United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1812

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United States of America, *

*

Appellee, *

* Appeal from the United States District

v. * Court for the Eastern District of Missouri.

*

LeRoy Harris, Jr., *

*

Appellant. *

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Submitted: September 8, 1997

Filed: December 10, 1997

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Before RICHARD S. ARNOLD, Chief Judge, HEANEY and BEAM, Circuit Judges.

___________

BEAM, Circuit Judge.

LeRoy Harris challenges his conviction for being a felon in possession of a

firearm, arguing that the jury should not have been informed of the number and nature

of his multiple prior felonies because he offered to stipulate to his felon status. Because

we find that any error was harmless, we affirm.

I. BACKGROUND

While executing a valid search warrant for a Cape Girardeau, Missouri,

residence, police seized a Revelation twelve-gauge shotgun. LeRoy Harris, whom
The Honorable Catherine D. Perry, United States District Judge for the Eastern 1

District of Missouri.

Old Chief had been argued at the time of Harris's trial, and was decided after

2

his conviction, but before his sentencing.

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police believed resided at the house, was charged with being a felon in possession of

a firearm. See 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment listed six predicate

felonies: carnal knowledge of a female under sixteen, attempt to burn property, rape,

forgery, and two convictions for breaking and entering. Harris entered a plea of not

guilty and was tried by a jury. Before trial, Harris offered to stipulate to his felon status,

and moved in limine to exclude reference to the name and nature of his convictions, or,

in the alternative, to limit the government to proving only the forgery conviction. The

district court ruled that evidence of the sex crimes would be unduly prejudicial, but

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denied Harris's motion as to the other convictions. In its case in chief, the government

offered certified copies of the sentence and judgment forms for four of Harris's prior

felonies. The government also presented the testimony of three police officers stating

that Harris had told them that the gun was his; a witness who reported that she had

observed her husband trade the gun to Harris in exchange for drugs; and evidence that

Harris had listed this address as his residence on his driver's license, hunting license,

and automobile registration. In defense, Harris testified that he did not actually reside

in the house, but simply stayed there several nights per week and that, in any event, the

gun was not his. The jury convicted Harris, who appeals.

II. DISCUSSION

Harris argues that the court's refusal to accept his offer to stipulate violates the

Supreme Court's directive in Old Chief v. United States, 117 S. Ct. 644 (1997). In Old 2

Chief, the Court held that when a defendant makes an offer to stipulate which is specific

enough to establish felon status for purposes of 922(g), and when "the prior conviction

is for an offense likely to support conviction on some improper ground, . . . 
Contrary to the dissent's assertion, it is Harris, not the government, who bears 3

the burden of establishing that this nonconstitutional error was harmful. The Court in

Old Chief held that the district court had violated Federal Rule of Evidence 403, not

any provision of the United States Constitution. Old Chief, 117 S. Ct. at 652-55. See

also, United States v. Moore, No. 97-1351, 1997 WL 694568 at *2 (8th Cir. Nov. 4,

1997) (Old Chief violation is nonconstitutional evidentiary error). Thus, the

appropriate standard for ascertaining harmfulness is Federal Rule of Criminal

Procedure 52(a). Under Rule 52(a) "[t]he party asserting the error has the burden of

demonstrating that his or her substantial rights were affected." Moore, 1997 WL

694568 at *2. The dissent's reliance on Sullivan v. Louisiana, 508 U.S. 275, 278-79

(1993) and Seiler v. Thalacker, 101 F.3d 536, 539-40 (8th Cir. 1996), cert. denied, 117

S. Ct. 1447 (1997) is misplaced because the appellees in these cases alleged error of

constitutional magnitude. The only other case cited by the dissent on this point is a

Ninth Circuit opinion that asserts, without cited authority, that the government has the

burden of establishing harmlessness on direct appeal. United States v. Hernandez, 109

F.3d 1450, 1453 (9th Cir. 1997). With due respect to our sister circuit, we are bound

by a long line of precedents to the contrary. See, e.g., Moore, 1997 WL 694568 at *2

(party asserting harmful error has burden of proof); Lowe v. United States, 389 F.2d

108, 112 (8th Cir. 1968) (defendant claiming error in reception of evidence has burden

to show prejudice).

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the risk of unfair prejudice . . . substantially outweigh[s] the discounted probative value

of the record of conviction." Id. at 655. 

