The Honorable Frank J. Magill was an active judge at the time this case was

1

submitted and assumed senior status on April 1, 1997, before the opinion was filed.

 The Honorable John R. Tunheim, United States District Judge for the District of 2

Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3013

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Donovan Walter Horsman, *

*

Appellant. *

___________

Submitted: February 11, 1997

 Filed: June 13, 1997

___________

Before MAGILL, BEAM, and LOKEN, Circuit Judges. 1

___________

MAGILL, Circuit Judge.

Donovan Walter Horsman was convicted in the district court of being a felon 2

in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1994), and was

sentenced to the statutory mandatory minimum of 180 months imprisonment. On

appeal, Horsman argues that: (1) section 922(g) is unconstitutional; (2) a juror Horsman
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struck with a peremptory challenge should have been struck for cause; (3) government

witnesses' testimony regarding a firearm trace report was inadmissible hearsay; and (4)

the district court erred in allowing the government to present evidence regarding the

specific nature of Horsman's prior convictions. We affirm.

I.

Horsman was first convicted of burglary in Minnesota in April 1983, when he

was eighteen years old. By the time he was thirty, Horsman had been convicted of a

total of four felonies in Minnesota. During mid-October of 1994, while Horsman was

on supervised release from incarceration for his fourth felony conviction, Horsman

allegedly violated the terms of his release by forging a traveler's check. A warrant was

issued for his arrest. 

During mid-October of 1994, Horsman was staying with his girlfriend, Andrea

Glass, in the Mounds View, Minnesota apartment that she shared with her cousin, Nick

Marjanovich. On the morning of October 18, 1994, Glass discovered that both

Horsman and her car were missing. Also missing from the apartment was a box of .38

special ammunition and a Smith & Wesson .357 magnum handgun belonging to

Marjanovich.

Glass immediately contacted the Mounds View police and reported that her car

was missing. Glass provided a description of Horsman to the police, and subsequently

informed them when Horsman returned her car. Officer Roger Koopmeiners and

Lieutenant David Brick of the Mounds View Police Department located Horsman

walking in a wooded area near Glass's apartment. The police officers apprehended

Horsman and discovered a loaded Smith & Wesson .357 magnum handgun in

Horsman's waistband. The police also discovered 24 rounds of .38 special ammunition

in Horsman's pocket and a box of .38 special ammunition in a duffle bag Horsman was

carrying. In all, Horsman was carrying 54 rounds of ammunition. 
 Pursuant to 18 U.S.C. § 921(a)(20) (1994), a "crime punishable by imprisonment 3

for a term exceeding one year" does not include certain misdemeanors and certain

business crimes.

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On November 22, 1994, while Horsman was in Minnesota state custody for his

probation violation, Horsman was interviewed by Special Agent Catherine Kaminski

of the Bureau of Alcohol, Tobacco, and Firearms (BATF). After being Mirandized,

Horsman stated to Special Agent Kaminski, "'I got arrested. I had a gun. What more

can I say?'" Trial Tr. at 276 (testimony of Special Agent Kaminski).

Horsman was indicted on the federal charge of being a felon in possession of a

firearm and proceeded to trial in the United States District Court for the District of

Minnesota. Before trial, Horsman moved in limine that evidence of his prior

convictions should be excluded from trial. The district court granted this motion in part

and denied the motion in part, allowing the government to present the name, date, and

place of Horsman's four prior felony convictions. Other information was redacted,

however, and the phrase "violent felonies" was redacted from the indictment.

During voir dire, the district court refused to strike venireperson Rodney Beck

for cause, although Beck had explained that his brother-in-law had been shot to death

by a car-jacker. Beck believed that the murderer had received too light a sentence for

the murder, and that law should "go after" criminals who use guns, rather than guns

themselves. See Trial Tr. at 126. Horsman used a peremptory strike to remove Beck

from the panel.

To convict Horsman of being a felon in possession of a firearm, the government

had the burden of proving, beyond a reasonable doubt, that: (1) Horsman had

previously been convicted of a crime that was punishable by a term of imprisonment

exceeding one year; (2) Horsman knowingly possessed a firearm; and (3) the firearm 3

has been in or has affected interstate commerce. See 18 U.S.C. § 922(g)(1); United 
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States v. Wilson, 107 F.3d 774, 779 (10th Cir. 1997); United States v. Johnson, 18

F.3d 641, 649 & n.18 (8th Cir. 1994). At trial, the government presented evidence that

Horsman had been convicted of the felony of burglary on three occasions and the

felony of aggravated robbery once, all of which were punishable by more than one year

imprisonment. See Trial Tr. at 213-16 (testimony of Anoka County Probation and

Parole Officer Robert Knickerbocker). This evidence of Horsman's prior convictions

was summarized during opening and closing statements by the prosecution, see id. at

181-82 (prosecution opening statements); 388 (prosecution closing statements), and

was also described in the indictment. See Clerk's R. at 165. The government also

presented testimony from Officers Koopmeiners and Brick that Horsman had possessed

the Smith & Wesson .357 magnum handgun on October 18, 1994, see Trial Tr. at 233

(testimony of Officer Koopmeiners); 250 (testimony of Officer Brick), as well as

Special Agent Kaminski's description of Horsman's confession. Id. at 276.

