## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 17 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ELMER VERNON GRIFFIN, also known as Elmo Griffin, Defendant - Appellant. No. 03-7052

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 02-CR-47-S)
J. Lance Hopkins, Tahlequah, Oklahoma, for Defendan t-Appellant. Paul G. Hess, Assistant United States Attorney (She ldon J. Sperling, United States Attorney, with him on the briefs), Muskogee, Oklahoma, for PlaintiffAppellee.

Before EBEL , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE , Circuit Judge.

EBEL , Circuit Judge.

Elmer Vernon Griffin (“Defendant”) was convicted of two counts of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). At his- 2 -

trial, the government called Defendant’s probation officer for the purpose of testifying, among other things, that Defendant knew that he was prohibited from possessing firearms under the terms of his probatio n. The district court admitted the probation officer’s testimony over Defendant’s objection that the evidence was irrelevant and would cause undue prejudice. De fendant was convicted on both counts and timely filed this appeal. We exerc ise jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

BACKGROUND On February 8, 2002, Patrolman Randall Smoot respon ded to a 911 call from Kenneth Griffith, who had accidentally shot hi mself in the leg with a .22 caliber Colt pistol. Patrolman Smoot asked Griffit h where he had gotten the pistol, and Griffith responded that he had purchase d it the previous day from Defendant. ATF Agent Carlos Sandoval confirmed Def endant’s status as a felon and then arranged to purchase a .22 caliber Tanfogl io pistol from Defendant in an undercover capacity. Agent Sandoval tape-recorded the transaction. Defendant was charged with two counts of possessionof a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). At tr ial, Defendant’s probation officer, Coleman, testified that Defendant had been convicted of a felony and that she supervised his probation; identified Defendant’ s apartment from photographs; identified the Judgment and Sentence from Defendant ’s prior felony conviction;- 3 -

identified the voices of Defendant and Agent Sandov al in the tape-recorded transaction; and testified to the terms and conditi ons of Defendant’s probation, one of which was the prohibition on firearm possess ion. During this testimony, the government introduced an exhibit which listed a ll of the terms and conditions of Defendant’s probation. Defendant objected to th e government’s use of Coleman as a witness in general, and specifically o bjected to her testimony (and the accompanying exhibit) regarding the terms and c onditions of Defendant’s probation. The district court overruled the object ions. Other evidence presented at trial included Griffith ’s testimony that Defendant sold him a .22 caliber Colt pistol, testi mony by Griffith’s acquaintance Jamie Burris that Griffith purchased a gun at the r esidence identified at trial as Defendant’s residence, Agent Sandoval’s testimony that he conducted a controlled purchase of a .22 caliber Tanfoglio pistol from Def endant, the tape-recording of the controlled purchase, and ATF Agent Jeffrey Coch ran’s testimony that the two firearms in question had been transported in inters tate commerce. Defendant was convicted on both counts and now appe als his conviction, contending that he was prejudiced by the district c ourt’s admission of Coleman’s testimony, especially her testimony (and the accomp anying exhibit) regarding the terms and conditions of Defendant’s probation. Def endant argues that Coleman’s testimony should have been excluded under Rule 402 of the Federal Rules of1 “Unfair prejudice” is “an undue tendency to suggestdecision on an

improper basis, commonly, though not necessarily, an emotional one.” Fed. R. Evid. 403 advisory committee’s note. - 4 - Evidence, because the evidence was not relevant, an d/or under Rule 403 of the Federal Rules of Evidence, because its probative va lue was substantially outweighed by the danger of unfair prejudice, confu sion of the issues, and/or misleading the jury.

DISCUSSION Although we review legal interpretations of the Federal Rules of Evidence de novo , we review a district court’s evidentiary decision s for abuse of discretion. United States v. Cherry , 217 F.3d 811, 814 (10th Cir. 2000). Pursuant to the abuse of discretion standard, we will not reverse t he district court without a “definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Id. Under the Federal Rules of Evidence, “[e]vidence wh ich is not relevant is not admissible.” Fed. R. Evid. 402. Even relevantevidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, orby considerations of undue delay, waste of time, or needless presentation of c umulative evidence.” 1 Fed. R. Evid. 403.- 5 -

Testimony by a defendant’s probation officer, if th e officer’s occupation is revealed to the jury, often may increase the potent ial for unfair prejudice to the defendant by highlighting the defendant’s criminal history. See United States v. Robertson , 19 F.3d 1318, 1324 (10th Cir. 1994) (noting that because testimony of probation officer was either irrelevant or more pre judicial than probative under Rule 403, district court erred in admitting testimo ny, but concluding that the admission of the evidence was harmless error) cf. United States v. Manarite , 44 F.3d 1407, 1418 (9th Cir. 1995) (“[W]e think it obv ious that evidence of a defendant’s parole status should be considered evid ence of other crimes for purposes of Rule 404(b).”). Accordingly, trial cou rts should exercise caution in their admission of such testimony. See United States v. Pierce , 136 F.3d 770, 776 (11th Cir. 1998). However, where the government is required to prove as an element of the offense that the defendant has previously committed a felony, as in a § 922(g)(1) prosecution, the potential for prejudice is substan tially lessened. In United States v. Hines , the Fourth Circuit explained: While in the ordinary course of most criminal trial s revelations of the defendant’s parole status might provoke a mistrial because it would inform the jury that the defendant had a prior crim inal history, the government was required to prove that the defendant had a prior criminal history as an element of the offense charg ed in this case. [The defendant’s] status as a parolee was little mo re than incidental information.- 6 -

943 F.2d 348, 353 (4th Cir. 1991) (per curiam) (int ernal citations omitted); see also Pierce , 136 F.3d at 776 (holding that where jury already knew defendant’s prior criminal history, district court did not abus e discretion in admitting probation officer’s testimony). But see United States v. Calhoun , 544 F.2d 291, 296 (6th Cir. 1976) (“[T]he fact that [the defendan t] was on parole itself may have been even more prejudicial than the jury’s simple knowledge of his prior conviction of a felony.”). We agree with the Fourt h Circuit that information that the defendant is currently on probation will genera lly create little or no prejudicial effect when the jury already knows of t he defendant’s criminal history. Accordingly, we decline in this case to hold the pr obation officer’s testimony inadmissible in its entirety. We now con sider whether the various subjects of her testimony were properly admitted.

