                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 3, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AM ERICA

               Plaintiff-Appellee,                      No. 05-5173
          v.                                          (N. D. Oklahoma)
 GERALD W ADE THOM AS, SR.,                    (D.C. No. 04-CR-89-TCK)

               Defendant-Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, SE YM OU R, and EBEL, Circuit Judges.


      Gerald W ade Thomas, Sr., was convicted after a jury trial of (a) abusive

sexual contact with a child under the age of 12 (a violation of 18 U.S.C. §§

2244(a)(1) and (c) and 2246(3)); and (b) possession of a firearm after a former

felony conviction (a violation of 18 U.S.C. §§ 922(g)(1) and 924(e)). The district

court sentenced him to concurrent terms of imprisonment of 188 months on each

count, followed by three years’ supervised release.




      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
      M r. Thomas now challenges these convictions on two grounds, arguing that

(1) the district court erred in allowing the prosecution to cross-examine an alibi

witness regarding her failure to testify at a detention hearing; and (2) his firearm

conviction violated his Sixth Amendment rights because the question of whether

he had been convicted of a prior felony was not submitted to the jury. W e are not

persuaded by either argument, and we therefore affirm M r. Thomas’s convictions

and sentences.



                                I. BACKGROUND

      The government’s evidence as to the sexual abuse count was based largely

on the testimony of TM C, a nine-year-old girl who, along with her brother Billy

and another child, stayed with M r. Thomas at his residence over spring break in

2004. TM C testified that, during one night over the break, she awoke and found

M r. Thomas in bed w ith her. He touched her on her shoulder, leg, and buttocks;

took off her panties; and lifted up her shirt. He then held her down on her side by

putting his hand on her hip. W hen M r. Thomas placed his hands on her buttocks,

she pushed his hands aw ay, but he put them back on her. According to TM C, M r.

Thomas told her that if she told anyone, he would kill her.

      TM C left M r. Thomas’s house the next morning. According to her brother

Billy, TM C started to cry as they were driving away. After she told her family

what had happened, a nurse practitioner examined her at a local hospital. The

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examination revealed no evidence of vaginal or rectal penetration. However, the

nurse practitioner observed a fresh bruise on TM C’s right hip, tenderness in her

lower back, and two bruises on each of her shins.

      TM C also gave testimony supporting the firearm charge. She said that

w hile she w as helping M r. Thomas chop wood, she saw him holding a long brow n

gun with a string tied to both ends. She added that she had seen two rifles at M r.

Thomas’s house, each with a string tied onto it.

      TM C’s brother Billy gave similar testimony. He stated that during the

spring break visit, he had seen M r. Thomas carrying a rifle with a shoulder strap

and that he believed that he had seen another rifle in M r. Thomas’s home. M r.

Thomas’s brother Harold and his half-brother W illiam also testified that they had

seen M r. Thomas carrying a rifle with a shoulder strap.

      Finally, FBI Agent Dana Ward testified that she and marshals from the

Cherokee Nation executed a search warrant on M r. Thomas’s home on April 12,

2004. After knocking on the front door, Agent W ard heard a sound near the back

of the house and went to investigate. She saw a man w earing a green army jacket

with a rifle slung over his shoulder. She yelled at the man to put the gun down,

but, after telling her that she had no right to be on Indian land, the man threw the

gun down and ran into the woods. Later that day, the agents found the rifle that

the man had dropped. However, the fingerprints did not match M r. Thomas’s.

Inside the residence, they found another firearm: a M ossberg shotgun with a sling.


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       Agent W ard further testified that, on November 17, 2004, she saw M r.

Thomas at the Cherokee Casino in Catoosa, Oklahoma. She recognized him as

the man she had seen with the gun during the A pril 12, 2004 search, and M r.

Thomas was then arrested.

      In his defense, M r. Thomas called Julie Rhoden, the common-law wife of

M r. Thomas’s son, Gerald W ade Thomas, Jr. M s. Rhoden testified that over

spring break in 2004, she and her children were living in the residence where the

alleged offenses took place. According to M s. Rhoden, M r. Thomas was not

living there at that time. M s. Rhoden also testified that she had never met TM C

or the other government witnesses.

      On cross-examination, the prosecutor asked M s. Rhoden about her

attendance at an earlier proceeding, the pre-trial detention hearing for M r.

Thomas. M r. Thomas’s attorney objected “as to anything that happened at a

detention hearing.” Rec. vol. IV, at 251. However, the district court allowed the

prosecutor to ask M s. Rhoden whether she had reported the information about not

seeing M r. Thomas at the residence over the 2004 spring break. In particular, the

prosecutor asked her whether she had “[stood] up at the back of the courtroom

and raise[d] [her] hand and sa[id] judge, judge, I’ve got some evidence that I need

to tell you about.” Id. at 252. M s. Rhoden responded that she had not done so

because she did not know that she could. However, she added that, at the




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conclusion of the detention hearing, she had informed M r. Thomas’s attorney

about the alibi evidence.