To prove the interstate commerce element of the offense, Special Agent Joseph

Cludy of the BATF, an expert in the origin of firearms, testified that the Smith &

Wesson .357 magnum handgun recovered from Horsman, which was a model 19-3 with

serial number 9K90226, had "Made in U.S.A." and "Springfield, Massachusetts"

inscribed on it. See id. at 258 (testimony of Special Agent Cludy). Based on research

and his expertise, Special Agent Cludy testified that the handgun had been

manufactured in Springfield, Massachusetts, and that it had crossed a state line. Id. at

258-59.

On cross-examination, Special Agent Cludy was asked by defense counsel if he

had obtained a trace report on the .357 magnum handgun from Smith & Wesson, and

Special Agent Cludy testified that he had not. See id. at 262. Defense counsel also

questioned whether the weapon could have been manufactured in Minnesota under

license from Smith & Wesson, and Special Agent Cludy testified that he was not aware

of any licensing agreements between Smith & Wesson and any other manufacturer. Id.

at 263-64. Finally, Special Agent Cludy was asked if he was aware "that guns can be
 Defense counsel continued: 4

Question: Smith & Wesson is a well-known brand of gun. Correct?

Answer by Special Agent Cludy: Correct.

Q. And someone producing a lower quality gun could get more money

if it was made to look like a Smith & Wesson gun. Correct?

A. In theory, yes, sir.

Defense counsel: I have nothing further.

Trial Tr. at 265. 

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counterfeited?" Trial Tr. at 265 (question by defense counsel). Special Agent Cludy

responded, "I've heard of such a thing, but very rarely." Id.4

On redirect examination, and over Horsman's objection, Special Agent Cludy

testified that he had been informed by Special Agent Kaminski that Special Agent

Kaminski had completed a trace report on the .357 magnum handgun. See id. at 266.

On further redirect examination, Special Agent Cludy described the BATF's tracing

procedure. See id. at 270-71.

Special Agent Kaminski testified that she had completed a tracing report and had

learned that the .357 magnum handgun possessed by Horsman on October 18, 1994,

was owned by Marjanovich. See Trial Tr. at 280. Over Horsman's objection,

Kaminski testified that the Smith & Wesson .357 magnum handgun, which had been

traced back to Springfield, Massachusetts, had been sold by a firearms dealer in Grand

Rapids, Minnesota, to Marjanovich's mother, Georgia Marjanovich. Id. at 284. 
 The government does not appeal this sentencing decision. 5

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Following the two-day trial, the jury convicted Horsman of being a felon in

possession of a handgun. Despite Horsman's plea of not guilty and over the

government's objection, the district court granted Horsman a two-point reduction in

Horsman's sentencing level for Horsman's acceptance of responsibility. Horsman was 5

then sentenced to the statutory mandatory minimum sentence of 180 months

imprisonment. Horsman now appeals his conviction.

II.

Most of Horsman's arguments on appeal are forestalled by on-point and contrary

Eighth Circuit precedent. This Court has specifically held that § 922(g) is a

constitutional exercise of Congress's Commerce Clause authority. See United States

v. Bates, 77 F.3d 1101, 1104 (8th Cir.), cert. denied, 117 S. Ct. 215 (1996). We are

bound by this prior determination by a panel of this Court. See United States v.

Wright, 22 F.3d 787, 788 (8th Cir. 1994).

We also reject Horsman's argument that the district court's failure to strike

venireperson Beck for cause is grounds for reversal. Even assuming that the district

court erred in failing to strike venireperson Beck for cause, Beck did not ultimately

serve on the jury panel. Horsman's only complaint is that he had to use a peremptory

challenge against Beck, which meant that Horsman did not have an extra peremptory

challenge to strike another juror. This does not state a ground for reversal. Rather, for

this Court to reverse the district court, Horsman has the burden of showing that the jury

which did sit was biased. See United States v. Cruz, 993 F.2d 164, 168-69 (8th Cir.

