The Honorable Frank J. Magill was an active judge at the time this case wa s 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 posses sion of a firearm, in violation of 18 U.S.C. § 922(g) (1994), and wa s sente nced to the statutory mandatory minimum of 180 months imprisonment. O n appeal, Horsman argues that: (1) section 922(g) is unconstitutional; (2) a juror Horsman-2-

struck with a peremptory challenge shou ld have been struck for cause; (3) government witnesses' testimony regarding a firearm trace repo rt was inadmissible hearsay; and (4) the di strict court erred in allowing the government to present evidence regarding th e 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, Horsma n allegedly violated the terms of his release by forg ing a traveler's check. A warrant was issued for his arrest.
During m id-October of 1994, Horsman was staying with his girlfriend, Andrea Glass, in the Mounds View, Minnesota apartment that she shared with her cousin, Nick Marjano vich. On the morning of October 18, 1994, Glass discovered that bot h Horsman and her car were missing. Also mis sing from the apartment was a box of .38 special ammunition and a Smith & Wesson .357 magnum handgun belonging t o Marjanovich.
Glass immediately contacted the Mounds View police and reported that her car was missing. Glass provided a description of Ho rsman to the police, and subsequently informed them when Horsman returned her car. Officer Roger Koopmeiners an d Lieutenan t

David Brick of the Mounds View Police Department located Horsma n walking in a wooded area near Glass's apartment. The police officers apprehende d Horsman an d discovered a loaded Smith & Wesson .357 magnum handgun i n Horsman's waistband. The police also discovered 24 round s of .38 special ammunition in Horsman's pocket and a box of .38 special a mmunition in a duffle bag Horsman was carrying. In all, Horsman was carrying 54 rounds of ammunition.Pu

rsuant 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 certai n business crimes.
-3- On November 22, 1994, whil e 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 o f Minneso ta. Before trial, Horsman moved in limine that evidence of his prio r convictions should be excluded from trial. The district court gr anted this motion in part and denied the motion in par t, allowing the government to present the name, date, and plac e of Horsman's four prior felony convictions. Other information was redacted , however, and the phrase "violent felonies" was redacted from the indictment.

Dur ing voir dire, the district court refused to strike venireperson Rodney Beck for cause, althou gh Beck had explained that his brother-in-law had been shot to death by a car-jacker. Beck belie ved that the murderer had received too light a sentence for the murder, and that law should "go after" criminals who use guns, rather than gun s themselves. See Tr

ial Tr. at 126. Horsman used a peremptory strike to remove Beck from the panel.
To convict Horsman of being a felon i n possession of a firearm, the government had the burden of proving, beyond a reasonable doubt, that: (1) Horsman ha d 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-4-

States v. W ilson , 107 F.3d 774, 779 (10th Cir. 1997); United States v. Johnson , 1 8 F.3d 641, 649 & n.18 (8th Cir. 1994). At trial, the governm ent presented evidence that Hor sman had been convicted of the felony of burglary on three occasions and th e felony of aggravated robbery once, all of which were punishabl e by more than one year impriso nment. See Trial Tr. at 213-16 (testimony of Anoka County Probation an d Parole Offic er Robert Knickerbocker). This evidence of Horsman's prior convictions

was s ummarized during opening and closing statements by the prosecution, see id. at 181- 82 (prosecution opening statements); 388 (prosecution closing statements), an d