      During closing argument, the prosecutor returned to M s. Rhoden’s failure

to come forw ard with information about M r. Thomas’s not living at the residence.

He stated:

             On that issue, I want to talk to you about the defendant’s
             w itnesses, his common law daughter-in-law. Here we
             have this woman who says she would do anything to help
             Gerald [the defendant M r. Thomas] and yet does nothing
             for well over a year to help him, despite being present at
             court hearings . . . .

Rec. vol. V, at 282. He added, “A ll the things that [M s. Rhoden] said. I couldn’t

go get that evidence. She didn’t tell me anything about it, that was the first time

any of us had ever heard it.” Id. at 283-84.

      After hearing this evidence, the jury convicted M r. Thomas on both counts.



                                 II. D ISC USSIO N

      On appeal, M r. Thomas argues that the district court erred in allowing the

prosecutor to cross-examine M s. Rhoden regarding her failure to volunteer

information about his alibi at the detention hearing. He notes that M s. Rhoden’s

alibi testimony was not relevant to the matter at issue at the detention hearing—

whether M r. Thomas should be detained pending trial. He adds that, as a lay

person merely attending the detention hearing, she had no obligation to publicly



                                         -5-
volunteer her alibi information to the court. As a result, he concludes, the

government’s attempt to cross-examine her about her failure to volunteer the

information unduly influenced the jury.

      As to the firearm conviction, M r. Thomas argues that the district court

violated his Sixth Amendment rights by finding that he had been convicted of a

prior felony without submitting the issue to a jury.



                   A. Cross-Exam ination of the Alibi W itness

      Although M r. Thomas characterizes the prosecutor’s cross-examination of

M s. Rhoden as “improper,” A plt’s Br. at 9, neither at trial nor in his appellate

brief has he provided a more specific basis for his objection. He now cites

decisions involving prosecutors’ misstating the terms of a stipulation,

comm enting on a defendant’s failure to testify, and vouching for witnesses. See

id. at 15-19 (citing United States v. M astrangelo, 172 F.3d 288 (3d Cir. 1999);

United States v. Cotnam, 88 F.3d 487 (7th Cir. 1996); United States v. Kerr, 981

F.2d 1050 (9th Cir. 1992)). This case does not involve those kinds of

prosecutorial misconduct.

      However, in examining the proper scope of the cross-examination of an

alibi witness regarding a delay in coming forward, several decisions have applied

Rule 403 of the Federal Rules of Evidence. See, e.g., United States v. Aguwa,

123 F.3d 418, 420 (6th Cir. 1997) (noting that the defendant contended “that the


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prosecution’s line of questioning and argument was improper because no

meaningful inference can or should be drawn from the mere fact that a witness

may not have immediately come forward and revealed the existence of an alibi for

a defendant” and concluding that “although the defendant does not necessarily

frame his argument in this fashion, he is claiming that such evidence is

inadmissible under Federal Rule of Evidence 403 because its probative value is

outweighed by other considerations”); United States v. Johns, 734 F.2d 657, 664

(11th Cir. 1984) (evaluating a challenge to cross-examination regarding the

diligence of an alibi witness under Fed. R. Evid. 403). W e are persuaded by these

decisions that Rule 403 offers the appropriate framew ork for analyzing M r.

Thomas’s objection to the cross-examination of M s. Rhoden.

      Under that framew ork, our review of the trial judge’s decision to allow the

prosecutor’s questioning is quite deferential. Generally, “[o]n cross-examination,

it is within the trial judge’s discretion to exclude evidence.” Ew ing v. W inans,

749 F.2d 607, 616 (10th Cir. 1984). In balancing probative value and prejudice

under Fed. R. Evid. 403, the district court is afforded the same discretion. See

Deters v. Equifax Credit Info. Servs.,Inc., 202 F.3d 1262, 1274 (10th Cir. 2000)

(noting that decisions whether to admit or exclude evidence under Rule 403 are

reviewed for an abuse of discretion because the district court is “clearly in a

superior position to perform this analysis”).




                                          -7-
      M orever, “[a] non-constitutional error, such as a 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 a substantial right when it has a

“substantial influence on the outcome or leaves one in ‘grave doubt’ as to whether

it had such effect.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)

(en banc) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). “The

government bears the burden to show that a nonconstitutional error is harmless by

a preponderance of the evidence.” United States v. Stiger, 413 F.3d 1185, 1190

(10th Cir. 2005).