Although the parties argue about whether Harris's offer to stipulate was sufficient

to trigger Old Chief, we do not need to reach that issue. To be eligible for relief under

Old Chief, a defendant must establish that the asserted error was not harmless. United 3

States v. Blake, 107 F.3d 651, 653 (8th Cir. 1997). See also, Old Chief, 117 S. Ct. at

656 n.11 (expressing no opinion on whether failure to exclude record of conviction was

harmless). Harris has not made this showing. When evidence of a defendant's guilt is

overwhelming, the Old Chief violation is harmless. See, e.g., Redding v. United States,

105 F.3d 1254, 1255 (8th Cir. 1997) (habeas petitioner not entitled to relief under Old

Chief given the overwhelming evidence of guilt). Here, the testimony of the police

officers, to whom Harris admitted owning the gun, and the testimony of the witness
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who saw Harris purchase the gun, in combination with other evidence that Harris lived

at the house, was overwhelming evidence that Harris did, in fact, possess the weapon.

Thus, we find any error in rejecting Harris's offer to stipulate to felon status was

harmless.

III. CONCLUSION

We have carefully considered the remainder of Harris's arguments and find them

to be without merit. The judgment of the district court is affirmed.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. The trial court erred by admitting evidence of Harris’s

prior felony convictions under the Supreme Court’s ruling in Old Chief v. United States,

117 S. Ct. 644, 652 (1991). Thus, his conviction can only be affirmed if the government

carried its burden of showing that the error infecting the trial was harmless. I do not

believe that the government has carried its burden.

We must reverse a conviction where the jury might have been “substantially

swayed” by improperly admitted evidence. United States v. Davis, 936 F.2d 352, 355

(8th Cir. 1991) (citation omitted). Old Chief dictates that the risk of such prejudice is

“substantial whenever the official record offered by the government would be arresting

enough to lure a juror into a sequence of bad character reasoning.” Id. at 652. There

is little doubt that the introduction of four of Harris’s felony convictions could lead the

jury to do this. See United States v. Blake, 107 F.3d 621, 652-53 (8th Cir. 1997)

(considering evidence of four prior felony convictions with other errors in reversing

conviction). Here the government’s case was based solely on circumstantial evidence
 

The evidence upon which the government relied to convict Harris consisted of: 4

controverted testimony of the officers that Harris admitted ownership and of a woman

who claimed she saw Harris purchase the gun; testimony that Harris periodically lived

at the house where police found the gun; and the fact that Harris had a hunting license.

The record shows no evidence of Harris’s fingerprints on the weapon, see United

States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (considering a lack of

fingerprints on a weapon as a significant factor in determining whether evidence of

possession of a weapon was overwhelming), nor did any of the officers see Harris in

possession of the weapon. 

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and controverted testimony. Thus, exposing the jury to the number and type of Harris’s 4

prior convictions was arresting enough to lure jurors into a sequence of bad character

reasoning. See Old Chief, 117 S. Ct. at 652. 

I am also in complete disagreement with the majority’s assertion that Harris

“must establish that the asserted error was not harmless.” Ante at 3 (citing Blake, 107

F.3d at 653). The court’s citation to Blake to support its statement is misplaced because

that case states only that “[i]n determining whether evidentiary rule violations require

reversal the Court applies the Fed. R. Crim. P. 52(a) harmless error analysis.” Blake,

107 F.3d at 653 (citation omitted). Blake makes no statement whatsoever that a

defendant has the burden to show an error was not harmless under Rule 52(a). 

The court further attempts to support its contention by citing two cases, neither

of which stand for the proposition offered. In United States v. Moore, No. 97-1351,

1997 WL 694568 (8th Cir. Nov. 4, 1997), this court properly stated that a party

asserting a nonconstitutional error has the burden of demonstrating that his substantial

rights were affected by the error. Id. at *2. Stating that a defendant must show the error

to have affected “substantial rights” is far afield from requiring the defendant to carry

the burden to show the effect to be “not harmless” under Rule 52(a).
Despite our citation of Thomas indicating that a defendant must show error and 5

“prejudice,” it is clear that the burden of persuasion regarding prejudice where the trial

court commits nonconstitutional error rests with the government. See United States v.

Olano, 507 U.S. 725, 734-35 (1993) (“harmless error” inquiry under Rule 52(a) differs

from “plain error” inquiry under Rule 52(b) in that defendant bears the burden of

persuasion with respect to prejudice in claim under plain error rule).

