                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 _______________

                                      No. 10-4671
                                    _______________

                           UNITED STATES OF AMERICA,

                                             v.

                                  FRANKLIN XAVIER,

                                              Appellant
                                    _______________

                           On Appeal from the District Court
                                   of the Virgin Islands
                         (D.C. Criminal No. 1-08-cr-00018-001)
                         District Judge: Hon. Raymond L. Finch
                                    _______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 10, 2012

            BEFORE: CHAGARES, JORDAN and COWEN, Circuit Judges

                              (Opinion Filed: May 25, 2012)
                                   _______________

                                       OPINION
                                    _______________


COWEN, Circuit Judge.

       In a bifurcated trial, a jury convicted appellant of unauthorized possession of a

firearm and being a felon in possession of a firearm, in violation of 14 V.I.C. § 2253(a)
and 18 U.S.C. § 922(g)(1), respectively. On appeal, defendant raises several issues, each

of which is discussed in turn. Because we find no error, we will affirm.

       Appellant’s arguments are raised for the first time on appeal and, therefore, are

reviewed for plain error. Plain error requires the error to (i) be obvious under current law

and (ii) “affect[] substantial rights.” Fed. R. Crim. P. 52(b); U.S. v. Olano, 507 U.S. 725,

734-35 (1993).

       (1)    Appellant argues that the court erred by allowing into evidence testimony

from the government’s witness, appellant’s ex-wife, Ms. Xavier, that she was afraid of

appellant, appellant was on probation, appellant had threatened to shoot her, and

appellant was not afraid to use his gun. Defense counsel, not the government, elicited this

testimony during the voir dire of Ms. Xavier to determine her competency for laying a

foundation for the admission of the subject firearm. After eliciting this testimony, defense

counsel did not object.

       This testimony was invited by appellant’s trial counsel’s voir dire of the witness.

Because invited error cannot be the basis for reversal, United States v. Console, 13 F.3d

641, 660 (3d Cir. 1993), any error in admitting this evidence is not “obvious under

current law.” As a result, its admission does not constitute plain error and it cannot be a

basis for reversal of appellant’s conviction.

       (2)    Appellant next argues that the court committed reversible error by stating to

the defense counsel in front of the jury “If you get into it, remember my admonition . . .

I’ll allow the whole ball of wax to come in.” The court’s statement was based on a


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mistaken assumption that that defense counsel was pursuing questions of the

government’s witness regarding a firearm seized from the witness’s car on January 25,

2008. The court had previously ruled that pursuing that line of questioning would allow

the admission of all evidence about that firearm. The government concedes that this was

error, but argues that it did not affect appellant’s substantial rights and, therefore, was not

plain error. We agree.

       First, any prejudice that resulted from this admonition was minimal. The comment

only suggested that there was other evidence; that evidence was never indentified and the

court’s comment had no context from which the jury could draw an inference since the

jury was not privy to the previous ruling. Additionally, the defense focused on the

credibility of Ms. Xavier. This comment did not relate to or raise the issue of her

credibility.

       Furthermore, in response to appellant’s request during the charging conference

that a curative instruction be given in regards to the court’s “ball of wax” comment, the

parties agreed on and the court gave the following instruction:

       Further, any questions that I may have asked, any comment that I may have
       made to counsel, and any act that I may have done during this trial is not
       evidence . . . . if by chance you consider anything I may have said or
       anything I may have done as an admonishment, you are to draw absolutely
       no inference against the side to whom such admonishment may have been
       addressed during the course of this trial.

(JA 288, 312-13.)

       In light of the lack of materiality of the comment and the curative instruction,

there was no plain error. See, e.g., United States v. Olgin, 745 F.2d 263, 268-70 (3d Cir.

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1984).

         (3)    Appellant argues that the court committed plain error by admitting evidence

that appellant had previously brandished a gun at a gas station and fired three shots in

response to a comment from another person. Prior to trial, the court held that the evidence

was admissible because it was inextricably intertwined with the events surrounding the

charged crime. At trial, Ms. Xavier testified that on January 25, 2008 she drove a vehicle

to a gas station where appellant fired a gun, the same one retrieved from appellant’s

home. Appellant did not object to the testimony during trial.

         The government needed to show the firearm’s operability and appellant’s

constructive possession of the firearm. Evidence that he physically possessed the firearm

and fired it in the past, therefore, directly proves the charged crime. United States v.

Cassell, 292 F.3d 788, 794-95 (D.C. Cir. 2002). In closing, the government highlighted

this evidence as proof of these elements of the crime, not as proof of character. Further,

the court instructed the jury that “. . . you are to consider only the offense charged and

you are not to base your decision on any act or any conduct that is not specifically

charged in this indictment.”

