204 F.3d 236 (D.C. Cir. 2000)
United States of America, Appelleev.Davon M. Harrison, Appellant
No. 99-3010
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 29, 1999Decided February 22, 2000

Appeal from the United States District Court for the District of Columbia(No. 98cr00216-01)
Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J.  Kramer, Federal Public Defender.  Tony W. Miles, Assistant  Federal Public Defender, entered an appearance.
Florence Pan, Assistant U.S. Attorney, argued the cause  for appellee.  With her on the brief were Wilma A. Lewis,
U.S. Attorney, and John R. Fisher, Elizabeth Trosman and  Darrell Valdez, Assistant U.S. Attorneys.
Before:  Williams, Sentelle and Garland, Circuit Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
Appellant Davon M. Harrison  was convicted in a jury trial in the district court for unlawful  possession of a firearm in violation of 18 U.S.C.    922(g).  He  appeals the denial of his motion for a directed verdict for  insufficiency of the evidence on two necessary elements of the  offense. Harrison stipulated to the two elements, but the  stipulations were not formally read to the jury.  The prosecution offered no other evidence on those elements.  We hold  that Harrison, by stipulating, waived his right to require the  government to introduce evidence on the stipulated elements.We therefore affirm the conviction.

I. Background

2
At approximately 9:45 a.m. on May 25, 1998, Metropolitan  Police Department Officer Raymond Adams heard gunshots  coming from the direction of the 300 block of K Street, S.E.He began to canvas the area, and drove by Davon Harrison  who was proceeding down the street in his wheelchair.  Unsuccessful in his search, Officer Adams then returned to  Harrison and asked Harrison if he had a gun.  He replied in  the affirmative.  In his lap was a newspaper, which Adams  placed on the ground and unwrapped to find a .38 Colt  containing four empty shell casings and two live rounds.Harrison was charged with a violation of 18 U.S.C.    922(g),  which prohibits anyone who has been convicted of a crime  punishable by a sentence exceeding one year from possessing  a firearm that has been transported in interstate commerce.1


3
Before trial, the district court ordered the parties to submit  a joint pretrial statement including stipulations.  The parties  filed a statement with the court which included stipulations of  two necessary elements of a    922(g)(1) charge:  (1) that the  firearm had been transported in interstate commerce and (2)  that the defendant had been convicted of a prior offense  punishable by a sentence of more than one year.


4
The exact language of the stipulations was:

IV. Stipulations

5
Stipulation as to Firearm;  Movement in Interstate Commerce:


6
The parties agree that the pistol recovered in this case was a firearm;  that the firearm was shipped or moved in interstate commerce.


7
Stipulation as to Prior Convictions ...


8
The parties agree that the defendant was previously convicted for an offense carrying a potential penalty of more than one year in case F-7372-95, in the District of Columbia.


9
Following the stipulations was a list of a Harrison's prior  convictions.


10
Government counsel referred to the stipulations in his  opening statement:


11
[I]n this case the defense counsel and I have stipulated that this gun did move through interstate commerce because handguns are not manufactured in the District of Columbia, and there is only one way that it could come in the District, by crossing state lines.  We've also stipulated that Mr. Harrison has been convicted [of anoffense] carrying the possible punishment of over a year in prison.  So, what I have to prove to you is that Mr. Harrison possessed the gun or the ammunition.


12
No objections were made to the opening statement.  Defense  counsel's opening statement described "a case where Mr.  Harrison is being charged with a gun that he did not possess,  it was a gun that was not his."


13
As forecast, the trial focused on whether Harrison was in  possession of a firearm.  The two stipulations were never  read to the jury, nor did the prosecution introduce any other  evidence regarding the stipulated evidence.  Before closing  arguments, Harrison moved for a judgment of acquittal based  on the entire record, which was denied.  When the prosecution referred to the stipulations during closing arguments, defense counsel objected.  At a subsequent bench conference,  defense counsel argued that the stipulations, never having  been introduced, could not provide proof of the elements,  although he admitted that the parties had agreed to the  stipulations.  He claimed he had not raised the issue earlier  because he hoped to modify the language of the interstate  commerce stipulation to include the fact that guns are not  manufactured in the District of Columbia.  The trial judge  stated that the failure to raise this issue earlier could be  considered a waiver, and ultimately denied defense counsel's  motion for a directed verdict.


