                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 08a0712n.06
                             Filed: November 19, 2008

                                            No. 07-6135

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
        Plaintiff-Appellee,                        )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
LEMUEL FRAZIER                                     )    EASTERN DISTRICT OF KENTUCKY
                                                   )
        Defendant-Appellant.                       )
                                                   )

Before: GIBBONS and COOK, Circuit Judges; and STEEH, District Judge.*

        JULIA SMITH GIBBONS, Circuit Judge. Lemuel Frazier appeals his conviction from

the United States District Court for the Eastern District of Kentucky for distribution of crack cocaine,

conspiracy to distribute cocaine, possession of crack cocaine with the intent to distribute, possession

of a firearm to further drug trafficking, and possession of a firearm as a felon. He appeals his

conviction on two grounds, claiming that the district court abused its discretion by allowing him to

be impeached by mention of his prior felony conviction, and that his conviction violates his

constitutional right to possess a firearm for protection.

        For the reasons outlined below, we affirm Frazier’s conviction and the judgment of the

district court.


        *
       The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.

                                                  -1-
                                                  I.

       This case arises from a series of drug transactions involving Frazier, Chris Lee, and

confidential informant Justin Inman. On October 2, 2006, Inman told the Northern Kentucky Drug

Strike Force (“NKDSF”) that Lee was able to obtain and sell him crack cocaine. On the same day,

agents with NKDSF arranged for Inman to buy $300 worth of crack cocaine from Lee. On October

23, 2006, agents arranged for Inman to buy $400 worth of crack cocaine from Lee. On November

8, 2006, agents again arranged for Inman to buy crack cocaine from Lee, this time in the amount of

$800. Lee called his supplier Frazier, who said that he did not have enough crack cocaine, but that

he could obtain the full amount if Lee arranged transportation for them. Lee borrowed a car from

his friend and picked Frazier up; Frazier then directed him to drive to Cincinnati. In Cincinnati, they

went to one of Frazier’s friend’s apartments, where Frazier received a phone call. Frazier left for

a few minutes, and then he returned with a bag of crack cocaine. Frazier and Lee drove back to

Kentucky, and Lee invited Inman to meet him at Lee’s house to pick up the crack cocaine.

       With agents waiting nearby, Inman went into Lee’s house and bought crack cocaine from

Lee, who said that his supplier was waiting in the car. Inman left Lee’s house with the cocaine, and

Lee returned to the car to pay Frazier his share of the money. After Lee returned to the car, the

agents approached the car and observed Lee and Frazier in the front seat. The agents saw Frazier

take a gun out of his waistband, drop the magazine onto the floor of the car, and place the gun under

the seat. Both Lee and Frazier were arrested, and Lee gave a statement to the police that night. Lee


                                                 -2-
and Frazier were first charged in state court, and then their cases were later indicted in federal court.

Lee pled guilty and offered to cooperate.

        Frazier denied any wrongdoing and went to trial. When Assistant United States Attorney

Anthony Bracke learned that Frazier intended to testify, he asked for a ruling from the bench on

whether he could impeach Frazier by mentioning his prior felony for possession of a handgun by a

convicted felon. The district court identified the issue as governed by Federal Rule of Evidence

609(a)(1) (“Rule 609(a)(1)”) and said that it would make a determination from the bench if the issue

arose during Frazier’s testimony. Frazier testified that he was in Lee’s car because he wanted to buy

pills for personal use from Lee. Frazier further testified that he did not conspire with Lee to sell

crack cocaine and that the gun found in the car was not his. At this point, Bracke asked for a ruling

from the bench on whether he could impeach Frazier with his prior conviction for possession of a

gun by a felon. The court analyzed several of the factors mentioned by United States v. Meyers, 952

F.2d 914, 916 (6th Cir. 1992), and determined that 1) the existence of the similarity of the offenses

could be prejudicial; 2) a prior felony conviction has some impeachment value; and 3) Frazier had

placed credibility at issue by refuting the police officers’ testimony. The court concluded:

        Under these circumstances, in looking at these factors, while there is certainly a
        prejudicial effect of impeachment evidence, I do not believe that the probative value
        of admitting the evidence outweighs the prejudicial effect to Mr. Frazier. The
        defendant’s objection to the use of this conviction for purposes of 609(a)(1) will be
        overruled.1




        1
         It should be noted that Frazier’s evidentiary appeal stems, in part, from the conflict between
the district court’s statement that the probative value of the evidence does not outweigh its
prejudicial effect and its immediately subsequent overruling of the objection.