A. Terms and Conditions of Defendant’s Probation The essential elements of a § 922(g)(1) violation a re: (1) the defendant was convicted of a felony; (2) the defendant therea fter knowingly possessed a firearm; and (3) the possession was in or affecting interstate commerce. United States v. Capps , 77 F.3d 350, 352 (10th Cir. 1996). “[T]he only k nowledge required for a § 922(g) conviction is knowledge that the instrument possessed is a firearm.” United States v. Mains , 33 F.3d 1222, 1228 (10th Cir. 1994).- 7 -

Conviction under § 922(g)(1) therefore does not req uire proof that a defendant knew that he was prohibited from possessing a firearm. In this case, Tina Coleman testified that Defendantwas prohibited from possessing a firearm under the terms and conditions of his probation and suggested that Defendant was aware of this prohibit ion. During her testimony, the government introduced a document listing all th e terms and conditions of Defendant’s probation, and the document was admitte d into evidence. The admission of this testimony and the accompanyin g document was error. Defendant was not on trial for violating the terms and conditions of his probation but for violating § 922(g)(1). Moreover, his knowl edge that he was not to possess a firearm as a convicted felon is not an element of a § 922(g)(1) violation. Accordingly, this evidence was irrelevant and there fore inadmissible. See Fed. R. Evid. 402. Even if a court has admitted inadmissible evidence, however, a conviction will not be disturbed on appeal if that error is ha rmless. United States v. Cass , 127 F.3d 1218, 1225 (10th Cir. 1997); Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect subs tantial rights must be disregarded.”). Because Defendant alleges no const itutional error, we apply the harmless-error analysis of Kotteakos v. United Stat es , 328 U.S. 750 (1946), pursuant to which a non-constitutional error is harmless unless it had a- 8 -

“substantial influence” on the outcome or leaves on e in “grave doubt” as to whether it had such effect. United States v. Mejia -Alarcon , 995 F.2d 982, 990 (10th Cir. 1993). The district court’s error in admitting the terms a nd conditions of Defendant’s probation was harmless. The Judgment and Sentence of Defendant’s conviction was admitted, without objection, as partof the government’s case. As such, the jury had already been informed that Defen dant had committed a felony. Introducing the terms and conditions of Defendant’s probation did nothing more than suggest to the jury that Defendant was current ly serving a term of probation, that Defendant also may have violated the terms and conditions of his probation, and that Defendant was aware that he was not suppos ed to possess firearms. This information was not so prejudicial or confusin g as to affect the outcome of the case. As discussed above, the addit ional knowledge of Defendant’s current status as a probationer is “little more than incidental information.” See Hines , 943 F.2d at 353. We do not find persuasive Defendant’s argument that introduction of the terms and conditions of his probation confused the jury as to whether Defendantwas on trial for violating the terms of his probation or for violating § 922(g)(1) . The district court clearly instructed the jury on the essential elements of a § 922(g)(1) violation. We- 9 -

assume the jury followed those instructions. See United States v. Chanthadara , 230 F.3d 1237, 1251 (10th Cir. 2000). The evidence against Defendant in this case was str ong. There was no question that Defendant had previously been convict ed of a felony. As to Count I, Griffith testified that Defendant sold him a .22 caliber Colt pistol, and Burris testified that Griffith purchased a pistol at a res idence identified at trial as Defendant’s residence. As to Count II, Agent Sando val testified that Defendant sold him a .22 caliber Tanfoglio pistol in the cont ext of a controlled purchase, as corroborated by the tape-recording of that transact ion. Finally, ATF Agent Cochran testified to the interstate nexus requireme nt. In light of this evidence, we have no doubt, much less “grave doubt,” that the jury’s verdict would have been the same had the terms and conditions of Defen dant’s probation been excluded. In sum, we do not believe that the erroneously admi tted evidence had a “substantial influence” on the jury’s decision. Ac cordingly, we hold that the district court’s error was harmless.

B. Other Testimony Coleman also testified to several other matters. F or example, she identified Defendant’s residence from a photograph and identif ied the voices of Agent- 10 -

Sandoval and Defendant in the tape-recording of the controlled purchase. Unlike Coleman’s testimony regarding the terms and conditi ons of Defendant’s probation, we find her other testimony relevant to the matters at issue in this case. Coleman’s identification of Defendant’s residence e stablished Defendant’s control over the place where Griffith and Burris te stified that Griffith purchased the Colt pistol, and her voice identification testi mony helped bolster other evidence that Defendant sold a Tanfoglio pistol to Agent Sandoval. Moreover, we conclude that the district court prope rly determined that the probative value of this evidence was not substantia lly outweighed by any danger of unfair prejudice created by the jury’s knowledge that Defendant was on probation. As discussed above, where Defendant’s p rior felony conviction is an element of the offense, as in a § 922(g)(1) action, the additional information that Defendant is currently on probation has only minima l prejudicial effect. Accordingly, we conclude that the district court pr operly determined that the probative value of this evidence was not substantia lly outweighed by the danger of unfair prejudice and was therefore admissible un der Rule 403.

CONCLUSION The judgment of the district court is AFFIRMED.