No. 96-8925

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996

LARRY DEAN BURNS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

LOUIS M. FISCHER
Attorney
Department of Justice
Washington, D.C.  20530-0001
(202) 514-2217

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QUESTION PRESENTED

    Whether petitioner's claim that introduction of his prior con-
viction was contrary to Old Chief v. United States, 117 S. Ct. 644
(1997) , is procedurally barred because he stipulated to the intro-
duction of the nature of his prior conviction.

(I)

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In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-8925

LARRY DEANS BURNS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

   The memorandum opinion of the court of appeals (Pet. App. 1-2)
is not reported, but the judgment is noted at 107 F.3d 23 (Table).

JURISDICTION

    The judgment of the court of appeals was entered on January
29, 1997.  A petition for rehearing was denied on March 21, 199?.
The petition for a writ of certiorari was filed on May 8, 1997.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) .

STATEMENT

    After a jury trial in the United States District Court for the
Northern District of Florida, petitioner was convicted of knowingly
possessing a firearm after having been convicted of a felony, in

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violation of. 18 U.S.C. 922(g).  He was sentenced to 360 months'
imprisonment, to be followed by five years' supervised release.
The court of appeals affirmed.  Pet. App. 1-2.
    1.  The evidence at trial, the sufficiency of which is not
disputed, showed that petitioner, who had a prior felony convic-
tion, stole a .22 caliber pistol from a Florida motel and later
sold the pistol for $50.  Gov't C.A. Br. 2-4.
    In September 1994, Richard Mathis was staying at a motel at a
fishing camp in Steinhatchee, Florida.  Mathis had with him a .22
caliber pistol, which he intended to use to shoot sharks.  He kept
the pistol in a bag, along with some clothes and cash.  Petitioner
entered  Mathis's room during the evening of  September 10; the next
morning, the bag containing the handgun was missing from Mathis's
room.  Gov't C.A. Br. 2.
    Sherlene Beatty was living with petitioner at the time of the
theft.  Petitioner brought home the firearm and other items he had
stolen from Mathis.  Petitioner showed the handgun to several
people.  Gov't C.A. Br. 3. Eventually, Beatty hid the gun from
petitioner.  At the beginning of October 1994, petitioner needed
money and wanted to sell the handgun.  Beatty retrieved the gun for
him.  Beatty and petitioner drove to Wilmer Phipps's house, where
petitioner sold the pistol for $50.  Id. at 3-4.
    On October 3, 1994, Beatty informed his probation officer of
petitioner's theft, possession, and sale of the handgun.  Later
that same day, petitioner and Beatty appeared at the probation
officers' office.  Beatty, who appeared to be frightened and upset,

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recanted her statements about petitioner's possession of the hand-
gun.  Gov't C.A. Br. 4.  Law enforcement officers later recovered
the handgun from Phipps, to whom petitioner had sold it.Id. at 4.
    2.  At trial, petitioner stipulated to a prior conviction for
burglary of a structure, one of his seven prior convictions.  He
also stipulated to admission of court records that reflected the
nature of that burglary conviction.  Gov't C.A. Br. 5, 13.  In his
opening statement and at trial, petitioner discussed the nature of
his prior conviction in an attempt to evoke sympathy by falsely
portraying himself as someone who had made a single minor mistake
in his life.  To that effect,  petitioner argued that the only
reason he was a felon, and thus barred from possessing firearms,
was that years earlier he had broken into a building full of wood.
Gov't C.A. Br. 14.
    3.  Petitioner changed his strategy on appeal.  He argued then
that the trial court had erroneously admitted evidence of his prior
conviction.  The court of appeals rejected that argument without
discussion.  Pet. App. 2. 

ARGUMENT

    Petitioner contends (Pet. 6-7) that the decision below con-
flicts with Old Chief v. United States, 117 S. Ct. 644 (1997), in
which the Court held that, in a Section 922(g) prosecution, a trial
court must accept a defendant's offer to stipulate to the fact of
a prior conviction, where that conviction was for an offense likely
to cause unfair prejudice, and must thus enable the defendant to
keep out of evidence the nature of his predicate conviction.  Old

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Chief is inapplicable here, however, because petitioner himself for
tactical reasons assented to the introduction of the nature of his
prior conviction.
    In United States v. Olano, 507 Us. 725 (1993), this Court
distinguished between situations where an objection had merely been
forfeited to which the plain error rule could apply and where
waiver had occurred, which forecloses further review.  The Court
explained that "[d]eviation from a legal rule is `error' unless the
rule has been waived."  Id. at 732-733.  Waiver occurs through the
"intentional relinquishment or abandonment of a known right." Id
at 733 (internal quotation marks and citation omitted) .  When a
right has been waived, there is no error and no basis for reversing
a conviction on the ground that a legal rule was violated.  Ibid.
    There can be no doubt that in the circumstances of this case
petitioner waived any right to complain about the admission of the
nature of his prior conviction.  For tactical reasons, petitioner
chose to put the nature of his prior conviction before the jury by
stipulation, and to elaborate on that issue in his opening state-
ment.  Far from opposing admission of evidence of  the nature of his
prior offense, petitioner sought to make use of the very eviden-
tiary fact whose admission he now challenges.  Compare Old Chief,
117 S. Ct. at 651 n. 6 (citing with approval appellate decision
that declined "to impose a stipulation on the Government" where
"the trial court had found * * * that the evidence would quite
likely come in anyway on other grounds") .

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    In those circumstances, petitioner clearly waived his right to
complain of any error in revealing the nature of  his prior convic-
tion to the jury. 1.  Petitioner is bound by his lawyer's determi-
nation to discuss the nature of his prior burglary conviction
before the jury.  Taylor v. Illinois, 484 U.S. 400, 418 (1988)
("[T]he lawyer has and must have full authority to manage the
conduct of the trial"; as a result, a defendant is bound by his
lawyer's decisions); Wainwriqht v. Sykes, 433 U.S. 72, 92 (1977)
(day-to-day conduct of the defense rests with defense counsel, not
the defendant); cf. Jones v. Barnes, 463 U.S. 745, 751 (1983)
(defendant has the right to determine whether to take an appeal,
but the question of what issues to raise rests in the judgment of
his lawyer).  He cannot rely on Old Chief to attack that action
here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

LOUIS M. FISCHER
Attorney

JULY 1997

___________________(footnotes)

    1. See also United States v. Dean,  76 F.3d 329, 333-334 (10th
Cir.                  
   1996), where the court held that the defendant was not en-
titled to relief where he had stipulated to the fact and nature of
four prior convictions, and his lawyer had discussed the nature and
penalties for those convictions in his opening statement.