                                                  -3-
Transcript of Trial at 287, United States v. Frazier, No. 2:07 CR-23-DLB (E.D. Ky. May 21, 2007).

After the court’s ruling, Bracke asked Frazier if he was convicted for the felony charge of possession

of a handgun by a convicted felon, and Frazier admitted that he had been. The court gave a limiting

instruction to the jury at that time and also subsequently as part of jury instructions.

        A jury found Frazier guilty of 1) aiding and abetting the distribution of crack cocaine, 2)

conspiracy to distribute crack cocaine, 3) possession of a firearm in furtherance of a drug trafficking

crime, and 4) being a convicted felon in possession of a firearm. On September 6, 2007, Frazier was

sentenced to 157 months imprisonment with 4 years of supervised release. Frazier timely appealed

to this court.

                                                  II.

        The appropriate standard for reviewing a district court’s decision to admit prior convictions

as evidence for impeachment purposes is abuse of discretion . United States v. Gaitan-Acevedo, 148

F.3d 577, 591 (6th Cir. 1998); Meyers, 952 F.2d at 916 (“In reviewing the district court’s decision

to allow the impeaching evidence under Fed. R. Evid. 609(a)(1), we determine whether the district

court abused its discretion.”).

        As for Frazier’s argument that his conviction violates the Second Amendment, the parties

agree that Frazier did not raise this constitutional challenge at the trial level. “While constitutional

challenges are typically reviewed de novo, when the argument was not raised at the district court

‘Sixth Circuit precedent requires application of the plain error standard.’” United States v. Dedman,

527 F.3d 577, 591 (6th Cir. 2008) (quoting United States v. Barton, 455 F.3d 649, 652 (6th Cir.

2006)). Plain error review entails first determining whether there was an error in the district court.


                                                  -4-
United States v. Martin, 438 F.3d 621, 628 (6th Cir. 2006) (quoting United States v. Thomas, 11 F.3d

620, 630 (6th Cir. 1993)). If there was no error, the analysis ends. Id. If there was an error, the

court must next determine whether the error was plain. Id. To show plain error, an appellant must

establish that “(1) an error occurred; (2) the error was obvious or clear; (3) the error affected his

substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of

the judicial proceedings.” United States v. Cline, 362 F.3d 343, 348 (6th Cir. 2004) (citing United

States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)).

                                                   A.

        Frazier first claims that the district court erred in allowing evidence of Frazier’s conviction

for possession of a firearm by a prior felon to impeach him. Impeachment by use of a prior crime

is governed by Federal Rule of Evidence 609, which states: “[E]vidence that an accused has been

convicted of such 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.” Fed. R. Evid. 609(a)(1). Adopting the reasoning of the leading

case, Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), we have espoused the following

factors as pertinent to the trial judge’s determination of the admissibility of a prior felony for

impeachment purposes: “(1) The impeachment value of the prior crime. (2) The point in time of

the conviction and the witness’ subsequent history. (3) The similarity between the past crime and

the charged crime. (4) The importance of the defendant’s testimony. [and] (5) The centrality of the

credibility issue.” United States v. Moore, 917 F.2d 215, 234 (6th Cir. 1990); see also United States

v. Sims, 588 F.2d 1145, 1149 (6th Cir. 1978). While noting that consideration of these factors is not


                                                  -5-
mandatory, we have required trial judges to make a finding on the record that the conviction’s

probative value outweighs its prejudicial effect. Meyers, 952 F.2d at 916-17.