was also described in the indictment. See Clerk's R. at 165. The government als o presented testimony from Officers Koopmeiners and Brick that Horsman had possessed the Smith & Wesson .357 magnum h andgun on October 18, 1994, see Trial Tr. at 233 (t estimony of Officer Koopmeiners); 250 (testimony of Officer Brick), as well a s Special Agent Kaminski's description of Horsman's confession. Id. at 276.
To prove the interstate c ommerce element of the offense, Special Agent Joseph Clud y 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 n umber 9K90226, had "Made in U.S.A." and "Springfield, Massachusetts " inscribed on it. See id. at 258 (test imony of Special Agent Cludy). Based on research and his expertise, Special Agent Cludy testified that the handgun had bee n manufactured in Springfield, Ma ssachusetts, 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 obta ined 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 als o que stioned whether the weapon could have been manufactured in Minnesota unde r 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, Sp ecial Agent Cludy was asked if he was aware "that guns can beDefense 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 mone y 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.
-5- 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 r edirect examination, and over Horsman's objection, Special Agent Clud y testifie d that he had been informed by Special Agent Kaminski that Special Agen t Kaminski had com

pleted a trace report on the .357 magnum handgun. See id. at 266. On further redirect examination, Special Agent Cludy described the BATF's tracin g 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 bee n 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
-6- Following the two-day trial, the jury convicted Horsman of being a felon i n possession of a handgun. Despite Horsman's plea of not guilty and over th e go vernment's objection, the district court granted Horsman a two-point reduction i n Horsman's sentencing level for Horsman's accep tance of responsibility. Horsman was 5 then sent enced to the statutory mandatory minimum sentence of 180 month s imprisonment. Horsman now appeals his conviction.

II.
Most of Horsman's arguments on appeal are forestalled b y on-point and contrary Eighth Circ uit 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 ar e bound b y this prior determination by a panel of this Court. See United States v

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

We a lso reject Horsman's argument that the district court's failure to strik e venireperson Beck for cause is grounds for reversal. Even assuming that the distric t court erred in failing to strike venireperson Beck for cause, Beck did not ultimatel y serve on t he jury panel. Horsman's only complaint is that he had to use a peremptory chal lenge against Beck, which meant that Horsman did not have an extra peremptory challenge to strike another juror. Th is 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 eve n attempted to make this showing.-7-

We must also reject Horsman's argument that Special Agent Cludy's testimony regarding the BATF firearm trace report on redirect examination was inadmissibl e hearsa y, and that its admission requires reversal. The government elicited Specia l Agent Cludy's testimo ny that Special Agent Kaminski completed a trace report on the Smith & Wesson .357 magnum handgun only after defense counsel elicited testimony that Special Agent Clu dy had not completed such a trace report. Had the government not e licited this testimony, the jury might well have been left with the mistake n impression that the government's expert had not taken all reasonable steps i n 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 Agen t Kaminski's trace report was accurate, but rather to explain why Special Agent Cludy did not complete a tr ace report himself. Accordingly, this testimony was not hearsay. See Fed. R. Evid. 801(c) (defining hearsay as "a sta tement, other than one made by the declarant w hile testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted"); see also United S tates v. Balfany , 965 F.2d 575, 583 n.4 (8th Cir. 1992) ("[The declarant's] statement about the death threat arg uably was not offered at trial t o prove that [the defendant] actually had made the threat, but instead to show the affec t 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 th e BATF trace report was inadmissible hearsay. The government concedes that Special Agent Kaminski's testimony that Georgia Marjan ovich purchased the Smith & Wesson .357 magnum handgun from a dealer in Grand Rapids, Minn esota, 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 te stimony was inadmissible hea rsay. But see United States v. Maddix , 96 F.3d 311, 315 (8th Cir. 1996) ("Th e special a gent testified as a firearms expert and used the tracing report, which was not itself admitted into evidence, to refresh his recollection. . . . [T]he spe cial agent testified that firearms experts customarily rely upon tracing reports to determine whetherTo counter this compelling evidence of an intersta te nexus, at trial Horsman merely 6 suggest ed, with no evidence whatsoever, that the Smith & Wesson model 19-3 .35 7 magnum revolver, serial number 9K90226, was a counterfeit that had bee n ma nufacturedin Minnesota. Contrary to Horsman's apparent belief, the governmen t has no duty to prove that counterfeit Smith & Wesson handguns are not bein g manufactured in Minnesota. See United States v. Clawson , 831 F.2d 909, 9 13 (9th Cir. 1987) ("The government has no duty to prove that counterfeit Mauser pistols are not
-8- firearms have been transported across state lines. Fed. R. Ev id. 703 (facts or data need not be admi ssible in evidence if of a type reasonably relied upon by experts in th e pa rticular 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 ha d

