                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JAN 10 2003
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                      No. 02-3033
          v.                                    D.C. No. 00-CR-20172-CM
                                                       (D. Kansas)
 JEFFREY B. JACKSON,

               Defendant - Appellant.


                            ORDER AND JUDGMENT          *




Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and
OBERDORFER , District Judge. **



      Jeffrey Jackson appeals his conviction for possession of a firearm by a

prohibited person. He claims that the district court erroneously admitted evidence

adduced on cross-examination of him about the nature of his prior felony

conviction, the existence of which he had stipulated. We exercise jurisdiction



      *
       This order and judgment is not binding precedent, except under the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 Louis F. Oberdorfer, United States District Judge for the
District of the District of Columbia, sitting by designation.
pursuant to 28 U.S.C. § 1291. Assuming, without deciding, that the district court

erred, we are persuaded that the error was harmless. Accordingly, we affirm.

                               I. BACKGROUND

      On November 21, 2000, police in Kansas City, Kansas, arrested Jackson for

a violation of state weapons law, K.S. 21-4202. On December 6, 2000, a federal

grand jury charged him in a one-count indictment with possession of a firearm by

a prohibited person in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). (R.1.)

The indictment alleged that Jackson had been convicted of armed robbery in 1989

in Cook County, Illinois, a felony punishable by a term exceeding one year under

the laws of Illinois, and that he had knowingly possessed a firearm, a Star Model

30M 9 mm pistol, on November 21, 2000, in the District of Kansas. (Id.)

      Jackson’s trial began on October 9, 2001. For the trial, Jackson stipulated

that on the day of the charged offense, November 21, 2000, he “was a person

prohibited from possessing . . . a firearm as [he] had been convicted of a crime

punishable by imprisonment for a term exceeding one year,” that the firearm at

issue had not been manufactured in the state of Kansas (leading to the inference

that it had moved in interstate commerce), and that it had been test fired and

functioned as intended by its manufacturer. (R.30.) The stipulation did not

identify the specific nature or date of Jackson’s prior conviction. Accordingly,

the only issue left for the government to prove to the jury was that Jackson had


                                        -2-
knowingly possessed the firearm on the day in question. (Gov’t Opening

Statement, Tr. 7.)

      The government’s main witness was Officer Matt Cross. Unless otherwise

noted, his testimony was undisputed. On November 21, 2000, at around nine

p.m., Officer Cross and another officer, Steve Owen, were on patrol in Kansas

City, Kansas, in a high-crime area, when they observed a car failing to stop at a

stop sign. After they pursued and stopped the car, the defendant, Jackson, the

passenger in the car, stepped out, threw down a beer bottle, and started running

away. Officer Cross pursued him. As they were running through Jersey Creek

Park, Officer Cross, who was then about 30 yards behind Jackson, using his

flashlight, saw Jackson reach into the right front side of his waistband and throw

down a handgun. (Tr. 34.) After Jackson eventually stopped running, Officer

Cross approached, placed Jackson under arrest, and searched his person. During

the search, Officer Cross discovered and seized an empty “inside the pants” clip-

on holster. (Tr. 37-38.) Officer John Hudson arrived at the scene while the

search was occurring. He testified that he saw a holster on Jackson’s right side

waistband. (Tr. 125.) After putting Jackson into Officer Hudson’s car, with

Officer Hudson and Officer Michael Martin, Officer Cross retraced his route. At

the spot where he saw Jackson throw the gun, he found a loaded Star Model 30M

.9mm pistol and seized it. (Tr. 41.) He did not know whether the gun, magazine


                                        -3-
or ammunition had ever been tested for fingerprints, (Tr. 61-62) but there was no

one else out on the streets or in the park where the gun was found, (Tr. 43).

      Four post-incident reports were prepared: Officer Cross completed a

standard arrest report and an narrative investigative addendum; Officer Martin

completed a property report for the gun and ammunition; Officer Hudson

completed a criminal investigation report regarding the search of Jackson. In

several respects, these reports conflicted with the officers’ testimony at trial.

Most notably, neither of the reports prepared by Officer Cross mentioned the

holster, while the report prepared by Officer Martin stated that the holster had

been found in the park. Officer Cross testified that he had simply made mistakes

in preparing his reports; Officer Martin testified that he had reported that the

holster was found in the park even though he really did not know that and had not

consulted with any of the other officers before reporting that fact. Officer

Hudson’s report, however, corroborated his and Officer Cross’s testimony that the

holster had been seized during the search of Jackson.

      At the close of the government’s case, the defense counsel moved for a

judgment of acquittal, which was denied. (Tr. 147-48.)

