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 th e Eastern * District of Missouri. Michael Kewan Crawford, *
* Defendant-Appellant. *

___________

Submitted: September 8, 1997 Filed: December 17, 1997

___________ Be fore HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY , Circuit Judges.

___________ MURPHY, Circuit Judge.
Mi chael Crawford was convicted of being a felon i n pos session of a firearm in violation of 18 U.S.C. § 922(g )(1). At trial he had offered to stipulate to tw o prior felonies, but the government declined t o accept the stip ulation and the district court, consistent with th e law in this circuit at the time, permitted ev idence to be-2-

intr oduced about the crimes. Crawford claims this wa s reversible error under Old Chief v. UnitedCrawfordalso argued in his brief that application of 18 U.S.C. § 922(g)(1) to 1 his situation is beyond the po wer of Congress under the Commerce Clause, relying on United States v. Lopez , 514 U.S. 549 (1995). His counsel conceded at oral argument thatt his claim is foreclosed by United States v. Bates , 77 F.3d 1101 (8th Cir.), cert

. denied , 117 S.Ct. 215 (1996).
-3- States , 11 7 S.Ct. 644 (1997), decided after he filed his appeal. After examining the record, we affirm.

1

This ca se grew out of an encounter between Crawfor d and St. Louis police officers Maurice Jackson and Joh n Stransky around 11 p.m. on January 24, 1996. Th e testimony at trial differed on what happened that night. Both officers testified that they saw Crawford standin g at the side of the street holding a handgun. The y report ed that he dropped the gun when they shone thei r sq uad car spotlight on him. They arrested him an d recovered the gun from the ground next to where he wa s stand ing. They also testified that the area had a hig h incidence of drug and weapon crimes. Crawford testified in contras t that he was waiting in the passenger seat of
a car driven by Travis Haughton when the polic e approached and asked him to get out and step to the rear. Theythen searched the car and found a gun he kne w noth ing about and arrested him (and not Haughton)

. AlthoughCrawford says that Haughton would corroborat e his version of the events, he did not call hi m to testify at trial.

An essential element of the offense of being a felon in pos session of a firearm is proof that the defendan t
was previously convicted of a crime punishable b y imprisonment for a term of more than one year . 18 U.S.C. § 922(g)(1). Crawford had had two convictions fo r-4-

possessionof controlled substances, one in 1991 and the other in 1992. His offer to stipulate that he had tw o prior felo nies was rejected by the government. Instead, evidence w as introduced that he had twice been convicted for possession of cocaine. The government als o introducedCrawford's "penitentiary package" which is an identifica tion sheet of a type made for someone entering the-5-

Missouri prison system; it includes photographs , fingerprints, and a serial number. The arrest registe r for his 1991 offense had simil ar information and was also received.

Craw ford contends that this evidence was unfairl y pre judicial and that its admission was an abuse of th e dis trict court’s discretion. He seeks reversal of hi s convictionand a new trial. Crawford argues the admissio n of ev idence related to his prior drug conviction s predis posed the jury to disbelieve his account and t o credit the police testimony. The government responds tha t Crawford's conviction should stand since any prejudice di d
no t rise to the level of that in Old Chief where th e defendant was charged both wit h violating § 922(g)(1) and wit h assault with a dangerous weapon, the same type o f offens e as his prior conviction. The government als o asser ts that any prejudice to Crawford was harmles s because the jury would have convicted him even without th e challenged evidence.

Wh en the defendant in a § 922(g)(1) case offers t o stipulate to his status as a f elon, “evidence of the name or nature of the prior offense generally carries the risk of unfair prejudice.” Old Chief , 117 S.Ct. at 652. Wher e sucha risk substantially outweighs the probative value o f the d etails of the prior conviction, it is an abuse o f discretion not to accept an admission in a stipulation

. Id. at 655. This rule normally applies, however, “onl y when the record of conviction would not be admissible for any purpose beyond proving sta tus.” Id. at 655. It does not apply if there is another “justification for receivin g evide nce of the nature of the prior acts on some issu e-6-

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

. Id. In such a case Rule 404(b) would “guarantee[] th e opportunity to seek its admission.” Id.

In Cr awford’s case there is another evidentiary rule that could have justified admi ssion of evidence about the nat ure of his prior felonies. Since Crawford took th e stand and testified to his version as to whether h e possesseda gun, evidence of his prior felonies would hav e been admissible under Fed. R. Evid. 609(a)(1), unless the
cour t determined that the prejudicial effect outweighe d its probative value as impeachment.Insome circumstances a limiting instruction on how the jury may use th e 2 evi dencewill 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- Cre dibilitywas at the heart of the jury’s factfindin g resp onsibilitysince possession was the critical issue

. The p robative value of the evidence was therefor e significant, but the fact that the convictions were fo r drug s might have a prejudicial impact. (The commo n linkage of drugs and guns has been frequently recognized. See United States v. Jones , 99 0 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)).

Admissi on of evidence of the nature of the prio r 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.3 d 651, 653 (8th Cir. 1997). The defendant must also sho w that he actually suffered unfair prejudice and that such prejudice was n ot harmless. See Old Chief , 117 S.Ct. at 2 652; Blak e, 107 F.3d at 652-653. The existence and degre e of unfair prejudice will turn on the facts of each case. Id. An error is harmless if it "does not affec t subs tantial rights" of the defendant. Fed. R. Crim. P

. 52(a). An error affects substantial rights "[o]nly if th e jury may have been 'substantially swayed' by improperl y admitt ed evidence." Blake , 107 F.3d. at 653 (quotin g Unit ed States v. DeAngelo , 13 F.3d 1228, 1233 (8th Cir

. 1994)) (citations omitted); se e also Horsman , 114 F.3d at 828.-8-

After studying the record, we are convinced that any error in admission of th e challenged evidence was harmless considering al l th e circumstances and the fact that the nature of th e prior convictions could have been offered under Rul e 609(a)(1). Both officers testified that they saw Crawfor d holding a gun, that he droppedit 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 polic e took a gun he knew nothing about from a car-9-

driv en by Haughton and he alone was arrested. Althoug h Cr awford says that he would not have testified if hi s stipulation had been accepted, it was only his testimony at trial that created an issue of fact about the necessar y element of possession and this was his theory of defense. He asserts now that he could h ave presented the testimony of Haughton and another witness to corroborate his versio n of th e events and that Haughton would have take n responsibility

for the gun even though he too was a felon

. The record reflects Haughton’s counsel indicated durin g trial that he was available to testify, yet Crawford did not call him to bolster his st ory. The test for harmless
erro r is whether any legal error affected the result o f his trial, not how the unoffered evidence might hav e 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 tha t the error could have affected the verdict reached by the parti cular jury in the particular circumstances of th e trial. ”). In the circumstances presented we find an y error to have been harmless.
For these reasons the judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHT H

CIRCUIT.