1993) (citing Ross v. Oklahoma, 487 U.S. 81, 86 (1988)). Horsman has not even

attempted to make this showing.
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We must also reject Horsman's argument that Special Agent Cludy's testimony

regarding the BATF firearm trace report on redirect examination was inadmissible

hearsay, and that its admission requires reversal. The government elicited Special

Agent Cludy's testimony that Special Agent Kaminski completed a trace report on the

Smith & Wesson .357 magnum handgun only after defense counsel elicited testimony

that Special Agent Cludy had not completed such a trace report. Had the government

not elicited this testimony, the jury might well have been left with the mistaken

impression that the government's expert had not taken all reasonable steps in

ascertaining the origin of the firearm. In this context, it appears that the government

elicited this testimony from Special Agent Cludy not to prove that Special Agent

Kaminski's trace report was accurate, but rather to explain why Special Agent Cludy

did not complete a trace report himself. Accordingly, this testimony was not hearsay.

See Fed. R. Evid. 801(c) (defining hearsay as "a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted"); see also United States v. Balfany, 965 F.2d 575, 583 n.4 (8th

Cir. 1992) ("[The declarant's] statement about the death threat arguably was not offered

at trial to prove that [the defendant] actually had made the threat, but instead to show

the affect on the hearer, [the testifying witness]--admissible evidence if relevant."

(citing Fed. R. Evid. 801(c)).

Horsman also argues that Special Agent Kaminski's testimony regarding the

BATF trace report was inadmissible hearsay. The government concedes that Special

Agent Kaminski's testimony that Georgia Marjanovich purchased the Smith & Wesson

.357 magnum handgun from a dealer in Grand Rapids, Minnesota, which was based on

the trace report, was hearsay. See Appellee's Br. at 15. In light of the government's

concession, we shall assume that Special Agent Kaminski's testimony was inadmissible

hearsay. But see United States v. Maddix, 96 F.3d 311, 315 (8th Cir. 1996) ("The

special agent testified as a firearms expert and used the tracing report, which was not

itself admitted into evidence, to refresh his recollection. . . . [T]he special agent testified

that firearms experts customarily rely upon tracing reports to determine whether 
 To counter this compelling evidence of an interstate nexus, at trial Horsman merely 6

suggested, with no evidence whatsoever, that the Smith & Wesson model 19-3 .357

magnum revolver, serial number 9K90226, was a counterfeit that had been

manufactured in Minnesota. Contrary to Horsman's apparent belief, the government

has no duty to prove that counterfeit Smith & Wesson handguns are not being

manufactured in Minnesota. See United States v. Clawson, 831 F.2d 909, 913 (9th Cir.

1987) ("The government has no duty to prove that counterfeit Mauser pistols are not

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firearms have been transported across state lines. Fed. R. Evid. 703 (facts or data need

not be admissible in evidence if of a type reasonably relied upon by experts in the

particular field in forming opinions or inferences upon the subject)." (parenthetical in

original) (emphasis added)). 

In light of the overwhelming evidence that the Smith & Wesson .357 magnum

handgun possessed by Horsman had been manufactured in Massachusetts and had

crossed state lines to Minnesota, however, we conclude that any error in admitting

Special Agent Kaminski's testimony was harmless. See United States v. Mitchell, 31

F.3d 628, 632 (8th Cir. 1994) ("An evidentiary error amounts to harmless error if, after

viewing the entire record, the reviewing court determines that no substantial rights of

the defendant were affected, and that the error had no, or only slight, influence on the

verdict."). To prove that the firearm Horsman had possessed had been in or had

affected interstate commerce, the government only had to prove that "there exists the

minimal nexus that the firearm[ has] been, at some time, in interstate commerce."

Bates, 77 F.3d at 1104 (quotations and citations omitted). In this case, the government

proved this beyond a reasonable doubt both through expert testimony and through the

firearm itself, which had its place of manufacture--"Springfield, Massachusetts"--clearly

inscribed on it. Cf. Maddix, 96 F.3d at 315-16 (Noting that an expert witness's

testimony that a firearm had been transported in interstate commerce was based, in

part, on "the identity of the manufacturer (Clerke Technicorp) and the place of

manufacture (Santa Monica, California), both of which were stamped on the revolver

. . . , and the fact that the revolver had been seized in Missouri.").6
being manufactured in Oregon.").

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We do not believe that Special Agent Kaminski's testimony regarding the trace

report, nor her explanation that the firearm Horsman possessed in Mounds View,

Minnesota--which Horsman conceded he took from Nick Marjanovich's gun cabinet,

see Trial Tr. at 317--had been purchased by Georgia Marjanovich in Grand Rapids,

Minnesota, could have had more than a slight impact on the jury's decision to convict.