         As a result, it is not “obvious under current law” that this evidence is irrelevant to

prove appellant’s intent or the firearm’s operability as required by the statute or that it is

unduly prejudicial, particularly in light of the limiting instruction. Because there is no

plain error in its admission, appellant’s conviction will not be reversed on this basis.

         (4)    Appellant also argues that the court committed reversible error by


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disclosing to the jury the general character of appellant’s prior felony convictions.

Following the jury’s guilty verdict on the firearm possession charge, the parties stipulated

regarding appellant’s prior convictions. The parties’ stipulation states, in relevant part,

that appellant had been “convicted of the following felony offenses: . . . crimes of

attempted murder, possession of a firearm during a crime of violence, assault in the third

degree, and felon in possession of a firearm. . . .” (JA 377.) During the second phase of

the trial, after appellant was found guilty of unauthorized possession of a firearm without

admission of prior convictions, the trial court read the entire stipulation to the jury. No

party objected. (JA 353-54.) The trial court also read the remaining felon in possession

charge from the indictment. The felon in possession charge named the crimes in the

stipulation.

       The trial court instructed the jury on how to use evidence of prior convictions:

       When attorneys on both sides stipulate or agree to the existence of a fact,
       you may accept the stipulation as evidence, and regard that fact as having
       been proved. You are not required to do so, however, since your are the
       sole judges of the facts. You have heard the evidence through a stipulation
       that the defendant was convicted before this incident in the District of the
       Virgin Islands and in the District of the Southern District of Illinois of
       crimes punishable by imprisonment exceeding – for a term exceeding one
       year. These prior convictions were brought to your attention only because
       they tend to establish one of the elements of the crime of possession of a
       firearm by a convicted felon as set forth in the indictment.

       You are not to speculate as to the nature of these convictions. You may not
       consider these two prior convictions in deciding whether Franklin Xavier
       was in knowing possession of a firearm that he’s charged in this case with
       possession –which is an issue which you have already decided.

(JA 354-55.)


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       Evidence of prior offenses, including the names of the offenses for which

appellant was convicted, was relevant to prove an element of the charged offense. Old

Chief v. United States, 519 U.S. 172, 178-79 (1997). Nevertheless, “evidence of the name

or nature of the prior offense generally carries a risk of unfair prejudice to the defendant.”

Id. at 185.

       Here, it is not “obvious under current law” that evidence of the names of

appellant’s prior offenses was unfairly prejudicial to appellant. Nevertheless, even if

there was error, it did not affect appellant’s substantial rights. For phase two of the trial,

appellant had stipulated to his felon status and the interstate travel of the firearm; the only

other issue was whether appellant was in possession. But the jury had already found

appellant guilty of unauthorized possession of a firearm without knowledge of his prior

convictions during phase one of the trial. The jury’s verdict in phase one established that

they believed there was sufficient evidence for possession. They would have convicted

him of possession in phase two without any additional evidence. And during phase two

no additional evidence, aside from the prior convictions, was presented. The district

court’s instruction to use this evidence of prior convictions for the issue of whether he

was a felon further ensured that appellant’s substantial rights would not be affected. As a

result, there is no plain error.

       (5)     Finally, appellant argues that the court improperly enhanced appellant’s

sentence for violation of 14 V.I.C. § 2253(a) because the government did not fulfill the

procedural requirements of 14 V.I.C. § 62. At sentencing, the court imposed 15 years for


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unauthorized possession of a firearm, in violation of 14 V.I.C. § 2253(a), and 10 years for

possession by a felon, to be served concurrently. The defendant did not raise the issue

that the government did not comply with Section 62(a) in its pre-sentencing brief about

the applicability of the 15-year sentencing provision. (JA 5-17.) He also did not raise the

issue at his sentencing.

       There is no plain error in the district court’s imposition of an enhanced sentence

for appellant’s violation of 14 V.I.C. § 2253(a). It is not “obvious under current law” that

the criterion for sentence enhancement in 14 V.I.C. § 62 are applicable to sentence

enhancement for a violation of 14 V.I.C. § 2253(a). Section 2253 is a separate section of

the statute from 14 V.I.C. § 62, pertains specifically to firearms possession, and provides

its own criterion for sentence enhancement.

       Furthermore, Xavier received ample notice that he faced an enhanced sentence

under Section 2253(a). The enhancement was mentioned in the Pre-Sentence Report,

which also listed appellant’s prior convictions. Additionally, the trial court ordered both

parties to brief the issue of whether the 15-year sentencing provision applied to appellant.

(JA 30, Dkt. No. 272.) In light of these facts, a due process violation is not “obvious

under current law.” United States v. Mack, 229 F.3d 226, 231-32 (3d Cir. 2000). There is

no plain error in imposing the sentence enhancement.

       For the foregoing reasons, we will affirm the judgment of the District Court

entered on December 8, 2010.




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