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In Lowe v. United States, 389 F.2d 108 (8th Cir. 1968), we stated that a

defendant asserting error has a burden “to show both error and prejudice.” Id. at 112

(quoting Thomas v. United States 281 F.2d 132, 136 (8th Cir. 1960)). We clarified that 5

statement by explaining that an evidentiary error that would warrant a reversal in a close

case “may be disregarded as harmless where the evidence of guilt is strong.” Id.

(citation omitted). Lowe simply requires that a defendant asserting error show that the

trial court erred in admitting evidence and that the evidence would tend to prejudice the

fact finder against the defendant before requiring the reviewing court to consider

whether the error was harmless. Neither Moore nor Lowe places the burden on the

defendant to show the error was not harmless where the defendant claims

nonconstitutional error.

In Darden v. Wainwright, Justice Blackmun stated that: 

Every harmless-error standard that [the Supreme] Court has

employed . . . shares two salient features. First, once serious error

has been identified, the burden shifts to the beneficiary of the error

to show that the conviction was not tainted. Second, . . . the

question before a reviewing court is never whether the evidence

would have been sufficient to justify conviction, absent an error,

but, rather, whether the error undermines its confidence in the

outcome of the proceeding to an unacceptable degree.
Section 391 provided, in pertinent part: 6

On the hearing of any appeal, certiorari, writ of error, or motion for a new

trial, in any case, civil or criminal, the court shall give judgment after an

examination of the entire record before the court, without regard to

technical errors, defects, or exceptions which do not affect the substantial

rights of the parties.

28 U.S.C. § 391 (1928).

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477 U.S. 168, 197 (1986) (Blackmun, J., dissenting) (citations omitted). This statement

is consistent with Kotteakos v. United States, 328 U.S. 750 (1945), where the Supreme

Court held that, even where the claimed error is nonconstitutional in nature, if the

error’s “natural effect is to prejudice a litigant’s substantial rights,” the party who

benefitted from the error bears the burden of sustaining the verdict. Id. at 760-61

(citations omitted).

Congress passed Rule 52(a) as a restatement of 28 U.S.C. § 391, which was

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enacted to “prevent matters concerned with the mere etiquette of trials and with the

formalities and minutiae of procedure from touching the merits of a verdict.” Bruno v.

United States, 308 U.S. 287, 294 (1939). The Supreme Court distinguishes a

defendant’s right to a trial free from mere technical errors as being “[of] a very different

order of importance” than the defendant’s right “to insist on a privilege which Congress

has given him,” id., such as the right to be free of overly prejudicial evidence under

Federal Rule of Evidence 403. 

The majority attempts to defend its errant standard by distinguishing the

application of the harmless-error rule in the present case from those in which the

claimed error is constitutional in nature. See Sullivan v. Louisiana, 508 U.S. 275, 278-

79 (1993) (constitutional error is harmless if government can show beyond a reasonable

doubt that the error did not contribute to the challenged verdict); Seiler v. Thalacker,

101 F.3d 536, 539-40 (8th Cir. 1996) (“The state has a heavy burden in proving that
The majority dismisses the Ninth Circuit’s holding in Hernandez as being

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“without cited authority.” Ante at 3, note 3. The likely reason for the absence of

citations by our sister circuit is the well-established principle that the beneficiary of a

trial court’s error bears the burden to show the error was harmless. The line of

precedents alluded to by the majority is neither long, nor to the contrary of the rule in

Hernandez.

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[a constitutional] error is harmless beyond a reasonable doubt.”) (citation omitted). I

agree that the harmless-error standard for nonconstitutional errors differs from that for

constitutional ones, but the difference is that a claim of constitutional error automatically

warrants harmless-error review, where a complaining party must show a

nonconstitutional error to be more than merely technical to receive such review. In

either case, however, the party receiving the benefit of the error carries the burden of

showing that the error did not affect the verdict. 

In United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997), the Ninth

Circuit correctly applied the standard, holding that the government bears the burden to

show harmlessness in a trial court’s error of admitting prior felonies under Old Chief.

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The majority has cited no cases contrary to Hernandez, and I have been unable to find

any. In any event, our court must be guided by the decisions of the Supreme Court,

which clearly dictate that the beneficiary of the trial court’s error, the government, bears

the burden to show that the error was harmless. The government has failed to meet its

burden, and for that reason, Harris’s conviction should not stand.

A true copy.

Attest:

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