      The crux of the defense rested on Jackson’s own testimony: he

categorically denied that he had possessed either the gun, the holster, or the beer

on the night in question. He explained that he had run away after the car stopped


                                          -4-
because there were outstanding warrants on him and he didn’t want to spend the

holidays in jail. (Tr. 180, 184.) He further testified that he had not paid the fines

which led to the warrants because he was not able to work after 1997, when he

was held up and shot 13 times, with some of the bullets which struck him still

lodged in his spine. (Tr. 181-82.) Raford Hunter, the driver of the car, and

Andrea Smith, Jackson’s live-in girlfriend for the preceding four years, also

testified for the defense. Hunter testified that he had not seen Jackson with either

a gun, a holster or beer on the night in question, and that, in his opinion, Jackson

had none of those items. (Tr. 152, 154, 156, 159-60.) Smith, who had not been

with Jackson at all on the night in question, testified that she had never seen

Jackson in possession of a firearm. (Tr. 168-72.)

      Jackson’s decision to testify precipitated the issue which is the focus of this

appeal. On cross-examination, the government sought the court’s permission to

impeach Jackson by asking him about the specific nature of his prior conviction,

which was the subject of the stipulation. 1 (Tr. 191.) The district court admitted

the evidence, explaining that “[i]n regards to credibility, in regards to this proffer,

the court would find that the probative value does outweigh whatever prejudice

would be affected on the case.” (Tr. 194.)


      1
        See Old Chief v. United States, 519 U.S. 172 (1997) (defendant may
stipulate to prior felony conviction and avoid having the specifics of it presented
to the jury).

                                          -5-
      The prosecutor thereupon asked Jackson the following question: “Mr.

Jackson, isn’t it true that on June 13 th of 1989 you were convicted in the state of

Illinois of armed robbery?” Jackson answered: “Yes.” As a result, the jury

learned that Jackson, when he was 23, 12 years earlier, had been convicted of

armed robbery.

      Jury instructions followed the close of evidence. The district court, at

Jackson’s request, and over the government’s objection, included a limiting

instruction that the “nature of the [defendant’s] prior conviction is admissible

solely for the purpose of evaluating the defendant’s credibility, not as substantive

evidence of guilt.” (R. 28, Instruction 8A.)

      During his closing, the prosecutor apparently mentioned Jackson’s prior

conviction only as stipulated proof that Jackson was a person prohibited from

possessing a firearm. (R. 40.) Significantly, he never mentioned that Jackson’s

prior conviction was for armed robbery, or argued that the conviction or the

nature of it should affect the jury’s evaluation of Jackson’s credibility.

      During his closing, defense counsel vigorously attacked the credibility of

the police because of the inconsistencies between and within their testimony and

between their testimony and their written reports. He emphasized that Jackson’s

prior conviction did not involve “active steps to dissemble or to lie or to

misrepresent or to cheat.” (R. 31, at 12.) He asked the jury to consider whether a


                                          -6-
1989 conviction for armed robbery really had any bearing on Jackson’s credibility

or whether the prosecution had brought it up, after the “miserable” performance

of the testifying police officers, simply hoping that the jury would rely on it and

convict. (Id. at 13.) He specifically reiterated the judge’s instruction that the jury

could not rely on the nature of the prior conviction for any purpose other than

evaluating Jackson’s credibility.

      The prosecutor’s rebuttal again made no mention of armed robbery, or the

prior conviction. The jury returned a verdict of guilty. The judge sentenced

Jackson to confinement for 104 months.

                                 II. DISCUSSION

      We consider first whether the trial court erroneously admitted evidence that

Jackson’s felony was, in fact, armed robbery, and then, if it was, whether the

error was harmless.



A.    Admissibility of Evidence

      Federal Rule of Evidence 609(a) provides the governing rule:

      (a) General rule. For the purpose of attacking the credibility of a
      witness,

             (1) . . . evidence that an accused has been convicted of [a
             crime punishable by death or imprisonment in excess of one
             year] shall be admitted if the court determines that the
             probative value of admitting this evidence outweighs its
             prejudicial effect to the accused;

                                          -7-
The crux of the dispute in the present case is whether, with respect to Jackson’s

credibility, the probative value of the fact that Jackson’s prior conviction was for

armed robbery outweighs its prejudicial effect. We review for abuse of discretion

the district court’s decision to admit the proof of the nature of the felony for

which Jackson was convicted. See United States v. Lugo, 170 F.3d 996 (10 th Cir.

1999).

         There was a risk that the jury, knowing that the prior conviction was for

armed robbery, would be more inclined to convict Jackson in the belief that he

was a bad person or accustomed to the violent use of arms (very likely firearms)

than if they only knew he had committed an unidentified felony. However, if the

jury were to treat the armed robbery conviction in this way, it would be

disobeying the judge’s clear instruction that the evidence of the armed robbery

conviction was admissible solely for the purpose of judging credibility and not for

determining Jackson’s guilt or innocence. The government itself reminds us that

in this Circuit, it is firmly established (albeit in a related context) that: “A central

assumption of our jurisprudence is that jurors follow the instructions they

receive.” United States v. Castillo, 140 F.3d 874, 884 (10 th Cir. 1998) (Brief for

United States at 15) (citing Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983));

see also United States v. Haslip, 160 F.3d 649, 654 (10 th Cir. 1998). But see

United States v. Jimenez, 214 F.3d 1095, 1099 (9 th Cir. 2000) (in a firearm


                                           -8-
possession case, district judge, by ordering the prior conviction to be described as

a “felony involving a firearm,” erroneously “increased the risk that the jury would

draw a conclusion that is impermissible in law: because he did it before he must

have done it again,” despite limiting instruction (internal quotations omitted)

(emphasis added)).