       Frazier argues that the district court erred in admitting the evidence of his prior conviction

because its effect was more prejudicial than probative. As mentioned above, Rule 609(a)(1) gives

discretion to the trial judge to make a determination of whether the probative value of the evidence

outweighs its prejudicial effect. In this case, the district court referred to several of the Gordon

factors in making its decision. It found that the impeachment value of the prior felony was existent,

but not overwhelming: “This isn’t a crime of truth or veracity, so I think a prior felony conviction

has some impeachment value. I can perhaps debate the value of that.” Transcript of Trial at 286,

United States v. Frazier, No. 2:07 CR-23-DLB (E.D. Ky. May 21, 2007). It agreed with Frazier on

the third factor, that the similarity of the crime weighed against admitting the evidence. Frazier was

charged with, inter alia, possession of a firearm as a prior felon. The prior felony admitted as

impeachment evidence was Frazier’s 2003 conviction for possession of a firearm as a prior felon.

When the prior conviction is “the very same crime,” id., it should be admitted as impeachment

evidence “sparingly.” Gordon, 383 F.2d at 940.2


       2
         Frazier argues that courts “have disallowed the use of similar crimes for the purposes of
impeachment under Rule 609.” Brief of Defendant-Appellant at 14-15, United States v. Frazier, No.
2:07 CR-23-DLB (E.D. Ky. May 21, 2007). He cites two cases for this proposition: United States
v. Beahm, 664 F.2d 414 (4th Cir. 1981) and United States v. Puco, 453 F.2d 539 (2d Cir. 1971).
Both cases are inapposite. In Beahm, the Fourth Circuit found that a trial court abused its discretion
by allowing a sodomy conviction from eleven years prior to be admitted as impeachment evidence
because the prior conviction was not within ten years of trial and the trial court failed to make any
express finding that the probative value of the conviction outweighed its prejudicial effect. 664 F.2d
at 417-19. In Puco, the Second Circuit engaged in a multi-factored analysis similar to that
recommended by Gordon and this court, including a consideration of the nature of the conviction
as one but not the only factor. The Second Circuit found that the trial judge abused his discretion

                                                 -6-
        These factors, however, are not the only ones included in a Rule 609 analysis. The district

court proceeded to address whether the defendant had placed his credibility at issue. It described

Frazier’s refutation of the prosecution’s statement of the facts. It concluded that by denying

ownership of the drugs and gun and by testifying that he was with Lee only to purchase pills for

recreational use, Frazier “placed credibility squarely at issue.” Transcript of Trial at 286, United

States v. Frazier, No. 2:07 CR-23-DLB (E.D. Ky. May 21, 2007). The court then declared that the

defendant’s objection to the admissibility of the evidence for impeachment purposes was overruled.

        The district court did not discuss the second Gordon factor, which is an analysis of the date

of the prior conviction and the defendant’s subsequent history. This court does not require trial

judges to consider every Gordon factor. Meyers, 952 F.2d at 916-17. Indeed, the consideration of

this factor would only have tilted the balance further towards admissibility since the prior conviction

was only four years prior, undeniably within the ten-year limit of Rule 609(b), and Frazier had also

been charged with possession of marijuana since that conviction.

        The district court also did not thoroughly analyze the fourth Gordon factor, the importance

of the defendant’s testimony. Although mentioning it as a consideration, the court did not explicitly

state its conclusion on this factor. Again, the failure to address conclusively each Gordon factor is

not required, and in this case, this factor would also have pointed towards admissibility. Frazier’s

testimony refuting his ownership of the crack cocaine and the gun found in the car was central to the

case; if he did not own the cocaine or the gun, he could not be convicted of possession of drugs and


after “‘taking into account such factors as the nature of the conviction, its bearing on veracity, its age,
and its propensity to influence the minds of the jurors improperly.’” 453 F.2d at 541 (quoting United
States v. Palumbo, 401 F.2d 270, 273 (2d Cir. 1968)).

