                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        April 3, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 06-3151
          v.                                         (District of K ansas)
 JAM ES P. ASHLOCK, III,                      (D.C. No. 05-CR-20027-001-JW L)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Defendant James Ashlock appeals his conviction by a jury of possessing a

firearm in violation of 18 U.S.C. § 922(g) and 18 U.S.C. § 924(a)(2).

                                         I.

      Officer Dorsett of the Kansas City, Kansas Police Department began

following M r. Ashlock’s white Jeep after receiving a report of a suspicious


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
vehicle in the area. W hen the jeep came to a stop, Officer Dorsett pulled up

behind it. Officer Dorsett approached the Jeep’s driver’s side door and began

questioning M r. Ashlock. M r. Ashlock initially cooperated with Officer Dorsett,

but eventually fled on foot. During Officer Dorsett’s pursuit, he observed that

M r. Ashlock was carrying a gun, and at one point he witnessed M r. Ashlock firing

the gun in his direction. M r. Ashlock escaped, but through a tip from a neighbor,

police eventually found him at his girlfriend’s apartment, whereupon they arrested

him and seized a handgun from the chair where he had been sitting.

      Though police officers attempted to interrogate M r. Ashlock as soon as

they brought him to the station, even going so far as to obtain a signed M iranda

waiver form, they soon determined that he was likely under the influence of

illegal narcotics and unable to w aive his rights knowingly and voluntarily. Thus,

they ended the interrogation. The following day the police again read M r.

Ashlock his rights and proceeded to interrogate him. They did not obtain a signed

waiver for the second interrogation. M r. Ashlock admitted that the gun found by

the police was the same gun he possessed while fleeing Officer D orsett.

Although the police recorded this interrogation, the tapes were lost or destroyed.

At his subsequent trial, the jury found M r. Ashlock guilty of possessing a firearm

in violation of 18 U.S.C. § 922(g) and 18 U.S.C. § 924(a)(2).

      M r. Ashlock raises three issues on appeal. First, he argues that the district

court should not have admitted his confession that he possessed a firearm because

                                         -2-
the government did not prove that the confession was knowing and voluntary.

Second, he contends that the district court erred in allowing Officer Dorsett to

testify that he saw M r. Ashlock shoot the gun during the chase because it was

unfairly prejudicial. Third, he argues that juror bias prevented him from

receiving a fair trial. For the reasons stated below, we AFFIRM the conviction.

                                          II.

      M r. Ashlock first argues that the destruction of the tape recordings of the

police interrogation prevented the government from proving that his confession

was knowing and voluntary. At trial, M r. Ashlock objected to the admission of

the transcript of his confession without proper foundation, but did not object to its

substantive content after the government laid proper foundation. Because he did

not object, w e review the admission of his statements for plain error. United

States v. Castorena-Jaim e, 285 F.3d 916, 931 (10th Cir. 2002). To show plain

error, M r. Ashlock “must demonstrate that (1) the district court erred; (2) the

error was plain; (3) the error affected [his] substantial rights; and (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 926.

      The district court did not err in admitting M r. Ashlock’s testimony. W hen

determining whether a confession is voluntary, a court must look to the totality of

the circumstances. M itchell v. Gibson, 262 F.3d 1036, 1059 (10th Cir. 2001). In

this case, the police waited to interrogate M r. Ashlock until after he was no

                                          -3-
longer under the influence of drugs. Before questioning him, they read him his

M iranda rights and confirmed that he understood them. There is no evidence that

the police used coercive tactics to force M r. Ashlock to confess. Accordingly, the

district court did not err in finding that M r. A shlock’s confession was voluntary.

      M r. Ashlock also mentions that the destruction of the tapes could have

constituted a violation of his Due Process rights under California v. Trombetta,

467 U.S. 479 (1984), but he does not explain how. A Trombetta violation occurs

when police destroy evidence that “possess[es] an exculpatory value that was

apparent before the evidence was destroyed, and [is] of such a nature that the

defendant would be unable to obtain comparable evidence by other reasonably

available means.” Id. at 489. The defendant must also show that the destruction

of the evidence was done in bad faith. United States v. Pearl, 324 F.3d 1210,

1215 (10th Cir. 2003) (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).

      After learning that the tape recordings had been destroyed, M r. Ashlock

filed a M otion to Suppress Evidence of Confession, relying on California v.

Trombetta and claiming that the tape would have provided “crucial evidence”

regarding his state of mind, thus “confirm[ing] his mental impairment despite

what the transcript reflects.” R. Vol. I, Doc. 44, at 1. But, M r. Ashlock conceded

at trial that the government did not act in bad faith. Consequently, M r. Ashlock’s

Trombetta argument must fail.




                                          -4-
                                         III.