14
During jury instructions, the judge referred to the stipulation that the gun had traveled in interstate commerce:


15
During the trial you were told that the parties had stipulated, this is had agreed to certain facts, namely that the gun had travelled in interstate commerce.  Any stipulation of fact is undisputed evidence and you may consider it undisputed evidence


16
.....


17
The parties have stipulated that the firearm which the defendant allegedly possessed has travelled or been transported in interstate commerce.


18
The judge did not give a similar instruction about the prior  conviction stipulation, but referenced the conviction by cautioning the jury that it "is just being presented to you as an  element of the crime.  You are not to consider the fact that  the defendant had been convicted of an offense punishable by  imprisonment for a term exceeding one year in any other  way....  [Y]ou're not to take any unfavorable impression of the defendant from the fact that this element of the crime is  here."


19
The jury found Harrison guilty.  Harrison appeals, asserting that as a result of the prosecution's failure to read the  stipulations, there was insufficient evidence on the interstate  commerce and prior conviction elements to support the verdict of guilty and that his conviction must be reversed.

II. Discussion
A. Issue

20
When reviewing the sufficiency of the evidence, we determine as a matter of law whether "any rational trier of fact  could have found the essential elements of the crime beyond a  reasonable doubt."  Jackson v. Virginia, 443 U.S. 307, 319  (1979);  see also United States v. Harrington, 108 F.3d 1460,  1464 (D.C. Cir. 1997).  At first, it might appear that the  standard of review could resolve this case:  because the  stipulations were never formally read to the jury, they were  never in evidence (although the jury was aware of them);there was no other evidence on the stipulated elements and  the jury could not have found them beyond a reasonable  doubt.  See, e.g., United States v. Spinner, 152 F.3d 950, 956  (D.C. Cir. 1998).  Our real inquiry, however, is whether,  considering the nature and purpose of the stipulations in this  case, Harrison should be able to challenge now the insufficiency of the evidence covered by those stipulations.


21
The government in this appeal presents two primary theories to support the validity of the verdict, in spite of its failure  to formally read the stipulations to the jury or introduce  other evidence.  The first we can call the "deemed admitted"  theory.  We have held that a technical failure to introduce  evidence that was presented to the trier of fact can be  overlooked in some cases.  See, e.g., United States v. Barrett,  111 F.3d 947, 951 (D.C. Cir. 1997) (citing United States v.  Bizanowicz, 745 F.2d 120, 123 (1st Cir. 1984), and United  States v. Stapleton, 494 F.2d 1269, 1270 (9th Cir. 1974)).  The  government asks us to apply Barrett on the reasoning that the jury was clearly made aware of the stipulations through  the opening and closing statements and jury instructions.


22
The government's second theory is that any error in the  trial was harmless error.  Rule 52(a) of the Federal Rules of  Criminal Procedure provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights  shall be disregarded," and the Supreme Court has stated that  "most constitutional errors can be harmless."  Arizona v.  Fulminante, 499 U.S. 279, 306 (1991) (citations omitted).  The  government claims that the error here was a failure to take  "the technical steps" needed to make the stipulations evidence.