cro ssed state lines to Minnesota, however, we conclude that any error in admittin g Special Age nt 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 viewi ng the entire record, the reviewing court determines that no substantial rights of the defendant w ere affected, and that the error had no, or only slight, influence on the verdi ct."). To prove that the firearm Horsman had possessed had been in or ha d affe cted interstate commerce, the government only had to prove that "there exists the minimal nex us that the firearm[ has] been, at some time, in interstate commerce. " Bates , 77 F.3d at 1104 (quotations and citations omit ted). 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, Massachus etts"--clearly inscribed on it. Cf. Maddix , 96 F.3d at 315-16 (Noting that an expert witness' s testim ony that a firearm had been transported in interstate commerce was based, i n par t, on "the identity of the manufacturer (Clerke Technicorp) and the place o f manufacture

(Santa Monica, California), both of which were stamped on the revolver . . . , and the fact that the revolver had been seized in Missouri."). 6being manufactured in Oregon.").
-9-

We do not bel ieve that Special Agent Kaminski's testimony regarding the trace report , nor her explanation that the firearm Horsman possessed in Mounds View , M i nnesota--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 tim e the district court denied in part Horsman's motion in limine t o
exc lude evidence of the nature of Horsman's prior convictions, controlling Eighth Circuit precedent allowed the government to present such evidence t o 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. S ee Old Chief v. United States , 117 S. Ct. 644, 647 (1997). The Old Chief Court explained:

Given t he[] peculiarities of the element of felony-convict status and o f admissio ns and the like when used to prove it, there is no cognizabl e difference between the evidentiary significance of an admission and of the legitimately probative component of the official record the prosecutio n wo uld prefer to place in evidence. For purposes of the [Federal Rule of Evidence] 403 weighing of the probative against the prejudicial, th e 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 t

he prior conviction is for an offense likely to support conviction on some improper ground, the onl y reasonable conclusion was that the risk of unfair preju dice did substantially outweigh the discountedFor the sake of this analysis, we assume that Horsman would have declined t o 7 testify on his own behalf at trial if the district court had granted his motion in limine. If Horsman would ha

ve testified despite the district court's grant of Horsman's motion in limin e, the evidence of Horsman's prior convictions for burglary could have bee n properly in troduced to impeach his testimony. See United States v. Brown , 956 F.2d 782, 787 (8th Cir. 1992) (defendant's prior burglary conviction properly admitted t o 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 o r false statement, regardless of the punishment . . . .").
-10- proba tive value of the record of conviction, and it was an abuse o f discretion to admit the record when an admission was available.

Id. at 655.

In the i nstant case, Horsman not only offered to stipulate that he was a previous ly-convictedfelon, see Trial Tr. at 164 ("I would certainly be prepared t o stipulate that my client has a felony conviction[]") (stat ement of defense counsel during pretrial motion), but did in fact stipulate to this before the jury. See id. at 18 7 ("Usually, the government would have to prove to you that Mr. Horsman wa s convicted of a fel ony as part of its case. They don't have to do it here, because Mr. Horsma n admits i t.") (opening statement of defense counsel). Despite this stipulation, th e government elicited testimony from Horsman's probation officer regarding the nature of Horsman's four prior felony convictions, and the government repeatedly stated the

na ture of Horsman's four felony convictions. In light of Old Chief , therefore, th e district court abused its discretion in denying Horsman's motion in limine. 7 That the dist

rict court abused its discretion in admitting this evidence does not, however, end our analy sis. The Old Chief Court also stated that, "[i]n remanding, we imply no opinion on the possibility of harmless erro r, 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 o f-11-

