     Case: 13-30762      Document: 00512647246         Page: 1    Date Filed: 05/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 13-30762                                   FILED
                                  Summary Calendar                             May 30, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee
v.

LONNIE POYDRAS,

                                                 Defendant-Appellant



                  Appeals from the United States District Court
                      for the Middle District of Louisiana
                            USDC No. 3:09-CR-121-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       A jury convicted Appellant of possessing a firearm after having been
previously convicted of a qualifying felony under 18 U.S.C. § 922(g). On appeal,
Appellant argues that the district court abused its discretion by admitting into
evidence, over Appellant’s timely objection, the name of Appellant’s prior
felony conviction. Specifically, Appellant’s prior conviction was for conspiracy
to commit armed robbery. In Appellant’s view, the admission of the name of


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                         No. 13-30762
the prior conviction was more prejudicial than probative under Rule 403 of the
Federal Rules of Evidence.
       Where the party challenging a district court’s evidentiary ruling makes
a timely objection, we review the district court’s ruling for abuse of discretion. 1
If we find abuse of discretion in the admission of evidence, we review for
harmless error. 2 Under Rule 52(a) of the Federal Rules of Criminal Procedure,
an error is harmless unless there is a reasonable probability that the
improperly admitted evidence contributed to the conviction. 3
       In the present case, the district court did not abuse its discretion by
admitting the name of Appellant’s prior conviction. Here, unlike the criminal
defendant in Old Chief v. United States, 519 U.S. 172, 190 (1997), and the other
cases cited in Appellant’s brief, 4 Appellant refused to stipulate to the fact of his
previous qualifying felony.
       The present case therefore cannot be materially distinguished from
United States v. Banks, 553 F.3d 1101, 1103-07 (8th Cir. 2009). In Banks, the
Eighth Circuit affirmed a district court’s decision during a trial under 18
U.S.C. § 922(g) to admit the names of the defendant’s two previous convictions,
including a previous conviction for possession of a firearm. 5 As in the present
case, the defendant in Banks had also refused to stipulate to the fact of his
previous qualifying felony. In the absence of a stipulation, as the Eighth
Circuit explained, the name of the defendant’s previous felony was relevant to


       1  United States v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2007); United States v.
Hernandez-Guevara, 162 F.3d 863, 869-70 (5th Cir. 1998).
       2 Sumlin, 489 F.3d at 688 (citing Hernandez-Guevara, 162 F.3d at 869-70).
       3 Id. (citing United States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992)).
       4 See United States v. Coleman, 552 F.3d 853, 859 (D.C. Cir. 2009) (“Here, appellant

offered to stipulate his felon status.”); United States v. Wacker, 72 F.3d 1453, 1471 (10th Cir.
1995) (“Lipp objected . . . and offered to stipulate to the fact of his prior convictions.”); United
States v. Jones, 67 F.3d 320, 321 (D.C. Cir. 1995) (“Jones’ attorney had offered to stipulate to
the fact that Jones had a prior felony conviction . . . .”).
       5 See Banks, 553 F.3d at 1103 n.3.

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                                         No. 13-30762
determining whether the defendant fell within the exception created by 18
U.S.C. § 921(a)(20):
       At trial, Banks refused to stipulate to the fact that he had prior
       felony convictions and moved to exclude the names of the prior
       convictions. He attempted to limit the government’s proof to the
       fact of a conviction punishable by a term of imprisonment
       exceeding one year. The district court denied the motion, stating
       that the government could not meet its burden of proof without the
       names of the prior felonies because certain felonies cannot be used
       to support a felon-in-possession charge . . . . 18 U.S.C. § 921(a)(20)
       excludes from the definition of a “crime punishable by
       imprisonment for a term exceeding one year” certain crimes,
       including “antitrust violations, unfair trade practices, restraints of
       trade . . . or . . . any State offense classified by the laws of the State
       as a misdemeanor and punishable by a term of imprisonment of
       two years or less.” The government needed to prove, therefore,
       that Banks’s prior crimes triggered the conviction as a felon in
       possession of a firearm. 6

