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 Defendant-Appellant.

Paul G. Hess, Assistant United States Attorney (Sheldon 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
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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 probation. The district court admitted

the probation officer’s testimony over Defendant’s objection that the evidence

was irrelevant and would cause undue prejudice. Defendant was convicted on

both counts and timely filed this appeal. We exercise jurisdiction pursuant to 28

U.S.C. § 1291, and we AFFIRM.

BACKGROUND

On February 8, 2002, Patrolman Randall Smoot responded to a 911 call

from Kenneth Griffith, who had accidentally shot himself in the leg with a .22

caliber Colt pistol. Patrolman Smoot asked Griffith where he had gotten the

pistol, and Griffith responded that he had purchased it the previous day from

Defendant. ATF Agent Carlos Sandoval confirmed Defendant’s status as a felon

and then arranged to purchase a .22 caliber Tanfoglio pistol from Defendant in an

undercover capacity. Agent Sandoval tape-recorded the transaction.

Defendant was charged with two counts of possession of a firearm by a

felon in violation of 18 U.S.C. § 922(g)(1). At trial, 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;
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identified the voices of Defendant and Agent Sandoval in the tape-recorded

transaction; and testified to the terms and conditions of Defendant’s probation,

one of which was the prohibition on firearm possession. During this testimony,

the government introduced an exhibit which listed all of the terms and conditions

of Defendant’s probation. Defendant objected to the government’s use of

Coleman as a witness in general, and specifically objected to her testimony (and

the accompanying exhibit) regarding the terms and conditions of Defendant’s

probation. The district court overruled the objections.

Other evidence presented at trial included Griffith’s testimony that

Defendant sold him a .22 caliber Colt pistol, testimony by Griffith’s acquaintance

Jamie Burris that Griffith purchased a gun at the residence identified at trial as

Defendant’s residence, Agent Sandoval’s testimony that he conducted a controlled

purchase of a .22 caliber Tanfoglio pistol from Defendant, the tape-recording of

the controlled purchase, and ATF Agent Jeffrey Cochran’s testimony that the two

firearms in question had been transported in interstate commerce.

Defendant was convicted on both counts and now appeals his conviction,

contending that he was prejudiced by the district court’s admission of Coleman’s

testimony, especially her testimony (and the accompanying exhibit) regarding the

terms and conditions of Defendant’s probation. Defendant argues that Coleman’s

testimony should have been excluded under Rule 402 of the Federal Rules of
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“Unfair prejudice” is “an undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.” Fed. R.

Evid. 403 advisory committee’s note.

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Evidence, because the evidence was not relevant, and/or under Rule 403 of the

Federal Rules of Evidence, because its probative value was substantially

outweighed by the danger of unfair prejudice, confusion 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 decisions 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 the 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 which is not relevant is

not admissible.” Fed. R. Evid. 402. Even relevant evidence “may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.”1 Fed. R.

Evid. 403.
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Testimony by a defendant’s probation officer, if the officer’s occupation is

revealed to the jury, often may increase the potential 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 prejudicial than probative under

Rule 403, district court erred in admitting testimony, 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 obvious that evidence of a

defendant’s parole status should be considered evidence of other crimes for

purposes of Rule 404(b).”). Accordingly, trial courts 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 substantially lessened. In United States

v. Hines, the Fourth Circuit explained:

While in the ordinary course of most criminal trials revelations of the

defendant’s parole status might provoke a mistrial because it would

inform the jury that the defendant had a prior criminal history, the

government was required to prove that the defendant had a prior

criminal history as an element of the offense charged in this case. 

[The defendant’s] status as a parolee was little more than incidental

information.
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943 F.2d 348, 353 (4th Cir. 1991) (per curiam) (internal 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 abuse 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 defendant] 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 Fourth Circuit that information that

the defendant is currently on probation will generally create little or no

prejudicial effect when the jury already knows of the defendant’s criminal history.

Accordingly, we decline in this case to hold the probation officer’s

testimony inadmissible in its entirety. We now consider 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 are: (1) the defendant

was convicted of a felony; (2) the defendant thereafter 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 knowledge

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). 
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Conviction under § 922(g)(1) therefore does not require proof that a defendant

knew that he was prohibited from possessing a firearm. 

In this case, Tina Coleman testified that Defendant was prohibited from

possessing a firearm under the terms and conditions of his probation and

suggested that Defendant was aware of this prohibition. During her testimony,

the government introduced a document listing all the terms and conditions of

Defendant’s probation, and the document was admitted into evidence. 

The admission of this testimony and the accompanying 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 knowledge 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 therefore 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 harmless. 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 substantial rights must be

disregarded.”). Because Defendant alleges no constitutional error, we apply the

harmless-error analysis of Kotteakos v. United States, 328 U.S. 750 (1946),

pursuant to which a non-constitutional error is harmless unless it had a
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“substantial influence” on the outcome or leaves one 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 and conditions of

Defendant’s probation was harmless. The Judgment and Sentence of Defendant’s

conviction was admitted, without objection, as part of the government’s case. As

such, the jury had already been informed that Defendant had committed a felony. 

Introducing the terms and conditions of Defendant’s probation did nothing more

than suggest to the jury that Defendant was currently 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 supposed to possess firearms. 

This information was not so prejudicial or confusing as to affect the

outcome of the case. As discussed above, the additional 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 Defendant was 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
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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 strong. There was no

question that Defendant had previously been convicted 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 residence identified at trial as

Defendant’s residence. As to Count II, Agent Sandoval testified that Defendant

sold him a .22 caliber Tanfoglio pistol in the context of a controlled purchase, as

corroborated by the tape-recording of that transaction. Finally, ATF Agent

Cochran testified to the interstate nexus requirement. 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 Defendant’s probation been

excluded. 

In sum, we do not believe that the erroneously admitted evidence had a

“substantial influence” on the jury’s decision. Accordingly, we hold that the

district court’s error was harmless.

B. Other Testimony

Coleman also testified to several other matters. For example, she identified

Defendant’s residence from a photograph and identified the voices of Agent
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Sandoval and Defendant in the tape-recording of the controlled purchase. Unlike

Coleman’s testimony regarding the terms and conditions 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 established Defendant’s

control over the place where Griffith and Burris testified that Griffith purchased

the Colt pistol, and her voice identification testimony helped bolster other

evidence that Defendant sold a Tanfoglio pistol to Agent Sandoval. 

Moreover, we conclude that the district court properly determined that the

probative value of this evidence was not substantially outweighed by any danger

of unfair prejudice created by the jury’s knowledge that Defendant was on

probation. As discussed above, where Defendant’s prior 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 minimal prejudicial effect. 

Accordingly, we conclude that the district court properly determined that the

probative value of this evidence was not substantially outweighed by the danger

of unfair prejudice and was therefore admissible under Rule 403.

CONCLUSION

The judgment of the district court is AFFIRMED.