      M r. Ashlock contends that admission of Officer Dorsett’s testimony

regarding M r. Ashlock’s use of the gun during the pursuit was unfairly prejudicial

“other act” evidence that should have been excluded under Rules 404(b) and 403

of the Federal Rules of Evidence. Prior to the trial, the district court denied M r.

Ashlock’s motion to exclude Officer Dorsett’s testimony regarding the shot fired

during his pursuit.

      W e review the district court’s admission of evidence for abuse of

discretion. United States v. Jenkins, 313 F.3d 549, 559 (10th Cir. 2002). W e will

overturn a district court’s evidentiary ruling only if “it was based on a clearly

erroneous finding of fact or an erroneous conclusion of law or manifests a clear

error in judgment.” Id.

       Rule 404(b) prohibits the admission of evidence of a defendant’s “other

crimes, wrongs, or acts to prove the character of a person in order to show action

in conformity therewith.” Fed. R. Evid. 404(b). However, “[d]irect or intrinsic

evidence of the crime charged does not fall within the ambit of the rule.” United

States v. Green, 175 F.3d 822, 831 (10th Cir. 1999). To carry its burden under 18

U.S.C. § 922(g), the government had to prove that M r. Ashlock actually or

constructively possessed the firearm. At trial, M r. Ashlock argued that he did not

know the gun was capable of firing, and thus did not knowingly possess a firearm.



                                         -5-
Officer Dorsett’s testimony regarding the shooting was thus not about unrelated

or previous bad acts, but rather about M r. Ashlock’s actual possession of a

functional firearm. Such testimony does not run afoul of Rule 404(b).

      Even if evidence is admissible under Rule 404(b), Rule 403 allows judges

to exclude evidence when the probative value of that evidence is “substantially

outweighed by the danger of unfair prejudice, confusion of the issue, or

misleading the jury.” Fed. R. Evid. 403. Evidence is unfairly prejudicial when it

has the capacity “to lure the factfinder into declaring guilt on a ground different

from proof specific to the offense charged.” Old Chief v. United States, 519 U.S.

172, 180 (1997). In considering whether evidence is unfairly prejudicial, a court

must consider the availability of alternative probative evidence. Id. at 184–85.

      Officer Dorsett’s testimony that M r. Ashlock shot his firearm did not create

a risk of luring the factfinder into declaring guilt on different grounds than the

crime charged. Possessing a firearm is intrinsic to shooting a firearm. The jury

thus properly convicted M r. Ashlock of possessing a firearm if it believed Officer

Dorsett’s testimony. Even if we thought the evidence created a small risk of

unfairness, the potential alternative evidence does not have the same probative

value as Officer D orsett’s testimony regarding M r. A shlock’s use of the firearm.

W ithout the testimony, the government’s case rested only on M r. Ashlock’s

constructive possession of the firearm at the time of the arrest. Because Officer



                                          -6-
Dorsett’s testimony was highly probative and went directly to the crime

charged— actual possession of a firearm— it was not unfairly prejudicial to M r.

Ashlock. The district court did not abuse its discretion in admitting the

testimony.

                                         IV.

      Finally, M r. Ashlock argues that his conviction stemmed from juror bias,

and that the trial court should either have declared a mistrial or granted a hearing

to determine whether juror bias existed. His claim rests on an acquaintance

relationship between one of the jurors and the police officer who testified at trial

regarding the functionality of the firearm. The juror in question did not recognize

the name of the officer on the witness list provided by the court. Upon seeing the

officer testify, the juror recognized him as the father of one of his daughter’s

softball teammates. The officer also recognized the juror. Both notified the court

in a timely manner. After this information was disclosed, M r. Ashlock filed a

M otion for Order Declaring a M istrial, which the court denied.

      W e review the district court’s refusal to grant a mistrial based on juror bias

for abuse of discretion. United States v. Lawrence, 405 F.3d 888, 903 (10th Cir.

2005). The appropriate test for determining whether potential juror bias tainted

the fairness of a trial “is whether actual bias existed or whether the circumstances

compel an imputation of inherent bias to the juror as a matter of law such that the



                                         -7-
misconduct has prejudiced the defendant to the extent that he has not received a

fair trial.” Id. In this case, the district court determined that the “limited

familiarity” between the witness and the juror did not indicate actual bias or

create a circumstance that compelled an imputation of inherent bias. The district

court recognized that neither the witness nor the juror intentionally concealed

their relationship. Based on the record, we find this determination to be a

permissible exercise of the district court’s discretion.

                                           V.

       The judgment of the United States District Court for the District of

Kansas is AFFIRM ED.

                                                 Entered for the Court,


                                                 M ichael W . M cConnell
                                                 Circuit Judge




                                           -8-