      Applying those standards here, we discern some merit in each party’s

position. As the government observes, a line of cases allows the government to

cross-examine an alibi witness about his or her delay in coming forward with the

alibi. See, e.g., Aguwa, 123 F.3d at 420-21 (“Under the circumstances presented

in this case, w e find that the district court did not abuse its discretion, because w e

are convinced that the witness’ delay in providing an alibi for her husband is an

appropriate subject of inquiry.”); United States v. Laury, 985 F.2d 1293, 1305-06

(5th Cir. 1993) (“The prosecutor’s comments regarding the failure of the

witnesses to come forward sooner with [the defendant’s] alibi was a permissible

attack on their credibility.”); Johns, 734 F.2d at 664 (stating “[t]hat anyone,

defendant or witness, fails to present a defendant’s alibi to law enforcement at the


                                           -8-
earliest time possible has some logical negative reflection on the credibility of the

alibi defense”). However, as M r. Thomas observes, the prosecutor here did more

than merely challenge M s. Rhoden’s delay in reporting the alibi.

      In particular, the prosecutor’s questioning suggested that M s. Rhoden was

not a credible witness because she had not interrupted the detention hearing by

volunteering her alibi information to the prosecutor and the judge. The

government cites no authority indicating that a w itness has a duty to report

information in this context. As M r. Thomas observes, the information offered by

M s. Rhoden was not relevant to the issue addressed at the detention

hearing— whether M r. Thomas should be detained pending trial.

      Nevertheless, even assuming that the district court abused its discretion in

allowing the prosecutor to cross-examine M s. Rhoden about her failure to report

the alibi information at the detention hearing, we conclude that this error was

harmless. See Charley, 189 F.3d at 1270. As to the sexual assault charge, the

jury had the opportunity to assess the credibility of TM C, and her testimony was

corroborated by the nurse practitioner’s testimony regarding the bruise on her hip

and, to some extent, by family members’ testimony about her reporting the

assault. As to the firearm charge, five witnesses testified that they saw M r.

Thomas carrying a gun with a sling.

      M oreover, we note that after the prosecutor’s cross-examination of M s.

Rhoden, M r. Thomas’s attorney did not seek to rehabilitate her by asking about


                                         -9-
her reporting the alibi information at the close of the detention hearing. His

failure to do so undermines M r. Thomas’s assertion of prejudice. See Shultz v.

Rice, 809 F.2d 643, 653 (10th Cir. 1986) (noting that a party’s opportunity to

rehabilitate a witness undermined the allegation of prejudice); United States v.

Taglione, 546 F.2d 194, 197 (5th Cir. 1977) (concluding that a prosecutor’s

closing remarks were not prejudicial in part because the defendant’s attorney

“had ample opportunity for an effort to rehabilitate in his ow n closing remarks”).

      Accordingly, we conclude that the additional impeachment of M s. Rhoden

afforded by the prosecutor’s cross-examination neither had a “‘substantial

influence’ on the outcome” nor leaves us “in ‘grave doubt’ as to whether it had

such effect.” Rivera, 900 F.2d at 1469 (quoting Kotteakos, 328 U.S. at 765).

Nor did the prosecutor’s closing argument affect the fairness of the trial. See

United States v. Young, 470 U.S. 1, 11 (1985).



                                B. Firearm Charge

      M r. Thomas also challenges his conviction on the 18 U.S.C.§§ 922(g)(1)

and 924(e) firearm charge, noting that the fact of his prior convictions was not

submitted to a jury and contending the district court’s failure to do so violated his

Sixth Amendment rights.




                                         -10-
      M r. Thomas concedes that this argument is foreclosed by Supreme Court

precedent: Almendarez-Torres v. United States, 523 U.S. 224 (1998). However,

he predicts that Almendarez-Torres will be overruled.

      Because we are bound to follow Almendarez-Torres, M r. Thomas cannot

prevail. “This court has held post-[U nited States v. Booker, 543 U.S. 220 (2005)]

that the existence and classification of prior convictions used to enhance a

defendant’s sentence need not be charged in the indictment and submitted to a

jury.” United States v. Davis, 437 F.3d 989, 998 (10th Cir. 2006); see also

United States v. M oore, 401 F.3d 1220, 1224 (10th Cir. 2005) (“[W]e are bound

by existing precedent to hold that the Almendarez-Torres exception to the rule

announced in Apprendi and extended to the Guidelines in Booker remains good

law. W e therefore conclude that the government need not charge the ‘fact’ of a

prior conviction in an indictment and submit it to a jury.”) (internal citations

omitted).



                                III. C ON CLU SIO N

      Accordingly, we AFFIRM M r. Thomas’s convictions and sentences.



                                 Entered for the Court,



                                 Robert H. Henry
                                 Circuit Judge

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