                                                   -7-
a firearm. The impeachment evidence was important to allow the jury to assess Frazier’s testimony

since his credibility was crucially determinative.

       Thus, although the district court did not analyze all five Gordon factors, it considered three

of them, and the inclusion of the remaining two would only have supported its finding. Its decision

to admit the evidence for impeachment purposes was therefore not an abuse of discretion.

       Frazier further argues that even though the district court gave a limiting instruction to the jury

both at the time the evidence was admitted to impeach Frazier and before jury deliberations, the

instructions were insufficient to curb the prejudice effected by admitting the evidence. Frazier is

correct that such evidence can be prejudicial. The tendency of jurors to punish defendants for their

past conduct instead of their present indictment motivates the limiting instructions of Rule 609.

Moore, 917 F.2d at 235. Nevertheless, Rule 609 permits the introduction of such evidence when the

probative value outweighs the prejudicial effect. The district court determined that this situation

called for the admission of the evidence, and it properly gave a limiting instruction to confine the

use of the evidence to impeachment purposes only. We have found it “error to infer that the jury did

not or could not follow the judge’s clear instructions in this regard.” Holmes v. City of Massillon,

78 F.3d 1041, 1047 (6th Cir. 1996); Greer v. Miller, 483 U.S. 756, 767 n.8 (1987) (“We normally

presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently

presented to it, unless there is an ‘overwhelming probability’ that the jury will be unable to follow

the court’s instructions.”) (quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987)). Thus, once the

court gave limiting instructions to the jury, we must presume that they were followed.




                                                  -8-
          Frazier further contends that the district court’s admission of the evidence is contrary to both

the plain meaning of Rule 609(a)(1) and its own ruling. In the evidentiary hearing, the district court

stated:

          So his credibility has been placed at issue, directly. Under these circumstances, in
          looking at these factors, while there is certainly a prejudicial effect of impeachment
          evidence, I do not believe that the probative value of admitting the evidence
          outweighs the prejudicial effect to Mr. Frazier. The defendant’s objection to the use
          of this conviction for purposes of 609(a)(1) will be overruled.

Transcript of Trial at 286-87, United States v. Frazier, No. 2:07 CR-23-DLB (E.D. Ky. May 21,

2007). Frazier is correct that the district court did conclude that the probative value did not outweigh

the prejudicial effect. In the context of the evidentiary hearing, however, it is clear that this

declaration was a slip of the tongue. The court’s immediately preceding statement was a finding in

favor of admission based on the Gordon factor of whether the defendant has placed his credibility

at issue. Notably, the court followed the conclusion that Frazier cites with a ruling that his objection

will be overruled. If the court had actually meant that the probative value did not outweigh the

prejudicial effect, it would have sustained the objection. Furthermore, after the United States

impeached Frazier with his prior conviction, the court interrupted to give the jury a limiting

admonition. The court thus anticipated and accepted the admission of Frazier’s prior conviction into

the record, neither of which could have occurred if it had actually concluded that the probative value

did not outweigh the prejudicial effect.

          Although the district court misstated its conclusion, it nevertheless acted within its discretion

to find that Frazier’s prior conviction was admissible as impeachment evidence. The purpose of

Rule 609 is to provide trial judges with discretion, and “the very nature of judicial discretion


                                                    -9-
precludes rigid standards for its exercise.” Gordon, 383 F.2d at 941. The court completed a

reasoned analysis on the record based on several of the Gordon factors; it also promptly gave the jury

a limiting admonition and subsequently gave the jury limiting instructions. Moreover, as the court

noted at the conclusion of the trial, the prejudicial impact of the evidence was “minimal,” since

Frazier had already stipulated to his prior conviction. Transcript of Trial at 304, United States v.

Frazier, No. 2:07 CR-23-DLB (E.D. Ky. May 21, 2007). Because we find that the trial judge did

not abuse his discretion, we deny Frazier’s request to reverse his conviction on this ground.