Accordingly, any error in admitting this evidence constitutes harmless error.

 III.

At the time the district court denied in part Horsman's motion in limine to

exclude evidence of the nature of Horsman's prior convictions, controlling Eighth

Circuit precedent allowed the government to present such evidence to prove an element

of the offense of a § 922(g) violation. See, e.g., Rush v. United States, 795 F.2d 638,

639 (8th Cir. 1986). The United States Supreme Court has recently held, contrary to

this Court's precedent, that the government must accept a § 922(g) defendant's

stipulation that he is a felon, and may not put on possibly prejudicial evidence of prior

felonies. See Old Chief v. United States, 117 S. Ct. 644, 647 (1997). The Old Chief

Court explained:

Given the[] peculiarities of the element of felony-convict status and of

admissions and the like when used to prove it, there is no cognizable

difference between the evidentiary significance of an admission and of the

legitimately probative component of the official record the prosecution

would prefer to place in evidence. For purposes of the [Federal Rule of

Evidence] 403 weighing of the probative against the prejudicial, the

functions of the competing evidence are distinguishable only by the risk

inherent in the one and wholly absent from the other. In this case, as in

any other in which the prior conviction is for an offense likely to support

conviction on some improper ground, the only reasonable conclusion was

that the risk of unfair prejudice did substantially outweigh the discounted
 For the sake of this analysis, we assume that Horsman would have declined to

7

testify on his own behalf at trial if the district court had granted his motion in limine.

If Horsman would have testified despite the district court's grant of Horsman's motion

in limine, the evidence of Horsman's prior convictions for burglary could have been

properly introduced to impeach his testimony. See United States v. Brown, 956 F.2d

782, 787 (8th Cir. 1992) (defendant's prior burglary conviction properly admitted to

impeach defendant's testimony); see also. Fed. R. Evid. 609(a)(2) ("[E]vidence that any

witness has been convicted of a crime shall be admitted if it involved dishonesty or

false statement, regardless of the punishment . . . .").

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probative value of the record of conviction, and it was an abuse of

discretion to admit the record when an admission was available.

Id. at 655.

In the instant case, Horsman not only offered to stipulate that he was a

previously-convicted felon, see Trial Tr. at 164 ("I would certainly be prepared to

stipulate that my client has a felony conviction[]") (statement of defense counsel during

pretrial motion), but did in fact stipulate to this before the jury. See id. at 187

("Usually, the government would have to prove to you that Mr. Horsman was convicted

of a felony as part of its case. They don't have to do it here, because Mr. Horsman

admits it.") (opening statement of defense counsel). Despite this stipulation, the

government elicited testimony from Horsman's probation officer regarding the nature

of Horsman's four prior felony convictions, and the government repeatedly stated the

nature of Horsman's four felony convictions. In light of Old Chief, therefore, the

district court abused its discretion in denying Horsman's motion in limine.7

That the district court abused its discretion in admitting this evidence does not,

however, end our analysis. The Old Chief Court also stated that, "[i]n remanding, we

imply no opinion on the possibility of harmless error, an issue not passed upon below."

117 S. Ct. at 656 n.11. This Court has applied the Federal Rule of Criminal Procedure

52(a) harmless error analysis to a district court's erroneous admission of evidence of
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a § 922(g) defendant's prior convictions. See United States v. Blake, 107 F.3d 651,

653 (8th Cir. 1997); cf. Redding v. United States, 105 F.3d 1254, 1255 (8th Cir. 1997)

(per curiam) (reviewing habeas petitioner's argument that court of conviction erred in

admitting evidence of § 922(g) defendant's prior convictions for harmless error).

Federal Rule of Criminal Procedure 52(a) provides that "[a]ny error, defect,

irregularity or variance which does not affect substantial rights shall be disregarded."

Fed. R. Crim. P. 52(a). In United States v. Mechanik, 475 U.S. 66 (1986), the

Supreme Court explained the rationale for this rule:

Federal Rule of Criminal Procedure 52(a) provides that errors not

affecting substantial rights shall be disregarded. . . .The reversal of a

conviction entails substantial social costs: it forces jurors, witnesses,

courts, the prosecution, and the defendants to expend further time, energy,

and other resources to repeat a trial that has already once taken place;

victims may be asked to relive their disturbing experiences. The passage

of time, erosion of memory, and dispersion of witnesses may render retrial

difficult, even impossible. Thus, while reversal may, in theory, entitle the

defendant only to retrial, in practice it may reward the accused with

complete freedom from prosecution, and thereby cost society the right to

punish admitted offenders. Even if a defendant is convicted in a second

trial, the intervening delay may compromise society's interest in the

prompt administration of justice, and impede accomplishment of the

objectives of deterrence and rehabilitation. These societal costs of

reversal and retrial are an acceptable and often necessary consequence

when an error in the first proceeding has deprived a defendant of a fair

determination of the issue of guilt or innocence. But the balance of

interest tips decidedly the other way when an error has had no effect on

the outcome of the trial.