      Rule 609(a) required the trial judge to weigh the prejudicial impact on the

jury of the difference between the stipulation that the defendant committed a

felony and the admission that the felony was armed robbery and the probative

value of that difference for a jury appraising Jackson’s credibility. In order to be

probative of Jackson’s credibility, the fact that Jackson’s prior conviction was for

armed robbery must shed greater light on Jackson’s character for truthfulness than

the fact that he had a prior unidentified felony conviction.

      Generally, we would be inclined to defer to the judgment of the trial judge

as to the proper balance. He had a first hand sense of the chemistry of the trial,

which we do not. He heard the disputed admission – one question and one answer

and never withdrew his decision to admit the proof that the felony was armed

robbery. More important, he heard the use counsel made of that fact in their

closing arguments, their intonations and gestures, including the conspicuous fact

that the prosecutor’s closing argument did not cite either the felony conviction or

its nature to attack Jackson’s credibility. And he correctly instructed the jury on


                                         -9-
the issue. A theoretical question remains, however, whether, despite the

legalities, whether “armed” and “robbery,” are such “fighting words” that no

interventions could cure their prejudicial effect. However, we conclude that it is

unnecessary for us to resolve this contest between legality and theoretical reality.

We are satisfied that even if the judge abused his discretion when he permitted

the prosecution to inquire about the nature of the conviction and overruled the

defense objection to the admission of the response, the result is the same. Even if

the judge erred, we are satisfied that the error was harmless, in the circumstances

here.

B.      Harmless Error

        A trial court’s erroneous “decision whether to admit or exclude evidence, is

considered harmless ‘unless a substantial right of [a] party is affected.’” United

States v. Charley, 189 F.3d 1251, 1270 (10th Cir.1999) (quoting Fed.R.Evid.

103(a)). An error affects the substantial rights of a party if it had a “substantial

influence on the outcome or leaves one in grave doubt, as to whether it had such

effect.” Id. (internal quotations omitted). When conducting harmless error

analysis, we review the record as a whole. United States v. McVeigh, 153 F.3d

1166, 1204 (10th Cir.1998).

        The defendant contends that knowing that the conviction was for armed

robbery was likely to have a serious impact on the jury’s deliberations. The


                                         -10-
government takes the position that any error was harmless because, in their

opinion, the evidence of guilt offered by the prosecution was “substantial” and

contradicted only by Jackson’s own testimony. They also cite to the limiting

instruction, which clearly directed the jury that the conviction evidence was not to

be considered as substantive evidence of guilt.

      Given the muted attention paid to the prior conviction in the prosecutor’s

arguments to the jury, the court’s mitigating instruction and the effective

reiteration of it in the closing defense argument, we have no “grave doubt” that

the jurors that convicted Jackson would have also done so if they had never

known that the felony committed by him was armed robbery.

      As a practical matter, jurors, focused, as they were instructed, on

defendant’s credibility, may well have been more inclined to believe him,

knowing that “his” felony was the confrontational (albeit heinous) crime of armed

robbery, than they would have been had they known only that he had been

convicted of an unidentified, generalized felony, necessarily including one that

involved guile or stealth, such as embezzlement or drug dealing.

      The admission established what the felony was. It also established what it

was not: It was not one of those felonies, such as drug dealing, which,

experience teaches, is prevalent in high crime areas such as the scene of this one




                                        -11-
and, more important, generally involves surreptitious concealment and pretense. 2

Nor was it perjury, embezzlement or fraud, “commission of which involves some

element of untruthfulness, deceit or falsification bearing on the accused’s

propensity to testify falsely.” See Advisory Committee Note on the 1974

Enactment of Evidence Rule 609(a)(2) (conviction of crimes involving

“dishonesty or false statement” admissible to challenge credibility “regardless of

the punishment”). We conclude that, in the circumstances here, admission of

evidence that Jackson’s conviction was for armed robbery, as distinguished from

evidence that he had been convicted of a generalized felony which could have

been perceived by the jury to have been a crime involving drug dealing or one

involving “untruthfulness, deceit or false statement,” was not only harmless; it

might even have been marginally protective of the defendant’s credibility. Even

if the trial judge erroneously admitted the evidence that the prior felony

conviction was for armed robbery, we have no “grave doubt” that the result would

have been the same if he had excluded it. Accordingly, we AFFIRM the judgment

of conviction.

                                               Entered for the Court

                                               Louis F. Oberdorfer
                                               District Judge


      2
       But cf. United States v. Meija-Alarcon, 995 F.2d 952 (10 th Cir. 1993) (drug
dealing not a crime involving “dishonesty or false statement within the meaning
of Federal Rule of Evidence 609(a)(2)).

                                        -12-
