United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-4096 

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from United States

v. * District Court for the

Eastern

* District of Missouri.

Michael Kewan Crawford, *

*

Defendant-Appellant. *

___________

Submitted: September 8, 1997

Filed: December 17, 1997

___________

Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY,

Circuit Judges.

___________

MURPHY, Circuit Judge.

Michael Crawford was convicted of being a felon in

possession of a firearm in violation of 18 U.S.C. §

922(g)(1). At trial he had offered to stipulate to two

prior felonies, but the government declined to accept the

stipulation and the district court, consistent with the

law in this circuit at the time, permitted evidence to be
-2-

introduced about the crimes. Crawford claims this was

reversible error under Old Chief v. United
Crawford also argued in his brief that application of 18 U.S.C. § 922(g)(1) to 1

his situation is beyond the power of Congress under the Commerce Clause, relying on

United States v. Lopez, 514 U.S. 549 (1995). His counsel conceded at oral argument

that this claim is foreclosed by United States v. Bates, 77 F.3d 1101 (8th Cir.), cert.

denied, 117 S.Ct. 215 (1996). 

-3-

States, 117 S.Ct. 644 (1997), decided after he filed his

appeal. After examining the record, we affirm. 1

This case grew out of an encounter between Crawford

and St. Louis police officers Maurice Jackson and John

Stransky around 11 p.m. on January 24, 1996. The

testimony at trial differed on what happened that night.

Both officers testified that they saw Crawford standing

at the side of the street holding a handgun. They

reported that he dropped the gun when they shone their

squad car spotlight on him. They arrested him and

recovered the gun from the ground next to where he was

standing. They also testified that the area had a high

incidence of drug and weapon crimes. Crawford testified

in contrast that he was waiting in the passenger seat of

a car driven by Travis Haughton when the police

approached and asked him to get out and step to the rear.

They then searched the car and found a gun he knew

nothing about and arrested him (and not Haughton).

Although Crawford says that Haughton would corroborate

his version of the events, he did not call him to testify

at trial. 

An essential element of the offense of being a felon

in possession of a firearm is proof that the defendant

was previously convicted of a crime punishable by

imprisonment for a term of more than one year. 18 U.S.C.

§ 922(g)(1). Crawford had had two convictions for
-4-

possession of controlled substances, one in 1991 and the

other in 1992. His offer to stipulate that he had two

prior felonies was rejected by the government. Instead,

evidence was introduced that he had twice been convicted

for possession of cocaine. The government also

introduced Crawford's "penitentiary package" which is an

identification sheet of a type made for someone entering

the
-5-

Missouri prison system; it includes photographs,

fingerprints, and a serial number. The arrest register

for his 1991 offense had similar information and was also

received.

Crawford contends that this evidence was unfairly

prejudicial and that its admission was an abuse of the

district court’s discretion. He seeks reversal of his

conviction and a new trial. Crawford argues the admission

of evidence related to his prior drug convictions

predisposed the jury to disbelieve his account and to

credit the police testimony. The government responds that

Crawford's conviction should stand since any prejudice did

not rise to the level of that in Old Chief where the

defendant was charged both with violating § 922(g)(1) and

with assault with a dangerous weapon, the same type of

offense as his prior conviction. The government also

asserts that any prejudice to Crawford was harmless

because the jury would have convicted him even without the

challenged evidence. 

When the defendant in a § 922(g)(1) case offers to

stipulate to his status as a felon, “evidence of the name

or nature of the prior offense generally carries the risk

of unfair prejudice.” Old Chief, 117 S.Ct. at 652. Where

such a risk substantially outweighs the probative value of

the details of the prior conviction, it is an abuse of

discretion not to accept an admission in a stipulation.

Id. at 655. This rule normally applies, however, “only

when the record of conviction would not be admissible for

any purpose beyond proving status.” Id. at 655. It does

not apply if there is another “justification for receiving

evidence of the nature of the prior acts on some issue
-6-

other than status,” such as under Fed. R. Evid. 404(b).

Id. In such a case Rule 404(b) would “guarantee[] the

opportunity to seek its admission.” Id.

In Crawford’s case there is another evidentiary rule

that could have justified admission of evidence about the

nature of his prior felonies. Since Crawford took the

stand and testified to his version as to whether he

possessed a gun, evidence of his prior felonies would have

been admissible under Fed. R. Evid. 609(a)(1), unless the

court determined that the prejudicial effect outweighed

its probative value as impeachment. 
In some circumstances a limiting instruction on how the jury may use the

2

evidence will protect against unfair prejudice or harmful impact on the defendant’s

substantial rights, see Redding v. United States, 105 F.3d 1254, 1255 (8th Cir. 1997),

but in this case no such instruction was given. 

-7-

Credibility was at the heart of the jury’s factfinding

responsibility since possession was the critical issue.

The probative value of the evidence was therefore

significant, but the fact that the convictions were for

drugs might have a prejudicial impact. (The common

linkage of drugs and guns has been frequently recognized.

See United States v. Jones, 990 F.2d 1047, 1049 (8th Cir.

1993), cert. denied, 510 U.S. 1048 (1994); United States

v. Nash, 929 F.2d 356, 359 (8th Cir. 1991)).

Admission of evidence of the nature of the prior

convictions does not automatically result in reversal of

a conviction. See United States v. Horsman, 114 F.3d 822,

827 (8th Cir. 1997); United States v. Blake, 107 F.3d

651, 653 (8th Cir. 1997). The defendant must also show

that he actually suffered unfair prejudice and that such

prejudice was not harmless. See Old Chief, 117 S.Ct. at 2

652; Blake, 107 F.3d at 652-653. The existence and degree

of unfair prejudice will turn on the facts of each case.

Id. An error is harmless if it "does not affect

substantial rights" of the defendant. Fed. R. Crim. P.

52(a). An error affects substantial rights "[o]nly if the

jury may have been 'substantially swayed' by improperly

admitted evidence." Blake, 107 F.3d. at 653 (quoting

United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.

1994)) (citations omitted); see also Horsman, 114 F.3d at

828. 
-8-

 After studying the record, we are convinced that any error in admission

of the challenged evidence was harmless considering all

the circumstances and the fact that the nature of the

prior convictions could have been offered under Rule

609(a)(1). Both officers testified that they saw Crawford

holding a gun, that he dropped it as soon as they shone a

light on him, and that they picked it up from the ground

where he had been standing. His story was that the police

took a gun he knew nothing about from a car
-9-

driven by Haughton and he alone was arrested. Although

Crawford says that he would not have testified if his

stipulation had been accepted, it was only his testimony

at trial that created an issue of fact about the necessary

element of possession and this was his theory of defense.

He asserts now that he could have presented the testimony

of Haughton and another witness to corroborate his version

of the events and that Haughton would have taken

responsibility for the gun even though he too was a felon.

The record reflects Haughton’s counsel indicated during

trial that he was available to testify, yet Crawford did

not call him to bolster his story. The test for harmless

error is whether any legal error affected the result of

his trial, not how the unoffered evidence might have

played out in the trial. See United States v. Davis, 657

F.2d 637, 640 (4th Cir. 1981) (“The test for harmlessness

for nonconstitutional error is whether it is probable that

the error could have affected the verdict reached by the

particular jury in the particular circumstances of the

trial.”). In the circumstances presented we find any

error to have been harmless.

For these reasons the judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.