                                                     B.

        Frazier’s second challenge to his conviction stems from the Second Amendment. He claims

that his conviction for possession of a firearm by a prior felon violates his Second Amendment right

to possess a gun for protection purposes. The parties agree that Frazier raised this constitutional

challenge for the first time on appeal. A constitutional challenge not raised at the district court level

is reviewed for plain error. Dedman, 527 F.3d at 591. Under plain error review, we must first

determine whether the district court erred. Martin, 438 F.3d 621, 628 (6th Cir. 2006). If there is no

error, “‘our inquiry is at an end.’” Id. (quoting United States v. Thomas, 11 F.3d 620, 630 (6th Cir.

1993)). If there is an error, the court must decide if the error was plain, if it affected substantial

rights, and if the plain error “‘seriously affected the fairness, integrity, or public reputation of judicial

proceedings.’” Id.

        The threshold question is thus whether the district court committed error, namely whether

Frazier’s conviction for possession of a firearm as a prior felon pursuant to 18 U.S.C. §§ 922(g)(1)




                                                    -10-
and 924(c)(1)(A)(i) violated his Second Amendment right.3 The United States had argued that the

district court did not err because the Second Amendment does not guarantee an individual right to

bear arms. The Supreme Court resolved this issue after the briefs were submitted, holding that the

Second Amendment does protect an individual’s right to bear arms. District of Columbia v. Heller,

__ U.S. __, 128 S.Ct. 2783 (2008). Nevertheless, the Supreme Court clarified that “the right secured

by the Second Amendment is not unlimited.” Heller, 128 S.Ct. at 2816. Justice Scalia, writing on

behalf of the majority, explicitly stated that “nothing in [the] opinion should be taken to cast doubt

on longstanding prohibitions on the possession of firearms by felons.” Heller, 128 S.Ct. at 2816-17.

       We have long held congressional regulation of firearms constitutional. See, e.g., United

States v. Warin, 530 F.2d 103, 107 (6th Cir. 1976) (“Even where the Second Amendment is

applicable, it does not constitute an absolute barrier to the congressional regulation of firearms.”).

Indeed, we have also specifically found both 18 U.S.C.§§ 922 and 924 constitutional. United States

v. Calor, 340 F.3d 428, 430-31(6th Cir. 2003) (“This Circuit has upheld the constitutionality of §

922(g)(8).”) (collecting cases); United States v. Dumas, 934 F.2d 1387, 1388-90 (6th Cir. 1990)

(rejecting a series of constitutional challenges to 18 U.S.C.§ 924); United States v. Helton, 86 Fed.

App’x 889, 892 (6th Cir. 2004) (rejecting defendant’s Second Amendment challenge to 924(c)). In


       3
          Section 922(g)(1) states: “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.”

       Section 924(c)(1)(A)(i) states: “[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . uses or carries a firearm . . . shall, in addition to the
punishment provided for such crime of violence or drug trafficking crime – be sentenced to a term
of imprisonment of not less than 5 years.”


                                                -11-
United States v. Napier, 233 F.3d 394 (6th Cir. 2000), we dismissed the defendant’s Second

Amendment challenge, noting that “[e]very circuit court which has had occasion to address the issue

has upheld § 922 generally against challenges under the Second Amendment.” Id. at 403 (collecting

cases); see also United States v. Waller, 218 F.3d 856, 857 (8th Cir. 2000) (“[I]t is now well-settled

that Congress did not violate the Second Amendment in enacting [§ 922(g)(1)].”)

        The district court thus did not commit error in entering judgment against Frazier pursuant

to 18 U.S.C.§§ 922 and 924 because his conviction is not in violation of the Second Amendment.

                                                 III.

       For the foregoing reasons, we find that the district court did not abuse its discretion in

admitting evidence of Frazier’s past conviction to impeach him and that Frazier’s constitutional

challenge to his conviction is without merit. We affirm the judgment of the district court.




                                                -12-