The Eighth Circuit therefore found no abuse of discretion in Banks. 7 The
Fourth Circuit and the Supreme Court of California have applied a similar
analysis where a criminal defendant refused to stipulate to a prior conviction. 8
The D.C. Circuit also emphasized in United States v. Cassell, 292 F.3d 788, 796
(D.C. Cir. 2002), that “evidence of prior gun possessions” does not have “an
automatic unfair and substantial prejudicial effect on the jury” even “in a
subsequent trial for gun possession,” so long as the evidence is offered for a
proper purpose.
       Based on these authorities, we conclude that the district court did not



       6 Id. at 1103-07.
       7 Id.
       8 United States v. Gordon, 7 F.3d 227, at *1 (4th Cir. 1993) (“No abuse of discretion

appears here, especially in view of Gordon’s refusal to stipulate to the prior conviction . . . .”);
People v. Stewart, 93 P.3d 271, 308-09 (2004) (“Here, however, defense counsel refused to
stipulate generally to his client’s felon status . . . . For this reason, the present case is
distinguishable from . . . Old Chief.”).
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                                         No. 13-30762
abuse its discretion. Appellant’s refusal to stipulate to his felony status made
it impossible for the prosecutors to address the exception under 18 U.S.C. §
921(a)(20) without presenting some evidence regarding the nature of
Appellant’s prior conviction. 9
       Moreover, in the present case, even if the district court had abused its
discretion under Rule 403, such error would have been harmless because there
was no prejudice to Appellant. The district court instructed the jury to consider
only Appellant’s guilt with respect to “the crime charged,” and to disregard
“any acts, conduct, or offense not alleged in the indictment.” As we held in
United States v. Garcia, 567 F.3d 721, 728-29 (5th Cir. 2009), and United States
v. Parziale, 947 F.2d 123, 129 (5th Cir. 1991), limiting instructions of this kind
are sufficient to guard against the risk of unfair prejudice.
       Finally, any error related to the name of Appellant’s previous felony was
harmless error because of the overwhelming evidence of Appellant’s guilt, as
the government has demonstrated beyond a reasonable doubt. 10 A conviction
under 18 U.S.C. § 922(g) requires proof that the defendant (1) has been
convicted of a qualifying felony, (2) possessed a firearm in or affecting
interstate commerce, and (3) knew that he was in possession of the firearm. 11




       9 Generally speaking, we do not disagree with the principle articulated in dicta by the
Tenth Circuit in United States v. Bagby, 696 F.3d 1074, 1085 n.11 (10th Cir. 2012), that “the
rationale of Old Chief . . . i.e., that only the fact of prior conviction is relevant to a § 922(g)
charge—is persuasive even where the defendant refuses to stipulate to that fact.” At the
same time, the Bagby decision did not mention the exception under 18 U.S.C. § 921(a)(20) or
account for this particular exception’s effect on the Old Chief analysis. Where prosecutors
are obliged to demonstrate that a defendant’s previous conviction does not fall within that
exception, and where a criminal defendant refuses to stipulate to this fact, the rationale of
Old Chief cannot prevent district courts from admitting evidence on this element of the
offense.
       10 See United States v. Carrillo, 660 F.3d 914, 927 (5th Cir. 2011); United States v.

McCall, 553 F.3d 821, 827 (5th Cir. 2008).
       11 United States v. Mudd, 685 F.3d 473, 477 (5th Cir. 2012); United States v. Ybarra,

70 F.3d 362, 365 (5th Cir. 1995).
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                                       No. 13-30762
Of these three elements, Appellant contested only his knowledge that the
firearm was in his possession. However, the testimony during the trial showed
that Appellant was the owner, driver, and sole occupant of the vehicle in which
the firearm was found lying in plain view. These facts, which Appellant never
attempted to rebut during trial, are sufficient to establish that possession was
knowing. 12
       For these reasons, the district court is AFFIRMED.
       AFFIRMED.




       12 See United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996) (“Because Ross jointly
occupied the house . . . , the fact that the shotgun was found in plain view, leaning against a
wall, is sufficient to establish that he had knowledge of and access to the shotgun.”); see also
United States v. Hanner, 354 F. App’x 7, 9 (5th Cir. 2009) (“Most of the firearms and
ammunition recovered were found in plain view and very accessible to Hanner. There was
ample evidence to prove that Hanner knowingly possessed the firearms and ammunition.”).
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