Id. at 71-72 (quotations, citations, and alterations omitted). Therefore, under Rule

52(a), "only if the jury may have been substantially swayed by improperly admitted 
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evidence must we reverse [a defendant's] conviction." Blake, 107 F.3d at 653

(quotations, citations, and original alteration omitted). 

In this case, as Horsman himself admitted, the evidence of Horsman's guilt was

overwhelming. See Trial Tr. at 38 ("The facts of this case are so simple and so

compelling that the government could prove its case in, I would say two or three

hours.") (statement of defense counsel during pretrial motion); see also id. at 30 ("This

is not a complex case. It's basically a fender bender: I was stopped at the red light.

The car hit me from behind. That's what [this] case amounts to. The cops stopped Mr.

Horsman. They found a gun. He then confessed.") (statement of defense counsel

during pretrial motion). Of the three elements of the crime of being a felon in

possession, the first two are not in contest. Horsman stipulated that he is a felon, see

Trial Tr. at 187, and both Horsman's confession and the undisputed testimony of two

police officers proved that Horsman possessed a Smith & Wesson .357 magnum

handgun on October 18, 1994.

As we have explained above, the third element of Horsman's offense--that the

firearm he possessed has been in or has affected interstate commerce--was also proven

beyond a reasonable doubt with overwhelming evidence. Horsman's sole challenge to

this evidence--evidence which included the firearm itself, with its place of manufacture

inscribed upon it--was to suggest, without any evidentiary support, that the Smith &

Wesson revolver could have been a counterfeit. We conclude that any reasonable jury

would reject such an unsubstantiated attack on the obvious.

Upon analysis, therefore, it is apparent that, in the circumstances of this case,

upon retrial of the charge of being a felon in possession of a firearm against Horsman,

a reasonable jury would again return a verdict of guilty. At oral argument before this

Court, however, Horsman's appellate counsel expressed his hope that the government

would decline to retry Horsman for the felon in possession charge. See Tape of Oral

Argument (Feb. 11, 1997) ("[F]rom a purely practically point of view, obviously, it 
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wasn't my desire to go to trial on those facts the first time, and I would hope, again, the

second time that we would be successful in negotiating some sort of a plea and I would

consider it very unlikely that there would be a second trial. . . . [T]here are other

charges available that would not trigger the fifteen year mandatory minimum

[sentence].") (statement of appellate counsel). With respect, we do not believe that a

defendant's mere hope that the government will wish to plea-bargain a case rather than

endure the expense of retrial is sufficient to find that a harmless error was in fact

prejudicial.

It is possible that, if Horsman did receive a retrial, that a jury would not be

rational and, despite overwhelming evidence of guilt, acquit Horsman of being a felon

in possession of a firearm. In his first trial, Horsman was presented as a sympathetic

figure who suffered through years of childhood abuse, see Trial Tr. at 186-87, and who

possessed the .357 magnum handgun solely to commit suicide. See id. at 309. The

prosecution expressed its concern that Horsman was pursuing a strategy of jury

nullification. See, e.g., Trial Tr. at 197 ("And as this Court has seen from the opening

statement, it appears that the defendant is going to be trying to appeal to the jury to

nullify the evidence that's presented in this case."). We acknowledge that, on retrial,

it is at least a possibility that Horsman could achieve jury nullification.

This possibility, however, also does not transform a harmless error into a

prejudicial one. While "jurors possess the raw power to set an accused free for any

reason or for no reason, their duty is to apply the law as given to them by the court."

United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993). "[J]ury nullification,

while it is available to a defendant, is only a power that the jury has and not a 'right'

belonging to the defendant, much less a substantial right." United States v. Gonzalez,

110 F.3d 936, 947-48 (2d Cir. 1997). Accordingly, where "[t]he only possible

deprivation suffered by [the defendant is] the possibility of jury nullification," id. at

947, the defendant's substantial rights have not been violated.
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We conclude that the district court's error in permitting the government to present

evidence of Horsman's prior conviction was harmless. Accordingly, we affirm the

district court's judgment.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.