown’s prior incarceration.

      A district court’s decision whether to admit or exclude evidence is

considered harmless “unless a substantial right of [a] party is affected.” Fed. R.

Evid. 103(a). Such an error is one which has a “‘substantial influence’ on the

outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” United

States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc). When

conducting our harmless error analysis, we review the record as a whole. See

United States v. Charley, 189 F.3d 1251, 1270 (10th Cir. 1999).


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      Assuming without deciding that admitting the latter part of the statement

was an error, that error was harmless given the other evidence presented to the

jury. At trial, Mr. Moore’s girlfriend, Misty Fallin, testified that Mr. Moore and

Mr. Brown committed the robberies and that Mr. Brown had a gun in his

possession. She identified Mr. Moore and Mr. Brown in the surveillance videos

taken during the two robberies. She also testified as to the clothing Mr. Brown

and Mr. Moore wore during the robberies and the getaway vehicles used, which

was supported by other witnesses’ testimony and the video surveillance tapes.

Even if admitting the taped conversation was an error, it was a harmless given

this clear and overwhelming testimony. See, e.g., United States v. Oberle, 136

F.3d 1414, 1418-19 (10th Cir. 1998) (admission of Rule 404(b) evidence was

harmless in light of other substantial evidence against defendant), cert. denied

119 S. Ct. 197 (1998).

      Mr. Brown also challenges on appeal the admission of the first part of the

statement, “I should not even have been hanging with him” as inadmissible

hearsay evidence not within the exception for admissions against interest as stated

in Fed. R. Evid. 801(d)(2)(A). Because Mr. Brown did not raise this objection at

trial, we review for plain error. “‘Plain errors’ are those which are obvious and

substantial, and which when viewed in light of the entire record seriously affect

the fairness, integrity, or public reputation of judicial proceedings.” United States


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v. Nall, 949 F.2d 301, 309 (10th Cir. 1991) (citations omitted). The government

argues that Mr. Brown’s statement reflects his regret or remorse concerning his

association with Mr. Moore and is thus an admission against interest. We are not

persuaded it was obvious that Mr. Brown’s remorse regarding his association with

Mr. Moore was other than an admission against his interest or that the admission

of the statement affected the fairness of the trial or any of Mr. Brown’s

substantial rights. The court therefore did not commit plain error in admitting

this part of Mr. Brown’s statement.

      Mr. Brown also challenges the false exculpatory instruction given to the

jury. Mr. Brown told police he was at an unemployment office during the time

period in which the April 3 bank robbery occurred. Based upon this statement,

the prosecution requested and received a false exculpatory jury instruction.

Defense counsel objected to the instruction, arguing that the instruction was

circular by requiring the jury to find Mr. Brown guilty in order to find the

statement false. Although we recognize the potential circularity problem in

giving this instruction, see United States v. Durham, 139 F.3d 1325, 1332 (10th

Cir. 1998), cert. denied 119 S. Ct. 158 (1998), if error occurred it was harmless in

light of the abundant evidence presented against Mr. Brown. See id. (faulty jury

instruction does not require reversal if error was harmless).

      Mr. Brown finally argues that although each of these alleged errors may be


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harmless separately, cumulatively they are prejudicial. Even assuming cumulative

error occurred, to be prejudicial the errors must have a substantial influence on

the outcome of the case or leave this court in grave doubt as to whether they had

such an effect. See Rivera, 900 F.2d at 1469. Considering the evidence against

Mr. Brown, we are convinced the cumulative effect of the district court’s actions,

assuming them to be in error, did not have a substantial influence on Mr. Brown’s

convictions.

      Regarding the trial court’s judgment and commitment order, the

government concedes it should be amended to provide for the joint and several

obligation of Mr. Moore and Mr. Brown. We therefore remand this case to the

district court to permit amendment of that order to provide for Mr. Moore’s and

Mr. Brown’s joint and several responsibility.

      We AFFIRM Mr. Brown’s conviction and REMAND this case to the

district court to amend the judgment and commitment order.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




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