23
We will not delve into the details of the government's  arguments on these grounds.  Instead, we hold that Harrison  has, by stipulating, waived any right to contest the absence of  proof on the stipulated elements.  This waiver theory of  stipulations has been addressed by a number of our sister  circuits, and although the government does not directly advance it in this case, it is necessarily raised by the nature of  the appeal.  By failing to advance it explicitly, we could  perhaps construe the government's brief as having waived the  waiver theory argument, but we will reach the issue because  it is squarely presented by this case and was relied upon by  the trial court.  See, e.g., United States Nat'l Bank of Or. v.  Independent Ins. Agents of Am., Inc., 508 U.S. 439, 445-49  (1993) (holding that an appellate court has discretion to  consider an issue not argued by the parties).  As the Supreme Court stated in Kamen v. Kemper Financial Services,  Inc., 500 U.S. 90, 99 (1991), "[w]hen an issue or claim is  properly before the court, the court is not limited to the  particular legal theories advanced by the parties, but rather  retains the independent power to identify and apply the  proper construction of governing law."  Moreover, we do not  deem it unfair to the appellant to rely on this unargued  theory.  The arguments made by the government, while not  squarely addressing the question in "waiver" terms, fairly  noticed the application of the theory, and the authorities cited  by the two parties clearly evidence an awareness of it.

B. Waiver

24
The premise of the waiver theory is simple:  Upon entering  into a stipulation on an element, a defendant waives his right  to put the government to its proof of that element.  A  stipulation "constitutes '[a]n express waiver made ... preparatory to trial by the party or his attorney conceding for the  purposes of trial the truth of some alleged fact ... thereafter  to be taken for granted;  so that the one party need offer no  evidence to prove it and the other is not allowed to disprove  it....' "  Vander Linden v. Hodges, 193 F.3d 268, 279 (4th  Cir. 1999) (quoting 9 Wigmore on Evidence    2588, at 821  (Chadbourn rev. 1981)).  Because a defendant will often  stipulate to a prior conviction to keep the government from  introducing prejudicial details about prior crimes, see Old  Chief v. United States, 519 U.S. 172, 174 (1997), a number of  cases have discussed the effect of a stipulation to elements of  a crime.


25
It is well settled that a defendant, by entering into a  stipulation, waives his right to assert the government's duty  to present evidence to the jury on the stipulated element. See United States v. Meade, 175 F.3d 215, 223 (1st Cir. 1999);United States v. Melina, 101 F.3d 567, 572 (8th Cir. 1996);United States v. Mason, 85 F.3d 471, 472 (10th Cir. 1996);United States v. Keck, 773 F.2d 759, 769-70 (7th Cir. 1985);United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976)  (per curiam);  see also Vander Linden, 193 F.3d at 279;Zuchowicz v. United States, 140 F.3d 381, 392 (2d Cir. 1998);Alamo v. Del Rosario, 98 F.2d 328, 330 (D.C. Cir. 1938);  9  Wigmore on Evidence    2591, at 824 (Chadbourn rev. 1981).The only possible point of contention is whether a defendant  can contest the government's failure to read the stipulation  itself to the trier of fact.  We conclude that a defendant  cannot.


26
In two cases directly on point, the Fifth and Eleventh  Circuits have held that a stipulation waives the government's  burden to introduce evidence on that stipulation, including a  reading of the stipulation itself:  United States v. Hardin, 139  F.3d 813, 816 (11th Cir.), cert. denied, 119 S. Ct. 225 (1998), and United States v. Branch, 46 F.3d 440, 442 (5th Cir. 1995).  Those cases closely resemble the case we consider today.


27
In Hardin, the defendant, like Harrison, was charged with  violating    922(g), and stipulated to a prior conviction.  Despite reference to the stipulation during voir dire and arguments, the stipulation was never read to the jury.  See 139  F.2d at 814.  The court concluded that "[the defendant]  waived his right to have the government produce evidence of  his felon status, including the stipulation itself" and thus had  "no legal or equitable basis to contest the government's  mistake."  Id. at 816-17.


28
The Fifth Circuit reached the same result in Branch.  The  defendant was convicted of bank fraud.  He had stipulated  that a number of the financial institutions involved were  federally insured, a necessary element of the crime;  but the  stipulation was never published to the jury.  The court of  appeals affirmed on waiver grounds:  "Once 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.  Appellant ... cannot now claim that the government  failed to offer evidence on an element to which he confessed."Branch, 46 F.3d at 442 (citing United States v. Harper, 460  F.2d 705, 707 (5th Cir. 1972), and Poole v. United States, 832  F.2d 561, 565 (11th Cir. 1987)).