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 , 1 05 F.3d 1254, 1255 (8th Cir. 1997) (per c uriam) (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 , irr egularity 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), th e Supreme Court explained the rationale for this rule:

Feder al Rule of Criminal Procedure 52(a) provides that errors no t 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 ot her 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 rend er retrial difficult, even impossible. Thus, while reversal may, in theory, entitle the defen dant only to retrial, in practice it may reward the accused wit h complete freedom from pro secution, and thereby cost society the right to punis h admitted offenders. Even if a defendant is convicted in a second tri al, the intervening delay may compromise society's interest in th e prom pt administration of justice, and impede accomplishment of th e object ives of deterrence and rehabilitation. These societal costs o f
revers al and retrial are an acceptable and often necessary consequenc e when an erro r in the first proceeding has deprived a defendant of a fai r determi nation of the issue of guilt or innocence. But the balance o f 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 Rul e 52(a), "only if the jury may have been substantially swayed by improperly admitted-12-

evidence must we reverse [a defendant's] conviction." Blake , 107 F.3d at 65 3 (quotations, citations, and original alteration omitted).

In this case, as Hors man himself admitted, the evidence of Horsman's guilt was overwhelming. See Trial Tr. at 38 ("The facts of this case are so simple and s o compelling that the government could prove its case in, I would say two or thre e hours.") (statement of defense counsel duri ng pretrial motion); see also id. at 30 ("This is n ot 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 amoun ts to. The cops stopped Mr. Horsm an. They found a gun. He then confessed.") (statement of defense counse l du ring pretrial motion). Of the three elements of the crime of being a felon i n possession, the first two are not in contest. Horsman stipulated that he is a felon, see T r ial Tr. at 187, and both Horsman's confession and the undisputed testimony of two police off

icers proved that Horsman possessed a Smith & Wesson .357 magnu m handgun on October 18, 1994.

As we have explained above, the third element of Horsman's offense--that th e firearm he possessed has been in or has affected i nterstate commerce--was also proven beyond a reasonable doubt with o verwhelming evidence. Horsman's sole challenge to this evidence--evidence which included the firearm itself, with its place of manufacture inscrib ed 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 an alysis, 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 reaso nable jury would again return a verdict of guilty. At oral argument before this Court, however, H orsman'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-13-

wasn't my desire to go to trial on those facts the firs t time, and I would hope, again, the second time that we would be successful in negotiating some sort of a plea and I would consi der it very unlikely that there would be a second trial. . . . [T]here are othe r charges available that would not trigger the fifteen year mandatory minimu m [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 fac t prejudicial.

It is possible that, if Horsman did receive a retrial, that a jury would not b e rational and, despite ove rwhelming 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. Th e prosecution expressed its concern that Horsman was pursuing a strategy of jur y nullification. See, e.g. , Tr

ial Tr. at 197 ("And as this Court has seen from the opening state ment, it appears that the defendant is going to be trying to appeal to the jury t o 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 possi bility, however, also does not transform a harmless error into a prejudici al one. While "jurors possess the raw power to set an accused free for an y
reason or for no reason, their duty is to apply the law as given to them by the court." United States v. Se pulveda , 15 F.3d 1161, 1190 (1st Cir. 1993). "[J]ury nullification, while it i s available to a defendant, is only a power that the jury has and not a 'right ' belonging to the defendan t, much less a substantial right." United States v. Gonzalez , 110 F. 3d 936, 947-48 (2d Cir. 1997). Accordingly, where "[t]he only possibl e deprivation suffered by [the defendant is] the possibility of jury nullification," id. a t 947, the defendant's substantial rights have not been violated.-14-

We conclude that the district court's error in permitting the government to present
ev idence of Horsman's prior conviction was harmless. Accordingly, we affirm th e district court's judgment.
A true copy.

Attest:

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