29
Two cases cited by appellant that appear at first glance to  be at odds with Hardin and Branch are, upon further examination, either reconcilable or unpersuasive.  First, in United  States v. James, 987 F.2d 648 (9th Cir. 1993), the Ninth  Circuit reversed a conviction for the complete failure to  introduce evidence on a stipulated element of the crime.  The  record showed that the parties had agreed to a stipulation on  an aspect of the case, but the stipulation was not mentioned  to the jury nor placed in the record.  The court on appeal  could not, therefore, have inferred that the stipulation was  sufficient to satisfy the element.  See id. at 650-51.  Although  the court further noted that "the stipulation was never entered into evidence or read to the jury" so that there was "no  fact in evidence that the jury could take as proved," id. at 651, it is not clear to us exactly what distinction the court  meant to draw with this statement.  Under the facts of that  case it did not matter because the stipulation was not available to review on appeal.


30
Second, in United States v. Muse, 83 F.3d 672 (4th Cir.  1996), the court's opinion includes language that appears to  require that a stipulation be read to the jury, but that  language is dicta.  In general, the Muse court spoke approvingly of stipulations.  But it also said that a stipulation  "waives the requirement that the government produce evidence (other than the stipulation itself) to establish the facts  stipulated to beyond a reasonable doubt."  Id. at 678 (emphasis added) (citing United States v. Clark, 993 F.2d 402, 406  (4th Cir. 1993)).  Arguably, the italicized phrase contemplates  a formal reading to the jury of all necessary stipulations. But that issue was not before the court.  The stipulation was  read aloud in Muse (and in the case it cited for support), see  id. at 678;  the actual issue was the propriety of a jury  instruction.  See id. at 677.  Therefore, while the Muse court  accurately described normal trial practice to include the  reading of stipulations, it had no occasion to consider the  situation before us today.  See Hardin, 139 F.3d at 817  (holding that references to reading stipulations in Muse are  dicta);  see also United States v. Jackson, 124 F.3d 607, 61617 & n.8 (4th Cir. 1997) (questioning the validity of Muse).


31
We previously commented on the waiver theory in United  States v. Gilliam, 167 F.3d 628 (D.C. Cir.), cert. denied, 119  S. Ct. 2060 and 120 S. Ct. 118 (1999).  In Gilliam, a defendant charged under    922(g) did not concede the existence of  a prior conviction.  Although the prosecutor told the trial  court he had a certified copy of a conviction, it was never  offered into evidence.  We held, not surprisingly, that the  defendant did not "essentially stipulate" to the conviction  through his silence.  Id. at 639.  Although there was no  stipulation involved in Gilliam, we noted that the government  could have met its burden of offering into evidence proof of  every element of the charged offense by obtaining a stipulation or "a waiver by the defendant of his right to put the  government to its proof...."  Id.  We speculated that, in addition, the stipulation might need to be formally entered  into evidence.  See id. (quoting James, 987 F.2d at 651).  But  as the waiver issue was not presented by the facts, and where  no evidence of a prior conviction had been presented to the  jury, we concluded that the    922(g) conviction must be  reversed.  See id. at 640.


32
Harrison asserts that the government needed to introduce  the stipulations into evidence, relying, in part, on Gilliam. He contends that his stipulations "did not waive his right to  put the prosecution to its burden of proof of every element of  the crime."  Thus, he argues that he may contest the failure  to introduce the stipulations themselves as evidence.  Harrison acknowledges that Hardin and Branch are in conflict  with his claim, but he fails to present a meaningful method of  distinguishing those cases.


33
The government's brief is confused on the applicability of  waiver to this case, misreading Gilliam to suggest that our  circuit would require necessary stipulations to be read despite  Gilliam's careful neutrality.  For that reason, the government's brief does not directly advance the applicability of  waiver, although it discusses the theory.  Of course, agreement or stipulation by parties as to the state of the law does  not bind us.  See, e.g., Case v. Los Angeles Lumber Products  Co., 308 U.S. 106, 114 (1939);  NLRB Union, Local 6 v.  FLRA, 842 F.2d 483, 485 n.6 (D.C. Cir. 1988).


34
We conclude that there is little to be gained from holding  that a stipulation, which unarguably waives a defendant's  right to require the government to produce any evidence  regarding that stipulation, nevertheless fails to waive the  defendant's right to require that stipulation to be read to the  jury.  Surely, the government's failure formally to read stipulations is not "wise trial practice."  Hardin, 139 F.3d at 817.Even if a defendant cannot challenge that error, the potential  for adverse consequences for the prosecution is great:  the  jury may become confused and acquit a defendant for lack of  proof on a stipulated element, see id., and a complete failure  to enter the stipulations into the record at all will likely be  fatal, see James, 987 F.2d at 650-51.  Publishing stipulations to the jury or moving to reopen upon an inadvertent failure to  do so is the proper course of action, one which produces a  complete record.  However, nothing in either law or logic  compels us to reverse a conviction when the defendant enters  into a stipulation on an element and then seeks a windfall  from the government's failure to formally read the stipulation  to the jury.


35
Therefore, we join the Fifth and Eleventh Circuits and hold  that a defendant who stipulates to an element of an offense  waives his right to have the government put on evidence to  prove that element.  Specifically, we hold that when Harrison  entered into the stipulations that the interstate commerce and  prior conviction elements of the    922(g) charge were present, he waived his right to challenge the sufficiency of the  evidence on those elements, even though the government  failed to introduce any evidence on those elements.  This  result retains a primary benefit of this type of stipulation: when the element is a prior conviction, the defendant is  benefitted because potentially prejudicial facts about the prior  conviction will not be admitted.  See Old Chief, 519 U.S. at  185;  Hardin, 139 F.3d at 817;  Muse, 83 F.3d at 678.  Furthermore, stipulations in general are helpful to both parties  because they narrow the scope of the trial to the real issues in  dispute.  See United States v. General Motors Corp., 518  F.2d 420, 447 (D.C. Cir. 1975);  Zuchowicz, 140 F.3d at 392.


36
Today's holding, in addition to not condoning the government's conduct in this case, does not prevent a defendant  from including explicit language that a stipulation shall only  be valid if it is read to the jury.  We do not find any such  requirement in the language of the stipulations in the record  in this case.  In this respect, we are guided by the reasoning  of the Supreme Court in New York v. Hill, 120 S. Ct. 659  (2000).  In Hill, the defendant claimed that his agreement to  a trial date outside the speedy trial period guaranteed by  applicable law did not serve as a waiver of his speedy trial  rights.  The Court disagreed, noting this would make waiver  "turn on a hyper technical distinction that should play no  part."  Id. at 666.  Instead, the Court reasoned that defense  counsel's act of accepting the proposed trial date was sufficient to act as a waiver.  We similarly conclude that the  stipulations in the instant matter were sufficient to waive the  appellant's right to require the government to introduce any  evidence on the stipulated elements, including the stipulations.

III. Conclusion

37
We conclude that defendant's stipulation to the interstate  commerce and prior conviction elements of a    922(g) charge  waived his right to contest the government's failure to introduce any evidence on those stipulations, including a failure to  read those stipulations to the jury.  The stipulations were  filed with the district court, the jury was made aware of them,  and the jury found all of the elements to exist.  Accordingly,  we affirm the judgment of the district court.2



Notes:


1
 18 U.S.C.    922(g) provides:
It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition....


2
 Harrison also appeals two evidentiary rulings and further claims  that the stipulations were not final.  We have examined these  arguments and find them to be without merit.


